CPA6.20.23
COMMUTE PROGRAM AGREEMENT
This Commute Program Agreement (“Agreement”) is made and entered into by and between Enterprise Rent-A-Car Company of Los Angeles, LLC doing business as COMMUTE with ENTERPRISE (“Commute” or “Enterprise”), and City Of Anaheim, a municipal corporation and charter city (“City”) and Enterprise agree as follows:
1. Scope of Agreement. This Agreement shall only apply to and cover Vehicle rentals for use in voluntary commuter vanpools under the Commute with Enterprise brand and by authorized of (a) employees and/or (b) non-employee participants City’s vanpool program “Eligible Participants” at the Locations set forth on Schedule 1, and which is/are operated by Enterprise or its Affiliates, as defined below. “Vehicle” shall mean seven (7), eight (8), nine (9), eleven (11) or twelve (12) passenger vanpool vehicles for use in the vanpool program. Each vanpool shall have a designated Vanpool Coordinator (“Coordinator”) and approved Eligible Drivers. “Eligible Driver” shall mean any Eligible Participant who has completed the approval process and has been approved to drive the vanpool, in writing by Enterprise. City understands that Enterprise intends to, and shall have the right to, delegate the performance of certain obligations and duties under this Agreement (including, without limitation, all obligations and duties relating to the rental of vehicles) to one or more affiliates of Enterprise (each, an “Affiliate” and collectively, the “Affiliates”), if use of such Affiliate is required to fulfill the obligations of Enterprise hereunder in the Locations set forth in Schedule 1.
2. Term. The term of this Agreement begins December 1st, 2024, and shall end on December 1 st, 2029 unless otherwise terminated by either party by providing thirty days’ prior written notice or as otherwise provided for in the General Terms and Conditions (the “Term”). Notwithstanding the foregoing, if either party (including, in the case of City, any Eligible Participant) shall default in the performance of any of its obligations or duties under this Agreement or any Operator Contract, as hereinafter defined below, and such failure shall continue for a period of ten (10) days after written notice thereo f from the non - defaulting party, then the non -defaulting party shall have the right to immediately terminate this Agreement by written notice to the defaulting party, which right of termination shall be in addition to any and all other rights and remedies which the non-defaulting party may have at law or in equity.
3. Commuter Vanpool Program; Obligations of the Parties and Affiliates. (a) Enterprise agrees to provide its proprietary vanpool services to the City for the Term of this Agreement, as set forth herein: These services (which may be added, modified, or eliminated at any time by written agreement of the parties) include:
• Dedicated Account Management, Reporting and recurring Business Reviews • Data Mapping and Grouping Analysis
• Customized Marketing and Communication Tools
• Commuter Connection Meetings
• Vehicle Demonstrations
(b) Enterprise agrees to make Vehicles available to the Coordinator for rental for vanpool use when the vanpool Coordinator and Eligible Drivers are in good standing, meet all conditions of participation in the vanpool and ha ve executed any applicable Operator Documents. Rentals originating in the United States shall not be driven to Mexico or Canada unless otherwise agreed to in writing by Enterprise or the applicable Affiliate.
(c) Enterprise agrees to commit their time, materials, and personnel to conduct Commuter Connection Meetings in order to provide a substantive presentation to Eligible Participants who may be viable candidates for vanpooling. City and Enterprise agree that these meetings will take place at location, date and time as agreed upon by the parties in writing . Enterprise agrees to bring a demonstration Vehicle for the Commuter Connection Meeting.
(d) City agrees to be responsible for:
CPA6.20.23
(i) Providing an employee database, an anonymized list of worksite employees with home street addresses, to Enterprise strictly for mapping analysis and identification of potential vanpool participants no less than thirty (30) days prior to the Commuter Connection Meetings;
(ii) Screening and matching all Eligible Participants’ work hours prior to a Commuter Connection Meeting; and
(iii) A minimum meeting attendance of at least ten (10) Eligible Participants (per meeting) not already participating in an Enterprise commuter vanpool program.
(e) The City agrees to provide the following Incentive(s) to Eligible Participants who choose to participate in the Enterprise commuter vanpool program:
• Pre-tax Payroll Deduction
(f) The parties may jointly develop a written marketing plan for the Enterprise commuter vanpool program and may agree, for time to time, to allow one another to use or refer to the other by name for the promotion of the program. Except as may be agreed to by each respective party in writing, no right or license, either express or implied, to use any information, trademark, logo or other proprietary information belonging to the other party shall be allowed hereunder.
(g) Eligible Drivers will not be paid and, with the exception of cost-sharing incentives from City or other participants, if any, will receive no remuneration for driving any vehicles under this Agreement.
(h) City agrees to pay to Enterprise an amount not to exceed One Hundred Fifty Thousand Dollars and no/100 Cents ($150,000.00) per year for the services provided under this Agreement.
ENTERPRISE shall submit monthly invoices to CITY. CITY shall pay ENTERPRISE no later than thirty (30) days after approval of the monthly invoice by CITY staff.
All Parties recognize that the continuation of this Agreement after the close of any fiscal year of CITY, which fiscal year ends on June 30 of each year, shall be subject to budget approval providing for or covering such contract items as an expenditure in said budget. CITY does not represent that said budget item will be actually adopted, said determination being the determination of the City Council at the time of the adoption of the budget herein. No penalty shall accrue to CITY in the event this provision shall be exercised. Should termination be accomplished in accordance with this Section, a settlement shall be negotiated by the Parties based on monies paid and due for actual items delivered and Services provided.
(i) Enterprise agrees to be responsible for providing Vehicle licensing, registration and appropriate insurance coverage as provided for herein.
4. Preferred Provider Status . City agrees to promote Enterprise as the preferred provider of vanpool services to Eligible Participants. In addition, City agrees to promote Commute with Enterprise on its internal website and through other company -wide internal communication networks. City grants Enterprise the right to promote its preferred provider status to Eligible Participants.
5. Operator Documents. In the event of a direct conflict between the terms of this Agreement and the terms of any Operator Document, the terms of this Agreement will govern. However, the specific terms of each Operator Document will govern to the extent not directly in conflict with the terms of this Agreement. Prior to participation in the Enterprise commuter vanpool program, a Coordinator or Eligible Driver must execute the then-standard driver or coordinator agreement of Enterprise or the applicable Affiliate with which the Vehicle rental first occurs (“Operator Document”). Individuals not acting as a driver or coordinator are not required to complete any Operator Documents but may be required to agree to other terms of ridership including but not limited to submission of addi tional information. City acknowledges and agrees that the Commute with Enterprise program may differ by Location based upon applicable state law governing the provision of vanpool services by Enterprise or an Affiliate.
CPA6.20.23
6. Assignment. Subject to Section 1 above, neither party may assign or otherwise transfer any of its rights or delegate the performance of any of its obligations or duties under this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed.
7. Confidential Information . Except as otherwise required by law, City agrees to maintain the confidentiality of the pricing offered to City and all other terms under this Agreement. The confidential obligations of this section shall survive the termination of this Agreement.
8. MAINTENANCE, SERVICE AND REPAIRS
A. CITY shall not be liable for any damages to a Vehicle due to Eligible Driver or passenger neglect., except to the extent that such damage is caused by or relates to actions take n at the direction of City.
In addition, CITY shal l not be liable for damages to V ehicle for failure of ELIGIBLE DRIVER to reasonably comply with recommended or required maintenance (with maintenance requirements supplied by ENTERPRISE) as required of Eligible Driver in the Vanpool Driver Agreement.
B. The City will furnish gasoline for the van at CITY's fuel pump stations. In the event of an emergency, driver may purchase gasoline at a service station. Reimbursement of the cost of gasoline is the responsibility of the ELIGIBLE DRIVER.
C. If vanpool Vehicle breaks down or is damaged in an accident, ENTERPRISE will provide a loaner Vehicle, of the same size, for the period of time that the Vehicle is inoperable.
D. ENTERPRISE agrees to provide roadside assistance and transportation to destination for all vanpool passengers in the event of an accident or Vehicle malfunction.
E. Intentionally Omitted.
F. Enterprise shall be responsible for all maintenance of the vanpool Vehicles in accordance with the terms of the Vanpool Coordinator and Vanpool Driver Agreements.
9. ACCIDENTS AND CITATIONS
ENTERPRISE shall not be responsible to the CITY for any loss of income, inconvenience, or other damage caused by an interruption of the services to be furnished by ENTERPRISE. It is expressly understood that ENTERPRISE assumes no liability or responsibility for any acts or omission of the CITY or CITY's ELIGIBLE DRIVER for any other person's property lost, stolen or damage in or from the van.
10. Miscellaneous. City agrees that Enterprise and the Affiliates may share information provided by City to Enterprise or any Affiliate with their respective Affiliates in order to provide the services as set forth in this Agreement. The Agreement represents the entire and complete understanding of the parties with respect to the subject matter set forth herein. No amendment to or modification of this Agreement or any Schedule is effective unless it is in writing and signed by each party. No waiver by any party of any of the provisions of this Agreement shall be effective unless explicitly set fort h in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. Nothing in this Agreement creates any agency, joint venture, partnership or other form of joint enterprise, employment, or fiduciary relationship between the parties. Neither party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other party or to bind the other party to any contract, agreement or undertaking with any third party. This Agreement shall be governed by the substantive laws of the state or province listed as part of City’s address below. Receipt of an executed signature page to this Agreement by facsimile, pdf or other electronic transmission shall constitute effective delivery thereof.
CPA6.20.23
11. INSURANCE
Without limiting CITY’S right to indemnification, it is agreed that ENTERPRISE shall secure, prior to commencing any activities under this Agreement, and maintain, during the term of this Agreement, insurance coverage as follows, this coverage does not apply to Vanpool Drivers.
Workers’ Compensation Insurance as required by California law and Employers Liability Insurance in an amount not less than $1,000,000 per occurrence/accident/illness/injury.
Commercial General Liability Insurance, including coverage for Premises and Operations, Contractual Liability, Personal Injury Liability, Products/Completed Operations Liability, as well as Independent Consultant’s Liability where appropriate, in an amount not less than $2,000,000 per occurrence, $4,000,000 annual aggregate, written on an occurrence form. Such insurance shall be written on a primary basis but may include a deductible or self-insured retention of more than $10,000 per occurrence, provided that such deductible or self-insured retention is disclosed to CITY, in writing, at the inception of this Agreement.
Commercial Automobile Liability Coverage including—as applicable—owned, non-owned, and hired autos, in an amount not less than $2,000,000 per occurrence, combined single limit, as required by California law.
Professional Liability Insurance, inclusive of Cyber Liability Insurance where required, in an amount not less than $2,000,000 per occurrence or per claim. Such insurance shall be written on a primary basis but may include a deductible or self-insured retention of more than $10,000 per occurrence, provided that such deductible or self-insured retention is disclosed to CITY, in writing, at the inception of this Agreement.
Any required coverage written with primary and excess layers to satisfy the minimum requirements of this Agreement must be submitted for approval by CITY’s Risk Manager prior to the inception of the final Agreement.
ENTERPRISE agrees that this insurance shall not be voluntarily cancelled by ENTERPRISE or limited in scope or coverage by ENTERPRISE until after thirty (30) days prior written notice has been given to the City Clerk, City of Anaheim, 200 S. Anaheim Blvd., Anaheim, CA 92805. This does not apply to cancellation for non-payment of premium, which requires notice of not less than ten (10) days.
Each insurance policy required by this Agreement shall contain the following clause or shall otherwise provide for the following conditions:
Each insurance policy required by this Agreement, except policies for Professional Liability and Workers’ Compensation, shall contain the following clauses or shall otherwise provide for the following conditions:
“It is agreed that any insurance maintained by ENTERPRISE pursuant to this Agreement shall be primary to, and not contribute with, any insurance or self- insurance maintained by the City of Anaheim.”
“The City of Anaheim, its officers, agents, employees, representatives and CITY- designated volunteers are added as additional insured as respects the acts, omissions, operations and activities of, or on behalf of, the named insured, in regard to products supplied to, or work or services performed for, or related to, the City of Anaheim.”
Prior to commencing any work under this Agreement, ENTERPRISE shall deliver to CITY insurance certificates confirming the existence of the insurance required under this Agreement, and including the applicable clauses referenced above. Also, within thirty (30) days of the execution date of this Agreement, ENTERPRISE shall provide CITY (i) endorsements to the insurance policies that add to these policies the applicable clauses referenced above, or (ii) in lieu of said endorsements, documentation acceptable to CITY evidencing that the coverage, terms, and conditions set forth in the above-referenced clauses are otherwise included in said insurance policies. Insurance required hereunder shall be placed with insurers (i) admitted to write insurance in California, (ii) possessing an A. M. Best’s rating of A VII or higher, or (iii) otherwise acceptable to CITY, with prior written permission from CITY. In the event that a claim or other legal action is filed against CITY, and if CITY, in its good faith opinion, believes it may have coverage under any of the CPA6.20.23
insurance required herein, then CITY has the right to demand, and to receive within a reasonable time period, copies of the insurance policies related to such required insurance; provided, however, that this provision shall not apply if the parties agree that ENTERPRISE shall fully defend, hold harmless, and indemnify CITY against any such claim or other legal action.
In addition to other remedies CITY may have if ENTERPRISE fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, CITY may, at its sole option:
Order ENTERPRISE to stop work under this Agreement and/or withhold any payment(s) that become due to ENTERPRISE hereunder until ENTERPRISE demonstrates compliance with the requirements hereof.
Terminate this Agreement.
Exercise of any of the above remedies, however, is an alternative to other remedies CITY may have and is not the exclusive remedy for ENTERPRISE’S failure to maintain insurance or secure appropriate endorsements.
Nothing herein contained shall be construed in any way as limiting the extent that an ENTERPRISE may be held responsible for payments of damages to persons or property resulting from ENTERPRISE’S, (or ENTERPRISE’S AGENT or SUB-AGENT, if any) performance of the work covered under this Agreement.
In the event ENTERPRISE hires other persons or firms to perform some of the work related to this Agreement, ENTERPRISE shall ensure (i) that the acts or omissions of such persons or firms are covered under the above-referenced liability insurance, or (ii) that such firms maintain insurance equal to or better than, and subject to the same limits, terms and conditions as, t he insurance required of ENTERPRISE under this Agreement (except for firms that are not performing professional services —such firms shall not be required to carry the above -referenced professional liability insurance); and in either instance, ENTERPRISE shall provide, or cause to be provided, evidence of such insurance coverage, reasonably acceptable to CITY.
CITY’S Risk Manager is hereby authorized to amend the requirements set forth herein in the event that such reduction is in CITY’S best interest.
12. INDEMNIFICATION
As respects acts, errors or omissions in the performance of professional services, ENTERPRISE agrees to indemnify and hold harmless CITY, its officials, officers, and employees from and against any and all claims, losses, damages, defense costs, or liability, of any kind or nature, directly arising out of the negligent acts, errors or omissions of the ENTERPRISE or any SUB-AGENT in the performance of professional services under this Agreement.
As respects all acts, errors or omissions that do not arise directly out of the performance of professional services, including but not limited to those acts, errors or omissions typically covered by general and automobile liability insurance, ENTERPRISE agrees to indemnify, defend (at CITY'S option), and hold harmless CITY, its officials, officers, employees, agents, and representatives from and against any and all claims, losses, damages, defense costs, or liability, of any kind or nature (collectively referred to hereinafter as “Claims”), arising out of or in connection with ENTERPRISE’S (or ENTERPRISE'S AGENT or SUB-AGENT, if any) acts, errors, omissions, or work, relative to this Agreement; except for those Claims that arise out of the sole negligence or willful misconduct of CITY.
The obligations set forth in this indemnification provision (i) shall be in effect without regard to whether or not CITY, ENTERPRISE, or any other person maintains, or fails to maintain, insurance coverage, or a self- insurance program, for any such Claims; and (ii) shall survive the termination of this Agreement.
CPA6.20.23
13. Notices. Notices or other communications under this Agreement shall be in writing and shall be effective when delivered personally or by overnight courier, or mailed, postage prepaid, by certified or registered mail to each party at the addresses set forth below (or to such other address(es) as either party may from time to time provide the other).
Enterprise Rent-A-Car Company of Los Angeles, LLC City Of Anaheim d/b/a Commute with Enterprise Attn: Brenda Merida
333 City Blvd West, Ste 1000 200 S. Anaheim Blvd. Suite 276 Orange, CA 92868 Anaheim, CA 92805-3880
Attn: Christina Hann Email: [email protected]
With a copy to:
Commute with Enterprise
Attn: Vice President
600 Corporate Park Drive
St. Louis, MO 63105
With a copy to:
General Counsel
600 Corporate Park Drive
St. Louis, MO 63105
Schedule 1 is made a part of this Agreement.
ENTERPRISE RENT-A-CAR COMPANY OF LOS ANGELES, LLC CITY OF ANAHEIM
By: EHI_SIG_1 By: CS_SIG_1
Name: EHI_SIG_P Name: CS_SIG_P
Title: EHI_SIG_T Title: CS_SIG_T
CPA6.20.23
Commute Program Agreement
Schedule 1
____________________________________________________________________________________
AFFILIATES OF ENTERPRISE LOCATION OF SERVICES
Enterprise Rent-A-Car Company of Los Angeles, LLC 200 S. Anaheim Blvd Suite 276, Anaheim, CA 92805