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HomeMy WebLinkAboutEnterprise Fleet Management - Agreement to Sell Customer Vehicles DocuSign Envelope ID:14FD41 F2-FC2A-4572-A34A-620088711130 enterprise FLEET MANAGEMENT AGREEMENT TO SELL CUSTOMER VEHICLES THIS AGREEMENT is entered into by and among the entities set forth on the attached Schedule 1 (hereinafter each an"Enterprise Entity" and collectively the"Enterprise Entities")and Enterprise Fleet Management, Inc. (hereinafter referred to as"EFM") (the"Enterprise Entities"and"EFM"shall collectively be referred to as"Enterprise")on the one hand and Mason County (hereinafter referred to as"CUSTOMER"),on the other hand on this 30th day of January 2020 (hereinafter referred to as the"Execution Date"). RECITALS A. Enterprise FM Trust and CUSTOMER have entered into an agreement whereby Customer has agreed to lease certain vehicles set forth in the agreement between Customer and Enterprise FM Trust; B. EFM is the servicer of the lease agreement between Enterprise FM Trust and Customer; C. Enterprise,from time to time, sells vehicles at wholesale auctions and other outlets;and D. The CUSTOMER and Enterprise wish to enter into an agreement whereby Enterprise will sell at wholesale, CUSTOMER's vehicles set forth on Exhibit A,attached hereto and incorporated herein,as supplemented from time to time(collectively,the"Vehicles"). NOW,THEREFORE,for and in consideration of the mutual promises and covenants hereinafter set forth,the parties agree as follows: TERMS AND CONDITIONS 1. Right to Sell: Enterprise shall have the non-exclusive right to sell any Vehicles assigned to Enterprise by CUSTOMER,or under consignment from Customer to Enterprise,as the case may be dependent upon applicable law in the jurisdiction in which the Vehicle is to be sold. For Vehicles to be sold under assignment, Customer shall assign the title to Enterprise and deliver the assigned title to Enterprise with the Vehicle. For Vehicles to be sold under consignment, Customer shall execute a consignment agreement granting Enterprise power in any and all matters pertaining to the transfer of Vehicle titles and any papers necessary thereto on behalf of CUSTOMER. 2. Additional Documentation: Where necessary,CUSTOMER shall execute any and all additional documentation, required to effectuate the sale of Vehicle(s). 3. Service Fee: For each Vehicle sold,the CUSTOMER shall pay Enterprise an administrative fee of the lesser of$400 or the maximum permitted by law("Service Fee"). 4. Sales Process: Enterprise shall use reasonable efforts in its sole discretion to sell each Vehicle. CUSTOMER may,at its discretion, place a Minimum Bid or Bid to be Approved (BTBA)on any Vehicle by providing prior written notification to Enterprise. Enterprise shall have full discretion to accept any bid at or above the designated minimum bid or BTBA. Absent any such minimum bid or BTBA, Enterprise shall have full discretion to accept any bid on a Vehicle. 5. Time for Payment: (a) No later than twenty-one(21)business days after the collection of funds by Enterprise for the sale of a Vehicle, Enterprise will remit to the CUSTOMER an amount equal to the Vehicle sale price minus any seller fees,auction fees,Service Fees,towing costs,title service fees, enhancement fees and any expenses incurred by Enterprise while selling Vehicle, regardless of whether the purchaser pays for the Vehicle. (b) Enterprise's obligations pursuant to Section 6(a)shall not apply to Vehicle sales involving mistakes or inadvertences in the sales process where Enterprise reasonably believes in its sole discretion that fairness to the buyer or seller justifies the cancellation or reversal of the sale. If Enterprise has already remitted payment to CUSTOMER pursuant to Section 6(a) prior to the sale being reversed or cancelled, CUSTOMER agrees to reimburse Enterprise said payment in full. Enterprise will then re-list the Vehicle and pay CUSTOMER in accordance with this Section 6. Examples of mistakes or inadvertences include,but are not limited,to Vehicles sold using inaccurate or incomplete vehicle or title descriptions and bids entered erroneously. DocuSign Envelope ID:14FD41F2-FC2A-4572-A34A-620088711130 6. Indemnification and Hold Harmless: Except as otherwise provided herein, CUSTOMER agrees to indemnify,defend and hold EFM and each Enterprise Entity and their parents and affiliated entities, employees and agents harmless to the extent any loss, damage, or liability arises from EFM or any Enterprise Entity's use or operation of a vehicle and for the negligence or willful misconduct of Customer, its agents or employees, and for its breach of any term of this Agreement. The parties'obligations under this section shall survive termination of this Agreement. 7. Risk of Loss: Notwithstanding anything to the contrary hereunder, CUSTOMER shall assume all risk of loss for damage to or loss of any Vehicle or any part or accessory regardless of fault or negligence of CUSTOMER, Enterprise, EFM or any other person or entity or act of God. 8. Liens,Judgments,Titles and Defects:CUSTOMER represents and warrants it holds full legal title to each such Vehicle,title to each such Vehicle is clean and not subject to being branded for any reason, or requires any form of additional disclosure to a purchaser and that there are no open recalls on each such Vehicle. CUSTOMER shall defend, indemnify and hold Enterprise, EFM,their parents, employees and agents harmless from and against any and all claims,expenses(including reasonable attorney's fees),suits and demands arising out of, based upon, or resulting from any judgments, liens or citations that were placed on the Vehicle, defects in the Vehicle's title,or mechanical or design defects in the Vehicle. 9. Odometer: Neither EFM nor Enterprise assume responsibility for the correctness of the odometer reading on any Vehicle and the CUSTOMER shall defend, indemnify and hold EFM, Enterprise,their parents,employees and agents harmless from and against any and all claims, expenses (including reasonable attorney's fees),suits and demands arising out of, based upon or resulting from inaccuracy of the odometer reading on any Vehicle or any odometer statement prepared in connection with the sale of any Vehicle, unless such inaccuracy is caused by EFM, Enterprise,their employees or officers. 10. Bankruptcy: Subject to applicable law, in the event of the filing by CUSTOMER of a petition in bankruptcy or an involuntary assignment of its assets for the benefit of creditors, EFM or Enterprise may accumulate sales proceeds from the sale of all Vehicles and deduct seller fees,auction fees,Service Fees,towing costs,title service fees,enhancement fees and any expenses incurred by EFM or Enterprise while selling Vehicle from said funds. EFM or Enterprise will thereafter remit to CUSTOMER the net proceeds of said accumulated sales proceeds,if any. 11. Compliance with Laws: EFM, Enterprise and CUSTOMER shall comply with all federal,state,and local laws, regulations, ordinances, and statutes, including those of any state motor vehicle departments,department of insurance,and the Federal Odometer Act. 12. Insurance:CUSTOMER shall maintain and provide proof of Automobile Liability Insurance until the later of title transfer to purchaser of Vehicle or transfer of sales proceeds to Customer covering liability arising out of maintenance, use or operation of any Vehicle(owned, hired and non-owned)under this Agreement,with limits of not less than one million dollars($1,000,000) per occurrence for bodily injury and property damage. EFM, Enterprise,and their subsidiaries and affiliates are to be named as Additional Insureds.This insurance shall be written as a primary policy and not contributing with any insurance coverage or self-insurance or other means of owner's financial responsibility applicable to EFM or Enterprise. CUSTOMER must waive and must require that its insurer waive its right of subrogation against EFM and Enterprise and their affiliates, employees,successors and permitted assigns on account of any and all claims CUSTOMER may have against EFM or Enterprise with respect to insurance actually carried or required to be carried pursuant to this Agreement. 13. Term:This agreement is effective on the Execution Date and shall continue until such time as either party shall notify the other party with thirty (30)days prior written notice to terminate the Agreement with or without cause. 14. Modification: No modification,amendment or waiver of this Agreement or any of its provisions shall be binding unless in writing and duly signed by the parties hereto. 15. Entire Agreement:This Agreement constitutes the entire Agreement between the parties and supersedes all previous agreements, promises, representations,understandings,and negotiations,whether written or oral,with respect to the subject matter hereto. 16. Liability Limit: EXCEPT TO THE EXTENT A PARTY HERETO BECOMES LIABLE FOR ANY DAMAGES OF THE TYPES DESCRIBED BELOW TO A THIRD PARTY AS A RESULT OF A THIRD PARTY CLAIM AND SUCH PARTY IS ENTITLED TO INDEMNIFICATION WITH RESPECT THERETO UNDER THE PROVISIONS OF THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY HEREUNDER BE LIABLE TO OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, OR INDIRECT DAMAGES(INCLUDING WITHOUT LIMITATION, LOSS OF GOODWILL, LOSS OF PROFITS OR REVENUES, LOSS OF SAVINGS AND/OR INTERRUPTIONS OF BUSINESS), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 17. Attorney's Fees: In the event that a party hereto institutes any action or proceeding to enforce the provisions of this Agreement,the prevailing party shall be entitled to receive from the losing party reasonable attorney's fees and costs for legal services rendered to the prevailing party. DocuSign Envelope ID:14FD41F2-FC2A-4572-A34A-620088711130 18. Authorization: Each party represents and warrants to the other party that the person signing this Agreement on behalf of such party is duly authorized to bind such party. 19. Independent Contractor: EFM and Enterprise shall perform the services hereunder as an independent contractor of Customer and no term of this Agreement shall be deemed or construed to render CUSTOMER and EFM or Enterprise as joint venturers or partners. 20. Unsold Vehicles: Should such Vehicle not sell, Customer shall pick up Vehicle within five(5)business days of being provided notice that the Vehicle has not been sold and,for Vehicles assigned to Enterprise by Customer, Enterprise shall assign title back to CUSTOMER. "ENTERPRISE" "CUSTOMER"Signature: Signature: S.6.VOln. tra L Printed Name: Fiona Watson Sharon Trask Printed Name: Title: Finance Director Title: Commissioner Date Signed: January 30, 2020 Date Signed: January 30, 2020 Schedule 1 Enterprise Leasing Company of STL, LLC Enterprise Rent-A-Car Company of Sacramento, LLC Enterprise Leasing Company of Georgia, LLC Enterprise Rent-A-Car Company of Los Angeles, LLC Enterprise Leasing Company of Florida, LLC Enterprise RAC Company of Cincinnati, LLC Enterprise Leasing Company of KS LLC CLERAC, LLC EAN Holdings, LLC Enterprise Rent-A-Car Company of Pittsburgh, LLC Enterprise Leasing Company of Orlando, LLC Enterprise Rent-A-Car Company of Wisconsin, LLC Enterprise Leasing Company of Indianapolis, LLC Enterprise Rent-A-Car Company of UT, LLC Enterprise Rent-A-Car Company of Boston, LLC CAMRAC, LLC Enterprise Leasing Company of Denver, LLC Enterprise Rent-A-Car Company of Rhode Island, LLC Enterprise Leasing Company of Chicago,LLC Enterprise Leasing Company of Phoenix, LLC Enterprise RAC Company of Maryland, LLC Enterprise Leasing Company-Southeast, LLC Enterprise Leasing Company of Philadelphia, LLC Enterprise Leasing Company-West, LLC Enterprise RAC Company of Baltimore, LLC Enterprise Leasing Company-South Central, LLC Enterprise Leasing Company of Minnesota, LLC PENRAC, LLC Enterprise Leasing Company of Detroit, LLC Enterprise Rent-A-Car Company of KY, LLC Enterprise Leasing Co of Norfolk/Richmond, LLC Enterprise Rent-A-Car Company-Midwest, LLC Enterprise Rent-A-Car Co of San Francisco, LLC Enterprise RAC Company of Montana/Wyoming, LLC ELRAC, LLC SNORAC, LLC