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HomeMy WebLinkAboutContracts & Agreements_144-2001_CCv0001.pdf CITY OF REDLANDS ATM LEASE AGREEMENT This ATM Lease Agreement (this "Agreement"), dated this day of' 2001, is made by and between THE CITY OF REDLANDS ("Landlord"), and CALIF RNIA FEDERAL BANK, A Federal Savings Bank ("Operator"). 1. PREMISES: LANDLORD hereby leases to Operator and Operator hereby leases from LANDLORD for the term and subject to the agreements, covenants, conditions and provisions set forth in this Agreement. An approximate five foot (5') by five foot (5 ) area (the "Premises") within the Redlands Police Department Facility located at 212 Brookside Ave. Redlands (the Building), in the State of California, upon which Premises Operator intends to install and maintain a freestanding automated teller machine facility (the "ATM Facility"). The Premises within the Redlands Police Department Facility is shown on Exhibit A attached hereto and incorporated herein by this reference. Additionally, Operator's employees, agents and business invitees shall have the right to use, in common with other users of the Redlands Police Department Facility, the parking areas and other common areas of the Redlands Police Department Facility, and shall have the right of entry and access to the ATM Facility twenty-four (24)hours per day, seven(7) days per week. 2. TERM: (a) The term hereof shall be thirty-six (36) months, commencing on Oct. 2, 2001 (the "Commencement Date") and expiring on Oct. 1, 2004 (the "Expiration Date"), unless terminated earlier or extended pursuant to the terms hereof. (b) This Agreement may be terminated by either party at any time upon ninety (90) days prior written notice. 3. RENT: (a) Operator shall pay to LANDLORD a base monthly rent $0.00. 4. USE: Operator shall use the Premises for the purpose of operating one (1) automated teller machine ("ATM") and any other appropriate technology that may be required for the operation of the ATM Facility, and to provide related services and products. 5, UTILITIES: Operator shall pay the costs of all telephone services to the ATM Facility. LANDLORD agrees to provide adequate electricity to the ATM Facility for the operation thereof without additional charge to Operator. Operator shall have no further reimbursement obligations with respect to common area expenses, taxes or otherwise. 6. WSTALLATION: Except as provided below, Operator shall be responsible for the installation of the ATM FacilitN, at its sole cost. All obligations of LANDLORD and Operator under this Agreement are conditioned upon Operator obtaining any building and use permits from all applicable local authorities. Additionally, Operator shall have the right to terminate this Agreement within thirty (30) days after the commencement date in the event Operator 1 determines that the costs of routing the electrical power and/or telephone service to the ATM Facility is prohibitively expensive. LANDLORD shall cooperate with Operator's installation efforts, including Operator's efforts to obtain any necessary permit and Operator's work to provide electricity and telephone service to the ATM Facility. As Operator's design guidelines change from time to time and in connection with any permitted assignment, Operator shall have the right to modify the ATM Facility subject to LANDLORD's prior approval, not to be unreasonably withheld, conditioned or delayed. Operator will install an ATM within 45 to 60 days of signing this contract. 7. SURRENDER. At the expiration of this Agreement, Operator shall remove the ATM Facility, and shall return the Premises to its original condition (with the exception of any conduits and wiring within the walls or above the ceiling of the Building). The ATM Facility shall remain the sole property of Operator notwithstanding that it shall be affixed to the Premises. 8. SIGNAGE: (a) Subject to applicable laws governing signage, Operator, at its expense, shall be allowed to maintain signage on the ATM Facility in accordance with Operator's current signage specifications applicable from time to time, which shall include but not be limited to illuminate electric signs. Operator shall also be permitted to install signs that advertise the business and services available from Operator and to display Operator's trademarks, logos, and service marks. In the event that Operator's trademark, logo or service mark changes during the term of the Agreement or during any option period, Operator may replace existing signs to reflect the changes. Operator shall be responsible for any governmental permits required for the sign(s), and LANDLORD shall cooperate with Operator's efforts to obtain such permits. All signage shall remain Operator's personal property. (b) LANDLORD shall not publish any advertising or promotional material referring to the ATM, or services provided by Operator at the ATM Facility, without the prior written consent of Operator. (c) LANDLORD acknowledges that Operator, in the normal course of its business, may place signs and other promotional material within the ATM Facility. LANDLORD Shall not object to such signs and promotional material provided they conform to Operator's guidelines in place from time to time. 9. COMPLIANCE WITH LAWS: (a) Operator shall be responsible for ensuring that the ATM Facility and the ATM comply with all applicable laws including, without limitation, the requirements of the Americans With Disabilities Act and any rules and regulations promulgated thereunder. (b) At its own expense, LANDLORD Will procure, maintain in effect and comply with all conditions of any and all permits, licenses and other governmental and regulatory approvals required for the use and occupancy thereof, and any law, statute, ordinance or regulation pertaining to health, industrial hygiene or the environment, including, without limitation, 2 CERCLA (Comprehensive Environmental Response, Compensation and Liability Act of 1980) and RCRA (Resources Conservation and Recovery Act of 1976). 10. INDEMNIFICATION: (a) Operator shall indemnify and hold harmless LANDLORD, its elected officials, officers, employees and agents, from and against any and all claims, demands, liabilities, losses, damages or expenses, including reasonable attorney's fees, arising out of any ATM transaction or any act or omission of Operator, its officers, employees and agents, except for claims, demands, liabilities, losses, damages or expenses arising out of the negligence or willful misconduct of LANDLORD, its elected officials, officers, employees and agents. (b) LANDLORD shall indemnify and hold harmless Operator, its officers, employees and agents, from and against any and all claims, demands, liabilities, losses, damages or expenses, including reasonable attorney's fees, arising out of any act or omission of LANDLORD, its elected officials, officers, employees and agents, except for claims, demands, liabilities, losses, damages or expenses arising out of the negligence or willful misconduct of Operator, its officers, employees and agents. 11. DEFAULT (a) The occurrence of any of the following shall constitute a material default and breach of this Agreement: (i) Any failure by Operator to pay the rent (if applicable) or any other monetary sums required to be paid hereunder (where such failure continues for fifteen (15) days after Operator's receipt of written notice by Landlord to Operator). (ii) A failure by either party to observe and perform any other provisions of this Agreement to be observed or performed by such party, where such failure continues for thirty (30) days after such party's receipt of written notice thereof by the other party, provided however that if the nature of the default is such that the same cannot reasonably be cured within said thirty (30) day period, the breaching party shall not be deemed to be in default if the breaching party shall within such period commence such cure and thereafter diligently prosecute the same to completion within a reasonable period. (iii) The making by either party of any general assignment or general arrangement for the benefit of creditors, the filing by or against either party of a petition to have that party adjudged a bankrupt or of a petition for reorganization or arrangement under any law relating to bankruptcy (unless, same is dismissed within sixty (60) days); the appointment of a trustee or receiver to take possession of substantially all of a party's assets or the attachment execution or other judicial seizure of substantially all of a party's assets , where such seizure is not discharged within thirty (30) days. 3 12. MAINTENANCE/REPAIRS: (a) Operator shall, at its own expense, maintain the ATM Facility in good condition and repair, ordinary wear and tear and damage thereto by fire, earthquake, act of God or the elements excepted. (b) LANDLORD shall be responsible for the maintenance of Building and provision of adequate security. LANDLORD shall be fully responsible for the maintenance and repair of Building. LANDLORD shall be responsible for the payment of any expenses incurred in connection with the servicing, operation, maintenance and repair of Building, including but not limited to any management fees, insurance and any capital expenditures or repairs required by any current or future local, state or federal laws or regulations. LANDLORD shall ensure that Operator's signage installed pursuant to Paragraph 8 above, is not obstructed and remains fully visible at all times. 13. DAMAGE/DESTRUCTION: If the Building is damaged by fire or other casualty, Operator shall, at Operator's sole option, either repair or rebuild the ATM Facility or terminate this Agreement regardless of whether the ATM Facility is damaged or destroyed. Operator shall give notice of its election hereunder within sixty (60) days after the date of such casualty. If Operator elects not to terminate this Agreement and if the ATM Facility is damaged or destroyed, LANDLORD shall cooperate with Operator's repair efforts, including Operator's efforts to obtain any necessary permits and Operator's work to provide electricity and telephone service to the ATM Facility. 14. EMINENT DOMAIN: If Operator is unable to conduct a viable business as a result of the taking of any part of the Building through the exercise of eminent domain, as determined by Operator in its sole discretion, Operator shall have the right to terminate this Agreement upon thirty (30) days written notice to LANDLORD. In the event of any such taking LANDLORD shall be entitled to all compensation, except that Operator will receive from the proceeds the following: (a) a sum attributable to Operator's improvements or alterations made to the Premises, (b) a sum equal to the present value of any excess of the market value of the ATM Facility for the remainder of the term; and (c) a sum to pay for Operator's moving expenses. 15. ASSIGNMENT/SUBLETTING: Without prior written consent of LANDLORD, Operator shall have the right to assign its interest in this Agreement or sublet the ATM Facility in its entirety provided the assignee or subOperator is an "Affiliate". The term "Affiliate" means a corporation, partnership or entity or a state or federally chartered and insured bank, savings bank or savings and loan association which directly or indirectly: (i) is Operator's parent organization; (ii) is a wholly-owned subsidiary of Operator; (iii) is a corporation of which Operator or Operator's parent owns in excess of forty percent (40%) of the outstanding ownership interests; (iv) as a result of a consolidation, merger, or other reorganization with Operator and/or Operator's parent, shall oxvri all or substantially all of the ownership interests of Operator or Operator's parent; or(v) acquires all or substantially all of the outstanding ownership interests of Operator substantially all of the assets of Operator. Otherwise, any assignment or subletting shall be subject to LANDLORD's prior written consent, not to be unreasonably withheld, conditioned or delayed. Any subletting or assignment pursuant to this Paragraph 16 shall release, from and after the date thereof, Operator of its obligation to pay the rent (if applicable) and to perform all other 4 obligations under this Agreement by Operator hereunder. Consent to one assignment or subletting shall not be deemed consent to any subsequent assignment or subletting. 16. ATTORNEYS' FEES: If there is any legal or arbitration action or proceeding between LANDLORD and Operator to enforce any provision of this Agreement or to protect or establish any right or remedy of either LANDLORD or Operator hereunder, the unsuccessful party to such action or proceeding will pay to the prevailing party all costs and expenses, including reasonable attorneys' fees (including allocated costs of a party's in-house attorney). 17. NOTICES: All notices, or other -written communication, under this Agreement by either party to the other shall be in writing and shall be sufficiently given and served upon the other party, if sent by certified mail, return receipt requested, postage prepaid, and addressed to the addresses set forth below: To LANDLORD: City of Redlands Redlands Police Department 212 Brookside Ave. Redlands, CA. 92373 To Operator: California Federal Bank, A Federal Savings Bank 830 Stillwater Road W. Sacramento, CA. 95605 Attention: Bobbi Eddy With a copy to: California Federal Bank, A Federal Savings Bank 135 Main Street San Francisco, CA 94105-1817 Attention: Legal Department 18. SUBORDINATION: This Agreement will be subject and subordinate to the lien of all mortgages and deeds of trust securing any amount whatsoever which may now exist or hereafter be placed on or against the Building or on or against LANDLORD'S interest or estate therein. It shall not be necessary to execute further instruments to effect such subordination. The foregoing notwithstanding, this Agreement shall not be terminated or extinguished, nor will Operator's rights and possession hereunder be disturbed, in the event of a foreclosure of any such mortgage or deed of trust or any other action or proceeding for the enforcement thereof' or any sale thereunder, and Operator will attorn to the person who acquired LANDLORD's interest hereunder. 19, ESTOPPEL CERTIFICATE: Upon Operator's receipt of thirty (30) days prior notice by LANDLORD, Operator shall execute and deliver to LANDLORD a statement certifying that this Agreement is unmodified and in full force and effect (or if there have been modifications, that the same is in full force and effect as modified and stating the modifications), whether any defaults hereunder are known to Operator and, whether and to what extent rent and any other 5 charges have been paid in advance. Such statement delivered pursuant to this subparagraph may be relied upon by any prospective purchaser or encumbrancer`'(including Assignees) of the Building', 0. NO OT ER. ATM. LANDLORD agrees that it will not allow the operation of any other ATM anywhere within the interior or exterior of the Building. 21. DEMONSTRATION OF SER'V'ICE: LANDLORD agrees to allow Operator from time to time to place table, chairs and other similar furniture and associated equipment, and to allow Operator representatives to be present at the ATM Facility from time to time to demonstrate the ATM's operations and to promote the services available through the ATM. The amount of furniture and equipment, number of persons and the dates and tunes of the demonstrations and promotions shall be mutually acceptable to LANDLORD and Operator. 22. NO RELOCATION OR OBSTRUCTION: LANDLORD shall have no right to relocate the A'I'M Facility, whether through the physical relocation thereof or by materially changing the layout of`LANDLORD' Police Station facility. Additionally, LANDLORD shall not obstruct the visibility of or accessibility to the ATM facility in any material manner. 23. MISCELLANEOUS: (a) The unenforceability of any provision of this Agreement shall not affect the enforcement of any other provision. (b) The failure ofeither;party to enforce any term hereof shall not be deemed to be a waiver. (c) This Agreement and its attachments and exhibits constitutes the entire agreement between the parties. No representations or agreements of any kind have been made by either party which are not contained in this Agreement. (d) The rule of construction that ambiguities are resolved against the drafting party shall not apply to this Agreement. (e) This Agreement shall bind the parties, their personal representatives, heirs, executors, athninistrators, successors and assigns. The laws of the State of California shall govern.this Agreement: ( Each party represents to the other that it has full power and authority to execute and perform this Agreement. (g) This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument, 6 IN WITNESS WHEREOF, LANDLORD and Operator have executed this Agreement as of the day and year first hereinabove written. LANDLORD OPERATOR CITY OF REDLANDS CALIFORNIA FEDERAL BANK, A Federal Savings Bank By By Pat Gilbreath, Magor (Title) Title �_ Date October 2 2001 Date Attest: By ti Lor e Poyzer it Clerk 7 Exhibit [THIS EXHIBIT SHOULD CONTAIN DRAWINGS SHOWING (1) THE LOCATION OF THE ATM WITHIN THE FACILITY. EUREKA --------------------------------------- 0