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HomeMy WebLinkAboutC-3018(A) - Balboa Boulevard East, 600 - Lease Agreement - Automated Teller Machine (ATM) at Palm Street Public Parking Lot 2015i1 u CO Q AMENDMENT NO. ONE TO to LEASE AGREEMENT BY AND BETWEEN THE CITY OF NEWPORT BEACH AND C.) WELLS FARGO BANK, NATIONAL ASSOCIATION THIS AMENDMENT NO. ONE TO LEASE AGREEMENT ("Amendment") is made and entered into as of this 1st day of January, 2021 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("Lessor" or "City"), and WELLS FARGO BANK, N.A., a national banking association organized under the federal laws of the United States of America ("Lessee"), individually referred to as "Party" or collectively "Parties". RECITALS A. On December 16, 2015, City and Lessee entered into a Lease Agreement ("Agreement"), as evidenced by a Memorandum of Lease recorded on February 29, 2016, as Instrument No. 2016000083006 in the Official Records of Orange County. B. The parties desire to enter into this Amendment to amend the Rent defined under Section 3.1 of the Agreement during any Renewal Term(s), as may be exercised by the Lessee per the terms of the Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. RENT Section 3.1 of the Agreement is amended in its entirety and replaced with the following: "3.1 Lessee shall commence payment of rent upon the first day of the first month following the Effective Date of this Agreement. The "Rent" for the Initial Term, which includes use of the Premises, shall be established at Twenty Four Thousand Dollars and 00/100 ($24,000.00) per year. Rent for the Initial Term shall be paid, in advance, in equal monthly installments on the first day of each month (e.g., Two Thousand Dollars and 00/100 ($2,000.00) per month). If the option to extend is exercised, the Rent for the first Renewal Term shall be established at Twelve Thousand Dollars and 00/100 ($12,000.00) per year and shall be paid, in advance, in equal monthly installments on the first day of each month (e.g., One Thousand Dollars and 00/100 ($1,000.00) per month). Subsequent Renewal Terms shall continue from such adjusted Rent, per Section 3.2 below, into a second and third Renewal Term, should Lessee exercise one or both of its two (2) remaining options to extend the Term. Rent for any partial month shall be prorated in accordance with the actual number of days in that month and shall be due on the first day of the following month. Rent due hereunder will be subject to the rent adjustment provisions of Section 3.2 below. Lessee shall send said Rent to the mailing address or send an electronic fund transfer via the web address provided in Section 3.4. Lessee shall be responsible for any delays in the mode of sending the Rent to City." 2. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. In the event of a conflict between any term, provision, or condition of this Amendment and any term, provision, or condition of the Agreement, the terms, provisions, or conditions of the Agreement will control. 3. OFAC AND ANTI -MONEY LAUNDERING PROVISIONS "AML Laws" means all U.S. anti -money laundering laws that criminalize money laundering or any predicate crimes to money laundering. "Anti -Corruption Laws" means the U.S. Foreign Corrupt Practices Act and any similar applicable statute, rule, or regulation relating to bribery or corruption. "Sanctions" means any economic, trade, or financial sanctions, sectoral sanctions, secondary sanctions, trade embargoes, or anti- terrorism laws imposed from time to time by the United States government including but not limited to those administered or enforced by the U.S. Department of Treasury's Office of Foreign Assets Control. Each party represents to the other party that it is not a target of Sanctions and shall not directly or indirectly transfer any of its interest in the Agreement to a target of Sanctions. At all times during the Term of the Agreement, each party shall not violate applicable Sanctions, AML Laws, or Anti -Corruption Laws while performing their respective obligations under the Agreement to the extent that such violation results in it being unlawful for the non -violating party to transact the business under the Agreement with the violating party. 4. BROKER Each party represents to the other that it has had no dealings with any real estate broker, agent, or finder in connection with the negotiation of this Amendment and that it knows of no real estate broker or agent entitled to any commission or finder's fee in connection with this Amendment. Each party shall indemnify and hold harmless the other party from and against any and all claims, demands, losses, liabilities, judgments, costs, and expenses (including attorneys' fees and costs) with respect to any leasing commission, finder's fee, or equivalent compensation alleged to be owing on account of the indemnifying party's dealings with any real estate broker, agent, or finder. 5. NO CONSTRUCTION AGAINST DRAFTING PARTY Landlord and Tenant acknowledge that each of them and their respective counsel have had an opportunity to review this Amendment and that this Amendment will not be construed for or against either party merely because such party prepared or drafted this Amendment or any particular provision thereof. Wells Fargo Bank, N.A. Page 2 6. MISCELLANEOUS a. Entire Agreement. THE AGREEMENT AS AMENDED BY THIS AMENDMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN LANDLORD AND TENANT. IT IS THE COMPLETE AND EXCLUSIVE EXPRESSION OF THE PARTIES' AGREEMENT ON THE MATTERS CONTAINED IN THIS AMENDMENT. ALL PRIOR AND CONTEMPORANEOUS NEGOTIATIONS AND AGREEMENTS BETWEEN THE PARTIES ON THE MATTERS CONTAINED IN THIS AMENDMENT ARE EXPRESSLY MERGED INTO AND SUPERSEDED BY THIS AMENDMENT. THE PROVISIONS OF THIS AMENDMENT MAY NOT BE EXPLAINED, SUPPLEMENTED, OR QUALIFIED THROUGH EVIDENCE OF TRADE USAGE OR A PRIOR COURSE OF DEALINGS. IN ENTERING INTO THIS AMENDMENT, THE PARTIES HAVE NOT RELIED UPON ANY STATEMENT, REPRESENTATION, WARRANTY, OR AGREEMENT OF THE OTHER PARTY OR OF THE OTHER PARTY'S BROKER EXCEPT FOR THOSE EXPRESSLY CONTAINED IN THIS AMENDMENT. THERE IS NO CONDITION PRECEDENT TO THE EFFECTIVENESS OF THIS AMENDMENT OTHER THAN THOSE EXPRESSLY STATED IN THIS AMENDMENT. b. Counterparts. The parties may execute this Amendment in multiple counterparts, each of which constitutes an original, and all of which, collectively, constitute only one Amendment. The signatures of all parties need not appear on the same counterpart. This Amendment is valid, binding, and enforceable against a party only when executed by an authorized individual on behalf of a party by means of an original manual signature. This Amendment is effective upon delivery of one executed counterpart from each party to the other party. In proving this Amendment, a party must produce or account only for the executed counterpart of the party to be charged. [SIGNATURES ON NEXT PAGE] Wells Fargo Bank, N.A. Page 3 IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: (/2_/o)2 LESSOR: CITY OF NEWPORT BEACH, a California municipal corporation and charter city Date: APR 0 2 2021 By: By: aro C. Harp Gr K. Leung City Attorney Ci anager ATTEST: Date: %-/`Z--2u z / By: LESSEE: WELLS FARGO BANK, N.A., a national banking association organized under the federal laws of the United States of America Date: Signed in Counterpart By: 4Leilani I. Brown Debora Cecilia Zelada City Clerk Vice President Date: Signed in Counterpart By: Lori C. Wright Vice President [END OF SIGNATURES] Wells Fargo Bank, N.A. Page 4 IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: By: 0-1---....0 6(' (/L/ZQZ j aroh C. Harp City Attorney ATTEST: Date: LESSOR: CITY OF NEWPORT BEACH, a California municipal corporation and charter city Date: By: Grace K. Leung City Manager LESSEE: WELLS FARGO BANK, N.A., a national banking association organized under the federal laws of the United States of America Date: By: By: Leilani I. Brown Debora Cecilia Zelada City Clerk Vice President Date: 37/t/ae-1>l Lori C. Wright Vice President By: Lori C. Wright Vice President [END OF SIGNATURES] Wells Fargo Bank, N.A. Page 4 LEASE AGREEMENT BY AND BETWEEN THE CITY OF NEWPORT BEACH AND WELLS FARGO BANK, NATIONAL ASSOCIATION This LEASE AGREEMENT ("Agreement") is entered into this 16th day of December, 2015 ("Effective Date") by and between the City of Newport Beach, a California municipal corporation and charter city ("Lessor" or "City"), and Wells Fargo Bank, National Association ("Lessee"), individually referred to "Party" or collectively as "Parties." RECITALS A. City is the owner of certain improved Property consisting of land, an asphalt and striped parking lot, landscaping, and other improvements commonly known as the Palm Street Public Parking Lot, 600 Balboa Boulevard East, Newport Beach, California 92661 [A.P.N. 048-116-06, 048-116-05, and 048-116-04] (collectively the "Property"), which is depicted on Exhibit "A" and incorporated herein by reference. B. Lessee desires to lease a portion of the Property in order to continue to operate an Automated Teller Machine ("ATM") facility currently located thereon at 200 Palm Street, Newport Beach, California ("Premises") as also depicted in Exhibit "A," and City agrees to lease the Premises to Lessee on the terms and conditions contained herein. The ATM facility located on the Premises, ("Lessee Improvements") which is depicted on Exhibit "B" and incorporated herein by reference, and installed pursuant to the Lease Agreement between the Parties of September 14, 1994, consists of a kiosk to house up to two (2) automated teller machines (individually an "ATM" and collectively the "ATMs") not to exceed three hundred (300) square feet, together with such additional equipment or features as Lessee shall deem appropriate, including without limitation: (1) a telephone or other support system for such equipment, (2) trash receptacles, (3) a branch computer terminal, with all supporting telecommunications equipment, (4) a customer service phone, (5) a merchant depository, and/or (6) such other equipment and accessories as are or become normally provided by Lessee in connection with the operation of ATMs (which ATMs and such additional equipment and features are collectively referred to as the "ATM Facility"). C. Pursuant to City Council Policy F-7, the City conducted an appraisal on March 21, 2014, to obtain the fair market value of the Property. Further, an open bid process was not conducted as the City finds that converting the Property to another use or changing the manager, concessionaire, or lessee of the property would result in excessive vacancy, relocation or severance costs, and redevelopment of the Property would require excessive time, resources, and costs which would outweigh other financial benefits. D. Lessee is on notice that City has entered into an Option to Ground Lease Agreement with ExplorOcean, dated November 25, 2014, ("ExplorOcean Agreement") whereby ExplorOcean has the option to lease the Property to construct a parking garage in conjunction with their operation of an ocean literacy facility located at 600 East Bay Avenue, Newport Beach, California. The option, if not exercised, expires on December 31, 2021, unless extended. The ExplorOcean Agreement includes an option for a ground lease agreement for the Property, which may terminate this Agreement. IN CONSIDERATION OF THE MUTUAL COVENANTS CONTAINED HEREIN, the Parties agree as follows: 1. Premises. 1.1 Location. City hereby leases to Lessee and Lessee hereby leases from City the Premises upon the terms and conditions of this Agreement for the purpose of operating and maintaining the ATM Facility 1.2 Access. City shall provide Lessee and its agents, employees, representatives, and customers with: (a) full and unimpaired access to the Premises at all hours; and (b) in addition to Lessee's exclusive parking rights as provided in Section 1.3 below, the nonexclusive right to use the parking area and other common areas of the Property (collectively the "Common Areas"), if any, in common with City, other lessees, licensees, invitees, and occupants of the Property. In the event of any construction, remodeling, or other activity by City or its agents, employees, or contractors upon the Property, City shall undertake such activities so as to permit access to the ATM Facility to the fullest extent possible and so as to prevent the prolonged interruption or closure of the ATM Facility. 1.3 Lessee's Exclusive Parking Rights. During the Term (as defined below) and any Renewal Term (as defined below), Lessee shall have, at no additional cost to Lessee and as designated by City, the right to use, on an exclusive basis, at least one (1) stall in the parking lot on the Property located nearest to the Premises for short term parking (not to exceed fifteen (15) minutes). The exclusive parking space shall be located as approximately shown in Exhibit "A." 1.4 condition. Condition of Premises. Lessee agrees to accept the Premises in its "as is" 2. Term. 2.1 Term. Initial term of this Agreement shall commence on the day of Oavlvartc.l , 2016, and shall expire five (5) years following that date. 2.2 Option to Extend. In addition, Lessee shall have three (3) consecutive options to extend the initial term of the Agreement for an additional five (5) year period (each the "Renewal Term;" collectively, the "Renewal Terms"), commencing on such date the Term or Renewal Term, as the case may be, would otherwise expire, and upon the same terms and conditions previously applicable, except for the grant of the subject option. Each such option shall be exercised by Lessee upon written notice ("Option Notice") to City delivered within ninety (90) calendar days' prior to the expiration of the initial term or extended term, as the case may be. During each extension term, all Wells Fargo Bank, National Association Page 2 (,00) provisions of this Agreement shall remain in full force and effect. Such options may be validly exercised only if Lessee is not then in material default hereunder. 2.3 City's Option to Terminate. Should ExplorOcean exercise their option to lease the Property, as outlined in the ExplorOcean Agreement, during the term of this Agreement, or any extension thereof, the City shall provide Lessee with at least six (6) months prior written notice of termination of this Agreement. 2.4 Holding Over. If Lessee, with City's consent, remains in possession of the Premises after the expiration of the Term or any Renewal Term, as the case may be, then such possession shall be deemed a tenancy from month -to -month on the same terms and conditions hereof as could be reasonably construed as applying thereto, except that during such holding over the monthly rent shall be one hundred twenty-five percent (125%) of the rent in effect on the last day of the Term or any Renewal Term. Either Party may terminate such month -to -month tenancy upon thirty (30) calendar days' prior written notice. 3. Rent. 3.1 Lessee shall commence payment of rent upon the first day of the first month following the Effective Date of this Agreement. The "Rent," which includes use of the Premises, shall be established at Twenty Four Thousand Dollars and 00/100 ($24,000.00) per year. Rent shall be paid, in advance, in equal monthly installments on the first day of each month (e.g., Two Thousand Dollars and 00/100 ($2,000.00) per month). Rent for any partial month shall be prorated in accordance with the actual number of days in that month and shall be due on the first day of the following month. Rent due hereunder will be subject to the rent adjustment provisions of Section 3.2 below. Lessee shall send said Rent to the mailing address or send an electronic fund transfer via the web address provided in Section 3.4. Lessee shall be responsible for any delays in the mode of sending the Rent to City. 3.2 Rent Adjustments. Rent may be adjusted by the City on the first anniversary of the Effective Date and then on the first of each Lease Year thereafter (the term Lease Year as used herein refers to successive twelve (12) month periods, commencing with the Effective Date of this Agreement) to reflect increases in the cost of living as indicated by the Consumer Price Index ("CPI") described below. Rent may be adjusted if the Consumer Price Index for the Los Angeles - Orange County - Riverside Area, All Urban Consumers, All Items ("Index"), as published by the United States Department of Labor, Bureau of Labor Statistics ("Bureau"), increases over the Base Period Index. The initial "Base Period Index" shall be the Index for the calendar month which is four (4) months prior to the month of the Effective Date. The initial Base Period Index shall be compared with the Index for the same calendar month for each subsequent Lease Year ("Comparison Index"). The Comparison Index used for a given year's adjustment calculation will become the Base Period Index for purposes of the next annual Rent adjustment calculation. If the Comparison Index is higher than the Base Period Index, the Rent for the next Lease Year shall be increase by the amount of such percentage change. Should the Bureau discontinue the publication of the above Index, or publish same less frequently, or alter same in some other manner, then the Wells Fargo Bank, National Association Page 3 Parties shall adopt a substitute Index or substitute procedure which reasonably reflects and monitors consumer prices. City shall notify Lessee in writing of any annual adjustment pursuant to this Section 3.2 at least thirty (30) calendar days prior to the effective date of such adjustment, but in no event sooner than thirty (30) calendar days from the notice date. 3.3 Notwithstanding the Index adjustments described above, if City, in its sole and absolute discretion, believes that notwithstanding such adjustments pursuant to Section 3.2, Rent as adjusted, does not accurately reflect the fair market rental value of the Property ("FMR"), City may elect to adjust Rent at the commencement of the sixth (6th) Lease Year, only if Lessee exercises the option term. City shall provide notice to Lessee not earlier than six (6) months nor later than three (3) months prior to the expiration of the sixth (6th) Lease Year of City's election to further adjust monthly Rent. Within fifteen (15) calendar days thereafter, City and Lessee will attempt to agree upon an adjustment in Rent. If City and Lessee are unable to agree, the Property will be appraised to determine its fair market rental value. City shall submit three (3) California licensed appraisers to Lessee; Lessee shall select one (1) appraiser from the three (3) submitted appraisers to appraise the Premises. City shall pay all costs associated with the appraiser and the appraisal. The FMR determined by the appraiser will constitute monthly Rent for the sixth (6th) Lease Year and each successive year remaining on the Lease; provided, however, that in no event will monthly Rent so determined be less than that otherwise payable through the annual Index adjustments described above. 3.4 Payment Location. All payments of Rent shall be made in lawful money of the United States of America and shall be paid to City in person or by United States' mail, or overnight mail service, at the Cashier's Office located at 100 Civic Center Drive, P.O. Box 1768, Newport Beach, California, 92658, or to such other address as City may from time to time designate in writing to Lessee. If requested by City, Lessee shall make payments electronically (at www.newportbeachca.gov) or by wire transfer (at Lessee's cost). Lessee assumes all risk of loss and responsibility for late charges and delinquency rates if payments are not timely received by City regardless of the method of transmittal. 3.5 Late Payment. Lessee hereby acknowledges that the late payment of Rent or other sums due hereunder will cause City to incur costs not contemplated by this Agreement, the exact amount of which is extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges. Accordingly, any payment of any sum to be paid by Lessee not paid within five (5) calendar days of its due date shall be subject to a ten percent (10%) late charge. City and Lessee agree that this late charge represents a reasonable estimate of such costs and expenses and is fair compensation to City for its loss suffered by such late payment by Lessee. 3.6 Reserved. 3.7 Additional Rent. Any provision in this Agreement that requires Lessee to pay additional amounts classified as "Additional Rent" shall be paid within ten (10) calendar days of City's written demand therefore (unless a different time for payment is expressly provided in this Agreement). Additional Rent does not reduce or offset Lessee's obligations to pay Rent. Wells Fargo Bank, National Association Page 4 4. Use. 4.1 Use. The Premises may only be used by Lessee for the operation and maintenance of the ATM Facility, which is depicted on Exhibit B. Lessee shall make no other use of the Premises without the prior written consent of City. 4.2 Operation of Premises. Lessee shall operate and manage the Premises in a manner comparable to other high quality businesses providing similar services. Lessee shall not interfere with other businesses currently operating on the Property, or which may operate on the Property in future. 4.3 Prohibited Uses. Lessee shall not use or permit the use of the Premises in any manner that: (a) creates a nuisance, (b) creates a potential fire hazard, or (c) violates any City, State, and/or Federal law or regulation ("Law"). 4.4 Advertising Display. Lessee may, at its own expense, place unlit signs in or upon the Premises subject to the prior written consent of the City as to the size, type, number, design and method of installation and in compliance with the City's sign code regulations and the deed restrictions applicable to the Premises. All signage placed by Lessee on, in or about the Premises shall remain the property of Lessee and shall be removed by Lessee upon termination or expiration of this Agreement at Lessee's expense_ Installation of any signs shall conform to all applicable building, zoning and other regulations of any applicable governmental authority. 4.5 Personnel. Lessee shall be responsible for hiring the necessary personnel to conduct the daily operation and maintenance of the ATM. Lessee shall comply with all federal, state, and local Laws related to minimum wage, social security, nondiscrimination, ADA, unemployment compensation, and workers' compensation. If required by the City, Lessee's employees shall wear an identification badge. 4.6 Independent Contractor. It is understood that Lessee is an independent contractor and not an agent or employee of City. The manner and means of operating the ATM are under the control of Lessee, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. No civil service status or other right of employment shall accrue to Lessee's employees. Nothing in this Agreement shall be deemed to constitute approval for Lessee or any of Lessee's employees or agents, to be the agents or employees of City. Lessee shall have the responsibility for and control over the means of operating the ATM, provided that Lessee is in compliance with the terms of this Agreement. City shall have no interest in the business of Lessee. 4.7 City Use of Premises. Lessee shall provide access to the City or Parties authorized by the City for use of the Premises or Property; provided, however, neither City nor Parties authorized by the City shall interfere with any of Lessee's equipment or obstruct visibility or access to Lessee's ATM Facility at any time. 4.7.1 Entry by City. City and its authorized City representative(s) may inspect the Premises during normal business hours for any lawful purpose. In case of emergency, City or its authorized City representative(s) may, without prior notice, enter the Premises by Wells Fargo Bank, National Association Page 5 whatever force reasonably necessary if Lessee is not present to permit an entry. Any entry to the Premises by City under this Agreement shall not be construed as a forcible or unlawful entry into, or a detainer of, the Premises, or an eviction of Lessee from the Premises or any portion thereof. Any damage caused to the Premises pursuant to this Section by the City shall be repaired or replaced by the City at the City's sole expense. 5. Maintenance of Lessee Improvements. 5.1 Lessee shall diligently maintain the Premises, at Lessee's sole cost and expense, the Lessee Improvements, together with such other permitted uses as Lessee may desire. The ATMs and all of Lessee's trade fixtures and personal property shall be and at all times remain the property of Lessee. Lessee shall retain ownership of all equipment and Lessee Improvements on the premises. Upon notice of termination of this Agreement, Lessee shall be responsible for removal of said equipment and Lessee Improvements at Lessee's expense, and any damage caused by removal shall be repaired at Lessee's expense. 5.2 City may perform maintenance or repairs in the event Lessee fails to commence required maintenance or repairs within the time provided by City in the written notice requesting such maintenance or repair (which shall not be Tess than five (5) days unless and in case of emergency or urgent situation). The cost of any maintenance or repairs by the City pursuant to this Section shall be payable as Additional Rent. All equipment, facilities, improvements, alterations, attachments and appurtenances installed by Lessee, and required for operations shall be maintained in good condition and repair by Lessee at its cost. City may perform required cleaning and charge the costs to Lessee if the Lessee fails to perform said cleaning within the time provided by City in the written notice requesting the cleaning (which shall not be Tess than five (5) calendar days) and continue to maintain the area as required by this Agreement. 6. Maintenance of ATMs. Lessee shall use its best efforts to operate the ATMs on a twenty-four (24) hour basis. Lessee shall have the right, however, to suspend operation for periodic maintenance inspections, balancing adjustments, servicing operations or other maintenance purposes. City acknowledges that despite Lessee's best efforts, the ATMs may be rendered inoperative for various periods of time due to breakdowns, operations failures or other reasons. Lessee shall have the right to service the ATMs at all times, including times which are outside normal business hours or on days other than normal business days. City shall provide Lessee with all necessary vehicular and pedestrian access and all authorizations, keys and other assistance necessary to permit Lessee to service the ATMs at any time without prior notice to City. Lessee may engage an independent contractor to perform Lessee's maintenance obligations hereunder. Wells Fargo Bank, National Association Page 6 7. Relocation. In the event that ExplorOcean exercises their option to lease the Property, as outlined in the ExplorOcean Agreement, during the term of this Agreement, or any extension thereof, City shall work with Lessee for an alternate site within the City to relocate the ATM Facility, under similar terms of this Agreement. If no alternate location is agreed upon by the Parties, this Agreement shall terminate per Section 2.3. 8. Removal of ATMs. Upon the expiration or termination of this Agreement, Lessee shall remove the ATM Facility, Lessee's signs and Lessee's other trade fixtures and personal property from the Premises, and restore the Premises to a clean and orderly condition, at Lessee's sole cost and expense. Lessee shall repair any damage to the Premises caused by such removal at Lessee's sole cost and expense. Such removal shall occur not more than sixty (60) calendar days after the expiration or other termination of this Agreement. If the ATM Facility, Lessee's signage, and Lessee's other trade fixtures and personal property are not removed from the Premises by this time, then City shall have the right to dispose of such items in such manner as it may deem fit and to charge Lessee for the reasonable costs of such removal, disposal, and repair which reasonable costs Lessee shall pay promptly following written notice and demand. 9. Maintenance of Premises. By taking possession of the Premises, Lessee shall be deemed to have accepted the Premises as being in good and sanitary order, condition and repair. Lessee shall, at all times during the term of this Agreement and any renewal or extension hereof, maintain the Premises in a clean and orderly condition at Lessee's sole cost and expense, and shall, upon termination of this Agreement, surrender the Premises to City in a clean, safe and orderly condition. City shall maintain the other improvements located on the Property (other than the Premises), including without limitation the parking lot and landscaping. 10. Alterations, Additions and Improvements. Except for the Lessee Improvements and the signs described in this Agreement, Lessee shall not make any alterations, additions or improvements to the Premises without obtaining the prior written consent of City. Should City consent to the making of any such alterations, additions or improvements by Lessee, such alterations, additions or improvements shall be made at the sole cost and expense of Lessee by a contractor or other person selected by Lessee and approved in writing by City before the work commences. All alterations must be constructed: (a) in a good and workmanlike manner using materials of a quality comparable to those on the Premises; (b) in conformance with all relevant codes, regulations, and ordinance; and (c) only after necessary permits, licenses, and approvals have been obtained by the applicable Party from appropriate governmental agencies. All alterations must be diligently prosecuted to completion. Except as provided otherwise in this Agreement, any and all alterations, additions or improvements shall on termination of this Agreement become the property of City and shall remain on the Premises. Wells Fargo Bank, National Association Page 7 11. Services and Utilities. City shall allow Lessee, at Lessee's sole expense, to extend to the Premises all electricity, telecommunication lines, data lines, and other utilities required for the use and occupation of the Premises and the operation of the ATMs. 12. Security. Lessee is solely responsible for all security with respect to AB 244 regulations as they pertain to safety for operation of ATM Facilities. City shall cooperate with Lessee in keeping the areas of the Property surrounding the ATM Facility well lighted at all times, but in no even Tess than the lighting and other requirements imposed on Lessee pursuant to the provisions of Division 4 (commencing with Section 13000) of the California Financial Code (the "AB 244 obligations"), a copy of which is attached hereto as Exhibit "C" and by this reference incorporated herein, and any and all rules and regulations with respect thereto. All installation and construction by the Lessee on the Premises shall be in conformity with all applicable building and zoning codes, and shall conform to the safety requirements set forth in AB 244 and any other applicable governmental law. 13. Taxes. Lessee understands that this Agreement may create a possessory interest and shall pay directly to the appropriate taxing authorities all taxes applicable under this Agreement, including but not limited to any real estate tax, levy or assessment on the Premises. Lessee shall pay before delinquency: (i) all taxes assessed by any taxing authority which are attributable to Lessee's operations at the ATM Facility, (ii) all personal property taxes assessed on Lessee's fixtures, equipment and machinery, and (iii) any possessory interest tax, levied pursuant to California Revenue and Taxation Code Section 107.6, which City has advised Lessee may be assessed based on the amount of the Rent payable hereunder. Except as otherwise provided herein, City shall pay before delinquency all taxes and/or assessments assessed by any taxing authority (including sales taxes) which are related to City's occupancy, use or ownership of the Property, including, without limitation: (a) personal property, fixtures or equipment taxes assessed against City's property; (b) franchise taxes assessed against City; (c) taxes on City's gross rents or profits; (d) inheritance, state, gift, income, transfer or excess profit taxes assessed against City; (e) sales taxes payable by City; and (f) real property taxes and assessments, including, but not limited to, any fees, interest and penalties arising from any such tax or assessment, assessed against all or any portion of the land or other improvements located on the Property, including, but not limited to, any such taxes and assessments attributable to the Premises or any portion thereof. 14. Damage or Destruction. Should the Premises or the ATM Facility be damaged or destroyed by any cause not due to the negligent or willful act of City, Lessee shall, at its own cost and expense, promptly repair the same. Should said damage or destruction substantially impair, in the reasonable judgment of Lessee, the satisfactory operation of the ATMs, Lessee may Wells Fargo Bank, National Association Page 8 terminate this Agreement by providing City written notice of such termination not more than thirty (30) calendar days following the occurrence of such damage or destruction. 15. Eminent Domain. Should the Premises (or any portions thereof) be taken under the power of eminent domain, Lessee may terminate this Agreement as to the affected Premises by providing written notice of termination not later than thirty (30) calendar days after the date of such taking. If Lessee does not elect to so terminate this Agreement, then City shall, at City's cost and expense, promptly restore the Premises and, from the date of such taking until City has completed all repairs to the Premises, the Rent payable by Lessee hereunder shall be abated to the extent that Lessee is unable to occupy or use the Premises. All damages and compensation awarded or paid in connection with such taking shall belong to City; provided, however, that all damages and compensation awarded or paid in connection with a taking of any improvements installed by Lessee at Lessee's expense shall belong to Lessee. Any immaterial taking of the Premises by City shall not give rise to an option to terminate by Lessee and this Agreement shall continue in full force and effect. 16. Assignment and Subletting. Lessee shall not assign, sublease or transfer all or any part of its interest under this Agreement without the prior written consent of City. Notwithstanding the foregoing, City hereby consents to Lessee's assignment of its leasehold interest under this Agreement to any present or future wholly owned subsidiary or parent of Lessee or to any successor in interest of the entire business of Lessee as a result of merger, consolidation, purchase, assignment, or by operation of law, on the condition that Lessee shall notify City, in writing, within thirty (30) calendar days of the effective date of any such assignment, identifying the new Lessee and their contact information, and provided such assignee has comparable financial strength and shall continue to perform the obligations of the assigning Party. City shall not assign or transfer all or any part of its interest under this Agreement, unless such assignee or transferee specifically waives its right to a jury trial. The waiver shall be in a form reasonably acceptable to Lessee and shall be effective as of the date of such assignment or transfer. 17. Insurance. Without limiting Lessee's indemnification of City, Lessee will obtain, provide and maintain at its own expense during the Term of this Agreement, a policy or policies of insurance of the type, amounts and form acceptable to City. The policy or policies shall provide, at a minimum, those items described in Exhibit "D" attached hereto and incorporated herein by this reference. Wells Fargo Bank, National Association Page 9 18. Default. The occurrence of any one (1) or more of the following events shall constitute an event of default under this Agreement: (a) The failure of Lessee to pay the monthly Rent or any other amount payable hereunder, where such failure shall continue for a period of ten (10) days after written notice thereof by City. (b) The failure by Lessee or City to observe or perform any of the covenants, conditions or other provisions of this Agreement required to be observed or performed by Lessee or City, as the case may be, where such failure shall continue for a period of thirty (30) calendar days after written notice thereof by the other Party hereto. (c) The making by Lessee or City of any general assignment or general arrangement for the benefit of creditors; or the filing by or against Lessee or City of a petition to have Lessee or City adjudged a bankrupt, or a petition for reorganization or arrangement under any law relating to bankruptcy, unless, in the case of a petition filed against Lessee or City, the same is dismissed within sixty (60) calendar days; or the appointment of a trustee or a receiver to take possession of, or the attachment, execution or other seizure of substantially all of Lessee's or City's assets located at Premises, as the case may be, or of Lessee's or City's interest in this Agreement, where such possessions, attachment, execution or other seizure is not restored to Lessee or City, as the case may be, within thirty (30) calendar days. 19. Remedies on Default. In the event of any default by Lessee or City then, in addition to any other remedies available to the other Party hereto at law or in equity, such other Party may: (a) Continue this Agreement in effect and thereby be entitled to enforce all rights and remedies under this Agreement; or (b) Terminate this Agreement by providing written notice to the defaulting Party of such intention and recover from such defaulting Party any amount necessary to compensate such other Party for all detriment negligently or willfully caused by such defaulting Party's failure to perform its obligations under this Agreement. 20. Control of ATM Facility; Confidentiality. 20.1 Control. City acknowledges that the operation of the ATM Facility (including, without limitation, any and all ATMs) shall be governed by the policies and procedures developed or to be developed by Lessee from time to time which shall be consistent with the Law. Except as expressly set forth herein to the contrary, Lessee shall have the sole and exclusive right to control and manage the ATM Facility, the operation and maintenance thereof, and all business and transactions conducted at the Premises, Wells Fargo Bank, National Association Page 10 including without limitation, the functions and features provided, the development of products, and the pricing of services. 21. Notices. Any notice required or permitted by this Agreement to be provided to either Party hereto by the other Party hereto shall be in writing and shall be deemed duly provided when personally delivered to the Party to which it is directed or, in lieu of such personal delivery, three (3) days after deposit in the United States mail, sent certified mail with first-class postage prepaid, and addressed as follows: If to City: City of Newport Beach Attn: Real Property Administrator 100 Civic Center Drive Newport Beach, CA 92660 If to Lessee: Wells Fargo CPG Attn: MAC D1116-L10 (BE 199538-20000) 1525 West W.T. Harris Blvd. Charlotte, NC 28262 F: 704.590.0436 E: PropertyAdmin(a�WellsFargo.com Either Party hereto may, by written notice to the other Party hereto, specify a different address for notice purposes or add one (1) additional address for notice purposes. 22. Entire Agreement. This Agreement constitutes the entire agreement between the Parties hereto with respect to the leasing of the Premises, and no prior agreement or understanding pertaining to any such matter shall be effective for any purpose. In the event of a conflict between the terms and provisions of this Agreement and the terms and provisions of any other agreement, attachment, instrument, or document, the terms and provisions of this Agreement shall prevail. No provision of this Agreement may be amended except by an agreement in writing executed by the Parties hereto. 23. Indemnification. In addition to any other indemnity provided for in this Agreement, and notwithstanding any other provisions of this Agreement to the contrary, Lessee indemnifies, defends and holds harmless Lessor, its elected officials, officers, employees, agents, attorneys, volunteers and representatives from and against all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind that may arise from or in any manner relate to (directly or indirectly): (i) Lessee's rights, obligations, acts or Wells Fargo Bank, National Association Page 11 omissions under this Agreement, (ii) Lessee's occupancy and use, or Lessee's guests, invitees, sublessees, or licensees occupancy and use, of the Premises, or ATM Facility (individually, each a "Claim" and, collectively, "Claims"). The indemnification in this Section 23 specifically includes, without limitation, all Claims arising by reason of: (a) The death or injury of any person or damage to real or personal property caused or allegedly caused by the condition of the Premises, Improvements, or an act or omission of Lessee or an agent, contractor, subcontractor, supplier, employee, servant, sublessee or concessionaire of Lessee; (b) Any work performed on the Premises, Improvements, or materials furnished to the Premises, Improvements, by or at the request of Lessee or any agent, contractor, subcontractor, supplier, employee, servant, sublessee or concessionaire of Lessee, with the exception of maintenance performed by City; and/or (c) Lessee's failure to perform any provision of this Agreement or to comply with any requirement of Law or any requirement imposed on the Premises or ATM Facility by any duly authorized governmental agency or political subdivision. Lessee's obligations in this Section (or any other provision providing indemnity in this Agreement) shall not extend to the degree any Claim is proximately caused by the sole negligence or willful misconduct of Lessor, subject to any immunities which may apply to Lessor with respect to such Claims. This indemnification provision and any other indemnification provided elsewhere in this Agreement shall survive the termination of this Agreement and shall survive for the entire time that any third party can make a Claim. 24. Condition to Agreement. This Agreement and the Parties' obligations hereunder are conditioned upon: (1) Lessee obtaining any necessary approval of the Office of the Comptroller of Currency ("OCC") to the operation of the ATMs on the Premises no later than ninety (90) calendar days after the date of this Agreement; and (2) approval of Lessee's senior management. 25. Loss or Damage. In the event the Premises are rendered partially or wholly untenantable by fire or other casualty, City may elect to require that the Lessee pay to City the proceeds of any insurance which may become payable to the Lessee by reason thereof, or to permit such proceeds to be used for the restoration of any damage done, by an amount equal to the diminution in value of the Property by reason of such Toss or damage or the amount of insurance payable to the Lessee, whichever is greater. 26. Quiet Enjoyment. City covenants and agrees that so long as Lessee has not committed an Event of Default under the terms of this Agreement, Lessee shall have the right to quiet and peaceful possession of the Premises and the Common Areas and shall enjoy all of the rights herein granted without interference by City or anyone claiming by, through, or under City, or by any lessor under any master lease covering, or any encumbrancer under any mortgage or deed of trust affecting, the Property, subject to the terms and Wells Fargo Bank, National Association Page 12 conditions of this Agreement. This Section is explicitly subject to the terms of the ExplorOcean Agreement. 27. Compliance with Laws; ADA. Each Party represents and warrants that it shall obey and conform at its sole cost and expense and in every manner of its business related to this Agreement to all federal, state and local laws, regulations and directives. City shall be responsible for any repairs, improvements, or upgrades to the Premises required to comply with the provisions of the Americans with Disabilities Act ("ADA"), except for such repairs, improvements or upgrades required as a result of Lessee's particular use of the Premises as the ATM Facility. Any breach of said warranty and representation or claim of breach shall be the sole responsibility of the breaching Party and the breaching Party will hold the non -breaching Party completely safe and harmless for said breach or claim of breach. Notwithstanding the foregoing, City recognizes and agrees that many of Lessee's covenants and obligations hereunder, including, but not limited to, the establishment, closure, relocation, and hours of operation of the ATM Facility may be subject to Lessee's obtaining the consent or approval of all regulatory agencies (including, without limitation, the OCC now or hereafter empowered to regulate Lessee and its business operations, and such regulations shall supersede the terms and conditions of this Agreement. 28. General Provisions. 28.1 Force Majeure. The performance of both Parties (except for the payment of monies earned and/or accrued) shall be excused during the period, and to the extent, that such performance is rendered impossible, impracticable or unduly burdensome due to force majeure (as defined below). The term "force majeure" shall mean acts of God, strikes, lockouts, or labor difficulty; unavailability of parts, equipment or materials through normal supply sources; or the failure of any utility to supply its services for reasons beyond the control of the Party whose performance is to be excused. 28.2 Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the City and the Lessee and their respective heirs, personal representatives, successors and assigns. City shall have the right to assign this Agreement or any interest or right under this Agreement or under the escrow without obtaining the prior consent of the Lessee. 28.3 No Attorneys' Fees. In any action between the Parties to interpret, enforce, award, modify or rescind any of the terms or provisions of this Agreement, or any action otherwise commenced or taken in connection with this Agreement, both Parties shall be responsible for their respective costs and attorneys' fees. 28.4 Jurisdiction and Venue. This Agreement shall be construed under the laws of the State of California in effect at the time of the signing of this Agreement. The Parties consent to the jurisdiction of the California courts with venue in County of Orange. Wells Fargo Bank, National Association Page 13 28.5 Titles and Captions. Titles and captions are for convenience of reference only and do not define, describe or limit the scope or the intent of this Agreement or of any of its terms. Reference to section numbers are to sections in this Agreement, unless expressly stated otherwise. 28.6 Interpretation. As used in this Agreement, masculine, feminine or neuter gender and the singular or plural number shall each be deemed to include the others where and when the context so dictates. The word "including" shall be construed as if followed by the words "without limitation." This Agreement shall be interpreted as though prepared jointly by both Parties. 28.7 No Waiver. A waiver by either Party of a breach of any of the covenants, conditions or agreements under this Agreement to be performed by the other Party shall not be construed as a waiver of any succeeding breach of the same or other covenants, agreements, restrictions or conditions of this Agreement. 28.8 Modifications. Any alteration, change or modification of or to this Agreement, in order to become effective, shall be made in writing and in each instance signed on behalf of each Party. 28.9 Severability. If any term, provision, condition or covenant of this Agreement or its application to any Party or circumstances shall be held, to any extent, invalid or unenforceable, the remainder of this Agreement, and the application of the term, provision, condition or covenant to persons or circumstances other than those as to whom or which it is held invalid or unenforceable, shall not be affected, and shall be valid and enforceable to the fullest extent permitted by law. 28.10 Reserved. 28.11 Time of Essence. Time is expressly made of the essence with respect to the performance by City and the Lessee of each and every obligation and condition of this Agreement. 28.12 Cooperation. Each Party agrees to cooperate with the other in the Closing of this transaction and, in that regard, to sign any and all documents which may be reasonably necessary, helpful, or appropriate to carry out the purposes and intent of this Agreement including, but not limited to, releases or additional agreements. 28.13 Counterparts. This Agreement may be signed in multiple counterparts which, when signed by all Parties, shall constitute a binding agreement. 28.14 Reserved. 28.15 No Discrimination. Lessee hereby covenants on behalf of itself, its successors, and assigns, and all persons claiming under or through Lessee, and this Agreement is made and accepted upon and subject to the conditions that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry, in the subleasing, transferring, use, occupancy, tenure, or enjoyment of the Premises herein Wells Fargo Bank, National Association Page 14 leased nor shall the Lessee itself, or any person claiming under or through Lessee, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy of sublessees or vendees of the Premises. [Signature page follows] Wells Fargo Bank, National Association Page 15 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and year first set forth above. Dated: Dated: i Ice I2.os5ctal446 Dated: b4 ID, 17,p1cr ATTEST: By: Leilani I. B •wn City Clerk APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY By: Aaron C . aT (don %%I►-1.K City Attorney Name: Title: LESSEE: Wells Fargo Bank, National Association By: Name: Title: dC61ASt— LORI C. WRIGHT LEASE NEGOTIATOR C. By: BROOKE WOLFORD VICE PRESIDENT CITY: CITY OF NEWPORT BEACH, a municipal corporation and charter city By: t)----QC'jN Dave Kiff City Manager Wells Fargo Bank, National Association Page 16 EXHIBIT "A" PROPERTY AND PREMISES DEPICTION EXHIBIT A-1 PARK/AVAAY FRONT ALLEY S BAY FRONTS'": Aga« Newport Beach GIS g li wrm; qy S 0 0 1,000 2,000 Feet Disclaimer: Every reasonable effort has been made to assure the accuracy of the data provided, however, The City of Newport Beach and its employees and agents disclaim any and all responsibility from or relating to any results obtained in its use. Imagery: 2009-2013 photos provided by Eagle Imaging www.eagleaerial.com 12/3/2014 EXHIBIT A-2 Newport Beach GIS 0 100 200 Feet Disclaimer: Every reasonable effort has been made to assure the accuracy of the data provided, however, The City of Newport Beach and its employees and agents disclaim any and all responsibility from or relating to any results obtained in its use. Imagery: 2009-2013 photos provided by Eagle Imaging www.eagleaerial.com 12/3/2014 EXHIBIT A-3 Newport Beach GIS 0 20 40 Feet Disclaimer: Every reasonable effort has been made to assure the accuracy of the data provided, however, The City of Newport Beach and its employees and agents disclaim any and all responsibility from or relating to any results obtained in its use. Imagery: 2009-2013 photos provided by Eagle Imaging www.eagleaerial.com 12/3/2014 EXHIBIT "B" LESSEE IMPROVEMENTS View of ATM Kiosk from E Bay Avenue View of ATM Kiosk from Palm Avenue Aerial View of ATM Kiosk and Short -Term Parking Stall EXHIBIT "C" AB 244 OBLIGATIONS IILLp:/ / leglIllo.leg1slaluie.ca.go v/ hues/ p1111L1.uuc DGeL1o11 vv 111uu w.unnn FINANCIAL CODE - FIN DIVISION 4. AUTOMATED TELLER MACHINES: USER SAFETY [13000 - 13070] ( Division 4 added by Stats. 1990, Ch. 825, Sec. 1. ) CHAPTER 1. Intent [13000- 130001 ( Chapter 1 added by Stats. 1990, Ch. 825, Sec. 1. ) It is the intent of the Legislature in enacting this division to enhance the safety of consumers using 13000. automated teller machines in California without discouraging the siting of automated teller machines in locations convenient to consumers' homes and workplaces. Since decisions concerning safety at automated teller machine sites are inherently subjective and because safety is a relative matter, the Legislature intends to establish as the standard of care applicable to operators of automated teller machines, in connection with user safety, the substantial compliance with the objective standards of Chapter 4 (commencing with Section 13040), the information requirements of Chapter 5 (commencing with Section 13050), and the good faith consideration of other safety issues as prescribed in Chapter 3 (commencing with Section 13030). The Legislature further recognizes the need for uniformity as to the establishment of automated teller machine safety standards and intends with this division to supersede and preempt any rule, regulation, code, statute, or ordinance of any city, county, city and county, municipality, or local agency regarding customer safety at automated teller machines in California. (Added by Stats. 1990, Ch. 825, Sec. 1.) 1 of 1 12/ 15/2014 4:13 PM ntip iilegnuu.tcbtstattuc.ca.guviiae /yiunwuuocuuunVVII1Uuvv.uuun FINANCIAL CODE - FIN DIVISION 4. AUTOMATED TELLER MACHINES: USER SAFETY [13000 - 13070] ( Division 4 added by Stats. 1990, Ch. 825, Sec. 1. ) CHAPTER 2. Definitions [13020- 13020.] ( Chapter 2 added by Stats. 1990, Ch. 825, Sec. 1. ) As used in this division: 13020. (a) "Access area" means any paved walkway or sidewalk which is within 50 feet of an automated teller machine. The team' does not include publicly maintained sidewalks or roads, as defmed in Section 555 or Section 527 of the Vehicle Code. (b) "Access device" shall have the same meaning as set forth in Federal Reserve Board Regulation E (12 C.F.R. Part 205), promulgated pursuant to the Electronic Fund Transfer Act (15 U.S.C. 1601 et seq.). (c) "Automated teller machine" means any electronic information processing device located in California which accepts or dispenses cash in connection with a credit, deposit, or convenience account. The term does not include devices used solely to facilitate check guarantees or check authorizations, or which are used in connection with the acceptance or dispensing of cash on a person -to -person basis, such as by a store cashier. (d) "Candlefoot power" means the light intensity of candles on a horizontal plane at 36 inches above ground level and five feet in front of the area to be measured. (e) "Control" of an access area or defmed parking area means to have the present authority to determine how, when, and by whom it is to be used, and how it is to be maintained, lighted, and landscaped. (f) "Customer" means a natural person to whom an access device has been issued for personal, family, or household use. (g) "Defined parking area" means that portion of any parking area open for customer parking which is (1) contiguous to an access area with respect to an automated teller machine; (2) regularly, principally, and lawfully used for parking by users of the automated teller machine while conducting automated teller machine transactions during hours of darkness; and (3) owned or leased by the operator of the automated teller machine or owned or controlled by the party leasing the automated teller machine site to the operator. The tern does not include any parking area which is not open or regularly used for parking by users of the automated teller machine who are conducting automated teller machine transactions during hours of darkness. A parking area is not open if it is physically closed to access or if conspicuous signs indicate that it is closed. If a multiple level parking area satisfies the conditions of this subdivision and would therefore otherwise be a defined parking area, only the single parking level deemed by the operator of the automated teller machine to be the most directly accessible to the users of the automated teller machine shall be a defined parking area. (h) "Hours of darkness" means the period that commences 30 minutes after sunset and ends 30 minutes before sunrise. (i) "Operator" means any bank, savings association, credit union, industrial loan company, savings bank, or other business entity, or any person who operates an automated teller machine. (Added by Stats. 1990, Ch. 825, Sec. 1.) 1 of 1 12/15/2014 4:14 PM nttp:// iegtiuo.iegisiawre.ca.govi tacesiprunwue3ecuunwuiuuw.M1uiu FINANCIAL CODE - FIN DIVISION 4. AUTOMATED TELLER MACHINES: USER SAFETY [13000 - 13070] ( Division 4 added by Stats. 1990, Ch. 825, Sec. 1. ) CHAPTER 3. Location and Installation [13030 - 13031] ( Chapter 3 added by Stats. 1990, Ch. 825, Sec. 1. ) On or before July 1, 1991, with respect to all existing installed automated teller machines in this 13030. state, and any automated teller machines installed after July 1, 1991, the operator shall adopt procedures for evaluating the safety of the automated teller machine. These procedures shall include a consideration of the following: (a) The extent to which the lighting for the automated teller machine complies or will comply with the standards required by Chapter 4 (commencing with Section 13040). (b) The presence of landscaping, vegetation, or other obstructions in the area of the automated teller machine, the access area, and the defined parking area. (c) The incidence of crimes of violence in the immediate neighborhood of the automated teller machine, as reflected in the records of the local law enforcement agency and of which the operator has actual knowledge. (Added by Stats. 1990, Ch. 825, Sec. 1.) 1 of 1 12/15/2014 4:14 PM nap:iiteginro.iegistaiure.ea.gowLaeesipriIL oue.ceuoI1wuiuuw.xi11.11n FINANCIAL CODE - FIN DIVISION 4. AUTOMATED TELLER MACHINES: USER SAFETY [13000 - 13070] ( Division 4 added by Stats. 1990, Ch. 825, Sec. 1. ) CHAPTER 3. Location and Installation [13030 - 13031] ( Chapter 3 added by Stats. 1990, Ch. 825, Sec. 1. ) (14 It is not the intent of the Legislature in enacting this chapter to impose a duty to relocate or modify 13031. automated teller machines upon the occurrence of any particular events or circumstances, but rather to establish a standard of good faith for the evaluation of all automated teller machines as provided herein. (Added by Stats. 1990, Ch. 825, Sec. 1.) 1 of 1 12/15/2014 4:15 PM nap:// ieginro.iegiscaure.ca.govi iacesipnutk-oue3ceuuiiwiiiuuw. u111iu FINANCIAL CODE - FIN DIVISION 4. AUTOMATED TELLER MACHINES: USER SAFETY [13000 - 13070] ( Division 4 added by Stats. 1990, Ch. 825, Sec. 1. ) CHAPTER 4. Lighting [13040 - 13041] ( Chapter 4 added by Stats. 1990, Ch. 825, Sec. 1. ) tui (a) Each operator of an automated teller machine installed on or after July 1, 1991, shall comply 13040. with Section 13041 commencing on the date the automated teller machine is installed. Compliance with Section 13041 by operators as to automated teller machines existing as of July 1, 1991, shall be optional until July 1, 1993, and mandatory thereafter. This subdivision shall apply to an operator of an automated teller machine only to the extent that the operator controls the access area or defined parking area to be lighted. (b) If an access area or a defined parking area is not controlled by the operator of the automated teller machine, and if the person who leased the automated teller machine site to the operator controls the access area or defined parking area, the person who controls the access area or defined parking area shall comply with Section 13041 as to any automated teller machine installed on or after July 1, 1991, commencing on the date the automated teller machine is installed; and as to any automated teller machine existing as of July 1, 1991, no later than on July 1, 1993. (Added by Stats. 1990, Ch. 825, Sec. 1.) 1 of 1 12/15/2014 4:15 PM nttp:f/teginto.iegisianire.ca.goviracesiprtna oaeectionwinuuw.xnunli FINANCIAL CODE - FIN DIVISION 4. AUTOMATED TELLER MACHINES: USER SAFETY [13000 - 13070] ( Division 4 added by Stats. 1990, Ch. 825, Sec. 1. ) CHAPTER 4. Lighting [13040 - 13041] ( Chapter 4 added by Stats. 1990, Ch. 825, Sec. 1. ) The operator, owner, or other person responsible therefor, shall provide lighting during hours of 13041. darkness with respect to an open and operating automated teller machine and any defined parking area, access area, and the exterior of an enclosed automated teller machine installation according to the following standards: (a) There shall be a minimum of 10 candlefoot power at the face of the automated teller machine and extending in an unobstructed direction outward five feet. (b) There shall be a minimum of two candlefoot power within 50 feet from all unobstructed directions from the face of the automated teller machine. In the event the automated teller machine is located within 10 feet of the corner of the building and the automated teller machine is generally accessible from the adjacent side, there shall be minimum of two candlefoot power along the first 40 unobstructed feet of the adjacent side of the building. (c) There shall be a minimum of two candlefoot power in that portion of the defined parking area within 60 feet of the automated teller machine. (Added by Stats. 1990, Ch. 825, Sec. 1.) 1 of 1 12/ 15/2014 4:15 PM I1up:/ / leglIuo.legls!atul c.ea.go vi iaecsi p11111%.uucoculull vv 111UU W.uuuu FINANCIAL CODE - FIN DIVISION 4. AUTOMATED TELLER MACHINES: USER SAFETY [13000 - 13070] ( Division 4 added by Stats. 1990, Ch. 825, Sec. 1. ) CHAPTER 5. Consumer Education [13050- 13050.] ( Chapter 5 added by Stats. 1990, Ch. 825, Sec. 1. ) Customers receiving access devices shall be furnished by the respective issuers thereof with notices 13050. of basic safety precautions which customers should employ while using an automated teller machine. This information shall be furnished by personally delivering or by mailing the information to each customer whose mailing address as to the account to which the access device relates is in this state. This information shall be furnished with respect to access devices issued on or after July 1, 1991, at or before the time the customer is furnished with his or her access device. With respect to a customer to whom an "accepted access device" (as defined in Federal Reserve Board Regulation E) has been issued prior to July 1, 1991, the information shall be delivered or mailed to the customer on or before December 31, 1991. Only one notice need be furnished per household, and if access devices are furnished to more than one customer for a single account or set of accounts or on the basis of a single application or other request for the access devices, only a single notice need be furnished in satisfaction of the notification responsibilities as to all those customers. The information may be included with other disclosures related to the access device furnished to the customer, such as with any initial or periodic disclosure statement furnished pursuant to the Electronic Fund Transfer Act. (Added by Stats. 1990, Ch. 825, Sec. 1.) 1 of 1 12/15/2014 4:18 PM nmp:// leglmo.leglslalure.ca.gov/ laces/pi 111LL.VucDcl:uullvv111uu W.uu.uu FINANCIAL CODE - FIN DIVISION 4. AUTOMATED TELLER MACHINES: USER SAFETY [13000 - 13070] ( Division 4 added by Stats. 1990, Ch. 825, Sec. 1. ) CHAPTER 6. Exemptions [13060- 13060.] ( Chapter 6 added by Stats. 1990, Ch. 825, Sec. 1. ) The provisions of this division shall not apply with respect to any automated teller machine which 13060. is: (a) Located inside of a building, unless it is a freestanding installation which exists for the sole purpose of providing an enclosure for the automated teller machine. (b) Located inside of a building, except to the extent a transaction can be conducted from outside the building. (c) Located in any area, including any access area, building, enclosed space, or parking area which is not controlled by the operator. (Added by Stats. 1990, Ch. 825, Sec. 1.) 1 of 1 12/15/2014 4:19 PM nttp:I/legiruo.iegisiature.ca.goviiacesipr1n oueecuonvvuiuow.xnuiu FINANCIAL CODE - FIN DIVISION 4. AUTOMATED TELLER MACHINES: USER SAFETY [13000 - 13070] ( Division 4 added by Stats. 1990, Ch. 825, Sec. 1. ) CHAPTER 7. Effect of Compliance [13070- 13070.] ( Chapter 7 added by Stats. 1990, Ch. 825, Sec. 1. ) This division supersedes and preempts all rules, regulations, codes, statutes, or ordinances of all 13o70. cities, counties, cities and counties, municipalities, and local agencies regarding customer safety at automated teller machines located in California. (Added by Stats. 1990, Ch. 825, Sec. 1.) 1 of 1 12/ 15/2014 4:20 PM EXHIBIT "D" INSURANCE Without limiting Lessee's indemnification of City, Lessee will obtain, provide and maintain at its own expense during the Term of this Agreement, a policy or policies of insurance of the type, amounts and form acceptable to City. The policy or policies shall provide, at a minimum, those items described below. 1. Provision of Insurance. Without limiting Lessee's indemnification of City, and prior to commencement of work on Premises by Tenant or Tenant's agents, representatives, consultants, contractors and/or subcontractors, Lessee shall obtain, provide and maintain at its own expense during the term of this Agreement policies of insurance of the type and amounts described below and in a form satisfactory to City. Lessee agrees to provide insurance in accordance with requirements set forth here. Lessee may use existing coverage to comply with these requirements. 2. Acceptable Insurers. All insurance or reinsurance policies shall be issued by a financially sound insurance company currently authorized by the insurance commissioner to transact business of insurance in the State of California. 3. Coverage Requirements. A. Workers' Compensation Insurance. Lessee and Lessee's agents, representatives, consultants, contractors and/or subcontractors, shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. Lessee and Lessee's agents, representatives, consultants, contractors and/or subcontractors, shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. B. General Liability Insurance. Lessee shall maintain commercial general liability insurance, and if necessary umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not Tess than two million dollars and 00/100 ($2,000,000) per occurrence, five million dollars and 00/100 ($5,000,000) general aggregate. The policy shall cover liability arising from premises, operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract) with no endorsement or modification limiting the scope of coverage for liability assumed under a contract. C. Intentionally Deleted. E. Fire and Extended Coverage. Lessee shall maintain fire and extended coverage insurance, together with insurance against vandalism, theft and malicious mischief, on the improvements and fixtures, alterations, trade fixtures, signs, equipment, personal property and inventory on or upon the Premises from loss or damage in an amount not less than one million dollars and 00/100 ($1,000,000) per occurrence. F. Loss of Rent. Lessee shall maintain loss of rent insurance insuring that the Rent will be paid to City for a period up to six (6) months if the Premises are destroyed or rendered unusable or inaccessible for commercial purposes by a risk insured under a special form property coverage policy including vandalism and malicious mischief endorsements. G. Intentionally Deleted. H. Automobile Liability Insurance. Lessee shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of Lessee or all activities of Lessee's consultants, contractors and/or subcontractors arising out of or in connection with work to be performed on the Premises, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than two million dollars and 00/100 ($2,000,000) combined single limit each accident. Builder's Risk Insurance. During any construction, Lessee shall maintain Builders Risk insurance or an installation floater as directed by City, covering damages to the work for "all risk" or special causes of loss form with limits equal to one hundred percent (100%) of the completed value of the work, with coverage to continue until final acceptance of the work by Lessee and City. City shall be included as an additional insured on such policy, and Lessee shall provide City with an insurance certificate evidencing this coverage. J. Intentionally Deleted. 4. Endorsements: Policies shall contain or be endorsed to contain the following provisions: A. Additional Insured Status. City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as an additional insured under all general liability with respect to liability arising out of Lessee's activities related to this Agreement and with respect to use or occupancy of the Premises. B. Primary and Non Contributory. Policies shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from Lessee's operations. Any insurance maintained by City, including any self -insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. C. Liability Insurance. Liability insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. D. Waiver of Subrogation. All worker's compensation insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Lessee or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Lessee hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its consultants, contractors or subcontractors. E. Reporting Provisions. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. F. Notice of Cancellation. The insurance required by this Agreement shall not be suspended, voided, canceled, or reduced in coverage or in limits except after thirty (30) calendar days (ten (10) calendar days written notice of non-payment of premium) written notice has been received by City. It is Lessee's obligation to ensure that provisions for such notice have been established. G. Loss Payee. City shall be included a loss payee under the commercial property insurance. 5. Additional Requirements. A. In the event City determines that (i) the Lessee's activities on the Property creates an increased or decreased risk of loss to the City, (ii) greater insurance coverage is required due to the passage of time, or (iii) changes in the industry require different coverage be obtained, Lessee agrees that the minimum limits of any insurance policy required to be obtained by Lessee or Lessee's consultants, contractors or subcontractors, may be changed accordingly upon receipt of written notice from City. With respect to changes in insurance requirements that are available from Lessee's then -existing insurance carrier, Lessee shall deposit certificates evidencing acceptable insurance policies with City incorporating such changes within thirty (30) calendar days of receipt of such notice. With respect to changes in insurance requirements that are not available from Lessee's then- existing insurance carrier, Lessee shall deposit certificates evidencing acceptable insurance policies with City, incorporating such changes, within ninety (90) calendar days of receipt of such notice. B. Any deductibles applicable to the commercial property or insurance purchased in compliance with the requirements of this section shall be Lessee's sole responsibility. C. Lessee and Lessee's consultants, contractors and/or subcontractors shall be subject to the insurance requirements contained herein unless otherwise specified in the provisions above or written approval is granted by the City. Lessee shall verify that all consultants, contractors and/or subcontractors maintain insurance meeting all the requirements stated herein, and Lessee shall ensure that City is an additional insured on insurance required from contractors, consultants and/or subcontractors. D. For General Liability coverage, contractors, consultants and/or subcontractors shall provide coverage with a format at least as broad as provided by Insurance Services Office form CG 203 80413. E. If Lessee maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the Lessee as their interest may appear. Any available insurance proceeds specific to this location which are in excess of the specified minimum limits of insurance and coverage shall be available to the City. F Lessee shall give City prompt and timely notice of any claim made or suit instituted arising out of or resulting from Lessee or Lessee's agents, representatives, consultants, contractors or subcontractors performance under this Agreement. G Lessee shall provide certificates of insurance, with copies of endorsements as required above, to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City prior to commencement of work . Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. H. All required insurance shall be in force on the Effective Date, and shall be maintained continuously in force throughout the term of this Agreement. In addition, the cost of all required insurance shall be borne by Lessee or by Lessee's consultants, contractors or subcontractors. I. If Lessee or Lessee's consultants, contractors or subcontractors fail or refuse to maintain insurance as required in this Agreement, or fail to provide proof of insurance, City has the right to declare this Agreement in default without further notice to Lessee, and City shall be entitled to exercise all available remedies. J. Lessee agrees not to use the Premises in any manner, even if use is for purposes stated herein, that will result in the cancellation of any insurance City may have on the Premises or on adjacent premises, or that will cause cancellation of any other insurance coverage for the Premises or adjoining premises. Lessee further agrees not to keep on the Premises or permit to be kept, used, or sold thereon, anything prohibited by any fire or other insurance policy covering the Premises. Lessee shall, at its sole expense, comply with all reasonable requirements for maintaining fire and other insurance coverage on the Premises. Notwithstanding the foregoing, Landlord agrees that the Permitted Use will not cause increases in or cancellation of any insurance upon the Property or any part thereof. EXHIBIT "E" RECORDING REQUESTED AND WHEN RECORDED RETURN TO: Office of the City Clerk City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 [Exempt from Recordation Fee - Govt. Code Sec. 6103] MEMORANDUM OF LEASE AGREEMENT WITH OPTIONS FOR RENEWAL This Memorandum of Lease Agreement With Options for Renewal ("Memorandum") is dated Dt,Cevafit(o, 2015 , and is made between City of Newport Beach, a California municipal corporation and charter city ("Lessor" or "City") and Wells Fargo Bank, National Association, a California limited liability company ("Lessee"), concerning the Premises described in Exhibit "A," attached hereto and by this reference made a part hereof. For good and adequate consideration, Lessor leases the Premises to Lessee, and Lessee hires them from Lessor, for the term and on the provisions contained in the Agreement datedg-t v Vito , 20 15 , including without limitation provisions prohibiting assignment, subleasing, and encumbering said leasehold without the express written consent of Lessor in each instance, all as more specifically set forth in said Agreement, which said Agreement is incorporated in this Memorandum by this reference. The term is five (5) years, beginning 1-OV'u -vv)- t , 2016, and ending ;�U)✓1v�a , 2021, and three (3) additional success "Renewal Terms" of five (5) years eac . This Memorandum is not a complete summary of the Agreement. Provisions in this Memorandum shall not be used in interpreting the Agreement's provisions. In the event of conflict between this Memorandum and other parts of the Agreement, the other parts shall control. Execution hereof constitutes execution of the Agreement itself. [Signatures on the next page] LESSOR LESSEE City of Newport Beach, a municipal Wells Fargo Bank, National Association, corporation Dave Kifif City Manager ATTEST: Leilani : rown City Clerk APPROVED AS TO FORM: Aaron C. Harp (AM ilo�r City Attorney a Name: Title: Name: Title: c. LORI C. WRIGHT LEASE NEGOTIATOR BROOKE WOLFORD NICE PRESIDENT [NOTE: Attach Exhibit A from Agreement as Exhibit to this Memorandum behind attached Notary form] appeared NOTARY ACKNOWLEDGMENT A notary public or o her officer completing this certificate verifies only the identity of th individual who signed the document to which this certificate is ched, and not the truthfulness, accuracy, or validity of that document. State of California ) County of ORANGE) On before me, , Notary Public, personally , who proved to me on the basis of satisfactory evidence to be the person whse name is subscribed to the within instrument and acknowledged to me that he executed the s. q e in his authorized capacity(ies), and that by his signature on the instrument the person, or the - tity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the la s of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) NOTARY ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California ) County of ORANGE) On ) t lr\, , ,-tip t `_> ? �� before me, ) , ,ti ,t t, Notary Public, personally appeared Y F c who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that s/he executed the same in his/her authorized capacity(ies), and that by his/her signature on the instrument the person, or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) a JENNIFER ANN MULVEY Commission # 2045022 Notary Public - California Orange County Comm. Ett fires Oct 12 2017 N V CALDFOo RKIoA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 , .,,. .;< �. <.; rfcC'�cC`< ,< Mcl'cX`�c`tY^:Mei<�Y`�:CcC:cS;c;::..,,:�cC'�<'.c�:%c�c`.Mkzt.,rt�cz{'� A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of /O. S //1,6C �s On /2"';2'G Date personally appeared before me, /W,q,q/A1 - c- /? /roc4, //07/1/e,V /U• is /r Here Insert Name and Title of the Officer (. Gf//I6f/T de SzDo,6--- JOLF ie1J Name° of Signer who proved to me on the basis of satisfactory evidence to be the person s whose name) subscribed to the within instrument and acknowledged to me that - - - :1Li executed the same in -his their authorized capacity , and that by f:tisl ignature0 on the instrument the person() or the entity upon behalf of which the person s@ acted, executed the instrument. JIOBBBYALBAGlOIYIOIIYAY0oY00Y000080006 `▪ " MARIA WISH ROCA 0 i� COMM. #2115708 n NOTARY PUBLIC • CALIFORNIA 94 LOSMOUES GUAR e° o My Comm:Bstan Expires O8/15/2019 9000008000000000000000000000000000000P Place Notary Seal Above I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature G�2i%C� - Signature of Notary Public OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended •=.. ment. Description of Attached Document Title or Type of Document: Doc Number of Pages: Signer(s) Other Than Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Named Abo ,Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: ate: ©2014 National Notary Association • www.NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 EXHIBIT "A" PROPERTY AND PREMISES DEPICTION EXHIBIT A-1 • f L rgNFFi� N •,',pUrI Beach GiS 0 1,000 2,000 Feet HARBOR ISLA/VDDR BAYFR =, BAY FRONTALLEY N BALBOAAVE Ear-z PARK AVE Gi s.. RAY FRONT ALLEY S BAY FRONT S ';''•. dir Disclaimer: Every reasonable effort has been made to assure the accuracy of the data provided, however, The City of Newport Beach and its employees and agents disclaim any and at responsibility from or relating to any results obtained in its use. Imagery: 2009-2013 photos provided by Eagle Imaging www.eagleaerial.com 12/3/2014 EXHIBIT A-2 0 100 200 Feet Disclaimer: Every reasonable effort has been made to assure the accuracy of the data provided, however, The City of Newport Beach and its employees and agents disclaim any and all responsibility from or relating to any results obtained in its use. Imagery: 2009-2013 photos provided by Eagle Imaging www.eagleaerial.com 12/3/2014 EXHIBIT A-3 0 20 40 Feet Disclaimer: Every reasonable effort has been made to assure the accuracy of the data provided, however, The City of Newport Beach and its employees and agents disclaim any and all responsibility from or relating to any results obtained in its use. Imagery: 2009-2013 photos provided by Eagle Imaging www.eagleaerial.com 12/3/2014