HomeMy WebLinkAboutC-8438-1 - McFadden Place, 101 - Lease (ATM Kiosk)LEASE AGREEMENT BY AND BETWEEN THE CITY OF
NEWPORT BEACH AND NATIONAL LINK,
INCORPORATED
MM,,,NThis LEASE AGREEMENT ("Agreement') is entered into this -? day of
-Fe4a ayl, 2017 ("Effective Date") by and between the City of Newport Beach, a California
municipal corporation and charter city ("Lessor" or "City"), and National Link,
Incorporated, a California corporation ("Lessee"), individually referred to as "Party" or
collectively as "Parties."
RECITALS
A. City is the owner of certain improved property consisting of land, an asphalt and
striped parking lot, and other improvements near the base of the Newport Pier at
McFadden Square, located at 101 Mc Fadden Place, Newport Beach, California
92663, Assessor's Parcel Number 047-300-01 (collectively the "Property"), as
legally described and further depicted on Exhibit "A" attached hereto and
incorporated herein by reference. The Property includes an approximately fifty (50)
square foot kiosk, which is depicted on Exhibit "B" attached hereto and
incorporated herein by this reference ("Kiosk").
B. The Kiosk has an area suitable for the placement of an automated teller machine
("ATM") and the City has determined it would be of public benefit for ATM services
to be provided at the Property.
C. Pursuant to City Council Policy F-7, the City conducted an appraisal to obtain the
fair market value of the Property. Pursuant to City Council Policy F-7, the City
conducted an open bid process and published a Request for Proposals (No. 16-
15) for ATM Services on October 14, 2015. After a careful evaluation process, the
City selected Lessee as the ATM operator.
D. Lessee desires to lease a portion of the Kiosk in order to install and operate an
ATM and City agrees to lease a portion of the Kiosk to Lessee on the terms and
conditions contained herein.
IN CONSIDERATION OF THE MUTUAL COVENANTS CONTAINED HEREIN, the
Parties agree as follows:
Premises.
1.1 Location. City hereby leases to Lessee and Lessee hereby leases from City
one side of the Kiosk ("Premises"), which is depicted on Exhibit "B", upon the terms and
conditions of this Agreement, for the purpose of installing, operating and maintaining an
ATM, 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, and/or (5) a merchant
depository in connection with the operation of an ATM (which ATM and such additional
equipment and features are collectively referred to as 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) the non-exclusive 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. However, City may require the Lessee to close the ATM
Facility, without liability, at any time it deems necessary for the protection of life, limb or
property, or upon reasonable notice to effect any repair, remodeling or rebuilding deemed
necessary by City.
1.3 Reserved.
1.4 Condition of Premises. Lessee agrees to accept the Premises in its "as is"
condition.
2. Term.
2.1 Term. Initial term of this Agreement shall commence on the Effective Date
and shall expire five (5) years following that date.
2.2 Option to Extend. In addition, Lessee shall have one (1) option to extend
the initial term of the Agreement for an additional five (5) year period ("Renewal Term"),
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 option. The 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. During the extension term, all 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. Notwithstanding any provision of this
Agreement, City shall have the right to terminate this Agreement at its sole and absolute
discretion, for any reason, upon ninety (90) days written notice to Lessee. In the event of
termination, Lessee shall be required to return the Premises to its original condition
pursuant to Section 8 of this Agreement.
2.4 Redevelopment of Property. Should City redevelop the Property or Kiosk
during the Term of the Agreement, or any extensions thereof, which will materially
interfere with Lessee's ability to occupy the Kiosk, City shall make all best efforts to
include space for Lessee to continue to operate the ATM Facility at the Property, however,
the City cannot guarantee that space will be available. If the City, in its sole and absolute
discretion, determines such space is not available, City shall terminate the Agreement
pursuant to Section 2.3.
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2.5 Holdinq 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 Transaction Statement. Within twenty-five (25) calendar days after the end
of each calendar month for the term hereof, as may be extended as provided herein,
commencing with the twenty-fifth (25'") day of the month following the Rent
Commencement Date (as defined below), and ending with the twenty-fifth (25th) day of
the month next succeeding the last month of the term, as may be extended as provided
herein, Tenant shall furnish to City a statement in writing, certified by Tenant to be correct
("Transaction Statement"). Each Transaction Statement shall show the total number of
surcharge transactions for the preceding month ("Monthly Transaction Volume"), the total
withdrawal amount and the total surcharge fees generated at the ATM Facility on the
Premises during the preceding calendar month (collectively, "Monthly Transaction
Details"). The Transaction Statement shall also state the amount of rent due for the
preceding month.
3.2 Rent. Lessee shall commence payment of rent upon the first day of
operation of the ATM at the Premises or sixty (60) calendar days following execution of
this Agreement, whichever date is first ("Rent Commencement Date"). "Monthly Base
Rent" shall be determined each calendar month and shall be calculated using the table
below based on the Monthly Transaction Volume. "Revenue Share Rent" shall also be
determined each calendar month and shall be calculated by multiplying the appropriate
dollar amount in Column C of the table below, by the Monthly Transaction Volume for the
calendar month. Lessee shall pay City Monthly Base Rent and Revenue Share Rent
("Rent').
Monthly
Transaction
Volume
[A]
Monthly
Base Rent
[B]
Plus
Revenue Per
Transaction
[C]
0-299
$160
Plus
$1.25
300-499
$350
Plus
$1.00
500-999
$650
Plus
$1.00
1000-1499
$1,500
Plus
$1.00
1500-1999
$2,500
Plus
$1.00
2000 and above
$3,200
Plus
$1.00
Rent shall be payable in arrears on the twenty-fifth (25th) day of each calendar
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month during the Term, or the first business day following the twenty-fifth (25th) day if the
twenty-fifth (25th) day falls on a weekend, for the prior calendar 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 twenty-fifth (25th) day of the following month.
Monthly Base Rent shall be subject to the rent adjustment provisions of Section
3.3 below. Lessee shall send said Rent to the mailing address or send an electronic fund
transfer via the web address provided in Section 3.5. Lessee shall be responsible for any
delays in the mode of sending the Rent to City.
3.3 Rent Adjustments. Monthly Base 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 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 3.3 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.
3.4 Notwithstanding the Index adjustments described above, if City, in its sole
and absolute discretion, believes that notwithstanding such adjustments pursuant to
Section 3.3, 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 Premises 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.
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3.5 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.
3.6 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 plus interest on the amount due
at the rate of ten percent (10%) per annum from the date due and payable by the terms
of this Agreement until the same shall be paid. 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.
3.7 Reserved.
3.8 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.
3.9 Production of Statement. Records and Audit. Lessee shall keep full,
complete and proper books, records and accounts of its daily transactions at the
Premises. Upon City's written request, Lessee agrees to make these books, records and
accounts available for inspection by City, along with all supporting records ("Records"),
at Lessee's notice address listed herein or at another address within Orange County,
California designated by Lessee. Alternatively, Lessee may bring the Records to the
City's notice address listed herein. Lessee shall retain and preserve for at least three (3)
years all Records, books, bankbooks or duplicate deposit books and other evidence of
Monthly Transaction Details from transactions at the Premises. City may at any time
during the Term and within one hundred eighty (180) calendar days after expiration or
Termination of this Agreement to inspect and complete an audit of Lessee's books and
records and to make transcripts to verify the Rent due to the City. The audit may be
conducted at any reasonable time during normal business hours. Lessee shall cooperate
with City in making the inspection and conducting the audit. The audit shall be limited to
the determination of Rent and shall be conducted during usual business hours in a
manner that minimizes any interference with the conduct of Lessee's regular business
operations. If the audit concludes that there is a deficiency in the payment of any Rent,
the deficiency shall become due and payable within thirty (30) calendar days and if there
is an overpayment, City shall refund the amount of the overpayment within thirty (30)
calendar days. City shall bear its costs of the audit unless the audit shows that Lessee
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understated Rent by more than two percent (2%), in which case Lessee shall pay all City's
reasonable costs of the audit.
4. Use.
4.1 Use. The Premises may only be used by Lessee for the installation,
operation, maintenance, repair and servicing of the ATM Facility. 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 any 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 Facility. 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 while at the
Property.
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 Facility, 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; 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.
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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 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. Installation and Maintenance of Lessee Improvements.
5.1 Lessee, at Lessee's sole cost, shall be responsible for the complete
installation of the ATM Facility at the Premises ("Lessee Improvements"). These
responsibilities shall include but are not limited to the development of plans, procurement
of required permits and payment of permit fees, all structural modifications to the Kiosk,
electrical, lighting, signage and communications connections and modification,
installation of air conditioning unit (if necessary), and repainting of the Kiosk with colors
approved by City. Lessee Improvements shall be completed in a manner consistent with
the quality, design and aesthetics of the Kiosk and shall be approved by City. Lessee
Improvements shall be performed between 7:00 a.m. and 6:00 p.m. on non -holiday
weekdays. Any contractors hired by Lessee shall be fully licensed and bonded. Lessee's
contractors and any subcontractors shall obtain insurance in an amount and form to be
approved by City's Risk Manager, including workers compensation insurance as required
by law, general liability, automobile liability and builder's risk insurance covering
improvements to be constructed, all pursuant to standard industry custom and practice.
City, its elected or appointed officers, agents, officials, employees, volunteers, and any
person or entity owning or otherwise in legal control of the Property shall be named as an
additional insured on the contractor's and any subcontractor's policies.
5.2 Fixture, Equipment and Furnishings. Lessee shall furnish all fixtures,
equipment, and furnishings for operation and identification of the ATM Facility, subject to
City approval. Fixtures, equipment, and furnishings may include, but are not necessarily
limited to, telephone, data, and security cabling and equipment to the Premises.
5.3 ATM Type. ATM shall be a rear loading model and the model shall be
approved by the City prior to installation.
5.4 Lessee shall diligently maintain the Kiosk, the Premises and Lessee
Improvements, at Lessee's sole cost and expense. ATM Facility 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 shall be
further responsible for any and all repairs or modifications necessary to return the
Premises to its original condition pursuant to Section 8 of this Agreement.
5.5 City may perform maintenance or repairs in the event Lessee fails to
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commence required maintenance or repairs within the time provided by City in the written
notice requesting such maintenance or repair (which shall not be less 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 less than five (5) calendar
days) and continue to maintain the area as required by this Agreement.
6. Operation and Maintenance of ATM.
Lessee shall replenish cash as required by usage of the ATM. If City notifies
Lessee that the ATM is in need of cash replenishment, Lessee must replenish cash within
twenty-four (24) hours of such notice. Lessee shall use its best efforts to operate the ATM
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 ATM 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 ATM at all times, including times which are outside normal business hours or on days
other than normal business days; however, City retains the right to restrict the days and/or
times the ATM may be serviced, upon written notice to Lessee. City shall provide Lessee
with all necessary vehicular and pedestrian access and all authorizations, keys and other
assistance necessary so that Lessee may carry out its operation, maintenance and repair
responsibilities at any time without prior notice to City. Lessee may engage an
independent contractor to perform Lessee's maintenance obligations hereunder.
7. Reserved.
8. Removal of ATM.
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 its original 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 Kiosk and Premises.
By taking possession of the Premises, Lessee shall be deemed to have accepted
the Premises and Kiosk as being in good and sanitary order, condition and repair. Lessee
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shall, at all times during the term of this Agreement and any renewal or extension hereof,
maintain the Premises and Kiosk in a clean and orderly condition at Lessee's sole cost
and expense, and shall, upon termination of this Agreement, surrender the Premises and
Kiosk to City in a clean, safe and orderly condition. City shall maintain the other
improvements located on the Property (other than the Kiosk), including without limitation
the parking lot.
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.
11. Services and Utilities.
11.1 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 ATM Facility ("Utility Lines").
Lessee shall be responsible, at Lessee's sole expense, for the maintenance, repair and/or
replacement of the Utility Lines.
11.2 Lessee shall pay City, in addition to any Rent or other charges, a monthly
utility fee of Ten Dollars and 00/100 ($10.00) for Lessee's share of monthly utility costs
("Utility Fee"). The Utility Fee may be adjusted by the City on the first anniversary of the
Effective Date and then on the first of each Lease Year thereafter to reflect any increases
in Lessee's share of the utility costs.
12. Security.
Lessee shall be solely responsible for all security with respect to AB 244
regulations as they pertain to safety for operation of the ATM Facility. Lessee shall keep
the areas of the Property surrounding the ATM Facility well lighted at all times, but in no
event less 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
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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 Kiosk, Premises or 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 ATM
Facility, Lessee may 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
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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.
17. Insurance.
Without limiting Lessee's indemnification of City, Lessee shall 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.
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 Rent Commencement Date has not occurred by one hundred twenty
(120) days from the Effective Date.
(b) 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.
(c) If the ATM is not operational for more than an aggregate of thirty (30) days
in any six (6) calendar month period, for any reason other than the default of City
under this Agreement.
(d) 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.
(e) 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
National Link, Incorporated Page 11
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.
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, including without
limitation, the functions and features provided, the development of products, and the
pricing of services. However, in no event shall Lessee charge an ATM surcharge of more
than Three Dollars and 50/100 ($3.50) for the use of the ATM Facility, without the prior
written approval of the City.
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 92658
National Link, Incorporated Page 12
If to Lessee:
National Link, Incorporated
678 Cliffside Drive
San Dimas, CA 91773
Phone: (866) 286-2466
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 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, Lessee
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, Lessee Improvements, or materials
furnished to the Premises, Lessee 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
National Link, Incorporated Page 13
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 ATM on the Premises no later than ninety (90) calendar
days after the Effective Date of this Agreement.
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 loss 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 conditions of
this 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 Property required to comply with the provisions of the
Americans with Disabilities Act ("ADA"); however, Lessee shall be responsible for any
repairs, improvements, or upgrades to the Premises required to comply with the
provisions of the ADA. 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
National Link, Incorporated Page 14
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.
27. Memorandum of Lease Agreement.
A Memorandum of Lease Agreement, in a form and content similar to that
contained in Exhibit "E" shall be recorded by the parties promptly upon execution of this
Agreement. Upon execution by both parties, the Memorandum of Lease Agreement shall
be recorded against the Property in the office of the Orange County Clerk -Recorder, as
required by Government Code Section 37393.
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.
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.
National Link, Incorporated Page 15
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, religious creed, color, national origin, ancestry, physical handicap, medical
condition, marital status, sex, sexual orientation, age or any other impermissible basis
under law in the subleasing, transferring, use, occupancy, tenure, or enjoyment of the
Premises herein 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.
[SIGNATURES ON NEXT PAGE]
National Link, Incorporated Page 16
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the day and year first set forth above.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: Z//!
By:
Aaron C. F(arp
City Attorney
ATTEST:
Date: 3A /I
By: / �-
Leilani'I. Brown
City Clerk
CITY: CITY OF NEWPORT BEACH,
a California municipal corporation
Date: 3 8
By: c� .
�1 Dav-ict"`Kiff
City Manager
LESSEE: NATIONAL LINK,
INCORPORATED, a California corporation
Date: 3 // / 02-o / 7
By
Sammy F. Kandah
Chief Executive Officer
Date: 3 Z -i Z 10 i
By:
CA Qo J ri- CardrKa
ecretary
[END OF SIGNATURES]
Attachments: Exhibit A - Property Legal Description and Depiction
Exhibit B - Kiosk and Premises Depiction
Exhibit C - AB 244 Obligations
Exhibit D - Insurance Requirements
National Link, Incorporated Page 17
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE
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.
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that,W,5be/they executed the same in
FHs7fief/their authorized capacity(ies), and that by
erltheir signature(s) on the instrument the person(s),
or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under
of the State of
is true and cor
DANIELLA BYRNE WITNESS
Commission # 2123217
:-u Notary Public - California i
ZLos Angeles County > Sign ure
My Comm. Expires Aug 13, 2019
under the
Place Notary Seal Above
OPTIONAL
Though this section is optional, completing this information can deter alteration of the document or
fraudulent reattachment of this form to an unintended document.
Description of Attached Document
Title or Type of Document:
Number of Pages:
Document Date:
Signer(s) Other Than Named Above:
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:
Signer's Name:
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Individual ❑ Attorney in Fact
❑ Trustee ❑ Guardian or Conservator
Fl Other:
Signer Is Representing:
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EXHIBIT "A"
PROPERTY LEGAL DESCRIPTION AND DEPICTION
101 McFadden Place, Newport Beach, CA
Assessor's Parcel Number: 047-300-01
Blocks A-21 to A-29, both inclusive, and A-30, and A-31 of Newport Beach Tract
(amended), all in the City of Newport Beach, County of Orange, State of California as
shown on map recorded in Book 3, Page 26 of Miscellaneous Maps in the Office of the
Orange County Recorder of said County.
National Link, Incorporated Page A-1
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Newport
Beach
GIS
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.eagleaenal.com
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Disclaimer: Every reasonable effort has been made to assure the
accuracy of the data provided, however, The City of
GIS0
Newport Beach and its employees and agents
disclaim any and all responsibility from or relating to
any results obtained in its use.
T
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0 200
400
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Imagery: 2009-2013 photos provided by Eagle
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EXHIBIT "B"
KIOSK AND PREMISES DEPICTION
National Link, Incorporated Page B-1
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Newport
Beach
Disclaimer: Every reasonable effort has been made to assure the
accuracy of the data provided, however, The City of
GIS
Newport Beach and its employees and agents
disclaim any and all responsibility from or relating to
any results obtained In Its use.
elf y
0 100 200
Imagery: 2009-2013 photos provided by Eagle
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Feet
Imaging www.eagleaerial.com
9/2/2915
View of Kiosk from McFadden Square Parking Lot
View of Kiosk from Oceanfront W
Aerial View of Kiosk
Close up View of Kiosk
1
Proposed ATM Location (Premises)
EXHIBIT "C"
AB 244 OBLIGATIONS
National Link, Incorporated Page C-1
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FINANCIAL CODE - FIN La
DIVISION 4. AUTOMATED TELLER MACHINES: USER SAFETY 113000 -130701
Division 4 added by Stats. 1990, Ch. 825, Sec. 1.)
CHAMR 2. Intent [13000-13000.1 ( 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
n000. 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 Chaptcr 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 firther 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.)
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FINANCIAL CODE - FIN
DIVISION 4. AUTOMATED TELLER MACHINES: USER SAFETY 113000 -13070)
Division 4 added by Stats. 1990, Ch. 825, Sec. 1.)
CH"TER 2. Definitions 13020-13020.1 ( Chapter 2 added by Stats. 1990, Ch. 825, Sec. 1. )
As used in this division:
In
13020. (a) "Access area" means any paved walkway or sidewalk which is within 50 feet of an automated
teller machine. The term does not include publicly maintained sidewalks or roads, as defined 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 defined 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 term 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. I)
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FINANCIAL CODE - FIN
DIVISION 4. AUTOMATED TELLER MACHINES: USER SAFETY [13000 -130701
Division 4 added by Stats. 1990, Ch. 825, Sec. 1.)
CHAPTER 3. Location and iustallation [13030 -130311 ( 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 Stars. 1990, Ch. 825, Sec. 1)
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FINANCIAL CODE - FIN
DIVISION 4. AUTOMATED TELLER MACHINES: USER SAFETY [13000 -13070]
Division 4 added by Stats. 1990, Ch. 825, Sec. 1.)
N
01
CHAPTER 3. Location and Installation [13030 -13031] ( Chapter 3 added by Stats. 1990, Ch. 825, Sec. L )
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)
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FINANCIAL CODE - FIN
DIVISION 4. AUTOMATED TELLER MACHINES: USER SAFETY 113000 -13070]
Division 4 added by Stats. 1990, Ch. 825, Sec. 1.)
CHAPTER 4. iighttng [13040 -130411 ( Chapter 4 added by Stats. 1990, Ch. 825, Sec. 1. )
(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 defused 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)
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FINANCIAL CODE - FIN La
DIVISION 4, AUTOMATED TELLER AIACHMS: USER SAFETY 113000 -13070)
Division 4 added by Stats. 1990, Ch. 825, Sec. 1.)
CHAPTER 4. Lighting 113040 -130411 ( Chapter 4 added by Stats. 1990, Ch. 825, Sec. 1. )
The operator, owner, or other person responsible therefor, shall provide lighting during hours of
13941, 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)
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FINANCIAL CODE - FIN
DIVISION 4. AUTOMATED TELLER MACHINES. USER SAFETY [13000 -130701
Division 4 added by Stats. 1990, Ch. 825, Sec. 1.)
CILAPTER 5. Consumer Education 113050-13050.1 ( Chapter 5 added by Stats. 1990, Ch. 825, Sec. 1. )
Customers receiving access devices shall be famished 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 famished 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 famished 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.)
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FINANCIAL CODE - FIN
DMSION 4. AUTOMATED TELLER MACHINES: USER SAFETY [13000 -13070]
Division 4 added by Stats. 1990, Ch. 825, Sec. 1.)
CHAPTER 6. Exemptions [13060-13060.1 (Chapter 6 added by Stats. 1990, Ch. 825, Sec. 1. )
IN
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)
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FINANCIAL CODE - FIN
DIVISION 4. AUTOMATED TELLER MACHINES: USER SAFETY [13000 -130701
Division 4 added by Stats. 1990, Ch. 825, Sec. 1. )
CE4MR 7. Effect of Compliance 113070-13070.1 ( Chapter 7 added by Stats. 1990, Ch. 825, Sec. 1. )
This division supersedes and preempts all rules, regulations, codes, statutes, or ordinances of all
13070. 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 Lessee or Lessee'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 an
insurance company currently authorized by the insurance commissioner to
transact business of insurance in the State of California, with an assigned
policyholders' rating of A- (or higher) and Financial Size Category Class VII (or
larger) in accordance with the latest edition of Best's Key Rating Guide, unless
otherwise approved by the City's Risk Manager.
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 and
00/100 ($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 Waiverof Subrogation endorsement in favorof City, its officers,
agents, employees and volunteers.
B. General Liability Insurance. Lessee and Lessee's agents, representatives,
consultants, contractors and/or subcontractors, 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 less than One Million Dollars and 00/100
($1,000,000) per occurrence, Two Million Dollars and 00/100 ($2,000,000)
general aggregate. The policy shall cover liability arising from premises,
operations, personal and advertising injury, and liability assumed under an
National Link, Incorporated Page D-
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. Products Liability Coverage. Tenant shall maintain products liability
insurance covering bodily injury and property damage for all activities of the
Lessee arising out of or in connection with products or services sold by the
Lessee under this Agreement, in an amount not less than Two Million
Dollars and 00/100 Dollars ($2,000,000.00) combined single limit for each
occurrence.
D. 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 to the extent of their full replacement value.
E. 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.
F. 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 One Million Dollars and 00/100 ($1,000,000) combined single
limit each accident.
G. Builder's Risk Insurance. During any construction, Lessee shall require that
Lessee's construction contractors and subcontractors 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 a copy of the policy.
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
National Link, Incorporated Page
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. City, its elected or appointed officers, officials,
employees, agents and volunteers shall be named as an additional insured
on any of Lessee's contractor's or subcontractor's policies.
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 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
National Link, Incorporated Page D-3
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
approved by City.
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. Any available insurance proceeds 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 original 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 or issuance of any permit. Current certification of
insurance shall be kept on file with City at all times during the term of this
Agreement.
National Link, Incorporated Page D-4
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.
If Lessee or Lessee's consultants, contractors or subcontractors fail or
refuse to maintain insurance as required in this Agreement, orfail 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.
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.
National Link, Incorporated Page D-5
RECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
Office of the City Clerk
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
EXHIBIT "E"
[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 February , 2017, and is made between City of Newport Beach, a California
municipal corporation and charter city ("Lessor" or "City") and National Link, Incorporated,
a California corporation ("Lessee"), concerning the Property and Premises as legally
described and depicted 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
dated February , 2017, 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 February , 2017, and ending February
2022, and one (1) additional successive "Renewal Term" of five (5) years.
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 NEXT PAGE]
National Link, Incorporated Page E-1
LESSOR
City of Newport Beach, a municipal
corporation
LESSEE
National Link, Incorporated, a California
corporation
Dave Kiff Name:
City Manager Title:
Name:
Title:
ATTEST:
Leilani Brown
City Clerk
APPROV S TO FORM:
Aaron C. Harp
City Attorney
[END OF SIGNATURES]
ATTACHMENTS: Exhibit A — Property Legal Description and Depiction
National Link, Incorporated Page E-2
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 before me, Notary Public, personally
appeared '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 he executed the same in his authorized
capacity(ies), and that by his 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)
ARY 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 before me, Notary Public, personally
appeared 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)
National Link, Incorporated Page E-3
EXHIBIT "A"
PROPERTY LEGAL DESCRIPTION AND DEPICTION
101 McFadden Place, Newport Beach, CA
Assessor's Parcel Number: 047-300-01
Blocks A-21 to A-29, both inclusive, and A-30, and A-31 of Newport Beach Tract
(amended), all in the City of Newport Beach, County of Orange, State of California as
shown on map recorded in Book 3, Page 26 of Miscellaneous Maps in the Office of the
Orange County Recorder of said County.
National Link, Incorporated Page E-4
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