Loading...
HomeMy WebLinkAboutC-3018 - Balboa Boulevard East, 600 - Lease Agreement - Automated Teller Machine (ATM) at Palm Street Public Parking Lot 1994Corporate Properties Group Southern California 333 South Grand Avenue, Suite 700 Los Angeles, CA 90071 April 12, 1999 CERTIFIED MAIL, RETURN RECEIPT REQUESTED City of Newport Beach 3330 Newport Boulevard Newport Beach, CA 92658 Attention: City Manager 46 WA bkp�, 6-. "\ Re: Wells Fargo Bank — ATM Lease (AU#99538 L200) 200 Palm Street, Newport Beach, CA To Whom It May Concem: (213) 253 -3275 Fax (213) 620 -0554 Reference is made to that certain ATM Lease Agreement (the "Lease ") by and between the City of Newport Beach, a California municipal corporation, as Landlord and Wells Fargo Bank, a national banking association, as Tenant dated September 14, 1994. Pursuant to section 2(b) of the Lease, Wells Fargo Bank hereby exercises its five (5) year option to extend the Lease term commencing September 14, 1999 and expiring September 13, 2004 under the same terms and conditions. Please note that the address stated in section 1(a) of the Lease has changed from 600 East Balboa Boulevard, Balboa, to the address stated above. Please contact the undersigned if you have any questions or comments concerning the above. Thank you for your courtesy and cooperation. truly yqurs, ri"M" Printed on Reevolee Paper C -3019 THIS ATM LEASE is made as of this e— day of .J v K 1994, by and between the CITY OF NEWPORT BEACH, a California municipal corporation ( "Landlord ") and WELLS FARGO. BANK, NATIONAL ASSOCIATION, a national banking association ('Tenant "). (a) Landlord hereby leases to Tenant and Tenant hereby leases from Landlord that space of sufficient size reasonably required for Tenant to construct a kiosk to house up to two (2) automatic teller machines ( "ATMs ") and one (1) night depository box, not to exceed three hundred (300) square feet, located within that certain real property (the "Real Property ") commonly known as 600 East Balboa Boulevard, Balboa, California, as more .particularly shown on the site plan (the "Site Plan ") attached hereto as Exhibit A and made a part hereof. (b) Until Landlord elects to demolish the existing building and other improvements located on the Premises. Tenant's now existing automated teller machine (the "ATM ") shall remain in place on the exterior portion of the existing building as indicated in the floor plan (the "Floor Plan ") attached hereto as Exhibit B. If Landlord elects not to demolish the existing building and other improvements located on the Real Property, Landlord covenants to use the existing building for "general public purposes" and shall not enter into any lease or other transaction granting a third party space in the existing building or other improvements located on the Real Property to use for the operation of ATMs. (c) When Landlord elects to demolish the existing building and other improvements located on the Property, then Landlord shall give Tenant no less than four (4) months notice of such election. Tenant shall be authorized to construct the kiosk to house up to two (2) ATMs on the space indicated in the Site Plan. In such event, that space shall then be deemed the "Premises" under this Lease in lieu of the portion of the existing building shown in the Floor Plan. Landlord shall use its best efforts to assist Tenant in obtaining all building and other permits to construct, install and operate such kiosk and the ATMs. Tenant shall use its best efforts to diligently construct the kiosk following Landlord's notice of election to demolish the existing building and other improvements located on the Real Property. (d) Landlord shall designate at least one (1) stall in the parking lot on the Real Property located nearest to the Premises for short term parking (not to exceed fifteen (15) minutes). -1- (a) T e initial term of this Lease shall commence on the /14 day of 1994, and shall expire five (5) years following that date. (b) In addition, Tenant shall have three (3) consecutive options to extend the initial term of the Lease for an additional five (5) year period each upon the same terms and conditions. Each such option shall be exercised by Tenant upon written notice to Landlord delivered at any time on or prior to the expiration of the initial term or extended term, as the case may be. During each extension term, all provisions of this Lease shall remain in full force and effect. (c) Notwithstanding the foregoing, Tenant may terminate this Lease at any time thereafter upon written notice of termination (the "notice of Termination ") delivered to Landlord. Such Notice of Termination shall set forth the effective date of the termination. 3. Annual Rent. Tenant shall pay the sum of One and 00/100 Dollar ($1.00) in annual rent during the initial term of this Lease and during each extended term thereof. 4. Mg. The Premises may only be used by Tenant for the construction and maintenance of a free - standing kiosk for the installation and operation of (a) up to two (2) ATMs, (b) a telephone or other support system for the ATMs, (c) trash receptacles, and (d) such other equipment and accessories as are or become normally provided by Tenant in connection with the operation of an ATM facility of this type, including without limitation, a night depository box (collectively the "Tenant Improvements "). Tenant shall make no other use of the Premises without the prior written consent of Landlord. 5. Promptly after the satisfaction of the condition set forth in Section 25 below, Tenant shall diligently design and install or construct on the Premises, at Tenant's sole cost and expense, a free - standing kiosk to house up to two (2) ATMs, together with such other permitted uses as Tenant may desire. All such installation and construction 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. The ATMs and all of Tenant's trade fixtures and personal property shall be and at all times remain the property of Tenant. 6. Erection of SAM. Notwithstanding anything to the contrary contained in this Lease, Tenant may, at Tenant's sole expense, erect within the Premises and on the exterior walls, windows and doors of the Premises, signs identifying and advertising the ATMs and Tenant's company name. Installation of any signs shall conform to all applicable building, zoning and other regulations of any applicable governmental authority. All such signs shall at all times remain the property of Tenant. -2- 0 0 7. Maintenance of ATMs. Once installed, Tenant shall use its best efforts to operate the ATMs on a twenty -four (24) hour basis. Tenant shall have the right, however, to suspend operation for periodic maintenance inspections, balancing adjustments, servicing operations or other maintenance purposes. Landlord acknowledges that despite Tenant's best efforts, the ATMs may be rendered inoperative for various periods of time due to breakdowns, operations failures or other reasons. Tenant 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. Landlord shall provide Tenant with all necessary vehicular and pedestrian access and all authorizations, keys and other assistance necessary to permit Tenant to service the ATMs at any time without prior notice to Landlord. Tenant may engage an independent contractor to perform Tenant's maintenance obligations hereunder. Removal of ATMs. Upon the expiration or other termination of this Lease, Tenant shall remove the free - standing kiosk, the ATMs, Tenant's signs and Tenant's other trade fixtures and personal property from the Premises, and restore the Premises to a clean and orderly condition, at Tenant's sole cost and expense. Such removal shall occur not more than sixty (60) days after the expiration or other termination of this Lease. 9. Maintenance of Premises. By taking possession of the Premises, Tenant shall be deemed to have accepted the Premises as being in good and sanitary order, condition and repair. Tenant shall, at all times during the term of this Lease and any renewal or extension hereof, maintain the Premises in a clean and orderly condition at Tenant's sole cost and expense, and shall, upon termination of this Lease, surrender the Premises to Landlord in a clean, safe and orderly condition. Landlord shall maintain the existing building and other improvements located on the Real Property (other than the Premises), including without limitation the parking lot and landscaping. 10. Alterations. Additions and Improvements. Except for the Tenant Improvements and the signs described in Section 6 above, Tenant shall not make any alterations, additions or improvements to the Premises without obtaining the prior written consent of Landlord, such consent not to be unreasonably withheld. Should Landlord consent to the making of any such alterations, additions or improvements by Tenant, such alterations, additions or improvements shall be made at the sole cost and expense of Tenant by a contractor or other person selected by Tenant and approved in writing by Landlord before the work commences. Except as provided otherwise in this Lease, any and all alterations, additions or improvements shall on termination of this Lease become the property of Landlord and shall remain on the Premises. 11. Services and Utilities. Landlord shall allow Tenant, at Tenant's sole expense, to extend to the Premises all electricity, telecommunication lines and other utilities required for the use and occupation of the Premises and the operation of the ATMs. -3- 12. Security. (a) Tenant is solely responsible for all security with respect to AB 244 regulations as they pertain to safety for operation of ATM facilities. 13. Taxes. Tenant understands that this Lease may create a possessory interest and shall pay any real estate tax, levy or assessment on the Premises. 14. Damage or Destruction. Should the Premises or the kiosk be damaged or destroyed by any cause not due to the negligent or willful act of Landlord, Tenant shall, at its own cost and expense, promptly repair the same. Should said damage or destruction substantially impair, in the reasonable judgment of Tenant, the satisfactory operation of the ATMs, Tenant may terminate this Lease by providing Landlord written notice of such termination not more than thirty (30) days following the occurrence of such damage or destruction. 15. Assignment and Subletting. Tenant may not assign this Lease or sublease all or part of the Premises (including to any affiliated entity of Tenant or successor of Tenant by merger or otherwise) unless first obtaining the written consent of Landlord, which consent shall not be unreasonably withheld. 16. Insurance. (a) General Liability Coverage -- Tenant agrees to procure and maintain at all times during the term of this Lease, and any extensions thereof, a policy of Commercial General Liability Insurance, which includes Broad Form Property damage. Such policy shall provide limits of at least $1,000,000 combined single limit per occurrence. Tenant shall be named insured and Landlord be named additional insured in said insurance policy. Insurance provided should be Best's Guide rated at A:VII and be admitted insurer in the State of California. Tenant shall notify Landlord in writing at least (30) days prior to any changes or cancellation of said policy, and shall deliver evidence of said insurance for Landlord approval prior to commencement of the term of this Lease. I. Reporting Provisions -- Any failure by the Tenant to comply with the reporting provisions of this insurance policy shall not affect coverage provided to the Landlord. ii. Hold Harmless -- The Tenant shall indemnify and hold harmless the Landlord and its officers, officials, employees and agents from and against all claims, damages, losses, and expenses including attorney fees arising out of the performance of the Lease Agreement, caused in whole or in part by any negligent act or omission of the Tenant, anyone directly or indirectly employed by the Tenant for whose acts any of them may be liable. -4- iii. Primary Insurance -- This insurance provided by the Tenant shall provide primary insurance to the Landlord to the exclusion of any other insurance or self- insurance program the Landlord may carry with respects to claims and injuries arising out of activities of the Tenant or otherwise insured hereunder. iv. Severability of Interest -- The insurance afforded by this policy applies separately to each insured who is seeking coverage or against whom a claim is made or a suit is brought, except with respects to the company's limit of liability. V. Waiver of Subrogation -- The Tenant's insurer will waive the right of subrogation against the Landlord. (a) Auto Liability Coverage -- This insurance is required for the use of Tenant's business autos on the premises at limits of $1,000,000 combined single limit per occurrence for property damage and personal injury. (b) Worker's Compensation Coverage -- The Tenant will provide proof of workers compensation insurance with statutory limits per California State Law and with Employers' Liability of $1,000,000. 17. Default. The occurrence of any one ore more of the following event shall constitute an event of default under this Lease. (a) The failure by Tenant or Landlord to observe or perform any of the covenants, conditions or other provisions of this Lease required to be observed or performed by Tenant or Landlord, as the case may be, where such failure shall continue for a period of thirty (30) days after written notice thereof by the other party hereto. (b) The making by Tenant or Landlord of any general assignment or general arrangement for the benefit of creditors; or the filing by or against Tenant or Landlord of a petition to have Tenant or Landlord 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 Tenant or Landlord, the same is dismissed within sixty (60) 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 Tenant's or Landlord's assets located at Premises, as the case may be, or of Tenant's or Landlord's interest in this Lease, where such possessions, attachment, execution or other seizure is not restored to Tenant or Landlord, as the case may be, within thirty (30) days. 18. Remedies on Default. In the event of any default by Tenant or Landlord 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 Lease in effect and thereby be entitled to enforce all rights and remedies under this Lease; or -5- ! • (b) Terminate this Lease 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 Lease. 19. Notices. Any notice required or permitted by this Lease 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: City of Newport Beach 3330 Newport Boulevard Newport Beach, CA 92658 Attn: City Manager Wells Fargo Bank Corporate Properties Group 111 Sutter Street, 22nd Fl. San Francisco, CA 94163 Attn: Lease Administration with copy to: Wells Fargo Bank Corporate Properties Group 333 So. Grand Avenue #840 Los Angeles, CA 900771 Attn: Manager Either party hereto may by written notice to the other party hereto specify a different address for notice purposes or add one additional address for notice purposes. 20. Attorneys' Fees. In the event of any litigation between Landlord and Tenant in connection with this Lease, the prevailing party shall be entitled to recover from the other party hereto, in addition to such other relief as may be. granted, such reasonable attorneys' fees incurred by the prevailing party in instituting or defending such litigation, together with such reasonable costs and expenses of litigation as may be allowed by the court. 21. Time of Essence. Time is expressly declared to be the essence of this Lease. 22. Waivers No waiver of either party hereto of any provision of this Lease shall be deemed a waiver of any other provision hereof or of any subsequent breach by such party of the same or any other provision. 0 23. Entire Agreement. This Lease constitutes the entire agreement between the parties hereto with respect to the leasing of the Land, 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 Lease and the terms and provisions of any other agreement, instrument or document, the terms and provisions of this Lease shall prevail. No provision of this Lease may be amended except by an agreement in writing executed by the parties hereto. 24. Indemnity. Landlord hereby indemnifies and holds Tenant harmless from and against all claims, actions, costs (including, but not limited to, court costs and attorneys' fees), judgments, liabilities or damages arising out of or resulting from personal injury or property damage of any kind which occurs as a result of Landlord's ownership or operation of the parking lot. Tenant hereby indemnifies and holds Landlord harmless from and against all claims, actions, costs (including, but not limited to, court costs and attorneys' fees), judgments, liabilities or damage arising out of or resulting from personal injury or property damage of any kind which occurs as a result of the operation, maintenance or presence of the ATM, kiosk or other Tenant improvements. 25. Condition to Lease. This Lease and the parties' obligations hereunder are conditioned upon (i) Tenant obtaining and necessary approval of the Comptroller of Currency to the installation and operation of the ATMs on the Premises no later than ninety (90) days after the date of this Lease; and (ii) approval of Tenant's senior management. IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the day and year first set forth above. TENANT WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association By: crP- �, By: Its: - its: By: By: Its: ����r�Csr� Its: -7- LANDLORD CITY OF NEWPORT BEACH, a California Municipal corporation A I i �I t. a r r H H H m � a r v n I ` JV � � w r •wr o 7 D fA A r0 �A n x H H H m � a r v n I x x H lV H H A 1 i i