CITY OF AZUSA AUTOMATIC TELLER MACHINE AGREEMENT

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1 CITY OF AZUSA AUTOMATIC TELLER MACHINE AGREEMENT 1. PARTIES AND DATE. This Agreement is made and entered into this day of November, 2013 by and between the City of Azusa ( City ), a California municipal corporation with its principal place of business at 213 E. Foothill Blvd., Azusa, CA and Foothill Federal Credit Union ( ATM Operator ), a California nonprofit corporation with is principal place of business at 30 S. First Avenue, Arcadia, CA The City and ATM Operator are sometimes herein referred to individually as Party and collectively as Parties. 2. RECITALS. 2.1 City. City is the owner of that real property located at 725 N. Alameda Ave., Azusa, CA 91702, also known as the Police Department Headquarters (the Police Property ). 2.2 ATM Operator. ATM Operator owns, operates, and services automated teller machines ( ATM ). The Parties anticipate the need for an ATM in the lobby of the Police Property. The City desires to engage ATM Operator to install, operate and maintain an ATM in the Police Property as set forth in this Agreement. 3. TERMS. 3.1 Scope of Services and Term General Scope of Services. The City shall grant to ATM Operator the exclusive license to install one (1) ATM in the lobby of the Police Property, in consideration for which ATM Operator shall furnish to the City all labor, materials, tools, equipment, services and incidental and customary work necessary to install, operate and maintain the ATM. The City agrees to provide access to all portions of the Police Property reasonably required by ATM Operator, its agents and representatives to install, operate and maintain the ATM, during normal business hours at minimal inconvenience to the City, provided ATM Operator gives reasonable advance notice to the City. All services shall be subject to, and performed in accordance with this Agreement and all applicable local, state and federal laws, rules and regulations Term. The term of this Agreement shall be for a period commencing as of the date of this Agreement and expiring twenty-four (24) months following the date the installation of the ATM is completed and the ATM commences operation, unless earlier terminated as provided herein. Upon the expiration of the initial term, and unless the term is \

2 terminated sooner as provided hereunder, the Agreement shall automatically renew for no more than three, successive one (1) year terms ATM Transaction Processing. ATM Operator will cause the processing and completion of automated teller transactions which involve dispensing cash, providing a record of the transaction, assessing and collecting the surcharge and cash amount advanced from customers ATM Access. The Parties agree that access to the ATM shall be to all members of the public admitted to the Police Property, provided, however, that the City shall not be required to permit any person to have access to the ATM if the City is otherwise able to prohibit such person from entering the public areas of the Police Property Exclusive Use. The City agrees that the license to operate an ATM during the term of this Agreement on and in the Police Property is an exclusive license. The City covenants that neither the City nor any third party shall authorize, install or permit any other ATM to be placed or operated on or in the Police Property during the term of this Agreement ATM Property and Liability. The ATM is the sole and exclusive property of ATM Operator. ATM Operator is solely responsible for any and all losses and/or damages to the ATM and/or Police Property arising from actual or attempted theft or tampering in connection with the ATM Unforeseen Circumstances. The City shall not be liable in damages or otherwise should the Police Property or the utilities in connection with the Police Property be interrupted or destroyed by fire, accident, strike, riot, Act of God, or the making of necessary improvements or repairs, or any other causes beyond the control of the City. 3.2 Rights and Duties of the Parties Expenses. ATM Operator agrees to bear all expenses involved in installing, maintaining, repairing, removing, or replacing the ATM and any equipment and utility connections associated with the ATM. The City agrees to provide access to an electrical outlet and a telecommunications line at the ATM location. ATM Operator agrees to provide the ATM with telecommunications service at its own expense, billed directly to ATM Operator. In the event that telecommunications service is billed to the City, and ATM Operator is unable to rectify the erroneous billing, ATM Operator shall pay the City the full amount due within thirty (30) days of receipt of invoice from the City Maintenance. ATM Operator shall maintain in good working order the ATM and all ATM Operator equipment located at the Police Property at its own expense. ATM Operator is responsible for day-to-day ATM maintenance, including monitoring the ATM, replacing cash, replacing paper and ink-jet cartridges and ensuring a safe consistent power source \

3 3.2.3 Repairs. ATM Operator shall use all reasonable efforts to repair or replace the ATM, as needed, within forty-eight (48) hours of when ATM Operator becomes or is made aware of such need for repair or replacement. Unless such performance is otherwise excused in this Agreement, if the ATM is inoperable pursuant to this section for five (5) consecutive days, the ATM Operator shall remit to the City an amount in accordance with the following: ATM Operator shall calculate the average daily revenue from the ATM over the past two (2) consecutive months and shall remit to the City such daily revenue for each day the ATM is inoperable beginning on the fourth day the ATM is not in service. Such payments shall be on a pro-rata basis if the ATM is inoperable for a portion of any day thereof that such payment is due to the City Location. The ATM is to be located in a prominent and covered area as shall be mutually agreed upon by the Parties. At ATM Operator s expense, the ATM shall be properly secured to the Police Property foundation with either (a) anchor bolts, where the surface is concrete, or (b) industrial wood screws, where the surface is wood, whichever is appropriate ADA Compliance. The ATM provided by ATM Operator shall comply with the Americans with Disabilities Act, as amended ( ADA ). If an ATM subject to this agreement does not comply with the ADA, it shall be brought into compliance or replaced by ATM Operator at its expense. ATM Operator shall use all commercially reasonable efforts to bring the ATM into compliance within thirty (30) days or as soon thereafter as reasonably possible. The City agrees to provide the ATM location free floor space of thirty-six (36) inches wide for side access or forty-eight (48) inches wide for front access Compliance with Laws. ATM Operator shall operate the ATM in a professional and workmanlike manner and in compliance with all covenants, conditions and restrictions in this Agreement. ATM Operator shall be responsible for operating the ATM in compliance with all applicable laws, ordinances, orders, requirements, rules and regulations imposed by any local, state or federal authority having proper jurisdiction with respect thereto Signage. ATM Operator shall provide the ATM with signage clearly identifying the ATM as the private property of ATM Operator unaffiliated with the City or Police Property. ATM Operator shall provide the ATM with signage clearly identifying and providing all appropriate ATM Operator contact information in the event of malfunction or servicing needs. The City shall have the right to approve any and all advertising, branding, and/or signage on or around the ATM, such approval shall not be unreasonably withheld Surcharges. The City acknowledges that ATM Operator may impose a surcharge on customers using the ATM at the Police Property. ATM Operator agrees that any such surcharge will be in an amount permissible under state and federal law City s Fee for Services. For ATM Operator s use of the Police Property, ATM Operator shall pay the City seventy cents ($0.70) per surchargable transaction from the operation of the ATM at the Police Property, but not less that twenty dollars ($20.00) per month, whichever is greater. ATM Operator agrees to remit payment to the City by the last day of the month for each preceding month s transactions, less the monthly telecommunications line service fee \

4 Recordkeeping; Financial Reports. ATM Operator agrees that it will keep current and accurate books of account and records, in accordance with its standard operating procedures, with respect to its activities conducted and payments made pursuant to this Agreement. ATM Operator will provide the City with monthly and annual financial reports on ATM transactions, including but not limited to a statement of sales and surcharge transactions Right to Audit. The City shall have the right to audit the books and records of ATM Operator to verify the accuracy of all financial reports furnished by ATM Operator pursuant to the terms of this Agreement. If the City s audit reveals a discrepancy between the statement of charges in excess of three percent (3%), ATM Operator shall pay the costs of the City s audit. In the event that two or more auditors reveal a discrepancy in excess of five percent (5%), the City shall have the right, at its election, to immediately terminate the Agreement upon written notice. 3.3 Insurance Time for Compliance. ATM Operator shall not commence work under this Agreement until it and/or its agents, subcontractors, or independent contractors have provided evidence satisfactory to the City that it has secured all insurance required under this section Minimum Requirements. ATM Operator and/or its agents, subcontractors, or independent contractors shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of this Agreement by ATM Operator, its agents, representatives, employees, subcontractors, or independent contractors. Such insurance shall meet at least the following minimum levels of coverage: (A) Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001); (2) Automobile Liability: Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto); and by the State of California and Employer s Liability Insurance. (B) Minimum Limits of Insurance. ATM Operator and/or its agents, subcontractors, or independent contractors shall maintain limits no less than: (1) General Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with general aggregate limit is used, either the general aggregate limit shall apply separately to this Agreement or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage; and (3) Workers Compensation and Employer s Liability: Workers Compensation limits as required by the Labor Code of the State of California. Employer s Liability limits of $1,000,000 per accident for bodily injury or disease Insurance Endorsements. The insurance policies shall contain the following provisions, or ATM Operator and/or its agents, subcontractors, or independent \

5 contractors shall provide endorsements on forms supplied or approved by the City to add the following provisions to the insurance policies: (A) General Liability. The general liability policy shall be endorsed to state that: (1) the City, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insured with respect to the work or operations performed by or on behalf of the ATM Operator, including materials, parts or equipment furnished in connection with such work; and (2) the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the scheduled underlying coverage. Any insurance or self-insurance maintained by the City, its directors, officials, officers, employees, agents and volunteers shall be excess of ATM Operator s and/or its agent s, subcontractor s, or independent contractor s insurance and shall not be called upon to contribute with it in any way. (B) Automobile Liability. The automobile liability policy shall be endorsed to state: (1) the City, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insured with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by ATM Operator and/or its agents, subcontractors, or independent contractors or for which ATM Operator and/or its agents, subcontractors, or independent contractors are responsible; and (2) the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents and volunteers shall be excess of ATM Operator s and/or its agent s, subcontractor s or independent contractor s insurance and shall not be called upon to contribute with it in any way. (C) Workers Compensation and Employer Liability Coverage. The insurer shall agree to waive all rights of subrogation against the City, its directors, officials, officers, employees, agents and volunteers for losses paid under the terms of the insurance policy which arise from work performed by ATM Operator. (D) All Coverages. Each insurance policy required by this Agreement shall be endorsed to state that: (A) coverage shall not be suspended, voided, reduced or canceled except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City and (B) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its directors, officials, officers, employees, agents and volunteers Separation of Insureds; No Special Limitations. All insurance required by this Section shall contain standard separation of insureds provisions. In addition, such insurance shall not contain any special limitations on the scope of protection afforded to the City, its directors, officials, officers, employees, agents and volunteers Deductibles and Self-Insurance Retentions. Any deductibles or selfinsured retentions must be declared to and approved by the City. ATM Operator shall guarantee \

6 that, at the option of the City, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its directors, officials, officers, employees, agents and volunteers; or (2) ATM Operator shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best s rating no less than A:VIII, licensed to do business in California, and satisfactory to the City Verification of Coverage. ATM Operator and/or its agents, subcontractors, or independent contractors shall furnish the City with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms provided by the City if requested. All certificates and endorsements must be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time. 3.4 Default and Termination Default. The following events constitute default: (A) Either Party failing to pay any payment due under the terms of this Agreement ten (10) days after written demand by the non-defaulting party. (B) The breach and/or failure to perform any material term or condition of this Agreement, except the payment of money, if such breach or failure is not cured within thirty (30) days after written notice of the breach or failure to perform. A breach or failure to perform shall be deemed to have been cured, if a breach or failure to perform cannot be cured within thirty (30) days but the cure has been commenced within said period and diligently completed within a reasonable time; (C) The filing by either Party or any of its creditors of any voluntary or involuntary petition under the bankruptcy laws of the United States, or any other law for the relief of debtors; (D) Appointment of any receiver or trustee to take possession of the property of either Party, unless such an appointment is set aside or withdrawn or stayed within thirty (30) days of the date of such appointment; and (E) Any levy upon, seizure, attachment, garnishment, assignment, or sale for or by any creditor or governmental agency of the ATM, unless the sale is set aside within ninety (90) days from the date of such action Termination; Effect. This Agreement may be terminated by the mutual written consent of the Parties. This Agreement may be terminated by either party in an event of \

7 default by the other party, as provided in paragraph Upon termination of this Agreement for any reason, the fees not paid as of the date of termination shall promptly be paid in accordance with this Agreement Removal of ATM. Upon the termination of this Agreement for any reason, the City shall permit ATM Operator reasonable access to remove the ATM during regular business hours of the Police Property and at minimal inconvenience to the City. ATM Operator must restore the site where the ATM was located in the Police Property to the condition as it existed prior to the installation of the ATM within thirty (30) days from removal of the ATM. ATM Operator shall be responsible for complete repair and/or replacement, at ATM Operator s sole cost and expense, of any damage to the physical property of the Police Property (as determined by the City) resulting from the actions of ATM Operator or ATM Operator s performance or failure to perform its obligations under the Agreement. Any and all repairs and replacements must be done in accordance with local, state, and federal laws and to the reasonable satisfaction of the City. 3.5 General Provisions Assignment or Transfer. ATM Operator shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the City. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer Indemnification. ATM Operator shall defend, indemnify and hold the City, its officials, officers, employees, volunteers and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to the performance of this Agreement, including but not limited to any harm done to customers, City officials, officers, employees, volunteers and agents arising out of their use of the ATM, including without limitation the payment of all consequential damages and attorneys fees and other related costs and expenses. ATM Operator shall defend, at ATM Operator s own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against the City, its directors, officials, officers, employees, agents or volunteers. ATM Operator shall pay and satisfy any judgment, award or decree that maybe rendered against the City or its directors, officials, officers, employees, agents or volunteers, in any such suit, action or legal proceeding. ATM Operator shall reimburse the City and its directors, officials, officers, employees, agents and volunteers for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. ATM Operator s obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its directors, officials, officers, employees, agents or volunteers and shall survive expiration or termination of this Agreement Relationship of the Parities. ATM Operator is not an employee, agent, joint venture or partner of the City. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employee for state or federal purposes or any other \

8 purpose. ATM Operator agrees to be responsible for paying worker s compensation insurance payments for ATM Operator s agents or employees for performance of the services hereunder. ATM Operator shall be exclusively liable for the payment of contributions pursuant to the wages of its employees required by state and federal laws as to all employees engaged in the performance of work subject to this Agreement Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective Parties at the following address, or at such other address as the respective Parties may provide in writing for this purpose: ATM Operator: CITY: Foothill Federal Credit Union 30 S. First Avenue Arcadia, CA Attn: Brian Hall City of Azusa 725 N. Alameda Ave. Azusa, CA Attn: Police Chief Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the Party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service Cumulative Remedies. Each right and remedy provided under this Agreement is distinct and cumulative to all other rights or remedies provided hereunder or afforded by law or equity, and may be exercised concurrently, independently, or successively, in any order whatsoever Attorneys Fees. If either Party commences an action against the other Party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorney s fees and all other costs of such action Entire Agreement. This Agreement contains the entire Agreement of the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in Los Angeles County Time of Essence. Time is of the essence for each and every provision of this Agreement \

9 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties Authority to Enter Agreement. ATM Operator has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect Headings. The section headings in this Agreement are for purposes of reference only and shall not limit or affect any of the terms herein Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original. CITY OF AZUSA FOOTHILL FEDERAL CREDIT UNION By: James Makshanoff City Manager By: Brian Hall CEO Attest: By: Jeffrey Lawrence Cornejo, Jr. City Clerk Approved as to Form: By: Best Best & Krieger LLP City Attorney \