HomeMy WebLinkAboutCAG1997-0244 - Original - U.S. Bancorp - ATM Centennial Building - 10/06/1997 3
CITY OF KENT/
U.S . BANCORP ATM CONTRACT
A G R E E M E N T
AGREEMENT made this w day of
19� between U.S . Bancorp, a national banking association
("U.S . ,,) , whose address is 111 S.W. Fifth Avenue, Portland, Oregon
97204, and City of Kent ("Retailer" ) , whose address is 220 4th
Avenue South, Kent, Washington, 98032-5895, (together "the .
parties" ) .
W I T N E S S E T H
WHEREAS, U.S. is presently a participant in The Exchange,
ACCEL, Star, the Plus System, CIRRUS, VISA, MasterCard, American
Express and Discover Card, and in the future may become a
participant in other EFT systems;
WHEREAS, U. S . intends to acquire automated teller
machines ("ATMs" ) which consist of a computer terminal through
which a financial transaction can be initiated and to permit use
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............
of such ATMs by cardholders of any EFT system in which U.S . may be
a participant and by U.S . Bancorp and its subsidiaries and their
customers;
WHEREAS, Retailer owns and leases premises at 400 West
Gowe, Kent, Washington;
WHEREAS, U.S . desires to install, operate and maintain an .
ATM in a building occupied by Retailer; and
WHEREAS, Retailer desires to make space in a building
occupied by Retailer available to U.S . for the installation,
operation and maintenance of an ATM;
NOW, THEREFORE, the parties hereby agree that U.S. is
granted the right to install, operate and maintain an ATM in a
building occupied by Retailer specified herein, on the terms and
conditions specified herein.
SECTION 1 . INSTALLATION.
1 . 1 . U.S . shall install ATMs at the Centennial Center,
400 West Gowe, Kent, Washington, 98032 .
1 . 2 . The ATM shall be located at the location within the
Building as agreed upon by the parties . This location will be in
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a conspicuous and visible place, within the main traffic area.
1 .3 . Retailer shall be responsible for site preparation,
including removal or rearrangement of equipment, installation of
the electrical power line to the ATM, installation of the conduit
for the power line and the communications line and installing
U.S. supplied telephone cable . Retailer shall pay all expenses
associated with such work.
1 .4 . U. S. shall be responsible for all other work
required to install and connect the ATM, including but not limited
to, obtaining and installing the ATM and the communications line
to which the ATM will be connected and making such connection.
1 . 5 . All such work is to be performed according to plans
and specifications approved by U.S. and Retailer. Such approval
shall not be unreasonably withheld.
1 . 6 Installation work shall be done at times agreed upon
by the parties, which will interfere as little as possible with
building operations, but which will facilitate the prompt
installation of the ATM. U.S . agrees to restore promptly any
Retailer property damaged by U.S . Is employees during installation
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of the ATM. U.S . further agrees that it will not permit any
mechanics, materialmen' s, or other liens to stand against Retailer
for work or materials the responsibility for which is assigned to
U.S. under the terms of this Agreement .
1 . 7 . Each party shall cooperate with the other party in
obtaining any and all construction permits necessary to install
the ATM.
1 . 8 . U.S. shall determine the appearance of the ATM.
1 . 9 . The ATM shall remain the property of U.S. or the
party from whom U.S. is leasing them. At all times, the ATM shall
remain personal property regardless of the manner in which they
may be affixed to Retailer premises .
SECTION 2 . FEES.
2 . 1 . Fees shall be based on the total number of monetary
transactions per ATM, per calendar month. Monetary transactions
are defined as cash withdrawals, cash advances, and transfers .
Balance inquiries and other informational transactions are not
regarded as monetary transactions .
2 . 2 The following shall determine the schedule of
monthly payments between U.S . and Retailer:
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Volume Retailer Pays U.S. Bank
0 - 750 $500
Volume U.S. Bank Pays Retailer
751 + $ . 25 per transaction
2 . 3 No fees shall be due for the calendar month during
which the ATM first becomes operational .
2 .4 Payments shall be made within 15 days after the end
of each calendar month.
2 . 5 Each month, U.S. shall supply a report, indicating
with respect to each ATM, the number of transactions and the
amount owing under the fee schedule as a result of the
transactions . Information received by Retailer in such reports
shall remain strictly confidential . U.S. shall have no
responsibility to provide names, addresses, account numbers, or
any other information by which its customers can be identified.
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SECTION 3 . TERM.
Subject to earlier termination as provided in this
Agreement, the term of this Agreement shall be five years from
the date hereof, and shall automatically be extended on a year-to-
year basis unless either party notifies the other of its intent
not to renew at least 90 days prior to the expiration of the
initial term or any subsequent annual term. In the event that at
any time after 12 months from the commencement of operations, the
ATM does not process at least 500 monetary transaction per month,
Retailer may elect to cancel this Agreement within 30 days after
notice by Retailer to U.S .
SECTION 4 . MAINTTiNANC'$ AND OPERATIONS
4 . 1 . On an ongoing basis, Retailer shall be responsible
for:
(a) the cost of electrical power sufficient to
operate the ATM;
(b) maintaining the exterior of the ATM and its
vicinity in a safe, clean, neat and orderly condition;
(c) expeditiously reporting malfunctions to U.S . ' s
central network control site;
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(d) answering customers ' questions regarding the ATM;
(e) taking all action reasonably necessary to protect
the ATM and permanent signs, including but not necessarily limited
to: (i) illumination of the ATM during Building' s open hours;
(ii) reasonable precautions against fire, vandalism and natural
disaster; and (iii) reasonable precautions against access to the
ATM when Building is closed;
(f) the cost of repair to any ATM necessitated by a
breach of an obligation imposed by this subsection 4 . 1; and
(g) notifying U. S. at least five (5) business days
before relocating or interrupting power or alarm connections to
the ATM.
(h) taking all action reasonably necessary to protect
and prevent injury to persons and property in the vicinity of an
ATM, including but not limited to reasonable precautions to
prevent robberies, assaults and accidental injuries.
The standard of care provided by Retailer to customers of the ATM
shall be the same as may be required by law, if any, for other
customers of Retailer.
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4 . 2 . On an ongoing basis, U. S . or its designated agent
shall be responsible for complete maintenance and service of the
ATM, including:
(a) regularly scheduled and unscheduled emergency
equipment diagnosis, servicing, repair and maintenance, including
replacement of parts;
(b) maintenance of communication lines and
communications links to U.S . ' s computer and to any applicable EFT
system;
(c) clearing and settlement of transactions;
(d) integration with U. S. ' s ATM alarm system; and
(e) providing cash, receipts, ribbons and other
supplies as required; and U.S . shall be responsible for all
telecommunication expenses resulting from operation of the ATM,
including payment of any line fee or charge which may be imposed.
4 .3 . U.S. will use its best efforts to ensure that the
ATM is operational and available for use at all times when
Building is open. Unless functions are eliminated pursuant to
subsection 11 .3 hereof, an ATM is operational when it is capable
of performing
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(a) for U. S. ' s customers the following functions :
(i) cash withdrawals from checking, savings and money market
accounts, (ii) cash advances from credit accounts, (iii) transfers
w
between checking, savings, money market and credit accounts, and
(iv) balance inquiries on checking, savings, money market and
credit accounts; and,
(b) for customers of other banks belonging to an EFT
system as to which U.S. is a participant, the functions allowed by
those banks . U.S. will use its best efforts to be sure that no
ATM shall be incapable of performing the functions described in
clauses (a) (i) through (iii) and (b) of the preceding sentence for
any reason, other than reasons within the scope of section 12
hereof and for performance of standard maintenance and cash
replenishment .
SECTION S . ADVERTISING.
5 . 1 . U.S . shall provide and install a sign or signs on
or above the ATM that identify it as a UBANK machine and while
U.S. is a participant in The Exchange, ACCEL, Star, the PLUS
System, Cirrus, VISA, MasterCard, American Express and Discover
Card, as a machine available to such EFT system' s cardholders .
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Such signs shall have UBANK, The Exchange, ACCEL, Star, the PLUS
System, Cirrus, VISA, MasterCard, American Express and Discover
Card logos as appropriate .
5 .2 . U. S. and Retailer will each make good faith
efforts to advertise and promote the ATM. The parties shall
coordinate and cooperate regarding advertisement and promotion of
the program. Subject to prior approval pursuant to subsection
5 .4, each party shall be entitled to use the other party' s name
and logo in advertisements and promotions and Retailer shall be
entitled to use the name and logo of any EFT system in which U.S. ,
from time to time, may be a participant, provided that such EFT
system consents to such use . U.S . shall use reasonable efforts to
promote the ATM through means such as media advertising, direct
mailings (e .g. , statement stuffers) and demonstration programs and
usage programs, as U.S . deems appropriate . U.S . shall have access
to the ATM for demonstrating the ATM to customers.
5 .3 . Subject to approval under subsection 5 .4 . , U.S.
shall be entitled to use the exterior portions of the ATM for the
placement of sales material designed to promote bank products and
services.
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5 .4 . Retailer is granted the right to approve or reject
use of its name and logo in U. S. Is advertisements and promotions,
the design of exterior signs and the sales material to be placed
on the ATM. U.S. is granted the right to approve or reject the
use, in Retailer' s advertisements and promotions, of the names and
logos of U. S. and any EFT system in which U.S. may, from time to
time, be a participant . Approval under this subsection must be
obtained prior to use or implementation and shall not be
unreasonably withheld. When promoting the ATM, Retailer must use
approved trademark names from U.S. , such as "UBANK" , when
referring to the ATM or service.
SECTION 6 . ACCESS.
6 . 1 . Retailer shall provide, at all times when Building
is open, free access to the ATM by U.S . cardholders and the
cardholders of any EFT system in which U.S . is, or may become, a
participant .
6 . 2 . Employees and agents of U.S. shall be entitled to
access to the ATM and related property within Building for
purposes of servicing and maintaining the ATM at all times while
Building is open and at such additional designated pre-opening and
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post-closing hours as are mutually agreed upon by the parties.
U.S . ' s employees and agents shall carry identification while on
Retailer premises and shall present such identification upon
demand by Retailer' s personnel . Retailer shall provide the name
or names of personnel who can be contacted or notified after
business hours in case of suspected or actual breach of security
for the location.
SECTION 7 . REMOVAL OF ATM.
7 . 1 . U.S . shall remove the ATM from Building within 30
days after the expiration or termination of this Agreement .
7 .2 . In the event that Building is closed or ceases to
be operated by Retailer, then the ATM may be removed, upon U.S. ' s
option, either to another of Retailer' s locations which is
acceptable to both parties or to another location not associated
with Retailer. Upon closure of Building, Retailer shall have no
further liability hereunder, except for fees and any other
liabilities accruing prior to closure .
7 . 3 . In the event that at any time after 12 months from
the commencement of operations, the ATM in Building does not
process an average of at least 500 monetary transactions per month
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averaged over any three consecutive calendar months, U.S. may
renegotiate the fees for such provided that the ATM perform as
specified in subsection 4 . 3 . If U. S. and Retailer are unable to
reach agreement on adjusted fees within 30 days after notice by
U.S. to Retailer, U.S . may remove such ATM from Building without
further liability hereunder, except as provided in subsection 7 .4 .
SECTION 8 . ADDITIONAL ATMs.
8 . 1 . U.S. shall have the right to renegotiate the fees
for the ATM at any time that an ATM owned by an entity other than
U.S. is operating within building through an EFT system in which
U.S. is also a participant .
8 .2 . Retailer must notify U.S . prior to the installation
of other ATM.
SECTION 9 . INSURANCE AND INDEMNITY.
9 . 1 . Retailer agrees to defend, indemnify and hold U.S. ,
its agents, employees, successors and assigns harmless from any
and all liability, claims, damages or loss, including attorney
fees, costs and expenses, arising out of or resulting from (a)
Retailer' s performance of or failure to perform its obligations
under this Agreement, unless such liability, claim, damage or loss
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is caused by U.S. ' intentional misconduct; or (b) Retailer' s
negligence, gross negligence or intentional misconduct . Retailer
shall obtain and maintain a policy of comprehensive general
liability insurance that insures U.S. against any loss or
liability arising from or relating to the presence or operation of
ATM on Retailer' s premises . Such insurance shall be in an amount
of not less than $1, 000, 000 for injury to or death of one or more
persons in any one accident or occurrence and in an amount of at
least $1, 000, 000 for property damage liability. The insurance
required by this provision shall provide that it will not be
canceled without thirty (30) days prior notice to U.S. A
certificate of insurance shall be furnished to U.S. upon request .
9 .2 . U.S. agrees to defend, indemnify and hold Retailer,
its agents, employees, successors and assigns harmless from any
and all liability, claims, damages or loss, including attorney
fees, costs and expenses, arising out of or resulting from (a)
U.S. ' performance of or failure to perform its obligations under
this Agreement, unless such liability, claim, damage or loss is
caused by Retailer' s intentional misconduct; or (b) U.S. '
negligence, gross negligence or intentional misconduct . U.S.
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shall obtain and maintain a policy of comprehensive general
liability insurance which names Retailer as an additional insured
and insures Retailer against any loss or liability arising from or
relating to the presence or operation of the ATM on Retailer' s
premises . Such insurance shall be in an amount of not less than
$1, 000, 000 for injury to or death of one or more persons in any
one accident or occurrence and in an amount of at least $1, 000, 000
for property damage liability. The insurance required by this
provision shall provide that it will not be canceled without
thirty (30) days prior notice to Retailer. A certificate of
insurance shall be furnished to Retailer upon request .
SECTION 10 . DF.FL=.
10 . 1 . If U.S . or Retailer defaults in making payments
due to the other party, and such default continues for 20 or more
days after the receipt of written notice of such default, then the
other party may terminate this Agreement upon ten days ' subsequent
written notice to the defaulting party. Retailer shall have no
proprietary interest in or lien or right of restraint upon the
ATM, contents of the ATM, or any other associated fixtures or
equipment used for holding or processing of cash or personal
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property. If U.S . or Retailer defaults in making a payment, the
amount due shall bear interest from the date due until paid at a
rate equal to U. S . ' s announced prime rate, plus two percent per
annum.
10 . 2 . If an ATM becomes inaccessible to cardholders for
14 or more consecutive calendar days due to any cause whatsoever,
including labor disputes, but not including causes within the sole
control of U.S. and causes referred to in section 12 hereof, then
U.S. may declare Retailer in default with respect to such ATM,
remove the ATM and enforce any other rights it may have pursuant
to law.
10 . 3 . In the event that U.S . or Retailer voluntarily
files, or consents to the filing of, a petition under any
bankruptcy law or other law for the relief of debtors, or shall
make a general assignment for the benefit of creditors, or shall
admit in writing its inability to meet its debts generally as they
mature or shall consent to the appointment of a receiver or
liquidator or trustee for it or for all or substantially all of
its property, or if there should be entered against it an order
adjudicating it, a debtor under the United States Bankruptcy Code
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or bankrupt or insolvent, or any order appointing a receiver,
liquidator or trustee for it or for all or substantially all of
its property or approving as properly filed a petition seeking a
reorganization, readjustment, arrangement, composition or other
relief under any bankruptcy law or other law for the relief of
debtors, which order shall have continued, unstayed and in effect,
for 30 days, then the other party may, in addition to exercising
any and all other rights that it may have, immediately, without
notice, terminate this Agreement and remove the ATM.
10 .4 . Except as otherwise specifically provided in this
Agreement, if either party fails to perform any of the obligations
imposed under this Agreement, and such failure continues for 30 or
more days after receipt of written notice from the other party
thereof, the other party may, at its option, terminate this
Agreement .
10 . 5 . All rights and remedies in this Agreement are non-
exclusive and in addition to any other rights and remedies
permitted by law, unless expressly stated otherwise herein.
SECTION 11 . REGULATORY COMPLIANCE AND EFFECT.
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11 . 1 . In performing hereunder, each party shall comply
with all applicable laws.
11 .2 . This Agreement is subject to and contingent upon
U.S. obtaining all necessary regulatory authorizations, consents
and approval for the operation, as contemplated hereunder, of the
ATM. U.S. agrees, at its sole cost and expense, to use its best
efforts to obtain such consents and approvals.
11. 3 . In the event that any legislative, judicial or
administrative law, rule or order or other governmental action
makes this Agreement illegal or prohibits the placement and
operation of the ATM in Building or casts a reasonable doubt upon
the legality of this Agreement and the placement and operations of
ATM hereunder, U.S. may terminate this Agreement and remove the
ATM without further liability hereunder, except as provided in
subsection 7 .4 hereof .
11 .4 . In the event that any legislative, judicial,
administrative or other governmental action restricts the use of
the ATM so as to make their continued operation unprofitable or
undesirable, U.S . may terminate this Agreement and remove the ATM,
without further liability hereunder except as provided in
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subsection 7 .4 hereof, or curtail the operation of the ATM with
respect to Retailer, including the elimination of one or more of
the ATMs ' functions listed in subsection 4 . 3 hereof.
11 . 5 . The parties agree that if any provision of this
Agreement is determined to be void by any court of competent
jurisdiction, then, if reasonably possible, such a determination
will not affect any other provision of this Agreement, all of
which provisions will remain in effect .
11 . 6 . Retailer will be responsible for ensuring that
access to the ATM complies with the provisions of the Americans
with Disabilities Act .
11 . 7 . As and to the extent required by federal law, the
parties will to the extent applicable to each party be bound by
and comply with the provisions of the following, all of the
following being hereby expressly incorporated by reference as
though fully set forth herein: (a) Executive Order No. 11246, as
amended, the Equal Employment Opportunity clause set forth in that
Executive Order, and the statues, rules, regulations and orders
issued or adopted pursuant to the foregoing, (b) the Vietnam Era
Veterans Readjustment Assistance Act of 1974 and the Vietnam Era
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Veterans Readjustment Assistance Act . of 1972, as amended,
Executive Order 11701, and the Affirmative Action clause, statues,
rules, regulations and orders issued or adopted pursuant to the
foregoing, and (c) the Rehabilitation Act of 1973 , as regulations
and orders issued or adopted pursuant to the foregoing.
SECTION 12 . FORCE MAJEURE.
The parties shall be excused from the performance of any
obligation imposed herein for any period and to the extent that a
party is prevented from performing such obligation, in whole or in
part, as a result of delays caused by the other party or third
parties, an act of God, war, civil disturbance, court order, or
other cause beyond its reasonable control, including failures or
fluctuations in electrical power, heat, light, air-conditioning,
or telecommunications equipment, and such nonperformance will not
be a default hereunder or a ground for termination thereof .
SECTION 13 . CONFIDENTIALITY.
This section intentially left blank.
SECTION 14 . WARRANTIES OF AUTHORITY•
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the ATM with respect to Retailer, including the elimination of one
or more of the ATMs ' functions listed in subsection 4 .3 hereof .
11 . 5 . The parties agree that if any provision of this
Agreement is determined to be void by any court of competent
jurisdiction, then, if reasonably possible, such a determination
will not affect any other provision of this Agreement, all of
which provisions will remain in effect .
11 . 6 . Retailer will be responsible for ensuring that
access to the ATM complies with the provisions of the Americans
with Disabilities Act .
11 . 7 . As and to the extent required by federal law, the
parties will to the extent applicable to each party be bound by
and comply with the provisions of the following, all of the
following being hereby expressly incorporated by reference as
though fully set forth herein: (a) Executive Order No. 11246, as
amended, the Equal Employment Opportunity clause set forth in that
Executive Order, and the statues, rules, regulations and orders
issued or adopted pursuant to the foregoing, (b) the Vietnam Era
Veterans Readjustment Assistance Act of 1974 and the Vietnam Era
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Veterans Readjustment Assistance Act . of 1972, as amended,
Executive Order 11701, and the Affirmative Action clause, statues,
rules, regulations and orders issued or adopted pursuant to the
foregoing, and (c) the Rehabilitation Act of 1973, as regulations
and orders issued or adopted pursuant to the foregoing.
SECTION 12 . FORCE MAJEURE.
The parties shall be excused from the performance of any
obligation imposed herein for any period and to the extent that a
party is prevented from performing such obligation, in whole or in
part, as a result of delays caused by the other party or third
parties, an act of God, war, civil disturbance, court order, or
other cause beyond its reasonable control, including failures or
fluctuations in electrical power, heat, light, air-conditioning,
or telecommunications equipment, and such nonperformance will not
be a default hereunder or a ground for termination thereof .
SECTION 13 . CONFIDENTIALITY.
This section intentially left blank.
SECTION 14 . WARRANTIES OF AUTHORITY.
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Retailer warrants and represents to U.S. that the
execution and delivery of this Agreement and any related documents
and the performance of the provisions hereof have been duly
authorized by all necessary corporate action on its part, and this
Agreement has been duly and validly executed and delivered by it
and constitutes a valid and legally binding agreement enforceable
against it in accordance with its terms, and, neither the
execution and delivery of this Agreement and related documents nor
the performance of the provisions hereof is or will constitute a
violation of any contract, indenture or other agreement or
relationship to which it is party or by which it is bound.
SECTION 15 . ASSIGNMENT.
Retailer may not assign its rights under this Agreement
without the written consent of U.S. In the event of an
assignment, the assigning party shall remain liable for the
performance of all covenants imposed on such party in this
Agreement and the assignee shall be subject to all the terms and
conditions in this Agreement . Consent to an assignment shall not .
be unreasonably withheld.
SECTION 16 . RIGHTS OF THIRD PARTIES.
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By entering into this Agreement the parties hereto do not
intend to benefit or confer any right upon any individual or
entity not a party hereto. In no event shall anyone other than
the parties hereto be entitled to enforce any of the terms of this
Agreement .
SECTION 17 . RE ATIONSNTP OF THE PARTIES .
It is not the intention or purpose of this Agreement to
create any type of partnership relation or joint venture. It is
understood and acknowledged that U.S . is operating as an
independent contractor.
SECTION 18 . NOTICES .
Notices permitted or required by this Agreement shall be
in writing, sent by first-class mail with postage pre-paid,
certified mail or registered mail, addressed to:
Retailer: City Of Kent
220 4th Avenue South
Kent, Washington, 98032-5895
ATTN:
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U.S. . U.S . Bancorp
Manager: UBANK Product Management
Post Office Box 4412
Portland, Oregon 97208
Notices provided pursuant to this section shall be effective two
days after deposit in United States mail . Either party may change
its address by providing notice of such as provided herein.
SECTION 19 . INTERPRETATION.
The law of the state of Washington shall apply to the
interpretation and enforcement of this Agreement .
SECTION 20 . BINDING EFFECT.
This Agreement shall be binding upon and inure to the
benefit of the successors and assigns of the respective parties
hereto; provided, however, that this Agreement and all rights
hereunder may not be assigned except as specified herein.
SECTION 21 . ATTORNEY FEES .
If either party institutes any suit or action to enforce
any covenant or agreement hereof, the prevailing party shall be
entitled to recover such sum of money as the court may adjudge
reasonable as attorneys ' fees in such suit or action, including
any appeals taken by either party in such suit or action.
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SECTION 22 . EXECUTION IN COUNTERRAR
This Agreement may be executed in any number of
counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall
be deemed to be an original and all of which when taken together
shall constitute but one and the same instrument .
SECTION 23 . WAIVER.
No covenant, agreement or condition of this Agreement -
shall be deemed waived unless expressly waived in writing. The
failure of either party to require strict performance by the other
party of any covenant, agreement or condition shall not stop or
otherwise affect such party' s right to enforce the same, nor be a
waiver of such party' s right to require strict performance in the
future.
SECTION 24 . ENTIRE AGREEMENT.
This Agreement is the entire agreement between the
parties and supersedes any written or oral negotiations or
understandings, and any such negotiations or understandings are
merged herein. Any modification or amendment of this Agreement
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must be in writing and signed by an authorized representative of
both parties .
IN WITNESS WHEREOF, the parties hereto have duly executed
this Agreement as of the day and year first above written.
U.S . BAN RP
By
T i t f)e . Szh B-ft v c c'e rAg--I A 1i'V j
CITY OF KENT
By:
Title : `� �:,n��l� K-
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