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DATE: December 4, 2013 CONSENT AGENDA
SUBJECT: AWARD RFP 07-14 FOR AUTOMATED TELLER MACHINE (ATM)
LICENSE AGREEMENT TO MOBILEMONEY, INC.
FROM: David H. Ready, City Manager
BY: AIRPORT
SUMMARY
The City Council will consider approval of a new License Agreement for automated
teller machine (ATM) services at the Palm Springs International Airport.
RECOMMENDATION:
1. Approve award of license agreement to MobileMoney, Inc. to provide Automated
Teller Machine (ATM) Services at the Airport effective January 4, 2014, through
January 3, 2017, and two one-year options.
2. Authorize the City Manager to execute all necessary documents.
STAFF ANALYSIS:
The availability of Automated Teller Machine (ATM) services is an important service
feature at Palm Springs International Airport and the current contract for supporting
these services will expire on January 3, 2013. In preparation for this situation, City
Procurement issued and posted to the City's website a Request for Proposals (RFP 7-
14) on October 10, 2013, with a closing date of October 31, 2013. Twenty financial
institutions, including local firms, were solicited with the notice of RFP published in the
Desert Sun on October 12, 2013. Four proposals were received and evaluated by a
committee composed of Airport and Finance staff.
The proposals were rated on the following criteria:
1. Transaction fee to the City
2. Customer transaction fee
3. Completeness of proposal
4. Background and experience of firm
ITEM NO.
City Council Staff Report
December 4, 2013 -- Page 2
ATM License Agreement Award
5. Sufficiency of equipment
6. Local Preference
The four proposals received the following overall scores:
1. MobileMoney, Inc. 84.000%
2. ATMOne Voltage Management 77.667%
3. Big Apple Services & ATM, Inc. 76.667%
4. Universal Money 72.333%
MobileMoney, Inc. proposed keeping the customer fee at $3.00 per withdrawal with no
other customer transaction fees. MobileMoney proposed a transaction fee to the City of
$2.00, an increase from the current $1.80. This firm has been in the ATM business for
sixteen years and currently has 4,800 full-service ATMs throughout the United States
dispensing over $1.2 billion dollars in 2012. The proposed new license agreement will
begin January 4, 2014 and continue to provide three ATMs at the Airport: one unit in
the main terminal and one in each of the two concourses. The term of the license
agreement will be for up to five years consisting of a three year base term and two one-
year options.
FISCAL IMPACT:
The revenue generated from the ATM License Agreement is expected to be at least
similar to the current $25,000 per annum.
Thomas olan, A.A.E.
Executive Director, Airport
David H. Ready, Cttyl>466er
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LICENSE AGREEMENT FOR
AUTOMATED TELLER MACHINE
(Palm Springs International Airport)
THIS LICENSE AGREEMENT ("License') is made and entered into, to be effective the
4th day of January, 2014, by and between the CITY OF PALM SPRINGS, a charter city and
California municipal corporation ("City"), and MobileMoney, Inc., a California corporation
("Licensee"). City and Licensee may hereinafter be referred to individually as a "Party" and
collectively as "Parties."
RECITALS
A. City is the fee owner of that real property known as the Palm Springs
International Airport, located at 3400 East Tahquitz Canyon Way in the City of Palm Springs,
California ("Property").
B. The Property consists of an international airport terminal and adjacent buildings.
C. City believes that travelers and visitors using the City's airport terminal and
related facilities would benefit from the convenience and accessibility of automated teller
machines (ATM's") located within the Property.
D. Licensee is a federally insured bank desiring to operate three (3) ATM's within
the Property.
E. Pursuant to a request for proposals, City has selected Licensee to install,
maintain, and operate ATM's, as described in the Scope of License (Exhibit `A" to this License),
within the airport terminal of the Property.
NOW, THEREFORE, in consideration of the mutual covenants, promises and conditions
set forth herein, the Parties hereto incorporate the recitals set forth above and further agree as
follows:
1.0 SERVICES OF LICENSEE
1.1 Grant of Access. City hereby grants to Licensee, its employees and agents,
a non-exclusive license and permission to enter upon and use a portion of the Property
("License Area") for the limited purposes of operating ATM's. A site plan for the Property
depicting the License Areas, as well as the approximate location for the ATM's, is attached to
this License as Exhibit "B". The License granted herein shall be valid for the term set forth below
only. Licensee expressly acknowledges that this License is nonexclusive and nothing in this
License shall be construed to grant or authorize the granting of an exclusive right within the
meaning of Section 308a of the Federal Aviation Act of 1958 (49 U.S.C. 1349a). Licensee
further acknowledges that the City operates a commercial and public airport on the Property,
such that City's employees, agents, tenants, and the general public, including the traveling
public and users of commercial airline services may also access the License Areas. For the
purpose of this License, the term "Licensee" includes the heirs, representatives, successors in
interest, and assigns of Licensee.
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1.2 General Scope of Use. Pursuant to this License and for the term provided
in this License, Licensee may use the License Areas to install, maintain, and operate a general
ATM kiosk, as provided in the Scope of License. The final design of the ATM kiosk, the precise
location of the ATM kiosk, and manner in which the ATM kiosk will be installed and maintained
are subject to the review and approval by the City's Director of Aviation prior to installation of the
ATM kiosk. Licensee may not use the ATM's to advertise for other businesses or events;
however, Licensee may have one sign on the ATM's identifying Licensee as the operator of the
ATM's. The ATM's shall not incorporate features to attract members of the public for purposes
other than the use of the ATM's.
1.3 Preparation of the License Areas.
1.3.1 Familiarity with Requirements. Licensee warrants that Licensee: (a) has
thoroughly investigated and considered the Scope of License and all work and requirements
specified in the Scope of License and otherwise expected of the Licensee; (b) has carefully
considered how the Scope of License and the work and requirements should be performed and
provided; and (c) fully understands the facilities, difficulties, and restrictions (including but not
limited to all requirements of the federal government) attending performance of the Scope of
License and the work and requirements under this License. Licensee has fully investigated the
License Areas and is fully acquainted with the conditions existing in the License Areas. Should
the Licensee discover any latent or unknown conditions which will materially affect the
performance of the Scope of License, Licensee shall immediately inform the City's Director of
Aviation of such fact and shall not proceed except at Licensee's risk until written instructions are
received from the City's Director of Aviation.
1.3.2 Installation. All costs of installation shall be borne by the Licensee and
Licensee shall reimburse the City for any costs the City incurs in preparing the License Areas
for use by the Licensee, including any arrangement or work performed to provide electrical
power and telephone service to the License Areas accessible to the ATM kiosk location. The
ATM kiosk shall not be installed or placed into operation until the City has been fully reimbursed
its costs as provided in this Subsection.
1.4 Regulations. Licensee shall ensure that the use of the License Areas by
Licensee and its agents, officers, and employees (collectively "Licensee's Parties") during the
Term comply with all federal, state, and local laws and ordinances.
1.5 Licenses, Permits. Fees. and Assessments. Licensee shall obtain, at its sole cost
and expense, such licenses, permits, and approvals as may be required by law for the
performance of the services required by this License. Licensee shall have the sole obligation to
pay for any fees, assessments, and taxes, plus applicable penalties and interest, which may be
imposed by law and arise from or are necessary for the Licensee's performance of the services
required by this License, and shall indemnify, defend, and hold harmless City against any such
fees, assessments, taxes, penalties, or interest levied, assessed, or imposed against City
hereunder.
1.5.1 Sales and Use Tax. Licensee shall be solely responsible for the payment of all
sales and use taxes relating to any taxable transactions in connection with the operation of the
ATM's.
1.5.2 Real Property Taxes. The parties expressly acknowledge that, as a result of this
License, the License Areas may become subject to real property taxes and that, in addition to
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the License Fee, Licensee shall pay any and all annual real estate taxes and assessments
levied upon the License Areas (including any possessory interest taxes), as well as taxes of
every kind and nature levied and assessed in lieu of, in substitution for, or in addition to, existing
real property taxes. Such amount shall be paid on the date that is twenty (20) days prior to the
delinquent date or, if City receives the tax bill, ten (10) days after Licensee's receipt of a copy of
the tax bill from City, whichever is later.
1.6 Licensee's Proposal. The Scope of License shall include the Licensee's
proposal, "Exhibit C" to this Agreement. In the event of any inconsistency between the terms of
such proposal and this License, the terms of this License shall govern. In the event of any
inconsistency with the terms of Exhibit "C" and Exhibit "A", the terms of Exhibit "A" shall govern.
1.7 Security.
1.7.1 General. The parties acknowledge that the security of the public, the License
Areas, and the ATM's is a priority. For this reason, Licensee shall implement safeguards to
minimize security breaches. The ATM's shall be appropriately affixed to the floor of the License
Areas in the manner provided in the Scope of License. An internal camera in the ATM's shall
capture the physical image of all ATM users, which may be used in the event of a dispute, theft,
or fraud.
1.7.2 Armored Courier. At all times during the term of this License, Licensee shall
maintain an agreement with an armored and bonded courier to provide service to the ATM's for
cash fills, balancing, supply replenishment, and similar matters. Licensee shall schedule cash
fills either weekly or bi-weekly, depending upon the need for cash. Licensee shall be
responsible for securing such security clearances as the federal government may require for
such courier to have access to the License Areas.
1.7.3. Additional Security. Licensee shall be solely responsible for the cost of
any additional security deemed necessary in connection with the ATM's.
1.8 Maintenance. Licensee shall maintain the ATM's and all utilities providing
services to the ATM's in a first class condition, as needed or as may be directed by the City's
Director of Aviation, at Licensee's sole cost and expense. When utility maintenance is required,
Licensee shall so notify the City's Director of Aviation and City shall, in conjunction with any
applicable utility company, make the necessary repairs. Any costs incurred by City in connection
with such repair of utilities for the ATM's shall be reimbursed by Licensee. As further discussed
in Subsection 5.2, Licensee shall have the sole obligation to maintain the License Areas and
adjacent property free from waste, such as ATM's receipts, which may be generated in
connection with the use of the ATM's.
1.9 Free From Liens. Licensee shall keep the Property and the License Areas
free from any liens arising out of any work performed, material furnished, or obligation incurred
by Licensee or alleged to have been incurred by Licensee.
2.0 COMPENSATION
2.1 License Fee. In exchange for the non-exclusive use of the License Areas
pursuant to this License, Licensee shall pay the City, within the times and manner set forth
herein, the amount of $ 2.00 per transaction for each transaction occurring at the ATM's
installed on the Licensed Areas. This license fee shall be paid from a portion of, not in addition
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to, any transaction convenience fee received by Licensee. However, should Licensee elect to
not charge a transaction fee to cardholders of Licensee's bank or any other customer(s) of the
ATM's, Licensee will nonetheless pay City the license fee for each transaction conducted at the
ATM's. Transaction herein is defined as any withdrawal or any other surchargable transactions.
2.2 Method of Payment. Licensee shall be solely responsible for collecting all
compensation from ATM's customers or their respective financial institutions. By no later than
the twentieth (20th) day of each month of the Term, including the twenty-fifth (25'h) of the month
following termination of this License, Licensee shall pay to City all fees due City under
Subsection 2.1 for the immediately preceding month, which payment shall be accompanied by
an itemized statement showing the number of customer transactions completed from the ATM's.
2.3 Payment Reports. By no later than April 30th of each year of the Term of this
License, and including April 30th on the year following the termination of this License, Licensee
shall provide audited financial statements, certified by an authorized officer of Licensee,
confirming the number of transactions performed and fees generated from the ATM's under this
License for the previous agreement year. Should the audited statements show any
underpayment by Licensee to City, Licensee shall pay such difference to City within ten (10)
days of City's demand therefore plus three percent (3%) of such underpayment. Should the
audited statements show any overpayment by Licensee to City, City shall reimburse Licensee
for the actual amount of such overpayment as a credit to the following month's revenues due to
City, provided such overpayment is confirmed by the City's Department of Finance. If an
overpayment is discovered after termination of this License, City shall reimburse Licensee the
amount of the overpayment within ten (10) business days of City's receipt of the audited
statements.
2.4 Maximum Transaction Fee. Licensee may charge a transaction fee not to
exceed three dollars ($ 3.00) to process a cash withdrawal of funds at the ATM's. Such
convenience fee shall be payable from each cardholder's bank account. The transaction fee
shall not assess against or charged the City.
3.0 TERM
Unless earlier terminated in accordance with Subsections 8.5 or 8.6 of this License, this
License shall entitle Licensee to non-exclusive use of the License Areas for the limited purposes
described herein from January 41h, 2014, through January V, 2017 ("Term"). At the sole
discretion of the City, this agreement may be extended for two additional one (1) year option
periods. At the conclusion of this Term, unless this License has been extended by the parties
by pursuant to a written agreement Licensee must remove the ATM's and surrender the License
Areas pursuant to Subsection 5.1.
4.0 COORDINATION OF WORK
4.1 Representative of Licensee. The following principal of Licensee is hereby
designated as being the principal and representative of Licensee authorized to act on its behalf
with respect to the work specified herein and make all decisions in connection therewith:
Business Development Director, MobileMoney, Inc. It is expressly understood that the
experience, knowledge, capability and reputation of the foregoing principal was a substantial
inducement for City to enter into this License. Therefore, the foregoing principal shall be
responsible, during the term of this License, for directing all activities of Licensee with respect to
the ATM's. For purposes of this License, the foregoing principal may not be replaced nor may
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his responsibilities be substantially reduced by Licensee without the express written approval of
City.
4.2 City's Director of Aviation. The City's Director of Aviation, or the Director's
designee, shall be responsible for the management of this License on behalf of the City. It shall
be the Licensee's responsibility to ensure that the City's Director of Aviation is kept informed of
all matters relating to the ATM's and the Licensee shall refer any decisions which must be made
by City to the City's Director of Aviation. Unless otherwise specified herein, any approval of City
required hereunder shall mean the approval of the City's Director of Aviation. The City's Director
of Aviation shall have authority to sign all documents on behalf of the City required hereunder to
carry out the terms of this License.
4.3 License is Assignable. This License shall become effective immediately
and is personal to the Licensee and may only be assigned with the express written consent of
the City. Any attempt to otherwise assign this license without the City's express written consent
shall be void and unenforceable and shall operate to immediately terminate this License
Agreement.
4.4 Independent Contractor. Neither the City nor any of its employees shall have
any control over the manner, mode, or means by which Licensee, its agents or employees,
perform the services required herein, except as otherwise set forth in this License. City shall
have no voice in the selection, discharge, supervision, or control of Licensee's employees,
servants, representatives or agents, or in fixing their number, compensation, or hours of service.
Licensee shall perform all services required herein as an independent contractor of City and
shall remain at all times as to City a wholly independent contractor with only such obligations as
are consistent with that role. Licensee shall not at any time or in any manner represent that it or
any of its agents or employees are agents or employees of City. City shall not in any way or for
any purpose become or be deemed to be a partner of Licensee in its business or otherwise or a
joint venturer or a member of any joint enterprise with Licensee.
5.0 PROPERTY RELATED ISSUES
5.1 Waste. Damage. or Destruction: Surrender of Property. The Licensee shall
not allow any waste, damage, or destruction to occur in or to the Property or the License Areas.
When this License terminates, upon such termination, Licensee, as its sole cost and expense,
shall repair any waste, damage, or destruction and shall restore the License Areas to that
condition existing prior to Licensee's use of the License Areas Should Licensee fail to vacate
the License Areas in a clean and undamaged condition, City may arrange for the cleaning
and/or repair of the License Areas, the cost of which will be immediately reimbursed by
Licensee, and Licensee will be additionally penalized ONE THOUSAND DOLLARS ($1,000) per
day, or portion thereof, that the License Areas is unavailable for its normal use or for the
commencement of replacement services.
5.2 Waste Receptacle and Waste Removal. Licensee shall be required to have
one permanent waste receptacle on the License Areas at all times. This requirement may be
satisfied with a waste receptacle that is incorporated into the ATM's itself, or the waste
receptacle may be a separate free standing object. Licensee shall have the sole obligation to
maintain the License Areas, and adjacent property, free from all waste, including but not limited
to ATM's receipts, which is generated in connection with the use of the ATM's. This obligation
shall require Licensee to ensure that the waste receptacle is emptied on a regular basis at
sufficient intervals to allow the waste receptacle to retain capacity for the disposal of additional
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waste.
5.3 Customer Service Help Line. Should Licensee desire to install a customer
service help line at the ATM's, Licensee shall have the sole financial responsibility to operate,
install, and maintain a telephone line to establish the help line. If City's assistance is necessary
for the installation or maintenance of such line, City's costs shall be reimbursed by Licensee.
5.5 Modification of License Area. Any future modification of the License Areas which
is required by law shall be undertaken at Licensee's sole expense, subsequent to receipt of
written approval by the City.
6.0 INSURANCE AND INDEMNIFICATION
6.1 Insurance. Prior to its ability to access the License Areas, Licensee will
provide City with proof of insurance, at Licensee's sole cost and expense, to remain in full force
and effect during the entire term of this License. The following policies of insurance shall be
maintained:
6.1.1 Workers' Compensation Insurance. Workers' Compensation Insurance in an amount
required by the laws of California and Employer's Liability Insurance in an amount not less than
ONE MILLION DOLLARS ($1,000,000) combined single limit for all damages arising from each
accident or occupational disease.
6.1.2 Commercial General Liabilitv.Commercial General Liability Insurance written on a
per-occurrence and not a claims-made or modified occurrence basis with a combined single
limit of at least ONE MILLION DOLLARS ($1,000,000) bodily injury and property damage
including coverages for contractual liability, personal injury, independent contractors, broad form
property damage, products and completed operations. The policy must include Standard ISO
CG0001 0196 Contractual Liability coverage, or its equivalent, and a Separation of Insured's
clause. There shall be no exclusions for continuing or progressive losses not known by
Licensee to exist prior to the policy inception. The policy may not contain any SIR/deductible
exceeding $25,000 and the policy must permit satisfaction of the SIR/deductible by City or its
related entities. Licensee agrees to maintain this coverage for a minimum of ten (10) years
following termination of this License.
6.1.3 Automobile Liability Insurance. A policy of comprehensive automobile liability
insurance written on a per-occurrence basis in an amount not less than ONE MILLION
DOLLARS ($1,000,000) combined single limit covering all owned, non-owned, leased, and hired
vehicles used in connection with operations occurring on the Property.
6.1.4 Other Insurance. Such other policies of insurance including, but not limited
to, casualty insurance, business interruption insurance, property insurance, and fidelity
insurance, as may be required by the nature of operations.
6.1.5 General Provisions. All of the foregoing policies of insurance shall name City
and its affiliated entities, and their respective officers, directors, agents, and employees
(collectively, "City's Parties.") as an Additional Insured and shall be primary insurance and any
insurance maintained by City shall be excess and non-contributing. Each insurer of Licensee
shall waive all rights of contribution and subrogation against City's Parties and its respective
insurers. Each of such policies of insurance shall name City's Parties. All policies of insurance
required to be obtained by Licensee hereunder shall be issued by insurance companies
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authorized to do business in California and must be rated no less than A-, VII or better in Best's
Insurance Guide. Prior to engaging in any operations hereunder, Licensee shall deliver to City
certificate(s) of insurance with the required endorsements evidencing the coverages specified
above. Such policies shall not be cancelled or materially altered to the detriment of City or
Licensee without the insurer providing City with thirty (30) days' advance written notice. City
reserves the right, in its sole discretion, to require higher limits of liability coverage if, in City's
opinion, operations by or on behalf of Licensee create higher than normal hazards and risks,
and, to require Licensee to name additional parties in interest to be Additional Insured's.
Nothing in this Section shall reduce Licensee's obligations as set forth in the Indemnity
provisions of this License.
6.1.6 Waiver of Subrogation. Licensee hereby waives all rights of recovery by
subrogation. This waiver includes but is not limited to deductible or self-insured retention
clauses, inadequacy of limits of any insurance policy, limitations or exclusions of coverage,
against City, and its elected officials, officers, directors, agents, and employees, in connection
with any matters that are the subject of the License.
6.2 Indemnification by Licensee. Licensee shall indemnify, defend (with counsel
designated by City), protect and hold harmless City, City's Parties and the Releasing Parties
from and against any and all claims, demands, judgments, actions, damages, losses, penalties,
liabilities, costs and expenses (including, without limitation, attorney's fees and court costs)
arising at any time directly or indirectly from or in connection with (i) any default in the
performance of any obligation by Licensee to be performed under the terms of this License, (ii)
Licensee's use of the License Areas, or (iii) the conduct of Licensee's business or any activity,
work or things done, permitted or suffered by Licensee in or about the Property, except to the
extent caused by City's negligence or willful misconduct. The obligations of Licensee under this
Article 6 shall survive the expiration or earlier termination of this License.
Licensee, as a material part of the consideration to City, hereby assumes all risk of
damage to the License Areas, including, without limitation, injury to persons in, upon or about
the License Areas during Licensee's use of the License Areas, arising from any use of the
ATM's or other activities of Licensee or Licensee's Parties on the License Areas. Licensee
hereby waives all claims with respect thereof against City. City shall not be liable for any injury
to the License Areas, ATM's, or injury to or death of any of Licensee's Parties, or injury to the
ATM's, or injury to or death of any other person in or about the License Areas from any cause
except to the extent caused by the negligence or willful misconduct of the City or the City's
Parties.
6.3 Assumption of All Risks and Liabilities. Licensee assumes all risks and
liabilities arising out of any and all use of the License Areas by Licensee or Licensee's Parties.
7.0 REPORTS AND RECORDS
7.1 Reports. Licensee shall periodically prepare and submit to the City's
Director of Aviation such reports concerning the use of the ATM's as the City's Director of
Aviation shall require.
7.2 Records. Licensee shall keep, and require subcontractors to keep, such
books and records as shall be necessary to perform the services required by this License and
enable the City's Director of Aviation to evaluate the performance of such services. The City's
Director of Aviation shall have full and free access to such books and records at all times during
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normal business hours of City, including the right to inspect, copy, audit and make records and
transcripts from such records. Such records shall be maintained for a period of three (3) years
following completion of the services hereunder, and the City shall have access to such records
in the event any audit is required.
7.3 Ownership of Documents. All drawings, specifications, reports, records,
documents and other materials prepared by Licensee, its employees, subcontractors and
agents in the performance of this License shall be the property of City and shall be delivered to
City upon request of the City's Director of Aviation or upon the termination of this License, and
Licensee shall have no claim for further employment or additional compensation as a result of
the exercise by City of its full rights of ownership of the documents and materials hereunder.
Any use of such completed documents for other projects and/or use of uncompleted documents
without specific written authorization by the Licensee will be at the City's sole risk and without
liability to Licensee, and the City shall indemnify the Licensee for all damages resulting
therefrom. Licensee may retain copies of such documents for its own use. Licensee shall have
an unrestricted right to use the concepts embodied therein. All subcontractors shall provide for
assignment to City of any documents or materials prepared by them, and in the event Licensee
fails to secure such assignment, Licensee shall indemnify City for all damages resulting
therefrom.
7.4 Release of Documents. The drawings, specifications, reports, records,
documents and other materials prepared by Licensee in the performance of services under this
License shall not be released publicly without the prior written approval of the City's Director of
Aviation.
8.0 ENFORCEMENT OF LICENSE
8.1 Governing Law. This License shall be governed by, interpreted under, and
construed and enforced in accordance with the laws of the State of California.
8.2 Compliance with Law. All services rendered hereunder shall be provided in
accordance with all ordinances, resolutions, statutes, rules, and regulations of the City and any
Federal, State, or local governmental agency having jurisdiction in effect at the time service is
rendered.
8.3 Waiver. The waiver of any breach of any provision hereunder by City or
Licensee shall not be deemed to be a waiver of any preceding or subsequent breach hereunder.
No failure or delay of any Party in the exercise of any right given hereunder shall constitute a
waiver thereof nor shall any partial exercise of any right preclude further exercise thereof.
8.4 Severability. If any paragraph, section, sentence, clause or phrase contained in
this License shall become illegal, null or void, against public policy, or otherwise unenforceable,
for any reason, or held by any court of competent jurisdiction to be illegal, null or void, against
public policy, or otherwise unenforceable, the remaining paragraphs, sections, sentences,
clauses or phrases contained in the License shall not be affected thereby.
8.5 Termination Prior to Expiration of Term. This Section shall govern any
termination of this License. The City reserves the right to terminate this License at any time, with
or without cause, upon thirty (30) days' written notice to Licensee, except that where termination
is due to the fault of the Licensee, the period of notice may be such shorter time as may be
determined by the City's Director of Aviation. The parties further agree that if Licensee: (i) files a
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petition in bankruptcy, (ii) is adjudicated bankrupt, (iii) if a petition in bankruptcy is filed against
Licensee and not discharged within thirty (30) days, (iv) if Licensee becomes insolvent or makes
an assignment for the benefit of its creditors or an arrangement pursuant to any bankruptcy law,
or (v) if a receiver is approached for Licensee or its business during the Term of this License,
City may terminate this License upon twenty-four (24) hours' written notice to Licensee. In
addition, Licensee reserves the right to terminate this License at any time, with or without cause,
upon thirty (30) days' written notice to City. Upon receipt of any notice of termination during the
Term, Licensee shall immediately cease the operation of the ATM's, and shall clean, repair and
vacate the License Areas.
8.6 Termination for Default. If termination is due to the failure of Licensee to
fulfill its obligations under this License, including but not limited to the provisions of Section 10 of
this License, City may give Licensee thirty (30) days' written notice of the termination and the
reasons therefore to Licensee. Licensee may be found to be in default for Licensee's failure to
comply with any term or condition of this License, to acquire and maintain all required insurance
policies, bonds, licenses, and permits, or failure to make satisfactory progress in performing
under this License. Upon termination under this provision, all goods, materials, documents, data
and reports prepared by Licensee under this License shall become the property and be
delivered to the City on demand. The City may, upon termination of this License, procure, on
terms and in the manner that it deems appropriate, materials or services to replace those under
this License.
8.7 Attorney's Fees. If either party to this License is required to initiate or
defend or made a party to any action or proceeding in any way connected with this License, the
prevailing party in such action or proceeding in addition to any other relief which may be
granted, shall be entitled to reasonable attorney's fees and costs.
9.0 CITY OFFICERS AND EMPLOYEES; NON-DISCRIMINATION
9.1 Non-liability of City Officers and Employees. No officer or employee of the City
shall be personally liable to the Licensee, or any successor in interest, in the event of any
default or breach by the City or for any amount which may become due to the Licensee or to its
successor, or for breach of any obligation of the terms of this License.
9.2 Conflict of Interest. No officer or employee of the City shall have any financial
interest, direct or indirect, in this License nor shall any such officer or employee participate in
any decision relating to the License which effects his financial interest or the financial interest of
any corporation, partnership or association in which he is, directly or indirectly, interested, in
violation of any State statute or regulation. Licensee warrants that it has not paid or given and
will not pay or give any third party any money or other consideration for obtaining this License.
9.3 Standard Covenant Against Discrimination. Licensee covenants that, by and for
itself, its heirs, executors, assigns, and all persons claiming under or through them, that there
shall be no discrimination against or segregation of, any person or group of persons on account
of race, color, creed, religion, sex, marital status, national origin, or ancestry in the performance
of this License. Licensee shall take affirmative action to insure that applicants are employed and
that employees are treated during employment without regard to their race, color, creed,
religion, sex, marital status, national origin, or ancestry.
9.4 Americans With Disabilities Act. In its operation and maintenance of the
ATM's, Licensee shall comply with the Americans with Disabilities Act and all federal regulations
9 11
applicable under the Act.
10.0 FAA REQUIRED PROVISIONS
10.1 Airport Concession Disadvantaged Business Enterprise (ACDBE) This license
agreement is subject to the requirements of the U.S. Department of Transportation's
regulations, 49 CFR Part 23. The concessionaire or contractor agrees that it will not
discriminate against any business owner because of the owner's race, color, national origin, or
sex in connection with the award or performance of any concession agreement, management
contract, or subcontract, purchase or lease agreement, or other agreement covered by 49 CFR
Part 23.
The concessionaire or contractor agrees to include the above statements in any
subsequent concession agreement or contract covered by 49 CFR Part 23, that it enters and
cause those businesses to similarly include the statements in further agreements.
10.2 In the event of a breach of the covenants specified in Subsection 10.1 and 10.2
of this License, City shall have the right to terminate the License and to reenter and repossess
the License Areas and the facilities thereon and hold the same as if said License had never
been made or issued. This provision does not become effective until the procedures of Title 49,
Code of Federal Regulations, and Part 23 are followed and completed, including the expiration
of any appeal rights.
10.3 License shall furnish its services on a fair, equal, and not unjustly discriminatory
basis to all users thereof and it shall charge fair, reasonable, and not unjustly discriminatory
prices for its services; provided that Licensee may be allowed to make reasonable and
nondiscriminatory discounts, rebates, or other similar type of price reductions to volume
purchases or other rational, reasonable basis. Non-compliance with this provision shall
constitute a material breach of this License and in the event of such non-compliance, City shall
have the right to terminate this License and any interest in property created without liability or at
the election of the City or the United States either or both Governments shall have the right to
judicially enforce this provision.
10.4 Licensee agrees that it shall insert the above three provisions in any agreement
or contract by which Licensee grants a right or privilege to any person, partnership, or
corporation to render services to the public on the Lease Areas pursuant to this License.
Nothing in this provision shall be construed as waiving any obligations or requirements of the
Licensee pursuant to Subsection 4.3 of this License or abrogate the rights of the City pursuant
to such subsection.
10.5 The License shall be subordinate to the provisions and requirements of any
existing or future agreement between the City and the United States relative to the
development, operation, or maintenance of the Property.
10.6 This License, and all provisions hereof, shall be subject to whatever right the
United States Government now has or in the future may have or acquire, affecting the control,
operation, regulation, and taking over of the Property or the exclusive or non-exclusive use of
the Property by the United States during a time of war or national emergency.
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11.0 MISCELLANEOUS PROVISIONS
11.1 Headings. The headings of this License are for purposes of reference only
and shall not limit or define the meaning of the provisions of this License.
11.2 Counterparts. This License may be signed in any number of counterparts, each
of which will be deemed to be an original, but all of which together will constitute one instrument.
11.3 Labor Disputes. Licensee shall give prompt notice to City of any actual or
potential labor dispute which delays or may delay performance of this License.
11.4 California Law. This License shall be construed and interpreted both as to
validity and to performance of the parties in accordance with the laws of the State of California.
Legal actions concerning any dispute, claim or matter arising out of or in relation to this License
shall be instituted in the Superior Court of the County of Riverside, State of California, or any
other appropriate court in such county, and Licensee covenants and agrees to submit to the
personal jurisdiction of such court in the event of such action.
11.5 Disputes. In the event of any dispute arising under this License, the injured
party shall notify the injuring party in writing of its contentions by submitting a claim therefore.
The injured party shall continue performing its obligations hereunder so long as the injuring
party commences to cure such default within ten (10) days of service of such notice and
completes the cure of such default within forty-five (45) days after service of the notice, or such
longer period as may be permitted by the injured party; provided that if the default is an
immediate danger to the health, safety and general welfare, such immediate action may be
necessary. Compliance with the provisions of this Section shall be a condition precedent to
termination of this License for cause and to any legal action, and such compliance shall not be a
waiver of any party's right to take legal action in the event that the dispute is not cured, provided
that nothing herein shall limit City's or the Licensee's right to terminate this License without
cause pursuant to Subsection 8.5.
11.6 Rights and Remedies are Cumulative. Except with respect to rights and
remedies expressly declared to be exclusive in this License, the rights and remedies of the
parties are cumulative and the exercise by either party of one or more of such rights or
remedies shall not preclude the exercise by it, at the same or different times, of any other rights
or remedies for the same default or any other default by the other party.
11.7 Legal Action. In addition to any other rights or remedies, either party may take
legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for
any default, to compel specific performance of this License, to obtain declaratory or injunctive
relief, or to obtain any other remedy consistent with the purposes of this License.
11.8 Reservation of City Rights. City reserves the right, but shall not be obligated to
Licensee, to maintain and keep in good repair the Property or the Lease Areas. The City further
reserves the right to direct and control all activities of Licensee consistent with the provisions of
this License.
11.9 Interpretation. The terms of this License shall be construed in accordance with
the meaning of the language used and shall not be construed for or against either party by
reason of the authorship of this License or any other rule of construction which might otherwise
apply.
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11.10 Integration; Amendment. It is understood that there are no oral agreements
between the parties hereto affecting this License and this License supersedes and cancels any
and all previous negotiations, arrangements, agreements and understandings, if any, between
the parties, and none shall be used to interpret this License. This License may be amended at
any time by the mutual consent of the parties by an instrument in writing.
11.11 Corporate Authority. The persons executing this License on behalf of the parties
hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to
execute and deliver this License on behalf of said party, (iii) by so executing this License, such
party is formally bound to the provisions of this License, and (iv) the entering into this License
does not violate any provision of any other License to which said party is bound.
11.12 Notice.Any notice required or permitted to be given hereunder shall be in writing
and signed by the Party, officer or agent of the Party to whom it is to be sent, and shall be
either: (1) personally delivered to the Party to whom it is to be sent, or (2) sent via overnight
courier services, or (3) sent via certified or registered mail, return receipt requested, postage
prepaid to the respective addresses, or such other addresses as the Parties may specify in
writing:
To City: City of Palm Springs
Department of Aviation
Palm Springs International Airport
3400 East Tahquitz Canyon Way, Suite OFC
Palm Springs, California 92262-6966
To Licensee: MobileMoney, Inc.
941 Calle Negocio
San Clemente, California 92673
12
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IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the date first written
above.
ATTEST: CITY OF PALM SPRINGS
a municipal corporation
By: By:
James Thompson, City Clerk David H. Ready, City Manage
APPROVED AS TO FORM:
By:
Douglas C. Holland,City Attorney
CONTRACTOR: Check one: _Individual _Partnership_Corporation
Corporations require two notarized signatures: One from each of the following: A. Chairman of Board, President, or
any Vice President:AND B. Secretary, Assistant Secretary,Treasurer,Assistant Treasurer,or Chief Financial
Officer.
By: By:
Signature(notarized) Signature(notarized)
Name: Name:
Title: Title:
State of State of
County of County of
On before me, On before me,
personally appeared personally appeared
who proved to me on the basis of satisfactory who proved to me on basis of satisfactory
evidence to be the person(s)whose name(s) evidence to be the person(s)whose name(s)
is/are subscribed to the within instrument and is/are subscribed to the within instrument and
acknowledged to me that he/she/they and acknowledged to me that he/she/they
executed the same in his/her/their authorized executed the same in his/her/their authorized
capacity(ies),and that by his/her/their signature(s) capacity(ies),and that by his/her/their signature(s) on
the instrument the person(s), or the entity upon on the instrument the person(s)or the entity upon
behalf of which the person(s) acted, executed the behalf of which the person(s)acted,executed the
instrument. instrument.
I certify under PENALTY OF PERJURY I certify under PENALTY OF PERJURY
under the laws of the State of California that under the laws of the State of California that
the foregoing paragraph is true and correct. the foregoing paragraph is true and correct.
WITNESS my hand and official seal. WITNESS my hand and official seal.
Notary Signature: Notary Signature:
Notary Seal: Notary Seal:
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EXHIBIT "A"
SCOPE OF LICENSE
Licensee agrees to provide the following services:
A. The Licensee shall be required to provide, install, operate, and continuously
maintain in proper operating condition, at its own expense, three (3) ATM's in
the locations set forth in the attached Exhibit "B", the exact location of which
will be subject to the approval of the City's Director of Aviation.
B. An ATM is defined for purposes herein as an electro-mechanical device,
owned, operated, and maintained by the Licensee, and used by its customers
(cardholders having accounts with the Licensee or cardholders having
accounts with other financial institutions which entitles them access) for the
purpose of executing banking-related transactions solely between the
Licensee and its customers on an automated basis.
C. ATM's utilized by the Licensee during the term of the License must be new
and shall present a "First-class" appearance, technologically state of the art
upon introduction into service, and compatible with any space limitations of
the Premises. Licensee is encouraged to propose utilization of equipment
incorporating advanced design/customer service options (such as 24-hour
customer service telephone, audible instructions, multi-lingual display,
recessed keyboard, protruding writing ledge, camera providing photographic
record of each transaction or constant monitoring, dial back-up, privacy
screen, light compensating screen and touch-screen display).
D. All ATM's must, at a minimum be: 1) affiliated either with one or more
national ATM banking networks (such as CIRRUS, Plus, or Starr), and/or one
or more regional ATM banking networks) and display all such affiliations on
the exterior of the ATM's; 2) equipped with internal diagnostic equipment to
electronically signal Licensee of malfunctions that have or may cause the
ATM's to become inoperative (such as card jam, equipment failure, cash
dispensing problems, possible vandalism, electrical overloads,
communication breakdown, or an out-of-stock condition; 3) equipped with a
placard providing telephone numbers of Licensee's 24 hour customer service
department for use by card holders experiencing difficulty: 4) available for
use and operational on a 24-hour per day basis throughout the term of the
Agreement; 5) equipped with a paper waste receptacle; and 6) designed to
minimize glare and allow the user a feeling of privacy.
E. Licensee shall have the nonexclusive right, privilege and obligation to install,
operate and maintain (within the Airport)ATM's.
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F. For the purpose of operating the License as described herein, and for no
other purpose, the City will allow the selected Licensee, its employees,
subcontractors, suppliers, service persons, licensees, guests, patrons, and
invitees the right to use the areas of the Airport specified herein, including the
necessary rights of access and ingress and egress from the Premises.
G. Title to the ATM's equipment shall remain with the selected Licensee.
H. Licensee shall perform all alteration work necessary for the installation of its
ATM's at no cost to the City and subject to the indemnification clause at
Article 6.0.
I. The City will pay all utility costs related to the services provided Licensee by
under the License except telephone or any other telecommunications
charges in connection with operation of the ATM's.
J. Service and maintenance of the ATM's are as follows:
(i) Any and all first line maintenance to be provided at Bank's sole
expense.
(ii) Cash replenishment to be provided by Bank on an as-needed basis.
(iii) ATM's hardware maintenance to be supplied by Bank at Bank's
sole expense.
(iv) City shall provide for required electrical power lines and usage, as
well as telephone line and usage for ATM's.
K. Bank agrees to provide normal and reasonable maintenance to the
equipment provided for in this License. Bank agrees to take reasonable steps
to repair malfunction(s)within 24 hours.
L. In the event the City requires the ATM's to be moved after the initial
installation, all costs associated with such move shall be paid by the City.
M. By no later than June, 30 of each year of the term of this License, and
including June 30 on the year following the termination of this License,
Licensee shall provide a financial statement audited and certified by an
authorized officer of Licensee, confirming the number of transactions
performed and fees generated from the ATM's under this Agreement. Should
the audited statements show any underpayment by Licensee to City,
Licensee shall pay such difference to City within ten (10) days of City's
demand therefore plus three percent (3%) of such underpayment. Should the
audited statements show any overpayment by Licensee to City, City shall
reimburse Licensee for the actual amount of such overpayment as a credit to
the following month's revenues due to City, provided such overpayment in
confirmed by the Director of Aviation.
N. Criminal History Records Check (CHRC): The Licensee will be required to
submit to the AIRPORT, prior to commencing work in accordance with this
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License a letter authorizing specific Licensee representatives to approve the
, g p p pp
issuance of Airport Identification badges and the processing of a fingerprint
based Criminal History Records Check (CHRC) and/or an employment
history verification. Each of the Licensee's employees or representatives
requiring unescorted access to restricted areas of the Airport will be required
to successfully complete a Criminal History Records Check (CHRC) in
accordance with 49 CFR Part 1542. Employment history verification records
and/or CHRC results must be made available to the AIRPORT, the
Transportation Security Administration (TSA) and/or Federal Aviation
Administration (FAA) immediately upon request.
1. Under certain circumstances, and out of control of the Airport, security
measures may change on short notice. No deviations from any
security measure shall be allowed at any time.
2. All Licensee personnel requiring unescorted access to restricted
areas of the Airport, prior to the issuance of an Airport Identification
badge, must successfully complete a fingerprint based Criminal
History Records Check (CHRC). In accordance with CFR 49
1542.209, the CHRC must disclose that the applicant has not been
convicted, or found not guilty by reason of insanity, of any of the
disqualifying crimes listed below or as stated in 49 CFR 1542.209,
during the 10 years before the date of the individual's application for
unescorted access authority, or while the individual has unescorted
access authority. The disqualifying criminal offenses are as follows:
a. Forgery of certificates, false marking of aircraft, and other
aircraft registration violation; 49 U.S.C. 46306.
b. Interference with air navigation; 49 U.S.C. 46308.
C. Improper transportation of a hazardous material; 49 U.S.C.
46312.
d. Aircraft piracy; 49 U.S.C. 46502.
e. Interference with flight crew members or flight attendants; 49
U.S.C. 46504,
f. Commission of certain crimes aboard aircraft in flight; 49
U.S.C. 46506.
g. Carrying a weapon or explosive aboard aircraft; 49 U.S.C.
46505.
h. Conveying false information and threats; 49 U.S.C. 46507.
i. Aircraft piracy outside the special aircraft jurisdiction of the
United States; 49 U.S.C. 46502(b).
j. Lighting violations involving transporting controlled
substances; 49 U.S.C. 46315.
k. Unlawful entry into an aircraft or airport area that serves air
carriers or foreign air carriers contrary to established security
requirements; 49 U.S.C. 46314.
I. Destruction of an aircraft or aircraft facility; 18 U.S.C. 32.
M. Murder.
n. Assault with intent to murder.
o. Espionage.
P. Sedition.
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q. Kidnapping or hostage taking.
r. Treason.
S. Rape or aggravated sexual abuse.
t. Unlawful possession, use, sale, distribution, or manufacture of
an explosive or weapon.
U. Extortion.
V. Armed or felony unarmed robbery.
W. Distribution of, or intent to distribute, a controlled substance.
X. Felony arson.
y. Felony involving a threat.
Z. Felony involving—
(1) Willful destruction of property;
(2) Importation or manufacture of a controlled substance;
(3) Burglary;
(4) Theft;
(5) Dishonesty, fraud, or misrepresentation;
(6) Possession or distribution of stolen property;
(7) Aggravated assault;
(8) Bribery; or
(9) Illegal possession of a controlled substance punishable by
a maximum term of imprisonment of more than 1 year.
aa. Violence at international airports; 18 U.S.C. 37.
bb. Conspiracy or attempt to commit any of the criminal acts listed in
this paragraph (d).
3. The AIRPORT utilizes an electronic fingerprint machine, which will be
utilized for the taking and submission of fingerprints.
4. Generally, CHRC results are returned to the AIRPORT from the TSA
within 3-5 business days.
O. Employee Security Badges
1. All Licensee personnel who will be performing guard services must
obtain, and conspicuously display on their person at all times when
they are on duty at the Airport, an Airport issued security identification
badge.
2. The appropriate badge may be obtained at the Airport Operations
Center located in the terminal building. The cost for each identification
badge, CHRC and stolen and/or lost identification badges are
delineated in the City's Comprehensive Fee Schedule.
3. All badges are to be returned to the Airport when the services are no
longer required.
4. In order to obtain a Secured Area identification badge, each Licensee
employee must have satisfactorily completed the aforementioned
CHRC and successfully completed a required 2 hour training class on
airport security. Attendance of the class and subsequent issuance of
the security identification badge may take longer than 3 hours per
17
person.
a. SIDA training will be provided by the Airport and will be
scheduled at a mutually agreeable time to the Licensee and
the Airport.
P. Armored Car Service
1. The Licensee armored car service will be required to submit to the
AIRPORT, prior to commencing work in accordance with this License,
a Representative Identification List of all armed couriers and
maintenance technicians that will need access to a restricted area.
Armed personnel will be escorted by an Airport Law Enforcement
Officer at all times they are in an Airport restricted area.
2. The Licensee's armored car service will be required to submit to the
AIRPORT, prior to commencing work in accordance with this
agreement, a copy of the service's current Firearms Policy. Said policy
shall be approved by the Airport prior to the start-up of service.
3. The Licensee's armored car service shall comply, at all times, with the
service's Firearms Policy, all local rules and regulations, and all
federal guidelines and regulations regarding the carrying of firearms at
the Airport.
Q. Installation of all ATM's shall be completed within 30 days of the effective
date of this License. At least three (3) days before Licensee installs the
ATM's, Licensee shall first contact the City's Director of Aviation to coordinate
a convenient time and date install the machines. Licensee warrants that the
installation of the ATM's shall be performed in no more than two (2)
consecutive days. Licensee shall assure that all such work is performed in a
manner so as to minimize any disruptions or interference of Airport
operations, including but not limited to, Airport pedestrian traffic. Licensee
shall further assure that any work performed hereunder shall be in a
competent, professional and clean manner. Licensee shall completely clean
all construction equipment and materials upon completion of the work.
Service and maintenance of the ATM's shall be conducted on an as-needed
basis.
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