HomeMy WebLinkAbout2/2/2005 - STAFF REPORTS (9) DATE: February 2, 2005
TO: City Council
FROM: Procurement and Contracting Manager and Assistant City Manager
SUBJECT Approve Agreement with Canyon National Bank for Downtown Automated Teller Machine
RECOMMENDATION
It is recommended that the City Council approve a license agreement with Canyon National Bank to
operate an automated teller machine (ATM) in the Village Green.
SUMMARY
The City issued RFP 07-03 to provide ATM services in the Village Green. This action would award an
agreement to Canyon National Bank of Palm Springs to provide those services.
BACKGROUND
In 2003, the City's Downtown Development Director recommended that the City consider installing an
ATM machine in the downtown area as a convenience feature for local residents and visitors.
Subsequent to that recommendation, the City mailed a Request for Proposals (RFP 07-03) to six (6)
local banking institutions to provide ATM services on City owned property in the Village Green.
Two proposals, one from Canyon National Bank and the other from Palm Springs City Employee Federal
Credit Union, were received and evaluated by an evaluation committee consisting of the Director of
Procurement & Contracting, the Assistant City Manager and the Downtown Development Director. The
Committee felt that Canyon National Bank had the best proposal and was better qualified to provide the
required equipment and services.
Canyon National is proposing to locate a freestanding ATM kiosk next to Heminger's Fudge and
Chocolates. The Director of Planning and Zoning has reviewed the ATM's specifications and supporting
documentation provided by the Bank and has granted a Land Use Permit.
The City Attorney's Office has drafted the attached license agreement granting Canyon National non-
exclusive use of the sidewalk area adjacent to Heminger's. Under this proposed license agreement,
Canyon National Bank will pay the City the greater amount of $200 per month or $0.20 per
surchargeable transaction. The term of the agreement is for five (5) years expiring on June 30, 2009.
Canyon National is required to reimburse the City for all minor work needed to prepare the site for the
ATM equipment. In addition, Canyon National must provide a waste receptacle and maintain the area
around the ATM throughout the term of the agreement. q
BY-uoce ohn on �As
,y L. Butzlaff
Procurement & � ontracting Manager si nt it M na r
ATTACHMENTS:
1. Minute Order
2. License Agreement
RECORDING REQUESTED BY )
AND WHEN RECORDED, MAIL TO: )
CITY CLERK )
City of Palm Springs )
P.O. Box 2743 )
Palm Springs, CA 92263 )
(Space Above This Line for Recorder's Office Use Only)
(Exempt from Recording Pee per Gov Code§6103)
LICENSE AGREEMENT FOR
AUTOMATED TELLER MACHINE
THIS LICENSE AGREEMENT ("License") is made and entered into, to be effective the
_ day of 2005, by and between the CITY OF PALM SPRINGS, a charter city
("City"), and CANYON NATIONAL BANK ("Licensee"). City and Licensee may hereinafter
be referred to individually as a"Party" and collectively as "Parties."
RECITALS
WHEREAS, City is the fee owner of that real property located at 211 South Palm Canyon
in the City of Palm Springs, California("Property"); and
WHEREAS, the Property consists of a building, which is currently occupied by
Heminger's Fudge & Chocolates ("Tenant"), an adjacent sidewalk area; and
WHEREAS, City believes that the businesses in its downtown area would benefit from
the addition of an automated teller machine ("ATM"); and
WHEREAS, Licensee is a federally insured bank desiring to operate an ATM on the
Property; and
WHEREAS, pursuant to a request for proposals, City has selected Licensee to install,
maintain and operate the ATM, as described in Licensee's proposal, on a portion of the sidewalk
area 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, agents and
guests, a non-exclusive license and permission to enter upon and use a portion of the Property
("License Area") for the limited purposes of operating an ATM. A site plan for the Property
depicting the License Area, as well as the approximate location for the ATM, is attached hereto
and incorporated herein by this reference as Exhibit "A". The License granted herein shall be
valid for the term set forth below only.
01003/0001/27771.05
Licensee expressly acknowledges that this License is nonexclusive and that Tenant
operates a commercial establishment on the Property, such that Tenant's employees, agents and
guests, as well as members of the public, may also access the License Area.
1.2 Scope of Use. Pursuant to this License and for the tern provided herein, Licensee
may use the License Area to maintain and operate a general ATM kiosk, which shall be a
10751X Diebold model as set forth in Licensee's proposal which is attached hereto and
incorporated herein by this reference as Exhibit `B". The design of the kiosk is subject to
approval by the City. Licensee may use the ATM to advertise City events and services.
Licensee may not use the ATM to advertise other businesses or events. However, Licensee may
have one sign on the ATM identifying Licensee as the operator of the ATM. Said sign shall
comply with the City's sign ordinance. The ATM shall not incorporate features to attract
members of the public for purposes other than the use of the ATM.
1.3 Preparation of the License Area.
1.3.1 Slab. The ATM must be installed upon and anchored to a concrete slab.
The concrete slab shall be constructed by the City, but shall be constructed at the sole
cost of Licensee. The City shall bill Licensee for the actual cost to construct the slab,
which is anticipated to be approximately Eight Hundred Dollars ($800), which amount
shall be paid to City prior to the actual construction of the slab. Any refund or additional
payment in connection with the installation of the slab shall be paid by the applicable
Party within ten(10)business days.
1.3.2 Utilities.
1.3.2.1 Electrical. The Parties acknowledge that it is not feasible for
Southern California Edison to install a separate electricity meter for the ATM.
Accordingly, the City will arrange for electricity to be made available for the operation of
the ATM in the License Area. The time and materials necessary for the City to bring the
trenched electricity line to the License Area will be approximately Two Hundred Fifty
Dollars ($250), which amount shall be paid to the City prior to the actual performance of
the work. Any refund or additional payment in connection with the installation of the
electrical line shall be paid by the applicable Party within ten(10)business days.
1.3.2.2 Telephone. The operation of the ATM requires the installation of a
telephone line to the License Area. The telephone line shall be installed by the telephone
company at the Agua Caliente Museum building, at the rear of the Property, as indicated
on Exhibit "A". Once the new telephone line has been installed, the City will bring the
trenched new line to the License Area to be accessed by Licensee for the ATM. The
installation of a new telephone line, which will be approximately Two Hundred Dollars
($200.00), as well as all monthly telephone charges, shall be at the sole cost of the
Licensee and shall be paid directly to the telephone company. The cost for the City to
bring the telephone line to the License Area will be approximately Ninety Dollars ($90),
which amount shall be paid to City prior to actual performance of the work. Any refund
or additional payment in connection with the installation of the telephone line shall be
paid by the applicable Party within ten (10)business days.
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1.3.2.3 ATM. Licensee shall be solely responsible for any and all
additional costs incurred in connection with the purchase and installation of the ATM.
Licensee expressly acknowledges that all plans relating to the ATM must be submitted to
the City for approval before the ATM may be installed.
1.4 Regulations. Licensee shall ensure that the use of the License Area by Licensee
and its agents, officers, employees and guests (collectively"Licensee's Parties") during the Tenn
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 specifically acknowledges that a land use
permit is required by the City. 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.
1.5.2 Real Property Taxes. The parties expressly acknowledge that, as a result
of this License, the License Area may become subject to real property taxes and that, in
addition to.the License Fee, Licensee shall pay any and all annual real estate taxes and
assessments levied upon the License Area (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 services provided by Licensee shall include
the Licensee's proposal, "Exhibit B". In the event of any inconsistency between the terms of
such proposal and this License, the terms of this License shall govern.
1.7 Security. The parties acknowledge that the security of the public, the License
Area and the ATM is a priority. For this reason, Licensee shall implement safeguards to
minimize security breaches. The ATM shall be bolted to the concrete slab. Au internal camera
in the ATM shall capture the physical image of all ATM users, which may be used in the event
of a dispute, theft or fraud.
At all times during the term of this License, Licensee shall maintain an agreement with an
armored courier to provide service to the ATM 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.
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Licensee shall be solely responsible for the cost of any additional reasonable security
deemed necessary in connection with the ATM.
1.8 Maintenance. Licensee shall have the sole financial obligation to maintain the
ATM and all utilities providing services to the ATM, as needed. When utility maintenance is
required, Licensee shall so notify the City 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 shall be reimbursed by Licensee. As further discussed in Section
5.2, Licensee shall have the sole obligation to maintain the License Area and adjacent property
free from waste, such as ATM receipts, which is generated in connection with the use of the
ATM.
1.9 Free From Liens. Licensee shall keep the Property and the License Area 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 Licensee's Compensation - Per Transaction Fee. For the services rendered
pursuant to this License, Licensee shall be entitled to receive a convenience fee of One Dollar
and Ninety-Five Cents ($1.95)per non-Licensee cardholder to process a cash withdrawal, which
compensation shall be payable from each cardholder's bank account. The 1.95 transaction
charge shall not be paid by City. Any increase in said convenience fee during the term hereof
shall be stipulated in writing and agreed to by both parties; however, notwithstanding the
forgoing, Licensee shall be entitled to increase the convenience fee collected at the ATM, by an
amount deemed reasonable by industry standards, if Licensee concurrently increases the
convenience fees it charges at all of its other automated teller machines that are not located on
Licensee's bank premises by the same amount.
2.2 License Fee. In exchange for the non-exclusive use of the License Area pursuant
to this License, Licensee shall pay the City, within the times and mamier set forth herein, the
greater amount of Two Hundred Dollars ($200.00) per month or Twenty Cents ($0.20) per
surchargeable transaction for each transaction occurring at the ATM installed on the Licensed
Area. This license fee shall be paid from a portion of, not in addition to, the 1.95 per transaction
convenience fee received by Licensee.
2.3 Method of Pa nem. Licensee shall be solely responsible for collecting all
compensation from ATM customers or their respective financial institutions. By no later than
the twenty-fifth (25th) day of each month of the tern, including the twenty-fifth (25th) of the
month following termination of this License, Licensee shall pay to City all fees due City under
Section 2.2 for the immediately preceding month, which payment shall be accompanied by an
itemized statement showing the number of customer transactions completed from the ATM.
2.4 Payment Reports. By no later than June 30, including June 30 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 under this License for the previous fiscal year end. Should the
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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 Fiance. 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.
3.0 TERM
Unless earlier terminated in accordance with Sections 8.5 or 8.6 of this License, this
License shall entitle Licensee to non-exclusive use of the License Area from the date of
execution of this License through June 30, 2009. At the conclusion of this period of use, unless
this License has been extended by the parties by pursuant to a written agreement, Licensee must
remove the ATM and surrender the License Area pursuant to Section 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 in its behalf
with respect to the work specified herein and make all decisions in connection therewith:
Valerie Van Winkle. 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. For purposes of this License, the
foregoing principal may not be replaced nor may his responsibilities be substantially reduced by
Licensee without the express written approval of City.
4.2 License Officer. The License Officer shall be such person as may be designated
by the City Manager of City. It shall be the Licensee's responsibility to assure that the License
Officer is kept informed of matters relating to the ATM and the Licensee shall refer any
decisions which must be made by City to the License Officer. Unless otherwise specified herein,
any approval of City required hereunder shall mean the approval of the License Officer. The
License Officer 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 Not Assignable. This License shall become effective immediately and is
personal to the Licensee and is not assignable; however, the sale of all or substantially all of
Licensee's assets is not an assignment under the terms of this License. Any attempt by Licensee
to assign this License shall terminate this License immediately.
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 herein. 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
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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 maimer 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
anyjoint 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 License Area or within a reasonable
adjacent perimeter thereto. When this License terminates, upon such termination, Licensee, as
its sole expense, shall repair any waste, damage or destruction and shall restore the License Area
to that condition existing prior to Licensee's use of the License Area. Should Licensee fail to
vacate the License Area in a clean and undamaged condition, City may arrange for the cleaning
and/or repair of the License Area, 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 Area 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 Area at all times. This requirement may be satisfied
with a waste receptacle that is incorporated into the ATM itself, or the waste receptacle may be a
separate free standing object. Licensee shall have the sole obligation to maintain the License
Area, and adjacent property, free from all waste, including but not limited to ATM receipts,
which is generated in connection with the use of the ATM. 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 waste.
5.3 Parking. Licensee shall obtain all parking permits and/or decals that may be
necessary for Licensee while performing work in connection with the installation, operation and
maintenance of the ATM. To obtain such materials, Licensee shall contact the City's parking
division at City Hall.
5.4 Customer Service Help Line. Should Licensee desire to install a customer service
help line at the ATM, 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 Area
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
Insurance. Prior to its ability to access the License Area, Licensee will provide City with
proof of insurance, at Licensee's sole cost and expense, to remain in full force and effect dining
the entire tern of this License. The following policies of insurance shall be maintained:
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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 that ONE MILLION DOLLARS ($1,000,000) combined single limit for
all damages arising from each accident or occupational disease.
6.1.2 Commercial General Liability. Commercial General Liability Insurance
written on a per-occurrence and not a claims-made 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.
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 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
the City 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 and its respective insurers.
Each of such policies of insurance shall name City and its affiliated entities, and their
respective officers, directors, agents, and employees (collectively, "City's Parties.") All
policies of insurance required to be obtained by Licensee hereunder shall be issued by
insurance companies authorized to do business in California and must be rated no less
than B+;VII or better in Best's Insurance Guide. Prior to engaging in any operations
hereunder, Licensee shall deliver to City certificate(s) of insurance 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' written notice.
6.2 Indemnification by Licensee. Licensee shall indenu fy, 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 Area, or (iii) the conduct of Licensee's business or any activity,
work or things done, pennitted 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.
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Licensee, as a material part of the consideration to City, hereby assumes all risk of
damage to the License Area, including, without limitation, injury to persons in, upon or about the
License Area during Licensee's use of the License Area, arising from any use of the ATM or
other activities of Licensee or Licensee's Parties on the License Area. Licensee hereby waives
all claims with respect thereof against City. City shall not be liable for any injury to the License
Area, ATM, or injury to or death of any of Licensee's Parties, or injury to the ATM, or injury to
or death of any other person in or about the License Area 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 Area by Licensee or Licensee's Parties.
7.0 REPORTS AND RECORDS
7.1 Reports. Licensee shall prepare and submit to the City a written monthly report
concerning the use of the ATM. This report shall be in a format acceptable to the Contract
Officer and shall be delivered to the City along with Licensee's monthly payments to City .
7.2 Records. Upon receipt of written notice from the City, Licensee shall use
reasonable business efforts to provide City or City's designees with copies of books and records
pertaining to Licensee's operation of the ATM. Said records and books shall be provided to City
or City's designees at Licensee's Palm Springs branch during regular business hours. Licensee
shall use reasonable business efforts to promptly provide the City with any additional
information relevant hereto which is not specified in this Section.
7.3 Ownership of Documents. All reports, records, documents and other materials
prepared by Licensee, its employees, subcontractors and agents in the performance of this
License shall be reviewable by the City and copies of such materials shall be delivered to City
upon request of the Contract Officer or upon the termination of this License, and Licensee shall
have no claim for compensation as a result of the exercise by City of its full rights of ownership
of the documents and materials hereunder. Notwithstanding anything to the contrary, before
providing copies of such materials to the City, Licensee shall redact all confidential information
necessary to protect the privacy rights of the customers of the ATM. Moreover, Licensee shall
not be required to disclose any information concerning the customers of the ATM, Licensee's
customers or Licensee's depositors which disclosure is restricted or prohibited by federal, state
or local law or regulation or policy, including, but not limited to, restrictions and prohibitions
contained in the Gramm Leach Bliley Act,
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 Contract Officer.
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.
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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. Either party may terminate this License at any time, with or without
cause, upon thirty (30) days' written notice to the other party, 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 License Officer. Notwithstanding the preceding sentence, the parties
expressly agree that if Licensee: (i) files a 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 Tenn of this License, City may terminate this License upon twenty-four
(24)hours' written notice to Licensee.
Upon receipt of any notice of termination during the Term, Licensee shall, within the
applicable time frame, cease the operation of the ATM, and shall clean, repair and vacate the
License Area.
8.4 Termination for Default. If termination is due to the failure of Licensee to fulfill
its obligations ruider 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 the Agreement. 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, ou terns and in the manner that it deems appropriate, materials or services to
replace those under this License.
8.5 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.
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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 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,
Licensee shall comply with the Americans with Disabilities Act and all federal regulations
applicable under the Act.
10.0 MISCELLANEOUS PROVISIONS
10.1 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.
10.2 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.
10.3 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.
10.4 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.
10.5 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
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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
Section 8.5.
10.6 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.
10.7 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.
10.8 Interpretation. The terns 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.
10.9 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.
10.10 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.
10.11 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
3200 East Tahquitz Canyon Way
Palm Springs, California 92262
Attn: Director of Downtown Development
11
To Licensee: Canyon National Bank
P. O. Box 2777
Palm Springs, California 92263
Attn: President/CEO
IN WITNESS WHEREOF, City and Licensee have executed this License as of the date
as indicated by the signatures below.
LICENSEE:
CANYON NATIONAL BANK
Date: 20+
By: .
Stephen G. H ann,
P- Sid t/C'E'�
By:
Valerie Van Winkle,
Senior Vice President
Approved as to Form By:
By:
Counsel for Licensee
CITY:
CITY OF PALM SPRINGS
Date: , 2003
By:
Mayor
ATTEST:
By:
City Clerk
Approved as to Form By:
By:
City Attorney
12
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• Integrated camera provision
• Fast-action universal card reader:
• Motorized operation:Magnetic stripe, Smart card
a Optional dip card reader
• Proven multimedia dispenser with presenter and divert cassette
• Large multimedia capability with two to four dispense cassettes--each holds
approximately 1,700 notes(345 mm capacity)
• UL-listed Level Il safe, certified in the U.S.
• Easy-to-use telephone style tactile Braille keypad or optional 16-key keypad
Security options.
• locking currency cassettes
• Digital electronic locks
• Heat/thermo detection
• Seismic detection
• Anti-ambush
• ConsumerAwareness MomtorTM
Dimensions.
• Height:66.15 in. (1683 mm)
• Width:31.5 in. (800 mm)
• Depth:38 in. (965 mm)
• Weight:3000 lbs. (1364 kg)approx.
Operating environment.
Introduction
Overview
Palm Springs' only locally owned and managed financial institution, Canyon National
Bank opened its doors July 10, 1998 to offer superior customer service and to fulfill the
needs of local businesses. It is unique in banking circles in that it is one of a few
nationally chartered banks with a major investment by an Indian Tribe, the Agua Caliente
Band of Cahuilla Indians.
In less than five years, the bank has successfully demonstrated growth in market share,
strength in overall financial performance, and commitment to our community. The bank
is comprised of two offices: the main branch in the Smoketree Shopping Center in Palm
Springs and a smaller storefront branch in Palm Desert which will be replaced by a full
service branch at the corner of Portola and Country Club Drive to be completed later this
year. For the year ended December 31, 2002, Canyon National Bank reported net income
of$1,355,000 and total assets of$132.3 million. In its second year of eligibility, the
bank was awarded the classification of Super Premiere Performance by The Findley
Reports and, in 1999, received an outstanding rating for community reinvestment by its
regulator, the Office of the Comptroller of the Currency.
Qualifications
Canyon National Bank is qualified to enter into a contractual agreement to provide ATM
services to the City of Palm Springs as defined:
A. Bank is a nationally chartered financial institution and is regulated by the Office of
the Comptroller of the Currency
B. Bank is a member of the Federal Reserve System and has access to all of its services
C. A full-service financial institution, bank is in good standing with its regulatory
agencies and with its peer group
D. Locally owned and managed, Bank's main office is located in the City of Palm
Springs
E. With a portfolio in excess of 50 ATMs (including three bank-owned units), Bank has
the experience to provide ATM services
a,
CANYON
national bank.
Installation
Equipment
Canyon National Bank chooses Diebold products because the company has consistently
provided reliable, teclmology-based equipment and dependable customer service.
For an exterior placement in downtown Palm Springs, the bank would purchase a 1075ix
model. It meets guidelines for the American with Disabilities ACT for height and access,
and is a secure, weather-resistant unit ideal for off-premise locations. A brochure for this
model is included as Attachment B.
Installation is typically scheduled six to eight weeks from the original order date. A
member of the bank's staff will be on hand with the Diebold installation team to ensure
successfiil communication with the bank's network provider.
Sponsorship
Canyon National Bank's network provider, Fifth Third Processing, offers regional and
national network access including Star, Plus, Cirrus, Visa, MasterCard, American
Express, Discover&Fifth Third Sponsored PLUS. All cardholders with these network
symbols printed on the back of their cards, regardless of financial institution, would be
able to access cash from this machine. Daily withdrawal limits are determined by the
cardholder's bank.
ElectricaUTelecommunication Access
Access to a standard 120 volt electrical outlet and telephone line would be required. A
four-plug face plate would provide an outlet for the machine, the modem and a lighted
sign, surround or topper unit. On the bank's behalf, Fifth Third would contact the local
telephone service provider to order the telephone line. Telephone line orders may take up
to six weeks to secure.
Security
The security of the equipment,the site, and the public is a priority. Canyon National
Bank will implement safeguards to minimize the opportunity for an unfortunate event to
occur. The machine will be bolted to the ground. An internal camera will capture the
physical description of users which may be used in the event of a dispute, theft, or fraud.
An armored courier will be contracted to provide any service to the ATM including cash
fills, balancing, or supply replenishment.
If available,the additional security of a city-owned camera at or near the ATM could
provide reinforcement in the event of an incident.
it CANYON
-4- national bank,
Operations
Firstline Maintenance
Canyon National Bank will contract with an armored courier to provide firstline
maintenance services. Firstline maintenance includes cash fills, balancing, clearing
jammed bills, and supply replenishment. The bank will determine the most cost efficient
utilization of services and schedule cash fills either weekly or bi-weekly, depending upon
the need for cash.
Seeondline Maintenance
The bank will contract with Diebold to provide equipment maintenance to include
hardware or software repair, as needed.
Insurance
Canyon National Bank contracts with Financial Guaranty to provide liability insurance
and currently maintains the minimum coverage for Worker's Compensation and Business
Automobile insurance as outlined in the RFP. The bank will secure a Commercial
General Liability Insurance Policy with minimum coverage as outlined in the RFP,
naming the City of Palm Springs as an additional insured.
Copies of these policies will be made available upon notification that Canyon National
Bank has been selected to provide the ATM services requested in this RFP.
Reporting
The bank has online, real-time access to transaction activity for monitoring purposes.
The network provides daily reports with regards to transaction and settlement data which
is subsequently used for balancing.
Claims
The bank is subject to compliance with Regulation E, as mandated by the Office of the
Comptroller of the Currency (OCC), which dictates the time, manner and method in
which customer claims for non-receipt of funds are handled. These claims are routinely
handled by the operations staff. To ensure ongoing compliance, the OCC conducts an
annual audit of the bank's handling of Regulation E claims.
it
CANYON
-5 _ national bank,
hlb,
Financials
Expense
Canyon National Bank has committed to fmiding the costs to install and operate the
proposed ATM in downtown Palm Springs. The initial investment of the ATM and a
surround will be in excess of$30,000. Monthly operating costs including processing
fees, insurance, firstline and secondline maintenance, telecommunication charges,
depreciation, and cost of cash are estimated to be between $150041800 per month.
Income
To cover interchange expenses, a surcharge amount of$1.50 will be assessed to non-
Canyon National Bank cardholders to process a cash withdrawal. During the course of
this contract, Canyon National Bank may consider to increase or decrease this charge
based upon market and economic factors.
Revenue Sharing
Because it will probably take three-six months before the public is aware of the ATM
availability, it is estimated that this machine will initially process between 500— 1000
transactions per month. It will take twelve months of operation to ascertain transactional
demand and, consequently, how the surcharge revenue will offset the capital investment
and on-going operating expenses. Therefore, Canyon National Bank proposes a revenue
sharing program that will compensate the City of Palm Springs in the form of a rental
payment for the space used. The proposed monthly payment is as follows:
Minimum Maximum
Transaction Fee Payment Payment
Years 1 —3 $0.20 per surchargable $200 $500
Years 4— 5 $0.20 per surchargable $250 $550
Because settlement of the bank's interchange income for the previous month isn't
received until the middle of the following month, the payment to the City will be made
on or before the 25"' of each month for the preceding month's activity.
s.a.
CANYON
_ r national bank.
MINUTE ORDER NO.
APPROVING A LICENSE AGREEMENT WITH
CANYON NATIONAL BANK TO OPERATE AN
AUTOMATED TELLER MACHINE (ATM) IN THE
VILLAGE GREEN.
--------------
I HEREBY CERTIFY that this Minute Order, approving a license agreement with Canyon
National bank to operate an automated teller machine (ATM) in the Village Green, was adopted
by the City Council of the City of Palm Springs, California, in a meeting thereof held on the 2nd
of February, 2005.
JAMES THOMPSON
City Clerk