MB UNITED POLICE FED CREDIT UNION AGMT LEASE AGREEMENT
THIS LEASE AGREEMENT, made this 27 th day of October, 2010, by and between
the CITY OF MIAMI BEACH, a Florida municipal corporation, (hereinafter referred to as
"City" or "Landlord "), and UNITED POLICE FEDERAL CREDIT UNION, a federally
chartered credit union, (hereinafter referred to as "Tenant ").
1. Demised Premises.
The City, in consideration of the rentals hereinafter reserved to be paid and of the
covenants, conditions and agreements to be kept and performed by the Tenant,
hereby leases, lets and demises to the Tenant, and Tenant hereby leases and hires
from the City, those certain premises hereinafter referred to as the "Demised
Premises" and more fully described as follows:
Approximately 196 square feet of City -owned property (the "Building"
a.k.a. "Miami Beach Police Department Headquarters "), located at
1100 Washington Avenue, Rooms 110 and 111, Miami Beach,
Florida, 33139, and as further delineated in Exhibit 1, attached hereto
and incorporated herein on page 20.
2. Term.
2.1 Tenant shall be entitled to have and to hold the Demised Premises for an
initial term of three (3) years, retroactively commencing on the 1
d ay of
"Commencement 2010 (the Commencement Date , ), and ending on the 30 day of
September, 2013. For purposes of this Lease Agreement, and including,
without limitation, Subsection 2.2 herein, a "contract year" shall be defined as
that certain period commencing on the 1 day of October, and ending on the
30 day of September.
2.2 Provided Tenant is in good standing and free from default(s) under Section
18 hereof, and upon written notice from Tenant, which notice shall be
submitted to the City Manager no earlier than one hundred twenty (120)
days, but in any case no later than sixty (60) days prior to the expiration of
the initial term, this Lease may be extended for one (1) additional three (3)
year renewal term. Any extension, if approved, shall be memorialized in
writing and signed by the parties hereto (with the City hereby designating the
City Manager as the individual authorized to execute such extensions on its
behalf).
In the event that the City Manager determines, in his sole discretion, not to
extend or renew this Lease Agreement, the City Manager shall notify Tenant
of same in writing, which notice shall be provided to Tenant within fifteen (15)
business days of the City Manager's receipt of Tenant's written notice.
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3. Rent.
Tenant's payment of Rent, as defined in this Section 3, shall begin to accrue
retroactively, commencing on October 1, 2010 (the "Rent Commencement Date ")
and, thereafter, on each first day of subsequent months.
3.1 Base Rent:
Throughout the Term herein, the Base Rent for the Demised Premises shall
be One Dollar and 20/100 ($1.20) per year, payable in monthly installments
of 10/100 ($0.10).
3.2 Additional Rent:
In addition to the Base Rent, as set forth in Section 3.1, Tenant shall also
pay the following Additional Rent as provided below:
3.2.1 Operating Expenses:
Throughout the Term herein, the Operating Expenses for the
Demised Premises shall be Two Thousand Nine Hundred Forty
Dollars and 00/100 ($2,940.00) per year, payable in monthly
installments of Two Hundred Forty Five Dollars and 00/100 ($245.00)
per month, for its proportionate share of "Operating Expenses" which
are defined as follows:
"Operating Expenses" shall mean the following costs and expenses
incurred in operating, repairing, and maintaining the Common
Facilities (as hereinafter defined) and shall include, without limitation,
electric service, water service to the Building, sewer service to the
Building, trash removal from the Building, costs incurred for gardening
and landscaping, repairing and maintaining elevator(s), painting,
Janitorial services (except for areas within the Demised Premises),
( p emises ,
lighting, cleaning, striping, policing, removing garbage and other
refuse and trash, removing ice and snow, repairing and maintaining
sprinkler systems, water pipes, air - conditioning systems, temperature
control systems, and security systems, fire alarm repair and
maintenance and other equipment in the common areas and the
exterior and structural portions of the Building, paving and repairing,
patching and maintaining the parking areas and walkways, and
cleaning adjacent areas, management fees and the City's
employment expenses to employees furnishing and rendering any
services to the common areas, together with an additional
administration charge equal to fifteen percent (15 %) of all other
expenses included in the annual common area expenses, provided by
the City for the common or joint use and /or benefit of the occupants of
the Building, their employees, agents, servants, customers and other
invitees.
"Common Facilities" shall mean all Building areas, spaces,
equipment, as well as certain services, available for use by or for the
benefit of Tenant and /or its employees, agents, servants, volunteers,
customers, guests and /or invitees.
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II
3.2.2
Property Taxes:
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The Property Tax Payment shall be payable by Tenant, in accordance
with Section 11 herein. The Property Tax Payment for Property Tax
Year 2010 is estimated at Zero Dollars ($0.00). Notwithstanding the
preceding sentence, the City makes no warranty or representation,
whether express or implied, that the Historic City Hall building, the
Land, and /or the Demised Premises will not be subject to ad valorem
(or other) taxes in subsequent years.
3.2.3 Insurance:
The Additional Rent shall also include Tenant's pro -rata share toward
estimated insurance costs incurred to insure the whole of the Building,
in the amount of One Hundred Seventy Six Dollars and 40/100
($176.40) per year, payable in monthly installments of Fourteen
Dollars .. o is in
addition to and the 70/100 insurance ($1470) required per month pursuant This to Section insurance 10 c , which verage shall
be obtained at Tenant's sole expense and responsibility.
3.3 Sales Taxes:
Concurrent with the payment of the Base Rent and Additional Rent as
provide herein, Tenant shall also pay, if applicable, any and all sums for all
required tax(es), including without limitation, sales and use taxes and
Property Taxes, imposed, levied or assessed against the Demised Premises,
or any other charge or payment required by any governmental authority
having jurisdiction there over, even though the taxing statute or ordinance
may purport to impose such tax against the City.
3.4 Enforcement.
Tenant agrees to pay the Base Rent, Additional Rent, and any other
amounts as may be due and payable by Tenant under this Agreement, at the
time and in the manner provided herein, and should said rents and /or other
additional amounts due herein provided, at any time remain due and unpaid
for a period of fifteen (15) days after the same shall become due, the City
may exercise any or all options available to it hereunder, which options may
be exercised concurrently or separately, or the City may pursue any other
remedies enforced by law.
4. Location for Payments.
All rents or other payments due hereunder shall be paid to the City at the following
address:
City of Miami Beach
Revenue Manager
1700 Convention Center Drive, 3 Floor
Miami Beach, Florida 33139
or at such other address as the City may, from time to time, designate in writing.
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5. Parking.
Tenant may request, from the City's Parking Department, the use of parking spaces,
if available, on a first come, first t served basis, at Municipal Parking Garage G -2
located at the intersection of 12 and Drexel Avenue. Rates for said spaces
are subject to change, and are currently Seventy Dollars ($70.00) per month, plus
applicable sales and use tax per space.
6. Security Deposit.
Upon execution of this Agreement Tenant shall furnish the City with a Security
Deposit, in the amount of Five Hundred Nineteen Dollars and 60/100 ($519.60).
Said Security Deposit shall serve to secure Tenant's performance in accordance
with the provisions of this Agreement. In the event Tenant fails to perform in
accordance with said provisions, the City may retain said Security Deposit, as well
as pursue any and all other legal remedies provided herein, or as may be provided
by applicable law.
The parties agree and acknowledge that the foregoing condition is intended to be a
condition subsequent to the City's approval of this Agreement. Accordingly, in the
event that Tenant does not satisfy the aforestated, then the City Manager or his
designee may immediately, without further demand or notice, terminate this
Agreement without being prejudiced as to any remedies which may be available to
him for breach of contract.
7. Use and Possession of Demised Premises.
7.1 The Demised Premises shall be used by the Tenant as office space for a
federally chartered credit union providing financial services to members
comprised primarily of City of Miami Beach Police Department employees.
Said Premises shall be open for operation in accordance with Federal Law.
Nothing herein contained shall be construed to authorize hours contrary to
the laws governing such operations.
7.2 It is understood and agreed that the Demised Premises shall be used by the
Tenant during the Term of this Agreement only for the above
purpose(s) /use(s), and for no other purpose(s) and /or use(s) whatsoever.
Tenant will not make or permit any use of the Demised Premises that,
directly or indirectly, is forbidden by law, ordinance or government regulation,
or that may be dangerous to life, limb or property. Tenant may not commit
(nor permit) waste on the Demised Premises; nor permit the use of the
Demised Premises for any illegal purposes; nor commit a nuisance on the
Demised Premises. In the event that the Tenant uses the Demised Premises
(or otherwise allows the Demised Premises to be used) for any purpose(s)
not expressly permitted herein, or permits and /or allows any prohibited use(s)
as provided herein, then the City may declare this Agreement in default
pursuant to Section 18 or, without notice to Tenant, restrain such improper
use by injunction or other legal action.
7.3 Automated Teller Machine (ATM):
Tenant shall also be permitted to install, operate and maintain an automatic
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teller machine (ATM), subject to the terms and conditions of the Automated
Teller Machine Use Agreement (Use Agreement), attached hereto and
incorporated herein as Exhibit 7.3 on page 21. The Use Agreement shall run
concurrent with, and shall not be renewed and /or extended beyond, the term
of this Lease Agreement. In the event this Lease Agreement is terminated or
otherwise expires prior to the term stated therein, then the Use Agreement
shall automatically terminate.
8. Improvements.
8.1 Tenant accepts the Demised Premises in their present "AS IS" condition
and may construct or cause to be constructed, such interior and exterior
improvements and maintenance to the Demised Premises, as reasonably
necessary for it to carry on its permitted use(s), as set forth in Section 7;
provided, however, that any plans for such improvements shall be first
submitted to the City Manager for his prior written consent, which consent, if
granted at all, shall be at the City Manager's sole and absolute discretion.
Additionally, any and all approved improvements shall be made at Tenant's
sole expense and responsibility. All permanent (fixed) improvements to the
Demised Premises shall remain the property of the City upon termination
and /or expiration of this Agreement. Upon termination and /or expiration of
this Agreement, all personal property and non - permanent trade fixtures may
be removed by the Tenant from the Demised Premises, provided that they
can be (and are) removed without damage to the Demised Premises. Tenant
will permit no liens to attach to the Demised Premises arising from,
connected with, or related to the design and construction of any
improvements. Moreover, such construction shall be accomplished through
the use of licensed, reputable contractors who are acceptable to the City.
Any and all permits and or licenses required for the installation of
improvements shall be the sole cost and responsibility of Tenant.
8.2 Notwithstanding Subsection 8.1, upon termination and /or expiration of this
Agreement, and at City's sole option and discretion, any or all alterations or
additions made by Tenant to or in the Demised Premises shall, upon written
demand by the City Manager, be promptly removed by Tenant, at its
expense and responsibility, and Tenant further hereby agrees, in such event,
to restore the Demised Premises to their original condition prior to the
Commencement Date of this Agreement.
8.3 The above requirements for submission of plans and the use of specific
contractors shall not apply to improvements (which term, for purposes of this
Subsection 8.3 only, shall also include improvements as necessary for
Tenant's maintenance and repair of the Demised Premises) which do not
exceed Five Hundred ($500.00) Dollars, provided that the work is not
structural, and provided that it is permitted by applicable law.
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9. City's Right of Entry.
9.1 The City Manager, and /or his authorized representatives, shall have the right
to enter upon the Demised Premises at all reasonable times for the purpose
of inspecting same; preventing waste; making such repairs as the City may
consider necessary; and for the purpose of preventing fire, theft or
vandalism. The City agrees that, whenever reasonably possible, it shall use
reasonable efforts to provide notice (whether written or verbal), unless the
need to enter the Demised Premises is an emergency, as deemed by the
City Manager, in his sole discretion, which if not immediately addressed
could cause property damage, Toss of life or limb, or other injury to persons.
Nothing herein shall imply any duty on the part of the City to do any work that
under any provisions of this Agreement the Tenant may be required to
perform, and the performance thereof by the City shall not constitute a
waiver of the Tenant's default.
9.2 If the Tenant shall not be personally present to open and permit entry into
the Demised Premises at any time, for any reason, and any entry thereon
shall be necessary or permissible, the City Manager, and /or his authorized
representatives, may enter the Demised Premises by master key, or may
forcibly enter the Demised Premises without rendering the City or such
agents liable therefore.
9.3 Tenant shall furnish the City with duplicate keys to all locks including exterior
and interior doors prior to (but no later than by) the Commencement Date of
this Agreement. Tenant shall not change the locks to the Demised Premises
without the prior written consent of the City Manager, and in the event such
consent is given, Tenant shall furnish the City with duplicate keys to said
locks in advance of their installation.
10. Tenant's Insurance.
10.1 Tenant shall, at its sole expense and responsibility, comply with all insurance
requirements of the City. It is agreed by the parties that Tenant shall not
occupy the Demised Premises until proof of the following insurance
coverages have been reviewed and approved by the City's Risk Manager:
10.1.1 Comprehensive General Liability, in the minimum amount of One
Million ($1,000,000) Dollars (subject to adjustment for inflation) per
occurrence for bodily injury and property damage. The City of Miami
Beach must be named as an additional insured on this policy.
10.1.2 Workers Compensation and Employers Liability coverage in
accordance with Florida statutory requirements.
10.1.3 All -Risk property and casualty insurance, written at a minimum of
eighty (80 %) percent of replacement cost value and with replacement
cost endorsement, covering all leasehold improvements installed in
the Demised Premises by or on behalf of Tenant and including
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without limitation all of Tenant's personal property in the Demised
Premises (including, without limitation, inventory, trade fixtures, floor
coverings, furniture, and other property removable by Tenant under
the provisions of this Agreement).
10.2 Proof of these coverages must be provided by submitting original certificates
of insurance to the City's Risk Manager and Asset Manager respectively. All
policies must provide thirty (30) days written notice of cancellation to both the
City's Risk Manager and Asset Manager (to be submitted to the addresses
set forth in Section 27 hereof). All insurance policies shall be issued by
companies authorized to do business under the laws of the State of Florida
and must have a rating of B +:VI or better per A.M. Best's Key Rating Guide,
latest edition, and certificates are subject to the approval of the City's Risk
Manager.
11. Property Taxes and Assessments.
For the purposes of this Section and other provisions of this Agreement:
11.1 The term "Property Taxes" shall mean (i) real estate taxes, assessments,
and special assessments of any kind which may be imposed upon the
Demised Premises, and (ii) any expenses incurred by the City in obtaining a
reduction of any such taxes or assessments.
11.2 The term "Property Tax Year" shall mean the period of twelve (12) calendar
months, beginning on January 1 of each year.
11.3 Tenant shall pay, as Additional Rent pursuant to Section 3.2, for such
Property Tax Year an amount ( "Property Tax Payment ") equal to Tenant's
pro -rata share of Property Taxes (if any) for such Property Tax Year; said
pro -rata share to be determined by the City based upon the ratio of the
Demised Premises to the tax lot. If a Property Tax Year ends after the
expiration or termination of the term of this Agreement, the Property Tax
Payment therefore shall be prorated to correspond to that portion of such
Property Tax Year occurring within the term of this Agreement. The Property
Tax Payment shall be payable by Tenant immediately upon receipt of notice
from the City. A copy of the tax bill(s) or other evidence of such taxes issued
by the taxing authorities, together with the City's computation of the Property
Tax Payment, will be made available to Tenant once received from the taxing
authorities, if requested by Tenant. Tenant shall pay any difference in the
amount between the estimated property taxes and the actual property taxes
to the City immediately, upon receipt of request for said payment from the
City.
12. Assignment and Subletting.
Tenant shall not have the right to assign or sublet the Demised Premises, in whole
or in part, without the prior written consent of the City Manager, which consent, if
granted at all shall be at the City Manager's sole and absolute discretion. Such
written consent is not a matter of right and the City is not obligated to give such
consent. If granted as provided herein, the making of any assignment or sublease
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will not release Tenant from any of its obligations under this Agreement.
13. Operation, Maintenance and Repair.
13.1 Tenant shall be solely responsible for the operation, maintenance and repair
of the Demised Premises. Tenant shall, at its sole expense and
responsibility, maintain the Demised Premises, and all fixtures and
appurtenances therein, and shall make all repairs thereto, as and when
needed, to preserve them in good working order and condition. Tenant shall
be responsible for all interior walls and the interior and exterior of all windows
and doors, as well as immediate replacement of any and all plate glass or
other glass in the Demised Premises which may become broken, using glass
of the same or better quality.
The City shall be responsible for the maintenance of the roof, the exterior of
the Building, all heating /ventilation /air conditioning (HVAC) equipment
servicing the Demised Premises, the structural electrical and plumbing (other
than plumbing surrounding any sink(s) and /or toilet(s), including such sink(s)
and toilet(s) fixture(s), within the Demised Premises), the common areas and
the chilled water supply system. The City shall maintain and /or repair those
items that it is responsible for, so as to keep same in proper working
condition.
13.2 All damage or injury of any kind to the Demised Premises, and including
without limitation its fixtures, glass, appurtenances, and equipment (if any),
or to the building fixtures, glass, appurtenances, and equipment, if any,
except damage caused by the negligence and /or willful misconduct of the
City, shall be the sole obligation of Tenant, and shall be repaired, restored or
replaced promptly by Tenant, at its sole expense and to the satisfaction of
the City.
13.3 All of the aforesaid repairs, restorations and replacements shall be in quality
and class equal to or better than the original work or installations and shall
be done in good and workmanlike manner.
13.4 If Tenant fails to make such repairs or restorations or replacements, the
same may be made by the City, at the expense of Tenant, and all sums
spent and expenses incurred by the City shall be collectable by the City and
shall be paid by Tenant within three (3) days after submittal of a bill or
statement therefore.
13.5 It shall be Tenant's sole obligation and responsibility to insure that any
renovations, repairs and /or improvements made by Tenant to the Demised
Premises comply with all applicable building codes and life safety codes of
governmental authorities having jurisdiction.
13.6 Tenant Responsibilities for Utilities (not included within Operating Expenses).
Tenant is solely responsible for, and shall promptly pay when due, all
charges and impact fees for any and all utilities for the Demised Premises
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NOT included as an Operating Expense (pursuant to Subsection 3.2.1).
In addition to other rights and remedies hereinafter reserved to the City, upon
the failure of Tenant to pay for such utility services (as contemplated in this
Subsection 13.6) when due, the City may elect, at its sole discretion, to pay
same, whereby Tenant agrees to promptly reimburse the City upon demand.
In no event, however, shall the City be liable, whether to Tenant or to third
parties, for an interruption or failure in the supply of any utilities or services to
the Demised Premises.
13.7 TENANT HEREBY ACKNOWLEDGES AND AGREES THAT THE
DEMISED PREMISES ARE BEING LEASED IN THEIR PRESENT "AS IS"
CONDITION.
14. Governmental Regulations.
Tenant covenants and agrees to fulfill and comply with all statutes, ordinances,
rules, orders, regulations, and requirements of any and all governmental bodies,
including but not limited to Federal, State, Miami -Dade County, and City
governments, and any and all of their departments and bureaus applicable to the
Demised Premises, and shall also comply with and fulfill all rules, orders, and
regulations for the prevention of fire, all at Tenant's own expense and responsibility.
Tenant shall pay all cost, expenses, claims, fines, penalties, and damages that may
be imposed because of the failure of Tenant to comply with this Section, and shall
indemnify and hold harmless the City from all liability arising from each non-
compliance.
15. Liens.
Tenant will not permit any mechanics, laborers, or materialman's liens to stand
against the Demised Premises or improvements for any labor or materials to Tenant
or claimed to have been furnished to Tenant's agents, contractors, or sub - tenants,
in connection with work of any character performed or claimed to have performed
on said Premises, or improvements by or at the direction or sufferance of the
Tenant; provided however, Tenant shall have the right to contest the validity or
amount of any such lien or claimed lien. In the event of such contest, Tenant shall
give the City reasonable security as may be demanded by the City to insure
payment thereof and prevent sale, foreclosure, or forfeiture of the Premises or
improvements by reasons of such non - payment. Such security need not exceed one
and one half (1 times the amount of such lien or such claim of lien. Such security
shall be posted by Tenant within ten (10) days of written notice from the City, or
Tenant may "bond off' the lien according to statutory procedures. Tenant will
immediately pay any judgment rendered with all proper costs and charges and shall
have such lien released or judgment satisfied at Tenant's own expense.
16. Intentionally Omitted.
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17. Condemnation.
17.1 If at any time during the Term of this Agreement (including any g g ( g Y renewal term
hereunder) all or any part or portion of the Demised Premises is taken,
appropriated, or condemned by reason of Eminent Domain proceedings,
then this Agreement shall be terminated as of the date of g o such taking, and
shall thereafter be completely null and void, and neither of the parties hereto
shall thereafter have any rights against the other by reason of this
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Agreement or anything contained therein, except that any rent prepaid
beyond the date of such taking shall be prorated g p ated to such date, and Tenant
shall pay any and all rents, additional rents, utility charges, and /or other costs
for which it is liable under the terms of this Agreement, up to the date of such
taking.
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17.2 Except as hereunder provided, Tenant shall not be entitled to participate in
the proceeds of any award made to the City in any such Eminent Domain
proceeding, excepting, however, Tenant shall have the right to claim and
recover from the condemning authority, but not from the City, such
compensation as may be separately awarded or recoverable by Tenant in
Tenant's own right on account of any and all damage to Tenant's business
by reasons of the condemnation and for or on account of any cost or loss
which Tenant might incur in removing Tenant's furniture and fixtures.
18. Default.
18.1 Default by Tenant:
At the City's option, any of the following shall constitute an Event of Default
under this Agreement:
18.1.1 The Base Rent, Additional Rent, or any other amounts as may be due
and payable by Tenant under this Agreement, or any installment
thereof, is not paid promptly when and where due, and Tenant shall
not have cured such failure within five (5) days after receipt of written
notice from the City specifying such default;
18.1.2 The Demised Premises shall be deserted, abandoned, or vacated;
18.1.3 Tenant shall fail to comply with any material term, p rovision, condition
or covenant contained herein other than the payment of rent and shall
not cure such failure within thirty (30) days after the receipt of written
notice from the City specifying any such default; or such longer period
of time acceptable to the City, at its sole discretion;
18.1.4 Receipt of notice of violation from any governmental authority having
jurisdiction dealing with a law, code, regulation, ordinance or the like,
which remains uncured for a period of thirty (30) days from its
issuance, or such longer period of time as may be acceptable and
approved in writing by the City Manager, at his sole discretion;
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18.1.5 Any petition is filed by or against Tenant under any section or chapter
of the Bankruptcy Act, as amended, which remains pending for more
than sixty (60) days, or any other proceedings now or hereafter
authorized by the laws of the United States or of any state for the
purpose of discharging or extending the time for payment of debts;
18.1.6 Tenant shall become insolvent;
18.1.7 Tenant shall make an assignment for benefit of creditors;
18.1.8 A receiver is appointed for Tenant by any court and shall not be
dissolved within thirty (30) days thereafter; or
18.1.9 The leasehold interest is levied on under execution.
19. Rights on Default.
19.1 Rights on Default:
In the event of any default by Tenant as provided herein, City shall have the
option to do any of the following, in addition to and not in limitation of, any
other remedy permitted by law or by this Agreement;
19.1.1 Terminate this Agreement, in which event Tenant shall immediately
surrender the Demised Premises to the City, but if Tenant shall fail to
do so the City may, without further notice, and without prejudice to
any other remedy the City may have for possession or arrearages in
rent or damages for breach of contract, enter upon the Demised
Premises and expel or remove Tenant and its effects in accordance
with law, without being liable for prosecution or any claim for damages
therefore, and Tenant agrees to indemnify and hold harmless the City
for all loss and damage which the City may suffer by reasons of such
Agreement termination, whether through inability to re -let the Demised
Premises, or otherwise.
19.1.2 Declare the entire amount of the Base Rent and Additional Rent
which would become due and payable during the remainder of the
term of this Agreement to be due and payable immediately, in which
event Tenant agrees to pay the same at once, together with all rents
therefore due, at the address of the City, as provided in the Notices
section of this Agreement; provided, however, that such payment
shall not constitute a penalty, forfeiture, or liquidated damage, but
shall merely constitute payment in advance of the rents for the
remainder of said term and such payment shall be considered,
construed and taken to be a debt provable in bankruptcy or
receivership.
19.1.3 Enter the Demised Premises as the agent of Tenant, by force if
necessary, without being liable to prosecution or any claim for
damages therefore; remove Tenant's property there from; and re -let
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the Demised Premises, or portions thereof, for such terms and upon
such conditions which the City deems, in its sole discretion, desirable,
and to receive the rents therefore, and Tenant shall pay the City any
deficiency that may arise by reason of such re- letting, on demand at
any time and from time to time at the office of the City; and for the
purpose of re- letting, the City may (i) make any repairs, changes,
alterations or additions in or to said Demised Premises that may be
necessary or convenient; (ii) pay all costs and expenses therefore
from rents resulting from re- letting; and (iii) Tenant shall pay the City
any deficiency as aforesaid.
19.1.4 Take possession of any personal property owned by Tenant on said
Demised Premises and sell the same at public or private sale, and
apply same to the payment of rent due, holding Tenant liable for the
deficiency, if any.
19.1.5 It is expressly agreed and understood by and between the parties
hereto that any installments of rent accruing under the provisions of
this Agreement which shall not be paid when due shall bear interest at
the maximum legal rate of interest per annum then prevailing in
Florida from the date when the same was payable by the terms
hereof, until the same shall be paid by Tenant. Any failure on the
City's behalf to enforce this Section shall not constitute a waiver of
this provision with respect to future accruals of past due rent. In
addition, there will be a late charge of Fifty ($50.00) Dollars for any
payments submitted after the due date.
19.1.6 If Tenant shall default in making any payment of monies to any
person or for any purpose as may be required hereunder, the City
may pay such expense but the City shall not be obligated to do so.
Tenant, upon the City's paying such expense, shall be obligated to
forthwith reimburse the City for the amount thereof. All sums of money
payable by Tenant to the City hereunder shall be deemed as rent for
use of the Demised Premises and collectable by the City from Tenant
as rent, and shall be due from Tenant to the City on the first day of
the month following the payment of the expense by the City.
19.1.7 The rights of the City under this Agreement shall be cumulative but
not restrictive to those given by law and failure on the part of the City
to exercise promptly any rights given hereunder shall not operate to
waive or to forfeit any of the said rights.
19.2 Default by City:
The failure of the City to perform any of the covenants, conditions and
agreements of this Agreement which are to be performed by the City and the
continuance of such failure for a period of thirty (30) days after notice thereof
in writing from Tenant to the City (which notice shall specify the respects in
which Tenant contends that the City failed to perform any such covenant,
conditions and agreements) shall constitute a default by the City, unless
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such default is one which cannot be cured within thirty (30) days because of
circumstances beyond the City's control, and the City within such thirty (30)
day period shall have commenced and thereafter shall continue diligently to
prosecute all actions necessary to cure such defaults.
However, in the event the City fails to perform within the initial thirty (30) day
period provided p p o ded above, and such failure to perform prevents Tenant from
operating its business in a customary manner and causes an undue hardship
for Tenant, then such failure to and erform (regardless of circumstances beyond
( g y
its control) as indicated above, shall constitute a default by the City.
19.3 Tenant's Rights on Default:
If an event of the City's default shall occur, Tenant, to the fullest extent
permitted by law, shall have the right to pursue any and all remedies
available at law or in equity, including the right to sue for and collect
damages, including reasonable attorney fees and costs, to terminate this
Agreement; provided however, that Tenant expressly acknowledges and
agrees that any recovery by Tenant shall be limited to the amount set forth in
Section 32 of this Agreement.
20. Indemnity Against Costs and Charges.
20.1 Tenant shall be liable to the City for all costs and charges, expenses,
reasonable attorney's fees, and damages which may be incurred or
sustained by the City, by reason of Tenant's breach of any of the provisions
of this Agreement. Any sums due the City under the provisions of this item
shall constitute a lien against the interest of the Tenant and the Demised
Premises and all of Tenant's property situated thereon to the same extent
and on the same conditions as delinquent rent would constitute a lien on said
premises and property.
20.2 If Tenant shall at anytime be in default hereunder, and if the City shall deem
it necessary to engage an attorney to enforce the City's rights and Tenant's
obligations hereunder, Tenant will reimburse the City for the reasonable
expenses incurred thereby, including, but not limited to, court costs and
reasonable attorney's fees, whether suit be brought or not and if suit be
brought, then Tenant shall be liable for expenses incurred at both the trial
and appellate levels.
21. Indemnification Against Claims.
21.1 Tenant shall indemnify and save the City harmless from and against any and
all claims or causes of action (whether groundless or otherwise) by or on
behalf of any person, firm, or corporation, for personal injury or property
damage occurring upon the Demised Premises or upon any other land or
other facility or appurtenance used in connection with the Demised
Premises, occasioned in whole or in part by any of the following:
21.1.1 An act or omission on the part of Tenant, or any employee, agent,
13
contractor, invitee, guest, assignee, sub - tenant or subcontractor of
Tenant;
21.1.2 Any misuse, neglect, or unlawful use of the Demised Premises by
Tenant, or any employee, agent, contractor, invitee, guest, assignee,
sub - tenant or subcontractor of Tenant;
21.1.3 Any breach, violation, or non - performance of any undertaking of
Tenant under this Agreement;
21.1.4 Anything growing out of the use or occupancy of the Demised
Premises by Tenant or anyone holding or claiming to hold through or
under this Agreement.
21.2 Tenant agrees to pay all damages to the Demised Premises and /or other
facilities used in connection therewith, caused by Tenant or any employee,
agent, contractor, guest, or invitee of Tenant.
22. Signs and Advertising.
Without the prior written consent of the City Manager, which consent, if given at all,
shall be at the City Manager's sole and absolute discretion, Tenant shall not permit
the painting and display of any signs, plaques, lettering or advertising material of
any kind on or near the Demised Premises. All additional signage shall comply with
signage standards established by the City and comply with all applicable building
codes, and any other municipal, County, State and Federal laws.
23. Effect of Conveyance.
The term "City" and /or "Landlord" as used in the Agreement means only the owner
for the time being of the land and building containing the Demised Premises, so that
in the event of any sale of said land and building, or in the event of a lease of said
building, the City shall be and hereby is entirely freed and relieved of all covenants
and obligations of the City hereunder, and it shall be deemed and construed without
further agreement between the parties, or between the parties and the purchaser at
such sale, or the lease of this building, that the purchaser or Tenant has assumed
and agreed to carry out all covenants and obligations of the City hereunder.
24. Damage to the Demised Premises.
24.1 If the Demised Premises shall be damaged by the elements or other casualty
not due to Tenant's negligence, or by fire, but are not thereby rendered
untenantable, as determined by the City Manager, in his sole discretion, in
whole or in part, and such damage is covered by the City's insurance, if any,
(hereinafter referred to as "such occurrence "), the City, shall, as soon as
possible after such occurrence, utilize the insurance proceeds to cause such
damage to be repaired and the Rent (Base Rent and Additional Rent) shall
not be abated. If by reason of such occurrence, the Demised Premises shall
be rendered untenantable, as determined by the City Manager, in his sole
discretion, only in part, the City shall as soon as possible utilize the insurance
proceeds to cause the damage to be repaired, and the Rent meanwhile shall
14
be abated proportionately as to the portion of the Demised Premises
rendered untenantable; provided however, that the City shall promptly obtain
a good faith estimate of the time required to render the Demised Premises
tenantable and if such time exceeds sixty (60) days, either party shall have
the option of canceling this Agreement.
24.2 If the Demised Premises shall be rendered wholly untenantable by reason of
such occurrence, the City shall have the option, but not the obligation, in its
sole discretion, to utilize the insurance proceeds to cause such damage to be
repaired and the Rent meanwhile shall be abated. However, the City shall
have the right, to be exercised by notice in writing delivered to Tenant within
sixty (60) days from and after said occurrence, to elect not to reconstruct the
destroyed Demised Premises, and in such event, this Agreement and the
tenancy hereby created shall cease as of the date of said occurrence, the
Rent to be adjusted as of such date. If the Demised Premises shall be
rendered wholly untenantable, Tenant shall have the right, to be exercised by
notice in writing, delivered to the City within thirty (30) days from and after
said occurrence, to elect to terminate this Agreement, the Rent to be
adjusted accordingly.
24.3 Notwithstanding any clause contained in this Section 24, if the damage is not
covered by the City's insurance, then the City shall have no obligation to
repair the damage, but the City shall advise Tenant in writing within thirty (30)
days of the occurrence giving rise to the damage and of its decision not to
repair, and the Tenant may, at any time thereafter, elect to terminate this
Agreement, and the Rent shall be adjusted accordingly.
25. Quiet Enjoyment.
Tenant shall enjoy quiet enjoyment of the Demised Premises and shall not be
evicted or disturbed in possession of the Demised Premises so long as Tenant
complies with the terms of this Agreement.
26. Waiver.
26.1 It is mutually covenanted and agreed by and between the parties hereto that
the failure of the City to insist upon the strict performance of any of the
conditions, covenants, terms or provisions of this Agreement, or to exercise
any option herein conferred, will not be considered or construed as a waiver
or relinquishment for the future of any such conditions, covenants, terms,
provisions or options but the same shall continue and remain in full force and
effect.
26.2 A waiver of any term expressed herein shall not be implied by any neglect of
the City to declare a forfeiture on account of the violation of such term if such
violation by continued or repeated subsequently and any express waiver
shall not affect any term other than the one specified in such waiver and that
one only for the time and in the manner specifically stated.
15
26.3 The receipt of any sum paid by Tenant to the City after breach of any
condition, covenant, term or provision herein contained shall not be deemed
a waiver of such breach, but shall be taken, considered and construed as
payment for use and occupation, and not as Rent, unless such breach be
expressly waived in writing by the City.
27. Notices.
The addresses for all notices required under this Agreement shall be as follows, or
at such other address as either party shall be in writing, notify the other:
LANDLORD: City Manager
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
With copy to: Director
City of Miami Beach
Office of Real Estate, Housing & Community Development
1700 Convention Center Drive
Miami Beach, Florida 33139
TENANT: United Police Federal Credit Union
1100 Washington Avenue, Room 110 -111
Miami Beach, Florida 33139
With copy to: United Police Federal Credit Union
400 NW 2 Avenue, Suite 309
Miami, Florida 33128
All notices shall be hand delivered and a receipt requested, or by certified mail with
Return receipt requested, and shall be effective upon receipt.
28. Entire and Binding Agreement.
This Agreement contains all of the agreements between the parties hereto, and it
may not be modified in any manner other than by agreement in writing signed by all
the parties hereto or their successors in interest. The terms, covenants and
conditions contained herein shall inure to the benefit of and be binding upon the City
and Tenant and their respective successors and assigns, except as may be
otherwise expressly provided in this Agreement.
29. Provisions Severable.
If any term or provision of this Agreement or the application thereof to any person or
circumstance shall, to any extent, be invalid or unenforceable, the remainder of this
Agreement, or the application of such term or provision to persons or circumstances
other than those as to which it is held invalid or unenforceable, shall not be affected
thereby and each term and provision of this Agreement shall be valid and be
enforced to the fullest extent permitted by law.
16
30. Captions.
The captions contained herein are for the convenience and reference only and shall
not be deemed a part of this Agreement or construed as in any manner limiting or
amplifying the terms and provisions of this Agreement to which they relate.
31. Number and Gender.
Whenever used herein, the singular number shall include the plural and the plural
shall include the singular, and the use of one gender shall include all genders.
32. Limitation of Liability.
The City desires to enter into this Agreement only if in so doing the City can place a
limit on the City's liability for any cause of action for money damages due to an
alleged breach by the City of this Agreement, so that its liability for any such breach
never exceeds the sum of Ten Thousand ($10,000.00) Dollars. Tenant hereby
expresses its willingness to enter into this Agreement with Tenant's recovery from
the City for any damage action for breach of contract to be limited to a maximum
amount of $10,000.00. Accordingly, and notwithstanding any other term or condition
of this Agreement, Tenant hereby agrees that the City shall not be liable to Tenant
for damage in an amount in excess of $10,000.00 for any action or claim for breach
of contract arising out of the performance or non - performance of any obligations
imposed upon the City by this Agreement. Nothing contained in this Section or
elsewhere in this Agreement is in any way intended to be a waiver of the limitation
placed upon the City's liability as set forth in Florida Statutes, Section 768.28.
33. Surrender of the Demised Premises.
Tenant shall, on or before the last day of the Term herein demised, or the sooner
termination thereof, peaceably and quietly leave, surrender and yield upon to the
City the Demised Premises, together with any and all equipment, fixtures,
furnishings, appliances or other personal property, if any, located at or on the
Demised Premises and used by Tenant in the maintenance, management or
operation of the Demised Premises, excluding any trade fixtures or personal
property, if any, which can be removed without material injury to the Demised
Premises, free of all liens, claims and encumbrances and rights of others or broom -
clean, together with all structural changes, alterations, additions, and improvements
which may have been made upon the Demised Premises, in good order, condition
and repair, reasonable wear and tear excepted, subject, however, to the
subsequent provisions of this Section. Any property which pursuant to the provisions
of this Section is removable by Tenant on or at the Demised Premises upon the
termination of this Agreement and is not so removed may, at the option of the City,
be deemed abandoned by Tenant, and either may be retained by the City as its
property or may be removed and disposed of at the sole cost of the Tenant in such
manner as the City may see fit. If the Demised Premises and personal property, if
any, be not surrendered at the end of the Term as provided in this Section, Tenant
shall make good the City all damages which the City shall suffer by reason thereof,
and shall indemnify and hold harmless the City against all claims made by any
succeeding tenant or purchaser, so far as such delay is occasioned by the failure of
Tenant to surrender the Demised Premises as and when herein required.
17
34. Time is of the Essence.
Time is of the essence in every particular and particularly where the obligation to
pay money is involved.
35. Venue:
This Agreement g t shall be deemed to have been made and shall be construed and
interpreted in accordance with the laws of the State of Florida. This Agreement shall
be enforceable in Miami -Dade County, Florida, and if legal action is necessary by
either party with respect to the enforcement of any and all the terms or conditions
herein, exclusive venue for the enforcement of same shall lie in Miami -Dade
County, Florida.
CITY AND TENANT HEREBY KNOWINGLY AND INTENTIONALLY WAIVE THE
RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING THAT THE CITY
AND TENANT MAY HEREIN AFTER INSTITUTE AGAINST EACH OTHER WITH
RESPECT TO ANY MATTER ARISING OUT OF OR RELATED TO THIS
AGREEMENT.
36. Radon is a naturally occurring radioactive gas that, when it is accumulated in a
building in sufficient quantities, may present health risks to persons who are
exposed to it over time. Levels of Radon that exceed Federal and State guidelines
have been found in buildings in Florida. Additional information regarding Radon and
Radon testing may be obtained from your County Public Health Unit.
37. No Dangerous Materials.
Tenant agrees not to use or permit in the Demised Premises the storage and /or use
of gasoline, fuel oils, diesel, illuminating oils, oil lamps, combustible powered
electricity producing generators, turpentine, benzene, naphtha, propane, natural
gas, or other similar substances, combustible materials, or explosives of any kind,
or any substance or thing prohibited in the standard policies of fire insurance
companies in the State of Florida. Any such substances or materials found within
the Demised Premises shall be immediately removed.
Tenant shall indemnify and hold the City harmless from any loss, damage, cost, or
expense of the City, including, without limitation, reasonable attorney's fees,
incurred as a result of, arising from, or connected with the placement by Tenant of
any "hazardous substance" or "petroleum products" on, in or upon the Demised
Premises as those terms are defined by applicable Federal and State Statute, or
any environmental rules and environmental regulations promulgated thereunder.
The provisions of this Section 37 shall survive the termination or earlier expiration of
this Agreement.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
18
IN WITNESS WHEREOF, the parties hereto have caused their names to be signed
and their seals to be affixed, all as of the day and year first above written, indicating their
agreement.
Attest: CITY OF MIAMI BEACH, FLORIDA
tuA r 14/(4 ` Alt
Robert Parcher, CITY CLERK Matti Herrera Bower, MAYOR
Attest: UNITED POLICE FEDERAL CREDIT UNION
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4( I NESS Tabitha Redero, INTERIM PRESIDENT
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20
EXHIBIT 7.3
AUTOMATED TELLER MACHINE (ATM) USE AGREEMENT
THIS USE AGREEMENT (hereinafter referred to as the "Agreement ") is made by
and between the UNITED POLICE FEDERAL CREDIT UNION (hereinafter referred to as
the "User "), a federally chartered credit union whose principal address is 400 NW 2nd
Avenue, Suite 309, Miami, Florida 33128, and the CITY OF MIAMI BEACH (hereinafter
referred to as the "City "), a Florida municipal corporation, having its principal office at 1700
Convention Center Drive, Miami Beach, Florida 33139.
In consideration of the terms, covenants and conditions hereinafter set forth, City hereby
authorizes User to use certain space in the City -owned premises, located at 1100
Washington Avenue, Miami Beach, Florida, 33139, as identified in Exhibit A on page 30 of
this Agreement (Use Location), for the term of this Agreement, in accordance with the
following terms and provisions.
1. Use.
User shall use and occupy the Use Location for the sole purpose of installing,
operating, and maintaining thereon, an automated teller machine (ATM) in
accordance with the terms and provisions of this Agreement.
2. Term.
The initial term of this Agreement shall be for a period of three (3) years,
retroactively commencing on the 1 day of October, 2010 (Commencement Date),
and ending on the 30 day of September, 2013.
3. Renewal Option.
Provided that the Tenant is not in default, the term of this Agreement shall
automatically extend for one additional period of three (3) years, and without the
Landlord and /or Tenant being required to take any additional action to extend same.
Notwithstanding the preceding sentence, this Agreement shall run concurrent with,
and shall not be renewed and /or extended beyond, the term of that certain Lease
Agreement, dated October 27, 2010, between the City of Miami Beach and the
United Police Credit Union. In the event the aforestated Lease Agreement is
terminated or otherwise expires prior to the term stated therein, then this Use
Agreement shall automatically terminate, and the City and User shall have no
further obligation with regard to same, except for any and all monies that may be
due and payable by User as of the date of termination and User's obligation to
restore the ATM Location, as provided herein.
4. Installation and Operation of the ATM.
4.1 City herein allows User to install and operate an ATM. Any and all costs
associated with the design, permitting and any required approvals,
construction, and maintenance shall be at the sole cost and expense of the
User.
21
4.2 User shall be solely responsible for obtaining all approvals from the City and
any other regulatory agencies, including approvals by the City in its
regulatory capacity.
4.3 User shall submit to City, acting in its proprietary capacity as owner of the
property, plans and specifications for the ATM, to be submitted to the City
Manager or his designee for his review and approval.
4.4 Following review and approval of the plans and specifications, User shall
seek and obtain any and all necessary approvals and permits, including but
not limited to, a building permit for construction of the proposed
improvements within the Use Location including, without limitation, the ATM.
4.5 User shall not commence construction until all necessa ry permits and
approvals for installation of the ATM are issued, and, following
commencement shall thereafter continue to prosecute installation of the ATM
with diligence and continuity to completion.
4.6 Complete installation of the ATM shall be completed no later than two (2)
months from the issuance of a building permit for same.
4.7 User herein acknowledges, represents and warrants that any and all cost
associated with the purchase and installation of the aforestated ATM shall be
the sole responsibility of the User.
5. Maintenance and Service of the ATM.
5.1 User shall operate, maintain, service, and repair, as necessary, the ATM,
and shall be solely responsible for any and all costs and expenses related to
such operation, maintenance, service, and repair of the ATM.
5.2 User shall supply, install and replace, as necessary, paper for transaction
receipts and printer ribbons, at its sole cost and expense.
5.3 User shall be responsible for providing, at its sole cost and expense, all
necessary improvements, to install, operate and maintain the ATM. User
shall pay before delinquency any and all charges for utilities used by, for, or
on behalf of the activities contemplated herein, including but not limited to,
electricity and telephone.
5.4 User shall be responsible for providing a dedicated leased data circuit. User,
at its sole cost and expense, shall be responsible for all costs, including but
not limited to installation, maintenance and monthly charges relating to the
leased data circuit.
5.5 User shall provide support to the City, its employees, and its customers, by
providing a dedicated phone line, which shall be reached by dialing the
following number 305 - 329 -1400.
22
5.6 Maintenance services will be performed by the User, and /or by the party
designated in Exhibit B on page 31. Any changes to said party designation
I I
shall only occur with the prior written consent of the City.
5.7 User shall handle customer complaints, Reg E claims, and any and all other
related operational issues as they arise and in a timely manner.
6. Title / Insurance / Indemnification.
6.1 The ATM shall remain the property of User. Notwithstanding the preceding
sentence, in no event shall City be responsible or liable for any damage,
destruction, or theft to all or a portion of the ATM, nor be responsible for any
stolen or damaged personal property of any patrons, guests, invitees, and /or
any other third parties utilizing the ATM. User shall indemnify and hold
harmless the City.
6.2 Insurance.
User shall maintain, at its sole cost and expense, the following types of
insurance coverage at all times throughout the term of this Agreement.
(i) Comprehensive General Liability in the minimum amount of One
Million Dollars ($1,000,000) per occurrence for bodily injury and
property damage. This policy must also contain coverage for
premises operations, products and contractual liability.
(ii) Workers Compensation Insurance shall be required under the Laws
of the State of Florida.
The policies of insurance referred to above shall not be subject to
cancellation or changing coverage except upon at least thirty (30) days prior
written notice to the City, and then only subject to the prior written approval of
the City Manager or his designee. Prior to the Commencement Date of this
Agreement, User shall provide City with a Certificate of Insurance for each
such policy. ALL POLICIES SHALL NAME THE CITY OF MIAMI BEACH AS
AN ADDITIONAL NAMED INSURED. All such policies shall be obtained from
companies authorized to do business in the State of Florida with an A.M.
Best's Insurance Guide (latest edition) rating acceptable to the City's Risk
Manager, and any replacement or substitute company shall also be subject
to the approval of the City's Risk Manager. Should User fail to obtain,
maintain or renew the policies of insurance referred to above, in the required
amounts, the City may, at its sole discretion, obtain such insurance, and any
sums expended by City in obtaining said insurance, shall be repaid by User
to City, plus ten percent (10 %) of the amount of premiums paid to
compensate City for its administrative costs. If User fails to repay City's
expenditures within fifteen (15) days of demand, the total sum owed shall
accrue interest at the rate of twelve percent (12 %) until paid and such failure
shall be deemed an event of default hereunder.
23
6.3 Indemnification.
User agrees to indemnify and hold harmless the City of Miami Beach, its
officers, employees and agents, from and against any and all actions, claims,
liabilities, losses, and expenses, including, but not limited to, attorneys' fees,
for personal, economic or bodily injury, wrongful death, Toss of or damage to
property, at law or in equity, which may arise or be alleged to have arisen
from the negligent acts, errors, omissions or other wrongful conduct of the
User, its employees, agents, officers, patrons, guests, invitees, or any other
person or entity acting under User's control, in connection with this
Agreement; and to that extent, the User shall pay all such claims and losses
and shall pay all such costs and judgments which may issue from any lawsuit
arising from such claims and losses, and shall pay all costs and attorneys'
fees expended by the City in the defense of such claims and losses,
including appeals.
This Subsection 6.3 shall survive the termination or expiration of this
Agreement. Subsection 6.3 shall not apply, however, to any liability that
arises as a result of the willful misconduct or gross negligence of the City, its
agents, servants or employees.
7. Taxes and Liens.
User shall at all times keep the ATM free of all liens and encumbrances that may be
imposed by anyone on the ATM and /or the ATM Location. User agrees to and shall
pay before delinquency all taxes and assessments of any kind assessed or levied
upon User by reason of this Agreement or by reason of the activities of User under
this Agreement. User shall also pay for any fees imposed by law for licenses or
permits for any business or activities of User under this Agreement.
If ad valorem taxes should be assessed by the Miami -Dade County Tax Appraiser,
User shall be solely responsible for payment of same.
8. Payment Obligations.
City and User agree to divide surcharge fees during the term of this Agreement, as
set forth in Exhibit C on page 35.
8.1 If permitted by law and by network regulations, User will surcharge its clients
(i.e. non - members) a convenience fee on a per transaction basis, as shown
in Exhibit C.
8.2 User shall monitor the ATM on a daily basis.
8.3 User shall provide City with an Executive Monthly Report showing all ATM
activity for the month and shall ensure that accurate settlements are
deposited to the City, monthly.
8.4 User shall pay any amount due to City by the 30th day of the following
month.
24
9. Termination for Convenience.
Notwithstanding any other provision of this Agreement, the City may, at its sole
discretion, and for its convenience and without cause, terminate this Agreement at
any time during the term hereof, without any penalty or liability to City, by giving
written notice to User of such termination, which h lI
s a become effective thirty (30)
days following receipt by the User of the written termination notice.
10. User's Right to Terminate.
User may terminate this Agreement at any time if the ATM fails to break even or
produce a profit for User, without any penalty or liability to User (other than fees
owed to City under this Agreement) by giving City written notice at least thirty (30)
days prior to such termination.
11. Surrender of ATM Location.
At the expiration of this Agreement, or in the event of a termination, or in the event
this Agreement is otherwise declared null and void and of no further force or effect,
User shall surrender the ATM Location in the same condition as said Location was
prior to the commencement of this Agreement, reasonable wear and tear excepted.
User shall restore the ATM Location to a satisfactory condition, as shall be
determined solely by the City in its reasonable discretion and judgment. User's
obligation to observe or perform this covenant shall survive the expiration or other
termination of this Agreement. Continued occupancy of the ATM Location after
termination of the Agreement shall constitute trespass by the User, and may be
prosecuted as such. In addition, the User shall pay to the City One Thousand
($1,000) Dollars per day as liquidated damages for such trespass and holding over.
12. Entire Agreement.
This Agreement and the exhibits attached hereto constitute the entire Agreement
between User and City with respect to the subject matter hereof and shall
supersede all previous negotiations, commitments and writings. This Agreement
may not be modified in any manner except by an instrument in writing signed by a
duly authorized officer or representative of both User and City.
13. Notices.
All notices from the City to the User shall be deemed duly served upon receipt, if
mailed by registered or certified mail with a return receipt, or hand delivered, to
the User at the following address:
United Police Federal Credit Union
1100 Washington Avenue, Room 110 -111
Miami Beach, Florida 33139
With copy to: United Police Federal Credit Union
400 NW 2 Avenue, Suite 309
Miami, Florida 33128
All notices from the User to the City shall be deemed duly served upon receipt, if
mailed by registered or certified mail return receipt requested, or hand delivered,
to the City at the following addresses:
25
City Manager
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
With copy to: Director
City of Miami Beach
Office of Real Estate, Housing & Community Development
1700 Convention Center Drive
Miami Beach, Florida 33139
User and City may change the above mailing address at any time upon giving
the other art written
p y notification. All notices under this Agreement must be in
writing.
14. Binding Effect: Successors and Assignments.
This Agreement is binding on the Parties and their respective successors and
assigns. User may not assign this Agreement without the prior written consent of
City.
15. Relationship of the Parties.
It is expressly understood and acknowledged that it is not the intention or purpose
of this Agreement to create, nor shall the same be construed as creating, any type
of partnership, relationship or joint venture.
16. Governing Law and Exclusive Venue.
This Agreement shall be governed by, and construed in accordance with, the laws
of the State of Florida, both substantive and remedial, without regard to principles of
conflict of laws. The exclusive venue for any litigation arising out of this Agreement
shall be Miami -Dade County, Florida, if in State Court, and the U.S. District Court,
Southern District of Florida, if in federal court. BY ENTERING INTO THIS
AGREEMENT, CITY AND USER EXPRESSLY WAIVE ANY RIGHTS EITHER
PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED
TO, OR ARISING OUT OF, THIS AGREEMENT.
17. Laws.
17.1 Compliance.
User shall comply with all applicable City, County, State, and Federal
ordinances, statutes, rules and regulations, including but not limited to all
applicable environmental City, County, State, and Federal ordinances,
statutes, rules and regulations.
17.2 Equal Employment Opportunity.
Neither User nor any affiliate of User performing services hereunder, or
pursuant hereto, will discriminate against any employee or applicant for
employment because of race, creed, sex, color, national origin, sexual
orientation, and disability, as defined in Title I of ADA. User will take
affirmative steps to utilize minorities and females in the work force and in
26
correlative business enterprises.
17.3 No Discrimination.
User agrees that there shall be no discrimination as to race, sex, sexual
orientation, color, creed, national origin, familial status, religion or handicap,
, 9 p,
in its employment practice or in the operations referred to by this Agreement;
and further, there shall be no discrimination regarding any use, service,
maintenance, or operation within the area. All services offered within the area
shall be made available to the public, subject to the right of the User and the
City to establish and enforce rules and regulations to provide for the safety,
orderly operation and security of the area.
Pursuant to Sections 62 -90 and 62 -91, of Chapter 62, of the Miami Beach
City Code entitled "Human Relations ", User, by executing this Agreement,
certifies that it does not discriminate in its membership or policies based on
race, color, national origin, religion, sex, sexual orientation, familial status or
handicap.
18. Miscellaneous.
18.1 No Partnership.
Nothing contained in this Agreement shall constitute or be construed to be or
create a partnership or joint venture between the User and City.
18.2 Modifications.
This Agreement cannot be changed or modified except by agreement in
writing executed by all parties hereto.
18.3 Headings.
The section, subsection and paragraph headings contained herein are for
convenience of reference only and are not intended to define, limit, or
describe the scope or intent of any provision of this Agreement.
18.4 Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns.
18.5 Clauses.
The illegality or invalidity of any term or any clause of this Agreement shall
not affect the validity of the remainder of the Agreement, and the Agreement
shall remain in full force and effect as if such illegal or invalid term or clause
were not contained herein unless the elimination of such provision
detrimentally reduces the consideration that either party is to receive under
this Agreement or materially affects the continuing operation of this
Agreement.
18.6 Severability.
If any provision of this Agreement or any portion of such provision or the
application thereof to any person or circumstance shall be held to be invalid
27
or unenforceable, or shall become a violation of any local, State, or Federal
laws, then the same as so applied shall no longer be a part of this Agreement
but the remainder of the Agreement, such provisions and the application
thereof to other persons or circumstances, shall not be affected thereby and
this Agreement as so modified shall remain in full force and effect.
18.7 Right of Entry.
City, in response to emergency situations, said emergency situations to be
determined in the City's sole and reasonable judgment and discretion, shall
have the right to enter into and upon any and all parts of the Use Location.
18.8 Signage.
Any signage posted by User on its facilities and equipment shall be subject to
the prior approval of the City as to size, shape and placement of same. Any
advertising, signage and postings shall be approved by the City, and shall be
in accordance with all applicable Municipal, County, State and Federal laws
and regulations.
18.9 No Waiver.
No waiver of any covenant or condition of this Agreement by either party
shall be deemed to imply or constitute a waiver in the future of the same
covenant or condition or of any other covenant or condition of this
Agreement.
18.10 No Third Party Beneficiary.
Nothing in this Agreement shall confer upon any person or entity, other than
the parties hereto and their respective successors and permitted assigns,
any rights or remedies by reason of this Agreement.
18.11 Attorneys' Fees.
If it becomes necessary for User or City to enforce their respective rights
under this Agreement or any part hereof through litigation, User and City
agree that the prevailing party shall be entitled to recover from the other party
all costs and expenses of such litigation, including a reasonable attorneys'
fee and costs, for all trial and appellate proceedings.
19. Limitation of Liability.
City desires to enter into this Agreement placing the operation and management of
the area(s) in the hands of a private management entity only if so doing the City can
place a limit on its liability for any cause of action for breach of this Agreement, so
that its liability for any such breach never exceeds the sum of $10;000.00. User
hereby expresses its willingness to enter into this Agreement with a $10,000.00
limitation on recovery for any action for breach of contract. Accordingly, and in
consideration of the separate consideration of $10,000.00, the receipt of which is
hereby acknowledged, the City shall not be liable to User for damages to User in an
amount in excess of Ten Thousand ($10,000.00) Dollars, for any action for breach
of contract arising out of the performance or non - performance of afly obligations
imposed upon the City by this Agreement. Nothing contained in this paragraph or
elsewhere in this Agreement is in any way intended to be a waiver of limitation
28
placed upon the City's liability as set forth in Florida Statutes, Section 768.28.
IN WITNESS WHEREOF, the parties hereto have caused their names to be signed
and their seals to be affixed, all as of the day and year first above written, indicating
their agreement.
ATTEST: CITY OF MIAMI BEACH, FLORIDA
IAAA Pait_duk
Robert Parcher, CITY CLERK 9or • . Gon ale , CITY r ANAG
ATTEST: UNITED POLICE FEDERAL CREDIT UNION
O
��CRETARY Tabitha Redero, INTERIM PRESIDENT
K; laon aV o
(Print Name)
F: \RHCD \$ALL \ECON \$ALL ASSET\United Police Federal Credit Union\ATM Use Agreement.FINAL.doc
APPROVED AS TO
FORM & LANGUAGE
FOR EXECUTION
tb 6
City Attomey Date
1►.
29
•
EXHIBIT A
(ATM Use Location) •
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EXHIBIT B
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QUAUTY CARE MAINTENANCE AGREEMENT
Agreement No: - 1 ) 031C' 10 commencement Date: 07/011010 initial Torm:. 1 ... Year(11)
Name of Subscriber: _ 4 r - • ::•.I t- -4. -_ it' c. . I • a
Address: 400 NW 2nd Ave STE 309
City: NAM I . _ .. _ State: FL Zip: ,33121 & . .
This Agreement Is made and entered into by and between Diebold, Incorporated of 5995 Mayfair Road, North Canton,
Ohio 44720, an Ohio corporation (hereinafter "Diebold") and the Subscriber, whose name tend address is set forth above
(hereinafter 'Subscriber"). .
1. Eauipment Scheme bear interest et the rata of one and ono -pelf percent (1.1 %) per
No metnterenoo Or Other eenioee ere ordered by exeoution of Bhi5 month on the tntpald balance or the . . , t , , . - • by law,
Agreement edema. For equipment to be covered hereby or verb rower Is Maas. In the ' ; Invoice
servioes ordered. an Equipment schedule (Diebold Form 2312 -K) when due, Diebold may, In tights end
or. armour documerd shall be completed by Diebold and
em
P Y provided remedies wettable to Diebold, • - under this
to Subscriber. Such Equipment Schedule shall der define the Agreement and any or all Equipment z • �`' UM Subscribers
Subscribers
Schedule service Plan or services being provided. Each such is account hes no mounts more than tin s " ■ ;
deemed a n el MI; pest due.
Pa Agreement. to the even{ of conflict between
en Equipment Schedule end the provisions hereof, the provisions
of the Equipment Schedule s control, except with reapeal to O. t lrntted/W$rrenty
Section 6 and 7 hereof, which shall govern in the event of any a) With respect 10 services provided for an annual serve* fee,
cot, fat with any other provision. Diebold warrant') that It well re- perform suet services, during
the hours of coverage aid forth In the Equipment Schedule, If
2, such services prove defective during the term hereof,
For the lee set Perth in a given Equipment Schedule. Diebold wet, provided Subsodber notes Diebold during the term In the
by Its authodbeed representatives, Inspect and repair the same manner as the Subscriber otherwise notifies Diebold of
equipment itemized on such Equipment Schedule, or provtds the need for service on the covered equipment.
auoh other aerviues• es described on the Equipment Schedule. tf b) With respect 10 parts and servtcne provided on a tune and
the service plan described on an Equipment Schedule )nor es • material bests. Diebold warrants the same to be free of
preventive maintenance, such preventive maintenance which defects In materials or workmanship for a period of thirty (30)
Diebold deems necessary to maintain the equipment In days from the data service was performed or from
reasonable bperathg oondtlon will be provi dad. Diebold may installation In the case of per. Subscriber shall notify
Provide any preventiive maintenance at the same time as Diebold Diebold within tan (10) days of the end of such thirty (30) day
1s providing other service on the covered equipment. �Subscrber period of any failure to satisfy such warranty and a failure to
shall requeal service by gaoling Diebold at 1 old, Huffy whithln such period waives any claim related thereto,
c) In the event of a breach of the forgoing warranty In (a) and/or
8, Fens (b) of tilts Section 6, the sole liability of Diebold and the pole
• The Initial annual fee for services shall be as 410104h on the remedy of Subscriber shell be One repair or replacement of
E4wprnent Schedule, or, with respect to 1W for a eMoe the pert, or re- performance of the service, whioh proved to
performed on a "time and material" basis, et Dlebold'g then be defective. Subscriber adphow)edges end agrees that
current rates therefor, For annual periods after the initial annual limiting Dlebold's liability to this remedy does not cause this
invoice period, the annual service fee ghat! be at Diebold's then Agreement to fob of Its essential purpose or otherwise render
currant.rata. Diebold will advise Subscriber of Its current rates this Agreement invalid or unenforceable.
upon the request. of Subscriber, Should Subscriber request 0) THE FOREGOING WARRANTY CONSTfTUTES THE SOLE
service and Subscriber has amounts peat due for annual service WtBtUTY OP DIEBOLD AND THE 801.E MARRY OF
fees or time and material fees due hereunder, Subscriber shall be SUISCR$ER FOR DIPEGTIVE MATIRIALS OR
deemed to hove requested aerobe pursuent to Section 12, WORKMANSHIP, WHE7HEIR AMINO UNIMIR CONTRACT,
TORT, 11111tiCT LIA9aLrIY OR OTHU* FORM OP ACTION,
4. Taxes ALL OMR WARRANT*, UMW OR IMPI.ED,
in eddttian to the phonies for the services, Subsartber shall INCLUDING TM WADES OP aillacHANrAI1UTy
eddl6ona$y pay any end all *alai. Ilse, ekdse, gross receipts. AND PITHRSS MR A !*MT)C%LAR PURPOSE, ARE
value added or other taxes or tees imposed 'by any federal. state ate....
or local governmental authority, associated with Diebold's T, LJAIlILfI1f
performance, excluding only taxes based on Dlebold's net Income
or fine employment by Diebold of Dlebold's employees AGREEMENT, T , THE P ANY OTHER PROVISION OF THlB
At9REEAIENT, THE PARTIES ACKNOWLEDGE AND AmREE:
6, TaKma of t?evrttQRt I) DIEBOLD IS NOT AN INSURER ;
Unlash an Equipment t3clreduie provktea otherwise. Subscriber II) THE PAYMENTS PROVIDED FOR HEREIN ARE BASED
wry be involved annually In advance, All Invokes for SERV Y ON T V' AND THE GOODS AND
periodic fees 9ERVICEB PROVIDED AND ARE UNRELATED 70 THE
are due prior to the commencement date for the applicable lee VALUE OP SUBSCIn8ER's PROPERTY OR THE
period. For Equipment Schedules added subaaquenc to the date PROPERTY OF OTHERS LOCATED ON eUISSCRe8Er1'g
hataof, Diebold may prorate its Invoice to provide for common PREMISES OR WITHIN THE EQUIPMENT;
bhvoice date for ell equipment covered, Ali Invoices for work 11) THE PROVIDING OF SERVICE AND/OR PREVENTIVE
performed on a time and material basis will be due upon receipt. MAINTENANCE D0E8 NOT GUARANTEE THE
All Invoices not paid within thirty (30) days of the date due CONTINUED OR UNINTERRUPTED OPERATION OF
Venue . 1.1
THE EQUIP/AENT OR CONNECTED SYSTEMS; AND
04/09
Page 1 pf 4
31
r
EXHIBIT 5.6
Iv IN NO EVENT SHALL DIEBOLD BE LIABLE FOR g) service auts$de the hours of coverage :set forth on the
LOSSES OR DAMAGE THAT $VBSCRIBER SUSTAINS Equipment Schedule, or waiting time In excess of fifteen (15)
DUE TO BURGLARY, ROBBERY, ILLEGAL AcT(VJtY, minutes, If no hours are set forth. coverage shag be from
PE' PLOD°, OR OTI1ER CAUSE,
E OR AS A RESULT &00 ®,, to 6;00 p,m. prevailing local time at the else of the
OF LOSS OR COMPROMISE OF DATA, OR equipment OR egtent exohtsive of Saturdays, Sundays. or holidays
FACILITIES, OR FOR THE MiSDISPENSI NiG OR LOSS
oP FUNDS, DOCUMENTS, CURRENCY OR OTHER generally observed by stabs or local 1gOV+sttMrents In the arse
ITEMS OF VALUE. DIEBOLD SHALL NOT SE LIABLE Where the ®qulpment b located; :,
FOR 8PSCtA1., INCIDENTAL INOfttECT OR - malfunctions resulting from the el foftwere, media,
0OII8ECUEN IAt. DAMAGES OF ANY KIND OR supplies, ,Indio, oensurn$blea are hot furnished by
NATURE, OR FOR LOSS OP PROFIT'S, INCOME OR . , ° Diebold or which do not ,nest standards set by the
BUSINESS OPPORTUNITY, WHETHER ANY OF SUCH sgttitpment manufacturer.
DAMAGES oR LOSSES ARISE UNDER CONTRACT, I) service on equipment oceriponents or other items that are no
TORT, STRICT LIABILITY, OR OTHER FORM OF longer supported by Diebold or the manufacturer. or
•
ACTION. AND WHETHER ORNOTOrEOotn HAS BEEN p setting, changing, securing or managing passwords or codes
ADVISED OF THE POSSIBILITY THEREOF. that can be tetrad to aocees equipment, software, dovlcea or
b) AS A MATERIAL CONS/DEFLATiON FOR LIEBOLD facilities.
ENTERING INTO THIS AGREEMENT THE PARTIES AGREE
THAT iF, NOTWTTH8TANDING THE FOREGOING If Diebold determines that the service requested by Subscriber Is
UD IONS, ANT , BUcH iJABIL TY SHALL N D EVENT excluded pursuant to the above, and 8Ub5 rtbe requests Diebold
E(CEEO THE ANNUAL FEE SPECIFIED IN THE EQUIPMENY perform such aervine, rretvioe will be provided pursuant to
SCHEDULE FOR THE EQUIPMENT OR SERVICE RELATED Section 12 hereof.
TO THE EVENT GIVING RISE TO THE LIABILITY OR
FIFTE N THOUSAND DOLLAliS (s15,000.00), meet -Emit 10. Parts
Is GREATER. SUBSCRIBER MAY OBTAIN A GREATER Unless en Equipment Schedule indicates that parts era Included.
LIMITATION OF UABIteTY, IF D@$fRED BY THE PAYitlll fT Subscriber will pay Diebold's then current tat price for eny
OF AN INCREASED ANNUAL FEE, WH ICH SMAU. SE replacement parts necessary for the performance of service on
NEOOTIAlliel BY THE PARTIES SUBSEQUENT TO equipment, subject to a nlintmurn pitta oharge of e25.00 on any
Dt BOLD'8 RECS1pi OF SUBSCRIBER'S WRITTEN servtoe oaA wherein the reptecem¢nt of parts occurs. The parts
REQUEST THEREFOR THIS SUBSECTION 7(b) SHALL NOT used by Diebold b perform maintenance and repair service
APPLY TO CAUSES OR CLAIMS FOR WHiCH DIEBOLD HAS hereunder may be new, rebuilt or refurbished, Title to ports shell
INDEMNITY OBLIGATIONS PURSUANT TO SECTION 14. pass to Subscriber when the saute are installed by Diebold. Title
e) THE PROVISIONS OF THIS SECTION 7 CcNSTiTUTE AN to parts that are removed and replaced by Diebold
ALLOCATION OF RISK BEN THE PARTIES AM THE Diebold's option. vest In Diebold at the time of may,
PRICE CHARGED TO SUBSCRIBER t8 BASED ON SUCF! SubscrIber shag be on notice that parts may not be exported or
ALLOCATION OF RISK.
re exported to rertrtded geographies. Diebold shall have no
8. Term obligations related to the proper disposal or destruction of parts
The term of this Agreement shall be for the initial term set forth removed from Suttees equipment in course of providing
above with Dlrbold providing !! starting on the aerv)oes, and this exclusion from responalbi lty applies without
above date, Unte t+eln11r f�r due to a defauh, Ilmitation, to dale storage devices that contain $Ubscrtbees or
this Agreement shag automatically rarew for renewer terms al one const>trter'e confidential or nonprlbec personal Information. No
(1) year each unless ether Subsortber or Diebold Sloss notice of title to any computer programs Inoiuded in parts span ever pass to
cancellation in writes programs. Diebold grunts lo Subscriber s person to the other al least ninety (90) days prior to ► V ► Ito such parts that Include person computer
the end of tether' current farm. The pro'sion�a of Sections 4, S, al,
6. 7. 8. 9, 10, 11, 13, 16. 17, 18, 18 and 20 shall survive nontransferable, nonexclusive right to use such computer
termination. programs In conjunction with The equipment while Subscriber Is
the rightful possessor of the equipment, Such license extends
g, to ►s only to the use of the computer programa In conjunction with
The services b be provided for an annual service tee do not spealfro equipment on which the name are Installed by Diebold.
ihclt Such computer programs are protected by the copyright and ether
a) service required as a result of abuse, Testae, electrical laws of the UnKed States. Subscriber agrees not to copy.
a ,sutras or tiv+rtuaQons, glass brestca a or disolose, transfer. decompte, reverse assemble, reverse
storms, power ,s
damage. failures la follow user maintenance and !i engineer, or ott�rvdse modify such oomputer programs. .
instructions, or the !enure or results of failure tM Computer programs for which separate charge
Interconnected required by Diebold ate licensed only is normally software or its not spQeifred on
required y pursuant to a separate.
an Equipment Schedule. Including, burl not emitted io, wiring, agreement. Die is granted the right to operate copies
conduit, or voice or data transmission equipment or facilities; of Diebold computer programs In Subscriber's equipment to
b) consumable items including, but not Itmlted to, media, aim,
facilitate service activities, and Diebold may remove and disable
audit lopes, ribbons, carrier bodies, light bulbs. customer such programs at any time either during or alter termination of ire
arazarmt cards, envelopes or video cassettes; Agreement.
c) lodcouts or damages caused by war, pub6o
4
vandalism, Illegal activity, fire. water or enter
11. Duties of Subsalber
t>urillary, loft, . minln8, *Mine of foundations, expansion
the term of nee Agreement. Subscriber shall at en times
Of doors or , lose' of combinations or by Imperfect provide a suitable operating environment as cpecdfied by the
manufacturer of the equipment and operate the equipment In dar►s or time looks;
serviette I tiifd because of contact, modification, service, accordance with the manufacturer's recommendations. If any
d) serviette
equipment by nen•Diebald equipment covered try an Equipment Schedule or software
nspection. or tempering with equipment
designated personnel, relocation a! equipment, changes to operating therein has been furnished by other then Diebold,
cortaguraUon, Software or dale, Installnthon of nddliional , Subscriber stall have the ultimate respansBty for obtaining and
�� or rur+vtions; major overhauls, or providing to Diebold any noccssary schematic drawings, wiring
refurbishing the equipment; diagrams, computer software. doctrnentatlon. authatfzations
e) automatic lager machine cassettes or pneumatic tube and/or replacement parts that may be necessary for Diebold to
carers, unless specified an an Equipment Schedule; access operate and service the equipment, and to backup and
1) the changing of any iooko or aombdrratlons, or restore computer programs that operate therein, and Subscriber
repleoement or keys unless clAed on an Equipment
Schedule: shall defend and hold Diebold harmless from and against any
dalms made against Diebold as a result of Dlebotd performing
Version • 1.1
04R )
Page 2 of 4
32
I '
EXHIBIT 5.6
•
maintenance or other Menke& on or with reaped to such that the Subscriber have Diebold inspect the equipment (pursuant
equipment under the terms hereof, Subscriber shall provide free. to Section 12) for damage and to assure that ell manufacturer -
deer and safe amen Io the equipment and a safe and bereft recommended changes hove been made and that die equipment
free work area for Diebold and its personnel hereunder. te otherwise In good working order. Subscriber shall have Diebold
12. Other Services perform any required servicing or repairs recommended by
Other leer may theboid prior to the acceptance of the equipment for service
Subscriber m ay hnm time la not Inducted lime the , t that Diebold provide coverage, Diebold may Met rsqutre that service be performed
o on a a services
stns EqulpePant Seheduie equipment pursuant k Section 12 for a specified period of time so assure that
Pe , or for which no • the equipment Is, in fact, In good working order.
Equipment Schedule has been completed. Diebold will use
reasonable efforts to provide such service at Diebold's then 16, Delay in Performance and/or tngresse jn Exoenetes
current lime and materfer rates. My such service shell be a) Olebold will not be liable for any delay in providing service
subject to the provisions or this Agreement. Absent a separate that Is caused by Are or flood, strikes, labor disturbances,
aig agreement under which teebold has agreed to provide riots, war, Insurrection, sots of any goveefinental entity or
documented disposal cr destruction for an additional charge,
Diebold shag have no obligation for the disposal or destruction of the p re ss delays M es unavailability . ai do k in
any components removed from Subscribers) equipment in the procuring rrheial
es, or s from th parties. beyond the reasonable
kW le
se of providing services. Subso►tber
cour other supplies, or any other cause boyond the ro urrenc ,
ooLx
additional services u my request se er °r control o/ Diebold. In the avert of bush occurrence,
P rem ant to � provision by contac P equitably ed)usied or
Diebold. t 1 np Dfebold's Nina for erfornmanoe shag be
cancelled If h Dleboldb reasonable Judgment performance
13. Termination has been rendered not economkatjy reasonable,
a) This Agreameunt may be temtbhated by party without b) Should Diebold's cost of fuel or . other materials and/or
Nobility as ni nt supplies horse's more than ten fharoen$ (10X) from the
1) upon a material broardt hereof by the other party if such reload in effect on the Commencement Date hereof, as
other party has failed to comsat, or commence and ' mid by published Indexes that l s e shall fuel,
diligently pursue the correction of such breach within ma endear su l dli b a, the annual Increase peke shall bei
thirty (30) days afternotioe to such bra Increased by Diebold based on the 4ncxe,�ce )n the most
H) the other piny is insolvent. makes ��� applicable published index.
assignment for the benefit of creditors, or ooerruren noea o) If et any t daring the term of this or aey►e other r li ce n e.
volurrtr,r,rrpy a petltlext under bankruptcy or simper laws or required to obtain any site spedffo or any other Aoenae,
; b (� hvDluntery e ; change in applicable law, ordinance or regulation that
petition b w alnut, m ore Than permit, �fl n o t r adyh held by ie to perform the sonless s any
R for Subscriber, not already held by t5leboid, or !f there is any
Ili) In the case of Diebold, t Subscriber falls to make a
Payment when due. materially increases Diebold's coat to perform the services,
b) In add/ on to the provt of then, upon giving Subscriber reasonable notice of such
the payment lh of a ovf provisions o tee, remove (a) above, 5trbeextbe may by increase In coals and /or expenses, Subscriber shall be
covered a an annual la service fee from any equipment responsible to reimburse Diebold therefor or otherwise to
Hiner 90 days coverage, Pay such increased costs and expenses.
Y ( (90) ys prior written notice. The cancellation fee
shall
be forty percent (00%) of t annual fee 'escalated 17, Modrficatign ofAareement
with service of the relevant equipment from the Except as provided herein,
oornmertoemea t dale to the expiration of the then current this Agreement may be waived or
term a the pee , Additionally. Diebold may adjust the mexlified only by a wilting executed o f equipment by both parties. h the event
flee for any equipment rr'mainM of the addition or deletion of equlpnhent from service coverage
fe e for any then current standard subject price e ct t bad on under this Agreement, or other modtficegorrs of Equipment
Any special provisions s of any E judgments. Schedule(s) contemplated by this Agreement, Diebold shall
Any special
shalt be l I nY guiprnant Schedule provide a new Equipment Schedule or other appropriate notice of
• jusbed in a manner that Diebold in its a change lo Subscriber. The provisions of such new Equipment
reasonable discretion deems equritabte. However, Schedule or notice of change shaft be deemed a part of this
Subscriber will not be required to pay time earmedatton fee
specified in this Section 13(b) if the .q $pmant being Subscriber objects lo�D old in w wfhtn thirty (30 ay 1
removed from service has been taken out of customer the !seminal of the new E td �) of
seMce and has not been replaced with other equipment q pment Schedule or notice of rdmae,
which performs at least some of the same functions end 18. pb,.Q leto Eoutoment
which Is not subject to Diebor d aorvtiae under this Agreement At any time during the term of this Agreement or eny renewal or
or if the branch or other location a such equipment has been extended term hereof, Diebold may reasonably determine them
dosed,
equipment being serviced hereunder is obsolete or not otherwise
14. pir3bold's Responsibility reasonably capable of being maintained In an operable wanton
es a of Diebold will Indemnify and hold harmless the Subecriber for any replacem partss other reason �orr> Condition, y which Die old
judgments obtained by third parties based on claims of bodily m
Thjuvy to third parltee, or street damage to the tangible props of may identify a on from Diebold, Upon s or be t t written either rg or
RY such bsotot f ree Discoid, ew eq u ip ment rem replace t e h
third parties. to the extant caused by the wrongful Of negligent Ma obsolete
Me of Diebold, its officers, directors, agents or employees end equipment cot with new equipment, remove the
occurring while Diebold employees are performing equipment torn the scope of coverage of this Agreement, or
equipr at Subraeriber' site, Die�boid will als ree rvies ben spree h writing that such equipment a err will continue to be serviced the theft of Subscriber's funds or tangible property by Diebold hereunder by Discoid on a time end materials basis,
employees while )they are performing service, to a maximum 19. Iectron)c Sionati I'm/Gm/Am:m
aumufaGve limit for any and ell such claims of Seventy-rive Ochre ($75.000). parities acknowledge and agree that this Agreement may be
executed or accepted using electrronio, stamped or facsimile
15, signatures, and that such a signature shell be legally binding to
"'^" rqutpmenl Sane the same extent as a written cursive signature b
la fnatated. relocated, wed' 9 equtpmtslt that authorized representative, Earn by a P legal
Sean telledid tebold or Serviced by other requirement that this Agreement be ry embodied, stored or
to aexelplgl rb1 g q the es of � require, as a condition reproduced in tangible media, and
pmenl for service coverage, reproduction shad be given the same legal( agree effect Na s
version - 1,1
force and eff d feect ;' a
(4/09
Paago 3 of - 4
33
EXHIBIT 5.6
signed writing. Cwatomer agrees That any terms delivered with er accordance with its termslupon the
notified to Subscriber by Diebold negarding software Items she Nutlet hereto .may not
apply to and govern the use of such Items. This Agreement shalt w e asstp in wtw or. In part without the express prior
not be
bind � written concert of the other party and any unauthorized upon Diebold until a ccepted t hereby, and shell be assignment is void: htwever, Diebold may assign or
considered lo have been entered into in North Canton, Ohio, This subcontract its duties upder this Agreement without first
Agreement shall be governed by the Iowa of the State of Ohio obtaining Subscriber's prior consent thereto,
without regard to any confide of the laws' provisions thereof. The b) No waiver of any right of any party
applicability of the United Nations Convention on Contracts for lie waiver of any other tight of party, shell nor r or a wai e ver of r of y
Intealonsl Sole of Goode is expreeny excluded. My action future breach the otheother: p h any
m
arising or resuteng, directly or kufkectly, from the performance or o) Notioes to be by from one party to another shall be
commenced Subscriber ce y Di old f bite Agr t, shell be deemed effective n repel t and wil be iven b overn t
con terse a w� � burred two () years suer the cause of courier or other method that provides evtdenoe by delivery. c
Notice shall be delivered to the address of such party as
20, aep j ►epeeted herein, or such other address as a party ropy
identify by formal notice tfp the other party.
a) This Agreement and Equipment $oheduie fs) t nnaulute Idle d) It for any reason any provision of this Agreement shall be
entire agreement between the parties concerning any held unerrforceeble or kwaltd by a court or administrative
rn pr by Diebold to Subscriber. and no body having Jtetsdiction, such provision shell be reformed so
Inducement. promisee or agreements not as to most closely effechiele the Intent thereof In a valid and
• embodied herein shall be of any force or effect. Any enforceable manner,
PUrChase order or similar dootrnent Issued by Subscriber The headings and trees contained In
Shell be *WWI tasted � this Agreement ere Incftkfsd solely for the ocrwver>lenve of
Y Subscriber's internal the parties and shall notlbe used In construing the intent of
administrative convenience and shalt not become a pare of the text hereof.
toe Agreement. This Agreement shag be binding 1n
SUBSCRIBER ACKNOWLEDGES HAVING READ AND UNDERSTOOD ALL PAGES OF - 1111S AGREEMENT.
SUBSCRIBER DIEBOL D, INCORPORATED
J
BY: By:
Auttiarfzed Signature)
(Authorized Signature)
Name: _Mark Lesnap Name: Denise Bonner
(Printed/Typed Name) erietMib StatOT
Title: President/CEO Title: • Service
Date: ,Q3119/2014
Date: �•a� -�d
•
•
a;
•
•
•
vorlon - 1.1
04/09
Pagc4of
34
EXHIBIT C
User will surcharge the non United Police Federal Credit Union Members a minimum of
three dollars and /00/100 ($3.00) per transaction and City shall receive one dollar and
50/100 ($1.50) from each transaction from a non United Police Federal Credit Union
member. User shall pay any amount due to City as set forth in Section 8, entitled "Payment
Obligations" of this Agreement.
Should User increase its surcharge fee, at any time during the Term of this Agreement, for
United Police Federal Credit Union non - members, User agrees that City shall be entitled,
and continue to receive, the same percentage of said surcharge during the Term of this
Agreement, including any renewals and extensions thereof.
For purposes of this Agreement, the City's percentage shall be set at fifty percent (50 %)
and City shall receive said percentage of any surcharge fees collected pursuant to this
Agreement.
35