HomeMy WebLinkAboutContract 33850 CITY SECRETARY
CONTRACT NO.
ATM LICENSE AGREEMENT
This Automated Teller Machive ("ATM") License Agreement (this "Agreement") is
entered into as of the _lQkday of 1 ',0-2006, between the CITY OF FORT WORTH, a home
rule municipality ("Licensor"), and JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION, a national banking association ("Licensee"). In consideration of the mutual
agreements herein contained and other good and valuable consideration, the parties agree as
follows:
1. Grant of License. Licensor represents to Licensee that it is the owner of fee simple title
to the property, commonly known as City of Fort Worth Auto Pound, located at 1301 E
Northside Drive, Fort Worth, TX (the "Building"). Licensor hereby grants to Licensee an
exclusive license to install, operate and maintain an ATM in the Building. The exact placement
of the ATM within the Building is shown on Exhibit"A" attached hereto and made a part hereof
(the "Premiers").
2. Scope of Agreement.
(a) Licensee shall have the exclusive right and license to place the ATM in the
Premises and Licensor shall not permit any ATM owned or operated by it or any other person or
entity to be placed or operated in the Premises.
(b) Licensee shall have the right, at anytime after the first six (6) months of this
Agreement, to elect to remove the ATM from the Premises and terminate this Agreement upon
no less than thirty (30) days prior written notice to Licensor.
3. Term. The term of this Agreement shall be approximately fifteen (15) months,
commencing on the 1 st day of the month in which the ATM becomes operational, (the
"Commencement Date") and terminating on the 31st day of August, 2007 (the "Term"), unless
earlier terminated as provided elsewhere in this Agreement.
4. Rent/Fees.
(a) Licensee shall not be obligated to pay any rent or license fees to Licensor.
(b) The parties agree that Licensee shall have the right to charge a "Terminal Usage
Fee" or "Surcharge Fee," which shall mean a fee assessed by Licensee (or agent of Licensee) to
the ATM user, whether or not such user is a customer of Licensee, as a surcharge for using the
ATM. Licensor shall have no right to share in any of said Fee. The Fee is subject to adjustment
by Licensee from time to time.
5. Licensee Obligations.
(a) Licensee shall install an ATM in the Premises and shall operate and maintain the
ATM in accordance with its reasonable practices and procedures, but in any event equal to levels
of operation and maintenance customary in the industry. Licensee's ATM shall be connected
with at least one national ATM network(for example, Cirrus, Plus, etc.). Licensee's operation of
the ATM shall be in compliance with all applicable federal, state and local laws Qr 1t :1' sP�awa�`JD
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rules and regulations. Other than electrical, Licensee shall bear all costs in connection with the
installation and maintenance of the ATM.
(b) Licensee or an affiliate or subsidiary of Licensee shall be the sole owner or lessee
of the ATM, and shall be in sole control of the nature and scope of the operation of the ATM. At
Licensee's expense, Licensee, or an affiliate or subsidiary of License, shall be solely responsible
for the maintenance of the ATM, and the costs of all data communications necessary for the
operation of the ATM.
(c) Licensee shall use its customary practices and procedures to ensure that the ATM
is operational during business hours of the Building in which it is located, which efforts shall
include, without limitation, dispatching service personnel, making repairs, replenishing cash, and
monitoring dataline problems.
(d) Licensee and Licensor shall mutually agree on the date and time of installation
and removal of the ATM.
(e) Licensee agrees to provide, install, operate and maintain, at no expense to
Licensor, the computer, telephone and other lines which serve the ATM, as well as any and all
other facilities or equipment which may be necessary or appropriate for the installation,
operation and maintenance of the ATM. The appearance, location and all other features and
characteristics of the lines, facilities and equipment serving the ATM will be mutually agreed
upon by Licensor and Licensee. Upon termination of this Agreement or removal of the ATM
from the Premises, all conduit and electrical, computer, telephone and other lines which serve the
ATM will remain the property of Licensor and remain at the Premises. Licensee shall have no
further obligation to restore the Premises upon removal of the ATM.
6. Licensor's Obligations.
(a) Licensor shall bear the expense of all day-to-day electricity consumed in the
operation of the ATM and ATM signage at the Premises.
(b) Licensee, its employees, independent contractors and agents shall have access to
the ATM during business hours for the purpose of installing, maintaining, servicing, operating
and removing the ATM. In doing so, Licensor shall not interfere with the normal operations of
Licensee's business and will ensure that no obstructions limit full access to the ATM.
(c) Licensor shall have no responsibility for the security of any ATM, other than to
act in accordance with its customary practices and procedures with respect to the Premises and
its property contained therein, and shall not be responsible for the operation of the ATM.
(d) Any interior or exterior ATM signage and/or merchandising shall be mutually
agreed upon by Licensor and Licensee and shall be sufficient to promote and advertise the
placement of the ATM in the Premises.
7. Advertising. Neither party shall refer to the other party in advertising nor use the other
party's logos, trademarks, or service marks without the prior written consent of the other party;
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provided, however, that Licensee shall be permitted, without obtaining the consent of Licensor,
to include the address of the ATM in a directory of all or a portion of the Licensee's and/or any
wholly-owned subsidiary's ATMs and/or other banking facilities. Each party acknowledges that
the other party's logos, trademarks, and service marks are the sole property of the other party.
8. Premise Adjustments. Licensee and Licensor acknowledge that Licensor will
occasionally remodel or expand the Premises. Accordingly, the parties agree as follows:
(a) ATM Relocation. If, after an ATM has been installed, Licensor shall designate a
different location for such ATM, due to a remodel or expansion, Licensee, at Licensor's
expense, after no less than sixty (60) days prior written notice, shall remove and relocate the
ATM to a location reasonably acceptable to both parties. If Licensee and Licensor cannot
mutually agree on an acceptable location, Licensee shall have the right to terminate this
Agreement upon thirty (30) days written notice to Licensor, in which event all rights and
obligations hereunder relating to said Premises shall cease upon such termination.
(b) Notice of Premise Adjustments. When Licensor provides Licensee with notice of
any remodel or expansion, such notice will include the proposed dates for remodeling or
expansion.
9. Mutual Indemnification.
(a) Licensee shall defend, indemnify and hold Licensor harmless from and against all
costs, expenses, damages, and liabilities of any nature whatsoever (including, without limitation,
reasonable attorneys' fees and expenses but excluding consequential damages) which may be
suffered, incurred or threatened against Licensor on account of or resulting from this Agreement,
the existence or operation of the ATM at the Premises, or any act or omission of Licensee, its
employees or agents under this Agreement, provided that Licensee shall not be required to
defend, indemnify or hold Licensor harmless from Licensor's own negligence or that of
Licensor's agents, employees or independent contractors.
(b) Licensor and Licensee agree that all policies of insurance to be kept and
maintained in force by the respective parties hereto, shall contain provisions in which the rights
of subrogation against the Licensor and Licensee are waived by the insurance company or
carriers insuring the Premises or other property in question. Licensor expressly waives any right
of recovery against Licensee for damage to or loss of the Premises or the improvements thereon,
which loss or damage may arise by fire or any other peril covered by any all-risk property policy
of insurance required to be maintained pursuant to this License Agreement, which contains or is
required to contain wavier of subrogation rights against Licensee pursuant to this Section 9(c),
and shall make no claim for recovery against Licensee therefor. Licensee expressly waives any
right of recovery against Licensor for damage to or loss of the Premises, and fixtures,
improvements, or other property located therein, which damage or loss may arise by fire or any
other peril covered by any all-risk property policy of insurance maintained or required to be
maintained pursuant to this License Agreement which contains or is required to contain a waiver
of subrogation right against Licensor as set forth in this Section 9(c)and shall make no claim for
recovery against Licensor therefor. Notwithstanding anything contained herein to the contrary,
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Licensor and Licensee shall have the right to self-insure for any insurance requirements
contained herein.
10. Insurance. Licensee shall maintain insurance on the ATM including, without limitation,
bodily injury, property damage, personal injury, and advertising injury, in an amount not less
than $1,000,000 per occurrence. Licensor shall maintain insurance on the Premises, including,
without limitation, bodily injury, property damage, personal injury, and advertising injury
insurance. Either Licensee or Licensor may self-insure or self-fund the foregoing if and so long
as such party has a net worth of not less than$100,000,000.
11. Personal Property. The ATM and its contents shall remain the property of Licensee or
Licensee's lessor at all times and shall not be construed as fixtures.
12. No Joint Venture or Agency; Licensor not a Bank. The parties acknowledge and agree
that nothing contained in this Agreement is intended or shall be construed to establish Licensor
and Licensee as joint venturers or partners. In addition, the parties acknowledge and agree that
Licensor, by entering into this Agreement, is not in any manner representing itself to be a bank
or otherwise involved in the banking business. The relationship between the parties is strictly
that of independent contractors, and neither shall have the authority to act as or to hold itself out
as an agent or representative of the other for any purpose.
13. Confidential Information. Except to the extent required by applicable law, each party
shall keep confidential and not disclose to any third party, other than its agents and advisors in
connection with its obligations hereunder, any business practices, security matters or trade
secrets of the other party or any other information of the other party that a reasonable person
would deem to be confidential obtained in connection with this Agreement (collectively,
"Confidential Information"). Before disclosing any Confidential Information under compulsion
of law, the disclosing party shall give the other party prompt written notice thereof.
14. Bankruptcy or Other Causes For Termination.
(a) Bankruptcy. Either party hereto shall have the right to terminate this Agreement
immediately and without prior notice, in the event that the other party: (i)terminates or suspends
its business, due to any bankruptcy or insolvency proceeding under federal or state statute; (ii)
becomes insolvent or becomes subject to direct control by a trustee, receiver or similar authority;
or(iii) has wound up and/or liquidated, whether voluntary or otherwise.
(b) Breach. In the event a party hereto materially defaults in the performance of any
of its duties or obligations hereunder, which default shall not be substantially cured within thirty
(30) days after written notice is given to the defaulting party specifying the default, then the
party not in default may, by giving written notice thereof to the defaulting party, terminate this
Agreement for cause.
(c) Surcharge. In the event that there occurs a material change in any federal or state
law, or any network rule or regulation which impacts Licencee's ability to assess the Fee,
Licencee shall have the right to immediately renegotiate and/or terminate this Agreement.
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15. Notices. Any notice, consent or waiver required or permitted to be given or served by
either party to this License Agreement shall be in writing and either (1) mailed by certified or
registered mail, return receipt requested or(2) sent via nationally recognized overnight courier
addressed as follows, and shall be deemed given on the third(3`d) day after deposit in the mail or
the first(1S) day after sending by overnight courier.
Licensor: Charles Boswell, City Manager
City of Fort Worth
1000 Throckmorton
Fort Worth, Texas 76102
Licensee: c/o JPMorgan Chase Bank, National Association
ATM Business Support
P. O. Box 32500
Louisville, KY 40232
Attn: Contract Manager
Either party may, from time to time, change its notice address by notice to the other in
accordance with the provisions of this Section.
16. Assignment. Licensee shall not assign this Agreement without prior written consent of
Licensor which shall not be unreasonably withheld, provided; however, that nothing in this
Agreement shall be construed to prevent Licensee, without Licensor's consent, from assigning
any of Licensee's rights under this Agreement to any parent, affiliate or wholly-owned
subsidiary of Licensee. Licensor shall not assign this Agreement without the prior written
consent of Licensee under this Agreement.
17. Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original, but all of which shall constitute one and the same
instrument.
18. Entire Agreement. This Agreement, together with all Exhibits attached hereto, contains
the entire agreement between parties with respect to the subject matter hereof and supersedes all
prior arrangements, licenses or understandings with respect thereto. Section headings contained
in this Agreement are for the convenience of the parties, and are without meaning.
19. Changes. The terms and provisions of this Agreement may not be modified or amended
except as agreed in writing by the parties.
20. Governing Law and Venue. This Agreement shall be governed by and construed in
accordance with the laws of the state in which the ATM is located. Venue for any action arising
hereunder shall be exclusively in Tarrant County, Texas.
21. Waiver. No waiver of any provision of this Agreement shall be effective unless such
waiver is memorialized in a writing signed by the waiving party. No waiver on any occasion
shall be deemed to operate as a waiver on any subsequent occasion.
22. Provisions Severable. If any provision of this Agreement shall be held to be void or
unenforceable by any court of competent jurisdiction or any governmental regulatory agency,
such provisions shall be treated as severable, leaving valid the remainder of this Agreement.
23. No Jury Trial; Exculpation of Certain Damages. THE PARTIES UNCONDITIONALLY
WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL FOR ANY CLAIM OR CAUSE
OF ACTION ARISING OUT OF OR RELATING TO, DIRECTLY OR INDIRECTLY, THIS
AGREEMENT. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY, FOR ANY
INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL
DAMAGES, INCLUDING LOST PROFITS, REGARDLESS OF THE FORM OF THE
ACTION OR THEORY OF RECOVERY, EVEN IF THAT PARTY HAS BEEN ADVISED OF
THE POSSIBILITY OF THOSE DAMAGES.
The parties hereto have duly executed this Agreement as of the date first above written.
CITY OF FORT WORTH
By: 5.,,�a. &.Q4,
Charles R. Boswell
Title: City Manager
Dater �o _
Approv as to Form and Legality:
By: ol•
David L. Yett
Title: City Attorney
Date: "7 4 S —4 6
Attest
By:
Name: MartHe rix
Title: City Secretary
(SEAL)
NO M&C REQUIRED
JPMORGAN CHASE BANK, National
Association, a national banking association
By•—
Title: G!?2
Date: glL{lD(o
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