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HomeMy WebLinkAbout10-0817 ACFN Franchised ATM CASII DISPENSER LOCATION AGREEMENT t(-it THIS AGREEMENT is hereby made and entered into this / / day of 2010, by and between the City of Elgin, Illinois, a municipal corporation • (hereinafter referred to as "Host") and ACFN Franchised, Inc., a California corporation (hereinafter referred to as "Provider"). WHEREAS, Host is an Illinois municipal corporation which owns various real property located at locations commonly known as the following: (a) Hemmens Theatre; (h)The Centre; (c) Police Department facility; (d) Bowes Creek Golf Course; and (e) Highlands of Elgin Golf Course (hereinafter collectively referred to us "Locations"); and WHEREAS. Provider is in the business of supplying point of sale devices, credit card payment systems, script/coupon dispensers, automated teller machines and other devices with similar functions. including, but not limited to enclosures and mounting and associated equipment (hereinafter referred to as "ATM Equipment"). NOW. THEREFORE, in consideration of the mutual promises and covenants contained herein, the sufficiency of which is hereby mutually acknowledged, the parties hereto hereby agree as follows: 1. The aforementioned recitals are incorporated into and made a part of this Agreement as if fully recited herein. 2. Host warrants and represents that Host has full authority to allow Provider to install ATM Equipment at Locations at mutually agreed sites. Host shall permit Provider the exclusive right to install and operate ATM Equipment at Locations subject to the terms and conditions during the term of this Agreement. 3. ATM Equipment shall be installed by Provider at no cost to Host. Host shall provide at. Ilost's expense, a dedicated phone line to be connected to the ATM Equipment. Host shall provide a 110 VAC electrical outlet ibr the ATM Equipment. Provider shall not restore the site of the ATM Equipment to its original condition upon the removal of the ATM Equipment, including. but not limited to, holes drilled to anchor the ATM Equipment. 4. Provider will maintain the ATM Equipment with sufficient cash stock and in good operating condition. Provider shall have unlimited access to ATM Equipment during Host's normal business hours. Provider may modify or change the installed equipment at its sole discretion, except that no additional equipment to be used by the public may be added without permission of the Host. All repair and usage charges for the ATM Equipment will he paid by Provider. Host will have no expenses relating to the ATM Equipment operation except for the provision of electrical power and phone line. If deemed necessary by Provider for security reasons. Host will allow access to the ATM Equipment during non-business hours. 5. Host will promptly notify Provider of any operational problems with the ATM Equipment. Provider will resolve such problems, if within the control of the Provider, within 24 - - hours of such notification. I-lost shall be responsible for normal cleaning of the outside surfaces of the ATM Equipment. Unless it poses a hazard. Host may not disconnect ATM Equipment from the electrical power or phone line. Host shall not attempt to make any repairs to the ATM Equipment. Host may not post any signs or other such items on the surface of the ATM Equipment except for out of order" if Host deems necessary. Host shall allow unrestricted access to the ATM Equipment by the general public during Host's normal business hours; provided, however, that Host may allow access to the ATM Equipment beyond Host's normal business hours in Host's sole discretion at no additional liability to Host. 6. Provider shall reimburse Host for the space utilized by the ATM Equipment based on the following schedule: Number of Surcharge Transactions Host Reimbursement per Surcharge per associated month 1 - 150 $0.50 151-300 $0.75 301 and above $1.00 Payments to Host from.Provider shall be provided not less than 45 days following the last day of each associated month. For purposes of this Agreement, "surcharge transactions" shall be those transactions upon which a surcharge is charged to the user of the ATM Equipment, which transaction shall include, but not be limited to, transactions involving the withdrawal of funds from an account. All surcharge transactions shall be set at a surcharge of$2.95. 7. This Agreement shall terminate July 31, 2013, unless otherwise terminated as provided for herein. Provider may assign this Agreement without notice to Host, in which case the assignee will become Provider under the term of this Agreement. Host may assign this Agreement without notice to Provider, in which case the assignee will become Host under the term of this Agreement. 8. Host may terminate this Agreement upon thirty (30) days written notice in the event of a material breach of contract by Provider specifically relating to the provisions within this Agreement if such breach is not corrected within 10 days of written notification. In the event of such termination by Host, Host shall not be liable to Provider for any damages of whatsoever nature. 9. This Agreement shall be subject to and governed by the laws of the State of Illinois. Venue for the enforcement of any rights and the resolution of any disputes arising out of or in connection with the provisions or performance of this Agreement shall be in the Circuit Court of Kane County, Illinois. 10. The terms of this Agreement shall be severable. In the event that any of the terms or provisions of this Agreement are deemed to be void or otherwise unenforceable for any reason, the remainder of this Agreement shall remain in full force and effect. -2 - 11. This Agreement shall not be construed so as to create a joint venture, employment, partnership or other agency relationship between the parties hereto, except as may be specifically provided for herein. 12. Notwithstanding any other provision of this Agreement it is expressly agreed and understood that in connection with the performance of this Agreement that the Provider shall comply with all applicable Federal, State, City and other requirements of law, including, but not limited to. any applicable requirements regarding prevailing wages, minimum wage, workplace safety and legal status of employees. Without limiting the foregoing, Provider hereby certifies, represents and warrants to the Ilost that all Provider's employees and/or agents who will be providing products and/or services with respect to this Agreement shall be legal residents of the United States. Provider shall also at its expense secure all permits and licenses, pay all charges and fees and give all notices necessary and incident to the due and lawful prosecution of the work, and/or the products and/or services to be provided for in this Agreement. The Host shall have the right to audit any records in the possession or control of the Provider to determine Provider's compliance with the provisions of this section. In the event the Host proceeds with such an audit the Provider shall make available to the Host the Provider's relevant records at no cost to the Host. Host and Provider shall pay their respective costs associated with any such audit. Provider: Host: ACFN Franchised, Inc. City of Elgin Bv: • By: /;40./A• Its / Jity Manager Attest: r I/1,4%1• • T •t 4• '1 City Clerk Clerk, Dept',Agreement'kACFN ATM Cash Dispenser Location.docx - 3 - In The Pursuit Of Excellence September 10, 2010 Highland of Elgin Golf Course 875 Sports Way Elgin, IL 60123 To: Sean R. Stegall, Thank You for choosing ACFN as your ATM Company. We look forward to providing you with the excellent service our company is known for. Please find a signed copy of the Location Agreement. For customer support and technical assistance please call (888) 794-ACFN (2236) ext. 5127 seven days a week. We Appreciate Your Business United States: Community Towers, Sixth Floor,111 W. St. John Street, San Jose, CA 95113 Phone: 888.794.2236 Canada: First Canadian Place 100 King St. W. Ste 5700 Toronto, ON M5X 1 C7 Fax: 888.708.8600