Loading...
HomeMy WebLinkAbout24-0517 Kane County Teachers Credit UnionLICENSE. AGREEMENT FOR AUTOMATED TELLER MACHINE THIS LICENSE AGREEMENT is hereby made and entered into this 17�k day of � , 2024, by and between the City of Elgin, 150 Dexter Court, Elgin, Illinois, 60120, an Illinois municipal corporation (hereinafter referred to as the "City") and the Kane County Teachers Credit Union, 111 South Hawthorne Street, Elgin, Illinois, 60123, an Illinois credit union (hereinafter referred to as "KCTCU"). WHEREAS, City owns and operates a facility commonly known as The Elgin Police Department, located at the premises commonly known as 151 Douglas Ave., Elgin, Illinois, 60120 (hereinafter referred to as the "EPD"); and WHEREAS, KCTCU is desirous of obtaining a license from the City to install, operate and maintain an electronic fund transfer automated teller machine and accompanying peripherals, equipment, and structures (collectively "ATM"), under the terms and conditions hereinafter set forth; and WHEREAS, the City is desirous of granting to KCTCU a license to install, operate and maintain an ATM on its premises at the EPD for the convenience of its customers, employees, and other persons with debit cards who may properly access their accounts at the subject ATM, under the terms and conditions hereinafter set forth. 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. Grant of License. City hereby grants to KCTCU a temporary and non-exclusive personal privilege and permission to install, operate, and maintain an ATM at a mutually agreed upon location at the EPD (hereinafter the "License"), subject, however, to the terms, conditions, and limitations of this Agreement. 2. Limited Scope of License. The License granted to KCTCU is limited in scope to the following use or uses: a. KCTCU, at its sole cost and expense, may install, operate and maintain an ATM at the EPD. The ATM shall be installed as a free-standing unit. The specific location of the ATM at the EPD shall be agreed upon by the authorized representatives of the City and KCTCU. KCTCU and the public shall have access to the ATM during the EPD normal operating hours and at such other times when the EPD is open to the public; provided, however, that such access may not interfere with operation or enjoyment of the EPD, in the City's sole discretion. b. The ATM shall remain the personal property of KCTCU or KCTCU's agent or supplier that owns the ATM and the owner and authorized lessee of the ATM reserve the right to remove the ATM at any time upon sixty (60) days prior written notice to the City. The City disclaims and waives any security interest, lien or other property interest in the ATM and represents and warrants that no secured parry or mortgagee of the City, if any, will acquire any lien or other property rights in the ATM, by virtue of the ATM's deployment on the premises of the City. The KCTCU or its agent shall pay all local, state and federal fees, licenses and taxes in connection with the installation, operation and maintenance of the ATM. The KCTCU or its agent shall assume responsibility of all loss or damage to the ATM. c. KCTCU, at its expense or the expense of its agent, shall bear all costs associated with the acquisition, delivery, site preparation and installation of the ATM, and shall furnish necessary electric and telephone line connections to operate the ATM. The City, at its expense, shall supply necessary electrical current and heat for the operation of the ATM. d. In consideration of the ATM services provided to employees and customers of the City with debit cards who may properly access their accounts at the ATM, no rental payments shall be due from KCTCU or its agent hereunder. e. The City agrees to provide: (i) space for the installation, service and maintenance of such communication, alarm, service and other lines as may be necessary for the proper operation and maintenance of the ATM at the mutually agreed upon location at the EPD; (ii) access to the ATM for service or other personnel designated by KCTCU for maintenance, service, and security purposes, provided, however, that such access may not interfere with operation or enjoyment of the EPD, in the City's sole discretion; and (iii) janitorial and security services normally provided in the areas where the ATM is located (but no special janitorial or security services shall be provided by the City). f. The transaction surcharge applied by KCTCU shall not exceed $2.75 per transaction unless agreed to by both parties in a written amendment to this Agreement. 3. Term. This Agreement and the License granted to KCTCU shall commence as of the date of this Agreement and shall terminate on June 30, 2025, unless terminated prior thereto in accordance with the terms of this Agreement. This Agreement and the License granted to KCTCU may be renewed and continued for successive twelve (12) month terms under the same terms and conditions upon prior written agreement by the parties (each successive term hereinafter referred to as a "Renewal Term"). 4. Termination. This Agreement and the license herein granted to KCTCU may be terminated by either party during either the Initial Term or any successive Renewal Term for any reason or no reason upon giving thirty (30) days written notice. In addition, this Agreement may be terminated immediately by the City upon written notice to KCTCU of a breach of any term or condition of this Agreement. Either party may also terminate this Agreement immediately upon written notice to the other party in the event the terminating party is unable to perform services hereunder where such failure is caused, directly or indirectly, by strikes, labor disturbances, acts of terrorism, war, insurrection, acts of God, or other causes or events beyond the control of the terminating party. In the event of termination of this Agreement, KCTCU shall not be entitled to receive a refund of any portion of the consideration paid for this Agreement, nor shall KCTCU be -2- entitled to any compensation or reimbursement for any license fees, costs or expenses incurred or in any way arising from this Agreement or relating to the installation, operation, or maintenance of the ATM, nor shall KCTCU be entitled to any monetary damages of any kind whatsoever. 5. Removal upon Termination. At such time as this Agreement and the License herein granted to KCTCU is terminated, KCTCU shall remove the ATM at KCTCU's sole cost and expense within five (5) business days of receiving notice. If KCTCU fails to exercise its duties under this paragraph, the City shall have the right to remove the ATM, the fall and complete cost of which shall be borne by KCTCU. KCTCU covenants and agrees to reimburse the City its full cost and expense for any such removal upon thirty (30) days written demand for such reimbursement. 6. Insurance. For the entire term of this Agreement, including any Renewal Terms, KCTCU shall fully insure the ATM from any loss or damage, and shall provide proof of such policy or policies of insurance to the City upon request. 7. Compliance with Laws. Notwithstanding any other provision of this Agreement, it is expressly agreed and understood that in connection with the performance of this Agreement that KCTCU 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, KCTCU hereby certifies, represents and warrants to the City that all KCTCU 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. KCTCU 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 City shall have the right to audit any records in the possession or control of the KCTCU to determine KCTCU's compliance with the provisions of this section. In the event the City proceeds with such an audit KCTCU shall make available to the City the KCTCU's relevant records at no cost to the City. KCTCU shall pay any and all costs associated with any such audit. 8. Indemnification. To the fullest extent permitted by law, KCTCU agrees to indemnify, defend and save the City, its officers, agents, servants, employees, boards and commissions harmless from and against: a. Damage or Loss to KCTCU's Property. Any and all claims, loss or damage (including reasonable attorney's fees) to KCTCU's ATM or any property belonging to or rented by KCTCU, its officers, servants, agents or employees, which may be stolen, destroyed, or in any way damaged, by any cause whatsoever. b. Damage to Others. Any claims, suits, judgments, costs, attorney's fees, loss, liability, damage or other relief, including but not limited to Workers' Compensation claims, to any person or property in any way resulting from or arising out of the existence of this Agreement and/or the existence, maintenance, use, or location of KCTCU's ATM at the EPD. In the event of any action against the City, its officers, agents, servants, employees, boards or commissions covered by the foregoing duty to indemnify, defend -3- and hold harmless, such action shall be defended by legal counsel of the City's choosing. c. Mechanic's Lien. Any loss, liability, claim or suit arising from the foreclosure, or attempted foreclosure, of a mechanic's or materialmen's lien for goods delivered to KCTCU or work performed by or for KCTCU upon or at the EPD. Such indemnification shall include the City's reasonable attorney's fees incurred in connection with any such loss, claim or suit. The provisions of this paragraph shall survive any termination and/or expiration of this Agreement. 9. Breach and Limitation on Damages. If either party violates or breaches any term of this Agreement, such violation or breach shall be deemed to constitute a default, and the other party shall have the right to seek such administrative, contractual or legal remedies as may be suitable for such violation or breach; provided, however, that in no event shall the City be liable to KCTCU for monetary damages of any kind relating to or arising from any breach of this Agreement, and that no action of any kind shall be commenced by KCTCU against the City for monetary damages. In the event any legal action is brought by the City for the enforcement of any of the obligations of KCTCU related to or arising from this Agreement and the City is the prevailing party in such action, the City shall be entitled to recover from KCTCU reasonable interest and attorney's fees. 10. Notices. Any notice concerning this Agreement shall be in writing and shall be deemed sufficient if given personally, or, when sent by certified mail, return receipt requested, proper postage prepaid, to the respective address of each party as set forth at the beginning of this Agreement, or, as changed from time to time pursuant to the terms of this paragraph. 11. No Interest in Land. KCTCU understands, acknowledges and agrees that this Agreement does not create an interest or estate in KCTCU's favor in the EPD. The City retains legal possession of its property, and this Agreement merely grants to KCTCU the personal privilege to use the EPD under the terms and conditions set forth herein throughout the term of this Agreement. 12. No Vested Right. Notwithstanding any expenditure of money, time and/or labor by KCTCU on or within the EPD, this Agreement shall in no event be construed to create an assignment coupled with an interest or any vested rights in favor of KCTCU. KCTCU shall expend any time, money, or labor at KCTCU's own risk and peril. 13. No Joint Venture or Partnership. This Agreement shall not be construed so as to create a joint venture, partnership, employment, or other agency relationship between the parties hereto. 14. No Personal Liability. No official, director, officer, agent or employee of the City shall be charged personally or held contractually liable under any term or provision of this Agreement, or because of their execution, approval or attempted execution of this Agreement. -4- 15. Joint and Collective Work Product. This Agreement is and shall be deemed and construed to be a joint and collective work product of the City and KCTCU, and as such, this Agreement shall not be construed against any other party as the otherwise purported drafter of the same by any court of competent jurisdiction in order to resolve any inconsistency, ambiguity, vagueness or conflict, if any, in the terms or provisions contained herein. 16. Severability. The terms of this Agreement shall be severable. In the event 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. 17. Governing Law. This Agreement shall be subject to and governed by the laws of the State of Illinois. Venue for the resolution of any disputes or for the enforcement of any rights arising out of or in connection with this Agreement shall be in the Circuit Court for the Sixteenth Judicial Circuit, Kane County, Illinois. 18. References in Agreement. All references in this Agreement to the singular shall include the plural where applicable, and all reference to the masculine shall include the feminine and vice versa. If either reference shall be declared invalid, such decision shall not affect the validity of any remaining portion that shall remain in full force and effect. 19. Multiple Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 20. Paragraph Headings. Paragraph headings are inserted for convenience only and in no way limit or define the interpretation to be placed upon this Agreement. 21, Binding Agreement on Parties. This Agreement shall be binding on the parties hereto and their respective successors and permitted assigns. 22. Assignment. This Agreement and the obligations herein may not be assigned without the express written consent of each of the parties hereto. The License granted herein is personal to KCTCU. Any attempt to assign this License will automatically terminate the license privileges granted to KCTCU hereunder. 23. Entire Agreement. This Agreement and its exhibits constitute the entire agreement and understanding between the parties and supersedes any prior agreement or understanding relating to the subject matter of this Agreement. 24. Modification. This Agreement may be changed, modified or amended only by a duly -authorized written instrument executed by the parties hereto. Each party agrees that no representations or warranties shall be binding upon the other party unless expressed in writing herein or in a duly -authorized and executed amendment hereof. -5- 25. Counterparts and Execution. This Agreement may be executed in counterparts, each of which shall be an original and all of which shall constitute one and the same agreement. This Agreement may be executed electronically, and any signed copy of this Agreement transmitted by facsimile machine, email, or other electronic means shall be treated in all manners and respects as an original document. The signature of any party on a copy of this Agreement transmitted by facsimile machine, email, or other electronic means shall be considered for these purposes an original signature and shall have the same legal effect as an original signature. CITY OF EL By:. Richard G. 7.ozff, City Manager Attest: AKimberl D 4Cityerk COUNTY TEACHERS T UNION By;�— Name: Title: DireC40r Orc C_ . AS � C4-n4­u1-CC -4-e2 Attest: 'IL ■ 4 Date: / / Date: Legal DepAAgreementUcense Agr-KCTCU-ATM Elgin Police Department-5-9-24.dom Q