ATM Lease Agreement
LEASE AGREEMENT
This Lease Agreement is made and entered into this (?G.,vI) day of ") ct''\-<:: ,
~, by and between The City of Salina, Kansas having its principal place of business
located at 300 West Ash, Salina, Kansas 67401 ("Lessor"), and Sunflower Bank, National
Association, a national banking association with its principal offices located at 2090
South Ohio, City of Salina, County of Saline, Kansas ("Lessee").
Lessor agrees to lease to Lessee and Lessee agrees to lease from Lessor space to
install and operate one (1) automatic teller machine or cash dispensing machine
("Machine") within a portion of the main lobby of the structure commonly known as The
Salina Bicentennial Center, located at 800 The Midway, Salina, Kansas 67401 ("Machine
location"), plus space(s) for inside and/or outside signage at The Salina Bicentennial Center
advertising the availability of the Machine, upon the following terms and subject to the
conditions and requirements hereinafter set forth:
1. Term
The initial term of this Lease shall be for ten (10) years commencing at 12:01AM on
or before the 1 st day of July, 2006, and terminating at 11 :59PM on the 30th day of June,
2016, with three (3) year options to renew as set forth hereinafter. As used in this Lease, the
expression "term of this Lease" refers to the initial term and to any renewal of this Lease as
provided below.
2. Location
The Machine location and the inside and/or outside signage at the Salina Bicentennial
Center shall be mutually agreed to by the parties to this agreement at a future date. These
locations shall be reduced to writing at that time, attached to this Agreement designated
as "Exhibit "A", and incorporated herein by reference.
3. Lessee's Right to Terminate
The Lessee may terminate this lease at any time after the first twelve (12) months
of the initial Term, upon thirty (30) days advance written notice to the Lessor if (a) the
Machine is deemed unprofitable by Lessee, or (b) Lessor's relationship with Lessee has
materially changed, both as determined by the Lessee.
4. Installation of Machine and Signage
Lessee shall install the Machine, at its own expense except as set forth hereinafter, at
the Machine location. Lessee shall install at its own expense at the Machine location, all
phone line( s) and modems necessary for the Machine. Lessee may install, at its own
expense, with the prior written approval of the Lessor, signage as set forth above advertising
the availability of the Machine. It is expressly stipulated and agreed that the Machine and
signage shall at all times during the term of this Lease be deemed the personal property of
Lessee, and shall not, by reason of any attachment or connection to any realty, become or be
deemed a fixture or appurtenant to any such realty. Machine and signage shall be severable
1
from any such realty at any time, and shall remain the property of Lessee, free of all claims
or rights of Lessor or its creditors.
5. Electrical Power, Condition, Inspection, and
Acceptance of Property
Lessor shall be solely responsible for the supply of electric power to the Machine,
and signage including, but not limited to, wiring and cables, and shall pay for all electric
power used by the Machine and signage. Lessor and Lessee agree that the Machine will be
placed in a well-lit, safe area for the protection of customers.
6. A TM Revenue Sharing
The Lessee will provide a monthly statement of ATM activity to the Lessor. After
the Lessee recovers its expenses related to the Machine and activity through the Machine,
Lessee will share fifty percent (50%) of the net income with the Lessor by a credit to the
Lessor's deposit account. Net income is defined as the foreign transaction fee established
for this particular machine, multiplied by the number of interchange transactions of this
machine, less Machine costs used in the Lessee's internal profit and loss statement.
7. Delivery of Possession
In the event that Lessor fails to deliver possession of the Machine location at the
commencement of this Lease, Lessee, at Lessee's option, may be entitled to cancel this
Lease or to take possession at the time Lessor is able to deliver possession. A delay in
delivery of possession shall extend the initial term of this Lease so that in all events, this
shall be a lease for ten (10) years
8. Taxes
Lessee shall pay all license fees, assessments and property and other taxes now or
hereafter imposed on the Machine by reason of ownership, leasing, renting possession or use
of the Machine, whether they are assessed to Lessor or Lessee, together with any penalties
or interest in connection therewith, excepting federal, state or local governmental taxes, or
payments in lieu thereof, imposed on or measured by income of Lessor.
9. Insurance
Lessee shall keep the Machine and signage insured for such risks and in such
amounts, as Lessee deems appropriate. Lessee agrees to provide Lessor with a certificate of
insurance showing such amounts of insurance. Lessee shall indemnify and hold harmless
the Lessor from any and all claims, losses, and damages arising out of Lessee's use of the
leased Machine location, except those caused by the act or omission of Lessor or its agents
or employees.
10. Security Deposits and Advanced Rentals
Lessor does not require a security deposit or advanced rental payment by Lessee.
11. Repair and Maintenance
Lessee shall maintain the Machine location and the space occupied by the inside
and/or outside signage located at the Salina Bicentennial Center in as good a condition as at
the beginning of the term of this Lease, except for reasonable wear and tear. Lessee shall
2
make all necessary repairs and replacements to the Machine and signage. Lessor grants
Lessee, its employees, representatives, or agents access to the Machine location during
normal banking business hours and during hours when The Salina Bicentennial Center is
open to the public to perform maintenance and service to the Machine and signage.
12. Lessee's Rights
If Lessor ceases business activities at the Machine location during the term of this
Lease, Lessee shall have the right to terminate this Lease, and promptly remove the Machine
and signage. If this Lease is terminated for any reason, Lessee shall have the right to
promptly remove the Machine and signage. In the event Lessor defaults in the performance
of any of the terms of this lease, Lessee, on thirty (30) calendar days written notice to
Lessor, may remedy such default and in connection therewith pay any such expense. All
such sums paid by Lessee shall upon demand be paid by Lessor to the Lessee, and if the
Lessor fails to reimburse Lessee, Lessee shall have the right to deduct the amounts so paid
from such installments of revenue sharing due to Lessor.
13. Lessee's Right to Alter or Improve
Lessee shall make no alteration, addition, or improvement to the Machine location
without the written consent of Lessor.
14. Default
Upon Lessee's failure to perform any of the terms and conditions of this Lease,
Lessor shall be entitled to give a notice of default. If Lessee shall cure the rental notice
within three (3) business days of its receipt or other notice within ten business (10) days of
its receipt, the default shall be deemed cured, otherwise the Lessor shall have the right to
terminate this Lease.
15. Assignment and Subletting
Lessee shall not transfer, assign, sublet, or pledge this Lease without the prior
written consent of Lessor. The consent to such transactions shall not be unreasonably
withheld, provided that Lessee shall remain liable during the term of this Lease upon all the
lease obligations.
16. Use
Lessee shall use the Machine location for the purpose of installing, operating, and
advertising an automatic teller machine or a cash-dispensing machine. The Lessee shall not
be permitted to use the Machine location for any other purpose.
17. Exclusive
Lessor will not consent to allow any party other than Lessee the right of
construction of a freestanding automatic teller machine (ATM) facility for the purpose of
operating as such or installation of another Machine on or around the Salina Bicentennial
Center.
3
18. Option to Extend or Renew
This lease will automatically renew for additional separate periods ofthree (3) years
unless written notice is provided by either party, at least two (2) months prior to the
expiration of the then-current lease term.
19. Privacy / Confidentiality
Lessor acknowledges that it may have access to nonpublic financial information
of customers and/or consumers of the Lessee, and/or other confidential and proprietary
information of the Lessee through its provision of services to the Lessee; Lessor further
acknowledges that such nonpublic customer and consumer financial information and any
other confidential and proprietary information of the Lessee coming to the attention of
Lessor during the course of its performance of services for the Lessee, constitutes
valuable and proprietary assets of the Lessee; and Lessor also acknowledges that Lessee
has a responsibility to its customers, consumers, and employees to keep records and
information confidential and proprietary as set forth in section 501 and 505(b), codified at
15 U.S.A. 6801 and 6805(b) of the Gramm-Leach-Bliley Act;
Lessor therefore agrees that it or any subcontractor it engages, shall not, directly or
through any affiliate, use any nonpublic financial information about either customers or
consumers of the Lessee, or any other confidential and proprietary information of the
Lessee, obtained by Lessor in the course of its performing services for the Lessee, other
than to carry out the purposes for which the Lessee disclosed the information or as
otherwise permitted by Title V of the Gramm-Leach-Bliley Act, and that Lessor and any
subcontractor it engages will implement and maintain appropriate measures designed to:
(a.) Ensure the security and confidentiality of that nonpublic financial information and
any other confidential and proprietary information, (b.) Protect against any anticipated
threats or hazards to the security and confidentiality of that nonpublic financial
information and any other confidential and proprietary information, and (c.) Protect
against unauthorized access to or use of such nonpublic financial information or any
other confidential and proprietary information that could result in substantial harm or
inconvenience to any customer or consumer of the Lessee, or to the Lessee directly.
Lessor further agrees to immediately notify Lessee should it become aware of any
violation of this agreement regarding Privacy / Confidentiality. This agreement regarding
Privacy / Confidentiality is binding upon the parties, their successors and assigns and
shall survive the termination of this Lease Agreement for any reason.
20. Surrender of the Machine Location
At the expiration of the term, Lessee shall surrender the Machine location and the
space occupied by the inside and/or outside signage located on or around the Salina
Bicentennial Center in as good condition as it was at the beginning of the term, except for
reasonable wear and tear.
4
21. Representation of Parties
Lessor is advised that it has the right to such independent legal counsel of its own
choosing to represent it herein and to advise it with respect to this matter and by its
signature on this document, Lessor acknowledges that it has either seen separate counsel
of its own choosing or has elected to proceed without separate counsel herein.
22. Governing Law
This Lease and its validity, construction and performance shall be governed by
the laws of Kansas. This Lease shall be interpreted according to its fair meaning, and not
in favor of or against any party.
23. No Oral Agreements
These terms are intended by the parties as a complete, conclusive and final
expression of all the conditions of their agreement. No other promises, statements,
warranties, agreements or understandings, oral or written, made prior to or at the signing
thereof, shall be binding unless in writing and signed by all parties and attached hereto.
Any amendment to this Lease, including an oral modification supported by new
consideration, must be reduced to writing and signed by both parties before it will be
effective.
24. Effect of Partial Invalidity
The unenforceability, invalidity, or illegality of any provision of this Lease shall
not render the other provisions unenforceable, invalid, or illegal.
25. Paragraph Headings
The titles to the paragraphs of this Lease are solely for the convenience of the
parties and shall not be used to explain, modify, simplify, or aid in the interpretation of
the provisions of this Lease.
26. Binding Effect
This Lease shall bind and inure to the benefit of the respective heirs, personal
representatives, successors, and assigns of the parties, except as specifically noted
elsewhere in this lease.
27. No Waiver
The failure of either party to this Lease to insist upon the performance of any of the
terms and conditions of this Lease, or the waiver of any breach of any of the terms and
conditions of this Lease, shall not be construed as thereafter waiving any such terms and
conditions, but the same shall continue and remain in full force and effect as if no such
forbearance or waiver had occurred.
5
28. Notices
Any notice provided for or concerning this Lease shall be in writing and be deemed
sufficiently given when received by certified or registered mail to the respective address of
each party as set forth at the beginning ofthis Lease.
29. Assignment of Rights
The rights of each party under this Lease are personal to that party and may not be
assigned or transferred to any other person, firm, corporation, or other entity without the
prior, express, and written consent ofthe other party.
30. Additional Terms
Lessee shall indemnify and hold harmless the Lessor from any and all claims, losses,
and damages arising out of Lessee's use of the leased Machine location under this
Agreement, except those caused by the act or omission of Lessor or Lessor's agents or
employees.
IN WITNESS WHEREOF, the parties have hereunto set their hands the day and year first
above written.
CITY OF SALINA, KANSAS
LESSOR
By:
f),,-,- Q VV\c..---
Donnie D. Marrs, Mayor
ATTEST:
By:
SUNFLOWER BANK, N.A.
LESSEE:
6