[2026-69 Ern A Penny Springvale ATM Amended.pdf]
CITY OF NORTH OLMSTED
RESOLUTION NO. 2026 - 69
By: Mayor Jones
A RESOLUTION AUTHORIZING THE MAYOR TO ENTER INTO AN
AGREEMENT WITH ERN A PENNY, INC. FOR A PERIOD OF ONE (1)
YEAR TO PROVIDE AN AUTOMATED TELLER MACHINE (“ATM”) AT
SPRINGVALE GOLF COURSE CLUBHOUSE, AND DECLARING AN
EMERGENCY, AS AMENDED.
WHEREAS, it is the desire of the Administration to make available for the convenience of
the guests and patrons of Springvale an Automated Teller Machine (“ATM”) at the Springvale
Golf Course Clubhouse; and
WHEREAS, Ern-a-Penny proposes to locate an ATM on site in the Clubhouse and the City
agrees to host the ATM for a period of not more than one (1) year; and
WHEREAS, it is the desire of this Council to authorize the Mayor to enter into an
Agreement with Ern A Penny, Inc. for ATM Services.
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF
NORTH OLMSTED, COUNTY OF CUYAHOGA, AND STATE OF OHIO:
SECTION 1: That the Mayor be and she is hereby authorized to enter an agreement with
Ern A Penny, Inc., and the Mayor is further authorized to execute additional contract documents,
as may be necessary, the legal form for which shall be subject to review by the Director of Law.
See contract proposal attached hereto as Exhibit A.
SECTION 2: That this Resolution is hereby declared to be an emergency measure
immediately necessary for the preservation of the public health, safety and welfare, and further for
the reason that it is necessary that this Resolution go into effect immediately to establish additional
ways for patrons to secure funds to pay for goods and services available at Springvale; and further
provided it receives the affirmative vote of two-thirds of all members of Council, it shall take effect
and be in force immediately upon its passage and approval by the Mayor.
PASSED: ________________________
First Reading: _______________
Second Reading: _______________
Third Reading: _______________
Committee: __________________
ATTEST:
_______________________________
__________________________
BEATRICE TAYLOR
LOUIS J. BROSSARD
Clerk of Council
President of Council
2
APPROVED: _____________________
APPROVED AS TO LEGAL FORM:
_______________________________
/s/ Michael R. Gareau, Jr. ______
MAYOR NICOLE DAILEY JONES
MICHAEL R. GAREAU, JR.
Director of Law
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[2026-69 Ern A Penny Springvale ATM Exhibit A Amended.pdf]
ATM SI1E / LOCATION AGREEMENT
This ATM Site/ Location Agreement ("Agreement") is made and entered into as of the dale identified
below (the "Effective Date") by and between Ern A Penny, Inc. ("Operator") and the person or entity (the
"Vendor") identified at the signature block.
1. Background; Purpose. The Vendor owns or leases a retail or commercial location identified below (the
"Location") and the Vendor desires to have an Automated Teller Machine ("A1M") installed at the
Vendor's Location for the pmpose of dispensing cash. Operator owns an A TM and associated
communication equipment ( collectively referred to as the "Equipment") that it wishes to place at the
Vendor's Location. The Vendor and Operator, in consideration of the mutual promises herein expressed,
here by agree to the terms and conditions of this Agreement. Each of Vendor and Operator
acknowledge and agree that Ern A Penny, Inc. an Ohio corporation and a third party processing
provider Payment Alliance International (PAI) is to provide all A TM transaction processing services for
the Equipment at the Location.
2. Placement. The placement of the Equipment will be in a mutually agreed upon area within the Vendor's
Location in order to optimize visibility and accessibility. Vendor will permit Equipment to be bolted to
floor for security. All Equipment is the sole and exclusive property of the Operator, and title to the
Equipment will at all times remain with the Operator. Vendor will keep the Equipment free of all claims,
levies, and encumbrances. Vendor agrees to provide full public access to Equipment during Vendor's
typical business hours. Vendor will allow access to Operator for installation, servicing, repair, and
maintenance of the Equipment and agrees to promptly notify Operator of the need for service and repair
on the Equipment. Vendor further agrees that Operator shall have the exclusive right to open, adjust,
remove, disconnect, service, repair, maintain, replace, or alter the Equipment; and to offer advertising
on the Equipment. Operator will be responsible for all operating expenses and maintenance cost of
Equipment other than the supply of Electricity, Internet or phone service to operate the Equipment and
which is to be provided by Vendor at its expense.
3. Exclusivity. Operator is hereby granted the exclusive right to operate one or more ATMs at the Location
during the term of this Agreement. Vendor shall promptly remove, and shall keep the Location clear,
both inside and out of any and all ATMs other than the Equipment that is the subject of this Agreement.
Em A Penny, Inc. is hereby designated as the exclusive provider of ATM transaction processing
services at the Location, and Vendor agrees that it will not subscribe to any other A TM processing
service provider during the term of this Agreement.
4. Te1m and Termination. This Agreement shall be binding upon Operator and Vendor, their heirs,
executors, administrators, successors and assigns for a term of five (5) years commencing 011 the
Effective Date. This Agreement shall thereafter automatically renew itself at the end of the initial term
or any renewal term for an additional five (5) year term, unless the Vendor gives Operator written notice
of termination of this Agreement by certified mail not less than ninety (90) days before the end of the
initial term or renewal term. If this Agreement is terminated without cause by Vendor prior to expiration
of the initial te1m or any renewal term, Operator, acting directly or indirectly through PAI, shall be
specifically authorized to retain the last sixty ( 60) days of Commission as reimbursement for its initial
set up expenses as well as being entitled to compensation for the loss of income for the remainder of the
term caused by such early termination. Loss or income shall be determined utilizing an average of
monthly revenue realized by Operator during the period of time the Equipment was in operation at the
Location, or three hundred dollars per month, whichever is greater.
ATM SITE/ LOCATION Agreement
Rev 09/01/07
One (1) year
Amended
EXHIBIT A
Vendor hereby authorizes Operator to file a copy of this Agreement, or a memorandum of this Agreement,
upon the real estate records or the Location. Should Operator determine in its sole discretion that revenue is
not sufficient to warrant operation of the Equipment at the Location, Operator may terminate this
Agreement, without liability to Vendor other than Commission due and payable to Vendor through the date
of termination, upon thirty (30) days written notice, and Operator may then remove the Equipment from the
Location.
5. Surcharge and Commission. Operator and Vendor agree that the Equipment shall be programmed by
Operator to charge customers the surcharge amount Surcharge") specified below for each chargeable
transaction, and the Vendor will receive the commission amount ("Commission") specified below for
each chargeable transaction after the first fifty (50) transactions per calendar month on the Equipment.
Commissions will be paid on a monthly basis to Vendor. Vendor agrees that payment of Commission is
contingent upon the prompt completion and return of an Owner/Operator Agreement, a document which
gathers information required to comply with the United States Patriot Act, and which document is made
a part of this Agreement by this reference.
6. Cash Loading. The person or entity responsible for cash loading of the Equipment is identified below. If
Vendor (or its designated third party) is responsible for cash loading of the Equipment, Vendor shall
complete and return to Operator the document entitled "ATM Cash Loader Profile" or its equivalent,
which document is made a part ofthis Agreement by this reference. If Vendor (or its designated third
party) is responsible for cash loading, the failure to load cash within five (5) days of a cash outage shall
be deemed a material breach of this Agreement.
7. Insurance. Vendor agrees to protect the Equipment from loss, theft, damage, or destruction. Vendor
shall procure and maintain property insurance protecting the Equipment against loss, theft, damage or
destruction in an amount equal to three thousand dollars. Vendor shall require its insurer to provide to
Operator a certificate of insurance designating Operator as an additional insured and loss payee.
8. Assignment. Operator reserves the right to assign its rights, title and interest in and to the Equipment
and/or this Agreement. Upon transfer of Vendor's business it shall be Vendor's sole responsibility to
obtain written assignment of this Agreement to Vendor's intended transferee, and Vendor agrees it shall
remain bound under this Agreement until it delivers such assignment to Operator in a form acceptable to
Operator. Any attempted assignment by Vendor is void until such time as Operator consents in writing
to such assignment. Operator's consent shall not be unreasonably withheld.
9. Severability. Should any of the provisions ofthis Agreement be held illegal, invalid, or unenforceable,
then such provision(s) shall be deemed null and void without invalidating the remaining provisions of
this Agreement.
10.Network Rules and Regulations. Vendor understands and agrees that the Equipment (and the ATM
transactions originating from the Equipment) is subject to strict operating rules and regulations of each
A TM network, and Vendor agrees to comply with such network rules and regulations. Operator reserves
the right to add, delete or change A TM network affiliations from time to time. Vendor agrees to provide
a safe and secure environment for the Equipment and customers utilizing the Equipment. Vendor shall
not capture, or attempt to capture, the personal identification number of any person utilizing the
equipment.
11. General Good Faith Obligations. Each of Operator and Vendor agree that it will use its good faith
efforts to comply with all applicable local, state and federal laws, ordinances, rules and regulations
concerning the placement and operation of the Equipment.
ATM SITE I Location Agreement Rev 09/01107
12. Immediate Violations. Vendor understands and agrees that if it is in breach of any term or condition of
this Agreement, that breach may result in temporary or permanent discontinuance of A TM processing
services by Operator, and the temporary or permanent shut down or disablement of the Equipment.
13. Supply or Utilities. Vendor agrees, at its expense, to provide and maintain a dedicated business dial up
telephone line or Internet Access and one dedicated operational power outlet (110 volts) for operation of
the Equipment. Vendor understands and agrees that if it fails to turn on, supply power, supply a
telephone line or Internet Access and/or activate the Equipment covered by this Agreement, such failure
shall be an immediate breach of this Agreement.
14. Right of Setoff. Operator shall be entitled to set off any amount owing at any time from Vendor to
Operator against any amount payable at any time by Operator to Vendor, whether under this Agreement
or any other agreement.
15. Warrant) Disclaimer and Limitation or Liability. TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, OPERATOR WILL NOT BE LIABLE TO VENDOR FOR ANY BUSINESS
INTERRUPTION, LOSS OF PROFIT, REVENUE, MATERIALS, ANTICIPATED SA VIN GS,
DATA, CONTRACT, GOODWILL OR THE LIKE (WHETHER DIRECT OR INDIRECT IN
NATURE) OR FOR ANY OTHER FORM OF INCIDENTAL, INDIRECT OR CONSEQUENTIAL
DAMAGES OF ANY KIND. OPERATOR'S MAXIMUM CUMULATIVE LIABILITY RELATIVE
TO ALL OTHER CLAIMS AND LIABILITIES, INCLUDING OBLIGATIONS UNDER ANY
INDEMNITY, WHETHER OR NOT INSURED, WILL NOT EXCEED ONE HUNDRED DOLLARS.
ANY ACTION AGAINST OPERATOR MUST BE BROUGHT WITHlN EIGHTEEN (18)
MONTHS. AFTER THE CAUSE OF ACTION ACCRUES. THESE DISCLAIMERS AND
LIMITATIONS OF LIABILITY WILL APPLY REGARDLESS OF ANY OTHER CONTRARY
PROVISION HEREOF AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN
CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHER WISE,.
AND FURTHER WILL EXTEND TO THE BENEFIT OF ERNA PENNY, INC. AS TIIlRD-P ARTY
BENEFICIARIES. EACH PROVISION HEREOF WHICH PROVIDES FOR A LIMITATION OF
LIABILITY, DISCLAIMER OF W ARRA.t"iTY OR CONDITION OR EXCLUSION OF DAMAGES
IS SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION AND IS TO BE
ENFORCED AS SUCH.
16. Entire Agreement. This Agreement is the entire intended agreement between Operator and Vendor
relating to the subject matter hereof and all prior, contemporaneous, or subsequent representations,
negotiations, understandings, or agreement, whether oral or written, are hereby integrated into this
Agreement. Any modification of or amendment to, this fully integrated Agreement shall not be valid or
effective unless it is set forth in writing;and signed by duly authorized representatives of both Operator
and Vendor.
17. Governing Law. This Agreement, its contents, and any dispute arising there from shall be construed,
interpreted and applied in accordance with the laws of the State of Ohio, without regard to its conflicts
of law provisions. Operator and Vendor hereby consent and agree to jurisdiction and venue in the
Federal District Court of the State of Ohio, Northern District, or in any court in Lorain County, Ohio,
and waive any rights to jurisdiction and venue elsewhere. Vendor expressly waives the affirmative
defense of lack or personal jurisdiction before said court. In any action at law or in equity relating to the
subject matter of this Agreement, including an action for declaratory relief, the prevailing party shall be
entitled to an award of reasonable attorney fees and costs of the action in addition to any other damages
awarded. Each party waives a trial by jury in any such action.
ATM SITE/ Location Agreement Rev 09101107
Cuyahoga
18. Miscellaneous Information:
The Vendor's Location for placement of the Equipment is:
5J' 71 Cti
f! ~7tJ
(Street Address)
(City, State, Zip)
J_J
()
The Surcharge fee to be programmed on the Equipment is: $ rr, tJ'
The Commission payable to Vendor is: $
(2
per transaction in accordance with Paragraph 5.
The responsibility for cash loading of the Equipment is with 0 Operator
( ) Vendor
(choose one)
19. Warranty of Authority. VENDOR WARRANTS IT HAS THE RIGHT AND AUTHORITY TO
ENTER INTO THIS AGREEMENT AND THE PERSON SIGNING BELOW ON BEHALF OF
VENDOR IS DULY AUTHORIZED AS A SIGNATORY OF THE VENDOR.
Operator:
Entity Name:
Em A Penny, Inc.
Address:
4Mlr!/?.£,l 4 JJ ~/
By: ;/!~A&_
Printed Name: /JcR dJ.£/IA /:
~~/'-y<JJ -e J)
Title: ~
/! f;'.,& I c/44o'-
•
Effective Date:
Vendor:
Person/Entity Name:
Address:
By:
Printed Name:
Title:
Date:
Phone:
ATM SITE/ Location Agreement Rev 09/01107
4
$1.00