1 LICENSE AGREEMENT THIS LICENSE AGREEMENT ("License") is made and entered into effective as of January 1, 2004, by and between THE COUNTY BOARD OF ARLINGTON COUNTY, VIRGINIA, a body politic ("Licensor" or "County Board") and the ARLINGTON VIRGINIA FEDERAL CREDIT UNION, a non-profit corporation in the Commonwealth of Virginia ("Licensee" or "Credit Union"). RECITALS: WHEREAS, the County Board owns the land beneath an office building and garage located at 2100 and 2200 Clarendon Boulevard, Arlington, Virginia ( Property ). The building and garage at 2100 Clarendon Boulevard are used for the Arlington County Government Center ( Demised Premises ). In 1987, the County Board entered into a long-term ground lease for the Property with Courthouse Plaza Associates Limited Partnership. Also, in 1987 the County Board entered into the initial Lease for the Demised Premises. On October 23, 2002, the County Board executed an Amended and Restated Lease ("Lease") with CESC One Courthouse Plaza, L.L.C. ("Landlord"), for the Demised Premises, commencing on November 1, A vicinity map is attached hereto and incorporated herein by reference as Exhibit A; WHEREAS, on December 8, 1995, the County Board entered into a Sublease Agreement with the Credit Union to sublet approximately 119 square feet of office space in Suite 506 on the fifth (5th) floor of the Demised Premises and an Automatic Teller Machine ( ATM ) in the first floor lobby of the Demised Premises; WHEREAS, the Sublease Agreement expires on December 31, 2003, and, by this License Agreement, the Licensor and Licensee desire to continue to permit the Licensee to use the Licensed Premises as defined herein to be used by Licensee for the specified purposes. W I T N E S S E T H: NOW THEREFORE, in consideration of the sum of Ten Dollars ($10.00), the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Licensed Premises. The Licensee is permitted to use, under the following terms, Suite 506 on the fifth (5th) floor and a portion of lobby area on the first (1st) floor of the Demised Premises, as shown on Exhibit B attached hereto and incorporated herein by reference jointly ( Licensed Premises"). 2. Term. A. The initial term of this License shall commence on January 1, 2004 ("Commencement Date"), and shall terminate three (3) years thereafter at 12:00 midnight on December 31, 2006 ("Expiration Date") ("Initial Term"), unless sooner terminated as hereinafter provided. B. Licensee shall have the option to renew this License for one (1) additional term of three (3) years ("Renewal Term") upon the same terms and conditions as the Initial Term. This option shall be exercised by Licensee by giving written notice to Licensor, which notice must be received by Licensor not later than ninety (90) days prior to the expiration of the Initial Term. The Initial Term and Renewal Tem are jointly referred to hereinafter as Terms.
2 3. Use. Licensee is permitted to use that portion of the Licensed Premises known as Suite 506 for office space. The Licensee is permitted to use that portion of the Licensed Premises on the 1st floor of the Demised Premises for the installation of an ATM and for the use of an ATM by persons permitted to enter the first floor lobby of the Demised Premises. Licensee shall comply with all laws, rules, orders, ordinances and regulations any time issued or in force, applicable to the Licensed Premises, or to the Licensee's use thereof, promulgated or issued by the Licensor or by of any applicable governmental or judicial authority. 4. Monthly Fee. During the first twelve (12) months of this License Agreement, Licensee shall pay the County a use fee, in advance, in the amount of Three Hundred Fifty and 00/100 Dollars ($350.00) per month ( Base Use Fee ), without deduction, set-off, counterclaim or demand. Thereafter, upon each subsequent anniversary of the Commencement Date, with such annual increases to be cumulative in effect, the Base Use Fee shall increase by the greater of: (i) five percent (5%), or (ii) an amount equal to the then existing Base Use Fee times the percent of the percentage increase in the U.S. Department of Labor-Bureau of Labor Statistics, Consumer Price Index for Urban Wage Earners and Clerical Workers ( CPI-W ) for Washington-Baltimore, DC-MD-VA-WV - All items, NOVEMBER 1996=100 ( CPI Index ) between the last published CPI Index for each current calendar year during the term of this License Agreement and the CPI Index published for the same period in the calendar year in which the Commencement Date occurs ( Base Period ). If the Index for the current calendar year is not for the same relative period as the Index for the Base Period, then the Index to be used for the current calendar year shall be the index for the relative period closest to that of the Index for the Base Period, or, if there are two or more such indexes for the current year, then the average of the indexes shall be used. The monthly fee and all other amounts to be paid by Licensee to Licensor shall be made payable to Treasurer, Arlington County, Virginia and shall paid at the address designated by Licensor. 5. Utilities. Licensor agrees to provide electricity service required for Licensee's operation of the ATM within the designated portion of the Licensed Premises at no cost to Licensee. Licensee, and its contractors, shall be permitted, at Licensee's cost, to install, locate, maintain and repair utility lines within the interior of the Demised Premises to provide to the ATM with electricity, telephone service and computer lines (jointly "Support Facilities") from public utility lines or junction boxes serving or located within the Demised Premises. The location and nature of that Support Facilities shall be subject the prior written approval of the Licensor and the Landlord, if required by the Lease. If any utility service required for Licensee's use of the Licensed Premises is determined to be unavailable, or later becomes unavailable, to Licensee and to the Licensed Premises, for whatever reason whatsoever (including, without limitation, the inability to acquire or secure on reasonable terms any required easement, permit or consent for the installation thereof, the interruption or discontinuance of any such utility service, or the lapse or termination of any easement, permit or consent therefor), Licensee may thereafter terminate this License effective upon giving notice of termination in writing to Licensor. Upon such termination, this License shall expire and of no further force or effect. 6. Taxes. Licensee or others so assessed shall pay all applicable personal property taxes, charges and assessments levied and assessed against the Licensee's ATM and related equipment. 7. Maintenance and Repairs of the Licensed Premises and ATM. Licensee shall be solely responsible for the maintenance of the Licensed Premises, the ATM, and the Support Facilities. Licensee, at Licensee's expense, shall perform, or cause to be performed all necessary repairs or maintenance of the ATM, all related equipment, and Support Facilities located within, or serving, the Licensed Premises. Licensor shall have no liability for the performance thereof or for the payment for such repairs or maintenance. 2
3 8. Improvements on the Licensed Premises. Licensee shall be permitted, at its own cost and expense, to install, construct, maintain, and remove an ATM within the designated portion of the Licensed Premises. The ATM Equipment Specifications are attached hereto and incorporated herein as Exhibit C. After obtaining written consent from the Licensor, the Licensee may make alterations, additions, or replacements to the ATM and Support Facilities related equipment for or fixtures signage (on the ATM but not a freestanding sign). After providing Licensor with thirty (30) days prior written notice, the Licensee may remove its equipment, structures and improvements which are not permanently affixed to the Demised Premises. Within ten (10) business days after the termination or expiration of this License, Licensee, at its sole expense, shall be required to remove the ATM and Support Facilities as determined by the Licensor in its sole discretion. Licensee shall repair all damage or disfigurement to the Licensed Premises or Demised Premises caused by and shall restore the Licensed Premises and the Demised Premises to a condition existing immediately prior to the installation of the ATM and Support Facilities. 9. No Alterations or Signs. Licensee shall make no alterations, installations, additions or improvements in or to the Licensed Premises, including without limitation, the placement of any signs, unless the Licensee obtains the prior written authorization from the Licensor. Licensee shall maintain the Licensed Premises in clean, safe and sanitary condition. 10. No Assignment or Transfer. This License is not assignable and nontransferable by Licensee. 11. Indemnification. Licensee hereby covenants to defend, indemnify and hold harmless, Licensor, and its elected and appointed officials, officers, constitutional officers, judges, employees, contractors, and agents, and the Landlord, from all losses, costs, claims, causes of actions, demands, liabilities, expenses and attorney's fees arising from or in connection with any injury or damage to any person or property: (i) which occurs in the Licensed Premises; or (ii) which occurs in any portion of the Demised Premises, the Support Facilities, other than the Licensed Premises; and which injury or damage under (i) or (ii) above is caused by the negligence or willful misconduct of Licensee, its agents, contractors, employees, customers, and invitees arising out of the permission granted by this License. The provisions of this section shall survive the expiration or termination of this License. 12. No Liability. All personal property of Licensee, its employees, agents, contractors, business invitees, licensees, customers, clients, and invitees, family members, guests or trespassers, in and on the Licensed Premises shall be and remain therein under any and all circumstances at the sole risk of the above described persons and entities. Licensor shall not be liable to any such person or entity for any damage to, or loss of, such personal property. Licensee hereby covenants to fully defend, indemnify and hold harmless Licensor and its elected and appointed officials, officers, constitutional officers, employees, contractors and agents, and the Landlord, from all losses, costs, claims, causes of actions, demands, liabilities, expenses and attorney's fees arising out of lost, stolen or damaged personal property of this License or of persons using the ATM. In addition, Licensee acknowledges that Licensor, its elected and appointed officials, officers, constitutional officers, employees, contractors and agents, and the Landlord, shall not be liable for any special, consequential or punitive damages as a result of any claim relating to this License or Licensee's use of the License Premises or the Demised Premises. 13. Insurance. Licensee and its contractors, at their sole expense, shall secure and maintain a policy of commercial general liability insurance, throughout the terms of this License, from an insurance carrier satisfactory to Licensor, providing coverage for claims arising from or in connection with the exercise of rights hereunder by Licensee or its contractors for personal injury, death, property damage or loss suffered by any person, thing or interest with a minimum of not less than One Million Dollars ($1,000,000) per occurrence. The insurance policy and policy limits shall in no way operate as a limit of Licensee's liability to Licensor under this License, or as a limit of Licensee's duty of 3
4 indemnification hereunder. Prior to the exercise of any rights under this License, Licensee shall furnish Licensor with certificates of insurance (noting the requirements of this section, indicating that the insurance is prepaid for a one year policy period insuring all activity contemplated under this License and containing a 30 day notice provision prior to termination.) The policy shall provide, inter alia, that the actions or omissions of any insured party shall not invalidate the policy as against any other insured party or otherwise adversely affect the rights of any other insured party under the policy. No provision contained in this License shall act as a waiver of any rights of subrogation of the insurance company which is the primary insurer for Licensor and its contractors. The insurance required to be carried by Licensee and its contractors herein shall be with an insurance company licensed to do business in the Commonwealth of Virginia and rated not lower than A-X in the Best Rating Guide. Such insurance (a) shall contain an endorsement that such policy shall remain in full force and effect notwithstanding that the insured has relicensed its right of action against any party before the occurrence of a loss; (b) shall name Licensor and others listed hereinafter as additional insureds and loss payee; and (c) shall provide that the policy shall not be canceled, failed to be renewed or materially amended without at least thirty (30) days' prior written to Licensor. On or before the License Commencement Date and, thereafter, not less than thirty (30) days before the expiration date of the insurance policy, an original of the policy (including any renewal or replacement policy) or a certified copy thereof, together with evidence satisfactory to Licensor of the payment of all premiums for such policy, shall be delivered to Licensor. Licensor, its elected and appointed officials, officers, constitutional officers, employees, contractors and agents, and the Landlord, shall be named as additional insureds under all coverages maintained by Licensee hereunder and the certificate of insurance, or the certified policy, must so state. The above referenced persons and entities shall be considered as "Licensor" for the purposes of all insurance policies issued pursuant to this License. Coverage afforded under this section shall be primary as respect to the Licensor, its elected and appointed officials, officers, employees, contractors and agent, and the Landlord. All insurance policies required of Licensee and its contractors hereunder shall be endorsed to include the following provision: "It is agreed that this policy is not subject to cancellation, non-renewal, material change, or reduction in coverage until thirty (30) days prior written notice has been given to Arlington County, Virginia." Therefore, the words "endeavor to" and "but failure to mail such notice shall impose no obligation of liability of any kind upon the company, its agents or representatives" shall be eliminated from the cancellation provision of standard ACCORD certificate of insurance. 14. Default. This License shall, at the option of Licensor, terminate if Licensee violates or fails to perform any of the conditions, covenants or agreements of this License, including without limitation, the payment of the monthly fee, provided that any such violation or failure to perform any of those conditions, covenants or agreements continues for a period of five (5) days after written notice hereof has been delivered by Licensor to Licensee. In such event, Licensee shall remain liable to Licensor for all money and other damages arising from such default. Upon the termination of this License, Licensor shall have the right to prevent Licensee's entry to, or access upon, the Licensed Premises and Demised Premises, except to remove the ATM and Support Facilities. In the event of any default or dispute arising hereunder, Licensee shall fully reimburse Licensor for all attorneys fees and court costs incurred by Licensor. 15. Notices. All notices or other communications hereunder shall be in writing and shall be given to such party by hand delivery or by certified mail, return receipt requested, at the following addresses or such other addresses hereafter provided by notice to the other party: 4
5 To Licensor: Arlington County, Virginia 2100 Clarendon Boulevard, Suite 302 Arlington, Virginia Attn: County Manager with a copy to: Arlington County, Virginia 1400 North Uhle Street, Suite 403 Arlington, Virginia Attn: Real Estate Coordinator To Licensee: Arlington Virginia Federal Credit Union 2130 North Glebe Road Arlington, Virginia Attn: Vice President Finance 16. No Partnership or Lease. It is agreed that nothing contained in this License shall be deemed or construed as creating a partnership, joint venture, the relationship of landlord or tenant or a leasehold interest in the Demised Premises or Licensed Premises. 17. Appropriations of Funds. Notwithstanding any other provision of this License to the contrary, all of Licensor's duties and obligations under this License are subject to appropriation of funds by the County Board of Arlington County, Virginia, for the specific purpose of satisfying the payment and performance of any such obligations. 18. Role of the Licensor/Licensor Decisions: No Waiver. Licensee hereby acknowledges that Licensor has entered into this License in its role as Licensor and not as a governing authority. Accordingly, the Licensor's execution of this License shall neither constitute nor be deemed to be governmental approval for any actions or interests contemplated herein, including without limitation, for the installation of the ATM and occupancy of the Licensed Premises, or for any other governmental approval or consent required to be obtained by Licensee. Whenever in this License, Licensor is required to join in, consent, give its approval, or otherwise act under this License, it is understood that such obligations are meant to apply to the Licensor acting in its capacity as a Licensor and not in its capacity as a governing authority. Licensee hereby acknowledges that any and all decisions, determinations, consents, notifications or any other actions taken or to be taken by Licensor pursuant to this License, whether or not specifically contemplated hereunder, may be taken by the County Manager or by another Arlington County official or body, or judicial authority, pursuant to any means, mechanism or process as determined by Arlington County in its sole discretion. Licensee shall have no right to question or challenge the propriety, authority or legality of any such Arlington County official or body, or means, mechanism or process by which any such decision, determination, consent, notification, or other action is taken or to be taken hereunder by Licensor. Nothing in this License shall be construed to waive any of Licensor's powers, rights or obligations as a governing authority or local governing body, whether or not affecting the Demised Premises or Licensed Premises, including, but not limited to its police power, right to grant or deny permits, right to collect taxes or other fees, or any other power, right or obligation whatsoever. 19. No Waiver of Sovereign Immunity by Licensor. Notwithstanding any other provision of this License to the contrary, nothing in this License, nor any action taken by Licensor, pursuant to this License nor any document or decision which arises out of this License shall not constitute or be construed as a waiver of the sovereign immunity or governmental immunity of the Licensor, or of its elected and appointed officials, officers and employees. 5
6 20. No Rights in Third Parties. The parties hereto mutually agree that this License shall neither create in the public, or in any person or entity other than those signing this License as parties hereto, rights as a third party beneficiary hereunder, nor authorize any person or entity, not a party hereto, to maintain any action for personal injury, property damage, or breach of contract pursuant to the terms of this License or otherwise. 21. No Indemnification or Hold Harmless. Notwithstanding any other provision of this License to the contrary, Licensor shall have no obligation to explicitly or implicitly indemnify or hold harmless the Licensee or any third party or parties from any liability whatsoever. 22. Approval of Regulatory Agencies. This License is subject to and conditioned upon Licensee obtaining and maintaining approval from any and all federal, state or local governmental or regulatory authorities having jurisdiction: (i) over Licensee and its authority to use the Licensed Premises for an ATM location; and (ii) over the construction of the improvements proposed to be located by Licensee on the Licensed Premises within the Demised Premises. If the Licensee does not first obtain or maintain any such required approval, then Licensee may terminate this License effective upon giving notice of termination in writing to Licensor. Thereafter, this License shall be null and void and of no further force or effect. Licensee agrees to use its best efforts to obtain and maintain any such required approvals during the terms of this License. 23. Termination Rights. Either party shall have the right to terminate this License for any reason at any time during the Terms, upon sixty (60) days prior written notice to the non-terminating party. 24. Effect of Lease. The Licensee agrees to comply with all applicable provisions of the Lease. 25. Approval of License by Licensor and Landlord. This License shall not become effective unless and until the Landlord and the County Board approves this License. Such approval by the County Board shall be evidenced by the execution of this License by a person authorized by the County Board. If this License is not approved by the County Board and executed on behalf thereof, then no liability or obligations shall accrue to the Licensee or Licensor. 26. Entire Agreement, Amendment, Choice of Law. This License contains the entire agreement of the parties hereto with respect to the subject matter hereof. No representations, inducements, or agreements, oral or otherwise, between the parties not contained in this License shall be of any force and effect. This License may not be modified, changed or terminated, in whole or in part, in any manner other than by an agreement in writing signed by duly authorized representatives of the parties hereto. This License shall be construed and enforced in accordance with the laws of the Commonwealth of Virginia. The courts of Arlington County, Virginia, shall be the proper fora all disputes arising hereunder. 27. Severability. If any term, covenant, condition, promise, or provision of this License, or the application thereof to any person or circumstance, shall be invalid or unenforceable or be declared unenforceable, the remainder of this License and the application of such term, covenant, condition, promise, or provision to persons or circumstances other than those to which it has been held to be invalid or unenforceable, shall not be affected thereby, and shall be severable therefrom, and each remaining term, covenant, condition, promise, and provision of License shall be valid and enforceable to the fullest extent permitted by law. 28. Incorporation of Recitals. The foregoing recitals are fully incorporated into this License by this reference. 6
7 IN WITNESS WHEREOF, the parties hereto have caused multiple counterparts of this License to be signed in their respective names by their respective authorized officers, effective as of the later of the dates set forth below. LICENSOR: THE COUNTY BOARD OF ARLINGTON COUNTY, VIRGINIA, a body politic Witness: By: Printed Name: Title: Date: Approved as to Form: County Attorney LICENSEE: ARLINGTON VIRGINIA FEDERAL CREDIT UNION, a non-profit corporation in the Commonwealth of Virginia Witness: By: Printed Name: Title: Date: 7
8 ****************************************************************************** PAGE BREAK - TO BE ATTACHED: Exhibit A Vicinity Map Exhibit B Location of the Licensed Premises Exhibit C ATM Equipment Specifications 8