Loading...
HomeMy WebLinkAboutWilliam Scotsman 1AGREEMENT TERMINATION Please complete this form when the attached agreement is no longer ineffect.effect. C F t� OI k RA ANT Return form to the Sr. Deputy Clerk of the Council (M-30)_ Call 6 -S 3� &f yaial v Upy questions. The agreement with 10 ([ t a/' s� � pq4// - No. A—�(o—OB was completed on /�'(i/Jj &, Y/L c� and final payment has been made. Department: i re- Signature Date: City of Santa Ana Revised 8-7-03 Clerk of the Council JI; iB A-2006-083 I101, !1('T LEASE WITH OPTION TO PURCHASE AGREEMENT THIS AGREEMENT, made and entered into this 25rs day of April, 2006 by and between Williams Cg Scotsman, Inc., a Maryland corporation (hereinafter "Lessor") and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City"). Lessor and City may be referred to individually as a "Party" and collectively as the "Parties." RECITALS A. Lessor builds and leases relocatable modular and/or prefabricated structures, together with stairs, railings, furniture and other items attached or appurtenant thereto, referred to collectively as "the Equipment'. B. Lesssor is willing to lease to City and City is willing to lease from Lessor the Equipment described below upon payment to Lessor of the amounts set forth below. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: SCOPE OF WORK Lessor will design, build, deliver, install and maintain the following Equipment: • A 64x84 Section Modular, as set forth in Quotation No. 1143425-8, dated April 25, 2006, attached hereto as Exhibit A, and incorporated by reference. • Two sets of steps ■ One prefabricated ramp • Skirting and tiedowns 2. TERM a. The term of this Agreement shall commence on the date said Equipment is installed at Centennial Park, Santa Ana, California and shall continue for 60 months. b. At the conclusion of the 60 month lease, if all lease payments, including all outstanding amounts due under the lease, have been made by City, City may exercise an option to purchase the Equipment for $1, and title to the equipment shall pass to City, as set forth in "Purchase Option", attached as Exhibit B and incorporated by reference. 3. COMPENSATION a. City agrees to pay, and Lessor agrees to accept as total payment for the lease of the Equipment, a monthly lease rate of $8,460.00, plus tax, as set forth in Exhibit A, hereto. The total cost for production, delivery, installation, maintenance and purchase of the option to buy the Equipment shall not exceed $626,272.32 during the term of this Agreement. c. Payment by City shall be made monthly, on or before the 10`h day of each month, subject to City accounting procedures. 4. DELIVERY 4.1 Delivery shall be made within eight (8) weeks following execution of this Lease Agreement by both parties. Delivery shall be defined as actual delivery and installation of the Equipment on the site. 4.2 FREIGHT. Lessor will pre -pay and bill City for all freight charges. Risk of Loss of the Equipment will pass to City upon City's acceptance of the Equipment after installation. Lessor will pack and ship all Equipment in accordance with good commercial practices. 4.3 City shall procure and/or maintain insurance on the Equipment for the full insurable value thereof during the entire term of this Lease Agreement and for extension periods if any. INDEMNITY 5.1. GENERAL INDEMNITY BY LESSOR. Lessor will indemnify and hold City harmless from any and all liability, expense, judgment, suit, cause of action, or demand for personal injury, death, or direct damage to tangible property which may accrue against City to the extent it is caused by the negligence of Lessor, its subcontractors, or their employees or agents, while performing their duties, including production, delivery, installation, repossession and/or removal of the Equipment, pursuant to this Agreement. City will cooperate with Lessor in its defense or settlement of the claim or suit. 5.2. GENERAL INDEMNITY BY CITY. City will indemnify and hold Lessor harmless from any and all liability, expense, judgment, suit, cause of action, or demand for personal injury, death, or direct damage to tangible property which may accrue against Lessor to the extent it is caused by the negligence of City, its employees or agents, while performing their duties, including the use and possession of the Equipment, pursuant to Agreement. Lessor will cooperate with City in its defense or settlement of the claim or suit. 6. DISPUTES The Parties, by their project managers, will attempt to settle any dispute arising from this Agreement through consultation and a spirit of mutual cooperation. The dispute will be escalated to appropriate higher - level managers of the Parties, if necessary. DEFAULT AND TERMINATION 7.1 DEFAULT BY A PARTY. If either Party fails to perform a material obligation under this Agreement, the other Party may consider the non -performing Party to be in default (unless a Force Majeure causes the failure) and may assert a default claim by giving the non -performing Party a written and detailed notice of default. Except for a default by City for failing to pay any amount when due under this Agreement which must be cured immediately, the defaulting Party will have thirty (30) days after receipt of the notice of default to either cure the default or, if the default is not curable within thirty (30) days, provide a written cure plan. The defaulting Party will begin implementing the cure plan immediately after receipt of notice by the other Party that it approves the plan. Lss04/25/06 Page 2 7.2 FAILURE TO CURE. If a defaulting Party fails to cure the default as provided above in Section 7.1, unless otherwise agreed in writing, the non -defaulting Party may terminate any unfulfilled portion of this Agreement. In the event of termination for default, the defaulting Party will promptly return to the non -defaulting Party any of its Confidential Information. 8. CONFIDENTIALITY CONFIDENTIAL INFORMATION. During the term of this Agreement, the parties may provide each other with Confidential Information. Each Party will 1) maintain the confidentiality of the other Party's Confidential Information and not disclose it to any third party, except as authorized by the disclosing Party in writing or as required by a court of competent jurisdiction; 2) restrict disclosure of the Confidential Information to its employees who have a "need to know" and not copy or reproduce the Confidential Information; 3) take necessary and appropriate precautions to guard the confidentiality of the Confidential Information, including informing its employees who handle the Confidential Information that it is confidential and is not to be disclosed to others, but these precautions will be at least the same degree of care that the receiving Party applies to its own confidential information and will not be less than reasonable care; and 4) use the Confidential Information only in furtherance of the performance of this Agreement. Confidential Information is and will at all times remain the property of the disclosing Party, and no grant of any proprietary rights in the Confidential Information is given or intended, including any express or implied license, other than the limited right of the recipient to use the Confidential Information in the manner and to the extent permitted by this Agreement. 9. INSURANCE 9.1. Prior to undertaking performance of work under this Agreement, Lessor shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: 9.1.1. Commercial General Liability Insurance. Lessor shall maintain commercial general liability insurance naming the City, its officers, agents, volunteers, and employees as additional insured(s) and shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting there from and damage to property, resulting from any act or occurrence arising out of Lessor's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting there from, and property damage, in the total amount of $1,000,000 per occurrence. Lessor shall supply City upon request with an additional insured endorsement. Sample of which is provided and will be marked as Exhibit `C' 9.1.2. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Lessor is required to be insured against liability for worker's compensation or to undertake self-insurance. Prior to commencing the performance of the work under this Agreement, Lessor agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. 9.2. The following requirements apply to the insurance to be provided by Lessor pursuant to this section: (i) Lessor shall maintain all insurance required above in full force and effect for the entire period while working at the site. Lss04/25/06 Page 3 (ii) Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. (iii) Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. 10. GENERAL 10.1. ASSIGNABILITY AND SUBCONTRACTING. Except for Lessor's financial obligation, neither Party may assign this Agreement without the prior written consent of the other Party. Lessor may subcontract any of the work, but subcontracting will not relieve Lessor of its duties under this Agreement. 10.2. WAIVER. Failure or delay by either Party to exercise a right or power under this Agreement will not be a waiver of the right or power. For a waiver of a right or power to be effective, it must be in a writing signed by the waiving Party. An effective waiver of a right or power will not be construed as either a future or continuing waiver of that same right or power, or the waiver of any other right or power. 10.3. SEVERABILITY. If a court of competent jurisdiction renders any part of this Agreement invalid or unenforceable, that part will be severed and the remainder of this Agreement will continue in full force and effect. 10.4. INDEPENDENT CONTRACTORS. Each Party will perform its duties under this Agreement as an independent contractor. The Parties and their personnel will not be considered to be employees or agents of the other Party. Nothing in this Agreement will be interpreted as granting either Party the right or authority to make commitments of any kind for the other. This Agreement will not constitute, create, or be interpreted as a joint venture, partnership or formal business organization of any kind. 10.5. HEADINGS AND SECTION REFERENCES. The section headings in this Agreement are inserted only for convenience and are not to be construed as part of this Agreement or as a limitation of the scope of the particular section to which the heading refers. This Agreement will be fairly interpreted in accordance with its terms and conditions and not for or against either Party. 10.6. GOVERNING LAW. This Agreement and all questions relating to is validity, interpretation, performance, and enforcement shall be governed by and construed in accordance with the laws of the State of California. Both parties further agree that Orange County, California shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 10.7. ENTIRE AGREEMENT. This Agreement, including the Revised Williams Scotsman Lease Agreement, Williams Scotsman Purchase Option Agreement and all Exhibits, constitutes the entire agreement of the Parties regarding the subject matter of the Agreement and supersedes all previous agreements, proposals, and understandings, whether written or oral, relating to this subject matter. This Agreement may be amended or modified only by a written instrument signed by authorized representatives of both Parties. 10.8. NOTICES. Notices required under this Agreement to be given by one Party to the other must be in writing and either personally delivered or sent to the address shown below by certified mail, return receipt requested and postage prepaid (or by a recognized courier service, such as Federal Express, UPS, or DHL), or by facsimile with correct answerback received, and will be effective upon receipt: Lss04/25/06 Page 4 Lessor: William Scotsman Inc Attn: 11811 Greenstone Ave. Santa Fe Springs, CA 90670 FAX 562-903-9210 CITY: Santa Ana Fire Administration Attn: Don Mahany 1439 S. Broadway Santa Ana. CA 92707 FAX 714- 647-5779 10.9. COMPLIANCE WITH APPLICABLE LAWS. Each Party will comply with all applicable federal, state, and local laws, regulations and rules concerning the performance of this Agreement or use of the Equipment. 10.10. AUTHORITY TO EXECUTE AGREEMENT. Each Party represents that it has obtained all necessary approvals, consents and authorizations to enter into this Agreement and to perform its duties under this Agreement; the person executing this Agreement on its behalf has the authority to do so; upon execution and delivery of this Agreement by the Parties, it is a valid and binding contract, enforceable in accordance with its terms; and the execution, delivery, and performance of this Agreement does not violate any bylaw, charter, regulation, law or any other governing authority of the Party. IN WITNESS WHEREOF, the parties hereto have executed this agreement as of the date first above written. ATTEST: PATRICIA E. HEALY Clerk of the Council APPROVED AS TO FORM: JOSEPH W.FLETCHER City Attorney By: Laura Sheedy Assistant City Attorney CITY OF SANTA ANA DAVTD N. REAM City Manager WILLIAMS SCOTSMAN INC r , k (NAME) E�bu-Lc. (Title)Srn. r� cEr��Re�� nnon Tax ID # 5;t - ccr4 s, s Lss04/25/06 Page 5 09/25/2006 11: 22 FAX ¢829038210 WILLIAMSAMS SCOTSMAN 0 002 SCOTSMAN Mobile otraces . Smrage And Mae CUSTOMER. Mindy Ly City of Santa Ana 20 Civic Center Plaza - PO Box 1999 Santa Ana, CA 92701 WILLIAMS SCOTSMAN, INC. 11811 Greenstone Avenue Santa Fe Springs, CA 90670 Phone: 562-903-9200 Fax: 562-903-9210 Toll free: 800-782-1500 Daniel Thompson, Sr. Sales Representative S TO QUOTE DATE April 25, 2006 City of Santa Ana QUOTE EXPIRATION Centennial Park Santa Ana, CA May 25, 2006 64 x 84 Section Modular (60 x 84 box size) per the enclosed floorplan. FIRE TRAINING FACILITY— PLAN#5 SALE PRICE: $400,000.00 MONTHLY LEASE RA TE: $9,460.00 INCLUDES FINANCE GES 60 months M>NRMUM TERM:$40,000.00 REQUIRED DOWN P NT AMT: INITIAL OPTIONS @ $3.960.00 EXT. AMT. $3,960-00 ❑ Skirting Installation Q TicdownInstallatio @ $7,140.00 S7,140.00 ❑ Ramp delivery (Pref ) @ $90.00 $90.00 ❑ Ramp installation (J? fab) @ $1,845.00 $1.845-00 ❑ Ramp sales (prc-fab @ $6,875.00 56,875.00 Prc-Fab Metal Rarnj Skirting @ S570.50 $570.50 ❑ (2) Srep(s) sales - steel @ $413.00 each $826.00 Tax - 7.750/a of 540, 00-00 (Down $3,100.00 Payment) @ $3,100 00 ❑ Tax - 7-75% of $73 1.00 O'tatnp/Sreps) @ $596.82 $596.82 DELIVERY FREIGHT: $5,124.00 BLOCK AND LEVEL: $9,750.00 PAYMENT DUE AT END OF $1.00 M M4UM LEASE TERM MONTHLY OPTIONS EXT- AMT. ❑ Tax - 7.75% of $8460-00 (Moodily S655.65 Lease Rate) @ $655.65 TOTAL $625,816-N (excludes final Option & 1S Buy -Out) FINAL OPTIONS EXT. AMT. ❑ (7) License transfer fee @ 365.00 each S455.00 (if $1.00 Buy -Out is exercised) TOTAL w/FINAL OPTION $62627232 EXHIBIT A 04/25/2008 13-22 FA% 58280J9210 WILLIAMS SCOTSMAN a 003 WILLIAMS SCOTSMAN, INC. 11811 Greenstone Avenue Santa Fe Springs, CA 90670 S C O T S M A Phone: 562-903-9200 Fax: 562-903-9210 Mobile Offices - SCOlage Pl0dt cts Toll free: 800-782.1500 AndMnre Daniel Thompson, Sr. Sales RepresenrfiPve Page 2 Of 2 CLARIFICATION(S): 1. Delivery pricing is ased on clear, level, accessible site for track and trailer with no obstructions above or below grade. Additional cl arges may be incurred for nose in/nose out and wait time. 2- Block and level is b m ed on Williams Scouaes standard blocking on level grade to a maximum floor height of 30"_ Additional cost will be incurred for heights above 30 3. Unit is covered by illiam% Scotsman's full term lease warranty utilizing our full time service staff 4. Customer is respo ible for locating underground structures and/or utilities prior to delivery; for connecting all utilities including cal, phone, water, waste. COMM1rNT(S): A Delivery of unit i based upon satisfactory credit approval and subject to permitting process, weather, and holiday restrietio • Customer is respi . nsible to perform normal maintenance to the leased equipment, which includes the HVAC system filters (ch inge monthly), light bulbs, general cleaning, and the prevention of damage and abuse- for changes or additional costs required by local code or building s Williams scotsm m is not responsible inspectors. D Williams Scotsmm is not responsible for site restoration upon trailer removal. . ALL PRICING PER BEARDSLEX "PIGGY -BACK" MATRIX / PLAN #5 (with reductions). BUILDING INCLUDES.- 2411 HIGH PARAPET (ENTIRE PERIMETER) AND 5/16" HARDI-BOARD (SYNTHETIC TUCCO) PANEL EXTERIOR SIDING, *1* ALL RAMP PRIC NG SUB7ECT TO CHANGE DUE TO SITE CONDITIONS AND CUSTOMER REQUIREMENTS (ESTIMATE ONLY). EXCLUSIONS: TAX, VERMITS, UTILITY CONNECTIONS, PLUMBING MANIFOLDS, WATER rnh7niF.rTTnN.S/CR SSOVERS. FIRE JLWE SAFETY DEVICES, SITE PREPJACCESS, AND DECKS. *!* Cunomer hereby agrees to the abo quoredpricesandspcdficetionv CWtamerfuxrhetmn1mivc Wffih=SatMmlomaleappmpnaeeasogeracmtfarthedeaveryofine abovedesmrosl Equipmme u ddivery. and unra a nrbscquem tn•CAgmementis exeeutedby Williams Scoesman(u Lessor)and Cuuomer (as LtSee), IheStaodnid Williams Scotsmml.easmg terms and Conditions, which are i¢wrporsted by reference herein, will govern this camaaiom The items described above CO se the Equipmed4 which be Cummu desires an ]case from Williams Scotsman. All cquipmrnr is =him ro availability. Physical Damage and Coauverdat tiabi lneamnce cavaagc are required be&ming on the date of the Equipment's Delivery. to addiuoa m the above qumedprices- cusmmm sbail also pay m wi111 s Scotsman any locaL slam, federal, or tursonal property taxes andforany fen meted m the Fgrdpmenr andror Ususe. (]francs andtor tees am Quo[ed above. th y am subject m change hued on delivery address.) Ayrnenr rc ,ns me ner 10 days- Pcmrits, footings, steps, simprepmadon, dccoical, and phsmbin& eonnecdons are n included in the quoted price unless speciriGdly stated. � 04/2e2006 ea,FAX ) k ewo WILLIAMS ,c.MAN \ 30boll }�b � k �| p !i [■ k IF / J 3 28\ 3$7- ocL$ ƒ � Ian& � §. �<}& /zw_ f< ktn \0 » Q\�\ \j�}\\\�\j 2222■§|■] Q�I|are . !! EXHIBIT A WILLIAMS SCOTSMAN, INC. GENERAL TERMS & CONDITIONS (03/27/06) REVSIED FOR CITY OF SANTA ANA (4/18/06) 1. True Lease. This Agreement is a true lease and not a sale. Lessee shall not acquire ownership interest in the Equipment. The Equipment shall remain the sole personal property of Lessor unless and until Lessee exercises the Purchase Option set forth in Section 2, TERM, of the Lease with Option to Purchase Agreement. 2. Delivery: Acceptance. Upon delivery, which shall be defined as the date on which equipment is installed and signed off by the Santa Ana Building Department, Lessee agrees to inspect and accept the Equipment. The Equipment is deemed finally accepted at the time of delivery unless Lessee notifies Lessor of a defect/deficiency in writing within 15 business days after delivery. 3. Site Suitability: Inspection. Lessee shall choose a firm level site accessible by truck to locate the Equipment. If Lessee fails to provide such a site, then Lessee shall pay for any resulting additional delivery and return charges. Lessee shall not alter the manner of installation or location of the Equipment without written consent of Lessor. Lessor shall have the right to inspect the Equipment during the term of this Agreement. 4. Use; Maintenance: Condition. Lessee has the right to peaceably and quietly hold, use and enjoy the Equipment, subject to the terms and conditions of this Agreement. Lessee agrees not to remove existing nameplates or decals affixed to the Equipment. Lessee shall use the Equipment solely in the conduct of its business and in a careful and lawful manner. Lessee shall pay any and all fees, charges and expenses and comply with all laws related to the use, possession, and operation of the Equipment while it is in Lessee's possession, including obtaining all approvals and permits related to the use and/or possession of the Equipment. Lessee shall maintain and keep the Equipment in good repair and safe operating condition during the term of this Agreement in accordance with the Williams Scotsman Service Guide, receipt of which is hereby acknowledged by Lessee. Lessee shall not, without Lessor's prior written consent, make any changes, alterations or improvements in or to the Equipment or remove any parts, accessories or attachments from it. Lessor represents that the Equipment complies with federal and state building codes. 5. Term of Lease; Extension. The term of this Agreement begins on the date of delivery of the Equipment, and ends on the later of the last day of the Minimum Lease Term ("Term"), the Extension Period (as herein defined), or upon exercise of the Purchase Option as set forth in the Lease with Purchase Option. At the end of the Term, this Agreement may be extended on a month -to - month basis until the Equipment is returned to Lessor (the "Extension Period"). During the Extension Period, Lessor may annually amend the Lease Rate. An increase in the Lease Rate may not exceed the percentage increase in the Consumer Price Index -Los Angeles/Orange County Area. After the end of the Term, either party can terminate this Agreement on 30 days written notice. 6. Rent; Fees; Taxes; Late Charges. Rent begins to accrue on the Delivery Date. If delivery is not made on the first of the month, then rent shall be prorated for the first month of the Term. Lessee shall pay Lessor monthly rent for the Equipment on the due date at the Rate Per Month stated in this Agreement during the Term, and at the Rate Per Month established by Lessor during the Extension Period. If any payment is not paid on the due date, Lessee agrees to pay Lessor a charge of 1 %% per month of the amount in arrears for the period such amount remains unpaid. Lessee shall pay or, if requested by Lessor, reimburse Lessor for any and all sales, use, personal property taxes, or other taxes, fees or assessments levied against or imposed upon the Equipment, its value, use or operation, including storage related charges attributable to delayed delivery and/or installation of the Equipment required and/or requested by Lessee. Payments shall be effective upon receipt. Lessor may apply any payment from Lessee against any obligation due and owing by Lessee under this Agreement, regardless of any statement appearing on or referred to in any remittance from Lessee or any prior application of payment. The receipt by Lessor of a partial payment of any amount due to Lessor endorsed as payment in full will be deemed to be a part payment only, and any endorsements or statements on the check or any letter accompanying the check shall not be deemed an accord and/or satisfaction. Lessee's obligation (without prior notice or demand) to pay rent and all other amounts due hereunder shall be absolute and unconditional, and not subject to any abatement, set off, defense, recoupment, or reduction. 7. No Liens. Lessee agrees to keep the Equipment free and clear of any and all claims, liens, encumbrances or attachments. 8. Indemnity. Lessee agrees to indemnify, defend and keep harmless Lessor, its agents and employees, from and against any and all losses, claims, attorneys' fees and expenses, including but not limited to those arising out of or caused by the negligence of Lessor or its agents or employees, related to: (a) the death of, injury to, or damage to the property of, any person or party related to or arising out of the, use, possession, condition, of the Equipment; and/or (b) the failure of Lessee to maintain the Equipment as agreed to herein. 9. Loss: Damage. Upon satisfactory delivery, Lessee assumes the risk of all loss and damage to the Equipment from all causes. Upon the occurrence of the total loss of the Equipment, to such an extent as to make the repair thereof uneconomical (in Lessor's opinion) Lessor shall declare the Equipment a Total Loss. In the event of a Total Loss, Lessee shall pay Lessor, on the next date for the payment of rent, the rent then due plus the Equipment Value as set forth herein (the "Total Loss Amount"). Upon Lessor's receipt of the Total Loss Amount, the lease will terminate and all Lessees obligations will terminate. Lessor will transfer available documents of ownership of the Equipment to Lessee unless Lessor agrees to dispose of the Equipment at Lessee's cost and expense. In the event of loss or damage to the Equipment that does not constitute a Total Loss, Lessee, at its sole cost and expense, shall pay for the repair of such damage as directed by Lessor to the condition required by this Agreement. 10. Insurance. Lessee's responsibility for the Equipment begins immediately upon delivery of said Equipment by Lessor. Lessee she obtain and keep in force during the entire Lease Term the following liability and property insurance coverage naming Lessor as Additional Insured and Loss Payee. Lessee has elected to meet the insurance requirements contained herein by self-insurance. If Lessee subsequently elects not to self -insure, Lessee shall provide Lessor with (30) days prior written notice of such election Lss04125 /06 /(,V Page 6 along with a valid certificate of insurance evidencing the required coverage. (A) General Liability Insurance: A policy of combined bodily injury and property damage insurance insuring Lessee and Lessor against any liability arising out of the use, maintenance, or possession of the Equipment. Such insurance shall be in an amount not less than $1,000,000 per occurrence. (B) Property Insurance: A policy of insurance covering loss or damage to the Equipment, in an amount equal to 100% of the Equipment Value, providing protection against all perils included within the classification and special extended perils ("all risk" insurance). (C) General. (1) The insurance for the Equipment shall be issued by insurance companies satisfactory to Lessor. Within 10 days after the delivery of the Equipment, Lessee shall provide Lessor with Certificates of Insurance showing that the required coverages are in effect and naming Lessor as Additional Insured and Loss Payee, The Certificates of Insurance must provide Lessor with 30 days prior written notice of any cancellation. Any proceeds of such insurance shall be paid to Lessor and shall be applied to the replacement of the Equipment or payment of monies due under this Agreement, at the option of Lessor. Lessee shall comply with all requirements of the insurance underwriters or any governmental authority. (2) Lesse will only be assessed missing or expired certificate fees, as provided herein, if Lesee subsequently elects not to self -insure and does not provide Lessor with a certificate evidencing insurance coverage, or if Lessee shall provide Lessor with one (1) month prior written notice of any self-insurance termination. Lessee shall pay a Missing or Expired Certificate fee of $10 per storage unit, $50 per 8' wide, $60 per 9' and 10' wide, $90 per 11' and 12' wide, and $100 per 13' wide and above mobile unit each month that Lessee fails to timely provide the required Certificate of Insurance for property coverage. Lessee shall pay a fee of $10 per storage unit and $20 per unit for all other mobile units for each month that Lessee fails to timely provide the required Certificate of Insurance for liability coverage. Payment of such fees shall not provide Lessee with any insurance coverage, nor excuse Lessee from performing its obligations under Sections 8 & 9 11. Insurance Waiver Program. In the event Lessee prefers not to provide evidence of either or both insurance coverages in accordance with Paragraph 10 hereof, Lessee may elect to participate in Lessor's Insurance Waiver Program ("Program"), if available The Program is not an insurance policy. The waiver fee(s), when paid, relieves the Lessee of the contractual responsibility to provide evidence of the required insurance coverage(s). Lessee may elect to participate in this Program, in lieu of providing evidence of either or both insurance coverages by signing a Lease Agreement Insurance Waiver Addendum, paying all applicable fees and abiding by the other terms of the Program and this Agreement. 12. Defaults: Remedies. (A) Lessee shall be deemed to be in default hereunder upon the occurrence of any of the following events ("Events of Default"): (1) Lessee shall fail to make any payment due hereunder within 10 days after its due date; (2) Lessee shall fail to perform or observe any other term, covenant, or condition of this Agreement; or. (B),Following Lessors prior written notice to Lessee's Event of Default, and ten (10) days provided to Lessee in which to cure such Event of Default, should the Event of Default remain uncured, Lessor may declare this Agreement to be in Default, and thereafter may exercise any one or more of the following remedies: (1) Declare the rent for the Term and all other unpaid rent, fees, taxes and charges under this Agreement immediately due and payable; (2) Repossess, retake and/or retain any or all of the Equipment free of all rights and claims of Lessee with notice, but without legal process, or judicial intervention, unless required by law and without releasing Lessee of any term, covenant or condition provided herein; (3) Sell or otherwise dispose of any or all of the Equipment in a commercially reasonable manner and apply the net proceeds of such disposition, after deducting all costs, to the obligations of Lessee, with Lessee remaining liable for any deficiency; (4) Cancel this Agreement; and/or (5) Exercise any other right or remedy available to Lessor at law or in equity. Lessor's waiver of any Event of Default shall not constitute a waiver of any other Event of Default or a waiver of any term or condition of this Agreement. No right or remedy referred to herein is intended to be exclusive, and each may be exercised concurrently or separately and from time to time. In the event Lessor shall repossess or retake the Equipment, and there shall be in or attached to such Equipment any property owned by, or in the custody or control of Lessee, then Lessor is hereby authorized to take possession of such property for a period of 10 days. Lessor shall provide written notice to Lessee of any property left in the Equipment and, thereafter, any such property not claimed by Lessee, will be deemed abandoned, and Lessor shall have the right to dispose of it. (C) Lessee and Lessor waive all right to trial by jury of all claims, defenses, counterclaims and suits of any kind arising from or relating to this Agreement. 13. Return of Equipment Termination of Lease. At the end of the lease term, if Lessee does not exercise its Option to Purchase, Lessee shall make the Equipment available to Lessor, without impediment, at the Delivery Address or any other address to which Lessor has previously provided written approval of relocation of the Equipment. Any impediment to pick-up of the Equipment may result in additional charges to Lessee. Lessee shall provide Lessor with at least 30 days advance written notice of the return of the Equipment. The Equipment shall be "broom clean' and in the same condition as delivered to Lessee, ordinary wear and tear excepted. Termination will become effective only when the Equipment has been returned to Lessor as herein provided and Lessee has paid Lessor all unpaid rental and other charges applicable to the Equipment. Lessee agrees that prior to the return of the Equipment to Lessor or upon notice of its repossession, Lessee shall immediately disconnect all utilities, remove all of Lessee's personal property, and vacate the Equipment. Lessee hereby consents to entry by Lessor or its agents upon the premises where the Equipment may be located for return or repossession of the Equipment. Unless otherwise specifically provided in the Agreement, Lessor shall not be responsible for site restoration. Lessor shall not be liable for keeping or storing any personal property of Lessee left in or on the Equipment, such property will be deemed abandoned by Lessee. Any accessories and additions to the returned Equipment shall be deemed to be part of the Equipment and the property of Lessor. Lessee shall reimburse Lessor for any and all costs incurred related to the return of the Equipment and in repairing, cleaning or otherwise restoring the Equipment to its condition when delivered, ordinary wear and tear excepted. 14. Limited Warranty. For as long as Lessee timely makes all payments due hereunder, Lessor warrants throughout the term of this Agreement that it will repair structural or mechanical defects in the Equipment (excluding HVAC filters, fire extinguishers, fuses/breakers and light bulbs), provided that Lessee notifies Lessor in writing of any defects, malfunctions, or leaks within two (2) business days of the occurrence thereof. Lessor shall have no liability for the repair of any defect or condition resulting from Lessee's relocation of the Equipment, utilities connection, alteration of the Equipment, use of the Equipment for a purpose for which it was not intended, vandalism, misuse of the Equipment, for excessive wear and tear or for which timely notice is not provided to Lessor. The repair of the Equipment by Lessor, due to a defect or condition resulting from any of the preceding causes Lss04/25/06( G,4 Page 7 shall result in additional charges to Lessee. Lessor shall have no liability whatsoever for any consequential, incidental or punitive damages, costs or expenses. Except as specifically provided herein, Lessor disclaims any and all warranties, express or implied, related to the Equipment and any maintenance or repair work performed by Lessor including any warranties of merchantability, suitability, or fitness for a particular purpose. 15. Assignment. Lessee shall not assign this Agreement or sublet the Equipment without the prior written consent of Lessor. This Agreement shall be binding upon any permitted assignee or successor of Lessee. Lessor may assign any of its rights hereunder without notice to Lessee. 16. Miscellaneous. (a) Time is of the essence with respect to this Agreement. (b) This Agreement, when signed by both parties, constitutes the entire agreement between the parties, superseding and replacing all prior documents and representations, with respect to the subject matter hereof. It may only be amended by a document signed by both parties. (c) If any provision of this Agreement is deemed unenforceable for any reason, then such provision shall be deemed stricken and shall not affect the enforceability of any of its other provisions. Notwithstanding anything contained herein to the contrary, if it should be determined by a court of competent jurisdiction that any indemnification or other protection afforded to an indemnitee under Section 8 would be in violation of or otherwise prohibited by any applicable law, then Section 8 shall automatically be deemed to be amended in a manner which provides the maximum indemnification and other protections to such indemnitee consistent with such applicable law. (d) The obligations of Lessee under Sections 6, 7, 8 and 9, which accrue during the term of this Agreement, shall survive the termination of this Agreement. (e) If Lessee fails to perform any of its obligations hereunder, Lessor shall have after three (3) days written notice to Lessee, the right to effect such performance; the amount of any out-of-pocket and other reasonable expenses of Lessor incurred in connection with such performance shall be payable by Lessee upon demand. (f) Except for Lessees responsibility to make timely payments, neither Lessor nor Lessor shall not be responsible for delays beyond that party's control. (g) Except for for all costs and expenses incurred by Lessor in enforcing this Agreement, Lessor and Lessee shall have no liability whatsoever for any consequential, incidental or punitive damages, costs or expenses. (h) Lessee if requested by Lessor agrees to execute any UCC financing statements in order to protect Lessors ownership and interest in the Equipment, (i) This Agreement shall in all respects be governed by the laws of the state ofCalifornia. Lessee hereby consents and submits to the jurisdiction of the courts of Orange County, California for purposes of enforcement of this Agreement. Lessee hereby waives any and all rights to or claims of sovereign immunity. 0) Lessee will pay all costs and expenses, including reasonable attorney's fees, incurred by Lessor in enforcing any terms, covenants and indemnities provided herein. Lease Terms & Conditions, Revision 03/27/06/coo/4/19/06 Lss04/25/06/(, c o Page 8 Lessee: CITY OF SANTA ANA Telephone: EXHIBIT B PURCHASE OPTION Delivery Address: Centennial Park Santa Ana, CA Telephone: Equipment Specifications Model Serial Number Delivery Value Minimum Rate Per Date Lease Month Term 6 -14� } t% a�i 1�I��06 TNOO,OCp W MCn-t"K Equipment Specifications Provided there is then no default, and has never been a default by Lessee under the Lease Agreement applicable to the described Equipment, Lessee may exercise an option to purchase this equipment at the termination of the lease by payment to the Lessor of $1.00. Upon receipt of such full payment plus all applicable taxes, Lessor shall execute and deliver to Lessee appropriate ownership documentation. To secure Lessor's interest in the mobile office(s) identified above ("Equipment") pending any sale thereof pursuant to the foregoing option and to secure the payment of all sums due to the Lessor and the discharge of all obligations owed to Lessor by the Lessee under the lease agreement pertaining to the equipment and all related documents, the Lessee hereby grants to the Lessor a security interest in the equipment, all parts, accessories and ancillary equipment and all proceeds thereof (including insurance proceeds). Lessee agrees to execute financing statements at Lessor's request publicizing the foregoing security interest. Notwithstanding any language contained to the contrary in the Lease Agreement, Lessor's obligation to repair structural and mechanical defects in the Equipment shall be as follows (based upon the condition of the Equipment that Lessee is electing to lease purchase): X The Equipment identified by the Serial Number indicated on the Lease Agreement and this Purchase Option is New Equipment at the time of delivery to Lessee. Lessor warrants the Equipment for one (1) year from the date of delivery of the Equipment only. The Equipment identified by the Serial Number indicated on the Lease Agreement and this Purchase Option is Used Equipment at the time of delivery to Lessee. Lessor warrants the Equipment for thirty (30) days from the date of delivery of the Equipment only. Subject to the aforementioned time frames, Lessor's warranty obligations are contained in the Limited Warranty provision of the Lease Agreement and all other terms and conditions of the Limited Warranty provision shall remain in full force and effect. Lessor is hereby authorized to accept and rely upon a facsimile signature of Lessee on this agreement. Any such signature shall be treated as an original signature for all purposes. Lessee DAVID . REAMDynt'e City Manager PATRICIA E. HEALY, Clerk of thYCouncil U C Wy DocumentslContmctsl orms & Languagel$1 Pumhase Option with mulbple warranty final i Lessor: WILLIAMS SCOTSMAN, INC Lss04/25/06 Page 9 EXHIBIT C 0 Additional Insured — Automatic - Owners, Lessees Or ZURICH Contractors - Broad Form Policy No. Eff. Date of Pol. Esp. Date of Pol. Eff. Date of End. Producer AWL Prem Return Prem. L0298356205 /l/06 /1/07 /1/06 $ $ THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. This endorsement modifies insurance provided under the: Commercial General Liability Coverage Part A. WHO IS AN INSURED (Section II) is amended to include as an insured any person or organization whom you are required to add as an additional insured on this policy under a written contract or written agreement. B. The insurance provided to additional insureds applies only to "bodily injury', "property damage" or "personal and advertis- ing injury' covered under Section I, Coverage A, BODILY INJURY AND PROPERTY DAMAGE LIABILITY and Coverage B, PERSONAL AND ADVERTISING INJURY LIABILITY, but only if: 1. The "bodily injury' or "property damage" results from your negligence; and 2. The "bodily injury', "property damage" or "personal and advertising injury' results directly from: a. Your ongoing operations; or b. "Your work" completed as included in the "products -completed operations hazard", performed for the additional insured, which is the subject of the written contract or written agreement. C. However, regardless of the provisions of paragraphs A. and B. above: 1. We will not extend any insurance coverage to any additional insured person or organization: a. That is not provided to you in this policy; or b. That is any broader coverage than you are required to provide to the additional insured person or organization in the written contract or written agreement; and 2. We will not provide Limits of Insurance to any additional insured person or organization that exceed the lower of: a. The Limits of Insurance provided to you in this policy; or b. The Limits of Insurance you are required to provide in the written contract or written agreement. D. The insurance provided to the additional insured person or organization does not apply to: 1. "Bodily injury', "property damage" or "personal and advertising injury" that results solely from negligence of the addi- tional insured; or U-GL-1175-A CW (9/03)/coo/5/2/06/WS PaeIof2 Includes copyrighted material of Insurance Services Office, Inc. with its permission. 9 2. "Bodily injury", "property damage" or "personal and advertising injury" arising out of the rendering or failure to render any professional architectural, engineering or surveying services including: a. The preparing, approving, or failing to prepare or approve maps, shop drawings, opinions, reports, surveys, field orders, change orders or drawings and specifications; and b. Supervisory, inspection, architectural or engineering activities. E. The additional insured must see to it that: 1. We are notified as soon as practicable of an "occurrence" or offense that may result in a claim: 2. We receive written notice of a claim or "suit" as soon as practicable; and 3. A request for defense and indemnity of the claim or "suit" will promptly be brought against any policy issued by an- other insurer under which the additional insured also has rights as an insured or additional insured. F. The insurance provided by this endorsement is primary insurance and we will not seek contribution from any other in- surance available to any additional insured person or organization unless the other insurance is provided by a contractor other than you for the same operations and job location. Then we will share with that other insurance by the method de- scribed in paragraph 4.c. of SECTION IV - COMMERCIAL GENERAL LIABILITY CONDITIONS. Any provisions in this Coverage Part not changed by the terms and conditions of this endorsement continue to apply as writ- ten. U-GLA 175-A CW (9/03) Page 2 of 2