HomeMy WebLinkAboutC-8136-1 - Lease Agreement for CDM Fire Station No. 5/Library Replacement - Temp Trailer InstallationTHIS AMENDMENT NO. ONE TO LEASE AGREEMENT ("Amendment No. One")
is made and entered into as of this 10th day of September, 2019 ("Effective Date"), by
and between the CITY OF NEWPORT BEACH, a California municipal corporation and
charter city ("Lessee"), and WILLIAMS SCOTSMAN, INC., a Maryland Corporation
("Lessor"), whose address is 11811 Greenstone Avenue, Santa Fe Sprints, CA 90670-
4628, and is made with reference to the following:
RECITALS
A. On January 23, 2018, Lessee and Lessor entered into a Lease Agreement ("Lease
Agreement").
B. The parties desire to enter into this Amendment No. One to increase the total
compensation and amend the "Term of Lease; Extension" clause.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows -
1 .
ollows:1. TERM OF LEASE: EXTENSION CLAUSE
Section 5 of the Lease Agreement is amended in its entirety and replaced with the
following: "5. Term of Lease; Extension. The term of this Lease Agreement begins on the
date of delivery of the Equipment ("Date of Delivery") and ends on the last day of the
Minimum Lease Term, as defined in the Lease Order Agreement ("Term") or the
Extension Period (as herein defined). Either party may terminate this Lease Agreement,
with or without cause, upon (30) days' written notice of intent to terminate. Acceptance of
Equipment returned to Lessor prior to expiration of the Term or any Extension Period
thereof, does not constitute a release of Lessee's rental obligations. In the event Lessee
terminates the Lease Agreement during the Term, Lessee unconditionally agrees to pay
any applicable charges for services or modifications performed by Lessor to make the
Equipment ready for Lessee's use, and any applicable charges related to Ancillary
Products, plus the Final Return Charges. At the end of the Term or Extension Period,
Lessee shall be responsible for any "Final Return Charges" as estimated in the Lease
Order Agreement. Lessee understands and agrees that the Final Return Charges stated
in the Lease Order Agreement are estimates only and that Final Return Charges
including, but not limited to, dismantle and return freight charges will be charged at
Lessor's thenLessor's thenprevailingrate at the time of surrenderat the time of surrender. Any amounts prepaid by Lessee for
rent or estimated return freight and knockdown shall be applied as a credit to Lessee's
final invoice once final charges are determined by Lessor. At the end of the Term, this
Lease Agreement is automatically extended on a month-to-month basis on the same
terms and conditions until the Equipment is returned to Lessor (the "Extension Period");
except that Lessee's rental rate shall be automatically adjusted to Lessor's then prevailing
renewal rental rate. Notwithstanding the above and unless agreed to by Lessee in
writing, in no case shall the total consideration to be paid by Lessee to Lessor
Williams Scotsman, Inc. Page 1
AMENDMENT NO. ONE TO
Q3
LEASE AGREEMENT
v
WITH WILLIAMS SCOTSMAN, INC. FOR
TEMPORARY TRAILER
THIS AMENDMENT NO. ONE TO LEASE AGREEMENT ("Amendment No. One")
is made and entered into as of this 10th day of September, 2019 ("Effective Date"), by
and between the CITY OF NEWPORT BEACH, a California municipal corporation and
charter city ("Lessee"), and WILLIAMS SCOTSMAN, INC., a Maryland Corporation
("Lessor"), whose address is 11811 Greenstone Avenue, Santa Fe Sprints, CA 90670-
4628, and is made with reference to the following:
RECITALS
A. On January 23, 2018, Lessee and Lessor entered into a Lease Agreement ("Lease
Agreement").
B. The parties desire to enter into this Amendment No. One to increase the total
compensation and amend the "Term of Lease; Extension" clause.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows -
1 .
ollows:1. TERM OF LEASE: EXTENSION CLAUSE
Section 5 of the Lease Agreement is amended in its entirety and replaced with the
following: "5. Term of Lease; Extension. The term of this Lease Agreement begins on the
date of delivery of the Equipment ("Date of Delivery") and ends on the last day of the
Minimum Lease Term, as defined in the Lease Order Agreement ("Term") or the
Extension Period (as herein defined). Either party may terminate this Lease Agreement,
with or without cause, upon (30) days' written notice of intent to terminate. Acceptance of
Equipment returned to Lessor prior to expiration of the Term or any Extension Period
thereof, does not constitute a release of Lessee's rental obligations. In the event Lessee
terminates the Lease Agreement during the Term, Lessee unconditionally agrees to pay
any applicable charges for services or modifications performed by Lessor to make the
Equipment ready for Lessee's use, and any applicable charges related to Ancillary
Products, plus the Final Return Charges. At the end of the Term or Extension Period,
Lessee shall be responsible for any "Final Return Charges" as estimated in the Lease
Order Agreement. Lessee understands and agrees that the Final Return Charges stated
in the Lease Order Agreement are estimates only and that Final Return Charges
including, but not limited to, dismantle and return freight charges will be charged at
Lessor's thenLessor's thenprevailingrate at the time of surrenderat the time of surrender. Any amounts prepaid by Lessee for
rent or estimated return freight and knockdown shall be applied as a credit to Lessee's
final invoice once final charges are determined by Lessor. At the end of the Term, this
Lease Agreement is automatically extended on a month-to-month basis on the same
terms and conditions until the Equipment is returned to Lessor (the "Extension Period");
except that Lessee's rental rate shall be automatically adjusted to Lessor's then prevailing
renewal rental rate. Notwithstanding the above and unless agreed to by Lessee in
writing, in no case shall the total consideration to be paid by Lessee to Lessor
Williams Scotsman, Inc. Page 1
under this Lease Agreement, including but not limited to any Final Return Charges,
exceed One Hundred Fifty Thousand Dollars and 00/100 ($150,000.00) nor shall the
entire term of the Agreement extend beyond two (2) years after the Date of Delivery.
After the end of the Term, either party can terminate this Lease Agreement on thirty (30)
days written notice."
The total amended compensation reflects Lessee's additional compensation for
this Amendment No. One, in an amount not to exceed Thirty Thousand Dollars and
00/100 ($30,000.00).
2. INTEGRATED CONTRACT
Except as expressly modified herein, all other provisions, terms, and covenants
set forth in the Agreement shall remain unchanged and shall be in full force and effect.
[SIGNATURES ON NEXT PAGE]
Williams Scotsman, Inc. Page 2
IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: S/27�Zot�
By:
For'.Aaron C. Harp \U
City Attorney C)
ATTEST:
Date: �. A.V
By:
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: (���� • /
By:
Diane B. Dixon
Mayor
CONSULTANT: Williams Scotsman, Inc.,
a Maryland Corporation
Date:
Signed in Counterpart
By:
Bradley L Soultz
Chief Executive Officer
Date:
Signed in Counterpart
By:
Bradley L
Secretary
[END OF SIGNATURES]
Bacon
Williams Scotsman, Inc. Page 3
IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: S12Z/Zoiej
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By:ba'im& By:
For:Aaron C. Harp `A Diane B. Dixon
City Attorney Dcb'P Mayor
ATTEST:
Date:
go
Leilani I. Brown
City Clerk
CONSULTANT: Williams Scotsman. Inc.,
a Maryland Corporation
Date:
B �
. �/'4x�7
Date: 09/20/19
[END OF SIGNATURES]
Williams Scotsman, Inc. Page 3
T1,1
SCOTSMAN
An ALGECO SCOTSMAN Company
SECRETARY'S CERTIFICATE,
WILLIAMS SCOTSMAN, INC.
901 South Bond Street, Suite 600
Baltimore, Maryland 21231
410-931-6000 800-638-6963
FAX 410-933-5940
I, Samantha Bishop, hereby certify that I am the Corporate Secretary of Williams
Scotsman, Inc. ("Williams Scotsman"), a Maryland corporation, and that the individual
listed below has the corporate authority to execute contracts and agreements binding
Williams Scotsman to contracts and obligations up to the dollar amount specified below;
Name Title Authority Limit
Kevin Barton Sr. Contracts Administrator $250,000.00
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the
Seal of the corporation, this 12th day of April, 2017.
Samantha Bishop
Corporate Secretary
Williams Scotsman, Inc.
(SEAL)
901 South Bond Street, Suite 600 • Baltimore, MD 21231 • USA • p.+1.410.931.6101 f. +1.410.931.6117
www.willscot.com
i
J
SCOTSMAN
t
( An ALGECO SCOTSMAN Company
U
Williams Scotsman, Inc. Your Williams Scotsman Representative
11811 Greenstone Avenue Trent French
Santa Fe Springs, CA 90670-4628 Phone: (562)903-9200 Ext. 44113
Fax: 562-903-9210
Email: tafrench@willscotcom
Toll Free: 800-782.1500
CRS#242684 0#1057764
Lease Agreement Summary - Q#816156
Contract Number:816156
Revision: i
Date: November 14, 2017
Lessee: Contact: Ship To Address:
CITY OF NEWPORT BEACH Fong Tse 3300 Newport Blvd 3300 Newport Blvd
100 Civic Center Drive 100 Civic Center Drive NEWPORT BEACH, CA
NEWPORT BEACH, California 92660 Newport Beach, CA 92660 92663 US
Phone: 949-6443000
Fax: +1.949.644.3229
Emait: ftse@newportbeachca.gov
Product Descriptions
CITY PRODUCT
1 SM6448
Pricing Summary - All Options (excluding taxes)
MONTHLY CHARGES: $2,876.00
INITIAL FEES: $54,594.02
FINAL CHARGES: $11,566.93
TOTAL CHARGES WITH ALL OPTIONS: $106,424.95
Comments
This is a prevailing wage quote, taxes are not included for all labor being conducted to set the B2 occupancy, 60X48 sectional modular building. Data,
ADA ramp, steps, 2 restroom, one with an ADA showers and the second with standard shower are induded, laundry room with 50 gat water tank,
kitchen with stove ventilation, 5X6 island for kitchen area and linoleum flooring for kitchen and laundry rooms. Please nate, customer is responsible for
all site condi0ons.
u
SCOTSMAN
An ALGECO SCOTSMAN Company
Williams Scotsman, Inc.
11811 Greenstone Avenue
Santa Fe Springs, CA 90670A628
Your Williams Scotsman Representative
Trent French
Phone: (562)903-9200 Ext. 44113
Fax: 562.903.9210
Email: tafrenchr&_willscot.com
Toll Free: 800.782.1500
Contract Number:816156
Revision: 1
Date: November 14, 2017
Lease Order Agreement
$353.00
$353.00
Lessee: 1369861
Contact:
Ship To Address:
CITY OF NEWPORT BEACH
Fong Tse
3300 Newport Blvd 3300 Newport Blvd
100 Civic Center Drive
100 Civic Center Drive
NEWPORT BEACH, CA, 92663
NEWPORT BEACH, California, 92660
Newport Beach, CA, 92660
$52.00
Block and Level
Phone: 949-644-3000
$121.50
$486.00
Fax: +1.949.644.3229
Delivery Date(on or about):
Building Charges:
$1,612.00
21512018
E-mail: ftse@newportbeachca.gov
6448 Modular (60x48 Box) Unit
Exec OSHA Step with boot scraper &
Canopy
ADA/ISC Ramp - 36'w/ switchback
Prop Damage Waiver (11/12)
General Liability - Allen Insurance
Data Hub Rental
HVAC Service Program
Minimum Lease Term: 14 Months
& Installation- -
$1,612.00 $1,612.00
$53.00 $53.00
1
$353.00
$353.00
Ramp - Delivery&Setup
4
$70.00
$280.00
1 $625.00
1
$40.00
$40.00
$34,071.43
1
$52.00
$52.00
Block and Level
4
$121.50
$486.00
4 $506.34
Total Monthly
Building Charges:
$1,612.00
$4,175.28
Other
Monthly Charges:
$1,264.00
Total Rental Charges Per Month:
$2,876.00
CA Transport Delivery Fee
4 $70.00
$280.00
Ramp - Delivery&Setup
1 $1,441.14
$1,441.14
Wet Stamp Foundation Engineering
1 $625.00
$625.00
Modification to Unit
1 $34,071.43
$34,071.43
Tiedowns into dirt
42 $106.10
$4,455.20
Block and Level
1 $7,519.61
$7,519.61
Delivery Freight
4 $506.34
$2,025.36
Wood skirting
216 $19.33
$4,175.28
_ Total Delivery & Installation Charues:
$54.594.02
Final Return Charges'
-
CA Transport Return Fee
4 $70.00
$280.00
Tiedown-Dirt Removal
42 $27.86
$1,170.12
Skirting Removal -Wood LF
216 $3.93
$848.88
Ramp - Knockdown & Return
1 $1J92.57
$1,192.57
Teardown
1 $6,050.00
$6,050.00
Return Freight
4 $506.34
$2,025.36
Due On Final Invoice':
$11,566.93
Total Charges Including (14 ) Month Rental, Delivery, Installation '& Retum":
$106,424.95
Summary of Charges
Model: SM6448 IQUANTITY: 1 (Total Charges for (1) Building(s):
Williams Scotsman, Inc. Your Williams Scotsman Representative Contract Number:81615f
®� 11811 Greenstone Avenue Trent French Revision:
Santa Fe Springs, CA 90670-4628 Phone: (562)903-9200 Ext. 44113 Date: November 14, 201
S C O T S M A NFax: 562-903-9210
I Email: tafrench@willscotcom
Toll Free: 800-782-1500
An ALGECO SCOTSMAN Company
HVAC Service Agreement
Lessee elects to participate in the HVAC Service Agreement In consideration of Lessee's timely payment to Lessor of the HVAC Service Agreement
feels) specified herein, Lessor will perform the Covered Work on the Equipment monthly for a time period commencing on the start billing date and shall
remain in effect for the minimum term of the lease and through any lease extension until cancelled. Lessor agrees to perform certain services ("the
Covered Work") on the Equipment identified in this Lease Agreement and Lessee agrees to pay for such Covered Work as described herein, and
subject to the definitions, terms, and conditions provided in the document entitled "HVAC Service Agreement General Terms & Conditions."
By its signature below, Lessee hereby acknowledges that it has read and agrees to be bound by the Lessors HVAC Service Agreement General Terms
& Conditions (05-10-14) located on Lessors internet site (htlp1twww.willscotcom/terms) in their entirety, which are incorporated herein by reference.
Although Lessor will provide Lessee with a copy of all of the governing contract documents upon written request, Lessee should print copies of both
this Agreement the Williams Scotsman, Inc. General Terms & Conditions, and the HVAC Service Agreement General Terms & Conditions for
recordkeeping purposes. Each party is authorized to accept and rely upon a facsimile signature, digital, or electronic signatures of the other party on
this HVAC Maintenance Agreement Any such signature will be treated as an original signature for all purposes and shall be fully binding. The
undersigned represent that they have the express authority of the respective parry they represent to enter into and execute this Agreement and bind the
respective party thereby.
Signature of Lessee: C� Print Name: Dave Kiff Date: l �3
F
Attest:
Leilani I. Brown, MMC, City Clerk
i
Date-
APPROYP AS TO FORM:
CIN EY'S FICE
P- r-
on C p, City y
Williams Scotsman, Inc.
11811 Greenstone Avenue
Santa Fe Springs, CA 906704628
SCOTSMAN
An ALGECO SCOTSMAN Company
Your Williams Scotsman Representative
Trent French
Phone: (562)903-9200 Ext. 44113
Fax: 562.903-9210
Email: tafrenchQc willscoLcom
Toll Free: 800.782-1500
Contract Number:816156
Revision: 1
Date: November 14, 2017
'Final Return Charges are estimated and will be charged at Lessors market rate at time of return for any Lease Tenn greater than twelve (12)
months. ""ATI prices exclude applicable taxes. All Lessees and Leases are subject to credit review. In addition to the stated prices, customer
shall pay any local, state or provincial, federal and/or personal property tax or fees related to the equipment identified above ("Equipment"), its value or
its use. Lessee acknowledges that upon delivery of the Equipment, this Agreement may be updated with the actual serial number(s), delivery date(s),
lock serial number(s), etc, if necessary and Lessee will be supplied a copy of the updated informadon. Prices exclude taxes, licenses, permit fees, utility
connection charges, site preparation and permitting which is the sole responsibility of Lessee, unless otherwise expressly agreed by Lessor in writing.
Lessee is responsible for locating and marking underground utilities prior to delivery and compliance with all applicable code requirements unless
otherwise expressly agreed by the Lessor in writing. Price assumes a level site with dear access. Lessee must notify Lessor prior to delivery or return of
any potentially hazardous conditions or other site conditions that may otherwise affect delivery, installation, dismantling or return of any EquipmenL
Physical Damage & Commercial Liability Insurance coverage is required beginning on the date of delivery. Lessor is not responsible for changes required
by code or building inspectors. Pricing is valid for thirty (30) calendar days from the Effective Date of this Agreement
Please note the following important billing terms:
In addition to the first month rental and initial charges, last month rent for building, other monthly rentals/service (excluding last month for General
Liability Insurance and Property Damage Waivers), will be billed on the initial invoice. Any amounts prepaid to Williams Scotsman will be credited
on the final invoice.
Invoices are due on receipt, with a thirty (30) day grace period. Interest volt be applied to all past due amounts.
Invoices are due on receipt with a thirty (30) day grace period. Late fees will be applied to all past due amounts.
Williams Scotsman preferred method of payment is ACH. Payments made by check are subject to a Paper Check Fee, charged on the next
invoice following payment by check.
Williams Scotsman preferred method of invoicing is via electronic transmission. Customers are encouraged to provide an email address or use
BillTrust. Invoices sent standard mail are subject to a paper invoice fee, charged on the following invoice.
Lessor hereby agrees to lease to Lessee and Lessee hereby agrees to lease from Lessor Modular Equipment and Ancillary Products (as such
items are defined in Lessors General Terms & Conditions) selected by Lessee as set forth In this Agreement All such Items leased by the
Lessee for purposes of this Lease shall be referred to collectively as the "Equipment". By its signature below, Lessee hereby acknowledges
that it has read and agrees to be bound by the Lessors General Terms & Conditions (08-01.15), which are incorporated herein by reference,
and agrees to lease the Equipment from Lessor subject to the terms therein. Although Lessor will provide Lessee with a copy of the General
Terns & Conditions upon written request, Lessee should print copies of this Agreement and General Terms & Conditions for recordkeeping
purposes. Each party is authorized to accept and rely upon a facsimile signature, digital, or electronic signatures of the other party on this
Agreement Any such signature will be treated as an original signature for all purposes and shall be fully binding. The undersigned represent
that they have the express authority of the respective parlythey represent to enter into and execute this Agreement and bind the respective
panythereby.
I ]Papedess Invoicing Option
Williams Scotsman prefers electronic invoicing, an efficient, convenient
and environmentally friendly process. To avoid fees, provide us with the
proper email address for your invoices.
A/P Email:
A/P Email on
I ]Standard Mail Option
Customer prefers to receive paper invoice via mail. Fees may apply.
Invoices will be mailed to:
100 Civic Center or
Newport Beach CA 92660
Enter a new billing
Lessee::
CITY OF NEWPORT BEACH
Lessor:
Williams Scotsman, Inc.
Signature:
Signature:
Print Name:
Dave Kiff
Print Name:
Cheryl Goraon
Title:
City Manager
Tite:
Contracts Manager
Date:
Dale:
PO#
WILLIAMS SCOTSMAN, INC.
LEAS" ,xt:RERNFNT
TERMS & CONDITIONS 108a1IQ0151
REVISED FOR THE CITV OF NEWPORT BF.ACII- 12/12/2017
I. EumW=, ]IadalaC Ealfiumcd and :ladUry.PrnflUU .
: Ygaj(jyy6. As used in this Lease Agreement, the following definitions
shall
apply:
"l,pggp cja�[C�yad" The "Lease Order Agreement' and these "Lease
Agreement Terms and Conditions" along with the "Clarifications'
together comprise the "Lease Agreement' between the parties.
"Hudala[ Ell uiumroY� shall mean the trailer(s) and/or relocatable. modular,
itna ar of er7�pnfa6rfc5led structure(s) supplied by Lessor.
"Llili&a EMdaW" shall mean the stairs; railings; ramps: awnings;
fencing; furniture; kitchen equipment and fool service supplies including
consumables; restmom appurtenances and supplies; office products;
computers, printers, monitors, scanners, and other telecommunication related
devices; security syslems; temporary alternative heat, electric and sanitary
systems; convenience items; and any other ancillary products or services
which are selected by Lessee and provided by Lessor which are offered for
rental with, included in, attached or appurtenant to the Modular Equipment,
and set forth in this Lease Agreement.
..JWjpmCaj1. shall collectivedv mean the Modular Equipment and the
A—nct ary 'ro ucts provided to Lesscc by Lessor under this Lcasc Agreement.
2. True Lease. this Lease Agreement is a true lease and not a sale. Lessee
shall not acquire ownership interest in the Equipment except as may, relate to
Lessee's purchase of Ancillary Products which are covered by a separate,
executed sale agreement and/or items which am recognized as clearly for
finite consumption (ex. kitchen, restroom, and/or office supplies). 'the
Equipment shall remain the sole personal property of Lessor even though
the Equipment may, become affixed to, embedded in, or be permanently
resting upon real property.
3. Commitment of Resources. By signing this Lease Agreement, Lessee
authorizes Lessor to proceed with the order Ibr the Equipment. It is
understood and agreed upon between the paries that Lessor, in reliance on
the promises of Lessee contained herein, may he specially ordering,
reserving, altering, remodeling and/or modifying the Equipment described in
this Lcasc Agreement based on information supplied to Lessor by Lessee.
Lessee understands that the Modular Equipment may not be standard, readily
re -leasable product and/or Lessor may have lost other rental opportunities in
allocating the Modular Equipment Ibr Lessees use and, as a result, Lessor is
incurring extraordinary costs and expenses in proceeding with Lessee's order
for this Modular Equipment. Notwithstanding anything contained in this
Lease Agreement to the contrary, in the event Lessee terminates this Lease
Agreement or wrongfully mice ts-Equipment prior to the commencement of
the Minimum Lease Term. Lessee shall be responsible for the payment to
Lessor of. a) the costs incurred by, Lessor for labor, materials and work
executed up to Lessor's receipt of written notice of termination: b) storage
related charges attributable to failed delivery; c) rent flor the Minimum Lease
Term; and d) reasonable overhead and profit. All such charges will be billed
on a lump sum basis unless other payment options are agreed by the Lessor.
4.11eliverv: Aeeeutaneer Delay. Upon delivery, Lessee agrees to inspect
and accept the Equipment. Lessee will have Pony -tight (48) hours from
the date of delivery to notify Lessor, in writing of any defects or
deficiencies in the Equipment. Such notice shall specify each defect or
deficiency in the Equipment. Unless Lessor receives timely, written notice
from Lessee as set forth heroin, Lessee is deemed to accept the Equipment
and acknowledges that the Equipment is in good order and operating
condition as of the date of delivery. Acceptance of the Equipment shall
constitute Lessers acceptance of this Lease Agreement.
5.Term of Lease: Extension. The term of this Lease Agreement begins on
the date of delivery of the Equipment ("Date of Dcliven") and ends on the
last day of the Minimum Lease 'Perm, as defined in the Lease Order
Agreement ("Perm") or the Extension Period (as herein defined). Either
party may terminale this Lease Agreement, with or without cause, upon (30)
day written notice of intent to terminate. Acceptance of Equipment
returned to Lessor prior to expiration of the Term or any Extension Period
thereof, does not constitute a release of Lessee's rental obligations. In the
event Lessee terminates the Lease Agreement during the Term. Lessee
unconditionally agrees to pay any applicable charges Ibr services or
modifications performed by Lessor to make the Equipment ready for
Lessee's use, and arty applicable charges related to Ancillary Products, plus
the Final Return Charges. At the end of the Term or Extension Period, Lessee
shall be responsible for any "Final Return Charges" as estimated in the Lease
Order Agreement. Lessee understands and agrees that the Final Return
Charges stated in the Lease Order Agreement are estimates only and that
Final Return Charges including. but not limited to. dismantle and return
freight charges, will be chained at Lessor's then orevailing rate at the time of
surrender. Any amounts prepaid by Lessee for rent or estimated return freight
and knockdown shall be applied as a credit to I .essers final invoice once
final charges are determined by Lessor. At the end of the "Perm, this Lease
Agreement is automatically extended on a month-to-month basis on the same
terms and conditions until the Equipment is returned to Lessor (the
"Extension Period"); except that Lessees rental rate shall be automatically
adjusted to Lessors then prevailing renewal rental rate. Notwithstanding
the above and unless agreed to by Lessee in writing, in no case shall the
total consideration to be paid by Lessee to Lessor under this Lease
Agreement, including but not limited to any Final Return Charges,
exceed One Hundred Twenty Thousand and 00/100 (5120,000.00) nor
shall the entire term of the Agreement extend beyond two (2) years after
the Date of Delivery. After the end of the Term, either party can terminate
this Lease Agreement on thirty (30) days written notice.
6. 'j„ yj v iuty 1ption. Lessee shall choose a firm. level site with
minimum soil bearing pressure in the appropriate pounds per Square fan
('TSF") as determined by and in compliance with all local statutes, rules,
ordinances, laws, building codes and regulations in the jurisdiction in which
the Equipment will be located, and no more than a one inch per ten feet slope
from one end to the other that is easily accessible by Lessors standard
truck/dclivery equipment to locate the Modular Equipment and those
Ancillary Products whichare set upon/installed on the site. Lessee represents
and warrants that the site is not a former landfill and Lessee has advised
Lessor of any issues relating to the site or soil conditions which may impact
the installation or settlement of the Equipment. Lessee shall own such site
and/or have express legal authorization to locate the Equipment upon that
same site. Lessee warrants and represents that it has exercised due diligence
and care in the selection of the location it has designated for the placing of
the Equipment, and further agrees to give directions and supervise the
placement of such Equipment. Lessor assumes no liability nor offers any
warranty Ibr the fitness, adequacy of Lessers site or utilities available at the
site. Lessee is solely responsible for the site selection and subsurface
conditions, including compaction. determining and complying with
appropriate PSF, and environmental conditions. Unless otherwise agreed to
in writing by Lessor. Lessee is responsible for verifying the presence or
absence of any underground utilities in the designated site location. Prices
for Delivery, installation, teardown. return delivery and other "one-time"
charges. due dates for delivery or installation of Equipment, demobilization
and return delivery assume accuracy of the information given to Lessor by
Lessee with respect to site conditions and are subject to adjustment to the
extent that the liming of or physical nature of acccssto the site is or becomes
limited.
Page I of 6
the site docs not have adequate load bearing or other topographic qualities or
is otherwise not properly prepared, snow or water is not removed, utilities
are not correctly located or properly disconnected, provision of utilities is not
timely, applicable license or permits are not provided in a timely manner, or
Lessee otherwise delays completion of Lessor's work. If Lessce fails to
provide a suitable site then Lessee shall pay for any resulting additional
delivery, installation, and knock down and return charges, including but not
limited to storage related charges attributable to delayed delivery and/or
installation of the Equipment required and/or requested by Lessee. Lessor
may suspend its work at Lessee's site if Lessor deems the site to be unsure
or in any way unable to accept the Equipment. Lessor is solely relying on
Lessee's knowledge of the geographic area where the Equipment is to be
installed including, but not limited to, seismic activity, possibility of high
winds, hurricanes, tornadoes and flooding. Lessor recommends that the
Equipment be anchored to reduce damage to the Equipment injury to
occupants or other persons, and the property of third patties. In the event,
Lessee declines Lessor's installation of anchors, Lessor will comply with
Lessee's refusal based on and in express and sole reliance on the
representation and other terns and conditions in this Lease Agreement.
Lcssee shall not alter the manner of instullation or location of the Equipment
without written consent of Lessor (excluding the relocation of readily
relocatable Ancillary Products within the Modular Equipment for Lessee's
ease of use and convenience). Lessor shall not be responsible for compliance
with any site specific requirements including, but not limited to, site security,
badging, background checks, safety, and/or training requirements unless
otherwise agreed to in writing by Lessor prior to the placement of the order
for the Equipment. Lessor shall have the right to enter the premises and
inspect the Equipment during normal business hours during the Term of this
Lease Agreement and any Extension Period. LESSOR DOES NOT
RECOMMEND OR SUPPORT THE STACKING OF MODULAR
EQUIPMENT. DO NOT STACK MODULAR EQUIPMENT UNLESS
YOU HAVE. THE APPROVAL OF QUALIFIED ENGINEERING
PROFESSIONALS, COMPLY WITH ALL OCCUPATIONAL
SAFETY LAWS, AND OBTAIN ALI. ZONING, BUILDING, AND
OCCUPANCY PERMITS. NOTWITHSTANDING ANY EXPRESS
TERMS TO THE CONTRARY, LESSOR DISCLAIMS ALI.
WARRANTIES, EXPRESS OR IMPLIED, IF LESSEE S'T'ACKS
MODULAR EQUIPMENT.
7. Use: Maintenance: C'nnditinn, Lessee has the right to peaceably and
quietly hold, use, and enjoy the Equipment subject to the terms and
conditions of this Lease Agreement. Lessee shall use the liquipment solely
in the conduct of its business and in a careful and lawlbl manner. Lessee
agrees not to remove existing nameplates or decals affixed to the Equipment.
Lessee shall pay any and all fees, charges, and expenses and execute and
comply with all laws related to or that affect in any way the use, possession,
maintenance, storage, and/or operation of the Equipment while it is in
Lessee's possession, including obtaining all approvals, licenses, tests,
inspections, and permits (including without limitation building permits and
other governmental approvals) related to the use, possession, maintenance,
storage, and/or operation of the Equipment. "this is an absolute net lease.
Lessee is solely responsible for routine maintenance, including but not
limited to janitorial services, pest control, changing of HVAC filters, light
bulbs, and ballasts, cleaning (by trained and qualified IIVAC technicians
only) the IIVAC condenser and evaporator coils, refilling HVAC
refrigerant and removal of water, ice and snow from and about the
Equipment. At its sole cost, Lessee shall maintain and keep the Equipment
clean, in good repair and safe operating condition at all times during the tern
of this Lease Agreement in accordance with the Williams Scotsman Service
Guide, receipt of which is hereby acknowledged by Lewsec. Lessee shall keep
the Modular Equipment properly ventilated and shall not allow or permit
any condition to exist that allows standing water to accumulate in, on. or
under the Modular Equipment and/or any Ancillary Products. Damage,
deterioration, or contamination of the Equipment due to water infiltration or
exposure is not considered ordinary wear and tour. Lessee is solely
responsible for damage due to settling. Lessor has the right to inspect the
Equipment at any time and if Lessor believes the Equipment to be misused,
abused. or neglected, Lessor may. with fon) eight (48) hour written notice,
declare the [-case Agreement in default and remove and repossess the
Equipment at Lessee's sole cost. Lessee shall not. without Lessors prior
written consent, make any changes, alterations, or improvements in or to the
Equipment or remove any pans, accessories or attachments from it. Lessee
assumes loll responsibility for any Ancillary Products and/or other
accessories, attachments or other items missing from the Equipment upon
return. If Lessee should require Modular Equipment that meets certain local
codes andlor ordinances, Lessee shall notih. Lessor at the time the Modular
Equipment is ordered and, to the extent that Lessor can comply and agrees
to do so in writing, Lessor shall include the additional cost for compliance
and the agreed upon requirements in the Lease Order Agreement. Any special
requirements with respect to the Modular Equipment shall be handled on a
case-by.casc basis. Lessor makes no representations as to the Equipment's
compliance with fbderal, state, municipal, or local building codes, zoning
ordinances, rules, laws, or other types of regulations or use codes. Lessee
agrees that the Equipment leased hereunder will not be occupied by any
person other than Lessee, its agents, employees, or invitees. (For Equipment
delivered in California: PURSUANTTO CALIFORNIA CIVIL CODE
SECTION 1938 LESSEE IS HEREBY NO'TIF'IED THAT THE
EQUIPMENT LEASED HEREUNDER HAS NOT UNDERGONE AN
INSPECTION BY A CERTIFIED ACCESS SPECIALIST (CASP).)
8. Itazardom Materials, lessee shall not use, release, store, dispose of. or
otherwise have present any Hazardous Materials in, on, or under the
Equipment. unless Lessor shall have first consented in writing to such use or
presence of Hazardous Materials, and such I lazardoas Materials are used,
stored. manufactured, disposed of. or otherwise present in accordance with
all applicable laws. "Hazardous Materials" shall mean any explosives;
flammable substances; radioactive materials; asbestos; paint materials
containing lead: materials containing area, formaldehyde, polychlorinated
biphenyls. oil, petroleum products or byproducts; or. any other hazardous,
toxic, dangerous or otherwise regulated substances. wastes. pollutants,
contaminants, materials, or biological substances (including fungi, bacteria,
mold. and microbial matter of any kind) whether having such
characteristics in fact or defined as such under federal, state, or local laws
and regulations. Ordinary wear and tear does not include damage,
contamination, or deterioration to the Equipment related to llazanlous
Materials. Lessee is and shall remain responsible for returning the Equipment
free of any and all l luardom Materials. Prior to the return of the Equipment
Lessor may in good faith, request Lessee, at Lessee's cost and expense, to
provide written evidence that the Equipment has been tested by a licensed
professional and is free of Hazardous Materials. In the event Lessee does
not supply such evidence within five
(5) days alter written request from Lessor, then Lessor may order testing at
Lessee's cost. If it is determined that the Equipment is contaminated. Lessee
shall pay fur decontamination of the Equipment, restoring the Equipment to
its condition when delivered. If it is determined that the Equipment cannot be
decontaminated, the Equipment shall be deemed a 'Total Loss and Lessee
assumes full responsibility fort the Equipment including the disposal thereof.
and shall pay Lessor the Equipment Value us set forth on the Lease Order
Agreement plus all applicable Taxes and Pecs in accordance with Section 12
herein.
9. Rent: lees: Taxes- t etc Charges, Rent for the Equipment begins to
accrue upon completion ofdelivery and set-up, ifrequired. of the Equipment
(the "Delivery Date"), Lessee shall pay Lessor monthly rent for the
Equipment ut the Rate Per Month stater) in this Lease Agreement during the
I ern, and at the Rule Per Month established by lessor during the Extension
Period. Lessee shall be solely liable for any and all (i) sales and use. gross
receipts. transaction privilege, value added, gods and services. and similar
taxes ("Sales Taxes"). (ii) ad valorem, real property. and personal property
taxes ('Popery Taxes"). and (iii) related 3rd puny fees and expenses
("Fees")(the items set forth in clauses 0). and (iii), hereinafter referred
to as
Page 2 of 6
"faxes and Fees'). Lessee shall pay or shall reimburse Lessor. for any and
all 'fuses and Fees related to the Equipment, its value, use, or operation or
levied against or based upon the amounts paid or to be paid under this Lease
Agreement, In the event a properly executed Sales 'Fax exemption certificate
is presented to and approved by Lessor, Lessee will not be charged fin those
Sales'Iaxes falling under such exemption, but will remain liable for all' I' axes
and Fees for which the exemption certificate does not apply. Lessee shall
indemnify, defend and hold Lessor harmless against any and all Sales'[ axes.
including any interest and penalties thereon, if such exemption certificate is
later determined not to apply to Lessee or is otherwise later deemed invalid.
Property faxes may be recovered based on any reasonable formula, including
but not limited to the ratio of Lessor's total Property'Fax per state over the
Lessor's total estimated revenues per state. ANY AMOUNTS NOT PAID
WITHIN THIRTY (30) DAYS OF THE DCE DATE SET FORTH ON
THE INVOICE SHALL BE SUBJECT TO AN INTEREST CHARGE
OF 1.6% PER MONTH OR THE MAXIMU31 AMOUNT
PER.1Irl ED BY LAW, WHICHEVER IS LOWER, OF THE
AMOUNT IN :ARREARS FOR THE PERIOD SUCII AMOUNT
REMAINS UNPAID PLUS AN ADMINISTRATIVE LATE. CHARGE
OF 535.00 PER MONTH FOR EACH MONTH THE INVOICE:
REMAINS UNPAID. Payments shall be effective upon receipt. Lessor may
apply any payment from Lessee against any obligation due and owing by
Lessee under this ].case Agreement, regardless of any statement appearing
(m or relemd to in any remittance fmm Lessee or any prior application of
payment. 'rhe receipt by Lessor ora partial payment of any amount due to
Lessor endorsed as payment in full will be deemed to be a partial 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.
and notwithstanding said endorsements, Lessor may accept and deposit said
check without prejudice to its right to recover the balance. Lessees
obligation, without prior notice or demand, to pay rent and all other amounts
due hereunder shall be absolute and unconditional and not be subject to any
abatement, set oFl; defense. recoupment, or reduction for any reason
whatsoever. Notwithstanding the above and unless agreed to by Lessee
in writing, in no case shall the total consideration to be paid by Lessee
to Lessor under this Lease Agreement exceed One Hundred Twenty
'fhousand and 00/100 (5120,000.00).
INVOICES ISSUED BY LESSOR ARE SOLELY FOR LESSEE'S
CONVENIENCE. ELECTRONIC BILLING STATEMENTS ARE
THE OFFICIAL BILLING METHOD USED BY LESSOR. LESSEE
AGREES TO PROVIDE A VALID ELECTRONIC MAIL ADDRESS
("EMAIL ACCOUNT"') FOR PURPOSES OF RECEIVING
INVOICES AND ALL LESSEE INVOICES WILL BE SENT TO SUCH
EMAIL ACCOUNT. FAILURE: OF LESSEE TO RECEIVE. AN
INVOICE THROUGH EMAIL DOES NOT WAVE ANY OF
LESSEE'SOBLIG ATIONSHEREt: NDER. IFLESSEE REQUIRES A
PAPER INVOICE, LESSEE WILL MAKE SUCH REQUEST IN
WRITING TO LESSOR .AND WILL AGREE TO PAY LESSOR A
SI0.00 ADMINISTRATIVE FEE PER PAPER INVOICE.
LESSOR'S PREFERRED PAYMENT METHOD IS AUTOMATED
CLEARING HOUSE ("ACII"), IF LESSEE. PAYS BY CHECK,
LESSEE AGREES THAT LESSOR MAY ADD A CIIECK
PROCESSING FEE IN THE AMOUNT OF 510.00 TO LESSEE'S
ACCOUNT. IF LESSEE PAYS BY CHECK OR ACII AND THE
BANK RETURNS THE CHECK OR ACII DEBIT TO LESSOR
UNPAID, LESSEE AGREES TIIAT LESSOR MAY ADD A
RETURNED CHECK FEE OR RETURNED .ACII DEBIT FEF. IN
TIIE AMOUNT OF 530.00 TO LESSEE'S ACCOUNT.
10. No Liens. Lessee, at its sole cost and expense, agrees to keep the
Equipment Fice and clear of any and all claims, liens, security interests,
encumbrances, or attachments not arising out of Lessor's acts including but
not limited to mechanics' and materialman's liens.
IL Indemnity, Lessee agrees to indemnify. defend, and hold harmless
Lessor, its parents, subsidiaries, affiliates. directors, officers. agents,
employees, and invitees, from and against any and all losses, claims, and
costs, INCLUDING. BUT NOT LIMITED TO TIIOSE:ARISINGOUT
OF OR CAA:SED BY THE NEGLIGENCE OF LESSOR OR ITS
AGENTS OR EMPLOYEES, arising out ofor related to; (a) any
loss or damage to the Equipment or any part or component thereof; (b) the
death of: injury to, or damage to the property of, any person or party related
to or arising out of the delivery, installation, use, possession, condition.
return, or repossession or relocation (by other than Lessor's employees and/or
subcontractors) of the Equipment and any part or component thereat and/or
(c) the failure of Lessee to maintain and/or correctly and lawfully use the
Equipment as agreed to herein. Lessee shall give Lessor immediate notice of
any claim or liability hereby indemnified against.
Lessors Indcmnitv. To the extent arising from Lessor's negligence,
Lessors willful misconduct or latent defects in the Equipment, Lessor
shall indemnify, defend and keep harmless Lessee. its agents and
employees from and against any and all losses, claims and expenses
arising out ofor related to: (a) any loss or damage to the Equipment and
any part or component thereof due to defective design, manufacture or
improper handling or repair by Lessor, and (b) any injury or death to
persons or damage to property occurring in connection with any activities
by employees or agents of Lessor while on Lessee's property including
delivery. maintenance or removal of the Equipment, unless such injury,
death or property damage is due to the negligence or willful misconduct of
Lessee, and/or any other third parties, conditions existing at Lessees site
and/or other conditions beyond Lessors control
12. Loss: Darnme. To the extent Lessee is in possession of the Equipment.
Lessor shall give Lessee immediate notice of any claim or liability hereby
indemnified against. Lessee assumes the risk of all loss and damage to the
Equipment from all causes, including loss of use. Upon the occumnce of the
total loss of any or all of the Equipment. to such an extent as to make the
repair thereof uneconomical (in Lessor's reasonable opinion), Lessor shall
declare the relevant Equipment a "Total Loss'. In the event of a 'Iota] Loss
of the Modular Equipment Lessee shall puy Lessor on the next date for the
payment of rent: the value of the Modular Equipment (the "Equipment
Value") as stipulated in the Lease Agreement; plus the value of all destroyed
Ancillary Products in accordance with Section IS; less all insurance proceeds
actually paid and/or assigned to Lessor from insurance maintained by Lessee;
plus all applicable 'faxes and Fees and/or transfer taxes (together the "Total
Loss Amount"). Upon I-CSSors receipt of the Total Loss Amount, Lessee's
lease obligation will terminate. Lessor will transfer available documents of
ownership of the Modular Equipment to I.CsSee unless Lessor agrees to
dispose of the Modular Equipment along with any destroyed Ancillan
Products at Lessee%cost and expense. In the event of loss or damage to any
or all of the Equipment that does not constitute a'fotal Loss, Lessee, at its
sole cost and expense, shall pay or reimburse Lessor, to the extent Lessor has
not been paid or reimbursed fmm insurance maintained by Lessee, for the
repair of such damage as directed by Lessor to the condition required by this
Lease Agreement. Any loss or damage to any or all of the Equipment shall
not reduce or otherwise abate Lessees obligation to pay all rental payments
when due. Lessee's obligation to pay Lessor amounts pursuant to this
Section 12 shall be binding upon Lessee in accordance with the terms
hereof.
13. Insurance, Lessees responsibility fir the Equipment begins
immediately upon delivery. Lessee shall obtain and keep in force during the
entire 'rem and/or Extension Period liability and property insurance as
follows: (A) Gencral Liabilitv 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 peroccurrence.
(R) Prunerty Insurance: A policy of insurance covering all loss or damage to
the Equipment, including Flood and earthquake, fir not less than 100%ofthe
Equipment Value and the Ancillary Products value as established by Lessor
Fix the full term of the Lease Agreement. (C) General. Lessees insurance lir
the Equipment shall be issued by insurance companies satisfactory to Lessor.
Such insurance shall be primary, and any other coverage carried by the
Lessor shall be excess and non-contributory. Within ten ( Ill) days after the
delivery of the Modular Equipment. Lessee shall provide Lessor with
evidence ofthe required insurance and naming Lessor as Additional Insured
and Loss Payce. The Evidence or Insurance
Page 3 of 6
most provide Lessor with thirty (30) days prior written notice of any
cancellation. Any proceeds of such insuranceshall be paid to lessor and shall
be applied to the replacement of the Equipment or payment of monies due
under this Lease Agreement, at the option of Lessor. Lessee shall comply
with all requirements of the insurance underwriters or any governmental
authority.
13.1. f ommereial Cenral Liability Program: The Commercial General
Liability Program may or may not be available for Ancillary Products. If the
Commercial General Liability Program is available in full or in pan (in the
Agent's sole discretion) and provided lessee elects to participate in this
program, and pays the required additional fees. the Lessee will satisfy the
Lease Agreement requirements for Commercial General Liability Insurance
to the extent of any limitations outlined in this Lease Agreement. Under
this program, Lessee will receive insurance coverage through American
Southern Insurance Company ("Insurer") as administered by Allen
Insurance Group ("Agent"). Lessee understands that Lessee will be
provided with the following limits of coverage:
$2,000,000.00 General Aggregate; $1,000,000.00 Per Occurrence; and.
$5,000.000 Premises Medical Payments each person. The insurance fec for
this program will be billed monthly with the rental invoice. The monthly fee
payable by Lessee is specified on the face page of the lease Order Agreement
and includes Lessor's administrative fec.'Ibis is a third party liability policy
which covers bodily injury and/or property damage arising from the proper
use and occupancy of the leased Modular Equipment and may or may not
cover Ancillary Products. The Commercial General Liability Program has
no deductible on claims. It is provided by Lessor strictly as a matter of
convenience to the Lessee. Lessee understands and agrees that Lessor only
serves as a billing agent for the third pan) vendor of the General Liability
Insurance and assumes no liability with respect to such insurance. Lessee
payments will be considered payments under the Lease Agreement; any
payment default by Lessee under the Lease Agreement will void the General
Liability Insurance. rhe General Liability Insurance shall not, in any manner:
(i) limit Lessees liabilities or obligations under the Lease Agreement and
Lessee remains obligated to comply with any and all requirements set fiorth
in the General Terms and Conditions of the Lease Agreement: or. (ii) excuse
Lessee from its obligation to maintain Property Damage Insurance and
deliver a Certificate of Insurance therefore. Lessee will be provided with a
certificate of insurance as proof of General Liubility Insurance coverage.
upon request, and Lessee understands that the coverage is only in eDbet as
long as the Lease Agreement is active. For coverage questions Lessee must
contact Allen Insurance Group. Inc. at 800.922-5536 (extensions 110, 111,
112or 113).
13.2. Property Damage Waiver Program: 'Ille Property Damage Waiver
Program may or may not be available for Ancillary Products. If the Property
Damage Waiver Program is available in full or in part (in Lessor's sole
discretion) and provided Lessee elects this program and pays the required
additional fees, then Lessec shall not be obligated to obtain the property
insurance described in Section 13(B) and Lessor agrees to relieve Lessec of
Lessee's liability for loss or damage to the Modular Equipment for amounts
in excess of the amount specified as the deductible in the Insurance
Requirements Addendum to the Lease Order Agreement per unit of Modular
Equipment per occurrence and for loss or damage to Ancillary Products to
the extent covered by the Property Damage Waiver Program and subject to
the relevant deductibles. The Property Damage Waiver covers acts of
vandalism, fire and natural disasters including heavy wind lightning,
flooding, fallen trees, etc. The Property Damage Waiver daes not cover: (1)
Damage arising from or related to collision and/or upset that occurs during
transport and/or relocation of Equipment by Lessee, its employees. agents.
invitees or anyone acting at the direction of or on behalf' of the Lessee: (2)
Damage arising from or related to misuse, abuse. excess wear and tear.
abandonment. or the negligence or willful misconduct of the Lessec. its
employees. agents, or anyone acting at the
direction oforon behall'ofthe Lessee:(3) Lessees personal propertyand/or
contents within or upon the Equipment. LESSEE IS RESPONSIBLE. FOR
INSURING ITS OWN BELONGINGS; (4)
Damage or loss of use of Equipment due to contamination of the Equipment
from Ilazardous Materials, as defined in Section 8 herein. The monthly fee
payable by Lessee is speeirwd on the face page of the Lease Order Agreement
and will be billed with the rental invoice. 'rhe waivers set forth herein shall
not he binding upon Lessor unless the loss. damage, injury or claim is reported
to Lessor, in writing, within seventy-two (72) boon of its occurrence. Lessec
shall cooperate with and provide to Lessor all information pertaining to such
event. The waivers provided herein are automatically extinguished or
terminated on the date that rent or any other charges due to be paid by Lessec
become late and unpaid or upon expiration or termination of the [,case
Agreement. NOTHING CONTAINED HEREIN SIL\LL CONSTITUTE
A CONTRACT FOR INSURANCE OR OTHERWISE PROTECT
LESSEE FROM LIABILITY TO THIRD PARTIES.
14. 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
thirty (30) days after its due date; (2) Lessee shall fail to perform or observe
any other term, covenant, or condition of this Lease Agreement;
(3) Lessee shall have abandoned the Equipment or is no longer entitled to
keep the Equipment at its delivered location: (4) any representation or
warranty of Lessee shall have been untrue in any material respect when made.
or, any information submitted by Lessee to Lessor shall be false or misleading
in any material respect. (B) Upon the occurrence of an Event of Default,
Lessor may declare this Lease Agreement to be in default. and thereafter may
exercise any one or more of the following remedies: (1) Repossess, retake,
and/or retain my or all of the Equipment free of all rights and claims of
Lessee with notice, without legal process orjudicial intervention. and without
releasing Lessee of any term, covenant or condition provided herein and
without releasing Lessee of any term, covenant or condition provided herein;
(2) Sell or otherwise dispose of any or all of the Equipment, whether or not
in Lessor's possession, 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; (31 Terminate this
Lem Agreement and/or (4) Exercise an)' 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 Lease Agreement No right or remedy referred to herein is
intended to be exclusive and each may be exercised concurrently or
separately and Rum time to time. In the event Lessor shall repossess or retake
the Equipment and there shall be in or attached to such Equipment arc
property owned by or in the custody or control of lessee, then Lessor is
hereby authorized to take possession ol'such property for a period often (10)
days. Lessor shall provide written notice to Lessee of any property loll in the
Equipment.
'Ihereafter, if am• such property is not claimed and taken by Lessee within
ten (10) days after Lessor repossesses or retakes the Equipment, such
propcny wil I be deemed abandoned by Lessee. and Lessor shall have the right
to dispose of it.
15. Rernrn of Epuinmenie Termination of ease, At the end of the'fenn
or any Extension Period, Lessee shall make the Equipment available to
Lessor, without impediment, (impediments including, but not limited to.
romps. steps, and/or landscaping added by parties other than Lessor) at the
Delivery Address shown in the Lease Order .Agreement 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 shull provide Lessor with at least
thirty (30) days advance written notice of the return of the
Page 4 of 6
Equipment. In the cent Lessee does not provide thirty OIp days ud%mcc
written notice of the return of the Equipment and such earlier pick-up of the
Equipment is requested by Lessee (and can be ellected by Lessor). Lessee
shall reimburse Lessor for any related costs and expenses associated with
the immediate pick-up of the Equipment. Lessee acknowledges and agrees
that all amounts for return freight, knockdown and dismantle will be billed
by Lessor to Lessee at the Lessors rues then in effect on the date of
surrender. The Modular Equipment shall be returned to lessor in the same
condition as delivered to Lessee. rcamnuble ordinary wear and tear excepted.
Lessee shall pay Lessor for all missing or damaged tires, axles, or hitches.
'Termination will become etlbohe only when the Equipment has been
returned to Lessor as herein provided and Lessee has paid I.cssor all unpaid
rental and other charges applicable to the Equipment. Leasce agrees that
prior to the return of the Equipment to Lessor or upon notice of its
repossession Lessee shall. at its sole cost and expense, immediately
disconnect all utilities. nmoye all impediments, remo%c all of Lessee's
personal property. and %acute the Modular Equipment leaving the Ancillary
Products intact and readih accessible, Lessee heroby consents to entry by
Lessor or its agents upon the premises where the Equipment may he located
lift return or repossession of the Equipment. Lessor shall not he responsible
Ibr site restoration. Lessor shall not he liable for anydamage to any personal
properly left in or on the Modular Equipment or for keeping or storing any
personal property of Lessee 101 in or on the Modular Equipment. Such
property will be deemed abandoned by Lessee. Any accessorii and additions
to the returned Equipment shall be deemed to be pan of the Equipment and
the property of Lessor. Notwithstanding anything to the contras herein.
Lessee shall reimburse Lessor for any and all costs incurred related to the
return of the Equipment and in repairing, cleaning, or oflicmise restoring
the Equipment to its condition when delivered in accordance with Lessors
standard mtes.
16. Limited Warranty, For as lung as Lessee timely makes all payments
due hereunder. Lessor warrants throughout the term of this Lease Agreement
that it will repair structural or mechanical defects in the Modular Equipment
(excluding IIVAC filters, lire extinguishers. fuses/breakers, light bulbs, or
other ordinary course repairs or maintenance). provided that Lessee notifies
Lessor in writing of any defies, malfunctions. or leaks within live (5)
business days of the occurrence ther of. In any evem. the liability of Lessor
shall he limited solely to the repairing of defects in the Modular Equipment.
Lessor shall have no liability for the repair of any defect or condition
resulting hum Lessees relocation of the Modular Equipment. utilities
connection. alteration of the Modular Equipment. use of the Modular
Equipment fur a purpose fir which it wit not intended, vandalism, misuse of
the Modular Equipment, excessive wear and tear, failure to properly maintain
the IIVAC system and/or failure to provide timely notice to Lessor. The
repair of the Modular Equipment by Lessor due to a delbct or condition
resulting from any ol'the preceding causes shall result in additional charges
to Lessee. LESSOR SHALL HAVE: NO LIABILITY W'ILVINOEN'ER
FOR ANY LIQUIDATED, CONSEQUENTIAL, INCIDENTAL OR
PUNITIVE DAMAGES, COSTS OR EXPENSES ARISING IN
RELATION TO LESSOR'S LIMI'T'ED WARRANTY. OR ANN'
REPAIRS PERFORMED PURSUANT TO 'TIIF: LIMI'T'ED
WARRANTY. EXCEPT AS SPF.CI FICA LLY PROVIDED HEREIN
LESSOR DISCLAIMS ANY AND ALI. WARRA NI'I ES, EXPRESS OR
IMPLIED, RELATED -1'0 711E MODULAR EQUIPMENT AND ANI'
MAINTENANCE OR REPAIR WORK PERFORMED BY LESSOR
INCLUDING ANY NVARM%NTIES OF
MIERCHANTABILITI, St ITAIIILITI OR FITNESS FOR A
PARTICULAR PURPOSE.. WIIHOLT LINII'FING THE
C.F.NERALITV OF THE FOREGOING, TIIF.RF. ABE NO
C'ONnITION%.COVEN %NI'S .%GREENIENTS.
REIPESE.NT.xTIONS. WARRANTIES OR OTHER PROVISIO\e
EXPRESS OR IMPIFD. COLLATERAL, STATUTORY OR
OTHERWISE RELAYIN6 l'O 7'IIE SUBJECT MAI "I'PR HE ROF
EXCEPT AS PROVIDED HEREIN OR UNI.F. NDP' ' 'SSI Y
CONST?N'I'I?DTOINW'RfTINCiI1Y[K)l'IIIFSsO AII SFF
17. Assionmenl, LESSEE. SHALL NOT :ASSIGN TIIIS LEASE;
AGREEMENT OR SUBLET THE EQUIPMENT WITHOUT 'TIIF.
PRIOR W'RI17EN CONSENT OF LESSOR, Ibis Lease Agreement
shall be binding upon any permitted assignee or successor of Leasee. Lessor
ma) assign any of its rights. remedies. responsibilities. and/or obligations
hereunder without notice to Lessee.
IB. Ancillary Products. Notwithstanding anything contained in this Lease
Agreement to the contrary. in the eront of any conflict with respect to
Ancillary Products the 1'olkw%ing terms and conditions shall apply:
(a) NN'hile some Ancillary Products originate in various instances from third-
party suppliers. Lessee shall nevertheless lease the Ancillary Products solely
from Lessor and shall have no ownership rights or interests therein, except
as may relate Io L.essec's purchase of items which are covered by a separate.
executed, sale agreement and/or me recognized as clearly for finite
consumption (ex. kitchen, restroom. andior oflice supplies). Lessee shall be
obligated to pay applicable rental amounts set forth in the Lease Order
Agreement litr the lease of the, -Ancillary Products.
Ib) Certain Ancillary Products, including but not limited it, portable
bathrooms or generators, may contain or present certain hazardous conditions
or materials. Lessee acknowledges that it is fully aware of the potential
hazards in using such Ancillary Products and agrees to assume all risk.
Lessee agrees that it shall: (i) use such Ancillary Products in a safe manner,
in accordance with all manufacturers' recommendations; (ii) perform all
required maintenance on such Ancillary Products that is not otherwise to be
performed M' Lessor pursuant to the terms of the Lease :Agreement. Lessee
shall utilize only trained, licensed, qualified and/or certified technicians lir
such repairs as required: and Ilii) maintain and remove any waste or
hazardous materials created by such Ancillary Products in accordance with
all applicable laws. rules and regulations.
to Lessor may require Lessee to execute a separate Addendum lift certain
Ancillary Products.
(d) Limited Warrant. Th. Ancillary Products may be "Nem" or "Used"
Ancillary Products. In the event of any defect. Lessee shall notify Lessor
within two (2) days of the occurrence thereof. Ancillary Products shall be
subjecuo the specilic manufacturer's warranty provisions and time period if
any4 as applicable to and as available far the Ancillar) Products. Ina: event.
the liability of Lessor shall be limited solely to the repair of defects in, or. the
r:placemcrll of the Ancillary Products at Lessors stile option. Lessor shall
have no liability lbr the repair of any defect or condition resulting loom:
Lessee's relocation of the Ancillary Products; utilities connection: alteration
of the Ancillary Products: use of the Ancillary Products far a purpose for
which it was not intended; vandalism; misuse of the Ancillary Products:
excesm%c wear and tear, or failure to provide notice to Lessor of needed
repairs or maintenance. 'The mpuir of the Ancillay Products by Lessor due to
a defect or condition resulting from an% o1'the preceding causes shall result
in additional charges to Lessee. LESSOR SI IALL HAVE NO LIABILITY
WHATSOEVER FORANY LIQUIDATED, CONSEQUENTIAL,
INCIDENTAL OR PUNITIVE DAMAGES, COSTS OR
EXPENSES ARISING FROM THE POSSESSION, USE, OR
OPERATION OF ANCILLARY PRODI'CTS. LESSOR DISCLAIMS
ANI' AND ALL OTHER WARRANTIES, EXPRESS OR INIPLIEI),
RELATED TO 'TIIF. AN('ILLAR1' PRODUCTS INCLUDING ANY
WARRAN'T'IES OF MERCIIAN'1'AmLiTY, SUITABILITY, OR
FITNESS FOR A PARTICULAR PURPOSE. THE ANCILLARY
PRODUCTS ARE PROVIDED "AS IS" AND "WITH ALL FACCI'S".
LESSOR MAKES NO REPRESENTATIONS WITH REGARD TO
TIIF: I SAGE: OR CONDITION OFTHE ANCILLARY PRODI CTS.
W'ITHOI T LIN ITING 'TIIF. GF.NF.RI.ITI' OF TIIF:
FOREGOING, TIIERE :UAE NO C'ONDIIION& COVENANTS.
AGREEMENTS. REPESENT:kTIONS, W'ARRANTIE'S OR OTIIFR
PROVISIONS EXPRESS OR INIPIED, COLI ATERAI
STATI'TORY OR O'THERW'ISE: RELATING TO THE SUBJECT
%LA'CI'ER HEREOF EXCEPTAS PROVIDED HEREIN* OR UNLESS
EXPRESS],%' CONSENTED TO IN WRITING BY BOTO LESSOR
AND LESSEE.
Page 5 of 6
(c) Lessee assumes all risk of loss and damage to the :%ncilltay Products from
all causes. The insurance value lin the Ancillun Products muy or may not
he included in the Equipment Value shown in the Insurance Kcyuirements
Addendum to the Lease Order Agreement lin the Modular Equipment, or.
covered under the Property Damage Waiver Program if lance is enrolled. In
the event of total loss or damage to my or all of the Ancillary Products. Lessee
agrees to pay lessor the replacement value for the Ancillary Products as
determined by Lessor as wall as my applicable'I'mcs; and Pees.
(t) The terms goveming the product description and frequency, of
maintenance and clewing services to he performed by Lessor in relation to
Ancillary Products shall be exclusively set Ibrth in the Lease Order
Agreement.
19. Miseellanmps, (a) Time is of the essence with respect to this Lease
Agrecmenl. (b) This ].case Agreement. when signed by bah parties,
constitutes the entire agreement between the panics, (except as may
otherwise be noted in Section 18(c) or as later amended as outlined in
19(c). superseding and replacing all prior documents and representations.
with respect to the subject matter hereof. h may only be amended by a
document signed by both parties. as outlined in Section 19(c). The terms
ill' my documents submitted be Lessee or any, third -panty supplier of
Ancillary Products (i) are superseded and replaced in their entirety by the
terms and conditions of this Lcase Agreement and (ii) shall otherwise have
no binding effect upon Lessor, its agents, and its employees.
Acknowledgement by Lessor of uny Lessee -supplied documents shall be
for Lussce's billing purposes only. Notwithstanding anything contained in
such document to the &;., , in the ewenL_ of any conflict or
inconsistency between the nrmc'ti ons nl' thio t + •\ •m • 1 •rod the
provisions of any Lessee -s ,nnl' • l documents the only l4 ms ell maF ned in
this Lease Aarcentent shall nrva'] (c) Any Equipment, material or labor
furnished by Lessor which is not described in this Lease Agreement and/or
in the Williams Scotsman Proposal as Lessors obligation shall bedeemed
"Extra Work". Lessee, with Lessor's consent. may order changes in the
1:4uipmcnl, material or labor it, he furnished by Lessor under the Lcusc
Agreement. Prior to Lessor purliuming/providing the Extra Work. Lessur
and Lessee must agree in writing to any modification or addition to the
Equipment, material or labor covered by this Lease Agreement as well as
the corresponding changes to the Lease Agreement Total Charges and time
frame for performancc. All Extra Work shall be authorized by written
Amendment or Change Order til the Lease Agreement signed M' both
panics. Failure to have written authorization shall not preclude Lessor
from recovering compensation Iter Extra Work. Lessee shall promptly pay
Lessor for any additional liyuipment, materials or labor authorized by
Amendment or Change Order. Payment for Extra Work shall be duc as and
when invoiced by Lessor. Costs liter Extra Work shull include reasonable
ovenccud and profit as well as other related sums incurred hs Lessor us
may he applicable, including but not limited w: administrative costs: olliee
expenses, expenses incurred at the Dcliven Location; project manager: site
superintendent time and expenses (if such personnel is supplied by
Lessor): dumpster fees: temporary facilities for Lessor's use including, but
not limited to, sanitary facilities and/or Field Of6ce(s): tentporun utilities
liter Lcssor's use (il'supplied by Lessor); travel and related expenses: cull
phone expenses and other costs fiorcommunicalionl Architectural and/or
Engineering expenses (if supplied by Lessor): cleanup at the Delivery
Location if performed by I.essor; document/drawing reproduction costs:
and/or the costs for Mail (hemight
and other deliver sen ices. (d) If any provision ofthis Lease Agreement
is deemed unenforceable for any reason, (hull such provision shall he
deemed stricken and shall not al'I'ect ilio cnl'urccabilit) 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 ullbrded to an indemnitee under
Section 1 I would he in violation of or otherwise prohibited by tiny
applicable law, then Section 11 shall automatically be deemed to be
amended in a manner which protides ilia maximum indemnification and
other protections to such indemnitee consistent with such applicable law.
(a) The obligations of Lessee under Sections i, y. 5. 7.8. 9, 11, 11. 1.1. 14.
I5, 18. and 19, which accme upon execution of this Lease Agreement,
shall survive the termination of this Lease Agreement. (1) Intentionally
nmitted. (g) Lessor shall not be responsible for delays beyond its control.
ft'l delivery. installation, takedown. return and/or an work related to
the Equipment as agreed to by Lessor and Lessee in the Lease Order
Agreement or an%y amendment thereto will he performed by Lessor using its
standard worklixcc and labor rates unless otherwise agreed to in writing by
Lessor prior (o the placement of the order fir the Equipment. Lessec
understands and agrees that Lessor may use Lessor employees or
subcontracted workers for the perlum art cc of my work related to the
Equipment• as determined in Lessor's sole discretion. NEITHER
LESSEE NOR LESSOR SIIALL uAVE ANN LIABILITY
WHATSOEVER FOR ANY I.IQUIDA-m D, CONSEQUENTIAL,
INCIDENTAL OR PUNITIVE DAMAGES, COSTS, OR
EXPENSES. (it With the exception for mechanic's and materialmans lien
proceedings set limh below. this Luang Agreement shall be governed by
and interpreted under California law. Further. all legal actions arising out
of or related to this Lease Agreement shall be filed and conducted
exclusively in a state or federal court int orange Comp', C'alilbmia.
Mechanic's and materialman's lien proccedings. including any anion to
fioreclose on such lien, shall be governed by the law of the state where the
Equipment is located Lessor hereby reserves its common law right ofoffcct.
0) Each party is herehy authorized to accept and rely upon a facsimile
signature electronic signature of the other pane on this Lease Agreement or
any Amendment hereto. An% such signature shall be treated as an original
signature liter all purposes. ikl Lach pang is herehy authorized to accept
and rely upon documents in paper or electronic format. (I) ,-\Iter die
expiration of the Minimum Lease I am, Lessor may propose to amend
these terms and conditions from time -to -time and such amended terms
shall Ix: mutually agreed on by the punws and elluctice thirty lin) days
after notice is provided In lessee.
Page 6 of 6
HVAC SERVICE AGREEMENT FOR LEASED EQUIPMENT
GENERAL TERMS AND CONDITIONS
(05-10-14)
1. Applicability/Riaht Of Inspection: This HVAC SERVICE
AGREEMENT APPLIES ONLY TO LESSEE AND THE
EQUIPMENT IDENTIFIED IN THE LEASE AGREEMENT.
LESSOR IS NOT OBLIGATED TO PERFORM SERVICES
RELATING TO ANY EQUIPMENT OBTAINED FROM ANY
OTHER SOURCE. If LESSEE's execution of this Agreement
occurs more than thirty (30) calendar days from the date of
initial delivery of the Equipment by LESSOR or its designee,
LESSOR shall have the right to inspect the Equipment and
determine whether, in LESSOR's sole discretion, the
Equipment requires repairs. If LESSOR determines that the
Equipment requires repairs at the time of LESSOR's inspection,
it shall so notify LESSEE in writing as to all necessary repairs;
whereupon LESSEE's complete performance of all necessary
repairs, at LESSEE's sole expense, shall be a condition
precedent to LESSOR's performance under the HVAC Service
Agreement.
2. Description of Work: The Covered Work shall consist of
the following on a monthly basis. LESSEE agrees that the
Covered Work comprises the following exclusive list of services
to be performed by LESSOR under the HVAC Service
Agreement:
-Inspection of the HVAC System
-Inspection of thermostat
-Inspection of power supply to Equipment
-Evaporator coil cleaning (when required)
-Condensing coil cleaning (when required)
-Refrigerant check and fill (when required)
-HVAC air filter replacement
-Summary Inspection & Services Provided Report
Any replacement parts may be new, remanufactured, or of
like kind and quality at LESSOR's sole discretion.
3. Exclusions:
a) The Covered Work specifically excludes the following items
with respect to LESSOR -owned Equipment on lease to
LESSEE:
-Replacement of all HVAC parts (other than filters)
-Replacement of HVAC filters more frequently than once per
month
-Repair/replacement of thermostats
-Repair/replacement of power supplies
-Repair/replacement of fuses/breakers
-Repair/replacement of any items covered by a separate
warranty
-Refrigerant check and fill more frequently than once per month
-Cleaning of grills, ducts or other items not specifically covered
by the
HVAC Service Agreement
-Replacement or repair of items that fail due to excessive
use, LESSEE's and/or any other third party's service,
modifications, or repairs, Force Majeure events as described
by paragraph 16 herein, vandalism, misuse or abuse.
b) The Covered Work specifically excludes the following
items with respect to LESSEE -owned Equipment:
-In addition to the exclusions specified herein with respect to
LESSOR -owned Equipment on lease to LESSEE, any
repair/replacement or inspection or cleaning or other service
not specifically listed in the Description of Work Section #2
is also excluded.
4. Payment Terms: Time is of the essence with respect to
this HVAC Service Agreement. LESSEE shall pay LESSOR,
in advance, the monthly payment for this HVAC Service
Agreement on the due date at the Rate Per Month stated in
the Lease Agreement during the Term, and at the Rate Per
Month established by LESSOR during the Extension Period.
Late payments shall accrue interest at the rate of one and
one-half percent (1.5%) per month, or the maximum rate
allowed by applicable law, whichever is lower.
5. Period of Performance: Access: For routine service,
LESSOR shall contact LESSEE to arrange a service schedule.
For items requiring replacements, LESSOR shall perform the
agreed upon replacements no laterthan ten business days after
LESSOR receives notice from the LESSEE of the item requiring
replacement, or such longer time as may reasonably be
required in order to obtain any necessary parts. LESSEE will
cooperate with LESSOR as necessary to allow access to the
Equipment in order that LESSOR may perform the service.
LESSEE shall be responsible for preparation and maintenance
of the site for any Covered Work, including, but not limited to,
providing necessary electrical power and communication lines
and proper air conditioning and humidity control.
6. Defaults: Remedies. LESSEE'S failure to make payment
or to comply with any term or condition herein will constitute a
default. Upon LESSEE's default, which remains uncured after
seven (7) days' notice from LESSOR, LESSOR, at its option,
may terminate this HVAC Service Agreement without further
notice to LESSEE, charge applicable interest as further
provided in paragraph 4, and pursue any or all judicial
remedies, including without limitation exercise of lien rights
available pursuant to applicable law. LESSOR may exercise
any other right or remedy available to Lessor at law or inequity,
Lessor's waiver of any default shall not constitute a waiver of
any other default or a waiver of any term or condition of this
HVAC Service Agreement or the Lease Agreement.
7. Service Agreement. LESSEE acknowledges and agrees
that the writings that comprise the HVAC Service Agreement
are intended to be a service agreement and not an express
warranty. Purchase of this HVAC Service Agreement is not
required in order to purchase or lease equipment from
LESSOR. LESSEE acknowledges and agrees that this Service
Agreement is supported by consideration in the forth of a
monetary payment separate from the purchase price or lease
price of the Equipment, and that this HVAC Service Agreement
is not part of the basis of the bargain for the purchase or lease
of the Equipment. LESSEE further acknowledges and agrees
that the HVAC Service Agreement is not to be construed as
a contract for insurance.
8. Expenses- Taxes. Any additional costs or expenses
incurred by LESSOR in gaining entry to LESSEE's site,
including but not limited to, LESSOR's compliance with
LESSEE's site security, site safety requirements, drug & alcohol
policy and/or site labor requirements shall be at LESSEE's
expense. LESSEE shall also pay any sales, use, value-added,
or other tax or charge imposed by any governmental entity upon
the sale, use or receipt of the Services.
9. No Warranties: LESSEE ACKNOWLEDGES AND
AGREES THAT LESSOR IS PROVIDING NO
WARRANTIES AND MAKES NO REPRESENTATIONS
WITH REGARD TO THE CONDITION OF THE SUBJECT
EQUIPMENT BY VIRTUE OF EITHER ENTERING INTO
THE HVAC SERVICE AGREEMENT WITH LESSEE, OR
BY PERFORMING INSPECTIONS, REPAIRS, OR
HVAC SERVICE AGREEMENT FOR LEASED EQUIPMENT
GENERAL TERMS AND CONDITIONS
(05-10-14)
REPLACEMENTS OF PARTS PURSUANT TO THE HVAC 15. Successors and Aseions. The HVAC Service
SERVICE AGREEMENT. AS ACKNOWLEDGED AND Agreement shall benefit and be binding upon the parties
AGREED BY THE UNDERSIGNED LESSEE, ALL hereto and their respective successors andassigns
EXPRESS OR IMPLIED WARRANTIES, INCLUDING
WITHOUT LIMITATION THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE, NONINFRINGEMENT, TITLE, AND ANY
WARRANTIES ARISING FROMA COURSE OF DEALING,
USAGE, OR TRADE PRACTICE ARE EXCLUDEDFROM
THE HVAC SERVICE AGREEMENT.
10. Insurance_ LESSOR shall provide its standard evidence
and limits of insurance coverage to include liability coverage,
worker's compensation and builder's risk, covering
LESSOR's performance of Covered Work at LESSEE's site,
subject to the terms, conditions and exclusions of the
policy(ies). Any additional insurance required by LESSEE, in
excess of LESSOR's standard coverage, in order that
LESSOR may gain entry to and perform Covered Work on
LESSEE'S site shall be at LESSEE's expense.
11. Limitation of Liability. IN NO EVENT SHALL LESSOR
BE LIABLE TO LESSEE, FOR ANY LOSS OF PROFITS
OR WAGES, LOSS OF BUSINESS, LOSS OF USE,
INCONVENIENCE, COMMERCIAL LOSS, OR INDIRECT,
INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY
OR PUNITIVE DAMAGES ARISING OUT OF OR
RELATED TO THIS SERVICE, EVEN IF LESSOR HAS
BEEN ADVISED OF THE POSSIBILITY THEREOF.
LESSOR'S LIABILITY TO LESSEE UNDER THE HVAC
SERVICE AGREEMENT SHALL IN NO EVENT EXCEED
THE TOTAL AMOUNT PAID BY LESSEE TO LESSOR
PURSUANT TO SUCH HVAC SERVICE AGREEMENT
FOR THE SERVICES DURING THE PRECEDING TWELVE
(12) MONTHS.
12. Termination. The parties hereto may terminate the
HVAC Service Agreement, and their respective obligations
hereunder, as follows: (1) by mutual, written consent of the
parties hereto; (2) by LESSOR, if LESSEE fails to pay to
LESSOR any payments under the HVAC Service Agreement
or u der any other agreements with LESSOR when due; (3)
by either party hereto upon (30) days written notice if the
other party hereto materially breaches any term ofthe HVAC
Service Agreement or otherwise fails to satisfy any promise
or covenant made herein, and further provided that such
party shall fail to cure said breach or failure within such
period; or (4) by either party, with or without cause, upon (30)
days' written notice of intent to terminate to LESSEE.
13. Notices. All notices, demands and communications
required or permitted in connection with the HVAC Service
Agreement shall be in writing and shall be deemed
effectively given in all respects upon personal delivery or, if
mailed, by registered or certified mail, postage prepaid,
return receipt requested, or by overnight courier, the receipt
of which is confirmed, addressed to the party hereto at the
address set forth in the first paragraph ofthis HVAC Service
Agreement (or such other address for a party as shall
hereafter be specified by like notice). Either party hereto may
from time to time change its notification address by giving
the other party hereto prior written notice of the new address
and the effective date thereof.
14. Relationship of the Parties, The HVAC Service
Agreement shall not create a partnership, joint venture,
employer-employee, master -servant, principal -agent, or
other relationship whatsoever between the parties hereto.
16. Force Maieure. Neither party to this HVAC Service
Agreement shall be liable to the other for delays or failure to
perform caused directly or indirectly by circumstances
beyond that party's control, including but not limited to acts
of God, inclement weather, fire, flood, war, sabotage,
accident, labor dispute, shortage, governmental action
including regulatory requirements, changed conditions,
delays resulting from actions or inactions of third parties, site
inaccessibility or inability of others to obtain material, labor,
equipment, or transportation, provided, and only to the
extent, such delays are not the result of the negligence of
the party claiming the delay.
17. Disputes: Governino Law: The HVAC Service
Agreement will be governed by and construed in accordance
with the laws of the State of California, without respect to
conflicts of laws principles. All disputes and claims arising
from or relating to this HVAC Service Agreement will be
resolved only in a court of competent jurisdiction in and for
Orange County, California, and such court will constitute the
sol and exclusive venue and jurisdiction. LESSEE hereby
waives any and all rights to or claims of sovereign immunity.
The parties understand and agree that in the event any
party to this HVAC Service Agreement is required to take, or
respond to, any action at law or in equity to enforce any
portion ofthis HVAC ServiceAgreement, the prevailing party
in any such proceeding shall be entitled to recover all costs,
expenses, and expert witness fees, incurred in taking or
responding to any such action, in addition to any other legal
or equitable relief that may be awarded by the Court.
18. Assianahility. LESSEE may not assign LESSEE'S
rights or obligations under this HVAC Service Agreement
without the prior written approval of LESSOR, which
approval LESSOR may in its sole discretion withhold, and
any attempt to do so without such prior written approval shall
be null and void and of no force or effect whatsoever.
LESSOR may freely assign its rights hereunder, and
LESSEE shall consent to such assignment and shall execute
any documents reasonably required in connection with such
assignment
19. Severability. In the event that any provision of this
HVAC Service Agreement, or any word, phrase, clause,
sentence or other provision thereof, should be held to be
unenforceable or invalid for any reason, such provision or
portion thereof shall be modified ordeleted in such a manner
so as to make this HVAC Service Agreement as modified
enforceable to the fullest extent permitted under applicable
laws.
20. Execution. The HVAC Service Agreement shall be
deemed executed upon both parties' execution of the Lease
Agreement for the related Equipment as further provided in
paragraph 18 of the document entitled Williams Scotsman,
Inc.. General Terms & Conditions and upon LESSEE's
execution of the section entitled "HVAC Service Agreement"
located on page 3 ofthe Lease Agreement.
HVAC SERVICE AGREEMENT FOR LEASED EQUIPMENT
GENERAL TERMS AND CONDITIONS
(05-10-14)
21. Risk of I oss. LESSEE acknowledges and agrees that
nothing contained within this HVAC Service Agreementand no
performance by LESSOR of services hereunder, shall in any
way modify, alter, or negate LESSOR's risk of loss or damage
to the Equipment as provided in paragraph 11 of the document
entitled Williams Scotsman, Inc. Lease Agreement General
Terms & Conditions.
22. Entire Aoreement Modification, The terms and
conditions governing the HVAC Service Agreement are
provided exclusively in the documents entitled "Lease
Agreement," 'WIliams Scotsman, Inc. Lease Agreement
General Terms & Conditions" and this document entitled
"HVAC Service Agreement General Terms & Conditions"
[hereinafter collectively referred to as, "HVAC Service
Agreement Documents'] The HVAC Service Agreement
Documents exclusively contain the entire agreement
between the parties hereto with respect to the subject matter
hereof and supersede all prior agreements, documents,
correspondence, understandings, and negotiations, whether
oral or written, between the parties hereto with respect to
such subject matter. Notwithstanding the foregoing, this
HVAC Service Agreement General Terms & Conditions shall
in no way replace, supersede or otherwise modify any Lease
Agreement that may be in effect between the parties with
respect to the unit(s) described in the Lease Agreement. The
parties hereto may, by mutual agreement, modify any
provision of the HVAC Service Agreement, and any party
hereto may grant consent or waive any right to which it is
entitled, provided that each such modification, consent, or
waiver shall be in writing and signed by duly authorized
representativesof both parties.
HVAC Service Agreement Terms & Conditions Revision
OS -10-14