HomeMy WebLinkAbout22- Council Office ORIGINAL
CITY OF SAN BERNARDINO REQUEST FOR COUNCIL ACTION
From: Councilman Chas Kelley Subject: Authorization to proceed with site
development planning prior to the placement of a
Dept: Council Office modular unit at Al Guhin Park; and authorizing the
Director of Finance to amend the FY 09/10 budget by
Date: September 29, 2009 appropriating $300,000 from Fund No. 208
(Verdemont Improvement) to Account No. 208-687-
File: 5504-7743 "PR04-28: Verdemont Community
Center."
MCC Date: October 5, 2009
Synopsis of Previous Council Action:
06-18-07 Resolution of the Mayor and Common Council of the City of San Bernardino
authorizing the City Manager to execute a Professional Services Agreement with
David Evans & Associates in the amount of$113,567 for the preliminary plans
for the proposed Verdemont Community Center and to repeal Resolution No,
2007-144, approved by the Mayor and Common Council on May 7, 2007.
04-21-08 The Mayor and Common Council approved preliminary design and location, and
authorized release of request for proposals for preparation of plans and
specifications for the Vermont Community Center.
09-21-09 Motion to proceed with site development failed (Agenda Item# 19)
Recommended Motion:
1. Authorize the Director of Development Services to proceed with issuing a Request for
Proposals for site development planning prior to the placement of a modular unit at Al
Guhin Park; and
2. Authorize the Director of Finance to amend the FY 09/10 budget by appropriating $300,000
from Fund No. 208 (Verdemont Improvement) to Account No. 208-687-5504-7743 "PR04-
28: Verdemont Community Center."
Councilman Chff Hey
Contact Person: Kerry Morford, Interim Assistant Phone: 5125
Director of Development Services
Supporting data attached: RFCA, Staff Report & Memo from Ward(s): 5
Director of Parks, Rec. & Comm. Services
FUNDING REQUIREMENTS: Amount: $300,000
Source: (Acct. No.) Fund No. 208
Acct. Description: Verdemont Improvement Fund
Finance:
Council Notes:
Agenda Item No. 2
to-6%
CITY OF SAN BERNARDINO REQUEST FOR COUNCIL ACTION
STAFF REPORT
Subiect:
Authorization to proceed with site development planning prior to the placement of a modular
unit at Al Guhin Park; and authorizing the Director of Finance to amend the FY 09/10 budget by
appropriating $300,000 from Fund No. 208 (Verdemont Improvement) to Account No. 208-687-
5504-7743 "PR04-28: Verdemont Community Center."
Background:
In late 2007, a Request for Proposals (RFP) was issued by the Parks, Recreation and Community
Services Department seeking proposals for design and engineering services to develop four (4)
new park sites and facilities. One of the identified new facilities was the Verdemont Community
Center, proposed for the site located generally along the east side of Interstate 215, north of Little
League Drive and adjacent to the pet cemetery which comprises approximately four (4) acres.
The RFP noted that the City was proposing to construct a 15,000 square-foot community center
building that would meet the U.S. Green Building Council LEED (Leadership in Energy and
Environmental Design) Rating System at a gold or platinum level. The tasks for this project
included preparing a preliminary design, final design and preparation of plans and specifications.
After receiving responses to the RFP in January 2007, staff scaled back the tasks for this project
to include only preparation of a preliminary or schematic design due to budget constraints. A
contract was ultimately awarded in the amount of $113,567 to David Evans and Associates
(DEA) as the best-qualified design consultant for the project. Work commenced in June 2007
and the preliminary/schematic plans were completed in early 2008.
On April 21, 2008,the Mayor and Common Council approved the schematic design and location
for the proposed Verdemont Community Center and authorized staff to release a Request for
Proposals (RFP) for the detailed plans and specifications. After receipt of the proposals, it
became apparent the City lacked the resources to construct the facility, which at the time was
estimated at a cost of $10.5 million excluding the remaining design and specification
development costs. The process ceased at this point until other alternatives could be explored.
As the Director of Parks, Recreation and Community Services and Council Member Kelley
began researching other possible means to facilitate a community center in the Verdemont area
the options were narrowed to locating a mobile modular unit at Al Guhin Park. This subject was
brought before the Ways and Means Committee on August 19, 2009, whereupon the Committee
recommended that this item be forwarded to the City Council for their consideration. Provided as
an attachment to this report is the information given to the Ways and Means Committee
illustrating modular floor plans, costs and building dimensions. No recommendation is being
provided at this time for the lease or purchase of a modular building. Staff will use a competitive
process for acquiring the modular unit and bring the matter back for Council action at a latter
date. The Director of Parks, Recreation and Community Services is currently developing the
staffing and operational details for the proposed community center.
2
CITY OF SAN BERNARDINO REQUEST FOR COUNCIL ACTION
STAFF REPORT - Continued
Site development planning needs to occur before setting a modular building on the site for the
purposes of determining parking, landscaping, utility service points and other pre-development
activities. Staff will solicit proposals from design professionals to perform the site planning and
an estimate of the costs for the site development. Staff,therefore, respectfully requests the Mayor
and Common Council authorization to proceed with the project as discussed above.
Financial Impact:
Funding for the project is available in the Verdemont Improvement Fund in the amount of
$300,000. The Verdemont Community Center is identified as a project in the Capital
Improvement Program (PR04-28); however, a budget amendment is necessary to allocate the
funds from the Verdemont Improvement Fund to the Verdemont Community Center project for
site development planning, future site development costs, and acquisition of the mobile modular
unit.
Recommendation:
1. Authorize the Director of Development Services to proceed with issuing a Request for
Proposals for site development planning prior to the placement of a modular unit at Al Guhin
Park; and
2. Authorize the Director of Finance to amend the FY 09/10 budget by appropriating $300,000
from Fund No. 208 (Verdemont Improvement) to Account No. 208-687-5504-7743 "PR04-
28: Verdemont Community Center."
Attachments:
♦ Information provided at the Ways and Means Committee meeting of August 19, 2009.
♦ August 18, 2009 memorandum to Charles McNeely, City Manager from Kevin Hawkins,
Director of Parks, Recreation and Community Services. The subject of the memo is the
Proposed Mobile Modular Community Center at Al Guhin Park and includes costs to staff
the center.
♦ Attachment"A"—Fax from Mobile Modular with proposed costs and floor plans.
3
CITY OF SAN BERNARDINO
INTEROFFICE MEMORANDUM
San i,n
TO: Charles McNeely, City Manager
FROM: Kevin Hawkins, Director, Parks, Recreation & Community Svcs. Dept.
DATE: August 18, 2009
SUBJECT: Proposed Mobile Modular Community Center at Al Guhin Park
The following information summarizes the estimated costs associated with the proposed mobile
modular community center at Al Guhin Park in the north end of San Bernardino.
Hours of operation: Monday through Thursday - 10 a.m. to 6:00 p.m.
(or 11 a.m. to 7:00 p.m.)
Staffing:
One (1) '/< Time Recreation Coordinator (27 hrs. week) $27,000
Three (3) Recreation Aids/Leaders (15 hrs. week) $26,000
Note: Staff and operations hours reflect a one (1) day / 10% furlough.
Materials & Operations: $7,000
Internal Services: $5,000
Total estimated annual cost—staffing and operations: $65,000
If the City selects a mobile modular lease option (12 months) -
(includes delivery, set up, lease, dismantling and return)
Cost ranges from: $25,500 to $33,500
For a 36 month lease term —
Cost ranges from: $50,000 to $67,000
If the City elects to purchase mobile modular unit,
Cost ranges from: $84,000 to $112,000
(See Attachment "A" — Fax from Mobile Modular w/ proposed costs /floor plans)
The Mobile Modular Community Center option presents an exciting opportunity to provide a
community center to serve the residents in the north end of the community until funding for a
permanent facility can be identified. I look forward to discussing this opportunity further with you.
Note: Site improvements may range from $50,000 - $100,000 per Development Services.
ATTACHMENT i°A"
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_..r,ygjjpMb Mobile Modular Management Corporation
11450 Mission Blvd, External Floorplan
mobile Mira Loma, CA 91752-1015 Building Size: 48 X 60
modular P (951)360-6600 Fax: (951)360-6622 Number of Floors: D 4
flrrw•en-Ctrfaauebou+r www-MObPeiylodularf2entS-Coin A#: /L���
Office, 1
Actual Layout
Dbl.
RLC Doors HVAC
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HVAC
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HVAC
HVAC
Budding InformaL°m Dimensions are nominal.
Manufacturer.. Standard Pac
SN#.08991263S26609, 08991263S26610,08991263S26611,08991263326612
E-Code:62232, 62233, 62234, 62235
Yard Location:8 C, B C, 8 C,8 C
Exterior Information:
Roof Load: 20 Towbar: 3'Bolted HVAC Volts:220
Floor Load: Unknown Axles:3 Power Panel: 125
Wind Rating: 17.4 Occupancy: B2 Root Type: See Notes
Height 14'0" Exterior Finish:T-1-11 a" Window Type:Horizontal
Width: 12'0" Exterior Color. Camel/Mesa Door Type:Dbl,RLC
Interior In6mriation: Plumbing Information:
Interior Finish:VWG,HampGry Ceiling Type: Random Fiss Urinals: 1 Water Heater: 6 Gal
Flooring:Carpet Ceiling Height:95" Toilets.2 Showers:0
Flooring Color Unknown Max Span. NIA Sinks: 3
PnrMtl;06-10-2009 05:50PM
Page 1 pf 2
Mobile Modular Management Corporation
•t 11450 Mission Blvd. External Fiaorplan
m0bde Mira Loma, CA 91752-1015 Building Size: 36 X 60
modular (951)360-6600 Fax: (951)360-6622 Number of Floors: 3
-� www.MobdeModdarRents.com A#:
Office,
Actual Layout
HVAC
HVAC
HVAC
Budding Information: Dimensions are nominal.
Manufacturer: DesignMobile
SN#: C09224, C09225, C09226
E-Code: 16104, 16105, 16106
Yard Location: RET, RET, PET
Exteriorfnformabon:
Roof Load:20 Towbar. 3'Bolted HVAC Volts:220
Floor Load:50 PSF Axles:3 Power Panel:125
Wind Rating:15 Occupancy:B2 Roof Type:Rolled
Height: 13' 10" Exterior Finish:T-1.11 8" Window Type: Horizontal
Width: 12'0" Exterior Color.Camel/Mesa Door Type:Sgl,RLC
Interior Information: Plumbing Information:
Interior Finish: Panel,AlmGrs Ceiling Type: Random Flss Urinals: 0 Water Heater:6 Gal
Flooring:Carpet,Ready Ceiling Height:95" Toilets:2 Showers: 0
Flooring Color: Unknown Max Span: NIA Sinks:3
HVAC Return:
Accessories Information:
PnMt&d:06•10Q009 05-SOPM Pogo 1 of 1
ADDITIONAL ADVISORY INFORMATION FOR LESSEE OR BUYER
The provisions below (the Incorporated Provisione) shall be incorporated by reference into all Lease
Agreements (each a Agreement") entered into on or after October 1", 2008, between Mobile Modular
Management Corporation, a California Corporation, as Lessor/Seller ('Lessor/Sellef or Lesso ") and
any customer of Lessor/Seller, as Lessee(Buyer ("Lessee/Buyer" or Lessee'). These provisions are
subject to change in Lessor/Sellers sole discretion. Capitalized terms not otherwise defined herein shall
have the meanings given to such terms in the Agreement and related Master Lease Agreement.
In an effort to offer 'no surprises' to Lessee/Buyers, Lessor/Seller has compiled the following list of
occurrences that will result in ADDITIONAL CHARGES to fees already quoted for delivery, drop-off, pick-
up, return and relocation of Equipment. Additionally, listed below is information regarding common
practices and procedures that may be relevant during the Lease Term.
A. DELIVERY, RELOCATION, OR RETURN DELIVERY TIMES: Due to unforeseen delays related
to weather, traffic or a prior haul, Lessor/Seller cannot guarantee specific times on deliveries. However,
Lessor/Sellerwill do its utmost to accommodate Lessee/Buyers scheduling needs. Saturday and Sunday
deliveries are available at a premium rate.
B. DRY RUN: Lessor/Seller will notify the Lessee/Buyer in advance of arrival for pick-up or delivery
to help prevent a dry run and additional cost to the Lessee/Buyer.
C. EQUIPMENT PLACEMENT: For an additional fee, Lessor/Sellerwill assess the site specified on
the applicable Agreement and make recommendations on placement. For certain types of Equipment,
such as some multi-wide modulars,the setup crew that follows the driver may not have the ability to move
the Equipment more than a few feet. Avoid placing the Equipment in low lying areas in case of flooding
or on surfaces with inadequate drainage. Lessor/Seller recommends the use of blocks of wood or
concrete to elevate any Equipment consisting of containers, as LesseeBuyer deems appropriate to avoid
flooded areas. In the case of Equipment located in the State of Florida, do not place the Equipment
closer than two feet to another structure without advance written approval from the Lessor/Seller.
D. ADDITIONAL O"ITE LABOR: Additional charge(s)will result due to site access (i.e., muddy or
inaccessible site) or preparation problems that hinder Lessor/Sellers representative or cause them to
wait Additional labor and equipment may be required to remove Equipment from a muddy, damp, or
otherwise inhibited location.
E. ADDITIONAL SET-UP TIME due to unlevel site conditions may result in extra charges.
Lessor/Seller defines a level site for Equipment as follows: Length — no greater that a 4' drop in 40';
Width — not greater that a V drop In 8'. TO HELP AVOID THIS CHARGE, PLEASE MAKE
LESSOR/SELLER AWARE OF SITE CONDITIONS AHEAD OF TIME SO THE CORRECT MATERIALS
MAY BE SUPPLIED. Should there be an additional charge for the installation of the Equipment due to
the unlevel site, a similar charge will be assessed for the removal of the Equipment.
F. RE-LEVELING THE EQUIPMENT due to adverse site or weather conditions (wetness, settling,
unstable ground, etc.), or adjustment due to personal property (such as furniture, files or equipment)
inside the Equipment, will result in an additional charge, For containers, once the container is on the
ground, inspect the four comers of the unit. If any comer is not touching the ground, Lessee/Buyer must
shim those corners to provide a solid foundation. The doors may not open if this is not done properly.
G. HEATING/AIR CONDITIONING:
(1) Section G. does not apply to Sale Agreements, however recommended care protocols
and sizes apply.
(ii) in all cases, Lessee shall change the heating/air conditioning filter(s) every three (3)
months or sooner, and
(iii) For Equipment not located in the State of Florida Section G.(if) does not apply. h the
case of Equipment located in the State of Florida, Lessee shall flush and clean the HVAC
Page I of 3
Additional Advisory Information for Lcssee or Buyer,rev,3/5/09
condenser coil as required annually. Additional charges may be assessed for Equipment
that is returned with dirty diffusers and air ducts. Failure to change the interior and
exterior filter on the unit on a regular basis may result in severe damage to the
Equipment.
1. Filter size for HYBRID "Campus Maker" is 16x30xl
ii. Filter size for other buildings is 16x30x1
iii. Filter size for 12x40 commercial office buildings, 12x30 restroom buildings
and 12x42 restroom buildings are 16x25xl,
(iv) WALL CARE: Lessee/Buyer should use pushpins for hanging pictures, etc., on Equipment. As long
as excessive amounts are not used, in the case of a Lease Agreement no repair charges will be incurred.
Lessee/Buyer should not use tape as it can remove the wall finish, which will result in damage charges.
(v) REPAIR OF LEAKS: It is not uncommon for leaks to occur on a modular when recently delivered or
relocated. In order to seal leaks properly, a dry surface is required. Lessor/Seller will do its utmost to seal
any leaks in a timely manner once the weather permits. Lessee/Buyer is responsible to report leaks to
Lessor/Seller in a timely manner to ensure appropriate resolution of the issue as further damage may be
caused by delayed repair. In the case of Sale Agreements the terms of repair will be governed by the
warranty presented in the Sale Agreement.
(vi) ROOF RUMBLES. Lessor/Seller offers no warranty or guarantee against roof rumbles.
(vii) RETURN DELIVERY PROCEDURE Not applicable to Sale Agreements. Lessee should provide the
Lease number and Equipment identification (Building ID) when notifying Lessor that Lessee wishes to
schedule return delivery. Lessor will do its utmost to expedite a return delivery request.
• CONDITION OF EQUIPMENT: Upon scheduling the return delivery, it is the Lessees
responsibility to advise Lessor if wheels, tires, axles, towbar or other items have been
removed from the Equipment and, if so, of the their location. Additionally. Lessee is to advise
Lessor whether skirting, earth anchors or other items have been attached to the Equipment
and require removal_
• SKIRTING, SEISMIC RESTRAINTS, OR AWNINGS: Removal of skirting, seismic restraints
or awnings is/are the responsibility of the Lessee unless the skirting was installed by Lessor.
At the Lessee's request, Lessor will perform this work at an additional cost. When installed by
Lessor, removal of these items or items of a similar nature will be performed by Lessor at
additional cost to Lessee.
• SITE CONDITIONS AND UTILITY CONNECTIONS: The Lessee must inform Lessor or any
adverse site conditions or access problems that might exist prior to return delivery. Lessee is
responsible for the disconnection of utilities prior to return of the Equipment.
• INSPECTION: Lessor strongly suggests that the Lessee have personnel at the site upon
pick-up to sign for the Equipment. For an additional charge, an inspection can be performed
at your site (rather than at Lessor's inventory center) prior to the scheduled return.
• CLEANING/KEYS: Unless otherwise noted in the Lease Agreement, Lessor charges a $125
cleaning fee per each piece of Equipment (except for containers, for which such charge is
$50). This deposit is refundable only if the Equipment is returned in a cleanliness condition
equal to or better than when it was originally shipped. If keys are not returned with the
Equipment, the Lessee will be assessed a re-keying charge. If Iccksets are altered and not
returned to their original condition, charges may be assessed.
• PRORATION: Lessor prorates rent in one-half(1/2) month increments only. Any Equipment
on rent beyond the 14th day of a billing cycle will be responsible for the full month's rental
payment. Under no circumstances will any rental be for less than four(4)months.
Page 2 of 3
Additional Advisory Information for Lessee or Buyer,rev.3/5/09
(viii) EQUIPMENT LOCATED IN FLORIDA In the case of Equipment located in the State of
Florida:
(i) RAMPS ANU STEPS: Any Equipment consisting of ramps or steps will be tailored for a
typical 28" to 30" threshold height on a Type IIB (non-hybrid) or 34" to 36" on a type 5
commercial building. Special products can be ordered due to site conditions or local
codes, but are not accounted for in the list of charges included in the Agreement.
(ii) FIREWALL: Hybrid Campus Maker and Type IIB Side Stackable classrooms have a one-
hour firewall rating on the long side walls. Penetration of these walls may cause the
Equipment to lose its one-hour fire rating and the Equipment will not be code compliant.
(iii) WALL PENETRATION: Lessor allows for 2 penetrations in the top right rear wall above
the ceiling grid.Access to the panel box is already provided. Existing utility holes must be
used first. More than 2 penetrations will result In major repairs to the Equipment, and this
cost will be passed on to the Lessee.
(iv) GENERAL EQUIPMENT CARE: Please keep the carpets clean and free of stains.
Please do not penetrate or damage the exterior high rib aluminum panels or exterior trim.
Excessive damage will result in additional charges at the time of return. When backfilling
soil and concrete in the front of the Hybrid use a waterproof protective barrier to protect
the Equipment. Attaching steps and ramps directly to the doorjamb will result in an
Inoperable door. If these items need to be attached, attach these items to the frame of
the Equipment.
Lessor/Seller sincerely hopes that by making you aware of the above procedures, you can minimize or
eliminate additional charges. At the same time, Lessor/Seller does not want Lessee/Buyer to be
surprised if Lessee/Buyer is assessed these charges. We value your business and hope you find this
information helpful.
Page 3 of 3
Additional Advisory Information for Lessee or Buyer,rev.3./5/09
by Reference
The,Supplemental Lease Terms and Condltlons and Additional Advisory Information for Lessee or ye
Bur provisions ere
hereby incorporated by reference In their entirety,as updated from time to time by Lessor, in its sole discretion, and ran be
reviewed in the e-Customer Services section of the Lessor's web site at http:/hvw w.MobileModularRents.coMConfract7erms.
The Lessee hereby confirms that he/she has read in its entirety and understands the Supplemental Lease Terms and
Conditions and Additional Advisory InfornatJon.
Please initial above,sign below, and fax or email this document to the fax number
shown above or the email address you received the document from.
. The parties hereto, MOBILE MODULAR MANAGEMENT CORPORATION, a California corporation,
as lessor(the"Lessor)and lessee( Lessee", as described above in the section titled
"Customer Jnformation'� hereby agree to this Lease Agreement and the terms and conditions
set forth in the Lease Terms and Conditions, attached hereto as Attachment A.which are
hereby incorporated by reference. The individual signing this Lease Agreement affirms that
he/she is duly authorized to execute and commit to this Lease Agreement for the above named
Lessee.
LESSOR: LESSEE:
Mobile Modular Management Corporation
By: By:
Name: Name:
Title: Title:
Date: Date:
ATTACHMENT
LEASE TERMS AND CONDITIONS
1. LEASE, Lessor leases to Lessee,and Lessee leases from Lessor, the equipment listed on
any Lease Agreement hereto (the "Equipment's on the terms and conditlons set forth herein.
Each such Lease Agreement(an "Agreement') and the lease provisions on the Lessor's website
at [www.MoblleModularRents.com] (the "Incorporated Provisions"), to the extent
incorporated by reference into such Agreement, together with these Lease Terms and Conditions
(the 'Lease Agreement', to the extent incorporated by reference into such Agreement, shall
constitute a separate and independent lease (a 'Lease') of the Equipment listed in such
Agreement under "Product Information". Capitalized terms used but not defined in this Master
Lease Agreement shall have the meanings set forth in the applicable Agreement In the event of
a conflict between this Master Lease Agreement or the Incorporated Provisions and the
Agreement, the Agreement shall control.
2 LEASE TERM. The Lease shall commence on the Start Rent Date specified in the
Agreement (which may be adjusted by mutual agreement of Lessee and Lessor), and shall
continue thereafter for the number of months specified in the Agreement as the"Contract Term"
(the "Lease Termf). Lessee is responsible for paying the Monthly Rent specified in the
Agreement (as such may be adjusted pursuant to Se ' for each month during the Lease
Term. Lessee shall have no right to terminate the Lease prior to the expiration of the Lease
Term; provided that, in the event that Lessee surrenders the Equipment to Lessor prior to the
completion of the Lease Term, the Lease Term shall cease upon the later to occur of(i) the date
when Lessee shall have complied with Section and (ii) Lessee has paid to Lessor an early
Lease Terms and QDndlbons,Rev 15109
termination fee to be determined by Lessor in its sole discretion. Lessor shall not be liable to
Lessee for any failure or delay in obtaining, delivering or setting up the Equipment. In the event
Lessor Is responsible for delay in obtaining, delivering or setting up the Equipment,the Start Rent
Date shall be deemed to be revised to the date that Lessor substantially completes setting up the
Equipment. If any delay in obtaining, dellverlrg or setting up the Equipment is caused by failure
of the site to be ready or for any other reason not solely the responsibility of Lessor, the Lease
shall commence as of the Start Rent Date originally stated notwithstanding such delay.
3. RETURN OF EQUIPMENT. Regardless of the stated Lease Term, Lessee must provide
a minimum of 30 days' prior notice for return delivery of Equipment (except that Equipment
consisting of containers requires only 10 days'notice). Please review the Incorporated Provisions
on the website at [http://www.MobileModularRents.00m] for the conditions under which the
Equipmert must be returned.
4. HOLDING OVER; LEASE EXTENSION. If Lessee (a) fails to notify Lessor of the
intended return of Equipment as required under Section 4(a) of the Incorporated Provisions, (b)
fails to prepare the Equipment for dismantle as required under Section 4(a) of the Incorporated
Provisions or (c) fails to pay the charges upon return as required under Section 4(b) of the
Incorporated Provlslons, the Lease Term shall be extended, on a month-to-month basis, beyond
the Lease Term stated above. In this event, Lessor may establish a revised rental rate for such
extended Lease Term, which revised rental rate shall constitute the Monthly Rent for such
extended Lease Term following completion of the initial Lease Term. Dismantle, charges upon
return and other charges related to the return of the Equipment may also be revised by Lessor
for such extended Lease Term.
5. LESSEE AGREEMENTS. Lessee agrees that:
(a) Lessor may insert in the applicable Agreement the serial number and other identification
data relating to the Equipment when ascertained by Lessor; and
(b) Lessor (or its agents, employees or contractors) may, from time to time at any
reasonable time, enter upon the premises of Lessee for the purposes of (1) Inspecting the
Equipment or posting "Notices of Non-Responsibility" or similar notices thereon, or (2)
photographing the Equipment, including any items or occupants within or surrounding the
Equipment, for promotional or other purposes. If Lessor determines that repairs to the
Equipment are needed, Lessee shall grant access for said repairs. Lessor shall bear the expense
of any repairs that it determines are needed to ameliorate normal wear and tear; the expense of
all other repairs (inducting any repairs requested by Lessee) shall be borne by Lessee, If Lessee
does not grant access for such repairs between 8:00 a.m. and 5:00 p.m„ Monday through Friday,
Lessee shall bear the cost of repair rates for labor at the applicable overtime rates.
6. SECURITY DEPOSIT. Upon the signing of any Agreement, Lessee shall provide to
Lessor the Security Deposit specified in such Agreement. The Security Deposit shall be held by
Lessor(who shall have no obligation to collect or pass through to Lessee any interest thereon) as
security for Lessee's faithful performance of the terms and conditions of the applicable Lease,
including without limitation Lessee's indemnification obligations under Section 12. If an Event of
Default occurs, Lessor may apply the Security Deposit to payment of its costs, expenses and
attorney fees in enforcing the terms of the Lease and to indemnify Lessor against any costs,
expenses or damages sustained by Lessor In cornedion with the Lease (provided, however,
nothing herein contained shall be construed to mean that the recovery of damages by Lessor
shall be limited to the amount of the Security Deposit). In the event all or any portion of the
Security Deposit is applied as aforesaid, Lessee shall deposit additonal amounts with Lessor so
that the Security Deposit shall always be maintained at the amount specified in the Agreement.
At the end of the lease Term, Lessor shall apply any remaining balance of the Security Deposit
Lease Terns and Qmditions,Rev 3/5109
to the payment of any monies owed to Lessor under the Lease. Thereafter, if no Event of
Default has occurred and is continuing and Lessee has complied with Section_3 Lessor shall
return to Lessee any remaining balance of the Security Deposit,
7. ASSIGNMENT.Lessee will not assign, convey, transfer, or hypothecate its interest, or
any part thereof, in and to any Lease or the Equipment, whether voluntarily or involuntarily,
without the prior written consent of Lessor; and any such attempted assignment, conveyance,
transfer, or hypothecation, whether voluntary or Involuntary,shall be null and void, and upon any
such attempted assignment, conveyance, transfer, or hypothecation, Lessor may, at its option,
terminate the Lease. Lessor may, at its option and without the prior approval of Lessee, transfer,
convey, assign or hypothecate its interest or any part thereof, in and to the Lease. It is
understood and agreed by Lessee that Lessor may be acting as an agent for the true owner of
the Equipment (the "Principal ), and that such Principal, if any, shall have all the rights and
protection of Lessor hereunder.
8. PAYMENTS. Lessee agrees to pay to Lessor (at the office of Lessor or to such other
person or at such other plaoe as Lessor may from time to time designate to Lessee in writing)
each payment specified herein on a net Invoice basis without demand by Lessor. All payments
due from Lessee pursuant to the terms of the Lease shall be made by Lessee without any
abatement or setoff of any kind whatsoever arising from any cause whatsoever, If any payment
is not received by Lessor within five (5) days from the date due, Lessee shall pay Lessor interest
at the rate of EIGHTEEN PERCENT (18%) per annum (or at the maximum rate permitted by
applicable law, if less) on such payment until received. In order to reimburse Lessor for resulting
administrative expenses, Lessee shall also pay a late charge of TWENTY-FIVE ($25,00) for each
delinquent payment each and every month that such payment($) remain(s)delinquent.
9. TAXES AND LIENS. Lessee agrees to keep the Equipment free of all levies, liens or
encumbrances. Lessee shall, In the manner directed by Lessor, (a) make and file all declarations
and returns in connection with all charges, fees and taxes (local, state and federal) levied or
assessed either upon Lessee or Lessor, or upon the ownership, leasing, rental, sale, possession,
use, or operation of the Equipment, and (b) pay all such charges, fees and taxes. However,
Lessor shall pay all local, state or federal net income taxes relating to the Lease. If Lessee fails
to pay taxes and charges as required by this Section, Lessor shall have the right, but not the
obligation, to make such payments. In the event that Lessor makes any such payments, Lessee
shall reimburse Lessor for such costs as deemed appropriate by Lessor and as invoiced by Lessor,
10. LOSS OR DAMAGE. Until the Equipment is returned to Lessor, Lessee assumes all risk
of loss or damage to the Equipment Subject to Section 12(b1, should any Equipment damaged
be capable of repair, the Lease shall not terminate, but Lessee shall cause the Equipment to be
repaired and restored to its condition existing prior to such damage, at Lessee's sole expense.
Lessee shall be entitled to the benefit of the proceeds from any insurance recovery received by
Lessor, up to an amount equal to that paid to Lessor pursuant to this paragraph.
11. INSURANCE.
(a) Lessee shall provide, maintain, and pay all premiums for insurance covering the loss,
theft, destruction, or damage to the Equipment in an amount not less than the full replacement
value thereof, naming Lessor as loss payee of the proceeds. Lessee shall also provide, maintain,
and pay all premiums for public liability Insurance (minimum of $1,000,000 per occurrence),
naming Lessor as an additional insured. All insurance shall be in a form and with a company
satisfactory to Lessor, and shall not be subject to cancellation without thirty-(30) day's prior
written notice to Lessor. Lessee shall deliver to Lessor insurance policies, or evidence of
insurance related thereto, meeting the above requirements. Proceeds of such insurance shall, at
Lessor's option, be applied either towards replacement, restoration or repair of the Equipment or
Lease Terra and Conditions,Rev 315109
towards payment of Lessee's obligations under the Lease. Lessor may require Lessee's insurance
carrier to be licensed to do business in the state where the Equipment is being leased.
(b) Should Lessee fail to provide satisfactory proof of Insurance prior to delivery of
Equipment or at any time during the Lease Term, Lessor shall have the right, but not the
obligation, to obtain such insurance and/or make such payments. In the event that Lessor
makes such payment(s), Lessee shall reimburse Lessor for such insurance as deemed appropriate
by Lessor and as invoiced by Lessor. In any event, Lessor will not and does not provide insurance
for any of Lessee's personal property that may be in or on any Equipment.
12 WAIVER AND INDEMNIFICATIOR
(a) Lessee hereby waives and releases all claims agalnst Lessor for (i) loss of or damage to
all property, goods, wares and merchandise in, upon or about the Equipment, (ii) injuries to
Lessee, Lessee's agents and third persons, and (iii) the use, misuse, or malfunction of any
security screens provided with the Equipment, in each case, irrespective of the cause of such
loss, damage or injury. Under no circumstances shall Lessor be liable to Lessee for any special,
Incidental or consequential damages of any kind (Including, but not limited to damages for loss of
use, or profit, by Lessee or for any collateral damages), whether or not caused by Lessor's
negligence or delay, resulting from the Lease or the manufacture, delivery, installation, removal
or use of the Equipment, or in connection with the services rendered by Lessor hereunder, even
if the Lessee has been advised of the possibility of such damages,
(b) Lessee agrees to indemnify and hold harmless Lessor from and against any and all
losses, liabilities, costs, expenses (including attorney fees), claims, actions, demands, fines,
forfeitures, seizures or penalties (collectively, "Claims' arising out of (i) the maintenance,
possession or use of the Equipment by Lessee, its employees, agents or any person invited,
suffered or permitted by Lessee to use or be In, on or about the Equipment, including to the
extent arising from Lessor's negligence, (ii) Lessee's failure to comply with any of the terms of
the Lease (including without limitation Sections 5(a)(ii) and 5(f)(i)of the Incorporated Provisions,
and Sections 6, 14 and 15 hereto), and (Iii) any theft or destruction of, or damage to, the
Equipment. If the foregoing obligations are not enforceable against Lessee under applicable law,
Lessee agrees to indemnify and hold harmless Lessor from and against any and all Claims to the
maximum extent permitted by applicable law. Lessee shall make all payments due under this
Section upon demand by Lessor.
13. EVENTS OF DEFAULT.
(a) Each of the following shall constitute an "Event of befault"; (1) default by Lessee in
making any required payment to Lessor and the continuance of such default for ten (10)
consecutive days; (2) any default or breach by Lessee of Section 7 (3) default by Lessee In the
performance of any obligation, covenant or liability contained In the Lease or any other
agreement or document with Lessor and the continuance of such default for ten (10) days after
written notice, thereof by Lessor to Lessee; (4) any warranty, representation or statement made
or furnished to Lessor by or on behalf of Lessee proves to have been false in any material respect
when made or furnished; (5) loss, theft, damage, destruction or the attempted sale or
encumbrance by Lessee of any of the Equipment, or any levy, seizure or attachment thereof or
thereon; or (6) Lessee's dissolution, termination of existence, discontinuance of business,
insolvency, or business failure; or the appointment of a receiver of any part of, the assignment
for the benefit of creditors by, or the commencement of any proceedings under any bankruptcy,
reorganization or arrangement laws by or against, Lessee. Lessee acknowledges that any Event
of Default will substantially impair the lease value hereof.
(b) REMEDIES OF LESSOR: Upon the occurrence of any Event of Default and any time
thereafter, Lessor may, without notice, exerdse one or more of the following remedies, as
Lessor, in its sole discretion shall elect: (1) declare all unpaid lease payments under the Lease to
Lease TemK and Condrions,Rev 3/5109
be immediately due and payable; (2) terminate the Lease as to any or all items of the
Equipment; (3) take possession of the Equipment wherever found, and for this purpose enter
upon any premises of Lessee and remove the Equipment, without any liability for suit, action or
other proceedings by Lessee; (4)direct Lessee at its expense to promptly prepare the Equipment
for pickup by Lessor; (5) use,hold, sell, lease or otherwise dispose of the Equipment or any item
thereof on the site specified on the applicable Agreement or any other location without affecting
the obligations of Lessee as provided in the Lease; (6) sell or lease the Equipment or any part
thereof by public or private sale or lease at such time or times and upon such terms as Lessor
may determine, free and dear of any rights of Lessee (if notice of sale is required by law, notice
In writing not less than ten (10) days prior to the date thereof shall constitute reasonable notice
to Lessee); (7) proceed by appropriate action either in law or in equity to enforce performance by
Lessee of the terms of the Lease or to recover damages for the breach hereof; (8) apply the
Security Deposit to payment of Lessor's costs, expenses and attorney fees in enforcing the terms
of the Lease and to indemnify Lessor against any damages sustained by Lessor (provided,
however, nothing herein shall be construed to mean that the recovery of damages by Lessor shall
be limited to the amount of the Security Deposit); (9) exercise any and all rights accruing to
Lessor under any applicable law upon an Event of Default. In addition, Lessor shall be entitled to
recover immediately as damages, and not as a penalty, a sum equal to the aggregate of the
following: 0 all unpaid payments as are due and payable for any items of Equipment up to the
date of repossession by Lessor; (i) any expenses paid or incurred by Lessor in connection with
the repossession, holding, repair and subsequent sale, lease or other disposition of the
Equipment, Including attorney's fees and other reasonable costs and expenses; (ii) an amount
equal to the excess of(a) all unpaid payments for any item of Equipment repossessed by Lessor
from the date thereof to the end of the term of the Lease over (b) the fair market lease value of
such item or Items of Equipment for such unexpired lease period (provided however, that the fair
market lease value shall be deemed to not exceed the proceeds of any sale of the Equipment or
lease thereof by Lessor for a period substantially similar to the unexpired lease period); and (Iv)
the replacement cost of any item of Equipment which Lessee fails to prepare for return to Lessor
as provided above or converts or is destroyed,or which Lessor is unable to repossess.
14. OWNERSHIP AND MARKING OF EQUIPMENT. Title to the Equipment shall remain
in Lessor (or its Principal), Excepting only as may be granted in a separate writing signed by
Lessor, no option or other right to purchase the Equipment is granted or implied by the Lease to
Lessee or any other person. The Equipment shall remain and be deemed to be personal property
of Lessor, whether attached to realty or not, and upon termination of the Lease or the
occurrence of an Event of Default Lessee shall have the duty and Lessor shall have the right to
remove the Equipment whether or not affixed to any realty or building without any liability to
Lessor for damage to the realty or building caused by the removal of the Equipment. Any
replacement, substitutes, accessories or parts, whether placed in or upon the Equipment or not,
whether made a component part thereof or not, shall be the property of Lessor and shall be
included under the terms of the Lease.
15. COMPLIANCE WITH LAW. Lessee assumes all responsibility for any and all licenses,
clearances, permits and other certificates as may be required for Lessees lawful operation, use,
possession and occupancy of the Equipment. Lessee agrees to fully comply with all laws, rules,
regulations and orders of all local, state and federal governmental authorities which in any way
relate to the Equipment. Lessee shall pay the cost of all license and registratlon fees and
renewals thereof,
16. GOVERNING LAW, Lessee and Lessor agree that the Lease shall be governed in all
respects by, and Interpreted in accordance with the laws of, the State of California, without
regard to its conflicts of laws provisions.
Lease Terms and Conditions,Rev 3/5/09
17. JURISDICTION.
(a) In any case where the Equipment is located in the State of Maryland or the State of
Virginia, it is agreed that the venue for a legal action relating to the Lease shall be proper if
brought In Alameda County, State of California. Subject to Section 17 the prevailing party shall
be entitled to recover reasonable attorneys' fees and court costs, whether or not the action
proceeds to judgment
(b) In all other cases, the Federal District Courts located within the State of California shall
have norrexcluslve jurisdiction over any lawsuit brought by Lessee or Lessor as a result of any
dispute regarding matters arising in connection with the Lease. Further, it is agreed that the
venue for a legal action relating to the Lease shall be proper if brought in Alameda County, State
of California. Subject to agCILgin 12, the prevailing party shall be entitled to recover reasonable
attorneys'fees and court costs, whether or not the action proceeds to judgment
18. MEDIATION;ARBITRATION. Lessee agrees to abide by Lessor's option (if Lessor shall
so choose) to have any claims, disputes, or controversies arising out of or in relation to the
performance, interpretation, application, or enforcement of the Lease, including but not limited to
breach thereof, referred to mediation before, and as a condition precedent to, the initiation of
any adjudicative action or proceeding, including arbitration. if mediation fails to resolve the
claims, disputes or controversies between Lessor and Lessee, Lessee agrees to abide by Lessor's
option (if Lessor shall so choose) to have the claims,disputes or controversies referred to binding
arbitration. The parties hereto acknowledge that the subject matter of the Lease Is a matter of
interstate commerce.
19. HAZARDOUS MATERIALS. Lessee agrees that no water, paint or chemicals, and no
illegal, hazardous, controlled, toxic, explosive, Flammable, restricted, contaminated or other
dangerous materials, shall be maintained or stored in or on the Equipment
20. MISCELLANEOUS. Time is of the essence of each and every provision of the Lease.
Failure of Lessor to enforce any term or condition of the Lease shall not constitute a waiver of
subsequent defaults by Lessee, nor shall it, in any manner, affect the rights of Lessor to enforce
any of the provisions hereunder. The invalidity or unenforceability of any provision of the Lease
shall not affect the validity or enforceability of any other provision,
21. ENTIRE AGREEMENT.The Lease constitutes the entire agreement between Lessor and
Lessee with respect to the subject matter hereof and, except for the Incorporated Provisions that
may be updated by Lessor from time to time In its sole discretion, may not be amended, altered
or modified except by a writing signed by both Lessor and Lessee.
Laase Terms and Conditions,Rev 3!5!09
PERSONAL GUARANTY
ADDENDUM TO MOBILE MODULAR MANAGEMENT CORPORATION AGREEMENT:
The undersigned,jointly and severally,guarantee performance of the above Lease or Sale Agreement by
Lessee/Buyer and payment of all sums due thereunder in event of default,hereby waiving any modification,
amendment or extension and notice thereof.
FOR: FOR:
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Lease Temcs and Conditions,Rev 315109