HomeMy WebLinkAboutPW Lease Agreement 2021DocuSign Envelope ID: OD6ABE5C-FO60-4BAC-9254-OF96C72B1BCE
:LJ ERN"0 I THE SMART CHOICE® AGREEMENT -LEASE
BUILDING SYSTEMS
LEASE AGREEMENT_ _
LESSOR: Modern Building Systems LESSEE: City of San Rafael
PO BOX 110 1400 5th Avenue
9493 Porter Road San Rafael, CA 94901
Aumsville, OR 97325 PO#t:
Sales Contact: April Palmer job*:
In consideration of the terms and conditions contained herein Lessor and Lessee agree as follows:
Lessee agrees to lease the Building (as defined below) from Lessor as of the 2021-08.19 for a minimum lease period of 6 months
in accordance with the terms and conditions attached hereto.
The "Building" is a 8x28 building, unit #608, serial #2002.KM.06-18, containing 224 square feet of space, to be provided by
Lessor as per the plans and specifications attached hereto as Exhibit A, which is incorporated herein by reference. The Building
shall be located at 1400 Fifth Street San Rafael, CA 94901.
Lessor will deliver and install the Building at the Location according to the Plans and Specifications. LESSOR MAKES NO
WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, CONCERNING THE BUILDING, INCLUDING, WITHOUT LIMITATION, ANY
WARRANTIES FOR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
For the minimum lease period, Lessee agrees to pay Lessor, by check at Lessor's office in Aumsville, Oregon, rent in the total
amount of $2.190.00, in monthly Installments of $365.00. Such monthly rent shall be paid by Lessee In advance on the 28th day
of each month. (This rent amount is subject to adjustment as provided herein.) Applicable state and local sales and use taxes and
other direct taxes (as provided in the Terms and Conditions) shall be due and payable to Lessor by Lessee monthly as invoiced.
In addition to rent, Lessee agrees to pay Lessor, by check at Lessor's office In Aumsville, Oregon, a delivery and installation fee of
$900.00 and a removal and return fee based upon the current rate at the actual time of Lease termination. The removal and
return fee shall be paid with the final rental payment, before removal of the Building. Lessor is not responsible for any site work,
excavation/backfill or utilities or their connections (e.g., power, water, sewer, telephone/data) at the Location, unless specifically
contracted herein to do so.
Lessee agrees to lease 2 set(s) of aluminium stairs for $0.00 per month. If the stairs are not returned to Lessor. Lessee will be
charged $800.00 per set, If the steps are returned damaged, Lessee will be charged accordingly for the repair or replacement.
The Building will be cleaned upon return to Lessor at Lessee's sale expense. The cieaning charge shall be Lessors actual expense
or $95.00 whichever is larger. Lessee shall be liable for any and all damage to the Building and Its accessories. If mechanical unit
remote (if applicable) is not returned with building, lessee will be charged $300.
If keys are not returned with the Building, Lessee will be charged $50.00.
- Stands - $ No Charge
Official Modem Building Systems, Inc. Document 0 2021 Initial 1/4
DocuSign Envelope ID: J�8D6ABE5C-FO60-4BAC-9254-OF96C72B1 BCE
��MRM JERNm I THE SMART CHOICE® AGREEMENT- LEASE
> SUILl7ING SYSTEMS
TERMS AND CONDITIONS
1. This transaction is a lease and not a sale. Lessee does not acquire any right, title or interest in the Building, except the right
to possess and use the Building under this Lease, so long as Lessee is not in default.
2. In addition to the payment of rent, Lessee shall pay Lessor for all sales and use taxes, other direct taxes and registration fees
imposed by federal, state or other taxing authorities and allocated by Lessor on either an individual or prorated basis for any
units of the Building.
3. Lessee will, at its sole cost, keep the Building at all times in good repair and operating condition and free of all liens and
encumbrances. Lessee shall replace all worn or broken parts with new parts acceptable to Lessor. Upon termination of this
Lease, Lessee will return the Building to Lessor in at least as good a condition and state of repair as delivered to Lessee,
ordinary wear and tear excepted. Until restoration or repairs have occurred to the satisfaction of Lessor, Lessee shall
continue to be liable for rent on any Building returned (a) with accessories, attachments or other items missing: (b) requiring
repairs of any kind or requiring restoration to original specifications; or; (c) with alterations or modifications performed by
Lessee. If Lessee does not make the required repairs or restoration, Lessor shall determine the amount due for them for
which Lessee shall be responsible and rent on the Building will continue to accrue until that amount is paid by Lessee.
4. If this Lease is for a custom Building that is ordered in accordance with Lessee's specifications and is not from Lessor's
current inventory, the rent commencement date shall be the date on which the Building is installed at the Location. If the
Installation is delayed by any act or omission of Lessee, rent payments shall commence once Lessee is notified of the
completion of the Building.
5. In the performance of its obligations, Lessor shall not be responsible for events beyond its reasonable control, including,
without limitation, delays or impossibility of manufacturing, delivery or installation due to fire, flood, windstorm, riot, civil
disobedience, strikes and acts of God.
6. Any damage claim of Lessee against Lessor arising out of or related to this Lease shall be limited to an amount not exceeding
the lesser of (a) the rent actually paid by Lessee or (b) six months of rent, whichever is less. In no event shall Lessor be
responsible for consequential damages, including, without limitation, loss of use or lost profits. These damage limitations
shall apply regardless of the nature of the claim, including without limitation, those based upon contract, tort (including
negligence), warranty or statute.
7. Lessee shall provide free and clear access for delivery and return of the Building by standard mobile transport vehicle.
Lessee shall provide firm and level ground or no more than a six-inch slope from one end to the other for safe and
unobstructed installation of the Building, The site selection is the sole responsibility of Lessee. Lessor shall have no
responsibility or liability for any inadequacy of the location, for the setup or use of the Building. Lessee is solely responsible
for obtaining any required permits for the installation and use of the Buliding at the Location.
8. Lessor may at any time following the expiration of the minimum lease period, request Lessee to return the Building to the
location designated by Lessor,
• If Lessee, without any further written agreement, shall continue to possess or occupy the Building beyond the minimum
lease period, Lessee shall then be deemed to have renewed this Lease on a month-to-month basis at the rental rate in
Lessor's monthly published lease rate(s) then in effect.
• If Lessor elects to terminate this Lease upon the expiration of the minimum lease period, rent shall continue until the
Building is returned to the location designated by Lessor and Lessee pays Lessor all unpaid rents and charges allocable
to the returned Building that have accrued as of the date the Building is returned.
9. Lessor shall not be liable for claims or damages of any kind whatsoever, whether to person or property, arising from or in any
way connected with the Building or Lessee's use thereof, and Lessee will indemnify, defend and hold Lessor harmless from
any and all such claims or damage arising therefrom.
10. Upon delivery of the Building to the Location, Lessee will assume the entire risk of loss to the Building until the Building is
returned to Lessor. Lessee represents that it is insured in all of its business activities and shall insure its interests in and
obligations with respect to the Building. The Building shall be covered by a standard, comprehensive property insurance
policy, covering the full replacement value of the Building with any insurance payment thereunder payable to Lessor. Lessee
shall be responsible for any deductible amounts. If Lessee fails to obtain or maintain such insurance at Lessee's cost, Lessor
may obtain such insurance, but Lessor shall not be obligated to do so. In the event of any damage to or loss or destruction of
the Building occurring subject to insurance, Lessor may, at its sole election, determine to repair or replace the Building.
• Lessee shall maintain a general liability insurance policy in the minimum policy amount of $1 million. Lessor shall be
named as an additional insured under the policy. Lessee shall be responsible for any deductible amounts.
o Before the installation of the Building, Lessee shall provide Lessor a certificate of insurance verifying that Lessee has
obtained the required insurance coverage.
11. The following shall constitute Events of Default:
• Lessee fails to pay any rent or any other amount herein provided within 10 days after the same is due and payable;
• Lessee fails to comply with any provisions of this Lease;
o Lessee abandons the Building;
o Lessee ceases doing business as a going concern; (e)
• Any proceeding in bankruptcy, receivership or insolvency is commenced by or against Lessee or Lessee's property, or if
Lessee makes an assignment for the benefit of creditors;
o Lessee makes any misrepresentation or false statement as to Lessee's credit or financial standing in connection with the
execution of this Lease;
• Lessee commits any act of assignment, including permitting any other entity or person to use the Building;
Ldl�
Official Modern Building Systems, Inc. Document Q 2021 _ Initial 7.14
DocuSign Envelope ID:8D6ABE5C-FO60-4BAC-9254-OF96C72B1BCE
,��Hl J I DIERN' I
THE SMART CSI OI CES AGREEMENT- LEASE
13U]LDING SYSTEMS
o Lessee makes a bulk transfer of its furniture, fixtures, furnishings or other Building inventory;
o Lessee breaches any of the terms of any loan or credit agreements, or defaults thereunder,
o If there is more than one lease existing between Lessor and Lessee, Lessee defaults under any other such lease.
12. Upon the occurrence of an Event of Default, and without prejudice to any other rights or remedies Lessor may have, Lessor
may exercise any one or more of the following remedies:
o Lessor may declare the entire amount of rent for the minimum lease period immediately due and payable without
further notice or demand to Lessee.
o Lessor may recover all rents and other amounts due as of the date of such default.
o Lessor and its agents may, without notice, liability or legal process, enter into any premises of or under control of
Lessee or any agent of Lessee where the Building and its accessories may be believed to be located and attempt to
repossess the Building, disconnecting and separating it from any other property and using all means necessary or
reasonable to take possession of the Building and its accessories. Lessee hereby waives any claim or cause of action of
any kind whatsoever against Lessor growing out of the removal, repossession or retention of the Building, including,
without limitation, claims for trespass or conversion.
o Lessor may obtain provisional process or injunctive relief to recover possession of the Building and Its accessories.
Lessee hereby waives any objection to such relief.
o Lessor may pursue any other remedy now or hereafter existing at law or in equity.
o All such remedies are cumulative, and may be exercised concurrently or separately.
13. Rents and charges not received by Lessor within 30 days of the invoice date shall accrue a late charge of (a) 11/2 percent
per month or (b) the maximum rate permitted by law, whichever is lower.
14. When the minimum term of this Lease exceeds 11 months, the rental charge shall be subject to adjustment, based upon the
All Items Consumer Price Index ("CPI") for the United States (United States Bureau of Labor Statistics, 1967 base period)
calculated as follows: For each change of one index point in the CPI, the rental rate shall be adjusted by a factor of 0.5
percent, Any adjustments shall take effect at the end of the sixth month following the commencement date of this Lease and
will be further adjusted each six months thereafter. Said adjustment will be based on the most recent CPI indices before the
invoicing of each rental charge.
15. Should the Lessee elect, for any reason, to terminate this Lease at any time before the end of the minimum lease period, the
entire unpaid balance of the rent due hereunder shall immediately become due and payable. Such termination shall become
effective only when the Building is returned in good condition to the location designated by Lessor and pays Lessor all unpaid
rents and charges allocable to the returned Building.
16. If Lessee has fulfilled all of its obligations under this Lease, Lessee has the option to extend this Lease in increments
matching original terms after the expiration of the initial term hereof. All of the terms and provisions of this Agreement shall
remain the same in the event of any such annual extension, except that the CPI adjustment described above shall be
applicable to the first months of the extension. Should Lessee wish to so extend this Lease, Lessee must give Lessor 30
days' written notice of such election before the expiration of the term hereof or before the expiration of any previously
extended term hereof. Lessee is responsible for giving Lessor at least 60 day written notice for building pick up prior to end
of the minimum lease period or lease extension period. Failure to do so may result in delay of building pick up. Lessor will not
be liable for any charges incurred during the delay period.
17. Lessee shall, at Lessee's sole cost, obtain any and all licenses, titles, permits and other certificates as may be required by law
or otherwise for Lessee's lawful operation, possession or occupancy of the Building. Lessee shall provide for all maintenance,
upkeep, repair, utilities and operational costs of any nature whatsoever pertaining to the Building in a careful manner so as
not to expose the Building to damage. All permits, certificates of title or registration applicable to the Building shall reflect
Lessor's ownership thereof.
18. Lessee shall not remove the Building from the Location without prior written approval from Lessor. Lessee shall notify Lessor
immediately of any attempted levy or seizure of the Building and shall Indemnify and hold Lessor harmless from and against
any loss or damage resulting therefrom. Lessor may inspect the Building from time to time. If Lessor believes the Building to
be overloaded beyond normal capacity or misused, abused or neglected, Lessor may summarily remove and repossess the
Building upon five days' prior written notice to Lessee. In that event, Lessee shall be liable for the total unpaid amount for
the minimum lease period.
19. If at any time Lessor retakes the Building and there is any other property owned by Lessee or in the custody or control of
Lessee attached to or contained within the Building, Lessor may take possession of such other property and hold the same
for Lessee either in Lessor's possession or, in the exercise of Lessor's sole discretion, In public storage for the account of and
at the sole expense of Lessee. In addition, Lessee shall indemnify, defend and hold Lessor harmless from and against any
claims relating to damage to the property of Lessee or any other persons suffered or sustained during repossession of the
Building by Lessor.
20. Lessee agrees that the Building will not be used for any residential purposes, Lessee shall not make or permit any unlawful
use or handling of the Building and shall not, without Lessor's prior written consent, make or permit any changes, alterations
or improvements in or to the Building or remove therefrom any parts, accessories or attachments.
21. This Lease may not be assigned by Lessee, nor may all or any part of the Building be sublet by Lessee without the prior
written consent of Lessor. Lessor may assign this Lease and the rent.
22. Any notice required or permitted to be given hereunder shall be in writing and shall be deemed properly given upon
delivering the same personally to an authorized representative of the party to be notified, or upon mailing such notice, by
registered or certified mail, return receipt requested, to the party to be notified, at its address hereinafter set forth, or at
such other address within the United States as the party to be notified may have designated prior thereto by written notice to
-Official Modem Building Systems. Inc. Document Q 2021 164 initial 3/4
DocuSign Envelope ID: 8D6ABE5C-FO6o-4BAC-9254
UDERN°° I THE SMART CHOICE" AGREEMENT- LEASE
BUIL13ING SYSTEMS
the other party.
23. Each person signing this Lease represents and warrants that such person has all requisite power and authority necessary to
execute this Lease and to perform the party's respective obligations hereunder and that this Lease is binding Upon and
enforceable against the party represented by that person. This Lease shall inure to the benefit of and shall be Minding upon
the respective successors In interest and permitted assigns of the parties hereto.
24. Lessee's obligations set forth herein shall survive the termination of this Lease.
25. This Lease contains the entire agreement and understanding between the parties and supersedes and replaces all prior or
contemporaneous communications, understandings or agreements, whether verbal or written.
26. This Lease shall be governed by and construed in accordance with the laws of the state of Oregon. The exclusive venue for
any dispute arising out of or related to this Lease shall be the Circuit Court of the State of Oregon in Marion or Multnomah
County, at Lessor's option. However, nothing in this provision shall prevent Lessor from seeking equitable relief in any court
with jurisdiction.
27. In the event of any dispute or claims arising out of or related to this Lease, the prevailing party shall be entitled to recover all
litigation costs, including, without limitation, attorney fees and costs incurred at trial, on appeal, on review or in any
bankruptcy proceeding.
28. All ideas, designs, arrangements, and plans indicated, represented or produced by Modern Building Systems Inc., are owned
by, and the property of Modern Building Systems Inc. None of such ideas, designs, arrangements, or plans shall be used by
any other person without prior written permission of Modern Building Systems Inc.
NOTESISPECIAL TERMS
The terms of this Lease Agreement ("Lease") shall not be affected by the terms of any Lessee purchase order, all of
whose terms are rejected.
8/17/2021
Signed by duly authorized agents this
Lessor: Modern Bullding systems, Inc. Lessee: City of San Rafael
P.O. Box 110 / 9493 Porter Rd, Aumsville, OR 97325 1400 5th Avenue San Rafael, CA 94901
104m-
Kenneth
D. Mero, Vice President of Sales
M AlLAA.
7 uerlPu I i c works
Name
Title
f9t!;
official Modern Building Systems, Inc. Document 0 2021 initial 4/4