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HomeMy WebLinkAboutReso 155-10 Emerald Glen Mod BuildgsRESOLUTION NO. 155 - 10 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN **********~ AUTHORIZING THE CITY MANAGER TO EXECUTE A PURCHASE AGREEMENT FOR THE EMERALD GLEN ACTIVITY CENTER WHEREAS, the City Council of the City of Dublin (the "City") adopted Resolution No. 152-04 authorizing the City Manager to negotiate and execute a lease agreement for two modular buildings at Emerald Glen Park to serve as interim community facilities during the reconstruction of the Shannon Community Center; and WHEREAS, the construction of the new Shannon Community Center was completed in February 2009; and WHEREAS, on March 17, 2009 the City Council directed Staff to discontinue the lease of one of the modular buildings and continue the lease of the remaining building for preschool programs; and WHEREAS, the preschool programs have been at capacity with lengthy waiting lists for over a year and there is sufficient demand to continue the operation of the modular building on a permanent basis. NOW, THEREFORE, the City Council of the City of Dublin does RESOLVE to authorize the City Manager to execute the purchase agreement attached as Exhibit A to this Resolution for an amount not to exceed $67,477.49. PASSED, APPROVED AND ADOPTED this 19th day of October, 2010, by the following vote: AYES: NOES: ABSENT: ABSTAIN Councilmembers Biddle, Hart, Hildenbrand, Scholz, and Mayor Sbranti None None None / " ~ ~J,~ - Mayor ATTEST: `~ ~GP • City Clerk Reso No. 155-10, Adopted 10-19-10, Item 4.4 ~ Mobile Modular Management Corporation ~-- . 5700 Las Positas Road Agreement rn~}~~~~ Livermore, CA 94551 Contract: 2100Q3500.1 ~Q~~~~~-; Phone: (925) 606-9000 Fax: (925) 453-3201 Date Printed: 10/05/2010 yy~,~_~r~~ www.MobileModularRents.com . . . .. • .. . Customer Informat on: Site Informatioo: City of Dublin City of Dublin Questions? Civic Center 4201 Central Park Way 1U0 Civic Plaza Dublin, CA 94568 Please Coniact: Open - Livermore publin, CA 94568 Customer PO/Reference: ~~~ct Phone: (925} 606-9000 Ali other inquiries: (925) 606-9000 Exp: ll By: Office, 36x62 HCD (NonStd) 1 $59,847.00 $59,847.a0 Y Non-Standard Confrguration. Size excludes 3' fowbar. Purchase of 8uilding 1D 45425 Qty Charge Each Total One Time Taxable I ~e~ , .~~- Office, 36x62 HCD (NonStd) Fee, License or Registration for Sale $1,795.41 $1,795.41 N _~~CC~ T~~ $5,835.08 ~ . . . ~ •• .- . pecial Terms & Imlaortant Cantractuaf Informati~ • Prices will be adjusted for unknown circumstances, e.g. driver wai#ing time, pilot car requirements, special transport permits, difficult site, increase in fuel price, etc. Customer's site must be dry, compacted, level and accessible by normal truck delivery_ Unless noted, prices do not inc(ude permits, ramps, stairs, seismic foundation systems, iemporary power, skirting, engineering, taxes or utilities or related installation of same. • This transaction is subject to credit approval. Security deposit or paymen# in advance may be required. Security deposit will be applied against account balance at the end of the contract. • Contract subject to terms & conditions attached and made a part of this agreement by reference herein. Customer acknowledges that helshe has received and read and affirms that he/she is duly auth~rized to execute and commit to fhis agreement for the above named customer. 210~03500, Printed: 16-OS2010 03:39PM Thank yvu for contacting Mobile Modular. „___ ,_, , Mobile Modular Mana ement Cor oration L • 5700 Las Posrtas Road ~ . ~ g p Agreement f r\ ~~ m~~~~~ L i v e r m o r e, C A 9 4 551 Contract: 210003500_1 m~~(~~~~'' Phone: {925} 6Q6-9000 Fax: (925) 453-3201 Date Printed: 10/05/2010 y~u,~. ~~,,,,,,~„~ www.MobileModularRents.com The Suppiementa! Sale Terms and Conditions and Additional Advisory Inforrnation provisions are hereby incorporated by r~efererx:e in their entirety, as updated from time to time by 5eller, in its sofe discretion, and can be reviewed in the e-Cus#omer Services section of the Selle~r's web site at [http://www.MobileModularRents.com/ContractTerms). The Buyer hereby confirms that he/she has read in its entirety and understands the Supplemental Sale Terms and Conditions and Additional Advisory fnformation. Please sign below, and fax or email thls document to the fax number shown above or the email address you received the document from. • The parties hereto, MOBILE MODULAR MANAGEMENT CORPORATION, a Califomia corporation, as seller (the "Seller") and buyer ("Buyer", as described above in the section titled "Customer Information") hereby agree to this Sale Agreement and the terms and conditions set forth in the Sale Agreement Terms and Conditions, attached herefo as Attachment A, which are hereby incorporated by reference. The individual signing this Sale Agreement affirms that he/she is duly authorized to execute and commit to this Sale Agreement for the above named Buyer. SELLER: ~ BU~~_ Mobife Modular Management Corporation City of Dublin By Name: Title: Date: Name: Title: Date: By: ATTACHMENTI~ SALE AGREEMENT TERMS AND CONDITIONS 1. SALE. 5eller sells to Buyer, and Buyer purchases from Seller, the equipment listed on each Sale Agreement hereto ("EquipmenY') on thEr terms and conditions set forth herein. Each such Sale Agreement, and the sale provisions on the Seller's website at. Ihttp:l/www.MobileModularRenfs.coMContractTerms] (fhe "Incorporatsd Provisions"), to the extent incorporated by reference into such Sale Agreement, together with these Sale Agreement Terms and Conditions, fo the extent incorporated by reference into such Sale Agreement, shalt constitute a separate and independent sale agreement (a "Sale Agreement"} of the Equipment listed in such Agreement under "Product Information". 2. TIME PAYMEtVT; TITLE RETENTIQN. (a) PURCHASE PRICE. The aggregate amount of the purchase price (the "Purchase Price") is set forth on the Sale Agreement. Buyer agrees to pay Seller twenty five percent (25%) of the Purchase Price on the da#e hereof; sixty five percent (65%} two days before the Equipment is scheduled to be delivered to the Site; and the remaining ten percent (10%) wiihin thiriy (30) days ot substantial completion (substan6al completion does not incfude punch list items}, ln addition fo the Purchase Price, buyer shall pay such charges as are atiributable to circumstances related to #he delivery, drop-off and relocation of Equipment. If any payment under the 5ale Agreemenf is not made on the date when due and payable (including without limitation pursuant to this Section or as indicated on the Sale Agreement), Buyer shalt pay 5eller interest, at the rate of eighteen percent (18%) per annum (or at the maximum rate permitted by applicable law), on the amount of such overdue payment, until received. (b) TtTLE/RETENTfON. Title to #he Equipment shall not pass to Buyer before the entire Purchase Price has been paid to Seller. Upon Selier's receipt of payment in ful! of the Purchase Price, title to the Equipment shaN transfer to Buyer, free and clear of all encumbrances arising by or through Setler. All payments due ~rom Buyer pursuant to the terms of the Sale Agreement shall be made without any abatement or set off oi any kind, arising from any cause. 3. TIME AND PLACE OF DELIVERY. Seller agrees to deliver the Equipment to the site location listed on the Sale Agreement (the "Site"). Tires used to deliver the Equipment will be removed and retumed to Seller. Buyer warrants that the Site wil! have: safe access free from encumbrances, a level pad with n~ more than 3 inches of variance in 30 feet, and adequate soil bearing pressure of not less than '! 500 psf. Followinc~ delivery, Seller will remove ail Seller-owned equipment such as pfywood, tools, etc. prior to or at the #ime of build+ng acceptance. Buyer is responsible for all necessary permits, utility hookups, pilot cars, and Site preparation. 4. INSPECTION AND ACCEPTANCE. Following delivery and setup of the Equipment, Buyer shaH inspect the Equipment within forty eight (48) hours of substaniial completion and provide immediate written notice to Seller specifying defects, if any, which Buyer observes. If Buyer fails to provide such notice within four (4) days following substantiaf completion of the project, it shall be conclusively presumed between 210003500, Prinled: 10.05-2010 03:39PM Thank vou for ronta.~tin.. iu..tiu,. ..~~...__ Mobile Moduiar Management Corporation "~• 57Q0 Las Positas Road Agreement ~~~~~~ Liverrnore, CA 94551 Contraci: 210003500.1 ~~~~~~~ Phone: (925) 606-9000 Fax: (925} 453-3201 Date Pnnted: 1Q/05/201Q yov,~o~re-a,,,c~m,;~„t www•MobileModularRents.com Buyer and Seller that Buyer has inspected the Equipment and that all Equipment is in conformance wdh the Sale Agreement and has been accepted by Buyer. 5. BUYER AGREEMENtS. Buyer agrees that Seller may insert in the Sale Agreement the serial number and other identification data relating to the Equipment when ascertained by Seller. 6. tNSURANCE. Buyer shall provide, rrtaintain, and pay all premiums for insurance covering the loss, theft, destruction, or damage to the Equipment in an amaunt not less than the full replacement value. This coverage will extend to all property of Seller iocated at the delivery site during the installation.. Further, until title to the Equipment has transierred to Buyer pursuant to Section 2(bl. Buyer will name Seller as loss payee of the proceeds. Upon receipt of the proceeds of any insurance, Seller wilf refund to Buyer any amounts in excess of the bala~ce due Seller by the Buyer in fulfilling the obligations specified herein. Notwithstanding the above, Buyer shall also provide, maintain, and pay all premiums for pubiic liability insurance in the amount of $1,00O,OOU.00 (one million dollars) and name Seller as an additional insured. Afl insurance shalf be in a foRn and with a company satisfactory to Seller and insurance carrier is licensed to do business in the state where the Equipment is being sold, and shall not be subject to cance(lation without tfiirty (30) days prior writien notice to Seller. Suyer shall deliver to Seller insurance polices, or evidence of insurance proving the existence of polieies meeting the above requirements, upon execution of the Sale Agreement. Buyer's obligation to provide said insurance will cease once tiUe to the Equipment has transferred to Buyer pursuant to Section 4 7. WAIVER AND INDEMNIFICATIDN_ (a) Buyer hereby waives and releases all claims against Seller for (i) loss of or damage to all property, goods, wares and merchandise in, up~n or aboui the Equipment and (ii} injuries to Buyer, Buyer's agents and third persons. SeHer shall not be liable for any conseguential, incidental, or special damages of any kind {including, but not limited to damages for loss of use or of profit by Buyer or any other party; or for any collateral damages), whether or not caused or continued by Seller's negligence or delay, which may result from or arise in connection with the manufacture, delivery, installation, checkout or use of the Equipment or in connection with the services rendered by Sellsr hereunder. (b) Buyer shall indemnify and hold Seller (and its agents and employees) harmless from and against any and a!I claims, actions or proceedings and any and alf damages, liabilities, losses, costs and expenses (incfuding attomey fees) arising out of or in connection with the Sale Agreement, including all damages, liabilities, losses, costs and expenses arising from Selter's negligence. If the foregoing obligation is not enforceabls against Buyer under applicable law, Buyer agrees to indemnify and hold Seller harmless trom damages, liabilities, losses, costs and expenses to the maximum extent permitted by applicable law. 8. 7ERMINATtON FOLLOWING BREACH. In the event (a) of bankruptcy or insolvency ot Buyer, or in the eveni any proceeding is brought by or against Buyer volunfarily or involuntarity, under the provisions ot Ehe Bankruptcy Code of the United States, for the appointment of a receiver or trustee or any assignment for the benefit of creditors of Buyer, or (b) that 8uyer fails to make timely payments, or perform any of its other obligations, under the Sale Agreement, and such failure or defauft is not cured wilhin ten (10) days after written notice of such failure or default is provided by Seller, the Sale Agreement automatically shall be terminated in the case of any evenf described in clause (a) above anci may be terminated by Seller in ihe case of any event described in clause (b} above and, upon such fermination, fuli payment pursuanf to the terms of the Sale Agreement shall become immediately due and payable from Buyer. tn the event of any such breach or termination, Seller shall have all rights provided by law and under the terms and conditions o# the Sale Agreement, including but not limiied to: repossession and disposal of the Equipment (and, if any personal property shall remain located in the Equipment at such time, Buyer consents to Sellers possession and disposal or destruction of such personal property without notice or accounting to Buyer) and recovery of attome~s fees and other reasonable costs and expenses associated with any breach or termination {including any such disposal or destruction), shall be reimbursed by Buyer on demand of Seller. 9. GOVERNING LAW. Buyer and Sellsr agree that the Safe Agreement shall be govemed In all respects by, and interpreted in accordance with the Iaws of, the State of California, without regard to its conflicts of (aws provisions. 10. JURISDICTION. (a) If the law of the 5tate of Maryland or Virginia shall apply to the Sale Agreement, it is agreed that the venue for a legal action relating to the Sale Agreement shall be proper if brought in Alameda County, State af Califomia. Subject to e'o , the prevailing party shall be entitled to recover reasonable attomeys' fees and court costs, whether or nof the action proceeds to judgment. (b) If fhe law of any Sfate other than Maryland shall apply to the Sale Agreement, the Federal District Courts located within the State of Califomia shall have non-exclusive jurisdiction over any lawsuit brought by Buyer or Seller as a result of any dispute regarding matters arising in connection with ihe Sale Agreement. Further, it is agreed that the venue for a fegal action relating to the Sale Agreement shall be proper if broughf in Afameda County, 5tate ot California. Subject to ecti 7, the prevailing party shal{ be entitled to recover reasonable attomeys' fees and court ~osts, whether or not the acfion proceeds to judgmeni. 11. SELLER'S EXPENSES Buyer shall Pay Seller al! costs and expenses, including attorney fees, incurred by Seller in exercising any of the terms, conditions or provisions of the Sale Agreement. 12. LICENSE ANb TRAMSFER FEE(S). If so listed on the Sale Agreement, the Purchase Price includes license and/or transfer fees. Buyer wiU be billed directly by the State for future annual license fees. 13. MISCELlANE~US_ (a) BUYER SOLVENCY. Buyer hereby represents and warrants that the tair value of the assets of Buyer exceed its liabilities; Buyer is able to pay its debts and lia~ilities as they become due; and Buyer does noi have an unreasonably small amount of capital with which to conduct the business in which it is engaged, as such business is now conducted and is pr~posed to be conducted. 21000~SD0, Printed: 10-OS-2010 0339PM Thank you tor contacting Mobile Modular. „_ ~._ ~ 1 Mobile Modular Management Corporation '~ 5700 Las Positas Roaci Agreement ~~~~~~ Livermore, CA 94551 Cont~act: 210003500.1 t m~}~~~a~' q Phone: (925) 60fi-900Q Fax: (925) 453-3201 Date Printed: 10/0512010 ~~_~~~ www.MobileModularRents.com (b} MODlFICATIONS AND AMENDMENTS_ Represenfations and warranties made by any person, including agenls and representatives of Seller, which are inconsistent or conflict with the terms of the warranty contained in Section 1 of the Incorporated Provisions on the website (including but not iimited to the liability of Seller as set forth above) shal! not be binding upon Seller unless reduced to writing and approved by an officer of Seller. No amendment, supplsment or modification to the terms of the Sale Agreeme~t shall be valid unless made in a writing signed by both parties hereto, and no waiver of any provision of the Sale Agreement shall be valid unless made in a writing signed by the waiving party. Notwithstanding the foregoing, from time to time, Buyer or Sefler may request modifications to the scope of work hereunder, which at the sole option of the Seller may be accepted and thus alter the final price stipulated herein. These changes in scope will be deemed approved by Buyer when evidence of work performance is presented by Sefler. (c) NO WAIVER. Failure of Seller to enforce any term or condition of the Sale Agreement shall not constitute waiver of any rights stipufated herein, nor shall it in any manner affect the rights of SeUer to enforce any of the provisions stated herein. Waiver by Setlsr of any provision of the Sale Agreement shall be vafid only as provided in subsection (b) above and onfy with respect to the specific matter to which such waiver relates. (d) If the law of tf-e Scate of North Carolina sha11 apply to the Sale Agreement, the Sale Agreerr~ent does not constitute a'construction contract" or otherwise relate to the improvement of rea~ estate or the design, planning, construction, alteration, repair or maintenance of a building, sbucture or appurtenance. 14. ENTIRE AGREEMENT. The Sale Agreement constifutes the entire agreement between Seller and Buyer regarding the subject matter hereof. If any part of the Sale Agreement is Found to be invalid or illegal, Buyer and Seller agree that only the invalid or illegai portion of the Sale Agreement will be eliminated. Sale Terms and Conditions, Rev. 10/1l08 210003500, P~inted: 10-OS-201D 03:39f'M Thank vou for contactinn Mnhi~a M~,.i~~i~.