Equipment Rental Terms and Conditions Rider
The following amends that certain bid dated as of October 17, 2013 ("Agreement") between SCREEN GEMS PRODUCTIONS, INC. (“Company”) and EXTREME PERFORMANCE, INC. (d/b/a MIKE RYAN MOTORSPORTS) ("Lessor") in connection with Company’s use of Lessor’s property ("Equipment") and Lessor’s provision of services (“Services”) for the theatrical motion picture currently entitled “BEST MAN, INC.” ("Picture"). Paragraph references, as applicable, are to the paragraphs set forth in the Agreement, and all defined terms used herein are as defined in said Agreement.
The following paragraphs are added and incorporated into the Agreement (“Rider”):
1. Indemnification. Company shall indemnify and hold harmless Lessor, Lessor's parent company and/or subsidiaries of Lessor ("Lessor Indemnitees") from any and all costs and/or expenses (including reasonable outside attorney's fees) arising from any claim of injury or property damage incurred by any third person or Lessor as a direct result of Company's negligence regarding the use of the Lessor's equipment ("Equipment") or any of Company's equipment that may be attached to the Equipment by Company. If any of the Lessor Indemnitees claim damage to the Equipment, Lessor shall submit to Company in writing no later than five (5) days following the return of the Equipment to Lessor a detailed listing of all claimed damage thereto and Lessor shall permit Company to inspect the Equipment.
Lessor shall indemnify and hold harmless Company, its parent(s), subsidiaries, licensees, successors, related & affiliated companies and their officers, directors, employees, agents, representatives and assigns ("Company Indemnitees") from any and all costs and/or expenses (including reasonable outside attorney's fees) arising from any claim of injury or property damage incurred by any third person or Company as a direct or indirect result of Lessor's negligence or willful misconduct or breach of its obligations hereunder .
2. Assumption of Risk. From the time the Equipment is in the care, custody & control of Company, until the Equipment is returned to Lessor during normal business hours, Company assumes all risks of loss and responsibility for any damage Company causes to the Equipment through its sole negligence including but not limited to all risks and losses while in transit, while at locations, while in storage (excluding storage at Lessor's premises) and while on Company's premises, reasonable wear and tear excepted.
3. Use of Equipment. Company and Lessor will take reasonable precautions in regard to the use of the Equipment to protect all persons and property from injury or damage. The Equipment shall be used only by Company's employees, Lessor's employees or their respective agents qualified to use such Equipment.
4. Sublease. Company warrants that it will not sublease any of the Equipment without prior written consent from Lessor.
5. Warranty. Lessor represents and warrants that the Equipment is certified and complies with all applicable local, state, federal (and/or provincial) regulations; is in good repair and working order, and to the best of Lessor's knowledge, the Equipment has no defects; and that Lessor is the owner of the Equipment. Lessor will indemnify Company for any breach of the foregoing representations and warranties. Company acknowledges that the Equipment is leased without warranty or guarantee except as required by law and as described herein.
6. Malfunctioning Equipment. If any of the Equipment rented under the Rental Agreement should become inoperable or fail to function in the manner for which it was designed ("Malfunctioning Equipment"), Company shall promptly notify Lessor. If Company requires, Lessor shall either repair the Equipment or agrees to replace said Malfunctioning Equipment with operable replacement Equipment ("Replacement Equipment") of at least equal quality and capability as shortly thereafter as may be reasonably commercially possible. Provided the Malfunctioning Equipment's failure to perform is not the result of Company's sole negligence, there shall be no additional charge for the Replacement Equipment. If Lessor is unable to provide Replacement Equipment or repair the Malfunctioning Equipment within twenty-four (24) hours from notice by Company, then Company shall have the option, at Company's discretion, to: (a) accept Replacement Equipment of lesser quality at a reduced rate for the remainder of the rental period; (b) terminate the rental of the Malfunctioning Equipment, while continuing the rental of other functioning equipment, and receive a reduced rental rate reflecting the loss of the Malfunctioning Equipment; or (c) terminate the Rental Agreement in its entirety and return all Equipment rented hereunder. If the Rental Agreement is terminated, then all rental charges shall cease on the date of Lessor's receipt of the Malfunctioning Equipment and/or any other rental Equipment pursuant to the Rental Agreement at Lessor's facilities, and Lessor shall refund the pro-rated portion of the rental fee already paid to which Company is entitled. If any rental charges are due as of the date of termination, Company shall pay same within ten (10) days from the date upon which the Rental Agreement was terminated.
7. Insurance. Lessor (or, if applicable, its payroll services company in the case of worker’s compensation insurance) shall maintain, at its own cost and expense, at all times during the term of this agreement, the insurance set forth in Exhibit “A,” attached hereto and hereby incorporated by reference. Prior to rendering Services hereunder, Lessor shall provide a certificate of insurance and policy endorsements to Company in accordance with Exhibit “A”.
8. Repair and Replacement. Company shall be responsible to Lessor for the lesser of reasonable replacement costs, or reasonable repair costs of all Equipment which is lost, stolen, or damaged while in the care, custody and control of Company as a result of Company's sole negligence in accordance with paragraph 2 above, reasonable wear and tear excepted, using the Actual Cash Value of the Equipment at the time of such loss. Prior to repairing the Equipment, Lessor shall submit to Company at least three estimates, including at least one estimate from a repair facility designated by Company. In the event the Equipment is lost or stolen, Company shall file a police report.
9. Late Fees / Security Deposit. Late fees and/or interest on late payments shall not accrue until the applicable payment is overdue at least thirty (30) days. If Company gives Lessor a security deposit in connection with the Equipment, Lessor shall, prior to making any deductions from such deposit, submit to Company in writing a list of the reasons for and amounts of the intended deductions, and afford Company the opportunity to cure any default under the Agreement and repair damaged Equipment, if any.
10. Photography/Sound Recording Rights. If applicable, all rights of every kind in and to all photographs and sound recordings made hereunder (including, but not limited to, the right to exhibit any and all scenes photographed or recorded in connection with the Equipment throughout the world in perpetuity) shall be and remain vested in Company, its successors, assigns and licensees, and neither Lessor nor any other party now or hereafter having an interest in the Equipment, shall have any right of action against Company or any other party arising out of any use of said photographs and/or sound recordings whether or not such use is, or may be claimed to be defamatory, untrue, or censurable in nature and Lessor or any other party now or hereafter having an interest in the Equipment, hereby waives any and all rights of privacy, publicity, or any other rights of a similar nature in connection with the exploitation of any such photography or sound recordings. In the event of any dispute in connection with Company’s use of the Equipment and/or this Agreement, Lessor’s remedies shall be limited to an action at arbitration, and in no event shall Lessor have the right to enjoin, restrain or otherwise impair the production, distribution, marketing, exhibition and/or exploitation of the Picture.
11. Miscellaneous. This Rental Agreement contains the full and complete understanding between the parties and supercedes all prior agreements and understandings pertaining to the subject matter hereof and cannot be modified except in writing signed by both parties. Lessor agrees, represents, and warrants that its sole and exclusive remedy for Company's breach of this agreement shall be through an action at law for monetary damages, if any. Lessor irrevocably waives any right to rescission, equitable, or injunctive relief for any claim, loss, or cost of any kind arising through or in connection with this agreement or the subject matter hereof.
12. Qualified Operator/Local 80: Lessor acknowledges that any persons provided to Company by Lessor hereunder to provide Services are authorized, qualified and trained, and that they are familiar with and will abide by any and all governmental regulations that are applicable to ramp operation and/or any Services provided hereunder. These rules and regulations include, but are not limited to, requirements set forth by local, state, federal (and/or provincial) regulatory agencies. Lessor represents and warrants that any persons provided to Company hereunder shall be eligible for employment under any collective bargaining agreement that covers the Services. Persons provided to Company by Lessor hereunder to provide Services shall be payrolled through Company’s payroll services company.
13. Entire Agreement, Severability: This Rental Agreement embodies the entire agreement of the parties. It may not be modified or terminated except as provided herein or by other written agreement of the parties. If any provision herein is declared invalid, it shall be considered deleted from this Lease and shall not invalidate the remaining portions hereof.
14. Arbitration. The parties agree that any and all disputes or controversies of any nature between them arising in connection with the Picture and/or this Agreement shall be determined by binding arbitration in accordance with the rules of JAMS (or, with the agreement of the parties, ADR Services) before a single neutral arbitrator ("Arbitrator") mutually agreed upon by the parties. If the parties are unable to agree on an Arbitrator, the Arbitrator shall be appointed by the arbitration service. The Arbitrator's decision shall be final and binding as to all matters of substance and procedure, and may be enforced by a petition to the Superior Court, which may be made ex parte, for confirmation and enforcement of the award. Prior to the appointment of the Arbitrator or, in the case or remedies beyond the jurisdiction of an arbitrator, at any time, either party may seek pendente lite without thereby waiving its right to arbitration of the dispute or controversy under this section. All arbitration proceedings shall be closed to the public and confidential and all records relating thereto shall be permanently sealed, except as necessary to obtain court confirmation of the arbitration award.
15. Rider Governs. To the extent that any provisions in this Rider are inconsistent with any provisions in the Agreement, the provisions of this Rider shall govern and supersede such provisions.
ACCEPTED AND AGREED TO:COMPANY
SCREEN GEMS PRODUCTIONS, INC.
By:
Its: / LESSOR
EXTREME PERFORMANCE, INC.
By:
Its:
Exhibit A
INSURANCE REQUIREMENTS
A Certificate of Insurance is to be sent to the Risk Management Department of Screen Gems Productions, Inc. reflecting the following insurance coverage:
Commercial General Liability - $1,000,000. per occurrence
$1,000,000. aggregate
Automobile Liability - $1,000,000. CSL
Automobile Physical Damage
**Statutory Workers' Compensation
**Employer's Liability - $1,000,000.
“All Risk” Property and/or Miscellaneous Equipment coverage on all property rented/leased or owned for replacement cost value
**Worker’s Compensation coverage should include a Waiver of Subrogation endorsement in favor of Screen Gems Productions, Inc., its parent(s), subsidiaries, successors, licensees, related & affiliated companies, their officers, directors, employees, agents, representatives & assigns
A Thirty (30) Day written notice of cancellation, non-renewal or material reduction in coverage
The insurance carriers must be licensed in the state of California & have an A.M. Best Guide Ratingof at least A:VII
CERTIFICATE HOLDER:
Screen Gems Productions, Inc.
10202 W. Washington Blvd., Culver City, CA 90232
Attn: Risk Management
** Not required if Contractors payrolled by Screen Gems Productions, Inc.’s payroll services company
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