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HomeMy WebLinkAbout2014 CON CDC HA - Paradise Creek Housig Partners - License AgreementLICENSE AGREEMENT THIS LICENSE AGREEMENT ("Agreement") is made as of the 29th day of July, 2014, by and between the Community Development Commission -Housing Authority of the City of National City ("Licensor"), and PARADISE CREEK HOUSING PARTNERS, L.P., a California limited partnership ("Licensee"). RECITALS A. Licensor is the fee owner of certain real property located in the City of National City, County of San Diego, State of California, consisting of two parcels of property that are described on Exhibit A, attached hereto and made a part hereof (the "Phase I Property and Phase II Property, respectively"). The Phase I Property and Phase II Property may be referred to collectively herein as the "Licensor Property." B. Licensee and the Community Development Commission of the City of National City have entered into that certain Disposition and Development Agreement dated June 21, 2011 (the "DDA"), that contemplates, among other things, the ground lease of the Phase I Property and the Phase II Property (each, a "Ground Lease") and the development of affordable housing thereon by Licensee. C. Licensee desires to enter the Phase I Property and the Phase II Property prior to the execution of a Ground Lease relating to such properties by the parties for the purposes indicated in this Agreement and Licensor desires to grant such right of entry, at no charge to Licensee, subject to the terms and provisions of this Agreement. TERMS AND CONDITIONS NOW, THEREFORE, the parties hereto agree as follows: 1. (a) Phase I Property. Licensee, its contractors, subcontractors, employees and agents may enter upon the Phase I Property for the following purposes: (i) Storage of materials and construction equipment associated with the predevelopment of the Phase I Property; (ii) Testing, surcharging and soil compaction of the Phase I Property; and (iii) Hauling and export of surplus soils and materials (if necessary). (b) Phase II Property. Licensee, its contractors, subcontractors, employees and agents may enter upon the Phase II Property for the following purposes: 1 National City — Phase I and II - License (i) Storage of any surplus soil from the Phase I Property and testing, surcharging and compacting the Phase II Property; (ii) Storage of material and construction equipment associated with the predevelopment of the Phase I Property and Phase II Property; and (iii) Hauling and export of surplus soils and materials (if necessary). (c) The activities described in (a) and (b) above are referred to as the "Licensee Activities". The permission to enter upon and use the Phase I Property and Phase II Property granted herein shall include uses incidental to or associated with the Licensee Activities. 2. The term of this Agreement shall be for an initial period of eighteen (18) months from the date of this Agreement, but may be extended by Licensor until the Licensee Activities have been completed. Any request for an extension shall be in writing and shall be delivered by Licensee to Licensor and Licensor shall respond in writing to Licensee within five (5) days of receipt of the request. In any event, the term with respect to the Phase I Property and Phase II Property shall be terminated upon the execution of a Ground Lease with respect to each such Property (for the sake of clarity, if a Ground Lease is executed for the Phase I Property, this Agreement will continue in effect on the Phase II Property for the remainder of the term or until the execution of a Ground Lease for the Phase II Property, whichever first occurs). 3. Prior to entry upon either the Phase I Property or the Phase II Property, Licensee shall obtain and maintain policies of insurance in the types and amounts required under Section 9.3 of the Ground Lease attached to the DDA as Exhibit I and comply with the other requirements set forth in Section 9 of such Ground Lease, including without limitation providing additional insured endorsements and certificates of insurance as applicable. 4. Licensee shall obtain at its sole cost and expense all governmental permits and authorizations of whatever nature required by any and all governmental agencies (including, without limitation, the City of National City) for Licensee's permitted use of the Licensor Property. While on the Licensor Property, Licensee will comply, and will cause all of its contractors, subcontractors and other representatives on the Licensor Property to comply, with all applicable governmental laws and regulations. 5. Except as permitted by the terms of this Agreement, Licensee shall not alter, damage or commit any kind of waste upon the Licensor Property or any improvement, equipment or personal property thereon and shall not unduly interfere in any manner with any operations or activities of Licensor or his tenants. 6. Licensee shall not suffer or permit to be enforced against the Licensor Property, or any part thereof, any mechanics', materialmen's, contractors' or subcontractors' liens or any claim for damage arising from the work of any construction, excavation, or restoration, performed by Licensee or its representatives, but Licensee shall pay or cause to be paid all of said liens, claims or demands before any action is brought to enforce the same against the Licensor Property. Licensee expressly agrees to indemnify, defend (with counsel reasonably satisfactory to Licensor) and hold Licensor and the Licensor Property free and harmless from all 2 National City — Phase I and II - License liability for any and all such liens, claims and demands, together with reasonable attorneys' fees and all costs and expenses in connection therewith. 7. Licensee hereby releases and forever discharges Licensor of and from any and all claims, demands, actions or causes of action whatsoever which Licensee may have, or may hereafter have, against Licensor arising in any way out of Licensee's exercise of the Licensee Activities on the Licensor Property. Licensee hereby expressly waives any right under or benefit of any law of any jurisdiction whatsoever providing to the contrary. 8. Licensee agrees to indemnify, protect, hold harmless and defend (with counsel reasonably satisfactory to Licensor) Licensor and its representatives, members, officials, employees or agents (collectively, the "Indemnitees"), from and against any and all losses, costs, claims, expenses, damages (including, without limitation, foreseeable or unforeseeable consequential damages), and liabilities directly or indirectly arising out of or in any way connected with the activities, acts or omissions of Licensee, its employees, contactors or agents on or affecting the Licensor Property from and after the effective date of this Agreement, including but not limited to the release of any Hazardous Materials (as defined in the Ground Lease attached to the DDA as Exhibit I) or other kinds of contamination or pollutants of any kind into the air, soil, groundwater or surface water on, in, under or from the Licensor Property. This indemnification supplements and in no way limits the scope of the indemnifications set forth in Sections 9 or 10, below. 9. Except as the result of the sole or willful negligence or intentional acts or omissions by the Indemnitees, Licensee shall indemnify, defend (with counsel reasonably satisfactory to Licensor) and hold the Indemnitees harmless from and against all liability, loss, damage, cost or expense (including attorneys' fees and court costs) arising from or as a result of the death of any person or any accident, injury, loss or damage whatsoever caused to any person or to the property of any person caused by Licensee's activities at the Licensor Property or any errors or omissions of Licensee, whether such performance, errors or omissions of Licensee be made by Licensee, its contractors or subcontractors, or anyone directly or indirectly employed by Licensee, and whether such damage shall accrue or be discovered before or after the termination of this Agreement. This indemnification provision supplements and in no way limits the scope of the indemnification in Section 10, below. The indemnity obligation of Licensee under this Section 9 shall survive the expiration or termination, for any reason, of this Agreement. This Section 9 notwithstanding, indemnification with respect to Hazardous Materials shall be governed by Section 8, above. 10. License will protect, indemnify and save the Indemnitees harmless from and against all liabilities, obligations, claims, damages, penalties, causes of action, judgments, costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) imposed upon or incurred by or asserted against the Licensor, or the Licensor Property during the term of this Agreement, unless caused solely by the willful act or gross negligence of the Indemnitees, by reason of (a) any accident or injury to or death of persons or loss of or damage to property occurring on or about the Licensor Property, (b) any failure on the part of Licensee to perform or comply with any of the terms of this Agreement, or (c) any negligence or tortious act on the part of Licensee or any of its agents, employees, contactors, subtenants, licensees or invitees. In the event that any action, suit or proceeding is brought against the Indemnitees by reason of any 3 National City — Phase I and II - License such occurrence, Licensee, upon Licensor's request will, at Licensee's expense, defend such action, suit or proceeding with counsel approved by the Licensor. This Section notwithstanding indemnification with respect to Hazardous Materials shall be governed by Section 8, above. 11. Licensee shall keep all equipment used or brought onto the Licensor Property by it under its absolute and complete control at all times, and said equipment shall be used at the sole risk of Licensee 12. Licensee agrees that all work done or undertaken by it on the Licensor Property shall be for its sole account and not as an agent, servant or contractor for Licensor. 13. No interest of any kind is hereby given and Licensee shall never assert any claim or title to the Licensor Property. 14. This Agreement cannot be assigned, whether voluntarily or by operation of law, and Licensee shall not permit the use of the Licensor Property, or any part thereof, except in strict compliance with the provisions hereof, and any attempt to do so shall be null and void. 15. Neither this Agreement or a memorandum thereof shall be recorded in the Official Records of San Diego County. 16. If one or more of the provisions set forth herein shall be held by a court of competent jurisdiction to be invalid, illegal or unenforceable to any degree, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement and the remainder of the provisions hereof shall continue in full force and effect. 17. If any party to this Agreement brings an action to enforce or interpret the terms hereof, the prevailing party in any such action or appeal thereof shall be entitled to recover its costs and reasonable attorneys' fees, including those of in-house counsel. 18. This Agreement is not a novation of the DDA, provided, however, this Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and all prior and contemporaneous agreements, representations and understandings of the parties hereto, oral or written, are hereby superseded and merged herein. No supplement, modification or amendment of this Agreement shall be binding unless in writing and executed by the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions, whether or not similar, now shall any waiver be a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver. This Agreement shall be construed and enforced in accordance with, and governed by, the laws of the State of California. This Agreement may be executed in any number of counterparts, each of which shall be an original and all of which shall constitute but one and the same document. IN WITNESS WHEREOF, the parties hereto have executed this instrument as of the date first above written. 4 National City — Phase 1 and 11 - License Licensor: By: COMMUNITY DEVELOPMENT COMMISSION -HOUSING AUTHORITY OF THE CITY OF NATIONAL CITY, a public body, corporate and politic, By: Leslie Deese Executive Director Licensee: PARADISE CREEK HOUSING PARTNERS, L.P. a California limited partnership, By: Related/Paradise Creek Development Co., LLC, a California limited liability company, its Administrative General Partner By: The Nicholas Company, Inc., a Delaware corporation, its M. •„ ��j'' • er William A. Witte President By: CHW PARADISE CREEK DEVELOPMENT CO., LLC, a California limited liability company, its Managing General Partner By: Community Housing Works, a California nonprof • blic b- • efit corporation, its Manag' _ eOPP 17f a B. Wilson 5 enior Vice President National City — Phase I and II - License