HomeMy WebLinkAbout2015 CON CDC HA - Paradise Creek Housig Partners - License AgreementLICENSE AGREEMENT
THIS LICENSE AGREEMENT ("Agreement") is made effective as of the 23r4 day of
July, 2015, 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").
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"), pursuant to which the Licensee and Licensor have entered into a ground
lease of the Phase I Property, dated November 19, 2014 ("Phase I Ground Lease"). Licensee is
engaged in the development of affordable housing on the Phase I Property and anticipates
developing additional affordable housing on the Phase II Property following the execution of a
ground lease for the Phase II Property.
C. Licensee desires to enter the Phase II Property 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.
D. Prior License Agreement. Licensor and Licensee entered into a License
Agreement dated January 29, 2015, prior to the execution of the Phase I Ground Lease by the
parties. The License Agreement dated January 29, 2015 is hereby terminated and is no longer
of any force or effect and is now replaced and superseded in its entirety by this Agreement.
TERMS AND CONDITIONS
NOW, THEREFORE, the parties hereto agree as follows:
1. (a) Phase II Property. Licensee, its contractors, subcontractors,
employees and agents may enter upon the Phase II Property for the purposes, set forth on
Exhibit B attached hereto and made a part hereof.
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National City — Phase II — License to Enter
(b) The activities described in Exhibit B are referred to as the "Permitted
Activities". The permission to enter upon and use the Phase II Property granted herein shall
include uses incidental to or associated with the Permitted 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 Permitted 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 shall be terminated upon the execution of a
Ground Lease by Licensor and Licensee with respect to the Phase II Property.
3. Prior to entry upon the Phase II Property, Licensee shall obtain and maintain
policies of insurance in the types and amounts required under Section 9.3 of the Phase I Ground
Lease 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 Phase II
Property. While on the Phase II Property, Licensee will comply, and will cause all of its
contractors, subcontractors and other representatives on the Phase II 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 Phase II 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 its tenants.
6. Licensee shall not suffer or permit to be enforced against the Phase II 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 Phase
II Property. Licensee expressly agrees to indemnify, defend (with counsel reasonably
satisfactory to Licensor) and hold Licensor and the Phase II Property free and harmless from all
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 Permitted
Activities on the Phase II 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,
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National City — Phase II — License to Enter
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 Phase II 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 Phase I
Ground Lease) or other kinds of contamination or pollutants of any kind into the air, soil,
groundwater or surface water on, in, under or from the Phase II 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 Phase II 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 Phase II 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 Phase II 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
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 10
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 Phase II 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 Phase II Property
shall be for its sole account and not as an agent, servant or contractor for Licensor.
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National City — Phase II — License to Enter
13. No interest of any kind is hereby given and Licensee shall never assert any claim
or title to the Phase II Property.
14. This Agreement cannot be assigned, whether voluntarily or by operation of law,
and Licensee shall not permit the use of the Phase II 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.
Licensor: COMMUNITY DEVELOPMENT COMMISSION -
HOUSING AUTHORITY OF THE CITY OF
NATIONAL CITY, a public body, corporate and politic,
By:1:tu�
Leslie Deese
Executive Director
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National City — Phase II — License to Enter
Licensee: PARADISE CREEK HOUSING PARTNERS, L.P.
a California limited partnership,
By: Related/Paradise Creek Development
Co., LLC, a California limited liability
company, its General Partner
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By: ,14", /-tic ..-.-
Frank Cardone
Vice President
National City — Phase II — License to Enter
EXHIBIT A
Description of the Phase I Property and Phase II Property
Real property in the City of National City, County of San Diego, State of California, described
as follows:
Phase I Property:
Parcel 1 as described in Certificate of Compliance No. 2012-04 LS, SC, recorded in the Official
Records of San Diego County on August 20, 2013, as Document No. 2013-0521150.
Phase II Property:
Parcel 2 as described in Certificate of Compliance No. 2012-04 LS, SC, recorded in the Official
Records of San Diego County on August 20, 2013, as Document No. 2013-0521150.
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National City — Phase II — License to Enter
EXHIBIT B
Permitted Activities
1) Storage of material and construction equipment associated with the development of the
Phase I Property;
2) Cassion & Transite Pipe Removal (Up to 05' of Depth);
3) Undercut & Clean Cap @ Planters & Deep Utilities;
4) Undercut & Clean Cap @ Biosweals;
5) Stabilization Of Fills (Rock & Fabric Per Group Delta Reports);
6) Pothole & Verify 'Live' Sewer Line (Assuming 8' Deep);
7) Exploratory work on Slurry Pad / Wall Plot Area & Depth (est. 10' deep);
8) AOC Overex And Stabilizing;
9) Surveying Remediation;
10) HASP (Naton & C&V);
11) Stabilize Surcharge Phase 2;
12) Mass Grading & Surcharge Placement Phase 2;
13) Backfill Site Retaining Walls Phase 2;
14) Finish Grade (Curb grade, AC Paving grade, Concrete Flatwork grade) Phase 2;
15) Surveying Phase 2;
16) SWPP / Erosion Control - Ongoing Management Phase 2;
17) Ramp Onto Surcharge To Access Material & Equipment Storage;
18) Haul City Stockpile To Park;
19) Relocate & Protect Current Temporary Power Poles;
20) Trailer Relocation;
21) Relocating Temporary Fencing;
22) Safety Superintendent;
23) Waste Removal;
24) Safety & Project Signage;
25) Temporary Toilets;
26) Temporary Water;
27) Dust Control & Street Sweep;
28) Exploratory work on slurry wall and pad;
29) Stone Columns on the western side of Phas 2 site. 3' diameter stone columns and 8'
triangular spacing for creek stabilization;
30) Final Building Pad Cap Elevation & Slope Requirements;
31) Export of Surcharge Material off Phase 2;
32) Unforeseen Conditions or Buried Debris; and
33) Generator or Relocation of Temporary Power.
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National City — Phase II — License to Enter