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HomeMy WebLinkAboutExhibit 1LICENSE AGREEMENT THIS LICENSE AGREEMENT is hereby made and entered into this day of 2009 (the "Effective Date") by and between BAY PARC PLAZA APARTMENTS, L.P., a Delaware limited partnership, authorized to do business in the State of Florida, whose address is 1756 North Bayshore Drive, Miami, FL 33132 (hereinafter referred to as the "LICENSOR" and the CITY OF MIAMI, a municipal corporation of the State of Florida, with offices at 444 SW 2nd Avenue, Miami, FL 33130-1910 (hereinafter referred to as the "CITY"). WITNESSETH: WHEREAS, LICENSOR is the fee simple owner of certain real property located in Miami -Dade County, Florida, on which LICENSOR's apartment complex and other buildings are located (collectively, the "LICENSOR Property"); and WHEREAS, CITY desires to use that certain portion of LICENSOR Property as more particularly identified on Exhibit "A" (the "License Area") for the purpose of sloping, grading, and tying in right-of-way improvements with those of the License Area, hereinafter referred to as the "WORK"; and WHEREAS, the CITY's WORK in the License Area will result in connecting existing features to the CITY's improvements in the area of the LICENSOR Property; and WHEREAS, the LICENSOR is willing to grant to the CITY a license over the License Area for the aforementioned WORK on the terms and conditions set forth herein. NOW, THEREFORE, for and in consideration of the terms, conditions and mutual covenants contained herein and other good and valuable consideration received by each parry, the sufficiency of which are hereby acknowledged, LICENSOR and CITY, hereby agree as follows: LICENSOR hereby grants CITY, its agents, servants and assigns a non-exclusive license (the "License") to use the License Area to locate, construct, install, operate, inspect, alter, improve, maintain, repair, move, restore and rebuild sidewalks, driveways, swales, landscaping or back of sidewalk connections to natural ground (the "Improvements"), on, upon and across said License Area with the same existing material; and attain ingress and egress to and upon said License Area for the purpose of exercising the rights, privileges and license granted herein. This License is granted for a primary term of two (2) years from the date first written above and shall continue in full force and effect thereafter unless terminated by LICENSOR or CITY on 30 days written notice to the other party. The term may be extended for one additional one (1) year term upon mutual written consent of the parties executed prior to the expiration of the primary term. The CITY shall inform the LICENSOR when WORK will begin by providing a 5 day advance written notification. 4. LICENSOR retains the right to use the License Area in any manner not inconsistent with the rights herein granted to CITY provided, however, that the LICENSOR shall not disturb the improvements made to sidewalks, driveways, swales, or back of sidewalk tie-ins to natural ground in any way or interfere with the scheduling, staging and progress of the WORK without prior written approval by the CITY Capital Improvements Projects ("CIP") Director during the term of the License, LICENSOR reserves the right, upon the occurrence of an emergency or other imminent threat of damage or harm to the LICENSOR Property, or any improvement or persons situated thereon, to interrupt, shut down or. otherwise affect the WORK if, in LICENSOR's reasonable judgment, such actions are necessary to preserve or protect the operation, function, safety or well-being of any of the foregoing. R�ie �G9- 9�i The CITY expressly acknowledges and accepts its responsibility only to the extent expressly provided under applicable law, Section 768.28, Florida Statutes (2008) for loss, damage, or injury to persons or property, arising out of or resulting from the WORK by the City, its employees or contractors, or authorized use of the License Area by the City, its employees or its contractors and in accordance with such applicable law, unless such claim or demand shall arise out of or result from the negligence, gross negligence, or willful misconduct of LICENSOR, its servants, agents, employees, or assigns. The CITY expressly reserves all of its rights and defenses including without limitation, sovereign immunity, in respect to any claims or actions brought by any LICENSOR or any third parties as a result of this License Agreement or the WORK pursuant to this Agreement. CITY agrees that any and all work performed within the License Area and in association with the purposes of this License shall be done at CITY's sole cost and expense in a good, safe, workmanlike manner, free of all liens and encumbrances on the LICENSOR Property, in accordance with applicable federal, state, and local statutes, rules, regulations and ordinances, and in such a manner so as to avoid any commercially unreasonable interruption of or interference with LICENSOR, the LICENSOR Property, or any tenant of the LICENSOR Property. Upon termination of the License, CITY shall, within a reasonable time and at CITY's sole cost and expense, remove all equipment, accessories, and materials owned by CITY from the License Area and restore said License Area and any all improvements located thereon or adjacent thereto (including, but not limited to, driveway paving stones, landscaping, signs and/or lighting) as nearly as practicable to its condition prior to the granting of the License. 8. The CITY shall use reasonable efforts to not allow the general public to access, use or enter upon the License Area during the performance of the WORK. 9. Nothing herein shall be construed to be an admission of liability by either parry for any purposes. 10. In exercising its rights hereunder, utilizing the License, performing the WORK, and otherwise accessing the License Area and the LICENSOR Property, the CITY, in addition to all other covenants and agreements contained herein, agrees to the following: (a) The CITY shall clean, cure, repair and correct any such damage to any elements of the LICENSOR Property attributable to the performance of the WORK, including, but not limited to, any utilities, structures and other improvements situate therein or thereon, and shall keep all of the LICENSOR Property reasonably clean and clear of equipment, building materials, dirt, debris, and similar materials during the Term. (b) The CITY's Responsible Parties (who shall mean City's employees and general contractor) shall enter onto the LICENSOR Property and utilize the License granted hereunder at their own risk and they further ASSUME ALL RISKS of patent defects readily observable upon entry as defined by Florida law related to the same. (c) The CITY's contract with its general contractor shall require the general contractor to be responsible for any loss, damage, or injury to persons or property, arising out of or resulting from the acts or omissions of any of its contractors or subcontractors performing WORK on the LICENSOR Property. The CITY and the LICENSOR shall be added as additional insured's to the general contractor's liability insurance required by this section. (d) The CITY shall not cause, or permit to be caused by any of the CITY's Responsible Parties, any Hazardous Materials (defined below) to be transported to, or dumped, spilled, released, permanently stored, or deposited on, over or beneath the License Area or any other lands owned by LICENSOR. "Hazardous Materials" means substances, materials or waste the generation, handling, storage, treatment or disposal of which is regulated by any local, state or federal government authority or laws, as a "hazardous waste," "hazardous material," "hazardous substance," "pollutant" or "contaminant" and including, without limitation, those designated as a "hazardous substance" under Section 311 or listed 'r) pursuant to Section 307 of the Clean Water Act (33 U.S.C. Secs. 1321, 1317), defined as a "hazardous waste" under Section 1004 of the Resource Conservation and Recovery Act (42 U.S.C. Sec. 6903), or defined as a "hazardous substance" under Section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. Sec. 9601), and, including, without limitation, petroleum products and byproducts, PCBs and asbestos. (e) During the term of the License, the CITY and its contractors shall fully comply with the terms of the law of the State of Florida concerning workers' compensation. The General Contractor shall obtain, at their sole cost, and keep in full force and effect during the term of this Agreement, commercial general liability insurance with limits of not less than the amount of Two Million Dollars ($2,000,000) per occurrence and Four Million Dollars ($4,000,000) in the aggregate for bodily injury, personal injury, and property damage, and automobile liability insurance in the amount of One Million Dollars ($1,000,000) per occurrence for bodily injury and property damage; provided that (i) LICENSOR, and the CITY and their officers, agents, and employees shall be added as additional insured's under the General Contractor's policy, and (ii) no other insurance effected by LICENSOR or other named insured's shall be called upon to cover a loss covered hereunder. The CITY is self-insured in accordance with and subject to the limitations as set forth in Section 768.28, Florida Statutes (2008). 11. All notices, requests, consents and other formal communication between the parties that are required or permitted under this License Agreement ("Notices") shall be in writing and shall be sent to the address for the respective addressee provided in the preamble to this License Agreement (each a "Notice Address"), with a copy, in the case of LICENSOR, to John Spiegleman, Esq., Senior Vice President, Apartment Investment and Management Company, 4582 South Ulster Parkway, #1100, Denver, CO 80237, and in the case of the CITY a copy to the CIP Director, 444 SW 2nd Av., 8th Floor, Miami, FL 33130-1910. Notices shall be (i) delivered personally with a written receipt of delivery, (ii) sent by a recognized overnight delivery requiring a written acknowledgment of receipt or providing a certification of delivery or attempted delivery, or (iii) sent by certified or registered mail, postage prepaid, return receipt requested. All Notices shall be deemed effective when actually delivered as documented in a delivery receipt; provided, however, that if the Notice was sent by overnight courier or mail as aforesaid and is affirmatively refused or cannot be delivered during customary business hours by reason of the absence of a signatory to acknowledge receipt, or by reason of a change of address with respect to which the addressor did not have either knowledge or written Notice delivered in accordance with this paragraph, then the first attempted delivery shall be deemed to constitute delivery. Each party shall be entitled to change its Notice Address from time to time by delivering to the other party notice thereof in the manner herein provided for the delivery of Notices. 12. This instrument and its attachments constitute the sole and only agreement of the parties hereto and correctly sets forth the rights, duties and obligations of each to the other as of its date. Any prior agreements, promises, negotiations, or representations not expressly set forth in this License Agreement is of no force or effect. 13. This License Agreement shall be governed by and construed in accordance with the laws of the State of Florida regardless of any conflict of law or other rules, which would require the application of the laws of another jurisdiction. Venue for any legal proceedings shall be in Miami Dade County. 14. The CITY acknowledges and agrees that it is using the License Area based on its "AS IS" physical condition and in an "AS IS" state of repair. LICENSOR expressly disclaims and makes no representations or warranties, whether expressed or implied, to the CITY, or to the CITY's Responsible Parties, with respect to the License Area, including, without limitation, with respect to the suitability or fitness of the License Area for the WORK or any of the uses or purposes contemplated hereby. 15. In any legal proceedings between the parties, each party will bear their own attorney's fees. 16. No provision of this License Agreement shall be deemed waived except by a writing executed by the party against whom the waiver is sought to be enforced. No waiver of any provision of this License Agreement shall be deemed a continuing waiver of such provision or deemed a waiver of any other provision of this License Agreement. 17. This License Agreement may be executed in several counterparts, and each counterpart shall constitute one License Agreement binding on all parties hereto, notwithstanding that all of the parties are not signatory to an original or same counterpart. 18. If any portion of this License Agreement is declared by any court of competent jurisdiction to be void or unenforceable, such decision shall not affect the validity of any remaining portion of this License Agreement, which shall remain in full force and effect. In addition, in lieu of such void or unenforceable provision, there shall automatically be added as part of this License Agreement a provision similar in terms to such illegal, invalid or unenforceable provision so that the resulting reformed provision is legal, valid and enforceable. In the event that such provision cannot be so reformed, LICENSOR may terminate this License Agreement in its sole discretion. [remainder of page intentionally left blank; signatures on following pages] rd IN WITNESS WHEREOF, the undersigned parties have executed this License Agreement on the day and year first above written. LICENSOR: BAY PARC PLAZA APARTMENTS, L.P., a Delaware limited partnership By: AIMCO SELECT PROPERTIES, L.P., a Delaware limited partnership, its general partner By: AIMCO/BETHESDA HOLDINGS, INC., a Delaware corporation, its general partner By: Name: Title: STATE OF ) ss. COUNTY OF The foregoing License Agreement was acknowledged before me this day of 2009, by of AIMCO/BETHESDA HOLDINGS, INC. Witness my hand and official seal. My commission expires: Notary Public [signatures continue on following page] ATTESTED: CITY OF MIAMI, a municipal corporation of the State of Florida By: Priscilla A. Thompson PEDRO G. HERNANDEZ City Clerk City Manager STATE OF ss. COUNTY OF The foregoing instrument was acknowledged before me this day of , 20 by who is personally known to me or has produced as identification and who did not take an oath. Notary Stamp: Signature of Notary Public Taking Acknowledgment Print Name: Serial Number (if any): Commission Expires: Approved as to Risk Management: Risk Manager Date Approved as to legal form and correctness: Julie 0. Bru, City Attorney Date 6 169424