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HomeMy WebLinkAboutArchstone Smith Operating Trust; 2003-05-20;LICENSE AGREEMENT FOR ENTRY ONTO PROPERTY This License Agreement for Entry onto Property (this "Agreement") is made as of Archstone-Smith Operating Trust, a Maryland Real Estate and City of Carlsbad, a municipal corporation ("Licensee"). RECITALS A. Licensor is the owner of certain real property located in the City of Carlsbad, State of California, which property is more particularly described and shown on Exhibits "A and "B" attached hereto (the "Property"). The Property is shown as Lot 162 of Carlsbad Tract NO. 97-16A. B. Licensee desires to enter onto the Property for the purpose of facilitating the construction of the Cannon Road Lift Station. Uses shall be a location for field offices for the City and the City's representatives and storage of construction materials and equipment as required for the construction of the lift station (the "Work), and Licensor desires to grant a license to Licensee for such purpose. AGREEMENT NOW, THEREFORE, the parties hereto agree as follows: 1. Right to Enter Property. Subject to the terms of this Agreement, Licensor hereby grants to Licensee and its agents, employees, consultants, contractors, invitees and licensees (collectively, its "Representatives"), a nonexclusive, revocable license and permission to enter upon the Property during the Term of this Agreement for the purpose of performing the Work. Licensee and its Representatives may enter the Property at all times during the Term (defined below). 2. Term. The right of entry granted kereunder shall be valid only for the period commencing at the execution of this agreement and terminating 24 months thereafter (collectively, the "Term"). 3. Conduct of Work (a) General. Any Work performed for or by Licensee hereunder shall be at the sole cost and expense of Licensee. Licensee and its Representatives shall not interfere with any use of the Property or operations conducted thereon by Licensor, and shall carry out its Work on the Property in such a manner as to cause as little disturbance as reasonably possible to the Property and improvements thereon. All Work performed by Licensee and its Representatives on the Property shall be performed in a good and workmanlike manner. Licensee shall not alter, damage the Property or any improvement, equipment or personal property located thereon and shall, at its own cost and expense, promptly repair any damage to the Property caused by the Work or the entry onto the Property. Licensee shall keep the Property free and clear of any mechanic's or materialmen's liens arising out of the Work or any such entry. Licensor or any authorized representative, employee, agent or independent contractor of Licensor shall be entitled to accompany Licensee and its Representatives during any entry upon the Property. (b) Entry Onto Surrounding Areas Strictlv Prohibited. Entry to the Property shall be made only by way of Hemingway Drive, a public right-of-way. Licensee acknowledges that Licensee and each of its Representatives are strictly prohibited from entering onto the area surrounding the Property. Licensee shall specifically ensure that no Representative enters onto any area other than the Property, including without limitation, any property designated open space or wetlands area. In the case of any entry by Licensee or any Representative in violation of this Section 3(b), Licensee shall fully indemnify Licensor in accordance with Section 5 below for any loss occurring during the Term of this Agreement. 4. Compliance With Laws. All entry and Work upon the Property by Licensee and its Representatives shall be in compliance with all applicable laws and regulations, and Licensee shall be solely responsible for obtaining any permit and license required by all applicable laws and regulations. While on the Property, Licensee shall comply with, and cause all of its Representatives to comply with, such permits and licenses and with all applicable laws and governmental regulations. Licensee shall comply with, and shall cause all of its Representatives to protect the Property and adjacent properties by providing adequate erosion control consistent with laws and regulations that would apply to Licensor if Licensor was performing work. 5. Indemnification. Licensee agrees to indemnify and hold harmless the Licensor and its agents, employees, officers, directors, shareholders, members, affiliates and the Property from and against all claims, damages, losses and expenses including attorneys' fees arising out of (i) Licensee's failure to comply with the provisions of Sections 3(b) and 4 herein, and (ii) the performance of the Work or (iii) the negligent acts or omissions of the Licensee, its Representatives or anyone directly employed by any of them, or anyone for whose acts any of them may be liable in connection with the exercise of the rights granted herein. 6. Insurance. Without limiting Licensee's indemnity obligation under Section 5 above, Licensee, at its sole cost and expense, shall obtain prior to entering onto the Property and shall maintain during the period of any entry or Work thereon, a policy or policies of commercial general liability insurance with respect to the Property and the activities of or on behalf of Licensee and its Representatives on or abdut the Property in the amount of not less than One Million Dollars ($1,000,000) combined single limit bodily injury, death and property damage liability per occurrence. Notwithstanding any other provision of this License, Licensee may self-insure for any risk set forth in this Section 6 in the manner and to the extent that Licensee self-insures for similar risks with respect to its operations, equipment, and property. The manner in which such self- insurance is provided and the extent of such self-insurance shall be set forth in acertificate of Self-Insurance, delivered to Licensor and signed by an authorized representative of Licensee which fully describes the self-insurance program and how the program covers the risks set forth in this Section 6. Insurance provided by a joint powers agency insurance pool shall be considered self-insurance for the purposes of this Section. If, at any time during the term of this Agreement, Licensee elects not to self-insure, Licensee shall comply with all applicable provisions of this Section 6 to the extent that Licensee does not so self-insure. Prior to any entry onto the Property by Licensee or any Representative, Licensee or any Representative shall (a) deliver to Licensor, at the address set forth below, certificates of such insurance naming Licensor as an additional insured, and (b) provide reasonable proof that Licensee and its agents, employees, consultants and contractors are covered by statutory worker's compensation insurance upon request. Licensee acknowledges that the right of entry granted in this Agreement is expressly conditioned on Licensee's maintenance of the insurance policies described in this Section 6. If Licensee receives notice that such policies will be canceled or modified in accordance with clause (a) above, Licensee shall obtain the policies described herein from an alternative insurer prior to such cancellation or modification. All certificates and notifications to Licensor hereunder shall be addressed to Kirk C. Roloff, Archstone Communities, One Spectrum Pointe Drive, Suite 225, Lake Forest, California 92630. 7. Assignability. Licensee shall not voluntarily or by operation of law assign or transfer any rights, interests or obligations under this Agreement without Licensor's express prior written consent. 8. Restoration. Prior to the expiration of the Term or upon any earlier termination of this Agreement, Licensee shall remove all equipment and personal property therefrom not belonging to Licensor, and leave the Property in the condition that existed prior to commencement of the Work. 9. Amendment of License Agreement. The parties may, by mutual written agreement, amend this License Agreement. 10. Notices of Revocation of License. Licensor will provide Licensee with a minimum of forty-five (45) days prior written notice of Licensor's revocation of this License during the term of this Agreement. 11. Service of Notice. All notices required to be given to either party by the other party shall be in writing and shall be deemed served when delivered by hand or by Federal Express or similar service to that party's ( or its designee), address as set forth below: If to the CityILicensee: City Engineer CITY OF CARLSBAD 1635 Faraday Avenue Carlsbad. CA 92008 If to the Licensor: John Luedtke, Group Vice President Kirk C. Roloff, Vice President ARCHSTONE-SMITH OPERATING TRUST 1 Spectrum Pointe Drive, Suite 225 Lake Forest, CA 92630 13. No Third Party Beneficiaries. This Agreement shall not be deemed to confer any rights upon any individual or entity which is not a party hereto, and the parties hereto expressly disclaim any such third-party benefit. //I 14. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have executed this License Agreement for Entry onto Property as of the day and year first above written. "LICENSOR" - "LICENSEE" CITY OF CARLSBAD, a municipal nvestment ust corporation By:hL/i [Print hame"and Title] [Print Name and Title] EXHIBIT "A" LOT 162 OF CARLSBAD TRACT NO. 97-16A, KELLY RANCH CORE, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF 14340, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, CALIFORNIA, ON FEBRUARY 1,2002