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LOCATIONAGREEMENT
AGREEMENT, made as of the ____ day of ______, 2014 betweenCatcendix Corp. (the “Apartment Corporation”), a New York corporation having an address c/o Orsid Realty Corp., 1740 Broadway, New York, New York 10019 and, Remote Broadcasting Inc. (“Remote”), a ______corporation, having an address of 268 Norman Ave, Brooklyn, NY 11222.
WHEREAS, the Apartment Corporation is the owner of the property known as 410 Central Park West, New York, New York and all structures, improvements and fixtures located thereupon (the “Property” and the “Building”, respectively); and,
WHEREAS, the Property and the Building are used for cooperative housing by the tenant-shareholders of the Apartment Corporation and their subtenants, licensees and guests pursuant to proprietary leases (collectively “Tenants”) giving Tenants certain guaranteed exclusive rights with respect to their designated apartments (the “Units”) at the Building; and,
WHEREAS, Remote has sought a license from Apartment Corporation to enter onto the portions of the Building and the Property which are open to all Tenants (the “Common Areas”) so as to facilitate certainvideo and/or audio recording activities to take place in one or more of the Units located on the 5th floor of the Building; and,
WHEREAS, the Apartment Corporation is willing to grant to Remote a revocable non-exclusive license to enter onto portions of the Property and/or the Buildingon the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the mutual covenants herein contained the parties agree as follows:
1.License. The Apartment Corporation hereby grants to Remote and itsrepresentatives,employees,contractors,agents,independentproducers,officersandagents (collectively “Remote Personnel”) a nonexclusive revocable license (the “License”) to enter upon the Common Areas to the extent required to access the 5th floor of the Building for a period of not more than three (3) days in the aggregate during the period commencing March 19, 2014, and continuing through and including March 28, 2014 (the “License Term”), Mondays through Fridays, during the hours of 7:00 a.m. through and including 10:00 p.m. (the “License Hours”), for the purpose of makingaudio and/or video recordings of theProperty and/or the Building inconnectionwiththeproductionofscenesfor a television program known as Irreversible (the “Program”). The number of Remote Personnel located in the Common Areas at any one time shall not exceed thirty (30) persons. The recordings Remote may make shall be permitted toincludetheexterior of the structures located on the Property as well as the portions of the Common Areas located on the 5th floor of the Building, but not record any persons occupying or working therein without the issuance of a separate release by the persons to be recorded. No recording may be made of the interior of any Unit without the express written consent of the Tenant of such unit.
At any time prior to Remote taking access to the Property and/or the Building for the first of the three (3) aggregate licensed days, Remote may, by service of a written notice to the Apartment Corporation, cancel the License contemplated by this Agreement in which case the License Fee set forth below will not become due and owing and no rights will be granted to Remote hereunder.
The License granted herein shall includetherighttobringandutilizepersonnel,personalproperty,materials,andequipment,includingbutnotlimitedtopropsandtemporarysets needed in connection with the Program. Notwithstanding the foregoing, Remote and the Remote Personnel shall not be permitted to obstruct any portion of the Common Areas (including, but not limited to the public hallways of the Building), obstruct ingress and/or egress to the Building and/or the Property, or make any temporary or permanent alteration to the Property and/or the Building. Remote shall not take any action or make any omission as concerning the utilization of the License which in any way violates any statute, rule, ordinance, regulation and/or code governing the use and/or operation of the Property and/or the Building.
Remote shall have the right therighttomakementionoftheProperty and/or the BuildingwithinthecontextofthestorylineofsuchProgram provided that such mention is not in any way defamatory of the Property, the Building and/or the Apartment Corporation. Remote shall have therighttorecreatea representation of theProperty and/or the Buildingelsewhereforthepurposesofphotographingsame provided that such representation fairly and accurately depicts the Property and the Building as it exists and does not defame and/or otherwise case in a negative and false light the Apartment Corporation the Building and/or the Property. Remote shall have theunlimitedrighttoexhibitanyandallscenesphotographedorrecordedoftheProperty and/or the Buildingthroughouttheworldandinallmedia,nowknownorunknown.
Remote shall take no action which seeks to intrude upon the privacy of Tenants inside their Units and shall make no recordings of any sounds which can be construed as being of a private nature being emitted from inside any Unit, nor shall any recording be taken of the Property and/or the Building which affords a view into the interior of any Unit which could be construed as being private in nature.
The License may only be revoked in accordance with the terms of this Agreement.
2.License Fee / Limitation of Liability. InfullconsiderationoftheApartment Corporation enteringintothisAgreementandforallrightsgrantedtoRemotehereunder,contemporaneous with the execution of this Agreement Remoteshallpaythe Apartment Corporationthesum of Ten Thousand Dollars ($10,000.00)(the “License Fee”).The liability of the Apartment Corporation arising under this Agreement shall be limited at theamount of the License Fee actually paid by Remote to the Apartment Corporation.
3.Storage. Remote and the Remote Personnel shall not store any personal property and/or equipment in the Common Areas outside of the License Hours.
4.Ownership of the Program.Remote,itssuccessors,assignsandlicenseesshallownallrightsofeverykindinandtoallvideoandsoundrecordings,motionpicturesorphotographsmade,recordedand/ordevelopedinandabouttheProperty and/or the Building pursuant to the License,inanyandallmedianowknownorhereafterdevisedordiscovered,throughouttheworldinperpetuity,includingtheirrevocablerighttouseanysuchrecordings,motionpicturesorotherphotographsofthesaidpremises, the BuildingandProperty,intheadvertising,publicityandpromotion,oftheProgram,withoutfurtherpaymentorpermissionofanykind.
RemoteshallhavenoobligationtousetheProperty and/or the BuildingorincludetheProperty and/or the Building intheProgram.
5.Insurance and Indemnity.
(a) Remoteor its payroll service company (as respects 5a (iii) and 5a(iv) , at its own expense, shall carry the following insurance with a company or companies licensed or “admitted” in the State of New York, having at least a policyholders rating of A minus and a financial rating of IX as rated by A.M. Best Company and otherwise reasonably satisfactory to the Apartment Corporation, during the entire period of the License Term and any other period during which Remote and/or the Remote Personnel have access to any portion of the Property and/or the Building:
(i)Commercial Generaland Excess/Umbrella Liability or “CGL” Insurance on an occurrence basis having primarycombined limits of at least $5,000,000 per occurrence with not less than a $10,000,000 aggregate limit for claims arising out of allegations of bodily injury, personal injury and for property damage, including but not limited to premises, elevators, products, broad form property damage, coverage for explosion, collapse and underground hazards, pollution liability, environmental impairment liability, equipment, tools portableenclosures, fencing and security devices, and independent contractor's contractual liability. The Apartment Corporation and its managing agent (Orsid Realty Corp.) must be included as “Additional Insured” parties on the policies of insurance. The coverage afforded to the Additional Insureds shall be written on a primary basis, and shall not require or contemplate contribution by any other policy or policies obtained by, or available to, any Additional Insured; any other such coverage shall be excess over the coverage to be provided by Remote. Each policy shall contain a “per project” Aggregate Limit endorsement or equivalent so as to provide a unique limit for losses arising out of the operations and work performed under this contract. There shall be no shared limits and no erosion of available liability limits by claims arising out of operations unrelated to those contemplated under this Agreement. No aggregate shall apply to any coverage that is not subject to an aggregate in the underlying policy. In addition, Remote’s protective liability insurance shall be provided in connection with any portion of the work contemplated by the License that is subcontracted.
(ii)Comprehensive Vehicle Liability Insurance on an occurrence basis, on a form equal to the latest version of ISO form CA 00 03, including owned, non-owned, hired or rented private passenger and commercial vehicles, covering bodily injury and property damage in the amount of $1,000,000 single occurrence limit.
(iii)Worker's Compensation Insurance and Employers Liability Insurance as required by law.
(iv)New York State Disability Benefits Law Coverage as required by law.
(b)(i)Remote and the Remote Personnel shall have no access to begin the actions contemplated by the License until Remote has obtained and paid for all insurance required by this Article and until original certificates of insurance naming the Apartment Corporation as the Certificate Holder with endorsements in a formreasonably acceptable to the Apartment Corporation(andtrue and complete copies of the policies if requested) have been submitted to and approved by the Apartment Corporation as to the kind, coverage and amount. Additionally, Remote shall submit to the Apartment Corporation a Statement by the insurer its agent or broker on the letterhead of such insurer, agent or broker, attesting to the following:
(A)That this Article has been presented to the signatory of the Statement for review and evaluation, and that the signatory represents that the policy conforms to the obligations assumed by Remote in this Article.
(B)That the signatory has been informed of the expected duration of the License (and the signatory is to set forth the length of that period in its statement).
(C)That the signatory has the authorization extended by the insurer to endorse the policy.
(D)That the signatory has endorsed the policy, as necessary, to afford the coverages set forth in this Article.
(E)That the policy has been pre-paid for a period of time sufficient to expect that it will remain in force during the expected duration of the License.
(F)That if the policy is, by its own terms, to expire prior to the expected duration of the License, the Additional Insureds have the right (but not the obligation) to pay for the extension of coverage for the duration of the License until after the License is expired.
(ii)Each policy shall contain a provision that the policy will not be cancelled, materially changed or allowed to expire until at least thirty (30) days prior written notice by certified or registered mail with return receipt requested has been given to the Apartment Corporation, and policies that lapse or expire during the term of this Agreement or during the CorporationLicense shall be renewed and certificates thereof shall be received by the Apartment no less than thirty (30) days prior to expiration or cancellation. Remote shall provide prompt notice to the insurer involved and to the Apartment Corporation of all damages to property of the Apartment Corporation or of other and of injuries to persons which are related in any manner, directly or indirectly, to the License.
(iii)Remote’s liability shall not be limited because of the insurance required hereunder nor to the amount thereof nor because of any exclusions from coverage in any insurance policy.
(iv)Remote, upon written notice by the Apartment Corporation, shallpromptly provide to the Apartment Corporation true and complete copies of the aforementionedinsurance policies.
(c)To the fullest extent permitted by law, Remote hereby agrees to defend, indemnify and hold harmless the Apartment Corporation and its officers, directors, shareholders, agents and employees: (i) from and against any and all claims, losses, damages or liability arising out of or in connection with the operations and performance of activities by remote in connection with the License including but not limited to (A) the negligence or willful misconduct of Remote or its agents, employees or subcontractors or (B) the breach by Remote of any provision of this Agreement; (C) Strict liability imposed as a consequence of Remote’s actions and/or omissions; and/or (C) the injury or death of any employee of Remote or of any subcontractor of Remote occurring in the course of such person's employment; and (ii) from and against any and all costs, expenses and fees, including, but not limited to, reasonableoutside attorneys', architects', engineers' and consultants' fees and disbursements, all other professional fees and disbursements and court costs and fees arising out of or in connection with any such claim, loss, damage, liability or breach. This indemnity specifically contemplates full indemnity in the event of liability imposed against the Apartment Corporation without negligence and solely by reason of statute, operation of law, or otherwise, and partial indemnity in the event of any actual gross negligence on the part of the Apartment Corporation causing or contributing to the underlying claim, in which event, indemnification will be limited to any liability imposed over and above that percentage attributable to actual fault, whether by statute, by operation of law, or otherwise and, to the fullest extent permitted by law, shall be limited to direct damages only and the Apartment Corporation shall not, hereunder or otherwise, be liable for indirect, consequential or special damages. Remote will reimburse the Apartment Corporation for all reasonable outside attorneys', architects', engineers', consultants' and other professional fees and disbursements incurred by the Apartment Corporation in enforcing this Agreement or any right of the Apartment Corporation, or in defending any claim or suit arising out of or in connection with this Agreement. This paragraph and the indemnities and agreements herein contained shall survive the expiration or earlier termination of this Agreement.
6.Labor. Remote shall be responsible for its own labor relations amongst its employees, and shall expeditiously resolve any disputes between Remote and its employees or anyone representing such employees. Remote shall employ labor and materials which to the Apartment Corporation’s satisfaction will result in labor harmony at the Property and/or the Building.
7.Limitations. Any claim of Owner alleging negligence, default or breach hereunder by Remote shall not accrue until such time as the Apartment Corporation obtains actual knowledge of the existence of such breach, negligence and/or default and shall be thereafter be governed by the time limits set by applicable law for asserting a claim after the date of accrual of the claim.
8.Violations.In the event any violations are placed upon the Property and/or the Building, by any governmental, quasi-governmental and/or independent authorities as a result of the actions and/or omissions of Remote, Remote shall be solely responsible therefore and shall bear all costs in relation thereto and shall cause such violation to be cured and discharged of record within thirty (30) days of Remote receiving notice of the violation. If Remote fails to timely cause such violation to be cured and dismissed of record, the Apartment Corporation may effect such cure and dismissal in which event: (a) Remote shall promptly reimburse the Apartment Corporation for all costs incurred by the Apartment Corporation in connection therewith, including the Apartment Corporation’s reasonable attorneys’ fees.
9.Permits. Any permits and permit applications required to utilize the License by Remote shall be the responsibility of Remote. The Apartment Corporation agrees to execute any documents reasonably required to obtain the permits, at no cost to the Apartment Corporation.
10.License Expiration. With respect to the License Term time is of the essence. If Remote shall fail to remove its property at the conclusion of the Licensed Hours for any day and/or at the expiration of the License Term, then the Apartment Corporation shall be entitled to receive from Remote, as liquidated damages for and by reason of the delay and not as a penalty, the sum of $1,000.00 (One Thousand Dollars) per day for each day, or partial day of delay in removing the aforesaid property. The parties expressly agree that the aforesaid liquidated damages are reasonable, and are intended to fairly compensate the Apartment Corporation for damages which could not otherwise be determined by reason of the delay, and Remote, as a material inducement to the Apartment Corporation’s execution of this Agreement, agrees not to contest the validity or enforceability of the aforesaid liquidated damages.
At the conclusion of the License Term and/or following the utilization of the License on three (3) days in the aggregate during the License Term, Remote and the Remote Personnel shall have no right to enter upon the Property and/or the Building.
Following the termination/ cancellation of the License for any reason Remote shall be liable to the Apartment Corporation for all costs incurred in repairing and/or restoring the Property from any damage caused by Remote and/or the Remote Personnel.
11.Maintenance. Remote and/or the Remote Personnel shall promptly remove all refuse, packing materials, or other garbage which they bring to the Property and/or the Building and be solely responsible for the disposal of same.
12.License Liability.All items placed upon or within the Property, the Units, and/or the Building by Remote shall be at Remote’s sole risk. It is Remote’s duty to provide insurance coverage on their equipment for loss caused by fire or other casualty, including, without limitation, vandalism and malicious mischief, perils covered by extended coverage, theft, water damage (however caused), explosion, sprinkler leakage and any other cause.
13.Temporary Suspension. The Apartment Corporation shall have the right to suspend the License in the event of a breach of this Agreement by Remote and/or in order to: (i) perform work on any portion of Property and/or the Building; (ii) facilitate the performance of work on any portion of the Property and/or the Building by any Tenant; and/or (iii) comply with any applicable law. In the event of a temporary suspension, the License Term shall be extended by an amount of time equal to the length of the temporary suspension.
14.Nuisance. Remote shall not engage in any activity which creates unreasonable noises and/or odors which interfere with the comfort, convenience and enjoyment of the Property, the Building and/or any Unit by Tenants.
15.Site Safety. Remote shall be responsible, at Remote’s sole cost and expense, for ensuring that all applicable safety laws, rules and procedures are utilized. Use of “service stairs” in the Building by Remote Personnel is limited to bona fide emergencies, except as specifically authorized by the Apartment Corporation or its managing agent.