An access agreement is a legal contract between the owners of two or more adjoining properties, that provides terms for accessing each other’s properties.
This is an agreement that frequently needs to be signed in dense urban areas with adjacent buildings when exterior work is being done, like facade repairs or Local Law 11 repairs in NYC.
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Why would you need access to the adjacent building(s) if you’re just repairing your own building’s facade? Well, keep in mind that facade repairs or roof work might require a sidewalk shed to be installed on either side to protect the roofs of adjacent buildings lower in elevation than yours.
In case of any falling debris from work being conducted on your roof for example, you’ll want a sidewalk shed in-place on your neighbor’s roofs to protect them from damage.
Furthermore, if your building is taller than the adjacent buildings, then at some point you will need to repair the facade on the sides of the building as well.
There’s also the likelihood that any number of inspections by contractors, architects and city officials will need to happen to check out the sides of your building, if your building is taller than the adjoining buildings. If you have a landmarked building, then you may even need the sides to be inspected by the Landmarks Preservation Committee.
As you can imagine, to inspect the sides of the building, all of these people will need access to the adjoining buildings, including their roofs. As a result, an access agreement is absolutely important to get negotiated prior to starting any sort of facade work.
Depending on your building management company and board, the access agreement might be negotiated on your behalf by the building’s lawyer, the legal team of the managing agent’s capital projects division, or by board members themselves.
Keep in mind that in New York, lawyers are required when it comes to negotiating contracts and providing legal advice. That’s why buyers and sellers both need their own respective attorneys in negotiating a real estate purchase contract.
However, sometimes it can be beneficial if one of the board members knows the owner of the adjacent building personally, and can put in a personal call.
This form of direct, personal outreach can be very powerful in getting things moving if the lawyers aren’t getting anywhere. You’d be surprised how often this works, because often times the owners themselves are actually very motivated to get the work started, but everyone else is essentially just being paid for their time.
The owner or owners of a building need to sign an access agreement. If the building is owned in a LLC or other corporate structure, than an authorized person or officer of the entity needs to sign.
In the case of a condo or co-op corporation, typically a board member that’s an officer (i.e. President, Treasurer, Secretary) will sign any access agreements on behalf of all unit owners.
In the rare instance that the building’s attorney or managing agent has a power of attorney in place, then that person can also sign the access agreement.
In the case of a condominium with a volunteer board of directors, it’s extremely important to appoint an officer who’s responsive and engaged. Otherwise, important documents like access agreements may take days to get signed if the President or other authorized officer doesn’t bother to read or respond to their emails.
LICENSE AND INDEMNIFICATION AGREEMENT (“AGREEMENT”) BETWEEN BOARD OF MANAGERS OF 123 CHAMBERS STREET CONDOMINIUM (“PROJECT OWNER”), ON BEHALF OF THE “UNIT OWNERS” OF 123 CHAMBERS STREET CONDOMINIUM, AND MADISON PROPERTIES LLC (“ADJACENT OWNER”) DATED AS OF MARCH __, 2022 (the “AGREEMENT”)
WHEREAS, Adjacent Owner is the owner of the real property and improvements located at 125 Chambers Street, New York, New York (designated as Block 56, Lot 17) including the building located thereon (“Adjacent Property”); and
WHEREAS, the Unit Owners collectively own the real property and improvements located at 123 CHAMBERS STREET, New York, New York (designated as Block 56, Lot 16), including the apartment building located on Project Property (“Project Property”); and
WHEREAS, on behalf of the Unit Owners, Project Owner is required to perform certain work to the exterior of building on the Project Property in compliance with New York City Local Law 11 (the “Work”); and
WHEREAS, Project Owner is seeking a temporary, non-exclusive, license to enter upon the Adjacent Property to erect, maintain and dismantle measures to protect the Adjacent Property (the “Protective Measures”); and
WHEREAS, Adjacent Owner is seeking a non-exclusive, license to enter upon the Project Property and the Protective Measures to perform work on the Adjacent Property (the “Adjacent Work”); and
WHEREAS, Adjacent Owner is willing to grant Project Owner a license that will permit Project Owner to install, maintain and remove the Protective Measures and Project Owner is willing to grant Adjacent Owner a reciprocal license that will permit Adjacent Owner to perform the Adjacent Work on the following terms and conditions.
NOW, THEREFORE, Adjacent Owner and Project Owner (the “Parties” and individually, a “Party”) agree as follows:
Adjacent Owner grants to Project Owner a limited non-exclusive license to access the Adjacent Property for the purpose of installing, maintaining and removing the Protective Measures as delineated in the plans annexed as Exhibit A hereto (the “Plans”), or as otherwise provided for herein (the “License”). Project Owner shall not amend the Plans without Adjacent Owner’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed.
Project Owner grants Adjacent Owner a limited non-exclusive license to access the Project Property solely in order to stand on the sidewalk bridge installed by Project Owner to perform the Adjacent Work (the “Adjacent License”).
On five (5) day’s advance written notice (via email), Adjacent Owner shall permit Project Owner and/or its architects, managing agent, engineers or contractors (the “Construction Team”) access to the Adjacent Property for the purpose of performing a non-invasive, visual pre-construction condition survey and the Construction Team shall also conduct a non-invasive, visual pre-construction condition survey of the Project Property (the “Pre-Con Survey“). As part of performing the Pre-Con Survey, Project Owner may take color photographs and video, and document the current condition, of both the interior and exterior of the Adjacent Property that might be impacted by the Work and/or the Protective Measures. Project Owner agrees to provide to Adjacent Owner with an electronic copy of any reports prepared by the Construction Team concerning the Pre-Con Survey, as well as all accompanying color photographs and video (the “Pre-Con Report”).
Project Owner shall provide Adjacent Owner at least three (3) business days’ notice (via email) prior to Project Owner and/or the Construction Team accessing the Adjacent Property to commence installation of the Protective Measures (the “Access Notice”). Such Access Notice may be provided by electronic mail to [INSERT EMAIL ADDRESS].
Adjacent Owner shall provide Project Owner with at least three (3) business days’ notice (via email) prior to Adjacent Owner accessing the Project Property (the “Adjacent Access Notice”). Such Adjacent Access Notice may be provided by electronic mail to Jordan Belfort [firstname.lastname@example.org] and [INSERT EMAIL ADDRESS for contractor]
The term of the Agreement shall commence upon Project Owner’s delivery of a fully executed copy of the Agreement to Adjacent Owner (via email) and shall terminate on the date “Applicable Laws” (defined herein) no longer require the Protective Measures to remain on the Adjacent Property and the Protective Measures have been removed from the Adjacent Property. Project Owner shall diligently prosecute the Work and estimates that, subject to weather conditions and unforeseen conditions at the Adjacent Property, that the Protective Measures will likely be removed twelve (12) months after the Protective Measures are first installed on the Adjacent Property. Except in cases of emergency, each Party may only access the other Party’s property on Mondays through Fridays, from 8:00 A.M. to 6:00 P.M., excluding legal and religious holidays.
Each Party may not place or store any tools, equipment or materials on the other Party’s property without prior written consent except: (i) as provided in the Plans; (ii) as contemplated in this Agreement; (iii) as may be required by Applicable Laws; or (iv) in case of an emergency. Neither Party’s representatives shall access the property of the other Party except as otherwise provided in this Agreement.
The Parties shall cooperate with each other so that the Project Measures can be implemented and maintained, and the Work and Adjacent Work performed, in a safe and secure manner.
The installation, maintenance and removal of the Protective Measures shall be performed in a good and workmanlike manner, and in accordance with all Applicable Laws. The Protective Measures shall be removed as soon possible after the Protective Measures are no longer required by Applicable Laws. Project Owner shall also be responsible, at its sole cost and expense, for obtaining all permits and authorizations required in connection with the installation, maintenance and dismantling of the Protective Measures. Project Owner shall take commercially reasonable measures to ensure that the Work does not damage any part of the Adjacent Property or the occupants thereof, or interfere with permitted access to or use of the Adjacent Property. Notwithstanding the foregoing, Adjacent Owner acknowledges that noise, vibration, odors and dust cannot be completely eliminated considering the nature of the Work. Adjacent Owner shall not remove or interfere with the Protective Measures and promptly shall advise Project Owner if Adjacent Owner becomes aware that the Protective Measures has been disturbed.
Adjacent Owner shall ensure that the Adjacent Work is performed in a good and workmanlike manner, and in accordance with all Applicable Laws. Adjacent Owner shall also be responsible, at its sole cost and expense, for obtaining all permits and authorizations required in connection with the Adjacent Work. Adjacent Owner shall take commercially reasonable measures to ensure that the Adjacent Work does not damage any part of the Project Property or the occupants thereof, or interfere with permitted access to or use of the Project Property. Notwithstanding the foregoing, Project Owner acknowledges that noise, vibration, odors and dust cannot be completely eliminated considering the nature of the Adjacent Work.
Project Owner or its general contractor, ____________________, (“Contractor”) and Adjacent Owner or its contractor (“Adjacent Contractor”) shall, at their own cost and expense, procure and maintain until the removal of the Protective Measures the following insurance: (i) Workers Compensation insurance as required by Applicable Law; (ii) commercial general liability insurance (including contractual liability) with minimum required limits of $1 million per occurrence and in $2 million in the aggregate; (iii) commercial automobile insurance, including owned, non-owned and hired vehicles with a combined single limit of not less than $1 million; and (iv) excess/umbrella insurance, which either shall follow the form of the primary insurance or provide umbrella coverage that is at least as broad as the primary insurance, with a limit of no less than $5 million per occurrence and in the aggregate.
The foregoing insurance shall be underwritten by financially responsible insurance companies incorporated under the laws of the United States or states thereof and licensed in the State of New York and reasonably acceptable to the Parties. All such insurance policies shall be written on an occurrence basis, and shall provide for a waiver of the right of subrogation in favor of the “Additional Insureds” identified in this Agreement (as defined herein). All such insurance shall be on a non-contributory basis and shall be primary for any and all losses arising out of or in connection with the performance of the Work. Prior to the installation of the Protective Measures, the Parties shall exchange copies of all certificates of insurance evidencing all the insurance required pursuant to the terms of this Agreement.
All of the aforesaid primary and umbrella policies (not including the workers compensation policy) procured by Project Owner or the Contractor shall name as the “Additional Insureds” Adjacent Owner, and its officers, directors, employees and agents. All of the aforesaid primary and umbrella policies (not including the workers compensation policy) procured by Adjacent Owner or the Adjacent Contractor shall name as the “Additional Insureds” Project Owner, the Unit Owners, Project Owner’s managing agent, and each of their respective officers, directors, employees, tenants and agents.
The insurance maintained pursuant to this Agreement shall be deemed primary and non-contributory vis-à-vis any insurance maintained by the applicable Additional Insureds.
The Parties shall take any and all precautions consistent with industry standards and Applicable Laws for the safety of persons and property on or about the Adjacent Property and the Project Property in connection with the Work, the Adjacent Work, and the Protective Measures. As used in this Agreement, the term “Applicable Law” shall mean all city, state, federal and other municipal laws, requirements, statutes, rules, codes, standards, regulations, orders of governmental and quasi-governmental authorities, industry standards, and testing standards and specifications as they relate to the Work, the Adjacent Work, or the Protective Measures.
If Adjacent Owner claims that any damage has been caused to the Adjacent Property in connection with the Protective Measures or the Work, Adjacent Owner shall promptly send written notification to Project Owner specifying the item or property damaged and the nature of the damage. Project Owner shall repair and restore (and where reasonably required replace) such property as soon as reasonably possible. If Project Owner claims that any damage has been caused to the Project Property in connection with the Adjacent Work, Project Owner shall promptly send written notification to Adjacent Owner specifying the item or property damaged and the nature of the damage. Adjacent Owner shall repair and restore (and where reasonably required replace) such property as soon as reasonably possible
The rights granted herein shall be a license only, and no easement shall be created as a result of this License or Project Owner’s installation, maintenance, operation and use of the Adjacent Property for the installation, maintenance and removal of the Protective Measures or Adjacent Owner’s use of the Project Property. Upon expiration of the Agreement, the License granted herein shall be deemed expired.
The Parties shall cooperate to keep the Adjacent Property and Project Property reasonably free and clear of material, debris or rubbish caused by the Work and the Adjacent Work.
In case of emergency, the Party experiencing the emergency shall notify the other Party by email and by telephone.
To the fullest extent permitted by law, Project Owner and Contractor shall indemnify, defend and hold harmless Adjacent Owner and its officers, directors, agents and employees from and against all claims, damages, losses and expenses of any nature whatsoever, including, without limitation, reasonable attorneys’ fees and disbursements, arising out of, relating to, or resulting from the installation, maintenance or removal of the Protective Measures or the Work (the “Claims”), except to the extent the Claims resulted from the acts, omissions, negligence or gross negligence of Adjacent Owner or its representatives. To the fullest extent permitted by law, Adjacent Owner and Adjacent Contractor shall indemnify, defend and hold harmless Project Owner and its officers, directors, managers, agents, Unit Owners, and employees from and against all claims, damages, losses and expenses of any nature whatsoever, including, without limitation, reasonable attorneys’ fees and disbursements, arising out of, relating to, or resulting from the Adjacent Work (the “Adjacent Claims”), except to the extent the Adjacent Claims resulted from the acts, omissions, negligence or gross negligence of Project Owner or its representatives
Except as otherwise provided herein, any notice which any party is required or may desire to give under this Agreement shall be given by email and by overnight mail by a national recognized overnight delivery service to the following addresses:
If to Adjacent Owner:
Madison Properties LLC
245 Madison Avenue
New York, New York 34401
Madison & Roe Law Associates, PLLC
124 Broadway, Suite 903
New York, New York 10015
Attn: James Roe, Esq.
P: 212-258-1489, Ext. 485
If to Project Owner:
The Board of Managers of 123 CHAMBERS STREET Condominium
c/o Property Management Organization
124 5th Avenue, 10th Floor
New York, New York 10015
Attn: James Monroe
P: 212-254-1547, ext. 489
John Moss, Esq.
Moss & Moss PLLC
220 Fifth Avenue, Suite 105
New York, New York 10013
The covenants, conditions and agreement contained in this Agreement shall bind and inure to the benefit of the Parties hereto and their respective successors and assigns.
The undersigned individuals executing this Agreement on behalf of their respective parties or entities represent and warrant that said individuals or entities are authorized to enter into and execute this Agreement on behalf of such Parties, that the appropriate corporate resolutions or other consents have been passed and/or obtained, and that this Agreement shall be binding on the parties executing this Agreement.
Each Party affirms for itself that no approvals or consents of any other person or entity including, without limitation, any board of directors, board of managers, tenant, shareholder, unit owner, lender or mortgagee is required for this Agreement to be valid and binding other than any such consents and approvals that already have been obtained and have not expired or been revoked.
Adjacent Owner shall execute any New York City Department of Buildings applications reasonably requested by Project Owner, which applications shall be prepared and filed at the sole cost and expense of Project Owner, if required.
This Agreement constitutes the entire agreement of the Parties concerning the subject matter hereof and supersedes any prior or contemporaneous representations or agreements not contained herein. In entering into this Agreement, the Parties acknowledge that they are not relying on any statement, representation, warranty, covenant, or agreement of any kind made by the other party or by any agent or employee thereof, except for the agreements set forth herein. The Parties further acknowledge that they will only be bound by duly executed, written instruments. This Agreement may only be changed or amended in a writing signed by the Parties.
This Agreement may be executed in several counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. Facsimile or electronic signatures shall be deemed originals.
Any failure by a Party (the “non-waiving Party”) to insist upon the strict performance by the other party hereto of any of the provisions of this Agreement shall not be deemed a waiver of any of the provisions hereof, and the non-waiving Party, notwithstanding such failure, shall have the right thereafter to insist upon the strict performance by the other party of any and all of the provisions of this Agreement to be performed by the other Party.
All disputes arising, directly or indirectly, out of or relating to this Agreement, and all suits, actions, or proceedings to enforce this Agreement, unless resolved by mutual agreement of the Parties, shall be adjudicated and resolved by the Courts of the State of New York, sitting in New York County of, and each Party hereto expressly and irrevocably submits to the exclusive jurisdiction of any such court in any suit, action, or proceeding arising, directly or indirectly, out of or relating to this Agreement. In the event of any suit, action or proceeding between the Parties, the non-prevailing Party shall reimburse the prevailing Party for all reasonable attorney’s fees, disbursements and court costs incurred by the prevailing Party in such suit, action or proceeding.
Neither Project Owner nor Adjacent Owner shall be liable to the other party for losses or damages of a punitive, special, exemplary, indirect or consequential nature, regardless of whether such losses arise or are based in contract or tort (including negligence). No personal or other liability arising out of or relating to this Agreement shall accrue against any shareholder, unit owner, principal, officer, director, trustee, member or partner of either Party.
Adjacent Owner shall not make any complaint to the New York City Department of Buildings or any other governmental authority with respect to the Protective Measures or the Work, except in the case of an emergency relating to the health, safety or welfare of persons or the threat of damage to the Building and/or the Adjacent Property, without first contacting Project Owner and trying to resolve the complaint with Project Owner, provided that Project Owner responds to Adjacent Owner and resolves the complaint within five (5) business days of being notified of the complaint by Adjacent Owner, or if the complaint cannot be completely resolved within five (5) business days, Project Owner commences with due diligence and in good faith proceeds to resolve the complaint within five (5) business days and thereafter diligently pursues resolution.
The Parties have reviewed this Agreement, and any rule of construction to the effect that any ambiguity should be construed against the drafting party will not be employed in the interpretation of this Agreement. This Agreement has been negotiated at arms’ length and in good faith. The Parties have relied upon independent legal counsel of their choice or have had the opportunity to do so.
This Agreement may be executed in counterparts and fax copies and/or electronically scanned copies of signatures shall have the same effect as original signature.