03-024 Michael GilleyJ i
RIGHT OF ENTRY AGREEMENT
THIS AGREEMENT is made and entc:red into this I~~day of ~~~r~~~'
200 , by and between the CITY OF CUPERTINO, a municipal corporation of "J
California, hereinafter referred to as "CITY" rind MICHAEL GILLEY, owner of the
property located at 10440 Serra Street, Cupertino, California 95014, hereinafter referred
to as "OWNER."
WHEREAS, OWNER has applied to the CITY to construct a Pool on the property
located at 10440 Serra Street, Cupertino; and
WHEREAS, CITY has approved such application; and
WHEREAS, CITY and OWNER agref; that. access to the Pool area from 10440
Serra Street frontage during construction may be hazardous to public health and safety;
NOW, THEREFORE, in consideration. of their mutual covenants, the parties
agree as follows:
ACCESS. Access during Pool construction shall be allowed across CITY property at
10450 Serra Street, Cupertino, California 950:'.4.
Time of access shall be limited to work hours Monday through Friday from 8:00 A.M. to
5:00 P.M.
OWNER and CITY agree that access shall be '`pass through" access only. No parking
shall be allowed on CITY property. No storage of materials shall be allowed on CITY
property. The city-owned access shall be adequately maintained by OWNER throughout
the duration of the work. OWNER agrees that: repair of damage to the access shall be
presumed to be the responsibility of OWNER unless otherwise determined by CITY. A
final on the building permit will not be given until the access is inspected and all repairs
have been completed and it is restored to the original condition.
TERM. This AGREEMENT shall remain in full force and effect for one year from the
date of its execution, or until the project is completed as determined by a final building
inspection by the CITY, whichever comes sooner. If, after one year, the project is not
completed, and CITY and OWNER mutually agree that access via 10450 Serra Street
continues to be necessary, this AGREEMENT may be renewed by written consent of the
CITY.
TEMPORARY SUSPENSION. The City Manager shall have the authority to suspend
this AGREEMENT, wholly or in part, for such period as he deems necessary due to
unfavorable conditions or to the failure on the part of the OWNER to perform any
provision of this AGREEMENT.
INDEMNIFICATION. OWNER hereby agrees to indemnify and hold harmless CITY,
its officers, agents and employees from and a€;ainst:
a. Any and all damage to or destruction of the property of CITY occupied or
used by or in the care, custody and control of OWNER, caused by any act
or omission, negligent or otherwise, of OWNER or any subcontractor
under this AGREEMENT, or any employee or agent of OWNER or of any
subcontractor.
b. Any and all claims and demands which may be made against CITY, its
officers, agents, or employees ley reason of any injury to or death of or
damage suffered or sustained by any person arising out of this
AGREEMENT, excepting, hoveever, any claims or demands arising out of
the sole negligence or willful misconduct of CITY, its officers, agents or
employees.
c. Any and all claims and demands which may be made against CITY, its
officers, agents, or employees ley reason of any property damage suffered
or sustained by any person arising out of this AGREEMENT, excepting,
however, any claims or demands arising out of the sole negligence or
willful misconduct of CITY, it:; officers, agents or employees.
d. Any and all penalties imposed ~~r damages sought on account of the of the
violation of any law or regulation or of any term or condition of any
permit by OWNER or his agents, employees or subcontractors.
INSURANCE. OWNER agrees to obtain, anti shall require any subcontractor engaged to
perform work on the project to obtain, and maintain at all times during the term of this
AGREEMENT, a policy of liability insurance naming the CITY as an additional insured.
Said separate policy shall provide bodily injury and property damage coverage to the
CITY on an occurrence basis; and said policy or policies shall provide that the coverage
afforded thereby shall be primary coverage to the full limit of liability stated below.
The insurance carrier rating shall be a Best's Ciuide rating of "A" Class VII or better.
Each of said policies of insurance shall provide coverage in the following minimum
amounts: For bodily injury, $1.0 million each per person; $2.0 million each occurrence,
property damage, $1.0 million on account of any one occurrence with an aggregate limit
of not less than $2.0 million.
Contractor and all subcontractors will carry w~~rker's compensation insurance for the
protection of its employees during the progress of the work, limits shall be $1.0 million
per occurrence. The insurer shall waive its rights of subrogation against the CITY, the
CITY's officers, agents and employees and shall issue an endorsement to the policy
evidencing same.
OWNER shall file with the CITY prior to the time of execution of this AGREEMENT
such evidence of said foregoing policy or policies of insurance. Each such policy or
policies shall bear an endorsement precluding the cancellation or reduction in coverage
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without giving the CITY at least thirty (30) days advance notice thereof. The CITY shall
be shown as additionally insured on a separate; Endorsement provided along with the
evidence of said foregoing policy or policies of Insurance.
Insurance shall stay in full force and effect foi• the duration of this agreement, and until
released by the CITY.
AGREEMENT BINDING. The terms, covenants, and conditions of this AGREEMENT
shall apply to, and shall bind the heirs, success>ors, executors, administrators, assigns and
subcontractors of OWNER.
WAIVER. The waiver by either party of any breach or violation of any term, covenant or
condition of this AGREEMENT shall not be deemed to be a waiver of any other term,
covenant or condition or of any subsequent breach or violation of the same term,
covenant or condition.
USES SUBORDINATE. This AGREEMENT' is not a grant by CITY of any property
interest. This AGREEMENT shall not create a vested right of any nature in OWNER to
use the CITY access. This AGREEMENT is :subject and subordinate to the prior and
continuing right of C1TY and its assigns to use any and all of the CITY access for any
lawful use. It is further subject to all deeds, easements, dedications, conditions,
covenants, restrictions, encumbrances and claims of title which may affect the CITY
access. OWNER shall be solely responsible fir obtaining all necessary permits and
approvals from all public and private entities.
NOTICES. All notices which shall or may be given pursuant to this AGREEMENT shall
be in writing and transmitted through first class United States mail, or by private delivery
systems, to the following address or such other addressor such other address of which a
party may give written notice:
City: City of Cupertino
City Manager
10300 Torre Avenue
Cupertino, Ca 95014
Owner: Michael Gilley
10440 Serra Street
Cupertino, Ca 95014
ASSIGNMENT. This AGREEMENT shall not be assigned by OWNER without CITY's
prior written consent, which shall not be unreasonably withheld, and any such attempted
assignment shall be void. OWNER shall give to CITY thirty (30) days' prior written
notice of such transfer. The sale, lease or other transfer of interests by OWNER of the
property to third parties in the normal course of business shall not be deemed an
Assignment.
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ENTIRE AGREEIvIENT. This AGREEMEN~~ contains the entire understanding between
the parties with respect to the subject matter herein. There are no representations,
agreements or understazadings (whether oral or written) between or among the parties
relating to the subject matter of this AGREEMENT that are not fully expressed herein.
AMENDMENTS. This AGREEMENT may not be amended except pursuant to a written
instrument signed by all parties.
BILITY. If any one oz more of the provisions of this AGREEMENT shall be
held by a court of competent jurisdiction in a final judicial action to be void, voidable, or
unenforceable, such provision(s) shall be deemed separable from the remaining
provisions of this AGREEMENT and shall in tto way affect the validity of the remaining
portions of this AGREEMENT.
CONSTRUCTION OF AGREEMENT. This ~#GItEEMENT shall be governed and
construed by and in accordance with the laws of the State of California. In the event tltat
suit is brouglu by a party to this AGREEMEN"[', the parties agree that trial of such action
shall be vested exclusively in the state courts of California, County of Santa Clara.
IN WITNESS WHEREOI=, the parties have executed this AGREEMENT on the date set
forth above.
CITX OF CUPERTINO OWNER
2. ~(,v3
City Manager
ATTEST:
City Clerk
• n 'r /1 T'~l1TLd_
Michael Gilley
10440 Serra St.
Cupertino, CA 95014
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