90-045n - Blackberry Farm - Blackberry Farm Recreation Center - Agreement regarding Right of Entry for Subcontractorstd ()t ri
RECORDING REQUESTED BY AND
AFTER RECORDATION RETURN TO:
Berliner, Cohen & Biagini
Ten Almaden Blvd., Eleventh Floor
San Jose, CA 95113
Attn: Edward F. Malysz, Esq.
AGREEMENT REGARDING RIGHT OF ENTRY
This Agreement Regarding Right of Entry ("Agreement") is made
and entered into as of this "?,,z�> day of A , 1991 by
and between BLACKBERRY FARM RECREATION CENTER, a California
corporation ("Blackberry Farm"), and the CITY OF CUPERTINO, a
California municipal corporation ("City").
RECITALS
A. Pursuant to the terms of that certain Contract for
Purchase and Sale of Real Property dated February 4, 1991, as
amended by that First Amendment dated February 19, 1991 ("First
Amendment") and Second Amendment dated March 1, 1991 (collectively
"Contract"), Blackberry Farm agreed to sell to City, and City
agreed to purchase from Blackberry Farm, certain real property
commonly referred to as Blackberry Farm, located in an unincorpo-
rated area of Santa Clara County, California, as more particularly
described in Exhibit "A" attached hereto ("Property").
B. Pursuant to the First Amendment, Blackberry Farm agreed
to perform certain remediation work on the Property following the
consummation of the purchase and sale transaction. Such remedi-
ation work includes (i) the removal of an underground gasoline
storage tank located on the Property, (ii) the removal of soils
from two specific sites located on the Property, and (iii) to the
extent required by applicable federal, state and local laws and
regulations, the removal of soils from the area of the Property
upon which Stevens Creek is located, all as set forth in the First
Amendment (collectively, "Remediation Work").
C. City has acquired title to the Property and now desires
to grant to Blackberry Farm the right to enter the Property to
perform the Remediation Work.
NOW, THEREFORE, in consideration of the mutual covenants and
promises set forth hereinbelow, the parties hereto agree as
follows:
1. Right of Entry. During the term of this Agreement,
Blackberry Farm and its agents, employees, consultants, contractors
and subcontractors shall have the right to enter onto the Property
to perform the Remediation Work, subject to the following terms and
conditions:
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(a) The Remediation Work shall be performed pursuant to
the terms and conditions of the First Amendment.
(b) The performance of the Remediation Work shall not
unreasonably interfere with the possession and use of the Property
by City.
(c) Blackberry Farm shall provide City with at least two
(2) days prior written notice of the scheduled date of entry onto
the Property to perform the Remediation Work.
2. Indemnity. Blackberry Farm shall indemnify, defend and
hold City harmless from and against any and all actions, claims,
damages, losses, costs (including attorneys' fees), expenses,
claims, liabilities, obligations, liens, encumbrances or charges
incurred by City to the extent caused by the negligence or wilful
misconduct of Blackberry Farm or its agents, employees,
consultants, contractors or subcontractors in connection with the
performance of the Remediation Work. City shall indemnify, defend
and hold Blackberry Farm harmless from and against and all actions,
claims, damages, losses, costs (including attorneys' fees),
expenses, claims, liabilities or charges incurred by Blackberry
Farm to the extent caused by the negligence or willful misconduct
of City or its agents, employees, consultants, contractors or
subcontractors.
3. Term. The term of this Agreement shall commence upon the
Effective Date and shall end upon the earlier of (i) the date upon
which the Remediation Work is completed by Seller in accordance
with the terms of the First Amendment or (ii) February 4, 1994.
Upon such termination, the parties shall execute and acknowledge
such instruments as may be necessary to remove this Agreement from
record title to the Property.
4. Cooperation by City. City hereby agrees to cooperate
with Blackberry Farm in connection with the performance by
Blackberry Farm of the Remediation Work. If City unreasonably
interferes with or prevents Blackberry Farm from entering the
Property and/or performing the Remediation Work, Blackberry Farm's
obligation to perform the Remediation Work shall terminate and, in
such event, any and all funds remaining in the escrow account
established for the purpose of funding such Remediation Work shall
be immediately released to Blackberry Farm.
5. Notice. All notices or other communications of the
parties given under this Agreement shall be in writing and
delivered in person or by first class mail, postage prepaid,
addressed to the parties as follows:
Blackberry Farm: Blackberry Farm Recreation Center
c/o Tom Nelson, President
21900 Dolores Avenue
Cupertino, CA 95014
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With a copy to: Blackberry Farm Recreation Center
c/o Judy Lomas, Secretary
12437 Woodside Drive
Saratoga, CA 95070
City: City of Cupertino
City Hall
10300 Torre Avenue
Cupertino, CA 95014
Attn: City Manager
If personally delivered, such notice shall be effective upon the
date delivered. If mailed, such notice shall be effective two (2)
days following the postmark date.
6. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, and all
of which shall constitute one and the same agreement.
7. Attorneys' Fees. In any legal action brought by either
party relating to this Agreement or the breach hereof, the
prevailing party shall be entitled to recover attorneys' fees and
costs of suit.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
BLACKBERRY FARM:
BLACKBERRY FARM RECREATION CENTER,
a California corporation
By:
Its
By:
Its
CITY:
CITY OF CUPERTINO,
a California municipal corporation
By:
Its
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ATTEST
City Clerk
APPROVED AS TO FORM:
, 4"1
City Attorney
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STATE OF CALIFORNIA )
) ss.
COUNTY OF �'- A- )
On this �" day of 1991, before me, the
undersigned Notary Public, personally appeared �2/h /l1d 5o'h
and btbs , personally known to me (or proved to me on
the basis of satisfactory evidence) to be the persons who executed
the within instrument as president and secretary, respectively, on
behalf of the corporation therein named, and acknowledged to me
that the corporation executed the same.
WITNESS my hand and official seal.
OF
JOELLA OLSEN
' NOTARY PUcLIC-CALIFORNIA NOTARY BLIC
_ �t f® YL� SANTA CLARA COUNTY
My Commuion EzpiTes FEB. 25, 1992
C lli P
STATE OF CALIFORNIA )
ss.
COUNTY OF )
c
On this, -IL day of �'%iPCI 1 1991, before me, he
undersigned Notary Public, personally appeared�,���,ra
personally known to me (or proved to me on the basisof satis-
factory evidence) to be the person who executed the within
instrument as mayor on behalf of the municipal corporation therein
named, and acknowledged to me that the municipal corporation
executed the same.
WITNESS my hand and official sAd1).
NOTARY PU IC
FFICT9L
:.
Dorothy `FAL
Y Mari?
c'' \_ � 01ARY PUB; -IC _ Cornelius c�
6 M S:'iviA C�.' CALIi
Y C..%N11A G
ommissionEx d 'A COUNTY
Pires Sept. 12, 1992
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