HomeMy WebLinkAboutAgr 2009-10-07 (Hansen, Vogelheim/Goodwills)OPEN SPACE ACCESS AND INDEMNITY AGREEMENT
THIS AGREEMENT is made effective October 7, 2009 by and between John
Hansen and Katie Vogelheim, the owners of 170 Hacienda Drive, Tiburon
California, ("THE HANSENS"), Sidney and Susan Goodwill, the owners of 160
Hacienda Drive, Tiburon California, ("THE GOODWILLS") and The Town of
Tiburon ("TOWN").
WHEREAS, TOWN has installed a locked gate at the boundary between the end
of Hacienda Drive and the adjacent TOWN open space ("OPEN SPACE GATE")
and the HANSENS and GOODWILLS have demonstrated to the satisfaction of
the TOWN that they each own a private legal right to use Hacienda Drive to the
point where the TOWN has installed the above referenced gate, the parties agree
as follows;
1. The TOWN will issue one access key for THE OPEN SPACE GATE to
the HANSENS and one access key to the GOODWILLS. The keys will
allow the holder to open the OPEN SPACE GATE and access the Town
open space. Should the TOWN change the locks, new keys will be
issued to the HANSENS and the GOODWILLS. The HANSENS and
GOODWILLS will not make or distribute copies of the keys to anyone
and will use the keys in a responsible and neighborly manner. By
issuing the keys, TOWN does not relinquish and expressly reserves
what it believes to be its right to control access to its open space. In the
event there is a judicial determination prohibiting the TOWN from
issuing keys to THE OPEN SPACE GATE, or the TOWN decides to
eliminate private access through the open space gate, the HANSENS
and the GOODWILLS will, upon request, surrender all keys in their
possession. By surrendering the keys in accordance with the town's
request and the terms of this agreement the HANSENS and the
GOODWILLS do not waive and expressly reserve what they believe to
be their legal rights to access the TOWN open space from Hacienda
Drive and their right to challenge the TOWN's decision to the contrary
on all factual and legal grounds.
2. The HANSENS and GOODWILLS hereby agree, jointly and severally,
that in the event the owners of 180 Hacienda Drive, Tiburon,
California, bring a civil action against the TOWN challenging the
issuance of keys to the OPEN SPACE GATE in accordance with the
terms of this agreement, the HANSENS and the GOODWILLS will
retain private legal counsel to defend, indemnify and hold harmless
TOWN, its officers, employees, and agents from said action and will
pay all attorney fees and court costs associated with the defense. In the
event the town shall prevail in any such legal action and recover
attorney fees and/or court costs as the prevailing party, the HANSENS
and the GOODWILLS shall be reimbursed for all sums expended up to
the total amount of such recovery. The obligations assumed by the
HANSENS and the GOODWILLS in this paragraph shall terminate at
such time as the HANSENS and the GOODWILLS surrender the keys
to TOWN, whether voluntarily or upon the TOWN's request.
Notwithstanding the foregoing, said obligations will continue as to
claims or causes of action arising before the surrender of the keys if
such claims or actions are not rendered moot by such surrender.
3. The HANSENS and GOODWILLS hereby agree, jointly and severally,
to defend, indemnify and hold harmless TOWN, its officers,
employees, and agents from any claims, actions, or other proceedings
brought by the owners of 180 Hacienda Drive, Tiburon, California,
arising from the use of the keys and access to the open space and will
pay all attorney fees and court costs associated with the defense. In the
event the TOWN shall prevail in any such legal action and recover
attorney fees and / or court costs as the prevailing party, the HANSENS
and the GOODWILLS shall be reimbursed for all sums expended up to
the total amount of such recovery. The obligations assumed by the
HANSENS and the GOODWILLS in this paragraph shall terminate at
such time as the HANSENS and the GOODWILLS surrender the keys
to TOWN, whether voluntarily or upon the TOWN's request.
Notwithstanding the foregoing, said obligations will continue as to
claims or actions arising before the surrender of the keys if such claims
or actions are not rendered moot by such surrender.
4. HANSENS and GOODWILLS hereby agree and acknowledge that
they will use the keys and access the open space at their own risk.
They further agree, jointly and severally, to waive and release the
TOWN from any and all claims arising from their use of the keys and
access to the open space. Neither the TOWN nor any of its officials,
officers, agents, or employees thereof shall be responsible or liable for
injury to persons (including the death of person or persons) or damage
to any property of the HANSENS and GOODWILLS arising from this
agreement. Said liability and responsibility shall be borne solely by the
HANSENS and GOODWILLS.
5. Nothing in this agreement shall be construed as a modification
or waiver of any of the legal rights held by each of the parties
prior to execution of this agreement.
The Hansens
The Goodwills
APPROVED AS TO FORM
ANN R. DANFORTH
Attorney for Town of Tiburon
JOHN E. CAREY
Attorney for HANSENS AND GOODWILLS