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LINIITED ACCESS AGREEMENT
THIS ACCESS AGREEMENT("Agreement')is made and entered into as of the last date of
signature indicated below(the"kffective Date"),by and between Bonita LLC, an Oregon limited liability
company("Bonita"),and the City of Tigard,a municipal subdivision of the state of Oregon
RECITALS
A. Bonita is the owner real property legally described on the attached and incorporated
Exhibit A(the"Pro a ")located in the City of Tigard,County of Washington,and State of Oregon.
B. The City is considering the potential purchase of the Property. As part of this
consideration,City desires to conduct a pre-construction environmental site assessment("LSA")on the
Property.
C. City intends to contract with a third party to perform the ESA, and Bonita desires to
allow City access to the Property for such limited purposes,upon and subject to the terms and conditions
set forth herein.
AGREEMENT
NOW TIEREFORI✓,in consideration of the mutual promises set out below,the parties hereby
agree:
1. Grant of Access to City. Bonita hereby grants to City a non-exclusive,temporary
permit to enter upon the Property for the limited purposes of conducting the ESA. City's ESA activities
shall be contained within the Property.
2. Noninvasive vs.Invasive ESA Activities.
(a) City may engage in the following noninvasive ESA activities without first obtaining
Bonita's prior written consent: a site inspection of the Property and any other non-invasive activities
related to performing a Phase I Environmental Site Assessment in general accordance with the scope and
limitations of the American Society for Testing and Materials("ASTM')Standard E 1527-05 and Alt
Appropriate Inquiries("AAI")rule, Federal Register,Vol. 70,No.2010.
(b) City must fust obtain Bonita's prior written consent,which may be withheld or
conditioned in its sole discretion,before engaging any invasive ESA activities,including without
limitation,the following: soil,sediment,water,and groundwater sampling;conducting subsurface
surveys; drilling or boring of holes; any other activities conducted in accordance with Phase II
Environmental Site Assessment work in general accordance with ASTM Standard E 1903-97.
3. Notice of Entry;Copies of Reports. City shall notify Bonita in writing or by telephone
at least five(5)days in advance of any entry onto the Property so that a Bonita representative has the
opportunity to accompany each person entering the Property pursuant to this Agreement. All 13SA
activities undertaken by City shall occur between the hours of 7:00 a.m.and 7:00 p.m. City shall provide
to Bonita upon request,a copy of all reports,test and data summaries,and correspondence prepared as a
result of the ESA and City shall have Bonita added as a certified user of the ESA report.
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4. Term of Agreement. Unless earlier terminated as provided herein,this Agreement shall
begin on the Effective Date hereof and continue for a period of sixty(60)days or until the conclusion of
all work reasonably necessary to complete the ESA,whichever date is the earlier to occur.
5. City's Covenants. City shall: (a)perform all ESA work in a safe manner, in material
compliance with all applicable laws,orders,rules,regulations and ordinances;(b)obtain any and all
governmental permits and approvals which may be necessary for it to perform the ESA's;(c)promptly
and adequately repair any damage to the Property caused by City by restoring the damaged area(s)to
substantially original condition;(d)promptly remove from the Property all equipment,vehicles,
materials,soil, liquids,wastes,and/or other substances,that come to be located on the Property as a result
of its entry on the Property;and(f)not permit any mechanic's,materialmen's, or other liens or claims to
stand against the Property for labor or material furnished in connection with City's permitted ESA
activities.
6. Indemnity. City shall defend(with counsel reasonably acceptable to Bonita),indemnify,
and hold harmless Bonita and its members,representatives,employees, and agents(collectively,the
"ILdemnif ed Persons")from and against any and all claims,demands,actions,suits,damages,liabilities,
injury to persons or property,costs,penalties,fines or expenses(including reasonable attorney,
engineering, and other professional or expert fees)(collectively"Daagc")which, in whole or in part,
directly or indirectly,arise from or are in any way connected with entry onto the Property by City,the
ESA,or any breach,violation or nonperformance of any of City's obligations under this Agreement.
Notwithstanding the foregoing,the foregoing indemnity shall not apply to the extent any Damages are
caused by the gross negligence or willful misconduct of the Indemnified Persons.
7. Notice. Notices shall be delivered in person or mailed by first class mail to the following
address to the attention of the person specified below;
To Bonita: Attn:Milton Brown
8320 NE Hwy 99
Vancouver,WA 98665
(3.60)574-6255
To City: City of Tigard
Attn:Kim McMillan
13125 SW Hall Blvd
Tigard,OR 97223
(503)718-2642
8. Termination. In the event City fails to comply with any provisions of this Agreement
(" a ault"),then Bonita may immediately or any time thereafter terminate this Agreement upon written
notice to City. Such termination shall not affect Bonita's rights to pursue other remedies for such Default_
All obligations of the parties hereunder not fully discharged or fulfilled by such party(including,without
limitation,City's indemnity obligations set forth in Section 7 above)shall survive the termination of this
Agreement.
9. Miscellanoous.
(a) This Agreement is personal to City and is for City's use only,and is not intended to be an
easement,and is not transferable or assignable by City.
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(b) The above Recitals are incorporated herein by this reference as material terms of this
Agreement,and not as mere recitals.
(c) As used in this Agreement,the terms Bonita and City, include their respective employees,
agents,authorized representatives,contractors,and subcontractors,retained either directly or indirectly.
The parties have executed this Agreement effective as of the date last set forth below.
BONITA
By-
Its;
Date:
CITY OF TIGARD
By*,4
Its: IqAe�clL
Date:
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EXHIBIT"A"
ALL OF LOT 2 AND A PORTION OF LOT 1, "BONITA INDUSTRIAL PARK" A PLAT OF
RECOkD IN THE NORTHEAST QUARTER OF SECTION 12, TOWNSHIP 2 SOUTH,
RANGE 1 WESTL_WILLAMETTE MZRjDI6N CITY . Qf TNiARI). WJLSHING'1'OLL_
COUNTY, OREGON SAID PORTION BEING MORE PARTICULARLY DESCRIBED AS
FOLLOWS,
BEGINNING AT A FOINT ON THE MOST WESTERLY LINE OF SAID LOT 1, WHICH
POINT BEARS NORTH 04"20'02" WEST 41.46 FEET FROM THE MOST WESTERLY
SOUTHWEST CORNER OF LOT I SAID POINT OF BEGINNING ALSO BEINO ON THE
EAST RIGHT OF WAY LINE OF SW MILTON DRIVE, AND RUNNING THENCE NORTH
89'17'03" EAST 251.59 FEET TO A POINT ON THE EAST LINE OF SAID LOT l; THENCE
ALONG THE BOUNDARY OF SAID LOT 188.30 FEET ALONG THE ARC OF A 1736.73
FOOT RADIUS NON TANGENT CURVE TO THE LEFT (THE LONG CHORD OF WHICH
BEARS NORTH 19019'09" WEST 188.21 FEET)TO THE SOUTHEAST CORNER OF SAID
LOT 2; THENCE SOUTH 73902'59" WEST, ALONG THE SOUTH LINE TFEREOF, 226.46
FEST TO TIM NORTHWEST CORNER OF SAID LOT 1; THENCE 1I8.20 FEET ALONG
THE ARC OF A $03.00 FOOT RADIUS NON TANGENT CURVE TO THE RIGHT ('THE
LONG CHORD OF WHICH BEARS SOUTH 13'23'34" EAST 117.94 FEET) TO THE POINT
OF BEGINNING.
CONTAINING 79361 SQUARE FEET TOTALLY, MORE OR LESS.
THE PURPOSE OF THIS DESCRIPTION IS TO ACCOMPLISH A LOT LINE ADJUSTMENT.
City of Tigard
RECORDS
New Records Transmittal
C^':;•.. ..'• ...: •, .- . .. -•;•:rF "'..:_..., -:'n;:+u:NAiYfIN[' _`31+.i'i'nT:r`^YQ'd!##RPf. "itVR"IY rN44Td'.-.:1':•i
Department: Public Works Division Code: 6000 Date: 10-6-15
Prepared by: Judy Lawhead Extension: 2408 Dept. Box No.
Description Dates Retention Code
Limited Access Agreement—Bonita/City of 2011 166-200-0265
Tigard
* * *TO BE COMPLETED BY RECORDS DIVISION STAFF
Laserfiche ❑Yes ❑ No Vault ❑Yes ❑ No Entered by: Date:
I/Design and Communicabons/Records/New Records Transmittal—116/11