APPENDIX B

AMENDMENT TO AGREEMENT BETWEEN CITY OF SUNNYVALE
AND C. J. OLSON FOR MAINTENANCE OF ORCHARD IN AREA BOUNDED BY
 CRESCENT AVENUE, MICHELANGELO DRIVE, MANET DRIVE AND SUNNYVALE COMMUNITY CENTER

THIS AMENDMENT TO AGREEMENT dated January 24, 1996, is by and between the CITY OF SUNNYVALE, a municipal corporation ("CITY"), and C. J. OLSON ("CONTRACTOR").

WHEREAS, on December 15, 1992, CITY and CONTRACTOR entered into that certain AGREEMENT BETWEEN CITY OF SUNNYVALE AND C. J. OLSON FOR MAINTENANCE OF ORCHARD IN AREA BOUNDED BY CRESCENT AVENUE, MICHELANGELO DRIVE, MANET DRIVE AND SUNNYVALE COMMUNITY CENTER ("the Agreement"), under which CONTRACTOR agreed to continue to maintain a working apricot orchard ("the orchard") on land owned by CITY adjacent to its Community Center; and

WHEREAS, CONTRACTOR has periodically removed annual orchard prunings from the orchard by burning; and

WHEREAS, a significant number of neighbors residing in the immediate vicinity of the orchard are in favor of such continued periodic burnings; and

WHEREAS, several such neighbors are opposed to such burnings; and

WHEREAS, CITY and CONTRACTOR are desirous of resolving the issue of burning of annual orchard prunings in a manner most satisfactory to the immediate neighborhood;

NOW, THEREFORE, THE PARTIES ENTER INTO THIS AMENDMENT TO AGREEMENT.

Paragraph 6 of the Agreement is hereby amended to read as follows:

(a) CONTRACTOR shall not discriminate against any employee or applicant for employment because of race, religion, creed, color, gender, age (persons 40 years of age or older), disability, national origin, or any other basis to the extent prohibited by federal, state or local law.

(b) CONTRACTOR shall comply with all federal, state and city laws, statutes, ordinances, rules and regulations and the orders and decrees of any courts or administrative bodies or tribunals in any manner affecting the performance of the Agreement.

(c) Prior to commencement of burning of annual prunings at the orchard, CONTRACTOR shall give advance notice of such burnings to the Director of Parks and Recreation of CITY ("the Director"). In the event the Director, in his or her sole discretion, determines that the conditions at the time of the proposed burning are such that the burning would have an adverse impact on the neighborhood adjacent to the orchard, the Director or his or her designee may direct CONTRACTOR to refrain from, or to cease and desist from such burning. CONTRACTOR shall comply with such direction. In the event that CONTRACTOR is not permitted to complete the burning within two (2) weeks of such direction, CONTRACTOR shall notify CITY of that fact, and CITY shall take such alternative actions as it may deem necessary to remove all orchard prunings at CITY expense within two (2) weeks from notification from CONTRACTOR. Such alternative actions include but are not limited to chipping, flail mowing, and off-hauling.

(d) In the event that CONTRACTOR is unable to complete the removal of annual orchard prunings by burning in accordance with said Regulation 5, CONTRACTOR shall notify CITY and CITY shall take such alternative actions as it may deem necessary to remove all orchard prunings at CITY expense within two weeks from notification from CONTRACTOR. Such alternative actions include but are not limited to chipping, flail mowing, and off-hauling. Upon rendition of such notice, CONTRACTOR shall cease and desist from burning pending (1) the removal of the prunings, or (2) CONTRACTOR's ability to resume burning in accordance with said Regulation 5, whichever first occurs. In the event that CONTRACTOR is able to resume burning, CITY shall discontinue its removal of the prunings.

(e) In the event that CITY desires that annual orchard prunings for a particular period be removed from the orchard by methods other than by burning, CITY shall notify CONTRACTOR, and CITY shall take such actions alternative to burning as it may deem necessary to remove all orchard prunings at CITY expense within two weeks of the notification of CONTRACTOR. Such alternative actions include but are not limited to chipping, flail mowing, and off-hauling. Upon receipt of such notice, CONTRACTOR shall cease and desist from burning pending the removal of the prunings.

(f) In the event that CITY desires that annual orchard prunings for the remaining period of the Agreement be removed from the orchard by methods other than by burning, CITY shall notify CONTRACTOR. CONTRACTOR shall notify CITY as to when such prunings for a given period need to be removed, and CITY shall take such actions alternative to burning as it may deem necessary to remove all orchard prunings at CITY expense within two weeks of each notification by CONTRACTOR during the remainder of this Agreement. Such alternative actions include but are not limited to chipping, flail mowing, and off-hauling. Upon receipt of such notice, CONTRACTOR shall cease and desist from burning for the remainder of the period of this Agreement.

(g) CONTRACTOR shall perform all burning of annual orchard prunings in compliance with Regulation 5 of the Bay Area Air Quality Management District. A true and correct copy of Regulation 5 is set forth in Exhibit "C", attached and incorporated by reference.

IN WITNESS WHEREOF, the parties have executed this Amendment to Agreement.

ATTEST:
CITY OF SUNNYVALE ("CITY")
City Clerk                                                        

City Manager

C. J. OLSON ("CONTRATOR")

Senior Assistant City Attorney

Return to RTC# 02-369