HomeMy WebLinkAboutSpigelmyre, Melanie - Donation Agreement - 5.23.22DONATION AGREEMENT
CITY OF FRESNO, CALIFORNIA
This AGREEMENT is made and entered into effective on May 23. 2022, by and between
the CITY OF FRESNO, a California municipal corporation (City), and Melanie Spigelmyre
(Donor).
RECITALS
A. Donor has offered to donate the item more particularly described in Paragraph 1
hereinbelow (the Donation or Donated Item) to the City for the public benefit.
B. By this agreement, the Parties set forth the terms under which Donor will donate
and the City wilt accept the Donation.
AGREEMENT
1. Donation. Donor hereby donates and hereby relinquishes all rights, title, or interest
in the following item to the City:
concrete slab and City approved bench to meet City standards and ADA
compliance
2. Location. The City shall have sole and absolute discretion regarding placement
and installation of the Donated Item. Donor may request placement of the Donated
Item at a particular public location within the City. In determining placement of the
Donated Item. the City will consider Donor's request, in addition to the City's needs
and site-specific conditions.
3 . Installation. The Donated Item shall be installed by City forces or by forces hired
by the City to perform such work. Donor shall be responsible for all costs
associated with installation of the Oonated Item and shall pay such costs upfront
in the amount of NIA , as invoiced by City.
This document shall not be effective until it is fully executed, and Donor has paid
the installation costs Invoiced by the City.
4 . Removal and Modification. The City reserves the light to remove and/or modify
the Donated Item for any reason it deems appropriate, including, but not limited to,
if the Donation is damaged, defective, or defaced , if it is necessary for safety,
environmental or land management reasons, or if the City is unable or unwilling to
maintain the Donated Item.
5. Replacement. The City will not be responsible for replacement of the Donated
Item or associated plaque in the event of loss due to vandalism, acts of God, or for
any other reason. Donor may request to replace the Donated Item and/or plaque
at Donor's expense by submitting a written request to the City.
6. Notices. Any notice required or intended to be given to either party under the terms
of this Agreement shall be in writing and shall be deemed to be duly given if
delivered personally, transmitted by email followed by telephone confirmation of
receipt, or sent by United States registered or certified mail, with postage prepaid,
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return receipt requested, addressed to the party to which notice is to be given at
the party's address set forth on the signature page of this Agreement or at such
other address as the parties may from time to time designate by written notice.
Notices served by United States mall in the manner above described shall be
deemed sufficiently served or given at the time of the mailing thereof.
9. Bindin g. Subject to the assignment provisions set forth hereinbelow, once this
Agreement is signed by all parties, it shall be binding upon, and shall inure to the
benefit of, all parties, and each parties' respective heirs , successors, assigns,
transferees, agents, servants, employees, and representatives.
10. Assignment. This Agreement is personal to Donor and there shall be no
assignment by Donor of i~ rights or obligations under this Agreement without the
prior written approval of the City Manager or his/her designee. Any attempted
assignment by Donor, its successors, or assigns , shall be null and void unless
approved in writing by the City Manager or his/her designee.
11 . Waiver. The waiver by either party of a breach by the other of any provision of this
Agreement shall not constitute a continuing waiver or a waiver of any subsequent
breach of either the same or a different provision of this Agreement. No provisions
of this Agreement may be waived unless in writing and signed by all parties to this
Agreement Waiver of any one provision herein shall not be deemed to be a waiver
of any other provision herein.
12. Governing Law and Venue. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of Califomia, excluding,
however, any conflict of laws rule which would apply the law of another jurisdiction.
Venue for purposes of the filing of any action regarding the enforcement or
interpretation of this Agreement and any rights and duties hereunder shall be
Fresno County, California.
13. Headings. The section headings in this Agreement are for convenience and
reference only and shall not be construed or held in any way to explain, modify, or
add to the interpretation or meaning of the provisions of this Agreement.
14. Severability. The provisions of this Agreement are severable. The invalidity, or
unenforceability of any one provision in this Agreement shall not affect the other
provisions.
15. Interpretation. The parties acknowledge that this Agreement in its final farm is the
result of the combined efforts of the parties and that, should any provision of this
Agreement be found to be ambiguous in any way, such ambiguity shall not be
resolved by construing this Agreement in favor of or against either party, but rather
by construing the terms in accordance with their generally accepted meaning.
16. Attorney's Fees. If either party is required to commence any proceeding or legal
action to enforce or interpret any tenn, covenant or condition of this Agreement,
the prevailing party in such proceeding or action shall be entitled to recover from
the other party its reasonable attorney's fees and legal expenses.
17. Exhibits. Each exhibit and attachment referenced in this Agreement is, by the
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reference, incorporated into and made a part of this Agreement.
18. Precedence of Documents. In the event of any conflict between the body of this
Agreement and any Exhibit or Attachment hereto, the tenns and conditions of the
body of this Agreement shall control and take precedence over the terms and
conditions expressed within the Exhibit or Attachment. Furthermore, any tenns or
conditions contained within any Exhibit or Attachment hereto which purport to
modify the allocation of risk between the parties, provided for within the body of
this Agreement, shaH be null and void.
19. Cumulative Remedies. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies at
law or in equity.
20. No Third-Party Benefici aries. The rights, interests, duties, and obligations defined
within this Agreement are intended for the specific parties hereto as identified in
the preamble of this Agreement. Notwithstanding anything stated to the contrary
in this Agreement, it is not intended that any rights or interests in this Agreement
benefit or flow to the interest of any third parties.
21 . Extent of Agreement. Each party acknowledges that they have read and fully
understand the contents of this Agreement T his Agreement represents the entire
and integrated agreement between the parties with respect to the subject matter
hereof and supersedes all prior negotiations. representations, or agreements,
either written or oral. This Agreement may be modified only by written instrument
duly authorized and executed by both City and Donor.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno,
California, the day, and year first above written_
Cl1Y OF FRESNO,
A Ca;;Jiunicipal corporati on lifomia
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By: ~1 ~
ScottMozier, r"
Public Works Director
::a:~--____________·ef/
Brian Russell ,
Assistant Director
APPROVED AS TO FORM:
DOUGLAS T_ SLOAN
City A,m:»:ReV
Melanie Spigelmyre,
Representative for the
fam ily of Paul Moore
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By · /VIL-(/ ~,
7 · ~,
Name: /VI t I Rtv •lE S:p I y e. fvt1 Y fC,.
nt1e: 6, ~~ d
(If corporation or LLC., Board Chair,
Pres . er Vice Pres -)
By: _ _________ _ _
Name: _______ ____
Title: _ _ __________
(If corporation or LLC., CFO, Treasurer,
Secretary or Assistant Secretary)le, ·lo •'l-'2-,
By: ~~=-~-:::,,L~--==---=-
esha Dae
ttomey
ATTEST:
TODD STERMER, CMC
::~ ,/2/4
tA,,lf.?:2-Date
D e puty
Addresses:
CITY:
City of Fresno
Attention: Erika Pelayo-Lopez
Community Coordinator
2101 G Street Building E
Fresno, CA 93706
Phone: (559) 621-1351
EMAIL: erika.pelayo-lopez@fresno.gov
Donor:
Attent ion: Melanie Spigelmyre
Representative for the
family of Paul Moore
2567 E. Tarragon Way
Fresno, CA 93720
Phone: (559) 994-1307
EMAIL: madcowmel66@yahoa.com
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