HomeMy WebLinkAboutBDHOV, LP, LEHOV, LP, WRHOV, LP and JDHOV, LP - Agreement and Compromise to Improve Property - 05-31-23AGREEMENT AND COMPROMISE TO IMPROVE PROPERTY
This Agreement and Compromise to Improve Property (Agreement) is entered into and
effective the last date written below (Effective Date), by and among the City of Fresno, a
municipal corporation (the City), and BDHOV, LP, LEHOV, LP, WRHOV, LP, and JDHOV,
LP. (the Owners) (collectively, the Parties).
RECITALS
WHEREAS, a dispute arose between the Parties relating to the property located at 510,
512, 514, 516, 518, 520, 522, and 524 West Hammond Avenue, Fresno, California,
Assessor's Parcel Number 450-153-12 (Property), commonly known as 510 West
Hammond Avenue, and whether the Property was in compliance with certain provisions of
the Fresno Municipal Code (Dispute);
WHEREAS, the City issued a Notice and Order (A.S.E.T.) to Repair and Rehabilitate
Substandard Building(s) (Notice and Order) dated March 1, 2023, to the Owners alleging
one hundred thirty-seven (137) violations of the Fresno Municipal Code at the Property, with
a deadline to complete all corrections by March 31, 2023 (See Notice and Order attached
as Exhibit A);
WHEREAS, the Owners have requested additional time to comply with the Notice and
Order to remove the violations on the Property;
WHEREAS, the City is legally entitled to take further action regarding the violations on
the Property, up to and including the issuance of citations and the filing of a civil action in
Fresno Superior Court;
WHEREAS, without admitting liability, either expressly or impliedly, of any fact or liability
with respect to any matter relating to the Agreement, except as expressly set forth in this
Agreement, and without waiving the City's right to cite the Owners for new or later discovered
violations of the Fresno Municipal Code, it is the mutual intention and desire of the Parties
to settle, compromise, and resolve all of the differences, disputes, disagreements, and
claims between them, known and unknown, which exist or may hereafter exist arising out of
the facts, circumstances, and events described in the subject matter of this "Recitals"
section;
WHEREAS, the Parties enter into this Agreement solely for the purpose of compliance
and to avoid the further expense, delay, and risk of litigating the claims and defenses raised
specific to those referenced above; and
WHEREAS, the Parties have reached terms of compromise and execute this Agreement
in accordance therewith.
NOW, THEREFORE, in consideration of the foregoing, and in consideration of the mutual
promises and agreements as hereafter set forth, and for other good and valuable
consideration hereby acknowledged, the Parties agree and compromise as follows:
AGREEMENT
1. Extension of Deadlines to Correct Violations. The original deadline to complete
corrections as set forth in the Notice and Order expired on March 31, 2023. Owners have
requested additional time to complete those corrections. The City agrees to extend the
deadlines for full compliance of all violations, contingent upon Owners complying with the
following, to include applying for and finalizing all required permits:
a. All violations noted on the Notice and Order, with the exception of violation
#135 pertaining to the fire -damaged garage, must be completed no later than
thirty days from the Effective Date.
b. Violation #135 on the Notice and Order, pertaining to the fire -damaged garage,
must be completed no later than sixty days from the Effective Date.
c. The time for completion may be extended if the City determines reasonable
progress has been made, and the granting of such an extension will not be
detrimental to the public safety or welfare. No extension will be made except
upon written application by Owners and submitted to the City prior to the
expiration of the period for performance or any extension thereof stating the
reasons and facts supporting such extension.
2. Owners' Performance. The performance of the work and improvements shall comply
with the Fresno Municipal Code and current Building Codes. All repairs and improvements
shall be inspected and accepted by the City upon completion.
a. Improvement Costs. All work and improvements shall be done at the sole cost
and expense of the Owners. The costs of engineering, inspection, testing,
permits, and all applicable fees as required by the Fresno Municipal Code shall
be the sole responsibility of the Owners.
b. Sale or Transfer of Property. If Owners wish to sell transfer, assign or
otherwise dispose of all or a material part of any interest it might hold in the
Property prior to the City's final inspection and approval of Owners' repairs and
corrections of the violations noted on the Notice and Order, Owners shall
provide the City with the Buyer's contact information, a scope of work, and a
timeline for repairs within five business days of the opening of escrow. Failure
to provide the Buyer's contact information, a scope of work, and a timeline for
repairs may result in a breach of this agreement and an immediate Compliance
Inspection.
3. Compliance Inspections. Following execution of this Agreement, the City will
schedule compliance inspection(s) to occur following the deadlines for completion listed in
section one (1) above for the purpose of determining that Owners have completed the
repairs. The City will schedule the compliance inspection(s) on dates that are mutually
agreeable to all Parties, on or shortly thereafter the completion deadlines stated above.
Owners or Owners' Representative shall be present at the Property at the time of the
inspection(s) and shall provide access to City representatives to enter and inspect the
Property. The City representatives' time is uncontested hard costs, and the fees for the
compliance inspection(s) will be determined after the inspections have taken place, and will
be due and payable within thirty days of the date of the City's invoices related to the
inspection(s).
4. Site Visits. Prior to the City's final inspection and approval of Owners' repairs and
corrections of the violations noted on the Notice and Order, the City will conduct periodic
site visits for the purpose of determining the progress that Owners are making in completing
the repairs listed in section one (1) above by the stated deadlines. Owners need not be
present at the Property at the time of the site visit; and Owners will not be billed for the City
representatives' time for conducting the site visits.
5. Vacant Units. Owners shall not move any tenants into the Property without inspection
and clearance by City representatives of each Unit that is to be occupied.
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6. Failure to Comply. Failure by Owners to complete the corrections at the Property
referenced in section one (1) above, on or before the deadlines set forth in section one (1)
above, will result in further action by the City, including but not limited to, the termination of
this Agreement, the re -inspection of all units, the issuance of citations by the City, and may
result in the institution of legal action.
7. Citations. Pursuant to the Fresno Municipal Code and the Master Fee Schedule,
should Owners fail to meet the stated deadlines set forth above, Owners will be cited up to
$800.00 per violation for each existing code violation on the Property not corrected on or
before the stated deadlines.
8. _Ongoing Compliance_ Owners agree to maintain the Property in compliance with the
Fresno Municipal Code. Failure to maintain the Property may be cause for termination of
this Agreement and may subject the Property to future liens and citations by the City.
9. Action by City. The City agrees to refrain from issuing citations or taking further legal
action against the Property and Owner as it relates to the Notice and Order so long as
Owners cure all violations and make the necessary repairs by the deadlines set forth above.
In the event of a breach of this Agreement, the City reserves the right to issue a citation for
each outstanding violation as authorized by the Fresno Municipal Code and/or institute legal
action in the Fresno Superior Court.
10. General Provisions.
a. _Amendment, Modification. and Waiver. No provision hereof may be waived
unless in writing and signed by the Parties. Waiver of any one provision herein shall
not be deemed a waiver of any other provision herein. This Agreement may be
amended or modified only by a written agreement executed by the Parties.
b. Attorneys' Fees. Each party shall bear its own attorneys' fees and costs related
to the Dispute. Should either party need to take any action, including, but not limited
to, mediation, fee arbitration, collections, or civil action, to enforce or interpret this
Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees
and costs incurred.
c. Authority to Execute and Execution. The Parties represent and warrant that all
necessary action has been taken to authorize the undersigned to execute this
Agreement and to bind the Parties to the performance of their respective obligations
hereunder. Each individual executing this Agreement hereby represents and warrants
that he or she has the full power and authority to execute this Agreement on behalf
of the named Parties.
d. Binding on All Successors and Assigns. Unless otherwise expressly provided
in this Agreement, all the terms and provisions of this Agreement shall be binding on
and inure to the benefit of the Parties hereto, and their respective heirs, successors,
assigns, and legal representatives.
e. Compliance with Law. In providing the services required under this Agreement,
Buyer shall at all times comply with all applicable laws of the United States, the State
of California, and City, and with all applicable regulations promulgated by federal,
state, regional, or local administrative, and regulatory agencies, including prevailing
wages, if applicable, now in force and as they may be enacted, issued, or amended
during the term of this Agreement.
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f. Counterparts. This Agreement may be executed in counterparts, each of which
when executed and delivered will be deemed an original, and all of which together
will constitute one instrument. The execution of this Agreement by any party hereto
will not become effective until counterparts hereof have been executed by all Parties
hereto.
g. Cumulative Remedies. No remedy or election hereunder by City shall be
deemed exclusive but shall, wherever possible, be cumulative with all other remedies
at law or in equity.
h. Disclaimer of Relationship. Nothing contained in this Agreement, nor any act
of the City or of Buyers, or of any other person, shall in and by itself be deemed or
construed by any person to create any relationship of third -party beneficiary, or of
principal and agent, of limited or general partnership, or of joint venture.
i. Effective [late. This Agreement shall be effective upon the City and Buyer's
complete execution of all documents.
j. Entire Agreement. This Agreement represents the sole and entire agreement
and understanding of the Parties with respect to the subject matter hereof. This
Agreement supersedes all prior negotiations, representations, or agreements, either
written or oral.
k. Exhibits. Each exhibit and attachment referenced in this Agreement is, by the
reference, incorporated into and made a part of this Agreement.
I. Governing Law and Venue. Except to the extent preempted by applicable
federal law, the laws of the State of California shall govern all aspects of this
Agreement, including execution, interpretation, performance, and enforcement.
Venue for filing any action to enforce or interpret this Agreement will be Fresno,
California.
m. Headings. The headings of the articles, sections, and paragraphs used in this
Agreement are for convenience only and shall not be read or construed to affect the
meaning or construction of any provision.
n. Indemnification. To the furthest extent allowed bylaw, Owners shall indemnify,
hold harmless and defend City and each of its officers, officials, employees, agents,
and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and
damages (whether in contract, tort or strict liability, including but not limited to
personal injury, death at any time, and property damage) incurred by City, Owners or
any other person, and from any and all claims, demands and actions in law or equity
(including attorney's fees and litigation expenses), arising or alleged to have arisen
directly or indirectly out of performance of this Agreement or the performance of any
or all work to be done in and upon the Property pursuant to this Agreement. Owners'
obligations under the preceding sentence shall apply regardless of whether Owners
or any of its officers, officials, employees or agents are passively negligent, but shall
not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused
by the active or sole negligence, or the willful misconduct, of City or any of its officers,
officials, employees, agents or volunteers. If Owners should subcontract all or any
portion of the services to be performed under this Agreement, Owners shall require
each subcontractor to indemnify, hold harmless and defend City and each of its
officers, officials, employees, agents and volunteers in accordance with the terms of
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the preceding paragraphs. This section shall survive termination or expiration of this
Agreement.
o. Independent Counsel. The Parties agree that this Agreement was prepared
with the joint input of all Parties, and shall not be construed in favor of or against any
party to the Agreement. The Parties further acknowledge that this Agreement was
executed freely and voluntarily and with the opportunity for each Party to receive the
advice of independent legal counsel.
p. Interpretation. This Agreement in its final form is the result of the combined
efforts of the Parties. Any ambiguity will not be construed in favor or against any party,
but rather by construing the terms in accordance with their generally accepted
meaning.
q. Limitation on Remedies. City may enforce this Agreement in any manner
available at law or in equity. Except as provided by Section 7(b) entitled "Attorney's
Fees," in no event shall City, or its officers, agents or employees, be liable in damages
for any breach or violation of this Agreement, it being expressly understood and
agreed Buyer's sole legal remedy for breach or violation of this Agreement by City
shall be a legal action in mandamus, specific performance or other injunctive or
declaratory relief to enforce the provisions of this Agreement.
r. No Third -Party Beneficiary_. No contractor, subcontractor, mechanic, material
man, laborer, vendor, or other person hired or retained by Buyer shall be, nor shall
any of them be deemed to be, third -party beneficiaries of this Agreement, but each
such person shall be deemed to have agreed: (a) they shall look to Buyer as their
sole source of recovery if not paid, and (b) except as otherwise agreed to by the City
and any such person in writing, they may not enter any claim or bring any such action
against the City under any circumstances. Except as provided by law, or as otherwise
agreed to in writing between the City and such person, each such person shall be
deemed to have waived in writing all right to seek redress from the City under any
circumstances whatsoever.
s. No Waiver. Neither failure nor delay on the part of the City in exercising any
right under this Agreement shall operate as a waiver of such right, nor shall any single
or partial exercise of any such right preclude any further exercise thereof or the
exercise of any other right. No waiver of any provision of this Agreement or consent
to any departure by Owners therefrom shall be effective unless the same shall be in
writing, signed on behalf of the City by a duly authorized officer thereof, and the same
shall be effective only in the specific instance for which it is given. No notice to or
demand on Owners in any case shall entitle Owners to any other or further notices or
demands in similar or other circumstances, or constitute a waiver of any of the City's
right to take other or further action in any circumstances without notice or demand.
t. Notice. Any notice to be given to either party under the terms of this Agreement
shall be given by certified United States mail, postage prepaid, return receipt
requested, at the addresses specified below, or at such other addresses as may be
specified in writing by the Parties.
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If to the CITY: City of Fresno
Office of the City Attorney, Code Enforcement Division
2600 Fresno Street, Room 2031
Fresno, CA 93721-3602
If to OWNERS: BDHOV, LP, LEHOV, LP, WRHOV, LP & JDHOV, LP
Attn: David & Linda Hovannisian, General Partners
P.O. Box 3668
Pinedale, CA 93650
u. Precedence of Documents. In the event of any conflict between the body of
this Agreement and any exhibit or attachment hereto, the terms and conditions of the
body o-; ti his P.grce,rent will control.
v. Severability. The invalidity, illegality, or un-enforceability of any one or more of
the provisions of this Agreement shall not affect the validity, legality, or enforceability
of the remaining provisions hereof or thereof.
w. Wai-ver of Civil Code Section 1542. The Parties each agree that this is a full
and finai release app ying to ail unknown and unanticipated injuries, harm, detriment,
damages, claims, and causes of action arising out of or in any way relating to the
incidents =vt; its Which form the basis of the Dispute concerning the Subject
Properly, the i= arties eaach waive all rights or benefits which each now has or in
the t:,turc- r: sy !-._ewe under the tears of Section 1542 of the Civil Code of the State of
California. which reads as follows:
A refe-�-r does not extend to claims v&ch the creditor does
r;r cfi to e.:ls`. fnl his fa)for at the time of executing the
if k_r cirvE-i by hirn roust have materially affected his
;e >.[:e�',a 11 1. i r.s debtor.
Tne r a; lies eacr, represent that each has read the above -quoted language of Civil
Code szaii,,r, 1542, consulted vlith his or its attorney regarding this waiver, and
once~�:�nds ar acknowledoes that as a minimum consequence of such specific
wai. " ;^-2, �7y clam) related to any injury of which he or it is not aware
or in inj";ry vio'�Gh '.-s not yet manifested is forever released and discharged.
This I I �a �c; ,.; zii r co--s not extend to properties other than the Subject
Prope1ly
IN WITME'z:S ',:! le Parties nave executed this Agreement on the date last below
written p, c jide that they have authority to represent their respective
Parties in
OWNERS:
By:
G ._ B. i,��:;r,. �,, General Partner
Lino:. .vas s : �n, r enera artner
�s�30� a3
Date
5�3� z3
Date
CITY:
CITY OF FRESNO
A municipal co par
By: -
Cam ena
ief Assistant City Attorney
ATTEST:
TODD STERMER, CMC
City Clerk
By:
i7eputy
APPROVED AS TO FORM.
ANDREW JANZ
City Attorney
By:. -- --
`8a('rah P&gzian
Deputy City Attorney
Date
5- 3i - zo 23
Date
Date
Attachments: Exhibit A — Notice and Order (A.S.E.T.) to Repair and Rehabilitate
Substandard Building(s) dated 3/1/2023
SPAN
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