HomeMy WebLinkAboutGeraldine Ellis-Agmt and Compromise to Improve Porperty and Write-Off Liens*(g
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AGREEMENT AND COMPROMISE
rO IMPROVE PROPERTY AND WRITE.OFF LIENS
This Agreement and Compromise to Liens
("Agreement") is entered into and effective this 2015,
by and between the CITY OF FRESNO, , and
GERALDINE ELLIS ("Owner").
RECITALS
A. Owner owns and is interested in rehabilitating and improving the property
located at 215 W. Hawes Avenue, Fresno, California 93706, APN 464-134-05 ("Subject
Property").
B. The Subject Property has numerous liens existing on the Subject Property
based upon Code Enforcement Violations and Penalties amounting to Four Thousand,
Five Hundred Eighty-Two Dollars and Eighty Cents ($4,582.80) ("Liens").
C. Owner has requested the CITY release the Liens on the Subject Property
so additional funds may be used to correct code violations.
D. After completion of the rehabilitation and improvement work described
herein, the CITY shall write-off the Liens on the Subject Property. As a condition to the
CITY's write-off of the Liens on the Subject Property, Owner shall bring the Subject
Property into conformity with the Fresno Municipal Code and cure all of the existing Code
violations on the Subject Property.
NOW, THEREFORE, lN CONSIDERATION of the above recitals, which recitals
are contractual in nature, the mutual promises herein contained, and for other good and
valuable consideration hereby acknowledged, the parties agree as follows:
AGREEMENT
1. Owner's Performance. Owner shall perform all work and cure all existing
Code Violations on the Subject Property within ninety (90) days of the effective date of
this Agreement.
The performance of the work and improvements shall comply with the Fresno
Municipal Code. All repairs and improvements shall be inspected and accepted by the
CITY upon completion.
a. lmprovement Costs. All work and improvements shall be done at
the sole cost and expense of Owner. The costs of engineering, inspection,
testing, permits, and all applicable fees as required by the Fresno Municipal Code
shall be the sole responsibility of Owner.
b. Permissible Extension of Time. The time for completion may be
extended if the CITY determines 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 Owner and submitted to the CITY at least ten (10) days
prior to the expiration of the ninety (90) day period for performance or any
extension thereof stating the reasons and facts supporting such extension.
c. No sale of Subject Property. Owner shall not sell the Subject
Propefty without the City's consent prior to the City's inspection and acceptance of
the Owner's repairs and improvements.
2. CITY'sS Performance. Following execution of this Agreement and
Owner's rehabilitation and improvement work, the CITY agrees to write-off the Liens.
The CITY shall write-off the Remaining Liens only after Owner's rehabilitation and
improvements have been accepted by the CITY. lf Owner fails to rehabilitate and install
the improvements as specified in this Agreement, the CITY shall not write-off the Liens.
The CITY is not required or obligated by this Agreement to construct or complete the
improvements.
3. lndemnification. To the furthest extent allowed by law, Owner 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, Owner 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 Subject Property pursuant to this Agreement. Owner's
obligations under the preceding sentence shall apply regardless of whether Owner 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. lf Owner should subcontract all or any portion of the
services to be performed under this Agreement, Owner 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 the preceding
paragraphs. This section shall survive termination or expiration of this Agreement.
4. General Provisions.
a. Amendments. No modification or amendment of any provision of
this Agreement shall be effective unless made in writing and signed by the parties
hereto.
b. Attornev's Fees. lf either pady is required to commence any
proceeding or legal action to enforce or interpret any term, covenant or condition of
this Agreement, the prevailing party will be entitled to recover from the other party
its reasonable attorney's fees and legal expenses.
c. Bindinq on All Successors and Assions. 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.
d. Compliance with Law. ln providing the services required under this
Agreement, Owner 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.
e. 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.
f . Cumulative Remedies.
shall be deemed exclusive but shall,
other remedies at law or in equity.
g. Disclaimer of Relationship. Nothing contained in this Agreement,
nor any act of the CITY or of Owner, 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.
h. Effective Date. This Agreement shall be effective upon the CITY
and Owner's complete execution of all documents.
i. Entire Aqreement. This Agreement represents the entire and
integrated agreement of the parties with respect to the subject matter hereof.
This Agreement supersedes all prior negotiations, representations, or
agreements, either written or oral.
j Exhibits. Each exhibit and attachment referenced in this Agreement
is, by the reference, incorporated into and made a part of this Agreement.
k. Governinq 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, pedormance, and
enforcement. Venue for filing any action to enforce or interpret this Agreement
will be Fresno, California.
l. Headinqs. 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.
m. lnterpretation. 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.
No remedy or election hereunder by CITY
wherever possible, be cumulative with all
n. Limitation on Remedies. CITY may enforce this Agreement in any
manner available at law or in equity. Except as provided by Section 5(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 Owner'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.
o. No Assiqnment or Succession. Prior to CITY's final inspection and
approval of Owner's repairs and improvements, Owner shall not sell, transfer,
assign or othenruise dispose of all or a material part of any interest it might hold in
the PropeÉy without the prior written consent of the CITY, which consent shall not
be unreasonably withheld or delayed. Notwithstanding the foregoing, upon prior
written notice to the CITY, Owner shall be permitted to assign its rights and
obligation under this Agreement with respond to the Project.
p. No Third-Party Beneficiary. No contractor, subcontractor,
mechanic, material man, laborer, vendor, or other person hired or retained by
Owner 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 Owner 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 Clry 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.
q. No Waiver. Neither failure nor delay on the pad 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 Owner therefrom shall be effective
unless the same shall be in writing, signed on behalf of the Clry 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 Owner in any case shall
entitle Owner 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.
r. Nonreliance. Owner hereby acknowledges having obtained such
independent legal or other advice as it has deemed necessary and declares that in
no manner has it relied on the CITY, it agents, employees or attorneys in entering
into this Agreement.
s. Notice. Any notice to be given to either pafty under the terms of this
Agreement shall be given by certified United States mail, postage prepaid, return
4
lf to Owner:
CITY OF FRESNO
a municipal corporation
receipt requested, at the addresses specified below, or at such other addresses as
may be specified in writing by the parties
lf to the CITY: City of Fresno
Development and Resource Management Department
Housing and Community Development Division
2600 Fresno Street, Room 3070
Fresno, California 93721-3605
Geraldine Ellis
2515 N. Blythe
Fresno, California 93722
t. Precedence of Documents. ln the event of any conflict between the
body of this Agreement and any exhibit or attachment hereto, the terms and
conditions of the body of this Agreement will control.
u. Severabilitv. 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.
The parties have executed this Agreement on the day and year first above written.
By:
BRUCE RUDD, City Manager
(Attach Notary Acknowledgment)
ATTEST:
WONNE SPENCE, CMC
City Clerk
APPROVED AS TO FORM:
DOUGLAS T. SLOAN
City Attorney
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Date
personally appeared
before me,
Here lnsert Name and Titld of the\- ç\\ia
Name(s) of Signer(s)
I certify under PENALTY OF PERJURY under the laws
of the State of California that the foregoing paragraph
is true and correct.
WITNESS my hand and official seal.
Signature
Place Notary SealAbove
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