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HomeMy WebLinkAbout6/2/2004 - STAFF REPORTS (12) SETTLEMENT AGREEMENT, RELEASE AND WAIVER OF RIGHTS This SETTLEMENT AGREEMENT, RELEASE AND WAIVER OF RIGHTS (herein "Agreement") is made and entered into this a W' day of April,between the People of the State of California, by and through the City Prosecutor of the City of Palm Springs (the "City"), and Jose Vasconez, an individual ("Jose Vasconez"). RECITALS A. Jose Vasconez is the co-owner and person responsible for maintaining that property at 1990 Mark Leslie Drive, Palm Springs, Riverside County ("the Property"). B. On or about November 4, 2002, the City of Palm Springs ("the City"), by and through its City Attorney, initiated a criminal action against Jose Vasconez, alleging ten (11) misdemeanor counts for violation of the Palm Springs Municipal Code (People v. Vasconez, Sup.Ct. Case No. INM130119, hereafter "the Action"). All charges relate to Jose Vasconez's failure to maintain the Property in compliance with City Codes. The matter is currently set for Pre-Trial Conference on Wednesday, April 7, 2004. C. Consistent with the terms of this settlement agreement, the City of Palm Springs and Jose Vasconez ("the Parties") wish to settle this •dispute. Accordingly, the Parties are executing this Settlement Agreement, Release and Waiver of Rights, whereby Jose Vasconez agrees to bring the Property into compliance with all City laws by specific deadlines. In exchange, the City agrees to dismiss the criminal action currently pending in court. NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS: 1. General Release of All Claims. Jose Vasconez (hereafter, "Vasconez" shall include Vasconez and any person acting by, through, or under Vasconez or on behalf of Vasconez), hereby now and forever expressly releases and discharges the City, its agents, servants, elected and appointed officials, employees, representatives, predecessors, successors, assigns, assignors, attorneys, and independent contractors, from any and all claims, demands, disputes, controversies, causes of action, damages, rights, liabilities, obligations, costs, and expenses, if any, of whatever character and nature, arising under federal, state or local laws, regulations, or ordinances, or arising in equity, present or future, known or tinknown, suspected or unsuspected, arising out of or related in any way to this action. Said release and waiver includes, but is not limited to, any and all claims arising from alleged property rights, due process rights, contract rights or breaches, public policy violations, discrimination, harassment, civil rights violations under any federal, state, or local law, personal injury, or emotional distress, save and except only the obligations and rights expressly created or preserved by this Waiver. The City releases Vasconez of any obligations not arising out of this agreement. 1 Vasconez Settlement Agreement yn 2. Waiver of Rights. Vasconez understands and expressly agrees to waive all rights under California Civil Code Section 1542 or any other similar law. California Civil Code Section 1542 provides: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known to him must have materially affected his settlement with the debtor." Vasconez acknowledges that the facts with respect to which he has given this general release of the claims may turn out to be different from the facts they now believe to be true. Vasconez hereby assumes the risk of the facts turning out to be different, and agrees that this Waiver shall in all respects be effective and not subject to termination or rescission because of any such difference in facts. The City also acknowledges that the facts may turn out different than they now believe to be true and agrees that this Waiver shall be effective in all respects and not subject to termination or rescission because of any such difference in the facts. 3. Nonadmission of Liability. Nothing in this Waiver is to be construed as an admission of liability of any person or entity, or as an admission of the absence of liability of any person or entity. No rights shall inure to any third party from the obligations, representations, and agreements of the Parties made herein. 4. Representations. In executing this Release, Vasconez acknowledges and represents that he is executing this Release freely, knowingly, and voluntarily and is fully aware of the contents and effect thereof, and that his execution of this Release is not the result of any fraud, duress, coercion, mistake, or undue influence whatsoever. Vasconez acknowledges that he has voluntarily executed this Release in good faith. Jose Vasconez has been given a full and fair opportunity to, seek and receive legal advice regarding the effect of this Release prior to signing it, including the opportunity to confer with an attorney regarding the Release's terms. Vasconez had retained the services of Charles Zinger, Attorney at Law. During the trial, Vasconez relieved Mr. Zinger of his duties related to the immediate case. Vasconez has been advised to seek legal counsel to thoroughly discuss all aspects of any claims, causes of action, or rights he may have against the City or any agent thereof, and the terms and conditions of this Release with his legal counsel to the fullest extent he deems appropriate and necessary. Vasconez further acknowledges that reliance is placed wholly upon Jose Vasconez's judgment and first hand knowledge as to the terms of this Release. Vasconez understands and represents that no statement with regard thereto made by or on behalf of any of the City and/or its agents and employees has in any way influenced Vasconez, except the express terms in this Agreement. Other than the terms and conditions specifically set forth in this Release, Vasconez does not rely on any inducements, promises, or representations by the City or any person in executing this Release. 2 Vasconez Settlement Agreement 161 5. Bringing Property Into Compliance. Vasconez shall cause the Property to be maintained, improved, constructed or altered in order to bring it into compliance with all City Codes, including all uniform codes adopted by the City, as set forth in the Compliance Schedule attached hereto as Exhibit "A". No item on the Compliance Schedule is deemed complete until it has been verified and signed-off in writing by a City inspector authorized to conduct an inspection and verify compliance with City codes. 6. Continued Compliance. Vasconez shall take all steps necessary to ensure no new violations of the City Code shall occur. In the event a new violation is discovered by City Staff, the City shall notify Vasconez, who shall promptly take action to correct same. The Parties acknowledge that Exhibit "A" mainly addresses exterior features of the Property and does not address actions that may need to be taken to make the inside of the units of the Property habitable. Vasconez agrees to work diligently, after the actions in Exhibit "A" are completed, to make the inside habitable as directed by City inspectors. 7. Change of Ownership. Vasconez shall not convey the Property, or any interest therein, unless and until he gives the City written notice of such conveyance ten (10) days in advance, and the grantee has agreed in writing to be bound by the terms of this Agreement to the same extent as Vasconez. This section shall be null and void six (6) months from the date of the execution of this Agreement provided that no term herein is violated. 8. Permits and Fees. Nothing in this Agreement shall be construed as relieving Vasconez or any other person from the duty to obtain any permit or approval required under city or state law, or to pay any fee, assessment, charge or tax, including building permit fees and assessments charged by the City for inspection/administrative costs, as appropriate. Permit fees may not be waived for any property. However, as long as Vasconez is in compliance wi`th�the �/ agreement set forth herein, inspection fees shall not be assessed. M^ fl e, d(. P IAA- '� 9. Disonissal of Criminal Action. Upon the executi of this agreement by all parties and payment the assessed costs and fees of, $1,250.00 by e DEFENDANT, (payable in installments of $40.00 per month to the City, no interest fees, the City agrees to dismiss its current prosecution against Jose Vasconez (People v. Vasconez, Riv. Sup. Case No. INM 130119) on or before the date of the Pre-Trial Conference, which date shall be set after the April 28, 2004 Pre-Trial Conference. The City shall not file any other criminal or civil action, or take any other administrative action, against Vasconez, provided the terms of this Agreement are strictly adhered to by Vasconez, or his agents and assigns. The City's agreement to suspend further action is limited to the violations and conditions described in this Agreement and the above-mentioned criminal action, and nothing in this Agreement shall preclude the City from initiating any civil, criminal or administrative action if any violations not included in Exhibit"A" when the final agreement is reached are found to exist at the Property. 10. Notice. Any notice, demand, request, document, consent, approval, or communication either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by prepaid, first-class mail, in the case of the City, to: Palm Springs City Prosecutor, c/o Aleshire & Wynder, LLP, 18881 Von Karman, 3 Vasconez Settlement Agreement U 40.3 7(7 Suite 400, Irvine, CA 92612, Attn: Karen R. Graham. In the case of Jose Vasconez at 1190 Mark Leslie Drive, Palm Springs CA 92264. 11. Integration; Amendment. It is understood that there are no oral agreements between the parties hereto affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the parties, and none shall be used to interpret this Agreement. This Agreement may be amended at any time by the mutual consent of the parties by an instrument in writing. 12. Severability. In the event that part of this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining portions of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is so material that its invalidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless. 13. Waiver. No delay or omission in the exercise of any right or remedy by a non- defaulting party on any default shall impair such right or remedy or be construed as a waiver. A party's consent to or approval of any act by the other party requiring the party's consent or approval shall not be deemed to waive or render unnecessary the other party's consent to or approval of any subsequent act. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. 14. Attorneys' Fees. If either party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorney's fees, whether or not the matter proceeds to judgment. 15. Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which said party is bound. 16. Responsible Party. This Agreement is expressly conditioned on the representation of Vasconez that he is at the time of this Agreement, the owner of, and person responsible for the Property which is the subject of this Action. IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the date first written above. SIGNATURES ON THE FOLLOWING PAGE (5) 4 Vasconez Settlement Agreement Y FOR THE PEOPLE OF THE STATE OF CALIFORNIA AND THE CITY: DATE: Karen/K. Graham, City P tutor ofAlehsire& Wynder, LP FOR JOSE VASCONEZ / DATE: x '- Jose Vascon —T APPROVED AS TO FORM: DATE: David Ready City Manager, City of Palm Springs ATTESTED TO BY: DATE: Patricia Sanders Palm Springs City Clerk 5 Vasconez Settlement Agreement 0450, EXHIBIT "A" SCHEDULE OF PERFORMANCE Jose Vasconez Property Address: 1990 Mark Leslie Drive, Palm Springs CA 92264 PHASE VIOLATION/PROBLEM ACTION NEEDED & DEADLINE 1 Roof Not Complete Complete all roof work by August 31, 2004. 2 Stucco. Completion of stucco on the entire dwelling by August 31, 2004 3 Landscape Desert landscape to be completed by August 31, 2004. This agreement does not include work that needs to be completed in the interior of the dwelling. 6 Vasconez settlement Agreement 01& MINUTE ORDER NO. APPROVING SETTLEMENT AGREEMENT FOR CODE VIOLATIONS AT 1990 MARK LESLIE DRIVE WITH JOSE VASCONEZ. ------------------ I HEREBY CERTIFY that this Minute Order, approving Settlement Agreement for code violations at 1990 Mark Leslie Drive with Jose Vasconez, was adopted by the City Council of the City of Palm Springs, California, in a meeting thereof held on the 2nd day of June, 2004, PATRICIA A. SANDERS City Clerk y