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HomeMy WebLinkAboutAgreement A-23-528 Settlement Agreement.pdf Agreement No. 23-528 SETTLEMENT AGREEMENT This Settlement Agreement ("Agreement") is a contract between the COUNTY OF FRESNO (the "County"), a political subdivision of the State of California, and THE PEOPLE OF THE STATE OF CALIFORNIA (the "People"), (hereinafter collectively referred to as "Plaintiffs" or the "County"); and JOHN EMMETT, an individual; LUCRETIA EMMETT, an individual; JOHN EMMETT, as trustee of the 2006 John Emmett and Lucretia Emmett Family Trust; LUCRETIA EMMETT, as trustee of the 2006 John and Lucretia Emmett Family Trust (hereinafter collectively referred to as "Defendants"). The effective date of this Agreement is October 10, 2023. RECITALS A. Defendants own, possess, control and maintain certain real property located at and commonly known as 10452 E. Kings Canyon Road, Sanger, California 93657, further identified as Assessor's Parcel Number (APN) 314-120-355, located within the unincorporated area of Fresno County(hereinafter the "Property"). The Property is legally described as follows: "The Southeast quarter of the Southwest quarter and the West half of the Southwest quarter of the Southeast quarter of Section 5, Township 14 South, Range 22 East, Mount Diablo Base and Meridian, according to the official plat thereof. EXCEPTING the East 326.19 feet of the West 341.19 feet of the North 667.70 feet of the South 697.70 feet of the West half of the Southwest quarter of the Southeast quarter of said Section 5. ALSO EXCEPTING therefrom the West 936.96 feet of the South half of the East half of the Southwest quarter of Section 5, Township 14 South, Range 22 East, Mount Diablo Base and Meridian, Fresno County, California, according to the Official Plat thereof. And ALSO EXCEPTING therefrom that portion granted to the County of Fresno by deed recorded February 14, 2003, as Document No. 2003-0037582, Official Records. ALSO EXCEPTING an undivided one-fourth interest in and to all oil, gas and mineral rights, together with all easements and rights of egress and ingress reasonably necessary or convenient for the full exercise of such reserved rights, as reserved in the deed from Leonard P. Leblanc, H.E. Leonard and Mario Pagliusso, the duly appointed, qualified and acting executors and executrix, respectively, of Page 1 of 9 SETTLEMENT AGREEMENT the estate of H.B. Leonard, also known as Hubert B. Leonard, also known as Hubert Benjamin Leonard, deceased, to Cheslie D. Saroyan, et al., dated April 27, 1954, recorded May 12, 1954, in Book 3444, Page 640, Official Records. ALSO EXCEPTING an undivided one-fourth interest in and to all oil, gas and mineral rights, together with all easements and rights of egress and ingress reasonably necessary or convenient for the full exercise of such reserved rights, as reserved in the deed from Ena Deyo Leonard to Cheslie D. Saroyan and Amie Saroyan, husband and wife, as to an undivided one-half interested, dated April 26, 1954, recorded May 12, 1954, in Book 3444, Page 644, Official Records. APN: 314-120-355. Commonly known as 10452 E. Kings Canyon Rd., Sanger, CA 93657." B. This action arises out of the unlawful use of the Property located at 10452 E. Kings Canyon Road, Sanger, California 93657, by Defendants as a prohibited contractor's storage yard in an exclusive agricultural ("AE") district, in violation of Fresno County Zoning Ordinance § 816.4.A. Defendants applied for a Conditional Use Permit ("CUP") on November 19, 2018, to operate a contractor's storage yard within this Exclusive Agricultural District. This application was denied by the Planning Commission of the County of Fresno; the denial was affirmed by the Board of Supervisors of the County of Fresno. Beginning April 2019, the County issued Defendants several letters, Notices of Violation, and administrative citations related to their ongoing operation of the illegal contractor's storage yard. Despite demands by County staff to cease their unlawful business activities, Defendants failed to do so. C. On or about May 3, 2021, an inspection conducted by the County's Department of Public Works and Planning ("PWP") revealed on the Property over one hundred pieces of equipment consistent with the maintenance and operation of a contractor's storage yard, to wit: excavators, graders, conveyers, water truck, man lifts, storage containers, generators, commercial hauling trucks with trailers and rows of various types of equipment on trailers. The inspection also revealed large piles of soil, concrete, and asphalt. D. On April 15, 2022, Plaintiffs filed a Complaint for Injunctive Relief to Abate a Public Nuisance and Unfair Business Practices and Other Relief ("Complaint"), in Superior Court of California, County of Fresno, Case Number 22CECG01144 (the "Lawsuit"). E. On May 3, 2022, service of summons was completed on Defendants. Page 2 of 9 SETTLEMENT AGREEMENT F. The Complaint seeks to abate violations of Zoning Division of the County of Fresno ("Zoning Code") § 816.4.A; and Ordinance Code of Fresno County ("Ordinance Code") § 1.16.030 for the maintenance of an unlawful nuisance the Property; and abate violations of Business & Professions Code § 17200 relating to unfair business practices, to wit: the maintenance of an illegal contractor's storage yard where prohibited. G. Defendants own, control, and are in possession of the Property. H. Defendants deny they have engaged in unlawful activity as alleged in the Lawsuit. I. Defendants are willing to cease all activity related to the operation and maintenance of a contractor's storage yard at the Property. J. The County and Defendants wish to avoid the disruption, inconvenience, uncertainty, and costs associated with further litigation with respect to this matter, and seek to settle and resolve this dispute upon terms set forth in this Agreement. K. The County and Defendants both wish to reach a prompt, mutually agreeable settlement to fully and finally resolve all matters raised in the Complaint. THEREFORE, the County and Defendants acknowledge that in light of the foregoing facts and circumstances, there exists fair and valuable consideration for each of them to enter into a binding legal agreement, and agree as follows: OBLIGATIONS 1. Defendants shall not operate or maintain a contractor's storage yard for any length of time at the Property unless Defendants have obtained the proper conditional use permit from the County or the Zoning Division changes to permit the Property to be used in such a manner. Defendants have until December 31, 2023, to remove any equipment or items related to the operation and maintenance of a contractor's storage yard from the Property. After December 31, 2023, Defendants shall not store or allow to be stored any equipment or items related to the operation and maintenance of a contractor's storage yard for any length of time at Page 3 of 9 SETTLEMENT AGREEMENT the Property unless Defendants have obtained the proper conditional use permit from the County or the Zoning Division changes to permit the Property to be used in such a manner. 2. If, after December 31, 2023, any equipment or items related to the operation or maintenance of a contractor's storage yard are present for any amount of time at the Property, Defendants shall cause it to be removed at their own expense. If Defendants have not removed the equipment or item, it may be removed and impounded by the County, upon notice as described in paragraph 4, and Defendants shall be liable to the County for any expense incurred by the County for removal, impoundment, or both. 3. Defendants shall comply with all County Zoning Ordinances and shall not use the Property or permit the Property to be used in any way which unreasonably interferes with the quiet enjoyment of neighboring residents, or otherwise constitutes a public or private nuisance. 4. The County may, with reasonable notice to either of the individual Defendants, which notice may be by telephone or in writing in the sole discretion of the County, enter onto the property and inspect it to ensure compliance with the terms of this Agreement. Such inspection shall be limited in scope to ensuring compliance with this Agreement and shall not include entry to any building or vehicle, except with additional, contemporaneous consent. Nothing in this Agreement affects or reduces the County's right or ability to lawfully search the Property or any building, vehicle, container or anything else, as otherwise permitted by law, including through the use of a warrant or reliance upon exigent circumstances. Reasonable notice shall mean the soonest of (1) any time agreed upon by the parties; (2) upon 24 hours' notice; or (3) notice sufficient to permit a responsible adult to be physically present during the inspection. Notice to Defendants, with a copy to their counsel, may be mailed to them at the addresses described in paragraph 16. 5. Defendants agree to pay seventy-five thousand dollars ($75,000.00) to the County. The payment shall be due within 30 calendar days after execution of this Agreement. Page 4 of 9 SETTLEMENT AGREEMENT 6. If Defendants are in substantial compliance with the terms of this Agreement, the County shall provide to counsel for Defendants the document releasing of the Notice of Violation previously recorded against the Property by the County on August 26, 2019, and known as Document No. 2019-0095663. The release shall be provided within 60 calendar days after the County's receipt of the payment described in Paragraph 5. Defendants shall be responsible for the proper filing of release of the Notice of Violation, and for all fees and costs associated with its filing and recording. 7. If Defendants are in substantial compliance with the terms of this Agreement, the County shall dismiss Defendants with prejudice from the Lawsuit within 60 calendar days after the County's receipt of the payment described in paragraph 5. MATERIAL BREACH OF THE AGREEMENT AND TERMINATION 8. A material breach of this Agreement by any party is a breach of contract and any aggrieved party shall be entitled to pursue any and all remedies available in law or equity for breach of contract, including specific performance. 9. A material breach of this Agreement does not automatically void this Agreement. All terms shall remain in force and effect until the Agreement expires or is terminated by the Parties. 10. Nothing in this Agreement prevents the County from filing a new administrative, civil or criminal action on the basis of conduct which occurred, or is discovered, after the effective date of this Agreement. 11. The Agreement shall remain in force for 10 years from its effective date or until terminated by the Parties. The Agreement may be terminated by the Parties sooner than 10 years by mutual Agreement, in writing, signed by all the parties to this Agreement or their successors in interest. MISCELLANEOUS PROVISIONS 12. Parties Bear their own Costs. Each party will bear its own costs in connection with the Lawsuit and this Agreement. Neither the County nor any Defendant shall be deemed a Page 5 of 9 SETTLEMENT AGREEMENT prevailing parry in this action by way of this Agreement and neither shall be entitled to recover costs or fees from the other. 13. Joint and several liability. Defendants and are jointly and severally liable for all obligations of Defendants under this agreement. 14. Public Record. The parties agree that this Agreement, including its contents, is a disclosable public record under the California Public Records Act (Government Code Section 6250, et seq.), the Ralph M. Brown Act (Government Code Section 54950, et seq.), and all other applicable laws pertaining to disclosure by public entities. The County is not limited in any manner whatsoever with respect to public disclosure of this Agreement, in whole or in part. 15. Statute of Limitations. The parties agree that any and all applicable statutes of limitation are tolled as to conduct described in the recitals of this Agreement, and as to conduct reasonably related to the subject matter of this agreement occurring before the effective date of this Agreement, or while this Agreement is in effect. 16. Contact Information. The persons and their addresses having authority to give and receive notices provided for or permitted under this Agreement include the following: For the County: Richard E. Burchett Jr., Esq. The County of Fresno 2220 Tulare Street, Suite 500 Fresno, California 93721 For the Defendants and their counsel: John and Lucretia Emmett Darryl J. Horowitt, Esq. 6338 North Academy Avenue Coleman& Horowitt, LLP Fresno, California 93704 499 West Shaw Avenue Fresno, California 93704 17. Change of Contact Information. Either party may change the information in paragraph 16 by giving notice as provided in paragraph 18. 18. Method of Delivery. Except as provided in paragraph 4, each notice between the County and Defendants provided for or permitted under this Agreement must be in writing, state Page 6 of 9 SETTLEMENT AGREEMENT that it is a notice provided under this Agreement, and be delivered either by personal service or first-class United States mail. Notices sent to Defendants shall contemporaneously be sent to their counsel described in paragraph 16. (A) A notice delivered by personal service is effective upon service to the recipient. (B) A notice delivered by first-class United States mail is effective three County business days after deposit in the United States mail, postage prepaid, addressed to the recipient. 19. Notice. For all claims arising out of or related to this Agreement, nothing herein establishes, waives, or modifies any claims presentation requirements or procedures provided by law, including but not limited to the Government Claims Act (Division 3.6 of Title 1 of the Government Code, beginning with section 810). 20. Complete Agreement. This Agreement represents the full and complete understanding of the parties with respect to the subject matter hereof, and all preliminary negotiations and oral or written agreements with respect thereto are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions hereof. Any modification of this Agreement will be effective only by a written instrument signed by all parties. No waiver of any provision of this Agreement will be valid unless and until it is in writing and signed by the party making the waiver. Waiver by any party at any time of a breach or default of this Agreement shall not be deemed a waiver of or consent to a breach or default of the same or any other provision of this Agreement. 21. Severability. If any provision of this Agreement is determined to be illegal, invalid, void, or unenforceable in a final judgment by a court of competent jurisdiction, each and every other provision hereof shall remain in full force and effect, unless this severability provision would deny one or more of the parties to the Agreement of the material benefits of the Agreement, in which case the entire Agreement shall have no force and effect. Page 7 of 9 SETTLEMENT AGREEMENT 22. Authority to Execute. Each party represents and warrants to every other party that such party is duly authorized and empowered to execute, enter into, and perform its obligations set forth in this Agreement, and that the individual signing this Agreement on behalf of such party has been duly authorized to execute this Agreement on behalf of such parry, and will, by signing this Agreement on such parry's behalf, legally bind such party to the terms, covenants, and conditions of this Agreement. Each parry further represents and warrants to every other party that no other person or entity is required to give its approval or consent to this Agreement in order for such party to authorize, enter into, and perform its obligations under this Agreement, or that if such approval or consent to this Agreement is required, that such approval or consent has been obtained. 23. Applicable Law. This Agreement is made and entered into in the State of California and shall be deemed to have been executed and delivered within the State of California, and the rights and obligations of the parties hereunder shall be governed by, and construed, and enforced in accordance with the laws of the State of California. Any suit brought pursuant to this Agreement shall be filed and heard in a court having jurisdiction and located in the Fresno County, State of California. 24. Non-Assignment. No party shall assign, transfer or sub-contract this Agreement nor their rights or obligations under this Agreement without the prior written consent of the other parties. 25. Third-Party Beneficiaries. Notwithstanding anything else to the contrary herein, the parties acknowledge and agree that no other person, firm, corporation, or entity shall be deemed an intended third-party beneficiary of this Agreement. 26. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, and all of which taken together shall constitute one and the same instrument. [signature page follows] Page 8 of 9 SETTLEMENT AGREEMENT DEFENDANTS: COUNTY: John Emmett,as trustee of the 2006 John COUNTY OF FRESNO,a political and Lu etia mmett Family Trust. subdivision of the State of California By. SfQ jnttro,Nhairrnan of the Board of Prin ame: �17ZW' 2 Tr S iso e County of Fresno Title: Date: Date: ATTEST: Bernice E. Seidel John Emmett,as an individual, Clerk of the Board of Supervisors Of County of Fresno,State of California B By: A&4441""'r- jk4ro-. P Name: �� Deputy Date: 3 Date: 1 UII&I Z 5 Lucretia Emmett,as trustee of the 2006 John and Lucretia Emmett Family Trust, By- Print e: 1Z � /T Date: 107031, -3 Lucretia Em t,as an individual, By: Print Na T/ /17L�Tr Date: For Accounting Use Only Org No.: 1188 Account No.: 5800 Fund No.: 0085 Subclass No.: 17408 Page 9 of 9