HomeMy WebLinkAboutAgreement A-23-621 Settlement Agreement.pdf Agreement No. 23-621
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CODE ENFORCEMENT LITIGATION SETTLEMENT AGREEMENT
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Re: 13545 East Bullard Avenue (APN 308-021-83)
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4 THIS AGREEMENTis entered into this 28th day of November , 2023
5 ("Effective Date"), by and between defendants TYLER ORTMAN, an individual;
6 VICTORIA HINDERAKER, an individual; and SHOREBREAK VOLLEYBALL CLUB,
7 LLC, a California Limited Liability Company (hereinafter collectively referred to as
8 "Defendants"); and COUNTY OF FRESNO, a political subdivision of the State of
9 California, ("County"). Defendants and County are hereinafter referred to collectively as
10 the "Parties" and individually as a "Party" to this Agreement.
11 Recitals
12 A. TYLER ORTMAN and VICTORIA HINDERAKER are the owners of record,
13 pursuant to a Grant Deed, recorded as Fresno County Recorder Document No. 2022-
14 0034516, of real property located at and commonly referred to as 13545 East Bullard
15 Avenue, Clovis, California, 93619, within the unincorporated area of the County of Fresno,
16 and described as follows:
The land referred to is situated in the unincorporated area of
17 the County of Fresno, State of California, and is described as
18 follows:
19 The West 1/2 of the following described real property
20 The Northwest quarter of the Northeast quarter of Section 11,
Township 13 South, Range 22 East, in the County of Fresno,
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State of California, Mount Diablo Base and Meridian,
22 according to the Official Plat thereof.
23 APN: 308-021-083
24 The above described real property is hereinafter referred to as the "Subject Property."
25 B. The Subject Property is located within an Exclusive Agricultural District as
26 defined by Section 816 of the Zoning Division of the County of Fresno ("Zoning
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Ordinance").
2 C. Zoning Ordinance section 816 sets forth what land uses are permitted in an
3 Exclusive Agricultural District. In summary, these uses include agricultural uses, low
4 density residential uses, and ancillary commercial uses to support agricultural activity.
5 Zoning Ordinance section 816.4 sets forth land uses that are expressly prohibited in
6 Exclusive Agricultural Districts. Manufacturing, service and commercial uses not
7 specifically permitted in Zoning Ordinance section 816.1, 816.2, 816.3, 860 and 867 are
8 expressly prohibited.
D. Defendants operated a commercial beach volleyball training center and
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hosted beach volleyball tournaments on the Subject Property through defendant
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SHOREBREAK VOLLEYBALL CLUB, LLC. Defendants offered beach volleyball training
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services to members of the public for profit and hosted large beach volleyball tournaments
12 that were open to the public. Defendant TYLER ORTMAN is the Managing Member for
13 SHOREBREAK VOLLEYBALL CLUB, LLC.
14 E. Beginning in May 2022, the County received complaints of commercial
15 volleyball related activities and tournaments held on the Subject Property. These
16 complaints raised health and safety concerns regarding the number of vehicles coming
17 and going from the Subject Property, lack of adequate parking and resulting traffic hazard
18 along East Bullard Avenue, light pollution from the large stadium quality lights, and dust
and excessive noise from the vehicles and volleyball activities occurring on the Subject
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Property.
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F. On June 24, 2022, the County, through the Department of Public Works and
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Planning, Development Services and Capital Projects Division, Code Enforcement Unit,
22 issued a Notice of Violation to Defendants for operating a commercial volleyball camp,
23 which is a prohibited use. Defendants commercial beach volleyball uses were not
24 permitted in the Exclusive Agricultural District pursuant to Zoning Ordinance 816, et seq.
25 G. On July 20, 2022, and August 2, 2022, the County, through the Office of
26 County Counsel, issued cease and desist letters to Defendants to demand they
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1 immediately cease all commercial volleyball uses on the Subject Property.
2 H. On September 12, 2022, the County filed a Complaint for Injunctive Relief
3 to Abate a Public Nuisance and Nuisance Per Se, Unfair Business Practices, Declaratory
4 Relief and Other Relief ("Complaint") entitled County of Fresno et al. v. Tyler Ortman et
5 al., Fresno County Superior Court Case No. 22CECG02847 (the "Action"). In the Action,
6 the County seeks injunctive relief to prohibit Defendants from engaging in prohibited
7 commercial volleyball activity on the Subject Property and civil penalties for unfair
8 business practices, pursuant to California Business and Professions Code section 17206.
I. Defendants were served with the summons and the Complaint in the Action.
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Defendants have not filed a responsive pleading in the Action.
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J. The County and Defendants seek to avoid the disruption, inconvenience,
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uncertainty, and costs associated with further litigation with respect to this Action, and as
12 such, the Parties seek to settle and resolve the Action based upon the terms set forth
13 herein.
14 With reference to the foregoing recitals, which are incorporated into this Agreement
15 and in consideration of the mutual terms, covenants, conditions, promises, and benefits
16 set forth herein, the receipt and sufficiency of which are hereby acknowledged, the Parties
17 agree as follows:
18 Article 1
19 Defendants' Obligations
20 1.1 Cease Commercial Activity. Defendants agree to cease any and all
commercial volleyball activity, camps, clinics, schools, training sessions, and
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tournaments on the Subject Property unless and until Defendants apply for and are
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granted the appropriate land use approvals and zoning clearance for the Subject Property
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from County.
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1.2 Inspections. Defendants agree and authorize County Code Enforcement
25 staff to inspect, without further court orders or warrants, the exterior portion of the Subject
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Property to include the curtilage around the residential building and any accessory
2 buildings on the Subject Property, and all exterior portions of the Subject Property
3 enclosed by a fence or other barrier for a three (3) year period beginning on the Effective
4 Date. The inspections performed under this Agreement will be performed only during the
5 hours of 8:00 am and 6:00 pm. The inspections performed under this Agreement may be
6 performed with 72-hour-notice to Defendants in advance of any such inspection
7 conducted pursuant to this Agreement. The purpose of the inspections authorized by this
8 Agreement is to enable the County to monitor Defendants' compliance with the terms of
9 this Agreement.
10 1.3 Cooperation. Defendants must not interfere or refuse inspections of the
11 Subject Property conducted pursuant to Section 1.2 of this Agreement. Defendants'
12 interference will be considered a material breach of this Agreement. In the event the
13 County cannot conduct an inspection authorized by Section 1.2, the County will send a
14 written notice to Defendant, pursuant Article 4 of this Agreement, to schedule an
15 inspection. Defendants must respond within fifteen (15) days from the date of the notice
and contact the County, pursuant to Article 4 of this Agreement, to schedule an inspection.
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Failure to respond to the written notice within fifteen (15) days, without good cause, is a
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material breach of this Agreement. One (1) intentional refusal to allow County staff entry
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exterior of Property, not to include the residence, after an agreed upon inspection by
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Defendants is a material breach of this Agreement.
20 1.4 Monetary Settlement. Defendants agree to the payment of a monetary
21 settlement in the amount of Ten Thousand Dollars ($10,000) to satisfy any monetary
22 obligation due to the violations referenced in the Action ("Monetary Settlement").
23 1.5 Monetary Settlement Held in Abeyance. Defendants agree and
24 understand that the Monetary Settlement will be held in abeyance and the County will not
25 seek collection of the Monetary Settlement during the 3-year abeyance period beginning
26 on the Effective Date ("Abeyance Period"). Upon Defendants' compliance with the terms
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of this Agreement over the 3-year abeyance period, the Monetary Settlement shall be
2 waived and discharged by the County pursuant to Section 2.3 of this Agreement.
3 1.6 Payment of Monetary Settlement. Defendants agree that the Monetary
4 Settlement is immediately due and payable in the event of a material breach during the
5 Abeyance Period. Defendants must pay to the County the full amount of the Monetary
6 Settlement within thirty (30) calendar days of Defendants' receipt of notice of the County's
7 demand for payment provided pursuant to Article 4 of this Agreement.
8 1.7 Abatement of Unpermitted Commercial Activity. Defendants agree that,
9 upon a finding by the County that Defendants have engaged in prohibited commercial
10 volleyball uses and activities on the Subject Property in breach of this Agreement, the
11 County may immediately file a court action for injunctive relief to abate any use or activity
12 of the Subject Property related to or in furtherance of commercial volleyball camps,
13 training clinics, tournaments or other commercial volleyball events without the required
14 land use approvals and entitlements.
15 1.8 Waiver of Costs and Fees. Defendants agree to waive any costs and any
attorney's fees to resolve the Action.
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Article 2
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The County's Obligations
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2.1 Dismissal of the Action. The County agrees to dismiss the Action without
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prejudice within thirty (30) calendar days after the execution of this Agreement by the
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Parties.
21 2.2 Monetary Settlement. The County agrees to hold in abeyance and not
22 demand payment of the Monetary Settlement during the Abeyance Period, conditioned
23 upon Defendants' full compliance with this Agreement during the Abeyance Period.
24 2.3 Discharge of Monetary Settlement. The County agrees to waive and
25 discharge the Monetary Settlement upon Defendants' full compliance with the Agreement
26 at the conclusion of the Abeyance Period.
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2.4 County Inspections. The inspections to monitor compliance over the 365-
2 day period beginning on the Effective Date, as authorized by Section 1 .2, will be
3 conducted only during the hours of 8:00 am and 6:00 pm. The County is not required to
4 provide notice to the Defendants in advance of any inspections authorized by Section 1.2
5 of this Agreement. In the event the County cannot conduct an inspection authorized by
6 Section 1.2, the County will send a written notice to Defendant, pursuant to Article 4 of
7 this Agreement, and demand Defendants respond within fifteen (15) days of date of the
8 notice to schedule an inspection.
9 2.5 Waiver of Costs and Fees. The County waives all costs and attorney's
10 fees in the Action in exchange for resolution of the Action by this Agreement.
11 Article 3
12 County's Remedy for Breach
13 3.1 Demand for Monetary Settlement. The County is authorized to demand
14 immediate payment of the Monetary Settlement in the event of a material breach by
15 Defendants during the Abeyance Period.
3.2 Payment of Monetary Settlement. If the Monetary Settlement become due
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and payable according to the provisions of this Agreement, Defendants must pay to the
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County the full amount of the Monetary Settlement within thirty (30) calendar days of
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Defendants' receipt of notice of the County's demand for payment provided pursuant to
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Article 4 of this Agreement.
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3.3 Recovery of Unpaid Monetary Settlement If the Defendants fail to timely
21 pay to the County the Monetary Settlement demanded pursuant to Section 3.2 of this
22 Agreement, the County is authorized to file a civil lawsuit for breach of this Agreement
23 and seek a monetary judgment in the amount of any unpaid Monetary Settlement. If the
24 County prevails in such a lawsuit, the County shall be entitled to recover its attorney's
25 fees and costs from the Defendants.
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3.4 Injunction to Abate Unpermitted Commercial Activity. In addition to any
2 other remedies the County may have, in the event of a material breach of this Agreement
3 by Defendants, the County is authorized to file a civil lawsuit for breach of this Agreement
4 and, as an additional remedy, seek injunctive relief in the Superior Court of California,
5 County of Fresno, to abate any commercial volleyball camps, training clinics, tournaments
6 and other commercial volleyball activity on the Subject Property undertaken or authorized
7 by the Defendants. If the County prevails in such a lawsuit, the County shall be entitled
8 to recover its attorney's fees and costs from Defendants.
9 3.5 Future Code Enforcement Action. This Agreement does not constitute a
10 waiver by the County of any lawful exercise of discretion the County has under the law,
11 nor does this Agreement preclude the County from exercising its land use and police
12 powers, or limit the County's rights to pursue future code enforcement action(s) against
13 Defendants and the Subject Property for any Ordinance Code and Zoning Ordinance
14 violations, violations of state or federal law, and other nuisance conditions that may arise
15 after the Effective Date of this Agreement.
Article 4
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Notices
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4.1 Contact Information. The persons and their addresses having authority to
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give and receive notices provided for or permitted under this Agreement include the
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following:
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For the County:
21 Attn: Senior Planner, Code Enforcement Unit
22 Department of Public Works and Planning, Development Services and
Capital Projects Division
23 2220 Tulare Street, 8t" Floor
Fresno, CA. 93721
24 Telephone: (559) 600-4537
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1 For Defendants:
2 Attn: TYLER ORTMAN
On Behalf of Individual Defendants and as the Managing Member of
3 Defendant SHOREBREAK VOLLEYBALL CLUB, LLC.
13545 East Bullard Avenue,
4 Clovis, California, 93619
Telephone: (858) 243-5907
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6 4.2 Method of Delivery Each notice between the County and Defendants, or
7 any of them, provided for or permitted under this Agreement must be in writing, state that
8 it is a notice provided under this Agreement, and be delivered either by personal service,
9 by first-class United States mail, by an overnight commercial courier service, by
10 telephonic facsimile transmission, or by Portable Document Format (PDF) document
11 attached to an email.
12 (A) A notice delivered by personal service is effective upon service to the
13 recipient.
14 (B) A notice delivered by first-class United States mail is effective three County
15 business days after deposit in the United States mail, postage prepaid, addressed
16 to the recipient.
17 (C)A notice delivered by an overnight commercial courier service is effective
18 one County business day after deposit with the overnight commercial courier
19 service, delivery fees prepaid, with delivery instructions given for next day delivery,
20 addressed to the recipient.
21 (D)A notice delivered by telephonic facsimile transmission or by PDF document
22 attached to an email is effective when transmission to the recipient is completed
23 (but, if such transmission is completed outside of County business hours, then
24 such delivery is deemed to be effective at the next beginning of a County business
25 day), provided that the sender maintains a machine record of the completed
26 transmission.
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4.3 Change of Contact Information. Either Party may change the information
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in Section 4.1 by giving notice provided in Section 4.2.
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Article 5
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General Terms
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5.1 Enforcement of Agreement. The Parties agree that the waiver of fees and
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costs in exchange for dismissal of the Action set forth herein does not extend to any
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breaches of this Agreement. If any action is required to enforce the terms of this
8 Agreement, the prevailing party shall be entitled to all attorneys' fees and costs incurred
9 to enforce this Agreement.
10 5.2 Integration. This Agreement embodies the entire agreement and
11 understanding that exists between the Parties with respect to the matters referred to
12 herein, and supersedes all prior and contemporaneous agreements, representations, and
13 undertakings. No supplement, modification, or amendment of this Agreement shall be
14 binding unless executed in writing by both Parties.
15 5.3 Modification. This Agreement may not be altered, amended, or modified in
16 any respect, except by a writing duly executed by the Parties.
17 5.4 Successors. This Agreement shall be binding and enforceable against the
18 successors, heirs, and assigns of the Parties.
19 5.5 Governing Law, Venue. This Agreement shall be governed by the laws of
20 the State of California. Any suit, claim, or legal proceeding of any kind related to this
21 Agreement shall be filed and heard in a court of competent jurisdiction in the Fresno
22 County Superior Court.
23 5.6 Headings, Construction, Statutory References. The headings of the
24 sections and paragraphs of this Agreement are for convenience only and shall not be
25 used to interpret this Agreement. The final form of this Agreement is the result of the
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parties' combined efforts. If anything in this Agreement is found by a court of competent
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jurisdiction to be ambiguous, that ambiguity shall not be resolved by construing the terms
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of this Agreement against either party. Each Party to this Agreement has had an
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opportunity to review the Agreement, confer with legal counsel regarding the meaning of
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the Agreement, and negotiate revisions to the Agreement. Accordingly, no Party shall rely
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upon Civil Code Section 1654 in order to interpret any uncertainty in the meaning of the
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Agreement. All references in this Agreement to particular statutes, regulations,
8 ordinances or resolutions of the United States, the State of California or the County of
9 Fresno shall be deemed to include the same statute, regulation, ordinance or resolution
10 as hereafter amended or renumbered, or if repealed, to such other provisions as may
11 thereafter govern the same subject.
12 5.7 Severability. If any term of this Agreement (including any phrase, provision,
13 covenant, or condition) is held by a court of competent jurisdiction to be invalid or
14 unenforceable, the Agreement shall be construed as not containing that term, and the
15 remainder of this Agreement shall remain in full force and effect; provided, however, this
16 section shall not be applied to the extent that it would result in a frustration of the Parties'
17 intent under this Agreement. The Parties shall use their best efforts to cure any
18 inadequacies or deficiencies identified by the court in a manner consistent with the
19 express and implied intent of this Agreement and then to adopt or re-enact such part of
20 this Agreement as necessary or desirable to permit implementation of this Agreement.
21 5.8 Review of Agreement. Each Party warrants that they have completely read
22 and reviewed this Agreement, that they were advised to obtain legal advice from an
23 attorney before signing it, have had adequate time to obtain such legal advice, and that
24 they understand the meaning and effect of the Agreement.
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5.9 Authority to Enter Agreement. Each Party represents and warrants to the
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other Parties that such Party is duly authorized and empowered to execute, enter into,
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and perform its obligations set forth in this Agreement, and that the individual signing this
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Agreement on behalf of such Party has been duly authorized to execute this Agreement
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on behalf of such Party, and will, by signing this Agreement on such Party's behalf, legally
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bind such Party to the terms and conditions of this Agreement. Each Party further
7 represents and warrants to the other Party that no other person or entity is required to
8 give its approval or consent to this Agreement in order for such Party to authorize, enter
9 into, and perform its obligations under this Agreement, or that if such approval or consent
10 to this Agreement is required, that such approval or consent has been obtained.
11 5.9 Electronic Signatures. The parties agree that this Agreement may be
12 executed by electronic signature as provided in this section.
13 (A) An "electronic signature" means any symbol or process intended by an
14 individual signing this Agreement to represent their signature, including but not
15 limited to (1) a digital signature; (2) a faxed version of an original handwritten
16 signature; or (3) an electronically scanned and transmitted (for example by PDF
17 document) version of an original handwritten signature.
18 (B) Each electronic signature affixed or attached to this Agreement (1) is
19 deemed equivalent to a valid original handwritten signature of the person signing
20 this Agreement for all purposes, including but not limited to evidentiary proof in
21 any administrative or judicial proceeding, and (2) has the same force and effect
22 as the valid original handwritten signature of that person.
23 (C)The provisions of this section satisfy the requirements of Civil Code
24 section 1633.5, subdivision (b), in the Uniform Electronic Transaction Act (Civil
25 Code, Division 3, Part 2, Title 2.5, beginning with section 1633.1).
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(D) Each party using a digital signature represents that it has undertaken and
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satisfied the requirements of Government Code section 16.5, subdivision (a),
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paragraphs (1) through (5), and agrees that each other party may rely upon that
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representation.
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(E) This Agreement is not conditioned upon the parties conducting the
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transactions under it by electronic means and either party may sign this
7 Agreement with an original handwritten signature.
8 5.10 Counterparts. This Agreement may be signed in counterparts, each of
9 which is an original, and all of which together constitute this Agreement.
10 5.11 Waiver. No waiver of any of the provisions of this Agreement shall be
11 deemed, or shall constitute, a waiver of any other provisions whether or not similar, nor
12 shall any waiver constitute a continuing waiver. No waiver shall be binding unless
13 executed in writing by the Party making the waiver.
14 5.12 Costs. Each party to this Agreement shall bear their own attorney's fees
15 and costs related to the review and making of this Agreement.
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
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executed as of the day and year first above written:
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4 DEFENDANTS PLAINTIFFS
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TYLER ORTMAN COUNTY OF FRESNO
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8 Tylep rtman, Property Owner Sa Q nt o, airman of the Board of
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Su isor he County of Fresno
10 VICTORIA HINDERAKER
11 t�4,
12 Victoria Hinderaker, Property Owner
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14 SHOREBREAK VOLLEYBALL CLUB, LLC
15 A California Limited Liability Company
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17 y r Ortman, Managing Member
1 N. Fowler Ave, Apt 216
Clovis, California 93611
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19 ATTEST:
Bernice E. Seidel
20 Clerk of the Board of Supervisors
21 County of Fresno, State of California
22 By_ rr1o.
Ceputy
23 For accounting use only:
Org: 1188
24 Account: 5800
Fund: 0085
25 Subclass: 17408
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