Loading...
HomeMy WebLinkAboutPHAM, THIEN PHUONG„, INSURANCE NOT REQUIRE[) o WORK MAY PROCEED A-2021-256 o CLERK OF COUNCIL N DAM COMPLIANCE AGREEMENT n, o: c A o (Jose, X6 V-V 6�4 (gMi �— This Compliance Agreement (hereinafter "Agreement”) is made and entered into on this I Ith day of January 2022 ("Effective Date") by and between CITY OF SANTA ANA, a charter City and municipal corporation, (hereinafter "City"), and Thien Phuong Pham, an individual (hereinafter "Buyer"). City and Buyer are also collectively referred to as "the Parties" herein. RECITALS WHEREAS, the City of Santa Ana has determined that the property located at 2901 W. Lingan Lane, Santa Ana, California, identified as Assessor's Number 109-693-12 (the "Property") to be a public nuisance and is being maintained in violation of the Santa Ana Municipal Code ("SAMC"), requiring immediate rehabilitation and/or repairs; and WHEREAS, on November 22, 2021, the City filed a receivership petition against the property owner, DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE FOR HARBORVIEW MORTGAGE LOAN TRUST 2007-2, a national banking association ("Respondent Deutsche Bank" and/or "Property Owner"), and the following parties: GOLDEN STATE FINANCE AUTHORITY, a California Joint Powers Authority; CALIFORNIA MUNICIPAL FINANCE AUTHORITY, a Joint Powers Authority; ARVEST CENTRAL MORTGAGE COMPANY, a mortgage servicer (hereinafter collectively referred to as "Respondents"), in the Superior Court of the State California, County of Orange, Central Justice Center District known as CITY OF SANTA ANA V. DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE FOR HARBORVIEW MORTGAGE LOAN TRUST 2007-2, et al., Case No. 30-2021-01233313-CU-PT-CJC (the "Action"). The City's Action in this petition includes a prayer for the Court to appoint a receiver to take possession and control of the Property pursuant to California Health & Safety section 17980.7(c) and bring the Property into compliance with the law, attorneys' fees and costs, and for other equitable relief against Respondents; and WHEREAS, Respondent Deutsche Bank intends to sell and distribute the Property to Thien Phuong Pham, an individual ("Buyer"), and Buyer intends to purchase and acquire the Property from Respondent Deutsche Bank. Buyer understands and agrees that it will assume all liabilities and claims associated with the Action; and WHEREAS, Buyer acknowledges that the Property contains multiple SAMC violations, which are the subject to the pending Action and understands and acknowledges that these violations must be abated in order for the Property to be brought into compliance; and WHEREAS, the Parties seek to enter into this Agreement to ensure that Buyer will bring the Property into compliance with State laws and SAMC; and WHEREAS, concurrently with this Agreement, Respondent Deutsche Bank has entered into an agreement with City to settle the Action as set forth in Exhibit A attached hereto and incorporated herein by this reference ("Settlement Agreement"); and 1 WHEREAS, this Agreement is a condition precedent to settle all disputes with Respondents with respect to the Action. NOW, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein, the parties hereby agree as follows: SECTION 1. RECITALS. The Recitals above are true and correct and incorporated into the body of this Agreement by this reference. SECTION 2. COMPLIANCE WITH IMPOSED SETTLEMENT CONDITIONS. This Agreement fulfills the requirement set forth in paragraph 2 of the Settlement Agreement. Buyer accepts and shall fulfill all conditions set forth in the Settlement. Buyer shall pay the City's staff time, reasonable attorney's fees, and abatement costs, and make a charitable donation as provided in paragraph 3 of the Settlement Agreement, as well as perform all additional conditions and requirements in this Agreement. SECTION 3. TERMS AND CONDITIONS. The terns and conditions of this Agreement are attached hereto as Exhibits B and incorporated herein by this reference. SECTION 4. PROPERTY MAINTENANCE ENFORCEMENT BY THE CITY OF SANTA ANA. A. Ongoing Operational/Maintenance Conditions Buyer, on behalf of itself, its successors and assigns and any subsequent owner of the Property, hereby agrees to maintain and repair the following elements of the Property: 1. The Property shall be maintained in compliance with the requirements of SAMC Chapters 8, 16, 41, the Un?form Code for the Abatement of Dangerous Bulldbrgs, lnternarional Property Maintenance Code and California Health & Safety Code section 17920.3, 2. The Property shall comply with operational conditions of the SAMC applicable during any period(s) of construction or major repair (e.g., proper screening and securing of the construction site; implementation of proper erosion control, dust control and noise mitigation measure, etc.). 3. The Property shall be kept free of weeds, dry brush, dead vegetation, excessive foliage growth, trash, junk, debris, building materials, any accumulation of newspaper, circular flyers, notices (except those required by federal, state or local law), discarded personal items including, but not limited to, furniture, clothing, large and small appliances, printed material or any other items that give the appearance that the property is abandoned. 4. Visible yards shall be landscaped and continuously maintained by proper pruning, mowing of lawns, weeding, removal of litter, fertilizing, replacement of plants and decorative materials when necessary, and the regular watering of plants. Landscaping includes, but is not limited to, grass, ground covers, bushes, shrubs, hedges or similar plantings, decorative rock or bark or artificial turf/sod designed specifically for residential installation and standards listed in SAMC section 41-609 "Landscape." Landscaping does not include weeds, gravel, broken concrete, asphalt, plastic sheeting, mulch, indoor -outdoor carpet or any similar material. B. Notice of Maintenance Deficiencies Upon any failure by Buyer to perform any of the maintenance and repair obligations referenced in Section 4.A. of this Agreement (such failure hereinafter referred to as a "Maintenance Deficiency"), the City shall issue written notice of such Maintenance Deficiency to Buyer, as provided in Section 15 of this Agreement. C. Maintenance Deficiencies. Buyer shall comply with any issuance of a Notice of Maintenance Deficiency within the timeframe specified by the Code Enforcement Division to cure the Maintenance Deficiency identified in such Notice. Within the timefl•ame specified by the Code Enforcement Division in the notice of a Maintenance Deficiency, Buyer may submit a written request to the City seeking additional time to cure the Maintenance Deficiency. Each such written request for additional time shall describe and specify in detail (i) which tasks require additional time to complete the cure of the Maintenance Deficiency and the reason why such additional time is needed under the circumstances; (ii) what steps Buyer have already taken to commence the cure of the Maintenance Deficiency. The City, in its reasonable discretion, may grant, conditionally grant or deny any written request for additional time as determined by the Code Enforcement Manager. The City shall be under no obligation to consider untimely submitted time extension requests or requests which fail to provide any of the information required above. D. Removal of Graffiti. Buyer, on behalf of itself, its successor and assigns hereby further covenants and agrees in favor of the City to keep the exterior surfaces of all strictures, fixtures or other improvements located on the Property free and clear of graffiti. Graffiti shall be removed within twenty-four (24) hours following the time of its application. A failure by Buyer to remove graffiti within twenty-four (24) hours following its application on any structure, fixture or other improvement located on tite Property shall be deemed to be a Maintenance Deficiency for which no further notice under Section 4.B. needs to be given by the City. E. City May Cure Maintenance Deficiency, 1. In the event Buyer fails to cure a Maintenance Deficiency within the time allowed, the City may initiate a hearing pursuant to Chapter 3 of the Santa Ana Municipal Code. At such a hearing the hearing officer shall consider such evidence and testimony of interested persons as may be relevant to the matter. If upon the conclusion of a hearing, the hearing officer makes a written' finding that a Maintenance Deficiency exists and that there appears to be non-compliance with the maintenance and repair obligations referenced in Section 4.A. of this Agreement, the City shall have the right to record the notice described in Section 4.0. of this Agreement and thereafter the City may enter upon or otherwise access the Property for the purpose of curing the Maintenance Defciency without farther notice to Buyer. 2. The foregoing notwithstanding, the City, without notice to Buyer, shall have the right to enter the Property and remove graffiti, solid waste, trash, or other debris under the following two circumstances: (i) a failure by Buyer to remove graffiti within twenty-four (24) hours following its application on any structure, fixture or other improvement located on the Property that is visible from an adjacent or contiguous public right-of-way; or (ii) a failure by Buyer to remove the accumulation of solid waste, trash, or other debris that is visible for a duration of twenty-four (24) hours from an adjacent or contiguous public right-of-way or from a designated fire lane on the Property. Any sum expended by the City for the removal of graffiti, solid waste, trash, or other debris pursuant to this Section 4.E.2. of the Agreement shall become a lien on the Property in accordance with Section 41. and the City shall have the right to enforce such lien in the manner provided in Section 4.0. P. City's Lien Authority. Any sums expended by the City in enforcing, maintaining, repairing or replacing, curing any element of the Property as authorized in Section 4 for which a Maintenance Deficiency has been declared by the City to exist under Section 4.E., shall become a lien on the Property. The powers conferred upon City pursuant to this Section 4.17. are in addition to all other remedies which the City may have to enforce this Agreement, or any building or development project permit under other law including public nuisance abatement proceedings or any other action at law or equity. G. Enforcement of Liens by the City. 1. The rights conferred upon the City by Buyer under Section 4 of this Agreement expressly include the power to establish and enforce a lien or other encumbrances against the Property or any portion thereof, subject to all then existing other liens and encumbrances on the Property, in an amount reasonably necessary to reimburse the City for its reasonable costs of the necessary and reasonable costs incurred by the City under Section 4.C. to restore the Property to the maintenance standard required under this Section 4, including reasonable attorney's fees and costs of the prevailing party associated with the correction of the Maintenance Deficiency in connection with such action. If the amount of any such lien as relates to a Maintenance Deficiency is not paid within thirty (30) calendar days after written notice by the City to Buyer, demanding such payment, the City shall have the right to enforce its lien in accordance with the statutory authority referenced under this Section 4.0.1. The prevailing party in a collection or other lien enforcement action authorized by this Section 4.0. shall also have the right to collect its reasonable attorney's fees, costs and expenses associated with any action or proceeding to enforce or defend its rights hereunder. 2. In the event that the City makes a written finding that a Maintenance Deficiency exists on the Property as provided in Section 4.E., then in addition its lien powers under Section 4.G.L, the City may record a notice of correction of Maintenance Deficiency be recorded against the Property. Such a notice of Maintenance Deficiency shall refer to Section 4.E, of the Agreement, be signed by the Executive Director of the Planning and Building Agency and shall have a duration following the date of its recordation until such date the Maintenance Deficiency is corrected. 0 Id. No approval by Buyer shall be necessary for the City to establish and foreclose a lien for non-payment of amounts expended by the City to cure a Maintenance Deficiency under Section 4 of this Agreement. No failure by the City to enforce any default pertaining to the maintenance, repair or replacement of any element of the Property under Section 4 shall be deemed to be a waiver of the right or power of the City to enforce any subsequent default thereof by Buyer. 1. Priority of City Ordinances and Other Laws Notwithstanding any provision in this Agreement to the contrary, the approval and acceptance of this Agreement by the City shall not be deemed a waiver or release of any applicable provision of any building permit or development project permit issued by the City for the improvement of the Property, or of any other applicable ordinance or law or the general police power of the City. In the event of any conflict or inconsistency between any provision hereof and any ordinance, law, or the general police power of the City, the latter shall prevail, SECTION S. LI UIDATED DAMAGES, In the event the City is required to bring legal action based on nuisance conditions on the Property and/or breach the terms of this Agreement, the Parties stipulate the imposition of a Twenty Thousand ($20,000) "liquidated damages" provision awarded to City, in addition to actual fees and costs authorized by statute. Such damages shall only be awarded following a judgment with an express finding of fact that Defendants, or any of them, or their assignees, are liable and responsible for such nuisance conditions. SECTION 6. TERM and TERMINATION of AGREEMENT. This Agreement shall commence on the Effective Date for a one (1) year term ("Term"). City agrees that if Buyer (or Buyer's successors or assigns) performs all of its obligations under this Agreement with no violations that remain uncured following written notice and expiration of any applicable cure period, this Agreement shall automatically tenninate after the expiration of Tenn, SECTION 7, LEGAL ADVICE. Each Party represents and warrants to the other the following; they have carefully read this Agreement, and in signing this Agreement, they do so with full knowledge of any right which they may have; they have received independent legal advice from their respective legal counsel as to the matters set forth in this Agreement, or having knowingly chosen not to consult legal counsel as to the matters set forth in this Agreement; and they have freely signed this Agreement without any reliance upon any agreement, promise, statement, or representation by or on behalf of the other Party, or in their respective agents, employees or attorneys, except as specifically set forth in this Agreement, and without duress or coercion, whether economic or otherwise. SECTION 8. REPRESENTATION AND WARRANTIES OF BUYER. Buyer represents and warrants for the benefit and reliance for the City as follows: A. Buyer validly exists under the laws of the State of California and is authorized to conduct business in California and is authorized to carry on its business being conducted as contemplated in this Agreement; B. Buyer has the power and authority to enter into this Agreement; and C. This Agreement shall be a legal, valid and binding obligation of Buyer, enforceable against Buyer and its successors and assigns in interest in the Property, and each portion thereof, in accordance with its terns, subject to bankruptcy and other equitable principles. SECTION 9. ASSIGNMENT. This Agreement shall further provide that any Party responsible for complying with its terms shall not assign its ownership interest in the Property or any interest in any lease, sublease, license or sublicense, unless the prospective assignee agrees in writing to assume all of the duties and obligations and responsibilities set forth under this Agreement. SECTION 10. TIME OF THE ESSENCE. Time is expressly made of the essence with respect to the performance by City and Buyer of each and every obligation and condition of this Agreement. SECTION 11. ATTORNEY'S FEES. In addition to any other remedies provided herein or available under applicable laws, if either Party to this Agreement commences an action against the other Party arising out of, or in connection with this Agreement, the prevailing Party shall be entitled to recover from the non -prevailing Party its costs of suit, including, but not limited to, its reasonable attorney's fees, expert witness fees, and costs of investigation. SECTION 12. INTEGRATION. This Agreement contains the entire understanding between the Parties relating to the transaction contemplated by this Agreement, except as otherwise provided. All prior contemporaneous agreements, understandings, representations and statements, oral or written, are merged in this Agreement and shall be of no further force or effect. Each Party is entering into this Agreement based solely upon the representations set forth herein and upon each Party's own independent investigation of any and all facts such Party deems material. This Agreement constituted the entire understanding and agreement of the Parties, notwithstanding any previous negotiations or agreements between the Parties or their predecessors in interest with respect to all or any part of the subject matter hereof. SECTION 13. SEVERABILITY. if any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. SECTION 14, AMENDMENT, No amendment, modification or supplement of this Agreement shall be valid or binding unless executed in writing and signed by both Parties, subject to City approval. The requirement for written amendments, modifications or supplements cannot be waived and any attempted waiver shall be void and invalid. SECTION 15. NOTICES, All notices permitted or required under this Agreement shall be given to the respective Parties at the following addresses, or at such other address as the respective Parties may provide in writing for this purpose: A-2021-256 BUYER: Thien Phuong Pham 2901 W. Lingan Lane Santa Ana, CA 92704 thienppham@gmail.com CITY: City of Santa Ana City Attorney's Office, M-29 PO Box 1988 Santa Ana, CA 92702 Attn: Jose Montoya SECTION 16. COUNTERPARTS. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original and all of which together shall constitute one document. IN WITNESS WHEREOF, this Agreement is executed on the dates set forth below. CITY: Dated: 6' CITY OF SANTA ANA, a charter law city and municipal corporation, duly organized and existing under the Constitution and laws of the State of California By, Kristine Ridge, City Manager ATTEST: CITY OF SANTA ANA, a charter law city and municipal corporation, duly organized and existing under the Constitution and laws of the State of Califomia Dated: By: Daisy Gomez, Clerk of the Council [Signatures continued on the following page] Dated: 01 /03/2022 APPROVED AS TO FORM: Thien Phuong Pham, an individual SONIA R. CARVALHO CITY ATTORNEY City of Santa Ana Dated: 12/28/2021 Ac I Jose Montoya Assistant City Attorney Attorney for Plaintiff CITY OF SANTA ANA EXHIBIT A Settlement Agreement Intentionally Omitted EXHIBIT B Buyer shall agree, at its own costs, to submit all necessary plans and obtain any and all permits from the City for the rehabilitation of the Property within thirty (30) days from January 10, 2022 and will complete all work within forty five (45) days from February 10, 2022. The City Manager or their designee may grant additional one (1) month extensions if the Buyer can demonstrate that significant progress, as determined at the City's discretion, is being made towards rehabilitation of the Property. 2. Buyer shall be required to keep the Property secured at all times to prevent unauthorized entry. If Buyer fails to secure the Property, the City shall provide the Buyer with twenty-four (24) hours notice to immediately secure the Property. If Buyer fails to secure the Property within twenty-four (24) hours, the City shall secure the Property (e.g. security guard, board - up, etc.) at Buyer's sole cost and expense. Maintaining the Property secure includes, but is not limited to closing and locking of windows, doors (walk-through, sliding and garage), and any other opening that may allow access to the interior of the property and or structure(s). In the case of broken windows, securing means re -glazing or boarding the window. Buyer may remove boards, as necessary, when Buyer secures all permits and his contractor commences work to rehabilitate the Property. Buyer shall provide the City with a cashier's check in the amount of Ten -Thousand Dollars ($10,000) ("Security") no later than January 10, 2022. If Buyer fails to secure the Property in accordance with paragraph 2 of this Exhibit A, City shall secure the Property by utilizing the finds in Buyer's Security. Any unutilized funds retraining in the Security shall be returned by City to Buyer when Buyer secures all permits and his contractor commences work to rehabilitate the Property. 4. Buyer shall install and maintain a minimum six-foot (6) high chain -link fence adjacent to the property boundaries until the Property is occupied. Buyer may remove fence when it secures all permits and contractor commences work to rehabilitate the Property. The Property shall be posted with the name and 24-hour contact phone number of the local property management company. The posting shall be no less than eighteen (18) inches x twenty-four (24) inches, shall be of a font that is legible from a distance of forty-five (45) feet, and shall contain the following verbiage: "THIS PROPERTY MANAGED BY " and "TO REPORT PROBLEMS OR CONCERNS CALL (name and phone number)." The posting shall be placed on chain -link fence. Once the chain -link fence may be removed, the posting shall be placed in the interior of a window facing the street to the front of the property so it is visible from the street, or secured to the exterior of the building/structure facing the street of the front of the property so it is visible from the street. If no such area exists, the posting shall be on a stake of sufficient size to support the posting, in a location that is visible from the street to the front of the property, and to the extent possible, not readily subject to potential vandalism. Exterior posting must be constructed of, and printed with weather resistant materials. This paragraph 5 shall be null and void once the Buyer occupies the Property. 10