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HomeMy WebLinkAboutCABRILLO COMMUNITY PARTNERS, LLC.tioti� -OUIRED V • ��,. 'ROCS':-) �OU(v A N-2021-016 TOLLING AGREEMENT EXTENSION 11 PP�1 t2)(M nvt�n�)� (to June 7, 2021, subject to earlier termination as provided below) This Tolling Agreement Extension 11 (the "Tolling Agreement") is entered into by and between the City of Santa Ana, a California charter city (the "City"), 1851 East First Street Investors, LLC, a California limited liability company (1851 "), and Cabrillo Community Partners, LLC, a California limited liability company ("Cabrillo"). Within this Tolling Agreement, the City, 1851, and Cabrillo may be referred to collectively as the "Parties" or individually as a "Party." The Parties agree as follows: A. Cabrillo is the applicant for a project known as "The Madison" which was approved by the City Council of the City on June 5, 2018 (the "Project"). The Project is a 260-unit mixed -use development located at 200 North Cabrillo Park Drive in the City (the "Project Site"). B. In approving the Project (the "Approval"), the City approved Site Plan Review No. 2016-03, Variance No. 2017-05, and Variance No. 2017-06. A Notice of Exemption from the requirements of the California Environmental Quality Act ("CEQA") was filed and posted on June 11, 2018. C. 1851 owns an office building to the south of and adjacent to the Project Site at 1851 East First Street, Santa Ana. D. Prior to June 5, 2018, 1851 presented to the City, both orally and in writing, objections to the Approval on, among others (collectively, the "Dispute"), the following grounds: 1851 contends that the Approval was not exempt from CEQA and required further analysis under CEQA of traffic and other potential impacts. 2. 1851 contends that the approval of Variance No. 2017-05 (the parking variance) did not meet the requirements set forth in the City's Municipal Code for the approval of a variance. Cabrillo disputes these contentions. E. Since the Approval, Cabrillo and 1851 have worked cooperatively to resolve the Dispute and are optimistic that the Dispute can be resolved. That resolution, however, will require time to make minor design changes to the Project and have those changes approved by the City. The time needed to resolve the Dispute, therefore, is likely to extend beyond the time by which 1851 must file a legal action under CEQA and California Planning Law to assert its claims related to the Dispute (the "Statutes of Limitation"). Prior to this Tolling Agreement being signed on behalf of all Parties, the Parties entered into separate agreements which tolled the running of the Statutes of Limitations. Collectively, those agreements tolled the running of the Statute of Limitations through January 15, 2021. G. Due to circumstances related to the COVID-19 pandemic, the Parties now desire to extend that tolling period to allow for continued discussions to resolve the Dispute. H. It is the intent of this Tolling Agreement that the Statutes of Limitation for 1851 to file a legal action under CEQA and California Planning Law to assert its claims related to the Dispute shall be tolled and extended to June 7, 2021, subject to earlier termination as provided below. The facts and circumstances related to the Dispute shall be "frozen" for a period beginning at 12:00p.m. (noon) on Monday, July 16, 2018, and ending at 11:59p.m. on June 7, 2021, unless terminated earlier pursuant to the terms of a Fourth Amended Settlement Agreement between 1851 and Cabrillo signed as of January 14, 2021 (the "Settlement Agreement'). Paragraph 5d of the Settlement Agreement provides that the Tolling Agreement shall be extended to the earlier of (i) the date on which all of the "Contingencies" set forth in Paragraph 5 of the Settlement Agreement are completely satisfied and (ii) June 7, 2021. In addition, as provided in prior versions of this Tolling Agreement, this Tolling Agreement may also be terminated ten days after receipt of written notice to terminate this Tolling Agreement delivered by one or more of the Parties to each of the other Parties (a 'Termination Notice"). A Termination Notice shall be delivered by Certified Mail and email to the addresses set forth below, which may be changed by delivery of notice to each of the other Parties by Certified Mail and email. Termination of this Tolling Agreement shall be effective ten (10) days after receipt of the Termination Notice by all Parties. Upon termination of this Tolling Agreement, the respective positions of the Parties will be as they stood at 12:00p.m. (noon) on July 16, 2018, and any relevant statutory or contractual time periods will then resume. The elapsed time during the effectiveness of this Tolling Agreement, however, shall not be counted toward any remaining relevant statutory or contractual time periods. Nothing in this Tolling Agreement prevents any Party from asserting any claim or defense in any action related to the Dispute if that claim or defense could have been asserted as of 12:00p.m. (noon) on July 16, 2018, including, but not limited to, any claim or defense based upon statutes of limitations, laches, or the passage of time. Further, nothing in this Tolling Agreement shall prohibit 1851 from filing a claim based upon the Dispute at any time prior to the termination of this Tolling Agreement. The individuals signing this Tolling Agreement, including counsel signing on behalf of a Party, represent that they are authorized to sign on behalf of the Party for whom they are signing. This Tolling Agreement may be signed in counterparts by one or more of the Parties and those counterparts, when taken together, shall have the same force and effect as if a single, original document had been signed by all of the Parties. K. For purposes of executing this Tolling Agreement, a facsimile signature shall have the same force and effect as an original signature. L. This Tolling Agreement contains the entire agreement of the Parties with respect to its subject matter. All negotiations, agreements, statements, or promises between the Parties or their agents with respect to this transaction are merged in this Tolling Agreement. [Signatures on next page] APPROVED AS TO FORM: DATED: January 13, 2021 SONIA R. CARVALHO City Attorney By: X.. A . Q. Laura A. Rossini, Chief Assistant City Attorney Attorneys for the City of Santa Ana Addresses for Notice: Certified Mail: City of Santa Ana City Attorney 20 Civic Center Plaza Santa Ana, CA 92701 Email: Son ia.Carvalho(a),bbklaw.com DATED: January _, 2021 CITY OF SANTA ANA Kristine Ridge City Manager DATED: January !ui, 2021 ATTEST: �_ V F^+ .� jp,( Daisy Gomez, CMC 0r Clerk of Council [Signatures continue on the next page] DATED: January � 2021 CABRILLO COMMUNITY PARTNERS, LLC a California limited liability company By: BP Cabrillo, LLC, a California limited liability company, its Co -Manager By: Palmer Investments, Inc., a California corporation, its Manager By:_ Name. A al , Jr. Title: President Addresses for Notice: Certified Mail: 1112 Montana Avenue Santa Monica, CA 90403 Email: dpalmer(d),palmednyestments.COm DATED: January_, 2021 1851 EAST FIRST STREET INVESTORS, LLC ("1851") By: 078850\12148752v1 Tim Paone Cox, Castle & Nicholson LLP Counsel to 1851 Addresses for Notice: Certified Mail: 3121 Michelson Drive, Suite 200 Irvine, CA 92612-5678 Email: tpacne(&coxcastle.com 4