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HomeMy WebLinkAbout1901 FIRST STREET OWNER, LLC. - 2016A -2016 -222 TOLLING AGREEMENT This Tolling Agreement ( "Agreement ") is entered into by and between the CITY OF SANTA ANA ( "City ") and 1901 FIRST STREET OWNER, LLCG ( "1901 First Street ") (collectively hereinafter "the Parties "), in connection with the real property located at 1901, 1903 and 1905 E. First Street, in the City of Santa Ana, which is to be developed as a multi - family residential development consisting of 264 units ( "Project "). RECITALS A. 1901 First Street sought and obtained approvals from the City to build the Project, B. A dispute subsequently arose as to whether the City properly calculated the assessable space for school impact fees applicable to the Project. C. The dispute involving the City, 1901 First Street and the Tustin Unified School District is currently the subject of litigation filed in the Superior Court of California in the County of Orange (Case No. 30- 2015 - 00803234- CU- WM -CJC). D. On September 10, 2015, 1901 First Street filed a claim under the Government Claims Act against the City for damages arising from, and related to, the City's actions in allegedly improperly changing its standard practice for calculating assessable space for school impact fees for the Project ( "the "Claim "), E. By this Agreement, the Parties wish to toll any time limit on bringing any lawsuit or claim against the other, including but not limited to any causes of action set forth in the Claim:, a-id agree that litigation, if any, of such claims be held in abeyance and without prejudice to the rights of the Parties during the pendency of this Agreement. AGREEMENT NOW, THEREFORE, in consideration of the covenants and conditions contained herein, the Parties agree as follows: 1. Neither Party will initiate litigation against the other for claims arising out of or associated with the Claim, subject to the terms and conditions of this Agreement. 2. In the event this Agreement expires or is terminated and either Party subsequently . initiates litigation against the other for claims arising out of or associated with the Claim, the other Party will not assert any defense(s) it may have based on the statute of limitations, or delay in bringing the action such as laches, estoppel, or waiver, to the extent such defense arises from the passage of time (or action or inaction) during the period this Agreement is in place and the tolling period contemplated herein is in effect. 3. The time period for either party to commence litigation for claims arising out of or associated with the Claim, against the other Party to this Agreement shall recommence ten (10) days after expiration or the effective date of any termination pursuant to Paragraph 4 of this Agreement. After the ten (10) -day period has expired, all applicable defenses tolled pursuant to this Agreement will no longer be tolled,. 4. Either Party may terminate this Agreement by providing the other Party with written notice of their election to terminate this Agreement. Such written notice shall be personally served on the other party and shall be effective ten (10) calendar days after service of the written notice on the other party. however, unless the Parties mutually agree in writing otherwise, this Agreement shall not extend beyond May 31, 2016, and shall be deemed by the Parties to be expired as of 11:59 pm on that date, 5. Any document or notice required or permitted under this Agreement shall be in writing and shall be doomed duly delivered if delivered or addressed as set forth below: (a) upon personal delivery; or (b) as of the third day after depositing such document or notice in the United States mail, certified mail, return receipt requested, postage prepared; or (e) as of the first business day after depositing such notice with a nationally recognized overnight courier services expenses prepaid. All documents and notices shall be addressed as follows: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M -30) P.Q. Box 1988 Santa Ana, CA 92702 -1988 Fax 714- 647 -6954 With courtesy copies to: City Manager City of Santa Ana 20 Civic Center Plaza (M -31) P,O. Box 1988 Santa Ana, California 92702 Fax 714 - 647 -6549 and City Attorney City of Santa Ana 20 Civic Center Plaza (M -29) P.O. Box 1988 Santa Ana, California 92702 Fax 714- 647 -6515 And To 1901 First Street: 1901 First Street Owner, LLC 4901 Birch St ect Newport Beach, CA 92660 Attn: General Counsel 6. The Parties recognize that under limited circumstances certain statute of limitations enacted for the benefit of the public cannot be waived by agreement, The Parties to this Agreement agree that no such circumstances apply to this matter. 7. By entering this Agreement, the Parties do not admit to any fact or assume any liability of any kind, Moreover, this Agreement may not be offered as evidence of an admission of such responsibility or liability in any court proceeding. 8. This Agreement shall bind and inure to the benefit of the parties hereto and their respective governing boards and their individual board members, heirs, executors, administrators, legal representatives, successors, and assigns. 9. if all or any portion of any of the provisions of this Agreement shall be declared invalid, illegal, or unenforceable by laws applicable thereto, then the performance of said offending provision or provisions shall be excused by the parties hereto and such invalidity, illegality, or unenforecability shall not affect any other provision of this Agreement. 10. The titles or captions of the provisions of this Agreement are merely for convenience of reference and are not representations of matters included or excluded from such provisions. 11. The parties hereto expressly acknowledge and agree that, with regard to the subject matter of this Agreement and the transactions contemplated herein: (1) there are no oral agreements between the parties hereto, and (2) this Agreement, including the defined terms (a) embodies the final and complete agreement between the parties, ('b) supersedes all prior and contemporaneous negotiations, offers, proposals, agreements, commitments, promises, acts, conduct, course of dealing, representations, statements, assurances, and understandings, whether oral or written, and (c) may not be varied or contradicted by evidence of any such prior or contemporaneous matter or by evidence of any subsequent oral agreement of the parties hereto, 12. This Agreement may be amonded upon mutual written agreement of the Parties and execution of an amendment by individuals authorized to sign such amendment, so long as this Agreement has not already been terminated. Any Amendment to this Agreement must be made in writing and signed by a duly authorized representative of each eligible Party. 13. This Agreement shall be governed by and construed in accordance with the laws of the State of California. 14. This Agreement may be executed in counterparts, each of which will be deemed to be an original and all of which together will be deemed to be the same document. Each Party certifies that the person signing below on the respective Party's behalf has the authority to bind that Party to the covenants made in this Agreement, [Signatures continued on following page] SIGNATURE PAGE, TO TOLLINGAGREFMENT Dated, A Counsel for City of Santa Ana Dated: Counsel for 1901 First Street LLC. CITY OF SANTA ANA By: Nanic, Title: m Date: Aml 91, 9016 1901 FIRST STREET LLC, ATTEST' MARIA D. HUIZAR V CLERK OF THE COUNCIL