HomeMy WebLinkAbout1901 FIRST STREET OWNER, LLC. (6)' ` 1
)FIFTH AMENDMENT TO TOLLING AQREEMENT
This Fifth Amendment to Tolling Agreement (the "Fifth Amendment ") is entered into by
and between the CITE' OF SANTA ANA ( "City "), and 1901 FIRST STREET OWNER, LLC
("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. On or about April 22, 2016, the Parties entered into a tolling agreement {the
""]tilling Agreement ") in order to toll any time limit on bringing any lawsuit or claim against the
other, including but riot limited to any causes of action set forth in the Claim, and agreed that
litigation, if any, of such claims be held in abeyance and without prejudice to the rights of the
Parties during the pendency of the Tolling Agreement. Per the terms of the Tolling Agreement,
the Tolling Agreement was to expire on May 31, 2016, at 11:59 p.m,
F. Prior to the expiration of the Tolling Agreement„ the Parties entered into the First,
Second, Third and Fourth Amendments to the Tolling Agreement which, collectively, extended
the tolling period until 11:59 p,m„ on July 11, 2016.
a The Parties now desire to enter into this Fifth Amendment in order to further
extend the tolling period until August 11, 2016, as described below,
AGREEMENT
NOW, THEREFORE, in consideration of the covenants and conditions contained herein,
the Parties agree as follows;
I. Section 4 of the Tolling Agreement, as amended by the Fourth Amendment, is
hereby deleted in its entirety and replaced with the following:
"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 August 11, 2016, and shall be deemed
by the Parties to be expired as of 11;59 p.m, on that date."
2, All other terms and provisions of the Tolling Agreement shall remain unchanged,
shall not be modified in any way by this Fifth Amendment, and shall continue to be binding on the
Parties.
3. This Fifth Amendment 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 Fifth Amendment.
[Signatures continued on following page]
SIGNATURE PAGE TO TOLLING AGREEMENT
Dated: July 7 i - 201 6 CITY OF SANTA ANA
By:
Name: David Cavazos
Counsel for City of Santa Ana
Title: City Manager
Dated: 1901 FIRST STREET OWNER, LLC
By.'
Name: /C
Title:
Counsel for 1901 First Street Owner, LLC
By:
Name: +x w4
—_ —U..
Title: a4^ to yv �
ATTEST.
-41 -/i
MARIAU. HUIZAR
CLERK OF THE COUNC h