Loading...
HomeMy WebLinkAboutAGR-7666 - MILAN REI X LLC - TOLLING AGREEMENT REGARDING CREEKSIDE VILLAGE SITE ALONG SANTIAGO CANYON ROAD - FEB 23, 2024AGAR-7 b 6(0 TOLLING AGREEMENT This TOLLING AGREEMENT ("Agreement") effective F "'`"'7 23 2024 Effective Date") is made by and between Milan REI X, LLC, a California limited liability company ("Milan") and the City of Orange, a municipal corporation (the"City"). Milan and the City are sometimes referred to herein each as a"Party"and together as the"Parties". RECITALS A. Milan owns the real property located along Santiago Canyon Road with the Assessor's parcel numbers of 370-011-08, 370-041-12, 370-011-18, 370-011-22, 370-041-25, 093-280-07,093-280-27,093-280-29,093-280-30,and 093-280-07(the"Creekside Village site") in the City (the "Property"). B. On or about October 3,2023,Milan submitted to the City a preliminary application pursuant to Senate Bill 330("SB 330")for a housing development project on the Creekside Village site("Project"). C. The October 3, 2023, application (the "Application" for the "Project") replaced a previously filed application for a housing development project on the Property. D. On November 17,2023,the City sent a letter to Milan stating that,while it was not required under the law to give notice, the City believed the Application did not include certain statutorily required information. E. The City and Milan currently have different interpretations of relevant state law,in part,concerning the processing of the Application,including the scope of the materials Milan must provide to the City and the City's duty to process and approve the Project. For example, Milan asserts that the Application must be processed pursuant to California Government Code section 65589.5, subdivision (d),the so-called`Builders Remedy" provision, and that the Application is not subject to any time limits imposed by SB 330. In this case, in part,the City asserts that an SB 330 application does not preserve the`Builders Remedy"if such remedy applies to the Project.In contrast,Milan asserts that,pursuant to the legal position of the California Department of Housing and Community Development, an SB 330 application does vest an application for a Builder's Remedy project. F. The Parties wish to have time to further evaluate non-residential uses for the Property, including, but not limited to, recreational and sport uses, uses by an educational institution,acquisition by the City or a third party, or other paths. that may be acceptable to both Parties. In the absence of the time provided by this Agreement, the Parties (and in particular, Milan)may be forced to seek relief through the courts.The Parties believe it is in their best interests to avoid the time,expense, and risk of such litigation for the period identified by this Agreement. G. First, the Parties wish to toll the applicable time period(s) in which Milan must submit a complete Application for the Project (the "Application Period"), without Milan or the City waiving any rights or arguments related to their respective obligations, limitations or protections, including,but not limited to,waiving the right to assert that a complete Application is or is not required or waiving any claims related to the City's processing of the Application (the Tolled Application Period"). H. Second, the Parties wish to preserve any rights that may exist as of the date of this Agreement for the Parties to commence legal action at a future date concerning the City's processing of the Application and/or the Project, which, but for this Agreement, might otherwise be time-barred by any applicable statute of limitations, laches, and other possible time-bars and defenses based in whole or in part on the time which may elapse from the effective date of this Agreement to the filing of an action(all of which time-bars and defenses, including,the statute of limitations and laches, are referred to as "Time Defenses" (the"Tolled Litigation Period"). NOW,THEREFORE,in consideration of the terms and conditions of this Agreement, and for good and valuable consideration,the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows: AGREED TERMS AND CONDITIONS 1. Recitals. The above Recitals form a material part of this Agreement, are true and correct, and are incorporated herein by this reference and made a part hereof. 2. Tolled Application Period. As to the Tolled Application Period, this Agreement shall become effective as of the Effective Date, and shall remain in effect,unless further extended, until six (6) months after the Effective Date, or until cancelled by either the City or Milan hereto upon thirty (30) days advance written notice. Upon the termination of the Tolled Application Period,the Application Period shall resume running,and any remaining periods of time within the Application Period shall be preserved during the Tolled Application Period until such termination. For example,if sixty(60)days of a one hundred eighty(180)period in which to submit a complete application had run as of the Effective Date, then, at the termination of the Tolled Application Period, one hundred twenty(120)days would remain until the Application Period deadline. 3. Tolled Litigation Period. As to the Tolled Litigation Period, this Agreement shall become effective as of the Effective Date, and shall remain in effect,unless further extended,until six(6) months after the Effective Date, or until cancelled by either the City or Milan hereto upon thirty (30) days advance written notice. Upon the termination of the Tolled Litigation Period, any and all applicable statutes of limitation shall resume running, and any remaining periods of time with the applicable statutes of limitation shall be preserved during the Tolled Litigation Period. For example, if sixty (60) days of a one year period in which to file litigation had run as of the Effective Date, then, at the termination of the Tolled Litigation Period, three hundred and five 305)days would remain under the relevant statute of limitation. 4. Covenant Not to Challenge Legitimacy of Either Tolling Period. Nothing in this Agreement nor the circumstances that gave rise to this Agreement shall be construed as an acknowledgment by any Party that any claim was or was not barred,or was or was not about to be barred,by any Time Defenses or other defense based on the lapse of passage of time,as of the end of the day immediately preceding the start of the Tolled Application Period and/or the Tolled Litigation Period(collectively"Tolled Periods"). 5. Covenant Not to Commence Litigation During Tolled Periods. Parties agree that they will not commence litigation concerning any claims referenced in this Agreement during the Tolled Periods, and Milan will not file or join with any other party in litigation concerning any other so-called"Builder's Remedy"application currently on file with the City or that may be filed by any party, including Milan or anyone doing so on Milan's behalf, during the Tolled Periods. 6. Extension of Tolled Periods. In the Parties' discretion, prior to termination of the Tolled Periods,this Agreement may be mutually extended in writing for an additional period(s)of time. 7. No Waiver. Nothing in this agreement shall operate as a waiver of and/or prejudice either Party's right to assert that the statute of limitations or any other Time Defenses have been tolled or have not yet run for reasons other than the stated in this Agreement. 8. No Admission. This Agreement does not constitute an admission of any liability or wrongdoing by either Party to this Agreement nor regarding either Party's views of the facts,or the law, as they pertain to the Tolled Periods and/or any tolled claims that may exist. 9. Notice. Each Party shall deliver any notice under this Agreement(each,a"Notice") in writing and addressed to the other Party at its address set out below(or to any other address that the receiving Party may designate from time to time in accordance with this section). Each Party shall deliver all Notices by personal delivery,nationally recognized overnight courier(with all fees prepaid), email, or certified or registered mail (in each case, return receipt requested, postage prepaid). A Notice is effective only (a) upon receipt by the receiving Party; and (b) if the Party giving the Notice has complied with the requirements of this Section. Either Party may at any time, by giving ten (10) days' written notice to the other Party hereto, designate any other person or address in substitution of the address to which such notice shall be given. If to City:City of Orange 300 E. Chapman Avenue Orange, CA 92866 Attn: City Manager with a copy to: Mike Vigliotta 300 E. Chapman Avenue Orange, CA 92866 Email: mvigliotta@cityoforange.org If to Milan: Milan Capital Management 701 South Parker Street, Suite 5200 Orange, CA 92868 Attn: Christopher Nichelson, President with a copy to: Alex DeGood Cox, Castle&Nicholson LLP 2029 Century Park East, Suite 2100 Los Angeles, CA 90067 Email: adegood@coxcastle.com 10. Entire Agreement. This Agreement, including the recitals, constitutes the entire agreement and understanding of the Parties and supersedes all prior negotiations and/oral agreements, proposed or otherwise, written or oral, concerning the subject matter hereof Each Party acknowledges that in entering into this Agreement, she/it has not relied on any promise, representation, or warranty not contained in this Agreement. 11. Modification. No modification of this Agreement shall be binding unless in writing and signed by each of the Parties hereto. 12. Successors. The Parties intend this Agreement to be legally binding upon and shall inure to the benefit of each of them and their respective parents, subsidiaries, affiliates, predecessors, successors, assigns, executors, administrators, heirs, and estates. Such successors include any entity or entities that may purchase or have transferred to them title to or some form of ownership interest in the Property or part of the Property. 13. Interpretation, Severability. and Enforcement. a. Interpretation. The headings in this Agreement are purely for convenience and are not to be used as an aid in interpreting its terms. The Parties agree that they participated equally in drafting and negotiating the terms of this Agreement and that this Agreement shall not be construed against either Party as the author or drafter of the Agreement. b. Severability. Should any provision of this Agreement be declared or be determined by any court to be illegal, invalid, or unenforceable, the validity of the remaining parts, terms, or provisions shall not be affected thereby and the illegal, invalid, or unenforceable part,term,or provision shall be deemed not to be a part of this Agreement. c. Enforcement. Nothing in this Agreement shall be construed as, or constitute, a release of any Party's right to enforce the terms of this Agreement. This Agreement shall be construed and interpreted in accordance with the laws of the State of California. 14. Authority. The signatories to this Agreement represent and warrant that they have the authorization and power to bind the Party on whose behalf they are signing. and that no other individuals or parties are necessary to join herein in order to toll the statute of limitations and other Time Defenses for the Tolled Claims. 15. Counterparts and Copies. This Agreement may be executed by the Parties in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Facsimile signatures and signature pages sent by email shall be binding as though they are originals. IN WITNESS WHEREOF, and intending to be legally bound, each Party hereto has caused this Agreement to be executed as of the date(s)set forth below. MILAN w ame: Christopher Nichelson Its: President 0 4- }s /`^ —s ', 43-c-4-- Dated: "Fe w.-r.. , LT, LcZL1 CITY OF ORANGE r 'L f/' / Name: Thomas C. Kisela Its: City Manager Dated: APPROVED AS TO FORM: Mike Vigliotta, City Attorney