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Home My WebLink AboutC-284260'70/C2842 TOLLING AGREEMENT This Tolling Agreement ( "Agreement ") is dated, for references purposes only, as of November f , 2013, by and between the City of Arcadia ( "Arcadia "), a California charter city, and Nevis Capital, LLC ( "Nevis "), a California limited liability company. Arcadia and Nevis are hereinafter sometimes referred to individually as a "Party' and collectively referred to as the "Parties." RECITALS A. In 2011, Nevis submitted (1) Residential Mountainous Development Permit Application No. RM 11- 01 to grade approximately four acres of a 90.25 -acre undeveloped property at 2111- 2125 Canyon Road (the "Property ") owned by Nevis for two residential building sites and a tennis court; and (2) Tentative Parcel Map Application No. TPM 11- 02 (71182) to subdivide the Property into two parcels, each to be developed with a single- family residence. (Both of the applications submitted by Nevis are collectively referred to herein as "the Application. ") B. In accordance with the California Environmental Quality Act ( "CEQK) and CEQA Guidelines, a draft Environmental Impact Report ( "EIR ") was prepared for the Application, filed with the State Clearinghouse for review by responsible agencies and circulated locally for public review. C. On June 25, 2013, Arcadia's Planning Commission held a public hearing on the Application and the final EIR, and following the close of that hearing voted to deny the Application and not certify the final EIR; thereafter, on July 9, 2013, the Planning Commission adopted Resolution No. 1877 denying the Application. D. Nevis appealed the Planning Commission's denial of the Application to Arcadia's City Council, which held a public hearing on Nevis' appeal on August 20, 2013, and at the close of that hearing the City Council adopted Resolution No. 6991, denying the Application and rejecting certification of the final EIR. E. A dispute exists between Arcadia and Nevis regarding the City Council's denial of the Application and rejection of certification of the final EIR (collectively, the "Dispute "). F. In an effort to resolve the Dispute, Arcadia and Nevis desire to toll all statutes of limitations pertaining to any challenges, claims, or causes of action that Nevis may have that are related in any way related to the Dispute. AGREEMENT NOW, THEREFORE, for valuable consideration, the Parties hereby agree as follows: Ar adia -Nevis Capital Tolling.agr 1. Tolling Term, This Agreement shall become effective on November , 2013 ( "Effective Date "). The tolling provided herein shall continue until one of the Parties gives written notice to the other Party that this Agreement is terminated. Any lawsuit filed following termination of this Agreement must be filed within thirty (30) calendar days after this Agreement has been terminated. Any lawsuit filed more than thirty (30) days after the termination of this Agreement shall be barred by the statute of limitations. 2. Tolling. The running of all statutes of limitations (including, without limitation, those set forth in Government Code sections 65009 and 66499.37) and the application of the doctrines of laches, waiver and estoppel to any challenge, claims and /or causes of action that may be brought by Nevis, both legal and equitable, arising out of, relating to, or pertaining in any way to the Application and /or the Dispute including (without limitation) challenges, claims, and /or causes of action for all violations of any and all other laws, rules and regulations, shall be tolled from the Effective Date until this Agreement is terminated pursuant to Section 1 above. In entering into this Agreement, Arcadia does not acknowledge or agree that the challenges, claims, and /or causes of action that Nevis may bring regarding the Application and /or the Dispute and which are tolled by this Agreement exist in fact or in law. 3. Litigation Hold While Agreement in Effect. While this Agreement is in effect, Nevis shall not file a lawsuit challenging the denial of its Application. 4. No Admission. The Parties acknowledge and agree that this Agreement is not a release, compromise or settlement of any of the potential challenges, claims or causes of action that any Party may have against another. This Agreement shall not operate in any way as evidence, an admission of fact, liability or responsibility by any Party regarding the subject matter of this Agreement. This Agreement shall not be evidence in respect to any claim other than in connection with the defense of the statute of limitations if said defense is asserted. 5. Waiver. The Parties agree that nothing herein shall be construed as a waiver, and the Parties agree that neither Party is waiving, nor shall this Agreement have any effect on any statute of limitations or other applicable legal defense which could have been asserted on or before the Effective Date. 6. Notices. All notices required or permitted pursuant to this Agreement shall be in writing and shall be delivered or mailed by one Party to another Party at the following addresses. Each notice shall be deemed effective and given upon receipt, if personally delivered or delivered by same day or overnight courier; upon the date of receipt as specified in the return receipt, if sent by certified mail with a return receipt requested; or on the third (3rd) day after mailing, if mailed via first class mail, postage prepaid, addressed as follows: Arcadia -Nevis Capital Tolling.agr If to Arcadia: City of Arcadia 240 West Huntington Drive Arcadia, CA 91066 Attn: Dominic Lazzaretto, City Manager With a copy to: Best Best & Krieger, LLP 2855 East Guasti Road, Suite 400 Ontario, CA 91761 Attn: Stephen P. Deitsch, Esq. If to Nevis: Nevis Capital, LLC 9674 Telstar Avenue, Suite "C El Monte, CA 91731 Attn: Jeff Lee With a copy to: Leibold, McClendon & Mann, P.C. 23422 Mill Creek Drive, Suite 105 Laguna Hills, CA 92653 Attn: John G. McClendon, Esq. Each notice shall be dated. A Party may change its address for notice purposes by giving notice of such change to the other Party as provided in this Section 6. 7. Construction. The Parties agree that the general rule of construction which allows any ambiguities in this Agreement to be construed against the drafting Party shall not be employed in the interpretation of this Agreement. 8. Counterparts. This Agreement may be signed in counterparts, and photocopies or facsimile copies of this Agreement may be used as originals. 9. Entire Agreement. This Agreement contains the entire agreement between the Parties and constitutes the complete, final and exclusive embodiment of their agreement with respect to the subject matter hereof, and may only be modified by a writing signed by all of the Parties hereto. The terms of this Agreement are contractual and not a mere recital. 10. No Warranties. This Agreement is executed without reliance upon any promise, warranty, or representation by any Party or any representative of any Party other than those expressly contained herein. Each Party to this Agreement represents and warrants that it has carefully read this Agreement, has the authority to enter in this Agreement, has been advised of the meaning and consequences of this Agreement by their respective attorneys, and signs this Agreement of its own free will. 11. Modification. This Agreement may be modified, supplemented, or extended only by subsequent written agreement executed and signed by the Parties. Arcadia -Nevis Capita] Tolling.agr 12. Severability_ If any provision or oblicdaiion under this Agreement shall be determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, that provision shall be deemed severed from this Agreement and the validity, legality and enforceability of the remaining provisions or obligations shall remain in full force as though the invalid, illegal, or unenforceable provision had never been a part of this Agreement. 13. Governing Law. This Agreement is deemed to have been executed and delivered within the State of California, and the rights and obligations of the Parties shall be construed and enforced in accordance with and governed by the Iaws of the State of California. IN WITNESS INHEREOF, Arcadia and Nevis have executed this Agreement as of the date appearing on the first page of this Agreement. "ARCADIA" CITY OF ARCADIA By: ep , Mayv Z— A — �TTE,Si: i, City. C16r {�% 1 APPROVED AS TO FORM: Stephen P. Deitsch City Attorney ,.NEVIS" NEVIS CAPITAL, LLC By _ 6"-6t '_ . Jeff Z* erf Lee. Manager Tw APPROVED AS TO FORM: _. 0/XF M 7 a - W__ J/2 Arcanz Nevi. (.'3p1.1' . o: hng std