HomeMy WebLinkAboutContracts & Agreements_71-2020AGREEMENT FOR TOLLING AND SUSPENSION OF TIME
This AGREEMENT FOR TOLLING AND SUSPENSION OF TIME ("Agreement") is
made as of April 7, 2020 ("Effective Date"), by and between the City of Redlands, a California
municipal corporation and general law city ("City"), and Lone Chang, LLC, a California limited
liability company ("Chang"), with regard to the following facts and circumstances City and Chang
are sometimes individually referred to herein as a "Party" and, together, as the "Parties "
RECITALS
WHEREAS, Chang is the owner of certain real property within the city of Redlands for
which Tentative Tract Map No 16878 ("TTM 16878") was oiiginally approved by City on April
5, 2005, and
WHEREAS, TTM 16878, located on the west side of Wabash Avenue, south of San
Bernardino Avenue, and north of Capri Avenue, subdivides 41 22 acres into seventy-six (76)
residential lots and four (4) common lots in the R -E Residential Estates District, and
WHEREAS, Government Code section 66452 6, subdivision (e), a provision of the State
Subdivision Map Act, provides in relevant part that "Upon application by the subdivider filed prior
to the expiration of the approved or conditionally approved tentative map, the time at which the
map expires pursuant to subdivision (a) may be extended by the legislative body for a period not
exceeding 6 years The period of extension specified in this subdivision shall be in addition to the
period of time provided in subdivision (a) Prior to the expiration of an approved or conditionally
approved tentative map, upon application by the subdivider to extend that map, the map shall be
automatically be extended for 60 days or until the application for the extension is approved,
conditionally approved, of denied, whichever occurs first," and
WHEREAS, through a series of extensions, some granted by City pursuant to Government
Code section 66452 6, subdivision (a), and Redlands Municipal Code section 17 07 120 (c), and
some automatic extensions granted by the State of California, TTM 16878 remained valid until
April 5, 2020, when it was due to expire, and
WHEREAS, Chang has obtained all available extensions of TTM 16878 as permitted by
Government Code section 66452 6, subdivisions (a) and (e), and Redlands Municipal Code section
17 07 120 (c), and
WHEREAS, Government Code section 66452 6, subdivision (a), states in relevant part that
"a tentative map on property subject to a development agreement , may be extended for the
period of time provided for in the agreement but not beyond the duration of the agreement," and
WHEREAS, on December 4, 2019, Chang submitted an application to the City for approval
of a development agreement, and paid the required fees therefor, with the intent, among other
things, to extend the life of TTM 16878 to April 5, 2025, and
WHEREAS, consideration of a development agreement is a quasi -legislative function of
the City Council of City, and neither State law nor City's Municipal Code provides any specific
timelines within which an application for a development agreement must be processed and
considered by City, and
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WHEREAS, Chang asserts that its application for a development agreement extends the
expiration date of TTM 16878 in accordance with the above -identified statutory provisions, and
City staff questions the legal basis for that assertion, and
WHEREAS, there is not adequate time under present circumstances, including but not
limited to the consequences of the pending public health emergency related to COVID-19, for City
and Chang to negotiate a development agreement and conduct the required legal proceedings
thereon by June 4, 2020, and
WHEREAS, the Parties desire to avoid any distraction, burden, expense, and uncertainty
with regard to whether Chang's application for a development agreement extends the expiration
date of TTM 16878,
NOW, THEREFORE, based upon the foregoing Recitals and the terms and conditions
herein, in consideration of the mutual promises contained herein and for such other good and
valuable consideration the receipt of which is hereby acknowledged, the Parties agree as follows
AGREEMENT
Section I Tolling Period Chang and the City agree, to the extent permitted by law, to
toll and suspend the time within which City will negotiate, process, conduct the required legal
proceedings, and take final action on Chang's application for a development agreement from the
Effective Date of this Agreement until September 30, 2020 (the "Tolling Period"), unless hereafter
further extended by written agreement of the Parties
Section 2 No Development during Tolling Period Chang acknowledges and agrees
that it shall not be entitled to proceed with the development of TTM 16878 during the pendency
of the negotiations and proceedings associated with its application for a development agreement,
and shall not be entitled to do so until and unless City approves the development agreement
application and provides that the expiration date of TTM 16878 shall be extended for the duration
of the development agreement
Section 3 City Exercise of Discretion Chang acknowledges and agrees that nothing
in this Agreement shall dictate of in any way control or constrain the exercise of discretion of the
City in any particular manner in its processing of and final action on Chang's application for a
development agreement
Section 4 Defense and Indemnity If any action is commenced against the City by a
third party to challenge this Agreement or any of its terms and conditions, Chang shall defend,
indemnify, and hold harmless City, and its elected and appointed officials, officers, and employees
with regard to such action
Section 5 No Admissions of Fault The Parties acknowledge and agree that the
purpose of this Agreement is simply to provide the Parties with additional time to discuss a
resolution of differing interpretations of applicable laws and regulations Neither the fact that the
Parties have entered into this Agreement, nor the terms and conditions of this Agreement, shall
be construed in any mariner as an admission of any fault, wrongdoing, or liability by Chang, City
01 any City officials, officers and employees
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Section 6 Entire Agreement This Agreement constitutes the entire agreement
between the Parties with respect to the subject matter contained herein, and supersedes any and all
other agreements, understandings, negotiations, or discussions, eithei oral or in writing, express or
implied, between the Parties The Parties acknowledge that no representations, inducements,
promises, agreements, or warranties, oral 01 otherwise with regard to the subject matter of this
Agreement, have been made by them, or anyone acting on their behalf, which are not embodied in
this Agreement,
Section 7 Modification of Agreement Any alteration, change or modification of or to
this Agreement shall be made by written instrument executed by each Party in ordei to become
effective
Section 8 Binding Effect This Agreement, and all of the terms and provisions hereof,
shall be binding upon, and shall inure to the benefit of, the Parties and their respective heirs, legal
representatives, successors, and assigns
Section 9 Termination Either Party may, at any time, provide the other with written
notice terminating this Agreement by email, mail, or personal delivery Such termination shall be
effective no sooner than sixty (60) calendar days following delivery of written notice of exercise
of the termination option to the non -terminating Party The sixty (60) calendai day period shall be
deemed to have commenced after the date of delivery of such notice in accordance with Section
11 hereof Such notice of termination shall in no event result in the shortening of any period of
limitation otherwise provided by law In the event that Chang files a lawsuit against City regarding
the dispute described herein, then this Agreement shall automatically become null and void
Section 10 Lapsed Causes of Action This Agreement has no effect on claims or causes
of action that, prior to the Effective Date of this Agreement, were already barred by the statute of
limitations or otherwise barred by the passage of time, and this Agreement shall not be construed
to revive any such time-barred claims or causes of action Any defense which any Party may have,
including those based on laches or related equitable defenses, shall not be based upon or supported
in any way by the postponement of any claim or defense during the Tolling Period
Section 11 Notices Any notice or othei communication required, or which may be
given, pursuant to this Agreement, shall be in writing Any such notice shall be deemed delivered
(i) on the date of delivery in person, (u) five (5) days after deposit in first class registered mail,
with return receipt requested, (iii) on the actual delivery date if deposited with an overnight courier,
or (iv) on the date sent by facsimile, if confirmed with a copy sent contemporaneously by first
class, certified, registered or express mail, in each case properly posted and fully prepaid to the
appropriate address set forth below, or such other address as a Party may provide notice in
accordance with this section
City
City Clerk
City of Redlands
35 Cajon Street
P 0 Box 3005 (mailing)
Redlands, CA 92373
jdonaldson@cityofredlands.org
(909) 798-7531
Chang
Eudeen Chang
Troutman Sanders
5 Park Plaza, Suite 1400
Irvine, CA 92614
eudeen chang@troutman corn
(949) 622-2706
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Section 12. No Third party Beneficiaries This Agreement shall not be deemed to confer
any rights upon any third parties as beneficiaries of this Agreement, nor obligate either of the
Parties to this Agreement to any person or entity not a Party to this Agreement
Section 13 Attorneys' Fees Should any action be commenced to enforce or interpret
the terms or conditions of this Agreement, the prevailing Party shall be entitled to reasonable
attorneys' fees and costs, in addition to any other relief to which that Party may be entitled,
including fees for a Party's use of "in-house" counsel
Section 14 Severability Should any portion, word, clause, phrase, sentence, or
paragraph of this Agreement be declared void or unenforceable, such portion shall be considered
independent and severable from the remainder, the validity of which shall remain unaffected
Section 15 Governing Law This Agreement is made and entered into in the State of
California, and shall in all respects be interpreted, enforced and governed under the laws of said
State
IN WITNESS WHEREOF, the Parties have executed this Agreement on the date(s) set
forth below
Date. April 7, 2020 LONE CHANG, LLC, a California limited
liability company
By
Eudeen Chang
Date Apr• , 26 CITY OF REDLANDS, a California municipal
April 15, 2020 corporation
B
Paul W Foster, Mayor
ATTEST
By
e Donaldson, City Clerk
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