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HomeMy WebLinkAbout11/26/2002 - STAFF REPORTS (20) TOLLING AGREEMENT This Tolling Agreement ("Agreement") is dated, for references purposes only, as of November 13, 2002, by and among the City of Palm Springs, a charter city and municipal corporation(the "City"), and El Dorado Palm Springs, Ltd., a California limited partnership ("El Dorado"). Collectively, the City, and El Dorado shall be referred to herein as the"Parties." RECITALS WHEREAS, El Dorado filed an application with the City, pursuant to the Pahn Springs Municipal Code for Tentative Tract Map No. 28087 for a proposed subdivision of the 377 space, 50.65 acre El Dorado Mobile Country Club for condominium purposes, 6000 East Palm Canyon Drive, W- R-MHP and R-MHP zones, Section 29; and WHEREAS, said application was submitted to appropriate agencies as required by the subdivision requirements of the Palm Springs Municipal Code, with the request for their review, comments and requirements; and WHEREAS, the City Council previously considered, reviewed, and adopted Resolution No. 19889, approving, subject to conditions of approval, Tentative Tract Map No. 28087, including conditions of approval objected to by El Dorado; and WHEREAS, on September 8, 2002, El Dorado filed its Writ of Mandate petition and complaint for damages against the City in the Riverside County Superior Court, Case No. INC-019351 (the "Action'), seeking, in part, to compel the City Council to approve Tentative Tract Map No. 28087 eliminating three disputed conditions of approval, to wit, condition nos. 2, 3 and 17; and WHEREAS, the Action filed by El Dorado against the City sought monetary damages against the City for alleged acts of inverse condemnation, which acts of inverse condemnation were specifically and generally denied by the City; and WHEREAS, on October 5, 2000, El Dorado filed a motion for preemptory writ of mandate; and WHEREAS, on December 15, 2000, El Dorado's motion for preemptory writ of mandate came on regularly for hearing before the Riverside County Superior Court; and WHEREAS,the trial court denied the motion; and WHEREAS, on February 22, 2001, the Riverside County Superior Court entered judgment against the applicant and in favor of the City; and WHEREAS, on March 12, 2001, El Dorado timely filed its notice of appeal to the Court of Appeal, Foui th Appellant District, Division 2; and iRV 826716 v] WHEREAS, on March 14, 2002, the Court of Appeal, Fourth Appellant District, Divisions 2 issued its opinion to wit: "[T]he Judgment [of the Riverside Comity Superior Court in favor of the City of Patin Springs] is reversed and the case is remanded to the trial court with directions to require the [Palm Springs] City Council to promptly determine the sole issues of whether [the applicant's] application for approval of a tentative parcel [sic] map complies with [Government Code] section 66427.5. If so, the [Palm Springs] City Council should approve the application. If not, the [Palm Springs] City Council should specify the grounds of non- compliance and the trial court should retain jurisdiction to review the issue of compliance in further proceedings;"and WHEREAS, the City sought review of the decision of the Court of Appeal in the California Supreme Court; and WHEREAS, on June 26, 2002, the California Supreme Court issued its order denying review of the decision of the Court of Appeal, Fourth Appellant District, Division 2; and WHEREAS, on or about July 1, 2002, the remitter was issued by the Court of Appeal to the Riverside County Superior Court, commanding that a writ of mandate issue directing the City to comply with the decision of the Court of Appeal; and WHEREAS, notice of a public hearing of the City Council of the City of Palm Springs to reconsider Tentative Tract Map No. 28087 was given in accordance with applicable law (Sections 66427.1, 66451, 66452.8 and 66452.9 of the California Subdivision Map Act and Section 4.08.130 of the Palm Springs Municipal Code); and WHEREAS, on September 4, 2002, a public hearing to reconsider Tentative Tract Map No. 28087 was held by the City Council in accordance with applicable law and as ordered by the Riverside County Superior Court. WHEREAS, on September 4, 2002, the City reconsidered its previously adopted Resolution No. 19889 and approved in its place and stead Resolution No. 20454 reconsidering and reapproving, subject to conditions of approval, Tentative Tract Map.No. 28087; and WHEREAS, on September 12, 2002, the City made its return on the preemptory writ of mandate by filing such return, together with a certified copy of Resolution No. 20454 with the Riverside County Superior Court; and WHEREAS, the sole and only remaining cause of action left to be litigated between the parties in the Action is a cause of action purporting to state a claim for inverse condemnation and damages arising therefrom, and WHEREAS, the Parties agree that, in return for entering into this Tolling Agreement, El Dorado will dismiss, without prejudice, the Action pursuant and subject to the terms of this Agreement. IRV#26716 vI 2 NOW THEREFORE, for valuable consideration, the Parties hereby agree as follows: 1. Tolling Term. This Agreement shall be deemed to be effective on September 28, 2000 (the "Effective Date"), and shall continue ni full force and effect through midnight, October 23, 2003 Pacific Standard Time (the"Termination Date"). 2. Tolling. The running of all statues of limitations and the application of the doctrines of lathes, waiver and estoppel, or other comparable defenses or pleas based on the passage of time before the institution or service of a lawsuit applicable to El Dorado's potential claim(s) or cause(es) of action, both legal and equitable, applicable to any alleged condemnation, eminent domain, or any constitutional or regulatory taking(s) based upon any alleged act by the City in the course of its review, consideration, reconsideration, and approval, with conditions, of Tentative Tract Map No. 28087 shall be, and hereby is, tolled for the term beginning on the Effective Date and ending on the Termination Date. The days between the Effective Date and the Termination Date shall not be included in the calculation of the limitations period for any statute of limitations or other similar bar based on lathes or the passage of time before the institution or service of suit applicable to a claim for inverse condemnation, eminent domain, or constitutional or regulatory taking based on any alleged action or inaction by the City in the course of its review, consideration, and action on El Dorado's Application for Tentative Tract Map No. 28087. In entering into this Agreement, the City does not acknowledge or agree that any alleged cause(es) of action which may be tolled hereunder have ever or do now exist in fact or in law. 3. Dismissal, Without Prejudice. In consideration for entering into this Agreement, El Dorado will voluntarily dismiss, without prejudice, the Action in its entirety. In agreeing to such dismissal, without prejudice, nothing in this Agreement will prevent or prohibit El Dorado from filing a new lawsuit against the City alleging such cause(es) of action as may be tolled under the terms of this Agreement, or any other cause(es) of action. In connection with the dismissal provided for in this paragraph, neither of the Parties shall be entitled to costs incurred in the Action prior to the dismissal contemplated by this paragraph, but said waiver of costs shall not apply in any other litigation between the City and El Dorado even if such subsequent litigation involves the same or similar claims to those alleged in the Action. 4. No Admission. The parties acknowledge and agree that this Agreement is not a release, compromise or settlement of any of the potential claims or causes of action any parry may have against the 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 defenses or doctrines of the statue of limitations, lathes, or estoppel if said defenses or doctrines are asserted. 5. Successors. In addition to each party to the Agreement, this Agreement shall inure to the benefit of each Parties' successors in interest and assigns. Nothing herein shall be construed as a waiver of El Dorado's right to file any action against any other party after the IRV 426716 v1 3 _ Effective Date, regardless of whether the claims asserted in said action arise out of or related to the matters suet forth herein. 6. Waiver, The Parties agree that nothing herein shall be construed as a waiver of any statue of limitations or other applicable legal defense which could have been asserted on or before the Effective Date. The Parties agree that neither is waiving any statue of limitations or other applicable legal defense which could have been asserted on or before the Effective Date. 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 he, she or its has carefully read this Agreement, has authority to enter in this Agreement, has been advised of the meaning and consequences of this Agreement by this respective attorneys, and signs the same of his, her or its own free will. It. Modification. This Agreement may be modified, supplemented, or extended only by subsequent written agreement executed and signed by the parties or their counsel of record in the Action. 12. Severability. If any provision or obligation under this Agreement shall be determined by a court of competent jurisdiction to 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 laws of the State of California. IRV 426716 v1 4 `�" IN WITNESS WHEREOF, the City, and El Dorado have executed this Agreement as of the date appearing on the first page of this Agreement. "CITY" CITY OF PALM SPRINGS, a charter city and a municipal corporation Mayor ATTEST: CITY CLERK OF THE CITY OF PALM SPRINGS APPROVED AS TO FORM AND CONTENT: BURKE WILLIAMS & SORENSEN LLP By: t1j Counsel for the C' "EL DORADO" EL DORADO PALM SPRINGS, LTD., a California limited partnership By: Goldstein Properties, Inc., a California corporation Its: General Partner James F. Goldstein Its: President [SIGNATURES CONTINUED ON NEXT PAGE] IRV#26716 A 5 APPROVED AS TO FORM AND CONTENT: O'MELVENY&MYERS LLP By: Matthew W. Close Attorneys for El Dorado Palm Springs, Ltd. LA2:646627.3 IRV#26716 vl 6 MINUTE ORDER NO. APPROVING A TOLLING AGREEMENT WITH ELDORADO PALM SPRINGS, LTD., A CALIFORNIA LIMITED PARTNERSHIP, TERMINATING OCTOBER 23, 2003. A ------------------ I HEREBY CERTIFY that this Minute Order, approving a tolling agreement with El Dorado Palm Springs, LTD., a California Limited Partnership, terminating October 23, 2003, was adopted by the City Council of the City of Palm Springs, California, in a meeting thereof held on the 261h day of November, 2002. PATRICIA A. SANDERS City Clerk r