10-1005_ADVANCED GROUP 99-SJ & 03-79-2 (ARES)_D14_Agenda ReportTO: Joe Tait, City Manager „....
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FROM. Omar Sandoval, City Attorney
10!5/2010
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SUBJECT: Consideration of Approval of Tolling Agreement Between the
City of San Juan Capistrano, Advanced Group 99 SJ, and the
County of Orange
RECOMMENDATION:
By motion, approve the Tolling Agreement with Advanced Group 99 SJ and the County
of Orange, and authorize the Mayor to execute it.
BACKGROUND:
During the land use entitlement review of the Distrito La Novia/San Juan Meadows
project, the County has raised various concerns pertaining to the environmental effects
of the project, including potential environmental liabilities from the former Forster
Canyon Landfill located within the San Juan Meadows site. The developer and the
County are in discussions that might lead to a resolution of the County's concerns.
However, those discussions might not be completed prior to the public hearing and
approval by the City Council of the project.
The Tolling Agreement would toll any applicable statute of limitations for filing a
challenge in court under the California Environmental Quality Act (CEQA) for 90 days
from the filing of the notice of determination. The notice of determination is filed after
the project is approved (and the Environmental Impact Report is certified) and
commences a 30 -day statute of limitations for actions brought under CEQA.
The Tolling Agreement will allow the developer and the County to continue to negotiate
a resolution of the County's environmental concerns.
FINANCIAL CONSIDERATIONS:
There are no impacts on the City's General Fund as a result of this action.
A
/-Iv-enda Report
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RECOMMENDATION:
October 5, 2010
By motion, approve the Tolling Agreement with Advanced Group 99 SJ and the County
of Orange, and authorize the Mayor to execute it.
Respactfully submitted,
V
Omar, Sandoval
City Attorney.
Attachment(s):
1. Tolling Agreement
TOLLING AGREEMENT
This Tolling Agreement (the "Agreement") is entered into by and between the County of
Orange (the "County") the City of San Juan Capistrano and the San Juan Capistrano City
Council (collectively, the "City") and Advanced Group 99 SJ (collectively "Advanced"), and
shall be considered effective as of September _____, 2010. The County, the City and Advanced are
collectively referred to herein as the "Parties." This Agreement is made based on the following
facts:
WHEREAS, Advanced has an application pending before the City for the development of
certain property within the City known as San Juan Meadows and Distrito la Novia (the
:`Project").
WHEREAS, the County has expressed a number of concerns with respect to the
environmental effects of the Project and also with potential environmental liabilities from the
:former Forster Canyon Landfill which exists within the San Juan Meadows site.
WHEREAS, should the City approve the Project, the County will be required to pursue
its judicial remedies to challenge the Environmental Impact Report for the Project within 30 days
following the filing of a Notice of Determination by the City.
WHEREAS, the Parties want to preserve their rights to enter into settlement discussions
which may lead to a resolution of the issues between the Parties with respect to the
environmental issues and the Landfill issues.
WHEREAS, the Parties may wish to continue these discussion even after the City acts
on the Project without the constraint of the County having to file litigation challenging the
Environmental Impact Report for the Project within the relatively short CEQA statute of
litigation (the "CEQA" Litigation").
NOW, THEREFORE, the Parties have agreed to toll all statutes of limitation and statutes
of ultimate repose applicable to the filing of the CEQA Litigation on the following terms and
conditions:
I. With respect to the Project, the running of all statutes of limitation and/or statutes
of ultimate repose applicable to the filing of the CEQA Litigation is hereby tolled effective as of
the date of the filing of the Notice of Determination by the City through and including a period
ending ninety days thereafter (thc "Tolling Period").
2. The Parties agree that the comments previously submitted by the County to the
Planning Commission and the San Juan Capistrano City Council are sufficient to afford the
County standing to bring the CEQA Litigation.
730709.1 1
ATTACHMENT 1
3. If the County files the CEQA Lawsuit prior to the expiration of the Tolling Period
noted above, the City and Advanced agree not to assert any defense that the CEQA Litigation is
time barred or untimely.
4. The City and Advanced will take no further action toward improving and/or
developing the Project during the Tolling Period.
5. The terms of this Agreement constitute the entire agreement between the Parties
regarding the tolling of any statutes of limitation or repose in the CEQA Litigation, and this
Agreement may not be modified, altered or changed in any way except in writing signed by the
Parties.
6. This Agreement is to be construed, interpreted and enforced in accordance with
California law. Any action relating to the enforcement or interpretation of or otherwise arising
out of this Agreement shall be brought only in Orange County Superior Court.
7. This Agreement may be executed in counterparts, each of which shall be deemed
an original, but all of which shall constitute one and the same agreement. Each party represents
and warrants that the individuals executing this Tolling Agreement on each party's behalf
possesses full authority to execute this Agreement. Signatures by facsimile shall have the same
force and effect as original signatures.
8. Each signatory declares that he or she is the person officially authorized to
execute this Tolling Agreement on behalf of that entity.
Dated: September , 2010
APPROVED AS TO FORM:
Dated: September , 2010
730709.1
COUNTY OF ORANGE
By:
Chair of the Board of Supervisors
ORANGE COUNTY COUNSEL
M
Dated: September_, 2010
ATTESTED BY:
Dated: September ---------. 2010
APPROVED AS TO FORM:
Dated: September __, 2010
Dated., September_, 2010
'7307091
THE CITY OF SAN JUAN CAPISTRANO
By:
Dr. Londres Uso, Mayor
SAN JUAN CAPISTRAN70 CITY CLERK
By:
Maria Morris
SAN JUAN CAPISTRANO CITY ATTORNEY
Omar Sandoval
'ADVANCED"
Advaticed Group 99 -SJ, a Califomia limited
partnership
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Advanced Group 03-79-2, a California limited
partnership
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