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10-1005_ADVANCED GROUP 99-SJ & 03-79-2 (ARES)_D14_Agenda ReportTO: Joe Tait, City Manager „.... y� FROM. Omar Sandoval, City Attorney 10!5/2010 AVA 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 Pa 2 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 By: Name: Title: By: Name: Title: Advanced Group 03-79-2, a California limited partnership By: Name: y. - Name: Title: By:. Name! Title: