07-1113_MAMMOTH EQUITIES, LLC_Tolling Agreement•
TOLLING AGREEMENT
This Tolling Agreement ("Agreement') is made this 13`h day of November, 2007 (the
"Effective Date"), by and between Mammoth Equities LLC and its affiliated entities, including
without limitation Mammoth Equities, LC, Mammoth San Juan Capistrano, LLC, Mammoth
Equities Construction Group, Mammoth Equities Property Management Group, Mammoth
Equities Capital Group, Mammoth Realty Exchange, and each of their respective affiliates and
subsidiaries, (collectively, "Mammoth"), and the City of San Juan Capistrano (the "City").
RECITALS
A. Certain disputes and disagreements have arisen between Mammoth and the City
(together, the "Parties") concerning signage for the Mammoth Professional Park and Resolution
No. 07-08-21-04, entitled "A Resolution of the City Council of San Juan Capistrano, California
Upholding the Appeal and Reversing Approval of a Sign Permit for Signs for the Mammoth
Professional Buildings on Rancho Viejo Road (APN 650-011-32) (Mammoth Equities),"
adopted on August 21, 2007 (hereinafter, the "Disputes");
B. Mammoth has determined that it may wish to assert certain causes of action or
claims against the City in connection with the Disputes. The City denies that any such causes of
action or claims exist or will exist, and also denies that Mammoth has been damaged in any sum
or at all. Further, the parties agree that the statute of limitation established by California Civil
Code ("C.C.P.") section 1094.6 will expire as of November 20, 2007;
C. The Parties are presently engaged in useful discussions concerning the Disputes.
Accordingly, to permit further such discussions and avoid the necessity of immediately
instituting legal proceedings, the Parties desire to toll and suspend, against the other, all
applicable statutes of limitations and other defenses to which the passage of time is relevant.
AGREEMENT
In consideration of the mutual promises stated in this Agreement, the Parties agree as
follows:
1. The Parties agree that the statute of limitations period applicable to the matter
described herein shall be extended to and including January 18, 2008.
2. Except as specifically provided herein, this Agreement shall not be deemed to
constitute a waiver of any claim, right or defense of any party hereto as against any other party.
3. Nothing contained in this Agreement shall be deemed or construed as evidence of
any liability, an admission of any wrongdoing, or any representation or warranty whatsoever on
the part of any party hereto.
4. The Parties to this Agreement, and their respective legal counsel agree to keep it
confidential and shall not disclose its existence or the contents thereof, and this Agreement shall
LA1689613.3
207914-10014
0 0
not be offered or received into evidence nor shall it be admissible in any trial or civil proceeding,
except as may be required in connection with its enforcement.
5. This Agreement comprises the entire agreement of the Parties with respect to the
tolling of all applicable statutes of limitation and other defenses to which the passage of time is
relevant.
6. This Agreement may be extended, modified, amended, or supplemented only by a
written instrument signed by all of the Parties.
7. This Agreement may be executed in counterparts, which taken together shall
constitute one agreement. Facsimile signatures shall be effective upon transmission and the
received facsimile copy shall be treated as though it were an original bearing original signatures.
8. This Agreement shall be construed under and according to the laws of the State of
California.
9. All parties have contributed to the selection of the words used in this Agreement,
and none of its language may be interpreted against any party as the cause of any uncertainty.
10. This Agreement shall be binding upon any successor -in -interest or assign of a
party. Nothing in this paragraph shall create any rights enforceable by any person not a party to
this Agreement, except for the rights of the successors in -interest and assigns of each party to
this Agreement.
11. All notices given or permitted to be given under this Agreement shall be addressed
as follows:
If to the Citv
Office of the City Attorney
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Facsimile: (949) 493-1053
If to Mammoth:
Linda A. Bernhardt
Managing Director Land Use and Regulatory Affairs
Loeb & Loeb LLP
10100 Santa Monica Blvd., Suite 2200
Los Angeles, CA 90067
Facsimile: (310) 282-2200
12. The recitals are made part of this Agreement
LA1689613.3
207914-10014
13. The persons executing this Agreement represent and warrant that each has the
express authority, right and power to execute this Agreement and to bind the party on whose
behalf each signs.
Appr*vea'foo
John City
LA1689613.3
207914-10014
CITY OF SAN JUAN CAPISTRANO
am llevato, Mayor
Attest:
v L-�
M ga t R. Monahan, City Clerk
MAMMOTH EQUITIES, LLC, MAMMOTH
EQUITIES, LC, MAMMOTH SAN JUAN
CAPISTRANO, LLC, MAMMOTH EQUITIES
CONSTRUCTION GROUP, MAMMOTH
EQUITIES PROPERTY MANAGEMENT
GROUP, MAMMOTH EQUITIES CAPITAL
GROUP, MAMMOTH REALTY EXCHANGE
dt
!I ,
By: MICHAEL SITAR
Their: Executive Vice President
0
32400 PASEO ADELANTO
SAN JUAN CAPISTRANO, CA 92675
(949) 493-1171
(949)493-1053 FAX
www.sanjuancapistrano. org
TRANSMITTAL
Nice];
Loeb & Loeb
10100 Santa Monica Blvd, Ste 2200
Los Angeles, CA 90067
Attention: Anne M. Moreno
�j IIOIIIIIRI
' Esumn9 � I961
1776
FROM: Meg Monahan, MMC — City Clerk (949) 443-6308
RE: Tolling agreement — Mammoth Equities LLC
Enclosed:
MEMBERS OF THE CITY COUNCIL
SAMALLEVATO
THOMAS W. HRIBAR
MARK NEILSON
JOE SOTO
DR. LONDRES USO
Certified copy of the Tolling agreement as approved by the City Council on November 6, 2007
— for your records.
If you have questions regarding the agreement, please contact John Shaw, City Attorney,
(949)443-6312
CC:
John Shaw, City Attorney/Omar Sandoval, Deputy City Attorney
San Juan Capistrano: Preserving the Past to Enhance the Future
" PnMetl on 100% recycled paper
11
TOLLING AGREEMENT
•
CERTIFIED COPY
This Tolling Agreement ("Agreement') is made this 13'h day of November, 2007 (the
"Effective Date"), by and between Mammoth Equities LLC and its affiliated entities, including
without limitation Mammoth Equities, LC, Mammoth San Juan Capistrano, LLC, Mammoth
Equities Construction Group, Mammoth Equities Property Management Group, Mammoth
Equities Capital Group, Mammoth Realty Exchange, and each of their respective affiliates and
subsidiaries, (collectively, "Mammoth'), and the City of San Juan Capistrano (the "City").
RECITALS
A. Certain disputes and disagreements have arisen between Mammoth and the City
(together, the "Parties") concerning signage for the Mammoth Professional Park and Resolution
No. 07-08-21-04, entitled "A Resolution of the City Council of San Juan Capistrano, California
Upholding the Appeal and Reversing Approval of a Sign Permit for Signs for the Mammoth
Professional Buildings on Rancho Viejo Road (APN 650-011-32) (Mammoth Equities),"
adopted on August 21, 2007 (hereinafter, the "Disputes");
B. Mammoth has determined that it may wish to assert certain causes of action or
claims against the City in connection with the Disputes. The City denies that any such causes of
action or claims exist or will exist, and also denies that Mammoth has been damaged in any sum
or at all. Further, the parties agree that the statute of limitation established by California Civil
Code ("C.C.P.") section 1094.6 will expire as of November 20, 2007;
C. The Parties are presently engaged in useful discussions concerning the Disputes.
Accordingly, to permit further such discussions and avoid the necessity of immediately
instituting legal proceedings, the Parties desire to toll and suspend, against the other, all
applicable statutes of limitations and other defenses to which the passage of time is relevant.
AGREEMENT
In consideration of the mutual promises stated in this Agreement, the Parties agree as
follows:
1. The Parties agree that the statute of limitations period applicable to the matter
described herein shall be extended to and including January 18, 2008.
2. Except as specifically provided herein, this Agreement shall not be deemed to
constitute a waiver of any claim, right or defense of any party hereto as against any other party.
3. Nothing contained in this Agreement shall be deemed or construed as evidence of
any liability, an admission of any wrongdoing, or any representation or warranty whatsoever on
the part of any party hereto.
4. The Parties to this Agreement, and their respective legal counsel agree to keep it
confidential and shall not disclose its existence or the contents thereof, and this Agreement shall
LA 1689613.3
207914-10014
0 0
not be offered or received into evidence nor shall it be admissible in any trial or civil proceeding,
except as may be required in connection with its enforcement.
5. This Agreement comprises the entire agreement of the Parties with respect to the
tolling of all applicable statutes of limitation and other defenses to which the passage of time is
relevant.
6. This Agreement may be extended, modified, amended, or supplemented only by a
written instrument signed by all of the Parties.
7. This Agreement may be executed in counterparts, which taken together shall
constitute one agreement. Facsimile signatures shall be effective upon transmission and the
received facsimile copy shall be treated as though it were an original bearing original signatures.
8. This Agreement shall be construed under and according to the laws of the State of
California.
9. All parties have contributed to the selection of the words used in this Agreement,
and none of its language may be interpreted against any party as the cause of any uncertainty.
10. This Agreement shall be binding upon any successor -in -interest or assign of a
party. Nothing in this paragraph shall create any rights enforceable by any person not a party to
this Agreement, except for the rights of the successors in -interest and assigns of each party to
this Agreement.
11. All notices given or permitted to be given under this Agreement shall be addressed
as follows:
If to the City:
Office of the City Attorney
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Facsimile: (949) 493-1053
If to Mammoth:
Linda A. Bernhardt
Managing Director Land Use and Regulatory Affairs
Loeb & Loeb LLP
10100 Santa Monica Blvd., Suite 2200
Los Angeles, CA 90067
Facsimile: (310) 282-2200
12. The recitals are made part of this Agreement.
LA1689613.3
207914-10014
L
1-1
�1
►�J
13. The persons executing this Agreement represent and warrant that each has the
express authority, right and power to execute this Agreement and to bind the party on whose
behalf each signs.
Appr ve a, fm
John S , City ttorney
LA1689613.3
207914-10014
CITY OF •
4am•
-Allevato, Mayor
Attest: ^
v
M ga t R. Monahan, City Clerk
MAMMOTH EQUITIES, LLC, MAMMOTH
EQUITIES, LC, MAMMOTH SAN JUAN
CAPISTRANO, LLC, MAMMOTH EQUITIES
CONSTRUCTION GROUP, MAMMOTH
EQUITIES PROPERTY MANAGEMENT
GROUP, MAMMOTH EQUITIES CAPITAL
GROUP, MAMMOTH REALTY EXCHANGE
By: NffCHAEL SITAR
Their: Executive Vice President
The foregoing inshwoonis a carni of the aipnd oaf0o in
oris office. Attest• 20 /=`)-'-L�—
City Clerk of the City of San Je C ' of OMIX
..._.._.,rte.,
0
0 11/6/2007
AGENDA REPORT
TO: Dave Adams, City Manager ID
FROM: John R Shaw, City Attorney
SUBJECT: Consideration of Approval of Tolling Agreement
RECOMMENDATION
By motion, approve the attached tolling agreement with Mammoth Equities
LLC.
BACKGROUND AND FACTUAL SITUATION
Mammoth Equities has requested that the City enter into the attached tolling
agreement with it for the purpose of staying the running of a ninety day
statute of limitations period with respect to the City Council's prior denial of
Mammoth's previous sign application. On August 21, 2007, the City
Council adopted Resolution # 07-08-21-04 formally denying Mammoth's
previous application for 6 separate sign permits.
Under state law, Mammoth has ninety days,to file a legal action to contest
the validity of the City Council's denial action. The 90 day statute of
limitations period runs out on November 19, 2007, unless the City Council
and Mammoth agree to the staying of the running of the 90 day statutory
period for an additional period of time. Mammoth proposes that in light of
Mammoth's newly submitted sign application, recently acted upon by the
Planning Commission, the statute of limitations period be extended to
February 18, 2008. Appeals have now been filed with respect to the
Planning Commission conditional approval of the new Mammoth sign
application, and those appeals have been set by the City Clerk to be heard by
the City Council on November 20, 2007.
Therefore, the factual situation can be summarized as follows:
0 0
(1) To date, Mammoth has not elected to file a lawsuit to challenge the City
Council's 8/21/2007 denial of Mammoth's requested sign permits. The
statute of limitations period to do so runs out on November 19.
(2) Mammoth, as an alternative to filing litigation, has filed a new
sign application which was conditionally approved by the Planning
Commission on October 9, 2007. Appeals were filed on that conditional
approval and those appeals will be heard by the City Council on
November 20.
(3) The effect of entering into the tolling agreement would be to extend
the statute of limitations for the first denial of the Mammoth sign
application into February 2008. [See section 1 of Agreement] The
benefit of the extension to the parties will be that no litigation activity
need occur in the near term at least until after the City Council makes a
final land use decision on the second sign application. This will save
some time and monetary resources for the City in the near term.
Based upon the above factual situation, it is recommended that the tolling
agreement be approved at this time.
RECOMMENDATION
By motion, approve the attached tolling agreement with Mammoth Equities
LLC.
s c lly Submitted,
J R. haw,
i Attorney
Attachment: Agreement
0 0
TOLLING AGREEMENT
This Tolling Agreement ("Agreement") is made this 6`h day of November, 2007 (the
"Effective Date"), by and between Mammoth Equities LLC and its affiliated entities, including
without limitation Mammoth Equities, LC, Mammoth San Juan Capistrano, LLC, Mammoth
Equities Construction Group, Mammoth Equities Property Management Group, Mammoth
Equities Capital Group, Mammoth Realty Exchange, and each of their respective affiliates and
subsidiaries, (collectively, "Mammoth"), and the City of San Juan Capistrano (the "City").
RECITALS
A. Certain disputes and disagreements have arisen between Mammoth and the City
(together, the "Parties") concerning signage for the Mammoth Professional Park and Resolution
No. 07-08-21-04, entitled "A Resolution of the City Council of San Juan Capistrano, California
Upholding the Appeal and Reversing Approval of a Sign Permit for Signs for the Mammoth
Professional Buildings on Rancho Viejo Road (APN 650-011-32) (Mammoth Equities),"
adopted on August 21, 2007 (hereinafter, the "Disputes");
B. Mammoth has determined that it may wish to assert certain causes of action or
claims against the City in connection with the Disputes. The City denies that any such causes of
action or claims exist or will exist, and also denies that Mammoth has been damaged in any sum
or at all. Further, the parties agree that the statute of limitation established by California Civil
Code ("C.C.P.") section 1094.6 will expire as of November 20, 2007;
C. The Parties are presently engaged in useful discussions concerning the Disputes.
Accordingly, to permit further such discussions and avoid the necessity of immediately
instituting legal proceedings, the Parties desire to toll and suspend, against the other, all
applicable statutes of limitations and other defenses to which the passage of time is relevant.
AGREEMENT
In consideration of the mutual promises stated in this Agreement, the Parties agree as
follows:
1. The Parties agree that the statute of limitations period applicable to the matter
described herein shall be extended to and including February 18, 2008.
2. Except as specifically provided herein, this Agreement shall not be deemed to
constitute a waiver of any claim, right or defense of any party hereto as against any other party.
3. Nothing contained in this Agreement shall be deemed or construed as evidence of
any liability, an admission of any wrongdoing, or any representation or warranty whatsoever on
the part of any party hereto.
4. The Parties to this Agreement, and their respective legal counsel agree to keep it
confidential and shall not disclose its existence or the contents thereof, and this Agreement shall
LA 1689613.2
207914-10014
not be offered or received into evidence nor shall it be admissible in any trial or civil proceeding,
except as may be required in connection with its enforcement.
5. This Agreement comprises the entire agreement of the Parties with respect to the
tolling of all applicable statutes of limitation and other defenses to which the passage of time is
relevant.
6. This Agreement may be extended, modified, amended, or supplemented only by a
written instrument signed by all of the Parties.
7. This Agreement may be executed in counterparts, which taken together shall
constitute one agreement. Facsimile signatures shall be effective upon transmission and the
received facsimile copy shall be treated as though it were an original bearing original signatures.
8. This Agreement shall be construed under and according to the laws of the State of
California.
9. All parties have contributed to the selection of the words used in this Agreement,
and none of its language may be interpreted against any party as the cause of any uncertainty.
10. This Agreement shall be binding upon any successor -in -interest or assign of a
party. Nothing in this paragraph shall create any rights enforceable by any person not a party to
this Agreement, except for the rights of the successors in -interest and assigns of each party to
this Agreement.
11. All notices given or permitted to be given under this Agreement shall be addressed
as follows:
If to the City
Office of the City Attorney
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Facsimile: (949) 493-1053
If to Mammoth:
Linda A. Bernhardt
Managing Director Land Use and Regulatory Affairs
Loeb & Loeb LLP
10100 Santa Monica Blvd., Suite 2200
Los Angeles, CA 90067
Facsimile: (310) 282-2200
12. The recitals are made part of this Agreement
LA1689613.2
207914-10014
0
13. The persons executing this Agreement represent and warrant that each has the
express authority, right and power to execute this Agreement and to bind the party on whose
behalf each signs.
CITY OF SAN JUAN CAPISTRANO
Sam Allevato, Mayor
Approved as form:
John Shaw, City Attorney
MAMMOTH EQUITIES, LLC, MAMMOTH
EQUITIES, LC, MAMMOTH SAN JUAN
CAPISTRANO, LLC, MAMMOTH EQUITIES
CONSTRUCTION GROUP, MAMMOTH
EQUITIES PROPERTY MANAGEMENT
GROUP, MAMMOTH EQUITIES CAPITAL
GROUP, MAMMOTH REALTY EXCHANGE
By: MICHAEL SITZER
Their: Executive Vice President
LA 1689613.2
207914-10014