08-0520_SCALZO FAMILY TRUST_Tolling Agreement0
This Tolling Agreement ("Agreement") is effective May 20, 2008 ("Effective Date") by and
between the City of San Juan Capistrano, its employees, agents, officers and officials ("the City")
and the Martin E. and Marion E. Scalzo Family Trust ("the Trust") (the City and the Trust are
collectively referred to as "Parties" and individually as "Party').
RECITALS
A. WHEREAS, the Parties are currently engaged in litigation regarding the conditions
of approval imposed on a subdivision application filed by the Trust known as Tentative Tract Map
("TTM") 16146 (`Yhe Subdivision Approvals', and the Court, after hearing the petition, has granted
the petition and remanded the Subdivision Approvals back to the City for reconsideration of certain
conditions; and
B. WHEREAS, the Subdivision Approvals may expire prior to the City's rehearing
thereon; and
C. WHEREAS, on May 31, 2006 the Trust filed two tort claims against the City, its
employees, agents, officers, officials and other parties affiliated with the City, and filed an additional
tort claim on March 19, 2007 ("the Claims'); and
D. WHEREAS, the City may have claims against the Trust arising out of or related to
the allegations contained within the Claims filed against the City (the "Counter Claims'); and
E. WHEREAS, the Parties agree that it is in their best interest to toll the expiration of
the Subdivision Approvals and defer or avoid litigation of the Claims and/or Counter Claims, if any,
of and/or by the Trust against the City, or by the City against the Trust; and
F. WHEREAS, the Parties desire to toll/extend the expiration of the Subdivision
Approvals and the running of any statute of limitations and any other time -related defenses with
respect to any rights, claims, causes of action, and defenses arising out of the Claims and/or the
Counter Claims.
AGREEMENT
THEREFORE. in consideration of the mutual covenants and conditions set forth, the Parties
hereto agree as follows:
I. Tolline. The Parties agree to toll/extend the expiration of the Subdivision Approvals
and any applicable statute of limitations and any other -time related defenses, if any, applicable to the
Claims and the Counter Claims, for a period of time commencing on the Effective Date and
continuing for a period of two years, or until one year of the final action by the City Council on the
rehearing of the Subdivision Approvals (the "Tolling Period'), whichever is longer. The Tolling
Period may be extended by written agreement of the Parties.
(a) The tolling shall apply equally to the Claims and Counter Claims of the Parties
arising during the term of this Agreement. Further, this Agreement shall in no way limit the
rights of the Trust to seek further discretionary or mandatory extensions of the Subdivision
Approvals pursuant to the Subdivision Map Act or any other law.
(b) The Parties agree that the Tolling Period shall be excluded from all computations of
any statute of limitations applicable to the Subdivision Approvals, the Claims and the Counter
Claims. The Parties agree that each shall not plead, assert, or otherwise raise any statute of
limitations or any other time -related defense applicable to the Subdivision Approvals, the
Claims, or the Counter Claims, to the extent such is tolled/extended by this Agreement, as a bar
to or other limitation on any claims by either Party.
(c) The Parties agree that the Tolling Period shall not limit or otherwise affect the duty of
a Party, if any, to reasonably mitigate losses, damages, or injury to the extent they are able to do
SO.
(d) This Agreement constitutes a valid and effective written agreement to toll pursuant to
Section 360.5 of the California Code of Civil Procedure.
2. Covenant Not to Sue. The Parties agree not to sue or otherwise prosecute any of the
Claims or the Counter Claims until either the expiration of the Tolling Period, as set forth in Section
1 (Tolling), or the termination of the Tolling Period, as set forth in Section 3 (Withdrawal from the
Agreement). However, to the extent settlement discussions and/or negotiations concerning the
Subdivision Approvals or the Claims are not progressing, and the Trust gives notice to the City as set
forth in Section 3 below, the Trust may pursue its Claims against the City, including the right to file
suit.
3. Withdrawal from the A¢reement. Either Party may, upon written notice to the other
Party, sent by certified mail return receipt requested and properly addressed to the business offices of
the other Party, elect to withdraw from this Agreement as is relates to the tolling of the Claims only
and shall not be permitted to withdraw from this Agreement with respect to the tollinglextending of
the Subdivision Approvals. Such withdrawal as to the Claims may occur irrespective of the consent
of the other Party. The tolling of the Claims shall terminate thirty (30) days following receipt of the
notice of withdrawal.
4. Alternative Dispute Resolution. Nothing in this Agreement prohibits the Parties from
engaging in informal alternative dispute resolution, including, but not limited to, mediation. Any
agreement by the Parties to engage in informal alternative dispute resolution during the terms of this
Agreement does not affect the respective duties and obligations of the Parties.
5. No Waiver. This Agreement shall not constitute a waiver or release of any defenses
of either the Trust or the City based on the running of time under an applicable statute of limitations
or other time related defense which arose, accrued, or would have barred any Claims or Counter
Claims prior to the Effective Date. Furthermore, by this Agreement, the Parties do not waive their
rights to assert any other defense or objection to any Claims or Counter Claims other than as
expressly provided herein.
6. Notices. Any notice, request, demand, consent, approval or other communication
required or permitted hereunder or by law shall be deemed given or made only if in writing and
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deposited in the United States mail, postage prepaid and addressed to the party for whom intended,
addressed as follows, or to such other address as may, from, time to time, be designated by written
notice to the other Parties:
To the Trust: Charles S. Krolikowski, Esq.
Newmeyer & Dillion, LLP
895 Dove St. Fifth Floor
Newport Beach, CA 92660
With a copy to: Marc Goldstein, Esq.
Attorney At Law
620 Newport Center Drive, I Ph Floor
Newport Beach, CA 92660
To the City: Dave Adams, City Manager
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
With a copy to: Omar Sandoval, City Attorney
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
7. Governing Law, This Agreement shall be governed by and construed under the laws
of the State of California.
8. Q2SUNRUM. This Agreement may be executed in one or more counterparts, each of
which shall be deemed in original, but all of which together shall constitute one and the same
agreement.
9. . The Parties understand and agree that no breach of any provision or
provisions of this Agreement can be waived unless done so expressly in writing. A waiver of one
breach shall not be deeded a waiver of any other breach of the same or any other provision of this
Agreement.
10. Sevambft. If any provision of this Agreement is determined to be unenforceable
for any reason, it shall be adjusted rather than voided, if possible, in order to achieve the intent of the
Parties. In any event, the remaining provisions shall be deemed valid and enforceable to the
maximum extent possible.
11. Authority. Each of the undersigned represents and warrants that he/she has the
authority to bind the Party on behalf of whom he/she signs and that the other Party hereto is entitled
to rely upon such representation for all legal purposes.
12. Parties Covered. This Agreement shall be signed by the Parties and shall inure to the
benefit of the Parties' successors and assigns.
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13. No AdmjNjqA of Liability. Neither the execution of this Agreement nor anything
contained in it is intended to be, nor 9W be deemed to be, an admission by either Party of any
liability or an admission of the existence of facts upon which liability could be based.
14. its and Modifications. This Agreement may be amended or modified only
by a written agreement signed by the Parties to this Agramem.
15. Entire Aamo. This Agreement constitutes the entire understanding between the
Parries hereto with respect to the subject matter set forth herein and supersedes any and all prior or
other contemporaneous undeapndings, correspondence, negotiations, or agreements, written or oral,
between them regarding the subject matter of this Agreement. No alteration, modifications or
interpretations hereof shall be binding unless in writing and signed by the Partes.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement, as of the dates written
below.
CITY OF SAN JUAN CAPISTRANO
DATED: 2008 By: _L ^� it v`:i�
Dave Adams, City Manager
ATTEST:
Monahan, City Clerk
E. AND MARION E, SCALZO FAMILY TRUST
DATED: 1 2008 11
,__•^z 'L-- —� y
APPROVED AS TO FORM: CITY OF SAN JUAN CAPISTRANO
DATED: 2008 By:&Q, , uil"
Omar SAttorney
MARTIN E. AND MARION E. SCALZO FAMILY TRUST
DATED: AA4 W 2008 By:
Charles t
. Krolikowsld, Esq.
Co -Counsel for the Trust
f .a Jp
DATED:_� 2008 '
Marc Goldstein, Esq.
Co -Counsel for the Trust
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32400 PASEO ADELANTO
SAN JUAN CAPISTRANO, CA 92675
(949)493-1171
(949) 493-1053 FAx
www.sanjuancapistrano.org
TRANSMITTAL
Date: May 22, 2008
TO:
Charles S. Krolikowski, Esq
Newmeyer & Dillion, LLP
895 Done St Fifth Floor
Newport Beach, CA 92660
Ilflllllllfl
• fnnuclfl ` I461
1776
FROM: Meg Monahan, MMC — City Clerk (949) 443-6308
RE: Tolling agreementtMartin E. and Marion E. Scalzo Family Trust
MEMBERS OF THE CITY COUNCIL
SAMALLEVATO
THOMAS W. HR18AR
MARK NEILSON
JOE SOTO
DR. LONDRES USO
Enclosed: (1) copy of the Tolling agreement as approved by the City Council on May 20,
2008.
Cc:
Marc Goldstein, Esq.
Attorney at Law
620 Newport Center Drive, 111th Floor
Newport Beach, CA 92660
Dave Adams, City Manager; Omar Sandoval, City Attorney
San Juan Capistrano: Preserving the Past to Enhance the Future
ri Printed on 100% re�lea �",
5/20/2008
AGENDA REPORT D14
TO: Dave Adams, City Manager 90`
FROM: Omar Sandoval, City Attorney
SUBJECT: Consideration of Tolling Agreement between the Martin E. and Marion E.
Scalzo Family Trust and the City of San Juan Capistrano.
RECOMMENDATION
By motion, approve a tolling agreement between the Scalzo Family Trust and the City of
San Juan Capistrano.
BACKGROUND
The City is involved in litigation with the Scalzo Family Trust related to certain conditions
of approval that the City imposed upon Tentative Tract Map 16146. On April 17, 2008,
the Court issued an order upholding nine of the challenged conditions, and striking
seven for which the Court did not find support in the record. Thus, the Court set aside
the Council's decision to approve the Map with the subject conditions and remanded the
matter back to the City. On remand, the City must reconsider the seven conditions for
which the Court found no support in the record. In the meantime, the Trust and the City
continue to discuss a possible settlement of the litigation.
Although the Court set aside the Map approval, the Court's order did not specifically
address the expiration of the Map, which will expire soon. Furthermore, the Trust has
filed three tort claims in 2006 and 2007, and the time within which they must bring an
action to protect their claims will expire soon.
A tolling agreement tolls the expiration of the Map approvals and the Statute of
Limitations applicable to the tort claims during the tolling period. The Trust has
requested that the City agree to a tolling period that runs until the parties settle the
litigation, or until one year after the Council has taken final action on the rehearing of the
Map pursuant to the Court's order.
There are no impacts on the Citys General Fund as a result of this action.
NOTIFICATION:
The City Clerk mailed a copy of this report to the attorneys for the Trust.
Agenda Report May 20, 2008
Page 2
Recommendation
By motion, approve the tolling agreement between the Scalzo Family Trust and the City
of San Juan Capistrano.
Respectfully submitted:
0v"j 64V",�
Omar Sandoval
City Attorney
ATTACHMENT:
1. Minute Order of the Superior Court.
2. Tolling Agreement (which is still being reviewed by the attorneys for the Trust,
and will be provided to the Council prior to the meeting).
•UPERIOR COURT OF CALIFORNI.
COUNTY OF ORANGE
MINUTE ORDER
Date: 04/17/2008 Time: 02:26:42 PM Dept: C25
Judicial Officer Presiding: Judge Randell L. Wilkinson
Clerk. Katherine J Palacios
Bailiff/Court Attendant: Chris Counts
Case Init. Date: 03/16/2006
Case No: 06CC04179 Case Title: SCALZO FAMILY TRUST VS CITY OF SAN
JUAN CAPISTRANO
Case Category: Civil - Unlimited Case Type: Judicial Review - Other
Event Type:
Appearances:
There are no appearances by any party.
The Court, having taken the above -entitled matter under submission on April 16, 2008, now makes the
following ruling: A copy of which is attached hereto and incorporated herein by reference
Court orders clerk to give notice.
Date: 04/17/2008 MINUTE ORDER Page: 1
Dept: C25 Calendar No.:
Attachment 1
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SUPERIOR COURT OF CALIFORNIA
COUNTY OF ORANGE, CENTRAI. XUSTICE CENTER
nt AIJOFA 1ILY 'iRLST {;ASE irMBI:R:DM' 04179
i
flaintiff(s)
Vs.
CERTIFIC AT E OF SERVICN. BY MAII.
CITY OI' SAN JUAN CAPISTRANO OI' under submission ruling, DATED April 1?,
2tY4R
Defendant{sI
I, ALAN SL.A fER, Executive Officer and Clerk of the Superior Court, m and for the County of
Orau„ e, State ot'Cififbrnia, hercbv certify; that I am not a party to the within action or proceeding: than on
April IS, 2008, t wvt Qd the under snbmtssion ruling, dated Apnt 17.1-008, on each of (he paruex ticrcin
named by depositing a true copy thercol" enclosed in a seated envelope with postage thereon fully prepaid,
in the Cntted States Postal Service mail box at Santa Ana, California addressed as follows:
Charle,,S. Krolikowski
Ncurncyer & Ddlron LLP
399 Time street, ,0, trout
Xewport Beach, CA 02600
M. Lois Bobak
Wwdruff, Spradlut & Smart
755 .Anton Blvd., Suite 1200
Costa Mesa. CA 92626
0A1111): April I8, 200,S
Marc Goldstein
620 Newport Center Drive, 1 1" Hoot
Newport Beach, CA 92660
ALAN St_ATER,
Gxecufitc Officer and Clerk of the Superior Court
In and for the County of Orange
Bv:__
Katherine Palacios, Deputy Clerk
CERTIFICATE OF SERVICE AY MAIL
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1 ne petitioners writ is grantea anu ttte court enters Juagment ror petmoner, oratrinC tit.
the respondent's decision to grant the permit dependent on the fulfillment of certain
conditions be set aside.. The matter is remanded for reconsideration of the following
conditions:
l,onaition Nbo. i ne court Timis tnat thus Condition consnrutes a taxing m vioianon of the
Fifth Amendment of the U.S. Constitution per Dolan v. City of Tigard (1994) 512 U.S.
s'i4, as there is no evidence to support a relationship of any proportion between the
uncompensated dedication and petitioner's proposed project.
As to conditions i n, 5 i, 5n and i 0, to the extent they require petitioner to improve tae
City's deficient drainage system, there is insufficient evidence to require petitioner to
assume this burden.
AS to condition t i ana M the court finds that they are too ambiguous for the court to
make a definitive finding. To the extent, however, that they require the uncompensated
dedication or easements located elsewhere, the court finds that there is msurncient
evidence to support a relationship of any proportion between the uncompensated
dedication and petitioner's proposed project.
AS to conditions 4, >9(f), bei, 120,1 % 43, 49, 3j, ana 35, the Court finds substantial
evidence to support these conditions.
Petitioner s request for judicial notice is deemed moot insofar as the entire record utas
been lodged with the Court. Respondent's request for judicial notice of the
environmental impact report is denied, as the documents are not certified or properly
authenticated. Judicial notice is granted as to the Building Code.
Petitioner shall prepare the writ consistent with the above ruling and file and serve same
by April 23, 2008.
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ATTACHMENT NO. 2
Tolling Agreement — This attachment
will be distributed separately