TOLLING AGREEMENT
This Agreement ("Agreement") is entered into between the City of Glendale ("City"), a municipal corporation, and Central BWB, LLC ("Developer"), a California limited liability corporation, as of August 27, 2024, for the purpose of tolling the statute of limitation periods and any associated claims or causes of action against the City related to the matters described herein (collectively, the "Claims"). The City and Developer are sometimes collectively referred to herein as the "Parties" and individually referred to as a "Party." Recitals
Whereas, on or about March 14, 2024, Developer submitted to the City an SB 330 preliminary application with an attached project application (the "Project Application") for a 149- unit density-bonus project ("Project") proposed for 1303-1315 N. Central Avenue, Glendale 91202 (the "Subject Property").
Whereas, the Parties agree that the Project Application was deemed complete as a matter of law pursuant to the California Permit Streamlining Act, Government Code § 65920, et seq., no later than April 21, 2024, and was deemed consistent, compliant, and in conformity with all applicable plans, programs, policies, ordinances, standards, requirements, and other similar provisions, pursuant to Government Code § 65589.5(i)(2)(B), no later than May 21, 2024.
Whereas, on May 24, 2024, Developer gave notice (the "Notice"), pursuant to Government Code § 65589.5(h)(6)(D)(V), that it believes that the Project is exempt from the California Environmental Quality Act ("CEQA") under Cal. Code Regs. Tit. 14 § 15332 as a Class 32 In- Fill Development Project and that the City shall make a lawful determination on the Notice within the time frames specified in Government Code § 65589.5(h)(6) (D)(V).
Whereas, City responded to the Notice on June 18, 2024, disputing the timing of Developer's Notice as premature pursuant to Government Code § 65589.5(h) (6)(D)(V)(ie), and advising Developer that the final CEQA determination would be completed following the Developer's payment of the fees for processing the Environmental Review form submitted on December 6, 2023, and the processing the Developer's Design Review application would occur following Developer's submission of an updated Density Bonus application reflecting the revised project set forth in the Project Application.
Whereas, the Parties agree that City has ninety (90) days from June 20, 2024, the date upon which timely written notice is deemed given pursuant to Government Code 65589.5(h)(6)(D)(V)(ie), to make a lawful determination on the Developer's Project Application.
Whereas, the Parties agree that the City is exercising its authority pursuant to Government Code § 65589.5(h)(6)(D)(V)(ic) to extend the time period to make a lawful determination by not more than an additional 90 days (until December 17, 2024) if the extension is necessary to determine if there is substantial evidence in the record that the housing development project is eligible for the CEQA exemption sought by the Developer.
ORIGINAL
1 Whereas, the City agrees to process the application, subject to its request that Developer submit an updated Density Bonus Application Form ("DBA Form") for the Project and to pay fees for the processing the DBA Form, and fees for processing the environmental review ("EIF Fees") within the timeframes established by Government Code § 65589.5(h)(6)(D)(V), as extended.
Whereas, Developer agrees to submit the requested DBA Form and fees, and to pay the EIF Fees subject to certain terms and conditions set forth in this Agreement.
Now therefore, the Parties agree as follows:
Agreement
1. The above-referenced Recitals are incorporated into this Agreement as if set forth herein in full.
Cooperation Under Protest. Developer will submit a DBA Form and pay all DBA Form fees and EIF Fees as set forth in the Citywide Fee Schedule duly adopted by the City's Fee Resolution Nos. 24-110 and 24-111, within 14 days of execution of this Agreement. The City agrees that it will not respond to either the DBA Form and DBA Form fee payment, or payment of the EIF Fees with a notice of inconsistency under Government Code § 65589.5()(2)(A) California Permit Streamlining "Notice of Inconsistency") or a Act, Government Code 56lion is incomplete under the ). et sea. (Notice 01
Incompleteness") so long as Developer pays the fees required by the Citywide Fee Schedule. The Parties agree that any such Notice of Inconsistency or Notice of Incompleteness shall be void and of no force or effect given the Recitals set forth above. If the City determines the DBA Form is incomplete or inconsistent with the Project Application, it may request an updated DBA Form be submitted, which updated DBA Form Developer shall promptly submit. City agrees that Developer's submittal of the updated DBA Form and DBA Form fee payment and payment of the EIF Fees is completed under protest and shall not be deemed a waiver by Developer of any claims, rights, or causes of action existing at law as of the date of this Agreement, including, but not limited to, claims rights, or causes of action arising under Government Code § 65589.5(h)(6)(D)(V).
Tolling of all Claims. The City agrees to toll for a period of one-hundred and eighty (180) days running from the date of this Agreement (hereinafter, the "Tolling Period"), the application and/or running of any statutes of limitations, statutes of repose, and doctrine of laches with respect to any and all claims, rights, or causes of action, including the Claims, that may be alleged by Developer. The Parties agree and acknowledge that the running of time under any applicable statute of limitations, statute of repose, doctrine of laches, or other time-based defense which could otherwise be asserted by the City in connection with the Claims shall be and hereby are tolled and/or suspended as a result of this Agreement. The City promises not to assert, and agrees that it shall be estopped from asserting, that any time-based defense (e.g., statute of limitations, statutes of repose, doctrine of laches, or other time-based defense) continued to run during the Tolling Period.
Indemnification for Project Approvals. In the event the City approves the Project and adopts or certifies, as applicable, the Project CEQA document within the time frames specified in Government Code § 65589.5(h)(6)(D)(V), Developer agrees to indemnify and hold City 2 harmless from and against any claim, action, damages, costs (including, without limitation, reasonable attorney's fees), injuries, or liability, arising from City's approval of the Project, the Project CEQA document, this Agreement, and all procedures with approving this Agreement (collectively, "Project Approvals"). In the event indemnification is necessary pursuant to this section, the Parties agree to cooperate in good faith to negotiate and execute a more detailed Indemnification Agreement for the purposes of effectuating this section.
Nothing contained herein shall constitute an admission or acknowledgement that the Claims made against the City have merit or that the City is liable whatsoever.
The City and Developer each acknowledge and represent that in executing this Agreement, each: (i) is represented by legal counsel who has reviewed and advised it with respect to this Agreement; (ii) fully understands the purpose, terms, and ramifications of this Agreement; (ili) has executed this Agreement voluntarily; and (iv) signatory has full authority to execute and enter into this Agreement on behalf of the party it represents.
This Agreement contains the entire agreement between the City and Developer concerning the subject matter hereof and may not be altered, amended or modified in any respect except by a writing executed by the Parties. All prior written and oral agreements and understandings related to required time periods for assertion of the Claims and the timeliness of their assertion are expressly superseded hereby and are of no further force or effect.
This Agreement shall be deemed to have been drafted by the City and Developer jointly and shall not be construed against either Party on the theory that the other Party drafted this Agreement.
This Agreement shall be governed by the laws of the State of California.
10. This Agreement may be executed in counterparts, each of which, when so executed, shall constitute an original. Facsimile or electronic signatures shall have the same force and effect as originals.
IN WITNESS THEREOF, the City and Developer sign this Agreement and agree to be bound by the terms and conditions of this Agreement.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
3 Date: August 28 2024 CITY OF GLENDALE
ame Roubik Go anian
Guy Manager
Date: August 27, 2024 CENTRAL BWB
By:_ ffe
Printed Name: GREGORY BROO
Title: MANAGER
APPROVED AS TO FORM ONLY:
Date: August 28.2023
- Sala
Gillian van Muyden
Chief Assistant City Attorney for
City of Glendale
Date: August 28, 2023 Jeffer Mangels Butler & Mitchell LLP By:
Daniel F. Freedman
Attorney for Central BWB, LLC
4