Shea La Quinta/Tolling AgreementTOLLING AGREEMENT
SHEA LA QUINTA, LLC ("Shea'), a California limited liability corporation, on
the one hand, and the CITY OF LA QUINTA and CITY COUNCIL OF THE CITY OF
LA QUINTA (collectively, "City," in the singular), on the other hand, hereby enter into
this Tolling Agreement ("Tolling Agreemenfl, effective as of December L 2007.
RECITALS
A. On July 31, 2001, the County of Riverside approved Tentative Map No.
30023 for the active adult community known as Trilogy La Quinta (the "Trilogy
Project"). The Trilogy Project is now in the boundaries of the City of La Quinta and
consists of approximately 1,200 dwelling units, recreational trails, bike paths, and a golf
course. Phase Six of the Trilogy Project consists of 200 dwelling units and the Trilogy
Project's equipment yard and well site ("Phase 6'�.
B. Shea has requested approval by the City of a Final Map for Phase 6 of the
Trilogy Project. Following Shea's application, a dispute has arisen between Shea and the
City over the interpretation of certain Conditions of Approval for the Trilogy Project,
Shea's satisfaction of those Conditions of Approval, and the City's obligation to process
and agendize Shea's Phase 6 Final Map for approval by the City Council.
C. On October 29, 2007, Shea filed a Verified Petition for Writ of Mandamus
and Complaint ("Petition") in the Superior Court of Riverside County, California, against
the City (Case No. RIC484197), alleging, among other things, that: (i) the City's refusal
to put Shea's final map associated with Phase 6 of the Trilogy Project on the City
Council's agenda for consideration was unlawful; (ii) the City purportedly violated the
Subdivision Map Act; (iii) the City purportedly violated Shea's Civil Rights under 42
U.S.C. section 1983; and (iv) the City's actions constituted inverse condemnation of part
of the Trilogy Project and violated Shea's constitutional rights, resulting in unspecified
damages. The City has not yet filed its responsive pleading but disputes all of Shea's
claims.
D. The City contends that certain statutes of limitations have already expired
with respect to all of Shea's claims in the Petition. Shea disagrees.
E. Since the filing of the Petition, the Parties have entered into settlement
discussions and wish to explore the possibility of resolving their differences regarding the
processing and approval of Phase 6 without resort to further litigation.
F. In order that the Parties may have time to fully explore the prospects for
an informal resolution of this matter, and may focus time, efforts and money toward
potential settlement, Shea desires to dismiss the lawsuit without prejudice and withhold
and not file any other claims against the City related to the Trilogy Project during the
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term of this Tolling Agreement. The Parties desire to toll all applicable statutes of
limitation for a period of six (6) months, while protecting and preserving all potential
claims and defenses relating to or arising out of the allegations of the Petition.
G. At its regular meeting on December 4, 2007, the City's governing board
authorized the City Attorney to enter into this Tolling Agreement on behalf of the City.
1. Shea agrees to dismiss the lawsuit without prejudice and withhold and not
file any other claims against the City related to the Trilogy Project during the term of this
Tolling Agreement.
2. The Parties hereto agree that any and all statutes of limitation for the
claims brought by Shea in the Petition are tolled as of the date Shea filed its Petition, and
any claims against the City that may arise with respect to the Trilogy Project during the
tolling period are tolled as of the effective date of this Tolling Agreement. Each of these
claims shall remain tolled until June 2, 2008 (the "Sunset" date), or46 days after the
termination of this Tolling Agreement as permitted through paragraph 3 ("Termination '),
whichever date is earlier. Should Shea re -file its claims raised in the Petition, the City
shall not assert any defense premised upon the passage of time between October 29,
2007, and Sunset or Termination, whichever date is earlier. Should Shea file against the
City asserting claims other than those set forth in the Petition, the City shall not assert
any defense premised upon the passage of time between the effective date of this Tolling
Agreement and Sunset or Termination, whichever date is earlier. Nothing in this Tolling
Agreement shall be construed to revive statutes of limitation, if any, that had expired as
of October 29, 2007.
3. Any Party may, at any time, provide the other with written noti
terminating this Tolling Agreement. Such termination shall be effective<t5
days following delivery of written notice of exercise of the termination option to the other
Party. Such notice of termination shall in no event result in the shortening of any period
of limitation otherwise provided by law. Notice of termination of this Tolling Agreement
shall be by service upon legal counsel for the other Party, either by personal delivery,
registeredlcertified mail, or facsimile transmission, and the -day period referenced
herein shall be deemed to commence on the date of deliv of ch notice, as indicated
on any proof of receipt of the same.
4. Nothing in this Tolling Agreement shall be construed as an admission by
any Party of any fault or liability, or lack thereof, nor shall it be construed as a waiver,
retraction or modification of the positions of any Party. The Parties further acknowledge
that all future discussions concerning the resolution of the dispute herein shall be
considered settlement discussions and protected under Evidence Code section 1152,
except for the public hearings on Phase 6.
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5. This Tolling Agreement constitutes the complete understanding of the
Parties with respect to the subject matter hereof, and may not be modified except by a
writing signed by both of the Parties.
6. In the event that Shea files a new petition or re -files its Petition after
termination of the Tolling Agreement, Shea waives any claim for delay damages that
might arise during the period this Tolling Agreement is in effect.
7. Each person who executes this Tolling Agreement represents and warrants
that he/she has the authority to do so on behalf of the Party for whom executed.
8. For purposes of this Tolling Agreement, notices shall be sent as follows:
To Shea: J. F. Shea Co., Inc.
655 Brea Canyon Road
Walnut, CA 91789
Attention: Max B. Johnson,
Vice President and General Counsel
Telephone: (909) 594-0903
Facsimile: (909) 869-0849
With a copy to: Jackson DeMarco Tidus Petersen &
Peckenpaugh
2030 Main Street, Suite 1200
Irvine, CA 92614
Attention: Michael L. Tidus, Esq.
Telephone: (949) 752-8585
Facsimile: (949) 752-0597
To City: City of La Quinta
P.O. Box 1504
La Quinta, CA 92247
Attn: City Clerk
With a copy to: Stowell, Zeilenga & Ruth,
Vaughn &Treiger LLP
2815 Townsgate Road #330
Westlake Village, CA 91361
Attention: Richard Zeilenga, Esq.
Telephone: (805) 446-1496
Facsimile: (805) 446-1490
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9. This Tolling Agreement may be executed in counterparts, and signatures
transmitted by facsimile shall be valid and considered original signatures for all purposes.
AGREED AND ACCEPTED:
SHEA LA QUINTA, LLC
DATED: December -, 2007
DATED: December 42007
CITY OF LA QUINTA
DATED: December 7 2007
By: Shea Homes, Inc.
Its: Sole Manager
By: _
e* Devlin
W .A s Se
By:
Ulrich Sauerbrey
Its: Assistant Secretary
CITY COUNCIL OF THE CITY OF LA QUINTA
DATED: December. 2007
ATTEST:
CITY CLERK
1 ..�'
DATED: December a 2007 B;
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REVIEWED AND APPROVED AS TO FORM:
Attorneys for SHEA
DATED: December 2007
Attorneys for CITY
DATED: December I7x
750015.6
JACKSON, DeMARCO, PETERSEN,
TIDUS & PECKENPAUGH
STOWELL, ZEELENGA, RUTH,
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State of California
County of Riverside
On December 6, 2007, before me, Phyllis Manley, Notary Public, personally appeared
Perry Devlin, proved to me on the basis of satisfactory evidence to be the person whose
name is subscribed to the within instrument and acknowledged to me that he executed the
same in his authorized capacity, and that by his signature on the instrument the person or
the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal. (Seal)
Caronrebn • 169177%
Cam*
oo�.e ea«oa�a>Im
State of California
County of Riverside
On December 6, 2007, before me, Phyllis Manley, Notary Public, personally appeared
Ulrich Sauerbrey, proved to me on the basis of satisfactory evidence to be the person
whose name is subscribed to the within instrument and acknowledged to me that he
executed the same in his authorized capacity, and that by his signature on the instrument
the person or the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal. (Seal)