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2019 Washington-III, Ltd - Tolling Agreement ADA ComplianceTOLLING AGREEMENT AND AGREEMENT TO SUBMIT ISSUE TO EARLY NEUTRAL EVALUATION Do�, This TOLLING AGREEMENT AND AGREEMENT TO SUBMIT ISSUE TO EARLY NEUTRAL EVALUATION ("Tolli►:g Agreement') is made and effective this 1 ❑ day ofApd, 0N417- 2019, ("Effective Date"), by and among the CITY OF LA QUINTA ("City"), and Washington- 111, Ltd. a California limited partnership ("Washington Party'), (collectively, the "Parties," and individually, each a "Party"). RECITALS A. Washington Park is the owner and operator of a shopping center located in the City and commonly referred to as the Washington Park Shopping Center (the "Properly"). Washington Park has leased space within its Property to various commercial tenants (the "Tenants"). B. Certain applicants have recently applied to the City for building permits for improvements to the space that they propose to lease from Washington Park This application and permit process also includes the submittal of plans, requires periodic inspections and ultimately the issuance of a Certificate of Occupancy once construction is completed (collectively, "Permits"). The City has enforced the requirements of 2016 California Building Code section 11B-202.4, exception 8, requesting the applicants to identify on the plans the minimally required path of travel upgrades that the existing tenant space will need, in order to provide reasonable accessibility to persons with disabilities in accordance with the California Building Code (the "CBC'j. These path of travel upgrades may include, but not be limited to, the accessible route(s) from the public way, accessible routes from vehicle parking areas, accessible entrances to the tenant space, accessible restrooms and proper signage as required by the CBC. Identifying these path of travel upgrades is a condition of receiving their Permits and providing these path of travel upgrades is a condition of obtaining a Certificate of Occupancy. Recent building permit applications and applicants at Washington Park include the following: MARVYNS MAGIC CABARET — 46630 Washington St Ste 1 (BCOM2018-0045) APPLICANT: ANTON MARINKOVICH (Plan Preparer) CONTRACTOR: MONARCH HOMES DESERT DMSION INC OWNER: WASHINGTON 111 LTD PLANET FITNESS — 78987 Highway I I I (BCOM2018-0035) APPLICANT: ARTAVIA, MARYANN (Permit Expeditor) CONTRACTOR: I CHASE BUILDERS INC OWNER: OD LA QUINTA DR, AARON KELSEY DENTIST OFFICE — 46660 Washington St Ste 4 (BCOM2018-0026) APPLICANT: SOUTH WEST CONCEPTS (Plan Preparer) CONTRACTOR: TBD OWNER: WASHINGTON 111 LTD 698/015610-0164 13645592.2 004/19/19 RED ANGEL SALON — 46600 Washington St Ste 2 (BCOM2018-0038) APPLICANT: SERGIO GARCIA (P l an Preparer) CONTRACTOR: MIRAGE DEVELOPERS INC OWNER: WASHINGTON 111 LTD C. A dispute has arisen between the Parties about their respective rights and obligations with respect to the CBC and Americans with Disabilities Act, 42 U.S.C. § 12101 et, seq. ("ADA"), specifically: (1) whether the City has authority to impose common area access barrier removal obligations under the CBC and ADA on the Tenants, and (2) the scope of the required accessibility improvements, including but not limited to path of travel upgrades (collectively, the "Claims"). D. The Parties desire to explore the possibility of resolving their dispute through a non -binding early neutral evaluation to avoid the expense and uncertainty of litigation. To ensure the Parties have sufficient time to fully explore the prospects for a mutually agreeable resolution of the Claims, the Parties wish to toll all applicable time deadlines for the prosecution of their respective rights against one another, including without limitation statutes of limitation, while protecting and preserving all potential claims and defenses relating to or arising out of the Parties' Claims against each other. AGREEMENT NOW, THEREFORE, in consideration of the covenants and conditions contained herein, the Parties agree as follows: 1. The Parties agree that any and all timing deadlines and statutes of limitation for the prosecution of the Claims against one another, including, but not limited to, the period of limitation set forth in the Government Claims Act under Government Code sections 810 and 900 et seq, and the Civil Rights Act under United States and California law, applicable to any claims, causes of action, rights, demands, appeals, actions, and proceedings that one Party may have against the other arising out of or relating to its Claims, including unknown and contingent claims, are tolled as of the date of this Tolling Agreement and shall remain tolled until termination of this Tolling Agreement, as provided herein. 2, The Parties agree to submit the issues related to their dispute to Judge John Leo Wagner (Ret.) of Judicate West, for resolution by non -binding early neutral evaluation ("ENE"), in accordance with the following terms: (a) Briefing. The Parties will attempt in good faith to agree upon a set of stipulated facts and a common set of authenticated documents. Each Party may then file (i) an opening brief -in support of their position; and, (ii) a reply brief in response to the other Party's opening brief. The Parties will request that a briefing schedule and briefing length be determined by Judge Wagner. (b) Hearing. After the Parties have completed briefing, Judge Wagner may set a date for hearing, which may include oral argument and oral testimony under oath to the extent requested by Judge Wagner. The Parties waive their right to take depositions and use interrogatories and agree to use sworn written declarations that may be presented at the hearing as 698/015610-0164 13645592.2 e04/19/19 2 testimony, in lieu of deposition testimony. At least sixty (60) days before the hearing, the Parties shall exchange information about the identity of any witnesses expected to testify at the hearing, subject to approval by Judge Wagner. (c) Evidence, The hearing will be conducted subject to the California Evidence Code, except as modified by this Tolling Agreement or by Judge Wagner. (d) Statement of Decision. Following the hearing, Judge Wagner shall prepare a written statement of decision regarding his final determination of the dispute and the facts and legal authority supporting his decision. (e) Costs and Fees. The Parties shall split the costs and fees incurred in submitting the dispute for resolution under the ENE process. Each Party shall bear their own attorney's fees, costs and expenses related to the ENE process. 3. In the event this Tolling Agreement expires or is terminated and Washington Park or the City subsequently file an action or protest related to the Claims, neither the City nor Washington Park shall assert any defense(s) they may have based on the statute of limitations, or delay in bringing the action such as laches, estoppel, or waiver, to the extent such defense arises from the passage of time (or action or inaction) during the period this Tolling Agreement is in place and the tolling period contemplated herein is in effect. 4. In exchange for and in consideration of the tolling of the statutes of limitation, Washington Park agrees that it will not file a lawsuit against the City relating to the Claims during the term of this Tolling Agreement, and the City agrees it will continue to issue the Permits to Washington Park's Tenants, 5. The time period for a Party to commence litigation for claims arising out of or associated with the Claims, against the other Party shall recommence thirty (30) days after expiration or the effective date of any termination pursuant to Paragraph 6 of this Tolling Agreement. After the thirty (30)-day period has expired, all applicable defenses tolled pursuant to this Tolling Agreement will no longer be tolled. Each Party shall bear its own attorney fees, costs and expenses related to any administrative proceeding, protest, action, or litigation, including any appeals, relating to the Claims. This paragraph shall survive the termination or expiration of this Tolling Agreement. 6. Any Party may terminate this Tolling Agreement by providing the other Party with written notice of its election to terminate the Tolling Agreement. Such written notice shall be served via overnight mail on the other Party and shall be effective ten (10) calendar days after service of the written notice on the other Party. However, unless the Parties mutually agree in writing otherwise, this Tolling Agreement shall not extend beyond sixty (60) days after the date of the written statement of decision to be issued pursuant to Paragraph 2(d) of this Tolling Agreement, and shall be deemed by the Parties to be expired as of 11:59 pm on that date, 7. Any document or notice required or permitted under this Tolling Agreement shall be in writing and shall be deemed duly delivered if delivered and addressed as set forth below via overnight mail delivery. All documents and notices shall be addressed as follows: 698/015610-0164 13645592.2 a04/19119 3 To the City: City of La Quinta 78-495 Calle Tampico La Quinta, CA 92253 Attention: City Cleric To Washington Park: Washington-111, Ltd. 30240 Rancho Viejo Rd,, Suite B San Juan Capistrano, CA 92675 Attention: Jack Tarr With a Copy to: Rutan & Tucker, LLP 611 Anton Blvd., 141 Floor Costa Mesa, CA 92626 Attention: William H. Ihrke, Esq. With a Copy to: Jackson Tidus 2030 Main Street, Suite 1200 Irvine, CA 92614 Attention: Michael L. Tidus, Esq. Jeffer Mangels Butler & Mitchell, LLP 2 Embarcadero Center, 5t" Floor San Francisco, CA 94111 Attention: Matthew S. Kenefick, Esq. 8. The Parties recognize that under limited circumstances certain statute of limitations enacted for the benefit of the public cannot be waived by agreement. The Parties to this Tolling Agreement agree that no such circumstances apply to this matter. 9. By entering this Tolling Agreement, the Parties do not admit to any fact or assume any liability of any kind. Moreover, this Tolling Agreement may not be offered as evidence of an admission of such responsibility or liability in any court proceeding. 10. This Tolling Agreement shall bind and inure to the benefit of the Parties hereto and their respective governing boards and their individual board members, heirs, executors, administrators, legal representatives, successors, and assigns. 11. If all or any portion of any of the provisions of this Tolling Agreement shall be declared invalid, illegal, or unenforceable by laws applicable thereto, then the performance of said offending provision or provisions shall be excused by the Parties hereto and such invalidity, illegality, or unenforceability shall not affect any other provision of this Tolling Agreement. 12, The Parties hereto expressly acknowledge and agree that, with regard to the subject matter of this Tolling Agreement and the transactions contemplated herein: (1) there are no oral agreements between the Parties hereto, and (2) this Tolling Agreement, including the defined terms (a) embodies the final and complete agreement between the Parties, (b) supersedes all prior and contemporaneous negotiations, offers, proposals, agreements, commitments, promises, acts, conduct, course of dealing, representations, statements, assurances, and understandings, whether oral or written, and (c) may not be varied or contradicted by evidence of any such prior or contemporaneous matter or by evidence of any subsequent oral agreement of the Parties hereto. 6981015610-0164 13645592,2 a04/19/19 13. This Tolling Agreement may be amended upon mutual written agreement of the Parties and execution of an amendment by individuals authorized to sign such amendment, so long as this Tolling Agreement has not already been terminated, Any amendment to this Tolling Agreement must be made in writing and signed by a duly authorized representative of each eligible Party. 14. This Tolling Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to conflict of law principles. 15. This Tolling Agreement may be executed in counterparts, each of which will be deemed to be an original and all of which together will be deemed to be the same document. Each Party certifies that the person signing below on the respective Party's behalf has the authority to bind that Party to the covenants made in this Tolling Agreement. [Signatures continued on following page] 698/015610-0164 13645592.2 a04/19/19 SIGNATURE PAGE TO TOLLING AGREEMENT AND AGREEMENT TO SUBMIT ISSUE TO EARLY NEUTRAL EVALUATION CITY OF LA QUINTA ATTEST: By: Monika Radeva City Clerk WAS GT N-111, LTD. By: Jac • Tarr Its: Managing General Partner 1437048.4 698/015610-0164 13645592.2 e04/19/19 By: William H. Ihrke, Esq, City Attorney JACKSON TIDUS By: Michael L. Ti , Esq. Attorneys for Washington- 111, Ltd. ELS BUTLER & By: M� S. Meneficlk¢ Esq. Attorneys for Washington- 111, Ltd.