2024/03/20 Minor Ranch, LLC Tolling Agreement
01006.0003/969177.4
TOLLING AGREEMENT
This Tolling Agreement ("Agreement"), dated as of ____________, 2024, is entered into
by and among Minor Ranch, LLC, a Delaware limited liability company ("Applicant"), the
CITY OF MENIFEE, a municipal corporation ("Menifee"), and the CITY OF PERRIS, a
municipal corporation ("Perris"). The Applicant, Menifee, and Perris are sometimes
individually referred to herein as a "Party" and collectively as the "Parties". This Agreement is
entered into with reference to the following facts and circumstances:
RECITALS
A. The Applicant owns multiple parcels of land within Menifee, consisting
of approximately 590.3 acres and identified as Assessor Parcel Numbers [APNs] 331-260-005,
331-260-006, 331-260-007, 331-260-008, 331-260-009, 331-270-005, 331-280-005, 331-290-
004, 331-300-002, 331-300-004, 331-300-005, 331-300-007, 331-300-013, 333-170-006, 333-
170-011, 333-170-012 (“Project Site”). The Project Site is generally located south of Highway
74, north of Matthews Road, east of Menifee Road, and west of Briggs Road within the City
of Menifee. The Project Site is generally located east of the City of Perris.
B. The Applicant submitted a proposed project to the City of Menifee to
develop the Project Site (“Menifee Valley Specific Plan or “Project”). The Project proposes the
development of the 590.3-acre Project Site as a mixed-use, master-planned community named
the “Menifee Valley Specific Plan”. The Project divides the 590.3-acre property into 13
“Planning Areas”. The southern and eastern portions of the Project will accommodate 1,718
housing units. The northern and western portions of the Project area are reserved for Civic Node
Public Facilities, Business Park, Commercial Business Park, and Commercial uses.
C. On February 21, 2024, the Menifee City Council approved the Project
entitlements, and corresponding environmental documents, including General Plan
Amendment No. PLN21-0336, Tentative Tract Map No. PLN22-0033, Change of Zone No.
PLN21-0335, Specific Plan Amendment No. PLN21-0221, Specific Plan No. PLN21-0217,
Development Agreement No. PLN22-0033, and the Environmental Impact Report for the
Project (State Clearinghouse No. #2022030233) (“Project EIR”).
D. Various disputes exist among the Parties regarding the Project and
Project EIR. The Parties have begun to discuss how those disputes could potentially be
resolved without Perris initiating litigation to challenge the approval of the Project and/or
certification of the Project EIR. The terms of any such settlement would be set forth in a
settlement agreement and any related documents described therein (collectively, the
"Settlement Documents").
E. The Parties desire to toll the statute of limitations with respect to any
legal claim that Perris may have that relates to the Menifee City Council's approval of the
Project, Project entitlements, and the EIR (the "Project Action"), so that the Parties can
potentially negotiate the Settlement Documents and potentially avoid litigation with respect to
the Project Action. The City of Perris desires to preserve its rights to commence and proceed
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March 20
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with judicial proceedings in connection with the Project Action in the event that, for any reason,
the Settlement Documents are not executed by the Parties within the time period specified
below.
NOW, THEREFORE, in furtherance of the mutual desires set forth above, and
in consideration of the mutual covenants and conditions set forth below, the Parties hereby agree
as follows:
AGREEMENT
1. Agreements Not to Sue. Commencing as of the date of this Agreement until 180
days after the date of this Agreement (the "Settlement Cutoff Date"), Perris hereby agrees that
Perris shall not commence, either individually or in any collective way, or join, by intervention or
otherwise, any litigation or any other judicial proceeding of any kind, nature or description against
Menifee or the Applicant arising from or relating in any manner to the Project Action (a "Judicial
Proceeding").
2. Tolling Agreement. In consideration of Perris’ agreement to forbear from
commencing any Judicial Proceeding against Menifee or the Applicant until the Settlement Cutoff
Date in accordance with Section 1, above, the Parties agree that the running of time under any
statute of limitations, or by way of laches or any other time-related defense, with respect to any
legal claim that Perris has the right to assert that arises from or relates in any manner to the Project
Action. including. but not limited to any claim related to compliance with the California
Environmental Quality Act (Public Resources Code, section 21000 et seq.),, is hereby tolled from
the date of this Agreement until twenty (20) days after the Settlement Cutoff Date (the "Tolling
Period"); provided, however, that the Tolling Period shall be extended to one (1) year from the
date of this Agreement in the event that the Parties jointly agree in writing (including by an
exchange of emails), not less than thirty (30) days prior to the expiration of the initial Tolling
Period, that sufficient progress has been made on settling their dispute to warrant the extension of
the Tolling Period pursuant to this Section 2. The Parties further agree that, (a) if Perris commences
any Judicial Proceeding following the expiration of the Tolling Period, the Tolling Period shall not
be asserted or relied upon in any way by Menifee or the Applicant to compute the running of time
under any statute of limitations or other time-related limitation relating to such Judicial
Proceeding, and (b) if any applicable statute of limitations or other time-related limitation for
challenging the Project Action has not commenced prior to the date of this Agreement, such statute
of limitations or other time-related limitation shall be deemed suspended for the entire duration of
the Tolling Period. If the Tolling Period overlaps with any period of tolling or any court holidays
created by any emergency rule of court or suspension of court activities, the Tolling Period will
run concurrently with the tolling imposed by court rule or suspension of court activities and the
Tolling Period shall only be extended by such court rule, court holidays, or suspension of court
activities to the extent that the tolling with respect to such court rule, court holidays or suspension
of court activities extends beyond the end of the Tolling Period.
3. Necessary and Indispensable Parties. Menifee and Applicant are not aware of any
other person or entity who may qualify as a Real Party in Interest, Necessary Party or Indispensable
Party as those terms are defined by California Code of Civil Procedure, section 389, Public
Resources Code, section 21167.6.5 or any other applicable statute or regulation, with regard to or
relating to in any litigation challenging the Project or the Project EIR. Furthermore, Menifee and
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Applicant shall not assert as a defense in any future litigation brought by Perris to challenge the
Project or the Project EIR that Perris failed to name in the litigation a party other than Menifee and
Applicant as a party in the litigation and that the party other than Menifee and Applicant is a Real
Party in Interest, Necessary Party or Indispensable Party.
4. Notice. All notices and other communications required or permitted to be given
under this Agreement (a "Notice") shall be in writing and shall be (a) personally delivered by
courier or overnight delivery service or mailed, certified or registered mail, return receipt
requested, or (b) sent by electronic mail where expressly provided in this Agreement, but only if
either (i) the recipient of the Notice acknowledges receipt of such transmission by email or (ii) a
confirming copy of the Notice is sent by one of the methods set forth in clause (a), above, not later
than the first business day following transmission. Any Notice shall be sent, transmitted or
delivered, as applicable, to the applicable Party at the following addresses:
If to the Applicant:
Minor Ranch, LLP
3200 Park Center Drive #1000
Costa Mesa, CA 92626
Attention: Dave Bartlett
Electronic Mail: dave.bartlett@brookfieldpropertiesdevelopment.com
with a copy to:
Rutan & Tucker, LLP
18757 Jamboree Road, 9th Floor
Irvine, California 92612
Attention: John A. Ramirez, Esq.
Electronic Mail: jramirez@rutan.com
If to the City of Menifee:
City of Menifee
29844 Haun Road
Menifee, California 92586
Attention: Mr. Armando G. Villa, City Manager
Electronic Mail: citymanager@cityofmenifee.us
with a copy to:
Rutan & Tucker, LLP
18757 Jamboree Road, 9th Floor
Irvine, California 92612
Attention: Jeffrey T. Melching, Esq.
Electronic Mail: jmelching@rutan.com
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If to the City of Perris:
City of Perris
101 North D Street
Perris, California 92570
Attention: Ms. Clara Miramontes, City Manager
Electronic Mail: cmiramontes@cityofperris.org
with a copy to:
Aleshire & Wynder, LLP
3880 Lemon Street, Suite 520
Riverside, California 92501
Attention: Robert Khuu, Esq.
Electronic Mail: rkhuu@awattorneys.com
Personally and courier delivered Notices shall be deemed given upon actual personal delivery
to designated address of the intended recipient. Mailed Notices shall be deemed given upon the
date of actual receipt as evidenced by the return receipt. Electronically mailed Notices shall be
deemed given upon the date the email is transmitted if transmitted without indication of delivery
failure prior to 5:00 p.m. local time for the recipient (and if transmitted without indication of
delivery failure after 5:00 p.m. local time for the recipient, then delivery will be deemed duly
given at 9:00 a.m. local time for the recipient on the subsequent business day). Any address for
notice may be changed from time to time by written notice to the other Party.
5. Miscellaneous.
5.1 Governing Law. This Agreement is made and entered into in the State of
California, and the rights and obligations of the Parties shall in all respects be construed and
enforced in accordance with, and governed by, the laws of the State of California.
5.2 Integration. It is expressly understood and agreed that this Agreement
contains the entire agreement and understanding of the Parties concerning the specific subject
matter of this Agreement, and merges, supersedes and replaces all prior discussions,
understandings, negotiations, agreements, representations, conditions, warranties, covenants and
all other communications between the Parties, whether written or oral, relating to such subject
matter; provided, however, that nothing in this Agreement shall affect the agreements and
understandings of the Parties with respect to the negotiations concerning the Settlement
Documents, except to the extent such negotiations relate specifically to the tolling arrangement and
covenants set forth in this Agreement.
5.3 Waiver. No provision herein may be waived unless in writing and signed by
the Party or Parties whose rights are thereby waived. Waiver of any one provision herein shall not
be deemed to be a waiver of any other provision herein. This Agreement may be modified or
amended only by written agreement executed by all of the Parties.
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5.4 Binding Effect. This Agreement shall bind, and shall inure to the benefit of,
the Parties and their respective successors and assigns.
5.5 No Third Parties Benefited. Nothing in this Agreement, express or implied,
is intended to confer upon any person or entity, other than the Applicant, Perris, and Menifee and
their respective successors and assigns, any rights or benefits under or by reason of this Agreement.
This Agreement is for the sole benefit of the Applicant, Perris, and Menifee.
5.6 Preparation of Document. Each Party has cooperated in the drafting and
preparation of this Agreement and, accordingly, the normal rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not be employed in the interpretation
of this Agreement.
5.7 Attorneys' Fees. In the event that any litigation shall be commenced
concerning this Agreement or any Party's alleged breach of this Agreement, the prevailing party in
such litigation shall be entitled to recover, in addition to such other relief as may be granted, its
reasonable costs and expenses, including without limitation attorneys' fees and court costs, whether
or not taxable, as awarded by a court of competent jurisdiction.
5.8 No Admission. Neither the execution of this Agreement nor any of the
provisions herein shall operate in any way as an admission of fact, liability or responsibility by
any Party in any way regarding the subject matter of this Agreement; provided, however, that the
foregoing restriction on admissions of fact shall not apply with respect to (a) any legal action to
enforce the terms of this Agreement or (b) Perris’ response or defense to any claim by the Applicant
and/or Menifee that any Judicial Proceeding was not filed in a timely manner. In addition, this
Agreement may not be introduced into or be admissible in any judicial proceeding other than (c)
a judicial proceeding to enforce the terms of this Agreement or (d) a Judicial Proceeding in which
the Applicant and/or Menifee alleges that such Judicial Proceeding was not filed in a timely
manner.
5.9 Authorization. Each person who executes this Agreement on behalf of a
Party represents and warrants to the other Party that he or she has the authority to do so, and agrees
to indemnify, defend and hold harmless the other Party from any claims that such authority did not
exist.
5.10 Time of Essence. Time is of the essence with respect to the performance of
each of the covenants and agreements contained in this Agreement.
5.11 Computation of Time. In computing a time period described in this
Agreement, the date of the act or event shall not be counted. Unless the context otherwise requires,
all periods terminating on a given day, period of days, or date shall terminate at 5:00 p.m. (Pacific
time) on such date or dates and references to "days" shall refer to calendar days except if such
references are to "business days " which means days that are not Saturday Sunday or a holiday
on which the U.S. Postal Service does not deliver regular mail.
5.12 Section Headings. The section headings contained in this Agreement
are for convenience and identification only and shall not be deemed to limit or define the
contents of the section to which they relate.
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