Here is the Tolling Agreement for Forristall and some comments from Chad. Notice the good luck to the Ducks comment!
From: Chad Jacobs <Chad@gov-law.com>
Sent: Friday, October 19, 2018 3:34 PM
To: Dan Huff <dhuff@cityofmolalla.com>
Subject: RE: NW Polymers
ATTORNEY/CLIENT COMMUNICATION
PRIVILEGED AND CONFIDENTIAL
Dan,
A couple of issues. First, I believe the tolling was approved as it was executed by both parties. I think the lack of follow up was reaching a conclusion to the settlement discussions that had been taking place before the tolling agreement was signed. The only reason to review the tape from the Nov. 20 meeting would be to ensure the council in fact approved the tolling agreement since the council’s approval did not make it into the minutes. We do have a signed copy of the tolling agreement, however, and it would take a lot of effort and luck to get a court to agree that it was not binding because a former mayor signed it without authorization. If that’s a path we want to take, then we need to come up with some evidence that the former mayor signed it without legal authority to do so. Otherwise, I think it is binding on us.
I agree that the City did not make the best choices when entering into the dedication agreement in 2006. I wasn’t around then, so I can’t say why they did what they did – I assume they had their reasons. At this point we are stuck with it. Just like other “mistakes” that you have cleaned up, however, there is always a way out. We would simply need to have some discussions with them to see what it is they want/need to amend the agreement, and whether that is a better deal for us or not. Have they given us any indication of what they want? Have they made any demands under the 2006 agreement? What, if any, of our obligations from the 2006 agreement have been satisfied? All of this is relevant to how we would approach future discussions.
For what it’s worth, there is nothing in the 2006 agreement about SDC’s so I think we have a good argument that they are still on the hook for those (although the agreement says we will construct at our expense two pairs of water services to service the property, I think there is a strong argument that such construction costs do not include other fees, such as SDC’s. That might be a negotiating tool for us if needed.
Finally, I would not go down the path of the bond argument. The answer to that is we pay the fees on their behalf to satisfy any applicable bond requirements. I don’t see that getting us to a point where a court would say that term is invalid.
Happy to chat about this more – just let me know. Good luck to the Ducks this weekend – big game!
Best,
Chad
Dan Huff
City Manager
City of Molalla, Oregon
(503) 829-6855
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