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HomeMy WebLinkAboutAgr 2015-10-15 (Joan and Ray White)TOLLING AGREEMENT This Tolling Agreement ("Agreement") is entered into by the Town of Tiburon ("Town") and Joan and Ray White (collectively, the "Whites"). The Town and the Whites are collectively referred to herein as the "Parties". RECITALS A. WHEREAS, the Whites are the owners of the parcel known as 2150 Paradise Road ("Property"); and B. WHEREAS, in 2010 a drainage system was installed upslope from 2150 Paradise Road to divert surface water flowing over Paradise Drive to an enclosed system under the road ("Project"); and C. WHEREAS, the Whites contend that the Project has caused damages to their Property; and D. WHEREAS, on May 21, 2015 the Whites submitted a claim for damages to the Town ("Claim"); and E. WHEREAS, on August 18, 2015, the Town issued its notice of rejection of the Claim; and F. WHEREAS, the Parties are engaged in settlement discussions and desire to toll the running of any statute of limitations and any other time -related defense from the date of this Agreement with respect to any rights, claims, causes of action, counterclaims, cross-claims, and defenses that any Party may have against the other Party arising out of the Project (collectively, the "Claims"). AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants and conditions set forth herein, the Parties hereto agree as follows: 1. Tolling of Claims. The Parties agree to toll any statute of limitations and any other time -related defense, if any, applicable to the Claims for a period of time commencing on the Effective Date of this Agreement as provided by Paragraph 16 and continuing until this Agreement is terminated by one of the Parties as provided in Paragraph 2 (Withdrawal from the Agreement) below (the "Tolling Period"). 1.1 The Tolling Period shall apply equally to all Claims arising during the term of this Agreement. 1.2 The Parties agree that the Tolling Period shall be excluded from all computations of any statute of limitations applicable to the Claims. The OAK #4846-1859-8183 vi 1 Parties agree that each shall not plead, assert, or otherwise raise any statute of limitations or any other time -related defense applicable to the Claims, to the extent the Claims are tolled by this Agreement, as a bar to, or other limitation on, any Claims. 1.3 This Agreement shall not constitute a waiver or release of any defense of the Town or the Whites based on the running of time under an applicable statute of limitations or by way of estoppel, laches, or other time -related defense that arose, accrued, or would have barred any claim relating to the subject matter of this Agreement prior to the Effective Date, or which, in conjunction with other time periods not affected by this Agreement, would have or will bar such claims. Furthermore, by this Agreement, neither the Town nor the Whites waive any right, position, defense, or objection to any claims related to the subject matter of this Agreement other than as expressly provided herein. Nothing in this Agreement shall limit or otherwise affect any defense available to a Party (a) as of the end of the day immediately preceding the start of the Tolling Period, (b) in any litigation brought by the other Party to this Agreement not involving the Project, and/or (c) in any litigation brought by any other person or entity that is not a Party to this Agreement. 1.4 This Agreement constitutes a valid and effective written agreement to toll pursuant to Section 360.5 of the California Code of Civil Procedure. 2. Withdrawal from the Agreement. Any Party may, upon written notice to the other Parties, sent by certified mail return receipt requested and properly addressed to the business offices of the other Party, and also sent by electronic mail, elect to withdraw from this Agreement. Such withdrawal may occur irrespective of the consent of any other Party. The Tolling Period shall terminate thirty (30) days following receipt of the notice of withdrawal by mail or electronic mail, whichever date is earlier. 3. Alternative Dispute Resolution. Nothing in this Agreement prohibits the Parties from engaging voluntarily in informal alternative dispute resolution including, but not limited to, mediation. Any agreement by the Parties to engage in informal alternative dispute resolution during the terms of this Agreement does not affect the respective duties and obligations of the Parties. 4. No Waiver. This Agreement shall not constitute a waiver or release of any defenses of either Party based on the running of time under an applicable statute of limitations or other time -related defense that arose, accrued, or would have barred any Claims prior to the Effective Date. Furthermore, by this Agreement, the Parties do not waive their rights to assert any other position, defense, or objection to any Claims other than as expressly provided herein. 5. No Admission. Neither the execution of this Agreement nor anything contained in it is intended to be, nor shall be deemed to be, an admission of any nature by either party including, but not limited to, an admission of any liability or an admission of the existence of facts upon which liability could be bad. 6. interpretation. This Agreement shall not be construed against any party preparing it, but shall be construed as if both parties jointly prepared the OAK #4846-1859-8183 vl 2 Agreement. Any uncertainty or ambiguity shall not be interpreted against any one party. 7. Notices. Any notice, request, demand, consent, approval or other communication required or permitted hereunder or by law shall be deemed given or made only if in writing and deposited in the United States mail, postage prepaid and addressed to the party for whom intended, addressed as follows, or to such other address as may, from, time to time, be designated by written notice to the other Parties and notice must also be sent by electronic mail: To Town: To Whites: Town of Tiburon Attn: Benjamin Stock, Town Attorney 1505 Tiburon Blvd. Tiburon, California 94920 bstock@bwslaw.com Elizabeth Brekhus 1000 Drakes Landing Road Greenbrae, CA 94904-3027 elizabethb@brekhus.com 8. Governing Law. This Agreement shall be governed by and construed under the laws of the State of California. 9. Counterparts and Execution. This Agreement may be executed in one or more counterparts, each of which shall be deemed in original, but all of which together shall constitute one and the same agreement. The Parties agree that the Agreement may be executed and transmitted by electronic mail and that such execution and transmission shall have the same force and effect as an original. 10. Breach: The Parties understand and agree that no breach of any provision or provisions of this Agreement can be waived unless done so expressly in writing. A waiver of one breach shall not be deemed a waiver of any other breach of the same or any other provision of this Agreement. 11. Severability. If any provision of this Agreement is determined to be unenforceable for any reason, it shall be adjusted rather than voided, if possible, in order to achieve the intent of the Parties. The remaining provisions shall be deemed valid and enforceable to the maximum extent possible. 12. Authority. Each of the undersigned represents and warrants that he/she has the authority to bind the Party on behalf of whom he/she signs and that the other Parties hereto are entitled to rely upon such representation for all legal purposes. 13. Parties Covered. This Agreement shall be signed by the Parties and shall inure to the benefit of the Parties' successors and assigns. 14. Amendments and Modifications. This Agreement may be altered, amended, or modified only by a written agreement signed by the Parties to this Agreement. 15. Entire Agreement. This Agreement constitutes the entire understanding between the Parties hereto with respect to the subject matter set forth herein, and supersedes any and all prior or other contemporaneous understandings, OAK #4845-1859.8183 vl 3 correspondence, negotiations, or agreements, written or oral, between them regarding the subject matter of this Agreement. 16. Effective Date. This Agreement shall become effective ("Effective Date") as of the date it is signed by the last Party to sign. IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as of the dates written below. (0//S— DATE: September _, 2015 / 04 DATE: Septeme , 2015 • By: Benjamin Stock, Town Attorney TOWN OF TIBURON By: /1X -P.1-44 r---- Margare). Curran, Town Manager JOAN AND RAY WHITE (--- DATE: September , 2015 By: icy /fs"- DATE: September , 2015 By: OAK 144845-1859.8183 vi 4 Joan Whit Elizabeth Brekhus