HomeMy WebLinkAboutAgr 2013-05-31 (Stuart and Gina Peterson)TOLLING AGREEMENT
This Tolling Agreement ( "Agreement ") is effective as of May 31, 2013 (the
"Effective Date ") and is entered into by and between the Town of Tiburon ("Town"), be and
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Stuart and Gina Peterson (collectively "Peterson"). The Town and Peterson y
referred to herein as the "Parties."
RECITALS
WHEREAS,
A. On June 23, 2010, the Town issued a building permit to the owners of 110
Gilmartin Drive ( "Building Permit "). The Building Permit authorized the
construction of a new single family dwelling and other improvements ( "Project ").
The Building Permit required all construction to be complete by December 23,
2011.
B. Chapter 13 of the Town's Municipal Code ("Building Code „) authorizes
extensions after the expiration of a building permit. The Town has granted three
extensions of the Building Permit, all as provided by Chapter 13 of the Town's
Municipal Code ( "Building Code "). The third extension will expire on June 23,
2013. The Parties do not expect the Project to be completed by that date.
Peterson estimates that the Project will be completed on or before December 23,
2014.
C. Pursuant to the Building Code, any further extensions must be approved by the
Town Council, subject to reactivation charges of five times the original building
permit fee. The Town Council has discretion to reduce that fee for such reasons
as the closeness of the Project to completion or the reasons for the delay.
D. On May 1, 2013, the Town Council heard the Peterson's application for further
extension of the Building Permit. After hearing public testimony, including a
presentation from Peterson and his representatives, the Council adopted
Resolution No. 14 -2013 ( "Resolution"), which granted extensions of the Building
Permit for up to December 23, 2014, a total of 18 months. The Resolution also
establishes reactivation charges for these extensions that, in total, are less than
the- total aggregate charges would have been if the Town had imposed charges
of five times the permit fee for each six - month period.
E. A dispute ( "Dispute") has arisen between Peterson and the Town in that
Peterson asserts that the Resolution's reactivation charges constitute excessive
fines and fees and the Town asserts that said charges are appropriate,
consistent with applicable law and lie fully within the Town's police power.
WHEREAS, the Parties deem it to be in their mutual benefit that the Petersons'
claims against the Town not be asserted in litigation at the present time;
WHEREAS, the Parties desire to encourage resolution and/or such further review
or disposition of the Dispute as may result in no lawsuit or claim being filed and are
w illin g to make the stipulations, covenants and agreements hereinafter set forth in order
to defer and postpone the commencement of litigation;
WHEREAS, the Parties desire that for the period of this Agreement, they should
be able to consider issues relating to the possibility of settling the Dispute without
regard to the time constraints that exist because of any future expiration of any
applicable statute of limitations;
AGREEMENT
NOW, THEREFORE, in consideration of the mutual agreements contained
herein, and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties do hereby covenant and agree as follows:
1. The running of any and all statute of limitations that had not previously
expired prior to the Effective Date and that are or would be applicable to any claim,
the ,
demand, debt, liability, obligation, cause of action, proceeding or suit arising out o
Town's adoption of Resolution No. 04 -2013 are hereby tolled until June 13, 2013
( "Expiration Date ").
2. The time between the Effective Date through and including June 13, 2013,
shall not be .computed or included in calculating any statute of limitations for any claim
relating to the Dispute. The phrase "statute of limitations as used herein includes all
statutes of limitation or repose, equitable defenses of waiver, estoppel or laches, and
any other claims, defenses or theories based upon the lapse of time and time related
bars.
3. Nothing contained in this Agreement shall be construed as an admission of
liability.
4. This Agreement contains the entire understanding and agreement between
the Parties with respect to the tolling referred to herein. No other representations,
covenants, undertakings or other prior or contemporaneous agreements, oral or written,
respecting that tolling, which are not specifically incorporated herein, may be deemed in
any way to exist or to bind any of the parties. Each party acknowledges that it has not
executed this Agreement in reliance on any such promise, representation or warranty.
5. This Agreement may be extended by the Parties only through a further writing
signed by authorized representatives of all Parties.
6. The Parties have jointly drafted this Tolling Agreement. Hence, the Parties
agree that the terms of this Agreement shall not be interpreted against or in favor of any
party on the ground that any party participated in the drafting of this Agreement.
7. The Parties represent that the person executing this Agreement on behalf of
said party is duly authorized to enter into this Agreement on its or his or her behalf.
8. The Parties acknowledge that each of them has had the benefit of counsel of
their choice and has been offered an opportunity to review this Agreement with chosen
counsel.
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9. This Agreement may be executed in multiple counterparts, electronic or
otherwise, each of which shall be deemed an original, and all of which shall constitute a
single Agreement.
Dated: June, 2013 Town of Tiburon
ter: .,.... ........... ...«..
Bv: ( -- -
Ann R. Danforth
Town Attorney
Dated: June 12013 Stuart and Gina Peterson
By:
Riley F. Hurd III
Attorney for the Petersons
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