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Home My WebLink About2012 CON Beauchamp Family Trust - Tolling AgreementTOLLING AGREEMENT This Tolling Agreement is executed this /? day of ,Tar, , 20,1'1 by and between for The Beauchamp Family Trust and AARB, LLC (together referred to as "Beauchamp") and the Community Development Commission of the City of National City ("CDC"). The CDC and Beauchamp are herein referred to collectively as the "Parties" and each as the "Party." RECITALS A. The Parties entered into agreements under which Beauchamp was to contribute to certain environmental costs. B. The City and Beauchamp each allege that each other have not performed and failed to meet the standards to which the Parties agreed. C. The City and Beauchamp each dispute each other's allegations and do not admit liability. E. The Parties acknowledge the existence of a dispute as to these issues but desire to resolve it without the need for litigation. To that end, the Parties enter into this Tolling Agreement with the intent to toll the statute of limitations period for any cause of action related to this dispute according to the provisions of this Tolling Agreement. The Parties intend to work together in good faith to resolve all underlying disputes as quickly as possible. AGREEMENT NOW, WHEREFORE, the Parties agree as follows: 1. The Parties agree not to initiate any court proceeding (an "Action") related to this dispute during the Tolling Period (as defined herein). 2. Tolling of Claims: For the purposes of computing the time period in which either Party may file an Action in any court against the other Party in connection with the dispute, the time period between November 22, 2011, the date the Tolling Agreement was conceptually agreed to, (the "Tolling Date") and such time as this Tolling Agreement is terminated pursuant to Paragraph 3 herein shall be known as the "Tolling Period" and shall be excluded from the calculation. In any Action which may be brought by one Party against another Party, a Party may not consider the Tolling Period in determining whether any statute of limitations or equitable defense bars such Action or remedy related thereto. Further, in any such Action, each Party agrees not to assert, plead, or raise in any fashion, whether by answer, motion, or otherwise, any defense or avoidance Tolling Agreement Between City/CDC and Beauchamp Page 1 of 4 based on the expiration or running of any statute of limitations that relies on the Tolling Period. 3. Termination: This Tolling Agreement shall continue in full force and effect until March 15, 2012 unless it is otherwise terminated or extended according to the provisions of this Tolling Agreement. a. Unilaterally: Either Party may terminate this Tolling Agreement unilaterally by providing written notice of such termination to the other Party as provided in Paragraph 4 herein. Such unilateral termination shall occur ten (10) days after such notice is sent. b. By Mutual Consent: The Parties may terminate this Tolling Agreement prior to its expiration, provided the termination is agreed to in writing by both Parties. Further, the Parties acknowledge that they may extend the termination date of this Tolling Agreement, provided that both Parties agree to any such extension in writing. 4. Notice: Any notices to be provided under this Tolling Agreement shall be provided to each Party by certified U.S. Mail and either email or facsimile as follows: If to CDC: Claudia Silva, Esq. City Attorney, City of National City 1243 National City Blvd. National City, CA 91950-4301 Telephone: (619) 336-4222 Facsimile: (619) 336-4327 Email: csilva@ci.national-city.ca.us If to Beauchamp: AND Richard G. Opper, Esq. 225 Broadway, Suite 1900 San Diego, CA 92101 Telephone: (619) 231-5858 Facsimile: (619) 231-5853 Email: ropper@envirolawyer.com Jim Beauchamp 327 W. 11th Street National City, CA 91950 Telephone: (619) 477-7700 Facsimile: (619) 477-8773 Email: jimnchp@beauch.net Tolling Agreement Between City/CDC and Beauchamp Page 2 of 4 5. No Admission of Liability: For purposes of any future litigation that may occur between the Parties, the Parties assert and acknowledge that the execution of this Tolling Agreement does not constitute an admission of any allegation related to the dispute between the Parties. Each Party agrees not to seek to use this Tolling Agreement against the other Party as evidence of liability, but the Parties acknowledge that it may be introduced for other purposes consistent with its terms. 6. Time: Time is of the essence with respect to all dates and actions governed by this Tolling Agreement. 7. Construction of Agreement: The Parties worked together to negotiate this Tolling Agreement. The rule that any ambiguity shall be construed against the author shall not apply to this Tolling Agreement. 8. Beneficiaries: This Tolling Agreement is binding upon and inures to the benefit of CDC and Beauchamp and each Parry's respective heirs, executors, administrators, personal representatives, successors, transferees, lessees and assigns. 9. Entire Agreement: This Tolling Agreement constitutes the Parties' entire agreement on this subject. There are no written or oral representations or understandings that are not fully expressed in this Tolling Agreement. No change, waiver, or discharge is valid unless in writing and signed by the Party against whom it is sought to be enforced. 10. Counterparts: This Tolling Agreement may be executed in counterparts. A copy of this Tolling Agreement bearing the original signature of some Parties and the photocopied signatures of other parties shall be enforceable in the same manner as a fully executed original document. 11. Enforceability: If any part of this Tolling Agreement is for any reason found to be unenforceable, all other portions nevertheless remain enforceable. 12. Waiver: The waiver of any breach of any term or condition of this Tolling Agreement does not waive any other breach of that term or condition or of any other term or condition. 13. Governing Law: This Tolling Agreement is governed by and will be construed, and its performance enforced, under California law, without regard for its choice of law principles. 14. Agreement Execution Authority: Each person executing this Toiling Agreement represents that the Party on whose behalf the person is executing this Tolling Agreement has duly authorized the execution of this Tolling Agreement and that such person is authorized to execute the Tolling Agreement on behalf of such Party. Tolling Agreement Between City/CDC and Beauchamp Page 3 of 4 IN WITNESS WHEREOF, the undersigned Parties have executed this Tolling Agreement as of the date first shown above. The Beauchamp Family Trust- , By: as ' ,- The Commission By: Its: Community Development a City f National City: (Si na ( gna ur Brad Raulston (Printed Name) Its: Trustee ju,,l (Printed Name) Exprutive, Di rrctnr (Title) (Title) AARB, LLC: By: ✓/cep (" nature) (Printed Name) Its: Agent fr. (Title) Tolling Agreement Between City/CDC and Beauchamp Page 4 of 4 OFFICE OF THE CITY CLERK 1243 National City Blvd. National City, California 91950 Michael R. Dalla, CMC - City Clerk 619-336-4228 phone / 619-336-4229 fax February 1, 2012 Mr. Jim Beauchamp 327 W. 11th Street National City, CA 91950 Dear Mr. Beauchamp, On January 13th, 2012, a Tolling Agreement was entered between the Community Development Commission of the City of National City and The Beauchamp Family Trust and AARB, LLC. We are enclosing for your records a fully executed original Agreement. Michael R. Dalla, CMC City Clerk Enclosure cc: Office of the City Attorney Richard G. Opper, Esq. CITY OF NATIONAL CITY OFFICE OF THE CITY ATTORNEY 1243 National City Boulevard, National City, CA 91950-4301 Claudia G. Silva • City Attorney Phone: (619) 336-4220 Fax: (619) 336-4327 TDD: (619) 336-1615 E-mail: Attorney@nationalcityca.gov TO: City Clerk FROM: Ginny Miller, Legal Assist SUBJECT: Tolling Agreement DATE: January 30, 2012 Attached please find two original, full -executed Tolling Agreements between the CDC and The Beauchamp Family Trust for processing. Thank you. Attachments