HomeMy WebLinkAboutCA Tolling Agreement 2021im
TOLLING AGREEMENT
This TOLLING AGREEMENT ("Agreement") is made by and between SAN RAFAEL CITY
SCHOOLS, a California public school district ("District"), and the CITY OF SAN RAFAEL, a
municipal corporation ("City"), for the purpose of tolling all statutes of limitations,
Government Code claims presentation requirements, and related time -based defenses that
are or may be running as of March 1, 2021 ("Tolling Date"), with respect to various Claims
(as defined below) that District and/or City have or may have against each other. District
and City may be referred to herein individually or collectively as "Party" or "Parties."
WHEREAS, the District's San Rafael High School property is located at 150 Third Street
in San Rafael ("High School Property"); and
WHEREAS, the District claims that City improvements and approval of development to
the properties situated above the High School Property has led to excess runoff overburdening
the District's existing storm drain system and causing flooding on and damage to the High
School Property; and
WHEREAS, the District has demanded payment from City for the costs required to
investigate, analyze, and increase the capacity of the District's existing storm drain system
as well as remediation costs to address property damage claimed to result from City
improvements and approval of development to the properties situated above the High School
Property; and
WHEREAS, the Parties agree that it is in their best interests to resolve any differences
or disputes without resorting to litigation, if possible; and
WHEREAS, in order to facilitate the meaningful examination, discussion, and potential
resolution of any Claims between the Parties, and in an attempt to avoid immediate and
potentially unnecessary litigation, the Parties desire to enter into this Agreement for the
purpose of tolling all statutes of limitations and related time -based defenses as set forth
herein.
NOW, THEREFORE, in consideration of the promises and covenants contained herein,
the Parties agree as follows:
1. Definitions.
a. "Claim" or "Claims" shall mean any and all claims, charges, causes of action,
complaints, liabilities, obligations, rights, duties, losses, damages, injuries, attorneys' fees
and costs, defenses, or rights to indemnity, contribution, set off, refund, interest, and/or any
other legal responsibilities of any form whatsoever, which the Parties have, may have had,
have had, or presently claim to have, known or unknown, based upon, arising out of, or
related to any and all duties, acts, and/or omissions with respect to City improvements of
streets, sidewalks and paved surfaces above the High School Property, including, without
limitation, the City's design, improvement of, acceptance of, and connection of City drain
inlets into the District's existing storm drain system, excess runoff that overburdens the
District's existing storm drain system, property destruction and damage caused by
accumulation of excess waters on the High School Property, and/or the City's coordination
with the District, or lack thereof, on storm water management within the existing
infrastructure at the High School Property, and/or remediation plans and engineering,
construction or other costs associated with drainage remediation improvement required at
TOLLING AGREEMENT (SAN RAFAEL CITY SCHOOLS AND CITY OF SAN RAFAEL)
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the High School Property. The Parties intend for Claims to be construed broadly to effectuate
the purposes of this Agreement.
2. Tollinn of Ratutes of Limitations.
a. As of the Tolling Date, for a period of six (6) months, unless earlier terminated
pursuant to Section 3 ("Tolling Period"), the Parties agree to toll all. applicable statutes of
limitations, statutes of repose, timely action or notice, Government Code claim presentation
requirements, or any other applicable time -related defenses, limitations, or deadlines
provided by law or in equity, however defined or denominated, whether statutory, contractual,
equitable, or otherwise, for any and all Claims. The tolling provided by this Agreement shall
be in addition to any statutory, common law, or equitable tolling that may be applicable to
the Claims. The tolling provided by this Agreement is intended to be construed broadly.
b. Additionally, in any subsequent litigation between the Parties upon any of the
Claims subject to this Agreement, the Parties will not assert, and hereby affirmatively waive
any defense alleging prejudice, laches, estoppel, acquiescence, waiver, and/or any other
defense to the extent premised upon delay in bringing an action as a result of this Agreement
being in effect for the Tolling Period,
3. Termination. Any Party to this Agreement may terminate this Agreement at
any time and for any reason upon sixty (60) days` advance written notice to the other Party,
provided that no such notice may be served earlier than one hundred -eighty (90) days after
the Tolling Date,
4. No _Admission of Liability. Nothing stated herein is intended or shall be
construed as an admission of liability, wrongdoing, or fault by any Party. Nothing stated
herein shall be construed as a waiver of any right to file any action against any Party, or to
initiate any proceedings as necessary to protect and preserve any and all Claims. This
Agreement does not constitute an admission by either of the Parties of the existence of any
fact, claim, cause of action, or defense.
5. Code of Civil Procedure Section 360.5 Waiver, The Parties agree that this
Agreement constitutes a proper written waiver authorized by California Code of Civil
Procedure section 360.5.
TOLLING AGREEMENT (SAN RAFAEL CITY SCHOOLS AND CITY OF SAN RAFAEL)
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6. ibtices. Notices required under this Agreement, or otherwise, shall be given
to the Parties by First Class U.S. Mail and by electronic mail transmission as follows:
To District San Rafael City Schools
c/o Dannis Woliver Kelley
Attn: Clarissa R. Canady, Esq.
268 Bush Street, Suite 3234
San Francisco, CA 94104
ccandy DWKesn.com
To City: City of San Rafael
c/o MCNAMARA, NEY, BEATTY, SLATTERY,
BORGES & AMBACHER, LLP
Attn: Martin J. Ambacher, Esq.
3480 Buskirk Avenue, Suite 250
Pleasant Hill, CA 94523
Martin.Anibacher0c cnamaslaw.r_om
7. Representation b Counsel. Each Party to this Agreement affirms and
acknowledges that it has read and fully understands the words, terms, conditions, and
provisions of this Agreement, is fully and entirely satisfied with the same, and has consulted
with legal counsel of its choice prior to the execution of this Agreement.
8. Joint Preparation of A reernent. This Agreement or any uncertainty or
ambiguity herein shall not be construed against any of the Parties but shall be construed as
if all the Parties jointly prepared this Agreement. The Parties, and each of them, expressly
waive the provisions of California Civil Code section 1654.
9. Authority, The Parties each represent and warrant to each other that each has
full power and authority to enter into this Agreement and acknowledge and agree that these
representations and warranties are essential and material terms of this Agreement.
10. Entire Agreement. This Agreement constitutes the entire agreement of the
Parties with respect to the matters herein set forth, and supersedes all prior discussions,
negotiations, and agreements, whether written or oral. The terms of this Agreement inure to
the benefit of and bind the Parties, their successors, administrators, and assigns, and may
not be altered, amended, modified or otherwise changed in any manner except by a written
instrument executed by both Parties.
11. Terms ContractUal. The terms of this Agreement are contractual in nature.
The headings are for convenience only and do not limit the described paragraph in any
manner.
12. Partial Invalidity. If any provision or any part of any provision of this
Agreement shall for any reason be held to be invalid, unenforceable, or contrary to public
policy or any law, the invalidity of that provision or part of that provision of this Agreement
shall not affect the enforceability of the remainder of this Agreement.
13. Governing Law. This Agreement shall be construed in accordance with, and
governed by, the laws of the State of California, without application of choice of law rules.
TOLLING AGREEMENT (SAN RAFAEL CITY SCHOOLS AND CITY OF SAN RAFAEL)
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14. Counterparts, This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall constitute one and
the same instrument. The Parties agree that the signatures on this Agreement may be
exchanged electronically and that the original signature pages will be exchanged by U.S. Mail.
SO AGREED:
San Rafael City Schools, a California
public nscol district
By: — ��_f
]i ogeboom,
S rintendent
p t
Date: /'
Approved as to form:
Clarissa R. Canady, Esq.
DANNIS WOLIVER KELLEY
Attorneys for San Rafael City Schools
Date: April 29, 2021
City of San Rafael, a municipal
corporation {
Signature:`
— - -....
Print Name: dim $ch�I _
Title: Ci_Ly-Manag.er - .-
Date: `� - i _r - 2 -
Approved
Approved as to form:
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Martin I Ambacher, Esq.
MCNAMARA, NEY, BEATTY, SLATTERY,
BORGES & AMBACHER LLP
Attorneys for City of San Rafael
Date: April 21, 2021
TOLLING AGREEMENT (SAN RAFAEL CITY SCHOOLS AND CITY OF SAN RAFAEL)
DWK DMS 3678527v1
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WITH p�4h
CONTRACT ROUTING FORM
INSTRUCTIONS: Use this cover sheet to circulate all contracts for review and approval in the order shown below.
TO BE COMPLETED BY INITIATING DEPARTMENT PROJECT MANAGER:
Contracting Department: City Attorney
Project Manager: Rob Epstein Extension: 3080
Contractor Name: McNamara, Ney, Beatty, Slattery, Borges & Ambacher, LLP — Tolling Agreement between San Rafael
City Schools and City of San Rafael, Claim # 3-1-3391 (PW)
Contractor's Contact: Martin J. Ambacher, Esq. Contact's Email: Martin.Ambacher@mcnamaralaw.com
❑ FPPC: Check if Contractor/Consultant must file Form 700
Step
RESPONSIBLE
DESCRIPTION
COMPLETED
REVIEWER
DEPARTMENT
DATE
n/a
Check/Initial
1
Project Manager
a. Email PINS Introductory Notice to Contractor
b. Email contract (in Word) and attachments to City
City Attorney
Attorney c/o Laraine.Gittens@cityofsanrafael.org
a. Review, revise, and comment on draft agreement
2
Click here to
and return to Project Manager
enter a date.
11
b. Confirm insurance requirements, create Job on
PINS, send PINS insurance notice to contractor
�]
3
Department Director
Approval of final agreement form to send to
❑
contractor
4
Project Manager
Forward three (3) originals of final agreement to
❑
contractor for their signature
5
Project Manager
When necessary, contractor -signed agreement
X❑ N/A
agendized for City Council approval *
*City Council approval required for Professional Services
Agreements and purchases of goods and services that exceed
Or
$75,000; and for Public Works Contracts that exceed $175,000
Click here to
PRINT
Project Manager
Date of City Council approval
enter a date.
CONTINUE ROUTING PROCESS WITH HARD COPY
6
Forward signed original agreements to City
City Attorney
Attorney with printed copy of this routing form_
7
Review and approve hard copy of signed
agreement
8
City Attorney
Review and approve insurance in PINS, and bonds
(for Public Works Contracts)
9
City Manager/ Mayor
Agreement executed by City Council authorized
I�VN
official
10
City Clerk
Attest signatures, retains original agreement and
C�
r /q
forwards copies to Project Manager