Travelers-La Quinta Developers/Tolling Agreement 12TOLLING AGREEMENT
This Tolling Agreement is made and entered into this 24cw day of September, 2012
("Effective Date"), by and between the City of La Quinta ("City") and Travelers Casualty &
Travelers Company of America ("Travelers"), collectively referred to herein as the "Parties."
WHEREAS, the City entered into Subdivision Improvement Agreements ("SIAs") with
La Quinta Developers, LLC/La Quinta, LLC (the "Developer") for the on -site and off -site
improvements for the subdivision project known as Tract Map No. 30138 in the City of La
Quinta, commonly known as the Diamante project ("Project").
WHEREAS, the Developer obtained Performance Bond Nos. 104405305 and 104405304
issued by Travelers (the "Bonds") in satisfaction of the bonding requirements contained in the
SIAs; and
WHEREAS, the City has declared the Developer to be in default on the terms of the
SIAs, and alleges that there remains both on -site and off -site work to be performed on the
Project; and
WHEREAS, the City has made demand on Performance Bond Nos. 104405305 and
104405304 as of December 5, 2011; and
WHEREAS, a dispute has arisen between the City and Travelers as to Travelers'
performance on the Bonds; and
WHEREAS, the parties are discussing settlement of this matter and wish to toll the
applicable statute of limitations for the filing of litigation to enforce the Bonds.
NOW, THEREFORE, in consideration of the promises, covenants, representations, and
considerations herein expressed, and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Parties agree as follows:
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4302250.3 a09/24/12 -1-
1. Future Action Defined. "Future Action" refers to any action, lawsuit, litigation,
arbitration or claim brought by any Party against another Party relating to and/or arising out of or
related to the Bonds or Project.
2. Tolling of Limitations by Travelers and the Ciri.With respect to all defenses or
potential defenses, claims or potential claims that the City could assert against Travelers, or
which Travelers could assert against the City arising out of and/or relating to the Bonds, the SIA,
or the Project, the statute of limitations, including all statutory, regulatory and/or contractual
claims periods, shall be tolled, beginning as of the date of this Agreement and ending as of
November 30, 2012. The City and Travelers agree not to (i) include the period of time described
in this paragraph in any assertion of the applicable statute of limitations defense and/or any other
defense based upon any statutory and/or contractual limitations period in any Future Action or
(ii) shorten any limitation period that might survive beyond the tolling of limitations as set forth
in this Agreement. Nothing herein is intended to revive any limitation period that has already
expired.
3. No Admission of Liability. This Agreement is not intended to be, and shall not be
construed as, an admission by any party against any other party that the other party has valid
claims or defenses.
4. No Destruction of Evidence. No party shall destroy, or cause to be destroyed, any
documents or tangible things in the possession, custody or control of that Party that refer or
relate to the Bond or the Project during the term of this Agreement, and for a period of at least
six (6) months following the termination of the Agreement, and for a period of at least six (6)
months following the termination of the Agreement, and for the duration of any legal action that
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4302250.3 a0924/12 _2
may be commenced in connection with the subject of this Agreement, through the exhaustion of
all appeals.
5. Termination of Agreement. Either party may terminate this Agreement by giving
30 days written notice of termination.
6. Notice For the purpose of this Agreement, and in particular with regard to
termination, "Notice" means a written and signed document that expressly and unambiguously
conveys the intention of its drafter to terminate this Agreement. Notice shall be effective upon
receipt and any document shall be deemed received not later than three (3) days after the sender
transmits it by one or more of the following means: (1) overnight courier service such as Federal
Express, (2) personal delivery, or (3) facsimile transmission. Notices shall be given to the
persons at the addresses described below unless changed in writing by giving notice as described
herein.
If given to Travelers:
Travelers Casualty & Travelers Company of America
33650 6th Ave. South, Suite 200
Federal Way, WA 98003
Attn: Sam Barker, Senior Claims Counsel
With a copy to:
Watt, Tieder, Hoffar & Fitzgerald, L.L.P.
2040 Main Street, Suite 300
Irvine, CA 92614
Attn: Rebecca Glos
If given to City:
City of La Quinta
18-495 Calle Tampico
La Quinta, CA 92253
Attn: Frank J. Spevacek, City Manager
119/015610-0006 _
4302250.3 a09/24/12 _3
" . I.
With a copy to:
M. Katherine Jenson, Esq.
Rutan & Tucker, LLP
611 Anton Blvd., Suite 1400
Costa Mesa, CA 92626
7. Successors and Assigns. This Agreement shall inure to the benefit of, and be
binding upon, the Parties to this Agreement and their successors and assigns.
8. No Third Parties. This Agreement is solely for the benefit of the Parties signing
the Agreement and does not create, expressly or impliedly, any rights or benefits for any third
parties or persons or entities that are not express signatories to this Agreement. Only Travelers
and the City can rely upon the terms of this Agreement.
9. Counterparts. This Agreement may be executed in any number of counterparts
with the same effect as if all the Parties to this Agreement had all signed the same document. All
counterparts to this Agreement shall be construed together and shall constitute one agreement.
Electronic transmissions of signature are valid as original signatures.
10. Authority. Each individual executing this Agreement on behalf of a party
represents and warrants that he or she has the authority to enter into this Agreement on behalf of
the party to this Agreement and that each signature that appears below binds the party, including
its representatives, officers, directors, agents, and attorneys.
11. Drafting. This Agreement has been negotiated and the Parties have cooperated in
the drafting and preparation of this Agreement. It shall not be construed against any of the
Parties in the event of ambiguity, and to the extent any one provision of this Agreement is found
unenforceable, only that provision shall be affected and all other provisions shall remain in full
force and effect.
119/015610-0006 _
4302250.3 a09/24/12
IN WITNESS WHEREOF the Parties have executed this Tolling Agreement effective as
of the date specified above.
Dated: SeptemberZ4, 2012
ATTE'S,T::
`5Vv4�vv •lam
Susan Maysels, City Clerk
APPROVED AS TO FORM:
Dated: September 2012
Dated: September _ 2012
APPROVED AS TO FORM:
Dated: September_, 2012
CITY OF LA QUINTA
RUTAN & TUCKER, LLP
. SIGNED IN COUNTERPART
By:
M. Katherine Jenson, City Attorney
TRAVELERS CASUALTY & TRAVELERS
COMPANY OF AMERICA
LE
Senior Claims Counsel
WATT, TIEDER, HOFFAR & FITZGERALD,
L.L.P.
By:
Rebecca S. Glos
119/015610-0006
4302250.3 a0924/12
-5-
IN WITNESS WHEREOF the Parties have executed this Tolling Agreement effective as
of the date specified above.
Dated: September 2012 CITY OF LA QUINTA
9.K1N D W COUNTERPART
ATTEST: By:
SHMM IN COUNTERPART Frank J, Spevacek
City Manager
'Susan Maysels, City Clerk
APPROVED AS TO FORM:
Dated: September c2-, 2012 RUTAN TUCKER, LLP
Dated: September 2012 TRAVELERS CASUALTY & TRAVELERS
COMPANY OF AMERICA
SI(NVED IN OOUNTERPART
Senior Claims Counsel
APPROVED AS TO FORM:
Dated: September _ 2012 WATT, TIEDER, HOFFAR & FITZGERALD,
L.L.P.
IN WITNESS WHEREOF -the Parties have executed this Tolling Agreement effective as
of the date specified above.
Dated: September - 2012
i
CITY OF LA QUINTTA
ATTEST:
Susan Maysels, City' Clerk
O v ek
City anage
APPROVED AS TO FORM: .
Dated: September _, 2012
RUTAN & TUCKER, LLP
SIGNED IN COUNTERPlX,L.:: '
By:
M. Katherine Jenson, City Attorney
Dated: September 1, 2012
TRAVELERS CASUALTY & TRAVELERS
COMPANY OF AMERICA
By:
Senior Claims Counsel
APPROVED AS TO -FORM:
Dated: September m.2012
WATX.,DER, HOFrAR FITZOERALD,
L.
S
Rebecca S. Olos
. 11910156104M
4302250.3 AM413
i
IN WITNESS WHEREOF.the Parties have executed this Tolling Agreement effective as
of the date specified above.
Dated: September 2-4, 2012 CITY OF LA QUINTA
v
ATTEST:
rank v ek
sm4o�. Y'�/l(� ' City anage
Susan Maysels, City Clerk -
- -- APPROVED AS TO FORM: —— — -- -- —
Dated: September . 2012 RUTAN & TUCKER, LLP
5KWM IN COUNTERPART
By:
M. Katherine Jenson, City Attorney
Dated: September 2q, 2012
. APPROVED AS TO FORM:
Dated: September ..2012
TRAVELERS CASUALTY & TRAVELERS
COMPANN,Y,, OF AMERICA
By:
Senior Claims Counsel
WATT, TIEDER, HOFFAR & FITZGERALD,
By:
Rebecca S. Glos