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Home My WebLink AboutA3481 - MCWETHY PALM MOUNTAIN TOLLING AGR William H. McWethy, Jr. � The Palm Mountain Company . Tolling Agreement AGREEMENT #3481 Council Motion, 2-1-95 TOLLING AGREEMENT IT IS HEREBY STIPULATED AND AGREED between the following parties, constituting the parties to that certain action commonly known as: Willam H. McWethy, Jr. v. The City of Palm Springs, et al., pending in Riverside Superior Court, Palm Springs Branch, No. I-69860 ("the Action"): (a) THE CITY OF PALM SPRINGS ("PALM SPRINGS"); ROB W. PARKINS; SONNY BONO and, EARL NEEL (all collectively referred to as "CITY OF PALM SPRINGS) and (b) WILLIAM H. MC WETHY; and, THE PALM MOUNTAIN COMPANY (collectively "MC WETHY"), with respect to the following facts: A. On or about June 15, 1993, MC WETHY filed a Complaint for Breach of Contract; Breach of the Covenant of Good Faith and Fair Dealing; Breach of Oral Contract; Fraudulent Inducement; Intentional Interference with Prospective Economic Advantage; and Conspiracy in the above-described action. B. Defendant PALM SPRINGS filed its answer to the Complaint on or about August 2, 1993. Defendants PARKINS, BONO, HODGES & NEEL filed their answer on or about August 13, 1993. C. The parties hereto, have determined that because of the allegations of MC WETHY, it would be in the best interests of all concerned to avoid or reduce protracted litigation, costs and expenses, and to encourage judicial economy and efficiency, that they not file any cross-complaints against each other and each party retain and preserve any claims or causes of action they may have against the other. NOW, THEREFORE, IT IS AGREED: Without admitting any liability or wrongdoing whatsoever, or waiving any claims, the parties hereto have agreed: 1. That neither MC WETHY or the CITY OF PALM SPRINGS will file a complaint or cross-complaint against the other in this action. 2. That due to pending settlement negotiations and the instant Tolling Agreement, MC WETHY will file a Dismissal of the Entire Action, Without Prejudice, Each Party to Bear Their Own Costs. K:I D MS I L EG.D1R 10094162.WP/D 1 3. That MC WETHY and THE CITY OF PALM SPRINGS hereby suspend, as of December 1, 1994, the running of any and all statutes of limitations with respect to any claim which either may have against the other arising from or included in the within action. All such statutes of limitation shall be tolled until the later of the following alternative events: a. The Action is dismissed, with prejudice, including all cross-complaints that will have any effect upon MC WETHY and/or THE CITY OF PALM SPRINGS; b. A fully executed settlement agreement is entered into, by and between all parties to this Tolling Agreement, settling all claims as to the parties hereto; In no event shall the statutes of limitations be tolled after December 1, 1996. At such time, any and all statutes of limitations for any and all claims either party may have against the other, shall commence to run. In effect, the running of the statute of limitations will be tolled during the period the Tolling Agreement remains in effect as to any and all causes of action, claims, demands or charges that any party hereto may or can assert against the other. 4. MC WETHY and THE CITY OF PALM SPRINGS understand that the December 1, 1994 date mentioned in Paragraph 2, above, does not necessarily mean that a statute of limitations had not expired at an earlier date; however, it is simply regarded as the effective date of this agreement at which time the statutes of limitations shall be regarded as being suspended. In the event a matter, claim, or event, may have been time barred prior to December 1, 1994, as a result of the application of the statute of limitations, the execution of this Tolling Agreement shall not revive, reactivate or reinstate that claim, matter or event. 5. Provided the events described in Paragraph 2, above, have not first occurred, then notwithstanding anything to the contrary, any party hereto shall have the right to terminate this Tolling Agreement and hereby end the tolling period by first causing to be delivered by U.S. Mail a preliminary ten (10) day notice of election to terminate this agreement, and filing a complaint or cross-action against one or more parties to this Tolling Agreement with consent of court. Upon the occurrence of those events, the tolling period shall be deemed to have ended on the date of the filing of a new action or cross-action, when the Tolling Agreement shall at that time be of no further force or effect. 6. It is agreed that neither MC WETHY nor THE CITY OF PALM SPRINGS hereby agree to waive the benefit of any applicable statute, California Court Rules, Superior Court Rules, or any other legal requirement that any such complaint or cross-complaint was required to have been asserted in the above pending action. Should any future litigation ensue between the parties, each such party agrees that they will not assert any such statutory or legal bar to the maintenance of such complaint, or of any issue therein, which would otherwise have been required to have been litigated by complaint or cross-complaint in the above pending action. K.DWILEG.DIRI0094162.WP/D1 otherwise have been required to have been litigated by complaint or cross-complaint in the above pending action. 7. The agreements contuned in this Tolling Agreement are made only as to MC WEI'H'Y and THE CITY OF PALM SPRINGS and not to any other party and are not enforceable by any other party. 8. 11 is Tolling Agreement may be executed in separate counterparts, all with the same; force and effect as though the same counterpart had been executed simultaneously by each party, but will have no effect until executed by all parties. 9. The parties further agree that no representations, warranties, agreements or covenants have been made with regard to the Tolling Agreement by the parties hereto other than those set forth herein and that in entering into this Tolling Agreement, no party is relying upon any representation, warranty, agreement, promise or covenant made by the parties hereto, other than as set forth in this Tolling Agreement, and further agree that each has not been influenced to execute whatsoever in making this Tolling Agreement by any representations or statements regarding injuries, claims, demands, causes of actions or regarding any matters made by the persons, fires or corporations hereby joining said Tolling Agreement and each of them represent and declare that in executing this Tolling Agreement they rely solely upon their own judgment, belief and knowledge, and the advice and recommendations of their own independently selected counsel conceming the significance and meaning of the statute of limitations, including the tolling thereof, as well as the right to terminate any such tolling as provided herein. 10. Any portion or provision of this Tolling Agreement, which is invalid, illegal or unenforceable in any jurisdiction, shall, as to that jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability, without affecting in any way the remaining portions or provisions hereof in such jurisdiction or rendering that or any other portion or provision of this Tolling Agreement invalid, illegal or unenforceable in any other jurisdiction. IT IS SO STIPULATED AND AGREED: 00 Dated: Unary i995 THP CITY OF PALM SPRINGS v City Clerk Mayor Signatures Continued on Page 4 K:0A(SILEO DIA1=14Y52.WP1V4 t Dated: January _, 1995 By: ROB W. PARKINS Dated: January,01 1995 s-=, By. �; ^ ?dNY BONG Dated: January _, 1995 By: EARL NEEL Dated: Janury _, 1995 By: WILLIAM H. MC WETHY Dated: January _, 1995 By: THE PALM MOUNTAIN COMPANY K:I D MS I L EG.DIR I D094162.WP/D4 Dated: January _, 1995 By: ROB W. PARKINS Dated: January _, 1995 By: SONNY BONO Dated: January 1995 r , J By: EARL NEEL Dated: Janury _, 1995 By: WILLIAM H. MC WETHY Dated: January _, 1995 By: THE PALM MOUNTAIN COMPANY K:lD MS I LEG.D/R IO0S47 61.WhV 4 Dated: 1 uary ATTEST. Cityof Palm Springs, California By: — City Clerk ROB . PARKI >S Dated: January 1995 By: SONNY BONO Dated: January y, 1995 r ,iGx�we7,q r bP TPHE CRY C3GbV�01 By: EARL NEEL Dated: Janury _, 1995 By: WILLIAM H. MC WETHY APPROVED AS -1-0, FORM Dated: January _, 1995 t City By: THE PALM MOUNTAIN COMPANY KADWILEG.DIR10094162.WPID I .1 Datc� January ,_,_, 1995 By: RCJ__B W. __ I'A JtJs.[T'1S Dated: January __, 1995 By: SONNY 130NO Dated: Janin<ary __ , 1995 By: ----- EARL, NEFL` Dated; Janury 1995 WJr LIah1 4C4%1 , 11Y Dated; January ._. 1995 By; L /v MCG�1� T THE k ALNJ MOO NY AlloW1t Co.OlR1009aS Wp/pf rn • I IhS'f"',h '0H VHd