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Home My WebLink AboutKaufman and Broad - Tolling AgreementTOLLING AGREEMENT THIS AGREEMENT, which, for purposes of reference, is dated February 2, 2006, is made and entered into by and between the CITY OF GILROY (the "City"), on the one hand, and KAUFMAN AND BROAD — MONTEREY BAY, INC., a California corporation, and its successors -in- interest ("KB "), on the other hand. Recitals This Agreement is entered into with reference to the following facts: A. KB entered into a series of contracts with the City for, inter alia, the construction and improvement of public works facilities and other improvements, including the improvement of streets. All construction and improvements were to be performed in accordance with all laws, codes, ordinances, resolutions, rules and regulations and established policies of the City and the State of California. B. In 2003, the City discovered that certain sidewalks, curbs and gutters, driveways, and/or wheelchair access ramps in the residential tracts developed by KB, specifically Tract Nos. 8627, 8663, 8708, 8728, and 9002, are defective or deteriorating (the "Defective Work "). C. On November 1, 2004, the City sent KB a letter setting forth its claim and demanding that KB remedy the Defective Work in accordance with good construction practices. D. On or about October 24, 2005, after several months of discussions between Page -1- the City and ICB, the City again sent IB a letter demanding that I<B implement a plan and timeline to remedy the Defective Work, or the City would initiate legal proceedings. E. IB is still in the process of investigating the City's claim. Agreement NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the parties agree as follows: 1. Recitals A. through E. are incorporated as a part of this Agreement. 2. IB agrees that any applicable limitation of action or statute of limitations period shall be tolled during the period beginning October 24, 2005 and ending December 31, 2006, in accordance with California Code of Civil Procedure Section 360.5, with respect to each and every cause of action or claim that the City has against IB in connection with the Defective Work. Code of Civil Procedure Section 360.5 provides, in pertinent part: No waiver executed prior to the expiration of the time limit for the commencement of the action by this title shall be effective for a period exceeding four (4) years from the date of expiration of the time limit for commencement of the action by this title and no waiver executed after the expiration of such time shall be effective for a period exceed four (4) years from the date thereof, but any such waiver may be renewed for a further period not to exceed four (4) years from the expiration of the immediately preceding waiver. Nothing in this Agreement is intended to revive any statutory period that has already run as of October 23, 2005. Page -2- 3. IB agrees to cooperate with the City and upon the City's request, to provide the City with the results of its investigation, including providing copies of any and all written reports prepared in connection with its investigation of the Defective MOSTM 4. Nothing herein shall be deemed or construed as a waiver of any rights, claims, demands or causes of action that the City may have against IB or any other person. Furthermore, nothing herein shall be deemed or construed as a release of IB and any other person from any liability that they may have to the City. S. This Agreement shall be binding upon and inure to the benefit of the Parties hereto, their successors, transferees, assigns; indemnitors, indemnitees, insurers, sureties, employees, agents, and representatives. 6. Nothing contained in this Agreement shall constitute or be treated as an admission of any liability of or any wrongdoing by IB, or its respective officers, directors, parents, subsidiaries or shareholders. 7. This Agreement contains the entire Agreement between the parties and supersedes and replaces any and all prior or contemporaneous agreements or understandings, written or oral, with regard to the matters set forth in it. This Agreement may be amended or modified in whole or in part at any time only by an agreement in writing, executed in the same manner as this Agreement. 8. This Agreement is entered into in the State of California and shall be Page -3- construed and interpreted according to its laws. 9. Each party and its attorneys have carefully and fully reviewed this Agreement. Each party and its attorneys have revised, or had an opportunity to revise, this Agreement. Accordingly, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be utilized in the interpretation of this Agreement. 10. If any term, provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions shall remain in full force and effect and shall in no way be affected, impaired or invalidated. 11. Each party to this Agreement agrees to execute any document that is necessary to effectuate the terms, conditions, covenants and purposes of this Agreement. 12. Each party to this Agreement represents and warrants that each person whose signature appears hereon has been duly authorized and has the full authority to execute this Agreement on behalf of the person, persons or entity who is a party to this Agreement. Dated: February , 2006 KAUFMAN AND BROAD - MONTEREY BAY, INC. Bv: Print Name Print Title of Officer Page -4- Dated: February 8, 2006 THE APPROVED AS TO FORM AND CONTENT: ICAUFMAN AND BROAD — MONTEREY BAY, INC. LE R. Scott Diaz, Associate Counsel Legal and Consumer Affairs MCGRANE GREENFIELD LLP By: _ t� Evel n it. Tran Attorneys for the City of Gilroy Page -5- City Administrator 0-0— – - THLSAGR,EEMENT.wtkjch, forpt1q)osesof rekrinicell, isdated.Februarv2.2006, is made and entered into by and het~ een the CITY-OF GILROY (the "City"), on the one hand, and KAUFMAN AND BROAD - MONTEREY BAY, INC., a California mriparation, and its smcessors-in-interest ('KB"), on the other hand. Thn Agrement is entered mto -wvh m(cricom w the folkAMW facts- X KR entered. into a wrier of cmuram with the City for, inter aha, the conmuction a0d improvement of public Nvorks fatuities and other improvenwats, including the improvement of streets. All construction and improvements Nvere to be performed in accordance with aU laws, codes, oydinances, resolutions; rules and regions and estabhAW policies of the City and the State of Caffbmia- B. in 2aw, the City dbwvered that =wn side�, curbs md guttors, spec ificaRyTract. Nm 8627, 8663, 8708. 8728. and" 9Mr am defectiveordeterioratft (tht-; "Mire WorV . C- OA.: November 1, 2004, the CitysentKB a letter set ting forth "its claim and demanding tbat,KB remedy. the Defective Work hi coasuucdon Nit. I - the:Cit), and KB, the City again sent KB a letter demanding that KB implement a plan and timeline to remedy the Defective Work. or the City would initiate legal proceedings- E. 10 is still in the process of investigating the City's daim . A greement Nrovy, THEREFORE, in consideration of the mutual promises. contained in this - Agreement, the partie�s agree as follows: 1. Recitals A, through E. are incorporated as a part of this Agreement 2. n agrees that any -applicable limitation of action or statute of limitations period shall be tolled during the period beginning October 24, 2005 and ending December 31, 2006, in accordance with California Code of Chal Procedure Section 3605, with respect to each and every cause of action or claim that the City has against I(B.. in com"'on %rith.,ttle Defective Work. Code of Civil Procedure Sc6don 360.5 provides, in pertinent part: M waiver ecuted prior td the expita-ti 0 1 of the time limit for the commeneement of the action. by this title shall be dffi,ectivt 'fbt a Period 6meeding fbur (4) 'Years from the date of expiratioa of the time fin* for commencement of the acdoh by this title and ...no waiver executed after the expiration of . such time shall be e6ective far aperiod, exceed four (4) ye= From the date thereof, but any such waiver may be renewed for a Antherperiod motto exceed four years front I the expiratiori: of ifi,6 iminediately, preceding. ivai*t. Nothing in thisAgipement is -intended to revive anystatutory period that has already run as of October 23, 2005. 3. KB agren to cooperate with the 01Y and Ulm the Ws MPW-U tO provide the City with the results of its .in vestiption, inchWing providing copies of any and all written reports prepared in connections with its investigation of the Defective Work. 4. Noting herein shall be deemd oT construed as a mraiver of any rights, dams. dman& or causes of actim that the City may have aphrmt IM or any other anti my other pemon from any liability dM They may have to the OtY. 5- This Agreement shall be binftg upon and inure to the benefit of the Parties hereto, their successors, transferees, assign m. inde, hors 0 Ind-ex►itees, insums, smwes, employees, agents, and representatim. S.. ' I , -ki ai z1 +tt i e•, I � - , - - — s. $1 777 rV .r 1 0 .. I . 14 W� 7- This Agreement contains the cndre Agreemmt beWM.M dI-C parties and ms and replaces any and A prior or ContemPorarteotts agrmnents OT uWeratai,dlngs, written or oul, with, • regud to the matters set forth in it This Agreement. may be amended or modifi ed is whok or in part at any time oMy by an agnxnwnt in writing. emoted in the same manner as this Agreement. S. This Agreement is enter into in the Stair of Caldbraia and shA be Page -3, A�P aonsoued and iiftterpIted acomft to its 1ms. 9. Each party and its at.wmeys have carefully and fnk. reviewed Agreement. %h party and its attorneys have revised* or had an opportunity to revise, this Agrimuent. Accordingly, the noarynal rule of construction to the effect, that any ambiguities are to be resolved against the drafflog party shall not be utilized in the interpretation of this Anent. 10. If any term, pt p)n, coven at or con&tion of this assent is held by a coua of cmpetent #W&Mction to lie invaK void or unenforceAk, the remainder of the provisitx shall: remain in fa form and effect and, shall In no way be affected, irnpaired or imt.31idate4. 11. Eadi party to this Agreement agrees to execute arty docent that is . � 3r C! `� :i:s.# .IF +�,f: ef.. •w }s. ..} ! ". !i: is €..3 ;r:a # ;e[ :# } t .4}',j >; '$2 - .S# #:i✓I #x+Si"a tsL, -fi }♦ # a$ i ! - 3 ([ i# ewe this Agreement on behalf of the gets„' perwm or entity who is apany to this Agreement. Datm: l~ebnmry. _, _=6 a 41V Pace 4- BROAD - MC, F Dated: Fe nary T, 2006 THE MY OF G LROY By" Print Name Print Title - [ AUMA fi AND BROAD — MONTEREY BAY , INC.. By: Cott Diaz, Aswdate Coons- T Legal and Consumer Affairs 4 _ W94.14 0 Br Bvelyntt N. Tract Attarncys for the C ty.of Gflroy y� -S° APPRON.'ED AS TO FORM A\D CONTE=ST i AUFMAti AND BROAD - MONTEREY BAY, IN'C. R- Scott Dial Associate Counsel Legal and Consumer Affairs McGRANE GREENFIE.LD 1.I.P Bvc4mn N. Tran Attorneys for the City of Gilroy i'ne .;. ADDENDUM NO. 1 TO TOLLING AGREEMENT This is Addendum No. 1 ( "Addendum ") to the Tolling Agreement dated February 2, 2006 ("Agreement") entered into by and between the CITY OF GILROY (the "City"), on the one hand, and KAUFMAN AND BROAD - MONTEREY BAY, INC., a California corporation, and its successors -in- interest "KB ", on the other hand. The Agreement is modified as set forth below: The City, KB, and KB Home South Bay, Inc. a California corporation, and its successors- in- interest ( "KB Home South Bay"), agree that KB Home South Bay shall be added as a party to the Agreement, a copy ofwhich is attached hereto as Exhibit "A" and incorporatedherein as though fully set forth. Therefore, whenever the term "KB" is used in the Agreement, it shall refer to and include KB Home South Bay, Inc. KB's ri ghts and obligations under the Agreement shall inure to and be binding on KB Home South Bay to the extent as they would have been had KB Home South Bay originallybeen a party to the Agreement. 3. Except as amended and modified by this Addendum, the other terms and conditions ofthe Agreement shall remain in full force and effect. Dated: June �W, 2006 Dated: June 2006 Page-1- KB HOME SOUTH BAY, INC. By: Pnn ame 3�F C r Print Title Title of Officer KAUFMAN AND BROAD - MONTEREY BAY, INC. By: Print Name Print Title of Officer Dated: June _, 2006 THE CITY OF G APPROVED AS TO FORM AND CONTENT: KAUFMAN AND BROAD — MONTEREY BAY, INC. and KB HOME SOUTH BAY, INC. By: R. Scott Diaz, Associate Counsel Legal and Consumer Affairs McGRANE GREENFIELD LLP LIM Evelynn N. Tran Attorneys for the City of Gilroy Page -2- �L► I 1 V !T GC 1111 Il I S°fi`Q �'D i