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Tolling Agreement 09/19/2007 MEMORANDUM To: Kathy Peters, County Attorney's Office From: Isabel DeSantis, Deputy Cler~ Date: September 25, 2007 At the BOCC meeting of September 19, 2007 the BOCC granted approval and authorized execution of the folIowing item: TolIing Agreement with Gonzalez Architects to temporarily tolI the statute of limitations in order to attempt to resolve and claims concerning architectural design services for the Freeman Justice Center. Attached hereto are two (2) duplicate originals ofthe subject document for your handling. Should you have any questions concerning this matter, please do not hesitate to contact my offic,e. CC: Finance / File ./ r'"!. r-'.'~ ~,..., .__ :- t;._,L~.; j-: "? .' ,- ['non - .. ... '.. 'or.., i \~, TOLLING AGREEMOOSEP 26 PM 3: 51 ~'his Tollin.9 Agreement ("Agreement") is mad~~~'l~h~rr. ?:jl1ki'effective a~ of Ill/UA 19 , 2007, by and among MO~R~~~1Y\T~,lfrc,if, a political s division of the State of Florida ("Monroe County"), Jose Anarew Gonzalez ("Gonzallez"), and Gonzalez Architects ("Architects") which are sometimes individually referred to as the "Party" and sometimes collectively referred to as the "Parties." RECITALS A. Monroe County contracted with Gonzalez Architects for architectural design ilervices for a new judicial building in Jackson Square known as the Freeman Justice Center (the "Project"). The Project is the subject of claims asserted by the contractor, The Tower Group and Monroe County (the "Claims"). B. The Parties believe that the resolution of their differences, if any, may be accompllished without resort to litigation if statutes of limitations, statutes of repose, laches and other tirile limitations are suspended and tolled as provided in this Agreement. INCORPORATION OF RECITALS 1 The Parties hereby agree that the above recitals are true and correct, and hereby incorporate all such recitals by reference as if fully set forth herein. WARRANTIES 2. All Parties warrant and represent, each to the other, that they have been fully informed and have full knowledge of the terms, conditions and effects of this agreemelnt. 3. All Parties warrant and represent, each to the other, that no promise or inducement has been offered or made, except as herein set forth, and that this Tolling Agreememt is executed without reliance upon any statement or representation to any other party or his agent. 4. All Parties warrant and represent that they are legally, mentally and medicallll competent to execute this agreement. COVENANTS NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein, and other good and valuable consideration, the Parties hereby agree as follows: \488004\2 - # 388127 v1 5. Any and all statutes of limitations, statutes of repose, laches and/or other time limitations which may apply to any claim, affirmative defense, or avoidance that any Party may have against any other Party relating to or arising out of the planning, design, construction, administration and/or operation of the Project or any portion thereof, shall be suspended and tolled from the effective date of this Agreement until thirty (30) calendar days after the termination of this Agreement. This Agreement shall become effective as of the date set forth herein above, provided that each Party to this Agreement has executed this Agreement. 6. Nothing in this Agreement shall be construed as a waiver by any Party of any defense or avoidance based on any statute of limitations, statute of repose, laches or other time limitation which such Party has or would have to any claim to relief arising out of the planning, design, construction, administration and/or operation of the Project, or any portion thereof, filed by any other Party on the day immediately preceding June 17, 2007'. Nothing in. this Agreement or in the circumstances which give rise to this Agreement shall be construed as an acknowledgment by any Party that any claim has or has not been barred, or is about to be barred, by any applicable statute of limitations or statute of repose by the doctrine of laches or by any other defense based on the lapse of time. Except as expressly provided in this Agreement, nothing herein shall operate as a waiver of any right, claim or defense of any Party against any other Party. 7. This Agreement shall not operate as an admission of liability by any Party. Neither this Agreement nor any action taken pursuant to this Agreement shall be offered or received in evidence in any action or proceeding as an admission of liability or wrongdoing by any Party. 8. Any Party may terminate this Agreement on thirty (30) calendar days prior written notice to the other Party sent by facsimile and registered mail, return receipt requested. This Agreement shall be terminated as to all Parties effective thirty (30) calendar days after the date of sending of the first such notice of termination by any Party. 9. Any notice pursuant to this Agreement, (including a notice of intention to terminate this Agreement) shall be in writing and shall be sent by registered mail, return receipt requested, to the following: a. Notice to Gonzalez and Architects shall be sent to: Joseph W. Downs, III, Esq. 3300 Ponce De Leon Blvd. Coral Gables, Florida 33134 Fax: (305) 448-7978 2 1488004\2 - # :188127 v1 b. Notice to Monroe County shall be sent to: Mark N. Miller, Esq. GrayRobinson, P.A. One Lake Morton Drive (33801) P.O. Box 3 Lakeland, Florida 33801-0003 Facsimile: (863) 683-7462 c. Any Party may change or add to the addresses by which it shall be given notice by giving written notice of the change of address to the other Parties at the above addresses by facsimile and registered mail, return receipt requested. 10. If not earlier terminated by prior written notice pursuant to paragraph 8 above, this Agreement shall terminate six (6) months after its execution, unless extended by written agreement executed by each of the Parties or their counsel at least fifteen (15) days prior to the expiration of the agreement. II. This Agreement constitutes the entire agreement among the Parties pertaining to the subject matter hereof and supersedes all prior agreements and understandings pertaining to the subject matter treated in this Agreement. No covenant, representation or condition not expressed in this Agreement shall affect or be deemed to interpret, change or restrict the express provisions hereof. This Agreement may be modified, amended or supplemented only by a written instrument signed by all of the Parties. 12. During the term of this Agreement and for a period of thirty (30) calendar days following the termination of this Agreement, no party to this Agreement shall destroy, or cause or permit to be destroyed, any documents or tangible things in the possession, custody or control of the Party that refer or relate to the planning, design, construction or operation of the Project, or any portion thereof. 13. Each undersigned party represents, warrants and states to each of the other Parties hereto that the individuals whose signatures appear below on behalf of such Party are duly authorized to execute this Agreement on behalf of such Party. 14. This Agreement shall be interpreted in accordance with the substantive law of the State of Florida, without application of choice of law rules. Any action arising out of or rdating to this Agreement shall be brought in any state or federal court in Florida that has proper venue and jurisdiction. 15. This Agreement shall be binding upon and inure to the benefit of the Parties and their members, heirs, executors, administrators, successors, legal representatives and assigns. 3 1{5. In entering into this Tolling Agreement, all Parties represent and acknowh~dge that they have relied upon the legal advice of their attorneys, who are the attorneys of their own choice, and that all terms of this Agreement have been completely read and explained to them by their attorneys and that those terms are fully understood and knowingly and voluntarily accepted by them. H. This Tolling Agreement constitutes the entire agreement by and between the Parties pertaining to the subject matter contained herein. All prior or contemporaneous oral or written agreements or representations are hereby cancelled and extinguished. No modification of this Tolling Agreement shall have any legal force or effect unless the modification is memorialized in a written supplement to this Tolling Agreement and executed by all Parties hereto. All attempted or purported oral modifications to this Tolling Agreement are void ab initio and have no legal force or effect. No term of this Tolling Agreement may be waived by oral agreement. 1B. The terms of this Tolling Agreement shall not be construed for or against either Party as the contract drafter. 1 ~I. Each undersigned party represents, warrants and states to each of the other Parties hereto that the individuals whose signatures appear below on behalf of such Party are duly authorized to execute this Agreement on behalf of such Party. 20. This Agreement may be executed in counterparts, and each counterpart of this Agreement executed by one or more of the Parties shall be deemed an original of this Agreement. Dated q - I ~ ,2007. MONROE COUNTY, FLORIDA ~Mr~ By: Its: >>Javor / c ha,;.,..,a.n / I Dated 7-'1 ,2007. Dated 7-1 ,2007. GONZALEZ ARCHITECTS tJ2. By: Its: MONROE COin, ry ATTORNEY APPROVED AS TO 5Pl7M: ~~4' _;~) L~...P' NATILEENE W. CASSEL ASSISTANT COUNTY ATTORNEY <3'S 9'./~.t!>/ 4 \48800412 - # ,'88127.1