tolling agreement - manatee clerk...architect-engineer” to provide architectural and engineering...

TOLLING AGREEMENT

THIS TOLLING AGREEMENT is entered into by and between Manatee County, a political subdivision of the State of Florida ("Manatee County"), for the purpose of tolling the statutes of limitations and repose on Manatee County's claims against Helmuth, Obata & Kassabaum, Inc. ("HOK"), Fawley-Bryant Architects, Inc. ("Fawley-Bryant"), and Walter P. Moore and Associates, Inc. ("Moore").

WHEREAS, on or about September 22,2003, HOK and Manatee County entered into an "Agreement Between Owner and Architect-Engineer" ("Contract") to provide architectural and engineering services for the design and construction of the Manatee County Judicial Center ("Judicial Center") (hereinafter, "the Project"); and

WHEREAS, Exhibit "A" to the Contract identifies HOK's specialty consultants who were retained by HOK to render services pursuant to the Contract including: Project Associate Architect, Fawley-Bryant Architects, Inc., and Structural Engineer, Walter P. Moore and Associates, Inc.; and

WHEREAS, Manatee County has asserted or will assert claims against HOK, Fawley Bryant, and Moore ("Parties") for defects to the Judicial Center arising out of or related to cracked, degraded, and misaligned architectural pre-cast concrete ("APC") panels, pieces of which have fallen from the Judicial Center facade, water leaks in the areas of the balcony deck drains and skylights, and failed, deteriorated or loose APC panel joint caulk (such claims are hereinafter collectively referred to as "Claims"); and

WHEREAS, the Parties desire to allow a reasonable time to correct or remediate these defects and Claims; and

WHEREAS, in order to allow time to attempt an informal resolution of the Parties' disputes and potential disputes, to conserve their financial resources, and to preserve all Claims to the extent such Claims exist as of May 26, 2019, the Parties desire to toll the applicable statutes of limitation and repose and deadlines related to the Claims on the Project as hereinafter set forth.

Now, therefore, in order to allow all parties sufficient time to resolve the pending claims and other valuable consideration, the parties mutually agree as follows:

1. Subject to the provisions of this Tolling Agreement, all limitations or repose periods which may be applicable to the Claims, including but not limited to those set forth in the relevant Florida Statutes, relating in any way to the filing of an action on the Contract regarding the claims on the Project (collectively "Limitation Periods") are tolled from May 21, 2019, through and including August 19, 2019 (the "Tolling Period").

2. Nothing in this Agreement is intended to waive any otherwise applicable procedural or substantive limitations on any Claims, other than the tolling of the time to bring suit on such Claims, in accordance with this Tolling Agreement, and the Parties' execution of this Tolling Agreement will not extend nor revive any time

Pagel of3

periods that may have expired, if any, prior to May 26, 2019. The parties further agree that by entering into this Tolling Agreement, they are not waiving the right to commence legal action after the termination of this Tolling Agreement in accordance with its terms; nor are any of the Parties waiving any claims, defenses or counterclaims.

3. The Tolling Period may be terminated prior to August 19, 2019 by any Party with at least 30 days prior written notice delivered to all other Parties in advance of the early termination date. The Tolling Period will be modified in such case to be from May 26, 2019, through and including the early termination date. Notices required by this Tolling Agreement will be made in writing and delivered to Counsel for the respective Parties to be notified.

4. The Parties have mutually drafted this Tolling Agreement and to the extent that there are any ambiguities or uncertainties contained herein, they will not be construed for or against either party hereto as the drafter of the agreement.

5. The persons executing this Tolling Agreement warrant and represent that they have the authority to bind their respective principals hereto and have such authorization to do so.

6. If any part of this Tolling Agreement is adjudicated invalid, unenforceable or illegal by a court of competent jurisdiction, such adjudication will not affect or impair, in whole or in part, the validity, enforceability, or legality of any remaining portions of this Tolling Agreement. All remaining portions remain in full force and effect as if the original Tolling Agreement had been executed without the invalidated, unenforceable or illegal part.

7. Notwithstanding its place of execution or performance, this Tolling Agreement will be governed by and construed in accordance with the laws of the State of Florida. The exclusive venue for any litigation related to or arising from this Tolling Agreement shall be the Circuit Court of the Twelfth Judicial Circuit in and for Manatee County, Florida.

8. This written Tolling Agreement contains the entire, integrated, agreement between the Parties concerning tolling of limitations periods. All prior negotiations and dealings between the Parties concerning tolling of limitations periods are merged in, integrated and superseded by this Tolling Agreement. There will be no modifications to this Tolling Agreement except those that are made in writing signed by all Parties, or except as set forth in paragraph 3, above, regarding early termination ofTolling Period.

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It is so agreed:

Dated: r::;\ \"'6 \ 20r:,

Dated: -------

Dated: -------

Dated: _{ ~ / )/9 --1-+=.:.....j~..L--

ATTEST: ANGELrNA COLONNESO

Helmuth, Obata & Kassabaum, Inc.

By:·~~

Fawley-Bryant Architects, Inc.

By: __________ _

Walter P. Moore and Associates, Inc.

By: _________ _

MANATEE COUNTY, FLORIDA, a political subdivision of the State of Florida

CLE~ ~F THE CIRCUIT COURT AND COMPTROLLER

By: ~~ Deputy Clerk

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It is so agreed:

Dated: ______ _

Dated: May 15,2019

Dated: ______ _

Dated: si£ I /;9 - -=-;J=-:....+'7 '-.L-- -

ATTEST: ANGELINA COLONNESO


By:----------


By:----------


By: Board of County Commissioners

:~EJJ:b:E ~RT AND COMPTROLLER

Deputy Clerk

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It is so agreed:

Dated: -------

Dated: ______ _

Dated: -------

Dated: SbJ//9 --J.p=..:-'-f) .:........L.--



By:-------------

Fawley-Bryant Architects, Inc.

By: _________________ __


-12-t~~(c__ By:--------------


CLE~~E CIRCUIT COURT AND COMPTROLLER

By: ~ Deputy Clerk

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May 21, 2019 - Regular Meeting Agenda Item #16

Subject Approve Tolling Agreement Briefings None Contact and/or Presenter Information Christopher M. De Carlo, Assistant County Attorney, ext. 3750 Action Requested Motion for the Manatee County Board of County Commissioners to approve the attached Tolling Agreement between Manatee County and Helmuth, Obata & Kassabaum, Inc. (“HOK”), Fawley-Bryant Architects, Inc. (“Fawley-Bryant”), and Walter P. Moore and Associates, Inc. (“Walter Moore”) to toll the applicable statutes of limitation and repose and deadlines for Manatee County to file a lawsuit against HOK, Fawley-Bryant, and Walter Moore for claims by the County regarding the Manatee County Judicial Center. Enabling/Regulating Authority Section 125.01 Background Discussion On or about September 22, 2003, Manatee County and HOK entered into an “Agreement Between Owner and Architect-Engineer” to provide architectural and engineering services for the design and construction of the Manatee County Judicial Center (“Judicial Center”) with Fawley-Bryant to serve as the local/associate architect, and Walter Moore to serve as the structural engineer (hereinafter collectively “Architects and Structural Engineer”). On March 12, 2019, the Board granted the County Attorney’s Office authority (attached) to take all appropriate measures including the filing of a lawsuit against all potential responsible parties for defects to the Judicial Center related to cracked, degraded, and misaligned architectural pre-cast concrete (“APC”) panels, pieces of which have fallen from the Judicial Center facade, water leaks in the areas of the balcony deck drains and skylights, and failed, deteriorated or loose APC panel joint caulk. Accordingly, the County Attorney’s Office, on behalf of the County, has filed suit against the construction manager, Balfour Beatty Construction, LLC (“Balfour”), and served Notices of Claim to said Architects and Structural Engineer. In order to protect the County's right to file suit, if necessary, against the Architects and Structural Engineer, the County proposed, and the Architects and Structural Engineer (“Parties”) agreed, to enter into a Tolling Agreement that would toll the statutes of limitations/repose as to any potential claims the County is legally entitled to bring against the Architects and Structural Engineer for a period of ninety (90) days, until August 19, 2019. Entering into the Tolling Agreement is beneficial and cost effective for the Parties to allow additional time to determine if an agreement can be reached among the Parties as to the nature of the damages and the scope of repairs without the necessity of amending the current lawsuit against Balfour to include claims against the Architects and Structural Engineer. If the Parties do not reach an agreement, the County would still have the ability to file suit against the Architects and Structural Engineer, and thus the Tolling Agreement is beneficial to the Parties. Therefore, the County Attorney's Office recommends the Board approve the Tolling Agreement attached hereto.

Manatee County Government Administrative CenterHonorable Patricia M. Glass Chambers, First Floor

9:00 a.m. - May 21, 2019

VTessmer

Approved in Open Session

VTessmer

Typewritten Text

5/21/19

County Attorney Review Other (Requires explanation in field below) Explanation of Other This is an attorney item. Reviewing Attorney DeCarlo Instructions to Board Records

E-mail an approved copy of this agenda item to:

Christopher M. De Carlo, Assistant County Attorney [email protected],; and

Tracy Hanrahan, County Attorney’s Office, [email protected]

Cost and Funds Source Account Number and Name N/A Amount and Frequency of Recurring Costs N/A Attachment: BC20190312DOCA11.pdf Attachment: Tolling Agreement.pdf

Manatee County Government Administrative CenterHonorable Patricia M. Glass Chambers, First Floor

9:00 a.m. - May 21, 2019

mailto:[email protected]


VTessmer

Typewritten Text

Emailed 5/2/19

March 12, 2019 - Regular Meeting Agenda Item #11

Subject Manatee County Judicial Center Construction Defects Briefings None Contact and/or Presenter Information Christopher M. De Carlo, Assistant County Attorney, ext. 3750 Action Requested

Motion to authorize the County Attorney's Office to pursue all appropriate legal action, including filing and prosecution of a lawsuit, for construction defects at the Manatee County Judicial Center.

Enabling/Regulating Authority Section 125.01, Florida Statutes; Chapter 558, Florida Statutes Background Discussion On June 21, 2005, Manatee County entered into an agreement with Balfour Beatty (fka Centex Construction, LLC) to build the Manatee County Judicial Center. The City of Bradenton issued a Final Certificate of Occupancy for the Judicial Center on May 26, 2009. The County has discovered previously unknown defects with the exterior of the Judicial Center involving both the plain pre-cast concrete panels and the pre-cast concrete panels with brick inlay. Additionally, the County has reason to believe that the wrong type of caulk was applied between the pre-cast panels. On November 5, 2018, Manatee County served Balfour Beatty Construction, LLC (“BBC”) with the statutorily mandated Notice of Claim pursuant to Chapter 558, Florida Statutes. To date, BBC has failed to respond to or accept responsibility for the remediation and repair of the identified construction defects. Therefore, the County Attorney's Office requests authority to take all appropriate measures, including the filing and prosecution of a lawsuit against all potential responsible parties and their sureties. County Attorney Review Other (Requires explanation in field below) Explanation of Other This is an attorney item. Reviewing Attorney DeCarlo Instructions to Board Records E-mail an approved copy of this agenda item to:

Manatee County Government Administrative CenterPatricia M. Glass Commission Chambers, First Floor

9:00 a.m. - March 12, 2019

rtoth

Text Box

Approved in Open Session 3/12/19 Manatee County Board of County Commissioners

Christopher M. De Carlo, Assistant County Attorney [email protected], and Tracy Hanrahan, County Attorney’s Office, [email protected] Cost and Funds Source Account Number and Name The ultimate cost of litigation is presently unknown Amount and Frequency of Recurring Costs One time filing fee

Manatee County Government Administrative CenterPatricia M. Glass Commission Chambers, First Floor

9:00 a.m. - March 12, 2019



rtoth

Text Box

Distributed 3/14/19, RT

TOLLING AGREEMENT

THIS TOLLING AGREEMENT is entered into by and between Manatee County, apolitical subdivision of the State of Florida ("Manatee County"), for the purpose of tolling thestatutes of limitations and repose on Manatee County's claims against Helmuth, Obata &Kassabaum, Inc. ("HOK"), Fawley-Bryant Architects, Inc. ("Fawley-Bryant"), and Walter P.Moore and Associates, Inc. ("Moore").

WHEREAS, on or about September 22,2003, HOK and Manatee County entered into an"Agreement Between Owner and Architect-Engineer" ("Contract") to provide architectural andengineering services for the design and construction of the Manatee County Judicial Center("Judicial Center") (hereinafter, "the Project"); and

WHEREAS, Exhibit "A" to the Contract identifies HOK's specialty consultants whowere retained by HOK to render services pursuant to the Contract including: Project AssociateArchitect, Fawley-Bryant Architects, Inc., and Structural Engineer, Walter P. Moore andAssociates, Inc.; and

WHEREAS, Manatee County has asserted or will assert claims against HOK, FawleyBryant, and Moore ("Parties") for defects to the Judicial Center arising out of or related to cracked,degraded, and misaligned architectural pre-cast concrete ("APC") panels, pieces of which havefallen from the Judicial Center facade, water leaks in the areas of the balcony deck drains andskylights, and failed, deteriorated or loose APC panel joint caulk (such claims are hereinaftercollectively referred to as "Claims"); and

WHEREAS, the Parties desire to allow a reasonable time to correct or remediate these

defects and Claims; and

WHEREAS, in order to allow time to attempt an informal resolution of the Parties*disputes and potential disputes, to conserve their financial resources, and to preserve all Claimsto the extent such Claims exist as of May 26,2019, the Parties desire to toll the applicable statutesof limitation and repose and deadlines related to the Claims on the Project as hereinafter set forth.

Now, therefore, in order to allow all parties sufficient time to resolve the pendingclaims and other valuable consideration, the parties mutually agree as follows:

1. Subject to the provisions of this Tolling Agreement, all limitations or reposeperiods which may be applicable to the Claims, including but not limited to thoseset forth in the relevant Florida Statutes, relating in any way to the filing of anaction on the Contract regarding the claims on the Project (collectively "LimitationPeriods") are tolled from May 21, 2019, through and including August 19, 2019(the "Tolling Period").

2. Nothing in this Agreement is intended to waive any otherwise applicableprocedural or substantive limitations on any Claims, other than the tolling of thetime to bring suit on such Claims, in accordance with this Tolling Agreement, andthe Parties' execution of this Tolling Agreement will not extend nor revive any time

Page 1 of3

periods that may have expired, if any, prior to May 26, 2019. The parties furtheragree that by entering into this Tolling Agreement, they are not waiving the rightto commence legal action after the termination of this Tolling Agreement inaccordance with its terms; nor are any of the Parties waiving any claims, defensesor counterclaims.

3. The Tolling Period may be terminated prior to August 19,2019 by any Party withat least 30 days prior written notice delivered to all other Parties in advance of theearly termination date. The Tolling Period will be modified in such case to be fromMay 26, 2019, through and including the early termination date. Notices requiredby this Tolling Agreement will be made in writing and delivered to Counsel for therespective Parties to be notified.

4. The Parties have mutually drafted this Tolling Agreement and to the extent thatthere are any ambiguities or uncertainties contained herein, they will not beconstrued for or against either party hereto as the drafter of the agreement.

5. The persons executing this Tolling Agreement warrant and represent that they havethe authority to bind their respective principals hereto and have such authorizationto do so.

6. If any part of this Tolling Agreement is adjudicated invalid, unenforceable orillegal by a court of competent jurisdiction, such adjudication will not affect orimpair, in whole or in part, the validity, enforceability, or legality of any remainingportions of this Tolling Agreement. All remaining portions remain in full force andeffect as if the original Tolling Agreement had been executed without theinvalidated, unenforceable or illegal part.

7. Notwithstanding its place of execution or performance, this Tolling Agreementwill be governed by and construed in accordance with the laws of the State ofFlorida. The exclusive venue for any litigation related to or arising from thisTolling Agreement shall be the Circuit Court of the Twelfth Judicial Circuit in andfor Manatee County, Florida.

8. This written Tolling Agreement contains the entire, integrated, agreement betweenthe Parties concerning tolling of limitations periods. All prior negotiations anddealings between the Parties conceming tolling of limitations periods are mergedin, integrated and superseded by this Tolling Agreement. There will be nomodifications to this Tolling Agreement except those that are made in writingsigned by all Parties, or except as set forth in paragraph 3, above, regarding earlytermination of Tolling Period.

Page 2 of 3

It is so agreed:

Dated: ^\ \ Helmuth, Obata & Kassabaum, Inc.

Dated: Fawley-Bryant Architects, Inc.

By:

Dated: Walter P. Moore and Associates, Inc.

By:

Dated: MANATEE COUNTY, FLORIDA, a

political subdivision of the State of

Florida


By:

Stephen R. Jonsson, Chairman


CLERK OF THE CIRCUIT COURT AND COMPTROLLER

By:Deputy Clerk

Page 3 of 3

It is so agreed:

Dated:

Dated: May 15, 2019

Dated:


By:

Fawley-Bryant Arcliildcts, Inc

Steve Padgett, Principal, Managing Partner


By:


political subdivision of the State of

Florida


By:




By:Deputy Clerk

Page 3 of 3

It is so agreed:

Dated: Helmuth, Obata & Kassabaum, Inc.

By:

Dated: Fawley-Bryant Architects, Inc.

By:

Dated: Walter P. Moore and Associates, Inc.

By


political subdivision of the State ofFlorida


By:




By:Deputy Clerk

Page 3 of 3

tolling agreement - manatee clerk...architect-engineer” to provide architectural and engineering...

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