2000-041 Approves Terms of Tolling Agreement re: Action Mech.•
RESOLUTION 41-2000
A RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF NORTH PALM BEACH,
FLORIDA, APPROVING THE TERMS OF A TOLLING AGREEMENT ATTACHED AS EXHIBIT "A"
BETWEEN THE VILLAGE OF NORTH PALM BEACH AND CUMBERLAND CASUALTY &
SURETY COMPANY; AUTHORIZING AND DIRECTING THE MAYOR AND VILLAGE CLERK TO
EXECUTE THE AGREEMENT; AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, Cumberland Casualty & Surety Company issued a performance bond to the Village
of North Palm Beach insuring the performance of the construction contract for air conditioning work at
the North Palm Beach County Club by Santiago Bolivar, d/b/a Action Mechanical Contractors; and
WHEREAS, the Village Council is desirous of entering into the tolling agreement to toll statute
of limitations and to give the Village and bonding company time to negotiate a settlement of the Village's
claims against the bonding company prior to any institution of a law suit.
BE IT RESOLVED BY THE VILLAGE COUNCIL OF NORTH PALM BEACH, FLORIDA:
Section 1. The Village Council of the Village ofNorth Palm Beach, Florida, does hereby approve
the tolling agreement with Cumberland Casualty & Surety Company attached as Exhibit "A".
Section 2. The Mayor and Village Clerk are hereby authorized and directed to execute the tolling
agreement set forth in Exhibit "A" for and on behalf of the Village of North Palm Beach.
Section 3. This resolution shall take effect immediately upon its adoption.
PASSED AND ADOPTED THIS 22nd DAY OF JUNE, 2000.
(Village Seal)
MAYOR
ATTEST:
VILLAGE CLERK
FROM (FRi)06.16'00 10:23/ST.10:I6/N0.3560527177 P 4/6
• TOt,t.IN6 AGREEMENT
' THI~ Agreement, shrrtll be deemed:effectlve when the VILLAGE OF NORTH PALM
BEACH ('gwner") and CUNI~lrRIANQ CASUALTY AND SURETY COMPANY ("Surety')
sign it Ih'obUrrterpert. '
WMj:REAS, Awnerissued a wrttteq Purchase Order (the "Contract")dated the 27th
dAy of August,199Z to ACTION' MECHANICI~ CONTRACTORS ("Contractor) for work
gdnerally desc~iFied• as H'VAC Modifioetions fo the North Pelm Beach Country Club
y~H~REAS,; Surety, on oraboutthe 18th dayofAugust,1997 provided tts statutory
P.erformenrba Bond ("Bend") in favor of fhe Owner to secure the pertormance obligation of
• Contractor purguant ta~ttie Contrail;
WH~REAB; on July 1, 1998, Owner declared Contrailor to be In default on the
'Pro)ent;'
~VVI-1,EREaS;~by lett~;r dated, Sept#=rrrpgr 24, 1998, Owner called up6n Surety to
complete tpe Vvdrk•on the ProJectin accditiance with the Contrail bonded by Surety;
• : WN~•ZEgS; ;Surety invited bids fqr completion of the work remaining and in due
Course reoi~tved bids frdm several:coritragtors, the most adyantaaeous bid belnp that of Hi
• Tech,Co4Gn~; I~•' ("BlddeP), who tndJcaled to both Surety'end Owner that k was ready,
y/Iljng~ tarid.,abis'.to •eoinpiete all remaLlirtg remaining work on the itemized listing of Coburn &
work vn the itAmized Itstirtg of Coburn & Associates &
'/lasociate~ attachei1 to the contract and finish completion of ttie Project fcir $49,866.00.
1 . • VVF{~~EAS,; t?wner entered a botttrail with Bidder to •domplete the work end the
' work is notv'cohlplete:to Owher's satisfa'etlon; '
VIIFitR~Y15,, Owner claims that'St{tety remains obligated under the Bond and hag
' ;dem~nd'e4that Surety~pay Owrter f376,339.9p fu settle atI djsputes arising out ofor'relatirtg
4d'the Project and;the,8dnd; '
WHERE!{S~ Surdiydisput~,s lt8 obl)gation or Iiability.W:pay fhe•amount Ownerhas
demgnQect and. beliey!¢s it has via4fe ga~ris anti/or defengQg4v defeat OvJners ciaims or
reliede' Sufety'of liabilky on bwnera daims; '
' I '~ ~.
Wii1=REgS;.lhe paftiag deairg to determine whether they,can amicably resolve,and
. ,otherwise ~ttlq arry'dtsputei; existing byAnd between them before filing, legal proceedings
• tq resolve;fhe disputes;
_.
WfiFC~AS; •Owner believes thati the slattrte of Iimlta>;ioris govmming its alleged
daim(s) against the Bond expire on or about July 1, 2000; and
i
~..
\~ Z 'd 8b51Zb8196 'ON %tld
NIMQ1tlA ONtl ,lNtl118 'Kd 6fi'.Zl ,LUS 00-91-N(lt
..~~.~
IrIti1U5, 1000 10:24/5T. 10:18/N0.356052?777 P 5/6
• WHEREAS, Ownerand Surety desire to indefinitely toll the running of the statute
of 7tmitatloris•sothay can pursue settlement negotiations.
NOW, THEREpORE, to considaratton of the mutual promises set forth herein, and
other good end valuable oonsideratlon, the receipt end suffiNencyof which is hereby
acknowledged, Owner and Surety do hereby covenant and agree as follows:
1. The recitations set forth above are true and correct.
2. Thl6 Agreement may be executed by the parties in.two or more counterparts,
each of which shall be deemed an orfginal but which together shall constitute
one'and the same instrument, Thls Agreementshall become effective when
signetl In~countelpart, and it shall not be necessary for both parties to sign
the s'am9 copy of this Tolling Agreement.
' 3. owner and Surety hereby agree to tndefinftely told the running of the statute
of.lirolta(lons,on Owner's claim(s) against the Bond fram.the date of this
' ' ggraementahifanygthertimeframestofilevrcommenoelegafproceetlings
' a~ainis't Suretyto attempt to assert a claim against the Bond.' Surety hereby
• 'agrees, ndt to raise any defense that Ownafs maim against the Bond shall
• hate •bacorrle'untirliely es p ieStilt of the passage of lime CaU3ed by this
• AgPeemem. Otte partles~speciileally agree that hetthar party is walvtng any
rights,. r;tailrts, defenses, regponsibllides; duties, adven~rits or other matters
Except as to ,Surety's defense of the runn(rig of th0 statute of Nmitaflons as
sat forth in'ttils paragraph, • ,
• 4. . Owner and Surety agree tltief elthar party may at; any tlMo revoke this
Agreement upon ninety (~0) days written notice •of revocation of •this
Agteement. Upon such revocation, Owner shall have thirty (~30) days within
which to commence legal proceeding t0 assert shy daim ap~t~at the Bond,
'' . OWner's~fabtiire 10•cpritrn®nqe legal prbbeediiigs t~th'such 30 day time paAod
aRer the~9t1 day period shag be an absolute bar ln,Ovmer's claim(s) against
.th'r~~8ond. '
5. ~ • Nofhing ophtaJned~in tftl§ Agreement shall be ~eomed to consCdufe a waiver
' by~5pretyofany,rigtitsit~ytiaygtdset~kreimtiursemantprlndetrtnitywith
. respect to soy payment•that Surety makes to peYNe the existing disputes, c~
wkh respect to any, fees ahd si~enses inctirted.by Surety as a result of
•. having Issued eitheritte ¢erformance Bond or Payment Mond. It is expressly
• .' understvdtl and agree@d tha4 Surety iS l+aserving aN rights,,c(alme, and causes
:. of ryction:that tt rrovir hesor rfieyriave In thlsfuturQ iP seek reljnbursement or
indprrmigr tvlttt res~ed•to all'paymeflts of any ldn~l,•mada.by Surety involvfAg
praAsingoutofthetyroJect,'o''rthpPerformanceBond.arpaylherlteond'end
with respect to ail expenses incurred by Surety as p raSuitof tiaving Issued
t
£ 'd 8b511b8199 'ON %tld NIMQ'Itlfl QNtl 1,Htl8fl Y1d 6b:Zt ~tlS 00-91-ASIf
~J
rxuM (F81)06.16'00 10:25/ST. 10:16/N0.356052?171 u 6/6
th@ fierfarmance Bond or Payment Bond, except es ageinsE Qwner as
provided herein.
B. Nothing In this Agreement shall create any third patty beneficiaries nor
confer any enforceable right6 under this Agreement upon any person or
entity other than the parties W tfiis Agreement.
7. This Agreement shall not be modified or offered unless set forth in writing
and slgned.by both parties,
The~pBrties hereby obnfirm that 4his Agreement conytity~tea the entire farms of their
agree'menYy aeknowled~~;thatthey have read'and understenq tHis Agreement, and further
acknoWled,~e'thtr(: they are authorized to s'1gn this Agreement on behalf oftheir respective
parties.
NLLAO R P 6i~CH
6. .~
Its: lZ
•Date: 7 O
frUMBERU1Np CASUALTY ANb 8URETY CO.
13Y~
Its:
Oete; _
3
1
`~
b 'd 8b61Zfi819~ 'OH %tld
AIM4'ItlH aNtl ~Ntl88 Wd bfi'.Zl 1,VS 00-9I-K(1f