10/16/03 Tolling Agreemente
The City of Kalispell
Incorporated 1892
Telephone (406) 758-7708
FAX (406) 758-7771
Post Office Box 1997
Kalispell, Montana
Zip 59903-1997
October 16, 2003
Kim Moore
Crowley, Haughey, Hanson, Toole & Dietrich
PO Box 759
Kalispell, MT 59903
Dear Kim:
Enclosed please find the Tolling Agreement between the City of Kalispell and Nupac. If you
have any questions, please do not hesitate to call the office at the above number.
Sincerely,
Judi Funk
City Attorney Secretary
Enclosure
CROWLEY, HAUGHEY, HANSON, TOOLE & DIETRICH P.L.L.P.
ATTORNEYS AT LAW
431 FIRST AVENUE WEST - KALISPELL, MONTANA 59901-4835
P.O. BOX 759. KALISPELL, MONTANA 59903-0759
TEL (406) 752-6644 • FAX (406) 752-5108
www.crowleylaw.com
STEPHEN M. BARRETT
ROBERT C. GRIFFIN
JARED M. LE FEVRE KRISTIN L. OMVIG
OF COUNSEL
100 NORTH PARK AVENUE
COLBY L. BRANCH
PETER F. HABEIN
STEVEN J. LEHMAN # JEFFERY J. OVEN
GEORGE C. DALTHORP
SUITE 300, P.O. BOX 797
# ALAN C. BRYAN
SCOTT D. HAGEL
KARL H. LEWIES * SHANE D. PETERSON
JOHN M. DIETRICH
HELENA, MT 59624-0797
ASHLEY BURLESON
NATHAN S. HANEY
# DENISE D. LINFORD HERBERT 1. PIERCE III
I. JAMES HECKATHORN
PHONE (406) 449-4165
JANET P. CHRISTOFFERSEN
KEVIN P. HEANEY
JASON P. LOBLE * FRED C. RATHERT
DAVID L. JOHNSON
PAUL C. COLLINS
* KENNETH G. HEDGE
CHRIS MANGEN, JR. STEVEN RUFFATTO
NEIL S. KEEFER
113 EAST BROADWAY
GARY M. CONNELLEY
JAMES R. HINTZ
WILLIAM J. MATTIX JAMES P. SITES
GARELD F. KRIEG
P.O. BOX 1206
RENEE L. COPPOCK
LARRY A. HOLLE
JOE C. MAYNARD, JR * GARTH H. SHE
ARTHUR F. LAMEY, JR
WILLISTON, NO 58802-1206
MARCIA DAVENPORT
ANGELA K. JACOBS
JOHN H. MAYNARD LEONARD H. SMITH
* LOUIS R. MOORE
PHONE (701) 572-2200
JASON A. DELMUE
DANIEL D. JOHNS
JOSEPH P. MAZUREK # CHRISTOPHER C. VOIGT
MYLES 1. THOMAS
MICHAEL S. DOCKERY
DARIN W. JOHNSON
IAN MCINTOSH DAVID M. WAGNER
* FRED E. WHISENAND
45 DISCOVERY DRIVE
JOHN B. DUDIS, JR
JOEL L. KALEVA
DANIEL N. McLEAN STEFAN T. WALL
SUITE 200, P.O. BOX 10969
# JON T. DYRE
ALLAN L. KARELL
# MATTHEW F. McLEAN NEIL G. WESTESEN
OFFICES
BOZEMAN, MT 59719-0969
MARY SCRIM DYRE
KIELY KEANE
ROBERT G. MICHELOTTL JR. BRYAN G. WILLETT 500 TRANSWESTERN PLAZA 11
PHONE (406) 556-1430
SCOTT A. FISK
PETER M. KIRWAN
STEVEN R. MILCH
490 NORTH 31" STREET
* BRUCE A. FREDRICKSON
WILLIAM D. LAMDIN III
KIMBERLY S. MORE RETIRED
P.O. BOX 2529
700 S.W. HIGGINS
MICHAEL W. GREEN
* JOHN R LEE
DONALD R. MURRAY, JR JAMES M. HAUGHEY
BILLINGS, MT 59103-2529
SUITE 200
BRUCE R. TOOLE
PHONE (406) 252-3441
MISSOULA, MT 59803
Attorneys are licensed in Montana
unless otherwise noted; + not
licensed in Montana; * also licensed in Nordi Dakota; 4 also licensed in
PHONE (406) 829-2732
W}roming
October 14, 2003
Charles Harball
Kalispell City Attorney
P.O. Box 1997
Kalispell, MT 59903
RE: Woodland Court Subdivision Project
Nupac/City of Kalispell dispute
Dear Charlie:
Pursuant to our meeting last week, enclosed please find the proposed Tolling Agreement I have
prepared in this matter. If you find this agreement to be acceptable, please sign and return it to me. If
you h avc any questions or ^concerns, please do rot, hesltatello contact Me. T look forvv'ard to workirig
with you to resolve this matter.
KSM
Enclosure
cc: Jim Lynch
Sincerely yours,
CROWLEY, HAUGHEY, HANSON,
TOOI,E-A DIETRICH P.L.L.P.
ERLY S.
ESTABLISHED 1895
THIS TOLLING AGREEMENT ("Agreement"), is made and entered into this day
of October, 2003 between the City of Kalispell, (hereinafter referred to as "the City") and Pack
and Company (hereinafter referred to as "Nupac").
WITNESSETH:
WHEREAS, Nupac and the City entered into a Contract on November 14, 1995, pursuant
to which Nupac performed for the City certain Construction of Site Grading, Street Paving and
Water and Sewer Improvements for the City of Kalispell at the Woodland Court Project
(hereinafter referred to as "Contract"); and
WHEREAS, a dispute has arisen between the City and Nupac concerning the payment for
certain services rendered by Nupac to the City under the terms of the Contract;
WHEREAS, the parties have been and are continuing to attempt to resolve this matter
without initiating a lawsuit or any other litigation; and
WHEREAS, it is the desire of the parties hereto during the term of this Agreement to
preserve the status quo as it relates to claims between them arising from their contract dispute
mentioned above;
NOW THEREFORE, in consideration of the mutual promises and covenants contained
herein, the parties agree as follows:
1. Nupac hereby agrees not to assert against the City, in a lawsuit or any other
litigation, any claim arising from the payment dispute during the term of this Agreement.
2. The City hereby agrees to the tolling of any and all statutes of limitation, including
the statute of limitation contained in the above -mentioned Contract, or any and all other time
based defenses during the term of this Agreement.
3. The term of this Agreement shall commence on October2003,
(hereinafter the "Effective Date") and shall terminate upon the happening of any of the following
events:
(a) Thirty days after the postmarked date of any notice terminating this
Agreement sent by either party to the other by certified mail; or
(b) Thirty days after the parties have settled their dispute.
4. This Agreement is intended by the parties to toll the running of statutes of
limitation and other time based defenses, and shall not in any way affect any other right or
obligation of the parties. Each of the parties hereby preserves against the other any and all claims
or defenses that may exist as of the date hereof.
TOLLING AGREEMENT Page 1 of 2
5. All parties to this Agreement acknowledge that any lawsuit, other litigation or
claim described above in this Agreement and commenced within sixty (60) days immediately
following the expiration or termination of this Agreement shall not be deemed time barred if
such claim was not time barred as of the Effective Date.
6. The parties shall, and hereby do, expressly and knowingly waive any and all
laches or limitation rights and/or defenses, if any, arising during a period beginning with the
Effective Date to and including sixty (60) days following the expiration or termination of the
Agreement.
7. Nothing in this Agreement with respect to claims shall be read as constituting an
admission against interest by the parties.
8. This Agreement inures to the benefit of, and is binding upon, the parties, their
heirs, successors and assigns.
9. This Agreement may be executed in any number of counterparts with the same
effect as if the signatures on each counter part were upon a single instrument. Facsimile
signatures shall be given the same force and effect as original signatures. All counterparts, taken
together, shall constitute the Agreement.
10. This Agreement constitutes the entire agreement between the undersigned parties
with respect to the subject matter hereof, and any prior oral or written statements concerning the
same are merged herein for all purposes and shall be of no force and effect.
THE CITY OF KALISPELL PACK AND COMPANY
z"
By: .� By:
CHA RLE i1 " Aft 4BERLY 10
Kalispell City Attorney Crowley, Hau y, anson,
Toole Dietrich, P.L.L.P.
Attorneys for Pack and Company
TOLLING AGREEMENT Page 2 of 2