HomeMy WebLinkAboutIGI Resources Reser's Fine Foods Settlement AgreementSETTLEMENT AGREEMENT
Parties
THIS AGREEMENT is entered into by and between IGI Resources, Inc., Reser's's Fine
Foods, Inc., and the City of Pasco (each, a "Party" and collectively, the "Parties ").
Preamble
WHEREAS, IGI Resources, Inc. ( "IGI "), on behalf of its client Reser's's Fine Foods,
( "Reser's's ") filed suit in Franklin County Superior Court, Cause No. 11- 2- 50128 -3, against the
City of Pasco ( "Pasco ") seeking a refund of utility tax payments paid to Pasco on behalf of
Reser's (the "Refund Litigation "); and
WHEREAS, Pasco contests IGI's rights to a full refund for a period greater than one
year; and
WHEREAS, on January 23, 2012, a judgment was entered on behalf of IGI against
Pasco, from which Pasco appealed having satisfied said judgment on February 27, 2012; and
WHEREAS, by decision rendered on April 22, 2014, Division III of the Court of
Appeals reversed the trial Court's grant of IGI's motion for summary judgment with a mandate
pending; and
WHEREAS, both Parties desire to enter into this Agreement to resolve this disputes
without further expense in a manner beneficial to both Parties and in order to avoid further risks
and hazards of litigation; NOW, THEREFORE,
In consideration of each Party's promises to perform, the Parties do hereby agree:
1. On or before December 31, 2014, Reser's, on behalf of (and without recourse to)
IGI, shall pay to Pasco the sum of $110,000.00.
2. Pasco waives post judgment interest that may have accrued on those funds paid in
satisfaction of the judgment.
3. A stipulated judgment shall be entered containing: (a) judgment in the sum of
$110,000.00 which will not be subject to execution nor accrual of any judgment interest prior to
December 31, 2014; and (b) specify that the one -year nonclaim Ordinance applies.
4. Execution of this Agreement by both Parties settles any and all claims that the
Parties have or may have against the other for, or relating to, (a) overpayment of, failure to pay,
or the refund of any municipal utility tax by IGI or Reser's, for the time period commencing on
February 1, 2008, through February 1, 2011, or (b) the Refund Litigation.
Settlement Agreement - I a S
5. This Agreement is not intended as an admission by either Party as to the
correctness of any legal or factual position of the other Party, nor the liability to any Party for the
tax liability, refund, or reimbursement of the refund that is the subject matter of this case.
6. Each signatory hereto represents and warrants that all necessary signatures and
consents to enter into this Agreement and to assume and perform the obligations hereunder have
been properly obtained.
7. Each term and provision of this Agreement is deemed to have been explicitly
negotiated at arm's length between the Parties and in all cases shall be construed and interpreted
according to its fair meaning and not strictly for or against either Party and without reference to
who might have drafted the term.
8. Each Party represents and warrants to the others that the decision to enter into this
Agreement is not based upon any representation by any other Party or by any attorney, employee
or other representative of any other party. Pasco, IGI and Reser's each represent that it has
obtained independent legal advice prior to executing this Agreement.
9. This Agreement is entered into and shall be construed and interpreted in
accordance with the laws of the State of Washington.
10. This Agreement embraces and includes the entire agreement between the Parties
and may not be changed except in writing by all Parties.
11. This Agreement may be executed in counterparts. Each counterpart shall be
deemed an original, all of which taken together shall be one and the same instruments. This
Agreement shall become effective upon execution of a counterpart by each Party and delivery to
the other party.
IN WITNESS WHEREOF, the Parties have duly executed this Agreement on the dates
indicated below.
DATED this AOA of May, 2014.
IL3. PAMkIM
Reser's Fine Foods, Inc. roved as to Form:
By: Leland B. Kerr
Its: City Attorney
Settlement Agreement - 2
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COP
ORIGINAL Fl[-EC-
MP 2014,
IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF FRANKLIN
IGI RESOURCES, INC.
Plaintiffs,
vs.
CITY OF PASCO, a Municipal Corporation
Defendant.
No. 11- 2- 50128 -3
FINDINGS OF FACT,
CONCLUSIONS OF LAW AND
JUDGMENT
�i
THIS MATTER having come before the Court on this CIjq day of May, 2014, upon
the stipulation of the parties hereto, and the Court having jurisdiction over the subject matter
and the parties hereto and being duly advised in the premises, makes the following Findings
I of Fact:
1. That the Plaintiff IGI Resources, Inc. ( "IGI ") brought the above - entitled action
as a broker of natural gas to customers within the City of Pasco serving customers within the
City of Pasco. Erroneously, IGI paid utility taxes to the City of Pasco for sales that occurred
outside of the City limits and initiated this action for the refund of such taxes.
2. City of Pasco defended on the basis that IGI had failed to exhaust its
administrative remedies and was subject to a refund of utility taxes only for the period of one
year prior.
1 FINDINGS OF FACT, CONCLUSIONS OF
LAW, AND JUDGMENT - PAGEI
KERR LAW GROUP
7025 WEST GRANDRIDGE BOULEVARD, SUITE A
KENNEWICK, WASHINGTON 99336 -7724
PHONE: (509) 735 -1542
FAX: (509) 735 -0506
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3. This matter was submitted to the Court on Stipulated Facts resulting
summary judgment entered in favor of the Plaintiff IGI in the sum of $175,374.47.
City of Pasco satisfied the judgment in protest and appealed the trial Court's grant of the
Plaintiffs summary judgment.
4. On April 22, 2014, Division III of the Court of Appeals overturned the trial'!
Court's concluding that the City of Pasco had the authority to establish its one -year nonclaim
Ordinance for the refund of taxes pursuant to PMC 1.17.020, stating the one -year limit for a
taxpayer seeking a refund of taxes does not violate due process, however, reversed the trial
Court's determination that the nonclaim period applies to IGI's claim and does not void
responsibility to pursue its administrative remedies.
S. The parties have reached an agreement regarding the Plaintiffs refund of a
portion of the funds paid by the Defendant City of Pasco in satisfaction of its judgment which
is the remaining issue in this case.
FROM THE FOREGOING FINDINGS OF FACT, the Court makes the following
Conclusions of Law:
1. That PMC 1.17.020 limiting the City's liability for the repayment of utility
taxes and other fees provided therein to one year (365 days) of payment, and refund of all
any portion of such payment is barred 365 days following payment to the City.
2. Utility tax payments which were the subject to this action, are subject to the
nonclaim period provided in PMC 1.17.020.
3. City of Pasco shall have judgment against the Plaintiff IGI for the refund
amount agreed by the parties in the sum of $110,000.00 subject to a Covenant Not to Execute
prior to December 31, 2014, nor the accrual of interest prior to December 31, 2014.
FINDINGS OF FACT, CONCLUSIONS OF
LAW, AND JUDGMENT - PAGE 2
KERB LAW GROUP
7025 WEST GRANDRIDGE BOULEVARD, SUITE A
KENNEWICK, WASHINGTON 99336 -7724
PHONE: (509) 735 -1542
FAX: (509) 735 -0506
1 4. Neither party is entitled to recovery of attorney fees or costs.
2 5. Plaintiffs claim and the Defendant's mandatory counterclaims arising out
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this action are dismissed with prejudice.
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DONE in open Court this X i '
5 C 6
7 JUDGE /C
8 Presented By:
9 KERR LAW GROUP
Attorney for Defendant
10 City co
12 1 Leland B. Kerr, WSBA #6059
13 Approved as t Form
Notice resentment Waived:
14
CE&L-AW FIRM
IS
16 Franklin G. Dinces, WSBA #13473
Attorney for Plaintiff
17 IGI Resources, Inc.
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28 FINDINGS OF FACT, CONCLUSIONS OF
LAW,ANDJUDGMENT -PAGE3
of May, 2014.
KERR LAW GROUP
7025 WEST GRANDRIDGE BOULEVARD, SUITE A
KENNEWICK, WASHINGTON 99336 -7724
PHONE: (509) 735 -1542
FAX: (509) 735 -0506
N
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'VqL F�
2014 Lj
IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF FRANKLIN
IGI RESOURCES, INC., )
No. 11- 2- 50128 -3
Plaintiff, )
VS. ) STIPULATED JUDGMENT
CITY OF PASCO, a Municipal Corporation, )
Defendant. 1
11111 mam104001]OID]_N
JUDGMENT SUMMARY
IGI Resources, Inc.
c/o BP America, Inc.
201 Helio Way, Room 5.108
Houston TX 77079
ATTORNEY FOR JUDGMENT CREDITOR: Franklin G. Dinces, WSBA #13473
THE DINCES LAW FIRM
5314 28th Street NW
Gig Harbor, WA 99335 -7608
JUDGMENT DEBTORS:
IllaPLO) awdlX1701I1 Eel 7117 0As a:T0]Ai
JUDGMENT PRINCIPAL:
City of Pasco
525 North 3rd
Pasco WA 99301
Leland B. Kerr, WSBA #6059
KERR LAW GROUP
7025 West Grandridge Blvd., Suite A
Kennewick WA 99336
$110,000.00
TOTAL JUDGMENT: $110,000.00
POST JUDGMENT INTEREST SHALL BEAR ZERO INTEREST PRIOR TO DECEMBER
31, 2014, AND NOT SUBJECT TO EXECTION PRIOR TO DECEMBER 31, 2014.
STIPULATED JUDGMENT - PAGE 1 KERR LAW GROUP
7025 W. Grandridge Blvd., Suite A
Kennewick, Washington 99336
Phone: (509) 735 -1542
Fax: (509) 735 -0506
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STIPULATION
COMES NOW, the undersigned by and through their attorneys of record, Franklin G.
Dinces of Dinces Law Firm, on behalf of Plaintiff; and Leland B. Kerr of Kerr Law Group, on
behalf of Defendant, and hereby stipulate that a Judgment be entered in favor of the
Defendant, City of Pasco, against the Plaintiff above - named, in the sum of One Hundred Ten
Thousand Dollars and 00 /100 ($110,000.00) subject to a Covenant Not to Execute nor the
accumulation of interest prior to December 31, 2014. The parties agree that this Judgment is
subject to a Settlement Agreement dated the 1 P day of May, 2014.
NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND
DECREED as follows:
1. That PMC 1.17.020 limiting the City's liability for the repayment of utility
taxes and other fees provided therein to one year (365 days) of payment, and refund of all or
any portion of such payment is barred 365 days following payment to the City.
2. Utility tax payments which were the subject to this action, are subject to the
nonclaim period provided in PMC 1.17.020.
3. City of Pasco shall have judgment against the Plaintiff IGI for the refund
amount agreed by the parties in the sum of $110,000.0 subject to a Covenant Not to Execute
prior to December 31, 2014, nor the accrual of interest prior to December 31, 2014.
4. Neither party is entitled to recovery of attorney fees or costs.
5. Plaintiffs claim and the Defendant's mandatory counterclaims arising out
this action are dismissed with prejudice.
DATED this u' -' dayeay, 2014.
w
JUDGE/COMMISSIONER
UN:. :ysa »Fv 5494C3
STIPULATED JUDGMENT - PAGE 2 KERR LAW GROUP
7025 W. Grandridge Blvd., Suite A
Kennewick, Washington 99336
Phone: (509) 735 -1542
Fax: (509) 735 -0506
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DATED this.V flay of May, 2014.
By: � �4�'L�
Leland B. Kerr, WSBA #6059
Attorn for`Defendant
r
Bv:
Franklin G. Dinces, WSBA #13473
Attorney for Defendant
I STIPULATED JUDGMENT - PAGE 3
0
Gary Crutchfield, City of Pasco
Defendant
Plaintiff
KERR LAW GROUP
7025 W. GRANDRIDGE Blvd., Suite A
Kennewick, Washington 99336
Phone: (509) 735 -1542
Fax: (509) 735 -0506
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DATED this _ day of May, 2014.
By:
Leland B. Kerr, WSBA #6059
Attorn efendant
By:
Franklin G. Dines, WSBA #13473
Attorney for Defendant
STIPULATED JUDGMENT - PAGE 3
By:
Gary Crutchfield, City of Pasco
Defendant
By:
lGl 12P,sr1r C /h G.
Plaintiff
KERR LAW GROUP
7025 W. GRANDRIDGE Blvd., Suite A
Kennewick, Wuhington 99336
Phone: (509) 735 -1542
Fax: (509)735 -0506
SETTLEMENT AGREEMENT
Parties
THIS AGREEMENT is entered into by and between IGI Resources, Inc., Reser's Fine
Foods, Inc., and the City of Pasco (each, a "Party" and collectively, the "Parties ").
Preamble
WHEREAS, IGI Resources, Inc. ( "IGI "), on behalf of its client Reser's Fine Foods,
( "Reser's's ") filed suit in Franklin County Superior Court, Cause No. 11- 2- 50128 -3, against the
City of Pasco ( "Pasco ") seeking a refund of utility tax payments paid to Pasco on behalf of
Reser's (the "Refund Litigation "); and
WHEREAS, Pasco contests IGI's rights to a full refund for a period greater than one
year; and
WHEREAS, on January 23, 2012, a judgment was entered on behalf of IGI against
Pasco, from which Pasco appealed having satisfied said judgment on February 27, 2012; and
WHEREAS, by decision rendered on April 22, 2014, Division III of the Court of
Appeals reversed the trial Court's grant of IGI's motion for summary judgment with a mandate
pending; and
WHEREAS, both Parties desire to enter into this Agreement to resolve this disputes
without further expense in a manner beneficial to both Parties and in order to avoid fuuther risks
and hazards of litigation; NOW, THEREFORE,
In consideration of each Parry's promises to perform, the Parties do hereby agree:
1. On or before December 31, 2014, Reser's, on behalf of (and without recourse to)
IGI, shall pay to Pasco the sum of $110,000.00.
2. Pasco waives post judgment interest that may have accrued on those funds paid in
satisfaction of the judgment.
3. A stipulated judgment shall be entered containing: (a) judgment in the sum of
$110,000.00 which will not be subject to execution nor accrual of any judgment interest prior to
December 31, 2014; and (b) specify that the one -year nonclaim Ordinance applies.
4. Execution of this Agreement by both Parties settles any and all claims that the
Parties have or may have against the other for, or relating to, (a) overpayment of, failure to pay,
or the refund of any municipal utility tax by IGI or Reser's, for the time period commencing on
February 1, 2008, through February 1, 2011, or (b) the Refund Litigation.
Settlement Agreement - 1
5. This Agreement is not intended as an admission by either Party as to the
correctness of any legal or factual position of the other Party, nor the liability to any Party for the
tax liability, refund, or reimbursement of the refund that is the subject matter of this case.
6. Each signatory hereto represents and warrants that all necessary signatures and
consents to enter into this Agreement and to assume and perform the obligations hereunder have
been properly obtained.
7. Each term and provision of this Agreement is deemed to have been explicitly
negotiated at arm's length between the Parties and in all cases shall be construed and interpreted
according to its fair meaning and not strictly for or against either Party and without reference to
who might have drafted the term.
8. Each Party represents and warrants to the others that the decision to enter into this
Agreement is not based upon any representation by any other Party or by any attorney, employee
or other representative of any other party. Pasco, IGI and Reser's each represent that it has
obtained independent legal advice prior to executing this Agreement.
9. This Agreement is entered into and shall be construed and interpreted in
accordance with the laws of the State of Washington.
10. This Agreement embraces and includes the entire agreement between the Parties
and may not be changed except in writing by all Parties.
11. This Agreement may be executed in counterparts. Each counterpart shall be
deemed an original, all of which taken together shall be one and the same instruments. This
Agreement shall become effective upon execution of a counterpart by each Parry and delivery to
the other party.
IN WITNESS WHEREOF, the Parties have duly executed this Agreement on the dates
indicated below.
DATED this day of May, 2014.
IGI Resources, Inc.
0
Its: G+'�F h r��c�Ae�ocf�
Settlement Agreement - 2
City of Pasco
Gary Crutchfield
City Manager
Approved as to Form:
Leland B. Kerr
City Attorney