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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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 3 this action are dismissed with prejudice. 4 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. 18 19 20 21 22 23 24 25 26 27 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 '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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 1 21 3I 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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