HomeMy WebLinkAboutGrimmway Enterprises, Inc - Tolling AgreementTOLLING AGREEMENT
This tolling agreement (the "Agreement") is made and entered into as of this 23 qday of
01-h , 2020 (the "Agreement Date"), by and between Grimmway Enterprises, Inc.
("Grimmway ") and the City of Pasco, a Washington municipal corporation (the "City").
Grimmway and the City are individually referred to herein as a "Party" and collectively referred
to herein as the "Parties."
WHEREAS, Grimmway through counsel proposed that the parties enter into a tolling
agreement pursuant to which Grimmway's claims, and the City's defenses to said claims, arising
out of communications of the City relating to Grimmway's location of a carrot processing plant
in the City and provision of municipal utilities services thereto by the City, would be "tolled" to a
specified extent.
WHEREAS, the Parties believe that a tolling agreement would be in their joint best
interests and may avoid a multiplicity of actions arising from and/or related to the said claims.
WHEREAS, in order to preserve the claims by Grimmway against the City arising out of
communications of the City relating to Grimmway's location of a carrot processing plant in the
City and provision of municipal utilities services thereto by the City, and any defenses to such
claims which the City may assert or potentially assert, without admissions of any kind or sort
being attributed to them, the Parties desire to toll all applicable periods of limitations of any kind
or sort for the period and on the terms set forth below.
NOW, THEREFORE, in consideration of the mutual promises of the Parties contained herein,
the Parties hereby agree as follows:
1. The time period extending from the Agreement Date (as set forth in the first
sentence of this Agreement), until the date this Agreement expires in accordance with its terms
(the "Tolling Period"), shall not be counted in determining the time in which Grimmway shall be
required by any applicable statutes of limitations to file any action against the City with respect
to any claims or potential claims Grimmway may have arising from or related in any way to
communications of the City relating to Grimmway's location of a carrot processing plant in the
City and the requirements for the provision of municipal utilities services thereto by the City.
Similarly, the Tolling Period shall be applicable to any and all defenses the City may now have
or in the future may have arising from or related in any way to the claims asserted by
Grimmway.
2. The term "statutes of limitations" as used herein shall include, without limitation,
all time -based defenses such as statutes of limitations or repose, laches, estoppel, and/or any
other legal or equitable requirement concerning the timely filing of actions, whether arising by
statute, common law, contract, court order, or otherwise.
3. This Agreement shall remain in full force and effect until the earlier of March 1,
2021, or until thirty (3 0) days after any party hereto provides written notice of withdrawal from
this Agreement.
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4. This Agreement shall be construed in all respects as jointly drafted, and shall not
be construed in any way against any Parry hereto on the grounds that the Party was the drafter of
this Agreement.
5. Nothing in this Agreement shall constitute or be construed as an admission by any
Party that any claim or defense could properly be asserted against it by any other Party or that
any such claim would have any basis in law or in fact. Except as expressly provided in this
Agreement with respect to time -based defenses, this Agreement is not intended to and shall not
have any effect upon any defense that any Party may assert to any claim brought by any Party.
Nothing in this Agreement shall be construed as an admission by any Party regarding whether or
when any statute of limitations, laches, or other time -based defense has or has not begun to run
on any claim or whether or not any claim is or is not already barred, impaired, or limited by the
passage of time. This Agreement is not intended, and shall not be deemed, to revive any claim
held by any Party that is barred by virtue of the passage of time prior to the Agreement Date and
this Agreement in no way precludes a Party from asserting any time -based defenses to any such
claim. Upon completion of the Tolling Period, the City will have all the defenses available to it
as it had on the first day of the Tolling Period.
6. This Agreement shall be governed in all respects by the laws of the State of
Washington in effect at the time of its execution, without reference to Washington's conflict of
law rules.
7. This Agreement may not be amended or modified, except if done in writing and
executed by all the Parties hereto.
8. Notice required or permitted under this Agreement shall be in writing and shall be
deemed duly delivered upon personal delivery, as of three (3) days after depositing in the United
States mail, certified mail, return receipt requested, postage prepaid, or as of the first business
day after depositing such notice with a nationally recognized overnight courier service, expenses
prepaid, addressed as follows:
For Grimmway Enterprises, Inc.:
Sean A. Russel
Stokes Lawrence Velikanje Moore & Shore. P.S.
120 North Naches Avenue
Yakima, WA 98901
For City of Pasco:
Kenneth W. Harper
Menke Jackson Beyer, LLP
807 North 39"' Avenue
Yakima, WA 98902
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9. This Agreement may be executed in counterpart originals, each of which shall be
deemed to be an original by all Parties signatory to the counterpart.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as
of the date first written above.
GRI_MAdWAY E�1TF,RPRISES, INC.
Its: \f ��y.'y�•-�i G. f�. .
Dated: /D 23 *zt)
CITY OF PASCO
Ey:
Dave Zabell
Its: City Manager
Dated: