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HomeMy WebLinkAboutGrimmway Enterprises - Amended Tolling AgreementAMENDED TOLLING AGREEMENT This tolling agreement (the "Agreement") is made and entered into as of this /Z day of February, 2021 (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. WHEREAS, the Parties entered into a tolling agreement dated October 23, 2020, and now wish to amend and supersede the same to provide for an extended tolling period as set forth herein. 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 July 1, 2021, or until thirty (30) days after any party hereto provides written notice of withdrawal from this Agreement. 4. This Agreement shall be construed in all respects as jointly drafted, and shall not be construed in any way against any Party 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. b. 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 II Menke Jackson Beyer, LLP 807 North 39`h Avenue Yakima, WA 98902 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. GRIMMWAY ENTERPRISES, INC. By: —t-- —V Its: G14,4.. Dated: 1 -it -402,1 CITY OF PASCO By: — ave 7,abell Its: City Manager Dated: 3.3.21 3 Cit Of vsSco Wasiwigton Memo PUBLIC `FORKS — CAPITAL IMPROVEMENTPROGRAM (509) 545-3444 P.O. Box 293 (525 North 3rd Avenue) Pasco, Washington 99301 /kviNiv.pasco-wa.gov To: Dave Zabell From: Janette Romero on behalf of Maria Serra ®ate: 3.3.2021 Project: Grimmway Amended Tolling Agreement The cost of this Agreement is 4, vvt QIfi- This amendment is for the Tolling Agreement that the City entered into with Grimmway on 10.23.2020, both parties are now seeking to amend and supersede the original agreement to provide for an extended tolling period as set forth in the amendment. Legal has reviewed this Agreement: Z Yes ❑ No ❑ N/A