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HomeMy WebLinkAboutJewel Apple, Ltd - Tolling Agreement TOLLING AGREEMENT City of Yakima and Jewel Apple, Ltd. This Tolling Agreement ( "Agreement ") is made effective as of the 25th day of August, 2008 ( "Effective Date ") by and between the City of Yakima, Washington ( "City ") and Jewel Apple, Ltd. WHEREAS, the parties deem it to be in their mutual benefit that claims by the City not be asserted in litigation at the present time; WHEREAS, the City and Jewel Apple, Ltd. desire to encourage resolution and /or such further review or disposition of the City's claims as may result in no lawsuit or claim being filed and, in any case, wish to avoid the expense and uncertainty of litigation of the claims if possible, and are willing to make the stipulations, covenants and agreements hereinafter set forth in order to defer and postpone the commencement of litigation; NOW, THEREFORE, in consideration of the mutual agreements hereinafter set forth, the parties do hereby covenant and agree as follows: 1. As used in this Agreement, the following terms shall have the following meanings: a. "Claims" shall mean any and all claims and /or causes of action of the City that it has in connection with Jewel Apple's outstanding strong waste surcharge balance from June 24, 2005 to present. b. "Tolling Period" shall mean the period from and including the Effective Date (as defined above) of this Agreement until and including the Expiration Date (as defined below) of this Agreement. The Tolling Agreement shall expire on March 31, 2009, at which time the statute of limitations shall no longer be tolled and the statute of limitations shall begin to run again. c. "Expiration Date" shall mean March 31, 2009. d. "Timing Defenses" shall mean those affirmative defenses to the City's Claims that Jewel Apple may have to the extent based upon any statute of limitations and /or any failure of the City to file a damage claim, institute or commence litigation, or institute or commence any other legal proceeding of aforementioned action within some specified period, before a specified date, or before the happening of a specified event. 2. The City and Jewel Apple, Ltd. stipulate, covenant, and agree that Timing Defenses applicable to the Claims shall be tolled during the Tolling Period. 3. The City and Jewel Apple stipulate, covenant, and agree that this Agreement shall have no effect on any Timing Defenses that may be available to Jewel Apple prior to the Effective Date, and that all time periods prior to the Effective Date and after the Expiration Date shall be included in the calculation of and running of any applicable Tolling Agreement Page 1 of 3 City of Yakima and Jewel Apple Timing Defenses. Nothing contained herein shall preclude Jewel Apple from asserting any Timing Defenses to the extent that such defenses already exist as of the Effective Date, and nothing herein shall be deemed to revive any Claims barred as of the Effective Date. Furthermore, this Agreement shall have no effect on any defenses asserted by Jewel Apple other than those described in this Agreement. 4. The City and Jewel Apple stipulate, covenant, and agree that Jewel Apple, by executing and entering into this Agreement, is not waiving or otherwise impairing by estoppel or any other means Jewel Apple's right and ability to raise any Timing Defenses available to it for the periods prior to the Effective Date and after the Expiration Date. 5. The provisions of this Agreement comprise all of the terms, conditions, agreements and representations of the parties respecting the tolling of the Timing Defenses. This Agreement may not be altered or amended except by written agreement executed by the City and Jewel Apple. Both the City and Jewel Apple hereby agree that the terms of this Agreement have not been changed, modified, or expanded by an oral agreements or representations entered into or made by the City or Jewel Apple prior to or at the execution of this Agreement. 6. The parties hereto acknowledge that each of them has had the benefit of counsel of their choice and has been offered an opportunity to review this Agreement with chosen counsel. The parties hereto further acknowledge that they have, individually or through their respective counsel, participated in the preparation of this Agreement, and it is understood that no provision hereof shall be construed against any party hereto by reason of either party having drafted or prepared this Agreement. 7. This Agreement may be executed in one or more original facsimile counterparts, each of which shall be deemed an original, but also which together will constitute one and the same instrument. 8. This Agreement shall terminate on the Expiration Date as provided in paragraph 1(c) above, unless extended in writing by the parties to be bound. 9. Nothing in this Agreement shall be construed as an admission or denial by any of the parties as to the merits of any of the City's claims against Jewel Apple or the merits of the Jewel Apple's defenses to any of the City's claims. 10. This Agreement is not intended to be admissible against any party or anyone else as an admission of any liability and /or fault in any matter. Notwithstanding the immediately preceding sentence, the Agreement, if otherwise admissible, may be introduced into evidence at any proceeding between or among the parties to enforce its terms. Tolling Agreement Page 2 of 3 City of Yakima and Jewel Apple 11. Any provision of this Agreement that imposes an obligation after termination or expiration of this Agreement shall survive the term or expiration of this agreement and shall be binding on the parties to the Agreement. Michael Roche IN WITNESS WHEREOF, this Agreement has been signed by ; his attorney Brendan Monahan; by the City Manager for the City of Yakima; and by the attorney for the City. CITY OF YAKIMA +_w Yil By: Dated this day of September, 2008. R.A. Zais, Jr. City Manager CITY OF YAKIMA LEGAL DEPARTMENT Lw cry By: Dated this day of- September, 2008. Lawrence Watters, WSBA No. 7454 Senior Assistant City Attorney JEWEL APPLE By: j26 A f , , S c l r s CG , / h c , Dated this 3 a day of September, 2008. /7 - 6:-t 7 STOKES LAWRENCE VELIKANJE MOORE & SHORE ,I By: Dated this ' day of September 2008. Brendan V. Monahan, IT SBA No. 22315 Tolling Agreement fit, Page 3 of 3 City of Yakima and Jewel Fr-x-it • • 0}5-y,:k ROUTE SLIP I L-- TO: t � h DATE FROM: ©, For Your Comments :; Your Information Q For Your Approval d Note & Return O Take Appropriate Action -0 Note &File 0 Call Me 0 For Your Signature i O "See Me p 0 Reply & Send Me Copy i - COMMENTS. 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