HomeMy WebLinkAboutContracts & Agreements_152-2012_CCv0001.pdf AGREEMENT TO PRO-RATA DISTRIBUTION OF STOP NOTICE FUNDS
The foregoing Agreement is entered by and between the City of Redlands (the "City"),
Orco Block Co., Inc., ("Orco"), Wesco Distribution, Inc., ("Wesco") and Paver 136cor Masonry,
Inc. ("Paver Ddcor")(collectively referred to as the"Parties.")
RECITALS
A. WHEREAS, Orco, Wesco and Paver D6cor were either subcontractors or
suppliers on a public work of improvement known as Ed Hales Park Improvements, E State
Street & N 5h Street, in the City of Redlands (the "Project"), with the City being the owner of
said Project;
B. WHEREAS, Orco, Wesco and Paver Ddcor all filed stop notices with the City,
claiming they were owned monies for work, services, labor, equipment and/or materials that they
intended to provide and did provide to the Project and that were used and incorporated into the
Project;
C. WHEREAS, Orco filed a Complaint entitled Orco Block Co., Inc. v. City of
Redlands,et al., Case No. CIVDS 1204123, in the San Bernardino Superior Court,which stated a
cause of action for enforcement of public works stop notice, among other causes of action, and
which seeks recovery of the principal amount of$17,086.22;
D. WHEREAS, Wesco filed a Complaint entitled Wesco Distribution, Inc. v. Kornix,
Inc., et al., Case No. CIVDS 1205 901 in the San Bernardino Superior Court, which stated a cause
of action for enforcement of stop notice, among other causes of action, and which seeks recovery
of the principal amount of$31,054.20;
E. WHEREAS, Paver D6cor filed a Complaint entitled Paver D&orkfasonry, Inc. v.
City of Redlands, et al., Case No. CIVDS 1201494, in the San Bernardino Superior Court, which
stated a cause of action for enforcement of stop notice, among other causes of action, and which
seeks recovery of the principal amount of$52,923.56;
F. WHEREAS, the City is currently holding $27,141.00, in response to the Stop
Notices filed with regard to the Project(the"Funds");
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G. WHEREAS, the City has incurred$1,025.00 in fees and costs associated with this
matter and the stop notices:
H. WHEREAS, the Parties desire and wish to resolve their stop notice claims only
without incurring the cost and disruption of further litigation and therefore have a agreed to pro
rata distribution of the Funds;
AGREEMENT
NOW THEREFORE, in consideration of the foregoing, the following respective
provisions and covenants,the Parties hereto agree and release each other as follows:
1. Prorata Distribution. The Parties agree that the City shall reimburse itself and
distribute the Funds in a pro rata manner as follows:
A. Paver D6cor shall receive 52.366%of the Funds(plus .09),which amounts
to $13,675.99. The City shall issue a check in the amount of$13,675.99, made payable to Paver
136cor, and deliver said check to Paver Ddcor's attorney of record, Christopher G. Jensen at
Reynolds,Jensen& Swan, LLP, 323') Arlington Avenue, Suite 203, Riverside,CA 92506.
B. Wesco shall receive 30.727% of the Funds (plus .09), which amounts to
$8,024.75. The City shall issue a check in the amount of$8,024.75, made payable to Wesco, and
deliver said check to Wesco's attorney of record, Robert D. Schwartz at Poindexter & Doutre,
Inc., 624 South Grand Avenue, Suite 2420, Los Angeles, CA 90017-3325.
C. Orco shall receive 16.906% of the Funds (plus .09), which amounts to
$4,415.26. The City shall issue a check in the amount of$4,415.26, made payable to Orco and
deliver said check to Orco's attorney of record, William C. Haggard at WCH Law Group, P.C.,
625 The City Drive South, Suite 325,Orange, CA 92868.
D. The City shall be reimbursed $1,025.00 from the Funds for its attorney
fees and costs.
2. Timing of Pqvment. All payments under this Agreement shall be delivered within
fifteen(15)days of the City receiving all signatures of Orco. Wesco and Paver 136cor.
3. Dismissals. Within ten (10) days of the City making payments hereunder. Orco,
Wesco and Paver 136cor shall dismiss, with prejudice, from their complaints the City of Redlands
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and their claims to enforce their stop notices. Orco, Wesco and Paver D6cor shall provide the
City's attorney with a conformed copy of the dismissals.
4. Reservation of Rights. This Agreement and the dismissals to be filed herein is
intended to settle and resolve the stop notice claims of Orco, Wesco and Paver Ddcor against the
City only. No other disputes, claims, demands, allegations, rights, defenses, or causes of action,
in law or in equity, arising out of, relating to or concerning the Project or any other project,
contract or matter between the Parties or others is resolved, settled, compromised, waived or
dismissed as a result of the Parties entering into this Agreement. Orco, Wesco and Paver 136cor
expressly reserve any and all rights, claims, demands, allegations, defenses, or causes of action,
either in law or equity, that they have or may have against each other (except for stop notice
claims against the City) or other parties, including but not limited to their customers, other
contracting parties, guarantors, the general contractor (Kormx, Inc.), the public works payment
bond surety (American Safety Casualty Insurance Company), and contractor's license bond
sureties.
5. Action to Enforce or for Breach. In the event any action, arbitration or proceeding
is required to enforce the terms of this Agreement or as a result of the breach of this Agreement,
the prevailing party will be entitled to recover reasonable attorney fees, costs and expert witness
fees in addition to any other relief awarded against the Party or Parties which are subject to, but
which did not prevail in such action, arbitration or proceeding.
6. Successors and Assigns. The Parties agree that this Agreement shall be binding
upon their agents, partners, successors, heirs, legal representatives and assigns.
7. Authority to Bind. All of the Parties warrant that they are authorized to execute
this Agreement and all exhibits and that they have consulted with their respective attorneys prior
to the execution hereof.
8. Recitals. The recitals of this Agreement are hereby incorporated and made part of
this Agreement.
9. Severabilitv. Should any of the provisions herein be determined to be invalid by a
court of competent jurisdiction, it is agree such invalidity shall not affect the enforceability of the
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other provisions herein and that the Parties shall renegotiate and reform any such provision in
good faith to effectuate its purpose and conform to the law.
10. Parties to Cooperate. The Parties agree that they will cooperate in implementing
this Agreement and will take such reasonable action as are necessary to provide the other party
with such additional documentation as may be necessary to implement this Agreement or carry
out its purpose.
11. Ownership of Claims. The Parties represent and warrant that they have not
previously sold, devised, bequeathed or otherwise assigned or transferred any claim or property,
which is settled, compromised or released or sold herein, that the signatories have full authority
to enter into this Agreement for each party's part, and that the consent or approval of no other
person or entity is required to effectuate the settlement or release of the claims contemplated
herein.
12. Counterparts. This Agreement may be signed in multiple counterparts and
facsimile and Xerox copied signatures will be deemed as original signatures.
13. Entire Agreement. This Agreement constitutes the entire understanding between
the Parties with respect their stop notice claims, and supercede all prior written and/or oral and
all contemporaneous oral agreements, understandings and negotiations. The Parties agree that
this Agreement may only be modified by a writing executed by all of the Parties hereto.
14. Governing Law and Equitable Relief. This Agreement shall be interpreted and
enforced in accordance with the laws of the State of California and the Parties consent to the
exclusive jurisdiction of the Superior Court of California, County of San Bernardino, for any
dispute arising out of this Agreement.
15. Headings. The headings of the sections of this Agreement are for convenience
and shall not be themselves determine the interpretation of this Agreement.
16. No Third Party Beneficiaries. Nothing contained in this Agreement shall be
deemed to create any third party contract rights to any person or entity whatsoever.
17. Cooperation in Drafting. Each party has cooperated in the drafting and
preparation of this Agreement. Hence, in any construction to be made of this Agreement, the
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same shall not be construed against any party on the basis that the party was the drafter or maker.
Rather,the language of this Agreement shall in all cases be construed as a whole,according to its
fair meaning and not strictly for or against any of the Parties.
18. Enforceability. This Agreement is enforceable under California Code of Civil
Procedure section 664.6.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and
year noted below:
Dated: August 2012 ORCO BLOCK CO., INC.
By:
Barbara Conibear, Credit Manager of
Oreo Block Co., Inc.
Dated: August 2012 WESCO DISTRIBUTION, INC.
By:
Steve Katz, Regional Financial Services
Manager for Wesco Distribution, Inc.
Dated: August 2012 PAVER DECOR MASONRY, INC.
By:
Name:
Title:
[Signatures continue on the next page]
Dated: A est , 2012 CITY OF REDLANDS
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By:
Name: Pete ggui lar
Title: Mayor
ATTEST:
Sam Irwi , Oity Clerk
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