HomeMy WebLinkAbout04.b. Expenditure re Reimbursement Followup+9- Central Contra Costa Sanitary District January 12, 2015 TO: FINANCE COMMITTEE VIA: ROGER S. BAILEY, GENERAL MANAGER JEAN -MARC PETIT, DIRECTOR OF ENGINEERING DANEA GEMMELL, ENVIRONMENTAL SERVICES DIVISION MANAGER` FROM: THOMAS BRIGHTBILL, SENIOR ENGINEER .,I< j SUBJECT: ADDITIONAL INFORMATION REQUESTED REGARDING JOB 2137 AND REIMBURSEMENT TO GAGEN, MCCOY, MCMAHON, KOSS, MARKOWITZ & RAINES At the December 30, 2014 Finance Committee meeting, several follow -on questions were raised regarding the payment of reimbursement fees to a law firm. One of the committee members requested documentation showing why the District was reimbursing the law firm rather than the original installer. A copy of the October 26, 1973 Pledge Agreement is attached to this memo. The name of the law firm appears to have changed several times since the original Pledge Agreement was signed. TB:sdh encl. PLEDGE AGREEMENT As security for the payment of that certain Promissory Note from COURT F. STEWART, LOUISE M. STEWART, and STONE & STEWART, INC., herein jointly called the ( "Pledgor ") to HERB HOLDEN, herein called ( "Pledgee ") in the principal amount of $25,980.79, a copy of said loan is attached hereto and by this reference incorporated herein, Pledgor does hereby agree to assign, transfer and deposit with Robert S. Wrinkle of Seyranian & Seibert, 235 West MacArthur Boulevard, Oakland, California 94611 ("Pledgeholder" J1 all of the Pledgor's right, title and interest to monies an$ rebates due from Contra Costa Sanitary District on Job No. CCC SD 2137, Holiday Drive, Alamo, California, herein referred to as pledge collateral which is assigned to pledgeholder to insure the faithful performance by Pledgor of its obligation under said Note and this pledge. 1. That said pledge collateral shall be held and shall remain assigned and pledged with Pledgeholder at Oakland, California, as security for the performance of said Note. 2. Pledgeholder is hereby appointed by Pledgor as its true and lawful attorney in fact, irrevocable, and in its name and stead to collect all monies, sell, assign, transfer and set over unto a purchaser-said for the purpose of the pledge and security hereinabove provided,and to make and execute all necessary acts of assignment and transfer, and to substitute one or more persons with like power, hereby ratifying and confirming all that said attorney or his substitute shall lawfully do by virtue thereof. 3. In the event that Pledgor defaults in performance of R default, Pledgeholder shall cause a sale of such pledge collateral and cause a transfer of said pledge collateral to be made to the purchaser thereof. 4. Pledgor shall pay all costs, expenses and legal fees of Pledgeholder in the event Pledgor shall be in default, and he shall be requested by Pledgee to sell said pledge collateral pursuant to the pledge herein made. All other pledge fees, if any, shall be borne equally by Pledgor and Pledgee. 5. In consideration of the acceptance of the pledge herein provided by Pledgeholder, he shall in no case or event, be liable for the failure of any of the conditions of the pledge herein provided, or.damages caused by the exercise of his discretion in any particular manner, or for any other reason, except gross negligence or wilful misconduct, and shall not be liable or responsible for his failure to ascertain the terms or conditions, or to comply with any of the provisions of any agreement, con- tract or other documents in connection herewith or referred to herein. If any controversy, arises between the parties hereto or with any third person, with respect to the pledge, its terms and conditions, Pledgeholder shall not be required to determine the same or take any action, but may await the settlement of the controversy by final appropriate legal proceedings or other- wise as he may deem proper in his sole discretion, and in such event, he shall not be liable for any interest or damages_ If any legal action is taken against Pledgeholder by either of the parties hereto, or by any third person, by reason of his re- fusal to act pending such controversy, or should he be inter - pleaded, or should he interplead the parties or any third person . ( I ;. 6. In addition to and in supplement of the terms of default and acceleration contained in the promissory note in the event of the failure in business, insolvency, adjudication of bank- ruptcy, or a general assignment for the benefit of creditors by the Pledgor, then at the option of Pledgees, the whole of the note secured by a second deed of trust on real property located at 11 Megari Court, Alamo, California and this pledge agreement shall become due and payable, and any extension of.• time of payment,in effect at that time,shall be waived. With- out limiting the remedy under said promissory note in case of default of pledgor thereunder, Pledgeholder shall have the right to sell, upon the instruction of Pledgees, so much of said pledge collateral as may be necessary to produce the sum re- quired in order to pay the total amount due under the terms of said guaranty. Said sale may be public or private, at the sole discretion of Pledgees. 7. In case of a sale hereunder, Pledgeholder shall de- liver the pledge collateral to the purchaser or purchasers . thereof, and shall apply any and all monies or credits,•includ- ing the proceeds of any such sale or sales, to the cost of sale, including reasonable attorneys fees .of Pledgeholder, and the balance remaining from said sale shall be credited against the amount due and owing under said promissory note, any sum re- maining thereafter to be delivered to Pledgor. At any such sale, whether public or private,. Pledgees or their representative.or or assignee shall have the right to purchase the property sold, or any part thereof, directly or in the name or names of other persons. 8. Except as in this agreement otherwise expressly speci- fied, all of the nrnwiG;n.,cz- .,F I - ., r,..._ . a - __ r__ _L - - - , Provided, Pledgees shall give Pledgor and Pledgeholder thrity (30) days prior written notice of intention to cause the pledge collateral to be sold, within which time Pledgor may cure the alleged default or other reason for such sale, without penalty. There shall be no power of sale or foreclosure of the rights of Pledgor hereunder unless and until Pledgees shall have given Pledgor and Pledgeholder thirty (30) days written notice of default by Pledgor on the note secured hereby, within which time Pledgor shall have the right to cure such alleged default without penalty. 9. Pledgeholder, at the request of Pledgees, shall post pone the sale of said pledged property by oral announcement thereof at the time and place of sale and may thereafter post- pone said sale from time to time by like announcement. Said sale shall take place in the City of Oakland, State of California. * Pledgeholder in conducting said sale may act through an agent, attorney or auctioneer. 10. Should Pledgeholder postpone any sale called for hereinunder, or accept a payment on the note, such action shall not constitute a waiver of any of the rights of Pledgees here- under or under the note so guaranteed. 11. The power of sale and all other powers, rights and privileges hereinabove given are to apply to and bind the heirs, executors, administrators, successors and assigns of the par- ties hereto. 12. Should either party be required to bring an action at law or in equity for the enforcement of any of the provisions of this agreement or for the recovery of damages for breach of this agreement, the losing party shall pay all the costs of the prevailing party arising out of such action, including rea- soriable attorneys fees. 13. At such time that Pledgor repays said Note to Pledgee in full, Pledgeholder shall reassign said pledge collateral (unless sold under either provision of this Agreement) and any monies collected on said collateral, if any, to Pledgor. . Dated: October 26, 1973 Pledgee: ` /Y �' HERB HOLDEN Ple3gor : l .. COURT F. STEWART LOUIST,44. S EWART STONE ('A ST ETA T, INC. Byji�- Court-F: Stewart, President f I hereby consent to act as Pledgeholder pursuant to the terms of the foregoing Agreement. ROBERT S. WRINKLE