Filed: Jul. 11, 2014
Latest Update: Jul. 11, 2014
Summary: STIPULATION AND [PROPOSED] ORDER FOR ARBITRATION AND STAY OF PROCEEDINGS GARLAND E. BURRELL, Jr., Senior District Judge. The undersigned parties, by and through their respective counsel of record, hereby represent and stipulate as follows: A. WHEREAS, Use-Plaintiff TURNKEY CONSTRUCTION SERVICES, INC. ("TURNKEY") is represented by V. Blair Shahbazian of Murphy Austin Adams Schoenfeld LLP; B. WHEREAS, Defendant ALACRAN CONTRACTING, LLC ("ALACRAN") is represented by John Rearden, Jr. of Oliver
Summary: STIPULATION AND [PROPOSED] ORDER FOR ARBITRATION AND STAY OF PROCEEDINGS GARLAND E. BURRELL, Jr., Senior District Judge. The undersigned parties, by and through their respective counsel of record, hereby represent and stipulate as follows: A. WHEREAS, Use-Plaintiff TURNKEY CONSTRUCTION SERVICES, INC. ("TURNKEY") is represented by V. Blair Shahbazian of Murphy Austin Adams Schoenfeld LLP; B. WHEREAS, Defendant ALACRAN CONTRACTING, LLC ("ALACRAN") is represented by John Rearden, Jr. of Oliver C..
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STIPULATION AND [PROPOSED] ORDER FOR ARBITRATION AND STAY OF PROCEEDINGS
GARLAND E. BURRELL, Jr., Senior District Judge.
The undersigned parties, by and through their respective counsel of record, hereby represent and stipulate as follows:
A. WHEREAS, Use-Plaintiff TURNKEY CONSTRUCTION SERVICES, INC. ("TURNKEY") is represented by V. Blair Shahbazian of Murphy Austin Adams Schoenfeld LLP;
B. WHEREAS, Defendant ALACRAN CONTRACTING, LLC ("ALACRAN") is represented by John Rearden, Jr. of Oliver Close, LLC;
C. WHEREAS, Defendant WESTCHESTER FIRE INSURANCE COMPANY ("WESTCHESTER") is represented by Marilyn Klinger and Kevin P. Gilliland of Sedgwick LLP;
D. WHEREAS, on or about March 22, 2013, TURNKEY, as subcontractor, and ALACRAN, as general contractor, entered into a written subcontract agreement (the "Subcontract"), whereby TURNKEY agreed to supply labor and materials to complete certain work on the water line for Building 60 at the Sierra Army Depot, in Herlong, California;
E. WHEREAS, Article 30.2 of the Subcontract provides, in pertinent part, as follows:
30.2 In the event Contractor or Subcontractor are unable, within twenty-one (21) days after the claim arises, to resolve their dispute through negotiations or mediation, or in the event Contractor and Subcontractor do not agree to mediation, any controversy or claim between Contractor and Subcontractor arising out of or related to this Subcontract, or breach thereof, shall be, at the sole and exclusive election of Contractor, settled by binding arbitration, which shall be conducted in Rockford, Illinois, in the same manner and under the same procedure as provided in the Prime Contract with respect to claims between the Owner and Contractor, except that a decision by the Architect shall not be a condition precedent to arbitration. If the Prime Contract does not provide for arbitration or fails to specify the manner and procedure for arbitration, it shall be conducted in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association currently in effect unless the parties mutually agree otherwise.
(the "Arbitration Agreement");
F. WHEREAS, on or about April 15, 2014, TURNKEY filed the instant lawsuit (U.S. District Court, Eastern District of California, Case No. 2:14-cv-00920-KJM-CKD) (the "Action") against ALACRAN and WESTCHESTER to preserve its legal rights, including its rights under the Miller Act;
G. WHEREAS, on December 11, 2013, Judge Troy L. Nunley of the United States District Court, Eastern District of California, in Case No. 13-cv-01654 TLN-CML, based on an arbitration clause in a subcontract between TURNKEY and ALACRAN on a different project also located at the Sierra Army Depot in Herlong, California, which arbitration clause was identical to the Arbitration Agreement, ordered such case to arbitration in accordance with such arbitration clause and stayed the matter pending resolution of the arbitration in accordance with 9 U.S.C. § 3;
H. WHEREAS, TURNKEY, ALACRAN, and WESTCHESTER have agreed that this Action should be stayed pending resolution of the arbitration pursuant to the Arbitration Agreement; and
I. WHEREAS, TURNKEY, ALACRAN, and WESTCHESTER have agreed that each shall retain a full reservation of their respective defenses, claims, and rights. Additionally, TURNKEY, ALACRAN, and WESTCHESTER agree that any such claims, defenses, and rights that may be asserted by each of them shall be tolled from the date of the Court's entry of a stay of proceeding in the above-entitled Action until such stay is lifted by order of the Court;
The undersigned parties, by and through their counsel of record, hereby stipulate as follows:
1. This entire Action shall be stayed pending resolution of the arbitration pursuant to the terms of the Arbitration Agreement; and
2. TURNKEY, ALACRAN, and WESTCHESTER shall each retain a full reservation of their respective defenses, claims, and rights. Additionally, any such claims, defenses, and rights shall be tolled from the date of the Court's entry of a stay of proceedings pursuant to this Stipulation until such stay is lifted by order of the Court.
SO STIPULATED.
[PROPOSED] ORDER
In consideration of the foregoing stipulation of the parties, and for good cause having been shown, this Court hereby orders this entire Action stayed in accordance with 9 U.S.C. § 3 pending resolution of the arbitration pursuant to the terms of the Arbitration Agreement.
IT IS SO ORDERED.
