Opinion
Case No.: C 03-0707 SI
May 11, 2004
TRACY L. HOLTZ, OPERATING ENGINEERS LOCAL UNION NO. 3 TRUST FUNDS-MULTI-SERVICES, Alameda, CA, for the Plaintiffs
WILLIE E. PHILLIPS, for the dependants
STIPULATION TO DISMISS ACTION; ORDER THEREON
Plaintiffs KEN WALTERS, DON DOSER, in their respective capacities as Trustees of the OPERATING ENGINEERS HEALTH AND WELFARE TRUST FUND FOR NORTHERN CALIFORNIA; PENSION TRUST FUND FOR OPERATING ENGINEERS; PENSIONED OPERATING ENGINEERS HEALTH AND WELFARE FUND; OPERATING ENGINEERS AND PARTICIPATING EMPLOYERS PRE-APPRENTICESHIP, APPRENTICE AND JOURNEYMEN AFFIRMATIVE ACTION TRAINING FUND; OPERATING ENGINEERS VACATION AND HOLIDAY PLAN; OPERATING ENGINEERS CONTRACT ADMINISTRATION TRUST FUND; OPERATING ENGINEERS MARKET PRESERVATION TRUST FUND; OPERATING ENGINEERS INDUSTRY STABILIZATION TRUST FUND ("Operating Engineers Trust Funds") and Defendants COYOTE CONSTRUCTION, INC., a California Corporation and GEORGE ALVIN HARDY JR II, individually and doing business as COYOTE CONSTRUCTION ("Defendants") stipulate and agree to the following:
1. The Operating Engineers Trust Funds, the Defendants executed a Settlement Agreement in order to resolve the above-captioned proceeding. A true and accurate copy of the Settlement Agreement is attached hereto as Exhibit A.
2. In light of the Settlement Agreement, the above-captioned matter is dismissed pursuant to Federal Rule of Procedure 41(a)(1).
3. Each party will bear their own attorneys' fees and costs relating to this proceeding.
4. The Court will retain jurisdiction over the above-captioned proceeding to enforce the terms of the Settlement Agreement referenced in paragraph 1 above.
ORDER
Based upon the above-stated stipulation for dismissal of action without prejudice and pursuant to Federal Rule of Civil Procedure 41(a)(1), this action is dismissed as to the Defendants. Each party will bear their own attorneys' fees and costs to relating to this proceeding. The Court retains jurisdiction to enforce the terms of the Settlement Agreement executed by the Operating Engineers Trust Funds and Defendants to resolve the above-captioned proceeding.SETTLEMENT AGREEMENT
This SETTLEMENT AGREEMENT ("Settlement Agreement") is made between Plaintiffs KEN WALTER and DON DOSHR, in their respective capacities as Trustees of the OPERATING ENGINEERS HEALTH AND WELFARE TRUST FUND FOR NORTHERN CAUFORNIA. PENSION TRUST FUND FOR OPERATING ENGINEERS; PENSIONED OPERATING ENGINEERS HEALTH AND WELFARE FUND; OPERATING ENGINEERS AND PARTICIPATING EMPLOYERS PRE-APPRENTICESH1P. APPRENTICE AND JOXJRKEYMEN AFFIRMATIVE ACTION-TRAINING FUND; OPERATING ENGINEERS VACATION AND HOLIDAY PLAN; OPERATING ENGINEERS CONTRACT ADMINISTRATION TRUST FJND; OPERATING ENGINEERS MARKET PRESERVATION TRUST FUND; OPERATING ENGINEERS INDUSTRY STABILIZATION TRUST FUND; ("Plaintiffs" or "Operating Engineers Trust Funds"), Defendant COYOTE CONSTRUCTION, INC. and Defendant GEORGE ALVIN HARDY JR. II, individually and doing business 2$COYOTE CONSTRUCTION (hereinafter collectively referred to as "Defendants")Recitals Of Fact
The Plaintiffs and Defendants are parties to that certain action exiledKen Walters, et al., v. Coyote Construction et al., Case No, C 03-0707 SL which is pending in the United States District Court for the Northern District of California (the "Lawsuit").
All of the parties wish to settle the Lawsuit and to resolve all claims between them arising from the circumstances set forth in the pleadings in the Lawsuit.
WHEREAS, the parties therefore agree as follows:
Stipulation
1. The Defendants agree to pay to the Operating Engineers Trust Funds the sum of $30,482.66 for the principal contributions owed to the Operating Engineers Trust Funds based upon covered work performed by employees of Coyote Construction, Inc. The aforementioned payment will be made in the form of monthly installments in the amount of 52,000.00 per installment, beginning on May 15, 2004, and due on the 15th day of each of the consecutive months thereafter until the sum of 530,482.66 is paid in full. Payments will be by check made payable to "Operating Engineers Trust Funds" and directed to the attention of Tracy L. Mainguy at 1620 So. Loop Road, Alameda, California.
If and only If the Defendants produce a copy of a cashier's check in the amount of $3,000.00 made payable to the "Operating Engineers Trust Funds" and provide proof that such cashier's check was actually negotiated by the Operating Engineers Trust Funds, the trust Funds agree that the amount payable by Defendants under this paragraph will be reduced by 53,000. 00, immediately after both the copy of the cashiers check and proof of negotiation thereof is provided to the Trust Funds.
2. If the Defendants fail to make any of the payments required under paragraph one of the Settlement Agreement by the twenty-fifth (25th) day of the month in which the payment is due, the Defendants arc in default of its obligations under this agreement In the event that the Defendants are in default, then the remainder of the outstanding payments owed under paragraph one will be immediately due and payable to the Plaintiffs within five days of written notice of such default to Defendants. In the event that Defendants fail to pay the outstanding payments upon notice of the default, Plaintiffs will be entitled to enter a judgment in the amount of $48,352.95 (the stipulated principal balance, liquidated damages and interest relating to Account No. 21-15235-24 as reflected in the Employer Statement of Account, a copy of which is attached hereto), less any payments received pursuant to paragraph one of the Settlement Agreement, less the payment by cashier's check in the amount of 53,000.00 (if, and only if, proof of the cashier's check and the negotiation of such check is provided pursuant to paragraph one above), plus their reasonable attorneys' fees and costs associated with enforcing the terms of this Settlement Agreement.
3. From the date of the execution of this Settlement Agreement forward, the Defendants agree to comply with the requirements contained in applicable Operating Engineer Trust Agreements by submitting on or before the 15th day of the day after the end of the month, both an Employer Report of Contributions detailing the individuals who performed work covered by Coyote Construction's collective bargaining agreement with Operating Engineers Local Union No. 3, the number of covered hours worked during that work month and the amount owed to the Operating Engineers Trust Funds as a result, along with a check made payable to the "Operating Engineers Trust Funds" for the corresponding amount due directed to the attention of Tracy L, Mainguy at 1620 So. Loop Road, Alameda, CA 94502. Failure to make any payment due under this paragraph by the twenty-fifth (25th) day of the month in which it was originally due will result in the assessment of liquidated damages and interest as per the terms of the collective bargaining agreement and Trust Agreements for the Operating Engineers Trust Funds.
4. Each party represents that it had the opportunity to discuss the contents and effect of this Settlement Agreement with its legal counsel and that it fully understands the terms of this Settlement Agreement and its effect upon it. Each party expressly waives any claim that it did not understand the meaning of this Settlement Agreement, or any provision thereof, or that such Settlement Agreement or provision was misrepresented to it.
5. This Settlement Agreement is the product of negotiation and preparation by and among the parties hereto. The parties therefore expressly acknowledge and agree that this Settlement Agreement shall not be deemed prepared or drafted by any one party or the other, or its attorneys, and will be construed accordingly
6. Each party shall be responsible for its own attorney's fees and costs incurred in the Lawsuit and in the preparation of this Settlement Agreement.
7. This Settlement Agreement represents the entire agreement of the parries with aspect to the subject matter hereof, and supersedes and extinguishes any prior or contemporaneous agreement, whether written or oral, with respect thereof.
8. This Settlement Agreement shall be construed in accordance with the laws of the State of California.
9. This Settlement Agreement may be executed in one or more counterparts, and all counterparts so executed shall constitute a single agreement, which shall be binding and final by the parties* Executed counterparts may be exchanged by fax.
10. The parties agree that the District Court retain jurisdiction over the Lawsuit to enforce the terms of the Settlement Agreement.
IN WITNESS WHEREOF, each of the parties has executed this Settlement Agreement on the date specified below: