Opinion
Case No.: C 02-3699 WHA
November 3, 2003
TRACY L. MAINGUY, OPERATING ENGINEERS LOCEL UNION NO. 3 TRUST FUNDS-MULTI-SERVICES, Alameda, CA for the Plaintiffs
HOLLY ACKLEY, Thelen Reid Priest LLP, San Francisco, CA for Defendants
STIPULATION FOR DISMISSAL WITH PREJUDICE BASED UPON SETTLEMENT AGREEMENT; ORDER THEREON
1. 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 NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA, FEDERAL INSURANCE COMPANY and FIDELITY AND DEPOSIT COMPANY OF MARYLAND ("Bonding Companies") have settled all claims against Bonding Companies included in Case No. 02-3699 WHA, pending in the United States District Court for the Northern District of California (San Francisco Division). The terms of the settlement are stated in the "Settlement Agreement And Release Of All Claims." All parties to the Settlement Agreement And Release Of All Claims and their counsel executed the aforementioned Agreement, a copy of which is attached hereto as Exhibit "A".
2. Paragraph 16 of the Settlement Agreement And Release Of All Claims shall be enforceable in the United States District Court for the Northern District of California, and that the parties agree that the Court will retain jurisdiction over the matter to enforce the terms of the Settlement Agreement And Release Of All Claims.
3. Paragraph 6 of the Settlement Agreement And Release Of All Claims provides that each of the parties thereto will bear its own costs and fees relating to the above-captioned matter.
RESPECTFULLY SUBMITTED.
ORDER
Based upon the above-stated stipulation for dismissal of action with prejudice, Federal Rule of Civil Procedure 41(a)(1) and the Settlement Agreement And Release Of All Claims entered into between the parties to this matter, this action is dismissed with prejudice as to the Defendants NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA, FEDERAL INSURANCE COMPANY AND FIDELITY and DEPOSIT COMPANY OF MARYLAND only. The Settlement Agreement And Release Of All Claims is attached hereto as Exhibit A, and fully incorporated herein by this reference. The Court retains jurisdiction over this matter to the extent necessary to enforce the terms of the terms of the Settlement Agreement And Release Of All Claims.SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS
This Settlement Agreement and Release of All Claims (the "Agreement") is entered into on the dates subscribed below by and between the parties to the Agreement, as defined below:RECITALS
A. The parties to this Agreement are:
1. 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; and Operating Engineers Industry Stabilization Trust Fund (hereinafter collectively referred to as `Trust Funds" of "Plaintiffs");
2. National Union Fire Insurance Company of Pittsburgh, PA; Federal Insurance Company; and Fidelity And Deposit Company of Maryland (hereinafter referred to as "Bonding Companies"); and
3. The Clark Construction Group, Inc. ("The Clark Construction Group"), a California Corporation, the principal on bond no(s). 22-87-14/ 8154-40-50/ 08209213 issued by the Bonding Companies relating to the Capitol Area East End Complex Blocks 171-174 Project. (The Bonding Companies and The Clark Construction Group, Inc. when collectively referred to will be collectively referred to as defendants").
B. The disputes to be settled are set forth below in this paragraph and constitute the Released Matter":
1. Civil Action No. C 02-3699 WHA filed on July 31, 2002 in the United States District Court, Northern District of California, entitled Ken Walters, Don Doser, et. al. v. V W Associates, Inc., et. a/., and related cross claims.
2. Plaintiffs Trust Funds' claims for unpaid trust fund contributions based upon work performed by employees of V W Associates, Inc. (hereinafter referred to as "Vir-Tek") on the Capitol Area East End Complex Blocks 171-174 Project in Sacramento, CA (hereinafter the "Project") which are subject to the bond described below, pursuant to a collective bargaining agreement between the Operating Engineers Local Union No. 3 and Vir-Tek. The Complaint was amended on February 19, 2003 to include a claim for enforcement of the payment bond relating to the Project.
C. Bonding Companies issued a payment bond (public works) NO(S). 22-87-14/ 8154-40-50/ 08209213. ("Project"). The Clark Construction Group, Inc., a California Corporation, was the principal on the bond. Defendants claim their liability under the bond is limited.
D. The parties to this Agreement wish to finally resolve and settle all disputes between them relating to, or arising out of, the controversy described in paragraph B above.
AGREEMENT THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS CONTAINED THEREIN, EACH OF THE PARTIES HERETO, FOR THEMSELVES AND THEIR SUCCESSORS AND ASSIGNS, HEREBY AGREE AS FOLLOWS:1. The Clark Construction Group, Inc. shall pay to Plaintiffs the total sum of Forty-one Thousand Five Dollars and Sixty-three Cents ($41,005.63) upon execution of this Agreement, subject to the execution of this Agreement and any other documents needed to implement the terms of the Agreement. This Agreement may be executed via receipt of a facsimile signature of the original document and signature page to follow.
2. Within five business days of receiving the check in the amount of Forty-one Thousand Five Dollars and Sixty-three Cents ($41,005.63) from The Clark Construction Group, Inc., Plaintiffs agree to execute this Agreement and the conditional release referenced in paragraph four below. Plaintiffs' counsel shall hold the check in trust until Plaintiffs have fully executed said documents and forwarded them to Clark's Counsel. The payment shall be made payable to "Operating Engineers Trust Funds" and mailed as follows: Attention Tracy L. Holtz, Operating Engineers Trust Funds, 1620 South Loop Road, Alameda, California, 94502-7089.
3. This release does not extend to claims by Defendants or Plaintiffs against Vir-Tek, or any of its officers, employees or shareholders (collectively "Vir-Tek). Plaintiffs and Defendants may pursue Vir-Tek for the Released Matter, or other matters. However, any monies Plaintiffs recover from Vir-Tek above $50,294.54 ($91,300.17 less $41,005.63) will be remitted to the Clark Construction Group, Inc. within 10 days of receipt of the same.
4. Upon receipt of the check referenced in paragraph 2 above, Plaintiffs will provide Defendants with a conditional mechanics lien, stop notice and bond release upon final payment in the form prescribed by Civil Code § 3262, a copy of which is attached as Exhibit A. When the aforementioned check clears the bank upon which it is drawn, Plaintiffs will provide Defendants with an unconditional lien, stop notice and bond release in the form prescribed by Civil Code § 3262, a copy of which is attached as Exhibit B.
5. Plaintiffs agree that they will take no further action, legal or otherwise against Defendants, to pursue the Released Matter except to the extent necessary to enforce this Agreement.
6. Within five days of the aforementioned check clearing the bank upon which it is drawn, Plaintiffs and Defendants will cause their attorneys to immediately execute and file with the Court a Stipulation for Dismissal with prejudice, as to Defendants, with each side to bear its own costs and fees.
7. It is the intention of the parties in executing this Agreement that upon payment in full of the $41,005.63 by (he Clark Construction Group, Inc. to the Plaintiffs, and when such payment clears the bank upon which it is drawn, this Agreement shall be effective as a full and final accord and satisfaction and general release of Defendants from all Released Matter.
8. In furtherance of the intentions set forth herein, Plaintiffs acknowledge that they are familiar with Section 1542 of the Civil Code of the State of California, which provides as follows:
A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.
Plaintiffs waive and relinquish any right or benefit which they have or may have under Section 1542 of the Civil Code of the State of California or any similar provision of the statutory or non-statutory law of any other jurisdiction. In connection with such waiver and relinquishment, Plaintiffs acknowledge that they are aware or that they or their attorneys or accountants may hereafter discover claims of facts in addition to or different from those which it now knows or believes to exist with respect to the subject matter of this Agreement or the other party, but that it is its intention hereby fully, finally and forever to settle and release all of the Released Matter.
9. With the exception of reasonable attorney's fees expended by any party to the Settlement Agreement to enforce the terms of this Agreement, the parties agree that this Agreement releases any and all claims against Defendants by Plaintiffs for costs, audit costs and fees, interest, penalties, liquidated damages, expenses and attorneys' fees incurred by Plaintiffs in or arising from the prosecution of the Released Matters.
10. The parties agree to execute any other reasonable and necessary documents, which are or may be required to effectuate the intent of this Agreement
11. The parties enter into this Agreement solely to avoid the expense and risk of further protracted litigation. Neither party concedes the truth or falsity of the claim, defense or allegation asserted on behalf of the other.
12. The Trust Funds hereby warrant and represent that they are the sole and lawful owners of all rights, title and interest in and to all matters being released hereunder, and that they have not heretofore assigned or transferred or purported to assign or transfer to any person or entity such Released Matter or any portion thereof.
13. The parties agree that this settlement and Agreement are based upon the unique and specific facts of this case and shall not be cited as precedent in any other litigation that may arise between the parties.
14. All parties warrant and represent that this Agreement is executed on its behalf by a duly authorized officer or agent
15. The provisions of this Agreement are contractual in nature and not mere recitals, and shall be considered independent and severable, and if any provision, or part thereof, is declared invalid, unenforceable or void for any reason, then the validity and enforceability of the remainder shall not be affected in any way.
16. The Agreement shall be enforceable in the United States District Court for the Northern District of California, which has expressly retained jurisdiction to enforce this Agreement. It is also agreed that the parties will file a Stipulation and Order Dismissing with Prejudice and Retaining Jurisdiction Over Settlement, it shall be enforceable in any court of competent jurisdiction. This Agreement shall be governed by, interpreted and construed in accordance with the laws of the state of California.
17. This document embodies the entire terms and conditions of this Agreement and each party acknowledges that it has not relied upon any warranties, representations or promises, except as expressly set forth in this Agreement. This Agreement may not be amended or modified in any way whatsoever, except by a writing duly executed by an authorized agent or officer of each party hereto.
18. The provisions of this Agreement and the releases contained herein shall extend to and inure to the benefit of and binding upon, in addition to the Plaintiffs, and Defendants, just as if they had executed this Agreement, the following: the legal successors and assigns of each party, their division, parents or subsidiaries, sureties, their respective past and present shareholders, officers, directors, agents, employees and attorneys.
19 Each party acknowledges that it has been represented by independent legal counsel of its own choice throughout all of the negotiations which precede the execution of this Agreement and that is has executed this Agreement with the consent and on the advice of such independent legal counsel. Each party further acknowledges that it and its counsel have had adequate opportunity to make whatever investigation or inquiry they may deem necessary or desirable in connection with the subject matter of this Agreement prior to its execution and the delivery and acceptance of the consideration specified herein.
20. Whenever in this instrument the context so requires, the masculine gender shall be deemed to refer to and include the feminine and neuter, and the singular to refer to and include the plural.
21. This Agreement may be executed in counterparts which, taken together shall constitute one and the same agreement and shall be effective as of the date first written below.
22. This Agreement shall be deemed jointly drafted and ambiguities shall not be construed against either party.
23. This Agreement is not for the benefit of any person who is not a party signatory or specifically named beneficiary in this Agreement