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WALTERS v. FRANK C. PNIOWER EQUIPMENT REPAIR

March 26, 2003

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; AND OPERATING ENGINEERS VACATION AND HOLIDAY PLAN, PLAINTIFFS,
v.
FRANK C. PNIOWER EQUIPMENT REPAIR, INC., DEFENDANT.



The opinion of the court was delivered by: William Haskell Alsup, Judge.

STIPULATION FOR DISMISSAL OF ACTION WITH PREJUDICE; ORDER THEREON
This Stipulation For Dismissal of Action With Prejudice is entered into by and between 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; and OPERATING ENGINEERS VACATION AND HOLIDAY PLAN ("Operating Engineers Trust Funds") and Defendant FRANK C. PNIOWER EQUIPMENT REPAIR, INC. (the "Defendant").

I. RECITALS OF FACT.

On or about October 13, 1997, the Defendant executed a collective bargaining agreement with Operating Engineers Local Union No. 3 entitled "Independent Shop Agreement" (hereinafter "Collective Bargaining Agreement").

2. A dispute arose between the Operating Engineers Trust Funds and the Defendant regarding the Operating Engineers Trust Funds' demand for an audit under the Collective Bargaining Agreement, which Plaintiffs allege bound the Defendant to the Operating Engineers Local Union No. 3 Master Agreement and Trust Agreements referenced therein.

3. On August 14, 2002, the Operating Engineers Trust Funds filed their Complaint For Injunction, Breach of Contract, Damages and Equitable Relief in this action, United States District Court for the Northern District of California (San Francisco Headquarters), Case No. C 02-2268 WHA, to obtain an injunction requiring the Defendant to submit to an audit and pay any resulting damages. if any. The complaint was thereafter amended to correct a clerical defect.

4. The Defendant filed an answer to the First Amended Complaint For Injunction, is Breach Of Contract, Damages and Equitable Relief.

WHEREAS, the Operating Engineers Trust Funds and the Defendant desire to settle and resolve any and all issues regarding the audit demand by the Operating Engineers Trust Funds and to avoid the time and expense of further litigation:

NOW THEREFORE, for a value received, and in consideration of the mutual covenants and conditions set forth below, the parties hereto agree as follows:

II. STIPULATION.

5. The Defendant entered into a revised collective bargaining agreement with Operating Engineers Local Union No. 3, a copy of which is attached hereto as Exhibit A.

6. The Operating Engineers Trust Funds will dismiss the above-captioned litigation with prejudice.

7. The Defendant agrees to indemnify and hold harmless the Operating Engineers Trust Funds for each and every claim, demand, suit, right, action, cause of action, expense, interest, cost, damages, attorneys' fees, liability or obligation of any kind, whenever or however derived, whether known or unknown, foreseen or unforeseen, suspected or unsuspected, present or future made against the Operating Engineers Trust Funds by a former or current employee of the Defendant who performed work falling within the scope of the Collective Bargaining Agreement during the period beginning October 13, 1997 through the date of the execution of the revised collective bargaining agreement attached hereto as Exhibit A. However, it is understood and agreed by the parties that this Stipulation does not in any way constitute an acknowledgment of the validity of any claims, demands, suits, rights, actions, causes of action, expenses, interest, costs, damages, attorneys' fees, liability or obligation of any kind, whenever or however derived, whether known or unknown, foreseen or unforeseen, suspected or unsuspected, present or future made by future made against the Operating Engineers Trust Funds by any former or current employees of the Defendant who performed work falling within the scope of the Collective Bargaining Agreement during the period beginning October 13, 1997 through the date of the execution of the revised collective bargaining agreement attached hereto as Exhibit A. This Stipulation does not relieve any of the aforementioned persons from taking any steps otherwise necessary to prove their entitlement to and/or the validity of any such claim against the Operating Engineers Trust Funds as to which the Defendant is agreeing to indemnify and hold the Operating Engineers Trust Funds harmless.

8. The Defendant agrees to tender a defense on behalf of the Operating Engineers Trust Funds for each and every demand, claim and/or lawsuit pursued, and/or filed, against the Operating Engineers Trust Funds that seeks monetary damages and/or equitable relief of any kind that is made by the following: (1) any former or current employees of the Defendant who performed work falling within the scope of the Collective Bargaining Agreement during the period beginning October 13, 1997 through the date of the execution of the revised collective bargaining agreement attached hereto as Exhibit A and/or (2) any assignee, successor, estate, dependant and/or agent of a former or current employees of the Defendant who performed work falling within the scope of the Collective Bargaining Agreement during the period beginning October 13, 1997 through the date of the execution of the revised collective bargaining agreement.

9. The parties acknowledge and agree that the obligations of each party stated in this Stipulation are agreed to solely by reason of the expense of litigation and are entered into in good faith and shall never for any purpose be considered an admission of fault, culpability, liability or any kind of responsibility whatsoever concerning any of the claims arising out of or relating to the action, and no past or present wrongdoing on the part of any of the parties shall be implied by such payment or execution. The parties agree that this stipulation will have no impact on the determination by the Court in any case later filed by the Plaintiffs of whether an entity not named as a party to this lawsuit ...


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