The opinion of the court was delivered by: Maria-elena James, United States Magistrate Judge
STIPULATED JUDGMENT AND ORDER
ORDER FOR CLERK TO CLOSES FILE
Ohnie Oakley and Edward T. Bergo, as Chairman and Co-Chairman, respectively, of the Board of Trustees for the Cement Masons Health and Welfare Trust Fund for Northern California, Cement Masons Vacation/Holiday Trust Fund for Northern California, Cement Masons Pension Trust Fund for Northern California, and Cement Masons Apprenticeship and Training Trust Fund for Northern California (collectively the "Trust Funds") and James D. Rogers ("James D. Rogers") enter into this Stipulated Judgment (the "Stipulated Judgment"). This Stipulated Judgment is to resolve matters at issue in the lawsuit filed by the Trust Funds against R & W Custom Concrete and James D. Rogers in the United States District Court for the Northern District of California, on or about March 26, 2002, Case No. C 02-1454 MEJ (the "Lawsuit").
The Lawsuit's First Cause of Action seeks to recover unpaid contributions by James ID. Rogers and its Second Cause of Action seeks a mandatory injunction to conduct an audit of R&W Custom Concrete's financial records. Except to the extent governed by federal law, this Stipulated Judgment will be governed by the statutes and common law of California. Jurisdiction and venue of any action regarding the interpretation and enforcement of this Stipulated Judgment shall exist exclusively in the United States District Court in San Francisco, California.
Trust Funds and James D. Rogers agree as follows:
Section 1 — Essential Terms of Stipulated Judgment
(1) James D. Rogers agrees to pay to the Trust Funds
a total of Thirty-Five Thousand Dollars and Zero Cents
($35,000) ("Settlement Amount") pursuant to the
payment plan described below in items 2-4.
Post-judgment interest shall apply to this amount at
the rate of three (30%) percent per annum. In the
event that James D. Rogers fails to make any payment
on or before the day indicated above in this
Stipulated Judgment and he is not within his rights to
cure pursuant to paragraph seven (7) below, interest
shall accrue on the entire unpaid balance at the legal
(2) James D. Rogers will pay a down payment of Four
Thousand Dollars and Zero Cents ($4,000) (the "Initial
Payment Amount") on or before May 19, 2003.
(3) James D. Rogers will make installment payments
of Five Hundred Dollars and Zero Cents ($500) per
month for twenty (20) months beginning June 19, 2003
and ending January 19, 2005 (the "Repayment Period"),
for a total of Ten Thousand Dollars and Zero Cents
($10,000) (the "Installment Payment Amount"). Each
payment is due to Trust Funds on or before the
nineteenth day of each month.
(4) James D. Rogers agrees to pay to the Trust Funds
Twenty-Two Thousand Five Hundred Dollars and
Thirty-One Cents ($22,500.31) (the "Balloon Payment")
on or before February 19, 2005. This amount includes
$1,500.31 in accrued interest referred to in Section
(5) Payment of all amounts described above by James
D. Rogers shall go first to the oldest contributions
owed to the Trust Funds and progress to the most
recent unpaid contributions.
(6) As long as James D. Rogers makes all payments on
or before the day required by this Stipulated
Judgment, the Trust Funds will not levy against James
D. Rogers for payment of the Stipulated Judgment or
take other adverse action against him. With the
exception of the two late payments described below in
item #7, in the event that James D. Rogers fails to
make any payment on or before the day stipulated in
this Stipulated Judgment, the Trust Funds may
immediately levy to collect the entire Stipulated
(7) The only exception to James D. Rogers'
requirement to make all payments on time is that the
Trust Funds agree to give him two notices and
opportunities to cure late payments as described in
this paragraph seven (7). In the event James D. Rogers
has not made payment by the nineteenth of the month in
which the payment is due because he has not timely
sent each payment, whether due to being late or
tendering a check with insufficient funds, the Trust
Funds will send notice of late payment or insufficient
funds to James D. Rogers by fax (209) 748-2553 and by
certified first class mail to 12221 Borden Road,
Herald, California 95638. James D. Rogers will have a
total of fifteen days from the date the Trust Funds'
send him notice to deliver the late payment to the
Trust Funds. Failure to cure a late payment shall
subject him to immediate levy of the remaining balance
with interest accruing at the legal rate. James D.
Rogers may be late in this regard only twice. The
Trust Funds shall have no obligation beyond the first
two notices to inform James D. Rogers of his late
payments. If James D. Rogers is late more than twice,
he will be in material breach of this Stipulated
Judgment, making him subject to immediate levy of the
remaining balance owed to the Trust Funds. James D.
Rogers shall not have the ability to cure this
material breach other than upon immediate payment of
the balance of the Settlement Amount and all accrued
(b) Entry of Stipulated Judgment: Defendant James D. Rogers agrees to have this Stipulated Judgment entered immediately. The Trust Funds may record this Stipulated Judgment.
(c) Retained jurisdiction: Trust Funds and James D. Rogers agree that the Court shall retain jurisdiction over the Lawsuit to ensure compliance with this Stipulated Judgment. No new action would need to be filed to seek relief for enforcement of this right.
(d) Released parties: The released parties are James D. Rogers and R&W Custom Concrete and their current and former employees, and their current and former officers, directors, stockholders, owners, representatives, assigns, attorneys, agents, and insurers.
(e) Release upon Satisfaction: When James D. Rogers has paid the entire amount due to the Trust Funds as required in this Stipulated Judgment, the Trust Funds will issue a Notice of Satisfaction of Judgment in full.
Section 2 — Miscellaneous
(a) Entire Agreement: This Stipulated Judgment is the entire agreement between James D. Rogers and the Trust Funds relating to the claim for unpaid contributions and audit at issue in the Lawsuit. The Stipulated Judgment supersedes any prior understanding or agreement between Trust Funds and James D. Rogers relating to this Lawsuit. Both James D. Rogers and the Trust Funds acknowledge that neither party has made representations or promises other than those in or referred to by this Stipulated Judgment. If any provision in this Stipulated Judgment is found to be unenforceable, all other provisions will remain fully enforceable.
(b) Interpretation: This Stipulated Judgment will be construed as a whole according to its fair meaning. It will not be construed strictly for or against either James D. Rogers or the Trust Funds as both parties participated in the drafting of it. Unless the context indicates otherwise, the term "or" will be deemed to include the term "and" and the singular or plural number will be deemed to include the other. Captions are intended solely for convenience of reference and will not be used in the interpretation of this Stipulated Judgment.
(c) Advice of counsel: Trust Funds and James D. Rogers have obtained advice of legal counsel prior to and for the execution of this Stipulated Judgment, and warrant and represent that the person executing this Stipulated Judgment on each party's behalf is duly authorized and empowered to execute this Stipulated Judgment for and on such behalf. Each of the parties affirms and acknowledges that it has read and fully appreciates and understands the words, terms, conditions and provisions of this Stipulated Judgment.
(d) Enforcement: In the event of James D. Rogers' failure to make timely payments pursuant to the terms of this Stipulated Judgment, Trust Funds shall be entitled to recover their costs and attorneys fees associated with such enforcing their rights under this ...