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WALTERS v. ENGEO INCORPORATED

United States District Court, N.D. California


November 23, 2005.

KEN WALTERS and JOHN BONILLA, in their respective capacities as Trustees of the OPERATING ENGINEERS HEALTH AND WELFARE TRUST FUND FOR NORTHERN CALIFORNIA; BOARD OF TRUSTEES OF THE PENSION TRUST FUND FOR OPERATING ENGINEERS; BOARD OF TRUSTEES OF THE PENSIONED OPERATING ENGINEERS HEALTH AND WELFARE FUND; BOARD OF TRUSTEES OF THE OPERATING ENGINEERS AND PARTICIPATING EMPLOYERS PRE-APPRENTICESHIP, APPRENTICE AND JOURNEYMEN AFFIRMATIVE ACTION TRAINING FUND; BOARD OF TRUSTEES OF THE OPERATING ENGINEERS VACATION AND HOLIDAY PLAN, Plaintiffs,
v.
ENGEO INCORPORATED, A California Corporation Defendant.

The opinion of the court was delivered by: MARILYN PATEL, District Judge

STIPULATION FOR ENTRY OF JUDGMENT; PROPOSED ORDER

The parties hereby stipulate and agree as follows:

  1. Ken Walters and John Bonilla, In Their Respective Capacities As Trustees Of The Operating Engineers Health And Welfare Trust Fund For Northern California; Board Of Trustees Of The Pension Trust Fund For Operating Engineers; Board Of Trustees Of The Pensioned Operating Engineers Health And Welfare Fund; Board Of Trustees Of The Operating Engineers And Participating Employers Pre-Apprenticeship, Apprentice And Journeymen Affirmative Action Training Fund; Board Of Trustees Of The Operating Engineers Vacation And Holiday Plan, ("Trust Funds") have brought the above-captioned action against Defendant Engeo Incorporated, A California Corporation ("Engeo").

  2. Plaintiff Trust Funds in this action sought $323,332.20 in unpaid fringe benefit contributions, interest, and liquidated damages found to be due and owing through the period 2000 to 2002 pursuant to an audit conducted by the Trust Funds. Said amounts are due and owing pursuant to the Master Agreement for Northern California Operating Engineers Local Union No. 3 ("Master Agreement") and the relevant trust agreements establishing the Trust Funds. The parties hereby stipulate and agree to settle this action under the following terms:

  3. Engeo agrees to have judgment entered against it in the amount of $43,622.25, which constitutes known claims for delinquent fringe benefit contributions, underreported hours, interest and attorneys' fees and costs owed to Trust Funds and provided for in the foregoing paragraph 2.

  4. The parties hereto stipulate and agree that Engeo shall remit the full amount of $43,622.25 in one lump payment within five (5) business days after execution of the Stipulation for Entry of Judgment. This lump sum payment shall be made by cashiers check, made payable to the Operating Engineers Local Union No. 3 Trust Funds, and mailed to the Operating Engineers Local Union No. 3 Trust Fund, c/o the law offices of Weinberg, Roger and Rosenfeld, 1001 Marina Village Parkway, Suite 200, Alameda, CA 94501, Attn: Nicole M. Phillips.

  5. The parties hereto further stipulate and agree that if Engeo fails to make the lump sum payment of $43,622.25 pursuant to the exact terms as provided for in the foregoing paragraph 4, the Trust Funds may then execute upon the Judgment for the full amount of $323,332.20, minus the amount of any payments actually received, together with the interest that shall have accrued thereon. Failure of the Trust Fund to exercise such option shall not constitute a waiver of the right to exercise it in the event of a continuing or subsequent default.

  6. Additionally, Engeo agrees to remain current on all fringe benefit contributions for a period of not less than eighteen (18) months following execution of the Stipulation for Entry of Judgment, not yet due and payable, which become due and payable to the Operating Engineers Trust Funds. It is a material condition of this Stipulated Judgment that Engeo remain current on all such fringe benefit contributions and failure to do so shall constitute default.

  7. If Engeo defaults in the making of any of said payments or any part thereof, and if the Trust Fund consults legal counsel with respect thereto, there shall be added to Engeo's obligation under this Stipulation for Entry of Judgment reasonable attorneys' fees, court costs and all other reasonable expenses incurred by the Trust Fund in connection with such suit or claim, including any and all appellate proceedings therein.

  8. The provisions set forth in this Stipulation for Entry of Judgment are not in violation of any state or federal law. However, if any portion of said stipulation is found to be in violation of any state or federal law, then the total amount of the Stipulation for Entry of Judgment then due shall immediately become due and payable.

  9. Plaintiffs hereby stipulate and agree that once Engeo has complied with the foregoing paragraphs 3 and 6 of the Stipulation for Entry of Judgment, Plaintiffs shall file a satisfaction of judgment with the Court.

  10. Engeo hereby stipulates and agrees that it will hold each of the Plaintiff Trust Funds harmless and indemnify them for any claim or suit, whether administrative or at law, by a third-party (or third-parties) who claims entitlement to fringe benefits not collected in the course of this settlement by the parties pursuant to the Stipulation for Entry of Judgment.

  11. The parties agree that the terms of the Stipulation for Entry of Judgment shall be kept confidential and no party to this Stipulation shall disclose any of the terms without prior written consent from the other party or unless otherwise known to the public, except such disclosure as may be required by law, or as may be necessary or advisable to legal and accounting advisors. This is a material term of this Stipulation any breach by Engeo and actionable as provided for in the foregoing paragraphs 2-7.

  12. The Stipulation for Entry of Judgment is for the benefit of and binding on the parties, their heirs, successors, executors, administrators, and assigns.

  13. The Stipulation for Entry of Judgment may be executed in counterpart, each of which shall constitute an original and with the same effect as if each party had signed the same copy of it and all of which taken shall constitute one and the same instrument. Each party shall be entitled to reply on facsimile or PDF copies of executed counterparts and such counterparts shall be legally effective to create a legal and binding agreement.

  14. Engeo acknowledges to the Trust Fund that it has had the opportunity to be represented by independent legal counsel of its own choice throughout all of the negotiations that preceded the execution of this Stipulation for Entry of Judgment. Engeo further acknowledges that they have had adequate opportunity to perform whatever investigation or inquiry they may deem necessary in connection with the subject matter of this Engeo prior to its execution, and agree with the delivery and acceptance of the considerations specified in this Stipulation for Entry of Judgment.

  The parties hereto mutually state that they have read the foregoing Stipulation for Entry of Judgment and are fully aware of its contents and legal facts. [PROPOSED] ORDER

  The Parties having so requested, Judgment is hereby entered against Defendant Engeo Incorporated as set forth in the foregoing Stipulation for Entry of Judgment.

20051123

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