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,
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
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
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.
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