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Northern California Glaziers, Architectural v. Sandman Glass

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA


January 14, 2013

NORTHERN CALIFORNIA GLAZIERS, ARCHITECTURAL METAL AND GLASS WORKERS PENSION TRUST FUND, ET AL.,
PLAINTIFFS,
v.
SANDMAN GLASS, INC., A CALIFORNIA CORPORATION,
DEFENDANT.

AMENDED JUDGMENT PURSUANT TO STIPULATION; [PROPOSED] ORDER THEREON

IT IS HEREBY STIPULATED by and between the parties hereto, that Judgment shall be 18 entered in the within action in favor of the Plaintiffs NORTHERN CALIFORNIA GLAZIERS, 19 ARCHITECTURAL METAL AND GLASS WORKERS PENSION TRUST FUND, et al. 20 (collectively "Plaintiffs" or "Trust Funds") and against Defendant SANDMAN GLASS, INC., a 21

California Corporation, and/or alter egos and/or successor entities, as follows: 22

1. Defendant entered into a valid Collective Bargaining Agreement with the District Council 16 of the International Union of Painters and Allied Trades and the Northern 24 California Glass Management Association (hereinafter "Bargaining Agreement"). This Bargaining 25 Agreement has continued in full force and effect to the present time.

2. Defendant has become indebted to the Trust Funds as follows: 2

Work Total Unpaid 20% 5% Subtotals Period Contributions Contributions Liquidated Interest**

Reported Due Damages* (thru 7/2/12) Due Due Nov-10 20,880.94 4,370.34 4,176.19 548.04 5 Dec-10 6,184.03 6,184.03 1,236.81 438.81 Jan-11 10,457.47 10,457.47 2,091.49 701.94 6 Feb-11 5,391.19 5,391.19 1,078.24 338.98 Mar-11 3,389.07 3,389.07 677.81 199.17 7 Apr-11 6,794.87 6,794.87 1,358.97 370.46 8 May-11 9,779.76 9,779.76 1,955.95 493.01 Jun-11 8,000.06 8,000.06 1,600.01 369.32 9 Aug-11 22,770.12 951.72 4,554.02 72.86 Sep-11 19,795.88 9,399.68 3,959.18 315.47 10 Oct-11 18,682.27 18,682.27 3,736.45 550.23 11 Nov-11 13,752.47 13,752.47 2,750.49 346.64 Dec-11 10,817.27 10,817.27 2,163.45 226.72 12 Jan-12 10,647.65 674.05 2,129.53 11.45 Mar-12 20,446.17 20,446.17 4,089.23 176.45 13 Apr-12 20,853.22 20,853.22 4,170.64 91.41 May-12 19,140.26 19,140.26 3,828.05 5.24 14 Subtotals: $169,083.90 $45,556.51 $5,256.20 15 Total Unpaid Contributions, Interest, Liquidated Damages from $219,896.61 breakdown above (11/10-6/12) Audit (4/10-12/10) $17,754.40 20% Liquidated Damages on Audit $3,550.88 Attorneys' Fees (through 6/27/12) $5,709.50 Complaint Filing Fee; Service $528.10 Grand Total: $247,439.49

* Liquidated damages are assessed at 20% of total contributions reported, shown above. 20

** Interest for the months of 11/10 and 8/11 include amounts incurred on partial late paid contributions. 21

3. Defendant shall conditionally pay the amount of $201,882.98, representing all of 22 the above amounts, less liquidated damages in the amount of $45,556.51. This waiver is 23 expressly conditioned upon the Trustees' approval following timely compliance with all of the 24 terms of this Stipulation, as follows: 25

(a) On or before July 10, 2010, Defendant shall pay to Plaintiffs the amount of $80,000.00. Plaintiffs acknowledge receipt of Defendant's check numbered 7095 in the 27 amount of $80,000.00, deposited on July 10, 2012, and are crediting that payment to the total 28 due.2

3 each month thereafter, for a period of twenty-four (24) months, through and including September 4

(b) Beginning on or before October 20, 2012, and on or before the 20th day of

20, 2014, Defendant shall pay to Plaintiffs the amount of $5,360.00 per month; each monthly 5 payment shall be applied to interest accrued at 5% per annum and amortized monthly, and the 6 remainder shall be applied to principal. An example amortization breakdown is attached hereto as 7

Exhibit B. 8

(c) any payments made by a general contractor's joint check to Defendant and Plaintiffs' Trust Funds shall be endorsed by Defendant prior to submission to Plaintiffs; 10

(d) Defendant shall have the right to increase the monthly payments at any

11 time, without penalty; 12

13 to unpaid interest and then to unpaid principal. The unpaid principal balance shall bear interest at 14 the rate of 5% per annum, from July 3, 2012, in accordance with Plaintiffs' Trust Agreements; 15

16

Corporation, 44 Montgomery Street, Suite 2110, San Francisco, California 94104, or to such 18 other address as may be specified by Plaintiffs, to be received on or before the 20th day of each 19 month. 20

(e) Payments, including the one described in ¶3(a) above, shall be applied first

(f) Payments shall be made payable to the "District Council 16 Northern

California Trust Funds" and delivered to Blake E. Williams at Saltzman & Johnson Law 17

(g) Defendant shall pay all additional costs and attorneys' fees incurred by

Plaintiffs, following those included in ¶2 herein, in connection with collection and allocation of 22 the amounts owed by Defendant to Plaintiffs under this Stipulation, regardless of whether or not 23 there is a default herein. 24

(h) Prior to September 20, 2014, the deadline for Defendant's last monthly

25 payment toward the conditional balance owed under the Stipulation, Plaintiffs shall notify 26

Defendant in writing of the final amount due, including additional interest and attorneys' fees and 27 costs, as well as any other amounts due under the terms herein. Any additional amounts due 28 pursuant to the provisions hereunder shall be paid in full with the final conditional stipulated payment. 2

3 under the Stipulation, Defendant will be advised as to whether or not the waiver has been granted 4 by the Board of Trustees. If the waiver is granted, upon bank clearance of Defendant's last 5 payment of the conditional balance and confirmation that Defendants' account is otherwise 6 current, Plaintiffs will file a Notice of Satisfaction of Judgment with the Court. However, if the 7 waiver is denied, monthly payments will continue as provided in (a) above, until all liquidated 8 damages due have been paid. 9

(i) Following Defendant's payment of the last conditional monthly payment

(j) Failure to comply with any of the above terms shall constitute a default of

Defendant's obligations under this Stipulation and the provisions of ¶13 shall apply. 11

4. MARK WILLIAM SANDMAN (hereinafter referred to as "Guarantor") confirms 12 that he is the RMO/CEO/President of SANDMAN GLASS, INC. and is personally guaranteeing 13 the amounts due pursuant to the terms of this Stipulation, and further acknowledges that all 14 affiliates, related entities, purchasers, and successors in interest to SANDMAN GLASS, INC. 15 shall also be bound by the terms of this Stipulation as Guarantor, and also consent to this Court's 16 jurisdiction. 17

5. Beginning with contributions due for hours worked by Defendant's employees 18 during the month of July 2012, which are due on August 15, 2012 and delinquent if not received 19 by August 31, 2012, and for every month thereafter, Defendant shall remain current in 20 reporting and payment of any contributions due to Plaintiffs under the current Collective 21

Bargaining Agreement and under all subsequent Collective Bargaining Agreements, if any, and 22 the Declarations of Trust as amended. Defendant shall timely submit a copy of all contribution 23 reports for each month, together with a copy of the payment check(s), by facsimile or email 24 to Blake E. Williams at 415-882-9287, or by email to both bwilliams@sjlawcorp.com and 25 ethurman@sjlawcorp.com or to such other fax number or email address as may be specified 26 by Plaintiffs, concurrent with sending the payment to the Trust Fund office. Failure by 27

Defendant to timely submit copies of current contribution reports and payments to Blake E. 28

Williams as described above shall constitute a default of the obligations under this agreement.

6. Defendant shall make full disclosure of all jobs on which it is working by providing 2

Plaintiffs each month with an ongoing and updated list of jobs by using copies of the attached 3

Exhibit A, including, but not limited to, the name and address of job, general contractor 4 information, certified payroll if a public works job, and period of work. Defendant shall submit 5 said updated list each month together with the contribution report (as required in above ¶5, 6 by fax or email). This requirement remains in full force and effect regardless of whether or not 7

Defendant has ongoing work. In this event, Defendant shall submit a statement stating that there 8 are no current jobs. To the extent that Defendant is working on a Public Works job, or any other 9 job for which Certified Payroll Reports are required, copies of said Reports will be mailed or 10 faxed to Blake E. Williams, concurrently with their submission to the general contractor, owner or 11 other reporting agency. Failure by Defendant to timely submit updated job lists and certified 12 payroll reports as applicable, shall constitute a default of the obligations under this agreement. 13

7. Failure by Defendant/Guarantor to remain current in reporting or payment of 14 monthly contributions owed shall constitute a default of the obligations under this agreement. Any 15 such unpaid or late paid contributions, together with 20% liquidated damages and 5% per annum 16 interest accrued on contributions, shall be added to and become a part of this Judgment and subject 17 to the terms herein. Plaintiffs reserve all rights available under the applicable Bargaining 18

Agreement and Declarations of Trust of the Trust Funds for collection of current and future 19 contributions, and for any additional past contributions not included herein as may be determined 20 by Plaintiffs, pursuant to employee timecards or paystubs, by audit, or other means, and the 21 provisions of this agreement are in addition thereto. Defendant/Guarantor specifically waives the 22 defense of the doctrine res judicata as to any such additional amounts determined as due. 23

8. Audit: Should the Trust Funds request an audit of Defendant's payroll records in 24 order to confirm proper reporting and payment of contributions pursuant to the Bargaining 25

Agreement, any failure by Defendant's to comply with said request or with an audit in progress, if 26 any, shall constitute a default of the obligations under this Agreement. 27

28 such audit, Defendant may request that Plaintiffs revise this Judgment, modifying the payment

(a) If Defendant is unable to make payment in full as may be found due on any plan (by monthly amount and/or payment term), to add the amounts found due in the audit, subject 2 to the terms herein. If the Judgment is so revised, Defendant/Guarantor shall execute the 3

Amendment to Judgment within ten (10) days of its submission to Defendant/Guarantor. Failure to 4 execute the revised agreement shall constitute a default of the terms herein. 5

6 written support for any dispute of the audit findings, or request the addition of the amounts found 7 due on audit to this Judgment within ten (10) days of the date of Plaintiffs demand shall constitute 8 a default of the obligations under this agreement. All amounts found due on audit shall 9 immediately become part of this Judgment, subject to proof. 10

9. In the event that any check is not timely submitted, is submitted by 11 Defendant/Guarantor but fails to clear the bank, or is unable to be negotiated for any reason for 12 which Defendant/Guarantor is responsible, this shall be considered to be a default on the Judgment 13 entered. If Defendant/Guarantor fail to submit their contribution reports, and/or certified payroll 14 reports (if any) and/or job lists, and/or fails to comply with any of the terms of the Stipulation 15 herein, this too shall constitute a default. 16

10. Defendant/Guarantor and any additional entities in which MARK WILLIAM 17 SANDMAN is an officer, owner or possesses any ownership interest, including all successors in 18 interest, assignees, and affiliated entities (including, but not limited to parent or other controlling 19 companies), and any companies with which SANDMAN GLASS, INC. joins or merges, if any, 20 shall also be bound by the terms of this Stipulation. Defendant/Guarantor and all such entities 21 specifically consent to the Court's jurisdiction, in which shall be specified in writing at the time of 22 any assignment, affiliation or purchase of Defendant, along with the obligations to the terms 23 herein. 24

11. If a default occurs, Plaintiffs shall make a written demand, sent to Defendant/Guarantor by facsimile to 831-464-1974 and by regular mail, to cure said default within 26 seven (7) days of the date of the notice from Plaintiffs. If Defendant/Guarantor elects to cure said 27 default, and Plaintiffs elect to accept future payments, all such payments shall be made by 28 cashier's check if the default is caused by a failed check. (b) Failure by Defendant/Guarantor to submit either payment in full, or provide

12. In the event the default is not cured, all amounts remaining due hereunder, as well 2 as any additional amounts due pursuant to the terms herein, shall be due and payable on demand 3 by Plaintiffs as follows: 4

5 payments received by Plaintiffs, but increased by any unpaid contributions then due, and further 6 audit findings, if any, plus 20% liquidated damages and 5% per annum interest, together with any 7 additional attorneys' fees and costs incurred; 8

9 related entities without further notice, in the amount of the unpaid balance, plus any additional 10 amounts due under the terms herein. The declaration of a duly authorized representative of the 11

Plaintiffs setting forth any payment theretofore made by or on behalf of Defendant/Guarantor, and 12 the balance due and owing as of the date of default, shall be sufficient to secure the issuance of a 13

Writ of Execution; 14

15 waive all rights to stay of execution and appeal. 16

(a) The entire amount of $247,439.49 plus interest, reduced by principal

(b) A Writ of Execution may be obtained against Defendant/Guarantor and all

(c) Defendant/Guarantor waive notice of entry of judgment and expressly

13. Any failure on the part of the Plaintiffs to take any action against 17

Defendant/Guarantor as provided herein in the event of any breach of the provisions of this 18

Stipulation shall not be deemed a waiver of any subsequent breach by the Defendant/Guarantor of 19 any provisions herein. 20

14. In the event of the filing of a bankruptcy petition by Defendant/Guarantor, the 21 parties agree that any payments made by Defendant/Guarantor pursuant to the terms of this 22 judgment, shall be deemed to have been made in the ordinary course of business as provided under 23

11 U.S.C. Section 547(c)(2) and shall not be claimed by Defendant/Guarantor as a preference 24 under 11 U.S.C. Section 547 or otherwise. Defendant/Guarantor nevertheless represent that no 25 bankruptcy filing is anticipated. 26

15. Should any provision of this Stipulation be declared or determined by any court of 27 competent jurisdiction to be illegal, invalid, or unenforceable, the legality, validity, and 28 enforceability of the remaining parts, terms or provisions shall not be affected thereby and said illegal, unenforceable or invalid part, term, or provision shall be deemed not to be part of this 2 Stipulation. 3

16. This Stipulation is limited to the agreement between the parties with respect to the 4 delinquent contributions and related sums enumerated herein, owed by Defendant/Guarantor to the 5

Plaintiffs. This Stipulation does not in any manner relate to withdrawal liability claims, if any. 6

Defendant/Guarantor acknowledges that the Plaintiffs expressly reserve their right to pursue 7 withdrawal liability claims, if any, against Defendant as provided by the Plaintiffs' Plan 8

Documents, the Trust Agreements incorporated into the Collective Bargaining Agreement, and the 9 law. 10

17. This Stipulation contains all of the terms agreed by the parties and no other 11 agreements have been made. Any changes to this Stipulation shall be effective only if made in 12 writing and signed by all parties hereto. 13

18. This Stipulation may be executed in any number of counterparts and by facsimile, 14 each of which shall be deemed an original and all of which shall constitute the same instrument. 15

19. The parties agree that the Court shall retain jurisdiction of this matter until this 16

Judgment is satisfied. 17

20. All parties represent and warrant that they have had the opportunity to be or have 2 been represented by counsel of their own choosing in connection with entering this Stipulation 3 under the terms and conditions set forth herein,that they have read this Stipulation with care and 4 are fully aware of and represent that they enters into this Stipulation voluntarily and without 5 duress. 6

Dated: January 9, 2013 SANDMAN GLASS, INC., a California Corporation By: /S/ MARK WILLIAM SANDMAN, 9 its RMO/CEO/PRESIDENT Dated: January 9, 2013 MARK WILLIAM SANDMAN, an individual 11 10 By: /S/ 12 MARK WILLIAM SANDMAN 13 Dated: January 14, 2013 SALTZMAN & JOHNSON LAW CORPORATION 14 15 By: /S/ MICHELE R. STAFFORD 16 Attorneys for Plaintiffs Dated: January 8, 2013 HUDSON MARTIN FARRANTE & STREET 18 19 By: /S/ 17 20 GAVIN KOGAN Attorneys for Defendant SANDMAN GLASS, INC.

IT IS SO ORDERED. IT IS FURTHER ORDERED that the calendar in this matter is vacated, 23 and that the Court shall retain jurisdiction over this matter. 24

UNITED STATES DISTRICT COURT JUDGE

Exhibit A JOB REPORT FORM *** Updated report must be faxed to Blake E. Williams, Esq., at (415) 882-9287 3 on or before the last business day of each month *** Employer Name: SANDMAN GLASS, INC. 5 4 Report for the month of _________________, 20____Submitted by (name): ________________ ________ 6 Project Name: Project Address: General Contractor: General Contractor Address/Tel. #: Project Manager: Project Manager: email address/Tel. #: 12 Contract #: Date of Contract: Total Value of Contract: 14 Work Start Date: Work Completion Date: Project Bond #: Surety: 16 Project Name: 17 Project Address: 18 General Contractor: General Contractor Address/Tel. #: 20 19 Project Manager: Project Manager: email address/Tel. #: 22 Contract #: Date of Contract: 21 Total Value of Contract: 24 Work Start Date: Work Completion Date: 23 25 Project Bond #: Surety:

*** Attach additional sheets as necessary ***

Exhibit B SAMPLE AMORTIZATION BREAKDOWN* Month Beginning Balance Interest Payment Ending Balance 1 $121966 $508 $5351 $117123 2 117123 488 5351 112261 3 112261 468 5351 107378 4 107378 447 5351 102474 5 102474 427 5351 97550 6 97550 406 5351 92606 7 92606 386 5351 87641 8 87641 365 5351 82655 9 82655 344 5351 77649 10 77649 324 5351 72622 11 72622 303 5351 67573 12 67573 282 5351 62504 13 62504 260 5351 57414 14 57414 239 5351 52302 15 52302 218 5351 47169 16 47169 197 5351 42015 17 42015 175 5351 36839 18 36839 153 5351 31642 19 31642 132 5351 26423 20 26423 110 5351 21182 21 21182 88 5351 15920 22 15920 66 5351 10635 23 10635 44 5351 5329 24 5329 22 5351 0

*Actual calculation will be based on actual dates of receipt of payments.

Ex. B to JUDGMENT PURSUANT TO STIPULATION

20130114

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