REQUEST FOR CONDITIONAL DISMISSAL PENDING PAYMENT IN FULL UNDER SETTLEMENT AGREEMENT AND ORDER THEREON
ANTHONY W. ISHII, District Judge.
All parties having appeared and executed a Stipulation for Entry of Judgment, the parties hereby request that the Court order a conditional dismissal of the entire action. The dismissal is conditional upon payment in full under the Stipulation for Entry of Judgment attached hereto as Exhibit "A". The court shall retain jurisdiction in this matter. In the event Defendant defaults in performance of the terms of the Stipulation for Entry of Judgment, judgment shall be entered upon ten (10) days' written notice to Defendant, and a declaration filed by Plaintiffs' attorney as to default by the Defendant. Pursuant to the stipulation of the parties, the judgment to be entered shall be for contributions for February 2012 - July 2012, plus interest in the amount of $28,580.89, plus the balance owed in liquidated damages for the period: February 2012 - July 2012 in the amount of $2,827.72, plus attorney's fees in the amount of $1,200.00, plus current contributions due, less any amounts paid in accordance with the Stipulation for Entry of Judgment.
ORDER
In accordance with the settlement and request of the parties, and good cause appearing therefor,
IT IS HEREBY ORDERED that a conditional dismissal with prejudice of the entire action be entered, The dismissal is conditional upon payment in full under the Stipulation for Entry of Judgment attached hereto as Exhibit "A" for contributions for February 2012 - July 2012, plus interest in the amount of $28,580.89, plus the balance owed in liquidated damages for the period: February 2012 - July 2012 in the amount of $2,827.72, plus attorney's fees in the amount of $1,200,00, plus current contributions due. The Court shall retain Jurisdiction over this matter. In the event Defendant defaults in performance of the settlement agreement or payment schedule, and upon ten (10) days' written notice to Defendant, and a declaration filed by Plaintiffs' attorney as to default by the Defendant, pursuant to the parties' stipulation, the Court authorizes entry of judgment for the balance owed in contributions for February 2012 - July 2012, plus interest in the amount of $28,580.89, plus the balance owed in liquidated damages for the period: February 2012 - July 2012 in the amount of $2,827.72, plus attorney's fees in the amount of $1,200.00, plus current contributions due, less any amounts paid in accordance with the Stipulation for Entry of Judgment.
STIPULATION FOR ENTRY OF JUDGMENT, JUDGMENT PAYABLE IN INSTALLMENTS
IT IS HEREBY STIPULATED and agreed by and between Plaintiffs BOARDS OF TRUSTEES OF THE PACIFIC COAST ROOFERS PENSION PLAN (hereinafter referred to as "TRUST FUNDS") and Defendant FRYER ROOFING CO., INC., a California Corporation, ("FRYER") as follows:
1. FRYER shall make all payments on contributions, liquidated damages, and attorney's fees to the TRUST FUND for the months: February 2012 - July 2012 by February 28, 2013 as follows:
A. The total amount due in contributions due and unpaid to the TRUST FUND for the period: February 2012 - July 2012 in the amount of $28,277.20, plus interest at 7% on the declining balance from September 1, 2012 shall be paid in four equal installments. The first payment shall be due on November 30, 2012. The final payment shall be due on February 28, 2013. The payment schedule attached as Exhibit "A" sets forth the payment amount due for contributions including interest.
B. The total amount due in liquidated damages due and unpaid to the TRUST FUND for the period: February 2012 - July 2012 in the amount of $2,827.72 shall be paid in four equal installments. The first payment shall be due on November 30, 2012. The final payment shall be due on February 28, 2013. Each liquidated damages payment shall be in the amount of $706.93.
C. The total amount due in attorney's fees in the amount of $1,200.00 shall be paid in four equal installments. The first payment shall be due on November 30, 2012. The final payment shall be due on February 28, 2013. Each attorney's fees payment shall be in the amount of $300.00.
D. Total payments on A, B, and C above should be as follows:
November 30, 2012, in the amount of: $8,076.23, calculated as follows: $7,069.30 in contributions and interest + $706.93 in liquidated damages + $300.00 in attorney's fees = $8,076.23;
December 30, 2012, in the amount of $8,255.19, calculated as follows: $7,248.26 in contributions and interest + $706.93 in liquidated damages + $300.00 in attorney's fees = $8,255.19
January 30, 2013, in the amount of $8,160.29, calculated as follows: $7,153.36 in contributions and interest + $706.93 in liquidated damages + $300.00 in attorney's fees = $8,160.29;
February 28, 2013, in the amount of $8,116.90, calculated as follows: $7,109.97 in contributions and interest + $706.93 in liquidated damages + $300.00 in attorney's fees = $8,116.90.
2. IT IS FURTHER AGREED that FRYER shall make payments of all ongoing amounts to become due to the TRUST FUND pursuant to contract between FRYER and TRUST FUND for covered hours worked by defendant employees commencing with payment for August 2012 and September 2012 hours due on or before October 15, 2012 and continuing until the full amount of the judgment as set forth below is paid. Checks will be made payable to the PACIFIC COAST ROOFERS PENSION PLAN and sent to Sue Campbell: 1155 N. First St., Suite 218 San Jose, CA 95112.
3. IT IS FURTHER AGREED by the parties hereto that upon failure of the Defendant to make any of their monthly contribution payments pursuant to the collective bargaining agreement in the timely manner as required above in Section 2, and pursuant to the terms of this stipulation as set forth in Section 1 above, the stipulated judgment attached as Exhibit "A" shall be entered in the amount set forth below:
A. The amount due in contributions for the months: February 2012 - July 2012 in the amount of $28,277.20, reduced by offsets for any payments made on the payment schedule.
B. Liquidated damages due and unpaid to the TRUST FUND for the period: February 2012 - July 2012 in the amount of $2,827.72, reduced by offsets for any payments made on the payment schedule.
C. Attorney's fees due pursuant to contract in the amount of $1,200.00.
D. All unpaid contributions from August 2012 through January 2013, reduced by any offsets for payments made.
Said Judgment shall issue upon ten days written notice to FRYER, upon the filing of a declaration by TRUST FUND' attorney stating that a default has occurred.
4. Upon payment of Contributions for February 2012 - July 2012 plus interest at 7% on the declining balance, Liquidated damages due and unpaid to the TRUST FUND for the period: February 2012 - July 2012, and payment of attorney's fees to the TRUST FUND, the TRUST FUND shall file a Request for Partial Dismissal with prejudice in the lawsuit filed in the U.S. District Court, Eastern District of California, case number: 11-CV-02127 AWI-GSA entitled BOARDS OF TRUSTEES OF THE ROOFERS LOCAL 27 HEALTH AND WELFARE TRUST FUND, PACIFIC COAST ROOFERS PENSION PLAN, NATIONAL ROOFING INDUSTRY PENSION PLAN, ROOFERS LOCAL 27, FRESNO ROOFING CONTRACTORS VACATION FUND, and ROOFERS LOCAL 27 APPRENTICESHIP TRAINING FUND vs. FRYER ROOFING CO., INC., a California Corporation, as to Plaintiff BOARDS OF TRUSTEES OF THE PACIFIC COAST ROOFERS PENSION PLAN, and shall provide a file endorsed copy of that Request for Partial Dismissal via U.S. Mail to Justin Dennis Harris, attorney for FRYER ROOFING CO., INC., a California Corporation At: 1690 W. Shaw Avenue, Suite 200, Fresno, CA 93711.
5. This Stipulation covers the contributions due for February 2012 - July 2012 and liquidated damages due to the Plaintiffs for the time period: February 2012 - July 2012, only, and does not include any amounts for any other time period that the collective bargaining agreement is in effect between the signatory parties. By entering into this Stipulation, TRUST FUND do not waive their right to audit the employer for the above time period, or any other time period, and to collect through a subsequent legal action any additional monies found by an audit to be delinquent because of unreported hours.
6. IT IS FURTHER AGREED AS FOLLOWS:
A. It is understood and agreed that this is a compromise settlement of a disputed claim, and that the payment of consideration for this release does not constitute and shall not be construed for any purpose as an admission of liability by FRYER ROOFING CO., INC., a California Corporation or for that matter by THE TRUST FUND.
B. This Mutual Release and Settlement of Claims Agreement constitutes the entire agreement between the parties hereto, and all other prior agreements, arrangements or understandings, oral or written, express or implied, are merged into, and superseded by the terms of this Mutual Release and Settlement of Claims Agreement.
C. Each of the persons executing this Mutual Release and Settlement of Claims Agreement on behalf of each of the parties thereto warrants that he has full power and authority to do so on behalf of the party or person for whom he is signing, and that no other individual or corporate authorization is necessary.
D. This agreement may be executed in multiple counterparts, each of which shall constitute an original, and all of which taken together shall constitute one and the same agreement.
In witness thereof, Plaintiff and Defendant have executed this stipulation for judgment this ___ day of ____________ 2012, at San Jose, California.
JUDGMENT ON STIPULATION FOR ENTRY OF JUDGMENT
In the above-entitled cause, Plaintiffs BOARDS OF TRUSTEES OF THE PACIFIC COAST ROOFERS PENSION PLAN and Defendant FRYER ROOFING CO., INC., a California Corporation, having stipulated that judgment be entered in favor of Plaintiff and against the Defendant in the sum of $32,608.61.
IT IS ORDERED THAT Plaintiffs BOARDS OF TRUSTEES OF THE PACIFIC COAST ROOFERS PENSION PLAN have and recover judgment from FRYER ROOFING CO., INC., a California Corporation in the amount of $32,608.61 which is composed of the following:
A. The amount due in contributions for the months: February 2012 - July 2012 in the amount of $28,277.20, reduced by offsets for any payments made on the payment schedule.
B. Liquidated damages due and unpaid to the TRUST FUND for the period: February 2012 - July 2012 in the amount of $2,827.72, reduced by offsets for any payments made on the payment schedule.
C. Attorney's fees due pursuant to contract in the amount of $1,200.00.
D. All unpaid contributions from August 2012 through January 2013, reduced by any offsets for payments made.
This judgment shall cover only the delinquent amounts for the time periods: February 2012 - July 2012, and August 2012 through January 2013. The judgment does not include any unknown amounts due to the Plaintiffs for the time periods: February 2012 - July 2012, and August 2012 through January 2013 or for any other time period that the collective bargaining agreement is in effect between the signatory parties.
The judgment specifically does not waive the right of the Trust Funds to audit the employer for the above time period, or any other time period, and to collect any additional monies found to be delinquent as a result of an audit through a subsequent legal action.
