HAYWOOD S. GILLIAM, Jr., District Judge.
IT IS HEREBY STIPULATED and AGREED (the "Stipulation") by and between the parties hereto, that Judgment shall be entered in the within action in favor of Plaintiffs District Council 16 Northern California Health And Welfare Trust Fund, et al. ("Plaintiffs" or "Trust Funds") and against Defendant QOL Corp., a California Corporation dba Custom Engineered Openings Windows & Doors ("Defendant") as follows:
1. Defendant is signatory to and bound by the terms of a Collective Bargaining Agreement ("Bargaining Agreement") with the Plaintiff Union ("Union"). The Bargaining Agreement is still in full force and effect.
2. Steve Landry, as RMO/CEO/President of Defendant, and Marc Todd, as Officer of Defendant (collectively "Guarantors"), confirm that they are authorized to enter into this Stipulation on behalf of Defendant and confirm that they are personally guaranteeing the amounts due herein. Defendant/Guarantors specifically consent to the Court's jurisdiction, as well as the use of a Magistrate Judge for all proceedings, including entry of judgment herein. Defendant/Guarantors further confirm that all successors in interest, assignees, and affiliated entities (including, but not limited to, parent or other controlling companies), and any companies with which Defendant joins or merges, if any, shall also be bound by the terms of this Stipulation as Guarantors. This shall include any additional entities in which Guarantors are an officer, owner or possesses any controlling ownership interest. All such entities shall specifically consent to the Court's jurisdiction, the use of a Magistrate Judge for all proceedings herein, and all other terms herein, in writing, at the time of any assignment, affiliation or purchase.
3. Defendant has become indebted to the Trust Funds as follows:
4. Notice requirements pursuant to the terms of this Stipulation are as follows:
5. The requirements pursuant to the terms of this Stipulation are as follows:
a)
i) Initial payment in the amount of
ii) Payments in the amount of
iii) Defendant/Guarantors shall have the right to increase the monthly payments at any time and there is no penalty for prepayment.
iv) Payments shall be applied first to interest, at the rate of 5% per annum in accordance with the Bargaining Agreement and Trust Agreements. Interest shall begin to accrue on September 7, 2016.
b)
c)
d)
i) In the event that amounts are found due to Plaintiffs as a result of the audit, Plaintiffs shall send a copy of the audit report, and written demand for payment to Defendant. In the event that the audit findings are not contested, payment in full shall be delivered to Michele R. Stafford at the address provided above.
ii) In the event that Defendant disputes the audit findings, Defendant must provide the dispute in writing, with all supporting documentation within ten (10) days of the date of the demand. Defendant shall be notified as to whether revisions will be made to the audit. If revisions are not made, payment will be immediately due. If revisions are made, payment in full of the revised amount shall be immediately due.
iii) If Defendant is unable to make payment in full, Defendant may submit a request to add the amounts found due to this Stipulation. If the Stipulation is so revised, Defendant shall execute the Amended Judgment or Amendment to Judgment within ten (10) days of receipt. Failure to execute the revised agreement shall constitute a default of the terms herein.
iv) Failure by Defendant to submit either payment in full or a request to add the amounts due to this Judgment within ten days of receipt shall constitute a default of the obligations under this agreement. All amounts found due on audit shall immediately become part of this Judgment.
e)
6. In summary, Defendant/Guarantors shall deliver the following payments and documents to Plaintiffs, at the following locations, on or before the following delivery deadlines, until this Stipulation has been fully satisfied:
7. Failure to comply with any of the above terms, including submitting a payment that does not clear the bank, shall constitute a default of the obligations under this Stipulation.
8. If default occurs, Plaintiffs shall make a written demand to Defendant/Guarantors, to cure said default
9. Any unpaid or late-paid contributions, together with 20% liquidated damages and 5% per annum interest, shall become part of this Judgment. Plaintiffs reserve all rights available to collect any contributions and related amounts not included herein. This includes, but is not limited to any amounts due pursuant to employee timecards or paystubs, by audit, or other means. Should Defendant fail to submit a report for any month, contributions shall be estimated pursuant to Trust Fund policy. Defendant/Guarantors specifically waive the defense of the doctrine res judicata as to any such additional amounts determined as due.
10. A Writ of Execution may be obtained without further notice, in the amount of the unpaid balance plus any additional amounts due under the terms herein. Such Writ of Execution may be obtained solely upon declaration by a duly authorized representative of Plaintiffs setting forth the balance due as of the date of default.
> 11. The above requirements remains in full force and effect regardless of whether or not Defendant has ongoing work, whether Defendant's account with the Trust Funds is active, or whether Defendant is signatory to a Collective Bargaining Agreement with the Union. If, for any reason, Defendant has no work to report during a given month, Defendant shall submit the job report form (Exhibit A attached hereto) indicating that there are no current jobs. If Defendant has no contributions to report, Defendant shall submit the applicable contribution report stating "no employees."
12. Payments made by joint check shall be endorsed on behalf of Defendant prior to submission, and may be applied toward Defendant's monthly stipulated payment, provided that the issuer of the joint check is not requesting a release in exchange for the payment. Joint checks for which a release is requested may not be applied toward Defendant's monthly stipulated payment, but shall be deducted from the total balance owed under this Stipulation, provided the payment is for contributions included in this Stipulation.
13. Prior to the last payment pursuant to this Stipulation, Plaintiffs shall advise Defendant/Guarantors as to the final amount due, including additional interest, any current contributions and related amounts and all additional attorneys' fees and costs incurred by Plaintiffs, whether or not Defendant defaults herein. Any additional amounts due shall be paid in full with the final stipulated payment due on July 31, 2017.
14. The conditional waiver of liquidated damages shall be presented to the Board of Trustees for consideration only after all amounts due under the terms of this Stipulation are paid in full, and Defendant's account is otherwise current. If Defendant has fully complied with the terms of the Stipulation without default(s), the waiver shall be granted. If the waiver is granted, a Satisfaction of Judgment will be filed with the Court once all payments have cleared the bank. If the waiver is not granted, the liquidated damages will be immediately due.
15. Defendant/Guarantors waive any notice of Entry of Judgment or of any Request for a Writ of Execution, and expressly waives all rights to stay of execution and appeal.
16. Any failure on the part of Plaintiffs to take any action as provided herein in the event of any breach of the provisions of this Stipulation shall not be deemed a waiver of any subsequent breach.
17. Defendant/Guarantors have represented that they do not intend to file for Bankruptcy protection. In the event that Defendant/Guarantors file for Bankruptcy protection, Defendant/Guarantors specifically agree that the amounts due hereunder, which are employee benefits and related sums, shall not be dischargeable. Defendant/Guarantors agree to reaffirm this debt, and will not request that the debt be discharged.
18. Should any provisions of this Stipulation be declared or determined by any court of competent jurisdiction to be illegal, invalid, or unenforceable, the legality, validity, and enforceability of the remaining parts, terms or provisions shall not be affected thereby and said illegal, unenforceable or invalid part, term, or provisions shall be deemed not to be part of this Stipulation.
19. This Stipulation is limited to the agreement between the parties with respect to the unpaid and delinquent contributions and related sums enumerated herein, owed by Defendant to Plaintiffs. This Stipulation does not in any manner relate to withdrawal liability claims, if any. Defendant acknowledges that Plaintiffs expressly reserve their right to pursue withdrawal liability claims, if any, against Defendant and all of its control group members, as provided by Plaintiffs' Plan documents, Trust Agreements incorporated into their Bargaining Agreements, and applicable laws and regulations.
20. This Stipulation contains all of the terms agreed to by the parties and no other agreements have been made. Any changes to this Stipulation shall be effective only if made in writing and signed by all parties hereto.
21. This Stipulation may be executed in any number of counterparts and by facsimile, each of which shall be deemed an original and all of which shall constitute the same instrument.
22. Defendant/Guarantors represent and warrant that they have had the opportunity to be or have been represented by counsel of their own choosing in connection with entering this Stipulation under the terms and conditions set forth herein, that they have read this Stipulation with care and are fully aware of and represent that they enter into this Stipulation voluntarily and without duress.
23. The parties agree that the Court shall retain jurisdiction of this matter until this Judgment is satisfied.
IT IS SO ORDERED.
IT IS FURTHER ORDERED that the calendar in this matter is vacated, and that the Court shall retain jurisdiction over this matter.
In accord with the Northern District of California's Civil Local Rule 5-1, I attest that concurrence in the filing of this document has been obtained from each of the other signatories who are listed on the signature page.
