EDWARD M. CHEN, Magistrate Judge.
THIS SERVES TO AMEND the Judgment Pursuant to Stipulation ("Stipulation") (Dkt. #13) entered on May 19, 2014, in favor of Plaintiffs Northern California Glaziers, Architectural Metal and Glass Workers Pension Trust Fund, et al. (collectively "Plaintiffs" or "Trust Funds") and against Defendant Calvin Donyelle Craig, individually and dba Nu-Glass System ("Defendant).
Defendant has requested that the Stipulation be amended to include additional amounts owed to Plaintiffs by Defendant and to extend the time period of the payment plan to allow for additional monthly payments toward the debt owed. This document shall, upon execution by all parties, supersede the previous Stipulation, and become the operative document between the parties.
IT IS HEREBY STIPULATED and AGREED (the "Amended Stipulation" or "Amended Judgment") by and between the parties hereto, that a Amended Judgment shall be entered in the within action in favor of Plaintiffs, and against Defendant, as follows:
1. Defendant is signatory to and bound by the terms of a Collective Bargaining Agreement(s) ("Bargaining Agreement") with the Plaintiff Union ("Union"). The Bargaining Agreement is still in full force and effect.
2. Defendant specifically consents to the Court's jurisdiction, and in accordance with the provisions of 28 U.S.C. § 636(c),
3. Defendant further confirms 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 be bound by the terms of this Amended Stipulation as Guarantors.
4. Defendant is currently indebted to Plaintiffs as follows:
Plaintiffs acknowledge receipt of a joint check issued by Overaa (numbered 200449 and dated February 28, 2018) in the amount of $25,717.71 on March 6, 2018. Upon deposit and bank clearance, said check will be credited to the Amended Stipulation Total of $235,671.55 set forth above.
5. Notice requirements pursuant to the terms of this Amended Stipulation are as follows:
6. The requirements pursuant to the terms of this Amended Stipulation are as follows:
i) The intitial paymen in the in the amount of $28,583.97 (equal to the amount reported as owed for January 2018 contributions) shall be due on March 15, 2018. The payment in the amount of $25,717.71, referenced in ¶ 4 above may be applied to the initial Stipulated payment, leaving a balance of $2,866.26 remaining due on or before 3/15/18.
ii) Equal monthly payments in the amount of $12,070.00 shall begin on March 31, 2018 and shall be due on the last business day of each month for a period of
iii) Plaintiffs may require that Defendant pay electronically, by wire transfer, or by cashier's check.
iv) Defendant shall have the right to increase the monthly payments at any time and there is no penalty for prepayment.
v) Payments shall be applied first to interest, at the rate of 5% per annum in accordance with the Bargaining Agreement and Trust Agreements, then to principal. Interest shall begin to accrue on March 7, 2018.
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 on the audit to this Amended Stipulation. If the Amended 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 Amended Judgment within ten days of receipt shall constitute a default of the obligations under this agreement. All amounts found due on audit shall then immediately become part of this Amended Judgment.
e)
7. In summary, Defendant shall deliver the following payments and documents to Plaintiffs, at the following locations, on or before the following delivery deadlines, until this Amended Stipulation has been fully satisfied:
8. 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 Amended Stipulation.
9. If default occurs, Plaintiffs shall make a written demand to Defendant, to cure said default
10. Any unpaid or late-paid contributions, together with 20% liquidated damages and 5% per annum interest, shall become part of this Amended 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 specifically waives the defense of the doctrine res judicata as to any such additional amounts determined as due.
11. 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.
12. 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."
13. 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 Amended Stipulation, provided the payment is for contributions included in this Amended Stipulation.
14. Prior to the last payment owed under this Amended Stipulation, Plaintiffs shall advise Defendant as to the final amount due, including additional interest, any current contributions, liquidated damages, and additional attorneys' fees and costs incurred, whether or not Defendant defaults herein. Any additional amounts due shall be paid in full with the final stipulated payment due on February 28, 2019.
15. 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 Amended Stipulation are paid in full, and Defendant's account is otherwise current. 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. The waiver may be granted with further conditions, such as paying timely and remaining current for an additional period of time.
16. Defendant waives 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.
17. 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 Amended Stipulation shall not be deemed a waiver of any subsequent breach.
18. In the event that Defendant files for bankruptcy protection, Defendant specifically agrees that the amounts due hereunder, which are employee benefits and related sums, shall not be dischargeable. Defendant agrees to reaffirm this debt, and will not request that the debt be discharged.
19. Should any provisions of this Amended 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 Amended Stipulation.
20. This Amended 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 Amended 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.
21. This Amended Stipulation contains all of the terms agreed to by the parties and no other agreements have been made. Any changes to this Amended Stipulation shall be effective only if made in writing and signed by all parties hereto.
22. This Amended 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.
23. Defendant represents and warrants that he has had the opportunity to be or have been represented by counsel of his own choosing in connection with entering this Amended Stipulation under the terms and conditions set forth herein, that he has read this Stipulation with care and is fully aware of and represents that he enters into this Stipulation voluntarily and without duress.
24. The parties agree that the Court shall retain jurisdiction of this matter until this Amended Judgment is satisfied.
Liquidated damages included in the original Stipulation balance in the total amount of
