GARY FEINERMAN, District Judge.
NOW COME Plaintiffs, CHICAGO AREA JOINT WELFARE COMMITTEE FOR THE POINTING, CLEANING AND CAULKING INDUSTRY, LOCAL 52, et al. (hereafter referred to as "Plaintiffs" or "Funds"), by their attorneys, and move the Court for the entry of an order enforcing the terms of the Settlement Agreement entered into between the parties. In support of the Motion, Plaintiffs state as follows:
1. On January 26, 2016, the Funds filed a motion to enforce the terms of the Settlement Agreement entered into between the parties due to Defendant's failure to submit any installments due under the payment plan and its failure to timely submit its reports and contributions due thereon as required under the collective bargaining agreement and the Settlement Agreement. On May 10, 2016, the Court denied the Funds' motion to enforce finding that the settlement agreement did not become effective until December 11, 2015 and that the Funds had not presented evidence of Defendant's breach of the settlement agreement. Below is the Funds' renewed motion to enforce the settlement agreement entered into between the parties and supporting affidavit from the Funds' Administrative Manager, Terry M. Rocco.
2. This action was originally brought by the Plaintiffs, the Trustees of the jointly-administered, labor-management employee benefit plans collectively known as the Tuckpointers Local 52 Fringe Benefit Funds, alleging, inter alia, that Defendant breached its obligations under the terms of the collective bargaining agreement it is a party to with the Administrative District Council 1 of Illinois of the International Union of Bricklayers & Allied Craft Workers, AFL-CIO, and the Agreements and Declarations of Trust under which the Plaintiff Funds are maintained. Specifically, Plaintiffs allege that Defendant failed to remit payment of contributions for work performed on its behalf by beneficiaries of the Plaintiff Funds. The Complaint was brought pursuant to the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. §§1132, 1145.
3. On November 12, 2015, the Defendant and David Algozine executed a Settlement Agreement, which was then executed on behalf of Plaintiff Funds on December 1, 2015, incorporating the terms for settlement agreed to by the parties (a copy of the Settlement Agreement is attached hereto).
4. Defendant and David Algozine agreed that they owed the total amount of $520,795.80 for contributions for October 2014 through July 2015, contributions due pursuant to an audit conducted for the time period January 1, 2011 through December 31, 2013, liquidated damages for October 2013 through July 2013, interest due pursuant to the audit, and attorneys' fees and costs incurred for the time period May 6, 2014 through September 30, 2015, as described in the Settlement Agreement.
5. Defendant and David Algozine also agreed to remain current with the regular submission of monthly reports and contributions due thereon throughout the course of the payment schedule.
6. Defendant and David Algozine agreed to make payment to Plaintiffs of $520,795.80, by way of the Payment Schedule set forth in Schedule A attached to the Settlement Agreement.
7. The Settlement Agreement provides that in the event Defendant and David Algozine fails to timely submit the monthly installment so that it is received by the first of the month or fails to timely submit its monthly reports and contributions which are due on the 20
8. Upon breach of the Settlement Agreement, any payments remaining due under Schedule A shall become immediately due. Algozine and David Algozine, individually, agree to allow this Court to enter judgment against Algozine and David Algozine, individually, upon a Motion by the Funds to enforce the Settlement Agreement with its only defense being that a payment of the balance due, plus the additional attorneys' fees and costs the Funds may incur to enforce this Agreement and/or collect the balance due and owing.
9. Defendant previously argued that the Settlement Agreement did not become effective until it was in receipt of a fully executed copy on December 11, 2015. Defendant essentially argued that it was not in breach of the Settlement Agreement when the Funds' filed the initial motion to enforce because Defendant believed the payment schedule should be adjusted to reflect that the first installment would be due January 1, 2016. However, Defendant did not submit any installments that it intended to be applied to the Settlement Agreement until the last week of January.
10. Furthermore, while Defendant submitted a series of four payments during the period of January 25, 2016 through February 2, 2016 totaling $74,000.00 which were meant to be installments 1 and 2 under Schedule A of the Settlement Agreement, Defendant has not submitted any other payments to the Funds since February 2, 2016.
11. Outside of the payment plan, Defendant submitted monthly contribution reports to the Plaintiffs identifying employees of the Defendant who performed work covered by the collective bargaining agreement, and the number of hours worked by or paid to those employees for the months of August 2015 through February 2016.
12. Courts may "enforce settlement agreements reached in litigation pending before them."
For all the reasons stated, the Plaintiffs hereby move the Court for the entry of an Order enforcing the terms of the Settlement Agreement and entering judgment against Defendant, Algozine Masonry Restoration, Inc. and David Algozine, individually. Specifically, Plaintiffs request:
This Settlement Agreement (hereinafter, "Agreement") is made and entered into this ___ day of October 2015, by and between the Plaintiffs in the above-captioned action, Chicago Area Joint Welfare Committee for the Pointing, Cleaning and Caulking Industry, Local 52, et al., (hereafter referred to as the "Funds") and Defendant, Algozine Masonry Restoration, Inc. (hereafter referred to as "Algozine") and ____________, individually, to resolve the Funds' claims in the above-captioned case.
WHEREAS, Algozine has at all relevant times been bound to a collective bargaining agreement obligating it to report and pay monthly contributions to the Funds at the rates specified therein on behalf of its bargaining unit employees; and
WHEREAS, based on monthly contribution prepared by Algozine for the months of October 2014 through July 2015, Algozine owes the Funds contributions in the amount of $288,116.05; and
WHEREAS, based on monthly reports prepared by Algozine, but untimely submitted for the months of October 2013 through July 2015, Algozine owes the Funds liquidated damages in the amount of $168,024.72; and
WHEREAS, the Funds caused a payroll compliance review to be conducted on Algozine's books and records covering the period of January 1, 2011 through December 31, 2013, which identified underpaid contributions due on behalf of Algozine's employees who performed bargaining unit work along with liquidated damages and interest incurred by the Funds; and
WHEREAS, pursuant to audit disputes submitted by Algozine and accepted by the Funds' Trustees, the audit findings were revised and Algozine owes contributions due on behalf of Algozine's employees in the amount of $43,552.70, liquidated damages in the amount of $4,355.27 and interest in the amount of $2,774.81 for the audited period; and
WHEREAS, the Funds incurred attorneys' fees and costs in the amount of $13,972.25 for the period of May 6, 2014 through September 30, 2015; and
WHEREAS, the Funds filed the instant suit on August 4, 2014 to recover the amounts due on behalf of Algozine's employees; and
WHEREAS, taking into consideration the uncertainties and costs of litigation and the time value of money, the parties desire to resolve, compromise, and settle the Funds' claims in the above-Captioned case.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the Funds and Algozine agree as follows:
1. The foregoing recitals are hereby incorporated into and made a part of this Agreement, as though fully set forth herein.
2. The parties have agreed to enter into a payment plan covering the known amounts due and shall include 7% interest. Algozine shall submit minimum monthly installments according to the payment schedule as identified in Schedule A. In the event that Algozine submits a greater sum than what is identified in Schedule A, there shall be no prepayment penalty.
3. All payments arising from the attached Schedule A payment schedule shall be by check, made payable to the Local 52 Fringe Benefits Account and received on or before the due date in the offices of Baum Sigman Auerbach & Neuman, Ltd., 200 West Adams Street, Suite 2200, Chicago, Illinois 60606.
4. In addition to the payments set forth in Schedule A, Algozine agrees to remain current with the regular submission of its monthly reports and contributions due thereon throughout the course of the payment schedule.
5. In the event that Algozinc fails to timely submit its monthly installment so that it is received by the first of the month or fails to timely submit its monthly reports and contributions which are due on the 20
6. Upon breach of this Agreement, any payments remaining due under Schedule A shall become immediately due. Algozine and ___________, individually agree to allow this Court to enter judgment against Algozine and ___________, individually upon a Motion by the Funds to enforce this Agreement with its only defense being that a payment of the balance due, plus the additional attorneys' fees and costs the Funds may incur to enforce this Agreement and/or collect the balance due and owing.
7. Nothing contained herein shall require the Funds to take legal action in the event of a breach of this Agreement. If the Funds decide in their sole discretion to permit additional time for Algozine to further cure such breach, such allowance of additional time shall not be construed as a waiver of their rights under this Agreement.
8. In the event that Algozine timely submits the installments due and remains current with the submission of its regular reports and contributions, Algozine may request that the Trustees reduce the liquidated damages covered under this Agreement. The Trustees agree to take into consideration Algozine's request, but make no representation that the request will be granted at this time.
9. Nothing herein limits the rights of the Funds to examine the payroll books and records of Algozine for any unaudited period in order to determine Algozine's compliance with its contribution obligations, nor do the terms of this Agreement limit or modify the Funds' right to recover from Algozine any additional amounts which may become due or which may be found to have been due as a result of such an audit.
10. The parties agree that, other than as stated herein, no promises or inducements have been made or offered; that this Agreement is not executed in reliance upon any statements or representations other than as stated herein; that this Agreement contains the entire agreement between the parties hereto and shall be binding upon, and shall inure to the benefit of, the parties and their respective heirs, executors, personal representatives, successors and assigns; and that this Agreement may be only amended by a writing executed by all parties.
11. The parties agree and warrant that the individuals signing this Agreement have the capacity and authority, and have secured all necessary approval, to execute this Agreement and bird the parties to its terms.
12. This document may be executed in multiple or duplicate copies and each such executed copy shall be deemed to an original.
