THOMAS M. DURKIN, District Judge.
Plaintiffs, the Laborers' Pension Fund and the Laborers' Welfare Fund of the Health and Welfare Department of the Construction and General Laborers' District Council of Chicago and Vicinity, and the Chicago Laborers' District Council Retiree Health and Welfare Fund (the "Funds") and Catherine Wenskus, Administrator of the Funds, by their undersigned counsel, move to reinstate this cause and for judgment consistent with the parties' Settlement Agreement. Plaintiffs also seek additional attorneys' fees per the Agreement, ¶8. In support of this motion, Plaintiffs' state:
1. On November 12, 2019, this Court dismissed this matter without prejudice granting parties leave to reinstate this cause on or before May 31, 2020. (Dk # 29). Plaintiffs are seeking reinstatement of this cause to enforce a Settlement Agreement and Release ("Settlement Agreement") reached by the parties to resolve the above captioned matter which is attached hereto as Exhibit A. The Settlement Agreement required total payment in an amount of $223,287.96 by Norvilla, LLC ("Norvilla") no later than January 15, 2020. In paragraph 6 of the Settlement Agreement, the parties agreed that should Norvilla fail to pay its obligation on January15, 2020, it shall be deemed in default within five days after payment was due or on January 21, 2020. Upon default the Funds may declare the entire amounts due and immediately accelerate collection of the total balance owed.
2. The Settlement Agreement provides in paragraph 8 that Norvilla will not be permitted to raise defenses to bar judgment of the unpaid balance other than payment. As of January 21, 2020, no payment was made by Norvilla to credit the amounts owed as described in paragraph 1.
3. According to paragraph 8 of the Settlement Agreement, Plaintiffs are entitled to judgment for attorneys' fees and costs for all time from October 22, 2019 to the present. Reasonable attorneys' fees and costs are established by an affidavit of Karen I. Engelhardt, plaintiffs' counsel. The attached affidavit reflects attorneys' fees based on hourly records the amount of $7, 146.50, which is owed to the Funds' for counsel's attorney's fees for the period from October 23, 2019 to the present. (Exhibit B, Affidavit of Karen I. Engelhardt). Attorneys' fees are owed pursuant to the Settlement Agreement signed by both parties.
Wherefore, Plaintiffs request that the Court enter judgment in the amount of $230,434.46, which consists of the balance payment owed according to the parties' Settlement Agreement and Release, attorneys' fees per paragraph 8 of the Settlement Agreement, Exhibit A. Plaintiffs request that the judgment order include an order to the Company that it is obligated to produce a surety bond in an amount not less than $15,000.00, in the event that the Company begins its operations.
This Settlement Agreement and Release ("Agreement") is entered into by and between the Laborers' Pension Fund and the Laborers' Welfare Fund of the Health and Welfare Department of the Construction and General Laborers' District Council of Chicago and Vicinity, the Chicago Laborers' District Council Retiree Health and Welfare Fund, and Catherine Wenskus, Administrator of the Funds (the "Funds") and Norvilla, LLC ("Norvilla") to fully and finally settle and resolve any and all issues raised in Laborers' Pension Fund et al., v. Norvilla, LLC No. 18 cv 7212 (N.D. Ill) (the "lawsuit"). The Parties agree to the following:
1. This matter is resolved for a total amount of $223,287.96, which shall be paid on or before January 15, 2020. This amount includes principal contributions for the months of March 2019 through June 2019, in the amount of $136,498.06; penalties covering the accumulated months from March 2018 through and including June 2019 at ten percent in the amount of $61,838.10; audit costs of $1,537.04; interest at $4,914.76, and attorneys' fees and costs in the amount of $18,500.00.
2. Simultaneously with the execution of this Settlement Agreement and Release, the managing members of Norvilla, LLC, Bernardino Villasenor ("B. Villasenor") and Lydia Villascnor-Galvani ("L. Villasenor-Galvani") will sign Affidavits which will be incorporated into this Settlement Agreement and attached as Exhibit A. In the Affidavits Norvilla's managing members L. Villasenor-Galvani and B. Villasenor agree to disclose all accounts receivables owed to Norvilla and to be personally liable, jointly and severally, up to the amount collected should a Norvilla receivable payment be paid between November 7, 2019, through and including January 15, 2020.
3. Norvilla agrees to report and pay all on going monthly contributions to the Funds as it is obligated to do under the terms of the collective bargaining agreement and the Funds' respective Agreements and Declarations of Trust, and if Norvilla is not performing any covered work Norvilla shall submit remittance reports reflecting that no covered work was performed for the specific monthly time period.
4. Norvilla represents that it has properly reported contributions due to the Funds for the period from April 2019 through August 2019, however, for that period, contribution amounts have not yet been reviewed by the Funds' auditors. As consideration for the Funds' acceptance of this representation and the documentation submitted by the Company in support of such representations, Norvilla hereby agrees to permit the Funds an opportunity to audit the hooks and records of the corporation under the collective bargaining agreement, Trust Agreements and the Funds' Policies for the period from April 1, 2019 through the present and Norvilla agrees that it may be liable for contributions owed, in the event that an audit determines amounts owed to the Funds. The parties agree that after an audit report is presented to Norvilla in the regular course of business, the Funds at their discretion may refilc an action against Norvilla seeking unpaid contributions for the time period from April 1, 2019 to the present.
5. Norvilla agrees to obtain and maintain a surety bond in an amount of $15,000.00 as required by the Union to guarantee the payment of wages, pension and welfare contributions as provided by the Parties' collective bargaining agreement. Upon the start of Norvilla's operations Norvilla shall provide written proof that it has obtained such a surety bond to Plaintiffs' counsel, Karen I. Engelhardt, Allison, Slutsky & Kennedy, P.C., 230 W. Monroe Street, Suite 2600, Chicago, IL 60606, kie@ask-attomeys.com.
6. In the event that Norvilla fails to maintain its obligations under this Agreement, the collective bargaining agreement and the Funds' respective Agreements and Declarations of Trust, including but not limited to its obligations to submit timely contribution reports and to make timely current contribution payments, Norvilla shall be deemed in default within five (5) days after payments are due, or within five days of a material breach of the terms of this Agreement and the Funds shall have the right to reinstate this action. Upon default, the Funds may declare the entire unpaid amounts immediately due and accelerate collection of the total balance owed. The Funds, on motion in accordance with the Court rules and notice to Defendant's counsel Raymond J. Sanguinetti, at Rathje Woodward, LLC, 300 E. Roosevelt Road, Wheaton, Illinois 60187, rsanguinettiQrathiewoodward.com., shall be entitled to entry of judgment by the Court against Norvilla.
7. Should Norvilla default in making the payment as described in paragraph 1, and the Funds become aware that Norvilla or its managing member received payment for work performed by Norvilla, both L. Villasenor-Galvani and 13. Villasenor shall be liable, jointly and severally, for the amount of that receivable. The Funds shall have leave to amend the Complaint seeking judgment against both L. Villasenor-Galvani and R. Villasenor, adding both individuals as Defendants with notice to counsel Raymond Sanguinetti, waiving service of summons. The Parties agree that the Funds may seek individual liability by either amending the Complaint or pursuant to the Court's jurisdiction under Supplementary Proceedings, Rule 69, F.R.Civ. P.
8. In the event that Plaintiffs are required to obtain compliance with this Settlement Agreement and Release, judgment will be entered against Norvilla, for all unpaid amounts due and for reasonable attorneys' fees and costs incurred by the Funds. Plaintiffs are entitled to judgment for reasonable attorneys' fees and costs incurred in connection with efforts to enforce the Settlement Agreement and Release and for counsel's efforts beginning October 22, 2019. Defendant Norvilla will not be permitted to raise defenses to bar judgment of the unpaid balance other than payment.
9. In consideration of the receipt of all amounts owed as described in paragraph land promises made by the parties, upon receipt of payment as described in paragraph 1, the Funds hereby release and discharge Norvilla and each of their affiliates, parents, subsidiaries, divisions, partners, owners, stockholders, directors, officers, employees, agents, representatives, and their predecessors, successors, heirs, executors, administrators and assigns, agents, attorneys, representatives, trustees, administrators, and all persons acting by, through or under any of them jointly and severally, in their individual, fiduciary and corporate capacities, or any of them, of and from all actions, causes of action, grievances, suits, complaints or claims, arising out of the obligation to contribute to the Funds for the period from July 1, 2018 through August 1, 2019, with the exception of delinquencies that may be identified in a future audit report for the period April 1, 2019 through the present, which will be conducted at a future date in the Funds' discretion.
10. The Laborers' Funds agree to execute a Stipulation to Dismiss which will dismiss all claims asserted by the Funds against Norvilla in this Lawsuit after receipt by the Funds' counsel of record, Karen I. Engelhardt, of an original or a copy of the Settlement Agreement and Release, and Affidavits, Exhibit A. Said Stipulation will dismiss this matter without prejudice up to and through May 31, 2020, and said dismissal will become with prejudice on June 1, 2020.
11. This Agreement is entered into solely for the purpose of settling disputed claims, and shall not he construed as an admission by the Defendant of any (a) liability or wrongdoing; (b) violation of any statute, law regulation, collective bargaining agreement or declaration of trust; or (c) waiver of defenses as to those matters within the scope of this Agreement. It is understood that Defendant denies engaging in unlawful conduct, and this Agreement does not constitute an admission by Defendant of any violation of any law, regulation, collective bargaining agreement or declaration of trust.
12. This Agreement is the entire Agreement between the Parties concerning the subject matter hereof and supersede all prior and contemporaneous oral and written agreements, if any, between the Parties relating to the subject matter hereof. This Agreement may be amended only by a written document signed by an authorized representative of the Funds and Norvilla.
13. Each of the undersigned has read this Settlement Agreement and Release, understands its contents, has had the opportunity to and did negotiate over the terms of this Agreement, and is authorized to sign same on behalf of the entity indicated below.
14. Each party signing this Agreement represents to the other party that it has the authority to release the claims, demands and causes of action which are purported to be released herein and note of said claims, demands or causes of action has been previously assigned to or is owned by any other person or entity.
15. This document may be signed in separate counterparts which will have the same effect as if signed on one document. In the event that any of the provisions of this Agreement are found by a judicial or other tribunal to be unenforceable, the remaining provisions of this Agreement will remain enforceable.
16. The language of all parts of this Agreement shall in all cases be construed as a whole, according to its fair meaning, and not strictly for or against any of the parties. This Agreement shall be governed and construed in accordance with the laws of the State of Illinois, The Funds will request the United States District Court for the Northern District of Illinois, Eastern Division, to retain jurisdiction to enforce the terms of this Agreement.
I, Karen I. Engelhardt declare under oath and under the penalty of perjury the following:
1. I am an attorney and a shareholder at the law firm of Allison, Slutsky & Kennedy, P.C., counsel for Laborers' Pension Fund and the Laborers' Welfare Fund of the Health and Welfare Department of the Construction and General Laborers' District Council of Chicago and Vicinity, and Catherine Wenskus, Administrator. This affidavit is submitted to document attorneys' fees and costs incurred by the Plaintiffs for work performed in connection with the above captioned lawsuit filed under Section 502(a)(3) of the Employee Retirement Income Security Act, 29 U.S.C. § 1132(a)(3), as amended, covering the period from October 23, 2019 through the present.
2. For all attorney time from only October 23, 2019 through January 21, 2020, services were rendered to the Funds at the rate of $265.00 per hour for shareholder, $220.00 per hour for associates, and $150.00 per hour for clerks/paralegals. In this cause, records for legal work on this matter were kept contemporaneously and are attached hereto as Exhibit 1.
3. Exhibit 1 hereto sets forth the time expended from October 23, 2019 through January 21; 2020 by the firm's attorneys and paralegal in this matter. As set forth in that Exhibit, the Laborers' Funds have incurred legal fees to my firm in this matter in the amount of $7, 146.50. Time includes work on the Summary Judgment motion as it was due on November 15, 2019 (Dk # 27), and reporting to the Funds' Trustees concerning proposed settlement terms.
FURTHER AFFIANT SAYETH NOT.
This cause coming before the Court on the Plaintiffs' Motion to Reinstate and for Entry of Judgment Consistent with the Settlement Agreement, due notice having been given to the Defendant, and the Court having found that the Defendant failed to pay amount as promised in the Settlement Agreement and Release, and therefore a confession of judgment shall be entered five days after payments are due or on January 21, 2020.
This matter is reinstated. Judgment is entered on behalf of the Laborers' Pension and Welfare Funds and against Defendant Norvilla, LLC in a total amount of $230,434.46, which consists of the amount to be paid by January 15, 2020 in the Settlement plus additional attorneys' fees for the period from October 23, 2019 through January 21, 2020.
In the event that Defendant is an operating business it is obligated to obtain and maintain a surety bond in the amount required by the Union and no less than $15,000.00, to guarantee the payment of wages, pension and welfare contributions as required by the collective bargaining agreement. Written proof of such bond shall be provided to Plaintiffs' counsel.
This Court retains jurisdiction to enforce the terms of this Judgment Order.
