General Employees Trust Fund and Board of Trustees of General Employees Trust Fund v. Merchants Exchange Building Holdings, Inc. et al

Filing 18

ORDER RE SETTLEMENT AGREEMENT AND STIPULATION FOR CONDITIONAL DISMISSAL AND ENTRY OF JUDGMENT UPON DEFAULT. Signed by Judge Vince Chhabria on 3/16/2016. (knm, COURT STAFF) (Filed on 3/16/2016)

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DIAN E SIDD-CHAMPION - 78140
WYLI E, McBRIDE, PLATTEN & RENNER
605 Market Street, Suite 1200
San Francisco, California 94105
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Petitioners
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UNITED STA TES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNI A

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SAN FRANCISCO DIVISION

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GENERAL EM PLOY EES TRUST FUND and
BOARD OF TRUSTEES OF GENERAL
EMPLOY EES TRU ST FUND,
Petitioner,

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Case No. 16-cv-00063 VC

SETTLEMENT AGREEMENT AND
STIPULATION FOR CONDITIONAL
DISMISSAL AND ENTRY OF
JUDGMENT UPON DEFAULT

VS .

MERCHANTS EXCHANGE BUILD.ING
HOLDINGS, INC.; MERCHANTS
EXC HANG E BUILDING LLC; THE CLINTON
REILLY GROUP, INC.; and CLINTON
REILLY HOLDINGS LLC,
Res ondents.

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COME NOW petitioners General Employees Trust Fund and Board of Trustees of General

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Employees Trust Fund (collectively, "Trust Fund") and respondents Merchants Exchange Building

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Holdings, Inc. ; Merchants Exchange Building LLC; The Clinton Reilly Group, Inc.; and Clinton

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Reilly Holdings LLC (collectively, "Employer") and hereby enter into thi s Settlement Agreement

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and Stipulation for Conditional Dismissal and Entry of Judgment upon Default ("Agreement"),

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sti pulati ng and agreeing as follows:

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The Trust Fund has alleged that the Employer failed to make fringe benefit contributions on

a timely basis on account of work performed by the Employer's employees during the period from

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SETTLEM ENT AGR EEM ENT AND STIPULAT ION FOR CONDITIONA L DISM ISSAL A ND EN TRY OF JUDGM ENT
UPON DEFAULT; Case No. 16-cv-00063 VC

January I, 2010 through December 31 , 2012, as more fully appears in the Petition to Confirm
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Arbitration Award .
2.

The Trust Fund caused audits to be conducted of the books and records of the Employer for

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the period from January 1, 20 I 0 through December 31 , 201 2 ("Audits"). The Audits showed that

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the Emp loyer owed monies to the Trust Fund. When the Employer failed to pay the monies found

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in the Audits, the Trust Fund referred the matter to final and binding expedited arbitration. The

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arbitration award found that the Employer owed the Trust Fund $1 12,605 .89 plus interest from

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August 20, 2015 until paid .

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3.

The Trust Fund and the Employer (collectivel y, the "Parties," and, individually, a "Party")

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now desire to settle this matter and have agreed upon a basis for the adjustment of the matters

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alleged in the Petition to Confirm Arbitration Award and the entry of a judgment in Case No. I 6-cv-

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00063 VC (the " Action") pursuant to the terms of this Agreement.

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4.

The Employer agrees to the entry of judgment in the amount of $119, 759.02, plus interest at

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the rate of fifteen dollars and fifty-seven cents ($15.57) per day from February 2, 2016 until paid, to

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be satisfied as follows:

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(a) The Employer shall make one (1) payment of fifty-nine thousand eight hundred seventy-

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nine dollars and fifty-one cents ($59,879.51) on or before March 15, 2016 or within ten

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(I 0) business days after the entry of the Order set forth at the end of thi s Agreement,

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whichever is later.

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(b) The Employer shall make five (5) payments of nine thousand nine hundred seventy- nine

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dollars and ninety-two cents ($9,979.92) on or before the 15th day of each month

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beginning on April 15 , 2016 and ending on August 15, 2016.

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(c) The Employer shal l make one (I) payment of nine thousand nine hundred seventy- nine
dollars and ninety-one cents ($9,979.91) on or before September 15, 2016.
(d) All the foregoing payments shall be in the form of checks made payable to "General
Employees Trust Fund," and sent to the fol lowing address:

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SETTLEM ENT AGREEM ENT AN D STIPULA TION FOR CON DITIONA L DI SMI SSA L AN D ENTRY OF JUDGM EN T
UPON DEFAU LT; Case No. 16-cv-00063 VC

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Diane Sidd-Champion
Wylie, McBride, Platten & Renner
605 Market Street, Suite 1200
San Francisco, CA 9410 5

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5.

The Parties request that the Action be conditionally dismissed upon the entry of the Order set

forth at the end of thi s Agreement.
6.

The Employe r agrees to remain current in its future obli gations to submit timely frin ge

benefit contributions to the Trust Fund for the work months from February 2016 throu gh the final
date of payment made under thi s Agreement. If the Employer fa ils to submit a report fo rm to the
Trust Fund or to pay any monthl y frin ge benefit contributions indicated on the report fo rm by the
twentieth (20th) day of the month fo llowing the work month fo r the work months from February
2016 through the fin al date of payment, it is agreed that the Employer shall be deemed in default and
breach of this Agreement.
7.

If the Empl oyer fa il s to pay any installment due under this Agreement by the du e date set

fo rth in this Agreement, it is agreed that the Employer shall be deemed in default and breach of thi s
Agreement.
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ln the event of a default or breach under the terms of Paragraph 6 or Paragraph 7 of this

Agreement, it is agreed that the Trust Fund may, without notice, move the Court to revoke the
di smissal and enter judgment in favo r of the Trust Fund and against the Employer. The Parties
agree that if judgment is entered, the judgment shall be in the amount of one hundred nineteen
thousand seven hundred fifty-nine dollars and two cents ($ 119,759.02), less any amounts already
received pursuant to this Agreement, plus interest of fifteen do llars and fifty-seven cents ($ 15.57)
per day from February 2, 201 6 until date of entry of judgment; that the judgment will immediately
fa ll due; and th at the Trust Fund will be enabled to execute immediately on the judgment fo r said
sum . If there is no defaul t or breach of this Agreement, no judgment shall be entered and the Action
shall be di smissed with prejudice upon the completion of all payments due under Paragraph 4(a), (b)
and (c) above.
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Upon full payment of all monies due under this Agreement, the Trust Fund shall release and

forever discharge the Employer and its successors, assigns, officers, agents, and employees from any

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SETTLEMENT AGREEMENT AND STI PULATION FOR CONDIT IONAL DISM ISSAL AND ENTRY OF JUDGM ENT
UPON DEFAU LT; Case No. \6-cv-00063 VC

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and all claims and demands related to matters alleged in the Action . The Parties recognize that they
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may be mistaken as to the facts and/or law upon whi ch they may be rel ying in executing this

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Agreement, and that such facts and/or law may be other than or different from th eir present beliefs.

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Nonetheless, the Parties intend to, and do hereby, wa ive any and all claims, demands and causes of

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action arising out of, or in connection w ith, the Action, whether such c laim s, demands, and causes of

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action are known or unknown. The Parties express ly waive and relinquish a ll rights and benefits

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under Section 1542 of th e California Civil Code, which states:

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"A GENERAL RELEASE DOES NOT EXTEND TO CLA IMS
WHICH THE CREDITOR DOES NOT KNOW OR SUS PECT TO
EX IST IN HIS OR HER FAVOR AT T HE T IM E OF EXECUTING
T HE RELEASE, WHICH IF KNOWN TO HIM OR HER MU ST
HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT
WITH THE DEBTOR."

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I 0.

T he Trust Fund reserves its right to audit the Emp loyer fo r work performed on and after

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January I, 201 3, and to collect any additional monies found due in such an audit. The Employer

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agrees that this Agreement w ill not act as a bar to the T ru st Fund conducting such an audit or

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collecting additional monies found due in such an audit based on work performed on and after

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January I, 201 3. Nothing in this Agreement shall be construed as a waiver by the T ru st Fund of any

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claim for any additional amounts that might be owed as mi ght be di sclosed by a subsequent audit of

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the Employer's records or by any other means.

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This Agreement is made and entered into as a free and voluntary act of the respective Parties,

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after be ing provided the opportunity to consult with their own legal counsel and in the exercise of

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the ir own judgment, belief, and knowledge of the nature, extent, and duration of the claim s hereby

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released, and is not made or entered into und er the influence of or in reliance upon statements or

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representations made by any Party, or any attorney, representative, agent, or other person acting for,

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through, or on behalf of any of the Parties, other than as expressly set forth in this Agreement.

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12.

This Settlement Agreement is a compromi se of disputed claims and shall not be construed as

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an admission of liability. The Parties have entered into this Agreement sole ly for the purpose of

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avoiding th e expense and inconvenience of furth er litigation .

SETrLEM ENT AGREEM ENT AND STIPU LAT ION FOR CONDITION AL DISM ISSAL AN D ENTRY OF JUDGM ENT
UPON DEFAULT; Case No. I 6-cv-00063 VC

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13.

Each Party hereto agrees to perform any further acts and to execute and deliver any further

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documents which may be reasonably necessary or otherwise reasonab ly required to implement the

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provisions of this Agreement.

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All notices, requests, demands and other communications hereunder shall be in writing and

shall be mailed or e-mai led as follows:

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Comm unications to Respondents:

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Joseph A. Schwachter
Littler Mendelson, P.C.
(prior to March 7, 20 16):
650 California Street, 20th Floor
San Francisco, Californ ia 94108
(on or after March 7, 20 16):
333 Bush Street, 34th Floor
San Francisco, CA 94 104
Telephone:
(415) 433- 1940
Facsimi le:
(4 15) 399-8490
Emai l: jschwachter@ littler.com

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650 Cali fornia Street, 20th Floor
San Francisco, California 94108
Telephone:
(415) 433- 1940
Facsimile:
[phone]
Email: jschwachter@ littler.com

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Com muni cations to Petitioners:

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Diane Sidd-Champion
Wylie, McBride, Platten & Renner
605 Market Street, Suite 1200
San Francisco, CA 94105
Tele phone: [phone]
Facsimile: [phone]
Emai l: [e-mail]

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This Agreement shall be binding upon and shall inure to the benefit of the Parties, and their

respective successors and ass igns.
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The provisions of this Agreement were negotiated by all of the Parties, and this Agreement

shall be deemed to hav e been drafted eq uall y by all of the Parties hereto.

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SETTLEM ENT AGR EEM ENT AND STIPULAT ION FOR CONDITIONAL DISMIS SAL AND ENTRY OF JUDGM E T
UPON DEFA ULT; Case No. I 6-cv-00063 VC

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17. This Agreement was made and entered into in California, and shall be governed by and
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construed in accordance with the laws of the State of California.
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Each Party is to bear its respective attorneys' fees and costs incurred in the Action.

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However, should the Trust Fund be required to enter or execute on the judgment pursuant to the

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terms of this Agreement. the Trust Fund may recover all attorneys' fees and costs incurred by it on

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and after February 2, 2016 in the Action .

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19.

The Parties acknowledge that they have read this Agreement. that they have had the

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opportunity to consult with and were represented by counsel in reaching this Agreement, and that

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they fully understand and voluntarily accept the terms of this Agreement. Each individual signing

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this Agreement on behalf of a Party represents and warrants that he or she is a duly appointed agent

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or duly elected officer of that Party and each has the right, power, legal capacity. and authority to

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enter into and perform the obligations under this Agreement on their own behalf.

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20.

All prior oral and written representations, covenants, agreements, and contracts discussed or

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entered into by the Parties hereto, or their representatives. are merged into and superseded by this

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Agreement. and this Agreement constitutes the sole and entire agreement between the Parties.

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The provisions and terms of this Agreement are severable, existing separately from one

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another. If any part of this Agreement is determined to be unenforceable by a court of competent

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jurisdiction, the other provisions shall remain fully valid and enforceable.

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22.

This Agreement may be amended only by a writing signed by the Parties hereto.

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This Agreement may be executed in multiple counterparts, each of which shall constitute an

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original, and all of which taken together shall constitute one and the same Agreement.

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MERCHANTS EXCHANGE BUILDING
HOLDINGS, INC.; MERCHANTS
EXCHANGE BUILDING LLC; THE
CLINTON REILLY GROUP, INC.; and

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::JNT°{J}li;GS LLC

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Dated: M~~

3

, 2016

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SETfl.EM ENT AGREEMENT AND STIPULATION FOR CONDITIONAL DISMISSA L AND ENTRY or JUfXiM ENT
UPON OEFAULT: Case No. 16-cv-00063 VC

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GENERAL EMPLOYEES TRUST
FUND and BOARD OF TRUSTEES OF
GENERAL EMPLOYEES TRUST
FUND

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Dated:- - - - - - ' 2016

By :_ _ _ _ _ _ _ __ __ __
Chairperson

APPROVED AS TO FORM:

LITTLER MENDELSON, P.C.

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Dated:

fYl'1 r<-h

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'2016

By

~!l,/)Jw>di0_,

:j{selJA.sdiwachter

Attorneys for Respondents

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WYLIE, McBRIDE, PLATTEN &
RENNER

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Dated:

, 2016

By :_~~~~~~~~~~­

Diane Sidd-Champion

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Attorneys for Petitioners

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IT IS SO ORDERED.
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By: _____________

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VINCE CHHABRIA
Dated :

. 2016

UNITED STATES DISTRICT JUDGE

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SETfl.EMENT AGREEM ENT AND STIPULATION FOR CONDITIONAL DISMISSAL AND ENTRY OF JlJLXJMENT
UPON DEFAULT: Case Nn. 16-cv-00063 VC

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GENERAL EMPLOYEES TRUST
FUND and BOARD OF TRUSTEES OF
GENERAL EMPLOYEES TRUST

~

FUND

/.- L

By• ~ ~
Chairperson

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LITTLER MENDELSON, P.C.

By:_ _ _ _ __ _ _ _ __ _
Joseph A. Schwachter
Attorneys for Respondents

WYLIE, McBRIDE, PLATTEN &

RE~R
By:

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MT

iaJ1'e Sidd-Champion
Attorneys for Petitioners

March 16, 2016

By: _ _ _ _ __ _ _ _ _ _ _ __
VINCE CHHABRIA
UNITED STA TES DISTRICT JUDG E

SETTLEM ENT AGREEM ENT AN D STIPULATION FOR CON DITIONA L DISM ISSAL AN D EN TR Y OF .J UDGMENT
UPON DEFA ULT; Case No. 16-cv-00063 VC

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