Laborers' Pension and Laborers' Welfare Fund for the Health and Welfare Department of the Construction and General Laborers' District Council of Chicago Vicinity et al v. J & T Services, Inc. et al

Filing 20

MOTION by Plaintiffs James S. Jorgensen, Laborers' Pension and Laborers' Welfare Fund for the Health and Welfare Department of the Construction and General Laborers' District Council of Chicago Vicinity for judgment Consistent with Settlement Agreement, MOTION by Plaintiffs James S. Jorgensen, Laborers' Pension and Laborers' Welfare Fund for the Health and Welfare Department of the Construction and General Laborers' District Council of Chicago Vicinity to reopen case (Attachments: # 1 Exhibit Exhibits 1-5, # 2 Text of Proposed Order proposed order)(Engelhardt, Karen)

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Case: 1:15-cv-09.013 Document#: 19 Filed: 02/23/16 Page 1 of 3 Page!D #:82 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION ) LABORERS' PENSION FUND and ) LABORERS' WELFARE FUND OF THE HEALTH AND WELFARE DEPARTMENT ) OF THE CONSTRUCTION AND GENERAL ) LABORERS' DISTRICT COUNCIL OF ) ) CHICAGO AND VICINITY, JAMES S. JORGENSEN, ) ) Plaintiffs, ) No. 15 C 9013 ) ) Judge Edmond E. Chang v. ) J & T SERVICES, INC., and TOM ALBERTO ) and MARIA A. BANUELOS, ) ) Defendants. ) VOLUNTARY DISMISSAL NOTICE The Laborers' Pension Fund and the Laborers' Welfare Fund of the Health and Welfare Depmiment ofthe Construction and General Laborers' District Council of Chicago and Vicinity, and James S. Jorgensen, by its attorneys, pursuant to Rule 41(a), dismisses this action pursuant to a signed Settlement Agreement and Release, between Defendant J & T Services, Inc., and Tom Albetio. The Plaintiffs and Defendants J & T Services, Inc., and Tom Albetio shall comply with the terms of the Settlement Agreement and Release dated February 22, 2016, which includes consent to the jurisdiction of this Court. By consent ofthe Plaintiffs and Defendants J & T Services, Inc., and Tom Alberto, the Court is asked to retain jurisdiction for the purposes of enforcing the Settlement Agreement and Release, which includes retaining jurisdiction for either party to extend time, or for plaintiffs to enter of judgment as described by the Settlement Agreement. Plaintiffs voluntarily dismiss this matter, without prejudice, until May 1, 2018, at which time this dismissal will be changed to a dismissal Exhibit 1 Case: 1:15-cv-09013 Document#: 19 Filed: 02/23/16 Page 2 of 3 PageiD #:83 with prejudice. By: Is/Karen I. Engelhardt One of Plaintiffs' attorneys Karen I. Engelhardt Allison, Slutsky & Kennedy, P.C. 230 W. Monroe Street, Suite 2600 Chicago, Illinois 60606 (312) 364-9400 ki e(a)ask -a ttomeys. com February23, 2016 2 Case: 1:15-cv-09013 Document#: Filed: 02/23/16 Page 3 of 3 PageiD #:84 Certificate of Service I, Karen I. Engelhardt, state that I forwarded a copy of the Voluntary Dismissal Notice on February23, 2016, withproperpostageprepaid, fi·om the U.S. MailBox located at230 W. Momoe, Suite 2600, Chicago, Illinois 60606, before the hour of 5:00pm., to the following: Mr. Tom Alberto J & T Services, Inc. 34 W. 644 White Thome Road Wayne, Illinois 60184 Is/Karen I. Engelhardt 3 ,- .... l l i l ! ~ SETTLEMENT AGREEMENT AND RELEASE 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, and James S. Jorgensen. Admioistrator of the FW1ds (the "Funds") and Defendants J & T Services, Inc, ("J & T..) and Tom Alberto ("Alberto''), (the Funds and the Defendants will be collectively referred to as the "Parties"), to fully and fmally settle and resolve any and all issues raised in Laborers' Pension Fund et al., v. J & T Services, Inc., and Tom .Alberto, and Marla A. Banuelos, No. 15 C 9013 (N.D. nt) (the "lawsuit''). The Parties agree to the following: 1. Simultaneously with the ~ecution of this Settlement Agreement and Release, J & T Services and Tom Alberto, will sign the Installment Note, which i& incorporated by reference. Both the note and this AgrcQ111ent provide for payment of a total amount of$70,253 .66, plus interest The amount o.f $70,253.66 is the total amount owed which includes principal, damages and interest for the audit covering the period from October 2012 through May 2014 in the amount of$2 7,3 78.16; principal and damages in the amount of $4,009.73, for the report covering June 2014 through December 2014; and the amo11t1t of $48,683.37 in medical expenses paid on behalf of Marla Banuelos. 2. Alberto and/or J & Twill make a down payment of$7, 000.00, each on the following dates: February 19,2016, March 15,.2016 andApril15, 2016. The balanceofthe total amount owed will be paid through monthly installments for 24 consecutive months beginning on May 1, 2016 and ending on April 1. 2018. All of the note payments as described by the Installment Note are hereinafter referred to as the Settlement Payments and must be made in accordance with the terms and conditions provided in the Installment Note. In addition to amounts owed and paid under the Installment Note, J & T and Alberto agree to report and pay all on going monthly contributions to the Funds as it is obligated under the terms of the collective bargaining agreement and the Funds' respective Agreements and Declarations of Trust 3. J & T or Alberto may prepay the amounts due in this Settlement Agreement at any 1 Exhibit 2 I I ! l 'f ! I I J ! I I time, without penalty. If payment is made in full prior to May 1, 2018, the Funds will make a determination of the balance owed including interest on the date of the prepayment. J & T and Alberto are responsible for all note interest owed to the Funds which in the event of pre-payment, will be redetermined. 4. The Parties agree that the Settlement Payments referred to in paragraphs and in paragraph 6 of the Installment Note represent a resolution of the lawsu for the report month of December 2014. 1 and 2 above, it fox-the period ending J & T and Alberto represent that they have properly reported contributions due to the Funds for the period from January 1, 2015 through the present. However, for the period from January 1, 2015 through the present, contrib utions have not yet been reviewed by the Funds' auditors. As consideration fo:r the Funds' accept ance ofthis representation and the docmnentation submitted by the Company in support of such representations, J & T and Alberto hereby agree to pennit the Funds an opportunity to audit the books and records of the corporation under the collective bargaining agreemcmt, Trust Agrctmients and the Funds' Polici es for the period from January 1, 201 S through current, and J & T and Albert o agree that it may be liable for contributions owed, in the event that an audit detennines amoun ts owed to the Funds. The parties agree that after an audit report is presented to J & T and Albert o in the regular course of business, 1he Funds at their discretion may reinstate this ca11se or refile an action against J & T and Alberto seeking unpaid con1riblltions for the identical time period. In the event that J & T or Albertu fails to maintain their obligations under this Agreement, the collective bargaining agreement and the Funds' respec tive Agreements and Declarations of Trust, including but tlOt limited to its obligations to submit timely contribution reports and to make timely current contribution payments, J & T and Alberto shall be deemed in default within five (5) days after payments are due, or witb.ln five days of a material breach of the terms of this Agreement or Installment Note a;nd the Funds shall have the right to reinstate this action. Upon default. the Funds may declare the entire unpaid amoun ts immed iately due and accelerate collection oftbe total balance owed (including monthly payme nts plus tb.e balanc e owed under the Installment Note). The Funds, on motion in accordance with the Court rules and S. 2 notice to DefendantS at 34 W 644 White Thome Road, Wayne Dlinios 60184, shall be entitled to entry ofjudgment by the Court against~ & T and Alberto, individually. 6. Judgtnent will be entered for all unpaid amounts due plus reasonable attorneys' fees incurred by the Fwtds in their efforts to obtain compliance with this Settlement Agreement. Defendants J & T and Alberto will not be pennitted to raise defenses to bar judgment of the unpaid balance other than payment. Plaintiffs are also entitled to judgment for reasonable attorneys' fees and costs incurred in coll.llection with efforts to enforce the Settlement Agreement and Release. 7. In consideration of the receipt of all runounta owed as described in paragraph land promises made by the parties, the Funds hereby release and discharge J & T and Alberto and each of their affiliates, parents, subsidiaries, divisions, partners. owners, stockholders, directors, officers, employees, agents, representatives, and their predecessors, successors, heir:s, executors. administrators and assigns, agents, attorneys, representatives, trustees, adndnistrators, 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 periods ending on December 31, 2014, with the exception of delinquencies that may be identified in a future auclit report which will be conducted at a future date in the Funds' discretion. 8. The Cornpany will be obligated to obtain and maintain a bond. If the Cotnpany is unable to obtain a surety bond in the amount of $5,000.00, the Company agrees to make monthly payments toward a cash bond 9. The Laborers' Fl.Ulds agree to execute a Notice ofVohmtary Dismissal which will dismiss all claims asserted by the Funds against J & T and Alberto 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, the Installment Note. The Parties agree in the event that J & T and Alberto do not rnake tho Settlement Payments pursuant to the schedule in the Installment Note, or this Agreeme nt and Release, or otherwise materially breach the terms of the lnsta.llnient Note or this Agreement ll.Ild Release that either party may reinstate this lawsuit. 3 . 10. This Agreement is entered into solely for the pwpose of settling disputed claims, and shall not be construed as an admission by tho Defendant of any (a) liability or wrongdoing; (b) violation of any statute, law regulation, collective bargaining agree111ent 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 oftrust. 11. This AgrCQment and the Installment Note constitute the entire Agreeroent 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 J & T and Alberto. 12. Each ofthe 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. 13. Each party signing this Agreement represents to tb.e 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 saM claims, demands or causes of action has been previously assigned to or is owned by any other person or entity. 14. The Funds may without notice and without releasing liability of any party hereto grant extensions and/or renewals from time to titne of any terms in this Settlement Agreement and Release and in the Installment Note. No delay by the Funds in exercising any power or right hereunder and no partial exercise of such power or right shall operate in any way as a waiver of any subsequent exercise thereof. The Funds shall prejudiced by granting of an extension or a renewal of any term in this Settlement Agreement. I~. Ibis (focument may be signed·in separate countexpans which will have the :samc effect as if signed on one docwnent. In the event ~at any of the provisions of this Agreement are 4 found by ajudicial or other tribunal to be unenforceable, the remaining provisions of this Agreem ent will remaitl enforceable. 16. The language of all parts oftbis 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 Agreem ent shall be governed and construed in accordance with the laws of the State of lllinois. The Funds will request the United States District Court for the Northern District of illinois, Eastem Division, to retAin jurisdiction to enforce the terms ofthis Agreement and JnstalhnentNote. LABORERS' PENSION FUND and LABORERS' WELFARE TRUST FUND J & T SERVICES, INC., OF 1HE HEALTH AND WELFARE DEPARTIMENTOFTHECONSTRUCTION AND GENERAL LABORERS' DISTRICT COUNCll.. OF CHICAGO AND VICINITY, and JAMES S. JORGENSEN, Administrator of the Funds ~ Date ~ERTO ~~~~~..:::::;...:;..: - z -'LL.- Ib Date 5 INSTALLMENT NOTE This Installm.eut Note ("Note'') Is made between the Laborers' Pension Fund ("Pension Fund"), the Laborers' Welfare Fund of the l{ealth and Wetrare llepartmeot o:f' the Construction alld General Lt.borers' Distric::t Council of Cblcago and Vicinity and tbe .Retiree Health and Welfare~ll'und ("Welfore Funds" Ol' collec.tlvely tho "Funds"), the pames or tb.a first part, BJ)d J & T Strvicts (the "Company"), the p11rties o(the second {)art, Wli:Ji:lU:A.S, tbe Company bas at all relevant tl.mes been party to a coU"t~ve agreement ("CBA11) wjth the Conttruction and Genernl Laborers' District Council or ChicaJo nnd Viduity, whereunder it ·ls oblig.qted to make certaln contributions to tbe above-named Funds, as wen. as to tbe Training Fu.o.d, on behalr of Its covered employees, and to submit payment of all employee union dues: WHEREAS, the Company bas :f'niled to timely pay certain contrlbu.tiow owed to the Funds for the audit J)eriods of October t, 2012 through May 31, 2014 and June 1. 2014 through December 31, 201.4 8lld unnaid claims nn Maria Banuelos, WHEREAS; the Company has railed to remit aU employee ~io1;1 dues to the Funds, as the dcsign..ted coUectio11. agent tor the Construction and General Lnllo.rers' District· Council of Chleago nod Vicinity, for the audit periods ot Ostoher 1, 2012 through Mev 31. 2014 and June 1.2014 through QKember 31.2014. WHEREAS, the Company desires to pay aU delinquencies owed to tbe .fonds, to pay au union dues owed to tile Construction and General Laborers' District Council of Chicago and Vldn.ity, together with liquidated damage$ 1 and interest, as set forti! below and rurtber ooslres to remain .current i.n illS obligation to pay contributions to the Funds. . THE PARTIES HEREBY AGREE as follows: 1. The ComplUlY w;u pay SS0.287.02 to tho Health and Welfare J!'IU.ld (compris~ of S40,0ft,32 w dolinqu~nt contributions, $977.26 iD Uquidated dGma.:es. .S~.4ltAA lo atto.rneya fees and costs and S5,813J1 In Interest) (Wised on an Interest rate or 12%). The Company wUI pay SZ.30l,Z7 to tbe :R.eth-ee Health and Welfare Fund {comprised or $490.20 in delwq_uent contributions., $49.02 io liquidated damages, $1.714.00 in attorneys fees and costs and S~ in interest). 'l'bo Company wiD also pay S13,77J.4:Z to tb.c l'enslon ~nd (comprised of $7,333,28 In delinquent · contributions, hl liquidated dawages, $3.428.00 in attorneys fees and costs and $2.278,81 In interest). All of th~ amounts shall be paid Rc~ord.tog to tb.e si:bedule described below lu paragmpb.s 4 tnd 5. sm.u 2. Tbe Cotnpany 'tViJI alSo pay $~to tbe 'fiaioJog :Fn~d (compl'ised o£ $~ bl delinquent contributions, $~ in Uqu..idated damage.t Rnd S.2ZB2 io lntere,st), $69.48 to the IAF Fund (com{lrised of $~ i.u delinquent contriblttJous, S~ in liquidatcld. d1111maact and SW,Z ln loterest)1 5429,10 to tho LECET Fund (comprised of SmdQ Ju delinqu.ent coutributiooa, S~ In Uquldatecl dar.nagu and 573.36 in interest), S~ to the· LDCMC Fund (comprised ot $554.40 In delinquent contnbutious, $~in Uqu.idated damages and 5133.02 In interest), S9.93 to the ClSCO Fund (comprised of SL§! ln delloqnellt col)trlbutions, 5J.1. in liquidated dJunaget and Sl.47lu interest) -----.........,an...,d~-->$~6h;9llll§:?cl.~6l in union due. (comprised of s;.2§8.86 in deliJJqueut contributions and S~ in liquidated dalllage~). These delinqueut aUlouo.u shall be paid in their endrety as part of the down payment described in paragraph 4. 3. l'be CoUJpany will also llRY tb.e .Famcls or the su.m of S8A70.00 representing attorney fees md costs incurred. by the Funds in Cnse No.t5 C 9£!1:i. Tbls amount i.s S{)lit between the WelfAre, ).tet;lree Weltilre and Pension Funds ti described in parssgrapb 1 above. 4. Tbe Company will pay a $21.000.00 down Jlayment pay11ble as tollowsz S7,000.0Q on Febnun:y 19, 2016, 57.000.00 on Marcb 1!, 2016 and $7.000.00 oo AprillS, 2016, 5. For t'Wenty four (24) consecutive months COillntettclnz on May 1. 2016 nod endine on AQrill, 2018. the Company will pay Sl.66S..U per montb to tbe Health and Welfare F-und, $2W to tb.e Retiree Health and Welfare Fund and S.t2.ZJ1ptr montb to the Pension Fuud. · 4 6. The Company will remit. all payments to the Funds' Road, westchester, nunols 60154. 1. Adml~iitntive omces, whicb are lo~ted at 1146~ Cermak The Company undentands aod ag.rue tbat this .Insto.llment Note is b~tsed OJ.t reports su.bulltted by the Company to tbe Fuo.ds aud that the Fullda resenre the rlgbt to conduct an audit, in accordance witb the terms of the collective bafgllhliog agreement and tf\o Funds' Agreements and Declarations of Trust, to determine beu.ent contribution compliance for tbe tlme period cc;~vered herein and further reserve the .fight to collect any unpllid contributions, union dues, interest, liquidated damages~ and audit costs as shown on said audit. Exhibit 3 8. Payxnents made pursuant to this lnstallment Not0 sball be consJdered "contributions" as denned under the terl)ls of tbe CBA and the Funds' respective A.greements and Decl:u·ations of Trust. If tho contributions are not paid by tha 10" day following the date on which payment should have been retelved, the contrib'lltion sball be considered delinqueot and aU charges which apply to the late payment of contributions unde.- t~ terms of the CBA and the Fund•' -_.upective agreements and Declarations of T.-ust $hAll apply. including, but not limited to1 the assessment ot Jntenst nod liquidated damages., in the event tbe Company falls to timely make any payments descri~ in this Note. All aOJolUlts described in paragraph 1 herein shall immediately become due oo the lOtb day following the 'date on whicb. paynt.ent should have been received by the Fund's under the terr.ns of this Note. In SUt!h event the Company further agrees to pay all attor.oeys' fees and costs incurred by tb.e Funda in any action to enforce any part ofthls Note. 9. 'l'hls Installment Note is condltionlld on the Company staying current on its obligatiQos to the Funds and District Council under the tenna of the collective bareaining ag.reeroe.ot and tile Funds' reapective Agreements and Declarations of Trust. In tbe event that the Comvany falls to maintain its obligatlons unde.- the terms or the collective bargaining agree.ment end the F ..nd•' respeetive Agreements and Declarations o( Trust, including, b~t .no limited to, its oblliatioo.s to submit timely contribution and d._e,s reports and to make timely contribu.tion and dues payr;uents by the tentlt day following the mouth in which laborers' wotlc. was pelfonned, then tile Funds shall hl'lve the riKbt to accelerate and coiled all amounts due under this Installmtnt Note, plus payro.0nt of aU attomeys• toes and costs Incurred by the Funds in any actioo to acceleTate this Installment Note. 10. The Company further agrees to obtain and maintain a s11rety bond to losul'e the payment of waaes and benefit co.ntrlb11tions a.s required under tb.e terms o( the CBA. 11. The Co1;11paay sbaJl have the dgb.t to prepay the entire amount du" under tb.e Note prior to the date upon which payment is due w\tb.ou.t pe.nnlty and without payment of any ptel!41enlated Note interest that has not al!crued as of the date ruU payment hilS bee.._ .h.l.nde. 'l'be farties hereby agree to these terms by tb.elr e~ecntion hereof on the _ _ _ day ofthe _ _ _.., 2016. J & T Services, Inc. Laborers' Pnsion F\Uid," Labot."Crs' Welfare Fund of the Health and Welta,~;e Department of the Construction a.nd General ~"'.eo Md Vl""ily and Ratt,.. llealib and Welfaro Fund. GUARANTY OF PAYMENT AND lNDEMNIFICATION Tlus Guaranty ("Guaranty") is made as of by the undersigned, ~------------'(the "Guarantor"), to and for the benefit of the LABORERS' PENSION FUND AND TflE LABORERS' WELFARE FUND OF THE HEAL'l':U AND WELFARE DEPARTMENT OF THE CONSTRUCTION AND GENERAL LABORERS' DISTRICT COUNCIJ,., OF CHICAGO AND VICINITY (collectively, the "Funds"). WHEREAS, J & T Service, Inc. the "Company") has agreed to pay a total of $75,078.00 to the Funds in settlement of the alleged delinquent contributions owed to the Ftmds and to be paid under the terms of a Settlement Agreement and Installment Note (''Note"). WHEREAS, the Funds are ttnwilllng to enter into the Note unless the Guarantor executes Guaranty: a.ud WHEREAS, the Guarantor has a fmm.1.ciaJ in the Company aud will be benefited by the Note; NOW THEREFORE WHEREAS, in consideration of the foregoing, the Guarantor agrees as follows: 1. Guaranty of Payment and Indemnification. The undersigned guarantees, absolutely and unconditionally; (a) the payment when due ofthe entire principal indebtedness and all interest evidenced by the Note during the twenty" four (24) month payment period inchlding interest and liquielated damages for late or unpaid payments due on the Note; and (b) the full and complete payment of any a.ud all fees and costs incurred pursuant to default under tem1s of the Note, whether litigation is involved or not, and if involved, whether at the trial or appellate levels or in pre- o.r postjudgment bankruptcy proceedings in enforcing or reali:l;ing 1.1p0n the obligations of the Guarantor hereunder (the obligations of Guarantor under this Paragraph 1 are collectively hereinafter referred. to as the "Obligations"). The Guarantor also agrees to be personally liable for all monthly benefit contributions, union dues and/or wages owed from the Company to the Funds. the Oistrict Council, all ancillary funds, and/or the participants that are due at the time the Note and Guaranty are entered into and/o!,' are incurred and become due and owing for the duration of the Note, including all interest, liquidated damages, audit costs, attorneys' fees and costs. 2. Continuing Guaranty. This Guaranty shall be a continuing Guaranty, and shall not be discharged, impaired or affected by; (a) the existence or continuance of any obligation on the part ofthe Company with respect to the Note; (b) any forbearance o:t extension ofthe time of payment ofthe Note; (c) tlw V!llidity or invalidity ofthe Note; (d) ru1y defenses whatsoever that the Company or any of the party thereto may have to the perfom1ance or observance of any tenn, covenant' or condition contained in the Note; (e) the existence or non-existence of the Company as ~ legal entity; (f) any lin:titdtion or exculpation of (other than the payment and pet.fonnance in full of all of the Company's Obligations) that Guarantor may .have as to hls undertakings, liabilities aud obligations hereunder, including any defenses based upon :my legal disability of the Company or any discharge or limitation of the disabillty of the Company, whether consensual or arising by opexation of law or any bankruptcy, insolvency or debtor-relief proceeding, or fi·om any other cause. each and every such defense being hereby waived by the Guarantor. 3. Waivers. Guarantor waives diligence, presentment, protest, notice of dishonor, demand fo.r payment, extensiolJ. of time of payment, notice of acceptance of tllis Guaranty, non~payment at maturity ~;~nd indulgences and notices of every kind not provided for tmder this Guaranty. It is the intention of this Guaranty that Guarantor shall remain Hable as plincipal, notwithstanding any act, omission or thing that might otherwise operate as a legal or equitable discharge of Guarantor, until all ofthe Company's obligations shall have been fully paid and performed. 4. Subrogation. Notwithstanding anythjng to the contrary elsewhere contained herein or in the Note, the Guarantor(s) expressly waive with respect to the Company any and all rights at law or it~ equity to subrogation, to reimbursement, to exoueration, to contribution, to set off or to any other rights that could accrue to a surety against a principal, to th.e Guarantor against a maker or obligor, to an accommodation party against the party acco.uunodated, or to a holder or transferee against a maker, and which the guarantor may have or hereafter acquire against the Company cotmectio.o with or as a result of Guarantor's e?s.ecution, delivery and/or performan~e ofthis Gu..<tran.ty or the Note. ,The Guarantor agrees that he or she shall not have or assett any such rights against the Company or its successors and 1 assigns or any other party (including any surety), either directly or as an attempted set off to any action commenced against the Guarantor by the Company (as borrower or in any other capacity) or any other person. S. Independent Obligations. The Funds may enforce this Guaranty without first resorting to or without first having recourse to the Note; provided, however, that nothing herein contained shall preclude the Funds from suing on the Note or from exercising any other rights; and the Funds shall note be required to institute or prosecute proceedings to recover any de1Jciency as a condition of any payment hereunder or enforcement hereof. 6. Acceleration. In the event that payments due under tbe Note shall be accelerated, the Guarantor's obligations hereunder shall also be accelerated without further notice from the Funds. 7. Effect of Bankruptcy. This Guaranty shall continue in full force and effect notwithstanding the institution by o~ against the Compa:ny of bankruptcy, reorganization, readjustment, receivership or insolvency proceedings of any nature, or the disaftlnnance of the Note in any such proceedings, or others. 8. Tennination. This Guaranty shall remain in full force and effect as to the Guarantor lUltH all of the Companys' Obligations under the Note outstanding shall be finally and frrevocably paid in full. Payment of all of the Company's Obligations from time to time shall not operate as a discontinuance of this Ou.aranty. l.f after receipt of <my payment of all or any part of the Company's Obligations, the Funds are for any reason compelled to stuTender such payment to any person or entity, because such payment is detennined to be void or voidable as a preference, impennlssible set off, or a diversion of trust f\md, or for <my reason, this Guaranty shall continue in full force notwithstanding auy contract action which may have been taken by the Funds in reliance upon such payment, and any such contrary action so taken shall be without prejudice to the Funds' .rights under this Guaranty and shall be deemed to have been conditioned upon such payment having become final and irrevocable. 9. The Company's financial Condition. The Guaranto.r assumes full responsibility for keeping f\llly infom1ed of the Company's financial condition and all other circmnstances affecting the Company's ability to perform its Obligations, and agree that the Funds will have no duty to report to Guarantor any information which the Funds receive about the COlnpany's financial condition or any circum,stan.ces bearing on its ability to petfonn. 10. Expenses. The tmdersigned agrees to pay and reimburse the Funds for all cost and attorney's fees, which they may expend or incur in the enforcement of this Oua!'anty or any of the Company's Obligations under the Note. 11. Delay. Cumulative Remedies. No delay or failure by the Funds to exercise any right to remedy agaiust the Company or Gl.Iarantot' wHl be construed as a waiver of that right or remedy. All remedies of the Funds against the Company and the Guarantor are cumulative. 12. Binding Eff~Qj:. This guaranty shall incur to the benefit of and may be enforced by the Funds, and shall be binding upon and enforceable against the Guarantor and Guarantor'$ heirs, legal representatives, successors and assigns. In the event of the death of the Guarantor, the obligations of such deceased Guarantor shall continu.e in full force and effect against his estate, personal representatives, successors and assigns. Without limiting the generality of the foregoing, the Funds (or tbeir successors and assigns) may from time to time and without notice to undersigned. assign any and all oftheir rights under tlus Guaranty without in any way affecting or diminishing the obligations of the undersigned hereunder, who shall continue to remain bound by the obligated to perfo.rm tmder and with respect to tnis Guaranty as though there had been no such assignment. 13. Default_ The Guarantor hereby authorizes irrevocably any attorney of any CO\lrt of record to appear for him/her in such court, at any time after ten (10) days notice after default in any payment due uoder this Guaranty, and confess judgement against Guarantor, after service of notice of the claimed default, in favor of the Funds for such amount to be unpaid and owed thereon, including interest, liquidated damages and reasonable cost of collection reasonable attorneys' fees. The Guarantor agrees to waive and release all errors which may intervene in any such proceedings, and consent to immediate execution upon such judgement, hereby ratify and confin.ning all that said attorney may do by virtue hereof. 2 14. Warranties. Guarantor makes to the Funds the following representations and warranties: cany out his (a) Authorization. Guarantor has full right, power and authorization to enter into tlus Guaranty and obligatio~)s hereunder (b) NQ Conflict. The execution, delivery and perfon:nance by Guarantor of this Guaranty will not violate or be in conflict with, results in a breach of, or constitute a default under, any indenture, agreeme11t or any other instrument to which Guarantor is a party or by which Guarantor or any of his assets or properties is bound., or any order, writ, injlmction or decree ofany court or governmental institute. (c) Litilm1.LQU. There are no actions, suits or proceedings pending, or to the knowledge of Guarantor, threatened against or adversely affecting any Guarantor at law of in equity or before or by govenunental agency or instrumentality that involve any of the transactions herein co~\templated1 or the possibility of any judgment or liability that may result in any material and adverse change in the financial condition of any Guarantor. Guarantor is not in default with respect to any judgment~ order, writ, injunction, decree, rule or regulation of any court. (d) EnfQt9$\3bility. This guaranty is a legal1 valid and binding obligation of Guarantor, enforceable in accordance with its tenns, except as enforceability rnay be limited by applicable bankruptcy, in.solvency or similar Jaws affecting the rights ofcreditots generally. 15. Notices. All notices or other conununications requiJ:ed or pen:nitted beretmder shall be (a) in writing and shall be deemed to be given when either (I) delivered in person, (II) three (3) days after deposit in a reg\llarly maintained receptacle of the Unitt;:d State,-:; :mail as registered or Certified mail, postage prepaid, (III) when received if sent by private courier service, or (IV) on the day on which Guarantor refuses delivery by mail or by private courier service, and (b) addressed as follows.: In Case of Guarantor In Case of the Funds: Collection Counsel Karen Englehardt Allison, Slutsky & Kennedy 230 W Monroe St Suite Z600 Chicago lL 60606 or such other addresses as may from time to time be designated by the party to be addressed by notice to the other in the manner hereinabove provided. The Funds will use thelr best efforts to send corutesy copies of notices provided hereunder to Guarantor's attorney, . But the failure by the Funds to send courtesy copies to Guarantorj s attomey ;:;hall not limit or restrict the F:unds' rights un,der this Guaranty in any manner not relieve Guarantor of any obligations under this guaranty, 16. Additional Waivers. Guarantor expressly and unconditionally waives, in connection with any suit, action or proceeding brought by the Funds on this Gu!ll'anty, any and every right he or she may have to (I) injunctive relief, (II) a trial by ju.ry, (lll) interpose any counterclaim therein and (IV) seek to have the same consolidated with any other or sepamte suit, action or proceeding. 17. Severability. If all or any portion of any provision of this Guaranty is declared Ot." folmd by a court of competent jurisdiction to be LUl.enforceable or null and void, such provision or portion thereof shall be deemed stricken and severed from this Guaranty and tbe remaining provisions and portions hereof shall continue in fbll force a:od effect. 18. Applicable Law; Venue. This Guaranty and the transactions e-videnced hereby shall be coustrued and interpreted under the Jaws of the State of Illinois. Guarantor, jn order to induce the Funds to accept this Guaranty and 3 inter into the loan agre~m~nt, and for other good and valuable consideration, the receipt a,nd sufficiency of which hereby is acknowledged, agrees that all actions or proceedings arising directly, indirectly or otherwise in connection with, out of, related to or from this Guaranty shall be litigated, at the llund's .sole dlscretio~l, and election, only in courts having a situs within the county of Cook. State of Illinois, Eastem Division. Guarantor hereby waives any right he or she may have to transfer or change the venue of a.oy litigation brought against him by the Funds on this agreement in accordance with this paragraph19. Time is ofthe pssence. Time is ofthe essence ofthis'Guaranty as to the performance oftb.e undersigned. 20. Death of a Guarantor. In the event of the death of Guarantor, the Funds shall have the right to accelerate the indebtedness evidenced by the Note unless, within sixty (60) days of his death, Guarantor's estate assumes his obligation.s hereunder by an instnune.ut saHsfactozy to the Funds and delivers to the Funds security for pert'onnauce of ~1,1ch obligations satisfactory to the Funds. IN WITNESS WHEREOF, the thxee undersigned Guarantors has executed this instrument as of the date and year first above written. ~A_ 1 ~ t--(Jv~ 7 1~3 Socia,! Security Number Date: ~-ZL- /{ APPROVED AS TO FORM AND SOBSTANCE ON BEHALF OF GUARANTOR; Dated: ----------~--~- 4 IN THE UNITED STATES DISTRIC T COURT FOR THE NORTHE RN DISTRIC T OF ILLINOI S EASTERN DIVISION ) ) ) ) ) ) ) ) LABORERS' PENSION FUND and LABORERS' WELFAR E FUND OF THE HEALTH AND WELFAR E DEPART MENT OF THE CONSTR UCTION AND GENERAL LABORE RS' DISTRIC T COUNCI L OF CHICAGO AND VICINIT Y, and JAMES S. JORGENSEN, Administ rator of the Funds, ) Plaintiffs, Case No. 16 C 9330 ) ) J & T SERVICES, INC., and TOM ALBERTO ) ) and MARIA A. BANUELOS, v. Judge Der-Yeghiayan ) ) Defendants. AFFIDAVIT OF JAMES FOSCO STATE OF ILLINOIS ) ) COUNTY OF COOK ) James Fosco, first duly sworn on oath, deposes and states as follows: 1. I am a Field Representative employed by the Laborers' Pension Fund and Laborers' Welfare Fund of the Health and Welfare Department of the Construction and General Laborers' 'District Council of Chicago and Vicinity (the "Laborers' Funds"), the Plaintiffs in the above referenced action. My responsibilities include oversight of the collection of amounts owed by various employers, including J & T Services, Inc. This affidavit is submitted in support of the Laborers' Funds' motion for reinstatement, default of the Installment Note and a prove up ofbalance owed. 2. J & T Services, Inc, ("J & T Services") has been a signatory employer since March 1 Exhibit4 20, 2005, as reflected by the Funds' records and as shown by the collective bargaining agreement. 3. On February 22, 2016, the Company entered into a Settlement Agreement and Release, an Installment Note which provided for payment of monthly installments in the amount of$2,253 .25, each month for a period of twenty-four months. The total amount owed was $54,078.00, which includes interest. Payments began on May 1, 2016 and continued for twenty-four payments or through April 1, 20 18. The Company failed to pay May 2017 through the present. 4. The balance owed is $27,039.00, and once collected will credit the entire arrearage on the Installment Note. FURTHER AFFIANT SAYETH NOT. 0 .Tamesosco and sworn to before me 1''-day of August 2017. SubsM~bed this ~ •••••••••••• :· •••••••••••••••••••••••• ! "OFFICIA L SEAL• : EUGENIA MASHOS : : NOTARY PUBLIC, STATE OF ILLINOIS : : MY COMMISSION EXPIRES 09129/2020 : ••••••••••••••••••••••••••••••••••• 2 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION LABORERS ' PENSION FUND and LABORERS ' WELFARE FUND OF THE HEALTH AND WELFARE DEPARTME NT OF THE CONSTRUC TION AND GENERAL LABORERS ' DISTRICT COUNCIL OF CHICAGO AND VICINITY, JAMES S. JORGENSEN, Plaintiffs, ) ) ) ) ) ) ) ) ) No. 15 C 9013 ) ) Judge Edmond E. Chang v. ) J & T SERVICES, INC., and TOM ALBERTO ) ) and MARIA A. BANUELOS, ) ) Defendants. AFFIDAVIT OF KAREN I. ENGELHAR DT STATE OF ILLINOIS ) ) COUNTY OF COOK ) 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 ofthe Construction and General Laborers' District Council of Chicago and Vicinity, and James S. Jorgensen, Administrator . This affidavit is submitted to document attorneys' fees and costs incurred by the plaintiffs for work performed in connection with reinstating 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, beginning on July 1, 2017 through the present. 1 Exhibit 5 2. For all attorney time from July 1, 2017 forward, services were rendered to the Funds at the rate of$225.00 per hour for shareholder, $195.00 per hour for associates, and $110.00 per hour for clerks/paralegals. In this cause, records for legal work on this matter were kept contemporaneously and are attached hereto. 3. The attached description of hours worked sets forth the time expended from July 1, 2017 through August 14, 2017, by the firm's attorneys and paralegals 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 $540.00. FURTHER AFFIANT SAYETH NOT. Karen I. Engelhardt/ Subste/J and sworn to before me this Jl{,;y of A us~ ~ OTARYPUBLIC PAULA D£OWA.-os -offiCIAL HAl" My~frplm -···-· 2 Allison, Slutsky & Kennedy, P.C. Slip Listing 8/14/2017 2:32PM Page Selection Criteria Slip. Classification Clie. Selection Refe. Selection Slip. Transaction Date Open Include: Labrs P&W 1 Include: J & T Services 7/1/2017- Latest Rate Info - identifies rate source and le~,el Slip 19 Dates and 1ime Posting Status Description ~~~--------=-=----------------TIME 299649 7/5/2017 8/3/2017 G:12436 Billed Call w/ Fund Attorney Activity Client Reference K. Engelhardt Legal Services Labrs P&W 1 J & T Services TIME 299695 7/7/2017 G: 12436 Billed Report to Trustees K. Engelhardt Units DNB 1ime Est. 1ime Variance 0.10 0.00 0.00 0.00 Rate Rate Info Bill Status --_,...,.......,...,.... Slip Value 225.00 C@1 22.50 0.10 0.00 0.00 0.00 225.00 C@1 22.50 Legal Services 8/3/2017 Labrs P&W 1 J & T Services TIME 300851 8/7/2017 WIP Call w/ J. Hatcher; letter to T. Alberto K. Engelhardt Legal Services Labrs P&W 1 J & T Services 0.40 0.00 0.00 0.00 225.00 C@1 90.00 TIME 300857 8/8/2017 WIP Calls w/ J. Fosco, work on letter to T. Alberto draft Motion to reinstate and enter judgment K, Engelhardt Legal· Services Labrs P&W 1 J & T Services 1.10 0.00 0.00 0.00 225.00 C@1 247.50 TIME 300910 8/9/2017 WIP Draft J. Fosco affidavit; complete motion K. Engelhardt 0.70 0.00 0.00 0.00 225.00 C@1 157.50 Legal Services Labrs P&W 1 J & T Services Billable Unbillable Total 2.40 0.00 2.40 Grand Total 540.00 0.00 540.00

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