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, Administrator of the Funds, Plaintiffs,
FRANCIS, LLC Defendant.
PLAINTIFFS' MOTION TO REINSTATE THIS CAUSE AND ENTER JUDGMENT CONSISTENT WITH THE PARTIES' SETTLEMENT AGREEMENT
AMY J. ST. EVE, District Judge.
Plaintiffs, the Laborers' Pension and Welfare Funds (the "Funds"), by their attorneys respectfully request this Court to reinstate the above captioned matter and enter judgment against the defendant, Francis, LLC, consistent with plaintiffs' affidavits and the Parties' Settlement Agreement. In support of this motion plaintiffs state as follows:
1. On or about February 21, 2012, the Parties entered into a Settlement Agreement (the "Agreement"), covering the audited period of May 24, 2010 through October 31, 2010. A copy of the Agreement signed by Francis, LLC's President, Steven Searles, is attached hereto as Exhibit 1, as well as Francis, LLC's Installment Note with the Funds, which is attached as Exhibit 2.
2. The Agreement provides that, if Francis, LLC failed to pay either its Installment Note or its ongoing monthly contributions, Francis, LLC shall be deemed in default within ten (10) days after the date payments are due, or within ten days of a material breach of the terms of the Agreement or Installment Note, and further provides that the Funds will have the right to reinstate this action (Exh. 1, ¶4). According to the terms of the Agreement, Francis, LLC is not permitted to raise defenses to bar judgment of the unpaid balance (Exh. 1, ¶5). The Installment Note also contains an acceleration clause enabling the Funds to collect the full amount remaining on the Note if Francis, LLC defaults (Exh. 2, ¶8). Thereby, upon motion, the Funds are entitled to entry of the balance owed against Francis, LLC.
3. According to the Agreement, the judgment shall include all unpaid amounts plus attorneys' fees incurred in the Funds' efforts to seek compliance with the terms of the Agreement (Exh. 1, ¶5; Exh. 2, ¶8). The undersigned counsel has communicated with Mr. Searles by email and/or telephone as recently as July 15th, 26th and 29th, to give him notice of plaintiffs' motion to reinstate the cause, and move for judgment for the balance remaining on the Installment Note, plus the attorneys' fees.
4. Thus, plaintiffs seek to reinstate this cause consistent with the Stipulation permitting this Court jurisdiction for the purpose of enforcing the parties' Settlement Agreement through February 22, 2013. This deadline was extended by the Court to August 30, 2013. (See, Dk# 28, 32, 40, 41).
5. According to the affidavit of James Fosco, the Funds' Field Representative, Francis, LLC failed to submit any of its Note payments since January 1, 2013, and the amount of $21, 375.45 remains due to the Funds pursuant to the Agreement and the Installment Note. (See, Fosco Affidavit, Exhibit 3).
6. According to the undersigned's attached affidavit and fee report, the attorneys' fees incurred in the Funds collection efforts from the date of breach on January 11, 2013 to the present show the amount of $5, 822.50 is owed pursuant to the Parties' Settlement Agreement. (See, Schumann Affidavit, Exhibit 4; Fee Report Exhibit 4A)
7. The Funds retain the right to file a new lawsuit for any audit findings for the as yet unaudited period from November 1, 2010 through the present, as Francis, LLC has failed to submit several monthly reports and payments to the Funds and a compliance audit is currently in progress for this period. However, the Funds find no just reason to delay the judgment in the present matter.
8. Plaintiffs seek judgment in the total amount of $27, 197.95 against the defendant, Francis, LLC, and in favor of the Funds, consisting of the remaining amount due on defendant's Installment Note pursuant to the Parties' Settlement Agreement plus the attorneys' fees incurred in the Funds' collection efforts from defendant's breach to the present.
WHEREFORE, plaintiffs request this Court enforce the Parties' Agreement and thereby reinstate this cause, entering judgment in the total amount of $27, 197.95 against Francis, LLC, and in favor of the Funds, pursuant to defendant's breach of the Parties' Agreement and default on its Installment Note, covering the audited period of May 24, 2010 through October 31, 2010, plus attorneys' fees incurred by the Funds' collection efforts to the present.
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, Administrator of the Funds (the "Funds") and Francis, LLC ("Francis"), (the Funds and the defendant will be collectively referred to as the "Parties"), to fully and finally settle and resolve any and all issues raised in Laborers' Pension Fund et al., v. Francis, LLC, No. 11 C 3884 (N.D. Ill) (the "lawsuit"). The Parties agree to the following:
1. Simultaneously with the execution of this Settlement Agreement and Release, Francis, by its President, Steven Searles, will sign the Installment Note (the "Note"), which is incorporated by reference and which provides for payment of a total amount of $26, 375.45 (inclusive of precalculated interest to accrue over the entire term of the Note). This amount of $26, 375.45 is the total amount owed pursuant to the Note which includes accumulated interest owed for the unpaid contributions from the period of May 24, 2010 through October 31, 2010 and includes additional precalculated interest to accrue over the term of the Note.
2. Francis will make its first installment payment on or before March 1, 2012, in the total amount of five hundred dollars ($500.00), which also consists of amounts owed to the Training and Ancillary Funds. The Note further indicates that Francis will continue to pay monthly installments for 52 consecutive months beginning on April 1, 2012 and ending on June 11, 2016. All of the note payments as described by the Note are hereinafter referred to as the Settlement Payments and must be made in accordance with the terms and conditions provided in the Note.
3. The Parties agree that the Settlement Payments referred to in paragraphsl and 2 above and in paragraphs 5 and 6 of the Note replesent a resolution of the lawsuit for the period from May 2010 through October 2010. Francis represents that it has properly reported contributions due to the Funds for the period from November 2010 through January 2012, however, contribution amounts have not 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, Francis hereby agrees to permit the Funds an opportunity to audit the books and records of the corporation under the collective bargaining agreement, Trust Agreements and the Funds' Policies and Francis 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 Francis in the regular course of business, the Funds at their discretion may file an action against Francis seeking unpaid contributions for the November 2010 through January 2012 time period.
4. In the event that Francis 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, Francis shall be deemed in default within ten (10) days after payments are due, or within ten days of a material breach of the terms of this Agreement or Note and the Funds shall have the right to reinstate this action. In the event of such a default, the Funds may declare the entire unpaid amounts immediately due and accelerate collection of the total balance owed (including monthly payments plus the unpaid balance owed under the Note less any precalculated interest not yet accrued at the time of default). The Funds, on motion in accordance with the Court rules and notice to defendant at its usual place of business at 79 West Monroe Street, Suite 808, Chicago, Illinois 60603 shall be entitled to entry of judgment by the Court against Francis.
5. In the event that a Judgment is entered pursuant to the terms in Paragraph 4 of this Agreement, such Judgment will be entered for all unpaid amounts due, less all precalculated interest not yet accrued as of the date of the Judgment, plus reasonable attorneys' fees incurred by the Funds in their efforts to obtain compliance with this Settlement Agreement. Defendant Francis will not be permitted to raise defenses to bar judgment of the unpaid balance other than payment or a miscalculation of the proper amount of the Judgment. Plaintiffs are ...