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HomeMy WebLinkAboutCC Res 1582 1967-08-07 1 1 I RESOLtrrION No./S32 A RESOLtrrION OF THE CITY COUNCIL OF THE CITY OF SEAL BEACH RECINDING RESOLtrrION NO. 1570 AND DIRECTING, AtrrHORIZING, AND EMPOWERING LEGAL COUNSEL TO FILE DISMISSALS IN WEST COAST PIPE CASES. The City Council of the City of Seal Beach does hereby resolve: WHEREAS : 1. The City of Seal Beach (hereinafter referred to as "this entity") is a plaintiff in one or more antitrust damage actions generally described as the West Coast Pipe Cases. 2. On May 5, 1967, a written "Memorandum of Understanding for Settlement of West Coast Pipe Cases Between All Plaintiffs and Certain Defendants" was entered into by counsel for plaintiffs in said cases and counsel for defendants United States Steel Corporation, Kaiser Steel Corporation, Martin-Marietta Corporation, U. S. Industries, Inc., United Concrete Pipe Corporation and Smith-Scott Co., Inc., herein- after collectively referred to as "Settling Defendants," a copy of said Memorandum of Understanding being on file in the office of this entity. 3. Said Memorandum of Understanding provides for payment to the designated Agent for all plaintiffs of the sum of $21,275,000, of which sum $18,587,500 is to be paid in cash on the closing of the settle- ment and $2,687,500 is to be represented by installment promissory notes of U. S. Industries, Inc., and United Concrete Pipe Corporation. 4. TRUST DEPARTMENT, BANK OF AMERICA, NT & SA, 300 Montgomery Street, San Francisco, California 94102, has been designated by plain- tiffs as their Agent under said Memorandum of Understanding. 5. In order to consummate the compromise and settlement provided for in said Memorandum of Understanding, it is necessary that each plaintiff (i) ratify, affirm and approve said Memorandum of Understanding and the compromise and settlement provided for thereby, (ii) authorize the payment and delivery by Settling Defendants to plaintiff's Agent of the net settlement amount on a lump sum basis, without responsibility on the part of Settling Defendants for the allocation or distribution of such settlement amount as among the plaintiffs, and (iii) authorize the execution and delivery of a Covenant Not to Sue, dismissals of the pending actions, and such other writings and the taking of such other action as is required in order to effectuate said compromise and settlement. I I I Resolution Number 6. Acceptance of the compromise and settlement provided for in said Memorandum of Understanding is in the best interests of this entity. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Seal Beach as follows: 1. Said Memorandum of Understanding for Settlement of West Coast Pipe Cases Between All Plaintiffs and Certain Defendants dated May 5, 1967, and the compromise and settlement provided for thereby, are hereby ratified, affirmed and approved. 2. The designation of TRUST DEPARTMENT, BANK OF AMERICA, NT & SA, 300 Montgomery Street, San Francisco, California 94102, as Agent for all plaintiffs is hereby ratified, affirmed and approved. 3. Payment and delivery by the Settling Defendants to plaintiffs' Agent of the settlement amount of $21,275,000 represented by the cash amount and the notes hereinabove referred to, without responsibility on the part of Settling Defendants for the allocation or distribution of said settlement amount as among p1aintiffs,are hereby authorized and approved. 4. The Mayor and the City Clerk of this entity are hereby directed, authorized and empowered to execute and deliver on behalf of this entity, as its act and deed, and under its seal, a Covenant Not to Sue in the form attached hereto as Exhibit A. 5. Counsel of record in said damage actions for this entity are hereby directed, authorized and empowered, on its behalf and as its act and deed, to execute, deliver and file dismissals in such form as may be agreed to pursuant to said Memorandum of Understanding, to execute and deliver such other writings, and to take any and all other action which may be required of this entity in~~r to effectuate and consummate the compromise and sett1emen~ovi~ed for in said Memorandum of Understanding. / , ~. ATTEST: ~1_ /~a..-----/ City Clerk I I I Resolution Number CERTIFICATE The undersigned hereby certifies that he is the duly elected, qualified and acting City Clerk of the City of Seal Beach, the entity named above, and that the attached and foregoing is a full, true and correct copy of a resolution duly and regularly adopted by the City Council thereof at a meeting duly and regularly called, noticed and held on the 7th day of August, 1967, at which a quorum was present; and that said resolution has not been altered or amended and is still in full force and effect. IN WITNESS WHEREOF, the undersigned has hereunto set his hand and affixed the official seal of said entity this 7th day of August, 1967. Zca;/~~~ ~ity Clerk of the City of The City of Seal Beach SEAL h_ . , Resolution Number Name ui ':ustomer CITY OF SEAL BEACH I' COVENANT NOT TO SUE WITNESSETH, that for and in consideration of the payment by United Concrete Pipe Corporation, Smith-Scott Co., Inc;; Kaiser Steel Corporation, Martin-Marietta Corporation, U. S. Industries, Inc. and United States Steel Corporation,' on-behalf of them and of all of their subsidiaries, parents or affiliated companies, all successors and assigns, all predecessor corporations, whether by merger,. consolidation or . otherwise, and all_of_their'past, present or future officers,-~ directors, agents and employees, all of such persons herein- above referred to being beneficiaries hereof (hereinafter jointly and severally referred to as "Suppliers") of the sum I of One Dollar and other yaluable consideration to the_under- signed (hereinafter referred to as "Customer"), the receipt of which is hereby acknowledged, Customer hereby coven~nts and agrees that it will forever refrain from instituting, prosecuting, maintaining, pressing, collecting or proceeding against Suppliers upon any claims, 'controversies, actions, causes of action, obligations or liabilities of any nature whatsoever, whether or not now known, suspected or claimed which Customer ever had, now has or hereafter can, shall or may have or is alleged to have against Suppiiers asserted under the Clayton Act (15 U.S.C. SS 15, lSa and 26) or under any other state or federal antitrust law, or based upon alle- 1 gations of fraud, collusion, conspiracy or false claims, per- taining to purchases made or contracted for, directly or indirectly,. by customer, or services rendered to Customer, prior to May 5, 1967 of any "pipe products and pipe services" as hereinafter defined. "pipe products and pipe ~ervices" as used herein Resolution Number shall mean all those types and kinds of pipe and pipe services , . " which are 'defined in the complaints of the state of california as amended (Civil Nos. 43403 through 43407), in the.United -States' District Court for the Northern District. of Californi~;'~ and such other and different types of .pipe and pipe services , ..'- ~::::- as (l)-may have been designated as a basis for a claim by_or' on 'behalf..of Customer in its -response to Suppliers I transac-', . h . -. - -- --- . tion interrogatories and 'whicl1 designa.tion. was'-not withdrawn . with consent of Suppliers or approval of the Court, or (2) was claimed by 'or on behalf of Customer for verification by. Suppliers. --.. ..... .:....... _:....0;:,. _Wi thout.limi ting the generality of the' foregoing definition, _. ~ ':.-- _.:.' :.:"pipe ..ser:vices" shall include coating, lining, processing" and rehabilitation of pipe products or any of such activities. '._ Customer hereby expressly reserves-all of its rights 1'-- to sue and otherwise to proceed, in any manner against any per-' son, firm or corporation, other than Suppliers, with respect to claims'and causes of action arising out of the acquisition by Customer of pipe products and pipe services made or con- tracted for at any time prior to May 5, 1967, provided that . in exercising any rights of Customer, Customer covenants..and - agrees that it will not seek or recover from any person, f~rm or corporation any damages or other compensation of the type or character hereInbefore referred to, resulting from, or claimed to have resulted from any acquisition, direct or indi~ecti by Customer of any pipe products or pipe services manufactured, I sold or rendered by Suppliers. It is expressly understood and agreed that this in- strument is not and shall not be construe~ as ~ release of Suppliers or of anyone else as to any claim or cause of action; , that the consideration paid by Suppliers does Jot represent and shall not be construed, as compensation for any.damages claimed to have been suffered by Customer with respect to purchases or 2 , Resolution Number '1-- contracts for the purchase of the aforesaid pipe products and pipe services, which claims have been denied by Supplie~s. ' ~e consideration paid by Suppliers has been paid and accepted by Customer solely as a partial adjustment of the aggregate pur- chase price pa~d by Customer for direct or indirect acquisitions by Customer of pipe products produced or sold or pipe services performed by Suppliers. The aforesaid consideration is not a measure of the amount of any damages-that are or may be or might - ~-_.. _.. __n.... _... .:.:..-=-- '. -.-: be claimed by 'Customer, 'whether 'arising from -sales of pipe or - - . .~ . ---- - . - ._.~-.__ - - 0"-- _ _ ""'" _. performance of pipe services by Suppliers or others: or as a ~ . - .. - .....";. -. .-. "---- ---- - .-.- -- result of acquisition of the same by Customer,. and_ia_not an. - - --- - -. -- - ~ .------------. _ ____... . _______.~_ _....... "_ _H_...__....___.__.,.___ ._~___ admission of liability to Customer for any such damages, which liability is denied by Suppliers. It is also expressiy under- stood and agreed that the consideration paid to Customer is __A . ___ __.__." predicated only upon sales of the aforesaid pipe products or I' ...------_. . - -. . pipe services to Customer: by Suppliers. Nothing contained in this covenant is or shall be construed as a limitation on the right of Customer to introduce into evidence at the trial of any action pending against any person, firm or corporation other than Suppliers any matter or . faet relevant in said action, provided only that Customer shall not seek any damages in said action on account of its purchase, directlY or indirectly, of pipe products produced or sold, or pipe services performed by, Suppliers. IN WITNESS WHEREOF, Customer has caused this covenant to be executed this ji/) day of ~ 1967. 1 (Official Seal) Beach ATTEST: ~eI.~A-.~.~~ City Clerk 3