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HomeMy WebLinkAbout6568 - West Coast Fire Cases0 0 4 T11 : aem 6/x/67 (12) a 2 3 4 5 6 RESOLUTION NO. 6568 A RESOLUTION C17 THE CITY COUNCIL OF THE CITY GF N0W?GR71 BEACH AUTHORIZING SETTLEMENT OF THE 1-53ST CCAST PIPE CASES ON BEHALF CF. THE CITY AND T I-10- RI1 I14G THE 9'4a,;CUTION. OF A COVENANT NOT TO -SUE IN COIT�CTICN WITH SAID SETTLEMFNT WHEREAS, the City of Newport Beach (hereinafter referred 7 1 to as "this entity ") is a plaintiff in one or more antitrust damage actions generally described as the West Coast Pipe Cases; 9d and 10 IvUIRZ.AS, on May 5, 1967, a written 'Memorandum of 11 Understanding for Settlement of West Coast Pipe Cases Between 12 All Plaintiffs and Certain Defendants" was entered into by 13 counsel r'or plaintiffs in said cases and counsel for defendants 14 United States Steel Corporation, Kaiser Steel Corporation, 15 Martin - Marietta Corporation, U. S. Industries, Inc., United 16 Concrete Pipe Corporation and Smith -Scott Co., Inc., hereinafter 17 collectively referred to as "Settling Defendants ", a copy of 18 said (Memorandum of Understanding being on file in the office of 19 this entity; and 20 I-MREAS, said Memorandum of Understanding provides for 21 payment to the designated Agent for all plaintiffs of the sum of 22 $21,275,000, of which sum $18,587,500 is to be paid in cash on the 23� closing of the settlement and $2,687,500 is to be represented by 241 installment promissory notes of U. S. Industries, Inc., and 25 United Concrete Pipe Corporation; and 26 NU' AS, TRUST DEPARTMENT, BANK OF AMERICA, hT & SA, 27 300 Montgomery Street, San Francisco, California 94102, has been 28 designated by plaintiffs as their Agent under said 1Iemowandum of 29 Understanding; and 30 WHEREAS, in order to consummate the compromise anc 31 settlement provided for in said Memorandum of Understanding, it 32 is necessary that each plaintiff (i) ratify, affirm and approve II I 1 2 3 • 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 321 said Memorandum of Understanding and the compromise and settle- ment provided for thereby, (ii) authorize the payment and delivery by Settling Defendants to plaintiffs' Agent of the net settlement amount on a lump sum basis, without responsibility on the part of Settling Defendants for the allocation or distribu 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; and va.iE:dEAS, acceptance of the compromise and se`stlemen- provided for in said Memorandum of Understanding is in the best interests of this entity; NCW, THEREFORE, BE IT -MISOLVED by the governing body of this entity as follows: 1. Said Alemorandum of Understanding for Settlement of West Coast Pipe Cases Between All Plaintiffs and Certain ;defendants dated Hay 5, 1967, and the compromise and settlement provided '-or thereby, are hereby ratified, affirmed and approves. 2. The designation of TRUST DZP&RT4ENT, BAITZ O> AIMMICA, NT & SA, 330 Montgomery Street, San Francisco, Cali- =nia 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 herei7labove referred to, without responsibility on the part of Settling De.-Le--cants for the allocation or distribution of said settlement amount as among plaintiffs, are hereby authorized and approved. 4. The Mayor and 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, 2. I� I1 a Covenant Not to Sue in the form attached hereto as Exhibit "A ". 2 5. Counsel of record in said` damage actions for this 31 entity are hereby directed, authorized and empowered, on its • 4I behalf and as its act and deed, to execute, deliver and file 5 dismissals in such form as may be agreed to pursuant to said 6 Memorandum of Understanding, to execute and deliver such other 7i writings, and to take any and all other action which may be 8 required of this entity in order to effectuate and consummate 9 the compromise and settlement provided for in said Memorandum of 10 Understanding. ill ADOPTED this 5th day of June, 1967. 12 13 Mayor 14 ATTEST: 15 �, >1 �= A4 s �iy Clerk- 16 _ 18I CERTIFICATE 19 The undersigned hereby certifies that she is the duly 20 elected, qualified and acting City Clerk of the entity named 21 above and that the attached and foregoing is a full, true and cor® 22 rect copy of a resolution duly and regularly adopted by the .City 23 Council of the City of Newport Beach thereof at a meeting duly 24 and -regularly called, noticed and held on the 5th day of June, 25I 1967, at which a quorum was present; and that said resolution has 26 not been altered or amended avid is st-Ill in full force and effea -. 27 IN UITIESS WI]EREOF, the undersigned has hereunto set 28 her hand and affixed she official seal of said entity this r: �L 29 day of June, 1967. 30� • Cztyer 31 I City of Newport B` ach 32 3. 1 1 n U • Name of Customer City of Newport Beach r s 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 of One Dollar and other valuable consideration to the under- signed (hereinafter referred to as "Customer "), the receipt of which is hereby acknowledged, Customer hereby covenants 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 Suppliers asserted under the Clayton Act (15 U.S.C. §§ 15, 15a and 26) or under any other state or federal antitrust law, or based upon alle- 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 services" as used herein Exhibit "At1 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 California, . and such other and different types of pipe and pipe services as (1) may have been designated as a basis for a claim by or on behalf of Customer in its response to Suppliers' transac- tion interrogatories and which designation 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. Without limiting the generality of the foregoing definition, "pipe services" shall include coating, lining, processing and rehabilitation of pipe products or any of such activities. Customer hereby expressly reserves all of its rights 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, firm 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 indirect, by Customer of any pipe products or pipe services manufactured, sold or rendered by Suppliers. It is expressly understood and agreed that this in- strument is not and shall not be construed as a release of Suppliers or of anyone else as to any claim or cause of action; that the consideration paid by Suppliers does not represent and . shall not be construed as compensation for any damages claimed to have been suffered by Customer with respect to purchases or 2 E� contracts for the purchase of the aforesaid pipe products and pipe services, which claims have been denied by Suppliers. The consideration paid by Suppliers has been paid and accepted by Customer solely as a partial adjustment of the aggregate pur- chase price paid 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 be claimed by Customer, whether arising from sales of pipe or performance of pipe services by Suppliers or others, or as a result of acquisition of the same by Customer, and is not an admission of liability to Customer for any such damages, which liability is denied by Suppliers. It is also expressly under- stood and agreed that the consideration paid to Customer is predicated only upon sales of the aforesaid pipe products or 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 fact 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 � day of , 1967. (Official Seal) • ATTEST: e Y� City erk City of Newport Beach Nam Customer By Mayor 3