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HomeMy WebLinkAbout67-081RESOLUTION 67-81 OF THE CITY COUNCIL OF THE CITY OF SANTA ANA RATIFYING, AFFIRMING, AND APPROVING MEMORANDUM OF UNDERSTANDING FOR SETT?.RMENT OF WEST COAST PIPE CASES WHEREAS: 1. The CITY OF SANTA ANA (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., hereinafter 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 settlement 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 Plaintiffs 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 plaintiffs' Agent of the net settlement amount on a lump sum basis, without responsibility onthe 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. 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 Santa Ana 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 plainti~s' 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 plaintiffs, are hereby authorized and approved. -1- 4. ~he Mayor and the Clerk of the Council of the City of Santa Aha are hereby directed, authorized and empowered to execute and deliver, on behalf of the City of Santa Ana, 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 order to effectu- ate and consummate the compromise and settlement provided for in said Memorandum of Understanding. PASSED AND ADOPTED by the City Council of the City of Santa Aha at its regular meeting held on the 5th day of June, 196/~ ~ CLERK OF THE COUNCIL STATE OF CALIFORNIA) COUNTY OF ORANGE ) CITY OF SANTA ANA ) SS I, DORIS M. BROWN, do hereby certify that I am the Clerk of the Council of the City of Santa Aha; that the foregoing Resolution was regularly introduced to said Council at its regular meeting held on the 5th day of June, 1967, and was at said meeting regularly passed and adopted by the following vote, to wit: AYES, COUNCILMEN: Herrin, Brooks, Carlson, Griset, Markel, Thurman, McMichael NOES, COUNCILMEN: None ABSENT, COUNCILMEN: None CLEP~K OF THE COUNCIL CERTIFICATE The undersigned hereby certifies that she is the duly appointed, qualified, and acting Clerk of the Council of the City of Santa Ana 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 5th day of June, 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 her hand and affixed the official seal of the City of Santa Aha this 5th day of June, 1967. CLERK OF THE ~OUNClL Name of Customer CITY OF SANTA ANA COVE~ANT 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 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 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 pr6ducts produced or sold, or pipe services performed by, Suppliers. IN WITNESS WHEREOF, Customer has caused this covenant to be executed this 5th day of June , 1967. (official Seal) CITY OF SANTA ANA Name of Customer By ATTEST: