HomeMy WebLinkAboutRES NO 47-67 CITY RESOLUTIONNO. 47-67
(0r Equivalent Document)
WHEREAS:
1. CITY ~F BAKERSFIELD
(insert name of plaintiff)
(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~ 19677 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 defen-
dants United States Steel Corporation~ Kaiser Steel Corpora-
tion~ 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 $21~2'75~000~ 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 pay-
ment 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 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 governing
body of this entity as follows:
t. 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 settle-
ment 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 plaintiffs~ are hereby authorized
and approved.
4. The President or Vice President (or equivalent
officers) and Secretary or Assistant Secretary (or equivalent
officers) 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 order to effectuate
and consummate the compromise and settlement provided for in
said Memorandum of Understanding.
CERTIFICATE
The undersigned hereby certifies that he is the duly
elected~ qualified and acting Vice-Mayor
(insert title of certifying officer)
of 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
(insert name of board of governing 'body)
special
thereof at a/meeting duly and regularly called~ noticed and
held on the 12th 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 his hand and affixed the official seal of said entity
this 12th day of Jun~ 1967.
(insert signature of certifying officer)
Vice-Mayor
(insert title of certifying officer)
APPROVED:
C i the
Council of the City of Bakersfield
STATE OF CALIFORNIA,
County of Kern
I, MARIA~.N S. IRVIN, City Clerk of the City of Bakersfield, State of California, hereby certify the foregoing and
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.,.~-~ ~ ' ~ in this ~fi~nd that I have compared the same with the original.
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City Clerk
Deputy Clerk
Name of Customj~CitY of Bakersfield
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 contra~ted 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 rel!ease 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 sufferedby Customer with respect to purchases or
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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
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result of acquisition of the same by Customer, and is not an
admission of liability to Customer for any such damages, which
liability is deniedby 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
' Go ~b& executed this 19.th day of June , 1967.
c~'~ ~ ~ (=Of~-~,c at~Seal)
CITY CLE~ ' ~~j '
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CITY OF BAKERSFIELD
By ""' ~ '
STATE OF CALIFORNIA,
County of Kern
I, MARIAN S. IRVIN, City Clerk of the City of Bakersfield, State of California, hereby certify the foregoing and
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j~/~'~'~~d adopted by the Council of the City.. of Bakersfield at a
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~T~-~neeting thereof held on the 12th d._a. Ig of June~ 1967.
' .................................................................................
....... 12th
· ~b~?-~ .... WIT~..~)m~ hand and seal this ................................ day of ......................~...~...e..~ ............................19......6,7,
City Clerk
By .......................................................................................................
Deputy Clerk