HomeMy WebLinkAbout1968-12-18; Municipal Water District; Resolution 233I
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RESOLUTION NO. 233
' WHEREAS, CARLSBAD MUNICIPAL WATER DISTRICT' I 3
i is a plaintiff in one or more lawsuits instituted by it under
federal antitrust laws, which lawsuits are commonly described %.
as the West Coast Pipe Cases; and
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WHEREAS, it has entered into an agreement, knoim-
as Western Associated Pipe Plaintiffs Organization, with other
public agencies who are also plaintiffs in the same litigation,
which agreement provides for the equitable sharing of costd'of
litigation and recoveries made as a result of litigation or
compromise thereof; and
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'i WHEREAS, such agreement provides for the reteztion
of special legal counsel and the agreement has been inplenented. 1
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by the employment of the law firm of FERGUSON b. BURDELL of
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Seattle, Washington; and i
1 WHEREAS, said special counsel and the defendant,
American Pipe & Construction Co., of Monterey Park, California,
have reached agreement on the terms of a settlement and conpro-
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1, RESOLUTION OF THE BOARD OF DIRECTORS
OF CARLSBAD MUNICIPAL WATER DISTRICT APPROVING SETTLEMENT OF PIPE CASES I 1
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PREAMSJJE :
are more fully set out in the attached document entitled
MEMORANDUM OF. UNDERSTANDING FOR SETTLEMENT OF WEST COAST PIPE
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mise which will satisfactorily terminate this. litigation, as 22 //
WHEREAS, the terms embodied in the b!SXO&\NDU:b; OF I
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agency and he recommends acceptance thereof as being in the
best interests of this agency; and
WHEREAS , such memorandum of understandin
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for the paymer,t to this agency of a pro rata share of thh
settlement amount of Eight Million, Five Hundred ThouSand Dklla
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:I ($8,500,000.00) and interest over a period of seven (7) years; :c B :E .< NOW THEREFORE, BE IT RESOLVED THAT: L
The MEMORANDUM OF UNDERSTANDING FOR SETTLEMENT i
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OF WEST COAST PIPE CASES BETWEEN ALL PLAINTIFFS AND AMER~CAN
PIPE & CONSTRUCTION CO. , a copy of which is hereto attached '
as Exhibit I, is hereby adopted, ratified and confirmed.
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2. The President of thSsp
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agency is hereby authorized to sign the release of claim ag&nst
the defendant, attached hereto as Exhibit 11, as the official
act of this agency.
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3. The law firm of Ferguson & Burdell, special ..
counsel retained by Western Associated Pipe' Plaintiffs Owganiza-
tion, is hereby authorized by this agency to enter into a
stipulation dismissing this litigation with prejudice and i
without costs in the form and manner as provided in Exhibit 1114 i
i; hereto attached. .)*
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Pi Adopted. this 18th day of , 1968. i!
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Attest:
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Anount to be Paid:
American agrees to pay to the fiscal agent desigcated by yr
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SO
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Parties:
dolla-rs ($7,284,803) payzbia to the order of said fisca
at i:- address in installments 8s shown on Exhibit "A''
intezzst.at che rate 02 fiva percent (5%) per annus oil C?is
dcclinkg balances of szid mtc?, said interest to bc pc?yc=bie'~t
EXHIBIT I ,. p. 1 of 5
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is not ?&id ES it beco::les dze, it shall be added to :?lie principal
ai;d bezr a like rate o? interest. Said note shall fixther
provlde that if any payment of either principal or interest
is not mde as it bccomes due, the entire balance of sald<tlote
renalning unpzid shzll becoxe and be Immediately due and payable.
Said note shzll also reservs to American the right to make.pay-
meats on account of principzi or interest in advance or' their
Szid note shall fuzchez provide tha~ if sny iilter&t: i
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dde date without penalty. Said note shall further provide
that in sthe event an action is co;=z?lenced to collect said note I
or any part thereof, there shall be addkd to the judgrr.er;t f
any priixlpal or icterest found by the court to be d-ce sucaf
addltionzti sun by way or' attozneys' 2ees as to the court hau
1. jurisdiction of szLd cause shdl se29' reesonabie, sald s~f.Dmey&l
sztisfsc:ory to counsel for IiV.33.
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C" 60
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SG
e. 9 3,
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I CLzy ad CourLty of Szn Fi'mcisco, and all
!: ai3 .L~ -' challenges in thz Ii'esteri~ Tip Cases.
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Axericai an5 its attorneys agree to execute i covmant
c fora satisfactory to IJAT20 covenanting that Axsriczn ar,d i
attorxys shall not further attack in ainy manner the valid'
of 1&4?PO and the selection of special couniel by the State
California.
Each plaintizf that is a sLgnaCory to WAPPO shall rele
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its claim against American, and special comsel for WA320 1
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sbll stipulate to dismissal with prejudice and without c&ts
of its cction against American. <
ProZective Order:
KO person attending the meeting between counsel on SovemSer !
20 aid 21, 1968 concerning the sabject matter of t$is nenorzrrdum 1
-02 understanding shall divulge the nature thereof nor of arry
05 the subjects discussed therezt to any person whos2
res?onsibilities or duties to one or more oz' the parties herein .:
da not require that*he be consulted coacerning or ififo-ned of I
szid discussions In order for one or more of said pzrties to
tzke zction with respect to zzy or" the subjects dlsctlssed on
szid dates, and no officer, ern?loy.ee or zgent of.zny of the
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concluded on Nove
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client or clients, it being uilderstood that ratification by
such clients is necessary.
In consideration of the paymeat of the settlement anaunt
set forth in this memorzndux of understanding, plaintiffs
skall deliver to American duly executed releases and stipulat
to dismiss as &ove provided, together with duly adopted andl
ccrrizicd resolutions or equivalent documents ratifying and
confirming this settlerent.
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American agrees to furnish WA?i?O with certified copks of 1 the resolutioa
board of directors, and ceztlfied co2ies of the resolution of
of American Pipe ad Construction COZ~XY'S
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'I Pipe Linings, Inc. (the latter concerniq, the City of San
Diego lit-igatioa) autkorizicg kaerlficm's om'ficexs ad zttorrreys
to die this settlenent.
1 Tke docix?ents reZerrsd to jazll be in such form 2s shall be
zgrsed to between WATT0 and he-rican.
Execztion of Ehis Xzmora-$zD:
$ r-r; -- L.~.-s meinorandm of ur?dersta-=lding may be executed 53 my
J -..rb2z iru .A of counterparts with like effect as if all signatures
were ail the original.
Dk.TZ3: Fovekber 21, 1958.
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J~xary 1, 1970 505,800
.4?rLl 1, 1370 5G5,83G
July 1, 1970 505,800
Jmiiary 1, 1971 472,300
July I, 1971 472,300
Jaxca-fy 1, 1972 472,303
July 1, 1972 472,300
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Sanuzry 1, 1973
Aily 1, 1973
January 1, 1974
July 1, i974
Jarazry 1, 1975.
,
Toea1
472,309
472 , 300
-472,300
472,300
471,600
$8,503,039
EXHIBIT I . p. 5 of 5
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- RELEASE OF AMERICAN PIPE & CONSTRUCTION CO.
1. This release is executed in favor of and for
the benefit of American Pipe ti Construction Co., a California
corporation, together with its subsidiary and affiliated.com- ,I
panies and the present and former officers, directors, employees
and agents of American Pipe ti Construction Co. and its gub- 'I .
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sidiary and affiliated companies, including successors by,yr,erger .I
the heirs, representatives, executors, administrators, &goes- $
sors and assigns thereof (hereinafter designated as "Ame@can") .
, +' ' .$*. *
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4. < 2.. This release is executed by CARLSBAD .'
MUNICIPAL WATER DISTRICT
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hereinafter designated as "Releasor."
3. This release concerns and relates to the .. \. 1 *.t
following products and services manufactured or supplied by .,
American:. concrete or steel pipe or any other products or
services associated with the construction of pipelines and
other installations-utilizing concrete or steel pipe, including
by way of illustration only and without limiting the generality
of the foregoing; the lining or coating pf new pipe, the
rehabilitation of-used pipe, both in' place and elsewhere,
pipe lining materials such as "Amerplate," either separately
or as a constituent part of pipe manufactured by American or' .,
others, and "specials" such as manhole pipe and fittings manu-
factured, sold-by or supplied by American (hereinafter desig-
nated "pipe products").
page 1, Release
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4. The period of time covered by this release is
prior to January 1, 1969, but includes nevertheless any
transactions between American and Releasor either direckly or
indirectly which transactions are still pending as of January 1,
1969.
5. For and in consideration of the sum of One
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?. Dollar ($1.00) and other valuable consideration.paid by f
American to Releasor, the receipt of which is hereby ackhow-
ledged, Releasor hereby forever releases, discharges and '&quits
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American of and from each, every and all claims, controversies,
actions, causes of action, obligations or liabilities of any
nature whatsoever, now or hereafter known, suspected or claimed,
which Releasor or any of its agents ever had, now has or here-
after can, shall or may have or allege against American based
upon allegations -of conspiracy, collusion, monopoly or
attempted monopoly, which might be asserted under the Clayton -.
Act (15 USC, SS15 and 26), or under any other state or federal
antitrust trade regulation or similar law giving rights to
relief under the same or similar circumstances; and in connectio
with the foregoing only, Releasor expressly waives the provision
of Section 1542 of the Civil Code of the State of California,
reading :
"1542. (Certain Claims Not Affected by
Generil Release.) A.genera1 release does
not extend to claims, which the creditor
does not know or suspect to exist in his
favor at the time of executing the release,
which if known by him must hav.e materially
affected his settlement with.the :debtor."
page 2, Release
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UNITED STATES DISTRICT COURT
WESTESN DISTRICT OF WASHIKGTON , SOUTZERN DIVISION
DISTIiICT OF OREGON
NORTHERN DISTRICT OF CALIFORNIA
CENTIWL DISTRICT OF CALIFORXIA
SOUTHERN DISTRICT OF
STATE OF WASHINGTON, et al.
V.
ANERICAN PIPE AND CONSTRUCTION
CO., et al.
STATE OF OREGON, et al.
ANERICAN PIPE AND CONSTRUCTION
CO., et al.
V.
TiIE STATE: OF CALIFORNIA, et al.
MIERICAN PI?E AND CONSTRUCTION
CO., et al.
V.
THE, CITY OF LOS AXGELES, et al.
M!ZRiCAN PIPE -AXD COWSTRUCTION
CO., et al.
V;
CITY OF SAN DIEGO, et al.
V.
Ai4ZEICAN PIPE AXD CONSTRUCTION
CO., et al. ,
Title of Pleading: STIPULATION
CALI FORN I A
C.A. NO. 3157, W.D. bdh. ,
S. Div.
C.A. No. 65-266 and related
pipe case in the D. 0: Ore.
bearing.C.23. No. 65-299 ..
C.A. No.'43403 and related
pipe cases 'in the X.D. of
Calif. bearing C.A. Nos.
and- 45001
43406-43407, 43752-43754,
C.A. No. 65-911 an6 relzted
pipe cases in the C.D. cf
Calif. bearin9 C.A. Nos.
66-658, and 66-1024
65-913, 65-914, 66-655, 66-65
C.A. No. 3396 and relate;
pipe cases in the S.D. of
Calif. bearing C.A. Xos.
3525. and 3528
ALL NAMZD ACTIONS
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It is hereby stipulated by and between thc above-
named plaintiffs, actins through their special counsel,
Ferguson & Burdell, and the defendant American Pipe and Con-
struction Co. , acting through its counsel, that the actions
above named may be dismissed with predudice as to the defendant
American Pipe and Construction Co., each party shall bear its
own cost.
DATED :
C FERGUSON & BURDELL
By :
Attorneys for WAPPO plaintiffs
George N. Jansen
Jmes 0. Sullivan
Wayne M. Pitluck
Paul B. Wells
PROCOi?IO, CORY, HARGXEAVES AND
SAViTCIl
By :
Attorneys for defendant;
American Pipe and Construction co.
ORDER
Upon 'hearing in open*court, and there being .good
cause shown,
IT IS HEREBY ORDERED that the Jbove designated
actiofis ETC hereby disxissed' with p?rejud.i ce as to the de5enZ.ant
Axcrican Pipe and Construction Co., each party to beax- its own
cost .
DAT'ilD :
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7. Releasor warrants that the persons execu.ti$g
this document on behalf of Releasor are fully authorized so to
do and Releasor makes such warranty in full knowledge that
Releasee has no independent knowledge of the authority or lack '
thereof of such persons but is relying upon Releasor's warranty.
8. Any claim, action or controversy concerning
this release shall be determined under the laws of the St+&
of California. ': I
IN WITNESS WHEREOF, Releasor has caused this' '
, 1968 . release to be executed this - 18th day of December
CARLSBAD MUNICIPAL WATER DISTRICT
(Full name of Releasor)
Off ice Pre L ident
Attesting Witness
page 3, Release
Off ice Secretary ..
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