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HomeMy WebLinkAboutPR 15218: HUNTSMAN PETROCHEMICAL CORPORATIONP. R. No. 15218 04/28/09 gt RESOLUTION NO. A RESOLUTION AS IT PERTAINS TO HUNTSMAN PETROCHEMICAL CORPORATION WHEREAS, per a Motion adopted by the City Council on January 13, 2009, the City authorized the retention of CALVERT EAVES CLARKS & STEELY, LLP to assist the City Attorney in its dispute with Huntsman Petrochemical Corporation, as denoted in Exhibit "A"; and WHEREAS, the City has requested a full copy of the Asset Purchase Agreement from Huntsman Petrochemical Corporation, as well as other ancillary documents; and WHEREAS, Huntsman Petrochemical Corporation, Inc. has indicated that they are concerned as to the confidentiality of the documents; and WHEREAS, the City Council believes it is in the best interest of the citizens to authorize the City Attorney and City Manager to sign the Confidentiality Agreement, in substantially the same form as delineated in Exhibit "B", which is being negotiated with Huntsman Petrochemical Corporation. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PORT ARTHUR: Section 1. That the facts and opinions in the preamble are true and correct. Section 2. That the City Manager is herein authorized to z.nr1521E sign the Confidentiality Agreement, in substantially the same form as delineated in Exhibit "B", with such changes, if any, as are approved by the City Attorney. Section 3. That a copy of the caption of this Resolution be spread upon the Minutes of the City Council. READ, ADOPTED AND APPROVED on this day of A.D., 2009, at a Meeting of the City Council of the City of Port Arthur, by the following vote: AYES: Mayor Councilmembers NOES: MAYOR ATTEST: CITY SECRETARY APPROVED AS TO FORM: CITY ATTORNEY APPROVED FOR ADMINISTRATION: CITY MANAGER ~.pr.szia EXHIBIT ~~A" CALVERT EAVES CLARKS & STEELY, L.L.P. ATTOR`tEYS AT LAw MlceAel. K EACRs MANAGING PA3TNnR BEAUidONT TOWER 2615 CALDER AVENUE, SUITE 10 i 0 BEAUMONT, TEX4S 77102 January 12, 2009 Via Telefax Mfr. Mazk Sokolow City Attorney CITY OF PORT ARTHUR P.O. Box 1089 Port Arthur, Texas 77641-1039 PHONE 409.832.8865 P~X~ 409.83?.8886 eleaveXtc+i.vERr~ tACSS.conl RE: Potential litigation between the City of Port Arthur and Huntsman Petrochemica] Corporation Deaz Mark: Thank yeu for approaching Frank and me to possibly assist the City of Port Arthur with regard to claims asserted or threatened by Huntsman Petrochemical Corporation, relating to Huntsman's November 3, 2003 Industrial Agreement. This confirms that we do not believe any conflict exists which would preclude our representation of the City in this matter. Furthermore, per your inquiries, both Fralilc and I bill at $185.00 per hour. Likewise, our paralegals' rates aze $65.00 per hour, We would truly appreciate the opportunity to assist you and the City in this matter. As always, please do not hesitate to contact us with any thoughts or questions regarding the foregoing. With best regards, I remain, Very truly yours, CALVERT EAVES CLARKS ~fc STEELY, L.L.P. By: Michael K. Eaves Frank D. Calvert MKE/ss EXHIBIT ~~B" CONFIDENTIALITY AGREEMENT/ AGREEMENT OF PROTECTION On the date referenced below, the City of Port Arthur and Huntsman Petrochemical Corporation have reached an agreement with respect to the production of certain documents and materials relating to a dispute involving the Industrial District Agreement which Huntsman entered into with the Ciry of Port Arthur; and Huntsman's claim for refund under the terms of that agreement. A. As part of its investigation into Huntsman's claims, the City of Port Arthur has requested various documents and materials from Huntsman (hereinafter referred to as "the Requested Materials"), which include but are not limited to the following: 1. A complete copy of the Asset Purchase Agreement, including any and all exhibits, addenda, schedules, supplements, amendments, and any ancillary agreements and/or documents, relating to the sale of the Port Arthur, Texas facility from Huntsman to Flint Hills, as well as the assignment of any agreements relating thereto: 2. Any agreement between Huntsman and Flint Hills wherein Flint Hills agreed to pay some or all of Huntsman's tax obligations, as well as any and all agreements, notes, correspondence, and/or e-mails between Huntsman and Flint Hills (or its affiliated companies or agents), with respect to issues of credits or refunds involving "in lieu of tax" payments made to the City of Port .Arthur; 3. Any and all backup documentation which supports the amount of Huntsman's claim for a refund or a credit in this matter, which would include but not necessarily be limited to the following as regards excess payments: a. Each notice of appraised value received by Huntsman from the Jefferson County Appraisal District with respect to the property at issue; b. Any notice of protest filed by Huntsman with the Jefferson County Appraisal Review Board with respect to the property at issue; c. Any informal settlement or final ARB order regarding any such protest made by Huntsman concerning the property at issue; d. Any pleadings filed by Huntsman that request a review of the ARB's determination of Huntsman protest concerning the property at issue; e. Any settlement, final judgment or other final disposition on appeal or otherwise of any such lawsuit requesting a review of the ARB order involving the property- at issue; f. The payment history of taxes for the property at issue, including the related tax receipts; and g. Any and all back-up documentation as it pertains to the October 2008 "Payment In Lieu Of Tax" Agreement." the undated Flint Hills Resources letter to NIr. John Heskett of Huntsman, and the November 5, 2007 letter to Fling Hills Resources, LLC. 4. Any documentation memorializing the negotiations between Huntsman and the City of Port Arthur that pertain to the Industrial District Agreement, including but not limited to notes, correspondence and/or e-mails exchanged between the two companies as part of these negotiations; ~. Any documentation memorializing the negotiations beriveen Huntsman and Flint Hills that pertain to the Industrial District Agreement, including but not limited to notes, correspondence and/or e-mails exchanged between the two companies as part of these negotiations; 6. Any documentation reflecting how the "credit" or "refund" or "excess payment'' was recorded on the accounting books of Huntsman, and whether that asseUamount, as recorded. was in any way a part of the transaction with Flint Hills; 7. The plans of Huntsman with regard to the negotiations of "in lieu of tax" agreements for Huntsman's remaining property located within the extraterritorial jurisdiction of the City of Port Arthur, and whether Huntsman will be asking for the credit or refund to apply to that property; and 8. The plans of Huntsman with regard to future expansions or new projects within the ETJ of the City of Port Arthur, and whether Huntsman will be asking for a credit or refund with regard to any such future expansions or new projects. 2 B. Huntsman has determined some of the Requested Materials contain or otherwise consist of confidential information, the disclosure of which could potentially damage Huntsman's business operations and competitive position in the industry. C. It is hereby agreed by the individuals identified herein; and their respective representatives, agents, attorneys, clients, etc., that upon production of the Requested Materials by Huntsman, the Requested Materials shall remain confidential as is more specifically set forth below: 1. At such time as the Requested Materials are produced, Huntsman may stamp or otherwise mark all or a portion of the Requested Materials as being "Confidential" to reflect that such materials are subject to this Agreement. 2. The parties to this Agreement agree that the Requested Materials so marked (hereinafter referred to as "the Confidential Requested Materials") shall thereafter be treated as confidential in accordance with the terms of this Agreement. 3. Except with the prior written consent of counsel for Huntsman or court order, the Confidential Requested Materials may be shown or disclosed only to the following persons (hereinafter sometimes referred to as the "Qualified Persons"): (a) Frank D. Calvert and Michael K. Eaves of Calvert Eaves Clarke & Stelly, L.L.P.; and their firm's employees who are assigned to assist them in the dispute to which the Confidential Requested Materials relate; (b) The City Attorney and the City Manager for the City of Port Arthur; and employees of the City of Port Arthur who aze assigned to assist them in the dispute to which the Confidential Requested Materials relate; which includes but is not limited to the Director of Finance, City Manager and City Secretary; 3 (c) Independent experts and consultants retained by The City of Port Arthur; Frank D. Calvert, Michael K. Eaves, and/or their firm, partners, or employees, whose assistance is deemed necessary by The City of Port Arthur, Frank D Calvert, Michael K. Eaves and/or their firm, with respect to the handling and resolution of the dispute to which the Confidential Requested Materials relate, as well as employees of such experts and consultants who are necessazy to assist said experts in performing their duties, pro~~ided that each such person has previously signed a document in the form of attached Exhibit "A"; and (d) The Texas Attorney General as required by Section 552.305 of the Texas Government Code if a request is made under the Open Records Act with due notice to Huntsman so that Huntsman can submit its reasons as to why the information and materials are confidential and seek judicial relief If Huntsman elects to proceed in this matter, then the City will abide by the Attomey General's opinion and directives. 4. Once marked as "Confidential," the Confidential Requested Materials shall not be disclosed or made available by the receiving parties (in this case, the City of Port Arthur) to persons other than Qualified Persons, except as may be required by court order or as delineated in an Attorney General opinion that has not been superseded by court order. The Confidential Requested Materials shall be restricted in circulation to those Qualified Persons described in paragraphs C(3)(a)-(c) above. 5. The City of Port Arthur, and/or its designated representatives, upon receiving the Confidential Requested Materials pursuant to this Agreement, shall maintain a list of all Qualified Persons to whom the Requested Confidential Materials are provided. Such list shall be retained by the City Attomey of the City of Port Arthur, or his designees, until the conclusion of the dispute to which the Confidential Requested Materials apply is resolved or otherwise concluded by way of agreement, settlement or judgment; and is no longer subject to appeal. Upon the conclusion of the dispute to which the Confidential Requested Materials apply, a copy of such list shall be provided to Rachel Muir or the designated counsel or representative for Huntsman. 4 7. Qualified Persons may use the Confidential Requested Materials fully and without restriction in the ordinary course of handling and attempting to resolve the dispute to which the Confidential Requested Materials pertain (and any subsequent litigation which may result therefrom); but solely in the ordinary course of that particular dispute (and any subsequent litigation which may result therefrom), in accordance with the terms of this Agreement. It is understood that the ordinary course of handling and attempting to resolve the dispute to which the Confidential Requested Materials pertain (and any subsequent litigation which may result therefrom) includes use in deposition or in trial. 8. Except as otherwise provided by this Agreement, the parties and all Qualified Persons are prohibited from distributing, showing, disseminating, discussing, or providing further copies, duplicates, or reproduction of the Confidential Requested Materials to any person, individual; firm or entity who is not a Qualified Person. Moreover, the parties to this Agreement and all Qualified Persons shall not disclose the title, heading; or contents of any of the Confidential Requested Materials to any person or entity who is not a Qualified Person. 9. After the conclusion of the dispute to which the Confidential Requested Materials pertain (and any subsequent litigation resulting therefrom), all Qualified Persons to whom the Confidential Requested Materials have been provided subject to this Confidentiality Agreement shall return those materials to the City Attorney of the City of Port Arthur, or their designees; from whom such information was obtained for use in the ordinary course of handling the dispute to which the materials pertain (and any subsequent litigation resulting therefrom). 10. Regardless of the termination or resolution of the dispute to which the Confidential Requested Materials pertain, the provisions of this Agreement shall continue to be binding on any subsequent disputes and litigation. 5 11. The courts within the State of Texas shall retain jurisdiction over the parties to this Agreement and their attorneys and experts and Qualified Persons for purposes of enforcement of the provisions of this Agreement. 12. This Agreement shall be binding upon the parties hereto, upon attorneys in their firm, upon their clients and upon the attorney's firm and attorney's client's successors, executors, personal representatives; and administrators, heirs, legal representatives, assigns; subsidiazies; divisions, employees, agents, independent contractors, or other persons or organization over which they have control. 13. Nothing in the Agreement precludes a party from seeking a court order modifying or changing the terms and/or conditions of this Agreement. SIGNED on this the day of , 2009. HUNTSMAN PETROCHEMICAL CORPORATION Bv: Rachel Muir Corporate Counsel THE CITY OF PORT ARTHUR sy: Stephen Fitzgibbons City Manager 6 APPROVED AS TO FORM: Mark Sokolow City Attorney EXHIBIT "A" CERTIFICATION OF CONFIDENTIALITY" I hereby acknowledge that I am about to receive information designated as "Confidential" supplied in connection with the dispute between Huntsman Petrochemical Corporation and the City of Port Arthur relating to the Industrial District Agreement entered into between those two entities and Huntsman's claim for a refund of payments allegedly made under that agreement. I have received and read a copy of the Confidentiality Agreement/Agreement Of Protection entered into on 2009, and I agree not to disclose this confidential information and/or materials, except in accordance with the Agreement. SIGNED this day of , 200_ Name: Title: Address: Phone No.: 1