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HomeMy WebLinkAboutPR 15842: HUNTSMAN PETROCHEMICAL CORPORATION SETTLEMENT AGREEMENTYnteroffice MEMORANDUM To: Mayor, City Council, and City Manager From: Valecia R. Tizeno, City Attorney Date: April 14, 2010 Subject: P. R. No. 15842; Council Meeting April 20, 2010 Attached is P. R. No. 15842 authorizing a settlement agreement with Huntsman Petrochemical Corporation (Account No. 001-1003-512.59-00; Project No. M10001). VRT:gt Attachment s.pr15842_memo P. R. No. 15842. 04/14/10 gt RESOLIITION NO. A RSSOLIITZON AIITHORIZING A SETTLEMENT AGREEMENT WITH HIINTSMAN PETROCHEMICAL CORPORATION (ACCOIINT NO. 001-1003-512.59-00; PROJECT NO. M10001) WHEREAS, Huntsman alleged a claim against the City of Port. Arthur for alleged over payments pursuant to an Industrial District Agreement entered into on or about December 14, 1998; and. WHEREAS, it is in the best interests of the citizens to settle this matter with Huntsman Petrochemical. Corporation, in substantially the same form as attached hereto as Exhibit "A". NOW THEREFORE, BE IT RESOLVED BY THE CITY COIINCIL OF THE CITY OF PORT ARTHIIR: Section 1. That the facts and opinions in the preamble are true and correct. ' Section 2. That the City Council hereby approves the settlement agreement with Huntsman Petrochemical Corporation and remit payment delineated therein, in substantially the same form as attached hereto as Exhibit "A". Section 3. That a copy of the caption of this Resolution be spread upon the Minutes of the City Council. s.pr15842 READ, ADOPTED AND APPROVED on this day of! A.D., 2010, at a Meeting of the City Council of the City of Port. Arthur, by the following voter AYES: Mayor , Councilmembers NOES: MAYOR ATTEST,: CITY SECRETARY APPROVED FOR ADMINISTRATION: CITY MANAGER ROVED AS TO THS AVAILABILITY OF FIIND3: P~2~v~k ~~~ ~~( (., 7S DIRECTOR. OF FINANCE (ACCOIINT NO. 001-1003-512.59-OOt PROJECT NO. M10001) s.pr15842 EXHIBIT '~A" PRE-LITIGATION STATE OF UTAH § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF § , FULL AND FINAL RECEIPT AND RELEASE 1. Recitals• (a) Huntsman Petrochemical Corporation is Claimant in this matter and is hereinafter referred to as such. For purposes of this Full and Final Receipt and Release, the term "Claimant" shall be-read to encompass any and all capacities in which Huntsman Petrochemical Corporation has, or wuld have, asserted claims arising from the matters described herein and made the basis of this Full and Final Receipt and Release, including any and all claims that have been asserted, or that could have been asserted, by Huntsman Chemical Corporation's parent company or companies, subsidiaries, affiliates, employees,- attorneys, officers, directors, shareholders, trustees, agents, administrators, successors, predecessors, fiduciaries, insurers, underwriters and assigns. (b) The City of Port Arthur is the threatened defendant in this matter and is hereinafter referred to as Releasee.. For purposes of this Full and Final Receipt and Release, the term "Releasee" shall be read to encompass any and all capacities in which the City of Port Arthur could have been sued in this matter, and includes the Port Arthur City Council and any and all employees, agents, officers, and representatives of the City of Port Arthur. (c) Claimant has alleged it has suffered various financial and monetary losses and damages as the result of alleged "in lieu of tax" overpayments which were made to Releasee pursuant to an Industrial District Agreement" entered into between Claimant and. Releasee on or about December 14, 1998 (hereinafter referred to as "the alleged overpayments"). Specifically, Claimant has alleged Releasee owes it $2,389,942.00 as a result of the alleged overpayments. Releasee has denied Claimant's allegations. (d) Claimant has threatened to sue Releasee for the recovery of the alleged overpayments, as well as attomeys' fees, costs, penalties, interest and other categories of damages (hereinafter referred to "Claimant's claims"). 2. Amount of Settlement: Claimant and Releasee have agreed to settle and compromise this dispute for the full and final total amount of NINE HUNDRED THOUSAND AND NO/100 DOLLARS ($900,000.00), subject to the terms and conditions herein. All costs shall be borne by the party incurring. same. The parties expressly agree that the attomeys' fees incurred by Claimant in this matter shall be satisfied out of the proceeds of this settlement. ' 3. Terms of Settlement: In consideration of Releasee's promise to pay $900,000.00,. the sufficiency of which is hereby acknowledged and accepted as sufficient, Claimant hereby agrees to the following. terms and conditions:. (a) Claimant fully, finally and forever releases, acquits, and dischazges Releasee from any and. all past, present and future claims of whatsoever kind or nature, whether at common law, in contract, in tort, or pursuant to statute, that have accrued or may ever accrue to Claimant for any and all damages, whether now known or unknown, directly or indirectly arising from or in connection with the alleged overpayments or Claimant's claims resulting therefrom. Claimant specifically and expressly acknowledges and agrees that the release stated above is a general and unwnditional release which is presently effective upon the execution of this document by Claimant. Claimant expressly waives and assumes the risk of any and all claims and/or damages + 2 allegedly arising from or in connection with the alleged overpayments, that exist as of this date or that may arise in the future, including but not limited to those that Claimant does not know or suspect to exist (whether through ignorance, oversight, error, negligence, or otherwise) and, if known, would materially affect its decision to enter into this Full and Final Receipt and Release: (b) In consideration of the payments described herein. and made pursuant hereto, Claimant expressly agrees that it will not name Releasee in any present or future lawsuit or claims involving the same or derivative claims, causes of action, injuries, losses, or damages, which arise from, in whole or in part, the alleged overpayments or Claimant's claims resulting therefrom. (c) Claimant hereby assigns in full to Releasee any and all claims against Defendant, or damages directly or indirectly arising from or in connection with the alleged overpayments or Claimant's claims against Releasee resulting therefrom. (d) CLAIMANT AGREES TO FULLY, COMPLETELY AND UNCONDITIONALLY INDEMNIFY, DEFEND, AND HOLD RELEASEE HARMLESS FROM AND AGAINST ANY AND ALL DAMAGES, LIABILITY, JUDGMENT, COSTS OR EXPENSES WHATSOEVER ARISING FROM ANY CLAIMS, DAMAGES, LOSSES, LIABILITIES, JUDGMENTS, ACTIONS OR EXPENSES THAT HAVE OR MAY BE ASSERTED BY, THROUGH OR UNDER CLAIMANT AS A RESULT OF OR IN CONNECTION WITH 'THE ALLEGED OVERPAYMENTS OR CLAIMANT'S CLAIMS RESULTING THEREFROM. (e) THE RELEASE IN PARAGRAPH 3(a), THE ASSIGNMENT IN PARAGRAPH 3(c), AND THE INDEMNITY PROVISIONS IN PARAGRAPH 3(d), ABOVE, ARE SPECIFICALLY INTENDED TO OPERATE AND BE APPLICABLE. 3 EVEN IF IT IS ALLEGED, CHARGED OR PROVEN THAT SOME OR ALL OF THE CLAIMS OR DAMAGES RELEASED ARE SOLELY AND COMPLETELY OR PARTIALLY CAUSED BY THE NEGLIGENCE, GROSS NEGLIGENCE,. BREACH OF WARRANTY, BREACH OF CONTRACT, VIOLATION OF STATUTE OR COMMON LAW, INTENTIONAL CONDUCT, AND/OR CONDUCT OF ANY TYPE BY RELEASEE IN CONNECTION WITH THE ALLEGED OVERPAYMENTS AND CLAIMANT'S CLAIMS RESULTING THEREFROM.. 4. Claimant's Representations and Warranties: Claimant represents and warrants the following: (a) That this instrument is being executed with Claimant's full understanding that the sum paid in consideration for this release is in full satisfaction of any and all claims it may have directly or indirectly arising from or in connection with the alleged overpayments or Claimant's claims resulting therefrom, and that absolutely no more money or other consideration will ever be paid or given to Claimant with regazd to any direct or derivative claims resulting from the alleged overpayments or Claimant's claims resulting therefrom. (b) That Claimant fully understands and agrees that this release evidences a full and final settlement and compromise of any and. all claims of whatsoever nature which Claimant now has, ever had, or may have in the future, for, upon or by any reason of any matter, cause or thing whatsoever, against Releasee arising, either directly or indirectly, from or in connection with the alleged overpayments. Claimant fiuther acknowledges and agrees that the release evidenced by this Agreement is as broad and general as possible, and further that the release evidenced by this Agreement shall cover ever conceivable contingency which might arise in the future, or which 4 may have arisen in'the past, whether known or unknown at this time, in connection with the alleged overpayments or Claimant's claims resulting therefrom. (c) That Claimant has not been promised anything by Releasee, other than the consideration set forth herein. (d) That Claimant has not assigned ariy.part of its claim or any cause of action it may possess against Releasee which either directly or indirectly arises from or in connection with the alleged overpayments or Claimant's claims resulting therefrom. (e) That this instrument is not and- shall not be construed as an admission of liability or fault or wrongdoing by Releasee, but instead reflects an accord and full satisfaction in settlement of a disputed claim, by which Releasee has forever bought its peace. (f) That neither this Agreement and the compromise and settlement evidenced thereby, nor any evidence relating thereto, will ever be admissible as evidence against Releasee in any suit,. claim or proceeding of any nature, except to enforce the terms of this Agreement; however, Claimant acknowledges and agrees that this Agreement may be pleaded as an absolute and final baz to any and all claims, suits or proceedings now pending or which may hereafter be brought against Releasee concerning any of the matters made the subject of this Agreement. (g) That before the execution of this document, Claimant has had the opportunity to consult with legal counsel of its selection, has had access to all information available from such counsel necessary to make its decision to execute this release. (h) That this is the entire agreement between the parties and that Claimant is not relying upon any representations by Releasee, its agents, or attomeys, but instead Claimant is solely relying upon its own judgment and the advice of its attomeys. 5 (i) That these representations and warranties shall survive the execution and performance of this release. (j) That Claimant has read and reviewed all the provisions of this release. 5. Severability: If any portion of this release is held invalid by a court, the remaining portions shall survive and remain is full force and effect. 6. Entire Agrreement: This instrument constitutes the entire agreement of the parties-with respect to the subject matter herein, and supersedes any and all prior understandings or oral or written agreements between the parties with respect to the subject matter herein. 4 7. Choice of Law: This Ageement shall be governed by and construed in accordance with the laws of the State of Utah. SIGNED AND AGREED TO on this the day of , 2010. HUNTSMAN PETROCHEMICAL CORPORATION r By: _ Title: 6 AC[INOWLEDGMENT STATE OF UTAH § COUNTY OF § BEFORE ME, the undersigned authority, on this day personally appeared. known to me to be the person who executed this Full and Final Receipt and Release, and he/she acknowledged to me that he/she executed the same as the free act and deed of Huntsman Petrochemical Corporation, for the purpose and consideration herein expressed and in the capacities herein stated, to certify which witness my hand and seal of office. Notary Public, State of Utah 7