Ordinance No. 10,152ORDINANCE NO. 10,152
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS, AUTHORIZING AND DIRECTING THE CITY MANAGER TO
EXECUTE AN AGREEMENT ACCEPTING PAYMENT FROM KMART
CORPORATION CONCERNING ITS AD VALOREM TAX LIABILITY
PRIOR TO JANUARY 22, 2002, THE DATE THAT IT FILED
BANKRUPTCY; AND PROVIDING FOR THE EFFECTIVE DATE
THEREOF.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS:
Section l: That the City Council of the City of Baytown, Texas, hereby authorizes
and directs the City Manager to execute an agreement accepting payment from Kmart
Corporation concerning its ad valorem tax liability prior to January 22, 2002, the date that it filed
bankruptcy. A copy of said agreement is attached hereto, marked Exhibit "A," and made a part
hereof for all intents and purposes.
Section 2: This ordinance shall take effect immediately from and after its passage by
the City Council of the City of Baytown.
INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the
City of Baytown this the 8th day of September, 2005.
CALVIN MUNDINGER, May
APPROVED AS TO FORM:
i
r
ACIO RAMIREZ, W., City Attorney
isRAKaren\Files \City Council \Ordinances\2005 \September S\ KmartsettlementOrdinance.doc
• AGREEMENT
This Agreement, entered into as of the date indicated below, by and between The City of Baytown,
Texas ( "Claimant ") and Kmart Corporation ( "Kmart"), is as follows:
WHEREAS, on January 22, 2002 ( "Petition Date "), Kmart and certain of its subsidiaries and affiliates
(collectively "Debtors ") filed a voluntary petition in the United States Bankruptcy Court for the
Northern District of Illinois (Eastern Division) (the "Bankruptcy Court ") for reorganization relief under
Chapter 1 I of Title i 1 of the United States Code, 11 U.S.C. Sections 101, et se ., as amended (the
"Bankruptcy Code "). Since that time Kmart has remained in possession of its property and has
continued to operate its business pursuant to Sections 1107 and 1108 of the Bankruptcy Code,
eventually emerging from bankruptcy pursuant to a confirmed Plan of Reorganization which became
effective May 6, 2003;
WHEREAS, Claimant filed Proof of Claim #13895, #40519, and #57863 (collectively, the "Claim ") in
the Debtor's chapter 1 1 cases (Case No. 02- B02474) for certain property taxes in the amount of
$20,064.54, $73.09, and $27,176.85, respectively; and
WHEREAS, Debtors and Claimant desire to liquidate and resolve Debtors' liability to Claimant:
NOW, THEREFORE, in consideration of the mutual agreements set forth herein, the parties hereto
agree as follows:
Debtors and Claimant agree to allowance by Debtors of a norrcontingent, undisputed,
liquidated amount of $25,694.78 (the "Claim Amount "), to be paid in final satisfaction of the Claim
and Debtors' pre - petition liability of any kind to Claimant generally. Kmart and Claimant further
agree that this amount shall be remitted by Kmart in full settlement of Debtors' pre - petition
indebtedness to Claimant by not later than the 60`h day after Kmart receives a fully executed and
notarized original copy of this agreement from Claimant, which receipt shall constitute conclusive
evidence of authority to enter into this settlement on behalf of Claimant.
In exchange for payment of the Claim Amount pursuant b this Agreement, Claimant will promptly
withdraw any proofs of claim with respect to the Debtors filed with the Bankruptcy Court, including,
but not limited to, the Claim. Claimant and Debtors agree that payment of the Claim Amount
constitutes full and final payment of all pre - petition liabilities of Debtors to Claimant, whether
previously claimed or not.
Claimant further agrees that its sole remedy for such liabilities is payment of the Claim Amount
pursuant to this Agreement. Claimant agrees to promptly update its records following receipt of
payment of the Claim Amount to confirm application of the Claim Amount, in full, to Debtors' pre -
petition obligations, and that pursuant to this Agreement, those obligations are, by this compromise
and settlement, deemed paid in full, whether or not formally claimed.
Nothing in this Agreement is intended, nor shall be construed, as superceding the claims reconciliation
process except to the extent of the Claim. Furthermore, nothing in this Agreement is intended, nor
shall be construed, as acknowledging that Claimant has satisfactorily filed the Claim or any other
claims.
EMIT A
It is specifically understood and agreed that this Agreement does not constitute, and shall not be
construed as, any admission of liability or fault whatsoever.
Claimant represents that it is not an "insider" of Kmart, as that term is defined in i 1 U.S.C. § 101(31).
The Bankruptcy Court shall retain exclusive jurisdiction to hear any matters or disputes arising from or
relating to this Agreement.
Each party represents that they understand and fully agree to each and every provision hereof.
AGREED this day of , 2005:
Claimant(s): Notary Public:
(Signature) Subscribed and sworn to before me this
day of , 2005
(Name)
Address (For Payment)
City, & Zip
Kmart: Notary Public:
Name:
Title:
0
2
Subscribed and sworn to before me this
day of , 2005
AGREEMENT
This Agreement, entered into as of the date indicated below, by and between The City of Baytown,
Texas ("Claimant") and Kmart Corporation ("Kmart"), is as follows:
WHEREAS, on January 22, 2002 ("Petition Date"), Kmart and certain of its subsidiaries and affiliates
(collectively "Debtors") filed a voluntary petition in the United States Bankruptcy Court for the
Northern District of Illinois (Eastern Division) (the "Bankruptcy Court") for reorganization relief under
Chapter 11 of Title 11 of the United States Code, 11 U.S.C. Sections 101, et seg., as amended (the
"Bankruptcy Code"). Since that time Kmart has remained in possession of its property and has
continued to operate its business pursuant to Sections 1107 and 1108 of the Bankruptcy Code,
eventually emerging from bankruptcy pursuant to a confirmed Plan of Reorganization which became
effective May 6, 2003;
WHEREAS, Claimant filed Proof of Claim #13895, #40519, and #57863 (collectively, the "Claim") in
the Debtor's chapter 11 cases (Case No. 02-B02474) for certain property taxes in the amount of
$20,064.54, $73.09, and $27,176.85, respectively; and
WHEREAS, Debtors and Claimant desire to liquidate and resolve Debtors' liability to Claimant:
NOW, THEREFORE, in consideration of the mutual agreements set forth herein, the parties hereto
agree as follows:
Debtors and Claimant agree to allowance by Debtors of a non -contingent, undisputed,
liquidated amount of V5,694.78 (the "Claim Amount"), to be paid in final satisfaction of the Claim
and Debtors' pre -petition liability of any kind to Claimant generally. Kmart and Claimant further
agree that this amount shall be remitted by Kmart in full settlement of Debtors' pre -petition
indebtedness to Claimant by not later than the 60th day after Kmart receives a fully executed and
notarized original copy of this agreement from Claimant, which receipt shall constitute conclusive
evidence of authority to enter into this settlement on behalf of Claimant.
In exchange for payment of the Claim Amount pursuant b this Agreement, Claimant will promptly
withdraw any proofs of claim with respect to the Debtors filed with the Bankruptcy Court, including,
but not limited to, the Claim. Claimant and Debtors agree that payment of the Claim Amount
constitutes full and final payment of all pre -petition liabilities of Debtors to Claimant, whether
previously claimed or not.
Claimant further agrees that its sole remedy for such liabilities is payment of the Claim Amount
pursuant to this Agreement. Claimant agrees to promptly update its records following receipt of
payment of the Claim Amount to confirm application of the Claim Amount, in full, to Debtors' pre -
petition obligations, and that pursuant to this Agreement, those obligations are, by this compromise
and settlement, deemed paid in full, whether or not formally claimed.
Nothing in this Agreement is intended, nor shall be construed, as superceding the claims reconciliation
process except to the extent of the Claim. Furthermore, nothing in this Agreement is intended, nor
shall be construed, as acknowledging that Claimant has satisfactorily filed the Claim or any other
claims.
1
4
It is specifically understood and agreed that this Agreement does not constitute, and shall not be
construed as, any admission of liability or fault whatsoever.
Claimant represents that it is not an "insider" of Kmart, as that term is defined in 11 U.S.C. § 101(31).
The Bankruptcy Court shall retain exclusive jurisdiction to hear any matters or disputes arising from or
relating to this Agreement.
Each party represents that they understand and fully agree to each and every provision hereof.
AGREED this
CITY OF BAYTOWN
day of September , 2005:
Claimant(s):
Gary Jackson
(Name)
P 0 Box 424
Address (For Payment)
Baytown, Texas 77522-0424
City, State & Zip
Kmart:
By:
Name:
Title: VICE PRESIDENT TAXES
JAMES L. MISPLON
2
Notary Public:
Subscn:e . d s m to beforee this
day of , 2005
SYLVIA ANN AGUILAR
a Notary Public, State of Texas
.a My Commission Expires 10-25-2005
Notary Public:
s_dth-iighoried.„40
Subscribed and s o before me this 6 th
day of OCTOBER , 2005
PATRICIA A. GRACE
Notary Public, Oakland County, MI
My Commission Expires 9.28.2011