HomeMy WebLinkAbout2004-05-04; City Council; 17621; AT&T v. City (01-CV-2045-JM(WM) settlementCITY OF CARLSBAD - AGENDA BILL
AB# 17,621
MTG. 5/4/04
TITLE: REPORTING OUT THE TERMS AND CONDITIONS OF
THE SETTLEMENT AS REQUIRED BY THE BROWN ACT IN
AT&T V. CITY OF CARLSBAD, 01 -CV-2045JM(WM)
DEPT. CA
RECOMMENDED ACTION:
DEPT. HD.
CITY ATTY.
This is an information item and there is no action the Council needs to take.
ITEM EXPLANATION:
AT&T Wireless applied to the City for a Conditional Use Permit to place its facilities at 7512
Cadencia Street in 2001. That application was denied by the Planning Commission and
denied by the City Council on appeal. AT&T Wireless then brought suit in the Federal District
Court to overturn the City Council’s denial. The Federal District Court overturned the
Council’s denial and ordered the City to issue a Conditional Use Permit for the facilities at
7512 Cadencia Street. The Council requested a stay of the District Court‘s order from the
U. S. Ninth Circuit Court of Appeals which was denied. The Council then issued the
Conditional Use Permit in accordance with the Court’s order. The City then appealed the trial
court’s order to the U. S. Ninth Circuit Court of Appeals. The Conditional Use Permit was
issued on December 19, 2003. No visible work has begun on the installation of the AT&T
wireless telecommunications faci I ity .
Meanwhile, the Federal District Court ruled that the City had violated AT&T Wireless’s civil
rights under the Federal Telecommunications Act of 1996 and the Equal Protection clause of
the U. S. Constitution. Shortly before the District Court made this ruling, the United States
Court of Appeal for the Ninth District ruled in a similar case that a City could be liable for
violation of civil rights for denial of a conditional use permit for wireless facilities under the
Telecommunications Act. (Abrams v. City of Rancho Palos Verdes No. 02-55681, 2004 U. S.
App. LEXIS 564, at *9 (9’ Cir. Jan. 15, 2004.) Based on this ruling, AT&T Wireless submitted
its petition to the District Court for $640,000 in attorneys’ fees. The appeal was dismissed and
the case was settled for $250,000. Attached is a copy of the Settlement and Release
Agreement reporting out the fact of settlement as required by the Brown Act.
FISCAL IMPACT:
The settlement calls for a payment of $250,000 as and for complete settlement of AT&T
Wireless’s attorneys’ fees. There are sufficient funds in the liability fund for the settlement.
The City will be required to pay its own defense costs up to $250,000 and amounts above that
shall be paid by the City’s excess insurance carrier.
ENVIRONMENTAL IMPACT:
There is no further environmental impact as a result of this settlement.
EXHIBITS:
Settlement and Release Agreement.
ROBERT JYSTAD
DIRECT DIAL
RJYSTAD@CRBLAW. COM
(3 IO) 643-7999 Em. I 04
COLE, RAYWID 6, BRAVERMAN, L.L.P.
ATTORNEYS AT LAW
2381 ROSECRANS AVENUE, SUITE 110
EL SEGUNDO, CALIFORNIA 90245-4290
TELEPHONE (310) 643-7999
FAX (310) 643-7997
WWW.CRBLAW.COM
April 23,2004
VIA US MAIL
Stephen R. Onstot, Esq.
Burke, Williams & Sorensen, LLP
61 1 West Sixth Street, Suite 2500
Los Angeles, CA 90017
WASUINGTON D.C. OFFIc?
I9 IO PENNSYLVANIA AVENUE. N.W.
TELLPHONE (2021 659-9750
FAX (2021 452-0087
WASWINOTON. D.C. 20006-9750
Re: AT&T Wireless Services. LLC v. The City of Carlsbad, et al.
Case No. Ol-CV-2045-JM(WM)
Dear Steve:
Enclosed please find the signed final version of the Settlement Agreement and Mutual
Release with all exhibits attached.
Let me know if you need anything hrther.
Sincerely,
BRAVERMAN, LLP
d-
Enclosure
cc: C%Q+*tWYFl@y
Dan Smith, Esq.
1791 33-1 .DOC
EXHIBIT A
El Sepdo, CA 90245
TeleDhone (3 10) 643-7999 . .',', . .. ,*".
2o
7 1919 Pennsylvania Avenue, N.W.
Defendants. ) I- .
7 Wahington,D.C. 20006
8 Telephone (202) 659-9750
Attorneys for Plaintiff, AT&T -LESS SERVICES OF CALIFORNIA LLC
10 D/B/A AT&T WIRELESS
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to Fed. R Civ. P. 41(a)(l), HEWBY STIPULATE APJD AGREE to the dismissal with prejudice
of Count IX of he Complaint and huther notify the Court that the parties have entered into a
settlement agrement with regard to this action, that all judgments have been satisfied, and that
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UNITED STATES DXSTRXCT COURT
SOUTHERN DISTRICT OF CALIFORNIA
BY F!
AT&T WIRELESS SERVICES OF
LIMITED LLABLITY COMPANY, D/B/A ) STIPULATION TO DXSMISSAL OF AT&T WLESS ) COUNT IX WITH PREJUDICE,AKD
) NOTICE OF SATISFACTION AND
) Case No. Olcv2045-JMOKM)
CALKF0RN.A LLC, A DELAWARE 1
Plaintiff, ) SETTUMENT
vs. 1
THE CITY OF CARLSBAD, 1
CALIFORNA, €TAL., 1 1
) Judge: Hon. Jeffrey T. Miller
Plamtiff ATBrT Wireless SeMees of California, LLC, a Delaware Limited tiability 21 22 II
Company, D/B/A AT&T Wireless and Defmdants City of Carlsbad, Califo~a. el d., p-at
23 II
27 11 the action should, therefore, be marked scltlcd and closed and removed fiom the Court's docket.
RPR-21-2004 17:12 61923 134s 9% P.02
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1. On January 20, 2004, the Court entered its Order Granting ATTW Partial
Summary Judgment on ATTW’s Count IX, 42 U.S.C. 0 1983.
2. On February 13, 2004, the Court entered its Order Setting Briefing Schedule for
Plaintiff’s Petition for Attorney’s Fees and Costs; Referring Plaintiffs Petition for Attorney’s
Fees and Costs to Magistrate for Report and Recommendation. The Parties have llly briefed
ATTW’s Petition for Attorney’s Fees and Costs and the Application is currently pending with
the Court.
3. The amount of the award of attorney’s fees under Count Lx is the only issue that
remains unresolved before this Court in this action.
4. The Parties, having entered into a settlement agreement resolving the matter,
hereby stipulate to the dismissal of Count IX with prejudice.
5. Further, Defendants have complied with the Court’s Order Entering Judgment and
Granting Mandamus Relief entered on November 26, 2003 (“Judgment and Injunction”). On
November 25,2003, the City issued the CUP, and on or about January 16,2004, the City issued
the Building Permit for the Facility, and ATTW and the City Defendants agree that ATTW has
all authorizations necessary to construct and to operate the Facility. Under the terms of the
Parties’ settlement agreement, Defendants have agreed to dismiss their appeal fiom this Court’s
Judgment and Injunction and earlier Order granting Plaintiffs Partial Summary Judgment.
//
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Case No. Olcv2045-JM~ STIPULATION TO DISMISSAL OF COW IX WITH PRUUDICE AND NOTICE OF SATISFACTION AND Sm
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6. All counts of the Complaint having either been dismissed adjudicated and
satisfied, or settled, the parties hereby notify the Court that this action should be marked settled
and closed.
Respecthlly submitted:
April , 2004
April 13 ,2004
Avenue Suite 110
Attorneys for Plaintiff
BUkKE!, WILLIAMS & SORENSEN, LLP
61 1 West Sixth Street Suite 2500
Los Angeles, CA 90017
Attorneys for Defendants
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CaseNo. OlcC?O45-~(wM) STIPULATION TO DlSMISSAL OF COUNT IX WlTH PREJUDICE AND NOTICE OF SAllSFAcnON AND Sm
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PROOF OF SERVICE
ss. STATE OF CALIFORNIA 1 1 COUNTY OF LOS ANGELES 1
I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is 2381 Rosecrans Ave., Suite 110, El Segundo, CA 90245.
On April 2 1 , 2004, I served the foregoing document described as STIPULATION
TO STIPULATION OF DISMISSAL OF COUNT IX WITH PREJUDICE AND NOTICE
OF SATISFACTION AND SETTLEMENT on the interested parties in this action by placing a
true copy thereof, addressed as follows:
Steve Onstot, Esq.
Burke, Williams & Sorensen, LLP
61 1 West Sixth Street
Suite 2500
Los hgeles, CA 90017
[XI BY MAIL: I placed true copies of the foregoing document in sealed envelopes
addressed as stated on the abovelattached service list. I placed such envelope, with postage
thereon fully prepaid, for collection and mailing at Cole, Raywid & Braverman, LLP, El
Segundo, California. I am "readily familiar" with the firm's practice of collection and processing
correspondence for mailing. Under that practice the mail would be deposited with the U. S.
Postal Service on that same day with postage thereon fully prepaid at El Segundo, California in
the ordinary course of business. I am aware that on motion of the party served, service is
presumed invalid if postal cancellation date or postage meter date is more than one day after date
of deposit for mailing in affidavit.
BY FAX: I served the foregoing document on the interested parties in this action
by transmitting the above-referenced document to the above-mentioned recipient at the following telecopy number: 2 13-236-2700
[XI
[XI (F'EDEFUL, COURT) I declare under penalty pursuant to the laws of the United
States that the above is true and correct.
Executed on April 21,2004, in El Segundo, California.
LUCY Naiiez
Name
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Case NO. OICV2045-~(wM)
STIPULATION TO DISMISSAL OF COUNT IX WlTH PREJUDICE AND NOTICE OF SATISFACTION AND Se
EXHIBIT B
UNITED STATES COURT OF APPEALS
NINTH CIRCUIT
AT&T WIRELESS SERVICES OF CALIFORNIA LLC, A DELAWARE LIMITED LIABILITY COMPANY, D/B/A AT&T WIRELEES,
Plaintiff and Respondent,
vs.
THE CITY OF CARLSBAD, CALIFORNIA THE CITY COUNCIL
KULCIIIN RAMONA FINNILA MATT HALL, JULIANNE.
COMMISSION OF THE CITY OF CARLSBAD AND JEFF SEGALL, BILL COMPAS ANN L'HEUREUX, COUR'fNEY HEINEMAN
HIS OR HEk OFFICAL CAPACITY AS A MEMBER OF THE PLANNING COMMISSION,
OF THE CITY OF CARLSBAD, CLAUD^ A. LEWIS, ANN J
NYGAARD ~ACH IN HIS OR HEA OFFICIAL CAPACITY AS A MEMBER OF THE CITY COUNCIL, THE PLANNING
JULIE BAKER S~ENA TRIGAS AND ROBERT NEILSEN EAC~IN
Defendants and Appellants,
District Court Case No: OlCV2045-JM (WMc)
ON APPEAL FROM UNITED STATES DISTNCT COURT, SOUTHERN DISTRICT OF CALIFORNIA COUNTY OF SAN
PRESIDING JUDGE DIEGO, THE HONORABLE, JEFF RE^ T. MILLER,
STIPULATION RE: DISMISSAL
RONALD R BALL CITY ATTORNEY CITY OF &RL,SBAD 1200 Carlsbad Villa e Drive Carlsbad CA 9206-1989 (760) 434-2891; Pax (760) 434-8367; and
BURKE WILLIAMS & SORENSEN, LLP STEPHEd R. ONSTOT State Bar No. 139319)
611 West Sixth Street, Suite 2500 Los An eles California 90017-3102 (213) 256-0600; Fax (213) 236-2700
ROBERTA R. SISTOS ( 5: tate Bar No. 159379)
Attorneys for Appellants
Pursuant to Fed.R.App.P. 42@) Defendants/Appellants City of
Carlsbad, The City Council of the City of Carlsbad, Claude A. Lewis, Ann J.
Kulchin, Ramona Finnila, Matt Hall, Julianne Nygaard, each in his or her
official capacity as a member of the City Council, the Planning Commission
of the City of Carlsbad, and Jeff Segall, Bill Compas, Ann L’Heureux,
Courtney Heineman, Julie Baker, Seena Trigas and Robert Neilsen each in
his or her official capacity as a member of the Planning Commission, by and
through their respective counsel of record Stephen R. Onstot of Burke,
Williams & Sorensen, LLP and PlaintifVRespondent AT&T Wireless
Services of California, LLC, by and through it counsel of record Adam S.
Caldwell of Cole, Raywid & Braverman, hereby agree and stipulate as
follows:
1.
2.
That the instant appeal be DISMISSED with prejudice;
Each party to bear its own costs and attorneys fees incurred in
the instant appeal; and
3. Appellants to pay outstanding appellate court fees, if any.
DATED: April $, 2004 BURKE, WILLIAMS & SORENSEN, LLP
By:
Attorne s for DefendanWAp ellants, CITY dF CARLSBAD ET &.
DATED: April &, 2004
Attorne s for Plaintifmes ondents,
CALIFORNIA, LLC, D/B/A/ AT&T WIRELESS
AT&T ~RELESS SERVPCES OF
-1-
SETTLEMENT AGREENENT AND MUTUAL RELEASE
THIS SETTLEMENT AGREEMENT AND MUTUAL RELEASE (“Agreement”) is
entered into as of April 19, 2004, by and between AT&T WIRELESS SERVICES LLC, A
DELAWARE LIMITED LIABILITY COMPANY, D/B/A AT&T WIRELESS (hereinafter
referred to as “ATTW’) and THE CITY OF CARLSBAD, CALIFORNIA, THE CITY
COUNCIL OF THE CITY OF CARLSBAD, CLAUDE A. LEWIS, ANN J. KULCHIN,
RAMONA FINNILA, MATT HALL, MARK PACKARD (SUBSTITUTED FOR PAST COUNCIL MEMBER JULIANNE NYGAARD), EACH IN HIS OR HER OFFICIAL
CAPACITY AS A MEMBER OF THE CITY COUNCIL, THE PLANNING
COMMISSION OF THE CITY OF CARLSBAD, AND JEFF SEGALL, BILL
DOMINGUEZ (SUBSTITUTED FOR PAST COMMISSION MEMBER BILL COWAS),
MARTY MONTGOMERY (SUBSTITUTED FOR PAST COMMISSION MEMBER ANN
‘ L’HEUREUX), COURTNEY MEINEMAN, JULIE BAKER, MELISSA WHITE
(SUBSTITUTED FOR PAST COMMISSION MEMBER SEENA TRIGA) AND FRANK
WHITTON (SUBSTITUTED FOR PAST COMMISSION MEMBER ROBERT
NEILSEN), EACH IN HIS OR HER OFFICIAL CAPACITY AS A MEMBER OF THE
PLANNING COMMISSION (collectively referred to as “City Defendants”). ATTW and the
City Defendants shall occasionally be referred to herein each as the “Party” or collectively as the
“Parties.”
RECITALS
WHEREAS, on or about November 6, 2001, ATTW filed suit in the United States
District Court for the Southern District of California, styled as AT&T Wireless Services of
California LLC, a Delaware Limited Liability Company, d/b/a AT&T Wireless v. The City of
Carlsbad, California et al., Case No. Olcv2045 JM (JFS) (hereinafter the “Action” or
“Litigation”) against Defendants for allegedly violating 47 U.S.C. $0 253 and 332
(“Telecommunications Act of 1996”), the Fourteenth Amendment to the Constitution of the
United States and Article 1 $ 7 of the Constitution of the State of California, 42 U.S.C. $ 1983,
and Cal. Code Civ. P. 0 1904.5 by denying ATLTW’s Conditional Use Permit (“CUP”)
Application No. 00-36 (“Application”) for a wireless communication facility at 75 12 Cadencia
(“the Facility”) in the City of Carlsbad (the “Allegations”); and
WHEREAS, the City Defendants appeared and denied the material Allegations in the
Action;
WHEREAS, on or about February 4, 2003, the Court entered an Order Granting in Part
and Denying in Part Plaintiff‘s Motion and Cross-Motion for Summary Adjudication in the
Action and Denying Defendants’ Cross-Motion for Summary Adjudication in the Action
((‘Summary Judgment Order”);
WHEREAS, after the Court entered its Summary Judgment Order, on or about February
14, 2003, ATTW voluntarily dismissed Counts IV, V, and VI of its Complaint, which counts
were not the subject of any motion for summary judgment;
WHEREAS, the Court’s Order Entering Judgment and Granting Mandamus Relief was
entered on November 26, 2003 (“Injunction and Judgment”), in which the Court ordered the
City, inter alia, to grant, within 10 days of November 26, 2003, the CUP and all permits, and to
take all other actions, necessary to allow ATTW to construct the Facility;
WHEREAS, on or about December 9,2003, the City issued the CUP, and on or about
January 16, 2004, the City issued the Building Permit for the Facility, and ATTW and the City
Defendants agree that ATTW has all authorizations necessary to construct and to operate the
Facility ;
WHEREAS, on or about December 8, 2003, the City Defendants filed a Notice of
Appeal noting their appeal of the Injunction and Judgment to the Court of Appeals for the Ninth
Circuit, and the City Defendants’ appeal, Appeal No. 03-571 11 (“the Appeal”), is currently
pending with the Ninth Circuit;
WHEREAS, on or about January 20, 2004, the Court entered its Order Granting A”W
Partial Summary Judgment on ATTW’s Count E, 42 U.S.C. Q 1983 (“Section 1983 Order”);
WHEREAS, on or about February 13,2004, the Court entered its Order Setting Briefing
Schedule for Plaintiff‘s Petition for Attorney’s Fees and Costs; Referring Plaintiff‘s Petition for
Attorney’s Fees and Costs to Magistrate for Report and Recommendation (“Referral Order”),
and the Parties have fully briefed ATTW’s Petition for Attorney’s Fees and Costs and the
Application is currently pending with the Court; and
WHEREAS, the Parties have reached an agreement concerning the settlement of the
Action involving the dismissal of the Action, the dismissal of the Appeal, and the mutual release
of any and all claims that the Parties may have against each other as of the date of this
Agreement related to the Action, the Appeal, the CUP, and the Facility.
TERMS OF SETTLEMENT
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the Parties hereto agree as follows:
1) Intent of Agreement. This Agreement is intended by the Parties hereto as a full
and final settlement and releast of any and all claims known or unknown of any type or nature
Plaintiff may have against Defendants arising out of the Allegations and/or related to the
transactions which are the subject of the above-captioned Action, including without limitation,
all claims, actions and causes of actions that any Party asserted or could have asserted in the
Litigation, and as a full and final settlement and release of any and all claims known or unknown
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of any type or nature Defendants may have against Plaintiff arising out of andor related to the
transactions which are the subject of the above-captioned Action, including without limitation,
all claims, actions and causes of actions that any Party asserted or could have asserted in the
Litigation.
2) Incorporation of Recitals. All of the foregoing factual recitals are incorporated
herein by reference and made a part of this Agreement. .
3) Terms Contractual in Nature. The terms of this Settlement Agreement and
Release are contractual in nature and not merely recitals.
4) Settlement Terms.
(a) Pavment. The total monetary consideration for this Settlement Agreement is
two hundred fifty thousand dollars ($250,000.00) (the “Settlement Funds”),
payable as follows: The City shall pay the sum of $250,000 on or before
April 15, 2004 in a check made jointly payable to AT&” Wireless
Services, Inc., and Cole, Raywid & Braverman, LLP.
@),Joint Stipulation of Dismissal and Notice of Settlement of the Action.
A?TW shall file a Joint Stipulation of Dismissal and Notice of Settlement
with the District Court for the Southern District of California dismissing
Count IX of the Action with prejudice and indicating to the Court that all of
the claims in the Complaint have been disposed of, that the Court’s judgment
has been satisfied, and that the Court should mark the Case as settled and
closed (the Joint Stipulation of Dismissal and Notice of Settlement is attached
as “Exhibit A”). ATTW shall file the Joint Stipulation of Dismissal and
Notice of Settlement within 2 business days of the later of the receipt of this
Agreement executed by all City Defendant signatories and Am’s receipt of
the Settlement Funds.
(c) Joint Stipulation of Dismissal of the Appeal. The City Defendants agree to
file, pursuant to FRAP 42(b), a Notice of Dismissal of the Appeal indicating
that any court fees are to be paid by the City Defendants, and that the Parties
wiIl pay their own attorneys’ fees and costs (the Joint Stipulation of Dismissal
of the Appeal is attached as “Exhibit B”). The City Defendants shall file the
Joint Stipulation of Dismissal of the Appeal within two (2) business days of
receipt of notice from A’ITW of ATTW’s filing of the Joint Stipulation of
Dismissal and Notice of Settlement of the Action. _.
5) Mutual Releases.
(a) Effective upon ATTW’s receipt of the Settlement Funds and the filing of the
Joint Stipulation of Dismissal of the Appeal as required in Paragraph 4(c)
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above, ATlW and each of its agents, representatives, officers, directors,
shareholders, partners, lenders, predecessors, successors, assigns, employees,
attorneys, heirs, executors, administrators, designees, descendants, affiliate
organizations, and all persons acting by, through, under or in concert with any
of them, hereby irrevocably and unconditionally releases, acquits, and forever
discharges the City Defendants, and each of their or hisher agents,
representatives, elected officials, officers, directors, shareholders, partners,
lenders, predecessors, successors, assigns, employees, attorneys, heirs,
executors, administrators, descendants, affiliate organizations, and all persons
acting by, through, under or in concert with any of them, from any and all
charges, complaints, claims, grievances, liabilities, obligations, warranties,
promises, agreements, controversies, damages, actions, causes of action, suits,
appeals, rights, demands, costs, fees, losses, debts and expenses, of any nature
whatsoever, known or unknown, that were alleged or asserted in the Action
and/or the Appeal, or that could have been alleged or asserted in the Action
and/or the Appeal, arising out of or in any way related to the Application, the
CUP, or the Facility (hereinafter referred to collectively as “Claims”), and that
arose on or before the date first set forth above on which this Agreement is
entered into.
(b) Effective upon AlTW’s filing of the Joint Stipulation of Dismissal and Notice
of Settlement as required in Paragraph 4(b) above, the City Defendants and
each of their agents, representatives, elected officials, officers, directors,
shareholders, partners, lenders, predecessors, successors, assigns, employees,
attorneys, heirs, executors, administrators, descendants, affiliate organizations,
and all persons acting by, through, under or in concert with any of them,
hereby irrevocably and unconditionally release, acquit, and forever discharge
ATTW and each of its agents, representatives, officers, directors,
shareholders, partners, lenders, predecessors, successors, assigns, employees,
attorneys, heirs, executors, administrators, designees, descendants, affiliate
organizations, and all persons acting by, through, under or in concert with any
of them, from any and all charges, complaints, claims, grievances, liabilities,
obligations, warranties, promises, agreements, controversies, damages,
actions, causes of action, suits, appeals rights, demands, costs, fees, losses,
debts and expenses, of any nature whatsoever, known or unknown, that were
alleged or asserted in the Action and the Appeal, or that could have been
alIeged or asserted in the Action andor the Appeal, arising out of or in any
way related to the Application, the CUP, or the Facility (hereinafter referred to
collectively as “Claims”), and that arose on or before the date first set forth
above on which this Agreement.
(c) The Parties hereby acknowledge that they are fully familiar with the provisions
of Section 1542 of the Civil Code of the State of California, which provides as
follows:
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"A GENERAL 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 ELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR. 'I
The Parties do hereby waive, release and relinquish any and all of the rights and
benefits which they have or may have under said Section 1542 or under law to the
same or similar effect to the fullest extent permitted by law, as to the releases
contained in this Agreement.
Each Party understands and acknowledges that the significance and consequence
of this waiver of Civil Code $1542 is that even if the Party should eventually
suffer additional damages arising out of the facts alleged in the Action, the Party
will not be able to make any claim for those damages. Furthermore, each Party
acknowledges that the Party consciously intends these consequences even as to a
claim or claims for damage that may exist as of the date of this release but which
the Party does not know exists, and which if known, would materially affect the
Party's decision to execute this release, regardless of whether the Party's lack of
knowledge is the result of ignorance, oversight, error, negligence, or any other
cause.
(d) Each Party warrants that it has not filed any Claims against the other Party with
regard to the matters which were or could have been alleged in the Action, with
any federal, California or local governmental agency, or other regulatory
authority, court, arbitration agency, or arbitrator.
6) Execution of Documents and InstrumentdDismissal of Actions. Each Party
hereto agrees to cooperate fully and execute any and all supplementary documents and to take all
additional actions that may be necessary or appropriate to give full force and effect to the basic
terms, purpose, and intent of this Settlement Agreement and Release.
7) Authority. Each Party hereto expressly warrants and represents that they are duly
authorized and empowered to enter into this Settlement Agreement and Release and that each
signatory, on behalf of himself, individually and on behalf of the Party to this Settlement
Agreement and Release on whose behalf he or she has signed, warrants his or her authority to
execute this Settlement Agreement and Release.
8) Ownership of Claims. The Parties represent and warrant that no portion of any
Claim which they have or might have arising out of the matters referred to herein, nor any
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portion of any recovery or settlement to which they might be entitled has been assigned or
transferred to any other person, firm or corporation not a party to this Agreement, in any manner,
including by way of subrogation or operation of law or otherwise. In the event that any claim,
demand, suit or appeal is made or instituted against a party because a party made an actual
assignment or transfer, the other parties who made the assignment agrees to indemnify and hold
harmless the other parties against such claim, and to pay and satisfy any such claim, including
necessary expenses of investigation, actual attorneys' fees and costs.
9) Savines Clause. In the event that any term, covenant, condition, item of
consideration, provision or agreement contained herein is held to be invalid, void, illegal, or
otherwise unenforceable, the fact that such term, covenant, condition, item of consideration,
provision or agreement is invalid, void, illegal, or otherwise unenforceable shall in no way affect
the validity or enforceability of any other term, covenant, condition, item of consideration,
provision or agreement contained herein.
10) Agreement Freely Executed. Each Party hereto warrants and represents that
they were not coerced nor were they under duress to execute this Settlement Agreement and
Release, and executed the same of their own free will.
11) Entire APreement. This Agreement and any document or instrument executed in
connection herewith, constitutes the complete agreement of the Parties with respect to the subject
matters referred to herein, and supersedes all prior or contemporaneous negotiations, promises,
covenants, agreements, or representations of every nature with respect thereto, all of which have
become merged and integrated into this Agreement. All of the Parties understand that in the
event of any subsequent litigation, controversy or dispute concerning any other terms, conditions
or provisions of this Agreement, the Parties shall not be permitted to offer or introduce any oral
evidence concerning any other oral promises or oral agreements between the Parties relating to
the subject matters of this Agreement not included herein and not reflected by a writing. This
Agreement cannot be amended, modified or supplemented except by a written document signed
by the Parties. This Agreement is the product of negotiation between the Parties and therefore,
the Parties waive any right to require that any ambiguity or question about the terms thereof be
construed adversely against any of them.
12) Counterparts. This Settlement Agreement and Release may be executed in a
number of identical counterparts, each of which shall be deemed an original for all purposes but
all of which together shall constitute one and the same agreement. A facsimile signature shall be
deemed to constitute an original signature for purposes of this Agreement.
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3) Headings. Any headings precec ing each of the paragraphs in this Agreement are
for convenience only and shall not be considered in the construction or interpretation of this
Agreement.
. 14) Time of Essence. Time is of the essence in the performance of this Agreement.
AT&T WIRELESS
Dan Smith, Esq.
Senior Corporate Counsel
P.O. Box 97061
Redmond, WA 98073-9761
Facsimile: (425) 580-8069
Any written notice required hereunder shall be effective upon delivery via facsimile to:
cc: COLE, RAYWID & BRAVERMAN, LLP
Robert Jystad, Esq.
2381 Rosecrans Ave., Suite 110
El Segundo, CA 90245
Facsimile: (3 10) 643-7997
CITY OF CARLSBAD, CALlFORNIA
Ronald R. Ball, Esq.
Office of the City Attorney
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Facsimile: (760) 434-8367
BURKE, WILLIAMS & SORENSEN, UP
Stephen Onstot, Esq.
402 West Broadway, Suite 810
San Diego, CA 92101
Facsimile: (213) 236-2700
15) Bindiw Effect. This Agreement shall be binding upon and shall inure to the
benefit of the respective Parties hereto, their heirs, estates, successors, and assigns.
16) Governing Law. This Agreement shall be construed and governed by the laws of
the State of California. Any and all disputes arising out of, or in connection with, the
interpretation, performance or the nonperformance of this Agreement or any and all disputes
arising out of, or in connection with, transactions in any way related to this Agreement shall be
litigated solely and exclusively before the United States District Court for the Southern District
of California. In the event the United States District Court for the Southern District of California
7
does not have subject matter jurisdiction of said matter, then such matter shall be litigated solely
and exclusively before the appropriate state court of competent jurisdiction located in San Diego
County, State of California.
17) No Admission of Liabilitv. The Parties acknowledge and agree that the granting
and accepting of the mutual releases contained herein, and the execution of this Settlement
Agreement, are the result of compromise, are entered into in good faith, and shall not for any
purpose be considered an admission of liability or responsibility concerning any conduct of the
Parties referred to herein, and no past or present wrongdoing on the part of any of the Parties
shall be implied by such execution or payment.
18) Attorney’s Fees. In the event of any dispute over the terms or implementation of
this Agreement, the prevailing party shall be awarded reasonable attorneys fees and all
reasonable costs associated with the litigation.
19) Advice of Counsel. All Parties hereto for themselves, their successors and
assigns warrant and represent that they have had the advice of the counsel of their choosing and
that they have been informed of and understand the rights and obligations contained within this
Settlement Agreement and Release. The Parties hereto represent and warrant that this
Settlement Agreement and Release reflects the entire understanding of the agreements between
the Parties. All prior understandings, agreements, statements or representations have either been
merged herein or waived if they are not expressly contained herein. The Parties hereto
affirmatively represent that none of them are relying upon any representation or failure to
disclose information by any other party not contained herein and that they have made
independent investigation of any and all bases for their decision to execute this Settlement
Agreement and Release. In addition, the Parties hereto are specifically relying upon the
representations contained in this paragraph in connection with the execution of this Settlement
Agreement and Release.
8
APR 23 '04 10:55 FR AT T WIRELtbb
AT&T WIRELESS
April 23 ,2004
APR-23-2004 08:02
Nmkatherine Blue
11s: Vice President.
Land Use and Commcrcial Transactions
9
78 14074633
** TOTAL P%E. 02
96% P.02
April JLy f% ,2004
April /e2004
April/ sfil ,2004
v - - -fl /
CITY COUNCIL OF THE -
PLANNING COMMISSION OF THE CITY OF
CARLSBAD
CLAUDE A. LEWIS, COUNCIL MEMBER,
ANN J. KULCHIN, COUNCIL MEMBER,
RAMONA FINNILA, COUNCIL MEMBER,
MATT HALL, COUNCIL MEMBER,
MARK PACKARD, COUNCIL MEMBER
(SUBSTITUED FOR PAST COUNCIL
MEMBER JULIANNE NYGAARD), ALL IN
ICIAL CAPACITIES
April (&2004 T&P.L BY
Ronald R. Ball, City Attorney
10
JEFF' SEGALL, PLANNING COMMISSION
MEMBER,
BILL DOMINGUEZ,
PLANNING COMMISSION MEMBER
(SUBSTITUTED FOR PAST COMMISSION
MEMBER BILL COMPAS),
MARTY MONTGOMERY,
PLANNING COMMISSION MEMBER
(SUBSTITUTED FOR PAST COMMISSION
MEMBER ANN L'HEUREUX),
COURTNEY HEINEMAN, PLANNING
COMMISSION MEMBER,
JULIE BAKER, PLANNING COMMISSION
MEMBER,
MELISSA WHITE, PLANNING
COMMISSION MEMBER
(SUBSTITUTED FOR PAST COMMISSION
MEMBER SEENA TRIGA),
FRANK WHITTON
PLANNING COMMISSION MEMBER
(SUBSTITUTED FOR PAST COMMISSION
MEMBER ROBERT NEXLSEN), ALL IN
THERWICIAL CAPACITIES n
By: D* - Ronald R. Ball, City Attorney
11