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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 24 25 26 11 12 13 14 15 16 17 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 18 19 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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. // N // 2 Case No. Olcv2045-JM~ STIPULATION TO DISMISSAL OF COW IX WITH PRUUDICE AND NOTICE OF SATISFACTION AND Sm 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 3 CaseNo. OlcC?O45-~(wM) STIPULATION TO DlSMISSAL OF COUNT IX WlTH PREJUDICE AND NOTICE OF SAllSFAcnON AND Sm 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 4 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 2 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) 3 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: 4 "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 5 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. 6 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