HomeMy WebLinkAbout2007-02-06; City Council; 18890; Settlement in CMWD v. Crown Castle14
CITY OF CARLSBAD & CARLSBAD MUNICIPAL
WATER DISTRICT - AGENDA BILL
AB# 18,890
MTG. 2/6/07
DEPT. CA
REPORTING OUT THE TERMS AND
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CMWD V. CROWN CASTLE, ETAL
DEPT. HEAD
CITY ATTY. Jjf
CITY MGR. ^j>
RECOMMENDED ACTION:
There is no action.
ITEM EXPLANATION:
The Board met in closed session on November 14,2006 and approved the Settlement
Agreement and General Release of All Claims. This item satisfies the Brown Act requirement
to report the approval of the Agreements in a prior dosed session.
FISCAL IMPACT:
There is no fiscal impact. The parties wish to settle, compromise and discharge all differences
as outlined in the attached Agreement.
EXHIBITS:
1. Settlement Agreement and General Release of All Claims
DEPARTMENT CONTACT: Ron Ball 760-434-2891 rball@.ci.carisbad.ca.us
FOR CITY CLERKS USE ONLY.
COUNCIL ACTION: APPROVED D
DENIED D
CONTINUED D
WITHDRAWN D
AMENDED D
CONTINUED TO DATE SPECIFIC D
CONTINUED TO DATE UNKNOWN D
RETURNED TO STAFF D
OTHER - SEE MINUTES D
SETTLEMENT AGREEMENT
AND GENERAL RELEASE OF ALL CLAIMS
This Settlement Agreement and General Release of All Claims (the "Agreement")
is made by and between, on the one hand, Crown Castle GT Company LLC ("Crown
Castle") and New Cingular Wireless Services, Inc. ("New Cingular") (collectively,
"Defendants"), and, on the other hand, the City of Carlsbad and the Carlsbad Municipal
Water District (collectively, "Landlord").
Recitals
A. On or about February 28,2005, Landlord commenced a civil action against
Defendants in the United States District Court of the State of California, County of San
Diego, Southern District, Case No. 05-CV-0900 (the "Action"), and thereafter, on or
about August 25,2005, filed a Second Amended Complaint (collectively, the
"Complaint"), seeking, among other things, declaratory relief, arising out of that certain
Land Lease Agreement entered into as of July 17, 1985 (the "Lease"), by and between
Landlord (Costa Real Municipal Water District) and GTE Mobilnet of California Limited
Partnership ("GTE"), and relating to real property located in the City of Carlsbad, County
of San Diego, State of California, commonly known as Twin D Tanks Site, (the "Site"),
as more particularly described in Exhibit A to the Lease.
B. Defendants deny any wrongdoing and dispute the allegations of the
Complaint.
C. The parties desire to settle, compromise and discharge all differences and
controversies between them including, but not limited to, the disputes embraced in the
Complaint, and to release any and all claims and causes of action that may have arisen as
of the date of this Agreement relating to the allegations of the Action.
THEREFORE, in consideration of the promises and mutual agreements set forth in
this Agreement, it is agreed by and between the undersigned as follows:
1. Resolution of the Action.
1.1 Defendants will continue operations under the current Lease, without
having to apply for a Conditional Use Permit ("CUP") for the existing use, and Landlord
will not undertake abatement proceedings concerning such use;
1.2 In the future, should Crown Castle seek to intensify its use of the
Site (i.e., collocation), Crown Castle will apply for a CUP in accordance with Landlord's
then current policies and guidelines concerning permitting of wireless facilities;
.2-
1.3 If Crown Castle seeks to continue operations at the Site beyond the
expiration of the current Lease (expires May 31,2015), Landlord will negotiate with
Crown Castle in good faith concerning a new agreement, in accordance with Landlord's
then current policies and guidelines concerning leasing and/or licensing of real property
to wireless infrastructure operators, such as Crown Castle. If no agreement is reached,
Crown Castle will vacate the premises upon expiration of the Lease, in accordance with
the terms of the Lease;
1.4 Landlord will allow New Cingular to conduct necessary
maintenance and repair of its facilities at the Site, including but not limited to,
replacement of existing equipment and antennas with updated equivalents that are no
more visibly obtrusive;
1.5 Landlord shall cause the withdrawal and dismissal with prejudice of
the Complaint in the form and manner of the document attached hereto as Exhibit A, the
parties to bear their own costs and attorneys' fees.
2. General Release.
2.1 Landlord for itself, and for its agents, assigns, successors and each of
them, unconditionally, irrevocably and absolutely release and discharge Defendants and
their affiliates, subsidiaries, divisions, predecessors, successors, assigns, officers,
directors, shareholders, board members, employees, agents, and attorneys, whether
named or unnamed from all claims related in any way to the transactions or occurrences
between them to date, to the fullest extent permitted by law, including, but not limited to,
any and all claims, demands, actions, causes of action, liens, judgments, losses, liabilities,
costs, expenses and attorneys' fees, of whatever nature, past, present or future whether in
law or in equity, whether under state or federal law. and whether known or unknown,
suspected or unsuspected, whether asserted or not asserted, arising directly or indirectly
out of or in any way connected with the allegations raised, or that could have been raised,
in the Complaint. This release is intended to have the broadest possible application and
includes, but is not limited to, any tort, contract, common law, constitutional or other
statutory claims, and all claims for attorneys' fees, including costs and expenses pursuant
to paragragh 17 of the Lease, provided, however, that nothing in this Agreement shall
release the parties hereto from performing the terms, conditions, covenants and promises
of this Agreement.
2.2 Landlord declares and represents that it intends this Agreement to be
complete and not subject to any claim of mistake, and that the release herein expresses a
full and complete release and, regardless of the purported adequacy or inadequacy of the
consideration, intends the release to be final and complete. Landlord executes this
release with the full knowledge that this release covers all possible claims against
Defendants related in any way to the transactions or occurrences between them to date, to
the fullest extent permitted by law.
3. California Civil Code Section 1542 Waiver. Landlord acknowledges that it
may discover facts or law different from, or in addition to, the facts or law that it knows
or believes to be true with respect to the claims released in this Agreement and agrees,
nonetheless, that this Agreement and the release contained in it shall be and remain
effective in all respects notwithstanding such different or additional facts or the discovery
of them. Landlord expressly acknowledges and agrees that all rights under Section 1542
of the California Civil Code are expressly waived. That section provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR
AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR
HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH
THE DEBTOR.
4. No Admissions. By entering into this Agreement, it is understood that this
settlement is not an admission of liability by any party, and that the parties specifically
deny liability and intend merely to avoid expense by entering into this Agreement.
5. Entire Agreement/Modification. This Agreement is intended to be the
entire agreement between the parties and supersedes and cancels any and all other and
prior agreements, written or oral, between the parties regarding the settlement of the
Action. It is not intended to supercede, cancel or affect the Lease. This Agreement may
be amended only by a written instrument executed by all parties hereto.
6. Severabilitv. In the event any provision of this Agreement shall be found
unenforceable by an arbitrator or a court of competent jurisdiction, the provision shall be
deemed modified to the extent necessary to allow enforceability of the provision as so
limited, it being intended that Defendants shall receive the benefits contemplated herein
to the fullest extent permitted by law. If a deemed modification is not satisfactory in the
judgment of such arbitrator or court, the unenforceable provision shall be deemed
deleted, and the validity and enforceability of the remaining provisions shall not be
affected thereby.
7. Applicable Law. The validity, interpretation and performance of this
Agreement shall be construed according to the laws of the State of California.
8. Full Defense. This Agreement may be pled as a full and complete defense
to, and may be used as a basis for an injunction against, any action, suit or other
proceeding that may be prosecuted, instituted or attempted by Landlord in breach hereof.
The parties agree that in the event an action or proceeding is instituted by any party to
enforce the terms or provisions of this Agreement, that party shall be entitled to an award
of reasonable costs and attorneys' fees incurred in connection with enforcing this
Agreement.
9. Good Faith. The parties agree to do all things necessary and to execute all
further documents necessary and appropriate to carry out and effectuate the terms and
purposes of this Agreement.
10. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, and all of which, taken together, shall constitute one
and the same instrument.
11. Authorization. Each of the parties warrant that they are a duly organized or
constituted entity. Each of the undersigned individuals hereby warrant that he or she is
competent and authorized to act on behalf of the respective party on whose behalf he or
she signs this document.
THE PARTIES TO THIS AGREEMENT HAVE READ THE FOREGOING AND
FULLY UNDERSTAND EACH AND EVERY PROVISION CONTAINED HEREIN.
WHEREFORE, THE PARTIES HAVE EXECUTED THIS AGREEMENT ON THE
DATES SHOWN BELOW.
Dated:
Dated: /2--
*JL
The Carlsbad Municipal Water District
Dated:Crown Castle GT Company LLC
By:
Dated:New Cingular Wireless Services, Inc.
By:
APPROVED AS TO FORM:
9. Good Faith. The parties agree to do all things necessary and to execute all
further documents necessary and appropriate to carry out and effectuate the terms and
purposes of this Agreement.
10. Counterparts. This Agreement may be executed in counterparts, each of
which shall he deemed an original, and all of which, taken together, shall constitute one
and the same instrument.
11. Authorization Each of the parties warrant that they are a duly organized or
constituted entity. Each of the undersigned individuals hereby warrant that he or she is
competent and authorized to act on behalf of the respective party' on whose behalf he or
she signs this document.
TI1F PARTIES TO THIS AGREEMENT HAVF. READ THE FOREGOING AND
FULLY UNDERSTAND EACH AND EVERY PROVISION CONTAINED HEREIN.WHEREFORE, THE PARTIES HAVE EXECUTED THIS AGREEMENT ON THEDATES SHOWN BELOW.
Dated:The City of Carlsbad
Bv:
Dated:The Carlsbad Municipal Water District
Bv:
Dated: //>/•'Crown Castle GT Company LLC
Dated:New Cingular Wireless Services. Inc.
Bv:
9. Good Faith. The parties agree to do all things necessary and to execute all
further documents necessary and appropriate to cany out and effectuate the terms and
purposes of this Agreement.
10. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, and all of which, taken together, shall constitute one
and the same instrument
11. Authorization. Each of the patties warrant that they are a duly organized or
constituted entity. Each of the undersigned individuals hereby warrant that he or she is
competent and authorized to act on behalf of the respective party on whose behalf he or
she signs this document.
THE PARTIES TO THIS AGREEMENT HAVE READ THE FOREGOING AND
FULLY UNDERSTAND EACH AND EVERY PROVISION CONTAINED HEREIN.
WHEREFORE, THE PARTIES HAVE EXECUTED THIS AGREEMENT ON THE
DATES SHOWN BELOW.
Dated:The City of Carlsbad
By:
Dated:The Carlsbad Municipal Water District
By:
Dated:Crown Castle GT Company LLC
By:
Dated:
APPROVED AS TO FORM:
New Cingular Wireless Services, Inc.
By:
Dated: Carlsbad City Attorney
By:_
R. Ball, attorney for The City of Carlsbad and
arlsbad Municipal Water District
Dated: _ __ HELLER EHRMAN LLP
By:
Joseph M. Parker, attorney for Crown Castle GT
Company LLC
Dated: WESTON, BENSHOOF, ROCHEFORT,
RUBALCAVA & MACCU1SH LLP
By:
Michele A. Powers, attorney for New Cingular
Wireless Services, Inc.
APPROVED AS TO FORM:
Dated:Carlsbad City Attorney
Dated:
By:
Ronald R. Ball, attorney for The City of Carlsbad and
Carlsbad Municipal Water District
HELLER EHRMAN LLP
Dated:
By:
Joseph M. Parker, attorney for Crown Castle GT
Company LLC
WESTON, BENSHOOF, ROCHEFORT,
RUBALCAVA & MACCU1SH LLP
By:
Michele A. Powers, attorney for New Cingular
Wireless Services, Inc.
SD 849848 vl
Dated: Carlsbad City Attorney
By:
Ronald R. Ball, attorney for The City of Carlsbad and
Carlsbad Municipal Water District
Dated: HELLER EHRMAN LLP
By:
Joseph M. Parker, attorney for Crown Castle GT
Company LLC
Dated: I*pof66 WESTON, BENSHOOF, ROCHEFORT,
RUBALCAVA & MACCUISH LLP
Michele A. Powers, attorney for New Cingular
Wireless Services, Inc.
(°