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HomeMy WebLinkAboutT-Mobile West Corporation - 2011-11-21 Hbi CITY OF HUNTINGTON BEACH Interdepartmental Communication TO: JOAN FLYNN, City Clerk FROM: JENNIFER McGRATH, City Attorney DATE: November 21, 2011 SUBJECT: T-Mobile West Corporation v. City of Huntington Beach, U.S. District Court Case No. CV10-1471-RGK (SSx) ("T-Mobile IT') The City Council approved the Settlement Agreement with T-Mobile West during the November 7, 2011 closed session and authorized the City Manager to sign it on behalf of the City. The City Manager and T-Mobile have signed the Agreement. Attached is the signed, original Agreement for your files. JENNIFER McGRATH City Attorney c: Scott Field 73258.doc SETTLEMENT AGREEMENT AND MUTUAL RELEASE This Settlement Agreement and Mutual Release(the."Agreement") is made and entered into by and among the City of Huntington Beach (the"City") and T-Mobile West Corporation ("T-Mobile"). The City and T-Mobile are referred to herein individually as a"Party"and collectively as"the Parties." This Agreement is made pursuant to the following terms and conditions: RECITALS A. On August 14, 2007 and September 7, 2007,the City issued T-Mobile Wireless Permits pursuant to the City Zoning Code authorizing installation and operation of telecommunications facilities ("Wireless Telecommunications Facilities")at two City-owned parks in the City of Huntington Beach: (1) 16600 Saybrook Lane'Huntington Beach, California, also known.as Huntington Harbour Garden Club Park("Harbour View"), and (2) 5741 Brighton Drive, Huntington Beach, California, also known as Bolsa View Park(`Bolsa View"). B. On January 20, 2009,the City Council approved Site License Agreements with T- Mobile with respect to the installation and operation of the Wireless Telecommunications Facilities at Harbour View and Bolsa View. On April 1,2009,the City issued building permits to T-Mobile with respect to the Wireless Telecommunications Facilities at Harbour View and Bolsa View. C. Section 612 of the Huntington Beach City Charter("Measure C")provides that voter approval is required before any structure with a total construction valuation of more than $100,000 may be built in any City-owned park. After the building permits were issued for the Harbour View Wireless Telecommunications Facilities and the Bolsa View Wireless Telecommunications Facilities,the City took the positions that the total construction value for each of the Wireless Telecommunications Facilities exceeded$100,000. Consequently,the City suspended T-Mobile's authority to construct the Wireless Telecommunications Facilities until voter approval was obtained. D. In response,T-Mobile filed the suit entitled Omnipoint Communications, Inc. v. City of Huntington Beach and City Council of the City of Huntington Beach, United States District Court for the Central District of California,.Case No. CV-09-3777,which alleged that the Federal Telecommunications Act(the"Act")preempts the voter approval requirement of Measure C. E. The City moved to dismiss the Complaint, contending that proprietary decisions of local government regarding its own property are outside the scope of the Act. The Court denied the motion by of its October 8,2009 Minute Order. The parties then filed cross- motions for partial summary judgment,which resulted in.the July 9,2010 Order of the District finding that the Act preempts Measure C. As part of that same Order, the District Court then "[gave] the city ... a chance to either grant the permits or articulate in writing the basis of denial in a way that comports with the Act." . 1 DWT 18330406vl 0048172-000388f72017.DOC F. On August'30,2010,the City Council revoked the Wireless Permits. G. On November 12,2010,the District Court entered judgment in favor of T-Mobile with respect to its claim for declaratory judgment as set out in the July 9, 2010 Summary Judgment Order. H. On December 1,2010,the City appealed the Judgment, and on December 10, .2010,T-Mobile filed a cross-appeal of the Judgment. Together,the appeals are entitled Omnipoint Communications, Inc. v. City of Huntington Beach and City Council of the City of Huntington Beach, Ninth Circuit Case Nos. 10-56877 and 10-56944. (For purposes of this Agreement,District Court Case No. CV-09-3777, and the related Ninth Circuit appeals will be referred to as"T-Mobile Z") I. Prior to the District Court issuing the Judgment in T-Mobile I,T-Mobile filed on September 29,2010, a lawsuit to challenge the revocation of the Wireless Permits, entitled T- Mobile West Corporation v. City of Huntington Beach,Case No. CV 10-1471 ("T-Mobile Il"). For purposes of this Agreement,.T-Mobile I and T-Mobile II will be referred to as the"Actions." J. The Parties have vigorously litigated the Actions. The Parties now wish to avoid the expense, delay and uncertainty of litigation and to settle the disputes among them. K. The basis of the Settlement is to permit T-Mobile to locate the Wireless Telecommunications Facilities at alternative sites,with the Wireless Telecommunications Facilities being located at the Huntington Harbour Mall, 16897 Algonquin, Huntington Beach, California(the"Mall") in place of Harbour View, and the Wireless Telecommunications Facilities being located at the City-owned, Bolsa Chica Flood Control Pump Station, 18401 Springdale Street,Huntington Beach(the"Pump Station") in place of Bolsa View. L. The Parties acknowledge that T-Mobile's ability to obtain leases for either the Mall or the Pump Station is dependent on discretionary decisions of the Mall owner and the Huntington Beach City Council,respectively. The City makes no commitment that either Lease will be agreed to. M. The Parties further acknowledge that even if T-Mobile obtains the leases for the Mall and the Pump Station,the City Council must approve a conditional use permit("CUP") pursuant to the Zoning Code for each site and that notwithstanding any term or condition of this Agreement,the City Council retains its full discretion to deny either or both CUPs. N. Given the multiple discretionary decisions involved in this Settlement Agreement, the Parties agree that if only one site is fully approved,then T-Mobile will withdraw and release its claims against the City regarding the relocated site from the Actions,and only prosecute the Actions as to the Wireless Telecommunications Facilities that was not relocated. 2 DWT 18330406v1 0048172-000388n2017.DOC AGREEN111ENT For and in consideration of the commitments made herein,City and T-Mobile agree as follows: I. Settlement Does Not Bind Or Commit The Future Actions Of The Huntington Beach City Council. Neither the Mall nor Pump Station Antenna may be constructed unless and until the City Council has approved a CUP and any related environmental review pursuant to the California Environmental Quality Act. By entering into this Agreement,the City only agrees to present CUP applications for the Antennas to the City Council for approval. City Staff retains its discretion to recommend denial of the applications,and the City Council retains its discretion to deny the applications. Neither of the Wireless Telecommunications Facilities shall be approved until the City and the City Council has followed all legally required procedures. . II. Continuance Of The Actions Is A Condition Precedent To This Agreement. 1. Presently,trial is scheduled to begin in T-Mobile H on December 6, 2011. As of the date of this Agreement, it appears that the earliest that the City Council will be able to consider approval of the CUP and Lease for the Pump Station Antenna is December 6, 2011. The date by which the City Council will be able to consider the Mall Antenna is uncertain, because the Mall Owner has yet to agree to the necessary Lease. Consequently,the City Council likely will not be able to consider the Mall CUP until early 2012, assuming that the Mall owner and T-Mobile agree to a Lease. 2. The Parties acknowledge that the Settlement of the Actions cannot be completed unless and until the Court continues the trial of T-Mobile H. 3. The Parties shall immediately ask the Court to continue or stay T-Mobile II to allow this Agreement to be effectuated. The Court shall retain jurisdiction until: (a)all permits and approvals to install and operate the Antennas have been issued; (b)the Antennas have been fully constructed; and(c) the time for legal challenge to the approvals for the Antennas has expired. 4. If the Court should fail to grant the continuance or stay,or grant it in a manner that either Party finds unacceptable, either Party terminate this Agreement. By way of separate letter agreement, Counsel for the Parties may modify this termination provision in response to the actions of the Court. 111. The Mall. 1. The City,through its Staff, shall provide its assistance in obtaining the agreement by the Owner of the Mall to enter into a lease with T-Mobile to install and operate a Wireless Telecommunications Facilities at the Mall. 2. If and when T-Mobile obtains the necessary authorization from the Mall owner to apply to the City for land use approval of the Mall Wireless Telecommunications Facilities, 3 DWT 18330406v1 0048172-000388/72017.DOC T-Mobile shall promptly apply to the City for the necessary CUP. The City shall not charge T- Mobile any fees in connection with the permits for Wireless Telecommunications Facilities at the Mall, except its out-of-pocket expenses of Seven Hundred Fifty Dollars ($750.00). 3. Once T-Mobile submits a CUP application for the Mall Wireless Telecommunications Facilities,the City,through its Staff, shall conduct a public meeting to present the Wireless Telecommunications Facilities at the Mall to the neighboring community. 4. Within seven(7)weeks of T-Mobile submitting a CUP application for the Mall Wireless Telecommunications Facilities, City Staff shall cause to be noticed a public hearing before the City Council to consider the CUP. 5. If the City approves the CUP application for the Mall Wireless Telecommunications Facilities, and the time for filing any legal challenge to the approval has expired,then T-Mobile shall as soon as reasonably possible, remove the vault and shoring at Harbour View. The City shall then, at its own expense, demolish or cover the base,backfill the hole,repair the irrigation, oversee the turf area and provide any other landscaping the City wishes. T-Mobile shall leave the utilities in place. IV. The Pump Station. ;i 1. The Parties have preliminarily agreed to the terms of a Lease to locate Wireless Telecommunications Facilities at the Pump Station. m At T-Mobile agrees to promptly execute the Lease immediately upon approval of this Agreement by the Huntington Beach City Council. The City Council shall consider whether to approve the Lease concurrently when it considers whether to approve a CUP for the Pump Station Antenna. By entering into this Agreement,the City retains its discretion to reject the Pump Station Lease. 2. Promptly upon both Parties executing this Agreement, T-Mobile shall apply to the.City for a CUP for the Pump Station Wireless Telecommunications Facilities. The City shall not charge T-Mobile any fees in connection with the permits for Wireless Telecommunications Facilities or lease for the Pump Station, except its out-of-pocket expenses of Seven Hundred Fifty Dollars($750.00). 3. Once T-Mobile submits a CUP application, City, through its staff, shall schedule a public meeting to present the Pump Station Antenna to the neighboring community. 4. Within seven (7)weeks of T-Mobile submitting a CUP application for the Pump Station Wireless Telecommunications Facilities, City Staff shall cause to be noticed a public hearing before the City Council to consider the CUP. V. Effect Of Settlement If Neither Antenna Is Approved. Or Only One Wireless Telecommunications Facilities Is Approved. 1. If despite T-Mobile's good faith efforts, it is unable to enter into a lease with the owner of the Mall allowing T-Mobile to install and operate Wireless Telecommunications 4 DWT 18330406v10048172-000388n2017.D0C Facilities at the Mall on terms acceptable to T-Mobile,then this Agreement shall be null and void as to the Wireless Telecommunications Facilities at the Mall. 2. Should the City Council approve the CUP and Lease for the Pump Station,but deny the CUP for the Mall, then T-Mobile agrees to file all necessary pleadings to withdraw and release its claims concerning Bolsa View from the Actions. Further,the Parties agree that T- Mobile may either resume litigating the Actions regarding Harbour View, or that it will dismiss with prejudice the Actions and instead file a new action in either State or Federal Court to . challenge the City's decision to deny the CUP for the Mall. Alternatively, if T-Mobile chooses to resume litigating the Actions regarding Harbour View, it agrees to waive and not pursue any claims it may possess regarding the Mall site. 3. Should the Mall owner enter into a lease with T-Mobile,and the City.Council approve the CUP for the Mall,but the City denies the CUP or Lease for the Pump Station,then T-Mobile agrees to file all pleadings necessary to withdraw its claims concerning Harbour View from the Actions. Further, T-Mobile agrees that it will not file any actions.in either State or Federal Court to challenge the City's decision to deny the CUP and/or Lease for the Pump Station. Rather,T-Mobile may proceed to litigate the Actions only regarding the Bolsa View, site. 4. If T-Mobile is only able to obtain full approval of the Mall Wireless Telecommunications Facilities or the Pump Station Wireless Telecommunications Facilities, and then pursues the Actions as to the denied Wireless Telecommunications Facilities ,then the claim for costs of the Party that prevails in the Actions as to the rejected Wireless Telecommunications Facilities shall be reduced by one=half for the time between initial filing of the Actions through the date the Actions were recommenced after this Agreement was executed. 5. If(1)T-Mobile is unable to obtain a Lease with the Mall Owner or the City Council denies approval of the Mall CUP; and(2)the City Council denies approval of the Pump Station Lease and/or the Pump Station CUP,then this Agreement terminates and shall be of no force and effect. VI. Release If Both Mall And Pump Station Wireless Telecommunications Facilities Approved. In the event that both the.CUPS and Leases are agreed to for the Mall and Pump Station Wireless Telecommunications Facilities,then the Parties agree to a full release of their claims,as set forth below: 1. In consideration of the recitals,covenants and agreements set forth in this Agreement, and other good and valuable consideration, receipt and sufficiency of which is hereby acknowledged, each Party to this Agreement hereby irrevocably and unconditionally mutually release and forever discharge each other and each of their respective trusts,trustees, successors, assigns,executors and administrators, agents, employees, representatives, attorneys,principals,affiliates, and all persons acting by, 5 DWT 18330406v10048172-000388n2017.DOC through,under or in concert with any of them, or any of them, of and from any and all claims, demands, actions, causes of action, suits, liens,debts, obligations, promises,agreements,costs, damages, liabilities, and judgments of any kind,nature, or amount whether in law or equity, whether known or unknown, anticipated or unanticipated, liquidated or unliquidated, including any-and all claimed or unclaimed compensatory damages, consequential damages, interest,costs, expenses and fees (including reasonable or actual attorneys' fees), arising from or related to the events as described in the Actions. 2. To effect a full and complete release as described above,the Parties expressly waive and relinquish all rights and benefits afforded to them by Section 1542 of the Civil Code of the State of California, and do so understanding and acknowledging the significance and consequence of such specific waiver of Section 1542. Section 1542 of the Civil Code of the State of California provides as follows: "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." Thus, notwithstanding the provisions of Civil Code Section 1542, and for the purpose of implementing a full and complete release and discharge of the Parties,the Parties expressly acknowledge that this Agreement is intended to include in its effect,without limitation, all claims which they do not know or suspect to exist in their favor at the time of execution hereof, and this Agreement contemplates the extinguishment of any such claims. The Parties warrant that they have each read this Agreement, including this waiver of California Civil Code Section 1542, and that they understand the Agreement and the Section 1542 waiver, and so freely and knowingly enter into this Agreement. The Parties each acknowledge that it may hereafter discover facts different from or in addition to those it knows or now believes.to be true with respect to the matters released or described in this Agreement,and they agree that the releases and agreements notwithstanding any later discovery of any such different or additional facts. The Parties each hereby assumes any and all risk of any mistake in connection with the true facts involved in the matters,disputes, or controversies described herein or with regard to any facts which are now unknown to them relating thereto. 3. The Actions shall be dismissed,with prejudice, each party to bear its own fees and costs. 4. Each Party shall each bear its own costs and expenses, including attorneys' fees, including those incurred in connection with the Action or the negotiation and execution of this Agreement. In the event of any proceedings to enforce this Agreement,the prevailing Party shall be entitled, in addition to any other appropriate relief,to recover its reasonable costs and attorneys' fees. 6 DWT 18330406v1 0048172-000388n2017.DOC VII. General Terms and Conditions. 1. If T-Mobile obtains a Lease and CUP for the Mall Wireless Telecommunications Facilities,then the Site License Agreement for Harbour View is terminated, and the City shall refund all rent or other payments made by T-Mobile pursuant to the Site License Agreement. If T-Mobile obtains a Lease and CUP for the Pump Station Wireless Telecommunications Facilities,then the Site License Agreement for Harbour View is terminated, and the City shall refund all rent or other payments made by T-Mobile pursuant to the Site License Agreement. 2. All parties acknowledge and warrant that their respective execution of this Agreement is free and voluntary. 3. It is understood and agreed that this Agreement and the consideration set forth herein effect the settlement of claims which are denied and contested, and nothing in this Agreement shall be construed as an admission by any Party of any liability of any kind to any Party to this Agreement or any other person, and such liability is expressly denied. 4. This Agreement constitutes and contains the entire Agreement and understanding concerning this subject matter between the Parties and supersedes and replaces all prior negotiations,proposed agreements or agreements,written or oral. Each of the Parties acknowledges that no other Party or any agent or attorney of any other Party made any promise, representation or warranty whatsoever,express or implied,or oral, not contained in this Agreement, concerning its subject matter to induce any Party to execute this Agreement, and each of the Parties acknowledges that it/he/she has not executed this Agreement in reliance on any promise,representation or warranty that is not contained in this Agreement. 5. The Parties each acknowledge that they have had a full and unhindered opportunity to consult with legal, accounting, financial,tax and planning consultants of their own choosing before entering into this Agreement. 6. The Parties represent that they have not heretofore assigned or transferred, or purported to assign or transfer,to any person or entity, any claim or other matter herein related. 7. This Agreement is made and entered into in the State of California,'and shall in all respects be interpreted, enforced and governed under the laws of the State of California: 8. This Agreement sets forth the entire agreement between the Parties and fully supersedes any and all prior agreements or understandings of any kind whatsoever,whether written, oral,express, implied or otherwise,between City and T-Mobile,with respect to the subject matter of this Agreement. Any modification or amendment to this Agreement must be in writing and must be signed and dated by all of the Parties, and must explicitly state that it is intended to be an amendment to or modification of this Agreement. 9. This Agreement shall be binding upon and inure to the benefit of the heirs, executors,administrators, successors and assigns of the Parties hereto. 10. The Agreement may be executed in counterparts and all such counterparts taken collectively shall constitute one agreement. 7 DWT 18330406v10048172-000388n2017.DOC 11. Nothing in this Agreement shall be construed as an admission or estoppel on the part of any Party as to any matter, including the legal necessity of the permitting process specified in this Agreement. This Agreement may not be introduced into evidence in any action or proceeding other than an action or proceeding to enforce the Agreement. IN WITNESS WHEREOF,the Parties hereto have executed this Agreement. CITY OF T GTON BEACH November 21, 2011 Dated: Qk60 ,2011 By: It CITY COUNC L OF THE CITY OF HUNTING ACH November 21,. 2011 Dated: (�crbl,> r'Z112011 By: Its: T BIL WEST CQ ORATION Dated: October 2011 By: s ,�✓ vUe The undersigned attorneys at law for each of the respective Parties represent that they have fully explained this Agreement to their respective clients,who have acknowledged an understanding of these terms and conditions and the legal effect thereof. JENNIFER McGRATH,City Attorney Dated: Aetober-=.,_2444- By: Scott Field, Assistant City Attorney Attorneys for City of Huntington Beach and City Council of the City of Huntington Beach DAVIS IGHT TREM E LLP Dated: October 2011 By: _ Martin L. Finem Attorneys for T-Mobile West Corporation 8 DWT 18330406v1 0048172-000388n2017.DOC