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HomeMy WebLinkAboutLos Angeles SMSA Limited Partnership (Verizon) i - 2007-11-19• �a fe CITY OF HUNTINGTON BEACH Interdepartmental Communication TO: JOAN FLYNN, City Clerk FROM: JENNIFER McGRATH, City Attorney DATE: January 9, 2008 SUBJECT: Los Angeles SMSA Limited Partnership (Verizon) v. City of Huntington .Beach, United States District Court No. SACV 06-647 At the November 19, 2007 Closed Session, the City Council approved the settlement with Verizon Wireless, and authorized the City Administrator to sign the settlement agreement in the above -mentioned case. Attached please the original, executed Settlement Agreement with the request that you keep the agreement on file in your office. JENNIFER McGRATH City Attorney Attachment 17372 SETTLEMENT AGREEMENT This Settlement Agreement ("Agreement") is made and entered into as of November 19, 2007, between Los Angeles SMSA Limited Partnership, d/b/a Verizon Wireless ("Verizon Wireless") and the City of Huntington Beach ("City") in full and complete settlement of the lawsuif entitled Los Angeles SMSA Limited Partnership dba Verizon Wireless v. City of Huntington Beach, et al., United States District Court for the Central District of California, Case No. SA CV 06-647-AHS (MLGx) ("Lawsuit") on the terms set forth below. Verizon Wireless and City are sometimes referred to herein individually as a "Party" and collectively as the "Parties." Recitals WHEREAS, on January 13, 2005, Verizon Wireless applied to the City to install a wireless communications facility on a utility pole located in the public right of way near the intersection at Edwards Street and Overlook Avenue ("Original Site"); and WHEREAS, Verizon Wireless filed the Lawsuit against the City and certain of its departments on July 13, 2006, alleging, among other things, that the City's refusal to issue an encroachment permit to install a wireless communications facility at the Original Site violated Verizon Wireless's rights under state and federal law; and WHEREAS, the City subsequently adopted a moratorium on wireless communications facilities, which it later extended; and WHEREAS, Verizon Wireless filed a first amended complaint in the Lawsuit on October 10, 2006, alleging that the City's moratorium violated various state and federal laws, in addition to the claims asserted in the original complaint; and WHEREAS, the moratorium has expired. The City recently adopted Ordinance Nos. 3779, 3780 and 3781, all of which became effective October 31, 2007. Ordinance No. 3779 adopts new zoning regulations governing the installation of wireless communications facilities in the City. Ordinance Nos. 3780 and 3781 govern use of the public right of way generally, including by wireless communications facilities; and WHEREAS, Verizon Wireless has submitted, or will shortly submit, applications for a wireless permit and a conditional use permit ("CUP") (collectively, "Permit Applications") to the City that propose, or will propose, the siting of a wireless communications facility at an alternative to the Original Site, on City -owned property located at 18591 Edwards Street, Huntington Beach, California (the "Alternate Site"). The wireless permit requires approval by the Planning Director, and the CUP requires approval by the Zoning Administrator following a noticed public hearing. The facility would include a fifty foot (50') pole, plus associated above -ground cabinets not exceeding six feet (6') in height, located within a sound wall; and 1 settlement Agreement revised 11-13/15726 WHEREAS, the parties desire to settle the Lawsuit according to the terms set forth in this Agreement, but only if Verizon Wireless's Permit Applications are approved with conditions that are acceptable to Verizon Wireless, and the Parties enter into a lease for the Alternate Site. Agreement NOW THEREFORE, in consideration of the execution of this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is acknowledged, and subject to the terms and conditions hereof, the Parties hereby agree as follows: 1. Dismissal of Lawsuit. Subject to the conditions set forth below, Verizon Wireless and the City agree to file with the Court a joint stipulation requesting dismissal of the Lawsuit with prejudice promptly following the execution of a lease for the Alternate Site by the Parties, final City approval of the Permit Applications, and City issuance of any other permits, including but not limited to building permits, necessary for installation of a wireless communications facility at the Alternate Site (the "Related Permits"). 2. Submission of Application. Verizon Wireless has submitted, or will submit the Permit Applications no later than January 10, 2008. Prior to the execution of this Agreement, the City and Verizon Wireless have been negotiating a lease agreement for Verizon Wireless's proposed facility at the Alternate Site (the "Lease"). The parties agree that entry into the Lease is a material condition for their entry into this Agreement. 3. Consideration of the Application. The City agrees to timely process the Permit Applications and to consider them in good faith and in an expeditious manner. The City agrees to present the Permit Applications to the City's Planning Director and Zoning Administrator for decision within ninety (90) days of receiving a complete application from Verizon Wireless. After the Zoning Administrator and Planning Director make decisions on the Permit Application, any interested party may appeal the decision to the Planning Commission and/or the City Council. City can make no guarantee or assurances as to any decisions regarding the Permit Applications, whether any person will appeal such decisions, or what action the Planning Commission and/or the City Council would take in the event of an appeal. 2 Settlement Agreement revised 11-13/15726 4. Approval or Non -Approval of the Permit Applications. (A) The Parties acknowledge that the City's timely processing and final approval of the Permit Applications, as provided for in this Agreement, is a material term of this Agreement. Consequently, this Agreement shall become voidable at the election of Verizon Wireless if the City fails to present the Permit Applications to the City's Planning Director and Zoning Administrator for decision within the time required by Section 3, above, or if, prior to six (6) months after Verizon Wireless submits complete Permit Applications (the "Outside Date"): (i) the City has not given final approval of the Permit Applications; (ii) the City, acting through its City Council, disapproves the Permit Applications; (iii) the City approves the Permit Applications subject to conditions Verizon Wireless deems unacceptable by providing written notice to the City within thirty (30) days after the City's action that such conditions were unacceptable (such notice need not occur before the Outside Date); or (iv) the parties cannot reach agreement on the terms of a lease agreement for the Alternate Site. In the event this Agreement becomes voidable as set forth above, Verizon Wireless may terminate this Agreement by giving ten (10) days written notice of termination to the City, in which case this Agreement shall become null and void, and the parties may then pursue the Lawsuit to trial or judgment. (P) If the Parties execute the Lease and the City grants final approval of the Permit Applications and the Related Permits on or before the Outside Date, and Verizon Wireless does not give notice to the City within thirty (30) days after the City's approval (without regard to the Outside date) that the approvals are unacceptable, then the Parties shall promptly, and in no event later than 30 days after the Outside Date, file a joint stipulation requesting dismissal of the Lawsuit with prejudice. Upon the occurrence of that dismissal, each Party agrees to bear its own attorneys' fees and costs incurred in connection with the Lawsuit. Should the Lawsuit not be so dismissed, but reactivated as provided above, then this Agreement shall have no force and effect on the question of attorneys' fees and costs in the litigation. 5. Public Process and Participation. Verizon Wireless agrees and acknowledges that the City cannot commit in advance to the outcome of the Permit Applications or lease for the Alternate Site described herein and that the Applications must undergo the same public hearing process as any other application for a conditional use permit. Nothing herein shall constitute or be construed as a commitment by the City to approve the Applications, and no cause of action for breach of contract or any other cause of action based on or arising out of this Agreement shall accrue to Verizon Wireless by reason of the City's failure to approve the Applications or lease for the Alternate Site. The City acknowledges and agrees, however, that approvals of the Permit Applications, Related Permits, and lease for the Alternate Site are material terms of this Agreement and a condition for the obligations of Verizon Wireless under this Agreement. 3 Settlement Agreement revised I M 3/15726 City further acknowledges and agrees that Verizon Wireless has the right to reactivate the Lawsuit and bring it to trial or judgment as set forth in Section 4 of this Agreement, should it not receive the timely approval of its Permit Applications, Related Permits, or lease for the Alternate Site, as contemplated herein. 6. Effect of Agreement. It is understood and agreed that this Agreement is the compromise of disputed claims made by Verizon Wireless, and that the terms of this Agreement are not to be construed as an admission of liability on the part of the City, which expressly denies any such liability. This Settlement Agreement is entered into solely for the purposes of settling pending litigation. The terms of this Agreement shall not be admissible in any arbitration, litigation, or other proceedings for any purpose, except as required to enforce this Agreement. 7. Releases. Upon execution of the lease for the Alternate Site, approval of the Permit Applications, issuance of the Related Permits, and the expiration of the thirty (30) day notice period idelitified in Section 4, each Party to this Agreement hereby releases the other from all claims, demands, actions and causes of action of any nature whatsoever which are currently known regarding the matters which are the subject of this Agreement and the Lawsuit, as well as to all claims, demands, actions and causes of action that the Parties do not know or suspect to exist in their respective favors as of the date of this Agreement, which, if known at the time of executing this Agreement, might have affected the Agreement as set forth herein. Each of the Parties to this Agreement also hereby specifically waives the protections of California Civil Code section 1542, which 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. 8. Exceptions to Release. Nothing herein shall be construed as a release by any Party of any obligation or claim arising out of a breach of this Agreement. Furthermore, neither the dismissal of the Lawsuit as called for herein, the release set forth above, nor anything else in this Agreement shall limit or affect: (a) any claim by Verizon Wireless arising out of or relating to any proposed wireless facility other than the specific facility that is the subject of the Lawsuit; (b) any claim by Verizon Wireless that Ordinance Nos. 3779, 3780 and/or 3781 or any other regulation or legal requirement imposed by the City is unlawful, either on its face or as applied to any facility other than the specific facility that is the subject of the Lawsuit. 4 settlement Agreement revised 11-13/15726 9. Binding on Successors and Assigns. This Agreement shall inure to the benefit of and bind and be binding upon the agents, officers, directors, employees, partners, successors, and assigns of the undersigned Parties. 10. Advice of Counsel. Each of the Parties to this Agreement represents and warrants that they have engaged separate counsel to represent them with respect to this Agreement and all matters covered herein, that they have been fully advised by said attorneys with respect to their rights and with respect to the execution of this Agreement and as to all matters which are subject to the mutual releases contained herein, and that they have read this Agreement and understand the terms thereof. 11. Attorneys' (Fees and Costs. The Parties agree to bear their own attorneys' fees and costs in connection with the preparation and negotiation of this Agreement, as well as any fees and costs incurred in the Lawsuit, provided it is dismissed in accordance with this Agreement. 12. Complete Agreement. This Agreement, including the Recitals, constitutes the entire, full and complete Agreement between the Parties hereto, and supersedes all prior agreements, if any. 13. Enforcement. In the event of a breach of the terms of this Agreement, this Agreement shall be enforced in the United States District Court for the Central District of California. The Parties shall request that the Court retain jurisdiction to enforce the terms of this Settlement Agreement pursuant solely to declaratory and injunctive relief The terms of this Agreement are contractual, not merely recitals, and shall be interpreted, enforced and governed under the laws of the State of California (excluding California's choice of law rules). This Agreement is the result of negotiations between the Parties, each of which has participated in the drafting hereof. In the case of any proceeding to enforce this Agreement, each Party shall bear its own attorneys' fees and costs. No Party shall be subject to damages of any kind for breach of this Agreement. 14. No Undisclosed Principals. Each of the Parties to this Agreement represents and warrants to the other that no other person, firm, corporation, estate, or entity has had or now has any interest in any of the claims released herein. 5 Settlement Agreement revised 11-13/15726 15. Execution of Documents. The Parties agree to execute any and all documents reasonably necessary to effectuate the terms, conditions, and purposes of this Agreement. 16. No Prior Assignments or Transfers. Each of the Parties to this Agreement further represents and warrants to the other that it has not heretofore assigned or transferred, or purported to assign or transfer, to any person, firm, corporation, estate, insurance carrier, or other entity whatsoever any claim, controversy, right, promise, debt, liability, demand, obligation, cost, expense, action, or cause of action herein released or purported to be released. The Parties to this Agreement agree that, if any assignment or transfer, or any purported assignment or transfer of any of the claims, controversies, rights, promises, debts, liabilities, demands, obligations, costs, expenses, actions or causes of action released herein has been made, the Party which made or purported to make such transfer or assignment shall indemnify and forever hold the other parties harmless against all claims and liabilities, including reasonable attorneys' fees and costs incurred in connection therewith, which may be asserted by any third party relating to the subject matter of the assignment or transfer, or any purported assignment or transfer. 17. Warranty of Authority. In executing this Agreement, each person executing this Agreement further represents and warrants that they have the authority to bind their respective principals, and that those party -principals have the right and authority to compromise, settle, release and discharge all of the claims released herein. Execution of this Agreement by the City Administrator of the City shall be deemed to evidence legally proper approval by the City Council of this Agreement. 18. Written Modifications Only. The terms of this Agreement shall not be modified or amended except in writing, signed by all Parties or their designated representatives for such purpose. 19. Time is of the Essence. Time is of the essence in this Agreement. 20. Duplicate Originals and Counterparts. This Agreement shall be executed in duplicate originals, with each party to retain a fully -executed duplicate original. This Agreement may be executed in counterparts, which when taken together shall constitute one binding Agreement. Facsimile signatures shall be considered as binding as original signatures. 6 Settlement Agreement revised 1 I-13/15726 21. Effective Date of Agreement. This Settlement Agreement shall be deemed effective on the date executed by the managing member of Verizon Wireless and approved by the City, whichever shall occur later. 22. Severability If one or more of the provisions of this Agreement is determined to be illegal or unenforceable, the remainder of this Agreement shall not be affected thereby and each remaining provision or portion thereof shall continue to be valid and effective and shall be enforceable to the fullest extent permitted by law. LOS ANGELES SMSA LIMITED PARTNERSHIP dba VERIZON WIRELESS By: A Ake ti �>� Name: Gilbert J God i nPz. CITY OF HUNTINGTON BEACH By: Title: City Administrator Name: Penelope Culbreth-Graft Its: F3ceczu:t_�ve AJ-rP-oter - Network APPROVED AS TO FORM: MACKENZIE & ALBRITTON, LLP APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY CITY OF HUNTINGTON BEACH By: &6n2l By: James A. Heard Scott Field, Assistant City Attorney Ap_Wed As To Form Edward R. McGah Jr. Sr. Counsel Verizon Wireless 7 Settlement Agreement revised 1 1-13/15726