Loading...
Verizon/SilverRock Settlement 09w SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release (hereinafter the "Release") is entered by and between the LA QUINTA REDEVELOPMENT AGENCY ("Agency") and VERIZON CALIFORNIA, INC. ("Verizon") (collectively referred to as the "Parties") with reference to the following facts: Recitals A. The Agency and Verizon were parties to a lawsuit known as La Quinta Development Agency v. Verizon California. Inc., Riverside County Superior Court Case No. INC 055168 (the "Lawsuit"). The Lawsuit involved the Agency's claim that Verizon had negligently impeded construction of the SilverRock Resort construction project ("Project") causing the Agency to incur damages. B. On March 5, 2009, the Parties executed an agreement to dismiss the lawsuit and submit the matter to binding arbitration, ADRS Case No. 09-3486-MDM. On August 14, 2009, Verizon filed a cross -complaint against the City relating to the arbitration. In this cross - complaint Verizon alleged that it had acquired a private easement in and across the lands that became SilverRock Resort and, as a result of having such an easement, Verizon claimed that it should have been compensated for being required to move its facilities. In this Release, the previously mentioned lawsuit, arbitration, and cross -complaint are collectively referred to as the "Action." C. During the course of the Project the Agency and Verizon agreed to a relocation of Verizon's telecommunications facilities to locations compatible with the Project, and the parties agree that nothing in this Release herein is intended to limit the rights expressly or impliedly granted by the City of La Quinta to Verizon with respect to Verizon's use and occupation of public streets and rights of way with such relocated facilities. Such facilities should be deemed to have been properly placed and maintained under appropriate permits from the City of La Quinta. D. By this Release, Agency and Verizon intend and desire to avoid the expense and uncertainty of litigation relating to their competing claims for money damages, costs and attorneys' fees and to settle all issues relating to or arising from the dispute referenced in the pleadings in the Action. E. On November 3, 2009, the terms of this Release were presented to the City Council of the City of La Quinta which approved the same for that municipal corporation and for the Agency as its governing body. Terms of Settlement NOW THEREFORE, in consideration of the mutual covenants set forth herein, the Parties agree as follows: 1. Payment Obligations. Prior to January 1, 2010, Verizon shall pay a total of $325,000 to Agency in a manner as directed by Agency's counsel of record. This sum constitutes payment in full for all claims, 290/015610-0093 1049406.01 al2/07/09 damages, costs, and attorneys' fees by the Agency arising out of the Action. Verizon also agrees not to pursue the money damages, costs and attorneys' fee claims set forth in its cross -complaint against the Agency in any court of law or private arbitration forum. 2. Rights of Way and Easements. The Parties agree that the facilities re -located by Verizon from the old Avenue 52 alignment on the premises of the SilverRock Resort to the new Avenue 52 bounding SilverRock Resort on the north shall be deemed to have been properly placed in the new Avenue 52 by Verizon under appropriate permits from the City of La Quinta, and the City of La Quinta has no residual, pending, asserted or unasserted claims against Verizon arising from or related to this relocation. Prospectively, such relocated facilities shall have the same franchise rights and be subject to the same liabilities as other telecommunications facilities placed and maintained in a public street pursuant to the state franchise granted by Public Utilities Code section 7901. 3. Construal of Release. Although this Release is to be broadly construed with respect to the matters alleged in the Action, it is intended to be applied solely to the damages claims alleged in the Action. Accordingly, it is not to be construed as releasing the Agency or the City of La Quinta from obligations due to Verizon as an incident of other commercial or contractual relationships between Verizon, the City of La Quinta and the Agency (for example, the obligation to pay for telecommunications services used by the City of La Quinta or the Agency). Similarly, this Release is not intended to affect Verizon's obligation to pay taxes or fees due from Verizon to the City of La Quinta as a result of other relationships between Verizon, the City of La Quinta and the Agency (most notably, Verizon's relationship to the City of La Quinta as a corporate citizen doing business within the jurisdiction of the City of La Quinta). 4. No Admission of Fault. This Release is a compromise and settlement of disputed claims. Nothing in this Release shall be interpreted, used, or construed as an admission of fault or wrongful conduct of any kind by any of the Parties. 5. Release. (a) Except as set forth in paragraphs 2 and 3, above, in consideration of the agreements as set forth herein, Agency and Verizon, on behalf of themselves and their owners, heirs, successors, assigns, insurers, lenders, lien holders, attorneys, agents, and other representatives do hereby release each other, and their councilmembers, mayors, officials, boards, commissions, managers, employees, attorneys, insurance companies, agents, and other representatives, from any and all claims, actions and causes of action, obligations, liabilities, indebtedness, breaches of duty, claims for injunctive and other equitable relief, suits, liens, losses, costs or expenses, including attorneys' fees, of any nature whatsoever, known or unknown, fixed or contingent, arising out of, based upon or relating to the Action. (b) Waiver of Civil Code Section 1542: By releasing and forever discharging claims both known and unknown as above provided, Agency and Verizon expressly waive any rights under California Civil Code section 1542, which provides: 290/015610-0093 3049406.01 a12/07/09 -2- "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT 10TOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.". The Parties waive and relinquish any rights and benefits which they have or may have under section 1542 of the Civil Code of the State of California. The Parties have performed a Rill and complete investigation of the facts pertaining to the settlement. Nevertheless, the Parties acknowledge that they are aware that they may hereafter discover facts in addition to or different from those which they now know or believe to be true with respect to the subject matter of this Release, but it is their intention hereby to fully and finally forever settle and release any and all matters, disputes and differences, known or unknown, suspected and unsuspected, which now exist, may exist or heretofore have existed, as against each other, arising out of the Project, the Agreement, and the Claim and, in furtherance of this intention, the release herein given shall be and remain in effect as a full and complete general release notwithstanding discovery or existence of any such additional or different facts. 6. Entire Agreement This Release sets forth the entire agreement of the Parties and supersedes any and all prior agreements or understandings, if any, between them pertaining to the subject matter hereof, and shall not be modified or altered except by a subsequent written agreement signed by the parties. This Release shall be binding upon and inure to the benefit of the Parties, their respective representatives, shareholders, officers, directors, employees, affiliates, successors, heirs and assigns. 7. Warranty. The Parties hereby expressly warrant and represent that they have not transferred or assigned or attempted to transfer or assign any of the claims released hereunder. The persons signing this Release hereby warrant that they have the power and authority to bind any party on whose behalf this Release is signed. 8. Controlling Law. This Release shall be interpreted and construed in accordance with the law of the State of California, without giving regard to principals of choice of law. 9. Attorneys' Fees and Costs. The Parties shall bear all of their own respective costs and attorneys' fees incurred relating to the matters encompassed in this Release. 10. Severability If any provision and/or part of this Release is held, determined, or adjudicated to be invalid, unenforceable or void for any reason, each such provision shall be severed from the 290/015610-0093 _ 1049406,01 a12/07/09 -3- remaining provisions of the Release and shall not affect the validity and enforceability of such remaining provisions. 11. Counterparts, This Release may be executed in counterparts and by electronic transmission. 12. Review of Release. The Parties each acknowledge and represent that they have read this Release, have had the opportunity to consult with their respective attorneys concerning its contents and consequences, that the Release is being executed solely in reliance on their respective judgment, belief and knowledge of the matters set forth herein and on the advice of their respective attorneys. 13. Neutral Interpretation. ., The Parties agree that all parts of this Release shall in all cases be construed as a whole according to their fair meaning and shall not be construed strictly for or against any party hereto. 14. Modification. This Release shall not be modified, amended or supplemented unless such modifications, amendments or supplements are in writing and signed by each party to this Release. IN WITNESS WHEREOF, the parties have executed this Release on the date set forth below. Date: Z . 2009 LA QUINTA REDEVELOPMENT AGENCY sy Its: _, c� i r VERIZ CALL ORNIA, INC. Date: 12 /S 2009 "'► BY� Its: A APPROVED AS TO FORM: RUTAN & TUCKER, LLF Robert 0. Owen, Esq. Attorneys for Plaintiff La Quinta Redevelopment Agency SIGNATURES CONTINUED UNArEXT FA GE 29M 15610-0 93 )MAD6.01.121V1/➢9 -4- remaining provisions of the Release and shall not affect the validity and enforceability of such remaining provisions. 11. Counterparts. This Release may be executed in counterparts and by electronic transmission. 12. Review, of Release. The Parties each acknowledge and represent that they have read this Release, have had the opportunity to consult with their respective attorneys concerning its contents and consequences, that the Release is being executed solely in reliance on their respective judgment, belief and knowledge of the matters set forth herein and on the advice of their respective attorneys. 13. Neutral Interpretation. The Parties agree that all parts of this Release shall in all cases be construed as a whole according to their fair meaning and shall not be construed strictly for or against any party hereto. 14. Modification. This Release shall not be modified, amended or supplemented unless such modifications, amendments or supplements are in writing and signed by each party to this Release, IN WITNESS WHEREOF, the parties have executed this Release on the date set forth below. Date: .2009 LA QUINTA REDEVELOPMENT AGENCY Its: Date: , 2009 VERIZON CALIFORNIA, INC. By:, Its: APPROVED AS TO FORM: RUTAN UC R,LLP o ert 0. Owen, Esq. Attorneys for Plaintiff La Quinta Redevelopment Agency SIGNATURES CONTINUED ON NEXT PAGE 290.01561M091 1 W 9406 01 M 247N -4- . r . SULLIVAN TAKETA LLP Mark F. Sullivan, Esq. Attorneys for Defendant Verizon California Inc. 2901015610-0093 1049406.01 al2/07/09 -5-