HomeMy WebLinkAboutNEW CINGULAR WIRELESS PCS LLC (CLAIMANT) THE SETTLE CLASSA- 2014 -360
AGREEMENT OF SETTLEMENT & RELEASE BETWEEN
NEW CINGIILAR WIRELESS PCS :LLC
AND THE CITY OF SANTA APIA, CALIFORNIA
New Cingular Wireless PCS LLC (`'Claimant ") the Settlement Class as described below
and the City of Santa Ana ("City) enter into the following Agreement of Settlement and Release
("'Agreement ") with regard to the Claim described and defined below.
WHEREAS, the Claimant and Settlement Class submitted to City a, claim dated
November 1, 2010 seeking the refund of $673,147.68 in Local Utility User Tax CTax'% which
Tax had previously been collected by the Claimant from, its customers on charges for data
services between November 1, 2005 and September 30, 2010, and which Tare previously was
remitted by the Claimant to City (the "Claim "); and
WHEREAS, City has asserted various defenses to the Claim, including but not limited to
an assertion that certain portions of the Claim are outside the limitations period for which a
refund of Tax is available under the City Municipal Code; and
WHEREAS, the Claimant is a patty - defendant to the GiBbal Class Action Settlement
Agreement approved by the United States District Court for the Northern District of Illinois in
Case No. 10- CV02278, pursuant to which the rights of'the customers included in the 5ettlerrimt
Class (the "Settlement Class ") have been established; and
WHEREAS, the Settlement Class includes but is not limited to customers from whom the
Tax was collected., which Tax is sought in the Claim; and
WHEREAS, the Claimant and Pity desire to promptly return, to the Settlement Class
customers the refundable amount of Tax sought in the Claim, and to resolve this matter fully and
finally as between the Claimant and City.
NOW, THEREFORE, the parties hereto mutually agree:
FIRST, the Claimant Settlement Class and City agree that this Agreement shall be final
with regard to any liability for Tax sought in the Clain.
SECOND, in lieu of ail actual refund, City agrees to pay the refund as a credit against
future taxes as set forth in tiie next paragraph.
THIRD, City hereby grants a dollar for dollar credit. to AT&T and its subsidiaries against
future connmunications service user tax, specifically the account of "New Cingular Wireless
PCS, LLC" [City of Santa Aria Account Number 1134] in the amount of $241,488.99 in full
satisfaction of any and all obligations with respect to tine Claim. That is, the City's payment of
the $241,488,91 would be made by Claimant offsetting and keeping, rather than remitting to the
City, the monthly Tax remittance from future Taxes billed to customers until the full
$241,488.91 is paid. In exchange for this credit, the Claimant and Settlement Class agree to
release City from any further liability with regard to the Claim.
FOURTH, this Agreement sets forth the entire understanding between the Claimant,
Settlement Class and City with respect to the subject matter hereof and supersedes any prior
negotiations, agreements, understandings or arrangements between them.
FIFTH, this Agreement shall be binding upon and inure to the benefit of the Claimant,
Settlement Class, and all of their respective former and current officers, employees and directors,
arrd respective successors and assigns.
SIXTH, with respect to any claims related to or arising out of the Claim, the Recitals to
the Agreement, and/or the Agreement, the Agreeing Parties expressly waive the rights afforded
under California Civil Code section 1542, which provides that:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT
TO EXIST IN I-118 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.
The Agreeing; Parties represent and warrant that they have had the opportunity to seek and
receive the advice of an attorney with respect to the advisability of making the release provided
for herein, and the meaning of California Civil Code section 1542 and released rights at l,aw and
in equity. Being aware of California Civil Code section 1542, as outlined above, the parties
hereby expressly waive and relinquish any benefits they may have pursuant to Civil Code section
1.542, as well as under any other state or federal statutes or common law principles of similar
effect.
SEVENTH, each of the undersigned represents and warrants that lie or she is fully
authorized to execute and deliver this Agreement on behalf of the patty and it, the capacity
identified below,
EIGHTH, this Agreement may be signed in one or more counterparts and a facsimile or
ervail transmission of signature shall be the same as an original.
NINTH, Class Cotursel will rectuost that the United States District Court for the Northern
District of Illinois in Case No. 10- CV022'78 order that following the distribution procedures set
forth in the settlement documents approved in the Global Class Action Settlement Agreement
above; in the event that there remain funds that could not be distributed to the Class members or
from checks that are not negotiated, such funds will be returned to City.
rN wrPNFSS WHEREOF, the Pal-tics have caused this Agreement to be executed on the
dates shown below.
Date; --2Z--1
ATTEST:
MARIA HUIZAR
Clerk of the Council
NEW CINGULAR WIRELESS PCS LLC
rJI K
vnv W
CITY OF SANTA ANA
DAVID �VA
City Manager
ACKNOWLEDGMENT OF CONSENT TO AGREEMENT:
APPROVED AS TO FORIM:
SONIA R. CARVALHO
City Attorney
1-4 By: L �-() —Cllclt
Laura A, Rossini
Senior Assistant City Attorney
4
THE SETTLEMENT CLASS, BY AND
THROUGH SETTLEMENT CLASS
COUNSEL