Proposed Resolution Approving
Settlement Agreement with GTE
Mobilenet (dba Verizon)
City Council Special Meeting
August 3, 2026
CITY OF CARMEL-BY-THE-SEA
CITY OF CARMEL-BY-THE-SEA 1
December 7, 2021:
The City Council denied an Application by Verizon to
install and operate a wireless communications
facility mounted to a replacement PG&E utility pole
with support equipment placed and camouflaged on
the ground adjacent to that utility pole located in the public right-of-way on the east side of Carmelo
Street between Eighth & Ninth Avenues within the
City (“Carmelo Application”).
CITY OF CARMEL-BY-THE-SEA 2
Background
January 18, 2022:
Verizon filed a Complaint in United States District
Court (Northern District) alleging that the City
violated the “shot clock” of the Telecommunications
Act of 1996 (TCA), hereafter “Complaint”.
CITY OF CARMEL-BY-THE-SEA 3
Background
February 17, 2022:
The City moved to dismiss the Complaint. Also on
February 17, 2022, La Playa Carmel Hotel and STOP
CELL TOWERS IN CARMEL NEIGHBORHOODS moved
to intervene in the case and that motion was granted
by the Court and the Intervenor-Defendants joined
the City’s motion to dismiss.
CITY OF CARMEL-BY-THE-SEA 4
Background
March 30, 2022:
The Court converted the motion to dismiss into a motion for summary judgment under Rule 12(d).
June 30, 2022:
The Court issued an Order Granting Summary Judgment
in Favor of the City and the Intervenor Defendants finding that the City fulfilled the TCA’s written denial and
substantial evidence requirements and took timely
action.
CITY OF CARMEL-BY-THE-SEA 5
Background
• Verizon filed an appeal in the United States Court
of Appeals for the Ninth Circuit (the “Merits
Appeal”).
• Following the District Court’s order denying a
motion by the City for attorneys’ fees, the City
filed an appeal in the Ninth Circuit from that
order (the “Attorneys’ Fees Appeal”).
• There is no hearing date pending before the Ninth
Circuit on the two appeals
CITY OF CARMEL-BY-THE-SEA 6
Appeals
Verizon recently approached City special counsel
(Gail Karish of Best Best & Krieger) regarding the
possibility of a mutual agreement to dismiss the
Complaint and the Merit Appeal and the Attorney
Fee Appeal.
A Settlement Agreement has been drafted which is
Exhibit A to the Resolution (Attachment 1) and
includes mutual releases and with each party to pay
their own costs and expenses, including attorneys
fees.
CITY OF CARMEL-BY-THE-SEA 7
Proposed Settlement Agreement
The recommendation is a motion to adopt the
Resolution Approving the Proposed Settlement
Agreement with GTE Mobilnet (dba Verizon).
The Settlement Agreement will result in the dismissal
of the Complaint and the appeals and avoid
additional costs of defense.
CITY OF CARMEL-BY-THE-SEA 8
Recommendation
Questions?
CITY OF CARMEL-BY-THE-SEA 9
End of Presentation
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SETTLEMENT AGREEMENT AND RELEASE
EXHIBIT A
SETTLEMENT AGREEMENT AND RELEASE
THIS SETTLEMENT AGREEMENT AND RELEASE (“Agreement”) is made and entered into effective August 3, 2026 (the “Effective Date”), by and among GTE MOBILNET OF CALIFORNIA LIMITED PARTNERSHIP, a California limited partnership, d/b/a Verizon Wireless (“Verizon”); CITY OF CARMEL-BY-THE-SEA, CALIFORNIA (the “City”); and LA PLAYA CARMEL HOTEL, LLC (“La Playa”) (collectively, the “Parties”).
WHEREAS, Verizon commenced an action in the United States District Court for the Northern District of California captioned GTE Mobilnet of California Limited Partnership v. City of Carmel By-the-Sea, et al., Case No. 22-cv-00347-NC (N.D. Cal.) (the “District Court Action”), in which Verizon asserted claims against the City for alleged violations of the Telecommunications Act of 1996 (TCA) and an existing agreement between Verizon and the City, when the City purportedly failed to timely deliver a written denial notice of Verizon’s application to install and operate a wireless communications facility mounted to a replacement PG&E utility pole with support equipment placed and camouflaged on the ground adjacent to that utility pole located in the public right-of-way on the east side of Carmelo Street between Eighth & Ninth Avenues within the City (“Carmelo Application”), and in which Stop Cell Towers In Carmel Neighborhoods, Inc. (“SCTCN”) and La Playa appeared as Intervenor-Defendants; and WHEREAS, following the dismissal with prejudice of all Verizon’s claims in the District Court Action, Verizon filed an appeal in the United States Court of Appeals for the Ninth Circuit captioned GTE Mobilnet of California Limited Partnership v. City of Carmel-by-the-Sea, et al., Case No. 22-16153 (9th Cir.) (the “Merits Appeal”); and WHEREAS, following the District Court’s order denying the City's motion for attorneys’ fees, the City filed an appeal in the United States Court of Appeals for the Ninth Circuit from that order (the “Attorneys’ Fees Appeal”); and
WHEREAS, the Merits Appeal and the Attorneys’ Fees Appeal are referred to collectively in this Agreement as the “Litigation,” which expressly includes all claims, counterclaims, defenses, judgments, orders, and proceedings arising from or relating to the Merits Appeal and the Attorneys’ Fees Appeal; and
WHEREAS, the City, SCTCN, and La Playa have actively litigated and defended the claims advanced by Verizon in the Litigation, and have opposed the relief sought by Verizon and Verizon has opposed the relief sought by the City, SCTCN, and La Playa in the Litigation, including the City’s request for attorneys’ fees; and
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SETTLEMENT AGREEMENT AND RELEASE
WHEREAS, Intervenor-Defendant SCTCN has represented SCTCN’s agreement to stipulate to the dismissal of the Litigation pursuant to Federal Rule of Appellate Procedure 42 and has filed the attached Certificate of Election to Windup and Dissolve on or about March 10, 2025 (Exhibit 1, hereto); and
WHEREAS, to avoid the additional expense of further litigation and find a compromise solution, the Parties have engaged in good-faith settlement negotiations and arrived at this Agreement, which will resolve the Litigation.
NOW, THEREFORE, in consideration of the mutual promises and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties, each on its own behalf and on behalf of its respective successors and assigns, hereby agree as follows:
1. Conditions and Obligations.
(a) Stipulation of Dismissal. Within ten (10) days after execution of this Agreement by all Parties, the Parties shall cooperate with each other and with SCTCN in filing a stipulated dismissal pursuant to Federal Rule of Appellate Procedure 42 dismissing the Litigation in the United States Court of Appeals for the Ninth Circuit. The stipulated dismissal shall fully and finally resolve all claims and issues asserted in the Litigation as between the Parties (and including SCTCN). (b) Future Applications on the Existing Carmelo Application PG&E Pole. Verizon shall not submit any application to install and operate a small cell wireless communications facility in the public right-of-way on the existing PG&E pole at issue in the Carmelo Application. This provision shall also apply to any third party or affiliate seeking to install antennas or related equipment (other than fiber optic or other cable runs) at Verizon Wireless’s direction to be used by Verizon or an affiliate, but shall not prevent Verizon from submitting any other application to install and operate any wireless communications facility within the City of Carmelby-the-Sea, nor shall anything in this Agreement be construed to require the City to approve any such application.
2. Releases.
(a) In consideration of the mutual promises contained in this Agreement, and upon the occurrence of the event set forth in Subsection 1(a) of this Agreement, each Party, including any affiliates, successors or assigns thereof, irrevocably and unconditionally release and forever discharge the other Party, and each of its affiliates, successors, or assigns, of and from any and all claims, duties, causes of action, demands, obligations, liabilities, rights, damages, costs, attorney’s fees, or - PAGE 3 –
SETTLEMENT AGREEMENT AND RELEASE
expenses of any kind, whether known or unknown, suspected or unsuspected, that arise in any way out of, relate to, or are in connection with the claims and counterclaims in the Litigation.
(b) Waiver of California Civil Code Section 1542. The Parties expressly acknowledge and agree that they may hereafter discover claims or facts in addition to or different from those that they now know or believe to exist with respect to the matters released herein, but that it is their intention fully, finally, and forever to settle and release all such matters, and all claims relating thereto, whether known or unknown, suspected or unsuspected.
Accordingly, each Party expressly waives and relinquishes any and all rights and benefits conferred by California Civil Code section 1542, which provides:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
THAT THE CREDITOR OR RELEASING PARTY DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT
THE TIME OF EXECUTING THE RELEASE, AND THAT, IF
KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY
AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR
OR RELEASED PARTY.”
Each Party acknowledges that it may later discover facts different from or in addition to those it now knows or believes to be true, and agrees that the releases contained in this Agreement shall remain effective in all respects notwithstanding such different or additional facts.
(c) The foregoing release of claims shall not constitute a release of any claims or causes of action for any Party’s default under the terms of this Agreement. Nothing herein shall prevent or impair enforcement of rights and remedies in accordance with this Agreement.
3. No Admission
(a) Nothing in this Agreement shall constitute, or be considered as, an admission of liability or wrongdoing by any Party, or any agreement by any Party as to the validity of any of the positions advanced by any other Party in connection with or relating to the Litigation.
(b) This Agreement shall be deemed to fall within the protection afforded compromises and offers to compromise by state and federal rules of evidence. Neither this Agreement nor any part of it may be used in any way against any Party in any legal, - PAGE 4 –
SETTLEMENT AGREEMENT AND RELEASE
equitable, or administrative action or arbitration, except as part of an action to enforce this Agreement.
4. Representations and Warranties.
(a) Verizon represents and warrants that:
(i) Verizon is a limited liability company validly existing and in good standing under the laws of the state of California and has all requisite corporate power and authority to execute and deliver this Agreement on its own behalf and on behalf of its affiliates and to perform its obligations hereunder; (ii) the execution, delivery and performance of this Agreement by Verizon will not result in any violation or conflict with the charter or by-laws of Verizon or any agreement, order, judgment, decree, statute, rule or regulation applicable to the Verizon; and
(iii) this Agreement is a valid and binding agreement of Verizon. (b) the City represents and warrants that:
(i) the City, as defined in this Agreement, is a municipal corporation validly existing and in good standing under the laws of the State of California. The City has all requisite power and authority to execute and deliver this Agreement on its own behalf and to perform its obligations hereunder; (ii) the execution, delivery and performance of this Agreement by the City will not result in any violation or conflict with the charter or by-laws of the City or any agreement, order, judgment, decree, statute, rule or regulation applicable to the City; and
(iii) this Agreement is a valid and binding agreement of the City. (c) La Playa represents and warrants that:
(i) La Playa is a limited liability company validly existing and in good standing under the laws of the State of California and has all requisite limited liability company power and authority to execute and deliver this Agreement on its own behalf and to perform its obligations hereunder;
(ii) the execution, delivery, and performance of this Agreement by La Playa will not result in any violation of, or conflict with, La Playa’s articles of - PAGE 5 –
SETTLEMENT AGREEMENT AND RELEASE
organization, operating agreement, or any agreement, order, judgment, decree, statute, rule, or regulation applicable to La Playa; and (iii) this Agreement constitutes a valid and binding obligation of La Playa, enforceable in accordance with its terms.
(d) Each Party represents and warrants that it has the sole right and exclusive authority to execute this Agreement and that it has not sold, assigned, transferred, conveyed, promised, or otherwise disposed of any of the claims, demands, obligations, or causes of action released by this Agreement.
(e) Each Party represents it is the true and lawful owner of all right, title, and interest in and to the respective claims, demands, liabilities, and causes of action being released hereby and that it has not transferred, assigned, or otherwise encumbered any of the matters released hereby or any part thereof. (f) Each Party acknowledges, represents and warrants that it has been fully advised by its attorney(s) concerning the execution of this Agreement, that it has fully read and understands the terms of this Agreement, and that it has freely and voluntarily executed this Agreement.
5. Costs and Expenses. The Parties understand and agree that each will bear, and be responsible for the payment of, its costs and expenses, including attorney’s fees and other litigation expenses, incurred in connection with the Litigation and the negotiation, preparation, execution, and implementation of this Agreement.
6. Entire Agreement. This Agreement represents the entire agreement between the Parties relating to the subjects explicitly set forth in this Agreement and supersedes any other oral or written agreements and understandings relating thereto.
7. Amendments and Waivers.
(a) No modification, amendment or waiver of any of the terms or provisions of this Agreement shall bind either Party unless such modification, amendment or waiver is in writing and has been executed by a duly authorized representative of the Party against whom such modification, amendment or waiver is sought to be enforced. (b) No delay or omission by either Party in exercising any right or power occurring upon any noncompliance or default by the other Party with respect to any of the terms and provisions of this Agreement will impair any such right or power or be construed to be a waiver thereof. A waiver by either of the Parties of any of the covenants, conditions or agreements to be performed by the other will not be construed to be a waiver of any succeeding breach thereof or of any other covenant, - PAGE 6 –
SETTLEMENT AGREEMENT AND RELEASE
condition, or agreement contained in this Agreement.
8. Notices. All notices, requests or other communications in connection with or relating to this Agreement must be in writing and sent by (a) certified mail, with return receipt requested, or (b) Federal Express or other overnight service. A notice shall be deemed to have been delivered on the date that it was sent.
All notices to Verizon under this Agreement will be sent to:
Verizon Wireless
Attn: Network Real Estate
180 Washington Valley Road
Bedminster NJ 07921
All notices to the City under this Agreement will be sent to:
Brandon Swanson, Acting City Administrator
Carmel-by-the-Sea
P.O. Box CC
Carmel-by-the-Sea, CA 93921
with a copy to:
Brian Pierik, City Attorney
Carmel-by-the-Sea
c/o Burke, Williams & Sorensen, LLP
1 California Street - Suite 3050
San Francisco, CA 94111
All notices to La Playa under this Agreement will be sent to:
Grossman Company Properties, Inc.
Attn: Ennis Dae & Jeanie Branham
c/o La Playa Carmel Hotel, LLC
Camino Real at Eighth Ave
Carmel-by-the-Sea, CA 93921
7272 East Indian School Road, Suite 200
Scottsdale, AZ 85251
with a copy to:
Travis Van Ligten
Rutan & Tucker, LLP
Attn: Jeffrey Melching, Esq.
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SETTLEMENT AGREEMENT AND RELEASE
18575 Jamboree Road, 9th Floor
Irvine, CA 92612
A Party may, by written notice, designate a different address for notices, requests or other communications or different or additional persons to be notified or to receive requests or other communications.
9. Choice of Law. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of California, without reference to its choice of law principles.
10. Counterparts. This Agreement may be executed in one or more counterparts, each of which when so executed and delivered shall be an original and all of which together shall constitute one and the same instrument.
11. No Third-Party Beneficiaries. This Agreement is intended solely for the benefit of the Parties and does not create any rights in any third party.
12. Joint Work Product. The Parties acknowledge that this Agreement is the joint work product of the Parties, and that, accordingly, in the event of ambiguities in this Agreement, no inferences shall be drawn against either Party on the basis of authorship of this Agreement.
13. Captions. The Parties acknowledge that the captions in this Agreement have been inserted solely for convenience of reference and in no way define or limit the scope or substance of any provision of this Agreement.
14. No Warranties. Except as explicitly set forth in this Agreement, there are no representations, warranties, or inducements, whether oral, written, expressed, or implied, that in any way affect or condition the validity of this Agreement or alter its terms.
15. Execution as Condition Precedent. A condition precedent to the enforceability of this Agreement is the execution of this Agreement by all parties. [SIGNATURE PAGES FOLLOW]
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SETTLEMENT AGREEMENT AND RELEASE
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and delivered by their duly authorized representatives.
GTE MOBILNET OF CALIFORNIA LIMITED PARTNERSHIP, d/b/a Verizon Wireless By: ______________________________
Name: ___________________________
Title: ____________________________
Date: ____________________________
CITY OF CARMEL-BY-THE-SEA, CALIFORNIA
By: ______________________________
Name: Brandon Swanson
Title: Acting City Administrator
Date: _____________________________
LA PLAYA CARMEL HOTEL, LLC
a California limited liability company
By: CARMEL HOTEL PROPERTIES, LLC
a California limited liability company,
its Managing Member
By: GROSSMAN COMPANY PROPERTIES, INC.,
an Arizona corporation, its Managing Member
By: ______________________________
Name: ___________________________
Title: ____________________________
Date: ____________________________
Formatted: Indent: Left: 1.5"
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SETTLEMENT AGREEMENT AND RELEASE
Exhibit 1 to Settlement Agreement and Release
[see next page]