New Cingular Wireless - Settlement and Release AgreementAGREEMENT OF SETTLEMENT & RELEASE BETWEEN
NEW CINGULAR WIRELESS PCS LLC
AND THE CITY OF GILROY, CALIFORNIA
New Cingular Wireless PCS LLC ( "Claimant') the Settlement Class as described below
and the City of Gilroy ( "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 $84,325.45 in Local Utility User Tax ( "Tax "), 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 Tax 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 one year limitations period for
which a refund of Tax is available under the City Municipal Code; and
WHEREAS, the Claimant is a party- defendant to the Global 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 Settlement
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 City 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 Claim.
SECOND, City agrees to pay a refund of Local Utility User Tax in the amount of
$39,761.72 in full satisfaction. of any and all obligations with respect to the Claim. In exchange
for this payment, the Claimant and Settlement Class agree to release City from any further
liability with regard to the Claim.
THIRD, City shall issue such payment to the AT &T Mobility Settlement Fund and mail
such payment within 15 days of the final execution of this agreement to Timothy Raab, ARPC, .
1220 19a' Street, NW, Suite 700, Washington, D.C. 20036. A copy of the transmittal of such
payment shall simultaneously be mailed to James P. Frickleton, Bartimus, Frickleton, Robertson
& Goza, P.C., 11150 Overbrook Road, Suite 200, Leawood, KS 66211; Thomas Gilmer, Esq.,
AT &T Mobility, 2180 Lake Blvd., Room 121354, Atlanta, GA 30319 and Margaret Wilson,
Wilson Agosto LLP, 34 E. Main Street, Somerville, NJ 08876
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,
and 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:
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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.
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 1 542 and released rights at law 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
1542, 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 he or she is fully
authorized to execute and deliver this Agreement on behalf of the party and in the capacity
identified below.
EIGHTH, this Agreement may be signed in, one or more counterparts and a facsimile, or
email transmission of signature shall be the same as an original.
NINTH, Class Counsel will request that the United States District Court for the Northern
District of Illinois in Case No. 10- CV02278 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.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the
dates shown below.
Date: I 36
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Date: 1 15
NEW CINGULAR WIRELESS PCS LLC
Title:
ACKNOWLEDGMENT OF CONSENT TO AGREEMENT:
Date: 0 l 4 f j 64 N nsc (
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GILROY. CALIFORNIA
THE SETTLEMENT CLASS, BY AND
THROUGH SETTLEMENT CLASS
COUNSEL