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1987-005-Authorizing The Withdrawal Of $1.5 Million On Deposit With Bell Savings And Loan Association, Approving Indemnity Agreement And Release With Bell And Authorizing The Mayor And The Town Attorney To Execute Said Indemnity Agreement And ReleaseRESOLUTION NO: 1987 -5 A RESOLUTION AUTHORIZING THE WITHDRAWAL OF $1.5 MILLION ON DEPOSIT WITH BELL SAVINGS AND LOAN ASSOCIATION (BELL), APPROVING INDEMNITY AGREEMENT AND RELEASE WITH BELL AND AUTHORIZING THE MAYOR AND THE TOWN ATTORNEY TO EXECUTE SAID INDEMNITY AGREEMENT AND RELEASE WHEREAS: The Town of Los Gatos (Town) has requested the withdrawal of $1.5 million on deposit with Bell Savings and Loan Association (Bell), including accrued interest to date of withdrawal, without penalty to bring the Town into compliance with Government Code Section 53638 relating to maximum deposits in one financial institution; and WHEREAS: Bell has agreed to release and disburse said funds to the Town and has agreed to waive collection of the penalties in connection with the withdrawal of said funds provided the Town execute an Indemnity Agreement and Release concerning any claims related to the disbursal of said funds; NOW, THEREFORE, BE IT RESOLVED that the Town Council of the Town of Los Gatos does hereby authorize withdrawal of $1.5 million on deposit with Bell, including accrued interest to date of withdrawal, provided no penalty is collected by Bell, and does hereby approve of the, Indemnity Agreement and Release with Bell, a copy of which is attached here as Exhibit "A ". NOW, THEREFORE, BE IT FURTHER RESOLVED that the Town Council does hereby authorize and direct the Mayor and the Town Attorney to execute said Indemnity Agreement and Release on behalf of the Town. PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Los Gatos, California, held on the 5th day of January ,1987 by the following vote. AYES: COUNCIL MEMBERS Joanne Benjamin, Eric D. Carlson, Thomas J. Ferrito, Robert L. Hamilton, and Mayor Brent N. Ventura NOES: COUNCIL MEMBERS None ABSTAIN: COUNCIL MEMBERS None ABSENT: COUNCIL MEMBERS None SIGNED: % / MAYUR OF THE TOWN OF LOS GATOS ATTEST: �LERR bF TAE- T7JAN OF-CM 020457 INDEMNITY AGREEMENT AND RELEASE THIS INDEMNITY AGREEMENT AND RELEASE is made and entered into between BELL SAVINGS AND LOAN ASSOCIATION, a Federal Savings and Loan Association (hereinafter referred to as "Bell ") and the Town of Los Gatos (hereinafter referred to as "The Town "), as of the date set forth below. W I T N E S S E T H: WHEREAS, The Town has demanded the release of The Town of certain funds ( "said funds ") in the amount of $ which includes accrued interest to the date of withdrawal, on deposit with Bell pursuant to an instrument designated "Contract for Deposit of Local Agency Funds" dated January 24, 1986, between Bell and The Town Treasurer of The Town, and has requested that in releasing and dis- bursing said funds Bell waive collection of applicable penalties for the early withdrawal of said funds; and WHEREAS, Bell has agreed to release and disburse said funds to The Town and has agreed to waive collection of the penalties in connection with withdrawal of said funds; NOW, THEREFORE, iit consideration of the promises hereinafter set forth, Bell and The Town jointly and severally agree as follows: 1. This INDEMNITY AGREEMENT AND RELEASE governs the rights of, binds, and inures to the benefit of Bell and The Town, their respective predecessors, successors, Exhibit "All 1. assigns, officers, directors, shareholders, employees, agents, administrators, executors, heirs, attorneys, and all others acting on their behalf or on behalf of any of them. 2. The term "SUBJECT CLAIMS" as used herein means any and all claims, demands, liabilities, obligations, actions, or causes of action of any kind or nature whatsoever, whether or not now known, suspected, or claimed, from January 24, 1986 to the date of these presents, involving, connected with or related to, directly or indirectly, the deposit, release, disbursement, demand for, or payment of said funds. 3. Bell agrees that it will release and disburse said funds to The Town or its designated agent by delivery of a check in the appropriate amount made payable to "The Town of Los Gatos" within 1 day after the execution of this INDEMNITY AGREEMENT AND RELEASE and the delivery of a duly certified resolution of the Town Council of Los Gatos to Bell as provided for in paragraph 9 hereof and agrees to waive its right to collect any penalty in connection with the withdrawal of said funds. 4. The Town agrees that the provisions of this INDEMNITY AGREEMENT AND RELEASE do not affect, in any way, either Bell's or The Town's rights and obligations with respect to that certain deposit of $500,000 by The Town at Bell evidenced by that certain Certificate of Deposit No. 2. 5. The Town hereby releases and forever discharges Bell from any and all SUBJECT CLAIMS respecting the deposit, releaser disbursement, demand for or payment of said funds, intentionally assumes the risk that it is releasing unknown claims, agrees that this INDEMNITY AGREEMENT AND RELEASE is a full and final release of any and all SUBJECT CLAIMS and expressly waives the benefits of Section 1542 of the California Civil Code (or any similar legislation in any other applicable jurisdiction) which provides as follows: "A general release does not extend to claims which the creditor does not know 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." 6. The Town covenants and promises that it will not commence or prosecute against Bell any action or other proceeding based upon any SUBJECT CLAIMS, whether possessed by The Town or by any other person or entity. 7. The Town will indemnify and hold Bell harmless from, and defend Bell against, any and all claims, including, without limitation, all claims for court costs, expenses, attorneys' fees, and judgments asserted against Bell as a result of, or in connection with, any action or other proceeding brought by or prosecuted by any person or entity in connection with, or arising from, directly or indirectly, the payment, release, disbursement or demand for said funds. The Town's agreement to indemnify and hold Bell 3. harmless and defend Bell, as set forth above, is limited to the issues of the Town's authority to withdraw said funds, and the validity and enforceability of this agreement. The Town expressly agrees to defend any such action on behalf of Bell and will provide such a defense upon the tender thereof by Bell, whether or not an action has been filed. In the event any action or other proceeding is commenced, this INDEMNITY AGREEMENT AND RELEASE may be pleaded as a full and complete defense thereto by Bell, as the basis for an abatement of, or injunction against, such an action or other proceeding, and as a basis of a counterclaim or cross -claim for damages therein. 8. In the event of any breach of this INDEMNITY AGREEMENT AND RELEASE, each party shall be entitled to recover from the other not only the amount of any judgment which may be awarded against such party for such breach, but also all such other damages, costs, and expenses as may be incurred by such party, including, without limitation, court costs, attorneys' fees, and all other costs and expenses, taxable or otherwise, in preparing the defense of, defending against, or seeking or obtaining an abatement of or injunction against, such action or proceeding, in establishing or maintaining the applicability or validity of this INDEMNITY AGREEMENT AND RELEASE or any provision thereof, and in prosecuting any counterclaim or cross -claim based hereon. 4. 9. The undersigned represent and warrant that they have full powers and authority to execute this INDEMNITY AGREEMENT AND RELEASE on behalf of Bell and The Town, respectively; and that Bell and The Town respectively, have not sold, assigned, transferred, conveyed, or otherwise disposed of any claim, demand, cause of action, obligation, damage, or liability covered or released hereby. The Town represents and warrants that a resolution of the Town Council or other appropriate legislation authorizing the execution of this INDEMNITY AGREEMENT AND RELEASE has been duly enacted in accordance with applicable law. 10. This document embodies the entire terms and conditions of the INDEMNITY AGREEMENT AND RELEASE described herein. All words, phrases, sentences, and paragraphs, including the recitals hereto, are material to the execution hereof. All other prior agreements, arrangements, or understandings, oral or written, are merged into and superseded by the terms of this document. All executed copies are duplicate originals equally admissible in evidence. 11. The Town agrees and acknowledges that by entering into this INDEMNITY AGREEMENT AND RELEASE, Bell is not acknowledging, directly or indirectly, that it acted improperly with respect to any of the matters which are the subject of this INDEMNITY AGREEMENT AND RELEASE. This INDEMNITY AGREEMENT AND RELEASE may not be used to establish 5. any claim against Bell by any person or entity in any proceeding except regarding a dispute between The Town and Bell relating to the rights and obligations arising under this INDEMNITY AGREEMENT AND RELEASE. 12. Each party hereto represents that it has been represented by counsel of its choice and that the parties, and their attorneys, have reviewed this INDEMNITY AGREEMENT AND RELEASE and agree that any legal rule of construction to the effect that ambiguities in written instruments are to be resolved against the party drafting such instruments shall not apply to the interpretation of this INDEMNITY AGREEMENT AND RELEASE or any Exhibits hereto. IN WITNESS WHEREOF, the following individuals have set their hands and seals and have executed this agreement. BELL SAVINGS AND LOAN ASSOCIATION, a Federal Savings and Loan Association By: Its At TOWN OF LOS GATOS By: Its: , California , 1986 6. Dated: READ AND APPROVED AS TO FORM: MCRENNA, CONNER i CUNEO Hy: Martin H. Rresse, Attorneys for BELL SAVINGS AND LOAN ASSOCIATION, a Federal Savings and Loan Association TOWN ATTORNEY TOWN OF LOS GATOS By: Mary Jo Levinger 7. Dated: Dated:r