2001-039-Authorizing The Mayor To Accept And Approve General Release Regarding Property Located At 15089 Los Gatos BoulevardRESOLUTION 2001 - 39
RESOLUTION OF THE TOWN COUNCIL
OF THE TOWN OF LOS GATOS AUTHORIZING
THE MAYOR TO ACCEPT AND APPROVE
GENERAL RELEASE REGARDING PROPERTY
LOCATED AT 15089 LOS GATOS BOULEVARD
RESOLVED, that the Town of Los Gatos has determined that a General Release regarding
the property located at 15089 Los Gatos Boulevard is necessary; and,
RESOLVED, by the Town Council that the Town of Los Gatos enter in the General Release
(as outlined in Attachment 1) setting forth the complete understanding of all parties with reference
to property located at 15089 Los Gatos Boulevard; and,
FURTHER RESOLVED, by the Town Council that the Mayor is authorized and directed
to execute the General Release on behalf of the Town of Los Gatos.
PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Los
Gatos, California held on the 161h day of April, 2001, by the following vote:
COUNCIL MEMBERS:
AYES: Randy Attaway, Steven Blanton, Sandy Decker, Steve Glickman,
Mayor Joe Pirzynski.
NAYS: None
ABSENT: None
ABSTAIN: None
SIGNED
AYOR O TOWN OF LOS GATOS
9LOS GATOS, CALIFORNIA
ATTEST:
W al�' �� )
CLERK OF THE TOWN OF L GA
LOS GATOS, CALIFORNIA
OFFICE OF THE TOWN CLERK
AGR Of , CfJ,1 '
IHH
GENERAL RELEASE ORD
REC
In consideration of the promises made by the TOWN OF LOS GATOSR ,lYribed herein, the
undersigns WILLIAM F, HIRSCHMAN and ELIZABETH K. DO'DS (coltectiv—may,—tT e—`�
"Undersigns") hereby forever releases, waives and discharges the TOWN OF LOS GATOS, its
officers, employees, agents, successors and assigns ("Town"), and all other persons and entities, of
and from any and all claims, demands, actions, causes of action, known or unknown, suspected or
unsuspected, relating in any manner whatsoever to or arising from the dispute described as fo{tows:
On April 5, 1999, the Town Council adopted Ordinance No. 2060 approving a PD
(Planned Development) zoning for the property located at 15089 Los Gatos
Boulevard, Ordinance No. 2060 allows construction of two buildings. The north
building would have three floors with the second floor at ground level. The south
building has a single floor. The development as proposed and ultimately approved
was designed to accommodate a mix of both retail and office uses consistent with the
then Town General Plan and the Los Gatos Boulevard Plan. Ordinance No. 2060
states in subsection 4 of section II that "uses permitted are those specified in the C I1
(Restricted Highway Commercial) zone." Section V of the Ordinance includes
within the "Official Development Plan" the eight sheets of development plans
submitted by the applicant (Exhibit B to the Ordinance), including sheet 2, detailed
floor plans of each proposed building showing retail uses located at the Los Gatos
Boulevard frontage of the ground level floors of each proposed structure.
The Undersigns entered into a lease agreement dated January 5, 2001 under which
they agreed to lease the north building for "administrative office and testing" uses for
a period of seven (7) years, with a option granted to the lessee to extend the lease an
additional five (5) years thereafter ("Lease"). On January 30, 2001, Town staff
erroneously approved tenant improvements for the north building that are
inconsistent with sheet 2 of Exhibit B of the Ordinance in that the improvements
would only accommodate office uses on the second floor, rather than a mix of office
and retail uses. The total value of tenant improvements on all three floors of the
north building was estimated at $578,667.00.
The Undersigns believe that Ordinance No. 2060 was intended to approve any use
allowed in the CH zone without specifying which use would go into any given
location. However, on March 19, 2001, the Town Council of Town determined that
Ordinance No. 2060 requires that retail and office uses be distributed in the north and
south buildings in a manner consistent with sheet 2 of Exhibit B of the Ordinance.
A consequence of Town's interpretation of Ordinance No. 2060 is that a part of the
use specified in the Lease shall be inconsistent with the requirement for retail uses
in certain designated areas of the north building.
The Undersigns further agree to the special considerations which follow:
Page l of 3
1. The Undersigns acknowledge:
A. That, in exchange for receipt of this General Release, Town shall not enforce the
provisions of Ordinance No. 2060 requiring retail uses in the north building during
the pendency of the Lease, including the option period.
B. That Town shall be entitled to enforce the provisions of Ordinance No. 2060
requiring retail uses in the north building in the event the Lease terminates for any
reason, or is amended to exclude from the leased premises the area of the north
building designed for retail uses on sheet 2 of Exhibit B of the Ordinance.
C. They shall immediately inform the Town Manager of Town of the termination or
amendment of the Lease.
D. That Town shall be immediately entitled to enforce the provisions of Ordinance No.
2060 requiring retail uses in the south building.
E. That the promises made by Town and other consideration given in connection with
this General Release are the result of a compromise and settlement of disputed
claims, and shall never at any time or for any purpose be considered an admission of
error, wrongdoing, liability or responsibility on the part of Town.
2. The Undersigns agree that this General Release is intended to be a full and final compromise,
release and settlement of all claims, demands, actions, causes of action, known or unknown,
suspected or unsuspected, relating to the above described incident and matters; and, as
further consideration and inducement for this compromise settlement, the undersigned
expressly waives the provisions of section 1542 of the California Civil Code, which reads
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 TO HIM
MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITI-I 1-1-IF,
DEBTOR.
The Undersigns acknowledge that different or additional facts may be discovered in addition
to what they now know or believe to be true with respect of the matters herein released, and
that they agree that this General Release shall be an remain in effect in all respects as
complete and final releases of the matters released, notwithstanding any different or
additional facts.
3. The Undersigns represent that they are the sole possessors of the claims or causes of action
being released, and that they have not assigned or otherwise transferred said claims or causes
of actions.
Page 2 of 3
RPR-02-2001 14:29 TERRA LAW LLP
eM
4. 1'lic Undersigns agrec fl at, relating to the above described incident and mattcrs, lhcy evil l MiL,
at any time thereafter, commence, maintain orprosecuto any action, at law or oilierwise, or
assert any claim against the Town hevein released and/or execute or enforce any judgn�tont.
5. The Undersi�-ns hereby authorize and direct their respective otwrneys to tlisrtii,ys witli
prejudice any action they inay have filed against Town concerning the dispute described
above in this General Releaso.
6. The Uadersigns hereby ncknowlcdge and agree that the parties to Any actions filed and
dismissed pursuant to tiffs General Release shall each bear their own auol7iey tees anal CQSlr
in eotuicction with said lawsuit(s) and this compromise settlement And refuse.
7. The Undersigns understand attd agree that this Gencral Release sets foillt the full and
complete agreement or the parties, and that no statements orrepresentations, 011tcr th;ui thotie
cowaincd herein, have been mode or relied upon by the Undersigns is an IndLICVnI `nt !ur
executing this Gelleral Rclease.
S. Undersigns hereby apree that this Gerieral Release shall bind and biadim, vpou theirbeir ,
personal repivsentatives, spotise, executors, administrators, and assig�ls. tend shall inure to
the benefit of their agents, employees, servants and successors,
9. 'The Undersigns licreby acknowledge tliatthey have discussed this Central Rclease with thCir
counsel, who has explained this document. andthc Undersigns hereby itcVaowledgc that they
understand all of the terms acid conditions of Us General Release and that this is in tolol and
final settlement and compromise of all claims being released.
DATED, April , 2001
Acccptod and approved by 'Town of Lus
Gatos:
Joe I hzynski, Mayer
Approved as to foriw
t�c
QvyT. Korb, Towi1 Attoney
William I-, Hirschman
Bliz.abch K. Dodson
as
R. Pre Cott cli, Cl unscl for L i�tibctlt
K. Do son AwdWillialA F. ll rselwaan
I'a le 3 of 3