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 1.5089 LOS GATOS BOULEVARD
RESOLVED, that the Town of Los Gatoshas determined that a General Release regarding
the property located at 15089 Los Gatos Boulevard is necessary; and,
RESOLVED, by t11e Town Council thattlle Town of Los Gatos enter inthe 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 thatthe 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 16~~' day of April, 2001, by the following vote:
COUNCIL MEMBERS:
AYES.: Randy Attaway, Steven Blanton, Sandy Decker, Steve Glickman,
Mayor Joe Pirzynslci.
NAYS: None
ABSENT: None
.ABSTAIN: None ~ L____~~-
SIGNED
AYOR O TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
ATTEST:
~~
CLERK ~OF THE TOWN OF L GA
LOS GA'1,O~S, CALIFORI~IIA
~" OI'~~ICE Ot`'PH~'I'OWN CLERK
MGR ~f , ~J~' 1 '`7~
IHI-I
GENERAL RELEASE oRD
REC
In consideration of the promises made by the TOWN OF LOS GATOS~ ~~ribed herein, the ~~/ ~5
undersigns WILLIAM F. HIRSCHMAN .and ELIZABETH K. DO'DS (coITectiv-may,-t"T 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 mariner whatsoever to or arising from the dispute described as fo{lows:
On April 5, 1999., the Town Council adopted Ordinance No. 2060 approving a PD
(Planned Development) zoning for the property located at 1:5089 Los Gatos
Boulevard. Ordinance No. 2D60 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 CI I
(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 northbuilding 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 (S) years thereafter ("Lease"). On January 3'0, 200 t, Town staff
erroneously approved tenant improvements for the north btrildirlg 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, ratherthan 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. 206.0 was intended to approve any arse
allowed in the CH zone without specifying which use would go into any ~~iven
location. However, on March 19, 2001, the Town Council of Town determined that
Ordinance No. 2060 requires that retai and office uses be distributed iii 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 fo low:
Page l of
1. The Undersigns aclaiowledge:
A. That, in exchange for receipt of this General Release, Town s11a11 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 bui ding 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 ~~~ith
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 unc~ei•sgned
expressly waives the provisions of section 1542 of the California Civil Code, which reads
as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICI [ TL-IC
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN I-IIS L~AVOR A"h
THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN TO [-LIM
MUST HAVE MATERIALLY AFFECTED HIS SETTLENICNT WI"['I-I T[-IE
DEBTOR.
The Undersigns ackiaowledge 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 ofthe claims or causes of action
being released, and that they have not assigned or otherwise transferred said claims or causes
of actions.
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4. The LJndersisns i~grec that, relating to the a~,ove described incidelil anc] i~ialtcrs, lhcy ~vrl l furl,
at any time tl~ereaYter, CO171nlCnCB, m;tlnlalri OT~7rU5GCt1tC d1'1Y netlOn, 9tlaw{q' otlic~i'~~~isc, car
risen any claim ag<<inst the Town het~eul released and/or execute or enfor~~ any, judgir~ont.
P.05
5. 'l'he Undera~~ns :hereby authorise and clit'ect their respcciive atlal•neys lv tlisrtii,y~ wily
hccjltdice :any aetic~n they nay .have .filed against Town concerning the dispute des~ribcd
above ii1 this Ceuecal Releaso.
6. Thr UiyderSi~ns acr~by ~clcnowlcdge and agree that the parries to ~u~y actions iiicd ~-ird
dismissed ntusuant to this Geiicral Release shall each bear tl~rir own ~uoi7~ey tees t,nci Cnslr
in oo~uicction with saki lawstitil(s) and this comPrviaise settlcn~ent end role~sc.
7. 'hhe Undersigns u~~dcrstand a~~d agree that this C~encral Release sets 1'a•tit 1i~e full and
comrlete agreeme~Zt or the parties, and that no statements orrzpresentation, otl~cr th;ui thotie
GOI1GSlli~d 11~reill, have been n~adz or relied u~Un vy the Undersibns ar an Indc~ccm~`nt l'ur
executing lliis G~t1Era1 l~clc~se.
8. ~Jndeisigns hereby aver that this Gene~•al Release s1~a11 bincl andbe Uiiicli~~o tipou iheirhrir,
neasonal repie$cntatives, mouse, executors, adcni,nislrators, and assi;it5, tend shall inure to
the beACfit of their agetus, employees, scrv~ant5 and successors,
~, The Undersigns hereby aclcnowleelsetitattliey 1~avediscusscdthi5 G'cnerf~l ltcJr~-se w~itli thCir
couttscl, who leas e~cplained this document. andthc Undet•signs herchy ac1<ttuwled~c th~it they
uudcrstand ali oCthe terms atiad conditions o~'tlus General Release :and tht~t this is tt tOlttl and
final settlcnzent anal canlnrotni9e of 111 claims being rclease~l.
HA'I'L"D; April , ZOn7
A~ccpted and aPpt~ovc~l by '1'owat of Los
Gatos:
Joe I~ilzyAsl.i, Mayer
Approved as w foriti:
0 ' . Korb, '1'owi1 Aitoney
~G/ ~ ~
VJ%lliain 1~. Hirschman
lrli abc h I~. ~o~lson
as
R.1'rr~ott ~c~ C~uiScl j'`or L` i~til~ctlt
K. Do son Williat F. Ilirsclwa~an
I'1~c~ 3 ~~f 3