Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
Desk Item
MEETING DATE: 03/03/14 ITEM NO: 5 DESK ITEM COUNCIL AGENDA REPORT DATE: MARCH 3, 2014 TO: MAYOR AND TOWN COUNCIL FROM: GREG LARSON, TOWN MANAGER /h 6)6"a ROBERT SCHULTZ, TOWN ATTORNEY SUBJECT: REPORT AND ACTIONS REGARDING ALBRIGHT WAY INITIATIVE A. ACCEPT REPORT PURSUANT TO CALIFORNIA ELECTIONS CODE § 9212 B. ADOPT RESOLUTION CALLING A SPECIAL ELECTION; REQUESTING THE COUNTY BOARD OF SUPERVISORS TO CONSOLIDATE THE SPECIAL MUNICIPAL ELECTION WITH THE JUNE 3, 2014 STATEWIDE DIRECT PRIMARY ELECTION; AND DIRECTING THE TOWN ATTORNEY TO PREPARE AN IMPARTIAL ANALYSIS C. APPROVE SETTLEMENT AGREEMENT BETWEEN LOS GATOS CITIZENS FOR RESPONSIBLE DEVELOPMENT, ALBRIGHT WAY INITIATIVE PROJECT SPONSORS, AND TOWN OF LOS GATOS, IF ONE IS PRESENTED D. ACCEPT REPORT FROM COUNCIL AD HOC COMMITTEE ON ALBRIGHT WAY INITIATIVE AND PROVIDE DIRECTION REGARDING PLACING A TOWN -SPONSORED INITIATIVE ON THE JUNE 3, 2014 BALLOT E. PROVIDE DIRECTION REGARDING A TOWN POSITION ON AND/OR SUBMISSION OF ARGUMENTS REGARDING THE ALBRIGHT WAY BALLOT MEASURE REMARKS: After the Settlement Agreement was executed by the Petitioners and LG Business Park, the Petitioners raised three concerns with the Settlement Agreement. The emails from Petitioners that raise these issues are included in Attachment 7. The issues raised in the emails are: 1. There is a grammatical error on the first page first paragraph; there should be an "or" between "... individual entities" and read "individuals or entities." 2. Petitioners wanted to confirm that they have the right to submit an Initiative to amend the Specific Plan if it passes and becomes enforceable. PREPARED BY: PAMELA JACOBS red Assistant Town Manager Reviewed by: Assistant Town Manager Town Attorney Finance C:1Users\pjacobs\AppData\Local\Microsoft \Windows\Temporary Internet Files\Content.0utlook1USB8088S13-3 Albright Desk Item statt report.doc PAGE 2 MAYOR AND TOWN COUNCIL SUBJECT: REPORT AND ACTIONS REGARDING ALBRIGHT WAY INITIATIVE MARCH 3, 2014 3. Petitioners wanted to confirm that the additional $350,000 Community Development Fund payment is in addition to the $485,000 that is required in the PD Approval and Specific Plan. All of the issues raised by Petitioners have been addressed between legal Counsels and are attached hereto as Attachment 6. In addition, the signature page for the Resolution Calling the Election provided with the staff report had an error, and an amended resolution is included with this desk item (Attachment 2 AMENDED). After the staff report and subsequent Addendum were prepared for this agenda item, additional public correspondence was received during the period from 12:01 p.m. Thursday, February 27 through 3:00 p.m. Monday, March 3 (Attachment 7). Attachments 1-3 (previously received): 1. Report Pursuant to California Elections Code § 9212 2. Resolution Calling the Election 3. Public comments received from 12:46 a.m. February 4, 2014 through 12:00 p.m. Thursday, February 27, 2014 Attachment 4 and 5 Received with Addendum dated February 28, 2014: 4. Settlement Agreement (Signed Agreement is available in the Clerk Administrator's Office) 5. Proposed Changes to the Specific Plan Attachment received with this Desk Item: 2. AMENDED RESOLUTION CALLING THE ELECTION 6. Albright Settlement Agreement Confirmation of Terms 7. Public comments received from 12:01 p.m. Thursday, February 27, 2014, through 3:00 p.m. Monday, March 3, 2014 Distribution: LezLi Logan, proponent Philip Albanese, proponent John Shepardson, Los Gatos Citizens for Responsible Development Andrew Wu, Los Gatos Citizens for Responsible Development RESOLUTION 2014-002 RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF LOS GATOS CALLING AND GIVING NOTICE OF ASPECIAL MUNICIPAL ELECTION TO BE HELD JUNE 3, 2014 FOR THE SUBMISSION TO THE VOTERS OF AN INITIATIVE AMENDING THE GENERAL PLAN AND ZONING CODE AND ADOPTING A SPECIFIC PLAN FOR DEVELOPMENT OF 90-160 ALBRIGHT WAY AND 14600 WINCHESTER BOULEVARD WHEREAS, On October 23, 2013, a Notice of Intent to Circulate a Petition titled "Amend the Los Gatos General Plan and Zoning Code and Adopt a Specific Plan for Development of 90- 160 Albright Way and 14600 Winchester Boulevard" (the "Initiative") was filed with the Town's Elections Official with a request that a title and summary be prepared for the measure; and WHEREAS, the Town Attorney provided a title and summary for the proposed Initiative to the proponents; and WHEREAS, the petitions regarding the Initiative were filed with the Elections Official on December 11, 2013, bearing unverified signatures; and WHEREAS, to qualify for the June 3, 2014, ballot, proponents were required to obtain signatures of fifteen percent (15%) of the registered voters of the Town and to include a request for a special election in their petition and the petition included that request; and WHEREAS, the Clerk Administrator and Town Attorney have found that the petition's form complies with the Elections Code; and WHEREAS, the County Elections Division has examined the records of voter registration and has certified that the Petition is signed by the requisite number of voters to qualify for a special election; and WHEREAS, the Town Council wishes to consolidate the Special Municipal Election with the Statewide Primary Election to be held June 3, 2014, and that the precincts, polling places and elections officers of the two elections be the same within the Town; and that the Santa Clara County Elections Department canvass the returns of the Special Municipal Election; and that the elections be held in all respects as if one election. NOW, THEREFORE, BE IT RESOLVED THAT the Town Council of the Town of Los Gatos does Declare, Determine and Order as Follows: SECTION 1. Pursuant to the laws of the State of California relating to general law cities, there is called and ordered to be held in the Town of Los Gatos, California, on Tuesday, June 3, 2014, a Special Municipal Election. ATTACHMENT 2 AMENDED SECTION 2: Pursuant to Elections Code § 9214, subdivision (b) and § 1405, subdivision (a)(1), the Town Council hereby orders the Initiative to be placed on the ballot without alteration and does order the following question submitted to the voters at the Special Municipal Election: Shall the Town's General Plan, General Plan Land Use Map, and Zoning Code and Map be amended and shall the Albright Specific Plan be adopted to provide land use rules for approximately 21.6 acres of land at 90-160 Albright Way and 14600 Winchester Boulevard. YES NO SECTION 3. The text of the ballot measure, without its exhibits, is attached to this resolution as Exhibit A. The text of the measure, without its exhibits, shall be printed in the ballot materials; copies of the exhibits to the measure shall be available for public inspection in the Clerk Administrator's office and on the Town's website at www.losgatosca.gov/AlbrightWaylnitiative. SECTION 4. The Town Council directs the Clerk Administrator to transmit a copy of the measure to the Town Attorney, and directs the Town Attorney to prepare an impartial analysis of the measure pursuant to Elections Code § 9280. SECTION 5. The initiative measure shall pass only if a majority of the votes cast by voters voting on the measure are "yes" votes. SECTION 6. Pursuant to § 10403 of the Elections Code, the Board of Supervisors of the County of Santa Clara is hereby requested to consent and agree to the consolidation of a Special Municipal Election with the Statewide Primary Election on Tuesday, June 3, 2014. SECTION 7. The County Elections Department is authorized to canvass the returns of the Special Municipal Election. The election shall be held in all respects as if there were only one election and only one form of ballot shall be used. SECTION 8. The Board of Supervisors is requested to issue instructions to the County Elections Department to take any and all steps necessary for the holding of the consolidated election. SECTION 9. The Town of Los Gatos recognizes that the additional costs will be incurred by the County by reason of the consolidation of the two elections and agrees to reimburse the County for its costs to do so. SECTION 10. The Clerk Administrator is hereby directed to file a certified copy of this Resolution with the Board of Supervisors and the County Election Department of the County of Santa Clara. SECTION 11. The ballots to be used at the election shall be in form and content as required by law. SECTION 12. The Clerk Administrator is authorized, instructed and directed to procure and furnish any and all official ballots, notices and printed matter and all supplies, equipment and paraphernalia that may be necessary to properly and lawfully conduct the election and to take all other necessary actions to place the measure on the June 3, 2014, ballot. SECTION 13. In all particulars not recited in this resolution, the election shall be held and conducted as provided by law for holding municipal elections. SECTION 14. The notice of the time and place of holding the election is given and the Clerk Administrator and County Elections Department are authorized, instructed and directed to give further or additional notice of the election, in time, form and manner as required by law. SECTION 15. The Council finds that this is not a project under the California Environmental Quality Act by virtue of the State CEQA Guidelines, 14 Code of California Regulations § 15378, subdivision (b)(3) and, therefore, no environmental impact assessment is necessary. PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Los Gatos, California, held on the 3rd day of March, 2014, by the following vote: COUNCIL MEMBERS: AYES: NAYS: ABSENT: ABSTAIN: SIGNED: MAYOR OF THE TOWN OF LOS GATOS LOS GATOS, CALIFORNIA ATTEST: CLERK ADMINISTRATOR OF THE TOWN OF LOS GATOS LOS GATOS, CALIFORNIA THIS PAGE INTENTIONALLY LEFT BLANK Law Office of Rose M Zoia 50 Old Courthouse Square, Suite 401 Santa Rosa, California 95404 707.526.5894 . fax 267.381.6097 rzoia@shcglobal.net George J. Mihisten Latham & Watkins 355 South Grand Avenue Los Angeles CA 90071 March 3, 2014 Rob Schultz Town Attorney Los Gatos Tdwn Hall 110 E. Main Street Los Gatos, CA 95030 RE: Albright Settlement Agreement: Confirmation of Terms Dear Couinsel: This confirms that, as a matter of law, if the Albright Way Initiative passes, it becomes law and anyone can then take action to repeal, amend or modify that law, Nothing in the Settlement Agreement dated March 3, 2014, including but not limited to paragraph 3.c., limits these rights. This also confirms that the $350,000 Community Benefit Fund discussed in paragraph 2.a. of the Settlement Agreement is in addition to the $450,000 required as part of the project approval and incorporated into the Initiative. Thank you. erytruly yours, Rose M. George Mihlsten Counsel for The Carlyle Group 1 Rob Schultz Los Gatos Town Attorney ATTACHMENT 6 George J. Mihlsten Direct Dial. +1 213.891.8196 george. mihisten(d lw. com LATHAM&WATKINSLLP March 3, 2014 Rose M. Zoia Law Office of Rose M. Zoia 50 Old Courthouse Square Suite 401 Santa Rosa, CA 95404 Rob Schultz Town Attorney Los Gatos Town Hall 110 E. Main Street Los Gatos, CA 95030 Re: Albright Settlement Agreement: Confirmation of Terms Dear Counsel: 355 South Grand Avenue Los Angeles, California 90071-1560 Tel +1.213.485.1234 Fax: +1.213.891.8763 www.lw.com FIRM / AFFILIATE OFFICES Abu Dhabi Milan Barcelona Moscow Beijing Munich Boston New Jersey Brussels New York Chicago Orange County Doha Paris Dubai Riyadh Dusseldorf Rome Frankfurt San Diego Hamburg San Francisco Hong Kong Shanghai Houston Silicon Valley London Singapore Los Angeles Tokyo Madrid Washington, D C. This confirms that if the Albright Way Initiative passes and becomes law, Petitioners can then take action by further initiative to repeal, amend, or modify that law. Nothing in the Settlement Agreement dated March 3, 2014, including but not limited to paragraph 3.c., limits these rights, provided however, in no event can Petitioners oppose or challenge, by litigation, administrative process, or other opposition, the Project as permitted by the Project Approvals, the proposed Specific Plan, or the Initiative, as applicable. This also confirms that the $350,000 Community Benefit Fund discussed in paragraph 2.a. of the Settlement Agreement is in addition to the $1 per square foot payment, up to $489,000 under the Project Approvals, the proposed Specific Plan, or the Initiative, required as a part of the Project Approvals and incorporated into the Initiative, and the Settlement Agreement. Rose M. Zoia Very truly yours, • ge J. Mihlsten of LATHAM & WATKINS LLP - L 411111 Counsel for the Petitioners Los Gatos Town Attorney Robert Schultz From: John Shepardson <shepardsonlaw@me.com> Sent: Saturday, March 01, 2014 1:39 PM To: Robert Schultz Cc: Steven Leonardis; Marcia Jensen; BSpector; Rose; <andrewwu@mindspring.com>; Lee Quintana Subject: Albright Settlement Agreement Rob: 1. Does paragraph 4(b) in Non -Opposition mean that the Town could never bring its own Initiative to amend Carlyle's Initiative? "b. Non -Opposition. Los Gatos shall not take any actions to oppose or otherwise challenge, directly or indirectly, whether by litigation, administrative process or opposition, or otherwise the Initiative. Los Gatos agrees that it shall not place a counter -initiative measure on the ballot with respect to the Project or the Initiative. Figure I would ask these questions as a concerned citizen before a deal is struck, then complain later about a misunderstanding. JS:) ATTACHMENT 7 i From: John Shepardson <shepardsonlaw@me.com> Sent: Saturday, March 01, 2014 3:19 PM To: Steven Leonardis; Marcia Jensen; Diane McNutt; Joe Pirzynski; BSpector; Council; Greg Larson Cc: <andrewwu@mindspring.com>; Rose Subject: Albright Dear Mr. Mayor and all: Please consider these ideas regarding the Albright matter. 1. Does paragraph 4(b) in Non -Opposition mean that the Town could never bring its own Initiative to amend Carlyle's Initiative? "b. Non -Opposition. Los Gatos shall not take any actions to oppose or otherwise challenge, directly or indirectly, whether by litigation, administrative process or opposition, or otherwise the Initiative. Los Gatos agrees that it shall not place a counter -initiative measure on the ballot with respect to the Project or the Initiative." Is it prudent for the Town to apparently give up any right to amend the Initiative with its own Initiative? Doesn't retaining the power to amend better ensure Carlyle will perform in compliance with Town standards? 2. We erred in failing to include an "or" between "individual entities" in defining LGCRD. Can that be addressed Monday night? 3. There is concern in our group that the $350K CB will not be considered new money, and interpreted as replacement of the approved $450K. We need to clarify and confirm $350,000 is new, additional, CB money. 4. I overlooked the language about being barred from pursuing any amendments to the Initiative, and we need to change. There is a single objectionable sentence: Pallas all mot d'sedly or ii redly propose lay amod■eats to tie Ihobive. (Delete) Add: Petitioners retain the ability to propose amendments to the Initiative if it passes. (this is a basic citizen's right, and important, because Carlyle has crafted the Initiative to only allow it be amended with another Initiative —does the Town wish to relinquish that power?). John Shepardson, Esq.:) �1� From: John Shepardson <shepardsonlaw@me.com> Sent: Saturday, March 01, 2014 4:50 PM To: Steven Leonardis; Marcia Jensen; BSpector; Council Cc: Robert Schultz; Rose; <andrewwu@mindspring.com> Subject: Albright Dear Mr. Mayor: Things to consider for the vote Monday night. Begin forwarded message: From: John Shepardson <shepardsonlaw(a�me.com> Subject: Albright Date: March 1, 2014 at 1:28:41 PM PST To: Robert Schultz <RSchultz(a losgatosca.gov>, Rose <rzoiasbcglobal.net> Cc: "<andrewwu(a�mindsprinq.com>" <andrewwu@mindsprinq.com> Rob: 3 things 1) We erred in failing to include an "or" between "individual entities" in defining LGCRD. Can that be addressed Monday night? 2) There is concern in our group that the $350K CB will not be considered new money, and interpreted as replacement of the approved $450K. We need to clarify and confirm new money. 3) I overlooked the language about being barred from pursuing any amendments to the Initiative, and we need to change. There is a single objectionable sentence: Petitioners shall not directly or indirectly propose any amendments to the Initiativfir. (Delete) Add: Petitioners retain the ability to propose amendments to the Initiative if it passes. (this is a basic citizen's right). JS From: John Shepardson <shepardsonlaw@me.com> Sent: Saturday, March 01, 2014 6:34 PM To: andrewwu@mindspring.com Cc: Robert Schultz; Rose Subject: Re: XO's Comment works On Mar 1, 2014, at 6:29 PM, Andrew H. Wu, J.D. <andrewwu u,mindspring.com> wrote: Second change @ p. 5 should read: "Petitioners may propose any amendments to the Initiative." Just correcting grammatical context in anticipation that change accepted by George. From: John Shepardson [mailto:shepardsonlaw©me.com] Sent: Saturday, March 01, 2014 6:24 PM To: Robert Schultz Cc: STEven Leonardis; BSpector; Marcia Jensen; Rose; <andrewwu@mindsoring.com> Subject: Re: Albright --Path to resolution & addressing concerns: Rob: One, small change in first paragraph: "Los Gatos Citizens for Responsible Development (`LGCRD'), which include John Shepardson and Andrew H. Wu, and no other individuals or entities)" Two, page 5, first full paragraph change "Petitioners shall not directly or indirectly propose any amendments to the Initiative" to "Petitioners may propose any amendments to the Initiative." Three, thank you for confirming the $350K is new CB money. I'm sorry to bother you on a weekend, and in the flurry of activity I did not see the first two errors, which was my fault. The good news is we have no contract yet, and hopefully Carlyle will agree to the these small changes. I do remain concerned as a citizen about the scope of 4b, as discussed in an earlier email. Thank you for your attention to this matter. John Shepardson Los Gatos Citizen ,/ 1 From: John Shepardson <shepardsonlaw@me.com> Sent: Saturday, March 01, 2014 6:41 PM To: Robert Schultz Cc: Steven Leonardis; BSpector; Marcia Jensen; Rose; <andrewwu@mindspring.com> Subject: Re: Albright --Path to resolution & addressing concerns: Rob: These amendments to the signed proposed contract will need to made to seal the deal, so in good faith I suggest George be made aware of them forthwith, and this term should be: "Petitioners may propose amendments to the Initiative." JS On Mar 1, 2014, at 6:23 PM, John Shepardson <shepardsonlaw(me.com> wrote: Rob: One, small change in first paragraph: "Los Gatos Citizens for Responsible Development (`LGCRD'), which include John Shepardson and Andrew H. Wu, and no other individuals or entities)" Two, page 5, first full paragraph change "Petitioners shall not directly or indirectly propose any amendments to the Initiative" to "Petitioners may propose any amendments to the Initiative." Three, thank you for confirming the $350K is new CB money. I'm sorry to bother you on a weekend, and in the flurry of activity I did not see the first two errors, which was my fault. The good news is we have no contract yet, and hopefully Carlyle will agree to the these small changes. I do remain concerned as a citizen about the scope of 4b, as discussed in an earlier email. Thank you for your attention to this matter. John Shepardson Los Gatos Citizen From: John Shepardson <shepardsonlaw@me.com> Sent: Saturday, March 01, 2014 11:00 PM To: Robert Schultz Subject: Re: XO's Comment Initiative is defined broadly in the agreement to include specific plan. Can u confirm your understanding with George? Sent from my iPhone On Mar 1, 2014, at 9:20 PM, Robert Schultz <RSchultz(a),losgatosca.gov> wrote: Guys you are completely misunderstand the term initiative. If the initiative passes it becomes law. That law can then be changed by an initiative by you or the Town. Sent from my iPhone On Mar 1, 2014, at 6:34 PM, "John Shepardson" <shepardsonlaw u,me.com> wrote: works On Mar 1, 2014, at 6:29 PM, Andrew H. Wu, J.D. <andrewwu@mindspring.com> wrote: Second change @ p. 5 should read: "Petitioners may propose any amendments to the Initiative." Just correcting grammatical context in anticipation that change accepted by George. From: John Shepardson [mailto:shepardsoniaw@me.com] Sent: Saturday, March 01, 2014 6:24 PM To: Robert Schultz Cc: STEven Leonardis; BSpector; Marcia Jensen; Rose; <andrewwu(&mindspring.com> Subject: Re: Albright --Path to resolution & addressing concerns: Rob: One, small change in first paragraph: "Los Gatos Citizens for Responsible Development (`LGCRD'), which include John Shepardson and Andrew H. Wu, and no other individuals or entities)" Two, page 5, first full paragraph change "Petitioners shall not directly or indirectly propose any amendments to the Initiative" to "Petitioners may propose any amendments to the Initiative." Three, thank you for confirming the $350K is new CB money. I'm sorry to bother you on a weekend, and in the flurry of activity I did not see the first two errors, which was my fault. The good news is we have no contract yet, and hopefully Carlyle will agree to the these small changes. I do remain concerned as a citizen about the scope of 4b, as discussed in an earlier email. Thank you for your attention to this matter. John Shepardson Los Gatos Citizen 2) a From: John Shepardson <shepardsonlaw@me.com> Sent: Sunday, March 02, 2014 12:39 AM To: Robert Schultz Cc: Steven Leonardis; BSpector; Marcia Jensen; Rose; <andrewwu@mindspring.com> Subject: Re: Albright --Path to resolution & addressing concerns: Rob: 1. I was previously authorized to speak directly to you, and so I do have the authority to communicate changes. 2. If your interpretation of the term Initiative is correct, then Carlyle should agree to the change re amending the Initiative. In the flurry of revisions, I didn't see the last changes to paragraph 3c. My email was failing --- changing over to a new computer --so I signed a signature page received by fax. JS Sent from my iPhone On Mar 1, 2014, at 11:09 PM, Robert Schultz <RSchultz cillosgatosca.gov> wrote: John, I disagree with your interpretation of the agreement and those changes must be proposed by your attorney . Rob Schultz Town Attorney Town of Los Gatos From: John Shepardson [shepardsonlaw@me.com] Sent: Saturday, March 01, 2014 6:41 PM To: Robert Schultz Cc: Steven Leonardis; BSpector; Marcia Jensen; Rose; <andrewwu@mindspring.com> Subject: Re: Albright --Path to resolution & addressing concerns: Rob: These amendments to the signed proposed contract will need to made to seal the deal, so in good faith I suggest George be made aware of them forthwith, and this term should be: "Petitioners may propose amendments to the Initiative." JS On Mar 1, 2014, at 6:23 PM, John Shepardson <shepardsonlaw(cume.com> wrote: 1 Rob: One, small change in first paragraph: "Los Gatos Citizens for Responsible Development (`LGCRD'), which include John Shepardson and Andrew H. Wu, and no other individuals or entities)" Two, page 5, first full paragraph change "Petitioners shall not directly or indirectly propose any amendments to the Initiative" to "Petitioners may propose any amendments to the Initiative." Three, thank you for confirming the $350K is new CB money. I'm sorry to bother you on a weekend, and in the flurry of activity I did not see the first two errors, which was my fault. The good news is we have no contract yet, and hopefully Carlyle will agree to the these small changes. I do remain concerned as a citizen about the scope of 4b, as discussed in an earlier email. Thank you for your attention to this matter. John Shepardson Los Gatos Citizen 2 From: John Shepardson <shepardsonlaw@me.com> Sent: Sunday, March 02, 2014 12:44 AM To: GEORGE.MIHLSTEN@Iw.com; Rose; Robert Schultz; <andrewwu@mindspring.com>; Steven Leonardis; Marcia Jensen; BSpector Subject: Albright George: Couple of small language changes: One, in first paragraph: "Los Gatos Citizens for Responsible Development (`LGCRD'), which include John Shepardson and Andrew H. Wu, and no other individuals or entities)" Two, page 5, first full paragraph change "Petitioners shall not directly or indirectly propose any amendments to the Initiative" to "Petitioners may propose amendments to the Initiative if it passes." John Sent from my iPhone From: John Shepardson <shepardsonlaw@me.com> Sent: Sunday, March 02, 2014 10:40 AM To: <andrewwu@mindspring.com>; Rose; Robert Schultz; GEORGE.MIHLSTEN@Iw.com; Steven Leonardis; Marcia Jensen; BSpector Subject: Voting Right Being Bought Off? Carlyle's broad proposed language says we cannot directly or indirectly support any amendments to the Initiative. S0000.. if in say 2 years an Initiative is placed on the Ballot, would we be in breach of the contract if we voted for amendments? Is our ability to vote as we see fit being bought off? Is that legal? Can u buy someone's voting right? JS Sent from my iPhone �h From: John Shepardson <shepardsonlaw@me.com> Sent: Sunday, March 02, 2014 11:21 AM To: Rose; <andrewwu@mindspring.com>; GEORGE.MIHLSTEN@Iw.com; Robert Schultz; BSpector; Marcia Jensen; Steven Leonardis Subject: CA Codes (elec:18540-18548) http://www.leginfo.ca.gov/cgi-bin/displaycode?section=elec&group=18001-19000&file=18540-18548 Coercion of voters right to public vote? Thoughts on the effect of Carlyle's language? Should we proceed in good faith with language that contractually requires a certain public vote if another Initiative down the road is placed on the Ballot? Isn't this is an important question raised by this language from Carlyle? IMHO all the more reason to make the 2 minor changes suggested. JS Sent from my iPhone i 1 i From: John Shepardson <shepardsonlaw@me.com> Sent: Sunday, March 02, 2014 2:05 PM To: Rose Cc: Robert Schultz; Steven Leonardis; Marcia Jensen; BSpector; <andrewwu@mindspring.com> Subject: Re: Albright Rose: 1. Please confirm with George Rob's interpretation that we have the right to propose amendments to the Initiative after it becomes enforceable, then reduce the confirmation to a writing. 2. Check with him on our joint concern about, and desire to correct, the grammatical error definition of LGCRD by adding (in bold) "...individuals or entities)" JS On Mar 2, 2014, at 12:06 PM, Robert Schultz <RSchultz@losgatosca.gov> wrote: The answer is NO. Amendments to this Initiative! You can propose, support and oppose any future initiative that was to deal with the Specific Plan if it passes and becomes law. Rob Schultz Town Attorney Town of Los Gatos From: John Shepardson [shepardsonlaw@me.com] Sent: Sunday, March 02, 2014 10:40 AM To: <andrewwu62),mindspring.com>; Rose; Robert Schultz; GEORGE.MIHLSTEN@lw.com; Steven Leonardis; Marcia Jensen; BSpector Subject: Voting Right Being Bought Off? Carlyle's broad proposed language says we cannot directly or indirectly support any amendments to the Initiative. S0000.. if in say 2 years an Initiative is placed on the Ballot, would we be in breach of the contract if we voted for amendments? Is our ability to vote as we see fit being bought off? Is that legal? Can u buy someone's voting right? JS From: John Shepardson <shepardsonlaw@me.com> Sent: Sunday, March 02, 2014 3:35 PM To: Rose; Robert Schultz Cc: <andrewwu@mindspring.com>; Steven Leonardis; Marcia Jensen; BSpector Subject: Re: Albright: Path to resolution: Proposed Amendment Attachments: Amend2Albright.pdf Dear Rose and Rob: This addresses our side's joint error on item 1, and my error on item 2. Carlyle should not have a problem with either, particularly if their interpretation is consistent with Rob's on No. 2. I suggest we forward this onto George ASAP so we can have a final agreement. If they don't agree to the Amendment prior to tomorrow's TC meeting, then my existing approvals and signatures, will be considered withdrawn. Other supporters and members of LGCRD want complete clarity and confirmation that they are not parties to the Settlement Agreement. JS ,1a Amendment to Settlement Agreement Petitioners, Los Gatos and LG amend the existing Settlement Agreement as follows: 1. "LGCRD" includes John Shepardson and Andrew H. Wu, and no other individuals or entities. 2. Petitioners are not barred from proposing directly or indirectly amendments to the Initiative once it goes into effect. JAn Shepardson on behalf of LGCRD Andrew H. Wu, Individually LG Business Park, LLC The Town of Los Gatos and Town Council of Los Gatos Signed: Steve Leonardis, Mayor Approved as to form: Rose M. Zoia, Attorney for Petitioners Andrew Sabey, Attorney for LG Robert Schultz, Attorney for Los Gatos aka From: John Shepardson <shepardsonlaw@me.com> Sent: Sunday, March 02, 2014 4:52 PM To: Robert Schultz Cc: Rose; <andrewwu@mindspring.com>; Steven Leonardis; Marcia Jensen; BSpector Subject: Re: Albright: Path to resolution: Proposed Amendment Attachments: SCOPYX225681.pdf Rob: One, hopefully Rose has already sent over the Amendment, and it will be approved before tomorrow's meeting, and we have a fully signed contract. Two, my group wants zero risk of being subject to the Settlement Agreement. Lest you think it just me, we, mistakenly stated "individual entities" instead of putting in language of "individuals or entities" for defining LGCRD. We immediately were alerted by a group member to this error, and immediately discussed an amendment then. Our position is reasonable, and consistent with your interpretation of our rights. We just want confirmation from Carlyle. See below, George took the position that the contract was not consummated until approved by the Town Council on Monday, so I respectfully disagree with your position that have not already conditionally withdrawn the approvals, and provided a new basis for contract. I have reviewed CACI 311 to confirm my position. Three, another possibility is the Town agree to defend and indemnify me, Andrew and LGCRD supporters and members if Carlyle has different interpretations than your's, and brings legal action. Four, I respectfully suggest the agreement is unclear, both on the scope of persons, and the right to propose amendments. Initiative is defined broadly to include the Specific Plan. If we are barred from amending the Initiative, then we are naturally barred from seeking amendments to the Specific Plan. The Ballot Initiative itself says (if it passes) that it can only be rescinded or amended by another Initiative. Thus, to me its clear if we can't propose amendments to the Initiative, then we can't change the SP. Five, the proposed Settlement Agreement states: WHEREAS, an Initiative to Amend the Los Gatos General Plan and Zoning Code and Adopt a Specific Plan for Development of 90-160 Albright Way an d14600 Winchester Boulevard was filed with the Town, has qualified and been certified for the ballot by elections officials, and will appear on the June 3, 2014 ballot in the Town of Los Gatos, and includes, among other things, the adoption of the Albright Specific Plan, which would permit the Project's development (the "Initiative"). Petitioners agree not to file any legal challenges to the Project Approvals, the Proposed Specific Plan, or any legal challenges to the Initiative. Petitioners shall not directly or indirectly propose any amendments to the Initiative. I3 Six, from the Ballot Initiative, Section 9 Amendment Prior to June 3, 2021, the provisions of this Initiative and the Amendments and Specific Plan that it adopts can be amended or repealed only by a majority of the voters of the Town voting in an election held in accordance with state law. On or after June 3, 2021, a vote of the people shall not be required to amend or repeal any portion of this Intiative, and this Initiative and the Amendments and Specific Plan that it adopts, including all exhibits thereto, may be amended or repealed by any procedures otherwise authorized by law. For the foregoing reasons, I think at best there is ambiguity, and at worst a holding other supporters subject to the agreement, and a barring of the right to seek amendments to the Initiative and Specific Plan after passage of the Initiative. Thank you for considering these thoughts. John From: GEORGE.MIHLSTEN(alw.com[mailto:GEORGE.MIHLSTENPIw.com] Sent: Friday, February 28, 2014 2:17 PM To: RSchultz©losgatosca.gov; rzoia@sbcglobal.net Subject: Executed Settlement Agreement Attached is the final executed Settlement Agreement by LG and its counsel, Andrew Sabey. This delivery is subject to our receipt of executed counterparts from Petitioner and their counsel today, approval by the Town Council on Monday and execution by the Town and its counsel on Monday. (emphasis added) Thanks to everyone. To comply with IRS regulations, we advise you that any discussion of Federal tax issues in this e-mail was not intended or written to be used, and cannot be used by you, (i) to avoid any penalties imposed under the Internal Revenue Code or (ii) to promote, market or recommend to another party any transaction or matter addressed herein. This email may contain material that is confidential, privileged and/or attorney work product for the sole use of the intended recipient. Any review, reliance or distribution by others or forwarding without express permission is strictly prohibited. If you are not the intended recipient, please contact the sender and delete all copies. Latham & Watkins LLP =13 As you can see there is no formed contract because it was subject to the TC's counsel's approval on Monday. I have communicated changes the contract because the contract has been consummated. The signed contract is an offer waiting acceptance. Since it On Mar 2, 2014, at 3:53 PM, Robert Schultz <RSchultzra)1osgatosca.gov> wrote: John, Your attorney is free to contact George and discuss your proposed amendments. As I have mentioned earlier I do not care what George's interpretation is as the agreement is quite clear. There are no other individuals or parties or groups subject to the agreement. The agreement only applies to this initiative. Please understand that existing approvals and signatures can not be withdrawn at this time. Rob Schultz Town Attorney Town of Los Gatos From: John Shepardson [shepardsonlaw@me.com] Sent: Sunday, March 02, 2014 3:35 PM To: Rose; Robert Schultz Cc: <andrewwu@mindspring.com>; Steven Leonardis; Marcia Jensen; BSpector Subject: Re: Albright: Path to resolution: Proposed Amendment Dear Rose and Rob: This addresses our side's joint error on item 1, and my error on item 2. Carlyle should not have a problem with either, particularly if their interpretation is consistent with Rob's on No. 2. I suggest we forward this onto George ASAP so we can have a final agreement. If they don't agree to the Amendment prior to tomorrow's TC meeting, then my existing approvals and signatures, will be considered withdrawn. Other supporters and members of LGCRD want complete clarity and confirmation that they are not parties to the Settlement Agreement. JS 3 THIS PAGE INTENTIONALLY LEFT BLANK From: Lee Quintana <Ieeandpaul@earthlink.net> Sent: Sunday, March 02, 2014 5:39 PM To: Robert Schultz Cc: Steven Leonardis Subject: A&S approval/settlement agreement Rob, Please excuse my asking clarification, but I am not sure of the meaning of several items in the Agreement . I would like to be sure I have a clear understanding of the Agreement before I write/submit any comments as a Desk Item. I would also like to thank you for the work you have done to bring about this settlement I. Section 2.b (2) states: "The Parties further agree that the Initiative does not rescind the existing Architecture and Site review Conditions of Approval Therefore, if the Initiative prevails, the Project will be in substantial conformance with the Architecture and Site review Conditions of Approval through the Initiative Implementation." Section 5 Project Administration states: "Los Gatos has submitted public comments received to -date to the consulting architect who Los Gatos has retained for the Project." Questions of how the above sections relate to pending approval of submitted A&S modification:. Please clarify. Given that Section 2.b(2) states that the A&S is in substantial conformance with the Specific Plan and the 2013 A&S conditions what does acknowledging that public comments have been forwarded to the consulting architect actually mean since the forwarded public comments almost exclusively refer to site planning rather than architecture and the revised plans by definition are substantially consistent with the 2013 A&S and the Specific Plan. Does the consulting architect have to approve the plans because they are substantially in conformance with the the 2013 A&S approval and the Specific Plan, if approved? Or does he have discretion to consider that would result in a better site plan which is also substantially in conformance with the Initiative and 2013 approvals? II. Clarify whether Section ( $350,00 Community Benefit) is in addition to not instead of the up to $485,000 in the approved Conditions of Approval. III. Is there a typo in the first sentence of the Settlement Agreement? What does "individual entities" mean. I would appreciate your understanding before I submit my comments as a desk item. Thank you, Lee 2 a From: John Shepardson <shepardsonlaw@me.com> Sent: Sunday, March 02, 2014 6:12 PM To: Robert Schultz Cc: Rose; <andrewwu@mindspring.com>; Steven Leonardis; Marcia Jensen; BSpector Subject: Re: Albright: Path to resolution: Proposed Amendment Rob: I appreciate your efforts. It may be coming down to the one issue of whether or not Petitioners retain the ability to propose directly or indirectly amendments to the Initiative in the future. In other words, assume it passes, and goes into effect. After a one year period of time, could another Initiative be brought by Petitioners relating to the Project, or are we giving up that right? It would be helpful to know your reasoning for your view. Thank you. JS On Mar 2, 2014, at 3:53 PM, Robert Schultz <RSchultz(i?losgatosca.gov> wrote: John, Your attorney is free to contact George and discuss your proposed amendments. As I have mentioned earlier I do not care what George's interpretation is as the agreement is quite clear. There are no other individuals orparties or groups to the agreement. The 9 P subject9 agreement only applies to this in.r_Please understand that existing approvals and signatures can not be withdrawn at this time. Rob Schultz Town Attorney Town of Los Gatos From: John Shepardson [shepardsonlaw@me.com] Sent: Sunday, March 02, 2014 3:35 PM To: Rose; Robert Schultz Cc: <andrewwu@mindspring.com>; Steven Leonardis; Marcia Jensen; BSpector Subject: Re: Albright: Path to resolution: Proposed Amendment la Dear Rose and Rob: This addresses our side's joint error on item 1, and my error on item 2. Carlyle should not have a problem with either, particularly if their interpretation is consistent with Rob's on No. 2. I suggest we forward this onto George ASAP so we can have a final agreement. If they don't agree to the Amendment prior to tomorrow's TC meeting, then my existing approvals and signatures, will be considered withdrawn. Other supporters and members of LGCRD want complete clarity and confirmation that they are not parties to the Settlement Agreement. JS From: John Shepardson <shepardsonlaw@me.com> Sent: Sunday, March 02, 2014 8:03 PM To: Robert Schultz Cc: Rose; <andrewwu@mindspring.com>; Steven Leonardis; Marcia Jensen; BSpector Subject: Re: Albright: Path to resolution: Proposed Amendment If it passes, after 1 year period of time, could Petitioners without breaching the contract propose directly or indirectly amendments to the Initiative or Specific Plan? JS On Mar 2, 2014, at 7:43 PM, Robert Schultz <RSchultz@losgatosca.gov> wrote: But the Town can so you could not and cannot advocate for it Sent from my iPhone On Mar 2, 2014, at 7:16 PM, "John Shepardson" <shepardsonlaw@me.com> wrote: What did he mean by amendments to the Initiative? The pending Initiative? How could that be? Does George not understand the law? JS On Feb 28, 2014, at 9:55 AM, Rose Zoia <rzoiagsbcglobal.net> wrote: Making progress. Talked with George. We are in conceptual agreement that if they violate the SP, the initiative, the ordinance, permits, you have the right to challenge. Their main objective is that you do not challenge the legality of the initiative. You can campaign against it, no problem - you can say, hey, don't vote for this. If they violate anything, you can challenge. They would like you to not propose amendments to the initiative. Not sure this is a dealbreaker, but George said they don't want amendments to the initiative. They are not seeking to regulate their behavior if any of it is outside the SP, the ordinance, initiative, permits. (emphasis added) On Mar 2, 2014, at 6:28 PM, Robert Schultz <RSchultz@losgatosca.gov> wrote: /a Anyone including Petitioners and Council can file a new initiative as early as the November election. An Initiative no longer is an Initiative once it passes it becomes law. That law can be changed by Initiative. It was never the intent of any parties to give up future modifications of the Specific plan if it passes. Rob Schultz Town Attorney Town of Los Gatos ,b, From: John Shepardson <shepardsonlaw@me.com> Sent: Sunday, March 02, 2014 10:26 PM To: Steven Leonardis; Council; Marcia Jensen; BSpector; Diane McNutt; Joe Pirzynski; Greg Larson; Robert Schultz Cc: <andrewwu@mindspring.com>; Rose Subject: Re: Albright Matter for 3/3/14 hearing Attachments: Amend2Albright.pdf Dear Mr. Mayor and Town Council: I apologize, as in rush to review and implement contract changes we made two minor mistakes. Thus, there are two minor changes that need to be made to our proposed signed settlement agreement. Please include this email as a desk item for tomorrow's meeting. Thank you for your attention to this matter. John Shepardson http://www.sos. ca.gov/elections/ballot-measures/initiative-guide.htm Initiative Effective Date An initiative measure approved by a majority vote takes effect the day after the election, unless the initiative measure provides otherwise. (cal. Const., art. II, § 10(a).) If the provisions of two or more measures approved at the same election conflict, those of the measure receiving the highest affirmative vote shall prevail. (Cal. Const., art. II, § 10(b).) The Legislature may amend or repeal an initiative statute by another statute; however, any proposed statute becomes effective only when approved by the voters, unless the initiative statute permits amendment or repeal without voter approval. (Cal. Const., art. II, § 10(c).) (emphasis added) 1 Amendment to Settlement Agreement Petitioners, Los Gatos and LG amend the existing Settlement Agreement as follows: 1. "LGCRD" includes John Shepardson and Andrew H. Wu, and no other individuals or entities. 2. Petitioners are not barred from proposing directly or indirectly amendments to the Initiative once it goes into effect. J in Shepardson on behalf of LGCRD Andrew H. Wu, Individually LG Business Park, LLC The Town of Los Gatos and Town Council of Los Gatos Signed: Steve Leonardis, Mayor Approved as to form: Rose M. Zoia, Attorney for Petitioners Andrew Sabey, Attorney for LG Robert Schultz, Attorney for Los Gatos ala From: John Shepardson <shepardsonlaw@me.com> Sent: Sunday, March 02, 2014 10:30 PM To: Robert Schultz Cc: Rose; <andrewwu@mindspring.com>; Steven Leonardis; Marcia Jensen; BSpector Subject: Re: Albright: Path to resolution: Proposed Amendment Can we get written confirmation from Carlyle on this, and scope of LGCRD? I think the proposed amendments make these issues crystal clear. We are open to ways to protect our rights and settle. We are on the same side with the Town. JS On Mar 2, 2014, at 9:59 PM, Robert Schultz <RSchultz@u,losgatosca.gov> wrote: You would not be proposing amendments to the initiative. The initiative would not longer exist. It would either fail and not become law or pass and become law. You can then repeal, amend or modify that law. Obviously, there is more to it then just proposing a law. Rob Schultz Town Attorney Town of Los Gatos From: John Shepardson [shepardsonlaw@me.com] Sent: Sunday, March 02, 2014 8:03 PM To: Robert Schultz Cc: Rose; <andrewwu©mindspring.com>; Steven Leonardis; Marcia Jensen; BSpector Subject: Re: Albright: Path to resolution: Proposed Amendment If it passes, after 1 year period of time, could Petitioners without breaching the contract propose directly or indirectly amendments to the Initiative or Specific Plan? JS On Mar 2, 2014, at 7:43 PM, Robert Schultz <RSchultz@losgatosca.gov> wrote: But the Town can so you could not and cannot advocate for it Sent from my iPhone On Mar 2, 2014, at 7:16 PM, "John Shepardson" <shepardsonlaw(c�,me.com> wrote: 1 6„ What did he mean by amendments to the Initiative? The pending Initiative? How could that be? Does George not understand the law? JS On Feb 28, 2014, at 9:55 AM, Rose Zoia <rzoia@sbcglobal.net> wrote: Making progress. Talked with George. We are in conceptual agreement that if they violate the SP, the initiative, the ordinance, permits, you have the right to challenge. Their main objective is that you do not challenge the legality of the initiative. You can campaign against it, no problem - you can say, hey, don't vote for this. If they violate anything, you can challenge. They would like you to not propose amendments to the initiative. Not sure this is a dealbreaker, but George said they don't want amendments to the initiative. They are not seeking to regulate their behavior if any of it is outside the SP, the ordinance, initiative, permits. (emphasis added) On Mar 2, 2014, at 6:28 PM, Robert Schultz <RSchultz@losgatosca.gov> wrote: Anyone including Petitioners and Council can file a new initiative as early as the November election. An Initiative no longer is an Initiative once it passes it becomes law. That law can be changed by Initiative. It was never the intent of any parties to give up future modifications of the Specific plan if it passes. Rob Schultz Town Attorney Town of Los Gatos From: Lee Quintana [mailto:Ieeandpauk earthlink.net] Sent: Monday, March 03, 2014 12:00 PM To: Steven Leonardis; Council Cc: Greg Larson; Attorney Subject: Other Business Agenda Item #5 March 3, 2014 Council Meeting Attached below are comments I wish to submit as a Desk Item for tonights meeting. Thank You, Lee Quintana 1 To: Major Leonardis and Town Council From: Lee Quintana Subject: Agenda Item #5 Other Business March 3, 2014 Council Meeting I would like to thank all who worked to bring the Settlement Agreement a reality in such a short period. I hope the Council will approve the agreement. I do have several questions, however, and would like some clarification on several points. Community Benefit: Please verify that the $350,000 referred to in the agreement is in addition to the Community Benefit in the 2013 approved Conditions of Approval. Petitioners: Is there a typo in the first sentence of the Settlement Agreement? Is there a missing word? What does "individual entities" mean? Modifications to Approved 2013 A&S application: Addition of bridges: While the proposed bridges appear to be consistent with the approved architectural style I believe they are a new feature Project approvals: If permits for the Albright project are issued prior to June under the existing prior approvals will that affect the Initiative, should it be approved? Revisions to approved plans: • It is not clear that any of the modifications suggested by the public have been, or will be, incorporated into the revised ASS approval. The suggested changes are to the site circulation and the parking plan. • Circulation system: While the suggested changes to the circulation system would require substantial revisions, the suggested revisions to the Parking Plan would not involve major changes to the site plan or changes to the architecture of the office and garage structures. • Parking Plan: The suggestions to the parking plan: 1. Would be substantially in compliance with the approved plans PD 2. Would substantially increase the landscape buffers adjacent to Charter Oaks and the Creek Trail. 3. Would not require any architectural changes to the office or garage structures. 4. Would be substantially consistent with the approved site plan. 5. Would be consistent with the minimum parking requirements of +/-1600 spaces and would provide sufficient parking for the anticipated employees even before consideration of the potential TMD program or aka