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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. :Page 2 of 3 APR-02-2001 14 29 TERRR LAW LLP ~; .. Y V v 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