AddendumOw N OF
OS `G RSOS
COUNCIL AGENDA REPORT
DATE: FEBRUARY 28, 2014
MEETING DATE: 03/03/14
ITEM NO: s
ADDENDUM
TO: MAYOR AND TOWN COUNCIL]
FROM: GREG LARSON, TOWN MANAGER /�%U
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
RECOMMENDATION:
1. Accept report pursuant to California Elections Code § 9212
2. 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
3. Approve settlement agreement between Los Gatos Citizens for Responsible
Development, Albright Way Initiative Project Sponsors, and Town of Los Gatos, if one is
presented
PREPARED BY: ROBERT SCHULTZ
TOWN ATTORNEY
Reviewed by: =Assistant Town Manager own Attorney Finance
N:QNGR \AdminWorkFiles\2014 Council Reports\3 -3 Albright addendum staff mpmr.doc
PAGE 2
MAYOR AND TOWN COUNCIL
SUBJECT: REPORT AND ACTIONS REGARDING ALBRIGHT WAY INITIATIVE
FEBURARY 28, 2014
4. 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
5. Provide direction regarding A Town position on and /or submission of arguments
regarding the Albright Way ballot measure
ALTERNATIVE:
Alternatively, the Council may take the following action:
• Adopt the ordinance without alteration, using the Town's 2013 Project Environmental Report to
meet CEQA requirements.
BACKGROUND:
Los Gatos Citizens for Responsible Development, John Shepardson, Andrew Wu (Petitioners) filed a
lawsuit challenging the Town's approval of the Albright Way project on the grounds that the
environmental review was inadequate. The Petitioners then filed a second lawsuit claiming that the
Town did not follow the General Plan when approving the Albright Way project and did not have the
discretion to approve a project greater than 35 feet in the Controlled Manufacturing (CM) /Light
Industrial zone. The Town prevailed in both lawsuits at the Trial Court level. The Petitioners filed an
Appeal in the first lawsuit and the time has not expired for Petitioners to file an appeal in the second
lawsuit.
At the Planning Commission Meeting on February 12, 2014 and at the Council Meeting on Februaryl8,
2014, Petitioner John Shepardson and Andre Wu both stated under public comment that Petitioners
would dismiss the lawsuits if the Developer agreed to follow the Town Council's prior approval of the
Project. Based upon the representations made by Petitioners, the Town Attorney contacted Petitioners'
and LG Business Park LLC, and began discussing a global settlement agreement.
DISCUSSION:
A. Settlement Agreement
The parties have reached a proposed Settlement Agreement (Attachment 4) of the lawsuits entitled Los
Gatos Citizens For Responsible Development, John Shepardson, Andrew Wu vs. Town of Los Gatos
and LG Business Park LLC, Santa Clara Superior Court, Case No. 113 CV 252306 and Case No. 1 11CV
209214.
The Settlement Agreement meets the objectives stated by the Petitioners in that it requires the Developer
to construct the Albright Project in substantial conformance with the Town Council's approval in June
2013 and in exchange the Petitioners will dismiss the lawsuits that are currently pending on Appeal.
PAGE
MAYOR AND TOWN COUNCIL
SUBJECT: REPORT AND ACTIONS REGARDING ALBRIGHT WAY INITIATIVE
FEBURARY 28, 2014
The basic terms of the Settlement Agreement are as follows:
1. LG Business Park agrees the project will be in substantial conformance with the
Town Council's Conditions of Approval of the PD Zoning set forth in Ordinance 2216
through the Specific Plan implementation.
2. LG Business Park agrees that the proposed Specific Plan Initiative does not
rescind the 152 A &S Conditions of Approval (which also has been incorporated into the
Specific Plan Initiative) and therefore the project will be in substantial conformance with
the A &S Conditions of Approval.
3. LG Business Park agrees to pay Petitioners' counsel up to $ 125,000 for
attorneys' fees
4. LG Business Park will pay election costs associated with the Initiative up to
$80,000.
5. LG Business Park agrees to pay to the Town an additional $350,000 for the
Community Benefit Fund for the abandonment of the public right of way. Said funds to
be used for enhancement projects in the project area
6. LG Business Park will submit an application for the proposed pedestrian bridges
through the A &S process and pay the applicable community benefit fee for the bridges.
7. LG Business Park agrees that the Community Development Director shall
exercise the authority with respect to the substantial conformity determinations involving
the Project and the Specific Plan in the same manner that the Community Development
Director does in carrying out the duties of the Community Development Director with
respect to all other projects in the Town.
8. Petitioners agree to dismiss lawsuits.
9. Petitioners agree they will not file a legal action to challenge the Initiative.
10. Petitioners agree to not oppose the development of the Project as permitted by the
Initiative and the Town approvals.
11. The Town agrees to process all requests for permits and other approvals in an
expeditious manner.
12. The Town agrees to take no actions to oppose the Initiative, but individual
Council members may oppose or support the initiative.
13. Town agrees that it will not place a "counter — measure" on the ballot with respect
to the Project or Initiative.
Staff recommends that Town Council approve the attached Settlement Agreement. The Agreement with
signatures of all parties is available in the Clerk Administrator's Office.
B. Town Council Sponsored Initiative
If the Town Council approves the Settlement Agreement than the issue of whether the Town Council
should place a Town Sponsored Measure on the Ballot is moot since the Settlement Agreement
specifically states that the Town agrees not to place a "counter- measure" on the Ballot.
However, if the Town Council does not approve the attached Settlement Agreement, then the Council
should discuss and consider whether to place a Town Sponsored Measure on the Ballot.
PAGE 4
MAYOR AND TOWN COUNCIL
SUBJECT: REPORT AND ACTIONS REGARDING ALBRIGHT WAY INITIATIVE
FEBURARY 28, 2014
In that regard, the Council Ad Hoc Committee comprised of Mayor Leonardis and Council Member
Spector met twice with the Town Manager and Town Attorney to discuss a possible Town - sponsored
measure. The goal of the Committee was to propose changes to the Specific Plan Initiative that would
restore and preserve the originally approved Council Project. The Ad Hoc Committee determined there
were 4 areas that needed to be amended to the Specific Plan to maintain the Council's previously
approved project. The 4 areas are:
1. Approval of Bridges
2. Signage
3. Administrative process
4. Cap on Community Benefit Fees
Attached hereto (Attachment 5) are designated pages from the Specific Plan that the Town could include
in a Town sponsored measure that would restore and preserve the Town Council approved project. If
Council does decide to place a measure on the ballot it will need to prove direction to staff and a special
meeting will have to be set on March 5, 2014 to adopt a formal resolution approving the Town
sponsored measure for the June 3 election.
ENVIRONMENTAL ASSESSMENT:
The recommended action is not a project as defined under CEQA, and no further action is required.
FISCAL IMPACT:
Approval of the settlement agreement will allow the Town to recover the election costs incurred by the
Town for the Albright Specific Plan Initiative. In addition, the Town will receive $350,000 from the
developer for a Community Benefit Fund for enhancement projects that would benefit the project area.
If the Town does not approve the Settlement Agreement and places a Town Sponsored Measure on the
ballot then there will be additional cost of approximately $80,000.
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 Received with this Addendum:
4. Settlement Agreement (Signed Agreement is available in the Clerk Administrator's Office)
5. Proposed Changes to the Specific Plan
Distribution:
LezLi Logan, proponent
Philip Albanese, proponent
John Shepardson, Los Gatos Citizens for Responsible Development
Andrew Wu, Los Gatos Citizens for Responsible Development
SETTLEMENT AGREEMENT
This Settlement Agreement ( "Agreement ") is made and entered into as of March 3, 2014, (the
"Effective Date "), by and between Los Gatos Citizens for Responsible Development ( "LGCRD "), (which
includes John Shepardson and Andrew H. Wu, and no other individual entities), John Shepardson, and
Andrew H. Wu (collectively, "Petitioners "); the Town of Los Gatos and the Los Gatos Town Council
(jointly, "Los Gatos "); and LG Business Park, LLC, a Delaware limited liability company ( "LG ").
Petitioners, Los Gatos, and LG, and each of them, are referred to cumulatively as the "Parties" or
singularly as a "Party." The Parties intend by this Agreement to conclude finally and forever the lawsuits
entitled Los Gatos Citizens for Responsible Development v. Town of Los Gatos and Town Council for the
Town of Los Gatos, Santa Clara County Superior Court Case No. 1- 11 -CV- 209214, Sixth District Court
of Appeal Case No. H040127 ( "Los Gatos Citizens T') and Los Gatos Citizens for Responsible
Development, John Shepardson, Andrew H. Wu, and DOES 1 -5 v. Town of Los Gatos and DOES 1 -6,
Santa Clara County Superior Court Case No. 1- 13 -CV- 252306 ( "Los Gatos Citizens IF'; Los Gatos
Citizens I and Los Gatos Citizens II are referred to jointly as the "Litigation "), and to resolve, waive and
perpetually extinguish any and all claims between the Parties as provided for and covered in this
Agreement.
RECITALS
WHEREAS, LG owns and controls the property located at 90 -160 Albright Way and 14600
Winchester Boulevard, APNs 424 -31 -053, -054, -063, 424 -32 -038, -045, -049, -054, -059, -060, and -063
in the Town of Los Gatos, as more particularly shown and described on Exhibit A (the "Property");
WHEREAS, LG plans to construct a development project consisting of office /research and
development uses on the Property, as more particularly described in the Los Gatos Economic
Development and Jobs Retention Initiative (the "Project ");
WHEREAS, Los Gatos has granted and approved certain land use approvals for the Project,
including, but not limited to, Town Ordinance 2216, an Architecture and Site Approval, and a Tentative
Map Application Approval, and Los Gatos has certified an environmental impact report for the Project
under the California Environmental Quality Act (CEQA), and certain permits, including, but not limited
to, demolition, grading and building permits (collectively, the "Project Approvals ");
WHEREAS, on or about September 14, 2011, Los Gatos Citizens I was commenced against Los
Gatos and LG, challenging certain of Los Gatos' approvals for the Project under CEQA;
WHEREAS, on or about September 10, 2013, Petitioners filed a Notice of Appeal from an order
of the Santa Clara County Superior Court, issued on or about August 14, 2013, discharging the writ of
mandate previously issued in Los Gatos Citizens 1, and concurrently filed a Petition for Writ of
Supersedeas, which was denied by the Court of Appeal on January 31, 2014;
WHEREAS, on or about August 30, 2013, Los Gatos Citizens II was commenced against Los
Gatos and LG challenging certain Los Gatos' approvals of the Project under land use laws, and on or
about January 23, 2014, the Santa Clara County Superior Court entered an appealable judgment in favor
of Los Gatos and LG in Los Gatos Citizens H,
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 and 14600 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
ATTACHMENT
Specific Plan, which would permit the Project's development (the "Initiative "); and
WHEREAS, the purpose of this Agreement is to resolve finally and forever the existing
Litigation, to settle certain disputes involving the Project, and Initiative, and to allow development of the
Project to proceed.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and the mutual covenants, promises
and undertakings set forth herein and other consideration, the receipt and adequacy of which the Parties
hereby acknowledge, the Parties agree as follows.
The Parties' Obligations.
a. Mutual Releases of Claims. LG hereby releases Petitioners and any of
Petitioners' officers, board members, members, owners, principals, officials, directors, employees,
agents, attorneys and /or representatives, and each of them, (collectively, "Petitioners Released Parties ")
and Los Gatos and Los Gatos' elected officials, officers, board members, commissioners, members,
employees, agents, attorneys and/or representatives, and each of them, (collectively, "Los Gatos Released
Parties ") from any and all claims, lawsuits, demands, challenges, liabilities, damages, fees, costs, or
causes of action, known or unknown, that LG has or have against the Petitioners Released Parties or Los
Gatos Released Parties, or any of them, arising in any way from or related in any way to the existing
Litigation, the Project, the Project Approvals and/or the Property. Petitioners Released Parties hereby
release LG (including its subsidiaries, affiliates, successors in interest, and/or assigns) and any of LG's
officers, board members, members, owners, shareholders, partners, principals, officials, lenders, directors,
employees, agents, attorneys and/or representatives, and each of them, (collectively, "LG Released
Parties ") and the Los Gatos Released Parties from any and all claims, lawsuits, demands, challenges,
liabilities, damages, fees, costs, or causes of action, known or unknown, that the Petitioners Released
Parties or any of them has or have against the LG Released Parties and the Los Gatos Released Parties, or
any of them, arising in any way from or related in any way to the existing Litigation, the Project, the
Project Approvals and/or the Property. The Los Gatos Released Parties hereby releases Petitioners
Released Parties and LG Released Parties from any and all claims, lawsuits, demands, challenges,
liabilities, damages, fees, costs, or causes of action, known or unknown, that the Los Gatos Released
Parties has or have against the Petitioners Released Parties or LG Released Parties, or any of them, arising
in any way from or related in any way to the existing Litigation, the Project, the Project Approvals and/or
the Property.
The Parties represent, warrant, and agree that they have been fully advised by their attorneys of the
contents of California Civil Code section 1542 ( "Section 1542 "). Each of Petitioners, Los Gatos, and LG
expressly waives and relinquishes all rights and benefits under that section and any similar statute or
common law principle of similar effect of any state or territory of the United States with respect to the
claims released hereby. Section 1542 reads as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH
THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN
HIS OR HER FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE
MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE
DEBTOR.
Each of Petitioners, Los Gatos, and LG fully understands that the facts upon which this Agreement is
executed may hereafter be other than or different from the facts now believed by the Parties or their
counsel to be true and expressly accept and assume the risk of such possible difference in facts and agree
that this Agreement shall remain effective notwithstanding any such difference in facts. Each of
Petitioners, Los Gatos, and LG acknowledges and agree that this waiver is an essential and material term
of this release and the settlement that underlies it and that without such waiver the Agreement would not
have been accepted.
2. LG's Obligations and Riehts.
a. Community Benefit Payment. Provided that there is no default by Los
Gatos or Petitioners of their respective obligations pursuant to this Agreement, LG shall pay Three
Hundred and Fifty Thousand Dollars ($350,000) (the "Community Benefit Payment ") to Los Gatos
within thirty (30) days after issuance by Los Gatos of the certificate of occupancy for the first office
building of the Project. The Community Benefit Payment shall be used by Los Gatos for purposes
determined by Los Gatos, in its sole discretion, provided that: (i) such uses shall be related to the
Project's implementation, with high priority to traffic congestion; (ii) such uses shall be for the benefit of
the Los Gatos community; and (iii) such funds shall be expended in proximity to the Project. The
Community Benefit Payment shall be a full accord and satisfaction of any and all amounts owing to Los
Gatos as compensation for the abandonment /vacation of public rights of way and public service/utility
easements involving the Project, including without limitation the vacation of Albright Way and Albright
Court and all public service easements and public utility easements presently located therein or
temporarily relocated on the Property to facilitate construction of the Project. Los Gatos hereby waives
any further right to compensation for the abandonmentivacation of the public rights of way and public
utility /service easements as set forth in Town Ordinance 2216 and the Initiative. Nothing herein shall be
deemed to be an admission by LG of any amounts owing for the abandonment/vacation of Albright Way,
Albright Court, or any other public rights of ways or public utility /service easements as set forth in Town
Ordinance 2216 and the Initiative.
b. Proiect Scone.
(1) LG agrees that the Project shall not exceed 485,000 square feet
of usable office and/or research and development space, exclusive of not more than 4,000 square feet of
elevated walkways (i.e. pedestrian bridges) that may be constructed as part of the Project. LG further
agrees that the maximum height of the Project's buildings shall be as follows: Building 1 shall be no
higher than 50 feet; Building 2 shall be no higher than 65 feet; Building 3 shall be no higher than 65 feet;
and Building 4 shall be no higher than 50 feet, as more particularly shown on Exhibit B.
(2) The Parties agree that the report ordered by Los Gatos on the
Initiative pursuant to Elections Code Section 9212 (the "9212 Report," attached as Exhibit C confirms
that the Conditions of Approval of the PD Zoning set forth in Town Ordinance 2216 have been
incorporated into the Initiative. Therefore, if the Initiative prevails, the Project will be in substantial
conformance with the Conditions of Approval of the PD Zoning set forth in Town Ordinance 2216
through the Initiative's implementation. The Parties further agree that the Initiative does not rescind the
existing Architecture and Site review Conditions of Approval (which have been incorporated into the
Initiative). 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.
(3) LG agrees that no building signage shall be visible from State
Route 85 and/or State Route 17, as provided for in the Initiative (and Town Ordinance 2216).
C. Attorneys' Fees and Costs Payment. Provided that there is no default by
Los Gatos or Petitioners of their respective obligations pursuant to this Agreement, LG shall pay up to,
but no more than, One Hundred and Twenty Five Thousand Dollars ($125,000) to the Law Office of Rose
M. Zoia Attorney - Client Trust Account ( "Zoia "), counsel to Petitioners, for attorneys' fees and costs
incurred by Petitioners in connection with this Agreement and the Litigation, including fees to consulting
attorney Douglas Carstens. Within three (3) calendar days following the Effective Date, Petitioners or
Zoia shall submit an invoice to LG for such attorney's fees and costs with reasonable supporting
documentation. Within two (2) calendar days after Petitioners' providing written confirmation of the
dismissal with prejudice of Los Gatos Citizens I, as provided in Section 3.a, and provided that Petitioners
are not in breach of this Agreement, LG shall pay to Zoia and Carstens the invoiced amounts up to, but no
more than, $125,000. That payment shall pay in full accord and satisfaction of all amounts owing to Zoia
and Doug Carstens, and any other attorneys or consultants retained or consulted by Petitioners, by LG in
connection with this Agreement and the Litigation.
d. Pedestrian Bridges. LG may submit an application for three (3) proposed
elevated walkways (pedestrian bridges) through the Los Gatos Architecture and Site review process. LG
shall pay the applicable community development fee required by the Los Gatos Municipal Code for all
square footage associated with the pedestrian bridges. The aggregate enclosed square footage of the three
proposed elevated pedestrian bridges that are developed as part of the Project shall not exceed 4,000
square feet in the aggregate.
e. Election Costs. Provided that there is no default by Los Gatos of their
respective obligations pursuant to this Agreement, LG shall pay up to Eighty Thousand Dollars ($80,000)
to Los Gatos for costs incurred by Los Gatos in conducting the June 3, 2014, election on the Initiative.
Los Gatos shall submit an invoice to LG following such June 3, 2014 election detailing the actual costs
incurred by Los Gatos in conducting the election. LG shall pay such invoice within thirty (30) days of
receipt, provided, however, that LG shall have a reasonable right to review and audit such election
expenses. Nothing herein shall be construed to limit the right of LG to support the Initiative.
3. Petitioners' Obligations.
a. Dismissal of Los Gatos Citizens I Appeal. Within one (1) business day
after the Effective Date, Petitioners and LG shall file a notice of settlement in Los Gatos Citizens I and
within three (3) business days Petitioners and LG shall file a stipulated dismissal of Los Gatos Citizens I.
Within five (5) business days after the Effective Date, Petitioners shall obtain and provide to LG and Los
Gatos written court confirmation of the dismissal with prejudice of Los Gatos Citizens I such that the
judgment in favor of Los Gatos and LG in Los Gatos Citizens I is no longer subject to legal challenge.
b. Waiver of Anneal and Termination of Litigation. Petitioners hereby
irrevocably waive any and all rights to appeal from the judgments and orders in Los Gatos Citizens I and
Los Gatos Citizens IL Petitioners agree not to appeal the Superior Court determination in Los Gatos
Citizens IT Petitioners agree to execute any and all documents necessary or required to communicate to
any court or to any other person or entity that the Litigation is terminated in full.
C. Non - Opposition and Covenant Not to Sue. Petitioners agree not to file
any legal challenges to the Project Approvals, the proposed Specific Plan, or any legal challenges to the
Initiative. Petitioners reserve all rights to challenge the implementation of the Project to the extent that
the Project is not as permitted by the Project Approvals, the proposed Specific Plan or the Initiative, as
applicable. Petitioners agree not to oppose or challenge, by litigation, administrative process, or other
opposition, the implementation of the Project as permitted by the Project Approvals, proposed Specific
Plan or Initiative, as applicable, including the issuance of the building permits, demolition permits,
grading permits, site work permits, street vacations, parcels maps and any other approvals for the Project.
LGCRD, as an unincorporated association, shall not oppose the Initiative. However, its individual
members and supporters, reserve the right to exercise their Free Speech rights to express campaign
opposition to the Initiative, should they choose to do so. Nothing herein shall be construed to limit
Petitioners' ability to oppose: (1) an amendment to the Initiative, as set forth in Section 8.2.4 of Exhibit
D to the Initiative; or (2) any proposed changes to the Project made through the Architecture and Site
review, as set forth in Section 8.2.3 of Exhibit D to the Initiative. Petitioners shall not directly or
indirectly propose any amendments to the Initiative. Nothing herein shall be construed to limit the ability
of LGCRD, John Shepardson, and Andrew H. Wu to challenge any actions taken by LG during
construction if such construction is not as permitted by the Project Approvals, proposed Specific Plan or
Initiative, as applicable, including but not limited to demolition or grading that is not as permitted by the
Project Approvals, proposed Specific Plan or Initiative, as applicable, including all permits issued based
on the Project Approvals, proposed Specific Plan or Initiative, as applicable.
4. Los Gatos' Obligations.
a. Project Administration. Los Gatos shall process all requests for permits
and other approvals by LG necessary for implementation of the Project in an expeditious manner and in
good faith.
b. Non - Opposition. Los Gatos shall not take any actions to oppose or
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. Nothing herein shall be construed to limit the individual members
of the Town Council to support or oppose the Initiative.
5. Project Administration. The Parties agree that the Los Gatos Community Development
Director shall exercise authority with respect to the substantial conformity determinations for the Project
and the Albright Specific Plan in the same manner that the Los Gatos Community Development Director
does so in carrying out the duties of the Los Gatos Community Development Director with respect to all
other development projects in the Town of Los Gatos. Los Gatos has submitted public comments
received to -date to the consulting architect who Los Gatos has retained for the Project.
6. Attorneys' Fees and Costs: Enforcement of this Agreement. Except as expressly
provided elsewhere in this Agreement, the Petitioners and LG shall bear their own attorneys' fees and
costs in connection with the Project, the Litigation, and this Agreement. Except as provided by Section
2.c, Petitioners and LG waive any and all claims for attorneys' fees or costs they have or may have
against each other related in any way to the Litigation, the Property, and this Agreement. If any Party
perceives a breach of the Agreement, such Party shall give written notice of such breach and provide ten
(10) calendar days to cure the breach.
7. Entire Agreement. This Agreement: (a) constitutes the entire agreement between the
Parties concerning the subject matter hereof, (b) supersedes any previous oral or written agreements
concerning the subject matter hereof; and (c) shall not be modified except by a writing executed by the
Party(ies) to be bound thereby.
8. Benefited/Burdened Parties. This Agreement shall be binding upon and inure to the
benefit of each of the Parties and their respective representatives, heirs, devisees, successors and assigns.
9. Construction. Choice of Law and Venue. The terms of this Agreement are the product of
arms- length negotiations between the Parties, through their respective counsel of choice, and no provision
shall be construed against the drafter thereof. This Agreement shall be governed by and construed in
accordance with the laws of the State of California. The venue for any disputes concerning this
Agreement shall be in Santa Clara County.
10. Counterparts and Electronic Execution. This Agreement may be executed in counterparts
which, taken together, shall constitute one and the same agreement. This Agreement may also be
executed and/or delivered by facsimile and/or e-mail transmission and in such event all facsimile and /or
email signatures shall be deemed originals for all purposes hereof.
11. Authori ty. Each signatory to this Agreement represents and warrants that he or she is
authorized to sign this Agreement on behalf of the Party for which he or she is signing, and thereby to
bind that Party fully to the terms of this Agreement.
12. Severabilitv. If any term or provision in this Agreement is determined to be illegal or
unenforceable, all other terms and provisions in this Agreement shall remain effective and shall be
enforced to the full extent permitted by law.
13. No Prior Assignments. The Parties represent and warrant that they have not heretofore
assigned or transferred or purported to assign or transfer, to any other person, entity, firm or corporation
whatsoever, any claim, debt, liability, demand, obligation, expense, action or causes of action herein
released.
14. Further Assurances. The Parties shall promptly perform, execute and deliver or cause to
be performed, executed and/or delivered any and all acts, deeds and assurances, including the delivery of
any documents, as either Party may reasonably require in order to carry out the intent and purpose of this
Agreement.
15. Notices. All notices required under this Agreement must be in writing, and may be given
either personally or by registered or certified mail (return receipt requested) or facsimile. Any Party
hereto may at any time, by giving ten (10) days' written notice to the other Party hereto, designate any
other person or address in substitution of the address to which such notice shall be given. Such notices
shall be given to the Parties at their addresses set forth below:
To Petitioners:
Rose M. Zoia
Law Office of Rose M. Zoia
50 Old Courthouse Square
Suite 401
Santa Rosa, CA 95404
Andrew H. Wu, Esq.
925 W. Hedding St.
San Jose, CA 95126
John Shepardson,Esq.
59 N. Santa Cruz Ave., #Q
Los Gatos, CA 95030
To LG:
Andrew B. Sabey
Cox, Castle & Nicholson
555 California Street
10' Floor
San Francisco, CA 94104
To Los Gatos
Robert Schultz
Office of the Town Attorney
110 E. Main Street
Los Gatos, CA 95030
16. Nonwaiver. Unless otherwise expressly provided in this Agreement, no waiver by a
Party of any provision hereof shall be deemed to have been made unless expressed in writing and signed
by such Party. No delay or omission in the exercise of any right or remedy accruing to either Party upon
any breach under this Agreement shall impair such right or remedy or be construed as a waiver of any
such breach theretofore or thereafter occurring. The waiver by a part of any breach of any term, covenant
or condition herein stated shall not be deemed to be a waiver of any other term, covenant or condition.
[Signatures On The Following Page]
AGREED TO AND ACCEPTED AS OF THE EFFECTIVE DATE:
Los Gatos Citizens for Responsible Development LG Business Park, LLC
By: _
Title:
John Shepardson
John Shepardson, Individually
Andrew H. Wu
Andrew H. Wu, Individually
The Town of Los Gatos and Town Council
of Los Gatos
Signed:
Steve Leonardis, Mayor
APPROVED AS TO FORM:
Rose M. Zoia, Esq.
By:
Rose M. Zoia
Attorney for Los Gatos Citizens for Responsible
Development, John Shepardson, and Andrew H. Wu
Robert Schultz, Esq.
By:
Robert Schultz
Attorney for the Town of Los Gatos and
Town Council of Los Gatos
93
By: _
Title:
Andrew Sabey, Esq.
BY:
Andrew Sabey
Attorney for LG Business Park, LLC
Signed Agreement is available in the
Clerk Administrator's Office
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