LAFCO - Settlement Agreement and ReleaseSETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement ( "Agreement "), dated as of 2016 ( "Effective Date "), is
entered into by Petitioner Local Agency Formation Commission of Santa Clara County
( "Petitioner" or "LAFCO"), and Respondent City of Gilroy and its City Council ( "Respondent"
or "City ") ( "LAFCO" and "City" are collectively referred to as the "Parties' and sometimes
individually referred to as a "Party") to fully settle the Action, as defined below, and release all
claims on the terms and conditions set forth below.
ARTICLE 1
BACKGROUND/RECITALS.
1.1 On or about December 7, 2015, the City adopted Resolution No. 2015 -63
certifying a Final Environmental Impact Report ( "EIR ") for the North Gilroy Neighborhood
District Urban Service Area Amendment ( "Project ") and Resolution 2015 -64 approving the
Project.
1.2 On January 13, 2016, LAFCO filed a Verified Petition and Complaint For
Declaratory Relief and Injunctive Relief entitled Local Agency Formation Commission of Santa
Clara County, v. City of Gilroy et. al., Case No..16CV290062, in the Santa Clara County
Superior Court ( "Action ").
1.3 In the Action, LAFCO alleges that the City, in adopting the above - referenced
Resolutions (hereinafter "Approvals ") violated California Environmental Quality Act (Public
Resource Code Section 21000 et seq. or "CEQA ") and the Guidelines of the Implementation of
CEQA (Title 14, Cal. Code of Regulations section 15000 et seq., or "Guidelines"). LAFCO
seeks declaratory and injunctive relief and a peremptory writ of mandate directing the City to
vacate its Approvals, and that the City comply with CEQA.
1.4 On January 25, 2016 the City adopted Resolution 2016 -06 rescinding Resolution
No. 2015 -63 and Resolution No. 2015 -64.
1.5 LAFCO and City have agreed to settle all matters and disputes between
themselves in order to achieve a full and complete resolution of all claims that have been
asserted or that could have been asserted by LAFCO in the Action with regard to the City's
Approvals.
NOW, THEREFORE, it is hereby stipulated and agreed by the Parties to this Agreement that the
Action shall be fully settled on the terms and conditions set forth in this Agreement.
ARTICLE 2
RECITALS/DEFINITIONS.
The recitals and definitions set forth above are incorporated herein by reference and are
made part of this Agreement.
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ARTICLE 3
NO ADMISSION OF WRONGDOING AND LIABILITY.
All Parties understand and agree that nothing in this Agreement, or in the execution of this
Agreement, shall constitute or be construed as an admission of error or wrongdoing by any Party
or of any inadequacy or impropriety in connection with City's Approvals. The Parties expressly
deny any fault or liability for any and all claims made in the Action and acknowledge that this
Agreement is the compromise of existing claims and that there was no adjudication on the merits
of any claim.
ARTICLE 4
CITY OBLIGATIONS.
Without admitting liability and in consideration of the terms of this Agreement, City shall
implement the following:
City agrees, as a full and final settlement of all outstanding claims, including any claims
for attorneys' fees and costs relating to the Action, to pay as a compromise and settlement
LAFCO's incurred attorneys' fees in the amount of twenty -four thousand and five
hundred dollars ($24,500) ( "Payment "). The Payment will be in the form of a check
made payable to Local Agency Formation Commission'of Santa Clara County to be
delivered to LAFCO's Executive Officer at the address noted above within fifteen (15)
business days of the date that the Parties have executed this Agreement and delivered
their respective signatures to each other.
ARTICLE 5
LAFCO'S OBLIGATIONS
Within fifteen (15) business days after receipt of the Payment, LAFCO shall file a dismissal of the
Action without prejudice.
ARTICLE 6
RELEASES
6.1 Except as set forth in this Agreement, LAFCO releases the City and their
respective owners, affiliates, members, council members, commissioners, officers, employees,
agents and attorneys from any and all claims, demands, liabilities, obligations, costs, expenses,
fees, actions, and/or causes of action that Petitioner has had.or have as of the effective date of
this Agreement arising out of, or connected to, the Action, whether known, unknown or
suspected.
'6.2 Except as set forth in this Agreement, the City releases LAFCO and its respective
owners, affiliates, members, council members, commissioners, officers, employees, agents and
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attorneys from any and all claims, demands, liabilities, obligations, costs, expenses, fees, actions,
and/or causes of action that the City have had or have as of the effective date of this Agreement
arising out of, or connected to, the Action, whether known, unknown or suspected.
6.3 Upon the Effective Date, each of the Parties has read and has otherwise been
informed of the meaning of Section 1542 of the California Civil Code, and has consulted with its
respective counsel, to the extent that counsel was desired, and understands the provisions of
Section 1542. Each of the Parties hereby expressly waives the rights and benefits conferred upon
it by the provisions of Section 1542 of the California Civil Code, which provides
"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."
ARTICLE 7
MISCELLANEOUS PROVISIONS
7.1 Notices: Any notice, request, or communication required to be given to either
Party under this Agreement shall be given in writing and shall be personally delivered or mailed
by prepaid registered or certified mail to the addresses below:.
Local Agency Formation Commission of Santa Clara County
Neelima Palacherla
Executive Officer
70 West Hedding Street
Eighth Floor, East Wing
San Jose, CA 95110
Mala Subramanian
Best Best & Krieger
2001 North Main Street, Suite 390
Walnut Creek, CA 94596
City of Gilroy
City of Gilroy
Attn: City Administrator
7.351 Rosanna Street
Gilroy, CA 95020
Andrew L. Faber
Berliner Cohen, LLP
Ten Almaden Boulevard, 11 Floor
San Jose, CA 95113 -2233
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7.2 Enforcement of Agreement: No action for breach of this Agreement shall be
brought or maintained until: (a) the non- breaching Party provides written notice to the breaching
Party which explains with particularity the nature of the claimed breach, and (b) within thirty
(30) days after receipt of said notice, the breaching Party fails to cure the claimed breach or, in
the case of a claimed breach which cannot be reasonably remedied within a thirty (30) day
period, the breaching Party fails to commence to cure the claimed breach within such thirty (30)
day period, and thereafter diligently complete the activities reasonably necessary to remedy the
claimed breach.
7.3 Limits: This Agreement shall not be construed as creating any right or benefit,
substantive or procedural, enforceable at law or in equity, by any Party other than those set forth
herein.
7.4 Entire Agreement: The Parties acknowledge that this Agreement is signed and
executed without reliance upon any actual or implied promises; warranties or representations
made by any of the Parties or by any representative of any of the Parties, other than those which
are expressly contained within this Agreement. This Agreement, including the true and correct
Recitals above, inclusive of all definitions, contained therein, that are incorporated by reference
herein as operative covenants and specifically relied upon by the Parties in executing this
Agreement, constitutes the entire agreement and understanding among and between the Parties
and supersedes any and all other agreements whether oral or written between the Parties.
7.5 Amendments and Modifications: This Agreement may only be amended or
modified through writing executed by all the Parties.
7.6 Choice of Forum: This Agreement shall be deemed to have been executed and
delivered within the State of California; the rights and obligations of the Parties hereunder shall
be governed, construed and enforced in accordance with the laws of the State of California. The
venue for any dispute arising from or related to this Agreement, its performance, and its
interpretation shall be the Superior Court of California, County of Santa Clara.
7.7 Damages: The Parties agree (i) that the, performance of the obligations of this
Agreement are paramount, (ii) that, in the event of a breach, monetary damages will provide
inadequate relief, and (iii) that each may seek equitable relief to enforce such obligations. In the
event of litigation to enforce this Agreement, the prevailing party shall be entitled to
reimbursement for costs and reasonable attorney's fees.
7.8 Authorized Si ng atory: Each Party represents and warrants to each other Party that
its signature to this Agreement has the authority to bind the Party, and this Agreement does in
fact bind the Party.
7.9 Execution in Counterparts: This Agreement may be executed in one or more
counterparts, which together shall be deemed one original agreement. Execution via facsimile
and electronic mail shall be acceptable to bind a Party as an original.
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IN WITNESS WHEREOF, the Parties, have executed this Settlement Agreement as of the date
specified on the first page of this Agreement.
Petitioner:
By
Local Agency 14irmation Commission
of Santa Clara Tounty
Respondent:
B
City of �Gabrtid d 6DYN7
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