10-041 Release Agreement, Patricia Sievert, 10301 Byrne Avenue RELEASE AGREEMENT
This Release Agreement ( "Agreement ") is entered into by and between Patricia Sievert
( "Sievert"), on the one hand, and the City of Cupertino and its officers, employees, agents, and
designees (collectively "City ") on the other.
1. PURPOSE: This Agreement reflects the City's agreement to repave a portion of
street depicted in Exhibit A to this Agreement, which is a preliminary plan for the proposed
improvements ( "Scope of Work ") and Sievert's agreement to withdraw her pending claim
regarding the matter. By entering into this Agreement and undertaking the Scope of Work, City
makes no representation that it owns, controls, possesses, or has any legal or other responsibility
for Sievert's property located at 10301 Byrne, Cupertino, California 95014 ( "Sievert Property")
and Sievert acknowledges that City has no responsibility for the Sievert Property, but the City
has the responsibility assigned it by law with respect to the street that constitute public streets
owned and controlled by the City.
2. TERM: The term of this Agreement shall begin when this Agreement is
executed and shall expire automatically when the Scope of Work is completed, except as to the
provisions hereof expressly stated to survive its expiration.
3. CITY'S RESPONSIBILITIES: City agrees to complete the Scope of Work in
an appropriate and workmanlike manner no later than August 30, 2010.
4. LIMITATION OF CITY'S RESPONSIBILITIES. Sievert agrees that City
shall have no responsibility for, control of, or liability for the Sievert Property and shall have no
liability for any unsafe condition of the Sievert Property or any injury to persons (including
death) or property arising from any such condition. Nothing in this Agreement or in the City's
performance of the Scope of Work shall be deemed an admission by the City that that there is or
was any defect in the street adjacent to the Sievers: Property or that it has or had responsibility
for, control of, or liability for the Sievert Property, or any other aspect of the Sievert Property
prior to the effective date of this Agreement or that its undertaking of this Agreement is other
than a voluntary action on its part to protect the Sievert Property and adjacent public and private
property from damage.
5. RELEASE. Except for the duties created by this Agreement, Sievert, on her
own behalf and on behalf of her predecessors, successors, assignees, insurers, and agents, hereby
releases and forever discharges the City and its officers, agents, attorneys, and employees, and
each of them, from any and all claims, debts, actions, demands, liabilities, obligations, and
causes of action, of whatever kind or nature arising prior to the date hereof, which they may
have, hold, or may hold in the future, whether known or unknown, suspected or unsuspected,
liquidated or unliquidated, asserted or not asserted, in law or equity, which are the subject of the
claim Sievert filed with City on October 21, 2009 (collectively, the "Released Claims "). This
mutual release shall survive the termination of the Agreement. Sievert hereby withdraws the
Claim she filed with City on October 21, 2009.
6. CIVIL CODE § 1542 WAIVER. Except as set forth above, Sievert forever
waives any and all benefits and rights she may have, now hold or in the future may hold that
concern, arise from or relate to the Released Claims by reason of California Civil Code § 1542,
which provides:
"A general release does not extend to claims which the creditor does not know or
suspect to exist in his favor at the time of executing the release, which if known
by him must have materially affected his settlement with the debtor."
Sievert understands that the facts giving rise to this Agreement might be found later to be
other than or different from the facts she now believes to be true, and that new facts might come
to her attention, and nonetheless she accepts and assumes the risk of such possible difference in
the facts and agrees that the release above shall be and remain effective, notwithstanding such
different or new facts.
7. RESERVATION OF RIGHT. Sievert reserves the right make a claim with
respect to the street adjacent to the Sievert Property should damage to the Sievert Property
allegedly arise from the condition of that street following the expiration of this Agreement.
8. NOTICES. Notices to Sievert shall be given to her at the following address:
10301 Byrne, Cupertino, California 95014. Notices to City shall be given to City Attorney, City
of Cupertino, 10300 Torre Avenue, Cupertino, CA 95014 -3202.
9. ENTIRE AGREEMENT. This Agreement represents the entire agreement
between the Sievert and City with respect to the subject matter hereof and supersedes all prior
agreements and understandings, whether oral or written, between them with respect to the
matters contained in this Agreement. Each party enters into this Agreement based solely upon
the representations set forth herein and upon each party's own independent investigation of any
and all facts such party deems material.
10. SEVERABILITY. If any part of this Agreement is declared invalid for any
reason, such invalidity shall not affect the validity of the remainder of the Agreement and, to that
end, the provisions of this Agreement are hereby declared to be severable.
11. SUCCESSOR AND ASSIGNS. All of the terms, covenants, and conditions of
this Agreement shall be binding upon the parties and their respective successors and assigns,
including, but not limited to, successors and assigns of Sievert's interest in the Sievert Property.
12. NO THIRD PARTY BENEFICIARIES. This Agreement is intended for the
benefit of the City, its officers, agents, and employees, Sievert, and the successors and assignees
of the City or Sievert, and for the benefit of no other person. No other person shall have the
rights of a third -party beneficiary under this Agreement.
IN WITNESS WHEREOF, Sievert and City have entered into this Agreement as of the date(s)
indicated below.
0C-73 3
Dated: .. 5-: I I , 201 O
City of Cupertino
City Manager
Date:
Attest:
Patricia Sievert
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