1 SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release (hereinafter "the Agreement") is entered into by and between Plaintiff, CITY OF PIEDMONT, CALIFORNIA, and its respective City entities, agents, servants, employees, and counsel (hereinafter "CITY"); and Defendants BRET BERESFORD-WOOD, as an individual and as trustee of the BRET AND ELISABETH BERESFORD-WOOD FAMILY TRUST, and ELISABETH BERESFORD-WOOD (hereinafter collectively referred to as "BFW"). BFW and the CITY shall be collectively referred to herein as the "SETTLING PARTIES" and individually referred to herein as a "SETTLING PARTY." RECITALS A. On or about September 11, 2012, BFW filed an action against BROWN BUILDERS, INC. ("hereinafter BROWN") for negligence, breach of construction contract, and express indemnity, among other causes of action, seeking damages arising from a landslide that occurred on or about April 13, 2012 ("the Landslide"), on BFW's property, located at 3 Maxwelton Road, Piedmont, CA (the"bfw Property"). The action is entitled Beresford-Wood v. Brown Builders, Inc., Alameda County Superior Court Case No. RG Thereafter, on April 18, 2013, the CITY filed a separate action and complaint. against BFW for recovery of alleged landslide debris clean-up costs, related engineering fees, and permit fees, that purportedly resulted or arose from the Landslide mass spreading to the City's Property at the base of the slope, including Moroga Avenue (the"city Property"). The lawsuit is entitled Citv of Piedmont v Beresford-Wood et. al, Alameda County Superior Court Case No. RG , and will hereinafter be referred to as the "Action." Subsequently, on or about June 25, 2013, BFW filed across-complaint in the Action, against BROWN, for express indemnity, equitable indemnity, and declaratory relief. On or about August 6, 2013, the Alameda County Superior Court issued an Order granting BFW's Motion to consolidate the two actions for all purposes, under the lead case Beresford-Wood v. Brown Builders Inc., Alameda County Superior Court Case No. RG The consolidated cases will hereinafter be referred to as the "Consolidated Lawsuits." B. For purposes of this Agreement, the term "Claims" is defined herein to include any and all claims that have been made or could have been made by either of the SETTLING PARTIES, for themselves, and their representatives, successors, assigns and agents, heirs, trustors, trustees, beneficiaries, officers, directors, employees, attorneys, insurers, sureties, consultants, and advisors, and each of them, against the other SETTLING PARTY in the Action and/or the Consolidated Lawsuits for alleged damages pertaining to the Landslide, the BFW Property, and/or the CITY Property, including but not limited to, all claims, cross-claims, actions, cross-actions, causes of action, complaints, cross-complaints, damages, demands, liabilities, obligations, indemnity, debts, liens, attorney fees, permit fees, engineering fees, cleanup costs, repair costs, transportation expenses, expert fees, utility costs, court costs, and/or other expenses of any kind, whether known or unknown, suspected or unsuspected, and whether sought through equity, contract, and/or in tort.
2 C. The SETTLING PARTIES acknowledge and understand that BFW has its own separate claims against BROWN for damages, including but not limited to Landslide repair costs, indemnity, and other losses, that are not the subject of this Agreement, or the release contained herein. NOW, THEREFORE, IN CONSIDERATION OF SAID RECITALS, COVENANTS, AND UNDERTAKINGS HEREINAFTER SET FORTH, THE PARTIES AGREE AS FOLLOWS: AGREEMENT 1. For and in consideration of the payment of the total sum of forty-thousand dollars ($40,000.00) ("the Settlement Payment"), by the insurance provider for BFW to the CITY, the CITY shall file a request for dismissal of its First Amended Complaint and/or operative Complaint against BFW in the Consolidated Lawsuits with prejudice. The insurance provider for BFW shall remit the Settlement Payment to the CITY within thirty (30) days of the execution of this Agreement by the CITY. Within five (5) days of the receipt of the Settlement Payment, the CITY shall file a request for dismissal of its First Amended Complaint and/or operative Complaint in the Consolidated Lawsuits against BFW with prejudice. 2. The SETTLING PARTIES, for themselves, and their representatives, successors, assigns and agents, heirs, trustors, trustees, beneficiaries, officers, directors, employees, attorneys, insurers, sureties, consultants, advisors, and each of them, do hereby fully release, waive, covenant not to sue, and forever discharge the other SETTLING PARTY, and its representatives, successors, assigns and agents, heirs, trustors, trustees, beneficiaries, officers, directors, employees, attorneys, insurers, sureties, consultants, and advisors, from any and all Claims as defined herein. This mutual release will hereinafter be referred to as the "Release." a.) The Release does not extend to the pending claims, complaints, causes of action, and damages sought by BFW against BROWN for any injuries, loss, and/or damages allegedly sustained by BFW as a result of BROWN'S alleged negligent or willful acts or omissions, indemnity, or breaches of contract, and BFW's operative Complaint and/or Crosscomplaint against BROWN shall remain in full force and effect. The Release does not extend to any claim that BFW may have against its own insurance providers) arising from or related to the Landslide. b.) The SETTLING PARTIES recognize that this is a settlement of disputed Claims of any and all damages allegedly incurred by the SETTLING PARTIES as more fully defined in Paragraph B above, and is not intended to be a general release of claims other than those Claims defined and expressly released herein. c.) The CITY has represented and coveted that it will not pursue BROWN for damages related to or arising from the Landslide, and/or related alleged damages to the CITY Property, and BFW has relied upon that representation as a material term to this Agreement. The CITY's covenant not to pursue BROWN as set forth in this paragraph, is without prejudice to 2
3 BFW's right to pursue BROWN for recovery of any claims or damages arising from the Landslide, including but not limited to indemnity for those alleged damages claimed by the CITY in the Consolidated Lawsuits. d.) It is understood between the SETTLING PARTIES that the CITY has no obligation to pay any sums of money to BFW or BROWN for any claims arising from the Landslide, the BFW Property, the City Property, the Action, and/or the Consolidated Lawsuits, including, but not limited to, any payment, refund, or remittance of any deposits made by BFW or BROWN to the CITY. 3. The SETTLING PARTIES understand Civil Code Section 1542 and expressly waive its provisions as to Claims released herein, which provide: 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. The SETTLING PARTIES acknowledge that they may hereafter discover facts different from, or in addition to, those which they now believe to be true with respect to the release of the Claims herein, and agree that this Agreement shall remain effective in all respects, notwithstanding such different or additional facts, or the discovery thereof. 4. The SETTLING PARTIES understand that the amount of this settlement is a compromise settlement of disputed claims, and further agree that this settlement is not to be considered as an admission of any responsibility by BFW whatsoever, in whole or in part, for the Landslide and/or any resulting claims or damages, and that BFW expressly denies any wrongdoing or liability whatsoever. 5. Except as otherwise set forth herein, each SETTLING PARTY shall bear his, her, and/or its own attorney's fees, court costs, and related expenses, and any dismissals that are filed in accordance with this Agreement, shall indicate such. 6. All of the SETTLING PARTIES to this Agreement, through their attorneys of record, have participated in the preparation of this Agreement. In the event of any dispute or disagreement involving the construction of this document, no inference will be drawn from the fact that any SETTLING PARTY had particular responsibility for its preparation. 7. This Agreement has been negotiated and executed in the State of California, and the rights and obligations of the SETTLING PARTIES hereto shall be construed and enforced in accordance with the laws of the State of California. 8. This Agreement contains the entire agreement between the SETTLING PARTIES, their agents and representatives, and it is agreed that the terms of the Agreement are contractual and not a mere recital. 3
4 9. The SETTLING PARTIES fiu~ther represent and warrant that they have not assigned to any other person or party all or any portion of any claim against the released SETTLING PARTIES. 10. This Agreement can be amended only by a writing signed by each of the SETTLING PARTIES hereto. 11. This Agreement may be executed in counterparts, and when each SETTLING PARTY has signed and delivered at least one such counterpart, each counterpart sha11 be deemed an original and when taken together with other signed counterparts sha11 constitute one agreement which shall be binding upon and effective as to all parties thereto. 12. Facsimile signatures and signatures submitted via electronic transmission will be acceptable and binding with respect to the enforceability of this Agreement. Such signatures shall be deemed originals, equally admissible in evidence under the California Evidence Code, pursuant to sripulation of the SETTLING PARTIES. 14. If for any reason any provision of this Agreement shall be construed as unenforceable, the remainder of its terms shall nonetheless be deemed enforceable and remain in effect. 15. The persons signing and executing this Agreement hereby represent and acknowledge that they have authority, on behalf of their respective SETTLING PARTY and/or entities, to sign on their behalf and said Agreement is duly binding thereon. 16. Good Faith Settlement: The SETTLING PARTIES herein stipulate, acknowledge, and agree that the settlement recited herein constitutes a good faith settlement as defined under California Code of Civil Procedure Sections 877 and 877.6, and the SETTLING PARTIES agree to assist each other with the preparation of an Application for Good Faith Settlement, should it become necessary to file one. IN WITNESS OF THEIR AGREEMENT TO THE FOREGOING TERMS, THE PARTIES HAVE EXECUTED THIS AGREEMENT AS INDICATED BEL~Vt~: DATE: ~'~~ ~ ` ~ ~` ~ ~ CITY OF PIEDMONT, CALIFORNIA By: f Print Name: ~'"'~~~"~"~ ~ ~ ~ ~~~' Print Title: ~ ~ ~~ ~ '~ ~'~`~~~` ~
5 DATE: :,~:- ~ ~' P ~-I ::~.~ j y BR.F' 1' BETZESPORD- W 001,.,..,,~...~...~..._.. ~ r DATE: _ ~_~,_.~~,;~ z ~ + y ~LTSABE"I'T-I I3~R:F;SFORU-WOOD ~' f.---- ~._._'',~ ~,... l/ I BRE7' and ~~LISA13~;7~H BERESI-~OKD-V~'C~OD t~aj~~it1~1' 'l RL~S`C ~~rk~vi:ll AS Tn CONT7~N"C.A~tv rorz~v~: :, L,, ~,~;~ ~r_. Wit: ~ ` <'~:~~ r ~iv t-,~ -- BURKL~, WTLLIAMS & SOREr~SEN, LIP ~~~ By: Michel e Marchetta Kenyoia; Esq Mean A. Burke, Esq. Attorneys for CITY OF PIHDMUVT, C;AT_I}~O(ZNIA C'Lt~PP MOKONEY BELLAGA~9}3A VUCINICT-I ~~EMAN SCHELEY '~3y: James G. Lu i, Esq. Att rnevs for ~3R1;`l 13ERESP012D-IVOOD, as an ~i vidual and as trustee of the t~3rct AND ELISAF3ETH f3~rfsfc)rd-wood FAs~11LY TRUST, and ELISABFTI-1 BERE~SfiOIZI~-WOOD