ELMWOOD NEIGHBORHOOD ASSOCIATION V. CITY OF BERKELEY ALAMEDA COUNTY SUPERIOR COURT CASE NO. RG MUTUAL RELEASE AND SETTLEMENT AGREEMENT

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1 ELMWOOD NEIGHBORHOOD ASSOCIATION V. CITY OF BERKELEY ALAMEDA COUNTY SUPERIOR COURT CASE NO. RG MUTUAL This Release and Settlement Agreement ("AGREEMENT") is entered into by and between Defendant and Respondent CITY OF BERKELEY ( CITY ), Real Parties in Interest John Paluska and Belt and Suspenders, LLC, and John Gordon, individually, (collectively, "OWNER/OPERATOR"), Plaintiff and Petitioners Elmwood Neighborhood Association and its members, as defined in Section 15 below (collectively, ENA ). City, Owner/Operator and ENA are individually each a "Party," and collectively the "Parties." This AGREEMENT shall be effective as of the date last written below (the "EFFECTIVE DATE"). RECITALS A. OWNER/OPERATOR intends to operate a full-service restaurant in the building known as 2635 Ashby Avenue, Berkeley, California (the "RESTAURANT"). B. On December 12, 2013, CITY issued a use permit allowing OWNER/OPERATOR's proposed use (the "USE PERMIT"). C. On March 25, 2014, CITY's City Council denied an appeal of the grant of the USE PERMIT. D. On March 28, 2014, CITY filed a Notice of Determination for the USE PERMIT approval with the Alameda County Clerk's office. E. On April 28, 2014, ENA filed a Petition for Peremptory Writ of Mandate (the "ACTION") in Alameda County Superior Court challenging CITY's decisions. Mr. Robert Carter signed the verification of the Petition. The Court designated the Petition as Case Number RG F. The Parties desire to avoid further litigation or conflict and fully and finally settle this matter by entering into this AGREEMENT and carrying out its terms. G. Except for the City's explicit agreement in Section 2, the agreements in Sections 1 through 5 are solely between OWNER/OPERATOR and ENA. The City does not object to those agreements, but they are not binding on the City and do not constitute amendments to the USE PERMIT. Now, therefore, in reliance on the foregoing recitals, and for good and valuable consideration, the receipt and sufficiency of which the Parties acknowledge and accept, the Parties agree as follows. Page 1 of 7

2 AGREEMENT TERMS The Parties now agree to settle their dispute as follows: 1. Hours of Operation OWNER/OPERATOR shall close the restaurant to new customers at 10:00 p.m. Sunday through Thursday, and 10:30 p.m. Friday and Saturday, and shall place a "Closed" sign where visible to the public as of those times. 2. Parking OWNER/OPERATOR shall instruct its employees to park at least two blocks from the RESTAURANT and shall prohibit its employees from leaving work during their shift to move their car. OWNER/OPERATOR shall provide parking information for patrons on its website, including the location of off-street parking options. CITY staff shall review its method for controlling commercial parking in adjacent residential areas and how the an informational report to the City Council within twelve months. City shall provide a copy of the report to ENA when it is made available to the public. 3. Loading Zone OWNER/OPERATOR shall instruct its vendors and others making deliveries to OWNER/OPERATOR to avoid using the loading zone on the north side of Ashby Avenue in the same block as the RESTAURANT between 7:00 a.m. and 9:00 a.m. Monday through Friday. ENA acknowledges that OWNER/OPERATOR cannot guarantee that neither its vendors and their delivery vehicles nor the vendors and delivery vehicles of other businesses will use the loading zone during this time, and ENA agrees that the use of the loading zone during this time shall not constitute a breach of this AGREEMENT. If CITY at any time restricts the hours of the loading zone to less than 7:00 a.m. to 6:00 p.m., the requirement that OWNER/OPERATOR instruct its vendors to avoid using the loading zone in front of the RESTAURANT between 7:00 a.m. and 9:00 a.m. Monday through Friday shall not apply during the period of any such restriction. 4. Signage at Restaurant Exits The RESTAURANT shall post inside each public exit a sign easily readable to patrons leaving the RESTAURANT reminding them that the area around the Page 2 of 7

3 RESTAURANT includes residences and patrons should be mindful of that in terms of noise. 5. Alcohol Management Plan OWNER/OPERATOR shall take, complete and maintain the actions set forth in the attachment to that certain letter dated of even date with this Agreement regarding an alcohol management plan ("AMP"). OWNER/OPERATOR shall make a copy of the then-current AMP available to ENA, through its DESIGNATED LIAISON MEMBER, as defined in Section 15 below, upon request received not less than twelve months since the prior request from the DESIGNATED LIAISON MEMBER. This is for informational purposes only OWNER/OPERATOR shall have no further obligation to negotiate or revise the AMP. 6. Settlement as Full Satisfaction and Dismissal ENA agrees to accept the actions this AGREEMENT requires as full satisfaction of its claims made in its Complaint against CITY and OWNER/OPERATOR, as well as claims that could have been made against CITY and OWNER/OPERATOR in the ACTION. The DESIGNATED LIAISON MEMBER shall be the only individual authorized to contact OWNER/OPERATOR with respect to any aspect of this AGREEMENT, or compliance with, or enforcement of, this AGREEMENT. All other members of ENA, and any person or entity bound by this AGREEMENT as set forth herein, shall be prohibited from and shall refrain from contacting OWNER/OPERATOR or any other person or entity regarding any aspect of this AGREEMENT, or compliance with, or enforcement of, this AGREEMENT, except that ENA, through its attorney, may communicate with any administrative or legislative tribunal, including initiation of legal proceedings, when necessary to enforce this AGREEMENT. ENA's attorney shall maintain a list of ENA's members and other people bound by this AGREEMENT as set forth herein, which ENA's attorney shall provide to OWNER/OPERATOR's attorney. OWNER/OPERATOR's attorney agrees to keep the contents of the list confidential, except that, in the event of any legal or administrative challenge to the USE PERMIT, the AMP, the RESTAURANT, or this AGREEMENT, if any person on the list is alleged to have violated this AGREEMENT, OWNER/OPERATOR's attorney may, after having unsuccessfully sought to have the alleged breach cured or mitigated as specified below, disclose that person's name to the OWNER/OPERATOR and to the court or administrative tribunal to the extent necessary to defend OWNER/OPERATOR in such proceeding. If there is an alleged breach of this AGREEMENT, the party alleging the breach shall notify the party allegedly in breach and shall give that party a reasonable opportunity to cure or mitigate the reach, prior to taking any further action to enforce this AGREEMENT. Page 3 of 7

4 ENA shall file a Dismissal of the ACTION, with prejudice, within fifteen (15) days of OWNER/OPERATOR providing payment to ENA as set forth in Paragraph 9 of this AGREEMENT. ENA shall not, either as an entity or individually through any one or more of its members, oppose, challenge or interfere with, or encourage, support, or otherwise assist in the opposition or challenge of, or interference with, OWNER/OPERATOR's construction, opening and operation of the Restaurant in accordance with the Use Permit as approved on December 12, 2013, including, but not limited to, OWNER/OPERATOR's application to the California Department of Alcoholic Beverage Control, in any proceeding whatsoever, whether administrative, judicial or other. 7. Mutual Release CITY releases ENA and OWNER/OPERATOR, each individually, and officers, agents, and employees of each, from any and all claims, demands, and causes of action, whether based on tort, negligence, breach of contract, quiet title or any other legal theory, and whether for general, special, compensatory, or punitive damages, arising out of or in any way related to the ACTION, and all other claims or causes of action that are or could have been asserted in the ACTION. ENA releases CITY and OWNER/OPERATOR, each individually, and the officers, agents, and employees of each, from any and all claims, demands, and causes of action, whether based on tort, negligence, breach of contract, quiet title or any other legal theory, and whether for general, special, compensatory, or punitive damages, arising out of or in any way related to the ACTION, and all other claims or causes of action that are or could have been asserted in the ACTION. OWNER/OPERATOR releases CITY and ENA, each individually, and the officers, agents, and employees of each, from any and all claims, demands, and causes of action, whether based on tort, negligence, breach of contract, quiet title or any other legal theory, and whether for general, special, compensatory, or punitive damages, arising out of or in any way related to the ACTION, and all other claims or causes of action that are or could have been asserted in the ACTION. The releases in this Paragraph 7 shall not apply to actions to enforce this AGREEMENT. 8. Settlement as Compromise The Parties acknowledge and agree that the promises and obligations set forth herein and the execution of this AGREEMENT are the result of a compromise of disputed claims. Nothing in this AGREEMENT shall be deemed to be an admission of Page 4 of 7

5 liability on the part of any Party concerning any of the matters contained in the ACTION. 9. Attorney s Fees and Costs OWNER/OPERATOR agrees to pay ENA's reasonable attorney's fees and costs accrued in connection with the prosecution and defense of the ACTION, not to exceed $5,000, payable directly to the Law Offices of Stuart M. Flashman, upon submission and approval of attorney invoices. 10. Mutual Waiver of Unknown Existing Claims Each of the Parties expressly waives and assumes the risk of any and all claims for damages of any kind whatsoever, which might exist as to these matters as of this date, but which it does not know of or suspect to exist, whether through oversight, error, negligence, or otherwise, and which, if known, might materially affect each of their decisions to enter into this settlement. Each Party waives all rights under section 1542 of the Civil Code of California, which reads as follows: 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 OR HER MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR. 11. Warranty of Capacity to Execute Agreement Each Party, and its signing representative, represents and warrants that it has the right and authority to execute this AGREEMENT, and in so doing to bind all members of said Party's entity or organization to all terms and conditions of this AGREEMENT. 12. Representations Regarding Comprehension and Preparation of Document Each Party represents that the terms of this AGREEMENT have been completely read by the Party, and that these terms are fully understood and voluntarily accepted by the Party. Each Party and counsel for each Party has reviewed and revised, or had the opportunity to revise this AGREEMENT. Accordingly, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting Party is not applicable, and therefore, shall not be employed in the interpretation of this AGREEMENT or any amendment of it. Page 5 of 7

6 . 13. Entire Agreement and Enforceability This AGREEMENT contains the entire agreement of the Parties with regard to the matters set forth herein and may not be amended except by a writing executed by the Parties. The Parties intend for this AGREEMENT to be enforceable in Court. Each individual or entity who has contributed financially or otherwise the ACTION on behalf or in support of ENA, including, but not limited to paying attorney fees associated with the ACTION, shall be bound by this AGREEMENT. Each such individual shall execute a separate document that attaches and incorporates by reference this AGREEMENT and states that each such individual agrees to be, is, and shall be, bound to all terms and conditions of this AGREEMENT in the same manner as ENA is bound as a Party. Disclosure of this Agreement to individuals executing such a document shall not be deemed to be disclosure to a third party. 14. Counterparts This AGREEMENT may be executed in counterparts. Each signed copy shall have the force and effect of an original. 15. Definitions a. Members The members of ENA, for purposes of this Agreement, shall consist of all persons who have contributed financially or otherwise to the filing and prosecution of the Action by ENA. b. DESIGNATED LIAISON MEMBER ENA shall designate one member, the DESIGNATED LIAISON MEMBER, to serve as its liaison with OWNER/OPERATOR. ENA's attorney shall communicate the name and contact information of the DESIGNATED LIAISON MEMBER to OWNER/OPERATOR's attorney within five (5) days of the EFFECTIVE DATE. If ENA later wishes to change the DESIGNATED LIAISON MEMBER, either temporarily or permanently, it shall promptly notify OWNER/Operator s attorney of the change and, if temporary, the length of that change, but in no case less than five (5) days prior to the effective date of that change. SIGNATURES ON FOLLOWING PAGE(S) Page 6 of 7

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