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FREELAND COOPER & FOREMAN LLP
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150 Spear Street, Suite 1800
San Francisco, California 94105
won we NY NN NN YV SE |
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Mark I. Schickman (CSB #62653)
Cathleen S. Yonahara (CSB #203802)
FREELAND COOPER & FOREMAN LLP
150 Spear Street, Suite 1800
San Francisco, California 94105
Telephone: (415) 541-0200
Facsimile: (415) 495-4332
Email: schickman@freelandlaw.com
yonahara@freelandlaw.com
Attorneys for Defendant and Cross-Complainant
PROGRESS GLASS COMPANY, INC.
ELECTRONICALLY
FILED
Superior Court of Caitfornia,
County of San Francisco
10/28/2015
Clerk of the Court
BY:CAROL BALISTRERI
Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO
WINCO WINDOW COMPANY, INC., a
Corporation,
Vv.
PROGRESS GLASS CO., INC., a California
Corporation; NIBBI BROS, INC. a California
Corporation; LIBERTY MUTUAL
INSURANCE CO. a Surety Company; and
DOES 1 to 100, inclusive,
Defendants.
AND RELATED CROSS-ACTION.
A settlement is being entered into among NIBBI BROS., INC.
CASE NO.: CGC 14-537120
DISCLOSURE OF SLIDING SCALE
RECOVERY AGREEMENT
GLASS CO., INC. ("PROGRESS") and LIBERTY MUTUAL INSURANCE CO. ("LIBERTY").
NIBBI, PROGRESS and LIBERTY are not in the relative position of Plaintiff and alleged joint
tortfeasor and, therefore, by its terms, CCP § 877.5 does not appear to apply to them. Nonetheless,
they disclose that the terms of the settlement are materially as follows:
Q)
amount of the outstanding contract price and approved change orders,
PROGRESS dismisses its claims against NIBBI for $1
claim for $767,217 in unapproved change orders, and any other claims against NIBBI
in connection with the Natoma and Mission Bay Block 2 Projects;
(2)
PROGRESS agrees to defend an
d indemnify NIBBI against WINCO WINDOW
DISCLOSURE OF SLIDING SCALE ECOVERY AGREEMENT [CCP 877.5]; Case No. CGC-14-537120
{00230292 2}
("NIBBI"), PROGRESS
,372,455 constituting the
as well as itsFREELAND COOPER & FOREMAN LLP
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150 Spear Street, Suite 1800
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San Francisco, California 94105
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(3)
4)
(5)
(6)
7)
COMPANY, INC:'s ("WINCO") claim made against it in this action;
PROGRESS dismisses its action against the surety, LIBERTY;
NIBBI pays PROGRESS $240,000 (Two Hundred Forty Thousand Dollars);
NIBBI dismisses its claims against PROGRESS except for those claims caused by
WINCO'S delays; NIBBI will not enforce against PROGRESS any award on those
remaining claims;
NIBBI assigns to PROGRESS all of its rights, claims and damages against WINCO in
connection with the Natoma and Mission Bay Block 2 Projects;
If any damages or offsets against WINCO’s claims are considered by the fact finder:
(a) If a verdict is rendered in WINCO's favor, NIBBI shall be responsible for
paying fifty percent (50%) of that judgment, on a dollar-for-dollar basis, up to
the first $404,401 (Four Hundred and Four Thousand Four Hundred and One
Dollars).
(b) If delay damages of more than $804,401 (Eight Hundred and Four Thousand
Four Hundred and One Dollars) are awarded against WINCO such that it
receives nothing by its Complaint and pays PROGRESS $400,000 or more,
NIBBI will receive on a dollar-for-dollar basis 50% of the amount by which the
award for contract, compensatory or actual damages exceeds $804,401 (Eight
Hundred and Four Thousand Four Hundred and One Dollars).
Dated: October 1s 2015 FREELAND COOPER & FOREMAN LLP
pond A-——
MARK I. SCHICKMAN
Attorney for Defendant and Cross-Complainant
PROGRESS GLASS COMPANY, INC.
FISHER & KONG LLP
By: Lan aA E En
Raymond E. Kong
Attorneys for Defendants and Cross-Defendants NIBBI
BROS. ASSOCIATES, INC., LIBERTY MUTUAL
INSURANCE CO.
DISCLOSURE OF SLIDING SCALE RECOVERY AGREEMENT [CCP 877.5]; Case No. CGC-T4-537120
{00230292 2}FREELAND COOPER & FOREMAN LLP
150 Spear Street, Suite 1800
San Francisco, California 94105
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CERTIFICATE OF SERVICE
Tam employed in the City and County of San Francisco, State of California. I am over the age
of eighteen and not a party to the within action; my business address is 150 Spear Street, Suite 1800,
San Francisco, California 94105,
On October 2%, 2015 I served the foregoing document described as follows:
DISCLOSURE OF SLIDING SCALE RECOVERY AGREEMENT
by placing a true and correct copy thereof enclosed in a sealed envelope addressed to the party(ies) of
record whose name(s) and address(es) appear below:
Raymond E. Kong David F. Myers
Fisher & Kong LLP Wolkin Curran, LLP
1970 Broadway, Suite 1040 555 Montgomery Street, Suite 1100
Oakland, CA 94612 San Francisco, CA 94111
Attorney for Defendants Attorney for Plaintiff; Winco Window
Nibbi Bros, Associates, Inc. and Liberty Company, Inc.
Mutual Insurance Co.
{X] [BY MAIL - CCP § 1013a] I caused such sealed envelope with postage thereon fully prepaid to
be placed in the United States mail at San Francisco, California, for collection and mailing to the
office of addressee(s) on the date shown herein following ordinary business practice.
(_] [BY FEDEX (Overnight Delivery) - CCP § 1013(c)] I caused such envelope to be delivered to
the Federal Express Office in San Francisco, California, with whom we have a direct billing
account, to be delivered on the next business day.
[-] [BY E-MAIL or ELECTRONIC TRANSMISSION] Based on a court order or agreement of the
parties to accept service by e-mail or electronic transmission, I caused the documents to be sent
to the persons at the email addresses listed above. I did not receive within a reasonable time after
the transmission, any electronic message or other indication that the transmission was
unsuccessful.
{X] [STATE] I declare under penalty of perjury under the laws of the State of California that the
above is true and correct.
[] [FEDERAL] Service was made under the direction of a member of the bar of this Court who is
admitted to practice and is not a party to this cause.
Executed on October_3372015 at San Francisco, Californi
JENNIFER J. RYAN
{00230292 2}
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FREELAND COOPER & FOREMAN LLP 12 3a a ® GB 150 Spear Street, Suite 1800 San Francisco, California 94105 won we NY NN NN YV SE | BRB Yaak 8 YH = Oo DO Mark I. Schickman (CSB #62653) Cathleen S. Yonahara (CSB #203802) FREELAND COOPER & FOREMAN LLP 150 Spear Street, Suite 1800 San Francisco, California 94105 Telephone: (415) 541-0200 Facsimile: (415) 495-4332 Email: schickman@freelandlaw.com yonahara@freelandlaw.com Attorneys for Defendant and Cross-Complainant PROGRESS GLASS COMPANY, INC. ELECTRONICALLY FILED Superior Court of Caitfornia, County of San Francisco 10/28/2015 Clerk of the Court BY:CAROL BALISTRERI Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO WINCO WINDOW COMPANY, INC., a Corporation, Vv. PROGRESS GLASS CO., INC., a California Corporation; NIBBI BROS, INC. a California Corporation; LIBERTY MUTUAL INSURANCE CO. a Surety Company; and DOES 1 to 100, inclusive, Defendants. AND RELATED CROSS-ACTION. A settlement is being entered into among NIBBI BROS., INC. CASE NO.: CGC 14-537120 DISCLOSURE OF SLIDING SCALE RECOVERY AGREEMENT GLASS CO., INC. ("PROGRESS") and LIBERTY MUTUAL INSURANCE CO. ("LIBERTY"). NIBBI, PROGRESS and LIBERTY are not in the relative position of Plaintiff and alleged joint tortfeasor and, therefore, by its terms, CCP § 877.5 does not appear to apply to them. Nonetheless, they disclose that the terms of the settlement are materially as follows: Q) amount of the outstanding contract price and approved change orders, PROGRESS dismisses its claims against NIBBI for $1 claim for $767,217 in unapproved change orders, and any other claims against NIBBI in connection with the Natoma and Mission Bay Block 2 Projects; (2) PROGRESS agrees to defend an d indemnify NIBBI against WINCO WINDOW DISCLOSURE OF SLIDING SCALE ECOVERY AGREEMENT [CCP 877.5]; Case No. CGC-14-537120 {00230292 2} ("NIBBI"), PROGRESS ,372,455 constituting the as well as itsFREELAND COOPER & FOREMAN LLP Co em YN DH B® WN So Se an nk Ww 150 Spear Street, Suite 1800 Q San Francisco, California 94105 eo Oo (3) 4) (5) (6) 7) COMPANY, INC:'s ("WINCO") claim made against it in this action; PROGRESS dismisses its action against the surety, LIBERTY; NIBBI pays PROGRESS $240,000 (Two Hundred Forty Thousand Dollars); NIBBI dismisses its claims against PROGRESS except for those claims caused by WINCO'S delays; NIBBI will not enforce against PROGRESS any award on those remaining claims; NIBBI assigns to PROGRESS all of its rights, claims and damages against WINCO in connection with the Natoma and Mission Bay Block 2 Projects; If any damages or offsets against WINCO’s claims are considered by the fact finder: (a) If a verdict is rendered in WINCO's favor, NIBBI shall be responsible for paying fifty percent (50%) of that judgment, on a dollar-for-dollar basis, up to the first $404,401 (Four Hundred and Four Thousand Four Hundred and One Dollars). (b) If delay damages of more than $804,401 (Eight Hundred and Four Thousand Four Hundred and One Dollars) are awarded against WINCO such that it receives nothing by its Complaint and pays PROGRESS $400,000 or more, NIBBI will receive on a dollar-for-dollar basis 50% of the amount by which the award for contract, compensatory or actual damages exceeds $804,401 (Eight Hundred and Four Thousand Four Hundred and One Dollars). Dated: October 1s 2015 FREELAND COOPER & FOREMAN LLP pond A-—— MARK I. SCHICKMAN Attorney for Defendant and Cross-Complainant PROGRESS GLASS COMPANY, INC. FISHER & KONG LLP By: Lan aA E En Raymond E. Kong Attorneys for Defendants and Cross-Defendants NIBBI BROS. ASSOCIATES, INC., LIBERTY MUTUAL INSURANCE CO. DISCLOSURE OF SLIDING SCALE RECOVERY AGREEMENT [CCP 877.5]; Case No. CGC-T4-537120 {00230292 2}FREELAND COOPER & FOREMAN LLP 150 Spear Street, Suite 1800 San Francisco, California 94105 eo yA Hw 12 NY Dun B w NN NY NY N NY N NK KY =| ec ND DA A RB BH |= Sw CERTIFICATE OF SERVICE Tam employed in the City and County of San Francisco, State of California. I am over the age of eighteen and not a party to the within action; my business address is 150 Spear Street, Suite 1800, San Francisco, California 94105, On October 2%, 2015 I served the foregoing document described as follows: DISCLOSURE OF SLIDING SCALE RECOVERY AGREEMENT by placing a true and correct copy thereof enclosed in a sealed envelope addressed to the party(ies) of record whose name(s) and address(es) appear below: Raymond E. Kong David F. Myers Fisher & Kong LLP Wolkin Curran, LLP 1970 Broadway, Suite 1040 555 Montgomery Street, Suite 1100 Oakland, CA 94612 San Francisco, CA 94111 Attorney for Defendants Attorney for Plaintiff; Winco Window Nibbi Bros, Associates, Inc. and Liberty Company, Inc. Mutual Insurance Co. {X] [BY MAIL - CCP § 1013a] I caused such sealed envelope with postage thereon fully prepaid to be placed in the United States mail at San Francisco, California, for collection and mailing to the office of addressee(s) on the date shown herein following ordinary business practice. (_] [BY FEDEX (Overnight Delivery) - CCP § 1013(c)] I caused such envelope to be delivered to the Federal Express Office in San Francisco, California, with whom we have a direct billing account, to be delivered on the next business day. [-] [BY E-MAIL or ELECTRONIC TRANSMISSION] Based on a court order or agreement of the parties to accept service by e-mail or electronic transmission, I caused the documents to be sent to the persons at the email addresses listed above. I did not receive within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. {X] [STATE] I declare under penalty of perjury under the laws of the State of California that the above is true and correct. [] [FEDERAL] Service was made under the direction of a member of the bar of this Court who is admitted to practice and is not a party to this cause. Executed on October_3372015 at San Francisco, Californi JENNIFER J. RYAN {00230292 2}