On August 08, 2008 a Motion-Secondary was filed involving a dispute between Beacon Residential Community Association, Catellus Commericial Development Corp., Catellus Development Corporation, Catellus Operating Limited Partnership, Catellus Residential Construction, Inc., Catellus Third And King Investors Llc, Catellus Third And King Llc, Catellus Urban Development Corporation, Catellus Urban Development Group, Llc, A Delaware, Centurion Real Estate Investors Iv,Llc, Centurion Real Estate Partners, Llc, Mission Place Llc, Mission Place Mezzanine Llc, Mission Place Mezz Holdings Llc, Mission Place Partners Llc, Prologis, Shooter & Butts, Inc., Third And King Investors Llc, Third And King Investors, Llc, A Delaware Limited, Thyssenkrupp Elevator Corporation (Erroneously, Webcor Builders,Inc, Webcor Construction Inc., Webcor Construction, Inc Dba Webcor Builders, Window Solutions, Inc., and All Defendants See Scanned Documents, Allied Fire Protection, Anning-Johnson Company, Architectural Glass & Aluminum Co., Inc, Blue'S Roofing Company, Carefree Toland Pools, Inc., Catellus Commerical Development Corporation, Catellus Commericial Development Corp., Catellus Development Corporation, Catellus Operating Limited Partnership, Catellus Residential Construction, Inc., Catellus Third And King Investors Llc, Catellus Third And King Llc, Catellus Urban Development Corporation, Catellus Urban Development Group, Llc, A Delaware, Catellus Urban Development, Llc, Centurion Partners, Llc, Centurion Real Estate Investors Iv,Llc, Centurion Real Estate Partners, Llc, Creative Masonry, Inc, Critchfield Mechanical, Inc., Cupertino Electric,Inc., Does 1 Through 200, Does 52-200, Inclusive, F. Rodgers Corporation, F. Rodgers Corporation (Fka F. Rodgers Insulation, F. Rodgers Insulation Residential, Inc., Hks Architects, Inc, Hks, Inc, Hks, Inc Individually And Dba Hks Architects, Inc, J.W. Mcclenahan Co., Mission Place Llc, Mission Place Mezzanine Llc, Mission Place Mezz Holdings Llc, Mission Place Partners Llc, N.V. Heathorn, Inc., Poma Corporation, Prologis, Roofing Constructors, Inc. Dba Western, Shooter & Butts, Inc., Skidmore Owings & Merrill Llp, Skimore Owings & Merrill Llp, Third And King Investors Llc, Thyssen Krupp Elevator Corporation, Thyssenkrupp Elevator Corporation (Erroneously, Thyssenkrupp Elevators Corporation, Tractel Inc., Van-Mulder Sheet Metal, Inc., Webcor Builders,Inc, Webcor Construction Inc., Webcor Construction, Inc, Webcor Construction, Inc Dba Webcor Builders, Webcor Construction Inc.,Individually And Doing, Webcor Construction Lp Individually And Dba Webcor, Webcor Construction Partners Llc, West Coast Protective Coatings, Inc., Western Roofing Service, Window Solutions, Dba Window Solutions, Inc., Window Solutions, Inc., for CONSTRUCTION in the District Court of San Francisco County.
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William H. Staples (Bar No. 64633 wstaples@archernorris.com loana R. Mondescu (Bar No. 209471) imondescu@archernorris.com ELECTRONICALLY ARCHER NORRIS FILED A Professional Law Corporation Superior Court of California, 2033 North Main Street, Suite 800 County of San Francisco Walnut Creek, California 94596-3759 JAN 11 2013 Telephone: 925.930.6600 Clerk of the Court Facsimile: 925.930.6620 BY: ANNIE PASCUAL Deputy Clerk Attorneys for Defendant/Cross-Defendant ANNING-JOHNSON COMPANY SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO UNLIMITED JURISDICTION ~ COMPLEX LITIGATION BEACON RESIDENTIAL COMMUNITY Case No. CGC-08-478453 ASSOCIATION, RESPONSE OF ANNING-JOHNSON Plaintiff, COMPANY TO PLAINTIFF'S SEPARATE STATEMENT OF ADDITIONAL v. UNDISPUTED MATERIAL FACTS IN OPPOSITION TO MOTION FOR CATELLUS THIRD AND KING LLC, et SUMMARY ADJUDICATION al., Date: January 17, 2013 Defendants. Time: 9:30 a.m. Dept: 304 Assigned to Hon, Richard A. Kramer Dept.304 AND RELATED CROSS-ACTIONS. Defendant/Cross-Defendant ANNING-JOHNSON COMPANY (“AJ”) submits the following responses to PLAINTIFF'S Separate Statement of Additional Undisputed Material Facts pursuant to Code of Civil Procedure § 437c(b) in support of its Motion for Summary Adjudication. Wt Ml CHR858/1503603-1 i RESPONSE OF ANNING-JOHNSON COMPANY TO PLAINTIFF'S SEPARATE STATEMENToD fm NY DH BR BW ON il Plaintiffs Additional Undisputed Material Facts and Supporting Evidence ‘A¥’s Response and Supporting Evidence 1. An OCIP, or “wrap-up”, is an insurance program for a specific construction project purchased and administered by the project owner in connection with development of for sale housing. Supporting Evidence: Shim Decl., { 4. T. Disputed to the extent this purported fact is based on inadmissible evidence. See Objections to Shim Decl.. filed concurrently herewith, Objection No. 1. 3, One of the main benefits of the OCIP policy is to provide completed operations coverage to the extent of the 10 year statute of repose, during which a construction defect claim can be brought by the condominium owners’ associations and the individual purchasers of the condominium units. Supporting Evidence: Shim Decl., 5. 2, Disputed to the extent this purported fact 1s based on inadmissible evidence. See Objections to Shim Decl., filed concurrently herewith, Objection No. 2. 3. With respect to the construction of the Beacon Project at issue in this motion, an OCIP policy was purchased. Supporting Evidence: Shim Decl., § 6. 3. Disputed to the extent this purported fact is based on inadmissible evidence. See Objections to Shim Decl., filed concurrently herewith, Objection No. 3. Undisputed that the prime contract contained an OCIP insurance provision; however. irrelevant and immaterial for purposes of this motion. 4. in the Prime Contract with CATELLUS, WEBCOR agreed to contribute to the costs of an Owner Provided Liability Insurance Policy (OCIP) in lieu of a general liability insurance policy for the Subcontractor’s onsite work and deducted a credit for this amount from the amount due to the Subcontractors. Supporting Evidence: Bland Depo., at pp. 133:10— 11, attached as Exhibit “D” to Kaplan Decl. Brians Decl., Exh. B, Prime Contract, Exhibit C, Part 2, page 29. Shim Decl. 43-6. Hookins Decl., Exh. C., p. 3 (“Additional Provisions”, paragraphs 1 — 2 and “Mission Bay ~ Owner Controlled Insurance Program Summary,” attached thereto providing coverage for “10 years completed operations” (p. 1 of 3) 4. Undisputed that the prime contract contained an OCIP insurance provision; however, irrelevant and immaterial for purposes of this motion. Also, disputed to the extent that the presence of such provision in the agreement indicates knowledge or intent on the part of the contracting parties that the Project consists of condominiums. The Project was described in the Invitation to Bid as “a multi-level apartment project, 595 units ... .” Neither the invitation to bid, the Master Subcontract Agreement, nor the Work Authorizations agreements executed by AJ contained any references to condominiums. Supporting Evidence: Hookins Decl., 7, 10, 11, 15, Exs. A-D (emphasis added.) CHR858/1503603-1 2 RESPONSE OF ANNING-JOHNSON COMPANY TO PLAINTIFFS SEPARATE STATEMENToO Oo Rm ID Plaintiff's Additional Undisputed Material Facts and Supporting Evidence AJ’s Response and Supporting Evidence and “Bid Deduct Analysis & Reconciliation/Audit Process” attached thereto providing a detailed structure and process for the deduction of OCIP premiums from payments due to the subcontractor and “Contractor Enrollment Form” and “Insurance Premium Worksheet” attached thereto.) Blue Decl., Exh. B, at p. 2 “General Requirements” paragraph 1. Further disputed, as the description of the Project in the Master Contract Agreement reads verbatim as follows: “Residential All 595 residential units are currently intended to be rental, however. the entire project will be mapped for condominium purposes, providing Catellus with the flexibility to convert residential rental units to for-sale units in the event it becomes financially beneficial to do so. CUDG believes it is important, therefore, to design the project with conversion in mind. For example. average unit sizes (currently approximately 950 square fect) may be slightly higher at NI than at certain other rental projects, and oor to ceiling heights may be slightly greater. Initial unit finishes will be rental quality, as these are more conveniently (and more appropriately) modified upon conversion.” Supporting Evidence: Brians Decl. In Support Of Webcor’s MSA at (10. 11. Ex. B (Master Contract) “Exhibit A Project Description/Location Plan” at Bates No. CAT 032322. Also, disputed, to the extent that this purported fact is based on inadmissible evidence. See Objections to Shim Dect., filed concurrently herewith, Objection Nos, 1-3. 5. The Subcontracts between Webcor and the Subcontractors generally included language indicating that an OCIP policy had been purchased, that the Subcontractors were to enroll in this policy and account for their proportionate share of the this policy. Supporting Evidence: Hookins Decl., Exh. C., p. 3 “Additional Provisions”, paragraphs 1 ~ 2 and “Mission Bay — Owner Controlled Insurance Program Summary,” attached thereto providing coverage for “10 years completed operations” (p. 1 of 3) and “Bid Deduct Analysis & Reconciliation/Audit Process” attached thereto providing a detailed structure and process for the deduction of OCIP 5, Undisputed that the subcontracts generally included an insurance provision; however, irrelevant and immaterial for purposes of this motion. Also, disputed to the extent that the inclusion of such provision in the subcontract agreements indicates knowledge or intent on the part of the contracting parties that the Project consists of condominiums. The Project was described in the Invitation to Bid received by subcontractors as “a multi-level apartment project, 595 units ... .” Neither the invitation to bid, the Master Subcontract Agreement, nor the Work Authorizations agreements executed by CHR8S58/1503603-1 3 RESPONSE OF ANNING-JOHNSON COMPANY TO PLAINTIFF’S SEPARATE STATEMENTay nH wD Plaintiff's Additional Undisputed Material Facts and Supporting Evidence ‘AJ’s Response and Supporting Evidence “] premiums from payments due to the subcontractor and “Contractor Enrollment Form” and “Insurance Premium Worksheet” attached thereto.) Blue Decl., Exh. B, at p. 2 “General Requirements” paragraph 1. ‘AT contained any references to condominiums. Supporting Evidence: Hookins Deel., {{7, 10, 11, 15, Exs. A-D (emphasis added.) Further disputed, as the description of the Project in the Master Contract Agreement reads verbatim as follows: “Residential All 595 residential units are currently intended to be rental, however, the entire project will be mapped for condominium purposes, providing Catellus with the flexibility to convert residential rental units to for-sale units in the event it becomes financially beneficial to do so. CUDG believes it is important, therefore, to design the project with conversion in mind. For example, average unit sizes (currently approximately 950 square feet) may be slightly higher at N1 than at certain other rental projects, and floor to ceiling heights may be slightly greater. Initial unit finishes will be rental quality, as these are more conveniently (and more appropriately) modified upon conversion.” Supporting Evidence: Brians Decl. In Support Of Webcor’s MSA at 4910, 11, Ex. B (Master Contract) “Exhibit A Project Description/Location Plan” (at Bates No. CAT 032322.) (Emphasis added.) Also, disputed, to the extent that this purported fact is based on inadmissible evidence. See Objections to Shim Deel., filed concurrently herewith, Objection Nos. 1-3. 6. The Master Declaration for the Beacon Project recorded on November 15, 2002 specifically contemplates that development and sale of condominium units and the creation of a homeowners’ association such as Plaintiff. Supporting Evidence: Shim Decl., {7 & Exh. A 6. Disputed; the Master Declaration for Mission Bay, and not the Beacon, was recorded in November 2002. Further disputed, to the extent that this fact purports to establish that AJ or Webcor knew the units were condominiums at the time AJ submitted its bid proposals and entered into a subcontract with Webcor in January and CHR858/1503603-1 RESPONSE OF ANNING-JOHNSON COMPANY TO PLAINTIFF’S SEPARATE STATEMENTPlaintiff's Additional Undisputed Material Facts and Supporting Evidence AJ’s Response and Supporting Evidence September 2002, respectively. At the time it entered into its subcontract agreement with Webcor, there were no CC&Rs or associations in place. Supporting Evidence: Hookins Decl., §§7-11. 15 & Exs. A, C, D; see also, Shim Decl. at 7. Ex. A. Additionally, Catellus’ PMKs on issues of construction design and CC&Rs, Michael McCone and Seth Bland, respectively, testified that the Project was designed and contemplated from the beginning as consisting of rental units and that Catellus never had the intent to sell the units when the Project was designed and built: however, they recorded the CC&Rs thereatter to make it feasible for any potential future owner to sell the units as condominiums and to raise the value of the development. Their testimony is independently supported by the Master Agreement itself, which specifically states that “/ajll 595 residential units are currently intended to be rental, however, the entire project will be mapped for condominium purposes, providing Catellus with the flexibility to convert residential rental units to for-sale units in the event it becomes financially beneficial to do so.” Supporting Evidence: Mondescu Decl., Ex. B, Bland Depo. at 49:3-49:11, 132:6-133:13: 131:18-133:13; Ex. A, MeCone Depo, at 17:10-18:20; 91:14-92:6, 189:19-190:6; Brians Decl. In Support Of Webcor’s MSA at 410, 11, Ex. B (Master Contract) “Exhibit A Project Description/Location Plan” (at Bates No. CAT 032322.) (Emphasis added.) Dated: January 11, 2013 CHR858/1503603-1 ARCHER NORRIS JOEL Joana R. Mondescu. Attomeys for Defendant/Cross-Defendant ANNING-JOHNSON COMPANY 5 RESPONSE OF ANNING-JOHNSON COMPANY TO PLAINTIFF'S SEPARATE STATEMENT