Motion-Secondary: BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LLC et al

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                                KATZOVF & RIGGS LLP

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ANN RANKIN (SBN 83690)
TERRY WILKENS (SBN 118469)
Law Offices of Ann Rankin

3911 Harrison Street

Oakland, CA 94611

Tel.: (510) 653-8886

Fax: (510) 653-8889

KENNETH S. KATZOFF (SBN 103490)
ROBERT R. RIGGS (SBN 107684)
SUNG E. SHIM (SBN 184247)
STEPHEN G. PREONAS (SBN 245334)
Katzoff & Riggs LLP

1500 Park Ave #300

Emeryville, CA 94608

Tel: (510) 597-1990

Fax: (510) 597-0295

Attorneys for Plaintiff BEACON
RESIDENTIAL COMMUNITY
ASSOCIATION

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

JAN 04 2013

Clerk of the Court
BY: JUDITH NUNEZ
Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO

BEACON RESIDENTIAL
COMMUNITY ASSOCIATION,

Plaintiff,

VS.

CATELLUS THIRD AND KING LLC,
etal,

Defendants.

ee SS

Case No. CGC 08-478453

DECLARATION OF SUNG E. SHIM
IN SUPPORT OF OPPOSITION OF
TO MOTIONS FOR SUMMARY
ADJUDICATION ON SEVENTH
CAUSE OF ACTION FOR THIRD
PARTY BENEFICIARY/BREACH
OF CONTRACTS AND
SUBCONTRACTS

Date: January 17, 2013
Time: 10:00 a.m.
Dept.: 304

Trial Date: TBD

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DECLARATION OF SUNG E. SHIM IN SUPPORT OF OPPOSITION OF TO MOTIONS FOR SUMMARY
ADJUDICATION ON SEVENTH CAUSE OF ACTIONKATZOVF & RIGGS LLP

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SUNG E. SHIM declares:

1. I am a one of the attorneys of record for plaintiff Beacon Residential
Homeowners Association (“Plaintiff”) in this action. 1 have personal knowledge of the
matters set forth in this declaration, and can competently testify thereto. | am one of the
custodians of records with respect to documents produced in and relating to this
litigation and have received and reviewed such documents.

2. This declaration is being submitted in support of Plaintiff's opposition to
the motions for summary adjudication of defendant Webcor Construction, Inc,
defendant Anning-Johnson Company and Mission Place, LLC (“Mission Place”) and
defendants Cupertino Electric, Inc., Creative Masonry, Inc., Carefree Toland Pools,
Inc., Van Mulder Sheet Metal, Inc. N.V. Heathorn, Inc., Critchfield Mechanical, Inc.,
Blue’s Roofing Company, West Coast Protective Coatings, Allied Fire Protection, F.
Rodgers Corporation and Western Roofing Company (with AJ, all collectively
“Subcontractors”) for summary adjudication as to plaintiff's seventh cause of action for
third party beneficiary breach of contracts and subcontracts (all collectively “the
Motions”).

3. Our law firm, Katzoff & Riggs LLP, had handled numerous construction
defect cases since 1991, and I have been specializing in construction defect litigation
since 1997, 1 am knowledgeable about insurance coverage relating to for sale
condominium projects.

4, Based on my experience representing developers of for sale

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DECLARATION OF SUNG E. SHIM IN SUPPORT OF OPPOSITION OF TO MOTIONS FOR SUMMARY
ADJUDICATION ON SEVENTH CAUSE OF ACTIONcondominiums, they had to purchase Owner Controlled Insurance Program (“OCIP”)
due to the difficulties of the contractors and subcontractors obtaining completed
operations coverage as a result of proliferation of condominium construction defect
claims. 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.

5. 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.

6. With respect to the construction of the Beacon Project at issue in this
motion, an OCIP policy was purchased. The insurance carrier for this OCIP policy is
currently defending the moving parties to the Motions in connection with this action.

7. In connection with this litigation I reviewed the Master Declaration of
Covenants, Conditions, Restrictions and Reservation of Easements for Mission Bay a
Master Planned Community as recorded in San Francisco on November 15, 2002 (“the
Master Declaration”). A true and correct copy of the Master Declaration is attached as
Exhibit A.

I declare under penalty of perjury under the laws of the State of California that

the foregoing is true and correct.

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DECLARATION OF SUNG E. SHIM IN SUPPORT OF OPPOSITION OF TO MOTIONS FOR SUMMARY
ADJUDICATION ON SEVENTH CAUSE OF ACTION1 Executed on January 4, 2013, at Emeryville, California.

KATZOFF & RIGGS LLP
1500 PARK AVE., SUITE 300

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DECLARATION OF SUNG E. SHIM IN SUPPORT OF OPPOSITION OF TO MOTIONS FOR SUMMARY
ADJUDICATION ON SEVENTH CAUSE OF ACTIONEXHIBIT ARECORDING REQUESTED BY:
FIRST AMERICAK TITLE

INSURANCE COMPANY a Fa Resenserenacerdae
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irvine, CA 93614
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Mast: ER DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS
AND RESERVATION OF EASEMENT:

FOR,
MISSION BAY
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ARTICLE x THE MASTER ASSOCIATION... etececeveneee

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23.7 Right of Entry.
23.8 ° Community Standards
23.9 ~ Borrowings............
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23.13. Annexing Additional Property,
23.14 Vehicle Restrictions. ........
23.15 Control of MBCS..
2.3.16 - TMA Participation. ou
23.07 © Transferred OPA Obligations. ...
23.18 — Telecommunications Contract, .
24 — Permitted Activities: .
2.5 Prohibited Activities. .
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2.8.1 Scope of Powers and Standard of Care.

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“3.6 | No Waiver of Future Approvals........

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S11 Right to Grant Additonal ERSCQMEIIS,  LM2A ” Relationship to Other Governing Docuesénts,
Hithereare conflicts of inconsistencies between this Master Declaration and the Articics,.

Bylaws, Design Guldelines or Community Standards ‘then the provisions of this Master.
Declaration shall prevail.

1728 Severability .
‘The provisions hereof are independent and severable, and a determination of invalidity ce paia
invalidity or unenforceability of any ong provision or portion hereof by 3 court ofcompetent
jurisdiction, does riot afifect the. validity or enforceabllity of any other provision hereof.

_ ARTICLE
THE MASTER ASSOCIATION

2 Organization.
‘The owners association onganived to manage and maintain the Properties is or shall be
incorporated under the name of “Mission Bay Meinienance Corporation," as a corporation not
for profit organized under the California Nonprofit Pubite Benefit Corpération Laws

22. General Duties and Powers. - *
Ag powers eet forth in the isles, Bylaws his Maer .
hes Diediabis aoa e
powers of a nonprofit public benoit corporation, generally to do all tings thei a corporation
organized under the laws of the State of Califomia may lawdully do which are necessary or
proper in operating for the peace, health, comfort, safety and general welfare of its Members,
: subject only to the Hmit upon the exercise of such powers set forth in the Asticies, Bylaws, this:
Master Declaration and the Supplemental Master Declarations. All of the Master Association's
powers shall be exercised by its Board of Directors except those powers reserved in specific

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provisions of the Articles, Bylaws, this s Mester Dectaration or the Supplemental Master
Declarations to the Declarant, Members, Delegates or Design Review Commitics.

23 Specific Duties ond Powers.
ination el owe mts, he Me Aneiton te owing psi
-powers and duties.

. 4934. . Corporation Prepasiy.
“The power und duty to accept, modify, transler, ‘ichanga, maine anid otherwite
manage the Corporation Property in sccdrdance with the Reawictions; provided, Newer hl
the Master Association shail not have the right to weusfer or roconfigare any portion of
pia ein Proper wu the ts rev ot Dr oi Cy Depinen
of Public Works {Director of DPW"). Notwithstanding the foregoing peovisia:

Association,
Block 8705, of that conais map-entitied “Final Map Planned Development Bay (1
NOAL Dele Pine etna eeclaaes edknties of ree ERS OTIS,
8707 and 8708, Recorded on March 15, 2001 in Book Z of Maps, at Pages 175 00.178 in the
Office of the Recorder of the City and County of San Francisco (NU/INGA Map”), the
Astociation shall have the power znd the duty to make an irrevocable offer of dedication to the
City of, or othorwise grant, tnitisler or convey to the City, ssid. Lot 3; fen. offie of dedication of
fee title to said Lot 3 was not mide by Declarant prior  deoding. sich Lot io dio Master’
Association, which transfer shall not require the prior spproval ofthe Dirertor of DPW. The.
Mastet Association shalt osoperate with Declarant, Participsting Builders and the City to satisfy
atid release any bonds that may have been obtained for the completion: ‘of improvements on the
Corporation Property (including, without timitation, Lov3 of Assészer’s- Block 8705)-and shail
execute any bond exoncration request or other documentation within ten (10) days after
receiving such a requast-if tie Bonded obligations kave beon sutisfied.. ‘Upon commencement of

Improvements mie
sd oder panel Poccen ea raseen inp landscaped areas.

232 Sewers and Storm Drateas.
‘The power and duty to mairwain ety private sewer systems and-sny privete storm dcains ot
drainage (ocilities within the Corporation Property in accordance with the Retirictions if the”
srajas and sysoans are not manttinod by a Subatsociaton or the City

at eon sia nd eens dy & Subassociation.

2.3.4 Granting Rights.
‘The power and duty to grant exclusive or nonexclusive easements, licenses, rights of way or foe
interests in portions of the Corporation Property, to the extent any such grant is reasonably
required (0 for sities and sewer facilities to serve the Comporation Property, Subassociation

“1.
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Comunon Area and the Lots or Condominiums, (i) utilities and sewer facies to serve ote reo
‘property udjoining the Properties, if the City has determined that-adequate capacity exists to

serve both ahe Propertics and such adjoining property and thatiell appropriate permits or
authorizations are obtained by the Master Association; (iii) for purposes of conformity with the
as-built location of Improvements installed by Declarant, (iv) for bus ar wansportation services to ..

"residents or enplayees. of Mistion: vv Be ee fo

Miata Arcacdion tal ot bees the ight to dose sry fe thary hime ace tte”
Properties envepting Lot of Ascessor’s Block 8705 of the NS/NGA Map (defined in Section
2.3.13) oF to poral # Jt line adjysiment ial would delete property form eny private street i the
Propertics without the prior approval of the Director of DPW. Notwithstanding the foregoing,
sry coven, eames or igo wy great by she Master Association erent to this Soron :

2.3.4 shall include the requiresient that eny:lmprovoments damaged in exercise of such .
casement, license or cight-of-way be repaired or cestoréd to their condition prior to such damage.

{excluding any rights granted to the Cily, the exerise of which shall be govemnod by & Recarded

" easemient agreement). .

. - 23.5 Offers of Dedication.

The power and duty to muke imevocable offers of dedication to the City of, or otherwise grant,
iwansier.or convey to the City, easements or fee interests in fimtherance of the development plans
for the Properties as directed by Declarant and to execute all documents necessary to effectuste
such dodication, grant, transfer or conveyance.

236 Jaserance,

The sowed ity oman mre tpt inert ofthe Maser Asotin on
Ouners., :

237 - Right of Entry. .
‘The power but wot the duty fo ener upon any Lot or Susissociation Common Areas reasonably

necessary for the puxpeses of (i) i inspecting any portion of the Properties and (i) salorcing the
Restrictions.

238 Community Standards,
“The power but nay foo duo coablteh aed notify exceptions to the Comaminity Standards for
the ure of the Corporation Property. Any modifications or exceptions tothe Community
Standands will become effective and binding fifteen (15) days after they ure cither (A) posted in a
: oy coh attest detaaed soeaged tad cummpsite nepanse lemaely ss.
: te) sitesi

Corporation Property; signs; parking restrictions; minimum a of property maintenance;

and any other matter within the Mester Association's juriediction. Comununity Standards are

enforceable only to the extent they arc consisiont with the Articles, Bylaws, Master Declaration
. and the Supplemental Master Declarations. The Community Standards must apply uniformly to
all i Owners and cannot discriminate between Owners or tenants of Residential Arca Lots and

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: Condoms Owner oe of prin Ae Lt nd Owner ets
Commercial Arcaor other arcas of the Properties. -

“. 23.9: Borraveiags. “ . ,
_The power bui not the dity to borrow money for purposes giorized by the Articles, Bylaws,
Mastcr Declaration or any Suppleinenial Mastor Declaration, and in aid thereof, to use the :
- Corporalion Propérty this ii guise in fet and the Master Association's personal proporty as
securiy for sich bowing sujet bt Kiniaions et forth in his Master Decora,
including without limitation, Section 12.1.4: me

23.10 Gonamacts we
Te ower ba ot the dy enter int contact, ican, bt at i

services or maintenance and any administrative costs involvod; .
Services. Contre prvi rou commniy

®. Commesity
services to the residents of the Properties;

ce Cost Shoring. Cootracta to share costs wit any
- Property te contribute funds for, among other things, chard or aly bel rope
services or a higher level of Corpacation Propesty

(8), Adjuvent Owners. Contracts with adjacent property owners to
provide for G@) preservation and maintenance of natural aress,-and (ii) wildlife preserves or
similar conservation areas and sponsorship of education progeams and activities which conitibute
to the overail waderstending. appreciation and preservation of the natural environment within the
Properties and the surrounding area.

2.3.41 Special Events and Actiottles, Ay
Percons, including withoat limitation, tho MBCS and Subassoclations may desire to sponsor
_ Special events and activities within the Propestios. ‘The Mester Association hes the authority te
issue permits. granting to these groups, thelr guests, invitees, employees, agents, contractors and
designees a nonexclusive license of access end use over some or ull of the Corporation Property
faa ee teeing as ent caine ivity. The Mesier Association

activity. ‘The Master Association may charge focek desennines "8 prope ie
with allowing groups to use the Comoration Property. Notwithetanding the foregoing, any group
or pen desiring to hold a specie ever ratty within he Properties sal be requir to
obtain any necessary pernaits from the City.

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BBR dndemnfication. ,

(a) For Master Association Representatives. The Master
Association hes the powor and the duty to indemnify, to the fullestox hi
Califomia law, the Bosid.nembert, Master Association officers,
Committee members, apd-all ther Master. Asgodiation com
expenses incurred by, dad to datiafy any judgment of fine | é i
- . Say actlon or threatened ection against such Person brought becuse
omissions that ave withizi the scope of the Person's Master Association duties Official Act Ac")
For purposes of obtaining indemnification trom the Master Asdociation parbuent t6 this Section
2.3.1 2{a}, all Bourd members, Master Association officers, Design Review Commitics mombers,
aad all other Master Association committce exembers aré dexmed to be agents of the Master
Assozintion when they are performing Official Agts... Any ection in connection wi
indernnificstion required by law to be pesformed by the Members may be performed.
Delegates. ‘The entitlement to indesmnification heceunder leuwes 20 to the barielit of the,
in-interest of any Person entitled to gucli indemnification. .

ep “For Other Aguats of the Miter Atsoclat ‘The
Association tthe poo bit ok be deine nade enchant hn aay
other Person acting as an agent of the Master Association for any damages and pay all experises
incorved by, and satisfy any judgment ot fine levied against, any Person ag & resultef any action

action against such Person because of an Official Act. Any action in connection
with providing indommnificalion required by law tobe se pechomed by the Members may be
performed by the Delegates.

& Previded by Comtcaci. ‘The Masie: Association algo has the
power bed not the duty to coutract with any Person to provide indemmification beyond the scope
of teeaneification authorized Uy tow on buch tore and miiject fo ck conditions st the Board
may impigse.  - «

23.13 Annexing Additional Property.
‘The power but-nol the duly io annex additional Propet the Proper ected by this
Master Declaration pursuant to Section 16.5. .

. 2.3.04. Vehicle Restrictions.
‘The power granted in Section 8.5 10 identify Authorized Vehicles or Prohibited Vehicles ad to
maodify the. restrictions on vehicles. :

of directors, and GD operate MBCS in accontance with ta amicles of icrpraon aaul bylaws.

23.16 TMA Participation.
‘The power and duty to («) cooperate with the TMA in providing funding for TSMP, and to
coramunicatd therewith regarding TMA and TSMP objectives and strategies and (b) collect frora
the Owners as part of the Common Expenses, TMA Fees absessed against the Properties, ant. (c)

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(EPORENSE ME 2GANE ARRANGE
. Oram2. hong 309

participate é in the TMA by having the Board scloct a director to represent the Master ‘Association

"on the TMA, board of directors.

23.17 ‘Frianaferiet OPA Obtigations :
The power and ity 0 sdsume thd perform any bligatons taneferred by Deeiacat wo the. :
Masicr Association witht’ Sil the Sonseet of the Redevolopaient Agency imder Seition 14.5 of the so
. » OPA, ree et anne Ch Dement soe
: Development Program (@ Sefingd inthe OFA) 3 :

254s. - _Nelocoemsinaioations Connect.” : :
Notwathstanding anything inthe Restrictions io the contry, the Boatd thal have the power to
ehler ito, secept nocept an-assigninant of, or otherwise cause the Masiee Association to comply with
- the torme und provisions of en exclusive telecommunicstions sorvices contract :
(“Telccommuinications Contract’) with a telecormmuniications service provider (“Service
Provide’, pursuant whisk the Service Provider tay serv a he exclusive prover ef ce
‘Telecommunications Services to each Aps:tment, Lot and Condaminizan in tho Properties, The
‘Board shall only cater into, socept an assigament of, or otherwise cause the Master Association
to. comply with the terms and provisions of the Telocommunicaiions Contract if the Bourd
deternines, in its sols discretion, that such action is in the best interests of the Master
Association, feat eubmisiv, tn Bound shal toned folowing ee in mang
such a determination: .

@: Initial Tern and Extenvions. ‘Tic india cimiot he :
Telecommunications Contenct should not exceed five (5) years, and, if the Telecommunivations
: * Connect provides for automatic extensions, the leagth of each snch extension show also not
exceed five (5) yours. :

b) - Fermination. Tht Telecomanuinaions Contra itt peovide :
that:  architectural and tendscaping control provisions contained in 3 Asticle ih, (ili) to collect any
unpaid Assessments levied pursuant to the Restrictions, (Iv) for a claim, the total value of which
is les than Five Hundred d Dollars ($500,000), or (v crose-complaint in litigation
to which the Master Associal already ¢ party. If the Master ation decides to use or |
transfer reserve fimds-or t flinds to pay for any litt Master Amociation must ©
notify its Members-of the decision by . Such notice appli

‘litigation is being initiated or defended, whiy operating finds cannot bé uscd, how and when the

voserve fonds will be replaced or the loan will be repaid, and a propoved budget for the litigation.
‘The notice must state thet the Members have a right to review an sctounting for the litigation
Sizch will be available wt the Maxier Association's office ‘The accounting sill be updated :
monty.

ot “12a. Addition Remedies, a
Tis Board may dopa schedule ofreeunabe Ginna pense which fv trons tee
discretion, Rt may assess against an Owner or Subsssociation for the fillure of sich Owner, or of
treet of or visitor to such Owner's Lot or Condominium, or Subsssociation to comply with
“the Reatrictions, - ‘Ths Board may Record 2 Notice of Nencompliance for any violation of the
Restrictions if permitted by law. .

12.1.6 No Waiver,
_ Failure te enforce ty ovine Mar Desanion heads ot vet iho
enforce that provision, or any other provision of the Master Declaration.

12.1.7 Right 09 Exforce.
‘The Board or any Qumer (not at the time in default hereumdes) may enforos tho Restrictions ax
described in thie Article, subject to Section 1384 of the California Civil Code. Bech romedy
provided for in the Restrictions iz cumulative and not exclusive or exhaustive.

12.2 Noapayment of Assessments.

122.1 Memedies.
Ay inaatlenena of oa Ascenso fo dtingiecr it ni eld within Aten (15) days of the due
date eatsblished by the Board, Any Assessment installment not paid within thirty (30) days afer
ithe dee dae, plus all reasonable cosis of collection (including storeys" fees) and late charges as
_ provided herein bears interest at the maximum rele permilied by law commencing thirty (30)
days from the date the Assessment. becomes due until paid. The Board may also require the
delinquent Oumer to pay a ltd change in accordance with Califomia Civil Code Section
436Ex2}. ‘The Master Association may bring an sction at law against the Qumer personally
. “eliiemed to pay the same, o foreclose the lien the Lotor .

costs and altorneys* fees atisibutablé tharcto, and any soveptance of imy such tender does not
waive tho Master Association's right to demand and receive full payments thereafier. Before the
Master Association may place a tien upon an Owner's Lot or Condominium to enforce a past due
Aszessment, the Master Association shall send a written notice to the Owner by certified or
registered mull which contains the following information: (i) the fee and penalty procedure of
the Master Association, (ii) an itemized statement of the charges owed by the Owner, including
the péincipal owed, any laic charges and the method of calculation, any attomeys’ fees, (iii) the

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ENOCSSLMaoETIBROUR NENT
. Ravage429 \ 309
collection practices used by the Master Association, and (iv) a statement that the Master
Association may recover the reasonable costs of collecting past dar Assesamcinte.

. 12.22 °- Notlesef Delinguent Assesoment,
No action may be brqaght to-enfoece any Assessment: Hewerested herein: tuples at sa hy
(30) days has expired following a Notice of Detinguont A
United States onal,

may at the Master Association's option include ineerest on the unpaid Ageesement and late
charges as described above plus reasonable autorneys” fees and okpenses of collection in
connection with the debt secured by said tien), (6) the Master Association’. name and address,
and (¢) in order for the lien tp be enforced by nonjudicial forstloqure, the name and sddeeas of
tho trustec-authofized by the Masier Association to forectise tie lign by aale. ‘Amenetary
penalty imposed uy the Master Association és a diaciptinary messure for failure of an Owner to
comply with the Restrictions may not be secured by 4 lien enforceable by nonjudicial foreclosure
against such Owner's Lot or Condominium, however, monctary penalties @mpoted forlate
payments and as a means of reimbursing the Master Association for costs incurred for the repair
of damage to Corporation Property for which an Owner or Porons dosiving rights foi the
Guner were responsible may betome a charge secured by a lien againet such Quaiei's Lat or
Condominium enforcéable by the sale of the Lot or Condominiunt in docordance with Séelion
12.2.3. Resorsdation of the Notice of Delinquent Assessment crested a Hen on tie Loi or”
Condominiuen as provided in Section 1367 of the California Civil Code. Said fee is prior to any
declaration of homestead Recorded after aftcr the date on whicli this Master Declaration is Recorded. .
‘The Hien cominuds ontil all amounts secured thoteby’are geld or otherwise emislied. The Notice
of Delinquent Agsessment mug bé signed by an authorized Master Association offer or agent,
and must be maited in the manner set forth in Section 2924b of the California Civil Code to the
record Owner of the Lot or Condominium ne later than ten (10) calendar duys after Recordation..
Assessments described in Section 1367(¢) of the Califomia Civil Code and Section 2792. 26(6) of o
the Califomia Code of Regulations may not become a lion against an Owner's Lot or :
Condominium enforceable by the sale of the Lot or Condominium under Sections 2924, 2924b _

and 2924c of the California Civil Code. :

1223 Foreclosure Sale.
AA sale te foreclose a Master Association Hen may be conducted by the Board, its attorneys or
. other Persons authorized by the Board in accordance with the provisions of Sections 2924,
292Aa, 2924b, 2924c and 2924f of the Califomia Civil Code, or in any other manner permilted
- by daw. “The Master Association, through duly authorized agents, may bid on the Lot or
Condominiuin af: foreclose sale, andl acquire und hold, leaseveneiiiiiiee and convey thie same.
Upon completion of the foreclosure sale, the Master Association or the pumchaser at the sale may
file suit to secure occupancy of the defaulting Owner's Lot or Condominium, and the defaulting
Owner shall be required to pay the reasonable rental valuc of the Lot or Condominium daring
any period of continued occupancy by the defaulting Owner or any Persons claiming under the
defaulting Qemer,

EBOCRGL RIM PRUE EATER EE 1S
1OR22Spon payment by the defaulting Owner of a reasonable:fee, to be dolommined by the Board, 10° ~
cover the posi of pating wed Recording such release. Acerlificite executed and

hereunder and by law, jacliding 2 ault to recover arian y judgment for unpeid Assesuments, #¢<
Afie: a Benefic or other Person obtains title to a Loi or Condominium by judicial foreclosure
or by means set forth in a eigage. the Lot or Condominium shell remain subject to the Master .

Decluretion and the payment of ail installments of Assessments accruing after the date the
Beneficiary or other Person, Bete To at

obtaing title, .

obtains title to a Lot or Condominium pursiznt to a judicial or nonjadicial foreclosure of the first :
Common Assessments clu

Mortgage ig Hable for the share of the on EE or Assesamen! to such Lot
or inium which became due prior t the acquisition of title to the Lot or Condominium

even when the Master Association Notice of Delinquent Asscamnent is recorded after a
Subassociation’s ticn noth : 2

The Board of Directors has the power such aciion as is

Assessment lien of the Master Association encumbering a Residence subordinate to the ieerests
ofthe Department of Veterans Affairs of the State of California under its Cal-Vet loan contracts,
with respect to such Residence, to the same extent that the Assessment lien would be subordinate
to the lien of a first Mortgage encumbering such Residence.

-63-
EDOCSUAL Ae zDaET2BMNUNINEBINS, 12
32RD4291309

1229 Receivers. :

may,

‘The right of any Owner to use alternative dispute resohstion under this Section may not
be exescised more than two times in any single calendar year, aid riot enove than three tines
within any five (5) calendar years, Nothing within this Sostion shall precleds any Gwner and the
Master Association, upon mutual agreement; from entering inio alternative dispute resolution in
excess of the limits sca forth herein, An Owner may request and be awarded throtigh alternative
dispute resolution reasonable interest to be paid by the Maser Association in the total atnount
. _ pald under items () hiv): if it jg deterenined that the Assesamnentlevied bythe. .

Master ‘ . ae

123 Enforcement of Goaded Obligations. . : .
1f (a) the Corporation Propany Improvements in any Phase are not completed prior to the
issuance of a Public Report for such Phase by DRE, and (b) the Mester Association ig obligee
under a bond or other arrangement (“Bond”) required by the DRE tp secure performance of

Deciarant’s or a Participating Builder's commitment to complete such Improvemeris, thea dha ~
following provisions of this Section will apply: .

-64-

EOOCHSLMassarzengon gE. 82
ISR4291309 j...

123.1 Beard Action,

Notice of
extension,

favoricg arbitretion agreements, ing substantive or procedural state policies to the

~65- .
EROCSISLASIMA TEAR MONGRSIEA 2
ORBEA4291309

12.4.1  Noilee.
Any Pecson with « Dispute stiall givé written notion of the Dispute by pecionsl or mail bervice as
 tuthorized by Code of Civil Pi fe Séctions 415.10, 415.20, 415.21, 415.30 of 415.40.to the
arty to whe the Dispute is dineciéd'( { Respondcat) desing the tne of te Disteand :
“ny propiosedl remedy {ile “Dispute Notibe”). : .

ek A142... Right to inspec and Corvst. too, :
“Communcing on the date the Digg Note is dlvere tothe Respondent and cosonng unl
‘ihe Disputd is resolved; the Respondent und its.represeniatives have the right to (Qj meet with the
parly alleging the Dispute at a reasonable time and place to disciias the Dispute, (i) enter the wo,
Properties to inspect any areas tial ere subject to the Dispute, and (iii) conduct inspections and :

_ testing (including destructive or Invasive testing) in a manner deemed appeoptisie by the - .
Respondent. If Respondent elécts to take any corrective action, Respondent and its" . :
representatives shall be provided full access to the Propertios to take and complete the ecrrective
action. enact is nat obtgntad jo tke any connective action, Respondent, with the consent

of Declarant, has the # solect the comective action Respondent believes is appropriate. The -

_ Fight to inspect ard comett da this Section is ia addition to :

“the Dispite oe a esis naty (90) date tp emesis tho Diet
Notice, any paity may subm Dispute to mediation by delivering a for mediation

("Modiation Notice”) in the dame tianner as allowed for delivery of the D Notice. The.

Dispute shall be mediated pursuant wo (1) the American Arbitration Association CAAA") ~

mediation procédures in existence when the Dispute Notice is delivered, as modified by this

Section, of (if) the mediation procedures of any successor to the AAA in existence when the,

Dispute Notice is delivered, as modified by this Section, or (iii) mediation procedures approved

by the parties of any entity offering mediation services that is accejtable te the pacties to the

Dispute (“Pani¢s’). Except as provided in Section 12.4.5, aa Person shall. commence litigation
regarding a Dispute without complying with this Section 12.43. oe

(a) - Selection of Mediator. “The niediator shall bs selected thin
sixty (60) days Eom delivery of the Mediation Notien. ‘The mediator shall be selected by mutual
agreement of the Parties. If the garties cannot agree on a metliator, the medisior shall be selected
by the antity providing the mediation sorvies. No Person shall gerve a¢ a mediator in any —
ee eae tare en aoe meee roel of the micas.
except by the wiilien convent of all Paities, Before: :
medinetaalh sratleds thet
promp’. commescement of tie mediation process.

(&) - Position Letter; Pre-Medintion Conference. No imer than sixty
(60) days after selection of the mediator, each party to the Dispute shall eubmit « letter (“Position
Statement”) containing (j) 2 description of the party’s position conceming the issues that need to
be resolved, (ji) a detailed description of the defects allegedly at issue, and ({ii} a suggested plan
of repeir, remediation of correction. The mediator may schedale a pre-mediation conference.

66-

LNOCSeLMzoNITzERWONIHEIE.I2
1002. 91309

All Pasties: shall attend unless otherwise enptually agreed. rncmatucan 23 commenced. .
within ovemty (20) days aftor eubmitia Position Statements and shall be concluded within

fifloca (15) days atter the mediation | wales ether (a) the mediator extends the mediation .

feriod, or (6) the Parties mutually agree t@ extend the mediation pariod, The mediation shall be

Feld inthe City or another place mutually acceptable tothe parties. .

(6)... Conduct Mediation, Tho msisot tgs diaastion to candact

‘whith the mediater believes is most ajpropriate to achleve the

: gpel af sting the Disp, trend wrttetovosmendnion foresee those "
wath the Parties and to atake oral and written recommendations for setilement. The °

St

Apgilicatien of Rvideace Code, ‘The ptovisc of California:

@
. Evidence Coe Seaton ils eign HIBS ell nompieale ot cine pe ke
. ond disclosure of elatements, : and communications offered or made in. the course of the
mediation shal be govetno by the sections, including the sections which preclude use of
material in future proceedings and’ Sections which provide For contibentalty of mari,

« - Reser. Ther sll bese eogrpig, vid oa eso
‘he mediation process ,

@)> “Expieasis. Each party shall bear its owa stieneys? fees and costs
incurred in connection with the modistion. All other expenses of thé mediation inchudivig the .
‘een chieged by the mediator and the coat of any proof or expert ailvice requested by the |. -
mediator shall be borne equally by each of Declarant and the Declarant Parties to whom tho
preva of ocoatan reweme Decieon tat y be Joan Pany oeing macosateont

applicable, mart btn the vote or wren consent of Owans other thon Declarant who eprows
fot fess than sixty-seven percent (67%) of the voting power (excluding the voting power of
Doclarant) of the Master Association or the Subsssociation, as the case may be, prior to filing a
Lawsuit in a Disputé with Declarant or a Declarant Party, All lawaults regarding Disputes must.
be resolved by general judicial relentnce pursuant to California Code of Civil Procedure Sections
S36 and 641 throt gh 645.1, us modified by this Section 12.4.4. The Parties shall cooperaic in
good faith to ensure that all necessacy and epproprinte parties are included in the judicial
reference proceeding. No party shall be required to participate in the judicial reference

o HOOCS SL Mz; TZEsWONIBETEE I?

OrEBIORH291309

: I any isduds of fact or law to any other

. Person uniess (a) all periiés proceading corsent, or (b) the referce |

: dvtermines thats ountlics of interest or similar siteation has arisen which would make it

it appropriate for the reltvec to abi az the trig of fact of law conceming ai issue or matter. Inthe
second alternative, an altemative judicisl referes shiall be selected in acoorndance with Sootion
12.44, Solely Foreisobving or vondeting a decision conceming tho isu or mater involved in the
conflict,

a  @ Place. Teron a itn ey nd Coto

* (RY , Relevee, “Tho retbee tal ba retired judge who srved onthe
. Sipser Cou of Ste f Cain nthe Cy wit with substantial experience in the type of .

©} Commencement sd Thniag of Froceediog. ‘The referee shall
pre henna th nt ove tl al vt er
without undus delay.

: @ " Proearing Conferences. ‘The referee muay requite pre-heaiing
eonlerences,

: © Discovery. The putes to the fica reference proceeding shal
be ened ooly 10 Kind discovery, consisting ofthe caritaprof the olowibe Ghee
tint, i exper wots dint, (5) expen wien repos, (exhib, ropa of
testing of inspections, and (vi) Oriel, Any other discovery authorized in the Califorula Code of
_ Civil Procedure shall be pormsitied ns jadcil alteones pce mnt Of BOM couse or ane the
conscnt of al parties to the judicial veference proceeding.

«6. ‘tates. The fire chal have the power otra depose ot
motions. ioutaing motiogs tela vo discovery, provisional remodice, muver,

adjudicate eunimarily iscues of fact or law including the availsbility of remedies whether or not
the issue adjudieated could dispose of an entire cause of action or defense. .

. ~ ¢g) Record. A stenogrephic record of the hearing shall bs made which
shall Tersin confident exept may be necessary for pot heaing motions and any appeal

G8.

DOCS aL MOeNe TERROR IEE IS
iea3eein) Statement of Deciston. ‘The referee’ sccuall? 94.39? o. shall

ceatain an explanation of the factual and logal baxis for the decision pursuant ( California Code
of Civil Frocedure Section 632. “The doulsion of the referee shalt stand as the decision of the

znd award darnages inthe joel vforeace proceeing : bee

. a . Pestheariag Motions... Tes tee my rl o sl peta
motions in the same manner as trial judge.

. Appeeks. The decision of th referee shal be subycet wo appest in
the same manner at tse Dispute had been tried by the coat. .

@® Sepenses: ‘Bach pavty shall bear its ows anomeys'. fees and costs
izcurred i connection with the judicial relerence procetiling. All other cupenaes of the judicial
sclerence proceeding including the oust of the stenagraphic reodrd, ghall be advanced equally by . ~
euch of Declerant and the Declarant Parlies to whom the Dispuie jz directed. However, dhe
referée shall have the power to reallocate sisch foes and costs ammog the Parties in the reforce’s
final ruling. This provision dues not modify any provision of g comirucs between Declarant and
fy Declarant Party requiring indemnification or eetablishing a different allocation of costs
between the Declarant and the Declarant Party. .

12.4.3 Statutes of Limitation. .
Nothing in this Section 12.4 shall be considered to toll, stay, reduce or extend say applicable
Satute of limitations, provided, however, that Declarant, the Declarant Parties, the Master
Association, any Subassociatiog aiid any Owner niay commence a legal action which in the good
faith detcrraination of that Person is necessary to preserve thet Person's rights under ony
See eet a ade 0 exter eps in processing the action are tien
. except those authorizes. in this Section 12.4. .

12.46 Aeron to Depa Resolution; Wabrr of Sy Tra a
“DECLARANT, THE MASTER ASSOCIATION AND EACH OWNER AGREE TO USETHE
SST. DISPUTES

1 ALL
AND WAIVE THEIR RIGHTS TO RESOLVE DISPUTE IN ANY OTHER MANNER. -
DECLARANT, THE MASTER ASSOCIATION, EACH SUBASSOCIATION AND EACH
OWNER ACKNOWLEDGE THAT BY AGREEING TO RESOLVE ALL DISPUTES AS .
PROVIDED ) IN THIS SECTION (24, ‘THEY, ST eS VE

: 12.47. Cid Cote Section 1354.
Section 12.4 govems only the resolution of Disputes with Declarant Pasties and shall not affect
the subject matter of such Disputes. Unless the subject matter of e Dispute expressly involves
enforcersent of the Restrictions, sich Diepute shall not be governed Uy the provisions of
Califomia Civil Code Section 1354, or any successor statute. Enforcement of Section 12.4 shall

69.
EDOCESL MA DTREBOwAIES es 82
: soe sutact entitle the prevailing party in eny Dispute with a Declarant pay ROLE 2 ays fees or
costs, - - - oO : .

ARTICLE RED
DISCLOSURES

dead because rauch of
Declorani,the

parties to the contrary, and (iii) as filed by Declarant or a Participating Builder with the DRE.
13.2 Security and Privacy Disclaimer. -

Hf securily personnel are retained by the Master Aswciation, they are not intended to provide
scourlty for Persons, personal property or Lots or Condominiums withis the Properties.
Declarant, the Participating Builders and the Master Association do not undertake to provide
security for the Propertie® nor do they make any representations or waeranties concerning
privacy and safety within the Propertics.

. 133 Offers of Dedication. . . os
Cestuin areas of the Corporation Property ase or will be subject to irrevocable offers of :
Sedication as shown on the recoded meps for the Properties. ‘The Master Agsociation shall.
maintain those portions of the Corporation Property subjeci to irrevocable offftes of dedication
. until such offers arc accepted by the City er other Local Government Agency. The City or other
Local Governmental Agency may accept an offer of dedication and assume responsibility for
Such property al any time, and upon such acceptance all covenants, conditions, restrictions and
_ eusempents imposed on eseh:Cosperstion Poogenty (hrdugh shaiMaster Decaieters’
Sapplomental’ Master Deblaradion shall automatically terminate end be of nc i ye
oifeet. , : a

13.4 Nonllebility. . :
Each Owner acknowledges and agrecs that neither the Declarant nor any Participating Builder
for the Master Association shall be liable or responsible for any damage to Improvements that
have been constructed ot modified by another Owner or Subassociation, or that is the result of
hraprovernents that have been constructed or modified by another Owner or Subassociation.
~-7- .
me . ENOCSISLMINNUTEROONISEING 17

TT TET AE LE ERIE

”
seit
=
Se
— =

TE WH#291309

tnprovemots mnay nb bi installed, constructed or modi wit fe assistance of qa

43.5 Property Lines, .
Tre boundaries of ea Lot and Condominiun within the Propertics are or wilt be dotincated on
subdivision (tract) aapa, lot Hino adjustments, parcel naps of condominium plans that are pablic
“records and: sre avaible atthe ote of the Recorder ofthe City ad Cotity of San Frenctoo

. 156 Prelinatn ary Title Report.
Te elmer ile rept nud fo each Loto Coodrinon i of wilt ave fr

any duty to provide a preliminary titls report to any Owner ot prospoctive purchaser of a Lot or vs
Condom:atun. Tiation the owing eons ae Hehe of Record which oe
irelude, ‘without limitation, the following: .

13.6.4 “Utility Basements. . .
The Lots and Condominiums aro or will be subject to easements ia favor of the ty or wiiligy
cumpanics for installation and maintenance of utlligy lines und fecilitice that service to
the Properties. Teletion fhe an iiss ely could hye Cy an
wility companies.

13.62 Specte Assesument or Mello-Roos Commarnity Facts District.
As Givther provided in Section 6.11, the Properties are within the boundaries off .
: Assesement Didtricts and Melio- Ross Community Facilities Distriots that roquire the levy of a.
special tax for the repayment of bands issued to pay the cost of servicer and capital
ixiprovoments thet have been or are being provided. The amount ofthe api x nd sy her
Cl ae ee te ay mac Gist can be obtained fom the Assesmr’s ofc office forthe

» City and County of San Francisco,

. 13.7 Heat Tension Conctete Slabs.
Concrete slabs far Residences constructed in the Properties may be reinforced with a grid of sec!
cuble installed in the concrete slab and then tightened to create extremely high tension. This type
of slob is commonly known as a“Post Tension Slab.” Cutting into a Post Tension Slab for any
reason (¢.g., 0 install 3 floor safe, to remodel plumbing, ofc.) is very huzardoua and may result in
serious damage to the Residence or personal injury. All Owners shail detemine if their .
Residence has Bees constructed with a Past Tension Slab and, ifs agree: (1) they shalt not cut
: ir to or otherwise tamper with the Post Ténsion Stab; (2) will not permit or allow auy other
"Person to cut into ar tamper Post Tension Sleb eo longa ae Re
tre Relea (hey Wall ies the eters Renesas ST who
Teaits, leases or purchases the Residence from Owner; and (4) thoy shall indemnify and hold
Declarant, the Master Association, the Participeting Builders end their officers, employecs,
contractors and agents, tree and henmless from and agsinst any and all claims, damages, losses or
o-her Hability (including attorneys’. foes and costs ofcomt) arising from any breach of this
covenant by sach Oumer.

Te
‘RDC SARE ME SAAB RIBS. OE
horEeeei Cossmunity Ewhancement Ree. 29,1389
Community Enhancement.ee Agreements (each, an “A bering portions of the

Proporins Doctor oil be Meet a Gea nt a ecario
” Francisca. Pursuant to these Agreements, a community enhancement fee equal to a percentage |
"of the sale price is paid on most trandfere of Condominiums and Lots encumbered by the .
Agreement. The community cihantement fee is paid to Mission Hay Coninitmity Services to be .
wed for purposes dessrbed inthe Agreemenis Soine wanslers are exempt frod ! eomemnity ~
-erhancement Fa naontom ee Lot seemed yan Agente i bonny tht Le
terms of the Agreement... oe JF . ae

139 Street Tree Maiatensnce Respoualbly. . :
Trees will be planted adjaccnt to the streets in. certain designated arosa of the Propertiex,
incheding without limitation, sidewalk areas, pedestian pasvos and mid-block walkways, which
may be located ip the public right-of-ways. The, Mazior Asvociation.will-be responsible for
 Certilizing, pest comndl and trimming for the street trees, Quniers are prohibited from
Suing he ott inerrng wit th Mater Asocnton's performance of i
obligations hereunder.

13.56. intraeet.
Declarant may exeblich a commuty-vide intranet network forth ropes (he “ene,
updated bya provider parent to contre te boctteet es teavoon Me maintained, serviced and

hacinty te Deena the Maser Ascaris or MCS renin ie cal sere et aay
uinnalely be established at Mission Bay ot for the Properties, or whether any mich Intranet will
ever be éstablishod,

UU Parks,
The parks are open to the general public ‘without restriction,
or nore Local Gawetetiontal Agencivs,_

12. Nature of the Community and its Master Plan.
Mission Bay is a master planned community being developed pursuant to a master plan (“Plan”)
approved by the Redevelopment Agency. Acconding to the Plan, the community will be
composed of many housing types, including townhouses, condominiums and apartments. Many,
‘bat not all, of these properties will be encumbered by the Masier Declaration and managed by
the Master Association. The Declarant, in its disoretion, will determine which properties are

FR.
ADOCHSLEISAT DENRA 12
terraeh
- H29130¢
annexed io the real property encumbered by the Master Declaration ad which properties are

‘The form, ature ard extcat of all future development of both'pcivate andl public Miclities

"within Mission Bay is subject to tegulation by all applicable licstie goverament agencies; which may or”

Thay not exercise their authority in accordance with the desires of Declarant and which are, in
ary case, not within the control of the Declarant. Accordingly, all plans, models, and

Declarant only intends to sell property to Participating Builders and buyers who support
‘the total master plaoned community and understand Deolsraat's right to make cluinges to the
Plan. Gamers understand that Declarant has relied on thair representation to Declarant that they

that are consistent with the Plan, as t may be smended by Declarant fram time to time.
12.13 Master Associstion Budgets. - -
Initial Master Association budgets are prepared by in i Sional end are based on”

13