On August 17, 2016 a Exhibit,Appendix was filed involving a dispute between Aarons, Philip E., Arup North America Ltd., Balfour Beatty Infrastructure, Inc., Baumert, Richard, Boston Properties, Inc., Boston Properties Inc., A Delaware Corporation, Cementaid International Marketing Ltd., Central Concrete Supply Co., Inc., City And County Of San Francisco,, Clark-Hathaway Dinwiddie, A Joint Venture, Desimone Consulting Engineers, Llc, A Delaware, Dnd Construction, A California Joint Venture, Drill Tech Drilling & Shoring, Inc., Enclos Corp., Gpk & Associates, Handel Architects, Llp, A New York Limited, Jeffries, Christopher M., Jeffries, Sean, Kilroy Realty Corporation,, Kilroy Services Llc, A Delaware Limited Liability, Kowalczyk, Bryant, Kr 350 Mission Llc, A Delaware Limited Liability, Lovett, Philip H., Luciano, John, Millennium Partners Llc, A New York Limited, Millennium Partners Management, Llc, A New York, Mission Street Development Llc, Mission Street Development, Llc, Mission Street Holdings Llc, A Delaware Limited, Pacific States Environmental Contractors, Inc., Pelli Clarke Pelli Architects, Inc., Snyder, Donald Eugene, Snyder, Mary Potter, Symonds, Iii, William Thomas, Symonds, Melissa Lewis, The Millennium Tower Association, A California, Transbay Joint Powers Authority, Transbay Tower Llc, Transbay Tower Llc, A Delaware Limited Liability, Treadwell & Rollo, Inc., Subsequently Known By, Viking Drillers, Inc., Webcor Construction Lp,, Webcor Construction L.P. Dba Webcor Builders,, Webcor-Obayashi Joint Venture, Ykk Ap, Inc. Erroneously Sued As Ykk-App, Inc., Abbott, Chad, Aggarwal, Gautam, Arora, Anu Radha, Arora, Ravinder K., Assaf, Ben J., Assaf, Carrie Robin, Au, Winifred, Bloom, Ken, Bloom, Linda, Blue Pearl Sf, Llc, Bond, Samuel, Bouzid, Kais, Bradford, Richardson, Brown, Gordon, Brown, Jennifer, Brunetti, Jeffrey, Bwc Enterprises Llc, Caleb Realty, Llc, Camp, Eva Lum, Camsey, Martin, Chang, Carolyn, Chang, Jo-Tung Tu, Chang, Richard, Chintapatla, Kirti Rao, Choi, Julie, Chu, Kan Jenny, Cornali, Claudio, Cummings, Brian, Daly, Kathleen M, Darby Jr., Robert, David, Pamela H., Davies, Glyn, Davies, Judy, Desai, Anuradha, Desai, Manoj C., Dickstein, Howard, Duffy, Robin R., English, Jeannine, Fan, Alice Yu, Fancy Sky Company Ltd., Fan, Dr. Randall, Fanlo, Laura, Fanlo, Saturnino, Fu, Jiongzle, Fumarelli, Thomas, Gallus, Fay M., Garry, Timothy W., Gehring, Charles, Gehring, Christine, Golden Pearl Investment Ltd., Gondokusumo, Hendro, Gondokusumo, Rina, Grave, Emi R., Grave, Vladimir R., Grave, Yoshiko, Grippardi, Paul, Gu, Danyi, Herman, Jessica, Hinohara, Akie, Hinohara, Tomoaki, Holland, Michael A., Hong, Leong Milton Ka, Hormel, James C., Horn, Sabrina, Hsieh, Dr. Jing, Hsu, Caroline, Huang, Amy, Huang, Chi-Fu, Huang, Dean, Huang, Kung-Shaun Andrew, Hung, David, Johnson, James, Kaji, Dr. Devonna, Kamm, Irene Chan, Kamm, John T., Kao, Ian, Kelly, Michael King, Kim, Borah, Kim, Sang, King, Patrick, Kua, Lee Sah, Laiwala, Nadim, Laiwala, Norjehan, Laiwala, Sadrudin, Laiwala, Sarah, Lares, Adriel G, Lazar, Cheryl, Lee, Angela, Lee, Frank, Lee, Jason, Lee, Michelle, Lee, Veronica, Lehman, Laura S, Leung, Anselm Nai-Chung, Leung, Virginia, Lian, Elizabete Go Lian, Lichaytoo, Alexander, Lichaytoo, Barbara, Lichaytoo, Clifford, Lindley, Meriel, Liu, Cynthia B., Lor, Cynthia, Lum, Evonne, Lum, Jackson, Lum, Muriel, Macdonald, Elaine Lum, Maknawi, Eddy, Maui Peaks Corporation, On Behalf Of Themselves, Mayer, Nancy, Mayer, Steven, Mcmahon, Paul, Mellos, Faye A., Millennium 42A, Llc, Millennium 8D, Llc, Millennium Tower Association, Mi, Steve, Montana, Jennifer S, Montana Jr, Joseph Clifford, Ng, Lilian, Ngmii Llc, Nguyen, Michael, Nguyen, Tessa, Niemi, Patricia, Patel, Alpa, Patel, Dr. Namrata, Paulsson, Edward, Perkins, Tor Kristian, Peters, Jeffrey, Piser, Dr. Joel, Pitroda, Arpita, Pitroda, Salil, Potter, Mary, Properties Gb7, Llc, Rabsatt, Gokce, Rabsatt, Sidney, Rahn, Joseph W., Ramsey, Craig D., Reyer, Ruhee, Reyer, Thomas, Reynoso, Randall E., Riccitiello, John, Ruehle, Julie, Ruehle, William, Sanner, Richard, Santimauro, Lanelle, Santimauro, Michael, Saturnino, Fanlo, Sbk Global Llc, Schmit, Sandra S., Schweikert, Timothy, Sciarioni, Jeff, Shadduck, John Hayne, Sills, Blake R, Snyder, Amy V., Snyder,, Mary Potter, Soucy, Alan, Soucy, Sharon, Springer, Daniel, Stavropoulos, Nickolas, Stavropoulos, Patrina, Stull, Patrick, Stull, Sally, Subaiya, Thimaya, Sweet, Richard M., Tam, Kelly K.S., Tam, Teddy T.S., Tanny, Lauren, Testa, James, Tom, Yvette, Turgeon, Judith L., Upson, Paula A., Wayne, Carol, Wayne, Howard, Whitley, Dr. Richard, Winoto, Megawati, Winoto, Nagawidjaja, Wittlinger, Gwennie, Wittlinger, Lee, Wood, James, Wu, Benjamin, Xin, Jian, Ying, Xu Ming, Young, Kevin, Yuann, James, Yuann, Kevin, Yuann, Marie, Yuann, Michael, Yuann, Natalie, and Alameda-Contra Costa Transit District, Balfour Beatty Infrastructure, Inc., Cementaid International Marketing Ltd., City And County Of San Francisco, Desimone Consulting Engineers, Llc, A Delaware, Does 1-50, Inclusive, Does 1 Through 200, Inclusive, Does 1 Through 250, Does 1 To 20, Inclusive, Gpk & Associates, Kowalczyk, Bryant, Langan Engineering And Environment Services, Inc., Millenium Tower Association, Millennium Partners, A Partnership, Millennium Partners Llc, A New York Limited, Millennium Partners Management Llc, Millennium Tower Association, Mission Street Development, Llc, Mission Street Development Llc, A Delaware Limited, Mission Street Holdings Llc, Mission Street Holdings Llc, A Delaware Limited, Peninsula Corridor Joint Powers Board, Roes 1 Through 200, Inclusive, Symonds, Iii, William Thomas, Symonds, Melissa Lewis, The Alameda-Contra Costa Transit District, The City And County Of San Francisco, The Millennium Tower Association, The Millennium Tower Association, A California, The Peninsula Corridor Joint Powers Board, The State Of California, Department Transportation, Transbay Joint Powers Authority, Webcor Construction Lp,, for EMINENT DOMAIN in the District Court of San Francisco County.
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1 Rod A. Baydaline, State Bar No. 163964 2 Angela C. Thompson, State Bar No. 238708 BAYDALINE & JACOBSEN LLP ELECTRONICALLY 3 895 University Avenue F I L E D Sacramento, California 95825 Superior Court of California, County of San Francisco 4 Telephone: (916) 669-3500 Facsimile: (916) 669-3501 07/06/2020 5 Clerk of the Court Attorneys for Defendant BY: EDNALEEN ALEGRE Deputy Clerk 6 THE MILLENIUM TOWER ASSOCIATION, a California Nonprofit Mutual Benefit Corporation 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SAN FRANCISCO 10 LAURA S. LEHMAN, LEAD CASE NO. CGC-16-553758 11 Plaintiff, CASE NO. CGC-20-583089 12 vs. 13 TRANSBAY JOINT POWERS SUPPLEMENTAL REQUEST FOR 14 AUTHORITY, ET AL., JUDICIAL NOTICE IN SUPPORT OF MILLENNIUM TOWER ASSOCIATION'S 15 RESPONDING PARTYs. NOTICE OF MOTION AND MOTION FOR CONSOLIDATION OF RELATED 16 And Related and Consolidated Cases CASES; EXHIBIT A - PART 1 17 18 DONALD EUGENE SNYDER and 19 MARY POTTER SNYDER, as Individuals and Trustees or Succesor Trustees of The 20 Bozoclown Trust, 21 Plaintiffs, 22 vs. 23 MILLENNIUM TOWER ASSOCIATION and DOES 2 through 20, Inclusive, 24 Defendants. 25 26 27 28 -1- SUPPLEMENTAL REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MILLENNIUM TOWER ASSOCIATION'S Baydaline & Jacobsen LLP 895 University Avenue NOTICE OF MOTION AND MOTION FOR CONSOLIDATION OF RELATED CASES; EXHIBIT A - Sacramento. Califomia95825 PART J Exhibit "A" 1 Daniel L. Rottinghaus, Esq., California State Bar No. 131949 Scott M. Mackey, Esq., California State Bar No. 222217 2 Seema N. Kadaba, Esq., California State Bar No. 304952 BERDING & WEIL LLP ELECTRONICALLY 3 2175 N. California Blvd., Suite 500 FILED Walnut Creek, California 94596 Superior Court of California, County of San Francisco 4 Telephone: 925/838-2090 Facsimile: 925/820-5592 04/08/2020 5 Clerk of the Court BY: ANNIE PASCUAL Allan Steyer, Esq., California State Bar No. 100318 Deputy Clerk 6 D. Scott Macrae, Esq., California State Bar No. 104663 STEYER LOWENTHAL BOODROOKAS 7 ALVAREZ & SMITH LLP 235 Pine Street, 15th Floor 8 San Francisco, California 94104 Telephone: (415) 421-3400 9 Facsimile: (415) 421-2234 10 Attorneys for Plaintiffs MAUI PEAKS CORPORATION, NGMII LLC, and IAN KAO 11 12 SUPERIOR COURT OF THE STATE OF CALIFORNIA 13 FOR THE COUNTY OF SAN FRANCISCO 15 LAURA S. LEHMAN, et al., Lead Case No. CGC-16-553758 16 Plaintiffs, APPENDIX OF EVIDENCE IN SUPPORT OF SUPPLEMENTAL BRIEFING RE: MOTION 17 V. FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 18 TRANSBAY JOINT POWERS AUTHORITY, et al., PART 1 OF6 19 Defendants. 20 Date: And Related & Consolidated cases. Time: 21 Location: Courtroom 303 This document applies to 22 Maui Peaks Corporation, et al. v. Mission 23 Street Development, et al. - CGC 17-17- 560322 24 25 26 27 28 APPENDIX OF EVIDENCE IN SUPPORT OF SUPPLEMENTAL BRIEFING RE: MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 1795930.1 - MILLENNIUM.TOWER EXHIBIT 2 GLOBAL SETTLEMENT AGREEMENT Global Settlement Agreement Millennium Tower Litigation This Global Settlement Agreement is executed as of March 9, 2020 ("Execution Date") by and among the parties and entities identified individually by name in Exhibits 1.a and 1.b, which are attached and incorporated herein by reference. Capitalized terms have the meaning set forth herein. As further defined in Section 1.35, the parties are hereinafter collectively referred to as "Settling Parties" unless specifically referenced by name. 1. DEFINITIONS 1.1. "Adjacent Property" means each of the following properties and improvements thereon: (i) the Transbay Transit Center property (now known as the Salesforce Transit Center); (ii) the Salesforce Tower property located at 415 Mission Street; and (iii) the property located at 350 Mission Street (now known as Salesforce East) (collectively the "Adjacent Properties"). 1.2. "Adjacent Property Owners" means any past, current, or future owners of any property interests in the Adjacent Properties and their Related Persons and Entities. 1.3. "Attorneys' Fees and Expenses" means all attorneys' fees and costs, expert fees and costs, investigative costs, and witness fees related to: (i) the Upgrade Plan; (ii) repairs of the Subject Property; (iii) the Subject Action; (iv) the mediation of the Subject Action (including fees and costs paid to the mediation team); (v) the negotiation and implementation of this Global Settlement Agreement, the Proceeds Agreement and other settlement documents, including the Class Action Settlement Agreement; and (vi) any effort to obtain a Final Approval Order or to satisfy other conditions to settlement in this Global Settlement Agreement or the Class Action Settlement Agreement. 1.4. "Catastrophic Damage" is a man-made event that causes physical damage to, and significantly affects the value of, five or more residential units in the Subject Property. Jl.5. "CCSF" means the City and County of San Francisco, each of which is a Settling Party. 1.6. "City Conditions" means each of the following events that are express conditions precedent to the validity and enforceability of this Global Settlement Agreement: (a) Completion by the CCSF of its environmental review as required by CEQA, the completion of which occurred through the publication by the San Francisco Planning Commission of that certain written Mitigated Negative Declaration ("MND") on December 27, 2019; (b) Approval of the Global Settlement Agreement and the Class Action Settlement Agreement by the CCSF Board of Supervisors ("CCSFBS") by formal adoption of an ordinance authorizing the Global Settlement Agreement and the Class Action Settlement Agreement followed by approval by the Mayor; (c) Approval by the CCSFBS by fonnal adoption of the Street Vacation Ordinance; (d) Approval by the CCSFBS by formal adoption oflegislation, which, at the MTA's request, will condition the conveyance of the City Easement on the issuance of a final and effective building permit, authorizing the City Easement in substantially the same form as set forth in Exhibit 2 (the "City Easement"); and (e) Approval by the CCSFBS of the Trust Exchange Resolution. 1 1.7. City Easement. City Easement means the easement agreement identified in Section 1.6 above. CCSF shall cause the City Easement to be recorded no later than five (5) days after CCSF is dismissed from all Subject Actions to which it is a party. 1.8. "Claim" or "Claims" means any and all past, present, and future rights, claims, cross- claims, class claims, suits, demands, liabilities,damages, losses, debts, obligations, dues, liens, actions, and causes of action of every kind or nature whatsoever, whether known or unknown, whether foreseen or unforeseen, whether vested or contingent, whether accrued or unaccrued, whether based on direct or secondary liability (including, without limitation, agency or alter ego), whether subrogated or unsubrogated, including, but not limited to: claims in law, equity, tort, by statute, in contract, warranty, equity, extra-contractual, and for breach of the duty of good faith and fair dealing, unfair settlement practices, strict liability, negligence (including, without limitation, gross and professional negligence), breach of contract, inverse condemnation, inconvenience, interference, nuisance, express indemnity, equitable indemnity, apportionment, contribution, subrogation, defense costs, alleged duties to provide insurance, punitive or exemplary damages, intentional conduct, malice, libel, slander, defamation, mental anguish, fraud, misrepresentation, conspiracy to commit fraud, diminution in value, stigma, loss of use, loss of enjoyment, loss of business opportunity, damage to business reputation, lost profits or goodwill, consequential damages, special damages, general damages, personal property damage, real property damages, economic and non-economic damages, restitution, rescission, and compensatory damages, interest, Attorney's Fees and Expenses, other attorneys' fees and expenses, costs of court, tax liabilities,penalties, claims under any statute, state or federal constitution, common law or any other theory of recovery. ].9. "Class Action" means the suit styled Maui Peaks Corporation, et al. v. Mission Street Development LLC, et al., Case No. CGC-17-560322, Superior Court of the State of California in and for the County of San Francisco, and is part of the "Subject Action." 1.10. "Class Actiom. Settlement Admiinistrator" means EPIQ Class Action and Claims Sohlttions, Inc. ("Epiq") which, subject to approval by the Court, will perform those tasks as outlined in the Class Action Settlement Agreement and the separate agreement retaining the Class Action Settlement Administrator's services for the Class Action Settlement Agreement. 1.11. "Class Action Settlement Agreement" means the settlement agreement pertaining to the Class Action, a copy of which (without exhibits) is attached hereto as Exhibit 7. As provided for in Section 3.3, the Global Settlement Agreement is conditioned upon and shall not be effective unless and until all applicable court(s) (including if there are any resulting appeals) grant( s) finalapproval of the Class Action Settlement Agreement. A challenge, including appeals, solely to fees or cost reimbursements to class counsel shall have no effect on the finality of the Global Settlement Agreement. 1.12. "TJPA Easement Agreement" means the 2008 Easement Agreement executed by MSD and the TJPA and the First Amended Easement Agreement executed by MSD, MTA and the TJPA. 2 1.13. "Effective Date" means the day all of the conditions in Section 3.3 below are satisfied. In no event, shall the Effective Date be earlier than May 31, 2020. 1.14. "Environmental Review" means environmental review of the Upgrade Plan under the California Environmental Quality Act ("CEQA") (California Public Resources Code Sections 21000 et seq.), the CEQA Guidelines (California Code of Regulations, Title 14, Sections 15000 et seq.), and Chapter 31 of the San Francisco Administrative Code. 1.15. "Final Approval Order" shall have the meaning given to it in Section 2.25 of the attached Class Action Settlement Agreement. 1.16. "Global Settlement Administrator" means Citibank, N.A., who will perform certain tasks as outlined in this Global Settlement Agreement. 1.17. "Global Settlement Agreement" means this Global Settlement Agreement, including all terms and exhibits hereto. 1.18. "Global Settlement Proceeds" means the aggregate total amount of agreed contributions from certain Settling Parties, including TJPA, and/or their insurers or risk financing entities, and distributed by the Global Settlement Administrator pursuant to the Global Settlement Agreement and/or the Proceeds Agreement. 1.19. "MSD~' means Mission Street Development, LLC, a Settling Party herein. For the avoidance of doubt, MSD is not, and shall not be, included within the definition of the Unit Holder, Upgrade Contractor, or Upgrade Design Professional. 1.20. "MTA" means the Millennium Tower Association, a Settling Party herein. 1.21. "Non-Upgrade Repairs" means all repairs to be made by or on behalf ofMTA and/or the Unit Holders to address any defects or damages to the Subject Property, excluding the Upgrade. 1.22. "Ongoing Operations" means construction activities at 30 1 Mission Street related to the Upgrade from and after the Execution Date, but does not extend to completed construction activities for work related to the Upgrade or by the Upgrade Contractor. The Ongoing Operations will be deemed completed at the earliest of the following times: (a) when all of the Upgrade Contractor's work set forth in the Upgrade Contractor's contract to construct the Upgrade has been completed; (b) when all of the work to be done by the Upgrade Contractor at the Millennium Tower site has been completed; or ( c) when the Upgrade at the Millennium Tower site has been put to itsintended use by any person or organization other than another contractor or subcontractor working on the Upgrade. Work that may need service, maintenance, repair or replacement, but which is otherwise complete, will be treated as completed. 1.23. "Opt Out" means a request by a Class Member to be excluded from the settlement class by following the procedures in the Preliminary Approval Order and the Class Notice, as each of those terms are defined and as provided for in Sections 2.41 and 2.14 respectively, of the Class Action Settlement Agreement. 3 1.24. "Opt Out Deadline" means forty-five (45) calendar days after the Notice Date, as defined in Section 2.31 of the Class Action Settlement Agreement, or such other date as the Court may set. Any Request for Exclusion under Section 9 .3of the Class Action Settlement Agreement must be postmarked no later than the Opt Out Deadline. 1.25. "Opt Out Limit" means a numerical limit on the number of Opt Outs permitted, which has been separately agreed to by the Class Action Settling Parties in accordance with the Class Action Settlement Agreement upon which such number being exceeded each Settling Defendant's termination rights under Section 4.3 below shall vest. The Opt Out Limit will be confidentially disclosed to the Court should it be exceeded or should the Court request it as part of the Class Action Settlement Approval process. 1.26. "Paying Settling Parties" mean those Settling Parties (except TJPA and CCSF) who are making, or on whose behalf their insurers will make, confidential payments toward the Global Settlement Proceeds pursuant to the Proceeds Agreement. 1.27. "Plaintiffs' Groups" means the groups of individual plaintiffs identified in Exhibit 3 who have filed separate cases that are part of the Subject Action. 1.28. "Proceeds Agreement" means the confidential written Proceeds Deposit and Payment Agreement pursuant to which the Settling Parties will each pay their respective portion of the Global Settlement Proceeds or receive their respective portion of the Global Settlement Proceeds (except TJPA and its members, including CCSF whose contributions, if any, are set forth in section 3.1) and the Settlement Class Members (whose receipts are covered by the Class Action Settlement Agreement). For the avoidance of doubt, the Settlement Class Members and TJP A and its members, including CCSF, are not signatories to the Proceeds Agreement. 1.29. "Related Persons and Entities" shall refer to a Settling Party's past, present and future: parent companies, divisions, subsidiaries 1 affiliates, related corporations and entities, alter egos, members, managers, directors, officers, board members, contract professionals, employees, agents, insurers of every type (including but not limited to primary, excess, and umbrella, comprehensive general liability, professional liability, and other types of insurers, risk financing entities, carriers, sureties, reinsurers, or retrocessionaires ), attorneys, experts, lenders, designers, lienholders, mortgagees, predecessors, partners,joint venturers, legal representatives, heirs, administrators, trustors, trustees, beneficiaries, assigns, successors, legal and/or equitable owners, or any other successors in interest of any type or character whatsoever, transferees, future unit owners, contractors, subcontractors, architects, engineers, subconsultants and suppliers of any tier including but not limited to any person or entity insured under one or more of the contractor controlled insurance program ("CCIP") policies procured in connection with construction of the Subject Property and/or any person or entity insured under one or more of the CCIP policies procured in connection with construction of the Salesforce Tower project (including, but not limited to, the enrollees identified in Exhibit 4 attached hereto and incorporated herein by this reference). For former and current owners of units in the Subject Property, Related Persons and Entities shall also include co-owners, and any person with a legal and/or equitable ownership in a unit, spouses and other family members of owners, family trusts, 4 tenants (including but not limited to, sub-tenants, co-tenants, and tenants in common) licensees, and occupants of a Settling Party. Notwithstanding anything in this Global Settlement Agreement to the contrary, the Upgrade Contractor and Upgrade Design Professional are not a Settling Party or a Related Person or Entity for or with respect to any act or omission with respect to the Upgrade. For avoidance of doubt, any future: contractors, subcontractors, architects, engineers, consultants, subconsultants, and suppliers of any tier retained by or on behalf of MTA or MSD, with respect to the Upgrade, Upgrade Construction Activities or the Upgrade Plan do not fall within the definition of Related Persons or Entities with respect to that work. For avoidance of doubt, any future: contractors, subcontractors, architects, engineers, consultants, subconsultants, and suppliers of any tier retained by or on behalf of MTA or Unit Holders with respect to Non- Upgrade Repairs, or other maintenance, repair, or construction activities at the Subject Property do not fall within the definition of Related Persons or Entities with respect to that work. 1.30. "Released Matters" means the Subject Action Claims and the Upgrade-Related Claims but not including: (1) any subsequent Claims to enforce the terms of this Global Settlement Agreement; (2) any Claims relating to the indemnity obligations set forth in Section 7 .12 and 7.16; (3) the Assigned Claims, as defined in Section 7.4; (4) Claims that the MTA retains as provided for in Section 7.5; (5) Claims that the Unit Holders retain as provided for in Section 7.6; (6) Claims that the Adjacent Property Owners retain as provided for m Section 7.7; (7) Claims that are within the exception as to Governmental Functions as provided for in Section 7.8; (8) Any claims for reimbursement of defense fees and costs, against an insurance company or risk financing entity allegedly owed pursuant to additional insured coverage. This exception does not include claims for reimbursement of any portion of the Global Settlement Proceeds against an insurance company or risk financing entity allegedly owed pursuant to additional insured obligations, which are satisfied and released pursuant to the Global Settlement Agreement. Further, this exception does not apply to any claims for defense fees and costs by or against a CCIP; (9) Any claims for reimbursement solely regarding payments toward the Global Settlement Proceeds made by insurers or risk financing entities of a named 5 insured for equitable indemnity, equitable contribution, or equitable subrogation against other insurers of the same insured. This exception does not include claims for additional insured indemnity obligations or payments from Millennium Tower CCIP insurers; and ( 10) Claims that are provided for in Section 7 .17 below. Clauses 8 and 9 of this Section shall not apply to TJPA's carriers or risk financing entities, SDRMA and Evanston, as to which such claims are fully released, which release concerns solely the obligations under those policies or liability coverage agreements, including additional insured and additional covered party endorsements and certificates, issued by SDRMA and Evanston to TJPA and MSD. Likewise, SDRMA and Evanston, fully release all insurers and Parties to the Global Settlement Agreement for any claims relating to or arising out of any settlement payment made by SDRMA and Evanston for any monies paid on behalf of TJP A. The exclusion of any matter from the Released Matters does not suggest that any carved- out claim has merit and all parties retain their rights and defenses as to those claims. 1.31. "Released Parties" means the Settling Parties and the Related Persons and Entities. 1.32. "Settlement Class Members" shall have the meaning as set forth in Section 2.47 of the attached Class Action Settlement Agreement. 1.33. "Settling Defendants" means all defendants, cross-defendants, and signatories to this Global Settlement Agreement as shown on Exhibit 1.b who are settling pursuant to this Global Settlement Agreement ( a "Settling Defendant" refers to a singular member of any of the foregoing groups that collectively constitute "Settling Defendants"). For the avoidance of doubt, the Settling Defendants do not and shall not include the Upgrade Contractor and Upgrade Design Professional, or the MTA. 1.34. "Settlement Payments" means the payments from the Global Settlement Proceeds to be made to the Class Action Settlement Administrator, the MTA and the Plaintiffs' Groups under the tem1s of this Global Settlement Agreement, the Proceeds Agreement and/or the Class Action Settlement Agreement. 1.35. "Settling Parties" means the collective signatories to this Global Settlement Agreement as are identified in Exhibit 1.a and Exhibit 1.b, and all Settlement Class Members as defined in the Class Action Settlement Agreement (a "Settling Party" refers to a singular member of the foregoing groups that collectively constitute "Settling Parties"). 1.36. "Settling Plaintiffs" means the parties listed in Exhibit 1.a, as well as all Settlement Class Members defined in Section of 2.4 7 the Class Action Settlement Agreement. 1.37. "Street Vacation Ordinance" means a CCSFBS ordinance ordering the vacation of the sidewalk portion of streets on the south side of Mission Street at the intersection of Mission and Fremont Streets and on the east side of Fremont Street at the same intersection in substantially the same form as Exhibit 8. 6 1.38. "Subject Action(s)" means collectively each and every action listed in Exhibit 5, be they actions in the Superior Court, federal court, or any other alternative dispute resolution forum. 1.39. "Subject Action Claims" means any and all Claims that any Settling Party or Related Persons and Entities may have, ever had, now has, or may hereafter have related to or arising out of: (a) movement (including, but not limited to, vertical settlement and tilt) of the Subject Property; (b) the performance, original design or construction of the Subject Property including the design or manufacture of any component parts, or any damage, defects, conditions or loss to or use of the Subject Property, whether patent or latent, including, without limitation, any claimed non-conforming or defective conditions or repairs or violations of statutory standards for residential construction; (c) the sale, lease, or transfer of any rights in the Subject Property, including but not limited to the sale, lease, or transfer of any units in the Subject Property; and/or (d) all Claims and cross-claims that have been or could have been asserted in the Subject Action related to the Subject Property. Notwithstanding the foregoing or anything else in this Global Settlement Agreement, Subject Action Claims do not include Claims preserved by sections 1.30, 7.4, 7.5, 7.6, 7.7, and 7.17. 1.40. "Subject Property" means the entire Millennium Tower development, including but not limited to the real property located at 301 Mission Street, San Francisco, California 94105, and all improvements thereon and appurtenant thereto and thereunder, and the Millennium Tower (i.e., the tower itself); the podium structure, the basement; the piles; the mid-rise structure; the parking areas (including the parking garage); common areas; fixtures; personal property that at any time was located at the Subject Property; commercial areas; utilities; individual residential units; and all land. VUo ''TJPA" means the Trans bay Joint Powers Authority, a Settling Party herein. 1.42. "Trust Exchange Resolution" means a CCSFBS resolution approving the removal of the Public Trust for commerce, navigation, and fisheries imposed by the Burton Act on portions of streets on the south side of Mission Street at the intersection of Mission and Fremont Streets and on the east side of Fremont Street at the same intersection as well as other areas on Mission, Fremont, and Beale Streets and addition of the Public Trust on certain streets near Fisherman's Wharf, as set forth in Exhibit 9. 1.43. "Unit Holder" means (1) the owner of any individual unit or combination of units in the Subject Property that is a plaintiff, cross-complainant, or a Settlement Class Member in any case within the Subject Action; and (2) any other person or entity who, as of the Execution Date, claims any interest, whether legal or equitable, in the title of one or more residential or commercial unit in the Subject Property owned by another, including, but not limited to, predecessors, successors, assigns, lessees, sublessees, trustees, beneficiaries, or devisees of such person or entity. For the avoidance of any doubt, Unit Holder does not include the MTA. 1.44. "Upgrade" means work that has been performed, and is to be performed, as part of the Upgrade Plan. 7 1.45. "Upgrade Construction Activities" means and is limited to action taken by any person or entity in connection with designing, planning, coordinating, constructing, providing material or services for, or otherwise participating in implementing the Upgrade Plan. 1.46. "Upgrade Contractor" means Shimmick Construction, Inc., and its subcontractors, consultants and suppliers retained to construct the Upgrade and any successors or assignees. Upgrade Contractor shall also include any new or replacement contractor, subcontractors, consultants and suppliers retained to perform all or any portion of the work to be performed by the Upgrade Contractor. 1.47. "Upgrade Design Professional" means Simpson Gumpertz & Heger, Inc. and its subconsultants retained in connection with the design of the Upgrade and any successors thereto. 1.48. "Upgrade Plan" means the plan for the perimeter pile upgrade being undertaken on behalf of the MTA as a voluntary seismic upgrade and foundation stabilization for the Subject Property (City and County of San Francisco, Department of Building Inspection ("SFDBI") Permit No. 2018.12.04.7402), and the associated shoring and excavation design (SFDBI Permit No. 2018.12.07.7819) and indicator pile program (SFDBI Permit No.2018.12.07.7828), and includes all designs, drawings, and plans prepared for the Upgrade and available with SFDBI. L49o "Upgrade-Related Claim(s)'~ means, except as provided below, (a) any and all Claims that any Settling Party or Related Persons and Entities may have, ever had, now has, or may hereafter have which allegedly arise out of or relate to the design, engineering, construction or performance or non-performance of the Upgrade, the Upgrade Plan, and the Upgrade Construction Activities, including, but not limited to, claims for economic damages, non-economic damages, property damage, diminution in value, stigma, loss of use, distress, bad faith, attorneys' fees, expert fees, repair costs, investigative costs, and any other acts or omissions, conduct or damage of every kind and nature whatsoever; and (b) any and allClaims rdated to inconvenience, interference, nuisance, or other claims based on alleged impacts on use or enjoyment of the Subject Property. Notwithstanding the foregoing or anything else in this Global Settlement Agreement, certain Upgrade- Related Claims are not released by this Global Settlement Agreement, and are instead expressly reserved by Sections 1.30, 7.4, 7.5, 7.6, and 7.7. 2. FACTUAL REPRESENTATIONS 2.1. Beginning on or about August 17, 2016, various plaintiffs filed complaints asserting causes of action against numerous defendants related to movement of the Subject Property and other alleged defects or damages caused to the Subject Property, which complaints have been related, coordinated and/or consolidated under the case entitled, Laura S. Lehman v. Transbay Joint Powers Authority, et al., Case Number CGC-16-553758 in the Superior Court of San Francisco and which, along with other cases, are listed in Exhibit 5. The defendants deny generally the allegations contained in the complaints. 8 2.2. In cases that have been coordinated under the case entitled, Laura S. Lehman v. Transbay Joint Powers Authority, et al., Case Number CGC-16-553758, various defendants and cross-defendants have initiated cross-complaints, and various other parties have appeared as cross-defendants and cross-complainants. The cross-defendants deny generally the allegations in the cross-complaints. 2.3. Initial mediation efforts relating to any Subject Action Claims began in September 2016, with regard to a Right to Repair Act claim that was noticed by the Millennium Tower Association, and that later expanded to include other claims and parties. 2.4. After the initial mediation efforts did not succeed in resolving the Right to Repair Act claim and other Subject Action Claims, all Settling Parties began participating in a global mediation before a mediation team led by the Honorable Daniel Weinstein that also includes the Honorable Ronald Sabraw, Gerald Kurland, Gard Holby, and Peter Kamminga, to address all disputes among the Settling Parties concerning the Subject Action. 2.5. These global mediation efforts have included numerous sessions with the mediation team, presentations by various parties and their experts, and extensive work between and among the Settling Parties and mediators. 2.6. As a result of the mediation efforts, extensive settlement discussions and negotiations, and in order to avoid the risks and costs of continued litigation, the Settling Parties desire to resolve the Subject Action and Releas,ed Matters between and among them finally and forever, pursuant to the terms of this Global Settlement Agreement. 2.7. The Settling Parties intend this Global Settlement Agreement to resolve the Subject Action and the Released Matters. 2.8. Pursuant to its governing documents, the MTA isthe owner of and has control over the common elements of the Subject Property, including but not limited to, the podium, the garage, and the foundation of the Millennium Tower, the 58-story, 645-foot-tall structure (the "Tower") that is a component of the Subject Property. 2.9. Subject to the permitting authority of the CCSF, and pursuant to the MTA's governing documents, the MTA has sole discretion and control over decisions as to whether to allow any upgrades or modifications to be made to the common elements of the Subject Property. As a component of the Global Settlement Agreement and the resolution of the MTA's Claims in the Subject Action, the MTA has adopted the Upgrade Plan to address and to resolve its Claims related to movement of the Subject Property and the causes and effects thereof. 2.10. The Upgrade Plan is a proposed upgrade to the foundation of the Tower. 2.11. The MTA is the project sponsor of the Upgrade and it has and will have control over the Upgrade Plan, as well as control over implementation of the Upgrade. 2.12. The Upgrade Plan may not be modified without the consent and approval of the MTA. 9 2.13. The Upgrade Contractor is Shimmick Construction, Inc., a subsidiary of AECOM. 2.14. Shimmick is a member of Shimmick-Nicholson Joint Venture, which is a Settling Party. Notwithstanding anything to the contrary contained herein, Shimmick's work on the Upgrade is unrelated to Shimmick-Nicholson Joint Venture's and its Related Persons or Entities ("SNJV") agreement to the terms of this Global Settlement Agreement and SNJV has no duties, responsibilities, obligations, liabilities, or other legal or equitable conne