Motion-Secondary: 2555 PULGAS EPA A CALIFORNIA LIMITED LIABILITY et al VS. SAN FRANCISCO TIFFANY GARDENS A CALIFORNIA LIMITED et al

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Harlan B, Watkins ~ 176458

Karen Stromeyer — 245712

MURPHY, PEARSON, BRADLEY & FEENEY
88 Keamy Street, 10th Floor

San Francisco, CA 94108-5530

Tel: (415) 788-1900

Fax: (415) 393-8087

Attorneys for Defendants

SAN FRANCISCO TIFFANY
GARDENS HOMEOWNERS
ASSOCIATION

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO

2555 PULGAS EPA, et al.
Plaintiffs,
v.

SAN FRANCISCO TIFFANY GARDENS, a
California Limited Liability Company, et al.

Defendants.

NABEEL YOUSSEF, individually and dba
GOOD FRIKIN CHICKEN,

Plaintiff,
¥

BRIAN MALONEY, et al.
Defendants.

AND RELATED CROSS-ACTIONS.

ELECTRONICALLY
Received Not Filed

Superior Court of California,
County of San Francisco

DEC 27 2012

Clerk of the Court
BY: ANNIE PASCUAL
Deputy Clerk

Case No: CGC-06-459175
(Consolidated with Action No, CGC-07-459371)

NOTICE OF SETTLEMENT AND
RETENTION OF JURISDICTION
FOLLOWING DISMISSAL PURSUANT TO
CODE OF CIVIL PROCEDURE SECTION
664.6 AND ORDER THEREON

Assigned for all purposes to
Hon. Richard A. Kramer
Dept 304

NOTICE IS HEREBY GIVEN:

That some of the Parties to this action, as set forth in Exhibit A have reached a settlement of

this matter. Said Parties have executed a Settlement Agreement containing the terms of the settlement,

NOTICE OF SETTLEMENT AND RETENTION OF JURISDICTION FOLLOWING DISMISSAL
PURSUANT TO
CODE OF CIVIL PROCEDURE SECTION 664.6CO ND HK B&W Dm

Ratt
BNUeRRERBRHE SSSR REESE AS

attached hereto as Exhibit A (the “Settlement Agreement”). The settlement reached requires
performance of numerous actions extending for a period of time into the future, The settling Parties
desire to enforce the Settlement Agreement by means of a motion in the instant action rather than filing
a separate action, and specifically intend that the Superior Court of California, County of San
Francisco retain continuing jurisdiction to enforce the Settlement Agreement, including after entry of
dismissal in this action, pursuant to California Code of Civil Procedure section 664.6. (Settlement
Agreement J 24.) Accordingly, any Request for Dismissal filed in the instant matter will be made

expressly subject to the Court retaining jurisdiction pursuant to 664.6.

DATED: December 12, 2012
MURPHY, PEARSON, BRADLEY & FEENEY

n Coun Sry

” Fran B. Watkins

Karen K. Stromeyer

Attomeys for Defendant/Cross-Complainant
SAN FRANCISCO TIFFANY GARDENS
HOMEOWNERS ASSOCIATION

ITIS HEREBY ORDERED:

That this Court shall retain jurisdiction to enforce the terms of the Settlement Agreement as

outlined above pursuant to California Code of Civil Procedure Section 664.6 including after entry of

dismissal.
Dated:
Judge of the Superior Court
-2-
NOTICE OF SETTLEMENT AND RETENTION OF JURISDICTION FOLLOWING DISMISSAL
PURSUANT TO

CODE OF CIVIL PROCEDURE SECTION 664.6EXHIBIT ASETTLEMENT AGREEMENT AND MUTUAL RELEASE

This Settlement Agreement and Mutual Release (heteafter referred to as “Agreement”) is made
between and among the following parties: 2555 PULGAS EPA, LLC and 29th & MISSION,
LLC (collectively “Pulgas”) SAN FRANCISCO TIFFANY GARDENS HOMEOWNERS
ASSOCIATION (“HOA”); NABEEL YOUSSEE, individually and dba GOOD FRIKIN
CHICKEN (collectively “GFC"); and SAN FRANCISCO TIFFANY GARDENS. LLC,
TIFFANY GARDENS, LP, EILEEN M, LONG, BRIAN P, MALONEY, JEREMIAH JOHN
CULLINANE and JOHN PAT SULLIVAN; JOHN SULLIVAN BUILDERS; JOHN
SULLIVAN BUILDERS, INC.; JPS BUILDERS, INC. (collectively “Developers”). Pulgus, the
HOA, GFC, and the Developers are collectively referred to in the Agreement as “the Parties.”

RECITALS

A. WHEREAS, the subject property is a mixed-use common interest development operating
pursuant to its governing documents including the Declaration of Covenants, Conditions,
and Restrictions (“CC&Rs”) recorded in the Official Records of the City and County of
San Francisco on August 29, 2005 as Document No. 20051021633, located at 199 Tiffany
Avenue, also known as 3294 Mission Street in San Francisco, California which consists of
33 residential condominium units and nine commercial units, and a two level, 80-car
parking garage with 40 spaces designated for residential use, and 40 spaces designated
for the use of the commercial tenants and their patrons (the “Property”).

B. WHEREAS, the HOA is a non-profit California Corporation created for the purpose of

managing the Property.

c. WHEREAS, the Developers built the Property, and were the original owners of the
Property.

D. WHEREAS, Pulgas purchased the nine commercial units and 40 attendant parking spaces
from the Developers in October 2006,

E. WHEREAS, Nabeel Youssef is the tenant in possession of two commercial units, Unit 10
and Unit 20, at the Property which units are used for the purpose of operating a restaurant
entitled Good Frikin Chicken,

Litigation

F, WHEREAS, on December 29, 2006, Pulgas filed a civil action in San Francisco Superior
Court, 2555 Pulgas EPA v, San Francisco Tifany Gardens, et al,, Case No. CGC06-
459175 (“Pulgas Civil Action”), against San Francisco Tiffany Gardens, LLC, and 17
individual residential-condominium owners at the Property seeking declaratory Jelief,
injunctive relief, and to quiet title relative to the proper use of certain areas of the
Property by both the residential owners and commercial tenants, as well as breach of
contract and fraud actions against San Francisco Tiffany Gardens, LLC.

G. WHEREAS, at the initiation of its civil action Pulgas was the owner of nine (9) of the

cXHIBIT *

Page 1 of 21 — Settlement Agreement and Mutual Releasecoramercial units at the Property and 40 parking spaces in the Property’s garage
designated for commercial tenant and patron use. Following bankruptcy proceedings,
three of the commercial units, Nos. 30, 50 and 60, were reverted to the mortgage holder,
Bank of the Orient. As of the date of the signing of this Agreement, Pulgas is the owner

WHEREAS, on January 7, 2007, GFC filed a civil action San Francisco Superior Court,
Nabeel Youssef individually and dba Good Frikin Chicken v. Brian Maloney, et al., Case
No. CGC07-459371 (“GFC Civil Action”), against the Developers and Pulgas,

WHEREAS, on July 13, 2007, the HOA filed a construction defect action in San
Francisco Superior Court, San Francisco Tiffany Gardens Homeowners Association y.
Tiffany Gardens, L.P., et al., Case No. CGC07-465139 (“Construction Defect Action”),
against the Developers and Nabeel Youssef, the complaint of which alleges construction
defects at the Property,

WHEREAS, on August 5, 2008, the GFC Civil Action and Construction Defect Action,
were consolidated with the Pulgas Civil Action, with the Pulgas Civil Action as the lead
case,

WHEREAS, on August 25, 2008, GFC filed a substantially revised First Amended
Complaint (“FAC”) adding the HOA as 2 defendant, as well as 20 individual residential-
condominium owners. The FAC Sought declaratory relief, injunctive relief, to quiet title
telative to the proper use Of certain areas of the Property by both the residential owners
and commercial tenants, as well and alleging causes of action for damages, attomeys’
fees, and costs against Pulgas and the Developers,

WHEREAS, on September 5, 2008, the Developers filed a cross-complaint under case
number CGC-06-459175, naming as a defendant, Nabeel Youssef, individually and d.b.a.
Good Frikin Chicken, among other defendants who are not a party hereto (the “Developer
Cross-Complaint”),

WHEREAS, on January 15, 2009, GFC amended its FAC to add 31 additional individual
residential-condominium owners as defen .

WHEREAS, on February 3, 2009, the consolidated actions were designated complex and
assigned to Department 304 before the Honorable Richard Kramer.

WHEREAS, on April 17, 2009, Pulgas amended its Complaint to edd the HOA asa
defendant pursuant to a November 6, 2008 Court Order compelling joinder.

WHEREAS, on August 10, 2009, the HOA filed a Cross-Complaint against Pulgas and
the Developers in the GFC Civil Action for indemnity,

WHEREAS, on June 2, 2010, all tesidential-condominium owners were dismissed from

Page 2 of 21 — Settlement Agreement and Mutual ReleaseT.

the Puigas Civil Action pursuant to Court Order,

WHEREAS, the HOA has maintained that the individual residential-condominium
Owners are unnecessary partles to the prosecution of the GEC Civil Action as the HOA is
defending this action in its Tepresentative capacity pursuant to Civil Code section 1368.3,

WHEREAS, GFC has maintained that, as the owners of the common areas at the
Property, the individual Tesidential-condominiym owners are necessary parties to the
prosecution of GFC’s Civil Action.

to Judgment” which, among other things, binds them to the outcome of the action, A true
and correct copy of the consent to judgment is attached hereto as Exhibit A to this
Agreement,

WHEREAS, on May 27, 2011, the Construction Defect Action was severed from the
Pulgas and GFC Civil Actions and its complex designation terminated.

WHEREAS, a separate settlement(s) has / have been reached related to the Construction
Defect Action, and those terms are not addressed in this Agreement, nor do those terms

have any effect on this Agreement, nor are those terms incorporated by reference in this
Agreement,

AGREEMENT

NOW, THEREFORE, in consideration of the foregoing covenants, promises and undertakings
set forth herein, and for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties agree as follows:

1

Recitals, The above Recitals are incorporated by reference and made a part of this
Agreement.

Settlement Payments, In consideration for the compromise Agreement herein, cach of
the Parties agrees as follows:

A. HOA Payment to GFC. The HOA will pay to GFC the sum total of one hundred
thirty thousand dollars and no cents ($130,000.00) as follows:

(i) The HOA and/or its insurer shall pay GFC ninety thousand dollars and no

sents ($90,000.00) upon completion of the ADA Restroom referenced
below and a final inspection of the ADA Restroom by the San Francisco

Page 3 of 21 ~ Settlement Agreement and Mutual Release®

3)

Building Department (“HOA Cash Settlement Funds”). The $90,000
Payment shall be delivered to counsel for GFC within twenty (20) days of
the completion of the ADA Restroom referenced below and a final
inspection of the ADA Restroom by the San Francisco Building
Department;

Good-faith efforts will be made to sell the three Below Market Rent Units
C'BMR units”) at the Property as soon as reasonably practicable after the
Effective Date of this Agreement, The HOA shall pay forty thousand
dollars and no cents ($40,000.00) to GFC (“BMR Settlement Funds”)
from the net proceeds of the sale of the first BMR unit to close escrow;
and

The HOA agrees to pay GFC’s share of the mediator’s fee for the May 23,
2012 mediation, as billed by ADR Services.

Pulgas Payment to GFC, Pulgas will pay to GFC the sum total of One-Hundred
and Seventy Five-Thousand dollars and no cents ($175,000,00) as follows:

(1)

Within ten (10) days of the Effective Date of this Agreement, Pulgas shall
pay to GFC the sum of $120,000.00 pursuant to the GFC Lease referenced
herein below, hereinafter the “Lease Payment;”

(a) In the event that Pulgas fails to pay the entire Lease Payment to
GFC within ten days of the Effective Date of this Agreement, GFC
shall be entitled to pay reduced rent related to the GFC Lease as
follows:

i, June 1, 2012- May 31, 2016 (48 Months): $4,000 per
month;

ii. Pursuant to the Lease, GFC shall not be responsible for any
Operating Costs whatsoever, as “Operating Costs” are
defined in the Lease, until the entire Lease Payment and the
$55,000.00 referenced in 2.B.(2), are paid in fall,

(©) Upon Pulgas’ payment and clearance of the entire funds of the
Lease Payment ($120,000.00) to GFC, GFC shall thereafter pay
Rent pursuant to the GFC Lease within fifteen days of clearance of
the funds of the Lease payment,

(©) Pulgas agrees that GFC is in good standing in its leasehold for the
Premises herein below described, and that Pulgas waives any and
all claims for back rent, late fees, attorney's fees, costs, charges,
assessments, penalties, etc. related to the Leasehold. Furthermore,
Pulgas agrees that GFC is current on all Rent and not in default
under any provision of any previous or current lease(s),

Page 4 of 21 ~ Settlement Agreement and Mutual Release.(2)

@)

amendment(s), addendum(s), etc. as of the Effective Date of this
Agreement.

(qd) Pulgas agrees that if any conflict arises with respect to Rent and
Operating Costs between the GFC Lease, the Amendment to Lease
signed on May 16, 2012 by Pulgas, and this Agreement, this
Agreement shall first control, then the Amendment to Lease shall
control, and lastly, the GFC Lease shall control only as to Rent
payments due by GFC to Pulgas and Operating Costs,

Within ten (10) days of the Effective Date of this Agreement, Pulgas shall
pay the sum total of $55,000.00 to GFC. GFC shall first use said funds to
complete the ADA Restroom, This Agreement is in no way contingent
upon Pulgas’ ability to obtain financing for payment of these funds to
GFC and a failure of Pulgas to obtain financing shall in no way excuse this
payment, or invalidate this Agreement or any portion of this Agreement;
and

If Pulgas fails to make the payment required in paragraph 2.B,(2) within
twenty (20) days of the Effective Date of this Agreement, then the HOA
agrees to advance the total sum of $55,000,00 of the HOA Cash
Settlement Funds to GFC, to be held in GFC's counsel’s client trust
account, for the exclusive use of being applied to the cost and expense of
the construction of the ADA Restroom, After completion of the ADA
restroom, GFC counsel shall be fully authorized to release the balance of
the $55,000.00, ifany, to GFC. The balance of the HOA Cash Settlement
Funds will be paid to GFC as set forth in paragraphs 2.A{1).

(@) —_Pulgas’ failure to pay $55,000.00 to GFC within 10 days of the
Effective Date of this Agreement shall be a breach of this
Agreement between Pulgas and GFC only, GFC shall be entitled
to enforce this, and any section of this Agreement pursuant to
Sections 24 and 25 of this Agreement. The HOA advancing funds
to GFC to complete the ADA restroom does not in anyway,
whatsoever, relieve Pulgas of its obligation to pay $55,000.00 to
GFC, in addition to the Lease Payment. Any breach of this
Agreement constituted of a failure by Pulgas to make the payments
to GFC required under this Agreement shall not be deemed &
breach of any other portion of this Agreement, shall not invalidate
this Agreement or any portion of this Agreement between any of
the other Parties.

Pulgas payment to HOA, Pulgas shall pay to the HOA past-due Homeowners
Dues, acknowledged by Pulgas to be overdue, in the sum total amount of forty-
eight thousand dollars and no cents. ($48,000.00). This sum will be made in
payments of four thousand dollars and no cents ($4,000.00) per month over a
period of twelve (12) consecutive months. The first installment payment is due

Page 5 of 21 ~ Settlement Agreement and Mutual Release3,

within thirty (30) days of the Effective Date of this agreement. Ifone payment is
more than five (5) days late, then after 24 hours notice, all parking garage fobs
and garage door openers used by parking lessees will be turned off until the
delinquent payment is delivered to the HOA. The HOA shall not be liable for any
loss of lessee parking use or parking revenue in the event the above-referenced
payment is late and parking garage fobs and gatage door openers are turned off
and parking operations are thereby interrupted.

GFC Lease, Within ten (10) days of the Effective Date of this Agreement, Pulgas and
GFC shall execute the lease for Units 10 and 20 (“GFC Lease”) which is attached hereto
as Exhibit B, The terms of the GFC Lease are hereby incorporated by reference.

A Within thirty (30) days of the Effective Date of this Agreement, GFC shall cease
all use of the garage, including but not limited to parking, except as provided in
section 17(c)(3), or otherwise permitted in this Agreement, GFC will receive an
advance of four thousand dollars ($4,000.00) of the HOA Cash Settlement Funds
to pay for alternative parking within seid thirty days.

B. Within thirty (30) days of the Effective Date of this Agreement, GFC shall cease
using, for any purpose, any common area at the Property. Notwithstanding this

are strictly necessary to accommodate an ADA accessible path of travel from
GFC’s dining room to its downstairs restroom, for GFC's customers, during its
regular business hours. This patl of travel shall be via the elevator and outdoor
staircase connecting the Courtyard level of the Property to the first floor catwalk.
At no time is any person permitted to usc the interior stairwell except for
emergency involving life or loss of | Property. This temporary access is permitted
until the ADA Restroom referenced below in paragraph 2.C.4 is completed and a
final inspection of the ADA Restroom by the San Francisco Building Department,

C. —-Pulgas shail obtain non-disturbance agreements as to the Amendment to Lease
and New Lease from all lenders as soon as is reasonably practical. Pulgas shall
have any and all lenders on the Premises ratify and agree to the terms of this
Agreement, specifically the reduced rent provisions of 2.B.(1)(a), above.

ADA Restroom, Within ten (10) days of the Effective Date of this Agreement, GFC will
file for any and all required permits to build a restroom on the street level of its premises
in Unit 20 (‘ADA Restroom”). The ADA Restroom shall satisfy all applicable City,
State, and Federal codes and regulations, including but not limited to the Americans with
Disabilities Act (“ADA”).

A. Upon receipt of all necessary permits, GFC will immediately hire personnel to
begin construction with licensed, bonded, professions to the above-referenced
ADA Restroom on the street level of its Premises in Unit 20,

Page 6 of 21 — Settlement Agreement and Mutual Release3,

Parking Operation, The HOA will not oppose Pulgas’ leasing of the commercial
parking spaces attached to Unit 40 in the garage to third parties on a month to month

basis.
A

The parking garage lessees will be subject to rules and regulations

by the HOA, which will proscribe, among other things, an authorized path of
travel for exit/entry of the Property and rules for conduct for the lessees. The
Tules and regulations are attached hereto as Exhibit C and may be amended only
in an agreement signed by Pulgas and the HOA.

Any parking arrangement must be terminated on 30 days notice if requested by
HOA for violations of these miles, Multiple or serious violations may require
immediate removal, HOA retains right to shet down the fob/garage openers for
violations if Pulgas does not remedy a serial or serious violation within 72 hours
of notification by the HOA of such a violation. The HOA shall not be liable for
any loss of lessee parking use or parking revenue in the event the above-
teferenced action is taken.

A copy of the parking agreements with contact information for the lessees will
provided to the HOA,

Pulgas shall not use the garage or permit anything to be done in or about the
garage that will in any way violate any law, statute, ordinance or governmental
tule or regulation or requirement of duly constituted public authorities (including,
without limitation, environmental laws) now in force or which may hereafter be
enacted or promulgated. Pulgas shall at its sole cost and expense determine
whether it is in compliance with the foregoing, shall obtain all necessary
government approvals and permits and shall promptly comply with all laws,
statutes, ordinances and governmental rules, regulations or requirements now in
force or which may hereafter be in force and with the requirements of the HOA
relating to or affecting the condition, use or occupancy of the garage.

Pulgas shall obtain general liability insurance with coverage limits of not less than
One Million Dollars ($1,000,000,00) per incident and Three Million Dollars
($3,000,000.00) in the aggregate insuring against any and all liability with respect
to Pulgas’ operations in the garage or arising out of the maintenance, use, or
ocoupancy thereof. Such insurance shall name the HOA and its board of directors
as edditional insureds, All policies of insurance shall be issued by insurance
companies qualified to do business in the State of California and rated A+, X or
better, or equivalent rating, in Best's Insurance Guide. A current declaration
sheet demonstrating the HOA and its board of directors as a named additional
insureds must be provided to the HOA before any parking by the general public in
the garage commences. Thereafter a current copy of the declaration page for the
above-referenced insurance coverage must be provided to the HOA annually, and
upon request,

Page 7 of 21 ~ Settlement Agreement and Mutual ReleaseF, Pulgas hereby assumes all risk that it may not be able to obtain permits to
lawfully operate the garage. In the event that Pulgas is unable to obtain permits to
lawfully operate the garage, that event in no way will invalidate this Agreement or
any other provision of this Agreement,

G. —_ Pulgas shall pay before delinquency any and all taxes, assessments, license fees,
and public charges levied, assessed, or imposed upon its business operation in the
garage, as well as upon all trade fixtures, leasehold improvements, merchandise
and other personal property in, on, or upon the garage, The HOA shall bear no
responsibility for making any of these payments.

H. _Pulgas hereby agrees to indemnify, protect, defend, save and hold the HOA, or
any of its or their respective officials, officers, directors, employees, volunteers,
affiliates, attorneys, agents, representatives, members, successors and assigns
harmless from and against any and all claims, actions, fines, citations, proceeding,
or the like, which may be asserted against the HOA arising out of, pertaining to or
in any way connected with allegations of Pulgas’ negligence, willful misconduct,
violation of local, state, or federal law, regulation, or ordinance relating to the
parking operation.

Tmprovements to Property. Improvements to the Property are needed in order to make
it ready for the general public to access it, while preserving the quality of life and safety
of the residential tenants. The cost and construction of these improvements will be the
sole responsibility of Pulgas, and the improvements must be fully completed before any
parking by the general public in the garage commences, The work to complete the
improvements must be performed in a good workmanlike manner by bonded, licensed,
professionals, whose work is subject to approval by the HOA, which approval will not be
unreasonably withheld. These improvements include:

A Additional fobs and garage door openers for parking lessees must be purchased,

B, ‘The 29th Street common stairwell street door and garage access must be fobbed to
allow access for parking lessees.

C. Gates must be installed in the 29th Street stairwell testricting access to residential
areas by parking lessees,

D. The doors/ locks on the Mission Street stairwells on the Street, courtyard, and
garage levels must be replaced,

E. Security cameras must be installed in the parking area and garage entrance and
linked with the existing security system,

F, Security camera in the 29th Street stairwell street entrance must be installed and
linked with the existing security system.

Page 8 of 21 — Settlement Agreement and Mutual Release13.

14,

G. Security cameras must be installed at the ‘Tiffany Avenue entrance and linked
with the existing security system, This improvement need not be made before
parking by the general public in the garage commences, but must be made before
disabled access via the Tiffany Avenue elevator is allowed. This in nO way
affects GFC’s access rights as outlined in section 3.B. hereinabove,

Hy. Tiffany Avenue doors must be made accessible and fobbed for disabled use, and
linked with the existing security system. This improvement need not be made
before parking by the general public in the garage commences, but must be made
before disabled access via the Tiffany Avenue elevator is allowed. This in no
way affects GFC’s temporary ADA access rights outlined in above section 3B.

Loading Dock. Within thirty (30) days of the Effective Date of this Agreement, the
HOA agrees to enter into a license agreement with Pulgas permitting use and access of
the loading dock for the remaining term, including any extensions, of the United States
Post Office tenancy.

Notice of Settlement, Within five (3) days of the Effective Date of this Agreement, all
Parties to this Agreement pursuing complaints or cross-complaints, shall file Notices of
Settlement with the Court.

GEC Dismissal, Within five (5) court days of receipt of all of the settlement payment(s)
from the HOA identified in paragraph 2.A (total sum of $130,000.00 from the HOA),
GFC shall file a dismissal with prejudice of its FAC as to the HOA and the Developers.
Within five (5) court days of, receipt of all of the settlement payment(s) from Pulgas
identified in paragraph 2.B (total sum of $175,000.00 from Pulgas), GFC shall dismiss its
FAC against Pulgas with prejudice. Upon receipt of a mutual release signed by the
releasing homeowner(s), GFC will file a dismissal with prejudice of its FAC as to each
releasing individual homeowner, GFC shall not be obligated to dismiss any homeowner
who fails and/or refuses to sign a mutual release.

I Hom er Defendants. The HOA agrees to use best efforts to facilitate
the signing of the mutual release by the named individual homeowners,

Pulgas Dismissal, Pulgas shall file a dismissal of its entire Complaint, with prejudice,
within seventy-five (75) days of the Effective Date of this Agreement,

HOA Dismissal, The HOA shall file a dismissal of its entire Cross-Complaint, with
Prejudice, within seventy-five (75) days of the Effective Date of this Agreement,

Developers Dismissal, The Developers shall file a dismissal of its entire Developer
Cross-Complaint, with prejudice, within thirty (30) days of the Effective Date of this
Agreement.

No Reliance, Except as expressly set forth in this Agreement, or in the attached Exhibits
executed in connection herewith, the Parties acknowledge and agree that no Party has

Page 9 of 2] ~ Settlement Agreement and Mutual Release15,

made, and specifically negates and disclaims any representations, warranties, promises,
covenants, agreements or guaranties of any kind or character whatsoever, whether
express or implied, oral or written, past or present, of, as to, concerning, or with respect
to (1) the value, nature, quality or condition of the Property; (2) the income to be derived
from the Property; (3) the suitability of the Property for any and all activities and uses
Which any of the Parties may conduct thereon; (4) the compliance by or of the Property or
its operation with any laws, rules, ordinances or regulations of any applicable
governmental authority or body; (5) the habitability, merchantability, profitability or
fitness for a particular purpose of the Property; (6) the manner or quality of the
construction materials, if any, incorporated into the Property; (7) the manner, quality,
state of repair or lack of repair of the Property; (8) compliance with any environmental
protection, pollution, or land use laws, rules, regulations, or requirements; (9) the costs
necessary to comply with the Americans with Disabilities Act or any other statue, law,
ordinance, code, rule, regulation, or imposing liability or standards of conduct concerning
access and accommodation for disabled persons.

Release of Claims, Waiver, Nothing in this Agreement shall be deemed in any way to
release claims between the Parties related to acts or events that do not arise from or relate
to the allegations in the actions 2555 Pulgas EPA v, San Francisco Tiffany Gardens, et
al., San Francisco County Superior Court Case Number Case No. CGC06-459175, or
Youssef'v. Maloney, et al, San Francisco County Superior Court Case Number CGC-07-
459371 (collectively “Actions”) including but not limited to claims for outstanding HOA
dues; and claims related to the Construction Defect Matter, San Francisco Tiffany
Gardens Homeowners Association v. Tiffany Gardens, L.P., et al, San Francisco Superior
Court Case No. CGC07-465139, Otherwise, this Agreement is a complete release as to
any and all claims or causes of action that arise from or could have arisen from, or that
telate to the allegations in the Actions as follows:

A. GFC Release, GFC irrevocably and unconditionally waives and releases all
objections or claims against, and releases all Parties, including their past, present,
and future officers, directors, employees, affiliates, attorneys, agents, insurers,
Successors and assigns with respect to any and all claims, including any right or
claim of contribution, demands, obligations, liabilities, indebtedness, breaches of
contract, breaches of duty or any relationship, acts or omissions, misfeasance,
malfeasance, cause of action or causes of action, controversies, damages, costs,
losses and expenses of every type, kind, nature, description or character, which in
any Way arise out of, are connected or relate to facts and circumstances that were
asserted in Youssefv, Maloney, et al., San Francisco County Superior Court Case
Number CGC-07-459371, or that were raised or could have been raised in the
consolidated action 2555 Pulgas EPA v, San Francisco Tiffany Gardens, at al.,
San Francisco County Superior Court Case Number Case No. CGC06-459175, as
well as any and all remaining or different claims between the Parties, except as
expressly stated in this Agreement, including but not limited to all claims for
indemnity, contribution, litigation costs, attomeys’ fees, or other fees or costs
arising from items set forth above,

Page 10 of 21 ~ Settlement Agreement and Mutual ReleaseD.

Pulgas Release, Pulgas irrevocably and unconditionally waives and releases all
objections or claims against, and releases all Parties, including their past, present,
and future officers, directors, employees, affiliates, attorneys, agents, insurers,
successors and assigns with respect to any and all claims, including any right or
claim of contribution, demands, obligations, Habilities, indebtedness, breaches of
contract, breaches of duty or any relationship, acts or omissions, misfeasance,
malfeasance, cause of action or causes of action, controversies, damages, costs,
losses and expenses of every type, kind, nature, description or character, which in
any way arise out of, are connected or relate to facts and circumstances that were
asserted in 2555 Pulgas EPA v. San Francisco Tiffany Gardens, et al, San
Francisco County Superior Court Case Number Case No, CGC06-459175, or that
were raised or could have been raised in the consolidated action Youssef v,
Maloney, et al, San Francisco County Superior Court Case Number CGC-07-
459371, as well as any and all remaining or different claims between the Parties,
except as expressly stated in this Agreement, including but not limited to all
claims for indemnity, contribution, litigation costs, attorneys’ fees, or other fees
or costs arising from items set forth above.

Developers Release. Developers irrevocably and unconditionally waives and
releases all objections or claims against, and releases all Parties, including their
past, present, and future officers, directors, employees, affiliates, attorneys,
agents, insurers, successors and assigns with respect to any and all claims,
including any right or claim of contribution, demands, obligations, liabilities,
indebtedness, breaches of contract, breaches of duty or any relationship, acts or
omissions, misfeasance, malfeasance, cause of action or causes of action,
controversies, damages, costs, losses and expenses of every type, kind, nature,
description or character, which in any way arise out of, are connected or relate to
facts and circumstances that were asserted in 2555 Pulgas EPA v. San Francisco
Tiffany Gardens, et al., San Francisco County Superior Court Case Number Case
No, CGC06-459175, or that were raised or could have been raised in the
consolidated action Youssef v, Maloney, et al., San Francisco County Superior
Court Case Number CGC-07-459371, as well as any and all remaining or
different claims between the Parties, except as expressly stated in this Agreement,
including but not limited to all claims for indemnity, contribution, litigation costs,
attomeys’ fees, or other fees or costs arising from items set forth above,

HOA Release, The HOA irrevocably and unconditionally waives and releases all
objections or claims against, and releases all Parties, including their past, present,
and future officers, directors, employees, affiliates, attorneys, agents, insurers,
successors and assigns with respect to any and all claims, incuding any right or
claim of contribution, demands, obligations, liabilities, indebtedness, breaches of
contract, breaches of duty or any relationship, acts or omissions, misfeasance,
malfeasance, cause of action or causes of action, controversies, damages, costs,
losses and expenses of every type, kind, nature, description or character, which in
any way arise out of, are connected or relate to facts and circumstances that were
asserted in 2555 Pulgas EPA vy, San Francisco Tiffany Gardens, et al., San
Francisco County Superior Court Case Number Case No. CGC06-4591 75, or that

Page 11 of 21 ~ Settlement Agreement and Mutual Release16,

17,

were raised or could have been raised in the consolidated action Youssef v,
Maloney, et al., San Francisco County Superior Court Case Number CGC-07+
459371, as well as any and all Temaining or different claims between the Parties,
except as expressly stated in this Agreement, including but not limited to all
claims for indemnity, contribution, litigation costs, attorneys’ fees, or other fees
or costs arising from items set forth above,

E Waive i ivi 2, Bach party to this Agreement
acknowledges that there is a risk that, subsequent to the execution of this
Agreement, it may incur, suffer or sustain injury, loss, damage, costs, attorneys’
fees, Expenses or any of these, which are in some way caused by and/or connected
with the persons, entities and/or matters referred to herein above, or which are
unknown and unanticipated at the dme this Agreement is signed, or which are not
presently capable of being ascertained, Each party to this agreement further
acknowledges that there is a risk that such damages as are known may become
more serious than any of them now expects or anticipates. Nevertheless, each
party to this Agreement acknowledges that this Agreement has been negotiated
and agreed upon in light of those risks and each of them hereby expressly waives
all rights each may have in any such unknown claims and assumes the risks that
the facts and law pertaining to this dispute may change or be different than it is
now known to each said party, In doing so, each party to this Agresment has had
the benefit of counsel, and has been advised of, understands, and knowingly and
specifically waives its rights under California Civil Code Section 1542 which
Provides as follows:

A general release does not extend to claims which the
creditor does not know or suspect to exist in his or her
favor at the time of executing the release, which if
known by him or her must have materially affected his
or her settlement with the debtor.

Denial of Liability, The Parties acknowledge and agree that the settlement contained in
this Agreement is in compromise and Settlement of a disputed claim or claims, and that
the provisions and covenants contained in this Agreement are not to be construed as an
admission of liability by any party, each of whom expressly denies such liability, or an
admission by any party that any claim lacks merit, and shall never at any time for any
Purpose be considered an admission of the truth of any of the allegations, claims, or
contentions made by any party against any of the other parties,

Warranty of Authority, In farther consideration of the said drafts or checks which are
made reference to below under this Agreement, the undersigned also agrees, represents,
and warrants as follows:

A Each party hereto expressly warrants and represents that as of the date of this

Page 12 of 21 ~ Settlement Agreement and Mutual Releaseany claim or demand relating to any rights surrendered by virtue of this
Agreement,

Each party hereto expressly warrants and represents that the person executing this
Agreement on its behalf is legally competent to and is authorized to enter into this
Agreement and to bind said party to its representations, terms, conditions and
covenants as set forth herein.

Pulgas expressly warrants and represents that the following conditions will be
material provisions of any lease or sale agreement for a commercial tenant or
owner in the Property including, but not limited to GFC: .

(1) No commercial unit tenant, patron, or guest shall have access or use of any
portion of the interior yard area, the elevators, or the stairways of the
Property except in case of emergency involving potential injury to person
or property,

(2) All commercial tenants, including but not limited to GFC, must operate
with all rear doors and windows closed, except in an emergency involving
potential injury to person or property.

@) No commercial unit tenant, patron, or guest shall have access to the roof.
without prior approval of the HOA, with the exception that GFC is
allowed to access to roof or garage as authorized by the HOA and/or
Eugene Burger Management Company (or other HOA approved
Management Company), and as set forth below,

i, HOA approved licensed, bonded, professional (“Professionals”)
shal] have access to the garage and roof between the hours of 10:00
a.m, ~ 8:00 p.m., Monday through Friday, for the purposes of
Toutine maintenance of GFC’s equipment as arranged through
Eugene Berger Property Management, or as set forth in the
governing documents for the Property.

. Emergency repairs (related to life, building or equipment safety)
are allowed, but require immediate notification to HOA and
Management Company.

ili. Said Professionals shall have access to the garage at any time for
emergency repair of GFC’s equipment.

iv, GPC and its employees shall be provided access to the roof in the
event of an emergency for the purposes of immediate emergency
tepairs to the fan belts atop the roof.

v. The following licensed, bonded, Professionals shall be allowed

access to the Building to perform routine and emergency
maintenance:

Page 13 of 21 ~ Settlement Agreement and Mutual Release19,

20.

21.

1. S&G Plumbing; License #841206; 961 Washington Street,
San Carlos, CA 94070; 415-333 7100,

vi. The Professionals list may from time to time be updated, so long as
the proposed professionals are licensed and bonded to perform the
maintenance required, and approved by the HOA as such, which
approval will not be unreasonably withheld,

vii, The HOA shall provide the Professionals with means of ‘access (i.e.
key(s), key fob(s)) for access to the Building's roof and garage
within ten (10) days of the effective date of this Agreement and
HOA approval, which approval will not be unreasonably withheld,

4) All commercial deliveries and access at the Property shall be taken though
the Mission Street or 29th Street entrances to the commercial units,

(S) No garbage shall be stored in any common area of the Property,

Suceessors Bound, ‘This Agreement shall be binding upon and inure to the benefit of the
Parties and their respective successors and permitted assigns,

Interpretation, In entering this Agreement, each party has relied upon the advice of the
party’s own attomeys of choice, and has not relied upon any representation of law or fact
by any other party hereto, The Parties to this Agreement hereby acknowledge that they
have had a sufficient opportunity to consult with their counsel Prior to executing the
Agreement. It is further acknowledged that the terms of this Agreement are contractual
and are not a mere recital, have been completely read and explained by said attorneys,
and that those terms are fully understood and voluntarily accepted. The parties, therefore,
expressly acknowledge and agree that this Agreement shall not be deemed prepared or
drafted by one party or another, or its attorneys, and will be construed accordingly.

Entire Agreement, This Agreement, including all agreements attached hereto,
supersedes any and all prior agreements and understandings of the parties and constitutes
the entire understanding between and among the parties with regard to the matters herein
set forth, There are no representations, warranties, agreements, nor undertakings, written
or oral, between or among the parties hereto, relating to the subject matter of this
Agreement which are not fully expressed, This expressly excludes any separate
settlement that have been reached related to the Construction Defect Action, and those
terms are not addressed in this Agreement, nor do those terms have any effect on this
Agreement, nor are those terms incorporated by reference in this Agreement.

Modification or Amendment, This Agreement may not be modified, amended, or
altered except in a writing signed by all Parties or their authorized legal representatives.

Choice of Law. This Agreement shall be governed by and construed in accordance with
the laws of the State of Califomia. The parties hereto stipulate that any action brought
hereunder or in connection herewith shall be brought and be proper in San Francisco
Superior Court.

Page 14 of 21 ~ Settlement Agreement and Mutual ReleaseWo the andersigned, have rend the foregiog Sctlement Agresment and Mates)
‘Releare aud atinewedge our understanding nnd agremogat fo taccoaients reer

paren: 4 jt!

2585. BPC, LLC

parently | iw

ase LLC
pate: th ' In. Se

Page 16 of21 ~ Settlement Agroceent and Mrinal ReleaseRECEIVED 69/11/2012 18:13 8886278029 SHAMIVEH SHAMTEH
Sep.11.2012 10:25 GOGOD FRIKIN' CHICKEN 4159701068 PAGE, lf 1

me 2M eol2

SAN FRANCISCO TIFFANY GARDENS LLC

DATED:
m
a eee
TIFFANY GARDENS, LP
DATED:
By:
Its,
DATED: RAN ULNAR
DATED:
JOHN SULLIVAN

Page 17 of 21 ~ Serdemeat Agroemant and Misa! ReleaseDATED:

NABEEL YOUSSEF, Individually and dba GOOD
FRIKIN CHICKEN

SAN FRANCISCO TIFFANY GARDENS LLC

DATED: _-/%~ 2. fhe:

DATED: fr/Be re Tt Mi SEG Utena

DATED:

JEREMIAH CULLINANE

DATED: Jy = 7% ~
AN

Page 17 of 21 - Settlement Agreement and Mutual ReleaseDATED;

NABEEL YOUSSEF, Individually and dba GOOD
FRIKIN CHICKEN

SAN FRANCISCO TIFFANY GARDENS LLC

DATED;

TIFFANY GARDENS, LP

DATED:

By:
Tes:

pateo, | ~ 26 ~ | Susl (thine.
TERER CULLINANE

DATED:

JOHN SULLIVAN

Page 17 of 21 — Settlement Agreement and Mutual Releasepare, 4 2) i2. le “es

DATED: 2
MALONEY

Dated: Shamiyoh & Shanieh, Attorneys at Law

venue Defeat NAB AND DBA
GOOD PRIKIN CHICKEN

TIFFANY GARDENS, LP, JEREMIAH
JOHN: GULLINANE. ‘and JOHN PAT

Page 18 of 31 — Senlenont Agowment and Mutual Release

Y /T ‘dovd

ABIHMAS 43TH S,DATED:

DATED:

EILEEN M. LONG

q-fl 1?

BRIAN P, MALONEY

Shamiyeh & Shamich, Attorneys at Law

») AC

Rami S. Shamieh, Esq., Attomey for
Plaintiff/Cross-Defendant NABEEL
YOUSSEF, INDIVIDUALLY AND DBA
GOOD FRIKIN CHICKEN

McKenna, Long & Aldridge LLP

Denis F. , Hsq., Attorney for
Defendants and Cross-Defendants SAN
FRANCISCO TIFFANY GARDENS LLC,
TIFFANY GARDENS, LP, JEREMIAH
JOHN CULLINANE and JOHN PAT
SULLIVAN

Poge 18 of 21 — Settlement Agreement and Mutual ReleaseDATED:

BILEEN M. LONG
DATED:
BRIAN. MALONEY
APPROVAL AS TO FORM:
.
Dated: Shamlyeh & Shamich, Attomeys at Law

Plains/Crone Dead NABREE

YOUSSEF, INDIVIDUALLY AND DBA
GOOD FRIKIN CHICKEN

ucts Set (2, 2012

Page 18 of 21 ~ Settlement Apreement and Mutual RefeasyDated:

EPA, LLC, AND 29TH & MISSION, LLC.

Dated Murphy, Pearson, Bradley & Feeney

Harlan B. Watkins, Eaq,, Atlomey for
Defendant/Cross-Complainant Defendants

Page 19 of 21 ~ Settlement Agreement and Wiutual ReleaseAutdrew Cross, Esq, Attorney for
2555 PULGAS
EPA, LLC, AND 29TH & MISSION, LLC

Senne Murphy, Pearson, Bradley & Feeney

wie \y pe
B, Watkins, Ea toro for

‘Defendants
SAN FRANCISCO TIFFANY GARDENS
HOMEOWNERS ASSOCIATION

Page 19 of 21 ~ Settlement Agreement and Mutual ReleaseEXHIBIT AHarlan B, Watkins - 176458
Karen K. Stromeyer «245712
MURPHY, P) Na BRADLEY & FEENEY
San Francisco, CA. 341083530
Tel: i § 788-1900
(415} 393-8087
Att for

‘Defendants
SAN F ISCO TIFFANY GARDENS
HOMEOWNERS ASSOCIATION

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO

wow DY Bw Dw em

=s

2555 PULGAS EPA, et al Case No. CGC-06-459175
Atal (Cousolidated with Action No, CGC-07-459371
Plaintiff, & Action No, CCT 48519)

a5

ve

SAN FRANCISCO TIFFANY GARDENS, a
California Ltd Liability Co. etal,

Defendants.

NABEEL YOUSSEF, individually and dba

GOOD FRIKIN CHICKEN,

Plaintiff,
y

BRIAN MALONEY, et al,
Defendants,

CONSENT TO JUDGMENT

SAN FRANCISCO TIFFANY GARDENS
HOMEOWNERS ASSOCIATION, et al,

Defendants,

AND RELATED CROSS-ACTIONS,

“1.
CONSENT TO JUDGMENToe aN A HW & wwe

= 8

Consent to Judgment

This CONSENT TO BE BOUND (“Agreement”) is made this _ day of December, 2010, by
(‘Homeowner(s)”), owner(s) of condominium unit

and a 1/33 undivided share of the Common Areas of the mixed-use condominium
development known as Sen Francisco Tiffany Gardens, located ot 199 Tiffany Avemue, San Francisco,
California (the “Project’), By this Agreement, I (we) consent to be bound by a final judgment entered
by the Court related to the Thirteenth, Fourteenth, and Fifteenth causes of action in the First Amended.
Complaint on file In Nabeel Youssef, Brian Maloney, et al,, Sem Francisco County Superior Court
Case No. CGC-07-459371 (Consolidated Action No. CGC-05-459175),

A

RECITALS
There is presently a dispute between the San Francisco Tiffany Gardens Homeowners
Assoclation (“Association”) and Nabeel ‘Youssef, individually and dba Good Frickin Chicken
(“Youssef”), tenant of Commercial Units 10 and 20 in the Project, concerning the use and
access to the residential Common Areas, ‘Youssef contends that he and his employees, invitees,
and guests have the right to enter, traverse, use, and access the Common Areus, including
stairways, clevators, and the modified rear yard in the interior of the Project. The Association
disputes this contention, and maintains that pursuant to the Association’s Governing ‘a
Documents and the Conditions of Approval for the Project, the Common Area is reserved for,{
the exclusive use of Association residents.

‘Youssef has filed an action in San Francisco Superior Court to obtain a judicial declaration of
the use and access rights in the Common Area, Nabe! Youssef'v, Brian Maloney, et al., Case
No. CGC-07-459371 (the “Civil Action"). The First Amended Complaint, fled August 25,
2008, alleges causes of action for Declaratory Relief (Thirteenth), Injunctive Relief
(Fourteenth), and Quiet Title Fifteenth) against the Association, as well as the individual
condominium unit owners based on their fractional ownership interest in the Common Areas.
‘The Association has answered the First Amended Complaint, and defends the action in its

2.

CONSENT TO JUDGMENT stCeo WAH ew He

ee
R= 6S

B

gE

Tepresentative capacity on behalf of all of the individual homeowners pursuant to Civil Code.
section 1368.3,

To facilitate efficient litigation, Youssef and the undersigned Homeowners execute this
Agreement, consenting to the Association’s handling of the litigation in its representative
capacity, agreeing that the undersigned Homeowners will participate in the litigation as
specifically outlined ingra, and consenting to be bound by a final judgment entered in the Civil
Action related to the Thitteenth, Fourteenth, and Fifteenth causes of action in the First
Asmended Complaint,

AGREEMENT

The undersigned Homeowner(s) agree to be bound by a final judgment entered in the Civil - -
Action on the Thirteenth, Fourteenth, and Fifteenth causes of action in the First Amended
Complaint, In consideration for this agreement, the undersigned Homeowner(s) understand
that the time to file 2 responsive pleading to the First Amended Complaint will be stayed, and
that no default will be entered agsinst them for any fallure to file a responsive pleading, unless
and until such time that the Court determines that the undersigned Homeowner(s) are required
to respond, and provides notice to the Association of this determination,

‘This Agreement is for the benefit of the undersigned Homeowner(s), their heirs, transferees,
successors, and assigns. The terms of this Agreement shall be effective as to any third party to
whom the undersigned Homeowner(s) sell, transfer, or essign their residential unit.

The undersigned Homeowners) represent that they have title to their respective unit and a 1/33

undivided interest in the Common Area, and hereby represeats that (1) they have full legal.»

Power and authority to enter into this Agreement; (i!) no consent of any other person or entity is

required for them to enter into this Agreement and to carry out its terms; and (fil) they have the

legal power and authority to bind themselves to the terms and conditions in this Agreement and
-3-

CONSENT TO JUDGMENT© 82a AW eww om

‘o carry out the obligations set forth in this Agreement to the full extent stated.

The undersigned Homeowner(s) agree that (i) the Association is authorized to accept and “33
‘spond to discovery elated tothe Civil Action in which they are individually identified; (1)
thatthe Association Board is authorized to execute verifications to any discovery in which the.
undersigned Homeowner is idemtfied; and (ii