TRAVELERS INDEMNITY COMPANY OF ILLINOIS Et Al v. CLARENDON AMERICAN INSURANCE COMPANY Et Al Complaint

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Daniel Eli, Esq., State Bar No. 192019 Kimberly R. Arnal, Esq., State Bar No. 200448 BLACK, COMPEAN, HALL & ELI A Limited Liability Partnership p : s. 700 South Flower Street, Ste. 3350 ^ Los Angeles, CA 90017 Telephone: (213)629-9500 Facsimile: (213)629-4868 E-mail: deIi@blackcompeanhal J.com / k ] Q R karnal@blackcompeanhalI.com 5to
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RiCHAROWWEKING CLERK, U.S. DfSTRiCT COURT

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Attorneys for Plaintiffs Travelers Property Casualty; Travelers Indemnity Company 10 of Illinois; and Travelers Property Casualty Company of America
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UNITED STATES
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NORTHERN DISTRICT OF CALIFORNIA - COUNTY OF SAN JOSE
Travelers Indemnity Company of Illinois Case No. 15 and Travelers Property Casualty COMPLAINT FOR Company of America 16 1. DECLARATORY RELIEF - DUTY Plaintiffs, 17 TO DEFEND (SUBCONTRACTOR DEFENDANTS) vs. 18 2. DECLARATORY RELIEF-DUTY 19 Aqua Proof, Inc; B.T. Mancini Company, TO DEFEND (INSURER Inc.; Bay Area Canvas, Inc.; Concord Iron DEFENDANTS) 20 Works, Inc.; Cupertino Electric, Inc.; First 3. DECLARATORY RELIEF - DUTY 21 Specialty Insurance Corporation; TO INDEMNIFY Frederick Meiswinkel, Inc.; Greenwich (SUBCONTRACTOR Insurance Company; Jose Albanese, Inc.; DEFENDANTS); 23 Lexington Insurance Company; Morris 4 DECLARATORY RELIEF - DUTY Steel Company, Inc.; National Union Fire TO INDEMNIFY (INSURER 24 Insurance Company of Pittsburgh PA DEFENDANTS); 25 Pacific Coast Building Products, Inc. dba 5. DECLARATORY RELIEF Alcal Roofing & Insulation; Ray L . APPORTIONMENT OF DEFENSE 26 Hellwig Mechanical Company, Inc.; Ray OBLIGATIONS; 27 L. Hellwig Plumbing & Heating, Inc. 6. DECLARATORY RELIEFMilo Masonry, Inc., Royal Glass, Inc. APPORTIONMENT OF 28 TIG Insurance Company; Westchester) INDEMNITY OBLIGATIONS;
COMPLAINT OF PLAINTIFFS TRAVELERS INDEMNITY COMPANY OF ILLINOIS AND TRAVELERS
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Fire Insurance Company; Clarendon) 2 American Insurance Company; and) DOES 1-100, inclusive, ) 3 ) Defendants. ) 4
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7. EQUITABLE SUBROGATION; 8. EQUITABLE INDEMNITY; AND 9. EQUITABLE CONTRIBUTION 10. CONTRACTUAL SUBROGATION
COMES NOW, Plaintiffs TRAVELERS INDEMNITY COMPANY OF ILLINOIS and TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA and hereby alleges as follows: PARTIES 1. At all times herein mentioned, plaintiff TRAVELERS INDEMNITY COMPANY OF ILLINOIS ("TIL") was and is an Illinois corporation, with its principle place of business in Connecticut and was authorized to transact insurance business in the State of California. 2. At all times herein mentioned, plaintiff TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA ("TIA") was and is an Connecticut corporation, with its principle place of business in Connecticut and was authorized to transact insurance business in the State of California. 3. 4. TIL and TIA shall hereinafter collectively referred to as "TRAVELERS." TRAVELERS is informed and believes, and thereon alleges that defendant Aqua Proof, Inc. ("AQUA") was and is a California corporation, with its principal place of business in California. 5. TRAVELERS is informed and believes, and thereon alleges that defendant B.T. Mancini Company, Inc. ("B.T. MANCINI") was and is a California corporation, with its principal place of business in California. 6. TRAVELERS is informed and believes, and thereon alleges that defendant Bay Area Canvas, Inc. ("BAY AREA") was and is a California corporation, with its principal place of business in California. -2COMPLAINT OF PLAINTIFFS TRAVELERS INDEMNITY COMPANY OF ILLINOIS AND TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA
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TRAVELERS is informed and believes, and thereon alleges that
defendant Concord Iron Works, Inc. ("CONCORD") was and is a California corporation, with its principal place of business in California. 8. TRAVELERS is informed and believes, and thereon alleges that defendant Cupertino Electric, Inc. ("CUPERTINO") was and is a Delaware corporation, with its principal place of business in California, 9. TRAVELERS is informed and believes, and thereon alleges that defendant First Specialty Insurance Corporation ("FIRST SPECIALTY") was and is an Missouri corporation, with its principle place of business in Kansas and was authorized to transact insurance business in the State of California. 10. TRAVELERS is informed and believes, and thereon alleges that defendant Frederick Meiswinkel, Inc. ("F. MEISWINKEL") was and is a California corporation, with its principal place of business in California. 11. TRAVELERS is informed and believes, and thereon alleges that defendant Greenwich Insurance Company ("GREENWICH") was and is an Delaware corporation, with its principle place of business in Delaware and was authorized to transact insurance business in the State of California. 12. TRAVELERS is informed and believes, and thereon alleges that defendant Joseph J. Albanese, Inc. ("J. ALBANESE") was and is a California corporation, with its principal place of business in California. 13. TRAVELERS is informed and believes, and thereon alleges that defendant Lexington Insurance Company ("LEXINGTON") was and is an Delaware corporation, with its principle place of business in Massachusetts and was authorized to transact insurance business in the State of California. 14. TRAVELERS is informed and believes, and thereon alleges that defendant Morris Steel Company, Inc. ("MORRIS STEEL") was and is a California corporation, with its principal place of business in California.
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TRAVELERS is informed and believes, and thereon alleges that
defendant National Union Fire Insurance Company of Pittsburgh PA ("NATIONAL UNION") was and is an Pennsylvania corporation, with its principle place of business in New York and was authorized to transact insurance business in the State of California. 16. TRAVELERS is informed and believes, and thereon alleges that defendant Pacific Coast Building Products, Inc. dba Alcal Roofing & Insulation ("ALCAL") was and is a California corporation, with its principal place of business in California, 17. TRAVELERS is informed and believes, and thereon alleges that defendant Ray L. Hellwig Mechanical Company, Inc. ("RAY HELLWIG") was and is a California corporation, with its principal place of business in California. 18. TRAVELERS is informed and believes, and thereon alleges that defendant Ray L. Hellwig Plumbing & Heating, Inc. ("HELLWIG PLUMBING") was and is a California corporation, with its principal place of business in California. 19. TRAVELERS is informed and believes, and thereon alleges that defendant Milo Masonry, Inc. ("MILO") was and is a California corporation, with its principal place of business in California. 20. TRAVELERS is informed and believes, and thereon alleges that defendant Royal Glass Company, Inc. ("ROYAL") was and is a California corporation, with its principal place of business in California. 21. TRAVELERS is informed and believes, and thereon alleges that defendant TIG Insurance Company ("TIG") was and is an California corporation, with its principle place of business in New Hampshire and was authorized to transact insurance business in the State of California. 22. TRAVELERS is informed and believes, and thereon alleges that defendant Westchester Insurance Company ("WESTCHESTER") was and is an
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Pennsylvania corporation, with its principle place of business in Pennsylvania and was authorized to transact insurance business in the State of California. 23. TRAVELERS is informed and believes, and thereon alleges that defendant Clarendon America Insurance Company ("CLARENDON") was and is an Delaware corporation, with its principle place of business in New Jersey and was authorized to transact insurance business in the State of California. 24. TRAVELERS is informed and believes, and thereon alleges that defendant named herein as Does 1-100, inclusive, are and were, at all times relevant to this action, corporations or business entities of an unknown form authorized to transact business in the State of California. 25. TRAVELERS is ignorant of the true names and capacities of defendants sued as Does 1-100, inclusive, and hereby sues these defendants by fictitious names. TRAVELERS will amend this complaint to allege their true names and capacities when they are ascertained. TRAVELERS is informed and believes and based on that information and belief alleges that each of the fictitiously named defendants are in some manner responsible for the acts and/or omissions alleged herein, and actually and proximately caused the various injuries and damages referred to herein. 26. TRAVELERS is informed and believes and based on that information and belief alleges that at all times mentioned herein each of the defendants was the agent, partner, joint venturer and/or employee of each of the remaining defendants, and each was at all times herein mentioned, acting within the course and scope of such agency and employment. 27. individuals, TRAVELERS is informed and believes and thereon alleges that sole proprietorships, partnerships, registered professionals, defendants and each of them are, and at all times mentioned herein were, either corporations, or other legal entities which are licensed to do and are doing business 111
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in the County of Santa Clara, State of California, at all times relevant to the subject matter of this action. JURISDICTION AM) VENUE 28. This Court has original jurisdiction under 28 U.S.C. 1332 in that this is a matter in which Plaintiffs and Defendants are citizens of different states and in
6 which the amount in controversy exceeds, exclusive of costs and interest, seventy7 five thousand dollars ("$75,000") 8
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Venue is proper in the United States District Court for Northern District
of California in that all of the Defendants are subject to personal jurisdiction in this District at the time the action is commenced and there is no District in which the
11 action may otherwise be brought. The subject matter of this action arose in this 12 District; specifically, the present contribution/declaratory relief dispute arises out of 13 an underlying civil action, the same being 2880 Stevens Creek v. Blach
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Construction Company. Santa Clara County Superior Court Case No. 109CV149847 (hereinafter "Underlying Suit"). Further, the subject matter of the Underlying Suit
16 involves alleged damage to real property located in this District, at 2880 Stevens 17 Creek boulevard, san Jose, California.
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GENERAL ALLEGATIONS 30. Based on information and belief, in or about 1999, Blach Construction Company ("Blach") entered into a written agreement with Stevens Creek Center, Inc. to construct a work of improvement known as the Stevens Creek Center, located at 2880 Stevens Creek Boulevard, San Jose, California (hereinafter "Project"). 31. Based on information and belief, in or about 2000, Blach entered into separate written subcontract agreements with defendants ALCAL, AQUA, B.T. MANCINL BAY AREA, CONCORD, CUPERTINO, F. MEISWINKEL, J. ALBANESE, MORRIS STEEL, RAY HELLWIG, HELLWIG PLUMBING, MILO and ROYAL (collectively hereinafter "Subcontractor Defendants"), pursuant to -6COMPLAINT OF PLAINTIFFS TRAVELERS INDEMNITY COMPANY OF ILLINOIS AND TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA
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which each of the Subcontractor Defendants was retained to work on the Project. Based on information and belief, attached hereto as Exhibit "A" is an exemplar copy of the form subcontract agreement that each Subcontractor Defendant executed with respect to its work on the Project. 32. In 2003, Stevens Creek LLC ("Owner") purchased the Project. Stevens
6 Creek is the current owner of the Project. 7 33. Based on information and belief, the subcontract agreements executed
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by the Subcontractor Defendants required each Subcontractor Defendant to maintain 34. Based on information and belief, each subcontract agreement executed
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by the Subcontractor Defendants contains a provision pursuant to which the
12 Subcontractor Defendants agreed to defend and indemnify Blach with respect to any 13 claim or liability arising out of their work on the Project.
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Based on information and belief, the following indemnity provision is
typical to all of the subcontracts entered into between Blach and the Subcontractor SECTION 15. INDEMNIFICATION
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15.1.1 Subcontractor's Performance. With the exception that this Section 15 shall in no event be construed to require indemnification by Subcontractor to a greater extent that permitted under the public policy of the State of California, Subcontractor shall indemnify and save harmless Owner and Contractor, including their officers, agents, employees, affiliates, parents and subsidiaries, and each of them, of and from any and all claims, demands, causes of action, damages, costs, expenses, actual attorney' fees, losses or liabilities, in law or in equity, of every kind and nature whatsoever ("Claims") arising out of or in connection with Subcontractor's operations to be performed under this Agreement..."
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15.12 Subcontractor shall: (a) At Subcontractors own cost expense, and risk defend all Claims as defined in Section 15.Lltb.at may be brought or instituted by third persons, including but not limited to, governmental agencies or employees of Subcontractor, against Contractor or Owner or their agents or employees or any of them; (b) Pay and satisfy any judgment or decree that may be rendered against Contractor or Owner or their agents or employees, or any of them, arising out of any such Claim; and/or (c) Reimburse Contractor or Owner or their agents or employees for any and all legal expense Incurred by any of them in connection herewith or in enforcing the indemnity granted tin this Section 15. 36. 37. TRAVELERS insured Blach under one or more policies of general Based on information and belief, defendant FIRST SPECIALTY issued
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liability insurance. one or more general liability policies to defendant MORRIS STEEL (hereinafter the "First Specialty Policies"). Based on information and belief, Blach qualifies as an insured to the First Specialty Policies. 38. Based on information and belief, the First Specialty Policies require FIRST SPECIALTY to defend and indemnify Blach as against any claim or suit which seeks damages for "property damage" arising out of an "occurrence" during the policy period, and resulting from the work of MORRIS STEEL on the Project. Based on information and belief, "property damage" is defined as either physical injury to tangible property or loss of use of tangible property. Based on information and belief, the term "occurrence" is generally defined as an accident. 39. Based on information and belief, defendant GREENWICH issued one or more general liability policies to defendant ROYAL (hereinafter the "Greenwich
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1 Policies")- Based on information and belief, Blach qualifies as an insured to the 2 Greenwich Policies. 3
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Based on information and belief, the Greenwich Policies require
4 GREENWICH to defend and indemnify Blach as against any claim or suit which 5 seeks damages for "property damage" arising out of an "occurrence" during the 6 policy period, and resulting from the work of ROYAL on the Project. Based on 7 information and belief, "property damage" is defined as either physical injury to 8 tangible property or loss of use of tangible property. Based on information and 9 belief, the term "occurrence" is generally defined as an accident.
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Based on information and belief, defendant LEXINGTON issued one
11 or more general liability policies to defendant ROYAL (hereinafter the "Lexington 12 Policies"). Based on information and belief, Blach qualifies as an insured to the 13 Lexington Policies. 14
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Based on information and belief, the Lexington Policies require
15 LEXINGTON to defend and indemnify Blach as against any claim or suit which 16 seeks damages for "property damage" arising out of an "occurrence" during the 17 policy period, and resulting from the work of ROYAL on the Project. Based on 18 information and belief, "property damage" is defined as either physical injury to 19 tangible property or loss of use of tangible property. Based on information and 20 belief, the term "occurrence" is generally defined as an accident. 21
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Based on information and belief, defendant NATIONAL UNION
22 issued one or more general liability policies to defendant ALCAL (hereinafter the 23 "National Union Policies"). Based on information and belief, Blach qualifies as an 24 insured to the National Union Policies. 25
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Based on information and belief, the National Union Policies require
26 NATIONAL UNION to, defend and indemnify Blach as against any claim or suit 27 which seeks damages for "property damage" arising out of an "occurrence" during 28 the policy period, and resulting from the work of ALCAL on the Project. Based on
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information and belief, "property damage" is defined as either physical injury to tangible property or loss of use of tangible property. Based on information and belief, the term "occurrence" is generally defined as an accident. 45. Based on information and belief, defendant TIG issued one or more general liability policies to defendant CUPERTINO (hereinafter the "TIG/Cupertino Policies"). Based on information and belief, Blach qualifies as an insured to the TIG/Cupertino Policies. 46. Based on information and belief, the TIG/Cupertino Policies require TIG to defend and indemnify Blach as against any claim or suit which seeks damages for "property damage" arising out of an ''occurrence5' during the policy period, and resulting from the work of CUPERTINO on the Project. Based on information and belief, "property damage" is defined as either physical injury to tangible property or loss of use of tangible property. Based on information and belief, the term "occurrence" is generally defined as an accident. 47. general Based on information and belief, defendant TIG issued one or more liability policies to defendant J. ALBANESE (hereinafter the
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"TIG/Albanese Policies"). Based on information and belief, Blach qualifies as an insured to the TIG/Albanese Policies. 48. Based on information and belief, the TIG/Albanese Policies require TIG to defend and indemnify Blach as against any claim or suit which seeks damages for "property damage" arising out of an "occurrence" during the policy period, and resulting from the work of J. ALBANESE on the Project. Based on information and belief, "property damage" is defined as either physical injury to tangible property or loss of use of tangible property. Based on information and belief, the term "occurrence" is generally defined as an accident. 49. Based on information and belief, defendant WESTCHESTER issued one or more general liability policies to defendant RAY HELLWIG and HELLWIG
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PLUMBING (hereinafter the "Westchester Policies"). Based on information and belief, Blach qualifies as an insured to the Westchester Policies. 50. Based on information and belief, the Westchester Policies require WESTCHESTER to defend and indemnify Blach as against any claim or suit which seeks damages for "property damage" arising out of an "occurrence" during the policy period, and resulting from the work of RAY HELLWIG or HELLWIG PLUMBING on the Project, Based on mformation and belief, "property damage" is defined as either physical injury to tangible property or loss of use of tangible property. Based on information and belief, the term "occurrence" is generally defined as an accident. 51. Based on information and belief, defendant CLARENDON issued one or more general liability policies to defendant MILO (hereinafter the "Clarendon Policies"). Based on information and belief, Blach qualifies as an insured to the Clarendon Policies. 52. Based on information and belief, the Clarendon Policies require CLARENDON to defend and indemnify Blach as against any claim or suit which seeks damages for "property damage" arising out of an "occurrence" during the policy period, and resulting from the work of MILO on the Project. Based on information and belief, "property damage" is defined as either physical injury to tangible property or loss of use of tangible property. Based on information and belief, the term "occurrence" is generally defined as an accident. 53. FIRST SPECIALTY, GREENWICH, LEXINGTON, NATIONAL UNION, TIG, WESTCHESTER and CLARENDON are collectively referred to as the "Insurer Defendants". 54. 55. Notice of Completion for the Project was recorded at the Santa Clara On or about August 14, 2009, the Owner filed suit against Blach County Recorder's Office on or about May 31,2001. seeking damages for various alleged construction defects at the Project; said lawsuit -11COMPLAINT OF PLAINTIFFS TRAVELERS INDEMNITY COMPANY OF ILLINOIS AND TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA
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is generally entitled 2880 Stevens Creek, LLC v. Black Construction Company, et al, Santa Clara County Superior Court, Case No. 109 CV149847 (hereinafter "Underlying Action"). 56. TRAVELERS is informed and believes and thereon alleges that the Owner contends that the Project contains certain construction defects, which defects have resulted in property damage to the Project. This property damage arises, in whole or in part, out of work performed by each one of the Subcontractor Defendants. 57. TRAVELERS is informed and believes and based thereon alleges that the investigation of damage at the Project has confirmed that the damage to the Project actually or potentially falls within the scope of each one of the Subcontractor Defendants' indemnity obligations, as set forth in the subcontract agreements. 58. TRAVELERS is informed and believes and based thereon alleges that the investigation of damage at the Project has confirmed that the damage to the Project actually or potentially falls within the coverage of the First Specialty Policies, Greenwich Policies, Lexington Policies, National Union Policies, TIG/Cupertino Policies, TIG/Albanses Policies, Westchester Policies and Clarendon Policies. 59. Blach tendered defense/mdemnification of the Underlying Action to TRAVELERS, the Insurer Defendants and each one of the Subcontractor Defendants. The Insurer Defendants and the Subcontractor Defendants have each denied and/or have failed to respond to Blach's tender of defense/indemnity. To date, none of the Insurer Defendants or the Subcontractor Defendants have contributed towards the attorneys' fees, costs and expert fees incurred defending Blach in the Underlying Action. 60. Subject to a reservation of their rights TRAVELERS has agreed to provide Blach with a defense to the Underlying Action. To date, TRAVELERS has
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incurred in excess of $100,000 in attorneys' fees, costs and expert fees providing Blach with a defense to the Underlying Action. FIRST CAUSE OF ACTIQN DECLARATORY RELIEF - DUTY TO DEFEND (Against Subcontractor .Defendants.& DOES 1-50) 61. TRAVELERS incorporates paragraphs 1 through 60, inclusive, as though the allegations of those paragraphs were set forth here in full. 62. 63. TRAVELERS has agreed to provide Blach with a defense to the Based on information and belief, the Subcontractor Defendants and Underlying Action, subject to a reservation of its rights. Does 1-50 each contend that they do not have an obligation to provide Blach with a defense to the Underlying Action. TRAVELERS, on the other hand, contends that each one of the Subcontractor Defendants and Does 1-50 is required to defend Blach. Consequently, an actual controversy has arisen and now exists between TRAVELERS and each one of the Subcontractor Defendants and Does 1-50 concerning each party's obligations to defend Blach as against the Underlying Action. 64. A declaration by this Court of each party's defense obligation is necessary and appropriate at this time so that TRAVELERS, the Subcontractor Defendants and Does 1-50 can determine their obligations and duties with respect to the Underlying Action. TRAVELERS has no adequate or speedy remedy at law. Therefore, it is necessary for the court to adjudicate the rights, duties and obligations of the parties with respect to providing Blach with a defense to the Underlying Action.
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SECOND CAUSE OF ACTION DECLARATORY RELIEF - DUTY TO DEFEND (Against Insurer Defendants & DOES 51-100) 65. TRAVELERS incorporates paragraphs 1 through 60, inclusive, as though the allegations of those paragraphs were set forth, here in full. 66. 67. TRAVELERS has agreed to provide Blach with a defense to the Based on information and belief, the Insurer Defendants and Does 51Underlying Action, subject to a reservation of its rights. 100 each contend that they do not have an obligation to provide Blach with a defense to the Underlying Action. TRAVELERS, on the other hand, contends that each one of the Insurer Defendants and Does 51-100 is required to defend Blach. Consequently, an actual controversy has arisen and now exists between TRAVELERS and each one of the Insurer Defendants and Does 51-100 concerning each party's obligations to defend Blach as against the Underlying Action. 68. A declaration by this Court of each party's defense obligation is necessary and appropriate at this time so that TRAVELERS, the Insurer Defendants and Does 51-100 can determine their obligations and duties with respect to the Underlying Action. TRAVELERS has no adequate or speedy remedy at law. Therefore, it is necessary for the court to adjudicate the rights, duties and obligations of the parties with respect to providing Blach with a defense to the Underlying Action. THIRD CAUSE OF ACTION DECLARATORY RELDEF - DUTY TO INDEMNIFY (Subcontractor Defendants and Does 1-50) 69. 70. TRAVELERS incorporates paragraphs 1 through 60, inclusive, as Blach has tendered indemnification of the Underlying Action to the though the allegations of those paragraphs were set forth here in full. Subcontractor Defendants and Does 1-50. -14COMPLAINT OF PLAINTIFFS TRAVELERS INDEMNITY COMPANY OF ILLINOIS AND TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA
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71.
Based on information and belief, the Subcontractor Defendants and
Does 1-50 each contend that they do not have an obligation to indemnify Blach with respect to the Underlying Action, or dispute their share of any such indemnification. TRAVELERS, on the other hand, contends that the Subcontractor Defendants and Does 1-50, and each of them, is primarily and/or exclusively liable for Blach's indemnification. Consequently, an actual controversy has arisen and now exists between TRAVELERS, the Subcontractor Defendants and Does 1-50 concerning each party's obligations to indemnify Blach with respect to the Underlying Action. 72. A declaration by this Court of each party's obligation to indemnify is necessary and appropriate at this time so that TRAVELERS, the Subcontractor Defendants and Does 1-50 can determine their obligations and duties with respect to the Underlying Action. TRAVELERS has no adequate or speedy remedy at law. Therefore, it is necessary for the court to adjudicate the rights, duties and obligations of the parties relative to indemnification of Blach with respect to the Underlying Action. FOURTH CAUSE OF ACTION DECLARATORY RELIEF - DUTY TO INDEMNIFY (Insurer Defendants and Does 51-100) 73. 74. 75. TRAVELERS incorporates paragraphs 1 through 60, inclusive, as Blach has tendered indemnification of the Underlying Action to the Based on information and belief, the Insurer Defendants and Does 51though the allegations of those paragraphs were set forth here in full. Insurer Defendants and Does 51-100. 100 each contend that they do not have an obligation to indemnify Blach with respect to the Underlying Action, or dispute their share of any such indemnification. TRAVELERS, on the other hand, contends that the Insurer Defendants and Does 51-100, and each of them, is primarily and/or exclusively liable for Blach's indemnification. Consequently, an actual controversy has arisen and now exists -15COMPLAINT OF PLAINTIFFS TRAVELERS INDEMNITY COMPANY OF ILLINOIS AND TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA
1 between TRAVELERS, the Insurer Defendants and Does 51-100 concerning each 2 party's obligations to indemnify Blach with respect to the Underlying Action. 3
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A declaration by this Court of each party's obligation to indemnify is
4 necessary and appropriate at this time so that TRAVELERS, the Insurer Defendants 5 and Does 51-100 can determine their obligations and duties with respect to the 6 Underlying Action.
TRAVELERS has no adequate or speedy remedy at law.
7 Therefore, it is necessary for the court to adjudicate the rights, duties and obligations 8 of the parties relative to indemnification of Blach with respect to the Underlying 9 Action. 10 11 12 13 14
FIFTH CAUSE OF ACTION DECLARATORY RELIEF - APPORTIONMENT OF DEFENSE OBLIGATIONS (Against All Defendants) 77. 78. TRAVELERS incorporates paragraphs 1 through 60, inclusive, as TRAVELERS is informed and believes and based on this information
15 though the allegations of those paragraphs are set forth here in full 16 17 and belief alleges that each defendant is obligated to provide Blach with a defense to 18 the Underlying Action, and thus each has an obligation to contribute to the costs of 19 defense incurred in providing Blach with a defense to the Underlying Action. 20 21
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TRAVELERS is informed and believes and based on this information
and belief alleges that each defendant disagrees with TRAVELERS about the extent
22 to which each defendant should participate in the defense of Blach. Consequently, 23 an actual controversy has arisen and now exists between TRAVELERS and 24 defendants concerning each party's obligations with respect to the defense of Blach 25 in the Underlying Action. 26
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A declaration by this Court of each party's defense obligation is
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TRAVELERS has no adequate or speedy remedy at law. Therefore, it is necessary that this Court adjudicate the rights, duties and obligations of the parties with respect to providing Blach with a defense to the Underlying Action. SIXTH CAUSE OF ACTION DECLARATORY RELIEF - APPORTIONMENT OF INDEMNITY OBLIGATIONS (Against All Defendants) 81. 82. TRAVELERS incorporates paragraphs 1 through 60, inclusive, as TRAVELERS is informed and believes and based on this information
9 though the allegations of those paragraphs are set forth here in full.
10 11 and belief alleges that each defendant is obligated to indemnify Blach with respect 12 to any sums and/or damages Blach is obligated to pay as settlement and/or 13 satisfaction of any judgment entered with respect to the Underlying Action. 14
83.
TRAVELERS is informed and believes and based on this information
15 and belief alleges that each defendant disagrees with TRAVELERS about the extent 16 to which each defendant should participate in the indemnification of Blach. 17 Consequently, an actual controversy has arisen and now exists between 18 TRAVELERS and defendants named in this cause of action concerning each party's 19 obligations with respect to the indemnification of Blach. 20
84.
A declaration by this Court of each party's indemnity obligation is
21 necessary and appropriate at this time so that TRAVELERS and defendants can
determine their relative obligations and duties with respect to indemnification of the
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Underlying Action. TRAVELERS has no adequate or speedy remedy at law. Therefore, it is necessary that this Court adjudicate the rights, duties and obligations of the parties with respect to indemnification of the Underlying Action. Ill III III. -17COMPLAINT OF PLAINTIFFS TRAVELERS INDEMNITY COMPANY OF ILLINOIS AND TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA
1 2 3 4 6 8 85. 86. 87.
SEVENTH CAUSE OF ACTION (Against A Defendaats) M TRAVELERS incorporates paragraphs 1 through 60, inclusive, as This claim for equitable subrogation is pled in the alternative to the By providing Blach with a defense to the Underlying Action,
5 though set forth herein in full. 7 causes of action for equitable contribution and equitable indemnity. 9 TRAVELERS has become equitably subrogated to Blach's rights under the policies 10 of insurance issued by the Insurer Defendants and the subcontract agreements 11 executed by the Subcontractor Defendants.
12 13 14
88.
Each defendant is obligated to provide Blach with a defense to the
Underlying Action. However, defendants have either failed to pay or have not paid their equitable share of Blach's defense costs. As a consequence, TRAVELERS has 89. Defendants are primarily and/or exclusively liable for Blach's defense
15 paid in excess of its equitable share, if any, of Blach's' defense costs. 16

17
costs, and thus in equity are required to reimburse TRAVELERS for their equitable EIGHTH CAUSE OF ACTION EQUITABLE INDEMNITY (Against A81 Defendants) 90. 91. 92. TRAVELERS incorporates paragraphs 1 through 60, inclusive, as This claim for equitable indemnity is pled in the alternative to the Each defendant is obligated to provide Blach with a defense to the though set forth here in full. causes of action for equitable contribution and equitable subrogation. Underlying Action. However, defendants have either failed to pay or have not paid II I -18COMPLAINT OF PLAINTIFFS TRAVELERS INDEMNITY COMPANY OF ILLINOIS AND TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA
18 share of said defense costs.

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their equitable share of Blach's defense costs. As a consequence, TRAVELERS has paid in excess of its equitable share, if any, of Blach's' defense costs. 93. Defendants are primarily and/or exclusively liable for Blach's defense costs, and thus in equity are required to reimburse TRAVELERS for their equitable share of said defense costs. NINTH CAUSE OF ACTION EQUITABLE CONTRIBUTION (Against Alt Defendants) 94. 95. 96. TRAVELERS incorporates paragraphs 1 through 60 inclusive, as This claim for equitable contribution is pled in the alternative to the Each defendant is obligated to provide Blach with a defense to the though set forth here in full. claims for equitable subrogation and equitable indemnity. Underlying Action. However, defendants have either failed to pay or have not paid their equitable share of Blach's defense costs. As a consequence, TRAVELERS has paid in excess of its equitable share, if any, of Blach's defense costs. 97. Defendants are primarily and/or exclusively liable for Blach's defense costs, and thus in equity are required to reimburse TRAVELERS for their equitable share of said defense costs, and contribute their fair share towards Blach's ongoing defense costs.
TENTH CAUSE OF ACTION CONTRACTUAL SUBROGATION

(Against All Defendants) 98. 99. TRAVELERS incorporates paragraphs 1 through 60, inclusive, as Pursuant to the terms of the TRAVELERS' general liability policy(ies) though set forth herein in full. issued to Blach , whenever TRAVELERS pays a loss it is subrogated to Blach's rights as against any other third parties against whom Blach may have a claim for
Case5:11-cv-03735-HRL Document!
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the same loss. By providing Blach with a defense to the Underlying Action, TRAVELERS has become contractually subrogated to Blach's rights under the policies of insurance issued by Insurer Defendants and the subcontract agreements executed by the Subcontractor Defendants. 100. Each defendant is obligated to provide Blach with a defense to the Underlying Action. However, defendants have either failed to pay or have not paid their share of Blach's defense costs. As a consequence, TRAVELERS has paid in excess of its share, if any, of Blach's' defense costs. 101. Defendants are primarily and/or exclusively liable for Blach's defense costs, and thus are required to reimburse TRAVELERS for their share of said defense costs. WHEREFORE, Travelers prays as follows: ON THE FIRST CAUSE OF ACTION 1. 2. For a declaration that the Subcontractor Defendants, and each of them, For a declaration that the Subcontractor Defendants, and each of them, is obligated to defend Blach as against the Underlying Action. is required to reimburse TRAVELERS for each Subcontractor Defendant's share of Blach's defense costs incurred by TRAVELERS in, connection with defense of the Underlying Action. ON THE SECOND CAUSE OF ACTION 1. 2. For a declaration that the Insurer Defendants, and each of them, is For a declaration that the Insurer Defendants, and each of them, is obligated to defend Blach as against the Underlying Action. required to reimburse TRAVELERS for each Insurer Defendant's share of Blach's defense costs incurred by TRAVELERS in connection with defense of the Underlying Action.
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HI
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21
ON THE THIRD CAUSE OF ACTION 1. For a declaration that Subcontractor Defendants, and each of them, is ON THE FOURTH CAUSE OF ACTION 1. For a declaration that Insurer Defendants, and each of them, is ON THE FIFTH CAUSE OF ACTION 1. 2. For a declaration apportioning TRAVELERS' and defendants' share of For a declaration that TRAVELERS is entitled to reimbursement of defense costs in providing Blach with a defense to the Underlying Action. defendants' equitable share of the defense costs incurred in providing Blach with a defense to the Underlying Action. ON THE SIXTH CAUSE OF ACTION 1. For a declaration apportioning TRAVELERS' and defendants' share of indemnification of any damages and/or sums Blach must pay in settlement and/or satisfaction of any judgment entered with respect to the Underlying Action. ON THE SEVENTH CAUSE OF ACTION 1. For a declaration that TRAVELERS is entitled to reimbursement of legal defense fees and costs incurred by TRAVELERS in providing Blach with a defense to the Underlying Action. 2. For an order that Travelers is entitled to reimbursement from defendants, and each of them, of the sums expended in providing Blach with a obligated to indemnify Blach as against the Underlying Action. obligated to indemnify Blach as against the Underlying Action.
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defense to the Underlying Action. ON THE EIGHTH CAUSE OF ACTION 1. For a declaration that TRAVELERS is entitled to indemnity of legal defense fees and costs incurred by TRAVELERS in providing Blach with a defense to the Underlying Action.
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2.
For an order that Travelers is entitled to reimbursement from
defendants, and each of them, of the sums expended in providing Blach with a defense to the Underlying Action. ON THE NINTH CAUSE OF ACTION 1. For a declaration that Travelers is entitled to recoupment from defendants of a share of the legal defense fees and costs incurred by TRAVELERS in providing Blach with a defense to the Underlying Action. 2. For an order that TRAVELERS is entitled to . recoupment from defendants of a share of the legal defense fees and costs incurred by TRAVELERS in providing Blach with a defense to the Underlying Action. ON THE TENTH CAUSE OF ACTION 1. For a declaration that TRAVELERS is entitled to reimbursement from defendants of legal defense fees and costs incurred by TRAVELERS in providing Blach with a defense to the Underlying Action. 2. For an order that Travelers is entitled to reimbursement from defendants, and each of them, of the sums expended in providing Blach with a defense to the Underlying Action. ON ALL CAUSES OF ACTION 1. 2. 3. 4.
/// III /// /// III III
For costs of suit herein. For prejudgment interest. For reasonable attorneys'fees and expense; and For such other and further relief as the Court may deem just and proper.
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DEMAND FOR JURY TRIAL Pursuant to Rule 38 of the Federal Rules of Civil Procedure, the PLAINTIFFS hereby demand trial by jury in this action of all issues so triable. Dated: My. 28,2011 BLACK, COMPEAN, HALL & ELI A Limited Liability Partnership By: ^ Daniel Eli, Esq. Kimberly R. Arnal, Esq. Attorneys for Plaintiffs Travelers Indemnity Company of Illinois and Travelers Property Casualty Company of America
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21 22 23 24 25 26 27 28 -23COMPLAINT OF PLAINTIFFS TRAVELERS INDEMNITY COMPANY OF ILLINOIS AND TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA
Case5:11-cv-03735-HRL DocumentM
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L O N G FORM STANDARD SUBCONTRACT

This Agreeroeat is made at Santa data, Califonoia this Thursday, June 29,2000, between; CONTRACTOR BLACH CONSTRUCTION COMPANY 1650 Lafayette Street Santa Clara, CA 95050 Phone:408-244-7100 Fasts 408-244-2220 and SUBCONTRACTOR "
ROYAL GLASS 3200 De La Cross Blvd. Santa Clara, CA 95054 Phone: 408-969-0444 Fax:403-969-0446 On or about June 9,1999 Contractor entered into a prime contract with: OWNER Stevens Creek Center, lac. 12 South Fust Street Suite 1205 San Jose, CA. 95110 to perform the following 'work: Stevens Creek Center 2880 Stevens Creek Bkd. San Jose, CA. 95126 BCC JOB #9918 Financed by. CONSTRUCTION LENDER (If applicable): Cupertino National Bank 20230 Stevens Creek Blvd. Cupertino, CA 95014. Said work is to be performed in accordance -with the prime contract and the plans and specifications. Said plans and specifications have been prepared by or on behalf of:
Case5:11-cv-03735-HRL Document1-1
ARCHITECT: Prodis Associates Architects 1855 Park Avenue San Jose, CA 9S12S
SECTION 1 E N T I R E CONTRACT The phrase "Contract Documents" is defined to mean and include: * * * * * This Agreement The Prime Contract between Stevens Creek Center, Inc. and Blach Construction Company. Attached 'Current Drawing List" / Exhibit B Addenda # 1 Attached Subcontractor Forms Packet
for the project known as: Stevens Creek Center. Subcontractot certifies that it is fu% ftmiiiat with all of tie terms of the Contract Documents, the location of tile job site, and the conditions under which the work is to be performed and that it enters into this Agreement based upon its investigation of all such matters and is not relying on any opinions or representations of Contractor. This Agreement represents the entire agreement between Contractor and Subcontractor, and supersedes any prior oral or -written agreements or representations. The Contract Documents are incorporated in this Agreement by reference, and Subcontractor, its subcontractors, suppliers and/or materialmen -will be and are bound by the Contract Documents insofar as they relate in any way, directly or indirectly, to the work covered by this Agreement Subcontractor agrees to be bound to Contractor in the same mariner and to the same extent as Contractor is bound to Owner -under the Contact Documents, including, but not limited to, ail applicable terms and provisions thereof. Where, in the Contract Documents reference is made to Contractor, and the work or specifications therein pertains to Subcontractor's trade, craft, or type of work, such work oz specification shall be interpreted to apply to Subcontractor instead o Contractor. SECTION 2. SCOPE. Subcontractor agrees to famish all labor, materials, equipment and other facilities requited to complete but not necessarily limited to the following work: Provide all labor equipment and materials in accordance with the complete plans and specifications for the Stevens Cteek Office Building Phase 2, as prepared by Prodis Architects and particularly specification sections GMIO-Aluminum Entrance Storefronts; 08520-Fixed Aluminum Windows; 08712 Finish Hardware as it applies to aluminum storefront systems; 08800-GIazing-, 07900-Joint Sealers as it applies or is requited around the installed systems in thiB scope of wotk; the work also includes, but is not necessarily limitewd to: 1/4" Soiex tinted door Ktes; Firelite glazing in hollow metal doors and frames that ate provided by others; shop drawings and calculations as required by the plans and specifications and vanity mittots in six restrooms. Excludes: Final clean u p of metal & glass; protection of materials once installed; breakage or damage of materials by others.
Provide all requited submittals including shop drawings, catalog cuts, samples etc. within (15) fifteen days of receipt of this contract. Removal and disposal of debris related to Subcontractor's work is included as part of this contract Specification Sections: In the event of any dispute between Contractor and Subcontractor over the scope of Subcontractor's work under the Contract Documents, Subcontractor will not stop work but will prosecute the work diligently to completion, the dispute to be submitted for resolution in accordance with Section 17 below. SECTION 3. CONTRACT PRICE Contractor agrees to pay Subcontractor for the strict performance of its work, the sum of Three hundred ten thousand nine hundred seventy nine and 00/100 dollars $510,979.00, or as set out in Section 26 below, subject to additions and deductions for changes in the work as may be directed in writing by Contractor, and to make payment in accordance with the Payment Schedule, Section 4. SECTION 4, PAYMENT SCHEDULE Contractor agrees to pay to Subcontractor in monthly progress payments of Ninety percent (90%) of labor and materials which have been placed in position, with fends received by Contractor from Owner for work performed by Subcontractor as reflected in Contractor's applications for payment Such monthly progress payments shall be made ten (10) days after receipt of payment from the Owner by Contractor, Final payment to Subcontractor shall be made ten (10) days after the entire work required by the prime contract has been fully completed in conformity with the Contract Documents and has been delivered to and accepted by Owner, Architect, and Contractor, with funds received by Contractor from Owner in final payment for work under the prime contract. It is the intent of the parties that receipt by the Contractor from the Owner of funds for work performed by Subcontractor shall be a condition precedent to each payment to be made to the Subcontractor pursuant to the proTOsions of this section, and no recourse to the Contractor: or its sureties may be made except as otherwise stated herein. Subcontractor agrees to famish, if and when required by Contractor, payroll affidavits, receipts, vouchers, releases of claims- for labor and material, and agrees to femish same from its subcontractors, suppliers and/or materialmen performing work or furnishing materials under this Agreement, all in form satisfactory to Contractor, and itis agreed that no payment hereunder shall be made, except at C oatractot's option, until and unless such documents have been furnished Contractor, at its option, may make any payment due hereunder by check made payable jointly to Subcontractor and any of its subcontractors, suppliers and/or materialmen who have performed work or furnished materials under this Agreement Any payment made hereunder prior to completion and acceptance of the work, as referred to above, shall not be construed as evidence of acceptance or acknowledgment of completion of any part of any Subcontractor's work SECTION 5. T I M E Time is of the essence of this. Agreement. Subcontractor shall provide Contractor with scheduling information and a proposed schedule for performance of its work in a form acceptable to Contractor. Subcontractor shall conform to Contractor's progress schedule and -all revisions or changes made thereto. Subcontractor shall prosecute its work in a prompt and diligent manner in accordance with Contractor's progress schedule without delaying or hindering Contractor's work or the work of other contractors or subcontractors. Subcontractor shall coordinate the work covered by this Agreement with that of all other contractors, subcontractors, suppliers, and/ox materialmen and of the Contractor, in a manner that will facilitate the efficient completion of the entire work. In the event Subcontractor fails to maintain its part of
the Contractor's schedule, it shall, -without additional compensation, accelerate the work as Contractor may direct until Subcontractor's work is in accordance "with such schedule. Contractor shall have complete control of the premises on which the work is to be performed and shall have the right to dedde the time and order in which various portions of the work shall be installed and the relative priority of the work of Subcontractor and other subcontractors, and, in general, all other matters pertaining to the timely and orderly conduct of the work of Subcontractor on the premises. Should Subcontractor be delayed in the prosecution or completion of the work by the act, neglect or default of Owner, Architect or Contractor, or should Subcontractor be delayed waiting for materials, if required by mis Contract to he furnished by Owner or Contractor, or by damage caused by fire or other casualty for which Subcontractor is not responsible, or by the combined action of the workmen, in no way caused by or resulting from fault or collusion on the part of Subcontractor, or b the event of a lock-out by Contractor, then the time herein fixed for the completion of the work shall be extended the number of days that Subcontractor has thus been delayed, but no allowance or extension shall be made unless a claim therefor is presented in writing to Contractor within 48 hours of the commencement of such delay, and under no circumstances shall the time of completion be extended to a date which will prevent Contractor from completing the entire project within the time allowed Contractor by Owner for such completion. No claims for additional compensation or damages for delays, whether caused in -whole or in part by any conduct on the part of Contractor, including, but not limited to, conduct amounting to a breach of this Agreement, or delays by other subcontractors or Owner, shall be recoverable from Contractor, and the above-mentioned extension of time for completion shall be the sole remedy of Subcontractor; provided, however, that in the event Contractor obtains additional compensation fom Owner on account of such delays, Subcontractor shall be, entitled to such portion of the additional compensation so received by Contractor .from. Owner as is equitable under all of the circumstances. In the event that Contractor prosecutes a claim against Owner for additional compensation for any delay, Subcontractor shall compensate fully with Contractor in the prosecution thereof and shall pay costs and expenses incurred in connection therewith, including actual attomeyB, fees, to the extent mat said claim is made by Contractor at the request of Subcontractor. Subcontractor shall prepare and obtain approval as required by the Contract Documents for all shop drawings, details, samples, and do all other things necessary and incidental to the prosecution of its work in conformance with Contractor's progress schedule. SECTIONS. CHANGES I N THE WORK Subcontractor shall make any and all changes in the work described in the Contract Documents and this Agreement as directed by Contractor in writing. Such change or written direction shall not invalidate this Agreement If necessary, the contract price stated in Section 3 and the time for Subcontractor's performance shall be adjusted by appropriate additions or deductions mutually agreed upon before Subcontractor performs the changed work. Subcontractor shall supply Contractor with all documentation necessary to substantiate the amount of the addition to or deduction from the price or time. If Contractor and Subcontractor cannot agree on the amount of the addition Or deletion, Subcontractor shall nonetheless timely perform the work as changed by Contractors written direction. Once Subcontractor receives Contracts written direction, Subcontractor is solely responsible for timely performance of the work as changed by the written direction. Payment for changed work shall be made in accordance with Section 4. Subcontractor shall not make any changes in the work described k Section 2 or in any way cause or allow that work to deviate from the Contract Documents without written direction from Contractor. If Subcontractor makes any changes in the work described in Section 2 without written direction from Contractor, such change constitutes an agreement by Subcontractor that it will not be paid for that changed
work, even if it received verbal direction from Contractor or any form of direction, -written or otherwise, from Owner or any other person or entity. In addition, Subcontractor shall be liable for any and all losses, costs, expenses, damages, and liability of any nature whatsoever associated with or in anyway arising out of any such change it makes without written direction from Contractor. If a dispute arises between Contractor and Subcontractor about whether particular work is a change in the work described in Section 2, Subcontractor shall timely perform die disputed work. If Subcontractor intends to submit a claim for the disputed work, it shall give prompt written notice to Contractor before proceeding with the work. In addition, Subcontractor shall submit its written rVim for additional compensation for that work within ten (10) days after such work is performed in sufficient detail for Contractor to make an evaluation of the merits of the claim. Subcontractors failure either to give the written notice before proceeding with, the work or to submit the written claim within the ten (10) days constitutes an agreement by it that it wiH not be paid for the disputed work. No change, alteration, or modification to or deviation from this Agreement, the Contract Documents, prime contract, plans, or specifications, whether made in the nnflntip-t provided in this section or not, shall release or exonerate, in whole or in part any bond or any surety on any bond given in connection with this Agreement, and no notice is required to be given to such surety of any such change, alteration, modification, or deviation. SECTION 7. DAMAGES CAUSED BY DELAYS If Subcontractor should default in performance of the work descrihed in Section 2 or should otherwise commit any act which causes delay to the prime contract work, Subcontractor shall be liable for all losses, costs, expenses, liabilities and damages, including consequential damages and liquidated damages, sustained by Contractor or for which Contractor may be liable to Owner or any other party because of Subcontractor's default SECTION 8. B O N D I N G OF SUBCONTRACTOR Concurrently with the execution of this Agreement, Subcontractor shall, if required by Contractor; execute a labor and material bond and performance bond, in an amount equal to one hundred percent (100%) of the Contract Price. Said bonds shall be executed by a corporate surety acceptable to Contractor and shall be in a form satisfactory to Contractor. Contractor shall pay the premium on said bonds unless otherwise provided heron or in the Contract Documents. SRCTI01V9. I.TKNS In case suit is brought on any claim or lien for labor performed or materials used an or famished to the project, Subcontractor shall pay and satisfy any such Hen or judgment as may be established by the decision of the court in said suit. Subcontractor agrees within ten (10) days after written demand to cause the effect of any such suit or lien to be removed from, the premises, and in the event Subcontractor shall fai so to do, Contractor is authorized to use whatever means in its discretion it may deem appropriate to cause said Ben or suit to be removed or dismissed and the cost thereof, together with actual attorneys' fees, shall be immediately due and payable to Contractor by Subcontractor. Subcontractor may litigate any such lien or suit provided it causes the effect thereof to be removed, promptly in advance, from the premises, and shall further do such things as may be necessary to cause Owner not to withhold any monies due to Contractor from Owner by reason of such liens or suits. It is understood and agreed that the full and faithful performance of this Agreement on the part of Subcontractor (including the payment of any obligations due torn Subcontractor to Contractor, and any . amounts due to labor or materialmen furnishing labor or material for said work) is a condition precedent to Subcontractors right to receive payment for the work performed, and any monies paid by Contractor to
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Subcontractor under the terms of this Agreement shall be impressed -with a trust in favor of labor and materialmen tarnishing kbor and material to Subcontractor on the -work herein subcontracted. SECTION10. PROVISIONS FOR INSPECTION Subcontractor shall at all timea furnish to Contractor and its representatives safe and ample facilities for inspecting materials at the site of construction, shops, factories or any place of business of Subcontractor and its subcontractors and materialmen where materials under this Agreement may be in course of preparation, process, manufacture or treatment Subcontractor shall furnish to Contractor as often as required by Contractor, M l reports of the progress of the work at any place where materials under this Agreement may be in the course of preparation or manufacture. Such reports shall show the progress of such preparation and manufacture in such details as may be required by Coniraetor,.indud!ng, but not limited to, any plans, drawings or diagrams in the course ofpreparation, SECTION 1L MATERIALS AND WORK FURNISHED BY O T H E R S In the event the scope of work includes installation of materials or equipment furnished by others or work to be performed in areas to be constructed or prepared by others, it shall be the responsibility of Subcontractor to examine and accept, at the time of delivery or first access, the items so provided and there upon handle, store and install the items with such skill and care as to insure a satisfactory completion of the work. Use of such items or commencement of work by Subcontractor in such areas shall be deemed to constitute acceptance thereof by Subcontractor. Loss or damage due to acts of Subcontractor shall be charged to the account of Subcontractor and deducted from monies otherwise due under this Agreement SECTION 12. P R O T E C T I O N OF WORK Subcontractor shall effectually secure and protect the work done hereunder and assume full responsibility for the condition thereof until final acceptance by Architect, Owner and Contractor. Subcontractor further agrees to provide such protection as is necessary to protect the work and the workmen of Contractor, Owner and other subcontractors from its operations. Subcontractor shall be liable for any loss or damage to any work in place or to any equipment and materials on the job site caused by it or its agents, employees or guests. SECTION 33. LAgOR RELATIONS 13.1 Subcontractor shall keep a representative at the job site claring all times when Subcontractor's work is in progress, and such representative shall be authorized to represent and bind Subcontractor as to all phases of the work. Prior to commencement of the work, Subcontractor shall notify Contractor who Subcontractor's representative is to be, and in the event of any change of representative subcontractor shall notify Contractor who the new representative is to be prior to such change becoming effective. Subcontractor acknowledges that Contractor has entered into labor agreements covering work at its construction job sites with the labor unions listed b Section 25 below and incorporated herein by reference. . Subcontcactor agrees to be bound to and comply with all the terms and conditions of such labor agreements, including payments into the employee benefit trust funds set forth in such labor agreements, insofar as Subcontractor may lawfully do so. Subcontractor agrees to comply with the terms and provisions of said agreements setting forth the jurisdiction and scope of work datmed by each craft, and the procedure contained in such agreements for resolution of jurisdictional disputes. In the absence of any such procedure, or if such procedure fails to prompdy resolve any jurisdictional dispute, Subcontractor agrees, at its own cost and espense, upon request of Contractor to take any and all lawful steps to secure a binding and final
Case5:11-cv-03735-HRL Documentl-1
determination of said jurisdictional dispute by the National Labor Relations Board. Subcontractor acknowledges that terms and conditions of the labor agreements with, the Onions listed hereiiibtelow may require that Subcontractor comply -roth additional labor agreements -with unions affiliated with the AFL-CIO but not listed. 'When the terms and conditions of the below-referenced labor agreements so require. Subcontractor shall perform its job site work pursuant to all terms and conditions of an appropriate labor agreement-with a union affiliated -with the AFL-CIO. Should there be picketing on Contractors job site, and Contractor establishes a reserved gate for Subcontractors purpose. It shall be the obligation of Subcontractor to continue the proper performance of its -workwithout interruption or delay. Subcontractor further promises and agrees that it 'will bind and require all of its subcontractors and their subcontractors performing job site work of the type covered by any of the labor agreements specified below to agree to all of the foregoing promises and undertakings, to the same effect as herein provided with respect to i t 13.2 Subcontractor hereby acknowledges that it is thoroughly familiar with all DBE/MBE/WBE requirements pertaining to the project If (he Subcontractor claims status as a DBE/MBE/WBE, the Subcontractor shall take all steps necessary and shall make all necessary records available to the Contractor and the Owner to assure that Subcontractor is in compliance with such requirements. In the event that any sub-subcontractor or supplier of the Subcontractor is designated as or is required to be a DBE/MBE/WBE, Subcontractor agrees to be responsible For insuring that said sub-subcontractor or supplier meets all applicable-requirements. Subcontractor acknowledges mat Contractor is relying upon Subcontractorsrepresentations regarding the validity of Subcontractor's status, if any, as a DBE/MBE/WBE, and that misrepresentation of the status of Subcontractor or any of its sub-subcoritractors or material suppliers is a material breach of this Agreement and grounds for immediate termination. In the event of termination as the result of material misrepresentation of the status of. the Subcontractor as a DBE/MBE/WBE, Subcontractor shall not be entitled to any compensation not already paid. 133 Subcontractor shall comply with and agrees to be bound by all applicable federal, state and local laws and regulations, including, but not limited to, all provisions of the Fair Labor Standards Act, the Americans With Disabilities Act, the Federal Family and Medical Leave Act, the California Labor Code, the California. Fair Employment and Housing Act, and the California Family Rights Act Upon request, Subcontractor shall submit certified payroll records ia Contractor no later than three (3) working days after labor has been paid SECTION 14. RECOURSE BY CONTRACTOR 14,1 Failure of Performance.
14.L1 Right to Adequate AsBurance. When reasonable grounds for insecurity arise with respect to Subcontractor's performance, Contractor may in writing demand adequate assurance of due performance. Subcontractor's failure to provide within fifteen (15) days of the demand such assurance of due performance as is adequate under the circumstances of the particular case is a default under Section 14.1.2 of this Agreement. 14.1.2 Notice to Cure. If Subcontractor at any time refuses or neglects to supply enough properly skilled workers and proper materials, or fails to properly and diligendy prosecute the work covered by this Agreement, or fails to make prompt payment to its workers, sub-subcontractors or suppliers, or becomes delinquent with respect to contributions or payments required to be made to any health and welfare, pension, vacation, apprenticeship or other/employee benefit program or trust, or fails to provide adequate assurance pursuant to Section 14.1.1, or is otherwise guilty of a material breach of a provision of this Agreement, and
fails within forty-eight (48) hours after receipt of written notice to commence and continue satisfactory correction of such, default with diligence and promptness, then Contractor, without prejudice to any rights or remedies, shall have the right to any or aS of the following remedies: (a) supply'such number of -workers and quantity of materials, equipment and other facilities us Contractor deems necessary for the completion of Subcontractors work, or any part thereof which Subcontractor has failed to complete or perform, and charge the cost thereof to Subcontractor, who shall be liable for the payment of same including reasonable overhead; profit and actual attorneys' fees incurred as a result of Subcontractor's failure of performance; contract -with one or more additional contractors to perform such part of Subcontractor's work as Contractor shall determine will provide the most expeditious completion of the total work and charge the cost thereof to Subcontractor; and withhold payment of smy monies due Subcontractor pending corrective action to the extent requited by and to the satisfaction of Contractor.
b)
(c)
In the event of an emergency affecting the safety of persons or property, Contractor may proceed as above without notice. 14.L3 Tenwibation for Default. If Subcontractor fails to commence and satisfactorily continue correction of a default within forty-eight (48) hours after receipt by Subcontractor of the notice issued under Section 14.1.2., then Contractor may terminate Subcontractor's right to perform, under this Agreement and use any materials, implements, equipment, appliances or tools furnished by or htlongirig to Subconttactor to complete Subcontractor's work without any further compensation to Subcontractor for such use. Contractor also may furnish those materials and equipment, and/or employ such -workers or subcontractors as Contractor deems necessary to maintain the orderly progress of the work In such case, Subcontractor shall be entitled to no further payment until the balance of Subcontractor's work has been completed At that time, all of the costs incurred by Contractor in performing Subcontractor's work, including a markup of fifteen percent (15%) for overhead and profit on such expenses, pins actual attorneys' fees as provided above, shall be deducted from any monies due or to become due Subcontractor. Subcontractor shall be liable for the payment of any amount by which such expenses may exceed the unpaid balance of the Contract Price. 14.L4 Termination for Convenience. Contractor may at any time and for any reason terminate Subcontractor's services and work at Contractor's convenience. Cancellation shall be by service of written notice to Subcontractor's place of business. Upon receipt of such notice, Subcontractor shall, unless the notice directs otherwise, immediately discontinue the work and placing of orders for materials, facilities and suppEes in connection with the performance of this Agreement, and shall, if requested, make every reasonable effort to procure cancellation of all existing orders or contracts upon terms satisfactory to Contractor or, at the option of Contractor, give Contractor the right to assume those obligations directly, including all benefits to be derived therefrom. Subcontractor shall thereafter do only such work as maybe necessary to preserve and protect the work already in progress and to protect material and equipment on the job site-or in transit thereto. Upon such tetxnination, Subcontractor shall be entitled to payment in accordance with Section 4 only as follows: (1) the actual cost of the work completed in conformity with this Agreement; plus, (2) such other costs actually incurred by Subcontractor as are permitted by the prime contract and approved by Owner; plus (5) fifteen percent (15%) of the cost of the work referred to in item (1) above for overhead and profit There
shall be deducted from such sums as provided in this subparagraph the amount of any payments made to Subcontractor prior to the date of the termination of this Agreement In.no event shall payment due hereunder exceed the amount due for approved unite of work or percentage of completion. Subcontractor shall not be entitled to any claim or claim of lien against Contractor or Owner for any additional compensation or damages in the event of such termination and payment 14.1.5 Grounds fot Withholding Payment. Contractor may withhold or, on account of subsequently discovered evidence nullify the -whole or part of any payment to the extent necessary to protect Contractor . from loss, including costs and actual attorneys' fees, on account of (1) defective wort not remedied; (2) claims filed or reasonable evidence indicating probable filing of claim; (3) failure of Subcontractor to make payments property to its subcontractors or fot material, labor or fringe benefits; (4) a reasonable doubt that this Agreement can be completed for the balance then unpaid; (5) damage to another subcontractor; (6) penalties assessed against Contractor or Subcontractor for failure of Subcontractor to comply with state, federal or local laws and regulations; or (7) any other ground for withholding payment allowed by state or federal law, or as otherwise provided in this Agreement. When the above matters are rectified, such amounts as then due and owing shall be paid or credited to Subcontractor, 14.2 Bankruptcy. 14.2.1 Termination Absent Cure. Upon- the appointment of a receiver for Subcontractor or upon Subcontractor making an assignment for the benefit of creditors, or if Subcontractor seeks protection under the Bankruptcy Code or commits any other act of insolvency, Contractor may, absent any applicable legal limitation, terminate this Agreement upon giving forty eight (48) hours written notice, by certified mail, to Subcontractor and its surety, if any. If an order for relief is entered under the Bankruptcy Code with respect to Subcontractor, Contractor mayterminateihis Agreement by giving forty-eight (48) hours written notice, by certified mail, to Subcontractor, its trustee, and its surety, if any, -unless Subcontractor, the surety, or the trustee: (a) promptly cures all defaults; (b) provides adequate assurance of future performance^ (c) compensates Contractor for actual pecuniary loss resulting from such defaults; and (d) assumes the obligations of Subcontractor within the statutory time limits. 14.2.2 Interim Remedies. If Subcontractor is not performing in accordance with the schedule of work at the time of entering an order for relief, or at any subsequent time, Contractor, while awaiting me decision of Subcontractor or its trustee to reject or to accept this Agreement and provide adequate assurance of its ability to perform, hereunder, may avail itself of such remedies under this Section as are reasonably necessary to maintain the schedule of work Contractor may offset against any sums due or to become due Subcontractor a costs incurred in pursuing H any of the remedies provided hereunder, including, but.not limited to, reasonable overhead, profit and actual attorneys' fees incurred as a result of Subcontractors non-performance. Subcontractor shall be liable for the payment of any amount by which such expense may exceed the unpaid balance of the Contract Price.
15.1.1 Subcontractor's Performance* With the exception that this Section 15 shall in no event be construed to require indemnification by Subcontractor to a greater extent than permitted under the public policy of the State of California, Subcontractor shall indemnify and save harmless Owner and Contractor, including their officers, agents, employees, affiliates, patents and subsidiaries, and each of them, of and from
any and all claims, demands, causes of action, damages, costs, expenses, actual attorneys' faes, losses or liabilities, in law or in equity, of every !rind and nature -whatsoever ("Claims") ansing out of or in connection with Subcontractor's operations to be performed under this Agreement for, but not limited to: (a) Personal Injury, including, but not limited to, bodily injury, emotional injury, sickness or disease, or death to persons, including, but not limited to, any employees or agents of Subcontractor, Owner, Contractor, or any other Subcontractor and/or damage to property of anyone (including loss of use thereof), caused or alleged to be caused in whole or in part by any act or omission of Subcontractor or anyone directly or indirectly employed by Subcontractor or anyone for whose acts Subcontractor may be liable regardless of whether such personal injury or damage is caused by a party rndemrdfied hereunder. Penalties imposed on account of the violation of any law, order, citation, rule, regulation, standard, ordinance or statute, caused.by the action or inaction of Subcontractor. Infringement of any patent rights which may be brought against the Contractor or Owner arising out of Subcontractor's work Claims and liens (see Section 9) for labor performed or materials used or famished to be used on the job, including all incidental or consequential damages resulting to Contractor or Owner from such claims or liens. Subcontractor's failure to fulfill the covenants set forth in each subpart of Section 13, Labor Relations. Failure of Subcontractor to comply with the provisions of Section 16.1, Casualty Insurance. Any violation or infraction by Subcontractor of any law, order, citation, rule, regulation, standard, ordinance or statute in any way relating to the occupational health or safety of employees, including, but not limited to, the use of Contractor's or others' equipment, hoists, elevators, or scaffolds (see Sections 1 & and 20).
(b)
(c)
(d)
(e)
(f) (g)
The mdemnification provisions of (a) through (g) above shall extend to Claims occurring after this Agreement is terminated as well as while it is in force. Such indemnity provisions apply regardless of any active and/or passive negligent act or omission of Owner or Contractor or their agents or employees. Subcontractor, however, shall not be obligated under this Agreement to indemnify Owner or Contractor for Claims arising from the sole negligence or willful misconduct of Owner or Contractor or their agents, employees or independent contractors who are directly responsible to Owner or Contractor, or for defects in design furnished by such persons. 15.12 Subcontractor shall: (a) At Subcontractor's own cost, expense and risk, defend all Claims as defined in Section 15.1.1 that may be brought or instituted by third persons, including, but not limited to, governmental agencies or employees of Subcontractor;, against Contractor or Owner or their agents or employees or any of them; Pay and satis fy any judgment or decree mat may be rendered against Contractor or Owner or their agents or employees, or any of them, arising out of any such Claim; and/or Reimburse Contractor or Owner or their agents or employees for any and all legal espense
(b)
(c)
Case5:11-cv-03735-HR'L Document1-1
incurred by any of them in connection herewith or in enforcing the indemnity granted in (Ms Section 15. 15.2 Risk of Loss.
A3 work covered by this Agreement done at the site or in preparing or deliveiing materials or equipment, or. any or all of them, to the site shall be at the risk of Subcontractor exclusively until the completed work is accepted by Contractor. 153 N o Limitation of Liability.
The indemnities set forth in this Section 15 shall not be limited by me insurance requirements set forth in Section 16. SECTION 16. INSURANCE l&l Subcontractor shall, at its own expense, maintain on all of its operations, not less than the following coverage and limits of insueance which shall be maintained under forms of policies and from companies satisfactory to the Contractor and Owner. The insurance company must have a financial rating of at least A-VH as defined by A.M. Best Company. Copies of policies shall be provided when requested. 16X1 Workers' Compensation arid Employers Liability Insurance. Workers' Compensation insurance shall be provided as requited by any applicable law or reguktioa. Employer's Liability insurance shall be provided in amounts not less than:
ff1,000,000 eaA accidentforbodiiy injury by aedtknt $ 1,000,000 policy Bmtifor bodily injury by disease J 1,000,000 each employeefirbodiiy injury by distase
A waiver of subrogation endorsement is required. If there is an exposure of injury to Subonttactor's employees under the U.S. Longshoremen's and Harbor Workers' Compensation Act, the Jones Act or under laws, regulations or statutes applicable to work on, neat to, or above -water, coverage shall be included for such injuries or claims. 16.12 General Liability Insurance. Subcontractor shall catty Comprehensive General Liability or Commercial General Liability insurance covering all operations by or on behalf of Subcontractor, providing insurance for bodily injury liability and property damage liability for the limits of liability indicated below and including coverage for: (1) (2) (3) (4) (5) (6) premises and operations; products and completed operations; contractual liability insuring me obligations assumed by Subcontractor in this Agreement; broad form property damage {including completed operations); explosion, collapse and underground hazards; personal injury liability;
Except with respect to bodily injury and properly damage included within the products and completed operation hazards, the aggregate limit, where applicable, shall apply separately to Subcontractor's work under this Agreement '
One of the following coverage forms is required: Comprehensive General liability Commercial General Liability Occurrence A "claims made" policy form is not acceptable -without prior approval A "modified occurrence" policy is not acceptable. 16.2.1 If Subcontractor carries a Comprehensive General liability policy, the limits of lability shall not be less than a combined single limit for bodily injury, property damage and personal injury liability of. $2,000,000 each occurrence, 12,000,000 aggregate. . 16.2.2 If Subcontractor carries an Occurrence form Commercial General liability policy, the limits of liability shall be not less than: $1,000,000 each occurrence'(combinedsinglefonitforbodily injury'andproperty damage) $1,000,000forpersonalinjury UaMSiy $2,000,000 aggregatefirprodsuts-compkiedoperations $2,000,000 general aggregate perproject The policy must have an endorsement providing mat the general aggregate limit applied separately to ibis project 1623 Certificates of Insurance. Certificates of Insurance, as evidence of -the insurance required by ibis Agreement, shall be furnished by Subcontractor to Contractor, before any work is commenced by Subcontractor at jobsite. The Certificates of Insurance shall provide that there wiil be no cancellation or reduction of coverage -without thirty days (30) prior -written notice to Contractor. Certificates including additional insured endorsement shall be furnished for two (2) years following completion of the project Automobile liability Insnraace. Subcontractor shall carry Automobile liability insurance, including coverage for all owned, hired and non-owned automobiles. The limits of liability shall be not less than $1,000,000 combined single limit each accident for bodily injury and property damage. Additional Insured Endorsement. The Bodily Injury and Property Damage liability policies shall include a provision or endorsement naming both the Owner and Contractor and their officers and employees as additional insureds with respect to liabilities arising out of Subcontractor's performance of the work under this Contract, and providing that such insurance is primary insurance with respect to the interest of the Contractor and that any other, insurance maintained' by the Contractor and Owner is excess and not contributing insurance with the insurance requirement hereunder. The additional insured endorsement shall provide coverage at least as broad as Additional Insured (Form B) endorsement form CG 20 10 11 85 as published by the Insurance Services Office (ISO). Aircraft Insurance. If the Subcontractor or their Subcontractors use any owned, leased, chartered or hired aircraft of any type (including helicopters) in the performance of this contract, they shall maintain Aircraft Liability insurance in an amount of not less than $10,000,000 per occurrence including Passenger liability. Evidence of coverage in the form of a Certificate of Insurance shall be provided prior to the start of work.
16.3
164
16.5
Case5:11-cv-03735-HRL Documentl-1 . Filed07/29/11 Page14of17
16.6
Iasaraa.ee Requirements for Sub-subcontractors. The Subcontractor shall ensure that all tiers of their Subcontractors shall procure and maintain insurance in like form and amounts including the Additional Insured requirements, all as set forth above. Copies of the certificate must he provided prior to the sub-subcontractors entering the jobsite. Professional liability Insnutaace. A 1,000,000 Professional Liability insurance policy may be required if Subcontractor or their subconttactor provides design or design/build services to the project Professional Liability insurance in an amount not less than 1,000,000 and in forms acceptable to the Contractor shall be carried if requested by contractor. Evidence of coverage in the form of a Certificate of Insurance shall be provided prior to the start of-work. Builders' Risk Insurance. Subcontractors shall insure, through an installation Floater form of policy, secure and protect their work and materials -while in transit to jobsite, or in storage, from damages until final acceptance by the Owner. All deductibles shall be the responsibility of Subcontractor. All Contractors waive their rights of subrogation as pertains to the proceeds of any Builders' Risk insurance policy carried by contractor or owner. Pollution liability. If Subcontractors or their Subcontractors are required to perform remedial hazardous material operations such as asbestos containing materials, containing soil, etc, they must, in addition to the above requirements, carry a "Contractor's Pollution Liability11 policy with limits not less than $1,000,000 per occurrence and not less than $1,000,000 aggregate for bodily injury, personal injury and property damage, naming Contractor as additional insured. If Subcontractor or their subcontractors haul hazardous waste they must carry Automobile liability insurance with $1,000,000 combined single Hmit per occurrence for bodily injury and property damage applicable to all hazardous waste hauling vehicles and include MCS 90.
16.7
16.8
16.9
16.10
Acceptance of Subcontractor Tt^priira>r The required insurance shall be subject to the approval of Contractor, but any acceptance of insurance certificates by Contractor shall in no way limit or relieve Subcontractor of the duties and responsibilities by said Subcontractor in this Agreement If higher Hmits or other forms of insurance are required in the Contract Documents, Subcontractor wiU comply with such requirements.
SECTION 17- DISPUTE RESOLUTION PROCEDURE 17.1 Prelmriaary Dispute Resolution! Procedure and Agreement to Arbitrate .17.11 Disputes under Prime Contract. Any dispute resolution procedure in the prime contract shall be deemed incorporated in this Agreement, and shall apply to any disputes arising hereunder, except disputes not involving the acts, omissions or otherwise the responsibility of die Owner under the prime contract, those which have been waived by the making or acceptance of final payment, and questions regarding the licensure of the Subcontractor. Subject to compliance with all applicable laws, including but not limited to those relating to false claims, dispute and claim certificates, and cost and priding data requirements, Contractor's sole obligation is to present any timely-filed claims by Subcontractor to Owner under such procedure and, subject to the other provisions of this Agreement, to pay to Subcontractor the proportionate part of any sums paid by the Owner to which Subcontractor is entitled. 17.1.2 Settlement Negotiations. Subject to prime contract disputes under Section 17.1.1, and as for disputes not involving the acts, omissions or otherwise the responsibility of the Owner under the prime contract, promptly upon notification by the Subcontractor of a dispute, the Contractor and Subcontractor shall meet to informally resolve such dispute. In the event that no resolution is achieved; the parties, prior to
the initiation of any action or proceeding under this section, shall make a good faith effort to resolve- the dispute by negotiation between representatives -with dedsion-makiog power, who, to the extent possible, shall not have had substantive involvement in the matters of the dispute, unless the parlies otherwise agree. To facilitate the negotiation, the parties agree either to fashion a procedure themselves or seek the assistance of a person or organization experienced in alternative dispute resolution procedures such as mediation, ntinitrial or other siraJar procedures. 17.2 Arbitration Procedures. In the event the prime contract contains an arbitration provision or for disputes not involving the acts, omissions or otherwise the responsibility of the Owner under the prime contract, the fallowing shall apply: 17.2.1 Notice of Demand. For arbitration under the prime contract, notice of the demand for arbitration shall be tied in writing -with the other party to this Agreement and shall conform to the requirements of the arbitration provision set forth in the prime contract For claims not involving the acts, omissions or otherwise the responsibility of the Owner -under the prime contract, the parties hereto shall submit any and all disputes arising under or relating to the terms and conditions of the Subcontract to arbitration in accordance with the Construction Industry Rules of the American Arbitration Association. In either case, the demand for arbitration shall be made within a reasonable time after -written notice of the claim, dispute or other matter in question has been given, and in no event shall it be made after the date when institution of legal or equitable proceedings based on such claim dispute or other matter in question would be barred by the applicable statute of limitations. 17.2.2 Award. The award rendered by the arbitrators) shall be final and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction. 17.2.3 Work Continuation and Payment., Unless otherwise agreed in writing, Subcontractor shall carry on the work and maintaia the schedule of work pending arbitration, and, if so, Contractor shall continue to make payments in accordance with this Agreement. 17.2.4 Consolidated Arbitration Proceedings. To the extent not prohibited by their contracts with others, the claims and disputes of Owner, Contractor, Subcontractor and other subcontractors, suppliers and/or materialmen involving a common question of feet or law shall be heard by the same arbitrators) in a single proceeding. In this event, it shall be the responsibility of Subcontractor to prepare and present Contractor's case, to the extent the proceedings are related to this Agreement Should Contractor enter into arbitration -with the Owner or others regarding matters relating to this Agreement, Subcontractor shall be bound by the result of the arbitration to the same degree as the Contractor. 17.2.5 No Limitation of Sights or Remedies. This Section shall not be deemed a limitadon of any rights or remedies which Subcontractor may have under any federal or state mechanics' lien laws or under any applicable labor and material payment bonds unless such rights or remedies are expressly waived by it SECTION 18. COMPLIANCE W I T H ALL LAWS AND SAFFHTY PRACTICES Subcontractor shall comply fully vrith all laws, orders, citations, rules, regulations, standards and statutes affecting or rekti&g to this Agreement or its performance, including but not limited to those with respect to occupational health and safety, the handling and storage of hazardous materials, accident prevention, safety equipment and practices including the accident prevention and safety program of Owner and Contractor, Subcontractor shall conduct inspections to determine that safe working conditions and equipment exist and accepts sole responsibility for providing a safe place to -work for its employees and for employees of its subcontractors and suppliers of material and equipment, for adequacy of and required use of all safety
equipment and for fall compliance -with the aforesaid laws, orders, citations, roles, regulations, standards and statutes. SECTION 19. WASRANTy Subcontractor warrants to Owner and Contractor that all m a t ^ l s and equipment furnished shall be new unless otherwise specified and that all work under this Agreement shall be performed in a good and workmanlike manner, shall be of good quality, free from faults and defects and in conformance with the Contiact Documents. All work not conforming to these requirements, including substitutions not properly approved and authorized, may be considered defective. The warranty provided in this Section 19 shall be in addition to and not In limitation of any other warranty or remedy required by law or by the Contiact Documents. SECTION 20. USE OP CONTRACTOR'S ROIIIPMENT In the event Subcontractor shall use Contractor's equipment, materials, labor, supplies or facilities, Subcontractor shall reimburse Contractor at a predetamtaed rate, except as prodded in Section 14.1.2 or as otherwise stated herein. Further, Subcontractor assumes all responsibility for physical damage to such equipment, materials, labor, supplies, or facilities used by Subcontractor or its agents, employees, or permittees. In the event that Contractor's employees are used by Subcontractor, Subcontractor shall have full responsibility for all acts or omissions of Contractor's employees with regard to Subcontractor's use or employment of them. Subcontractor accepts- any and all of Contractor's equipmentj materials, labor, supplies or feafittes as furnished. SECTION 2L ASSIGNMENT O F CONTRACT Subcontractor shall not, -without -written consent of Contractor, assign, transfer, or sublet any portion or part of the -work required by this Agreement, nor assign any payment hereunder to others. SECTION 22. I N D E P E N D E N T CONTRACTOR Subcontractor is an independent contractor and shall, at its sole cost and expense, and -without increase in the Contract Price, comply with all laws, rules, ordinances and regulations of all governing bodies having jurisdiction over the work; obtain all necessary permits and licenses therefor, pay all manufacturers' taxes, sales taxes, use taxes, processing taxes, and all federal and state taxes, insurance and contributions for social security and unemployment which, are measured by wages, salaries, or other remunerations paid to Subcontractor's employees, whether levied under existing or subsequently enacted laws, rules or regulations. Subcontractor, upon request, shall furnish evidence satisfactory to Contractor that any or all of the.foregoing obligations have been fulfilled. SECTION 23. CLEAN-UP At all times during the course of construction, Subcontractor shall perform its work so as so maintain the site in a clean, safe and orderly condition. Upon completion at the work under this Agreement, Subcontractor shall remove from this site all hazardous materials, temporary structures, debris and waste incident to its operation and clean all surfaces, fixtures, equipment, etc., relative to the performance of this Agreement. SECTION 24. ATTORNEYS' FEES In the event the parties become involved in litigation or arbitration with each other arising out of this Agreement or other performance thereof in which (he services of an attorney or other expert are reasonably required, the prevailing party shall be fully compensated for the cost of its participation in such proceedings,
Filed07/29/11
Page17of17
including the cost moused for attorneys' fees and experts' fees. Unless judgment goes by default, the attorneys' fee award shall not be computed in accordance "with any court schedule, but shall be such as to fuUy reimburse all attorneys' fees actually incurred in good faitih, regardless of the size of a judgment; it being the intention of the parties to fully compensate for all attorneys' fees and experts' fees paid or incurred in good faith. In the case of a dispute under the prime contract dispute resolution provisions, Subcontractor shall be entitled to such attorneys' fees and other costs as may be provided for under the prime contract SECTION 25. LABOR AGREEMENTS The contractor is signatory to the following labor agreements covering work on this project 1. Northern California Carpenters 2. Northern California Laborers SECTION 26. SPECIAL PROVISIONS (mdudingunit pricing, if applicable) 26.1 On or before the 25th of each month, Subcontractor ag*ees to submit its biHing for work completed through, the ZS1*1 of each month on Contractor's Application for Payment" form and to submit its "Affidavit of Subcontractor" and "Conditional Waiver & Release" forms for itself and its subcontractors and suppliers. Failure to submit all necessary forms could . delay payment to Subcontractor. SUBSTANTIAL COMPLETION P A T E : 12/29 /00 CONTRACTORS ARE REQUIRED BY LAW TO BE LICENSED AND REGULATED BY THE CONTRACTORS STATE LICENSE BOARD, WHICH HAS JURISDICTION TO INVESTIGATE COMPLAINTS AGAINST CONTRACTORS IF A COMPLAINT IS FILED WITHIN THREE YEARS OF THE DATE OF THE ALLEGED VIOLATION. ANY QUESTIONS CONCERNING A CONTRACTOR MAY BE REFERRED TO THE REGISTRAR, CONTRACTORS STATE LICENSE BOARD, P.O. BOX 26000, SACRAMENTO, CALIFORNIA 95826.
CONTRACTOR BLACH CONSTRUCTION COMPANY
SUBCONTRACTOR ROYAL GLASS
fay=Michael J. Blach, President 1650 Lafeyette Street Santa Clara, CA 95050
"^
GJefc
J o h n G. M a g g i o r e . P r e s i d e n t (Signers Signature and Title) CA Contractor's license No. ^ 5 A 3 A 7 1 _ 10/2002
CA Contractor's License No. 290418
Dated-
7~z.</-o-*
Dated: _
J u l y 1 1 . 2000
% JS 44 (Rev. 12fl7)(CA)ND Rav 1/10)
CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neitherreplacenor supplement thefilingand service of pleadings or other papers as required by law, except as provided by local rules of court This form, approved by the Judicial Conference of the United States in September 1974, isrequiredforthe use of the Cleric of Court tor the purpose of initiating the civil docket sheet (SBi INSTRUCTIONS ON PAGE TWO OF THE FORM.) DEFENDANTS I. (a) PLAINTIFFS Travelers Indemnity Company of Illinois; and Travelers Property Casualty Company of America
(b) County of Residence of First Listed Plaintiff H a r t f o r d C o u n t y (EXCEPT IN U.S. PLAINTIFF C A S E S )
Aqua Proof. Inc.; B.T. Mancini Company, Inc.; Bay Area Canvas, Inc.; Concord Iron Works, Inc.; Cupertino Electric, Inc.; et al. County ^Residence of First Listed Defendant San Joaquin County
" n % \ {IN U.S. PLAINTIFF CASBS ONLY) ":. iNOTB? IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE LAND INVOLVED. Attorneys (If Known)
(C)
Attorney's (Firm N a m e , A d d r e s s , and Telephone Number)
Daniel Eli, Esq. SBN B046S Black, Compean, Hall & Eli 700 S. Flower St., Ste. 3350 Los Angeles, CA 90017 (213) 629-9500; fax (213) 629-4868 IL BASIS OF JURISDICTION {place m -x- in o. BO* oiy)
P I 1 U.S. Government Plaintiff P""] 3 Federal Question _ (US. Government Not a Party) III. C f T K l M S H I P O F P R I N C I P A L P A R T I E S (Phmx"faOBeBforMiiiiiff (For Diversity Cases Only) and One Box for Defendant) PTF DEF PTP DEF Citittn of This Stale I i 1 I I 1 Incorporated w Principal Place CI 4 fjx] 4 of Business hiThis Slate Citizen of AirathcrSiatc I t2 I I 2 rncotporatedomfPrinciiiiu'place of Business In Another State j 3 Foreign Nation [x] 5
_a
[2
U S Government / BTI 4 ^Diversity Defendant ^. * ^ (Indicate Citizenship of Parties in Item III)
Citizen or Subject of a Foreign Country IV. N A T U R E O F S U I T ( P t o a B " J T JnOiieSoxOnly)
f3
EZM
n*
.\ I 1
no Insurance
I I I I || 1 1 I I II
TORTS " i F O R F E I T U R E ^ P E N A L T V| BANKRUPTCY 1422 Appeal 23 USC 158 PERSONAL INJURY PERSONAL INJURY 610 Agriculture 620OtticrFoo(t&DrHfj 1423 Withdrawal Marine 1^3310 Aiipliuie 362 Personal 1 ujury 525 Ding'Related Seizure 28 TJEC 151 . .50 Milter Act ~ | 3 1 5 Airplane Product Med- Malpractice of Property 2! USC S81[ 140 Negotiable Jiisiraittcitf Liability ["""1,365 Personal Injuiy 630 Liqwor Laws B30 Assault, Libel & Recovery of Overpayment Product Liability PROI'ERTYRI GHTS 640R.R.& Track Slander & Enforcement of Judgment 3 3 3 6 B Asbestos Personal 3810 Copyrights 30 Federal Employers' 1650 AirlhieRegs. Medicare Ac! Injury Product J830 Patent 3 6 6 0 Occupational Liabflily Recovery of Default; Liability 3840 Trademark Safety/Health . i40 Marine Student loans PERSONAL PROPERTY C D 690 Other~ 1 J 4 5 Marine Product (li;t. Veterans) 3 3 3 7 0 Other Fraud Liability Recovery of Ove(pAyme '371 Tnilit in Lending SOCIAL SECURITY LABOR J350 Motor Vehicle ol'Vciciitn's B& EZPB0 Other Personal 1355 Molar Vehicle Stackfw triers' Suits H i 710Fair Labor Standards ^ S 6 f HIA(I395ff) Property Damage Product Liability Oiher Contract Act ^ 3 8 6 2 Black Lung P23) 3 3 ^ 8 5 Property Damage ;3GQ Other Personal Injury ComraciVroduct Liability Z J 7 2 0 Labor/Mgmt Relations 3 3 S S 3 D1WC/D1WW (405(g)) Product Liability Franchise 730 Labor/Mgmt.Reporting ~ 1 ! 6 4 SSI D Title XVI PRISONER & Disclosure Act [ 3 * 6 5 RSI (405(g)) REAL PROPERTY CIVIL RIGHTS PETITIONS ^2 740 Railway Labor Act ZZ17* O l i l c r Labor Litigation |441 Voting 210 Land Condemnation 510 Motions to Vacate ^ 3 7 9 1 E m p l . Retlne. J442 Employment 220 Foreclosure Sentence FEDERAL TAX SUITS Security Act |443 Ho using/ 230 Rent Lease & Ejectment Habeas Corpus: 2387.0 Taxes (US. Plaintiff Z ] 530 General 240 TorB to Land Accommodations or Defendant) 1 3 5 3 5 Death Penalty a t s Tort Product Liability .444 Welfare EZ1871 IRSThird Party ! 540 Mandamus &. Other 290 All Other Real Properly 'MS Anaer. WDisabilities IMMIGRATION 26 USC 7609 550 Civil Rights Employment [^3 462 Naturalisation Application 1555 PiTson Condition ^3446" Ainer. w/Disabilities r^l ^63 Habeas Corpus Oilier Alien Detainee 3 4 4 0 OtherCivil Rights 3 465 Other Immigration Actions CONTRACT
O T H E R STATUTES 400 State Reapportionment 410 Antitrust 30 Banks and Banking 450 Commerce 460 Deportation 470 Racketeer Influenced and Corrupt Organizations 480 Consumer Credit 490 Cable/Sat TV S10 Selective Service 850 Secwrtics^Coinmoditics/ Exchange C 3 S 7 5 Customer Challenge 12 USC 3410 590 Other Statutory Actions L"3 891 Agricultural Acts [~1892 Economic Stabilization Act C 3 8 9 3 Environmental Matters I 1S94 Energy Allocation Act [ 3 S 9 5 Freedom of Information Act I3900Appealoi'Fee Determination Under Equal Access C Justice o C 3 950 Constitutionality of State Statutes
^AiQR1GIN (Place an "X" in One Box Only) r~iS2 fjDriginal 2 Removed from Q 3 Remanded from "Proceeding State C o u r t Appellate Court
* Reinstated or Reopened
Transferred from 5 another district (specify)
6 Multidistrict Litigation
Appeal to District 17 Judge from Magistrate Judgment
VI. CAUSE OF ACTION VII. REQUESTED EN COMPLAINT:

IF ANY
Cite the US. Civit Statute under which you are filing (Do not cite jurisdictional statutes unless diversity): 28 U.S.C. 1332 Brief description of cause: Duty to defend / indemnify under indemnity agreements / insurance policies
C D C H E C K IF THIS IS A C L A S S A C T I O N UNDER F R C P . 23 DEMAND $ CHECK YES only if demanded in complaint: J U R Y DEMAND: YesLZJ N o
via . RELATED CA.SE(S)
PLEASE REFER TO CIVIL LR. 3-12 CONCERNING REQUIREMENT TO FILE "NOTICE OF RELATED CASE".
IX. DIVISIONAL ASSIGNMENT (CIVIL L.R. 3-2) (PLACE AND "X" IN ONE BOX ONLY)
DATE
. SIGNATURE OF ATTORNEY OJHSfiHOkD
,*~"~?
July 28,2011
BY FAX

TRAVELERS INDEMNITY COMPANY OF ILLINOIS Et Al v. CLARENDON AMERICAN INSURANCE COMPANY Et Al Complaint

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TRAVELERS INDEMNITY COMPANY OF ILLINOIS Et Al v. CLARENDON AMERICAN INSURANCE COMPANY Et Al Complaint

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Case5:11-cv-03735-HRL Documentl

RiCHAROWWEKING CLERK, U.S. DfSTRiCT COURT

NORTHERN DISTRICT OF CALIFORNIA - COUNTY OF SAN JOSE

TRAVELERS is informed and believes, and thereon alleges that

TRAVELERS is informed and believes, and thereon alleges that

9 general liability insurance, naming Blach as an additional insured thereto.

by the Subcontractor Defendants contains a provision pursuant to which the

Based on information and belief, the following indemnity provision is

Based on information and belief, the Greenwich Policies require

Based on information and belief, defendant LEXINGTON issued one

Based on information and belief, the Lexington Policies require

Based on information and belief, defendant NATIONAL UNION

Based on information and belief, the National Union Policies require

Based on information and belief, the Subcontractor Defendants and

A declaration by this Court of each party's obligation to indemnify is

TRAVELERS has no adequate or speedy remedy at law.

TRAVELERS is informed and believes and based on this information

A declaration by this Court of each party's defense obligation is

TRAVELERS is informed and believes and based on this information

A declaration by this Court of each party's indemnity obligation is

1 2 3 4 6 8 85. 86. 87.

Each defendant is obligated to provide Blach with a defense to the

15 paid in excess of its equitable share, if any, of Blach's' defense costs. 16

18 share of said defense costs.

TENTH CAUSE OF ACTION CONTRACTUAL SUBROGATION

For an order that Travelers is entitled to reimbursement from

L O N G FORM STANDARD SUBCONTRACT

Case5:11-cv-03735-HRL Documentl-1 . Filed07/29/11 Page14of17

CONTRACTOR BLACH CONSTRUCTION COMPANY

SUBCONTRACTOR ROYAL GLASS

fay=Michael J. Blach, President 1650 Lafeyette Street Santa Clara, CA 95050

J o h n G. M a g g i o r e . P r e s i d e n t (Signers Signature and Title) CA Contractor's license No. ^ 5 A 3 A 7 1 _ 10/2002

CA Contractor's License No. 290418

% JS 44 (Rev. 12fl7)(CA)ND Rav 1/10)

CIVIL COVER SHEET

Attorney's (Firm N a m e , A d d r e s s , and Telephone Number)

U S Government / BTI 4 ^Diversity Defendant ^. * ^ (Indicate Citizenship of Parties in Item III)

Citizen or Subject of a Foreign Country IV. N A T U R E O F S U I T ( P t o a B " J T JnOiieSoxOnly)

Transferred from 5 another district (specify)

Appeal to District 17 Judge from Magistrate Judgment

VI. CAUSE OF ACTION VII. REQUESTED EN COMPLAINT:

via . RELATED CA.SE(S)

. SIGNATURE OF ATTORNEY OJHSfiHOkD

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