STATE BAR NUMBER: 267765 / 348256
`
`ATTORNEY OR PARTY WITHOUT ATTORNEY
`NAME: Jack Praetzellis / Christin Kim
`FIRM NAME: FOX ROTHSCHILD LLP
`STREET ADDRESS: 345 California Street, Suite 2200
`CITY: San Francisco
`94104
`STATE: CA ZIP CODE:
`TELEPHONE NO.: (415) 364-5540
`FAX NO.: (415) 391-4436
`EMAIL ADDRESS: jpraetzellis@foxrothschild.com / christinkim@foxrothschild.com
`ATTORNEY FOR (name): Plaintiff Planned Building Services, Inc.
`SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN FRANCISCO
`STREET ADDRESS: 400 McAllister Street
`MAILING ADDRESS: Same
`CITY AND ZIP CODE: San Francisco, California 94102
`BRANCH NAME: Civic Center Courthouse
`PLAINTIFF: PLANNED BUILDING SERVICES, INC.
`DEFENDANT: PARKMERCED OWNER LLC
` DOES 1 TO 10
`
` COMPLAINT
`
`CONTRACT
` AMENDED COMPLAINT (Number):
`
`
`
` CROSS-COMPLAINT
`
` AMENDED CROSS-COMPLAINT (Number):
`
`Jurisdiction (check all that apply):
` ACTION IS A LIMITED CIVIL CASE (does not exceed $35,000)
` does not exceed $10,000
`Amount demanded
` exceeds $10,000
` ACTION IS AN UNLIMITED CIVIL CASE (exceeds $35,000)
` ACTION IS RECLASSIFIED by this amended complaint or cross-complaint
` from limited to unlimited
` from unlimited to limited
`1. Plaintiff* (name or names): Planned Building Services, Inc.
`
`
`
`PLD-C-001
`
`FOR COURT USE ONLY
`
`ELECTRONICALLY
`F I L E D
`
`Superior Court of California,
`County of San Francisco
`04/16/2024
`Clerk of the Court
`BY: AUSTIN LAM
`Deputy Clerk
`
`CASE NUMBER:
`
`
`CGC-24-613993
`
`alleges causes of action against defendant* (name or names): Parkmerced Owner LLC
`
`2. This pleading, including attachments and exhibits, consists of the following number of pages: 33
`3. a. Each plaintiff named above is a competent adult
` except plaintiff (name): Planned Building Services, Inc.
` a corporation qualified to do business in California.
`(1)
` an unincorporated entity (describe):
`(2)
` other (specify):
`(3)
` Plaintiff (name):
` has complied with the fictitious business name laws and is doing business under the fictitious name (specify):
`(1)
`
` has complied with all licensing requirements as a licensed (specify):
`(2)
`
`Information about additional plaintiffs who are not competent adults is shown in Attachment 3c.
`c.
`4. a. Each defendant named above is a natural person
` except defendant (name): Parkmerced Owner LLC
` except defendant (name):
` a business organization, form unknown.
` a business organization, form unknown.
`(1)
`(1)
` a corporation.
`(2)
` a corporation.
`(2)
` an unincorporated entity (describe):
`(3)
` an unincorporated entity (describe):
`(3)
`
`
` a public entity (describe):
` a public entity (describe):
`
`
` other (specify):
` other (specify):
`limited liability company
`
`* If this form is used as a cross-complaint, plaintiff means cross-complainant and defendant means cross-defendant.
`COMPLAINT—Contract
`
`b.
`
`(4)
`
`(5)
`
`Form Approved for Optional Use
`Judicial Council of California
`PLD-C-001 [Rev. January 1, 2024]
`
`
`
`
`(4)
`
`(5)
`
`Page 1 of 2
`Code of Civil Procedure, § 425.12
`www.courts.ca.gov
`
`
`

`

`SHORT TITLE:
`PLANNED BUILDING SERVICES, INC. V. PARKMERCED OWNER LLC
`
`CASE NUMBER:
`
`
`PLD-C-001
`
`4. b. The true names of defendants sued as Does are unknown to plaintiff.
` Doe defendants (specify Doe numbers): 1-5
`were the agents or employees of the named
`(1)
`defendants and acted within the scope of that agency or employment.
` Doe defendants (specify Doe numbers): 6-10
`are persons whose capacities are unknown to
`plaintiff.
`Information about additional defendants who are not natural persons is contained in Attachment 4c.
`
` Defendants who are joined under Code of Civil Procedure section 382 are (names):
`
`c.
`d.
`
`(2)
`
`5.
`
`a.
`b.
`
` Plaintiff is required to comply with a claims statute, and
` has complied with applicable claims statutes, or
`is excused from complying because (specify):
`
`
`
` Civil Code section 1812.10
`
`6.
` This action is subject to
`7. This court is the proper court because
` a defendant entered into the contract here.
`a.
` a defendant lived here when the contract was entered into.
`b.
` a defendant lives here now.
`c.
`the contract was to be performed here.
`
`d.
` a defendant is a corporation or unincorporated association and its principal place of business is here.
`e.
`real property that is the subject of this action is located here.
`
`f.
` other (specify):
`g.
`
` Civil Code section 2984.4.
`
`8. The following causes of action are attached and the statements above apply to each (each complaint must have one or
`more causes of action attached):
` Breach of Contract
` Common Counts
` Other (specify):
`
`9.
`
` Other allegations:
`
`
`10. Plaintiff prays for judgment for costs of suit; for such relief as is fair, just, and equitable; and for
` damages of: $ 2,944,196.71
`a.
`interest on the damages
`
`b.
` according to proof
`(1)
` at the rate of (specify):
`(2)
` attorney's fees
` of: $
`(1)
` according to proof.
`(2)
` other (specify): costs of suit
`
`percent per year from (date):
`
`c.
`
`d.
`
`11.
`
` The paragraphs of this pleading alleged on in formation and belief are as follows (specify paragraph numbers):
`
`
`Date: April 16, 2024
`
`Christin Kim
`
`(TYPE OR PRINT NAME)
`
`
`
`PLD-C-001 [Rev. January 1, 2024]
`
`
`
`
`
`
`(SIGNATURE OF PLAINTIFF OR ATTORNEY)
`
`(If you wish to verify this pleading, affix a verification.)
`COMPLAINT—Contract
`
`Page 2 of 2
`
`

`

`
`
`SHORT TITLE:
`PLANNED BUILDING SERVICES, INC. V. PARKMERCED OWNER LLC
`
`CASE NUMBER:
`
`
`PLD-C-001(1)
`
`FIRST
`
`CAUSE OF ACTION—Breach of Contract
`
`(number)
` Complaint
` Cross - Complaint
`ATTACHMENT TO
`(Use a separate cause of action form for each cause of action.)
`BC-1. Plaintiff (name): Planned Building Services, Inc.
`
`alleges that on or about (date): July 1, 2023
` other (specify):
`a
` written
` oral
`agreement was made between (name parties to agreement): Planned Building Services, Inc. and Parkmerced
`Owner LLC
`
`A copy of the agreement is attached as Exhibit A, or
` are as follows (specify):
`
`The essential terms of the agreement
` are stated in Attachment BC- 1
`Parkmerced Owner LLC agreed to pay Planned Building Services, Inc. for janitorial and maintenance
`services performed at a real property commonly known as Parkmerced, located at 3711 19th
`Avenue, San Francisco, California 94132.
`
`BC-2. On or about (dates): March 18, 2024
`the acts specified in Attachment BC-2
`
`defendant breached the agreement by
`
`(specify): failure to pay for Plaintiff's services performed under the written agreement.
`
`
`
`the following acts
`
`BC-3. Plaintiff has performed all obligations to defendant except those obligations plaintiff was prevented or
`excused from performing.
`BC-4. Plaintiff suffered damages legally (proximately) caused by defendant's breach of the agreement
`as follows (specify): $2,944,196.71
` as stated in Attachment BC-4
`
`
`BC-5.
`
`BC-6.
`
`
`
`
`
`Plaintiff is entitled to attorney fees by an agreement or a statute
` of $
` according to proof.
`Other: costs of suit
`
`
`
`Form Approved for Optional Use
`Judicial Council of California
`PLD-C-001(1) [Rev. January 1, 2007]
`
`
`CAUSE OF ACTION— Breach of Contract
`
`Page 3
`
`Page 1 of 1
`Code of Civil Procedure, § 425.12
`www.courtinfo.ca.gov
`
`

`

`
`
`SHORT TITLE:
`PLANNED BUILDING SERVICES, INC. V. PARKMERCED OWNER LLC
`
`CASE NUMBER:
`
`
`PLD-C-001(2)
`
`CAUSE OF ACTION—Common Counts
`
`SECOND
`(number)
` Cross - Complaint
` Complaint
`ATTACHMENT TO
`(Use a separate cause of action form for each cause of action.)
`
`CC-1. Plaintiff (name): Planned Building Services, Inc.
`
`alleges that defendant (name): Parkmerced Owner LLC
` plaintiff
` other (name):
`became indebted to
`
` within the last four years
` on an open book account for money due.
`(1)
` because an account was stated in writing by and between plaintiff and defendant in which it
`(2)
`was agreed that defendant was indebted to plaintiff.
`
`a.
`
`b.
`
`(3)
`
` four years
` two years
` within the last
` for money had and received by defendant for the use and benefit of plaintiff.
`(1)
` for work, labor, services and materials rendered at the special instance and request of defendant
`(2)
`and for which defendant promised to pay plaintiff.
`
`the sum of $
`
`the reasonable value.
` for goods, wares, and merchandise sold and delivered to defendant and for which defendant
`promised to pay plaintiff
`
`the sum of $
`
`the reasonable value.
` for money lent by plaintiff to defendant at defendant's request.
` for money paid, laid out, and expended to or for defendant at defendant's special instance and
`request.
` other (specify):
`
`(4)
`(5)
`
`(6)
`
`CC-2. $ 2,944,196.71, which is the reasonable value, is due and unpaid despite plaintiff's demand,
`
` according to proof
` at the rate of
`percent per year
`plus prejudgment interest
`from (date):
` Plaintiff is entitled to attorney fees by an agreement or a statute
`CC-3.
` of $
` according to proof.
` Other: costs of suit
`
`CC-4.
`
`
`
`Form Approved for Optional Use
`Judicial Council of California
`PLD-C-001(2) [Rev. January 1, 2009]
`
`
`CAUSE OF ACTION—Common Counts
`
`Page 4
`
`Page 1 of 1
`Code of Civil Procedure, § 425.12
`www.courtinfo.ca.gov
`
`

`

`
`
`
`
`
`
`
`
`EXHIBIT A
`EXHIBIT A
`
`

`

`JANITORIAL AND MAINTENANCE SERVICES AGREEMENT
`
`This Janitorial and Maintenance Services Agreement (“Agreement”) is entered into by
`and between Parkmerced Owner LLC, a California corporation ("PMO") and Planned Building
`Services, Inc., a New Jersey corporation ("Contractor”), effective 523| (Uf(the "Effective
`Date").
`
`1,
`
`The Parties; Legal Relationship
`
`PMOis the owner of the Parkmerced Apartments(hereinafter referred to as “the
`1.1.
`Property”). PMOandits designated managing agent(collectively, “Owner”) shall be the
`interpreter ofthe specifications which will be made part ofthe Agreement and all performanceis
`subject to their evaluations.
`
`Contractor shall provide the services set forth in this Agreement andin the
`1,2,
`specifications annexed hereto.
`
`Contractor acknowledgesthatit is an independentcontractor and, as such, shall be
`1.3.
`responsible for all taxes and other expenses attributable to the rendering ofits services hereunder
`to Owner. This Agreementis not intended to, and shall not be construed to, create a joint
`venture, partnership, or employer/employee relationship as between the parties, or between
`Owner and Contractor’s employees. The Contractorshall retain all control over the essential
`terms and conditions of employment for Contractor's employees. Neither Contractornorits
`employees or agents shall look to Ownerfor:(a) hiring,firing, promotion, demotion or
`disciplinary decisions, (b) supervision of the Services to be performed,(c) training, or (d)
`payment of any wagesorbenefits, worker’s compensation, disability or unemploymentinsurance
`benefits, or other employee benefits.
`
`2.
`
`Intent
`
`It is the intent of this Agreementto provide for various property maintenance and
`2.1.
`repair services for the Property as enumerated in Exhibits "A-1," "A-2" and "B," pursuantto the
`specifications contained therein, which shall becomepart of the Agreement.
`
`3,
`
`Term of Agreement
`
`3.1.|This Agreement shall commence onthe Effective Date and continuefora period
`oftwo (2) years (the "Initial Term"), and shall automatically renew for successive one (1) year
`terms (each, an "Additional Term") (collectively, the "Term"), unless this Agreementis
`terminatedearlier pursuant to Section 16 below. The parties agree that, upon expiration of the
`Initial Term or an Additional Term, the fee set forth in Section 14.1 below will increase at the
`same percentageas the increase in the ConsumerPrice Index for All Urban Consumersfor the
`San Francisco Area (“CPI”) during that Term, or will be adjusted as otherwise mutually agreed
`upon by the parties in writing.
`
`SFO 596303155v14
`
`

`

`4.
`
`Services
`
`This Agreement is performance based. During the Term of the Agreementand as
`4.1.
`hereinafter Contractor shall furnish and perform the services set forth in the specifications
`annexed hereto as Exhibits "A-1," "A-2," and "B"(hereinafter sometimescollectively called the
`“Services”). Unless otherwise specified, the term “Services” includes methods, labor, services,
`and other items andfacilities of every kind necessary for the complete and entire performance of
`the Agreement.
`
`5,
`
`Workmanship
`
`Contractor agrees to perform Services equivalent to that in other similar quality
`5.1.
`San Francisco apartment buildings. Contractors’ personnel shall be competent to perform the
`Services required, and shall be trained by Contractorin the relevant aspects of the Services, in
`the accepted industry standard safety proceduresrelated to the Services, in the hazardous
`materials handling, security and fire safety proceduresof the Property. Contractor agrees and
`acknowledges that its personnel will observe the rules and regulations of the Property, as
`outlined by and from time to time as may be modified by Owner. Ownerdoes not control the
`terms and conditions of employment for Contractor's personnel, and Ownershall not control the
`methodology by which Contractor enforces such rules and regulations of the Property.
`Contractor shall arrange its Services so as not to interfere with the residential tenants’ quiet
`enjoyment of the Property.
`
`6.
`
`Supervision and Inspection
`
`6.1.
`
`Contractor's Supervision
`
`6.1.1. Contractor shall be responsible for the direction, supervision, and
`discipline ofall service personne] assigned to the Property. Contractor will maintain regular
`supervision over all working personnel. Contractor shall (a) directly supervise its personnel on
`the Property, (b) ensure that all contracted Services are performed as scheduled, (c) record
`necessary information, and (d) be available as reasonably necessary to report to and confer with
`the designated agents or employees of Owner.
`
`6.1.2. Prior to starting to perform Services on-site, Contractor shall train all
`permanently assigned, interim replacement and/orshort term substitute personnel in the
`technical, safety, and security aspects of their work assignments, andin the specific rules and
`regulations of the Property.
`
`6.2.
`
`Inspections
`
`6.2.1. At Owner’s direction and in the company of Owner’s appointed
`representatives, inspections of the premises serviced hereundershall be made by a management
`level executive of Contractor with thorough written reports submitted no more than ten (10)
`calendar dayslater.
`
`SFO 596303155v14
`
`

`

`6.3.
`
`Contractor's Recording of Work Orders and Incidents
`
`6.3.1. Owner maintains a Yardi software program forthe purpose of recording
`all work orders or occurrences requiring the attention of Owneror Contractor. Contractor shall
`have accessto the program and shall promptly report and respond any such occurrences within
`24 hours. Owner will also use the program to notify Contractor of work orders, problems, or
`special service requirements that Contractor shall correct within 24 hours.
`
`6.3.2. Owneris to be notified of any faulty locks, lighting, or electrical
`equipment, or any noticeable irregularities. Upon completion of Services, Contractor will ensure
`that all lights have been extinguished (except those required to be left on) and all doors locked,
`leaving the premises in an orderly condition. Contractor will be responsible for building keys,if
`required.
`
`6.4.
`
`Contractor's Schedulingand Schedule Updates
`
`Immediately upon commencementof the Contract, Contractorshall
`6.4.1.
`develop a written schedule of implementation ofall Services, such schedule to include Services
`at the Property as set forth in Exhibit "B."
`
`6.4.2. The planning, organization, control and coordination of Services shall be
`determined and scheduled by Contractor. The formatof the schedule shall be acceptable to
`Owner.
`
`6.5.
`
`Contractor's Payroll Records
`
`6.5.1. Contractor is solely responsible for all compliance with federal, state, and
`local laws regarding maintenanceof time records for Contractor employees and shall make such
`records available to Owner upon request for audit purposes.
`
`7.
`
`Property Materials, Equipment, Storage and Utilities
`
`Contractor will furnish uniforms for on-site personnel. Contractorshall seek
`7.1.
`Owner's prior approval for use of the Owner's nameor logo on such uniforms.
`
`Ownerwill furnish ail the necessary supplies and materials for the performance of
`7.2.
`Services under the Agreement and upon request by Contractor with Owner’s reasonable
`approval, including, but not limited to, green cleaning supplies, basic equipment and consumable
`items such as paper goods, hand soap,toilet articles and plastic liners. Ownerreservesthe right
`to seek procurement ofmaterials and supplies by Contractorat cost plus nine (9%) percent
`handling fee, or as otherwise mutually agreed uponbytheparties in writing.
`
`7.3.|Ownerwill provide all necessary motor vehicles, smart telephones and Wi-Fi
`connection for performanceof the Services under the Agreement, upon reasonable request by
`Contractor, subject to Owner’s approval.
`
`Any otheritems required by Owner, including, but not limited to, walk off mats
`7.4.
`for inclement weather, shall be invoiced to Ownerat Contractor's actual cost for same and
`
`SFO 596303155v14
`
`3
`
`

`

`subject to Owner's prior authorization. In the event Owner requests that the supplierdirectly
`invoice Contractor for paper goods (e.g., toilet articles and plastic liners), Contractorwill pay the
`invoice and will invoice Owner for the actual amountplus a nine (9%) percent handling fee, or
`as otherwise mutually agreed upon bythe parties in writing.
`
`All supplies, materials and equipment paid for by Ownershall remain the
`7.5,
`property of Owner.
`
`As part of the consideration for this Agreement, Contractor agrees that the space
`7.6.
`provided to Contractoris sufficient space for performance of Services under the Agreement,
`including, but not limited to, (a) space for storage of materials, implements, supplies and
`equipment; (b) locker space for Contractor’s employees, and (c) a room foruse as an office for
`Contractor's supervisory personnel when on premises. Contractor further agrees that such space
`may be changed from timeto time at discretion of Owner.
`
`Contractor shall be responsible for the proper and safe storage and disposal of any
`7.7.
`and all hazardous materials consistent with applicable environmental laws.
`
`7.8.|Upon the approval of Owner, Contractorshall have theright to utilize designated
`elevators and such utilities as are necessary for the performance of the Agreement.
`
`8.
`
`Contractor's Personnel
`
`8.1.|Contractor's personnel shall be interviewed by Contractor, Contractor represents
`that its practice is to conduct extensive investigations of its personnel prior to them performing
`Services on the Property, andthat it will continue to perform such investigations, including, but
`not limited to, the following:
`
`(a)
`(b)
`(c)
`(d)
`(e)
`
`63)
`
`Confirmation of personal data, education, and employmenthistory;
`Reference checks on general reputation and character;
`Appraisal of ability to do the job based on past performance;
`Credit references and review ofcivil and criminal court records;
`Determination of any existing or potential conflict of interest situations;
`and
`Drug screening.
`
`Contractor shall pay all wages in connection with its personnel's performance of
`8.2.
`the Services, and all State and Federal taxes that are levied against payroll, as well as any other
`benefits voluntarily provided or prescribed by law. Contractor is responsible for ensuring that its
`personnel shall be properly uniformed, neat and clean in appearance andshall carry proper
`identification at all times.
`
`Contractor shall not directly or indirectly use labor and/or materials in performing
`8.3.
`any Services on the premises if the use of/such labor and/or materials would or will in the
`reasonable judgment of Ownercreate any disharmony orconflict resulting in interference with
`the performanceorservices of others in the premises.
`
`SFO 596303158v14
`
`

`

`Contractor shall manage its ownlabor relations, including compliance with any
`8.4.
`applicable union obligations, trust fund payments to union pension, welfare, annuity, vacation,
`and any other such benefit funds as prescribed in any union contracts to which Contractoris
`bound. If any unions embroil or involve Ownerand/or any other neutral parties to the labor
`dispute in any labor dispute of Contractor or Contractor’s subcontractors, vendors, and suppliers
`for any reason, Contractor will coordinate with Ownerto reduce the risk of disruption,injury, or
`interference with Ownerandits operations and anydisruption, injury, or interference with other
`neutral parties to the labor dispute, including filing unfair labor practice charges, grievances, or
`otherlegal action to protect Ownerand other neutrals. Ownerreservesthe right to select and
`retain its own legal counsel in the event any unions embroil or involve Ownerand otherneutrals
`in a labor dispute with Contractor or Contractor’s subcontractors, vendors, and suppliers. As
`referenced herein, a labor dispute includesbutis notlimited to, strikes or any work stoppageor
`slowdown, whether on-goingor intermittent, picketing, hand-billing, demonstrations, boycotts,
`sympathy strikes, in-plant strategy or tactics, corporate campaigns, interference with permitting
`and/or regulatory activities, or any other concerted action where the purposeoreffectis to
`interrupt, interfere with, impair, impede or obstruct any phase of operations or business of
`Contractor and Contractor’s subcontractors, vendors, and suppliers and/or Owner, and/orother
`neutral parties to the dispute.
`
`Contractor shall manage compliance with employment laws forits personnel and
`8.5.
`warrants that in the performance ofthis Contract, it will comply with all the provisions of the
`Fair Labor Standards Act of 1938 as amended, Equal Employment Opportunity provisions
`required by law, regulation, or executive order, the Occupational Safety and Health Act, the
`Displaced Janitor Opportunity Act, Cal. Labor Code Section 1060, and the Displaced Worker
`Protection Article, Article 33C, San Francisco Police Code, or all other applicable federal, state
`and local employmentstatutes and regulations.
`
`9.
`
`Compliance with Law and Regulations
`
`9.1.|Contractor shall comply with all other laws, ordinances, codes, rules and
`regulations bearing on the conductof the Services including the Board of Fire Underwriters and
`governmental agencies havingjurisdiction. Contractor shall provide and keep current the
`Material Safety Data Sheets for all products used and/orstored in the facility.
`
`10.
`
`Occupational Safety and Health
`
`10.1, Contractor agrees that for the purpose of compliance with the requirementsofthe
`Occupational Safety and Health Act of 1970, Services performed for Ownershall be deemed
`entirely within Contractor's responsibility. Contractor will notify Owner promptly, in writing if a
`charge of non-compliance with the Act has been filed against Contractor in connection withits
`Services being performed on premises.
`
`10.2. Contractorshall take all reasonably necessary precautions for the safety ofits
`employees on the job and of Owner’s employees,
`
`11.
`
`Permits and Licenses
`
`11.1. Contractor's personnel shall maintain any required license(s).
`5
`
`SFO 596303156v14
`
`

`

`11.2. Permits and licenses necessary for the performance ofthe Services shall be
`secured and paid for by Contractor.
`
`12.
`
`Indemnification
`
`Owner agrees to indemnify and hold Contractor and its managers, members,
`12.1
`officers, directors, shareholders, partners, employees, agents and affiliates (the “Contractor
`Indemnified Parties”) harmless from and against any and all costs, expenses, attorneys' fees and
`disbursements,suits, liabilities, damages, or claims for damages (each a “Claim” and
`collectively, “Claims”) to the extent attributable to: (i) any events or circumstancesrelating to
`the hiring, retention, or separation from employment of VPM employeesat the Property priorto
`the effective date of this Agreement, (ii) the pending action known as: SEIU-USWW etal. v.
`Preferred Building Services, et. al., San Francisco Superior Court Case No. CGC-15-545974,or,
`(iii) the failure of Owner reasonably to perform its obligations hereunder, or (iv) any claim
`resulting from any bodily injury, death of any person, or damage to real property or tangible
`personal property caused by Owner, its agents or employees, except for those actions and
`omissions of Contractorin relation to which the Contractor agrees to indemnify Owner pursuant
`to Section 12.2.
`. Owneragrees to defend promptly and diligently, at its sole cost and expense,
`any such indemnified Claim brought against the Contractor Indemnified Parties or against the
`Contractor Indemnified Parties and Owner jointly and severally. Ownershall have the right and
`option to undertake and control the defense of such indemnified Claim with counsel ofits
`choice. It is expressly understood and agreed that the foregoing provisions shall survive the
`termination of this Agreement. In the event the Ownerfails to comply with its indemnification
`obligationsit shall also reimburse Contractor forall costs, fees and damages incurred as a result
`thereof.
`
`Contractor agrees to indemnify and hold the Owner, as well as PMOandits
`12.2
`affiliates, and any managing agent, and any oftheir respective managers, members,officers,
`directors, shareholders, partners, employees, agents and affiliates (the “Owner Indemnified
`Parties”) harmless from and against any and all Claimsto the extentattributable to: (i) any
`negligent acts or omissionsor willful misconduct (including without limitation fraud and bad
`faith) of Contractor, its agents or employees,(ii) any failure of Contractor to promptly perform
`any of its obligations under this Agreement which has an adversefinancial impact on Owner,
`following the expiration of any applicable notice and cure periods, (iii) any acts of Contractor
`beyond the scope of Contractor’s authority hereunder, (iv) any bodily injury, death of any
`person, or damageto real property or tangible personal property caused by Contractor, its agents
`or employees, (v) any suit, order, or other claim filed by any employee or former employee of
`Contractoror its subcontractors in relation to such employee’s employmentat the Property, or,
`(vi) any destruction ofproperty or disruption, injury, or interference with Ownerandits
`operations caused by a labor dispute involving employees or former employees of Contractoror
`its subcontractors, as described above in Section 8. Contractor agrees to defend promptly and
`diligently, at its sole cost and expense, any such indemnified Claim brought against the Owner
`Indemnified Parties or against the Owner Indemnified Parties and Contractor jointly and
`severally. Contractor shall have the right and option to undertake and control the defense of such
`indemnified Claim with counselof its choice. It is expressly understood and agreedthat the
`foregoing provisions shall survive the termination of this Agreement. In the event the Contractor
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`fails to comply with its indemnification obligations it shall also reimburse Ownerfor all costs,
`fees and damagesincurredas a result thereof.
`
`13.
`
`Insurance
`
`13.1. Contractor's Coverage
`
`13.1.1. So long as this Agreementshall remain in effect, Contractor shall maintain
`at its sole expense and keepin full force and effect worker's compensation as required by the
`California Labor Code, employersliability in an amountof at least $1,000,000 per accident and
`disease, disability and unemploymentinsurance consistent with legal requirements, and
`employmentpractices liability insurance with per occurrencelimits of at least $1,000,000 per
`claim/ aggregate.
`
`13.1.2. Contractor shall maintain at its sole expense and keep in full force certain
`insurance coverages mandatory for this Agreement. Limits specified are minimum limits:
`
`(a)
`
`(b)
`
`(c)
`
`(d)
`
`Business Automobile Liability Insurance, in a form at least as broad as
`ISO CA 00-01: a combined single limit for bodily injury and property
`damage per accident of $1,000,000 covering “any auto”; that includesall
`owned, leased, rented or hired or non-owned autos; and state compulsory
`limits for personal injury protection and uninsured motorist coverage.
`
`Commercial General Liability Insurance ("CGL"), in a form at least as
`broad as ISO CG 00-01: with limits of $1,000,000 per occurrence,
`$2,000,000 general aggregate and $2,000,000 products and completed
`operations aggregate. Policy should include coverageforliabilities arising
`out of premises, operations, independent contractors, products, completed
`operations, personal and advertising injury and liability assumed under an
`insured contract. Assault and battery should not be excluded. Such limits
`can be provided under a single policy or in combination with umbrella
`liability or other excess policies. All such policies of insurance shall be on
`an “occurrence basis.”
`
`$5,000,000 per occurrence /
`Umbrella / Excess Liability Insurance:
`aggregate for excess liability insurance, or such greater minimum amounts
`as may be required by any lender holding a mortgage on the Property,
`following form to primary insurance.
`
`Property / Equipment Floater Insurance: Limits equivalent to insure on a
`replacement cost basis any of Contractor’s tools or equipment used to
`perform work under this Agreement.
`
`13.1.3. On the date that this Agreement is executed, Contractor shall provide
`Owner with a certificate of insurance evidencing that Contractor has the aforesaid coverages and
`which indicates that should such insurance be reduced, canceled or non-renewed, both Owner
`and Contractor will receive at least thirty (30) days prior written notice (or ten (10) days for non-
`payment). All policies shall waive rights of subrogation against Owner, shall provide that all
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`insurance of any type, kind orlevel is excess and non-contributing and shall be endorsed if so
`requires. Owner and any other party which Ownerreasonably identifies in writing, shall be
`named as additional insureds in Contractor's CGL policies required hereunder and endorsements
`shall be provided so providing, ifrequired. Additional insured coverage shall be at least as broad
`as ISO CG 20-10. Thereafter, throughout the term of this Agreement, Contractorshall provide
`annually a certificate, with endorsements, within ten (10) days prior to annual renewal.
`Contractorshall arrange with each ofits insurancecarriers to provide Owner with a certificate of
`such insurance.
`
`13.2.
`
`Insurance Owner Notto Benefit.
`
`13.2.1. Nothing contained in this Agreement shall in any way limit the obligations
`ofany insurance ownerunder policies of insurance purchased pursuantto this Agreement to
`indemnify Ownerand Contractor, respectively, for both claims, defense expenses and any andall
`losses orjudgments which may be imposed by law. Ownerand Contractor further agree that:
`
`(a)
`
`(b)
`
`the fact that an indemnifying party makes a payment to the indemnified
`party shall not prevent the indemnifying party from having the benefit
`from any applicable insurance coverage; and
`
`nothing shall prevent the indemnifying party from seeking to recover any
`sums payable under this Agreement from a third party other than an
`indemnified party.
`
`No limitation ofliability of one party hereunderto the other shall be used or construed in
`any way to limit the obligation of any insurance company under any applicable insurance policy
`obtained pursuant to this Agreement to pay or to respond to claims asserted against Owneror
`Contractor, respectively.
`
`13.3. Waiver of Subrogation.
`
`13.3.1. Contractor, Ownerandall parties claiming under them, including
`insurers, by way of subrogation or otherwise, mutually release and discharge each otherfrom all
`claims andliabilities arising from or caused by any casualty or hazard covered by the property
`insurance required to be maintained underthis Agreement, or otherwise carried with respect to
`the Property oractivities conducted on or with respectto the Property, and waive anyright of
`subrogation which might otherwise exist in or accrue to any person on accountthereof.
`
`14.
`
`Fees and Payments
`
`14.1. Upon performance ofthe Services set forth in Exhibits "A-1," "A-2," and "B," the
`Ownershall pay Contractor according to the terms ofpaymentas set forth in Exhibit "C" hereto.
`
`It is understood andagreed by both parties that any failure of Contractorto fully
`14.2.
`execute the Services as set forth in Exhibit "A-1"and the schedule set forth in Exhibit "B," to the
`best level of industry standards, will result in damages to Own