Complaint Unlimited Fee AppliesCal. Super. - 6th Dist.January 22, 2021CD (C) CD ‘4 CD Ch 4> CO ho -A NNNNNNNNAAAAAAAAAA NOUCH-hWNAOQmeU'l-PwNA 28 HIGGS FLETCHER 8: MACK LLP ATTORNEYS AT LAW SAN DIEGO MICHAEL R. GIBSON, ESQ. (Bar No. 199272) gibsonm@higgslaw.com HIGGS FLETCHER & MACK LLP 401 West “A” Street, Suite 2600 San Diego, CA 92101-7913 TEL: 619.236.1551 FAX: 619.696.1410 Attorneys for Plaintiffs E-FILED 1/22/2021 12:22 PM Clerk of Court Superior Court of CA, County of Santa Clara 21CV376812 Reviewed By: R. Tien ALPS GROUP, |NC., and ALPS LODGING 2, INC. SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA DOWNTOWN COURTHOUSE ALPS GROUP, |NC., a California Corporation; and ALPS LODGING 2, |NC., a California corporation, Plaintiff, v. INTERSTATE PAVING AND CONSTRUCTION, an unknown entity; NICK JAMES STANLEY, individually and dba INTERSTATE PAVING AND CONSTRUCTION; HUDSON INSURANCE COMPANY, a surety; and DOES 1 through 25, inclusive, Defendants. 10022148.] CASE NQ 21CV376812 COMPLAINT FOR: 1. BREACH OF CONTRACT- SPRINGHILL ONSITE WORK BREACH OF CONTRACT-HOLIDAY INN ONSITE WORK BREACH OF CONTRACT-OFFSITE WORK FRAUD NEGLIGENT MISREPRESENTATION UNFAIR BUSINESS PRACTICES RECOVERY ON CONTRACTOR’S BOND BREACH 0F COVENANT OF GOOD FAITH AND FAIR DEALING INTENTIONAL INTERFERENCE WITH CONTRACTUAL RELATIONS 10. NEGLIGENT INTERFERENCE WITH PROSPECTIVE ECONOMIC RELATIONS 11.|NTENT|ONAL INTERFERENCE WITH PROSPECTIVE ECONOMIC RELATIONS 12.D|SGORGEMENT PPNP’PPW.“ DEPT: IC JUDGE: CASE FILED: TRIAL DATE: None Set COMPLAINT OLOOONQO‘l-POONA NNNNNNNNAAAAAAAAAA NOUCH-hWNAOQmeU'l-PwNA 28 HIGGS FLETCHER 8: MACK LLP ATTORNEYS AT LAW SAN DIEGO COMES NOW Plaintiffs ALPS GROUP, INC. (“Alps Group”) and ALPS LODGING 2, INC. (“Alps Lodging,” and collectively with Alps Group, “Alps” or the “Plaintiffs”), for causes of action against Defendants INTERSTATE PAVING AND CONSTRUCTION (“Interstate Paving”), NICK JAMES STANLEY, individually and dba INTERSTATE PAVING AND CONSTRUCTION (“Stanley,” and collectively with Interstate Paving, “|nterstate”); HUDSON INSURANCE COMPANY (“Hudson”) and DOES 1 through 25 (collectively the “Defendants”), alleges the following: IDENTIFICATION OF PARTIES 1. Alps Group is, and at all times mentioned herein was, a California corporation to do and doing business in the County of Santa Clara, State of California, with its principal place of business located in the County 0f Santa Clara, State of California. 2. Alps Lodging is, and at all times mentioned herein was, a California corporation to do and doing business in the County of Santa Clara, State of California, with its principal place of business located in the County of Santa Clara, State of California. 3. Interstate is an entity of unknown form with its principal place of business in the County of Santa Clara, State of California, and holds Contractors State License No. 944439. As of the filing of this complaint, Interstate’s contractors license is suspended. Based upon information and belief, at some point in 2019-2020, Interstate’s contractors license was suspended by the Contractors State License Board. However, the Plaintiffs did not discover this until October 2020. 4. Stanley is an individual and principal/owner of Intestate, and conducts business as Interstate. Based upon information and belief, Stanley is a resident of the County 0f Santa Clara, State of California. 5. Hudson is duly organized and existing under the laws of the State of California and is authorized to transact business as a surety upon bonds or undertakings in the State of California. 10022148.1 2 COMPLAINT OLOOONQO‘l-POONA NNNNNNNNAAAAAAAAAA NOUCH-hWNAOQmeU'l-PwNA 28 HIGGS FLETCHER 8: MACK LLP ATTORNEYS AT LAW SAN DIEGO 6. The Plaintiffs are informed and believe that Interstate and Stanley are the alter egos 0f each other, and on that basis allege, that there exists a unity of interest and ownership between them such that any individuality and separateness between them does not exist. The Plaintiffs are further informed and believe, and on that basis allege, that Stanley commingled and/or used assets of Interstate for his personal use, caused assets to be transferred to him and others without adequate consideration, and withdrew funds from Interstate’s bank accounts for his personal use. Stanley has completely controlled, dominated, managed, and operated Interstate to be merely a conduit for his personal benefit, such that any individuality or separateness of Interstate and Stanley does not exist. 7. Adherence to the fiction of the separate existence of Stanley and Interstate as entities distinct from and among themselves would permit an abuse of the corporate privilege and would promote injustice in that Plaintiffs are informed and believe, and on that basis allege, that Interstate has become a mere shell and sham without capital or assets, and/or have been so inadequately capitalized that, compared with the business to be done and the risks of loss, its capitalization is illusory. 8. Further adherence to the fiction of the separate existence of Interstate as an entity distinct from Stanley permits abuse of the corporate privilege and would sanction a fraud in that Stanley has withdrawn and distributed to himself or others, large sums of Interstate’s assets without any consideration, all for the purpose of avoiding and preventing tracing of assets, findings of liability, attachment and execution by creditors, thereby rendering Interstate immune from liability, insolvent and unable to meet its ongafions. 9. Plaintiffs are unaware of the true names, capacities, or basis for liability of Defendants DOES 1 through 25, inclusive, and therefore sue(s) said defendants by their fictitious names. Plaintiffs will seek leave of court to amend this Complaint to show the true names and capacities of DOES 1 through 25 when their true names and capacities have been ascertained. The full extent of the facts linking Defendants DOES 1 through 10022148.1 3 COMPLAINT OLOOONQO‘l-POONA NNNNNNNNAAAAAAAAAA NOUCH-hWNAOQmeU'l-PwNA 28 HIGGS FLETCHER 8: MACK LLP ATTORNEYS AT LAW SAN DIEGO 25 with the causes of action alleged are unknown to the Plaintiffs and the Plaintiffs will seek leave of court to amend this Complaint to allege these additional facts when they have been determined. Plaintiffs are informed and believe, and thereon alleges, that each of the Defendants designated as DOES 1 through 25 are responsible in some manner for the events and happenings referred to herein. Plaintiffs are informed and believe, and thereon alleges, that at all material times, DOES 1 through 25 were the agents, servants and employees of the remaining Defendants, and each of them, and were acting within the course and scope of that agency and employment, and with the consent, express and implied, of the other Defendants with respect to all matters referred to in this Complaint. 10. Venue is properly within the County of Santa Clara, in that the property at issue is located within said judicial district and the obligations alleged herein are to be performed in said judicial district. GENERAL ALLEGATIONS 11. Unless stated otherwise, the allegations set forth herein are based upon information and belief. 12. Alps Group is the owner and developer of the hotel commonly known as Holiday Inn Suites located at 1100 Cadillac Court, Milpitas, California (“Holiday Inn”). 13. Alps Lodging is the owner and developer of the hotel commonly known as Springhill Suites located at 1101 Cadillac Court, Milpitas, California (“Springhill”). Alps Lodging is the successor-in-interest and assignee of Alps Lodging 3, Inc. Offsite Work 14. In or about April 2019, Interstate subcontracted in writing with Allied General Contractors (“Allied”) to provide certain asphalt and paving work on property owned by the Plaintiffs located in and around the Holiday Inn and Springhill (the “Offsite Work”). The contracted price for the Offsite Work was $340,000. Thereafter, on or about May 10, 2019, Allied assigned the subcontract between Allied and Interstate for the Offsite Work to the Plaintiffs as owners. All parties agreed to the assignment. 100221481 4 COMPLAINT OLOOONQO‘l-POONA NNNNNNNNAAAAAAAAAA NOUCH-hWNAOQmeU'l-PwNA 28 HIGGS FLETCHER 8: MACK LLP ATTORNEYS AT LAW SAN DIEGO Attached hereto as Exhibit “A” and incorporated herein by reference as though fully set forth is a true and correct copy of the subcontract for the Offsite Work and the addendum assigning the subcontract (the “Offsite Contract”). 15. At the time of the assignment of the Offsite Work, Interstate had been paid $75,000 toward the Offsite Work, with a balance to finish of $265,000. The Plaintiffs and Interstate agreed to modify the schedule of values for the Offsite Work and increase the contracted price to $400,000. On or about July 11, 2019, the Plaintiffs and Interstate negotiated a “no change order” agreement pursuant to which the Plaintiffs paid Interstate $300,000 to complete the Offsite Work and $50,000 for construction of a pool for Holiday Inn. To date, none of the Offsite Work has been performed and the pool has not been constructed (a violation of Business & Professions Code section 7159). Springhill Onsite Work 16. In 2019, Allied subcontracted in writing with Interstate to perform certain asphalt and paving onsite at Springhill (the “Springhill Onsite Work”). The contracted price for the Springhill Onsite Work was $710,000. Thereafter, on or about May 10, 2019, Allied assigned the subcontract between Allied and Interstate for the Springhill Onsite Work to Alps Lodging. All parties agreed to the assignment. Attached hereto as Exhibit “B” and incorporated herein by reference as though fully set forth is a true and correct copy of the subcontract for the Springhill Onsite Work and the addendum assigning the subcontract (the “Springhill Onsite Contract”). 17. At the time of the assignment of the Springhill Onsite Work, Interstate had been paid $25,000 toward the Springhill Onsite Work, with a balance to finish of $685,000. Thereafter, in October 2019, Alps Lodging and Interstate agreed in writing to modify the schedule of values for the Springhill Onsite Work, decreased the contracted price to $650,000, reduced the scope of work, and set milestones for completion of the Springhill Onsite Work. At that time, the balance to finish the Springhill Onsite Work was $1 17,500. In February 2020, Interstate provided a completion schedule to Alps Lodging (which Interstate failed to uphold or meet). In September 2020, Alps Lodging requested 10022148.1 5 COMPLAINT OLOOONQO‘l-POONA NNNNNNNNAAAAAAAAAA NOUCH-hWNAOQmeU'l-PwNA 28 HIGGS FLETCHER 8: MACK LLP ATTORNEYS AT LAW SAN DIEGO Interstate to provide an updated certificate of insurance. As of this filing, Interstate has not complied with this request. 18. On October 19, 2020, Interstate billed Alps Lodging $27,500 for mobilization of starting the front side concrete curb and gutter and paving, which Alps Lodging paid. To date, and despite multiple written notices to cure and perform, Alps Lodging has failed to mobilize or complete the Springhill Onsite Work. Holiday Inn Onsite Work 19. In 2019, Allied subcontracted in writing with Interstate to perform certain asphalt and paving onsite at Holiday Inn (the “Holiday Inn Onsite Work”). The contracted price for the Holiday Inn Onsite Work was $150,000. Thereafter, on or about May 10, 2019, Allied assigned the subcontract between Allied and Interstate for the Holiday Inn Onsite Work to Alps Lodging. All parties agreed to the assignment. Attached hereto as Exhibit “C” and incorporated herein by reference as though fully set forth is a true and correct copy of the subcontract for the Holiday Inn Onsite Work and the addendum assigning the subcontract (the “Holiday Inn Onsite Contract”). 20. At the time of the assignment of the Holiday Inn Onsite Work, Interstate had been paid $50,000 toward the Holiday Inn Onsite Work, with a balance to finish of $100,000. Despite Alps Lodging paying Interstate all monies due and owing under the Holiday Inn Onsite Contract, Interstate failed to complete the Holiday Inn Onsite Work. To mitigate its damages, Alps Lodging retained a replacement contractor to complete the Holiday Inn Onsite Work and incurred damages completing the work of no less than $72,462.34. Storm Drain 21. On July 8, 2020, Interstate agreed in writing to perform certain storm drain construction to service Springhill (the “Storm Drain Work”). The contracted price for the Storm Drain Work was $13,000. Interstate never commenced the Storm Drain Work and abandoned the project, forcing the Plaintiffs to retain a replacement contractor and incur damages. 10022148.1 6 COMPLAINT OLOOONQO‘l-POONA NNNNNNNNAAAAAAAAAA NOUCH-hWNAOQmeU'l-PwNA 28 HIGGS FLETCHER 8: MACK LLP ATTORNEYS AT LAW SAN DIEGO Damages Caused by Interstate 22. Holiday Inn Onsite Work. Interstate did not complete this work, delaying the issuance of the certificate of occupancy for the hotel. By failing to respond to Alps’ repeated demands from Alps Group to finish this work, Interstate forced Alps Group to incur costs of $72,462.34 completing the Holiday Inn Onsite Work and to mitigate its damages. 23. Sprinqhill Onsite Work. Interstate failed to complete this work and abandoned the work. To mitigate its damages, Alps Lodging will engage a replacement contractor to complete the work. Even after applying the $117,500 balance left on Interstate’s contract, Alps Lodging expects to incur additional costs of no less than $75,000-$100,000 completing the work. Further, Alps Lodging paid Intestate $27,500 for mobilization, but Interstate never mobilized; accordingly, those monies must be returned to Alps Lodging. 24. Storm Drain Work. Interstate abandoned the Storm Drain Work. To mitigate its damages, the Plaintiffs will engage a replacement contractor to complete the work. Even after applying the $13,000 balance left on Interstate’s contract, the Plaintiffs expect to incur additional costs of no less than $10,000-$15,000 completing the Storm Drain Work. 25. Holiday Inn/Sprinqhill Offsite Work. In September 2019, the Plaintiffs paid Interstate $350,000 in advance for this scope of work. Over a year later, no work has been performed and the monies have not been returned. By accepting monies in advance, diverting those funds from the projects and abandoning the underlying contracts, Interstate violated numerous regulations applicable to contractors and caused further damage to the Plaintiffs. 26. As a consequence of Interstate’s acts (and failures to act), the Plaintiffs haves been damaged in a sum no less than $750,000 completing Interstate’s contracted scopes of work, plus interest at the legal rate, attorneys’ fees, costs and related expenses. Moreover, Interstate’s acts (and failures to act) have delayed completion of 10022148.1 7 COMPLAINT OLOOONQO‘l-POONA NNNNNNNNAAAAAAAAAA NOUCH-hWNAOQmeU'l-PwNA 28 HIGGS FLETCHER 8: MACK LLP ATTORNEYS AT LAW SAN DIEGO both hotels, further impacting the Plaintiffs through lost revenues in an amount no less than $1 ,OO0,000. 27. As a result, the Plaintiffs were forced to and will incur: a. Project management costs and expenses overseeing completion and correction of Interstate’s work; b. Extra overhead and related expenses; c. Additional financing fees and interest costs; d. Additional security and site utility costs; e. Additional marketing and promotional costs; f. Additional fund control costs; and g. Increased insurance costs. 28. The amount of these damages are still being calculated. 29. As a consequence of Interstate’s acts (and failures to act), The Plaintiffs haves been damaged in a sum no less than $750,000 to be proven at trial, plus interest at the legal rate, attorneys’ fees, costs and related expenses. Moreover, Interstate’s acts (and failures to act) have delayed completion of both hotels, further impacting The Plaintiffs through lost revenues in an amount no less than $1 ,OO0,000. 30. With each passing day, the Plaintiffs’ damages increase. 31. The Plaintiffs have performed all things necessary and required of it under the contracts, except to the extent that the Plaintiffs was prevented or excused from performing by agreement or by the breach of the Defendants. 32. However, Interstate failed to meet its express obligations, and breached the contracts as outlined herein. 33. The breaches identified in this complaint are not intended to be an exhaustive list of the breaches by Interstate; rather, it is a sample of the types of breach that have occurred. 34. As a result, the Plaintiffs have been compelled to file this Complaint to enforce its rights and has retained the law firm of Higgs Fletcher & Mack, LLP as its 10022148.1 8 COMPLAINT OLOOONQO‘l-POONA NNNNNNNNAAAAAAAAAA NOUCH-hWNAOQmeU'l-PwNA 28 HIGGS FLETCHER 8: MACK LLP ATTORNEYS AT LAW SAN DIEGO attorneys. The Plaintiffs request that the Court order the Defendants to pay the attorneys’ fees and costs incurred by the Plaintiffs in an amount to be determined at trial in this matter. FIRST CAUSE OF ACTION (Breach of Contract-SPRINGHILL ONSITE WORK Against All Defendants) 35. Alps Lodging realleges and incorporates by reference each of the preceding paragraphs set forth above, as though fully set forth here. 36. A dispute has arisen and there exists an actual controversy between Alps Lodging, on the one hand, and Interstate, on the other hand, in that Alps Lodging contends Interstate has failed to perform pursuant to the Springhill Onsite Contract. 37. Pursuant to the terms of the Springhill Onsite Contract as alleged above, Interstate undertook express obligations. 38. Alps Lodging has performed all conditions, covenants and promises required by it to be performed in accordance with the terms and conditions of the Springhill Onsite Contract. 39. Alps Lodging alleges that Interstate has breached the Springhill Onsite Contract as outlined herein. 40. As a direct and proximate result of Interstate’s breach of the Contract, Alps Lodging has been damaged in a sum which is currently unascertainable, but is no less than $145,000, to be proven at trial, plus interest at the legal rate, attorneys’ fees, costs and related expenses. Moreover, Interstate’s acts (and failures to act) have delayed completion of both hotels, further impacting Alps Lodging through lost revenues in an amount no less than $1,000,000. Alps Lodging will seek leave of court to amend this Complaint when such sum can be reasonably ascertained. 41. Alps Lodging has necessarily engaged the firm of Higgs Fletcher & Mack, LLP to represent it in this action and in the prosecution of this Complaint and has incurred legal fees, court costs, investigation costs, and associated costs. /// 10022148.] 9 COMPLAINT OLOOONQO‘l-POONA NNNNNNNNAAAAAAAAAA NOUCH-hWNAOQmeU'l-PwNA 28 HIGGS FLETCHER 8: MACK LLP ATTORNEYS AT LAW SAN DIEGO SECOND CAUSE OF ACTION (Breach of Contract-HOLIDAY INN ONSITE WORK Against All Defendants) 42. Alps Group realleges and incorporates by reference each of the preceding paragraphs set forth above, as though fully set forth here. 43. A dispute has arisen and there exists an actual controversy between Alps Group, on the one hand, and Interstate, on the other hand, in that Alps Group contends Interstate has failed to perform pursuant to the Holiday Inn Onsite Contract. 44. Pursuant to the terms of the Holiday Inn Onsite Contract as alleged above, Interstate undertook express obligations. 45. Alps Group has performed all conditions, covenants and promises required by it to be performed in accordance with the terms and conditions of the Holiday Inn Onsite Contract. 46. Alps Group alleges that Interstate has breached the Holiday Inn Onsite Contract as outlined herein. 47. As a direct and proximate result of Interstate’s breach of the Contract, Alps Group has been damaged in a sum which is currently unascertainable, but is no less than $72,462.34, to be proven at trial, plus interest at the legal rate, attorneys’ fees, costs and related expenses. Moreover, Interstate’s acts (and failures to act) have delayed completion of both hotels, further impacting Alps Group through lost revenues in an amount no less than $1,000,000. Alps Group will seek leave of court to amend this Complaint when such sum can be reasonably ascertained. 48. Alps Group has necessarily engaged the firm of Higgs Fletcher & Mack, LLP to represent it in this action and in the prosecution of this Complaint and has incurred legal fees, court costs, investigation costs, and associated costs. THIRD CAUSE OF ACTION (Breach of Contract-OFFSITE WORK Against All Defendants) 49. The Plaintiffs reallege and incorporate by reference each of the preceding 10022148.1 10 COMPLAINT OLOOONQO‘l-POONA NNNNNNNNAAAAAAAAAA NOUCH-hWNAOQmeU'l-PwNA 28 HIGGS FLETCHER 8: MACK LLP ATTORNEYS AT LAW SAN DIEGO paragraphs set forth above, as though fully set forth here 50. A dispute has arisen and there exists an actual controversy between the Plaintiffs, on the one hand, and Interstate, on the other hand, in that the Plaintiffs contends Interstate has failed to perform pursuant to the Offsite Contract. 51. Pursuant to the terms of the Offsite Contract as alleged above, Interstate undertook express obligations. 52. The Plaintiffs have performed all conditions, covenants and promises required by it to be performed in accordance with the terms and conditions of the Offsite Contract. 53. The Plaintiffs allege that Interstate has breached the Offsite Contract as outlined herein. 54. As a direct and proximate result of Interstate’s breach of the Offsite Contract, the Plaintiffs have been damaged in a sum which is currently unascertainable, but is no less than $750,000 to be proven at trial, plus interest at the legal rate, attorneys’ fees, costs and related expenses. Moreover, Interstate’s acts (and failures to act) have delayed completion of both hotels, further impacting the Plaintiffs through lost revenues in an amount no less than $1 ,OO0,000. The Plaintiffs will seek leave of court to amend this Complaint when such sum can be reasonably ascertained. 55. The Plaintiffs have necessarily engaged the firm of Higgs Fletcher & Mack, LLP to represent it in this action and in the prosecution of this Complaint and has incurred legal fees, court costs, investigation costs, and associated costs. FOURTH CAUSE OF ACTION (Fraud Against All Defendants) 56. The Plaintiffs reallege and incorporate by reference each of the preceding paragraphs set forth above, as though fully set forth here. 57. During the course of construction on the project, beginning in or about December 2019, Interstate, through Stanley, submitted payment applications to the Plaintiffs which contained requests for payment for work and management fees that had 10022148.1 1 1 COMPLAINT OLOOONQO‘l-POONA NNNNNNNNAAAAAAAAAA NOUCH-hWNAOQmeU'l-PwNA 28 HIGGS FLETCHER 8: MACK LLP ATTORNEYS AT LAW SAN DIEGO not been performed or was not otherwise authorized by the Contracts. Nevertheless, Interstate verbally and in writing represented to the Plaintiffs that Interstate had and/or would perform the work and had earned the fees. 58. Interstate knew throughout discussions with the Plaintiffs that Interstate had not performed the work or management for which Interstate was requesting payment nor would it, and that Interstate was not entitled to such fees under the Contracts. 59. Interstate knew that the misrepresentations made to the Plaintiffs detailed above were false when Interstate made them, or that Interstate made the representations recklessly and without regard for their truth. 60. Interstate intended the Plaintiffs to rely upon these misrepresentations. Since the beginning of their discussions and communications, Interstate intended the Plaintiffs to rely upon Interstate’s misrepresentations regarding Interstate’s work performed and to be performed. Interstate intended the Plaintiffs to rely upon these misrepresentations to induce the Plaintiffs to make payments to Interstate. 61. The Plaintiffs reasonably relied upon Interstate’s misrepresentations. The Plaintiffs would not have paid Interstate if the Plaintiffs had known Interstate had not performed work or would not perform the work. The Plaintiffs did not suspect, or have reason to suspect, that Interstate’s misrepresentations might be untrue until, at the earliest, fall 2020. 62. As a direct and proximate result of the foregoing conduct, the Plaintiffs have sustained damages in excess of this Court’s jurisdiction, the exact amount of which will be subject to proof at time of trial, including consequential damages, lost revenues and loss of business goodwill in excess of this Court’s jurisdiction. 63. It was foreseeable that the fraud committed by Interstate would affect the Plaintiffs’ ability to complete the work on time and on budget. 64. The Plaintiffs’ reliance on the above misrepresentations was a substantial factor in causing the Plaintiffs’ harm. 10022148.1 12 COMPLAINT OLOOONQO‘l-POONA NNNNNNNNAAAAAAAAAA NOUCH-hWNAOQmeU'l-PwNA 28 HIGGS FLETCHER 8: MACK LLP ATTORNEYS AT LAW SAN DIEGO 65. Interstate knew of and ratified the fraudulent acts. Its acts were willful, wanton, malicious, and in conscious disregard of the Plaintiffs’ rights so as to justify an award of exemplary damages in an amount sufficient to punish and make an example of Interstate and to deter such conduct in the future. FIFTH CAUSE OF ACTION (Negligent Misrepresentation Against All Defendants) 66. The Plaintiffs reallege and incorporate by reference each of the preceding paragraphs set forth above, as though fully set forth here. 67. As set forth above, Interstate negligently misrepresented to Alps the work and management it performed. Alps has been harmed by these negligent misrepresentations. 68. Interstate (through Stanley) made numerous misrepresentations to Plaintiffs that certain important facts were true throughout their discussions surrounding Interstate’s payment requests and work performed as outlined herein. 69. Interstate’s representations were not true. Interstate knew from the beginning of its discussions with Alps that Interstate had not performed the work or would not perform the work to justify payment in the amounts requested. 70. Interstate had no reasonable grounds for believing the above-referenced misrepresentations to be true when Interstate made the misrepresentations to Alps. 71. Interstate intended Alps to rely upon these misrepresentations to induce Alps to pay Interstate money on Interstate’s payment requests. 72. Alps reasonably relied upon the misrepresentations made by Interstate. Alps would not have paid Interstate had Alps known the truth regarding Interstate and the work and management performed. Alps did not suspect, or have reason to suspect, that Interstate’s misrepresentations were not true until after Alps made payments to Interstate. 73. As a direct and proximate result of the foregoing conduct, Alps has been damaged in an amount in excess of the Court’s jurisdiction, as well as consequential 10022148.1 13 COMPLAINT OLOOONQO‘l-POONA NNNNNNNNAAAAAAAAAA NOUCH-hWNAOQmeU'l-PwNA 28 HIGGS FLETCHER 8: MACK LLP ATTORNEYS AT LAW SAN DIEGO damages, including but not limited to loss of business goodwill. 74. Alps’ reliance on Interstate’s representations were a substantial factor in causing Alps’ harm. SIXTH CAUSE OF ACTION (Unfair Business Practices Against All Defendants) 75. The Plaintiffs reallege and incorporate by reference each of the preceding paragraphs set forth above, as though fully set forth here. 76. Interstate engaged in numerous acts and practices related to the Contracts and the project. These acts constitute business practices subject to the unfair competition statute under California Business & Professions Code ("B&P") section 17200. 77. Interstate’s business practices were unlawful and deceptive. Interstate’s false representations violate civil and criminal law under the California Code prohibiting acts of fraud. 78. As a direct and proximate result of the foregoing conduct, Plaintiffs has suffered actual damages to be determined by this Court according to proof. SEVENTH CAUSE OF ACTION (Recovery on Contractor’s Bond Against Interstate, Hudson and Does 1-25) 79. The Plaintiffs reallege and incorporate herein by this reference each and every allegation contained in the preceding paragraphs as though fully set forth here. 80. Upon the application of Interstate to the Contractors State License Board for a contractor’s license or renewal thereof, and in accordance with the provisions of Section 7071 .6 of the California Business and Professions Code, Interstate provided one or more bonds issued by Hudson, including Bond No. 10099886. Said bond in the amount of $15,000, and possibly others, were conditioned on (i) full compliance by Interstate with the provisions of Division 3 of Chapter 9 of the California Business and Professions Code and (ii) Interstate refraining from willful and deliberate violations of Division 3 of Chapter 9 of the California Business and Professions Code. Said bond(s) 10022148.1 14 COMPLAINT OLOOONQO‘l-POONA NNNNNNNNAAAAAAAAAA NOUCH-hWNAOQmeU'l-PwNA 28 HIGGS FLETCHER 8: MACK LLP ATTORNEYS AT LAW SAN DIEGO inure(s) to the benefit of a party damaged as a result of a willful and deliberate violation of Division 3 of Chapter 9 of the California Business and Professions Code. 81. Plaintiffs are entitled to recover on said bonds by reason of violations by Interstate of Division 3 of Chapter 9 of the California Business and Professions Code, including willful and deliberate violations as detailed herein. Plaintiffs are entitled to recover its damages as set forth herein. EIGHTH CAUSE OF ACTION (Breach of Covenant of Good Faith and Fair Dealing Against All Defendants) 82. The Plaintiffs reallege and incorporate herein by this reference each and every allegation contained in the preceding paragraphs as though fully set forth here. 83. At all times relevant hereto, Interstate had a duty to act fairly and in good faith toward Alps relative to the Contract. 84. At all times relevant hereto, Alps fully performed its obligations and duties under the Contracts and to the extent any such obligations and duties under the Contracts had not been performed, Alps was excused from performing said obligations or duties as a result of Interstate’s actions or omissions, or both. 85. Interstate has and continues to breach its duty by unfairly interfering with Alps’ right to receive benefits under the Contract. 86. As a direct, foreseeable, and proximate result of Interstate’s breaches, Alps has incurred and will continue to incur harm in the form of losses, damages, costs, and expenses and is entitled to recover against Interstate those losses, damages, costs, and expenses in an amount to be proven at trial. 87. As a direct, foreseeable, and proximate result of Interstate’s actions or omissions, or both, Alps has incurred and will continue to incur harm and damages including, but not limited to, lost profits, increased costs of financing, and lost opportunity costs. /// 10022148.1 15 COMPLAINT OLOOONQO‘l-POONA NNNNNNNNAAAAAAAAAA NOUCH-hWNAOQmeU'l-PwNA 28 HIGGS FLETCHER 8: MACK LLP ATTORNEYS AT LAW SAN DIEGO NINTH CAUSE OF ACTION (Intentional Interference with Contractual Relations Against All Defendants) 88. The Plaintiffs reallege and incorporate herein by this reference each and every allegation contained in the preceding paragraphs as though fully set forth here. 89. At all times relevant hereto, there were valid contracts existing between Alps and its lenders, members, investors, guests, clients and partners. 90. At all times relevant hereto, Interstate knew or should have known of the valid contracts existing between Alps and its lenders, members, investors, guests, clients and partners. 91. At all times relevant hereto, Interstate knew or should have known that its failure to timely perform its material contractual duties and obligations as set forth herein, would cause those lenders, members, investors, guests, clients and partners to make financial demands upon Alps. 92. At all times relevant hereto, Interstate’s actions or omissions, or both, prevented Alps’ performance under the contracts between Alps and the foregoing parties and/or made Alps’ performance with those parties more expensive or difficult. 93. At all times relevant hereto, Interstate intended to disrupt the performance of these contracts or knew that disruption of performance under these contracts was certain or substantially certain to occur. 94. As a direct, foreseeable, and proximate result of Interstate’s actions or omissions, or both, Alps has incurred and will continue to incur harm and damages including, but not limited to, lost profits, increased costs of financing, lost sales, and lost opportunity costs. 95. Interstate’s actions or omissions, or both, were a substantial factor in causing Alps’ harm. 96. Based on the foregoing, Plaintiffs are legally entitled to recover from Interstate all of the foregoing lost profits, increased costs of financing, and lost 10022148.1 16 COMPLAINT OLOOONQO‘l-POONA NNNNNNNNAAAAAAAAAA NOUCH-hWNAOQmeU'l-PwNA 28 HIGGS FLETCHER 8: MACK LLP ATTORNEYS AT LAW SAN DIEGO opportunity costs in an amount to be proven at trial. TENTH CAUSE OF ACTION (Negligent Interference with Prospective Economic Relations Against All Defendants) 97. The Plaintiffs reallege and incorporate herein by this reference each and every allegation contained in the preceding paragraphs as though fully set forth here. 98. At all times relevant hereto, Alps, Alps’ lenders, members, investors, guests, clients and partners and/or others were in economic relationships that would probably result in future economic benefit to Alps. 99. At all times relevant hereto, Interstate knew or should have known of the economic relationship between Alps and Alps’ lenders, members, investors, guests, clients and partners and/or others. 100. At all times relevant hereto, Interstate knew or should have known that the relationships between Alps and Alps’ lenders, members, investors, guests, clients and partners and/or others would be disrupted if Interstate failed to act with reasonable care toward Alps relative to the Contracts and the projects, including, but not limited to, failing to timely perform its material contractual duties and obligations as outlined herein would cause those lenders, members, investors, and partners to make financial demands upon Alps, and impact Alps’ ability to generate revenue through lost bed nights and related income streams associated with fuIIy-functional, operating hotels. 101. Interstate failed to act with reasonable care by, inter alia, failing to timely perform its material contractual duties and obligations such as to not interfere with, delay, disrupt and/or prevent Alps’ economic relations with Alps’ lenders, members, investors, guests, clients and partners and/or others. 102. As a result of Interstate’s actions or omissions, or both, the relationship between Alps and Alps’ lenders, members, investors, guests, clients and partners and/or others was disrupted. 103. As a direct, foreseeable, and proximate result of Interstate’s actions or 10022148.1 17 COMPLAINT OLOOONQO‘l-POONA NNNNNNNNAAAAAAAAAA NOUCH-hWNAOQmeU'l-PwNA 28 HIGGS FLETCHER 8: MACK LLP ATTORNEYS AT LAW SAN DIEGO omissions, or both, Alps has incurred and will continue to incur harm in the form of losses, costs, damages, and expenses and is entitled to recover against Interstate those losses, costs, damages, and expenses in an amount to be proven at trial. ELEVENTH CAUSE OF ACTION (Intentional Interference with Prospective Economic Relations Against All Defendants) 104. The Plaintiffs reallege and incorporate herein by this reference each and every allegation contained in the preceding paragraphs as though fully set forth here. 105. At all times relevant hereto, Alps, Alps’ lenders, members, investors, guests, clients and partners and/or others were in economic relationships that would probably result in future economic benefit to Alps. 106. At all times relevant hereto, Interstate knew or should have known of the economic relationship between Alps and Alps’ lenders, members, investors, guests, clients and partners and/or others. 107. Interstate engaged in conduct that was wrongful as outlined herein. 108. By engaging in said conduct, Interstate intended to disrupt the relationships or knew that disruption of the relationships between Alps and Alps’ lenders, members, investors, guests, clients and partners and/or others was certain or substantially certain to occur. 109. As a result of Interstate’s actions or omissions, or both, the relationship between Alps and Alps’ lenders, members, investors, buyers, partners and/or others was disrupted. 110. As a direct, foreseeable, and proximate result of Interstate’s actions or omissions, or both, Alps was damaged as detailed herein in an amount to be proven at trial. 111. Interstate’s actions or omissions, or both, were a substantial factor in causing Alps’ harm. /// 10022148.1 18 COMPLAINT OLOOONOU'I-POONA NNNNNNNNAAAAAAAAAA NQU'ILOONAOCOWNOU'IhOJNA 28 HIGGS FLETCHER & MACK LLP ATTORNEYS AT LAW SAN DIEGO TWELTH CAUSE OF ACTION (Disgorgement Against A|| Defendants) 112. The Plaintiffs reallege and incorporate herein by this reference each and every allegation contained in the preceding paragraphs as though fully set forth here. 113. During the relevant time period, the Contractors State License Board suspended Interstate’s license. Subject to discovery, Interstate must disgorge all monies paid to it by Alps from the date of suspension to the present pursuant to Business and Professions Code section 7031, et seq. PRAYER WHEREFORE, Alps prays that judgment be entered against the Defendants, and each of them, as follows: ON ALL CAUSES OF ACTION: 1. For damages according to proof; 2. For attorney’s fees and costs of suit incurred herein; 3. For such other and further relief as the Court may deem just and proper. 0N THE FOURTH CAUSE OF ACTION: 1. For exemplary and punitive damages. DATED: January 22, 2021 HIGGS FLETCHER & MACK LLP By: /L_’- MICHAEL R. GIBSON, ESQ. Attorneys for Plaintiffs ALPS GROUP, INC. and ALPS LODGING 2, INC. 10022148.1 19 COMPLAINT EXHIBIT "A" “ ”I I “A” ADDENDUM TO SUBCONTRACT AGREEMENTS The parties to this Agreement are _Interstate Paving & Construction (C SLB License No. ) (hereinafter "Subcontractor") and Alps Lodging 3, Inc. / Alps Group, Inc. (hereinafter "Owner" or "Alps"). Alps is the developer of a Springhill Suites and Holiday Inn hotel development project located at 1201 and 1100 Cadillac Court, Milpitas, California 95035. Subcontractor currently is signatory to _Offsite__ subcontracts with Owner's contractor Allied General Contractors Inc. (hereinafter "Allied") 1. The Subcontractor's _Offsite subcontract agreements (attached as exhibit 1) with Allied General Contractors Inc. described below are hereby assigned to Alps Lodging 3, Inc.! Alps Group, Inc. With the assignment of these subcontractor agreement(s), Allied General Contractors Inc. is hereby relieved of all responsibility and liability to Subcontractor under their subcontracts. 2. There remains $265,000 in work to be performed, billed and paid under the outstanding subcontract(s) (Payments issued towards contract to date attached as exhibit 2). 3. Subcontractor shall continue the performance of the work pursuant to the aforementioned subcontracts and shall report to the Owner, and its agents and construction managers. Subcontractor shall continue the uninterrupted performance of the work with due diligence and care as required under the subcontracts. 4. Owner shall provide Subcontractor with written current contact information regarding its agents and construction managers. Date Contract # Description Contracted Payments Balance Amount Issued to Finish 5/10/19 2530 Offsite $ 340,000 $75,000 $265,000 Date andwala, President Alps Lodging 3, Inc. ("Own ' erein) as (handwala, President Alps Group, Inc. ("Owner" herein) Nick Stanley, Interstate Paving & Construction ("Subcontractor" herein) Ben A.15tVod, President Allied General Contractors Inc. twit& lama rti t t i ree e t are I t rst t i struction___ ( SL ice se . ___________) (hereinafter “Subcontract r”) an l s i 3, I , / l r , I . (hereinafter “ ner” r “ lps”). l s is t e el per f a pringhill Suites and li a I tel develop ent r ject l cate at 120 and 1100 adillac rt, il it , alif rnia 9 . ubc tract r c rre tl is signat r t ffsite__ subcontra ts it ’s contractor llie r l tr t r I . (hereinafter “ lie ”) 1, The Subcontractor’s _Offsite__subcontract a re t (attac as i it 1) it lli r l tr t r I . s ri l ar r assi e to l i 3, I ./ l r , I . it t assi ent f t s s c tr t r a r t . lli r l tr t I . is r r li f all r s i ilit a li ilit t c tract r r t ir su c tr ts. , r , i r t , ill i er the tst i s c tr t( ) ( a t iss t tr t t date tt i it tr t r s ll ti t rf i f t r r t t t e f r ti s t s ll rt t t , its ts and tr ti tr t r s ll ti t i t rr ted rf r f t r it ili ir er the s t . r s ll i tr t r it ritt rr t t t i f r ation it tr ti . j SnafadTCban (“ rmrt’h ti (“ ” ?aahifKha , “ ” MwmL- wdbd . tr t t / , , , ... .................................. - €4\6b\ INDEPENDENT CONTRACTOR AGREEMENT THIS INDEPENDENT CONTRACTOR AGREEMENT (the "Agreement") dated this y day of L. ) BETWEEN: CLIENT CONTRACTOR Allied General Contractors Inc. Interstate Paving & Construction 12609 Stemple Dr. Bakersfield, CA 93312 P.O. box 908 Morgan Hill, CA 95038 (the "Client") (the "Contractor") BACKGROUND A. The Client is of the opinion that the Contractor has the necessary qualifications, experience and abilities to provide services to the Client. B. The Contractor is agreeable to providing such services to the Client on the terms and conditions set out in this Agreement. IN CONSIDERATION OF the matters described above and of the mutual benefits and obligations set forth in this Agreement, the receipt and sufficiency of which consideration is hereby acknowledged, the Client and the Contractor (individually the "Party" and collectively the "Parties" to this Agreement) agree as follows: SERVICES PROVIDED I. The Client hereby agrees to engage the Contractor to provide the Client with the following services (the "Services"): • Asphalt grind and paving. (1) monument at intersection on Cadillac and as per plan (3) manholes adjusted to grade Concrete side walk, curb and gutter, commercial driveway, approach ways per schedules, includes entry at 1201 Cadillac Ct. as per plan All surface improvements per plan Wedge cut roads per plan & haul off grindings Hauling and Exporting of all materials, dirt, asphalt, base rocks etc. as needed Furnish & Install asphalt overlay Thermoplastic striping, signage and symbols as per plan Traffic control per schedules I I B MTI (t kh a f O 1 t pk t " li Ti E . " t lA ^S y A. The lient is f t e i i t t t , i ilities to B. The ontract r is r l t itions set out in r ent I SIP I P t tt t- li ti s set forth in this gree ent, t e rec i t i i l , t lie t and the ontractor (in i i E t t t) r s follo s: W i 1. The Client hereby agrees t e t i services (the i ” ; » . , ( ) Concrete side alk, c r tt r, l s, i cl des l auling a x rti f ll t , e Iher i i g. l Sweep/Blow clean streets for overlay. 2. The Services will also include any other tasks which the Parties may agree on. The Contractor hereby agrees to provide such Services to the Client. TERM CF AGREEMENT 3. The term of this Agreement (the "Term") will begin on the date of this Agreement and will remain in full force and effect until the completion of the Services, subject to earlier termination as provided in this Agreement. The Term may be extended with the written consent of the Parties. 4. In the event that either Party wishes to terminate this Agreement prior to the completion of the Services, that Party will be required to provide 10 days' written notice to the other Party. 5. The Parties agree to do everything necessary to ensure that the terms of this Agreement take effect. CLI.ALNCY 6, Except as otherwise provided in this Agreement, all monetary amounts referred to in this Agreement are in USD (US Dollars). COMPENSATION 7. The Contractor will charge the Client for the Services as follows (the "Compensation"): Pay schedule as follows: Grinding paving: $200,000.01 Concrete: : $140,000:00, -, -(VC/e CO Thermal paint: $40300040 0 0 Mobilization: $25,000.00 Weekly draw per completion & schedule:$25,000.00 Total contract value: $340,000.00. 8. Invoices submitted by the Contractor to the Client are due within 30 days of receipt. 9. In the event that this Agreement is terminated by the Client prior to completion of the Services but where the Services have been partially performed, the Contractor will be entitled to pro rata payment of the Compensation to the date of termination provided that there has been no breach of contract on the part of the Contractor. REIMBURSEMENT OF EXPENSES 10. The Contractor will be reimbursed from time to time for reasonable and necessary expenses incurred by the Contractor in connection with providing the Services. eep/ l clean street f r overl . . e er ices ill als i l t er tas ich t rti a r o . tract r re a rees t r i suc Services t t e li t. OF 3. t r f t i r t (t '' r ill i t t f t i r e t a ill r ai in full f r a ffect til t c leti f t er i , s ject t arlier t r i ti as r i e in this r t. r t e it t ritt s t f t rti . . I t e t t t it r rt i t t r i t t i r e t ri r t t leti f t e Services, t t rt ill ir t r i 10 a s’ ritt ti t t t r arty. PERFORMANCE . ti r t t i r r t t t f t i r t ta e effect, URREN Y 6. xce t as t i i i t i ll t t t i t is gree ent are in ( Uar A I . tr t ill t li t r t r i ll (t " e sation"): ® s l 00, 0.^ Concrete:: $ 100,000^00- ^ l ^ 00^0 ; , l l l : , . . 8. In ic s it i ays f receipt. 9. In the event t at t is r t i li t l ti f t ervices b ut here the Services titl t r rata pay ent of the Compensation to the date of ter i ti tr t the part of reimbursement of expenses 10. The Contractor ill be r i ss r expenses incurred by t t t er ices. 11. All expenses must be pre-approved by the Client. CONFIDENTIAVTY 12. Confidential information (the "Confidential Information") refers to any data or information relating to the business of the Client which would reasonably be considered to be proprietary to the Client including, but not limited to, accounting records, business processes, and client records and that is not generally known in the industry of the Client and where the release of that Confidential Information could reasonably be expected to cause harm to the Client. 13. The Contractor agrees that they will not disclose, divulge, reveal, report or use, for any purpose, any Confidential Information which the Contractor has obtained, except as authorized by the Client or as required by law. The obligations of confidentiality will apply during the Term and will survive indefinitely upon termination of this Agreement. OWNERSHIP OF INTELLECTUAL PROPERTY 14. All intellectual property and related material, including any trade secrets, moral rights, goodwill, relevant registrations or applications for registration, and rights in any patent, copyright, trademark, trade dress, industrial design and trade name (the "Intellectual Property") that is developed or produced under this Agreement, is a "work made for hire" and will be the sole property of the Client. The use of the Intellectual Property by the Client will not be restricted in any manner. 15. The Contractor may not use the Intellectual Property for any purpose other than that contracted for in this Agreement except with the written consent of the Client. The Contractor will be responsible for any and all damages resulting from the unauthorized use of the Intellectual Property. RETURN OF PROPERTY 16. Upon the expiration or termination of this Agreement, the Contractor will return to the Client any property, documentation, records, or Confidential Information which is the property of the Client. CAPACITY/::,:DEF3NDENT CONTRACTOR 17. In providing the Services under this Agreement it is expressly agreed that the Contractor is acting as an independent contractor and not as an employee. The Contractor and the Client acknowledge that this Agreement does not create a partnership or joint venture between them, and is exclusively a contract for service. The Client is not required to pay, or make any contributions to, any social security, local, state or federal tax, unemployment compensation, workers' compensation, insurance premium, profit-sharing, pension or any other employee benefit for the Contractor during the Term. The Contractor is responsible for paying, and complying with reporting requirements for, all local, state and federal taxes related to payments made to the Contractor under this Agreement. NOTICE 18. All notices, requests, demands or other communications required or permitted by the terms of this 1. l expenses ust be pre-approved by the lient. ONFIDENTIALITY 2. onfidential infor atio (the fi ential Infor ation") refers to any data or infor ation relating to the business of the lie t hich ould reasonably be considered to be proprietary to the lient including, but not li ited to, accounting records, business processes, and client records and that is not generally kno n in the industry f the lient and here the release of that onfidential Infor ation could reasonably be expected to cause har to the lient. . he tr t r a rees t at they ill t disclose, divulge, reveal, re rt r use, for any purpose, any fi e tial I f r ati hich the tract r has tained, exce t as authorized by the lie t r as require by la . he ligations f c fi e tialit ill a l ring t e er a ill s r i e indefinitely up t r i ati this I T AL ERTY . ll i t ll ct al r rt r l t terial, i l i tra r ts, r l ri ts, ill, r le a t r istrations r li ti s f r r istration, ri ts i ate t, ri t, tr ar , tr ress, i stri l si tr (t "I t ll t al r rt ") t t is l r r r t is r e t, is a " r f r ire" ill t s l r rt f t lient. s f t I t llect al r rt t li t iU t r stri t i er. . tr t r t s t I t ll t l r rt f r r t r t t t tr t f r i t is gree ent e ce t it t e ritte c se t f t e li t. tr t r ill r i l f r ll s r lti fr t t ri t t ll t l r erty. T . t e ir ti r ter i ati f t is r t, t ill r t t t li t r ert , c e tati , rec r s, r fi e tial I f r ti i i t r t t li t. 17, In r i i t er ices under t is r t it is r l r t t t independent c tract r and not as a e l ee. e t t t li t i ree e t es t create a art ers i r j i t venture t t , is l i l service. he lient is t re ire t pay, r tri ti t , i l it , l l, t t federal tax, l t c e sati , r r ' s ti , i r , i , pension or any other e l ee e efit f r t e tract r ri t r . for a i , l i it r rti r ir t f r, U l l, t t ts t t. 18. ll tices, re ests, e a s r t r i ti Agreement will be given in writing and delivered to the Parties at the following addresses: a. Allied General Contractors Inc. 12609 Stemple Dr. Bakersfield, CA 93312 b. Interstate Paving & Construction P.O. box 908 Morgan Hill, CA 95038 or to such other address as either Party may from time to time notify the other, and will be deemed to be properly delivered (a) immediately upon being served personally, (b) two days after being deposited with the postal service if served by registered mail, or (c) the following day after being deposited with an overnight courier. INC EL 19. Except to the extent paid in settlement from any applicable insurance policies, and to the extent permitted by applicable law, each Party agrees to indemnify and hold harmless the other Party, and its respective directors, shareholders, affiliates, officers, agents, employees, and permitted successors and assigns against any and all claims, losses, damages, liabilities, penalties, punitive damages, expenses, reasonable legal fees and costs of any kind or amount whatsoever, which result from or arise out of any act or omission of the indemnifying party, its respective directors, shareholders, affiliates, officers, agents, employees, and permitted successors and assigns that occurs in connection with this Agreement. This indemnification will survive the termination of this Agreement. MODIFICIT OF AGREEMENT 20. Any amendment or modification of this Agreement or additional obligation assumed by either Party in connection with this Agreement will only be binding if evidenced in writing signed by each Party or an authorized representative of each Party, TIME OF THE ESSENCE 21. Time is of the essence in this Agreement. No extension or variation of this Agreement will operate as a waiver of this provision. ASSIGEU:ENT 22. The Contractor will not voluntarily, or by operation of law, assign or otherwise transfer its obligations under this Agreement without the prior written consent of the Client. ENTIRE AGREEMENT 23. It is agreed that there is no representation, warranty; collateral agreement or condition affecting this Agreement except as expressly provided in this Agreement. ENUAEMENT r t ill i i : . . . . or to such other address as either art a fr ti t properly delivered (a) i i t l it it the postal service if ser e re ist r t it a I D MNIFICATION 19. Except to the extent paid in settle e t fr a li t by applicable la , eac rt a r s t , it ti directors, shareholders, affiliates, ffi r , i i st any and all clai s, losses, da ages, liabilities, lti , l f s and costs of any kind or a ou t ats r, i t indemnifying party, its respective direct rs, s ar l r , , permitted successors and assigns that occurs in c ti it ill IFICA ION 20. Any a end ent or odificatio f t i it r rt i connection ith this gree t ill l each arty or an t I 21. Time is of the essence in this gree t. rate as a NM 22. The Contractor will not voluntaril , r ti it li ti s under this r t li t. 23. It is agreed that there is no representation, arra t , ll t i gree ent t t. Ri 24. This Agreement will enure to the benefit of and be binding on the Parties and their respective heirs, executors, administrators and permitted successors and assigns. TITLES/HEADINGS 25. Headings are inserted for the convenience of the Parties only and are not to be considered when interpreting this Agreement. GENDER 26. Words in the singular mean and include the plural and vice versa. Words in the masculine mean and include the feminine and vice versa. GOVERNING LAW 27. This Agreement will be governed by and construed in accordance with the laws of the State of California. SEVERABILITY 28. In the event that any of the provisions of this Agreement are held to be invalid or unenforceable in whole or in part, all other provisions will nevertheless continue to be valid and enforceable with the invalid or unenforceable parts severed from the remainder of this Agreement. WAIVER 29. The waiver by either Party of a breach, default, delay or omission of any of the provisions of this Agreement by the other Party will not be construed as a waiver of any subsequent breach of the same or other provisions. IN WITNESS WHEREOF the Parties have duly affixed their signatures under hand and seal on this day of •/2-. • Allied General Contractors Inc, Per: Interstate ••••• Cons on (Seal) Pe (Seal) 24. This Agreement will enure to the benefit of and be binding on the Parties ami their* respective heirs, executors, ad inistrators and per it ed successors and assigns. TI iS/HlADiNGS 25. Headings are inserted for the convenience of the Parties only and are not to be considered when interpreting this greement. 26. Words in the singular ean and include the plural and vice versa. ords in the asculine mean and include the fe inine and vice versa. S ¥iiNWGLAW 27. This Agreement will be governed by c str e in c r ance ith the la s of the State of California. $E¥iRASiUTY 28. in the event that any of the provisions t is ree e t re held t be i alid or unenforceable in whole or in part, all other provisions ill e ert eless ti e t e li e f rceable ith the invalid or une f rceable arts red fr t e re i er of this Agreement. I 29. The waiver by either Part f r c , f lt, l r i i f any of the provisions of this Agreement ■ by the other Party will not be c str s i r e t breach of the same or other r isi s. IN wrrNESS WHEREOF the Parties t r er hand and seal on this jL.d . l tractors Inc. er;, . (Seal) ( eal) EXHIBIT "B" “ ”I I “B” • I 1.4 I 10,..•••• H V - lar..1 ADDENDUM TO SUBCONTRACT AgREEMENTS The parties to this Agreement are _Interstate Paving 8z . Construction (CSLB License NO. ) (hereinafter "Subcontractor") and Alps Lodging 3, Inc. (hereinafter "Owner" or t'Alps"). Alps is the developer of a Springhill Suites hotel development project located at 1201 Cadillac Court, Milpitas, California 95035. Subcontractor currently is signatory to _Onsite subcontracts with Owner's contractor Allied General Contractors Inc. (hereinafter "Alike) .. The. Subcontractor's _Onsite subcontract .agreements (attached as exhibit 1) with Allied. General Contractors Inc described below are hereby assigned to. Alps Lodging 3, Inc. With the assignment of thW . subcontractor agreement(s), Allied General Contractors Inc. is hereby relieved of all responsibility and liability to Subcontractor under their subcontracts. There remains $685,000 in work to be performed, billed and paid -under the outstanding subcontract(s) (Payments issued towards contract to date attached as exhibit 2). Subcontractor shall continue the performance of the work • pursuant to the, aforementioned subcontracts and shall report to the Owner, and its agents and construction managers. Subcontractor shall continue the uninterrupted perforniance of the work with due diligence and care as required under the subcontracts: 4. Owner shall provide-. Subcontractor with written . current c.ontact information. reaarding its agents and construction managers. Date Contract # 1;5 (ltd/19 ?g§0/250/52q11258W13:150 Description Contracted Paymenti Balance Aniount- ,... .Tssued to:Finish Onsite $ 710,000 $25,000 $685,000 (GradiTI ,Coricrete,Pa.vhto Pool/Spa) Date rad Khandwala;.president Alps. tPdgiPg rOwnee.):•11rein) • • pocusig,oby, `Qfwbbi.. , Ftep, Atwoo, •:president , Allied .Generat'COntractOrS'Inc N. Staixley,' laterstate Paying :4 COnstrtiction ("SUbcontraCtor" herein) 9 14, ABPEMPPBf fm M CHlimSS The parties to this gree ent ar -fLicense No. J (hereinafter ^Subcontractor’) a l o m , ,. t deveiooment oroject locate at 120 a ill rt, ivu.ptias, ^.a.t.omia .i-, Subcontractor cuiTently is signatory t ...Onsi o_.„ subco tr t with ner s cornractor Allied e er l o tr t r I . (herei aft r “ llied”) i. The Subcontractor’s nsitesubcont i'es!nentT(f|(ae|ted^as with Allied General ontract r In . des ri l are hereoy assigneo lo Alps Lodging 3, Inc. ith tii assi t f t ese subcontractoi agreement(s). llied e er l tr t I . i here y re levc o responsibility and liabilit t ubc tr t r r tlreir subcontracts. 2 There remains $685,000 in work to be perior , ill a i der the outstanding subcontract(s) ( a pi afe i contract to date tt i it , ( '^T'' ^ 3. Subcontractor shall continue the perfor ance f t r rs t t the aforementioned subco tr i a s ll t t tli er, ana Us agents anti construction anagers. tr t s l ti e the urunreauptoa perforamnee of tlic work' it ili a a r ired under me s . 4. ..Owner shall provide- Subc tr t r it curr t t t information l ntract - ■- ri tion m nt s Is ■; fi r'\ /'\/10 2260/25”^0/2S20'ri/268Q/13 SO (CTrading,Coiicrcte.Pa Liig,Pooh ............. -iLw-- e\41,Woi-k INDEPENDENT CONTRACTOR AGREEMENT THIS INDEPENDENT CONTRACTOR AGREEMENT (the "Agreement") dated this ,42i/ day of t.../ z. BETWEEN: CLIENT CONTRACTOR Allied General Contractors Inc. Interstate Paving & Construction 12609 Stemple Dr. Bakersfield, CA 93312 P.O. box 908 Morgan Hill, CA 95038 (the "Client") (the "Contractor") BACKGROUND A. The Client is of the opinion that the Contractor has the necessary qualifications, experience and abilities to provide services to the Client. B. The Contractor is agreeable to providing such services to the Client on the terms and conditions set out in this Agreement. IN CONSIDERATION OF the matters described above and of the mutual benefits and obligations set forth in this Agreement, the receipt and sufficiency of which consideration is hereby acknowledged, the Client and the Contractor (individually the "Party" and collectively the "Parties" to this Agreement) agree as follows: SERVICES PROVIDED 1. The Client hereby agrees to engage the Contractor to provide the Client with the following services (the "Services"): Includes all concrete work on-site. Site vertical curbs set forms and install, per plan details. 4" Pedestrian site concrete paving with #4 rebar at 18" O.C. each way, including truncated domes. approx. Trash enclosure pad Stamped color vehicular and pedestrian concrete at entry drive Isle. Figured 6" thick with #4 rebar at 12"0.C. each way with integral color allowance of $50 per CY. Vehicular site concrete paving figured 6" thick with #4 at 12" O.C. each way. Approx. Site curb and gutter and valley gutter. Deep bioretention curbs. Electric sleeve and connect to transformer for PG&E cy.K\\D\\ liPE i i iA i MmEEMEM n ^ M” 2. i ; ! i NTi i R ’’ iACiCCill O , i ra E : L ” 0 . ” ” , i €' ”O . ” ” . . Add on for Electrical pad and underground sleeve for Nash Electric's use $5,000 Includes Site Grading and Earthwork of Parking lot. Mobilization of equipment - 1 LS site grading as shown on plans to +1-.10, Export of dirt Provide finish ̀ subgrade for parking lot, curb and gutter and vertical curbs. Excavate and install bio-retention ponds; excavate bio-retention ponds, furnish and install class 2 permeable material. Furnish and install 4" perforated pipe. Furnish and install 18" of bio-treatment soil mix Furnish and install river run cobbles spill ways Landscaping by others. All Grading All Bio Swell Parking lot Baserock and AC paving per approved plan with option to seek approval to recycle and repave lot. Option would include pulverizing existing asphalt to be used as base (approx. 65,684 sq., ft.), furnish and install new asphalt on 65,684 sq. ft for new parking lot. Install 11" and 13.5" of class 2 recycled baserock at light and heavy duty AC pavement respectively .567±6.0t Er 4 .5--Pe 104,10/, c pot Pm Age,$) 4 pfd X ii;cart.riky, Install 7" of class 2 recycled baserock at light duty PCC All Asphalt Furnish, place and compact 2.5" and 3.0" of 1/2 " asphalt concrete at light and heavy duty pavement. Parking lot Signage and striping per plan - 1 LS Swimming pool and Spa. Shell through decking, piping, all pool and spa equipment per schedules / approved pool plan. Concrete for outdoor patio area. Provide labor and materials. 2. The Services will also include any other tasks which the Parties may agree on. The Contractor hereby agrees to provide such Services to the Client. TERM OF ACZ.2EMENT 3. The term of this Agreement (the "Term") will begin on the date of this Agreement and will remain in full force and effect until the completion of the Services, subject to earlier termination as provided in this Agreement. The Term may be extended with the written consent of the Parties. 4. In the event that either Party wishes to terminate this Agreement prior to the completion of the Services, that Party will be required to provide 10 days' written notice to the other Party. PERFORCALACE 5. The Parties agree to do everything necessary to ensure that the terms of this Agreement take effect. CURRENCY f l tri l l l tric , I l it f l ili f 1 it /-, ; t f r i i i s tt l r . Excavate a i st ll i -r t ti i t ll l ss 2 terial ” 1 ” f i Parking l t s r l t r cle a re l t. ti ( r . , s , ft. , i l t. Install 11” a 1 . ” f l r l r s ecti ely ■*iTW landwala, Preside!lt 41130 r-ouP? Inc; CV-wrier" 40i-ein j-- boCu8igned b it 'Mv66 Ben AtWOod gPr ) end Nick Stanley, Interstate Paving &, Construction '1-Subcontractor" herein) • fi DocuSign Envelope ID: 2E5 A49A-2C9A-4385- 73-B27538 2 423 , . . ■ The i^atties to ree t r ’jHts e Fs ia ( U^^^hicense’ ) (hereinafter “Subcontra t ”) an l s rsa , la . (hereinafter “Owner". ’ or “ lps”), Al is th e eloper o a li a I t l e elop eat r ject located at ' . ' UOD 'Catliilae ourt, il h alifomi . c tr t r currently is signatory to" ’ ' •' ' Spa/ XiaJidscape Cf lii subcontract it ’ tractor llied. ;d ..' ! oatractorslhc.'(hereinafter“Allied”) ' 1. The Subcontractor’sjt l/ S si/ a scap i rading^ subcontract:agreements s 1) itli lli r l ontractors Inc,described below r ere assi e t l » I c. ith tlte asssgnnieui of these subcontract r a r c {(s). lli c er i outmcloi-s me, is ncicjy relieved of all res si ilit an li ilit t bconlractoi- uuaer tiieir s t , ' ',2; :There remains $100,000 in ork to rf nn ill a aid under ^chu ■outstanding siibo tr t (Fa raea is t ards contoact » asue tt c lMljit ), , : , . .. 3,: Subcontractor, s ll ti t e f the ork', A'',-aforementioned subconti-acts and shall report to tlie , It uito i' • - . ’ ‘ construction anager. u o shall ti ue the _ unuilermpted' -peiformance of the work ryit ili s required undei the s 4 ' Owner sha,li provide ‘Subc tr t r it itt rr t c ntact informationreaardin,g its agents and c str ti .................................... .. \ ____ .. . ................................ I ________ ' -- I,.11. ....... I' ,y:.' ■ >ate.\ Cofltmet# ' ’ , T D ipti ' „v- ._______ t t t :; tn h ''t::.y: . . .'I sue 15 , : SO;0 m-i'.,..... '.fvAd,"",■; 'A/ ' '' feb Interst t stmciioft; (“ ” rein) l ' ' | i i uiii c , I tAV);V)i- INDEPENDENT CONTRACTOR AGREEMENT THIS INDEPENDENT CONTRACTOR AGREEMENT (the "Agreement") dated this Pi - , - BETWEEN: CLIENT Allied General Contractors Inc. 12609 Stemple Dr. Bakersfield, CA 93312 (the "Client") BACKGROUND CONTRACTOR day of Interstate Paving & Construction P.O. box 908 Morgan Hill, CA 95038 (the "Contractor") A. The Client is of the opinion that the Contractor has the necessary qualifications, experience and abilities to provide services to the Client. B. The Contractor is agreeable to providing such services to the Client on the terms and conditions set out in this Agreement. IN CONSIDERATION OP the matters described above and of the mutual benefits and obligations set forth in this Agreement, the receipt and sufficiency of which consideration is hereby acknowledged, the Client and the Contractor (Individually the "Party" and collectively the "Parties" to this Agreement) agree as follows: SERVICES PROVIDED 1. The Client hereby agrees to engage the Contractor to provide the Client with the following services (the "Services"): • Pool and Spa: Scope of Work includes all approved drawings and supplemental details through (5-1-18) by CSG and City. Storage of equipment to be contractor's responsibility. SOV to be approved by both Allied General Contractors and ALPS group prior to draw release. Furnish labor, per- diem, travel, lodging site concrete. Swimming pool and SPA shell through decking piping equipment per schedules, and CMU pool house. Exclusions: All doors hardware fencing and gates. All electrical work including but not limited to runs conduit wiring per schedules. Plumbing supply from building to pool location. Landscape grading: All fine grading as required for landscape.. 2. The Services will also include any other tasks which the Parties may agree on. The Contractor hereby agrees / 1 / INDEPEiPENT CONTRACTOi AGREEMENT THIS INDEPENDENT CONTRACTOR AGREEMENT (the ’’Agreement”) dated this A//' ! dm of U . -2^5 ...........^ i . R iACR I I F . “ : . : . . ir li t t r agree.s to provide such Services to the Client. TEPM OF AGREEMENT 3. The term of this Agreement (the "Term") will begin on the date of this Agreement and will remain in full force and effect until the completion of the Services, subject to earlier termination as provided in this Agreement. The Term may be extended with the written consent of the Parties. 4. In the event that either Party wishes to terminate this Agreement prior to the completion of the Services, that Party will be required to provide 10 days' written notice to the other Party. PEIFC1:11/ANCE 5. The Parties agree to do everything necessary to ensure that the terms of this Agreement take effect. CUR:IEE:Y 6. Except as otherwise provided in this Agreement, all monetary amounts referred to in this Agreement are in USD (US Dollars). CO.VENSATION 7. The Contractor will charge the Client for the Services as follows (the "Compensation"): Pay schedule as follows: $25,000.00 mobilization $25,000.00 weekly draws per progress Contract value: $150,000.00. 8. Invoices submitted by the Contractor to the Client are due within 30 days of receipt. 9. In the event that this Agreement is terminated by the Client prior to completion of the Services but where the Services have been partially performed, the Contractor will be entitled to pro rata payment of the Compensation to the date of termination provided that there has been no breach of contract on the part of the Contractor. REWBURSErt7VT ('F EXPENSES 10. The Contractor will be reimbursed from time to time for reasonable and necessary expenses incurred by the Contractor in connection with providing the Services. 11. All expenses must be pre-approved by the Client. CONFIOVITIALITY 12. Confidential information (the "Confidential Information") refers to any data or information relating to the business of the Client which would reasonably be considered to be proprietary to the Client including, but R 3. t r f t i r (t " r i f t ill i i full f rce ff t til t l ti j i t i ra f rti . 4* I t t t t it i f t r ices, t 1 t . RFORM 5. rti r t t t effect. R NC 6. Except as other- is r i i t t i t i ree ent are in ( U MPENS 7. he tr t -will t ti "): 9 ; ; 8. Invoices s itt -withi s f receipt. 9. In the event that this gree e t is t r i t r i s t here the Services have bee partially erf r , t t f t Compensation to the date of ter inatio r i t t t t t art of IM MEN OF P 10. The Contractor will be rei bursed fr ti t t i cmred by t t i . . ll li t IDEN 12. Confidential information (the "Confidential I f r ti ti relating to the business of the Client which ould reasona l li t i cluding, but not limited to, accounting records, business processes, and client records and that is not generally known in the industry of the Client and where the release of that Confidential Information could reasonably be expected to cause harm to the Client. 13. The Contractor agrees that they will not disclose, divulge, reveal, report or use, for any purpose, any Confidential Information which the Contractor has obtained, except as authorized by the Client or as required by law. The obligations of confidentiality will apply during the Term and will survive indefinitely upon termination of this Agreement. OWNERSHIP OF INTELLECTIrt PROPERTY 14. All intellectual property and related material, including any trade secrets, moral rights, goodwill, relevant registrations or applications for registration, and rights in any patent, copyright, trademark, trade dress, industrial design and trade name (the "Intellectual Property") that is developed or produced under this Agreement, is a "work made for hire" and will be the sole property of the Client. The use of the Intellectual Property by the Client will not be restricted in any manner. 15. The Contractor may not use the Intellectual Property for any purpose other than that contracted for in this Agreement except with the written consent of the Client. The Contractor will be responsible for any and all damages resulting from the unauthorized use of the Intellectual Property. RETURN OF PROPERTY 16. Upon the expiration or termination of this Agreement, the Contractor will return to the Client any property, documentation, records, or Confidential Information which is the property of the Client. CAPAChY/INDEPENDENT COW 17. In providing the Services under this Agreement it is expressly agreed that the Contractor is acting as an independent contractor and not as an employee. The Contractor and the Client acknowledge that this Agreement does not create a partnership or joint venture between them, and is exclusively a contract for service. The Client is not required to pay, or make any contributions to, any social security, local, state or federal tax, unemployment compensation, workers' compensation, insurance premium, profit-sharing, pension or any other employee benefit for the Contractor during the Term. The Contractor is responsible for paying, and complying with reporting requirements for, all local, state and federal taxes related to payments made to the Contractor under this Agreement. NOTICE 18. All notices, requests, demands or other communications required or permitted by the terms of this Agreement will be given in writing and delivered to the Parties at the following addresses: a. Allied General Contractors Inc. 12609 Stemple Dr. Bakersfield, CA 93312 b. Interstate Paving & Construction > li lr I LLECTUAL E U U h ITY/INDEPEiO NTRACTOR it i , i i l l t t . ll , t i ; P.O. box 908 Morgan Hill, CA 95038 or to such other address as either Party may from time to time notify the other, and will be deemed to be properly delivered (a) immediately upon being served personally, (h) two days after being deposited with the postal service if served by registered mail, or (c) the following day after being deposited with an overnight courier. INDEMNIFICATION 19. Except to the extent paid in settlement from any applicable insurance policies, and to the extent permitted by applicable law, each Party agrees to indemnify and hold harmless the other Party, and its respective directors, shareholders, affiliates, officers, agents, employees, and permitted successors and assigns against any and all claims, losses, damages, liabilities, penalties, punitive damages, expenses, reasonable legal fees and costs of any kind or amount whatsoever, which result from or arise out of any act or omission of the indemnifying party, its respective directors, shareholders, affiliates, officers, agents, employees, and permitted successors and assigns that occurs in connection with this Agreement. This indemnification will survive the termination of this Agreement. MOCACATION OF AGREEMENT 20. Any amendment or modification of this Agreement or additional obligation assumed by either Party in connection with this Agreement will only be binding if evidenced in writing signed by each Party or an authorized representative of each Party. TIME OF THE ESSENCE 21. Time is of the essence in this Agreement. No extension or variation of this Agreement will operate as a waiver of this provision. ASSIGUTENT 22. The Contractor will not voluntarily, or by operation of law, assign or otherwise transfer its obligations under this Agreement without the prior written consent of the Client. ENTIRE AGREEMENT 23. It is agreed that there is no representation, warranty, collateral agreement or condition affecting this Agreement except as expressly provided in this Agreement. ENUREMENT 24. This Agreement will enure to the benefit of and be binding on the Parties and their respective heirs, executors, administrators and permitted successors and assigns. TITLES/HEADINGS 25. Headings are inserted for the convenience of the Parties only and are not to be considered when 7, RO. box 908 organ il , 95038 or to such other address as either Party ay fro ti e to ti e notify the other, and will be deemed to be properly delivered (a) i ediately upon being served personally, (b) t o days after being deposited with the postal service if served by registered ail, or (c) the foEo ing day after being deposited with an overnight courier. 19. xcept to the extent paid in s ttle e t fro any applicable insurance policies, and to the extent permitted by a licable la , each arty a rees to i e ify hol har less the other Party, and its respective directors, s are olders, affihates, officers, agents, e ployees, a d per itted successors and assigns against all clai s, losses, a ages, liabUities, penalties, punitive a ages, expenses, reasonable legal fees a c sts i r t atsoever, i res lt fr r rise t f any act or omission of the i e ifying its respective irectors, re lders, affiliates, officers, agents, e ployees, and er itt ssors ssigns t t c rs i ti it t is gree ent. This inde nification will r i e t e ter i ati t is gree ent. DIFI . t r ifi ti t is r t r iti al bligation assu ed by either Party in ti it t is r t iU l i i i i e ced in riting signed by each Party or an t i r r s t ti arty. I . i i t i t i r e t, t i r ri ti f t is gree ent ill operate as a i t i r isi n. I NM . t il , ti l , ssi r other ise transfer its obligations i itt t f t lient. . , t , ll teral ree ent or c dition affecting this i i t i r e ent. , i it i t arties and t eir res ective heirs, itt r assigns. t rti s l a d are t to be c sidered hen interpreting this Agreement. GENDER 26. Words in the singular mean and include the plural and vice versa. Words in the masculine mean and include the feminine and vice versa. GOVERNING LAW 27. This Agreement will be governed by and construed in accordance with the laws of the State of California. SEVERABILITY 28. In the event that any of the provisions of this Agreement are held to be invalid or unenforceable in whole or in part, all other provisions will nevertheless continue to be valid and enforceable with the invalid or unenforceable parts severed from the remainder of this Agreement. WAIVER 29. The waiver by either Party of a breach, default, delay or omission of any of the provisions of this Agreement by the other Party will not be construed as a waiver of any subsequent breach of the same or other provisions. IN WITNESS WHEREOF the Parties have duly affixed their signatures under hand and seal on this day of l 'Les Allied General Contractors Inc. Per: - Interstate P Per g & C ction /7/-0../r (Seal) (Seal) i t 26. ords in the singular e i l t l i lij a mmmim tm 27. This gree ent ill be r t t f alifornia. ¥ 8i I 28. In the event that any f t provisi s f t i l i hole or in part, all ot er provisio s ill e rt l t t i alid or e f r l t. W 29. The aiver by eit er rt f r , i i s f t is gree ent by the other Party ill t e c str s t r t r IN WITNESS WHEREOF the Parties have duly affixed their signatures under hand and seal on this 4|; J Z-............. , l . ( l
