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MICHAEL S. BURKE (SBN 150062)
EMILY FOWLER (SBN 258152)
VOGL MEREDITH BURKE LLP ELECTRONICALLY
456 Montgomery Street, 20" Floor FILED
San Francisco, California 94104 Superior Court of California,
Telephone No: (415) 398-0200 County of San Francisco
Facsimile No: (415) 398-2820 12/13/2018
E-mail: mburke@vmbllp.com Clerk of the Court
efowler@vmbllp.com a se a5 oe
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Attorneys for Defendant and Cross-Complainant
SAFEWAY INC.
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
LINDA STEVENS, CGC-18-570150
Plaintiff,
SAFEWAY INC.’S CROSS-COMPLAINT FOR
EXPRESS CONTRACTUAL INDEMNITY,
BREACH OF CONTRACT, AND DECLARATORY
RELIEF
vs.
SAFEWAY INC., and DOES 1 TO 20,
Defendants.
SAFEWAY INC.
Cross-Complainant,
vs.
SUPERIOR ELECTRICAL,
MECHANICAL & PLUMBING, INC.,
ROES | to 20,
Cross-Defendants.
Defendant and Cross-Complainant SAFEWAY INC., (hereinafter “Cross-Complainant”), hereby
cross-complains against Cross-Defendants SUPERIOR ELECTRICAL, MECHANICAL &
PLUMBING, INC., ROES | to 20, and allege as follows:
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SAFEWAY INC.’S CROSS-COMPLAINT FOR EXPRESS CONTRACTUAL INDEMNITY, BREACH OF CONTRACT,
AND DECLARATORY RELIEFa
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GENERAL ALLEGATIONS
1, At all times mentioned herein, Cross-Complainant was a business entity doing business
in or existing in the State of California.
2. Cross-Complainant is informed and believes, and thereon alleges, that Cross-Defendants
SUPERIOR ELECTRICAL, MECHANICAL & PLUMBING, INC., ROES 1 to 20 were and now are
businesses authorized/licensed to do business, and are doing business, under the laws of the State of
California.
3. The true names and capacities, whether individual, corporate, associate, government or
otherwise, of cross-defendants Roes 1 through 20, inclusive, are unknown to Cross-Complainant, who,
therefore, sues said cross-defendants by such fictitious names pursuant to Code of Civil Procedure
section 474 and pray leave of court to amend this Cross-Complaint to set forth their true names and
capacities when the same have been ascertained.
4. At all times mentioned herein, each Cross-Defendant was the agent, servant and/or
employee of all remaining cross-defendants and at all times mentioned herein was acting within the
course and scope of this agency and employment.
5. An actual controversy has arisen and now exists between Cross-Complainant and Cross-
Defendants concerning their respective rights and duties. Cross-Complainant has asserted that in the
event Cross-Complainant herein is subjected to liability to any party to this action, Cross-Complainant
will be entitled to be indemnified by cross-defendants for the full amount of any loss suffered or
judgment paid by any Cross-Complainant to any such party for such costs, reasonable attorney’s fees
and other expenses which have been, and in the future may be, incurred in Cross-Complainant conduct
of the defense of this action. Accordingly, Cross-Complainant tendered its defense to Cross-Defendants,
though Cross-Defendants have not responded to protect, defend, or indemnify Cross-Complainant.
6. Adjudication of this cross-complaint in conjunction with Plaintiffs action herein will
prevent a multiplicity of trials and will be in the furtherance of the interests of justice and expedition of
the business of the above-entitled court.
7. Cross-Complainant again hereby tender their defense to Cross-Defendants, and each of
them, and demand that Cross-Defendants defend, indemnify, and hold Cross-Complainants harmless.
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SAFEWAY INC.’S CROSS-COMPLAINT FOR EXPRESS CONTRACTUAL INDEMNITY, BREACH OF CONTRACT,
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FIRST CAUSE OF ACTION
(Express Indemnity)
8. Cross-Complainant incorporates herein by reference paragraphs 1 through 7 of this cross-
complaint as though fully set forth herein.
9. On or about September 27, 2018, Plaintiff LINDA STEVENS brought an action in
Superior Court, San Francisco County, California, Action No. CGC-18-570150 to recover damages for
personal injuries. Said Complaint, and any related cross-complaints, and any future amended complaints
filed in this action, are incorporated herein by reference, as though fully set forth herein, said
incorporation by reference being solely for the purpose of identification, and by doing so, Cross-
Complainant do not admit the truth of any allegations contained therein.
10. | Cross-Complainant is informed and believes, and thereon alleges, that Cross-Defendants
and each of them, are legally responsible for the events herein alleged. Except for the failure to comply
with the contract by acceptance of the tender as alleged herein, Cross-Complainant is uncertain as to the
manner or function by which said Cross-Defendants acted or omitted to act, and Cross-Complainant
prays leave of court to amend this Cross-complaint when the same has been ascertained.
11. Cross-Complainant is informed and believes, and thereon alleges that Cross-Defendants,
entered into a written contract whereby Cross-Defendants, agreed, for due consideration, to perform
work for Cross-Complainant. The contract attached hereto as Exhibit “A”, and incorporated by this
reference.
12. As a term and condition of this subcontract, Cross-Defendants agreed to defend and
indemnify and hold Cross-complainant harmless as provided by Paragraph 11 of the contract.
13. Cross-Complainant has performed all the conditions and obligations on their part under
said subcontract.
14. On or about July 27, 2017, Plaintiff LINDA STEVENS was allegedly personally injured
in an accident while visiting a Safeway store where Cross-Defendants had performed work, or were
required to perform work pursuant to the contract attached as Exhibit “A”.
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SAFEWAY INC.’S CROSS-COMPLAINT FOR EXPRESS CONTRACTUAL INDEMNITY, BREACH OF CONTRACT,
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15. On or about September 27, 2018, Plaintiff LINDA STEVENS brought an action against
Cross-Complainant, herein in San Francisco Superior Court Action No. CGC-18-570150, to recover
damages for personal injuries allegedly sustained as a result of the alleged accident.
16. Cross-Complainant gave written notice to Cross-Defendant of the action commenced by
Plaintiff against Cross-Complainant, requesting defense and indemnity for the action indicating that
Cross-Defendant would be bound under its agreement to defend and indemnify Cross-Complainant for
any loss or liability that Cross-Complainant might sustain as a result of the action. Nevertheless, Cross-
Defendant has failed, refused, or neglected to undertake the defense of the action or to properly respond
to Cross-Complainant’s request.
17. Pursuant to Exhibit “A” Cross-Complainant is entitled to defense and indemnification
from Cross-Defendant for all otherwise recoverable fees, expenses, costs, consultant fees, expert fees,
and attorneys’ fees, incurred in connection with this suit, as well as all damages resulting from Cross-
Defendant’s breach of their contractual responsibilities.
SECOND CAUSE OF ACTION
(Breach of Contract)
18. Cross-complainant incorporates herein by reference Paragraph 1 through 17 of this
Cross-Complaint as though fully set forth herein.
19. Pursuant to the contract attached as Exhibit “A”, Cross-Defendants also agreed to certain
insurance requirements as more specifically set forth in said contract Section 6 et seq. of Exhibit A, and
incorporated by this reference.
20. Cross-Defendant’s failure to insure, defend, indemnify and hold cross-complainant
harmless constitutes a material breach of the contract.
21. Cross-Complainant is informed and believes that Cross-Defendants may have failed to
procure proper insurance as required by the contract, and that said failure also constitutes a breach of the
agreement.
22. Cross-Complainant is informed and believes that if the plaintiffs allegations are true
(which is denied) cross-defendants may have failed to comply with Section 6 et seq. of Exhibit A of
Exhibit A of the contract, and that said failures constitute breach(s) of the agreement.
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AND DECLARATORY RELIEFCot An mH & BN eS
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23. As a result of Cross-Defendants’ breaches of the contract, cross-complainant has
suffered, and will continue to suffer damages for costs, fees expenses all in an amount to be proven at
trial.
THIRD CAUSE OF ACTION
(Declaratory Relief)
24. Cross-Complainant incorporates herein by reference paragraphs 1 through 23 of this
cross-complaint as though fully set forth herein.
25. A dispute has arisen, and an actual controversy now exists between Cross-Complainant
and the aforesaid Cross-Defendants in that Cross-Complainant contends that it is entitled to express
indemnity, and/or comparative indemnity and/or contribution, and insurance, and has, accordingly,
tendered its defense to Cross-Defendants. However, Cross-Defendants have failed to protect, defend,
insure, and/or indemnify Cross-Complainant.
26. Cross-Complainant believes that Cross-Defendants are obligated to defend, indemnify,
insure, and protect Cross-Complainants against claims and liabilities asserted by Plaintiff in the main
action, including, but not limited to, indemnification for attorneys’ fees, and costs of suit herein, and the
aforesaid Cross-Defendants have failed to honor said obligations.
27. Cross-Complainant desires a judicial determination of the respective rights and the duties
of the aforesaid Cross-Defendants with respect to the damages and other relief claims in Plaintiffs
Complaint and/or in Cross-Complainants filed, or to be filed by others herein. In particular, Cross-
Complainant desires a declaration of the respective duties and liabilities of Cross-Complainant and the
aforesaid Cross-Defendants for such damages, if any.
28. Such a declaration is necessary and proper at this time in order that Cross-Complainant
may ascertain rights and duties with respect to the claims of Plaintiff. Further, the claims of Plaintiff
arise out of the same transaction. A determination of all sets of claims in one proceeding is necessary
and appropriate in order to avoid a multiplicity of actions that would result if Cross-Complainant were
required to defend the claims of Plaintiff, and then to bring a separate action against Cross-Defendants
for such indemnification of sums which Cross-Complainant may be compelled to pay as a result of any
damages, judgments, or other awards recovered by Plaintiff in this action.
5
SAFEWAY INC.’S CROSS-COMPLAINT FOR EXPRESS CONTRACTUAL INDEMNITY, BREACH OF CONTRACT,
AND DECLARATORY RELIEFSC OB WD
WHEREFORE, Cross-Complainant prays for relief as follows:
1.
For a declaration of the rights and duties of Cross-Complainant and Cross-Defendant
with regard to the matters described herein;
For a declaratory judgment that Cross-Defendants, and each of them, are obligated to
defend Cross-Complainants under this complaint by Plaintiff and to indemnify Cross-
Complainant for the full amount of any loss suffered and judgment paid by the Cross-
Complainant as a result of the prosecution by the parties of this action in this court, and
for the full amount of such costs, attorneys’ fees and other expenses Cross-Complainant
may be required to incur in the conduct of the.defense of this action;
Cross-Complainant’s costs herein incurred;
For attorneys’ fees pursuant to the contract;
For damages for breach of contract for the full amount of any liability or loss suffered
and judgment paid by the Cross-complainant as a result of the prosecution by the parties
of this action in this court, and for the full amount of such costs, attorneys’ fees and other
expenses as Cross-complainant may be required to incur in the conduct of the defense of
this action;
For all such other and further relief as the court deems proper.
Dated: December 12, 2018 VOGL MEREDITH BURKE LLP
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MICHAEL'S. BURKE
EMILY FOWLER
Attorneys for Defendant and Cross-Complainant
SAFEWAY INC
BY:
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SAFEWAY INC.’S CROSS-COMPLAINT FOR EXPRESS CONTRACTUAL INDEMNITY, BREACH OF CONTRACT,
AND DECLARATORY RELIEFEXHIBIT ASAFEWAY Qo Contract No.: CW1942643
SERVICES AGREEMENT
This Services Agreement (“Agreement”) is entered into as of September 10, 2012 (“Effective Date”),
by and between Safeway Inc, (“Safeway”) located at 5918 Stoneridge Mall Road, Pleasanton, CA 94588
and Superior Electrical Mechanical & Plumbing Inc. (“Contractor”) located at 8613 Helms Avenue,
Rancho Cucamonga, CA 91730. For the purposes of this Agreement, Safeway shall mean Safeway Inc.
and its affiliates and subsidiaries.
% Term of Agreement. This Agreement is effective from September 10, 2012 and shall remain
in effect for a term ending September 9, 2014 (the “Initial Term”) unless earlier terminated pursuant to
Section 14,
2, Scope of Work. Contractor shall provide certain services described on Exhibit A (“Services”)
and subject to the requirements set forth thereon, in accordance with the terms of this Agreement at the
locations described in Exhibit B, in accordance with the guidelines and requirements described in
Exhibit D. The applicable prices (“Prices”) for the Services shall be as specified in Exhibit C, and shall
remain fixed for the term of this Agreement. Any Services for which Prices are not set forth on Exhibit
Cwill be priced according to the mutual agreement of Safeway and Contractor. Safeway may, inits sole
option, review Contractor's performance once per year hereunder, and Contractor shall, at Safeway’s
request, cooperate in such review and shall provide such information and documentation as Safeway
may reasonably request in connection therewith. Contractor shall at all times while performing such
Services or visiting Safeway premises, comply with Safeway’s Vendor Code of Conduct, and such other
Safeway rules, procedures, guidelines, and policies as Safeway may, from time to time, require,
2.1 Subcontractors. Except to the extent expressly permitted by Safeway, in writing, Contractor shall
use its own forces, and shall not hire subcontractors, to perform Services under this Agreement.
2.2 Nonconforming Services. Services will strictly conform to the requirements stated in this
Agreement and exhibits hereto. Contractor shail assign only Personnel who are competent and
qualified to perform Services hereunder. Contractor shall perform all Services in a timely and
workmanlike manner with due diligence and in full compliance with the terms of this Agreement and
the highest professional standard of one skilled in the industry. Contractor shall, within twenty-four
hours after learning or receiving notice of a defect in Services performed, will commence correction of
such defect and will continue to diligently perform such correction until the defect shall have been
remedied, Contractor shall not leave the job site in a condition likely to cause damage to the facility or
its contents. If Contractor fails to respond or to correct such defect in accordance with the foregoing
requirements, then, without limiting any obligation or liability Contractor may have with respect to the
nonconforming Services, and without any rights and remedies Safeway may otherwise have at law, in
equity or under this Agreement, upon Safeway’s request, Contractor shall promptly refund any and all
amoutts paid by Safeway for such nonconforming Services.
3, Locations. Exhibit B to this Agreement contains a list of stores and locations for which
Contractor shall provide Services hereunder. Safeway reserves the right to add or delete locations from
Exhibit B at any time. Stores that are closed for business by Safeway will automatically be removed
from Exhibit B on the effective date of closing even if Safeway has not formally notified Contractor.
4, Independent Contractor Status, The Parties agree that Company is an independent
contractor providing professional services and not an employee, agent, joint venturer or partner of
Safeway. Nothing in this Agreement, nor in a course of dealing or by way of any aspect of this
commercial relationship, shall be interpreted or construed as creating the relationship of employer and
employee between Safeway and Company and/or its Personnel.
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1[ PageContract No: CW1942643
6 Payment for Services and Parts.
64 Payment Terms. Contractor will be paid via Safeway’s P-Card for all maintenance and repair
work orders covered by Exhibit C pricing. Contractor's invoice shall be electronically transmitted in
accordance with Safeway’s Corrigo requirements, Contractor's invoice/documentation shall include
such details as Safeway may request, but in all cases will set forth hourly rates, number of hours
performed, Services rendered, parts used, cost of parts, taxes (where applicable), and Contractor shall
provide any and all supplementary documentation to substantiate the amount charged, as Safeway may
reasonably request.
6&2 Costs and Expenses. Contractor shall be responsible for all costs and expenses incidental to
the performance of Services, Contractor shall provide, and be solely responsible for payment of all costs
for, the equipment and supplies used in the performance of this Agreement. Accordingly, Contractor
shall bear all applicable sales, use, or other taxes assessed against the use of such Contractor
equipment, associated with the Services.
&3 No Payment Obligation. Safeway may withhold any and all payments due hereunder during
any time during which Contractor is in material breach of its obligations under this Agreement, until
such time as Contractor undertakes, and Safeway reasonably accepts, a cure.
6&4 Payment for Cancelled Services. Safeway may, at any time, cancel any aspect of the
Services upon written notice to Contractor. In the event of any such cancellation, Safeway shall
compensate Contractor for any Services rendered prior to such notice, but shall have no obligation to
compensate Contractor for cancelled Services rendered after the date of such notice.
6 Insurance.
61 Policy Limits. Without limiting Contractor’s indemnification of Safeway as provided herein
and as a material condition of this Agreement, Contractor shall obtain, pay for, and maintain in full
force and effect during the term of this Agreement and for a period of two (2) years thereafter,
insurance with limits, coverages, terms, and conditions at least as broad as shown below:
(a) Workers’ Compensation and Employers’ Liability: insurance or self-insurance indicating
compliance with any applicable labor codes, acts, laws, or statutes, State or Federal,
where Contractor performs work. Employer's Liability insurance shall not be less than
$2,000,000 for injury or death each accident
(o) Commercial General Liability coverage shall be at least as broad as the Insurance
Services Office (ISO) Commercial General Liability Coverage “occurrence” form, with no
coverage deletions.
(ce) Such Commercial General Liability coverage shall have limits of not less than
$2,000,000 combined single limit per occurrence and $4,000,000 annual aggregate for
bodily injury, death, and property damage, including personal injury, contractual
Hability, independent contractors, broad-form property damage, and products and
completed operations coverage; and
i, Coverage shall by “Additional Insured” endorsement add as insured Safeway and its
subsidiaries, parmerships, its directors, officers, agents, and employees with respect
to the liability arising out of the work performed by or for the Contractor.
ii, Coverage shall be endorsed to specify that the Contractor's insurance is primary and
that any insurance or self-insurance maintained by Safeway shall not contribute with
it.
iii, Business Auto coverage shall be at least as broad as the Insurance Services Office
(ISO) Business auto form covering Automobile Liability, code 1, “any auto”. The
limits shall not be less than $2,000,000 per occurrence.
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62 Insurance Coverage Requirement. If Contractor fails to keep in effect at all times the
insurance coverages required under this Section 6, Safeway may withhold payments to Contractor
required under this Agreement in an amount sufficient to procure the insurance required herein.
Contractor, on behalf of itself and its principals, directors, officers, employees, agents, and contractors,
hereby releases Safeway from any and all liability, whether now existing or that may in the future
accrue, arising from or out of Safeway's acquisition of, or failure to acquire, any such insurance,
including (but not limited to) Safeway’s acquisition of or failure to acquire any one or more coverages
under such insurance.
63 Certificate of Insurance. Upon written request by Safeway, Contractor will provide to
Safeway extracts and form numbers for insurance policies required hereunder. Contractor shall cause
the forgoing policies (except the professional liability policy) to name Safeway as an additional insured
and Contractor shall provide thirty (g0) days’ prior written notice to Safeway in the event of
cancellation, lapse, material change or expiration of each such policy. Upon the request of Safeway,
Contractor will furnish Safeway with a certificate of insurance evidencing the insurance required
hereunder.
7 Confidentiality, The provisions set forth in the Non Disclosure Agreement entered into
between the parties on April 25, 2012 are hereby incorporated herein and shall govern the
confidentiality and use of information disclosed between the parties hereunder.
8. Representations and Warranties.
8.1 Representations and Warranties. Company represents and warrants that:
Contractor has full power and authority to enter into this Agreement, to carry out its obligations under
this Agreement and to grant the rights granted to Safeway hereunder; Contractor has no outstanding
agreement or obligation that is in conflict with any of the provisions of this Agreement, or that would
preclude Contractor from complying with the provisions hereof, and will not enter into any such
conflicting agreement during the term of this Agreement; Contractor will in the performance of this
Agreement comply with all applicable laws, rules and regulations, and will comply with Safeway policies
and rules such as (but not limited to) the safety and security rules (as Safeway may amend such rules
from time to time); and Contractor, at its own expense, shall obtain and maintain any and all bonds,
permits, licenses, and other documentation and clearances necessary to fulfill its obligations under this
Agreement.
a Force Majeure. Neither party shall be liable for any delays or other non-performance to the
extent that its performance is hindered or prevented by causes beyond its reasonable control, including,
without limitation, fire, or other casualty, act of God, strike or labor dispute, war or other violence, any
law, order or requirement of any governmental agency or authority or other causes beyond the
reasonable contro! of such party (other than causes related to such party's financial condition or with
respect to the payment of money), and such delay or non-performance cannot be overcome through the
exercise of reasonable diligence, provided that the affected party has informed the other party of such
force majeure event within 48 hours after the occurrence thereof (or within 48 hours after
communications are restored if the force majeure shall have disabled communications).
40. Intellectual Property Rights.
10.1 Definitions. For the purposes of this Agreement:
{a) “Intellectual Property” means any patents, patent rights, copyrights, trade secrets,
trademarks, trade names, service marks and other intellectual property embodied therein and all
applications and rights to apply for registration or protection rights pertaining thereto.
{b) “Moral Rights” means any right to claim authorship of a work, any right to object to
any distortion or other modifications of a work, and any similar right, existing under the law of any
country, or under any treaty.
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10.2 Rights to Results of Services. The parties agree that all Intellectual Property that results
from the Services or provided by Contractor and its Personnel under this Agreement shall be the sole
and exclusive property of Safeway and shall be “works made for hire.” If by operation of law any such
Intellectual Property is not considered a “work made for hire” or is not owned by Safeway automatically
upon creation thereof, Contractor agrees to assign and hereby irrevocably assigns, for good and
valuable consideration, all right, title, and interest in and to such Intellectual Property exclusively to
Safeway. Contractor will document such assignment to Safeway and will assist Safeway, at Safeway’s
expense, to secure and perfect for Safeway’s own benefit all Intellectual Property rights in any and all
countries, including granting herein a power of attorney to Safeway for the limited purpose of allowing
Safeway to secure and perfect such an assignment should Contractor be unable or incapable of doing so
itself.
10.3 Moral Rights. Contractor hereby forever waives and agrees never to assert against Safeway,
its successors or licensees any and all Moral Rights Contractor may have in any results of the Services,
and any elements thereof, created, performed, contributed or prepared by Contractor pursuant to this
Agreement, and any proceeds therefrom, even after expiration or termination of this Agreement, to the
extent permitted by the applicable laws.
11. Indemnification, Contractor agrees to defend, indemnify, and hold Safeway harmless from
and against any and all damages, losses, liabilities, costs and expenses (including, but not limited to,
litigation costs and reasonable attorneys’ fees) incurred by Safeway as a result of any claim, judgment or
proceeding against Safeway: (a) allegedly related to, arising out of or in connection with the Services
and/or Deliverables hereunder; or (b) by reason of any breach or alleged breach or failure of any of the
covenants, representations, warranties, or obligations of Contractor under this Agreement, provided,
however, that Contractor shall provide no indemnity hereunder for claims arising out of the sole
negligence or intentional misconduct of Safeway, its employees, or its agents, Safeway will promptly
notify Contractor in writing of any claim, judgment or proceeding for which Safeway seeks indemnity,
and allow Contractor the opportunity to defend and/or settle such claim, judgment or proceeding at
Contractor's sole expense.
12. Remedies,
12.1 Injunctive Relief. Both parties acknowledge and agree that a breach, or threatened breach, of
any “Confidentiality” or “Intellectual Property Rights” provisions hereunder will cause irreparable harm
to Safeway for which monetary damages will not be an adequate remedy, and, therefore, Safeway shall
be entitled to seek injunctive relief in addition to any remedies it may have hereunder or in law.
12.2 Self Help. If Contractor fails to perform its material obligations under this Agreement,
(a) Contractor shall provide any and all necessary and reasonable assistance requested by Safeway in
connection with the transfer of any partially completed Services to Safeway or to a third party
designated by Safeway; and (b) Contractor shall refund, at Safeway’s request, any amounts already paid
for such Services if and to the extent that Safeway has not (on an objective basis) received the
contracted-for benefit or functionality from the Services, These damages shall be considered direct
damages and in no way shall be construed as a penalty.
123 Remedies Not Exclusive. The remedies in this Agreement shall not be exclusive of any other
remedy either party may have against the other party at any time, and shall not limit either party’s
ability to seek other remedies available under law or in equity. Remedies shall be cumulative and there
shall be no obligation to exercise a particular remedy.
13. Term and Termination.
13.1 Term. This Agreement will commence as of the Effective Date or the date Contractor has
commenced providing services to Safeway, whichever is earlier, and will remain in effect until
terminated in accordance with the terms of this Agreement.
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9/1/2017 12:00:00 AM 115074290001 5820170901003373Contract No.: CW1942643
13.2. Termination for Cause. This Agreement shall terminate automatically upon the bankruptcy
or insolvency of either party, and may be terminated by Safeway due to the sale of the business of
Contractor, or for fraud, theft or dishonesty. If either party materially defaults in the performance of
any of its obligations under this Agreement, and such default (a) is of a non-monetary nature and is not
substantially cured within thirty (30) days after written notice is given to the defaulting party specifying
the default, or (b) is of a monetary nature and there is no dispute about the invoice or the work or the
expense with respect to which an invoice has been issued, and such default is not cured within twenty
(20) days after notice is given to the defaulting party specifying the default, the party not in default may,
by giving written notice thereof to the defaulting party, terminate this Agreement, as of a date specified
in such notice of termination. In the event of any breach by Contractor of its material obligations
hereunder, Safeway’s obligation to make any payments yet to be made hereunder shall be terminated.
Termination of such payment obligations shall be in addition to any other rights or remedies that
Safeway may have in the event of any such breach or alleged breach.
43.3 Termination for Convenience. Safeway may terminate this Agreement immediately upon
sixty (60) days’ written notice to Contractor without reason, penalty or breach of this Agreement,
notwithstanding that the Contractor is in compliance with all delivery, performance or payment
requirements. In the event of any such termination, Contractor shall be compensated for any Services
rendered prior to the effective date of termination,
13.4 Obligations upon Termination. Upon termination of this Agreement and subject to the
terms of this Agreement, unless otherwise specified by Safeway in writing:
(a) Contractor shall stop performing the Services, and Safeway will pay to Contractor all
sums due to Contractor or Services performed and expenses incurred through the
effective date of such expiration or termination (prorated as appropriate).
(o) Expiration or termination of this Agreement for any reason will not release either party
from any liabilities or obligations set forth in this Agreement which ({) the parties have
expressly agreed in writing will survive any such expiration or termination or (ii) remain
to be performed or by their nature would be intended to be applicable following any such
expiration or termination.
13.5 Surviving Terms. Those Sections of this Agreement that by their nature are intended to
survive termination or expiration hereof, shall so survive.
14. Arbitration. Contractor and Safeway agree to settle by binding arbitration any dispute or
controversy between Contractor and Safeway and/or any of Safeway's officers, employees, directors or
agents that arises out of or relates to this Agreement, the Services performed by Contractor hereunder
or the relationship between Contractor and Safeway. Such arbitration shall be conducted in San
Francisco, California by JAMS under the Commercial Arbitration Rules then in effect. Either
Contractor or Safeway may initiate arbitration by serving or mailing a written notice to the other. Any
award entered by the arbitrator(s) shall be final and judgment thereon may be entered in any court
having jurisdiction,
18. Publicity Restrictions. During the term and at all times after the termination or expiration of
this Agreement, Contractor shall not make any media release or other public announcement relating to
or referring to this Agreement or to Safeway without Safeway’s prior written consent.
48. | Records, Contractor shall properly maintain and retain any and ail contracts, notes,
documents, agreements, copies, files, records, correspondences, books, accounts, invoices, receipts and
other documentation relating to the Services ("Records"), including both electronic and hard copy
versions of such Records, During the term of this Agreement and for a period of three (3) years after
expiration or termination thereof, Contractor shall, upon reasonable notice by Safeway, make Records
available for Safeway’s personnel, accountants, and/or auditors for inspection and shall enable Safeway
to review and audit the process and procedures Contractor observes to perform Services and to produce
financial records related to such Services.
9/1/2017 12:00:00 AM 15074290001 5820170901003373
S}PageContract No.: CW1942643
47. Limited Background Check. Contractor agrees that Safeway has the right to require
Contractor to submit to and hereby authorizes Safeway to conduct a reference, fingerprint or other
ae investigation with respect to regulatory and other legal considerations of Safeway
or its affiliates.
18. Notices, All notices required by or permitted to be given under this Agreement will be in
writing and will be deemed to have been duly given if and when: (i) delivered personally; (ii) mailed by
first class certified mail, return receipt requested, postage prepaid; or (iii) sent by a nationally
recognized express courier service, postage or delivery charges prepaid; and in all events will be deemed
given upon receipt, All notices will be sent to the applicable party's Representative as set forth below:
If to Safeway:
Safeway Ine.
5918 Stoneridge Mall Road
Pleasanton, CA 94588
Attn: Legal Department
with copies to:
Safeway Inc.
5918 Stoneridge Mall Road
Pleasanton, CA 94588
Attn: Director of Indirect Sourcing
If to Contractor
Superior Electrical, Mechanical & Plumbing, Inc.
8613 Helms Avenue
Rancho Cucamonga, CA 91730
Attn: Jeff Schobel
Facsimile: 909-945-8540
Notices delivered in the foregoing manner shall be deemed given upon actual delivery or, if such
delivery is refused, upon first attempted delivery.
19. General.
19.1 Assignment. Contractor may not assign this Agreement, or any obligation contained herein,
in whole or in part, buy operation of law or otherwise, without the prior written consent of Safeway.
Any attempted assignment without such consent shall be null and void.
13.2. Waivers. No waivers hereunder shall be binding unless made in writing and signed by an
authorized representative of the party providing such waiver. Failure at any time to require the other
party’s performance of any obligation under this Agreement shall not be deemed a waiver and shall not
affect the right subsequently to require performance of that obligation.
49.3 Governing Law. The interpretation and enforcement of this Agreement shall be governed by
the laws of the State of California, without application of the conflict of law principles thereof.
Jurisdiction and venue of any action arising out of, relating to, or in connection with this Agreement, its
negotiation or termination, or Services provided or to be provided by Contractor, shall be in Alameda
County, California.
19.4 Severability. If any provision of this Agreement is held to be invalid or unenforceable for any
reason, the remaining provisions shall continue to be valid and enforceable.
19.8 Entire Agreement. This Agreement is the entire agreement between the parties with respect
to the Services and Deliverables, and supersedes any and all prior negotiations, representations and
agreements, whether written or oral, between the parties with respect to the subject matter hereof. No
6|Page f
9/1/2017 12:00:00 AM 115074290001 5820170901003373Contract No.: CW1942643
other agreement, statement or promise not contained in this Agreement, and no changes or
modifications to this Agreement, will be effective unless it is in writing and signed by authorized
representatives of both parties.
IN WITNESS WHEREOF, the authorized representatives of the parties have executed this Agreement
to become effective as of the Effective Date.
0 SAFEWAY INC.
Signature & SignatGre
ays Ske Sh 7 Soatt Gorham
Printed Name 3 Printed Name
ce \Viee © Peesident
Title Title
L3/13 21/4alaol3
Date Date Ft
SAFEWAY INC.
Signature
Printed Name.
Title
Date
7[Page 4,
9/1/2017 12:00:00 AM 118074290001 5820170901003373aR BW N
Linda Stevens _vs. Safeway Inc., et al.
San Francisco County Superior Court Case No. CGC-18-570150
PROOF OF SERVICE
I, Katherine Eng, declare as follows:
I ama citizen of the United States, | am over the age of eighteen (18) years and am not a party to
this action. I am employed in the City and County of San Francisco, State of California, and my business
address is 456 Montgomery Street, 20th Floor, San Francisco, California, 94104.
On December 13, 2018, I served or caused the within: 1) SUMMONS ON CROSS-
COMPLAINT; and 2) SAFEWAY INC.’S CROSS-COMPLAINT FOR EXPRESS
CONTRACTUAL INDEMNITY, BREACH OF CONTRACT, AND DECLARATORY RELIEF
on the attorney(s) of record in this action as follows:
Xx by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully
prepaid, and deposited the same for collection and mailing at San Francisco, California,
following ordinary business practices, addressed as set forth below.
Plaintiff's Attorney:
John Fitzpatrick Vannucci, Esq.
Law Offices of John Fitzpatrick Vannucci
1388 Sutter Street, Suite 605
San Francisco, California 94109
Telephone No: (415) 981-7500
Facsimile No: (415) 981-5700
Iam readily familiar with this law firm’s practice for the collection and processing of documents
for mailing, Federal Express overnight mail, and facsimile transaction and said document(s) are
deposited with the United States Postal Service or Federal Express depository on the same day in the
ordinary course of business.
I declare under penalty of perjury under the laws of the State of California that the foregoing is
true and correct and that this declaration was executed on December 13, 2018, in San Francisco,
California. Sk)
Katherindngy—
1
PROOF OF SERVICE
Preview
ce ty Dn nD Ww NY RN YW N RW NNR KN Dw ew a is oD A hm F BN &F SF OB A DAH BBW NH & MICHAEL S. BURKE (SBN 150062) EMILY FOWLER (SBN 258152) VOGL MEREDITH BURKE LLP ELECTRONICALLY 456 Montgomery Street, 20" Floor FILED San Francisco, California 94104 Superior Court of California, Telephone No: (415) 398-0200 County of San Francisco Facsimile No: (415) 398-2820 12/13/2018 E-mail: mburke@vmbllp.com Clerk of the Court efowler@vmbllp.com a se a5 oe eputy Cler! Attorneys for Defendant and Cross-Complainant SAFEWAY INC. SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO LINDA STEVENS, CGC-18-570150 Plaintiff, SAFEWAY INC.’S CROSS-COMPLAINT FOR EXPRESS CONTRACTUAL INDEMNITY, BREACH OF CONTRACT, AND DECLARATORY RELIEF vs. SAFEWAY INC., and DOES 1 TO 20, Defendants. SAFEWAY INC. Cross-Complainant, vs. SUPERIOR ELECTRICAL, MECHANICAL & PLUMBING, INC., ROES | to 20, Cross-Defendants. Defendant and Cross-Complainant SAFEWAY INC., (hereinafter “Cross-Complainant”), hereby cross-complains against Cross-Defendants SUPERIOR ELECTRICAL, MECHANICAL & PLUMBING, INC., ROES | to 20, and allege as follows: /11 //1 1 SAFEWAY INC.’S CROSS-COMPLAINT FOR EXPRESS CONTRACTUAL INDEMNITY, BREACH OF CONTRACT, AND DECLARATORY RELIEFa Ce 10 ul n B 14 15 16 17 18 19 20 2 22 23 24 25 26 27 28 GENERAL ALLEGATIONS 1, At all times mentioned herein, Cross-Complainant was a business entity doing business in or existing in the State of California. 2. Cross-Complainant is informed and believes, and thereon alleges, that Cross-Defendants SUPERIOR ELECTRICAL, MECHANICAL & PLUMBING, INC., ROES 1 to 20 were and now are businesses authorized/licensed to do business, and are doing business, under the laws of the State of California. 3. The true names and capacities, whether individual, corporate, associate, government or otherwise, of cross-defendants Roes 1 through 20, inclusive, are unknown to Cross-Complainant, who, therefore, sues said cross-defendants by such fictitious names pursuant to Code of Civil Procedure section 474 and pray leave of court to amend this Cross-Complaint to set forth their true names and capacities when the same have been ascertained. 4. At all times mentioned herein, each Cross-Defendant was the agent, servant and/or employee of all remaining cross-defendants and at all times mentioned herein was acting within the course and scope of this agency and employment. 5. An actual controversy has arisen and now exists between Cross-Complainant and Cross- Defendants concerning their respective rights and duties. Cross-Complainant has asserted that in the event Cross-Complainant herein is subjected to liability to any party to this action, Cross-Complainant will be entitled to be indemnified by cross-defendants for the full amount of any loss suffered or judgment paid by any Cross-Complainant to any such party for such costs, reasonable attorney’s fees and other expenses which have been, and in the future may be, incurred in Cross-Complainant conduct of the defense of this action. Accordingly, Cross-Complainant tendered its defense to Cross-Defendants, though Cross-Defendants have not responded to protect, defend, or indemnify Cross-Complainant. 6. Adjudication of this cross-complaint in conjunction with Plaintiffs action herein will prevent a multiplicity of trials and will be in the furtherance of the interests of justice and expedition of the business of the above-entitled court. 7. Cross-Complainant again hereby tender their defense to Cross-Defendants, and each of them, and demand that Cross-Defendants defend, indemnify, and hold Cross-Complainants harmless. 2 SAFEWAY INC.’S CROSS-COMPLAINT FOR EXPRESS CONTRACTUAL INDEMNITY, BREACH OF CONTRACT, AND DECLARATORY RELIEFoC ery Dn nH eke WN mM YP N YP YR NN NR DY Dm mmm i eta Am kg OWN Se SF CM IRQ DAH BF HN BF S FIRST CAUSE OF ACTION (Express Indemnity) 8. Cross-Complainant incorporates herein by reference paragraphs 1 through 7 of this cross- complaint as though fully set forth herein. 9. On or about September 27, 2018, Plaintiff LINDA STEVENS brought an action in Superior Court, San Francisco County, California, Action No. CGC-18-570150 to recover damages for personal injuries. Said Complaint, and any related cross-complaints, and any future amended complaints filed in this action, are incorporated herein by reference, as though fully set forth herein, said incorporation by reference being solely for the purpose of identification, and by doing so, Cross- Complainant do not admit the truth of any allegations contained therein. 10. | Cross-Complainant is informed and believes, and thereon alleges, that Cross-Defendants and each of them, are legally responsible for the events herein alleged. Except for the failure to comply with the contract by acceptance of the tender as alleged herein, Cross-Complainant is uncertain as to the manner or function by which said Cross-Defendants acted or omitted to act, and Cross-Complainant prays leave of court to amend this Cross-complaint when the same has been ascertained. 11. Cross-Complainant is informed and believes, and thereon alleges that Cross-Defendants, entered into a written contract whereby Cross-Defendants, agreed, for due consideration, to perform work for Cross-Complainant. The contract attached hereto as Exhibit “A”, and incorporated by this reference. 12. As a term and condition of this subcontract, Cross-Defendants agreed to defend and indemnify and hold Cross-complainant harmless as provided by Paragraph 11 of the contract. 13. Cross-Complainant has performed all the conditions and obligations on their part under said subcontract. 14. On or about July 27, 2017, Plaintiff LINDA STEVENS was allegedly personally injured in an accident while visiting a Safeway store where Cross-Defendants had performed work, or were required to perform work pursuant to the contract attached as Exhibit “A”. /If /I1 3 SAFEWAY INC.’S CROSS-COMPLAINT FOR EXPRESS CONTRACTUAL INDEMNITY, BREACH OF CONTRACT, AND DECLARATORY RELIEFCe ty A mn kB BW NY Ye NYP YP YP NY N NY HY Be Be eB oe Be ee ee ota A mh FF WH NH Be SF CHM IA AH BH NH SB S 15. On or about September 27, 2018, Plaintiff LINDA STEVENS brought an action against Cross-Complainant, herein in San Francisco Superior Court Action No. CGC-18-570150, to recover damages for personal injuries allegedly sustained as a result of the alleged accident. 16. Cross-Complainant gave written notice to Cross-Defendant of the action commenced by Plaintiff against Cross-Complainant, requesting defense and indemnity for the action indicating that Cross-Defendant would be bound under its agreement to defend and indemnify Cross-Complainant for any loss or liability that Cross-Complainant might sustain as a result of the action. Nevertheless, Cross- Defendant has failed, refused, or neglected to undertake the defense of the action or to properly respond to Cross-Complainant’s request. 17. Pursuant to Exhibit “A” Cross-Complainant is entitled to defense and indemnification from Cross-Defendant for all otherwise recoverable fees, expenses, costs, consultant fees, expert fees, and attorneys’ fees, incurred in connection with this suit, as well as all damages resulting from Cross- Defendant’s breach of their contractual responsibilities. SECOND CAUSE OF ACTION (Breach of Contract) 18. Cross-complainant incorporates herein by reference Paragraph 1 through 17 of this Cross-Complaint as though fully set forth herein. 19. Pursuant to the contract attached as Exhibit “A”, Cross-Defendants also agreed to certain insurance requirements as more specifically set forth in said contract Section 6 et seq. of Exhibit A, and incorporated by this reference. 20. Cross-Defendant’s failure to insure, defend, indemnify and hold cross-complainant harmless constitutes a material breach of the contract. 21. Cross-Complainant is informed and believes that Cross-Defendants may have failed to procure proper insurance as required by the contract, and that said failure also constitutes a breach of the agreement. 22. Cross-Complainant is informed and believes that if the plaintiffs allegations are true (which is denied) cross-defendants may have failed to comply with Section 6 et seq. of Exhibit A of Exhibit A of the contract, and that said failures constitute breach(s) of the agreement. 4 SAFEWAY INC.’S CROSS-COMPLAINT FOR EXPRESS CONTRACTUAL INDEMNITY, BREACH OF CONTRACT, AND DECLARATORY RELIEFCot An mH & BN eS Yb NYP YN YN N KY DY Be eB Be oe ew oe Re Se eB ot A mH FH N BF SF BO DKA DH BF HN BF S 23. As a result of Cross-Defendants’ breaches of the contract, cross-complainant has suffered, and will continue to suffer damages for costs, fees expenses all in an amount to be proven at trial. THIRD CAUSE OF ACTION (Declaratory Relief) 24. Cross-Complainant incorporates herein by reference paragraphs 1 through 23 of this cross-complaint as though fully set forth herein. 25. A dispute has arisen, and an actual controversy now exists between Cross-Complainant and the aforesaid Cross-Defendants in that Cross-Complainant contends that it is entitled to express indemnity, and/or comparative indemnity and/or contribution, and insurance, and has, accordingly, tendered its defense to Cross-Defendants. However, Cross-Defendants have failed to protect, defend, insure, and/or indemnify Cross-Complainant. 26. Cross-Complainant believes that Cross-Defendants are obligated to defend, indemnify, insure, and protect Cross-Complainants against claims and liabilities asserted by Plaintiff in the main action, including, but not limited to, indemnification for attorneys’ fees, and costs of suit herein, and the aforesaid Cross-Defendants have failed to honor said obligations. 27. Cross-Complainant desires a judicial determination of the respective rights and the duties of the aforesaid Cross-Defendants with respect to the damages and other relief claims in Plaintiffs Complaint and/or in Cross-Complainants filed, or to be filed by others herein. In particular, Cross- Complainant desires a declaration of the respective duties and liabilities of Cross-Complainant and the aforesaid Cross-Defendants for such damages, if any. 28. Such a declaration is necessary and proper at this time in order that Cross-Complainant may ascertain rights and duties with respect to the claims of Plaintiff. Further, the claims of Plaintiff arise out of the same transaction. A determination of all sets of claims in one proceeding is necessary and appropriate in order to avoid a multiplicity of actions that would result if Cross-Complainant were required to defend the claims of Plaintiff, and then to bring a separate action against Cross-Defendants for such indemnification of sums which Cross-Complainant may be compelled to pay as a result of any damages, judgments, or other awards recovered by Plaintiff in this action. 5 SAFEWAY INC.’S CROSS-COMPLAINT FOR EXPRESS CONTRACTUAL INDEMNITY, BREACH OF CONTRACT, AND DECLARATORY RELIEFSC OB WD WHEREFORE, Cross-Complainant prays for relief as follows: 1. For a declaration of the rights and duties of Cross-Complainant and Cross-Defendant with regard to the matters described herein; For a declaratory judgment that Cross-Defendants, and each of them, are obligated to defend Cross-Complainants under this complaint by Plaintiff and to indemnify Cross- Complainant for the full amount of any loss suffered and judgment paid by the Cross- Complainant as a result of the prosecution by the parties of this action in this court, and for the full amount of such costs, attorneys’ fees and other expenses Cross-Complainant may be required to incur in the conduct of the.defense of this action; Cross-Complainant’s costs herein incurred; For attorneys’ fees pursuant to the contract; For damages for breach of contract for the full amount of any liability or loss suffered and judgment paid by the Cross-complainant as a result of the prosecution by the parties of this action in this court, and for the full amount of such costs, attorneys’ fees and other expenses as Cross-complainant may be required to incur in the conduct of the defense of this action; For all such other and further relief as the court deems proper. Dated: December 12, 2018 VOGL MEREDITH BURKE LLP eo < . \ ) Fr ( MICHAEL'S. BURKE EMILY FOWLER Attorneys for Defendant and Cross-Complainant SAFEWAY INC BY: 6 SAFEWAY INC.’S CROSS-COMPLAINT FOR EXPRESS CONTRACTUAL INDEMNITY, BREACH OF CONTRACT, AND DECLARATORY RELIEFEXHIBIT ASAFEWAY Qo Contract No.: CW1942643 SERVICES AGREEMENT This Services Agreement (“Agreement”) is entered into as of September 10, 2012 (“Effective Date”), by and between Safeway Inc, (“Safeway”) located at 5918 Stoneridge Mall Road, Pleasanton, CA 94588 and Superior Electrical Mechanical & Plumbing Inc. (“Contractor”) located at 8613 Helms Avenue, Rancho Cucamonga, CA 91730. For the purposes of this Agreement, Safeway shall mean Safeway Inc. and its affiliates and subsidiaries. % Term of Agreement. This Agreement is effective from September 10, 2012 and shall remain in effect for a term ending September 9, 2014 (the “Initial Term”) unless earlier terminated pursuant to Section 14, 2, Scope of Work. Contractor shall provide certain services described on Exhibit A (“Services”) and subject to the requirements set forth thereon, in accordance with the terms of this Agreement at the locations described in Exhibit B, in accordance with the guidelines and requirements described in Exhibit D. The applicable prices (“Prices”) for the Services shall be as specified in Exhibit C, and shall remain fixed for the term of this Agreement. Any Services for which Prices are not set forth on Exhibit Cwill be priced according to the mutual agreement of Safeway and Contractor. Safeway may, inits sole option, review Contractor's performance once per year hereunder, and Contractor shall, at Safeway’s request, cooperate in such review and shall provide such information and documentation as Safeway may reasonably request in connection therewith. Contractor shall at all times while performing such Services or visiting Safeway premises, comply with Safeway’s Vendor Code of Conduct, and such other Safeway rules, procedures, guidelines, and policies as Safeway may, from time to time, require, 2.1 Subcontractors. Except to the extent expressly permitted by Safeway, in writing, Contractor shall use its own forces, and shall not hire subcontractors, to perform Services under this Agreement. 2.2 Nonconforming Services. Services will strictly conform to the requirements stated in this Agreement and exhibits hereto. Contractor shail assign only Personnel who are competent and qualified to perform Services hereunder. Contractor shall perform all Services in a timely and workmanlike manner with due diligence and in full compliance with the terms of this Agreement and the highest professional standard of one skilled in the industry. Contractor shall, within twenty-four hours after learning or receiving notice of a defect in Services performed, will commence correction of such defect and will continue to diligently perform such correction until the defect shall have been remedied, Contractor shall not leave the job site in a condition likely to cause damage to the facility or its contents. If Contractor fails to respond or to correct such defect in accordance with the foregoing requirements, then, without limiting any obligation or liability Contractor may have with respect to the nonconforming Services, and without any rights and remedies Safeway may otherwise have at law, in equity or under this Agreement, upon Safeway’s request, Contractor shall promptly refund any and all amoutts paid by Safeway for such nonconforming Services. 3, Locations. Exhibit B to this Agreement contains a list of stores and locations for which Contractor shall provide Services hereunder. Safeway reserves the right to add or delete locations from Exhibit B at any time. Stores that are closed for business by Safeway will automatically be removed from Exhibit B on the effective date of closing even if Safeway has not formally notified Contractor. 4, Independent Contractor Status, The Parties agree that Company is an independent contractor providing professional services and not an employee, agent, joint venturer or partner of Safeway. Nothing in this Agreement, nor in a course of dealing or by way of any aspect of this commercial relationship, shall be interpreted or construed as creating the relationship of employer and employee between Safeway and Company and/or its Personnel. y 9/1/2017 12:00:00 AM 115074290001 5820170901003373 1[ PageContract No: CW1942643 6 Payment for Services and Parts. 64 Payment Terms. Contractor will be paid via Safeway’s P-Card for all maintenance and repair work orders covered by Exhibit C pricing. Contractor's invoice shall be electronically transmitted in accordance with Safeway’s Corrigo requirements, Contractor's invoice/documentation shall include such details as Safeway may request, but in all cases will set forth hourly rates, number of hours performed, Services rendered, parts used, cost of parts, taxes (where applicable), and Contractor shall provide any and all supplementary documentation to substantiate the amount charged, as Safeway may reasonably request. 6&2 Costs and Expenses. Contractor shall be responsible for all costs and expenses incidental to the performance of Services, Contractor shall provide, and be solely responsible for payment of all costs for, the equipment and supplies used in the performance of this Agreement. Accordingly, Contractor shall bear all applicable sales, use, or other taxes assessed against the use of such Contractor equipment, associated with the Services. &3 No Payment Obligation. Safeway may withhold any and all payments due hereunder during any time during which Contractor is in material breach of its obligations under this Agreement, until such time as Contractor undertakes, and Safeway reasonably accepts, a cure. 6&4 Payment for Cancelled Services. Safeway may, at any time, cancel any aspect of the Services upon written notice to Contractor. In the event of any such cancellation, Safeway shall compensate Contractor for any Services rendered prior to such notice, but shall have no obligation to compensate Contractor for cancelled Services rendered after the date of such notice. 6 Insurance. 61 Policy Limits. Without limiting Contractor’s indemnification of Safeway as provided herein and as a material condition of this Agreement, Contractor shall obtain, pay for, and maintain in full force and effect during the term of this Agreement and for a period of two (2) years thereafter, insurance with limits, coverages, terms, and conditions at least as broad as shown below: (a) Workers’ Compensation and Employers’ Liability: insurance or self-insurance indicating compliance with any applicable labor codes, acts, laws, or statutes, State or Federal, where Contractor performs work. Employer's Liability insurance shall not be less than $2,000,000 for injury or death each accident (o) Commercial General Liability coverage shall be at least as broad as the Insurance Services Office (ISO) Commercial General Liability Coverage “occurrence” form, with no coverage deletions. (ce) Such Commercial General Liability coverage shall have limits of not less than $2,000,000 combined single limit per occurrence and $4,000,000 annual aggregate for bodily injury, death, and property damage, including personal injury, contractual Hability, independent contractors, broad-form property damage, and products and completed operations coverage; and i, Coverage shall by “Additional Insured” endorsement add as insured Safeway and its subsidiaries, parmerships, its directors, officers, agents, and employees with respect to the liability arising out of the work performed by or for the Contractor. ii, Coverage shall be endorsed to specify that the Contractor's insurance is primary and that any insurance or self-insurance maintained by Safeway shall not contribute with it. iii, Business Auto coverage shall be at least as broad as the Insurance Services Office (ISO) Business auto form covering Automobile Liability, code 1, “any auto”. The limits shall not be less than $2,000,000 per occurrence. 2|Page 0 ? 9/1/2017 12:00:00 AM L15074290001 §820170901003373Contract No.: CW1942643 62 Insurance Coverage Requirement. If Contractor fails to keep in effect at all times the insurance coverages required under this Section 6, Safeway may withhold payments to Contractor required under this Agreement in an amount sufficient to procure the insurance required herein. Contractor, on behalf of itself and its principals, directors, officers, employees, agents, and contractors, hereby releases Safeway from any and all liability, whether now existing or that may in the future accrue, arising from or out of Safeway's acquisition of, or failure to acquire, any such insurance, including (but not limited to) Safeway’s acquisition of or failure to acquire any one or more coverages under such insurance. 63 Certificate of Insurance. Upon written request by Safeway, Contractor will provide to Safeway extracts and form numbers for insurance policies required hereunder. Contractor shall cause the forgoing policies (except the professional liability policy) to name Safeway as an additional insured and Contractor shall provide thirty (g0) days’ prior written notice to Safeway in the event of cancellation, lapse, material change or expiration of each such policy. Upon the request of Safeway, Contractor will furnish Safeway with a certificate of insurance evidencing the insurance required hereunder. 7 Confidentiality, The provisions set forth in the Non Disclosure Agreement entered into between the parties on April 25, 2012 are hereby incorporated herein and shall govern the confidentiality and use of information disclosed between the parties hereunder. 8. Representations and Warranties. 8.1 Representations and Warranties. Company represents and warrants that: Contractor has full power and authority to enter into this Agreement, to carry out its obligations under this Agreement and to grant the rights granted to Safeway hereunder; Contractor has no outstanding agreement or obligation that is in conflict with any of the provisions of this Agreement, or that would preclude Contractor from complying with the provisions hereof, and will not enter into any such conflicting agreement during the term of this Agreement; Contractor will in the performance of this Agreement comply with all applicable laws, rules and regulations, and will comply with Safeway policies and rules such as (but not limited to) the safety and security rules (as Safeway may amend such rules from time to time); and Contractor, at its own expense, shall obtain and maintain any and all bonds, permits, licenses, and other documentation and clearances necessary to fulfill its obligations under this Agreement. a Force Majeure. Neither party shall be liable for any delays or other non-performance to the extent that its performance is hindered or prevented by causes beyond its reasonable control, including, without limitation, fire, or other casualty, act of God, strike or labor dispute, war or other violence, any law, order or requirement of any governmental agency or authority or other causes beyond the reasonable contro! of such party (other than causes related to such party's financial condition or with respect to the payment of money), and such delay or non-performance cannot be overcome through the exercise of reasonable diligence, provided that the affected party has informed the other party of such force majeure event within 48 hours after the occurrence thereof (or within 48 hours after communications are restored if the force majeure shall have disabled communications). 40. Intellectual Property Rights. 10.1 Definitions. For the purposes of this Agreement: {a) “Intellectual Property” means any patents, patent rights, copyrights, trade secrets, trademarks, trade names, service marks and other intellectual property embodied therein and all applications and rights to apply for registration or protection rights pertaining thereto. {b) “Moral Rights” means any right to claim authorship of a work, any right to object to any distortion or other modifications of a work, and any similar right, existing under the law of any country, or under any treaty. 31] Page J 9/1/2017 12:00:00 AM 115074290001 5820170901003373Contract No,: CW1942643 10.2 Rights to Results of Services. The parties agree that all Intellectual Property that results from the Services or provided by Contractor and its Personnel under this Agreement shall be the sole and exclusive property of Safeway and shall be “works made for hire.” If by operation of law any such Intellectual Property is not considered a “work made for hire” or is not owned by Safeway automatically upon creation thereof, Contractor agrees to assign and hereby irrevocably assigns, for good and valuable consideration, all right, title, and interest in and to such Intellectual Property exclusively to Safeway. Contractor will document such assignment to Safeway and will assist Safeway, at Safeway’s expense, to secure and perfect for Safeway’s own benefit all Intellectual Property rights in any and all countries, including granting herein a power of attorney to Safeway for the limited purpose of allowing Safeway to secure and perfect such an assignment should Contractor be unable or incapable of doing so itself. 10.3 Moral Rights. Contractor hereby forever waives and agrees never to assert against Safeway, its successors or licensees any and all Moral Rights Contractor may have in any results of the Services, and any elements thereof, created, performed, contributed or prepared by Contractor pursuant to this Agreement, and any proceeds therefrom, even after expiration or termination of this Agreement, to the extent permitted by the applicable laws. 11. Indemnification, Contractor agrees to defend, indemnify, and hold Safeway harmless from and against any and all damages, losses, liabilities, costs and expenses (including, but not limited to, litigation costs and reasonable attorneys’ fees) incurred by Safeway as a result of any claim, judgment or proceeding against Safeway: (a) allegedly related to, arising out of or in connection with the Services and/or Deliverables hereunder; or (b) by reason of any breach or alleged breach or failure of any of the covenants, representations, warranties, or obligations of Contractor under this Agreement, provided, however, that Contractor shall provide no indemnity hereunder for claims arising out of the sole negligence or intentional misconduct of Safeway, its employees, or its agents, Safeway will promptly notify Contractor in writing of any claim, judgment or proceeding for which Safeway seeks indemnity, and allow Contractor the opportunity to defend and/or settle such claim, judgment or proceeding at Contractor's sole expense. 12. Remedies, 12.1 Injunctive Relief. Both parties acknowledge and agree that a breach, or threatened breach, of any “Confidentiality” or “Intellectual Property Rights” provisions hereunder will cause irreparable harm to Safeway for which monetary damages will not be an adequate remedy, and, therefore, Safeway shall be entitled to seek injunctive relief in addition to any remedies it may have hereunder or in law. 12.2 Self Help. If Contractor fails to perform its material obligations under this Agreement, (a) Contractor shall provide any and all necessary and reasonable assistance requested by Safeway in connection with the transfer of any partially completed Services to Safeway or to a third party designated by Safeway; and (b) Contractor shall refund, at Safeway’s request, any amounts already paid for such Services if and to the extent that Safeway has not (on an objective basis) received the contracted-for benefit or functionality from the Services, These damages shall be considered direct damages and in no way shall be construed as a penalty. 123 Remedies Not Exclusive. The remedies in this Agreement shall not be exclusive of any other remedy either party may have against the other party at any time, and shall not limit either party’s ability to seek other remedies available under law or in equity. Remedies shall be cumulative and there shall be no obligation to exercise a particular remedy. 13. Term and Termination. 13.1 Term. This Agreement will commence as of the Effective Date or the date Contractor has commenced providing services to Safeway, whichever is earlier, and will remain in effect until terminated in accordance with the terms of this Agreement. 4)Page 9/1/2017 12:00:00 AM 115074290001 5820170901003373Contract No.: CW1942643 13.2. Termination for Cause. This Agreement shall terminate automatically upon the bankruptcy or insolvency of either party, and may be terminated by Safeway due to the sale of the business of Contractor, or for fraud, theft or dishonesty. If either party materially defaults in the performance of any of its obligations under this Agreement, and such default (a) is of a non-monetary nature and is not substantially cured within thirty (30) days after written notice is given to the defaulting party specifying the default, or (b) is of a monetary nature and there is no dispute about the invoice or the work or the expense with respect to which an invoice has been issued, and such default is not cured within twenty (20) days after notice is given to the defaulting party specifying the default, the party not in default may, by giving written notice thereof to the defaulting party, terminate this Agreement, as of a date specified in such notice of termination. In the event of any breach by Contractor of its material obligations hereunder, Safeway’s obligation to make any payments yet to be made hereunder shall be terminated. Termination of such payment obligations shall be in addition to any other rights or remedies that Safeway may have in the event of any such breach or alleged breach. 43.3 Termination for Convenience. Safeway may terminate this Agreement immediately upon sixty (60) days’ written notice to Contractor without reason, penalty or breach of this Agreement, notwithstanding that the Contractor is in compliance with all delivery, performance or payment requirements. In the event of any such termination, Contractor shall be compensated for any Services rendered prior to the effective date of termination, 13.4 Obligations upon Termination. Upon termination of this Agreement and subject to the terms of this Agreement, unless otherwise specified by Safeway in writing: (a) Contractor shall stop performing the Services, and Safeway will pay to Contractor all sums due to Contractor or Services performed and expenses incurred through the effective date of such expiration or termination (prorated as appropriate). (o) Expiration or termination of this Agreement for any reason will not release either party from any liabilities or obligations set forth in this Agreement which ({) the parties have expressly agreed in writing will survive any such expiration or termination or (ii) remain to be performed or by their nature would be intended to be applicable following any such expiration or termination. 13.5 Surviving Terms. Those Sections of this Agreement that by their nature are intended to survive termination or expiration hereof, shall so survive. 14. Arbitration. Contractor and Safeway agree to settle by binding arbitration any dispute or controversy between Contractor and Safeway and/or any of Safeway's officers, employees, directors or agents that arises out of or relates to this Agreement, the Services performed by Contractor hereunder or the relationship between Contractor and Safeway. Such arbitration shall be conducted in San Francisco, California by JAMS under the Commercial Arbitration Rules then in effect. Either Contractor or Safeway may initiate arbitration by serving or mailing a written notice to the other. Any award entered by the arbitrator(s) shall be final and judgment thereon may be entered in any court having jurisdiction, 18. Publicity Restrictions. During the term and at all times after the termination or expiration of this Agreement, Contractor shall not make any media release or other public announcement relating to or referring to this Agreement or to Safeway without Safeway’s prior written consent. 48. | Records, Contractor shall properly maintain and retain any and ail contracts, notes, documents, agreements, copies, files, records, correspondences, books, accounts, invoices, receipts and other documentation relating to the Services ("Records"), including both electronic and hard copy versions of such Records, During the term of this Agreement and for a period of three (3) years after expiration or termination thereof, Contractor shall, upon reasonable notice by Safeway, make Records available for Safeway’s personnel, accountants, and/or auditors for inspection and shall enable Safeway to review and audit the process and procedures Contractor observes to perform Services and to produce financial records related to such Services. 9/1/2017 12:00:00 AM 15074290001 5820170901003373 S}PageContract No.: CW1942643 47. Limited Background Check. Contractor agrees that Safeway has the right to require Contractor to submit to and hereby authorizes Safeway to conduct a reference, fingerprint or other ae investigation with respect to regulatory and other legal considerations of Safeway or its affiliates. 18. Notices, All notices required by or permitted to be given under this Agreement will be in writing and will be deemed to have been duly given if and when: (i) delivered personally; (ii) mailed by first class certified mail, return receipt requested, postage prepaid; or (iii) sent by a nationally recognized express courier service, postage or delivery charges prepaid; and in all events will be deemed given upon receipt, All notices will be sent to the applicable party's Representative as set forth below: If to Safeway: Safeway Ine. 5918 Stoneridge Mall Road Pleasanton, CA 94588 Attn: Legal Department with copies to: Safeway Inc. 5918 Stoneridge Mall Road Pleasanton, CA 94588 Attn: Director of Indirect Sourcing If to Contractor Superior Electrical, Mechanical & Plumbing, Inc. 8613 Helms Avenue Rancho Cucamonga, CA 91730 Attn: Jeff Schobel Facsimile: 909-945-8540 Notices delivered in the foregoing manner shall be deemed given upon actual delivery or, if such delivery is refused, upon first attempted delivery. 19. General. 19.1 Assignment. Contractor may not assign this Agreement, or any obligation contained herein, in whole or in part, buy operation of law or otherwise, without the prior written consent of Safeway. Any attempted assignment without such consent shall be null and void. 13.2. Waivers. No waivers hereunder shall be binding unless made in writing and signed by an authorized representative of the party providing such waiver. Failure at any time to require the other party’s performance of any obligation under this Agreement shall not be deemed a waiver and shall not affect the right subsequently to require performance of that obligation. 49.3 Governing Law. The interpretation and enforcement of this Agreement shall be governed by the laws of the State of California, without application of the conflict of law principles thereof. Jurisdiction and venue of any action arising out of, relating to, or in connection with this Agreement, its negotiation or termination, or Services provided or to be provided by Contractor, shall be in Alameda County, California. 19.4 Severability. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. 19.8 Entire Agreement. This Agreement is the entire agreement between the parties with respect to the Services and Deliverables, and supersedes any and all prior negotiations, representations and agreements, whether written or oral, between the parties with respect to the subject matter hereof. No 6|Page f 9/1/2017 12:00:00 AM 115074290001 5820170901003373Contract No.: CW1942643 other agreement, statement or promise not contained in this Agreement, and no changes or modifications to this Agreement, will be effective unless it is in writing and signed by authorized representatives of both parties. IN WITNESS WHEREOF, the authorized representatives of the parties have executed this Agreement to become effective as of the Effective Date. 0 SAFEWAY INC. Signature & SignatGre ays Ske Sh 7 Soatt Gorham Printed Name 3 Printed Name ce \Viee © Peesident Title Title L3/13 21/4alaol3 Date Date Ft SAFEWAY INC. Signature Printed Name. Title Date 7[Page 4, 9/1/2017 12:00:00 AM 118074290001 5820170901003373aR BW N Linda Stevens _vs. Safeway Inc., et al. San Francisco County Superior Court Case No. CGC-18-570150 PROOF OF SERVICE I, Katherine Eng, declare as follows: I ama citizen of the United States, | am over the age of eighteen (18) years and am not a party to this action. I am employed in the City and County of San Francisco, State of California, and my business address is 456 Montgomery Street, 20th Floor, San Francisco, California, 94104. On December 13, 2018, I served or caused the within: 1) SUMMONS ON CROSS- COMPLAINT; and 2) SAFEWAY INC.’S CROSS-COMPLAINT FOR EXPRESS CONTRACTUAL INDEMNITY, BREACH OF CONTRACT, AND DECLARATORY RELIEF on the attorney(s) of record in this action as follows: Xx by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, and deposited the same for collection and mailing at San Francisco, California, following ordinary business practices, addressed as set forth below. Plaintiff's Attorney: John Fitzpatrick Vannucci, Esq. Law Offices of John Fitzpatrick Vannucci 1388 Sutter Street, Suite 605 San Francisco, California 94109 Telephone No: (415) 981-7500 Facsimile No: (415) 981-5700 Iam readily familiar with this law firm’s practice for the collection and processing of documents for mailing, Federal Express overnight mail, and facsimile transaction and said document(s) are deposited with the United States Postal Service or Federal Express depository on the same day in the ordinary course of business. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration was executed on December 13, 2018, in San Francisco, California. Sk) Katherindngy— 1 PROOF OF SERVICE