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ELECTRONICALLY FILED
LEONIDOU & ROSIN Superior Court of California,
Professional Corporation
A. Robert Rosin (SBN 115245)
County of Alameda
Timur Bilir (SBN 269919) 03/13/2024 at 04:15:14 PM
777 Cuesta Drive, Suite 200 By: Damaree Franklin,
Mountain View, CA 94040 Deputy Clerk
Telephone: (650) 691-2888
Facsimile: (650) 691-2889
arrosin@ alr-law.com
thilir@ alr-law.com
Attomeys for Plaintiff
Tico Construction Company, Inc.
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF ALAMEDA
10
11
TICO CONSTRUCTION COMPANY, INC., ) CaseNo.: 24 ORT BSS
12 a corporation,
COMPLAINT FOR BREACH OF
13 Plaintiff, WRITTEN CONTRACT, ACCOUNT
STATED, COMMON COUNT, AND
14 vs. FORECLOSURE OF MECHANIC’S
LIEN
15
RECARBON, INC., a corporation;
16 HUSPP FREMONT BUSINESS CENTER LP,
a limited partnership; and [Unlimited Jurisdiction — Amounts Exceeds
17 DOES 1 through 50, inclusive; $25,000]
18 Defendant.
19
20
For its Complaint, Plaintiff Tico Construction Company, Inc., alleges:
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GENERAL ALLEGATIONS
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1 At all relevant times, Plaintiff Tico Construction Company, Inc. (“Plaintiff’ or
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“Tico”) is and has been a California corporation, with its principal office in Santa Clara County,
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and a contractor duly licensed by the California State Contractors License Board to perform the
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work that is referred to in this complaint.
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2 At all relevant times, Defendant Huspp Fremont Business Center LP (“Huspp”) is
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and has been the purported owner of a private work of improvement located at 47825 Warm
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COMPLAINT FOR BREACH OF WRITTEN CONTRACT, ACCOUNT STATED, COMMON COUNT, AND
FORECLOSURE OF MECHANIC’S LIEN
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Springs Boulevard, Fremont, CA 94539 (the “Project”) and a limited partnership purporting to
be organized and existing under Delaware law.
3 At all relevant times, defendant ReCarbon, Inc. (“ReCarbon”) is and has been a
purported corporation, which purports to be organized and exist under Delaware law, and the
purported lessee of a private work of improvement located at 47825 Warm Springs Boulevard,
Fremont, CA 94539.
4 Plaintiff is ignorant of the true names and capacities of the defendants sued herein
as Does 1 through 50. Plaintiff therefore sues these defendants by fictitious names and will
amend this complaint when such defendants’ true names and capacities are ascertained.
10 FIRST CAUSE OF ACTION
11 (reach of Written C ontract — ReC arbon and Does 1-25)
12 5. Plaintiff refers to and incorporates as though fully set forth herein each of the
13 foregoing paragraphs.
14 6 On or about March 16, 2023, ReCarbon and Does 1 through 25 (collectively the
15 “ReCarbon Defendants”) and Plaintiff entered into a written agreement (the “Contract”) pursuant
16 to which Plaintiff was to provide construction work and services to the ReCarbon Defendants for
17 a private work of improvement known as Tenant Improvements (Phase II) -- ReCarbon New
18 Service Y ard and located at 47825 Warm Springs Boulevard, Fremont, CA 94539, Assessor’s ID
19 No: 519-1681-19-6; 519-1681-18-3; 519-1681-20-3; and 519-1681-21-1 (the “Project”). The
20 Contract also incorporated Plaintiffs standard terms and conditions which to avoid prolixity are
21 not attached. A true and correct copy of the Contract is attached hereto and incorporated herein
22 as ExhibitA.
23 7 Plaintiff's work on the Project consisted of furnishing and installing a new
24 concrete pad for mechanical and electrical equipment, a new trash enclosure, a new fence, and
25 related improvements for a new service yard.
26 8 The Contract provided that Plaintiff would be paid for its labor, services,
27 equipment, and material.
28 9 Plaintiff provided all labor, service, equipment, and material required by the
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COMPLAINT FOR BREACH OF WRITTEN CONTRACT, ACCOUNT STATED, COMMON COUNT, AND
FORECLOSURE OF MECHANIC’S LIEN
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Contract, and performed all other conditions, covenants, and promises required on its part under
the Contract, except those that it was prevented or otherwise was excused from performing.
10. Within the last year, the ReCarbon Defendants breached the Contract by failing to
pay all other sums due and owing to Plaintiff.
11. As a direct and proximate result of the ReCarbon Defendants’ breach of the
Contract, Plaintiff has incurred damages in the principal amount of not less than $450,375.51,
plus interest.
WHEREFORE, Plaintiff prays for judgment as hereinafter set forth.
SECOND CAUSE OF ACTION
10 (Account Stated — ReC arbon and Does 1-25)
11 12. Plaintiff refers to and incorporates as though fully set forth herein each of the
12 foregoing paragraphs.
13 13. Within the last year, in Alameda County, California, an account was stated in
14 writing by and between Plaintiff on the one hand and ReCarbon Defendants on the other hand.
15 On such account the principal balance of at least $450,375.51 was found to be due to Plaintiff.
16 The ReCarbon Defendants agreed to pay Plaintiff this balance in Fremont, California.
17 14. Although demanded by Plaintiff from the ReCarbon Defendants, no part of the
18 agreed balance has been paid. There is now due, owing, and unpaid from the ReCarbon
19 Defendants to Plaintiff the principal sum of at least $450,375.51, of which the same total
20 principal amount remains due, owing, and unpaid by ReCarbon Defendants to Plaintiff, together
21 with interest at the legal prevailing rate from the time such payments became due.
22 WHEREFORE, Plaintiff prays for judgment as hereinafter set forth.
23 THIRD CAUSE OF ACTION
24 (Common Count — ReCarbon and Does 1-25)
25 15. Plaintiff refers to and incorporates as though fully set forth herein each of the
26 foregoing paragraphs.
27 16. Within the last year, Plaintiff provided labor, service, equipment, and material to
28 the ReCarbon Defendants at their special instance and request, for which the ReCarbon
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COMPLAINT FOR BREACH OF WRITTEN CONTRACT, ACCOUNT STATED, COMMON COUNT, AND
FORECLOSURE OF MECHANIC’S LIEN
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Defendants agreed to pay Plaintiff the reasonable value thereof.
17. Notwithstanding Plaintiffs demands for payment, there is now due, owing, and
unpaid from the ReCarbon Defendants the sum of $450,375.51 plus interest.
WHEREFORE, Plaintiff prays for judgment as hereinafter set forth.
FOURTH CAUSE OF ACTION
(Foreclosure of Mechanic’s Lien — ReCarbon, Huspp, and Does 1-50)
18. Plaintiff refers to and incorporates as though fully set forth herein each of the
foregoing paragraphs.
19. Pursuant to the Contract, Plaintiff provided labor, equipment, materials, and
10 related services which were used and incorporated into the Project, which was a work of
11 improvement.
12 20. The ReCarbon Defendants reputedly are the lessees of the Project. Huspp and
13 Does 26-50 (the “Huspp Defendants”) are the reputed owners of the Project. Plaintiff is
14 informed and believes and thereon alleges that at all relevant times that the ReCarbon
15 Defendants and the Huspp Defendants have, or claim to have, some right, title or interest in the
16 real property and improvements located at the Project.
17 21. On or about March 13, 2023, Plaintiff duly served written preliminary notices, by
18 certified mail return receipt requested, on the ReCarbon Defendants and the Huspp Defendants.
19 The contents and method of service of the preliminary notice complied with applicable law,
20 including without limitation, Sections 8100-8110 and 8200-8204 of the Civil Code. The
21 preliminary notice included a general description of Plaintiff's work, an estimate of the total
22 price of the work provided and to be provided, and included the language set forth at Section
23 8202(a)(3) of the Civil Code. Plaintiff has provided all notices required by the California Civil
24 Code.
25 22. After Plaintiff completed furnishing labor, service, equipment, and material, and
26 on or about on December 15, 2023, Plaintiff recorded in the official records of Alameda County,
27 California, a mechanic’s lien, instrument number 2023146735, in the amount of $450,375.51
28 (the “Mechanic’s Lien”). Before recording the Mechanic’s Lien, Plaintiff timely served on the
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COMPLAINT FOR BREACH OF WRITTEN CONTRACT, ACCOUNT STATED, COMMON COUNT, AND
FORECLOSURE OF MECHANIC’S LIEN
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ReCarbon Defendants and the Huspp Defendants a Notice of Mechanic’s Lien, together with an
executed proof of service affidavit. A true and correct copy of the Mechanic’s Lien that Plaintiff
recorded, and of the related Notice of Mechanic’s Lien that Plaintiff served, is attached hereto as
Exhibit B and is incorporated herein by reference.
23. The Mechanic’s Lien was recorded within the time prescribed by the California
Civil Code.
24. There remains due and owing to Plaintiff a sum that is not less than $450,375.51
for labor, service, equipment, and material for the Project.
WHEREFORE, Plaintiff prays for judgment as hereinafter set forth.
10 PRAYER FOR RELIEF
11 WHEREFORE, Plaintiff Tico Construction Company, Inc. prays for judgment as set
12 forth below:
13 On the First and Third Causes of Action (against ReCarbon and Does 1-25):
14 1 For damages in the principal sum of $450,375.51 and subject to proof at trial;
15 On the Second Cause of Action (against ReCarbon
and Does 1-25):
16 2 For damages in the principal sum of $450,375.51 and subject to proof at trial;
17 3 For attorneys’ fees pursuant to statute;
18 On the Fourth Cause of Action (against ReCarbon, Huspp, and Does 1-50):
19 4 For a judgment:
20 a. Declaring that the rights, claims, ownership, liens, title or demands of
21 defendants, and each of them, in the above-described real property be
22 subject to and subordinate to the Mechanic’s Lien;
23 Ordering that the Mechanic’s Lien be foreclosed and the usual judgment be
24 made for the sale of the property, according to law, by a commissioner to
25 be appointed by the Court;
26 Ordering that the proceeds of the sale be applied to the payment in the
27 amounts due, including interest thereon, through the date of entry of
28 judgment due Plaintiff; and
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COMPLAINT FOR BREACH OF WRITTEN CONTRACT, ACCOUNT STATED, COMMON COUNT, AND
FORECLOSURE OF MECHANIC’S LIEN
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Declaring that the title of each of the defendants, and all persons claiming
under them, be adjudged subsequent to the Mechanic’s Lien, whether the
defendants claim an interest as lien claimants, judgment creditors,
purchasers, encumbrancers, or otherwise, and that they be barred and
foreclosed from all rights, claims, interest, or equity in redemption in the
Property or on any part thereof after the time for redemption has passed;
On All Causes of Action Against All Defendants:
5 For prejudgment interest at the prevailing legal rate;
6. For costs of suit incurred herein; and
7
10 For such other and further reliefas the Court may deem just and proper.
11 Dated: March 13, 2024 LEONIDOU & ROSIN
Professional Corporation
12
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By
14 A.
Robert Rosin
Timur Bilir
15 Attorneys for Plaintiff
Tico Construction Company, Inc.
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COMPLAINT FOR BREACH OF WRITTEN CONTRACT, ACCOUNT STATED, COMMON COUNT, AND
FORECLOSURE OF MECHANIC’S LIEN
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EXHIBIT A
Execution Version (March 16, 2023)
SHORT FORM CONSTRUCTION AGREEMENT
THIS SHORT FORM CONSTRUCTION AGREEMENT ("Agreement") is made as of the
16th day of March in the year of 2023,
between Owner:
ReCarbon, Inc., a Delaware corporation
3979 Freedom Circle, Suite 230
Santa Clara, CA 95054
Attn: John Liu, EVP Strategic Planning & General Counsel
Phone: 1.408.980.4700
and Contractor:
Tico Construction Inc., a California corporation
(State License Board Number: 595540)
1585 Terminal Avenue
San Jose, CA 95112-4316
Attn: Glenn Soma, Project Executive
Phone: 1.408.892.8018
for the following Project:
Tenant Improvements (Phase II) -- ReCarbon New Service Yard
to be performed at
47825 Warm Springs Blvd. Fremont CA 94539
with the following as Lender:
Not Applicable
Owner and Contractor agree as set forth below:
ARTICLE I
THE WORK OF THIS AGREEMENT
1.1 Scope of Work. In general, the scope of Work under this Agreement consists of
the following construction work: concrete pad for mechanical/electrical equipment, trash
enclosure, new fence, and related improvements for a new service yard (generally referred to in
this Agreement as the “Work”). Exhibit "A" to this Agreement provides a more detailed
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description of the Work to be performed by Contractor; however, it is understood and agreed
that Contractor is to not perform the mechanical and electrical work indicated in Exhibit “A”,
which is to be performed by others (as described in Section 5.6 of this Agreement). To the
extent any terms of Exhibit "A" conflict with this Agreement, the provisions of this Agreement
shall take precedence.
1.2 Contractor's Work shall be performed in a workmanlike manner that meets or
exceeds industry standards, and the Work shall comply with, at a minimum, the requirements of
applicable laws, building codes and permits.
ARTICLE II
DATE OF COMMENCEMENT AND CONTRACT TIME
21 Commencement of the Work. The Date of Commencement of Contractor’s
Work shall be the date as noted in the Notice to Proceed, which will be issued by Owner after the
execution of this Agreement. It is anticipated that the Date of Commencement will be
approximately March 15, 2023.
2.2 Contract Time. Contractor agrees that it will achieve Substantial Completion of
the Work (as described herein) by no later than Eighty Five (85) calendar days after the Date of
Commencement. This period of time, as may be adjusted by Change Orders authorized by
Owner, is hereby defined as the “Contract Time”. Attached as Exh "B" is Contractor's
schedule for the Work. As used herein, the Work has achieved Substantial Completion when the
applicable governmental authority has signed-off on the Work. In general, only minor “punch
list” work shall be outstanding as of the date Contractor has achieved Substantial completion of
the Work.
2.2.1 Interim Contract Milestone. Contractor agrees to complete the concrete
pad portion of the Work by no later than Fifty Eight (58) calendar days after the Date of
Commencement. Once this concrete pad is completed by Contractor, the mechanical contractor
(i.e., ICOM Mechanical Inc.) and the electrical contractor (i.e., RK Electric) are to start with the
installation of the equipment that is part of their respective scopes of work on the completed pad
It is Owner’s expectation that the total Project (i.e. completion of the scope of Work under this
Agreement, plus completion of the ICOM Mechanical and RK Electric work) will be completed
within One Hundred Nineteen (119) calendar days after the Date of Commencement. Owner
understands that Contractor is not responsible for any delays that are caused by issues or items
within the control of ICOM and RK Electric.
2.3 Contractor agrees that it will fully complete the entire Work within thirty (30)
calendar days of the date Contractor has achieved Substantial Completion of the Work. As used
herein, "Final Completion" means all punch list Work is completed and Contractor has
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submitted all close-out documentation to Owner. Contractor agrees that Owner is not obligated
to release retention under this Agreement until Contractor has achieved Final Completion.
ARTICLE III
COMPENSATION
3.1 Contract Sum. For Contractor's proper and complete performance of the Work
covered under this Agreement, Owner shall pay Contractor a stipulated sum of Six Hundred
Thirty Three Thousand One Hundred Eighty Five Dollars ($633,185) (“Contract Sum”).
This Contract Sum includes the costs associated with Owner’s acceptance of the following
alternates: (1) Special Inspections ($5500); (2) Survey and Staking ($3000); and (3) Gas Meter
Slab ($2685). The Contract Sum is subject to adjustment based on Change Orders authorized by
Owner. The breakdown of this Stipulated Sum is set forth in Exhibit “C” to this Agreement.
3.2 Allowances. Allowances for portions of the Work have been established for
certain budgeted amounts, as set forth in Exhibit "D" to this Agreement. Should the amount
budgeted for an allowance not be sufficient to cover the Work covered by the allowance,
Contractor shall immediately notify Owner. Contractor agrees that it will not incur costs in
excess of the allowance budget amount without first notifying Owner of the overage and Owner
providing its written consent to the overage. Any and all authorized overages will be covered by
a Change Order.
3.3 Alternates. Exhibit “D” also includes alternates for identified extra Work that
Owner may consider for the Contractor’s Work. Should Owner elect to accept any of the
alternates, a Change Order will be executed by Owner and Contractor to add the alternate work
to the scope of Work under this Contract, with an adjustment of the Contract Sum in the amount
of the alternate for the added work. The Alternates include amounts for Contractor’s overhead
and profit and insurance.
3.4 Hourly Rates. Attached as Exhibit 'E" to this Agreement are Contractor's
hourly rates that apply for the Work.
3.5 Change Orders. Contractor's maximum mark-up for overhead and profit for
Work covered by Change Orders is Six Percent (6%). For its Subcontractors, the maximum
mark-up for overhead and profit is Six Percent (6%). The mark-ups referenced herein are for
both additive and deductive change orders.
3.6 Notwithstanding anything to the contrary indicated in this Agreement, no
compensation shall be paid to or claimed by Contractor for Work that is required to correct
deficient Work performed by Contractor.
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ARTICLE IV
PAYMENT
41 Applications for Payment & Lien Waivers. Based upon Owner-approved
Applications for Payment submitted by Contractor, Owner will make monthly progress payments
to Contractor based on the Work performed during the applicable pay period. The period
covered by each Application for Payment shall be one calendar month ending on the last day of
the month. All Applications for Payment must be accompanied by Conditional Waiver and
Release Upon Progress Payment forms executed by Contractor and by its Subcontractors, as well
as Unconditional Waiver and Release Upon Progress Payments executed by Contractor and its
Subcontractors with regard to amounts previously paid by Owner.
42 Retainage. From each Application for Payment, Owner shall be entitled to retain
ten percent (10%) of the value of the Work that has been completed to assure the faithful
performance of the entire Work covered by this Agreement. This retention (less any amounts
Owner is otherwise entitled to withhold pursuant to this Agreement) shall be paid to Contractor
at the time of final payment.
4.3 Final Payment. Final payment shall not be due until the Work hereunder has
been fully and satisfactorily performed (e.g., all punch list has been completed.) Contractor’s
invoice for final payment shall include Conditional Waiver and Release Upon Final Payment
forms executed by Contractor and by its Subcontractors, as well as Unconditional Waiver and
Release Upon Progress Payments executed by Contractor and its Subcontractors with regard to
amounts previously paid by Owner.
44 Liens. Provided that Owner fulfills its payment obligation under Agreement,
Contractor represents and warrants to Owner that all Subcontractors, Suppliers, and Laborers
who have supplied labor and/or materials to Contractor (regardless of tier) have been or will be
paid for their services and materials furnished for the Project. Should any mechanics' liens be
recorded against Owner's property or should Owner receive any stop notice from any of
Contractor's Subcontractors, Suppliers or Laborers (regardless of tier), and provided that Owner
has fulfilled its payment obligation under this Agreement, Contractor agrees to obtain a lien
release bond or stop notice release bond to remove the encumbrance within five (5) calendar
days of Owner's request. Should Contractor fail to secure such bond, Owner is entitled to
withhold payment from Contractor in the amount of One Hundred and Twenty-Five percent
(125%) of the amount of the mechanic’s lien and/or stop notice, until such mechanics’ lien
and/or stop notice is removed. Furthermore, Contractor shall defend Owner in said lawsuit or
other legal proceeding, at Contractor’s own cost and expense (i.e., without reimbursement by
Owner), if any liens are recorded against the Property.
45 Close-Out Documents. Before final payment is due, Contractor shall deliver the
following documents to Owner: (1) all maintenance and operating manuals; (2) marked sets of
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field record drawings reflecting “as-built” conditions; (4) any special guarantees or warranties
required under the scope of Work; and (5) assignments of all guarantees and warranties to Owner
from subcontractors, vendors, suppliers or manufacturers.
ARTICLE V
PERFORMANCE OF THE WORK
5.1 Supervision of the Work. Contractor shall supervise and direct the Work, using
Contractor’s best skill and attention. Contractor shall provide and pay for labor, materials,
equipment, tools, construction equipment and machinery, water, heat, utilities, transportation,
and other facilities and services necessary for the proper execution and completion of the Work,
whether temporary or permanent and whether or not incorporated or to be incorporated in the
Work. Contractor is responsible to Owner for all Work performed by Contractor's
subcontractors and provided by Contractor's suppliers.
5.2 Compliance With Laws and Permits. Owner is responsible for securing and
paying for the building permit for the Work. Contractor shall complete the Work in compliance
with the requirements of the building permit such that Owner may occupy and/or use the Project.
Contractor shall also arrange for all special or other inspections that are needed for the Work, per
the permit requirements. Contractor shall also give all notices required under applicable law, or
by any governmental entity having jurisdiction over the Work. Should Contractor be required to
pay for any permits and/or fees, Owner will directly reimburse Contractor for such costs, with no
retention withheld on such costs.
5.3 Safety. Contractor is an independent contractor to Owner and is not an agent,
employee or servant of Owner. Contractor is responsible for initiating, maintaining, and
supervising all safety precautions and programs in connection with the performance of its Work.
Contractor shall be solely responsible for and have control over its construction means, methods,
techniques, sequences and procedures and for coordinating all portions of the Work under this
Agreement.
5.4 Safeguarding of the Work. Contractor is responsible for safeguarding and
preventing damage to the Work until the Work has been fully completed. Contractor shall
additionally promptly remedy all damage or loss to any property at the Property if such damage
or loss is caused directly or indirectly, in whole or in part, by Contractor, any subcontractor or
anyone directly or indirectly performing the Work.
5.5 Architect
5.5.1 Owner has retained the firm of Minden Midiere & Associates, Associates,
located at 21580 Stevens Creek Blvd, #209A, Cupertino, CA 95014, to serve as the Architect of
Record for the Work. This Architect will assist Owner with the monitoring of Contractor’s
Work under this Agreement.
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5.6 Management Of And Coordination With Owner’s Other Contractors
5.6.1 Owner will be directly contracting with the mechanical contractor (i.e.,
ICOM Mechanical Inc.) and the electrical contractor (i.e., RK Electric), whose work will be a
part of the total Project. Attached as Exhibit “H” to this Agreement identifies the scopes of
work to be performed by each of these two contractors.
5.6.2 As part of its Work under this Agreement, Contractor agrees to manage
these two contractors on Owner’s behalf and agrees to coordinate its Work with the work of
these two contractors. These responsibilities include, but are not limited to, coordinating all of
the contractors’ work (including its own) such that the total installed work is integrated and
functions as a whole. In addition, Contractor shall schedule the two subcontractors’ work so that
the total Project is completed as expeditiously as reasonably possible, including, but not limited
to, the preparation of shop drawings and the monitoring of equipment deliveries to the jobsite.
ARTICLE VI
CHANGES IN THE WORK
6.1 Change Order Required. Owner, without invalidating this Agreement, may
order changes in the Work consisting of additions, deletions or modifications to the scope of
Work indicated in Exhibit "A" of this Agreement, with the compensation terms and contract
time being adjusted accordingly. Such changes in the Work shall be authorized by Change Order
signed by Owner. No extra work or change of any type or degree shall be made unless pursuant
to an Owner-signed Change Order, and no claims for an increase in compensation or adjustment
to the Contract Time shall be valid unless so authorized in writing before the performance ofthe
modified Work.
6.2 Notice of Claim. If Contractor believes that it is entitled to an adjustment of the
compensation terms or Contract Time based on Work requested or required by Owner, or based
on Contractor encountering any site conditions that were unforeseeable and hidden as of the date
of the signing of this Agreement, Contractor must provide a written Notice of Claim to Owner.
This Notice of Claim must be furnished within five (5) calendar days of Contractor learning the
basis for the claim, and in no event may the written notice be furnished after the performance of
the Work that is the subject of Contractor's Claim. Contractor's failure to give a written Notice
of Claim in a timely manner to Owner shall constitute conclusive evidence that Contractor
believes that no adjustment to the compensation terms or Contract Time is warranted for the
claimed Work, and Owner is not obligated to compensate Contractor for any alleged extra work
not so approved by Owner, regardless of whether those services are described in this Agreement
as extra work. Contractor is solely responsible for notifying Owner of any work Contractor
considers to be extra work.
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ARTICLE VII
WARRANTY RE WORK
7A Warranty Regarding the Work. If, within one (1) year after the final
completion of the Work, or within the time period of a special warranty specified in other
portions of this Agreement, any of the Work is found to be not in accordance with the
requirements of this Agreement, Contractor shall, without additional compensation to
Contractor, promptly correct the defective Work after receipt of written notice from Owner.
Contractor shall acknowledge Owner’s notice and visit the jobsite to investigate the warranty
notice within no later than seven (7) calendar days of its receipt of Owner’s notice. The repair
work shall commence promptly after Contractor’s site visit and shall be completed as mutually
agreed upon by Owner and Contractor, which, generally, shall be within thirty (30) days of
Contractor’s site visit (unless exigent circumstances require a faster repair). Should Contractor
fail to timely visit the jobsite and/or complete the warranty Work, Owner shall have the right to
hire another contractor to repair the work, at Contractor's expense. Owner acknowledges that the
timely completion of the warranty work may depend on Contractor’s ability to timely procure
new parts and/or equipment for the repair.
7.2 No Limitation on Other Remedies. Nothing contained in Section 7.1 shall be
construed to establish a time period of limitation with respect to Contractor's obligations to
provide non-defective Work. Establishment of the time period of one (1) year as described in
Section 7.1 relates only to the specific obligation of Contractor to correct the Work. Said time
period has no relationship to the time within which Contractor may be held legally responsible
for its failure to comply with this Agreement, including its responsibility for patent or latent
defects with regard to its Work.
ARTICLE VIII
INDEMNIFICATION & INSURANCE
8.1 Indemnification. To the fullest extent permitted by law, Contractor shall
indemnify and hold harmless Owner (i.e., ReCarbon, Inc.); Landlord (i.e., Resources
Connection LLC (dba Resources Global Professionals)); and each of respective officers,
directors, members, affiliates, shareholders, agents and employees from and against claims,
damages, losses, and expenses, including but not limited to attorneys’ fees, arising out of or
resulting from performance of the Work, provided that such claim, damage, loss, or expense is
attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible
property (other than the Work itself), but only to the extent caused by the negligent acts or
omissions of Contractor, a Subcontractor, anyone directly or indirectly employed by them, or
anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss,
or expense is caused in part by a party indemnified hereunder.
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8.2 Contractor's Insurance. Contractor shall furnish and pay for the insurance
specified in Exhibit "F" hereto. Contractor shall, prior to the commencement of Work, furnish
to Owner a Certificate of Insurance as evidence of the existence of such coverage. Contractor’s
insurance shall be primary as to any insurance maintained by Owner.
8.3 Property Insurance. Owner will be securing a builder's risk property insurance
policy for the Work; a summary of this policy is attached as Exhibit “G”. Owner will pay the
deductibles under the policy, but, if the underlying loss was caused by Contractor’s negligence,
Contractor shall be responsible for payment of the deductible. Exhibit “G” identifies the
amount of deductible(s) under the policy.
8.3.1 Contractor shall be responsible for securing property insurance with
regard to its equipment, tools, and other personal property at the Site.
ARTICLE IX
TERMINATION OF THIS AGREEMENT
9.1 Termination for Convenience. Owner reserves the right to terminate this
Agreement for its convenience, in which event Contractor shall be paid the reasonable cost of
Work properly performed (including earned overhead and profit), but shall not be entitled to
recover lost profits, or incidental and consequential damages. Contractor agrees to immediately
provide Owner with access to all Project records and documents upon any termination for
convenience.
ARTICLE X
ADDITIONAL TERMS
10.1 Landlord
10.1.1 The Landlord for the Project Site is Resources Connection LLC (dba
Resources Global Professionals), whose business address is 701 Armstrong Avenue, Suite 100,
Irvine, CA 92614-5730
10.1.2 The Work under this Agreement shall comply with Landlord’s instructions
relating to the manner in which the work is to be performed and the times during which it is to be
accomplished.
10.1.3 Landlord shall have the right to inspect the Work at all times.
10.2 Exhibits to this Agreement are as follows:
. Exhibit "A" — Scope of Work
. Exhibit "B" — Schedule
. Exhibit "C" — Breakdown of Stipulated Sum
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Short Form Construction Agreement
194315264
Document Ref: TSRGR-VNWWZ-8FCW5-YYTDJ Page 8 of 9
Execution Version (March 16, 2023)
Exhibit “D” — Allowances / Alternates
Exhibit “E” — Hourly Rates
Exhibit "F" -- Contractor's Insurance
Exhibit “G” — Builder’s Risk Insurance
Exhibit "H" — Scopes of Work of ICOM Mechanical and RK Electric
IT IS SO AGREED:
CONTRACTOR OWNER
Tico Construction Inc., a California corporation ReCarbon, Inc., a Delaware corporation
(State License Board Number: 595540)
Gloun Sowa B
Johu Lin
y
Name: John Liu
Name: Glenn Soma
Title: EVP & GC
Title: Project Executive / VP
Contractors are required by law to be licensed and regulated by Contractors State
License Board, which has jurisdiction to investigate complaints against
Contractors if complaint regarding a patent or omission is filed within four (4)
years of the date of the alleged violation. A complaint regarding a latent act or
omission to structural defects must be filed within ten (10) years of the date of the
alleged violation. Any questions concerning Contractor may be referred to the
Registrar, Contractors State License Board, Post Office Box 26000, Sacramento,
CA 95826.
Page 9 of 9
Short Form Construction Agreement
194315264
Document Ref: TSRGR-VNWWZ-8FCW5-YYTDJ Page 9 of 9
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ELECTRONICALLY FILED LEONIDOU & ROSIN Superior Court of California, Professional Corporation A. Robert Rosin (SBN 115245) County of Alameda Timur Bilir (SBN 269919) 03/13/2024 at 04:15:14 PM 777 Cuesta Drive, Suite 200 By: Damaree Franklin, Mountain View, CA 94040 Deputy Clerk Telephone: (650) 691-2888 Facsimile: (650) 691-2889 arrosin@ alr-law.com thilir@ alr-law.com Attomeys for Plaintiff Tico Construction Company, Inc. IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF ALAMEDA 10 11 TICO CONSTRUCTION COMPANY, INC., ) CaseNo.: 24 ORT BSS 12 a corporation, COMPLAINT FOR BREACH OF 13 Plaintiff, WRITTEN CONTRACT, ACCOUNT STATED, COMMON COUNT, AND 14 vs. FORECLOSURE OF MECHANIC’S LIEN 15 RECARBON, INC., a corporation; 16 HUSPP FREMONT BUSINESS CENTER LP, a limited partnership; and [Unlimited Jurisdiction — Amounts Exceeds 17 DOES 1 through 50, inclusive; $25,000] 18 Defendant. 19 20 For its Complaint, Plaintiff Tico Construction Company, Inc., alleges: 21 GENERAL ALLEGATIONS 22 1 At all relevant times, Plaintiff Tico Construction Company, Inc. (“Plaintiff’ or 23 “Tico”) is and has been a California corporation, with its principal office in Santa Clara County, 24 and a contractor duly licensed by the California State Contractors License Board to perform the 25 work that is referred to in this complaint. 26 2 At all relevant times, Defendant Huspp Fremont Business Center LP (“Huspp”) is 27 and has been the purported owner of a private work of improvement located at 47825 Warm 28 1 COMPLAINT FOR BREACH OF WRITTEN CONTRACT, ACCOUNT STATED, COMMON COUNT, AND FORECLOSURE OF MECHANIC’S LIEN S:\ALRDOCS\30879\2\00278313.DOCX Springs Boulevard, Fremont, CA 94539 (the “Project”) and a limited partnership purporting to be organized and existing under Delaware law. 3 At all relevant times, defendant ReCarbon, Inc. (“ReCarbon”) is and has been a purported corporation, which purports to be organized and exist under Delaware law, and the purported lessee of a private work of improvement located at 47825 Warm Springs Boulevard, Fremont, CA 94539. 4 Plaintiff is ignorant of the true names and capacities of the defendants sued herein as Does 1 through 50. Plaintiff therefore sues these defendants by fictitious names and will amend this complaint when such defendants’ true names and capacities are ascertained. 10 FIRST CAUSE OF ACTION 11 (reach of Written C ontract — ReC arbon and Does 1-25) 12 5. Plaintiff refers to and incorporates as though fully set forth herein each of the 13 foregoing paragraphs. 14 6 On or about March 16, 2023, ReCarbon and Does 1 through 25 (collectively the 15 “ReCarbon Defendants”) and Plaintiff entered into a written agreement (the “Contract”) pursuant 16 to which Plaintiff was to provide construction work and services to the ReCarbon Defendants for 17 a private work of improvement known as Tenant Improvements (Phase II) -- ReCarbon New 18 Service Y ard and located at 47825 Warm Springs Boulevard, Fremont, CA 94539, Assessor’s ID 19 No: 519-1681-19-6; 519-1681-18-3; 519-1681-20-3; and 519-1681-21-1 (the “Project”). The 20 Contract also incorporated Plaintiffs standard terms and conditions which to avoid prolixity are 21 not attached. A true and correct copy of the Contract is attached hereto and incorporated herein 22 as ExhibitA. 23 7 Plaintiff's work on the Project consisted of furnishing and installing a new 24 concrete pad for mechanical and electrical equipment, a new trash enclosure, a new fence, and 25 related improvements for a new service yard. 26 8 The Contract provided that Plaintiff would be paid for its labor, services, 27 equipment, and material. 28 9 Plaintiff provided all labor, service, equipment, and material required by the 2 COMPLAINT FOR BREACH OF WRITTEN CONTRACT, ACCOUNT STATED, COMMON COUNT, AND FORECLOSURE OF MECHANIC’S LIEN S:\ALRDOCS\30879\2\00278313.DOCX Contract, and performed all other conditions, covenants, and promises required on its part under the Contract, except those that it was prevented or otherwise was excused from performing. 10. Within the last year, the ReCarbon Defendants breached the Contract by failing to pay all other sums due and owing to Plaintiff. 11. As a direct and proximate result of the ReCarbon Defendants’ breach of the Contract, Plaintiff has incurred damages in the principal amount of not less than $450,375.51, plus interest. WHEREFORE, Plaintiff prays for judgment as hereinafter set forth. SECOND CAUSE OF ACTION 10 (Account Stated — ReC arbon and Does 1-25) 11 12. Plaintiff refers to and incorporates as though fully set forth herein each of the 12 foregoing paragraphs. 13 13. Within the last year, in Alameda County, California, an account was stated in 14 writing by and between Plaintiff on the one hand and ReCarbon Defendants on the other hand. 15 On such account the principal balance of at least $450,375.51 was found to be due to Plaintiff. 16 The ReCarbon Defendants agreed to pay Plaintiff this balance in Fremont, California. 17 14. Although demanded by Plaintiff from the ReCarbon Defendants, no part of the 18 agreed balance has been paid. There is now due, owing, and unpaid from the ReCarbon 19 Defendants to Plaintiff the principal sum of at least $450,375.51, of which the same total 20 principal amount remains due, owing, and unpaid by ReCarbon Defendants to Plaintiff, together 21 with interest at the legal prevailing rate from the time such payments became due. 22 WHEREFORE, Plaintiff prays for judgment as hereinafter set forth. 23 THIRD CAUSE OF ACTION 24 (Common Count — ReCarbon and Does 1-25) 25 15. Plaintiff refers to and incorporates as though fully set forth herein each of the 26 foregoing paragraphs. 27 16. Within the last year, Plaintiff provided labor, service, equipment, and material to 28 the ReCarbon Defendants at their special instance and request, for which the ReCarbon 3 COMPLAINT FOR BREACH OF WRITTEN CONTRACT, ACCOUNT STATED, COMMON COUNT, AND FORECLOSURE OF MECHANIC’S LIEN S:\ALRDOCS\30879\2\00278313.DOCX Defendants agreed to pay Plaintiff the reasonable value thereof. 17. Notwithstanding Plaintiffs demands for payment, there is now due, owing, and unpaid from the ReCarbon Defendants the sum of $450,375.51 plus interest. WHEREFORE, Plaintiff prays for judgment as hereinafter set forth. FOURTH CAUSE OF ACTION (Foreclosure of Mechanic’s Lien — ReCarbon, Huspp, and Does 1-50) 18. Plaintiff refers to and incorporates as though fully set forth herein each of the foregoing paragraphs. 19. Pursuant to the Contract, Plaintiff provided labor, equipment, materials, and 10 related services which were used and incorporated into the Project, which was a work of 11 improvement. 12 20. The ReCarbon Defendants reputedly are the lessees of the Project. Huspp and 13 Does 26-50 (the “Huspp Defendants”) are the reputed owners of the Project. Plaintiff is 14 informed and believes and thereon alleges that at all relevant times that the ReCarbon 15 Defendants and the Huspp Defendants have, or claim to have, some right, title or interest in the 16 real property and improvements located at the Project. 17 21. On or about March 13, 2023, Plaintiff duly served written preliminary notices, by 18 certified mail return receipt requested, on the ReCarbon Defendants and the Huspp Defendants. 19 The contents and method of service of the preliminary notice complied with applicable law, 20 including without limitation, Sections 8100-8110 and 8200-8204 of the Civil Code. The 21 preliminary notice included a general description of Plaintiff's work, an estimate of the total 22 price of the work provided and to be provided, and included the language set forth at Section 23 8202(a)(3) of the Civil Code. Plaintiff has provided all notices required by the California Civil 24 Code. 25 22. After Plaintiff completed furnishing labor, service, equipment, and material, and 26 on or about on December 15, 2023, Plaintiff recorded in the official records of Alameda County, 27 California, a mechanic’s lien, instrument number 2023146735, in the amount of $450,375.51 28 (the “Mechanic’s Lien”). Before recording the Mechanic’s Lien, Plaintiff timely served on the 4 COMPLAINT FOR BREACH OF WRITTEN CONTRACT, ACCOUNT STATED, COMMON COUNT, AND FORECLOSURE OF MECHANIC’S LIEN S:\ALRDOCS\30879\2\00278313.DOCX ReCarbon Defendants and the Huspp Defendants a Notice of Mechanic’s Lien, together with an executed proof of service affidavit. A true and correct copy of the Mechanic’s Lien that Plaintiff recorded, and of the related Notice of Mechanic’s Lien that Plaintiff served, is attached hereto as Exhibit B and is incorporated herein by reference. 23. The Mechanic’s Lien was recorded within the time prescribed by the California Civil Code. 24. There remains due and owing to Plaintiff a sum that is not less than $450,375.51 for labor, service, equipment, and material for the Project. WHEREFORE, Plaintiff prays for judgment as hereinafter set forth. 10 PRAYER FOR RELIEF 11 WHEREFORE, Plaintiff Tico Construction Company, Inc. prays for judgment as set 12 forth below: 13 On the First and Third Causes of Action (against ReCarbon and Does 1-25): 14 1 For damages in the principal sum of $450,375.51 and subject to proof at trial; 15 On the Second Cause of Action (against ReCarbon and Does 1-25): 16 2 For damages in the principal sum of $450,375.51 and subject to proof at trial; 17 3 For attorneys’ fees pursuant to statute; 18 On the Fourth Cause of Action (against ReCarbon, Huspp, and Does 1-50): 19 4 For a judgment: 20 a. Declaring that the rights, claims, ownership, liens, title or demands of 21 defendants, and each of them, in the above-described real property be 22 subject to and subordinate to the Mechanic’s Lien; 23 Ordering that the Mechanic’s Lien be foreclosed and the usual judgment be 24 made for the sale of the property, according to law, by a commissioner to 25 be appointed by the Court; 26 Ordering that the proceeds of the sale be applied to the payment in the 27 amounts due, including interest thereon, through the date of entry of 28 judgment due Plaintiff; and 5 COMPLAINT FOR BREACH OF WRITTEN CONTRACT, ACCOUNT STATED, COMMON COUNT, AND FORECLOSURE OF MECHANIC’S LIEN S:\ALRDOCS\30879\2\00278313.DOCX Declaring that the title of each of the defendants, and all persons claiming under them, be adjudged subsequent to the Mechanic’s Lien, whether the defendants claim an interest as lien claimants, judgment creditors, purchasers, encumbrancers, or otherwise, and that they be barred and foreclosed from all rights, claims, interest, or equity in redemption in the Property or on any part thereof after the time for redemption has passed; On All Causes of Action Against All Defendants: 5 For prejudgment interest at the prevailing legal rate; 6. For costs of suit incurred herein; and 7 10 For such other and further reliefas the Court may deem just and proper. 11 Dated: March 13, 2024 LEONIDOU & ROSIN Professional Corporation 12 13 By 14 A. Robert Rosin Timur Bilir 15 Attorneys for Plaintiff Tico Construction Company, Inc. 16 17 18 19 20 21 22 23 24 25 26 27 28 6 COMPLAINT FOR BREACH OF WRITTEN CONTRACT, ACCOUNT STATED, COMMON COUNT, AND FORECLOSURE OF MECHANIC’S LIEN S:\ALRDOCS\30879\2\00278313.DOCX EXHIBIT A Execution Version (March 16, 2023) SHORT FORM CONSTRUCTION AGREEMENT THIS SHORT FORM CONSTRUCTION AGREEMENT ("Agreement") is made as of the 16th day of March in the year of 2023, between Owner: ReCarbon, Inc., a Delaware corporation 3979 Freedom Circle, Suite 230 Santa Clara, CA 95054 Attn: John Liu, EVP Strategic Planning & General Counsel Phone: 1.408.980.4700 and Contractor: Tico Construction Inc., a California corporation (State License Board Number: 595540) 1585 Terminal Avenue San Jose, CA 95112-4316 Attn: Glenn Soma, Project Executive Phone: 1.408.892.8018 for the following Project: Tenant Improvements (Phase II) -- ReCarbon New Service Yard to be performed at 47825 Warm Springs Blvd. Fremont CA 94539 with the following as Lender: Not Applicable Owner and Contractor agree as set forth below: ARTICLE I THE WORK OF THIS AGREEMENT 1.1 Scope of Work. In general, the scope of Work under this Agreement consists of the following construction work: concrete pad for mechanical/electrical equipment, trash enclosure, new fence, and related improvements for a new service yard (generally referred to in this Agreement as the “Work”). Exhibit "A" to this Agreement provides a more detailed Page | of 9 Short Form Construction Agreement 194315264 Document Ref: TSRGR-VNWWZ-8FCW5-YYTDJ Page 1 of 9 Execution Version (March 16, 2023) description of the Work to be performed by Contractor; however, it is understood and agreed that Contractor is to not perform the mechanical and electrical work indicated in Exhibit “A”, which is to be performed by others (as described in Section 5.6 of this Agreement). To the extent any terms of Exhibit "A" conflict with this Agreement, the provisions of this Agreement shall take precedence. 1.2 Contractor's Work shall be performed in a workmanlike manner that meets or exceeds industry standards, and the Work shall comply with, at a minimum, the requirements of applicable laws, building codes and permits. ARTICLE II DATE OF COMMENCEMENT AND CONTRACT TIME 21 Commencement of the Work. The Date of Commencement of Contractor’s Work shall be the date as noted in the Notice to Proceed, which will be issued by Owner after the execution of this Agreement. It is anticipated that the Date of Commencement will be approximately March 15, 2023. 2.2 Contract Time. Contractor agrees that it will achieve Substantial Completion of the Work (as described herein) by no later than Eighty Five (85) calendar days after the Date of Commencement. This period of time, as may be adjusted by Change Orders authorized by Owner, is hereby defined as the “Contract Time”. Attached as Exh "B" is Contractor's schedule for the Work. As used herein, the Work has achieved Substantial Completion when the applicable governmental authority has signed-off on the Work. In general, only minor “punch list” work shall be outstanding as of the date Contractor has achieved Substantial completion of the Work. 2.2.1 Interim Contract Milestone. Contractor agrees to complete the concrete pad portion of the Work by no later than Fifty Eight (58) calendar days after the Date of Commencement. Once this concrete pad is completed by Contractor, the mechanical contractor (i.e., ICOM Mechanical Inc.) and the electrical contractor (i.e., RK Electric) are to start with the installation of the equipment that is part of their respective scopes of work on the completed pad It is Owner’s expectation that the total Project (i.e. completion of the scope of Work under this Agreement, plus completion of the ICOM Mechanical and RK Electric work) will be completed within One Hundred Nineteen (119) calendar days after the Date of Commencement. Owner understands that Contractor is not responsible for any delays that are caused by issues or items within the control of ICOM and RK Electric. 2.3 Contractor agrees that it will fully complete the entire Work within thirty (30) calendar days of the date Contractor has achieved Substantial Completion of the Work. As used herein, "Final Completion" means all punch list Work is completed and Contractor has Page 2 of 9 Short Form Construction Agreement 194315264 Document Ref: TSRGR-VNWWZ-8FCW5-YYTDJ Page 2 of 9 Execution Version (March 16, 2023) submitted all close-out documentation to Owner. Contractor agrees that Owner is not obligated to release retention under this Agreement until Contractor has achieved Final Completion. ARTICLE III COMPENSATION 3.1 Contract Sum. For Contractor's proper and complete performance of the Work covered under this Agreement, Owner shall pay Contractor a stipulated sum of Six Hundred Thirty Three Thousand One Hundred Eighty Five Dollars ($633,185) (“Contract Sum”). This Contract Sum includes the costs associated with Owner’s acceptance of the following alternates: (1) Special Inspections ($5500); (2) Survey and Staking ($3000); and (3) Gas Meter Slab ($2685). The Contract Sum is subject to adjustment based on Change Orders authorized by Owner. The breakdown of this Stipulated Sum is set forth in Exhibit “C” to this Agreement. 3.2 Allowances. Allowances for portions of the Work have been established for certain budgeted amounts, as set forth in Exhibit "D" to this Agreement. Should the amount budgeted for an allowance not be sufficient to cover the Work covered by the allowance, Contractor shall immediately notify Owner. Contractor agrees that it will not incur costs in excess of the allowance budget amount without first notifying Owner of the overage and Owner providing its written consent to the overage. Any and all authorized overages will be covered by a Change Order. 3.3 Alternates. Exhibit “D” also includes alternates for identified extra Work that Owner may consider for the Contractor’s Work. Should Owner elect to accept any of the alternates, a Change Order will be executed by Owner and Contractor to add the alternate work to the scope of Work under this Contract, with an adjustment of the Contract Sum in the amount of the alternate for the added work. The Alternates include amounts for Contractor’s overhead and profit and insurance. 3.4 Hourly Rates. Attached as Exhibit 'E" to this Agreement are Contractor's hourly rates that apply for the Work. 3.5 Change Orders. Contractor's maximum mark-up for overhead and profit for Work covered by Change Orders is Six Percent (6%). For its Subcontractors, the maximum mark-up for overhead and profit is Six Percent (6%). The mark-ups referenced herein are for both additive and deductive change orders. 3.6 Notwithstanding anything to the contrary indicated in this Agreement, no compensation shall be paid to or claimed by Contractor for Work that is required to correct deficient Work performed by Contractor. Page 3 of 9 Short Form Construction Agreement 194315264 Document Ref: TSRGR-VNWWZ-8FCW5-YYTDJ Page 3 of 9 Execution Version (March 16, 2023) ARTICLE IV PAYMENT 41 Applications for Payment & Lien Waivers. Based upon Owner-approved Applications for Payment submitted by Contractor, Owner will make monthly progress payments to Contractor based on the Work performed during the applicable pay period. The period covered by each Application for Payment shall be one calendar month ending on the last day of the month. All Applications for Payment must be accompanied by Conditional Waiver and Release Upon Progress Payment forms executed by Contractor and by its Subcontractors, as well as Unconditional Waiver and Release Upon Progress Payments executed by Contractor and its Subcontractors with regard to amounts previously paid by Owner. 42 Retainage. From each Application for Payment, Owner shall be entitled to retain ten percent (10%) of the value of the Work that has been completed to assure the faithful performance of the entire Work covered by this Agreement. This retention (less any amounts Owner is otherwise entitled to withhold pursuant to this Agreement) shall be paid to Contractor at the time of final payment. 4.3 Final Payment. Final payment shall not be due until the Work hereunder has been fully and satisfactorily performed (e.g., all punch list has been completed.) Contractor’s invoice for final payment shall include Conditional Waiver and Release Upon Final Payment forms executed by Contractor and by its Subcontractors, as well as Unconditional Waiver and Release Upon Progress Payments executed by Contractor and its Subcontractors with regard to amounts previously paid by Owner. 44 Liens. Provided that Owner fulfills its payment obligation under Agreement, Contractor represents and warrants to Owner that all Subcontractors, Suppliers, and Laborers who have supplied labor and/or materials to Contractor (regardless of tier) have been or will be paid for their services and materials furnished for the Project. Should any mechanics' liens be recorded against Owner's property or should Owner receive any stop notice from any of Contractor's Subcontractors, Suppliers or Laborers (regardless of tier), and provided that Owner has fulfilled its payment obligation under this Agreement, Contractor agrees to obtain a lien release bond or stop notice release bond to remove the encumbrance within five (5) calendar days of Owner's request. Should Contractor fail to secure such bond, Owner is entitled to withhold payment from Contractor in the amount of One Hundred and Twenty-Five percent (125%) of the amount of the mechanic’s lien and/or stop notice, until such mechanics’ lien and/or stop notice is removed. Furthermore, Contractor shall defend Owner in said lawsuit or other legal proceeding, at Contractor’s own cost and expense (i.e., without reimbursement by Owner), if any liens are recorded against the Property. 45 Close-Out Documents. Before final payment is due, Contractor shall deliver the following documents to Owner: (1) all maintenance and operating manuals; (2) marked sets of Page 4 of 9 Short Form Construction Agreement 194315264 Document Ref: TSRGR-VNWWZ-8FCW5-YYTDJ Page 4 of 9 Execution Version (March 16, 2023) field record drawings reflecting “as-built” conditions; (4) any special guarantees or warranties required under the scope of Work; and (5) assignments of all guarantees and warranties to Owner from subcontractors, vendors, suppliers or manufacturers. ARTICLE V PERFORMANCE OF THE WORK 5.1 Supervision of the Work. Contractor shall supervise and direct the Work, using Contractor’s best skill and attention. Contractor shall provide and pay for labor, materials, equipment, tools, construction equipment and machinery, water, heat, utilities, transportation, and other facilities and services necessary for the proper execution and completion of the Work, whether temporary or permanent and whether or not incorporated or to be incorporated in the Work. Contractor is responsible to Owner for all Work performed by Contractor's subcontractors and provided by Contractor's suppliers. 5.2 Compliance With Laws and Permits. Owner is responsible for securing and paying for the building permit for the Work. Contractor shall complete the Work in compliance with the requirements of the building permit such that Owner may occupy and/or use the Project. Contractor shall also arrange for all special or other inspections that are needed for the Work, per the permit requirements. Contractor shall also give all notices required under applicable law, or by any governmental entity having jurisdiction over the Work. Should Contractor be required to pay for any permits and/or fees, Owner will directly reimburse Contractor for such costs, with no retention withheld on such costs. 5.3 Safety. Contractor is an independent contractor to Owner and is not an agent, employee or servant of Owner. Contractor is responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with the performance of its Work. Contractor shall be solely responsible for and have control over its construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under this Agreement. 5.4 Safeguarding of the Work. Contractor is responsible for safeguarding and preventing damage to the Work until the Work has been fully completed. Contractor shall additionally promptly remedy all damage or loss to any property at the Property if such damage or loss is caused directly or indirectly, in whole or in part, by Contractor, any subcontractor or anyone directly or indirectly performing the Work. 5.5 Architect 5.5.1 Owner has retained the firm of Minden Midiere & Associates, Associates, located at 21580 Stevens Creek Blvd, #209A, Cupertino, CA 95014, to serve as the Architect of Record for the Work. This Architect will assist Owner with the monitoring of Contractor’s Work under this Agreement. Page 5 of 9 Short Form Construction Agreement 194315264 Document Ref: TSRGR-VNWWZ-8FCW5-YYTDJ Page 5 of 9 Execution Version (March 16, 2023) 5.6 Management Of And Coordination With Owner’s Other Contractors 5.6.1 Owner will be directly contracting with the mechanical contractor (i.e., ICOM Mechanical Inc.) and the electrical contractor (i.e., RK Electric), whose work will be a part of the total Project. Attached as Exhibit “H” to this Agreement identifies the scopes of work to be performed by each of these two contractors. 5.6.2 As part of its Work under this Agreement, Contractor agrees to manage these two contractors on Owner’s behalf and agrees to coordinate its Work with the work of these two contractors. These responsibilities include, but are not limited to, coordinating all of the contractors’ work (including its own) such that the total installed work is integrated and functions as a whole. In addition, Contractor shall schedule the two subcontractors’ work so that the total Project is completed as expeditiously as reasonably possible, including, but not limited to, the preparation of shop drawings and the monitoring of equipment deliveries to the jobsite. ARTICLE VI CHANGES IN THE WORK 6.1 Change Order Required. Owner, without invalidating this Agreement, may order changes in the Work consisting of additions, deletions or modifications to the scope of Work indicated in Exhibit "A" of this Agreement, with the compensation terms and contract time being adjusted accordingly. Such changes in the Work shall be authorized by Change Order signed by Owner. No extra work or change of any type or degree shall be made unless pursuant to an Owner-signed Change Order, and no claims for an increase in compensation or adjustment to the Contract Time shall be valid unless so authorized in writing before the performance ofthe modified Work. 6.2 Notice of Claim. If Contractor believes that it is entitled to an adjustment of the compensation terms or Contract Time based on Work requested or required by Owner, or based on Contractor encountering any site conditions that were unforeseeable and hidden as of the date of the signing of this Agreement, Contractor must provide a written Notice of Claim to Owner. This Notice of Claim must be furnished within five (5) calendar days of Contractor learning the basis for the claim, and in no event may the written notice be furnished after the performance of the Work that is the subject of Contractor's Claim. Contractor's failure to give a written Notice of Claim in a timely manner to Owner shall constitute conclusive evidence that Contractor believes that no adjustment to the compensation terms or Contract Time is warranted for the claimed Work, and Owner is not obligated to compensate Contractor for any alleged extra work not so approved by Owner, regardless of whether those services are described in this Agreement as extra work. Contractor is solely responsible for notifying Owner of any work Contractor considers to be extra work. Page 6 of 9 Short Form Construction Agreement 194315264 Document Ref: TSRGR-VNWWZ-8FCW5-YYTDJ Page 6 of 9 Execution Version (March 16, 2023) ARTICLE VII WARRANTY RE WORK 7A Warranty Regarding the Work. If, within one (1) year after the final completion of the Work, or within the time period of a special warranty specified in other portions of this Agreement, any of the Work is found to be not in accordance with the requirements of this Agreement, Contractor shall, without additional compensation to Contractor, promptly correct the defective Work after receipt of written notice from Owner. Contractor shall acknowledge Owner’s notice and visit the jobsite to investigate the warranty notice within no later than seven (7) calendar days of its receipt of Owner’s notice. The repair work shall commence promptly after Contractor’s site visit and shall be completed as mutually agreed upon by Owner and Contractor, which, generally, shall be within thirty (30) days of Contractor’s site visit (unless exigent circumstances require a faster repair). Should Contractor fail to timely visit the jobsite and/or complete the warranty Work, Owner shall have the right to hire another contractor to repair the work, at Contractor's expense. Owner acknowledges that the timely completion of the warranty work may depend on Contractor’s ability to timely procure new parts and/or equipment for the repair. 7.2 No Limitation on Other Remedies. Nothing contained in Section 7.1 shall be construed to establish a time period of limitation with respect to Contractor's obligations to provide non-defective Work. Establishment of the time period of one (1) year as described in Section 7.1 relates only to the specific obligation of Contractor to correct the Work. Said time period has no relationship to the time within which Contractor may be held legally responsible for its failure to comply with this Agreement, including its responsibility for patent or latent defects with regard to its Work. ARTICLE VIII INDEMNIFICATION & INSURANCE 8.1 Indemnification. To the fullest extent permitted by law, Contractor shall indemnify and hold harmless Owner (i.e., ReCarbon, Inc.); Landlord (i.e., Resources Connection LLC (dba Resources Global Professionals)); and each of respective officers, directors, members, affiliates, shareholders, agents and employees from and against claims, damages, losses, and expenses, including but not limited to attorneys’ fees, arising out of or resulting from performance of the Work, provided that such claim, damage, loss, or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself), but only to the extent caused by the negligent acts or omissions of Contractor, a Subcontractor, anyone directly or indirectly employed by them, or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss, or expense is caused in part by a party indemnified hereunder. Page 7 of 9 Short Form Construction Agreement 194315264 Document Ref: TSRGR-VNWWZ-8FCW5-YYTDJ Page 7 of 9 Execution Version (March 16, 2023) 8.2 Contractor's Insurance. Contractor shall furnish and pay for the insurance specified in Exhibit "F" hereto. Contractor shall, prior to the commencement of Work, furnish to Owner a Certificate of Insurance as evidence of the existence of such coverage. Contractor’s insurance shall be primary as to any insurance maintained by Owner. 8.3 Property Insurance. Owner will be securing a builder's risk property insurance policy for the Work; a summary of this policy is attached as Exhibit “G”. Owner will pay the deductibles under the policy, but, if the underlying loss was caused by Contractor’s negligence, Contractor shall be responsible for payment of the deductible. Exhibit “G” identifies the amount of deductible(s) under the policy. 8.3.1 Contractor shall be responsible for securing property insurance with regard to its equipment, tools, and other personal property at the Site. ARTICLE IX TERMINATION OF THIS AGREEMENT 9.1 Termination for Convenience. Owner reserves the right to terminate this Agreement for its convenience, in which event Contractor shall be paid the reasonable cost of Work properly performed (including earned overhead and profit), but shall not be entitled to recover lost profits, or incidental and consequential damages. Contractor agrees to immediately provide Owner with access to all Project records and documents upon any termination for convenience. ARTICLE X ADDITIONAL TERMS 10.1 Landlord 10.1.1 The Landlord for the Project Site is Resources Connection LLC (dba Resources Global Professionals), whose business address is 701 Armstrong Avenue, Suite 100, Irvine, CA 92614-5730 10.1.2 The Work under this Agreement shall comply with Landlord’s instructions relating to the manner in which the work is to be performed and the times during which it is to be accomplished. 10.1.3 Landlord shall have the right to inspect the Work at all times. 10.2 Exhibits to this Agreement are as follows: . Exhibit "A" — Scope of Work . Exhibit "B" — Schedule . Exhibit "C" — Breakdown of Stipulated Sum Page 8 of 9 Short Form Construction Agreement 194315264 Document Ref: TSRGR-VNWWZ-8FCW5-YYTDJ Page 8 of 9 Execution Version (March 16, 2023) Exhibit “D” — Allowances / Alternates Exhibit “E” — Hourly Rates Exhibit "F" -- Contractor's Insurance Exhibit “G” — Builder’s Risk Insurance Exhibit "H" — Scopes of Work of ICOM Mechanical and RK Electric IT IS SO AGREED: CONTRACTOR OWNER Tico Construction Inc., a California corporation ReCarbon, Inc., a Delaware corporation (State License Board Number: 595540) Gloun Sowa B Johu Lin y Name: John Liu Name: Glenn Soma Title: EVP & GC Title: Project Executive / VP Contractors are required by law to be licensed and regulated by Contractors State License Board, which has jurisdiction to investigate complaints against Contractors if complaint regarding a patent or omission is filed within four (4) years of the date of the alleged violation. A complaint regarding a latent act or omission to structural defects must be filed within ten (10) years of the date of the alleged violation. Any questions concerning Contractor may be referred to the Registrar, Contractors State License Board, Post Office Box 26000, Sacramento, CA 95826. Page 9 of 9 Short Form Construction Agreement 194315264 Document Ref: TSRGR-VNWWZ-8FCW5-YYTDJ Page 9 of 9 Roser BRS See eT Sa SSS SOSos = <> = BOSSBERRI SS Oe3 = $ gS =eS So= =<3= 2 O55 Oe Ses Sets oa = So = SOSH SSS $3 2535 55533BERENSSoS SSeSSSIS BRS3 SSIS SSS =$338BS s SS BSS See SEES RSS $2535 ose SO % KSoT RRR $35903035< $3903sos< oe SoS sess 33 Ss ceases oORo RH OS BN ASS RS} Bx ROY RS RSX Ry RF BOX ex) KY Reo Ox RHxy Ry RRS ee Re2x Ree OR) RH eH Ri RR BS SS KY Signature Certificate RS RS Ree