Preview
ELECTRONICALLY FILED
Superior Court of California
County of Santa Barbara
Raymond A. Myer (SB# 109202) Darrel E. Parker, Executive Officer
Ariana A. Vugrek (SB# 263035) 10/29/2020
10/29/2020 11:57 AM
MYER LAW, RC. By: .
Terri
Tam
-
Chavez, Deputy
100 West Arrellaga Street By.
Santa Barbara, CA 93101
Telephone (805) 962—0083
Facsimile (805) 962-2372
Attorneys for PlaintiflBELOWAMGID C ONS TR UCTION COMPANY
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SUPERIOR COURT FOR THE STATE OF CALIFORNIA
COUNTY OF SANTA BARBARA, ANACAPA DIVISION
BELOW MAGID CONSTRUCTION) Case Number: 20CV03559
200V03559
COMPANY, a California corporation, )
) COMPLAINT FOR..
Plaintiff, )
) (1) BREACH OF CONTRACT;
v. ) (2) OPEN BOOK ACCOUNT;
) (3) QUANTUM MERUIT;
JEREMY BASSAN, an individual; 1081 ) (4) FORECLOSURE OF
ALSTON ROAD, LLC, a California limited ) MECHANICS LIEN; and
liability company; and DOES 1through 100, ) (5) ACTION TO ENFORCE
inclusive, ) MECHANICS LIEN RELEASE
BOND
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)
Defendants. )
)
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COMES NOW Plaintiff BELOW MAGID CONSTRUCTION COMPANY, and alleges
as follows:
PRELIMINARY ALLEGATIONS
1. Plaintiff BELOW MAGID CONSTRUCTION COMPANY (“BELOW MAGID”
is, and at all times mentioned in this Complaint was, a California corporation duly licensed
pursuant to the laws of the State of CaliforniaAto engage in the construction trade in this Judicial
District.
2. Defendant JEREMY BASSAN (“BASSAN”) is,and at all time mentioned in this
Complaint was, an individual who entered into a contract with BELOW MAGID to be
performed in this Judicial District.
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1
COMPLAINT FOR BREACH OF CONTRACT, ETC.
3. Defendants 1081 ALSTON ROAD, LLC, a California limited liability company
(“1081 ALSTON”), and DOES 11 through 90, inclusive, are, and at all times herein mentioned
were, the owners or reputed owners of or persons and/or entities who claim some right, title or
interest in and to a parcel of real property and work of improvement commonly described as
1081 Alston Road, County of Santa Barbara,
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State of California (the “Property”).
4. The true names and capacities, whether corporate, individual, associate, or
otherwise, of Defendants DOES 1 through 100, inclusive, and each of them, are unknown to
BELOW MAGID, who therefore sues said Defendants by such fictitious names. BELOW
MAGID is informed and believes and thereon alleges that each Defendant named herein as a
DOE is responsible in some manner for the matters and things herein described. BELOW
MAGID will ask leave of court to amend its Complaint to ShOW their true names and capacities
when the same have been ascertained.
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1.
FIRST CAUSE OF ACTION
(Breach of Contract against BASSAN and DOES 1-10, inclusive)
14 5. BELOW MAGID alleges and re-alleges and incorporates by this reference each
15 and every allegation contained in the Preliminary Allegations as though fully set forth herein.
16 6. On or about October 10, 2019, BELOW MAGID entered into a written contract
(“Contract”) with BASSAN and DOES 1 through 10, inclusive, for construction of
17
improvements (the “Work”) at the Property (the “Project”). A true and correct copy of the
18
Contract is attached to this Complaint as Exhibit “A” and incorporated herein by this reference.
19 L
7. Between November 15, 2019 and March 25, 2020, BELOW MAGID, BASSAN
20
and DOES 1 through 10, inclusive, entered into a series of modifications of the Contract
21
(“Change Orders”) whereby BELOW MAGID agreed to furnish additional labor, services,
22 materials and equipment for the Project “Additional Work”) to BASSAN and DOES
(the 1
23 through 10, inclusive. A true and correct copy of an Accounting Summary identifying the
24 Change Orders is attached to this Complaint as Exhibit “B” and incorporated herein by this
25 reference.
26 8. BASSAN and DOES 1 through 10, inclusive, agreed to pay BELOW MAGID the
27
total sum of $470,958.65 for the Work and the Additional Work, in accordance with the terms
set forth in the Contract as modified by the Change Orders.
28
2
COMPLAINT FOR BREACH OF CONTRACT, ETC.
9. On or about May 1, 2020, BASSAN and DOES 1 through 10, inclusive, breached
the Contract entered into with BELOW MAGID, as aforesaid, when payment for a BELOW
MAGID invoice became due. Notwithstanding BELOW MAGID’s demand, BASSAN and
DOES 1 through 10, inclusive, failed and refused to pay BELOW MAGID the full amounts
owed pursuant to the Contract and the Change Orders for the Work and the Additional Work
There
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is now due, owing and unpaid from BASSAN and DOES 1 through 10, inclusive, to
BELOW MAGID the principal sum of $140,198.69.
10. Paragraph 5 of the Contract provides that payment is due upon presentation of
installment invoices, and interest shall be charged on the installment amount at the rate of 18%
per annum commencing thiny (30) days from presentation of the invoice.
11. Paragraph 11 of the Contract provides that if either party brings suit in court to
enforce the terms thereof, any judgment obtained by the successful party shall include court costs
and attorney fees. BELOW MAGID has retained the law offices of Myer Law, P.C. enforce all
of BELOW MAGID’S rights pursuant to the Contract as modified by the Change Orders.
11.
SECOND CAUSE OF ACTION
(Open Book Account Against BASSAN and DOES 1 through 10, inclusive)
12. BELOW MAGID alleges and realleges and incorporates by this reference each
and every allegation contained in the Preliminary Allegations and the First Cause of Action as
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though fully set forth herein.
13. Within the four (4) year period immediately last past, Defendants BASSAN and
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DOES 1 through 10, inclusive, became indebted to BELOW MAGID on an open book account
for the labor, services, materials and equipment described in paragraphs 6 and 7 herein furnished
by BELOW MAGID for and at the Project to said Defendants at the special instance and request
of said Defendants for the sum of $470,958.65.
14. Only the sum of $330,759.96 has been paid or credited despite demand made by
BELOW MAGID to BASSAN and DOES 1 through 10, inclusive, and there is now due, owing
and unpaid to BELOW MAGID the principal sum of $140,198.69 with interest thereon at the
maximum rate allowed by law from and after May 31, 2020.
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.,
J
COMPLAINT FOR BREACH OF CONTRACT, ETC.
CAUISIIIS.
THIRD OF ACTION
IQ (Quantum Meruit Against BASSAN and DOES 1 through 10, inclusive)
15. BELOW MAGID alleges and realleges and incorporates by this reference each
and every allegation contained in the Preliminary Allegations and the First Cause of Action as
though fully set forth herein.
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16. Within the two (2) year period immediately last past, BELOW MAGID provided
the labor, services, materials and equipment described in paragraphs 6 and 7 herein to
Defendants BASSAN and DOES 1 through 10, inclusive, at the special request of said
Defendants, for which said Defendants then and there promised to pay BELOW MAGID the
reasonable value of said labor, services, materials and equipment.
10
17. At all times mentioned in this Complaint, the labor, services, materials and
11
equipment described in paragraphs 6 and 7 herein were and are of the reasonable value of
12
$470,958.65.
13 18. Only the sum of $330,759.96 has been paid or credited notwithstanding that
14 BELOW MAGID has demanded payment, and consequently, there is now due, owing and
15 unpaid from BASSAN and DOES 1 through 10, inclusive, to BELOW MAGID the principal
16 sum of $140,198.69 together with interest thereon at the maximum rate allowed by law.
17
IV.
FOURTH CAUSE OF ACTION
18 (Foreclosure Of Mechanic’s Lien Against 1081 ALSTON and DOES 1] through 90, inclusive)
19 BELOW MAGID alleges and realleges and incorporates herein this reference
19. by
20 each and every allegation contained in the Preliminary Allegations and the First Cause of Action
21 as though fully set forth herein.
22 20. The whole of the land described in Paragraph 3 herein upon which labor, services,
23 materials and equipment provided by BELOW MAGID are located is necessary and required for
24
the convenient use of said land and any improvements thereon.
21. On July 31, 2020, BELOW MAGID duly recorded in the Clerk—Recorder’s Office
25
of Santa Barbara County, State of California, a verified Mechanic’s Lien Claim (Cal. Civ. Code
26
§ 8416) attached hereto as Exhibit “C”; and said Mechanic’s Lien Claim contained statements of
27
BELOW MAGID’s demand after deducting all just credits and offsets, the names of the owners
28
or reputed owners of the property described in Paragraph 3 herein, and the names of the persons
4
COMPLAINT FOR BREACH OF CONTRACT, ETC.
to or for whom BELOW MAGID contracted to furnish said labor, services, materials and
equipment, together with a general statement of the kind of labor, services, materials and
equipment furnished by them, the names of the persons by Whom they were employed and to and
for whom they fumished said labor, services, materials and equipment and a description of the
property sought to be charged with said Mechanic’s Lien sufficient for identification, with said
Mechanic’s
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Lien Claim being filed for record under and by virtue of the provisions of Division
4, Part 6, of the California Civil Code.
22. BELOW MAGID is informed and believes, and thereon alleges, that Defendant
BASSAN is the sole member of Defendant 1081 ALSTON. Accordingly, BELOW MAGID is
deemed to have contracted directly with 1081 ALSTON and was not obligated to comply with
Civil Code sections 8200 et seq. with respect to the preparation and service of preliminary
notices.
23. BELOW MAGID is informed and believes, and thereon alleges, that at the time
of the filing of BELOW MAGID’s Mechanic’s Lien Claim for record as aforesaid, ninety (90
days had not elapsed or expired since the completion of said work of improvament or any
cessation of labor thereon.
V.
FIFTH CAUSE OF ACTION
(Enforcement of Mechanic’s Lien Release Bond
Against Defendants DOES 91 through 100, inclusive)
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24. BELOW MAGID alleges and realleges and incorporates herein by this reference
each and every allegation contained in the Preliminary Allegations, the First Cause of Action and
the Fourth Cause of Action as though fully set forth herein.
25. Defendants DOES 91 through 100, inclusive, caused to be recorded in the Clerk-
Recorder’s Office of Santa Barbara County, State of California, a good and sufficient bond
pursuant to and in accordance with the provisions of Section 8424 of the Civil Code to release
the Property from BELOW MAGID’S Mechanic’s Lien, whereby and whereunder said
Defendants BASSAN, 1081 ALSTON and/0r DOES 91 through 95, inclusive, as principals, and
said Defendants DOES 96 through 100, inclusive, as sureties, are bound to pay BELOW
MAGID any sum which BELOW MAGID may recover pursuant to the lien herein together with
the costs of suit.
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5
COMPLAINT FOR BREACH OF CONTRACT, ETC.
WHEREFORE, BELOW MAGID prays for judgment as follows:
On the First Cause of Action (against Defendants BASSAN and DOES 1-10, inclusive
and each ofthemlz
1. For the principal sum 0f$140,198.69;
2.
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For interest at the rate of eighteen percent (18%) per annum from and after May 31,
2020 pursuant to Civil Code section 3289(a); and
3. For attorney fees.in a sum according to proof pursuant to Civil Code section 1717.
On the Second and Third Causes of Action (against Dafendants BASSAN and DOES 1-
10, inclusive and each of them):
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4. For the principal sum of $140,198.69 plus interest at the maximum rate allowed by
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law from and after May 31, 2020, plus attorney’s fees in the amount of $1,200.00 pursuant to
Civil Code section 1717.5.
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On the Fourth Cause Of Action (against Defendants 1081 ALSTON and DOES 11
U)
throt 90 inclusive and each of them):
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5. For the sum of $140,198.69, together with interest thereon at the maximum rate
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allowed by law from the date of filing of BELOW MAGID’S Mechanic’s Lien as aforesaid, and
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BELOW MAGID’S costs; and that said amount together with interest, as aforesaid, and BELOW
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MAGID’S costs, be adjudged to be a Lien on the parcel of real property described in said
*400 Exhibit, including all personal property affixed to said real property, and that said land be
H \D adjudged and decreed to be sold by the Sheriff of the County of Santa Barbara, California, or the
NO
Marshal of the above-entitled Court, and that if the proceeds of such sale be insufficient to
satisfy the aforesaid sums due to BELOW MAGID, that BELOW MAGID have judgment and
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execution against Defendants 1081 ALSTON and DOES 11 through 90, inclusive, and each of
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them, in the aforestated sum for any deficiency which may arise after said application of
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proceeds; and that the interest of Defendants be forever barred and foreclosed; and that BELOW
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MAGID or any party t0 this action may become a purchaser at such sale.
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On the Fifth Cause Of Action (against Defendants DOES 91 through 100, inclusive. and
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each of them 2:
N \1 6. For the sum of $140,198.69 together with interest thereon at the maximum rate
N 00 allowed by law from the date of filing of BELOW MAGID’S Mechanic’s Lien as aforesaid.
6
COMPLAINT FOR BREACH OF CONTRACT, ETC.
On All Causes of Action (against all Defendants, and each of them):
7. For costs of suit herein incurred; and
8. For such other relief as the Court may deem proper.
DATED: October 29, 2020 MYER LAW, P.C.
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By: Raymonaffl. Myer
Raymond A. Myer
Ariana A. Vugrek
Attorneys for BELOW MAGID
CONSTRUCTION COMPANY
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7
COMPLAINT FOR BREACH OF CONTRACT, ETC.
Beiow Magid Construction Company
BUILDING CONSTRUCTION CONTRACT
THKS AGREEMENT is made this 10th day of October, 2019 between Jeremy Bassan, hereinafter called
Owner or Agent of 1081 Alston Road, Montecito, CA at which contracted work win take place, and Below
Magid Construction Company, hereinafter calfed General Contractor. License No. 881360, whose
address is 823 Jennings Ave., Santa Barbara. CA 93103.
1‘ General Contractor agrees to construct and complete in a good workmanlike and substantial
manner. upon the above-described materials.
real estate property, furnishing all 1abor, tools. and
floor — addition of a small
equipment to make improvements as follows: lnteriorremodeI at portionof first
wet bar area in the lounge. removal of a shower at Powder‘ replace (E) fireplace with (E) fireplace at
living room. Interior remodel at portion of second floor —
reconfigure master bathroom, create targer closet,
remove (E) fireplace with (N) fireplace in master bedroom.
Scope of Work: This estimate is for the work specified in the attached detailed estimate. Any and all work
the attached spreads/7991(5) is not included. Please note: There may be items on the
not included in
plans that are not included in the spreadsheet and are thus not in the estimate. All allowances are for
/
material and labor installed unless specified otherwise, All work tobe done during normal business hours
7:30 am to 4:00 pm Monday through Friday‘ If mold, fungus, or asbestos is suspected, Below Magid
Construction willalert Owner/agent. Below Magid Construction is not a mold, fungus, or asbestos
abatement or testing contracton
Alternates and Exclusions:
A. ALTERNATES: Initial the items you would like to include in the contract.
a. Drywall: Putty coat lounge where wailpaper was removed ADD $ 548.55
bfabrication and Instaliationof Fireplace Hearth ADD 5 975420
c.8hower Glass: Starphire glass. ADD $ 1,967.47 (é
B. Estimate does not include paint over same coIor unless specified, Change of color requires
additional coats of primer.
C. Estimate does not include rot repair.All rot repair is costplus because the extent of rot damage
cannot be determined untilwork begins.
D. Estimate does not include floor prep which wil! be done at cost plus if floor is not visible at time of
estimate.
E‘ Estimate includes a portable toilet
F, Estimate includes supervision of project by Genera! Contractor and his empbyees.
G. Permit coordination, Owner‘s requests forGO toorder product/materiais originallyto be provided
Owner, or plan deviation or design consultation and/or coordination willbe billedat T&M at
by
SSS/hour.
H. Estimate assumes Owner wm ensure that access is possible
General Contractor is not responsible for architectural errors‘ omissions. contradictions or
inconsistencies.
J. Owner to remove any items of furniture. etc.prior to start of construction if theseitems are in the
way of construction work,
K; Owner to indemnify and hold genera! contractor and his subcontractors harmless of any injury
suffered by Owner(s) and/or their family or guests during the course of construction.
L. Owner is responsible to provide a safe and secure place for any and all pets during construction
hours. Contractor is not responsibie forloss of orinjury topets.
M. Estimate does not include the foliowing items—neither provided or installed unless noted
otherwise: Architectural work; plans; permits; engineering; fees:
utility electricalsurface fixtures;
PV system. sons reports or inspections: termite work: mold abatement or removal work: lead
abatement or removal work.
N. The parties to thiscontract agree that the General Contractor and his subcontractors are in no
way responsible to find. search out, remedy, repair, rebuild, or give advice about existing
on its improvements which might in any way in the present
—EXHIBIT
conditions on the jobsile
or in the future
Below Magid Construction
have
Company
property and
a negative impact on the construction proposed in
Page
the
1
plans
of 7
and
H>
specifications for this project. If applicabie‘the Owner may choose to consult experts prior to the
stead of constructfion to determine if there are existing conditions which might be detrimentai to the
proposed construction project in the present or future.
0. NOTE: All site drainage work, including but not limited to, French drains, sitedrains. catch
basins, downspout drains, patio and driveway drains shall be engineered Costs for said
engineering are not inciuded in this contract. All drainage work will be estimated per the
engineer's drawings and detaits and willbe inspected and signed off on by the engineer. N0
estimates for drainage are included in this contract.
P. Due to the inabi|ity to foresee the weather, estimate does not include rain protection of property or
materiais (NIC). Said rain protection willbe provided by General Contractor and bilied at the rate
of General Contractor’s cost plus 15%
Q. General Contractor is not a licensed asbestos contractor. H is the Owner's responsibimy to
determine prior to construction that there is no asbestos at the siteand to inform General
Contractor of the same, If the Owner determines that asbestos is found at the site,Owner must
inform General Contractor prior to construction.
R‘ General Contractor is not a licensed maid abatement or removal contractor. No mold abatement
or removal work whatsoever will be performed by General Contractor nor is any such mold work
by a subcontractor included in this bid. It isthe Owner‘s responsibifity to determine prior to
construction that that is no mold at the site and to inform Generai Contractor of the same If the
Owner determines that mold is found at the site,Owner must inform General Contractor prior to
construction and the Owner must have a“ maid removed prior to General Contractor or any of its
subcontractors starting work at the site
8‘ As of April 22. 2010, if project site
is a pre 1978 structure lead testing must be performed to verify
if any lead is present Owner is responsible for all testingprior to start of construction. General
Contractor is an EPA/RRP Certified Renovatcr and wili provide an estimate for mandatory EPA
lead safety measures, if Owner desires. No lead safety and/or removal measures are included in
this estimate and/0r contract.
T, NOTE: Contractor assumes lot lines are cleafly marked and that zoning setbacks are correct.
Contractor is not responsible for any CC&R violations. Surveyor to determine house comers for
general contractor prior to start of foundation work—this work is not included in bid (NIC).
U. All subcontractors to do work on this project are Genera! Contractor's subcontractors and a”
material is to be provided by General Contractor, unless expressly stated otherwise herein.
V, Standard rock clause applies to all excavation. lf rock is encountered during excavation, removal
of same is an extra billed at General Contractor's cost plus 15% of said cost.
2. Genera! Contractor has prepared a de’tailed_estimate incorporated herein, Said estimate includes
“Allowances" which are provided as budgetary numbers as they Wm depend upon the finalproduct(s)
chosen by Owner(s) scope of work
or the full is unabfe to be determined. Said Allowances can come in
above or below the budgetary numbers provided, and Owner(s) will be billed or credited approprialeiy.
3. Due to the volatile nature of the lumber market. Lumber Material (and truss material if applicable) is a
budgetary estimate. This Lumber number reflects the price of lumber at the time thatthe estimate was
put together. If Owner accepts and signs this contract. lumber materials will be billed through at General
Contractor’s cost plus 15%. Inaddition, due to the volatilenature of the copper and pvc markets. price
increases of more than 3% from the date of contract execution wm be passed onto the Owner.
4. The structure is tobe constructed and completed in strict conformance with plans and specifications
for the same signed by the parties hereto, a copy of which plans and specifications have been fiIed with [_
[ hereinafter referred to as Iienholder‘If no lienholder is named herein all
references to same in this contract isto be disregarded. The structure is also to be constructed and
completed in strictcompliance with all laws, ordinances, rules and regulations of competent pubtic
authority. Owner is to appIy for and obtain a“ required permits unless otherwise agreed herein that
General Contractor will apply for and obtain said permits. General Contractor will pick up permits and
jurisdiction once notified when ready, if applicable
5. In consideration of the covenants and agreements hereof being strictlyperformed and kept by
General Contractor, including the suppiying ofall labor, materials and services required by this contract,
and the construction of this structure. Owner agrees to pay General Contractor for all labor, materials
and associated costs $267,240.15 for a}!labor, material and services provided, paid in installments
biiled twice a month by Genera! Contractor, If any installment is not paid when due. interest shallrun on
Below Magid Construction Company Page 2 0f 7
the amount of the installment from the due date until paid at therate of 18% per annum. lnstalimems are
due and payable upon presentation. be charged
Interest will if payment is not received wiihin 30 days of
presentation.
6. Change Orders: Should the Owner at any time during the progress of the work request any
modification, alterations or deviations in, additions to, or omissions from, this contract or the plans or
specifications, s/he shall be at liberty to do so, and the same shailin no way affect or make void this
contract: but the amount thereof she” be added to or deducted from the amount of the contract price
aforesaid, as the case may be. by a fair and reasonable valuation, based upon the cost of labor, materials
and supervision plus 20% General Contractor's Fee‘ And this contract shall be held to be completed
when the work is finished in accordance with the original plans as amended or modified by such changes,
whatever may be the nature or extent thereof. The character and valuation of any and allChanges,
omissions or extra work shall be agreed upon and fixed in writingand signed by the Owner and General
Contractor.
7. The Genera! Contractor shall not be responsible for any damage occasioned by the Owner or
Owner's agent, Acts of God, earthquake, or other causes beyond the control of the General Contractor,
unless otherwise herein provided. or unless he is obligated by the terms hereof to provide insurance
against such hazard or hazards.
8. Owner agrees to procure at its own expense and prior to the commencement of any work hereunder,
fire insurance with course of construction clause in an appropriate amount to cover said improvements as
set forth inParagraph 5 (Section 3 Scope of Work), hereof‘ with payable to any mortgagee or
loss. if any,
beneficiary, such insurance to be written to protect the Owner and the General Contractor; as their
interests may appear. and should Owner failto do 30‘ Owner agrees upon demand to reimburse General
Contractor in cash for the cost thereof.
9. General Contractor shat! at his own expense carry all workers’ compensation insurance and public
insurance necessary for the
liability fullprotection of General Contractor and Owner during the progress
of the work.
10. Any controversy or claim raising out of or relating to this contract, or the breach thereof shall be
settled by arbitration in accordance with the rules of the American ArbitrationAssociation. and judgment
upon the award rendered by the Arbitrator(s)shail be entered in any Court having jurisdiction thereof.
Any such award may include costs and reasonable attorney's fees as may be directed by the
Arbitrator(s).
11. Should either party hereto bring suit in court to enforce the terms hereof, any judgment awarded shall
include court costs and reasonable attorney‘s fees to the successful party.
12. Upon the completion of the work. the General Contractor agrees to remove all debris and surplus
materials from the Owner‘s said property and ieave property in a neat and dean condition unless
otherwise stipulated herein.
13. The General Contractor shall not assign or transfer this contract without first obtaining Owner's
consent in writing.
14. The aforesaid Lienholder is not a party to thiscontract and isnot bound or obiigated by or under any
of the terms hereof.
15. Time is of the essence of the contract as to both parties hereto.
16. General Contractor shaH commence work under this agreement within first five to six weeks of signed
contract. Work is commenced when General Contractor moves equipment on the job site or when
workers arrive on the site. If General Contractor fails to substantially commence work within twenty (20)
days from the approximate date of commencement. Owner may delay the date of the next succeeding
payment made to the General Contractor for a period of time equal to that of the delay of the
commencement of work. Allowance in approximate commencement and compietion dates shall be made
for any deIays attributable to circumstances beyond General Contractor's control and for extra work‘ The
work will be substantiafly completed within fifteen to twenty weeks depending on weather conditions. on
the availability of materials, performance of any subcontractors not under Below Magid Construction‘s
supervision, and on what the final scope of work isdetermined to be‘ Additiona! time will be added if
changes are made. In addition, the General Contractor‘s unexcused faitureto substantially commence
work within twenty (20) days from the approximate date specified is a violation of the contractor license
law.
17. Any delays in the normal sequence of construction caused by changes, indecision on behalf of
Owner, and/or inabilityto provide products in a timely manner may resultin additional charges and will
affect the schedule outlined above.
18. Owner shall be in default ifOwner or Owner's agent breaches any of the express or implied
conditions or covenants contained in this agreement. Actions ofdefault by Owner shallincIude failureto
Below Magid Construction Company Page 3 of 7
campensaie General Contractor as pmvrded by this;agreement. as we” as umustified interferencewim
the progress 0% {he work being performed by General Contracéor or any m his Subcontractors.
‘19 Remedies of General Contractor: If Owner breaches ims contract:
a) General Cantractor she“ be emified to recover, in the absence of specificprovisions in this
agreement to the contrary, the pro~raiaportion of his profits and fees based on {he percentage of
completion or based on the percentage of prom and fees as specified by ihe contract times the
actual COStS of work performed and materiais supplied
in Any compensation due Genera: Contractor remaining unpaid shafl be due and payable forthwith
upon presentaiion mi :3 bill fur same from
the General Cmntractmz
c} General Contractor. in addition to any other Iega‘ remedies or processes available.may‘ upon
five (5) days’ written neflco. tormmafe the agmemom GMGT the premigge, {and remove any portion
or all of the materials or goods instaifedor fixed to the premises under thisagreement to the
extent they represent in{hair than currem conditmn the portion of the press then owmg General
Contractor.
20. This contract may be withdrawn unless signed by Owner and General Contractor within 10 busmess
days from October ’10. 2019.
IN WITNESS WHEREQF. the said ‘ jgsberamio set their hands the day and year first above writien‘
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ELECTRONICALLY FILED Superior Court of California County of Santa Barbara Raymond A. Myer (SB# 109202) Darrel E. Parker, Executive Officer Ariana A. Vugrek (SB# 263035) 10/29/2020 10/29/2020 11:57 AM MYER LAW, RC. By: . Terri Tam - Chavez, Deputy 100 West Arrellaga Street By. Santa Barbara, CA 93101 Telephone (805) 962—0083 Facsimile (805) 962-2372 Attorneys for PlaintiflBELOWAMGID C ONS TR UCTION COMPANY \DOONO‘xLlI-DWNH SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF SANTA BARBARA, ANACAPA DIVISION BELOW MAGID CONSTRUCTION) Case Number: 20CV03559 200V03559 COMPANY, a California corporation, ) ) COMPLAINT FOR.. Plaintiff, ) ) (1) BREACH OF CONTRACT; v. ) (2) OPEN BOOK ACCOUNT; ) (3) QUANTUM MERUIT; JEREMY BASSAN, an individual; 1081 ) (4) FORECLOSURE OF ALSTON ROAD, LLC, a California limited ) MECHANICS LIEN; and liability company; and DOES 1through 100, ) (5) ACTION TO ENFORCE inclusive, ) MECHANICS LIEN RELEASE BOND NNNNNNNNNi—‘t—‘HD—‘r—‘r—dr—th—Ah—lt—I ) Defendants. ) ) WNQMAWNHOOOOQCXm-PWNHO COMES NOW Plaintiff BELOW MAGID CONSTRUCTION COMPANY, and alleges as follows: PRELIMINARY ALLEGATIONS 1. Plaintiff BELOW MAGID CONSTRUCTION COMPANY (“BELOW MAGID” is, and at all times mentioned in this Complaint was, a California corporation duly licensed pursuant to the laws of the State of CaliforniaAto engage in the construction trade in this Judicial District. 2. Defendant JEREMY BASSAN (“BASSAN”) is,and at all time mentioned in this Complaint was, an individual who entered into a contract with BELOW MAGID to be performed in this Judicial District. /// 1 COMPLAINT FOR BREACH OF CONTRACT, ETC. 3. Defendants 1081 ALSTON ROAD, LLC, a California limited liability company (“1081 ALSTON”), and DOES 11 through 90, inclusive, are, and at all times herein mentioned were, the owners or reputed owners of or persons and/or entities who claim some right, title or interest in and to a parcel of real property and work of improvement commonly described as 1081 Alston Road, County of Santa Barbara, ©00\)O\&h.l§.wtx)~u State of California (the “Property”). 4. The true names and capacities, whether corporate, individual, associate, or otherwise, of Defendants DOES 1 through 100, inclusive, and each of them, are unknown to BELOW MAGID, who therefore sues said Defendants by such fictitious names. BELOW MAGID is informed and believes and thereon alleges that each Defendant named herein as a DOE is responsible in some manner for the matters and things herein described. BELOW MAGID will ask leave of court to amend its Complaint to ShOW their true names and capacities when the same have been ascertained. NP—‘O bur—AH 1. FIRST CAUSE OF ACTION (Breach of Contract against BASSAN and DOES 1-10, inclusive) 14 5. BELOW MAGID alleges and re-alleges and incorporates by this reference each 15 and every allegation contained in the Preliminary Allegations as though fully set forth herein. 16 6. On or about October 10, 2019, BELOW MAGID entered into a written contract (“Contract”) with BASSAN and DOES 1 through 10, inclusive, for construction of 17 improvements (the “Work”) at the Property (the “Project”). A true and correct copy of the 18 Contract is attached to this Complaint as Exhibit “A” and incorporated herein by this reference. 19 L 7. Between November 15, 2019 and March 25, 2020, BELOW MAGID, BASSAN 20 and DOES 1 through 10, inclusive, entered into a series of modifications of the Contract 21 (“Change Orders”) whereby BELOW MAGID agreed to furnish additional labor, services, 22 materials and equipment for the Project “Additional Work”) to BASSAN and DOES (the 1 23 through 10, inclusive. A true and correct copy of an Accounting Summary identifying the 24 Change Orders is attached to this Complaint as Exhibit “B” and incorporated herein by this 25 reference. 26 8. BASSAN and DOES 1 through 10, inclusive, agreed to pay BELOW MAGID the 27 total sum of $470,958.65 for the Work and the Additional Work, in accordance with the terms set forth in the Contract as modified by the Change Orders. 28 2 COMPLAINT FOR BREACH OF CONTRACT, ETC. 9. On or about May 1, 2020, BASSAN and DOES 1 through 10, inclusive, breached the Contract entered into with BELOW MAGID, as aforesaid, when payment for a BELOW MAGID invoice became due. Notwithstanding BELOW MAGID’s demand, BASSAN and DOES 1 through 10, inclusive, failed and refused to pay BELOW MAGID the full amounts owed pursuant to the Contract and the Change Orders for the Work and the Additional Work There \OOOVQU‘ALQNH is now due, owing and unpaid from BASSAN and DOES 1 through 10, inclusive, to BELOW MAGID the principal sum of $140,198.69. 10. Paragraph 5 of the Contract provides that payment is due upon presentation of installment invoices, and interest shall be charged on the installment amount at the rate of 18% per annum commencing thiny (30) days from presentation of the invoice. 11. Paragraph 11 of the Contract provides that if either party brings suit in court to enforce the terms thereof, any judgment obtained by the successful party shall include court costs and attorney fees. BELOW MAGID has retained the law offices of Myer Law, P.C. enforce all of BELOW MAGID’S rights pursuant to the Contract as modified by the Change Orders. 11. SECOND CAUSE OF ACTION (Open Book Account Against BASSAN and DOES 1 through 10, inclusive) 12. BELOW MAGID alleges and realleges and incorporates by this reference each and every allegation contained in the Preliminary Allegations and the First Cause of Action as NNNNNNNNNF—‘Hr—lh—‘Hh—AL—l—l—‘r— though fully set forth herein. 13. Within the four (4) year period immediately last past, Defendants BASSAN and oofimMJBWNHOOOOVQUI-mh-‘O DOES 1 through 10, inclusive, became indebted to BELOW MAGID on an open book account for the labor, services, materials and equipment described in paragraphs 6 and 7 herein furnished by BELOW MAGID for and at the Project to said Defendants at the special instance and request of said Defendants for the sum of $470,958.65. 14. Only the sum of $330,759.96 has been paid or credited despite demand made by BELOW MAGID to BASSAN and DOES 1 through 10, inclusive, and there is now due, owing and unpaid to BELOW MAGID the principal sum of $140,198.69 with interest thereon at the maximum rate allowed by law from and after May 31, 2020. /// /// ., J COMPLAINT FOR BREACH OF CONTRACT, ETC. CAUISIIIS. THIRD OF ACTION IQ (Quantum Meruit Against BASSAN and DOES 1 through 10, inclusive) 15. BELOW MAGID alleges and realleges and incorporates by this reference each and every allegation contained in the Preliminary Allegations and the First Cause of Action as though fully set forth herein. \DOOQONU‘I-km 16. Within the two (2) year period immediately last past, BELOW MAGID provided the labor, services, materials and equipment described in paragraphs 6 and 7 herein to Defendants BASSAN and DOES 1 through 10, inclusive, at the special request of said Defendants, for which said Defendants then and there promised to pay BELOW MAGID the reasonable value of said labor, services, materials and equipment. 10 17. At all times mentioned in this Complaint, the labor, services, materials and 11 equipment described in paragraphs 6 and 7 herein were and are of the reasonable value of 12 $470,958.65. 13 18. Only the sum of $330,759.96 has been paid or credited notwithstanding that 14 BELOW MAGID has demanded payment, and consequently, there is now due, owing and 15 unpaid from BASSAN and DOES 1 through 10, inclusive, to BELOW MAGID the principal 16 sum of $140,198.69 together with interest thereon at the maximum rate allowed by law. 17 IV. FOURTH CAUSE OF ACTION 18 (Foreclosure Of Mechanic’s Lien Against 1081 ALSTON and DOES 1] through 90, inclusive) 19 BELOW MAGID alleges and realleges and incorporates herein this reference 19. by 20 each and every allegation contained in the Preliminary Allegations and the First Cause of Action 21 as though fully set forth herein. 22 20. The whole of the land described in Paragraph 3 herein upon which labor, services, 23 materials and equipment provided by BELOW MAGID are located is necessary and required for 24 the convenient use of said land and any improvements thereon. 21. On July 31, 2020, BELOW MAGID duly recorded in the Clerk—Recorder’s Office 25 of Santa Barbara County, State of California, a verified Mechanic’s Lien Claim (Cal. Civ. Code 26 § 8416) attached hereto as Exhibit “C”; and said Mechanic’s Lien Claim contained statements of 27 BELOW MAGID’s demand after deducting all just credits and offsets, the names of the owners 28 or reputed owners of the property described in Paragraph 3 herein, and the names of the persons 4 COMPLAINT FOR BREACH OF CONTRACT, ETC. to or for whom BELOW MAGID contracted to furnish said labor, services, materials and equipment, together with a general statement of the kind of labor, services, materials and equipment furnished by them, the names of the persons by Whom they were employed and to and for whom they fumished said labor, services, materials and equipment and a description of the property sought to be charged with said Mechanic’s Lien sufficient for identification, with said Mechanic’s \oooqmux4xwtoH Lien Claim being filed for record under and by virtue of the provisions of Division 4, Part 6, of the California Civil Code. 22. BELOW MAGID is informed and believes, and thereon alleges, that Defendant BASSAN is the sole member of Defendant 1081 ALSTON. Accordingly, BELOW MAGID is deemed to have contracted directly with 1081 ALSTON and was not obligated to comply with Civil Code sections 8200 et seq. with respect to the preparation and service of preliminary notices. 23. BELOW MAGID is informed and believes, and thereon alleges, that at the time of the filing of BELOW MAGID’s Mechanic’s Lien Claim for record as aforesaid, ninety (90 days had not elapsed or expired since the completion of said work of improvament or any cessation of labor thereon. V. FIFTH CAUSE OF ACTION (Enforcement of Mechanic’s Lien Release Bond Against Defendants DOES 91 through 100, inclusive) NNNNNNNNND—‘HHHHb—db—fit—‘HH 24. BELOW MAGID alleges and realleges and incorporates herein by this reference each and every allegation contained in the Preliminary Allegations, the First Cause of Action and the Fourth Cause of Action as though fully set forth herein. 25. Defendants DOES 91 through 100, inclusive, caused to be recorded in the Clerk- Recorder’s Office of Santa Barbara County, State of California, a good and sufficient bond pursuant to and in accordance with the provisions of Section 8424 of the Civil Code to release the Property from BELOW MAGID’S Mechanic’s Lien, whereby and whereunder said Defendants BASSAN, 1081 ALSTON and/0r DOES 91 through 95, inclusive, as principals, and said Defendants DOES 96 through 100, inclusive, as sureties, are bound to pay BELOW MAGID any sum which BELOW MAGID may recover pursuant to the lien herein together with the costs of suit. /// 5 COMPLAINT FOR BREACH OF CONTRACT, ETC. WHEREFORE, BELOW MAGID prays for judgment as follows: On the First Cause of Action (against Defendants BASSAN and DOES 1-10, inclusive and each ofthemlz 1. For the principal sum 0f$140,198.69; 2. \OOOVONU‘I-PUJNN For interest at the rate of eighteen percent (18%) per annum from and after May 31, 2020 pursuant to Civil Code section 3289(a); and 3. For attorney fees.in a sum according to proof pursuant to Civil Code section 1717. On the Second and Third Causes of Action (against Dafendants BASSAN and DOES 1- 10, inclusive and each of them): o y—d 4. For the principal sum of $140,198.69 plus interest at the maximum rate allowed by p» H law from and after May 31, 2020, plus attorney’s fees in the amount of $1,200.00 pursuant to Civil Code section 1717.5. N »-—- p—n On the Fourth Cause Of Action (against Defendants 1081 ALSTON and DOES 11 U) throt 90 inclusive and each of them): A r—I 5. For the sum of $140,198.69, together with interest thereon at the maximum rate {J} r—I allowed by law from the date of filing of BELOW MAGID’S Mechanic’s Lien as aforesaid, and O’\ r—I BELOW MAGID’S costs; and that said amount together with interest, as aforesaid, and BELOW \3 h—d MAGID’S costs, be adjudged to be a Lien on the parcel of real property described in said *400 Exhibit, including all personal property affixed to said real property, and that said land be H \D adjudged and decreed to be sold by the Sheriff of the County of Santa Barbara, California, or the NO Marshal of the above-entitled Court, and that if the proceeds of such sale be insufficient to satisfy the aforesaid sums due to BELOW MAGID, that BELOW MAGID have judgment and NH execution against Defendants 1081 ALSTON and DOES 11 through 90, inclusive, and each of NN them, in the aforestated sum for any deficiency which may arise after said application of NW proceeds; and that the interest of Defendants be forever barred and foreclosed; and that BELOW N 4} MAGID or any party t0 this action may become a purchaser at such sale. N U1 On the Fifth Cause Of Action (against Defendants DOES 91 through 100, inclusive. and N UN each of them 2: N \1 6. For the sum of $140,198.69 together with interest thereon at the maximum rate N 00 allowed by law from the date of filing of BELOW MAGID’S Mechanic’s Lien as aforesaid. 6 COMPLAINT FOR BREACH OF CONTRACT, ETC. On All Causes of Action (against all Defendants, and each of them): 7. For costs of suit herein incurred; and 8. For such other relief as the Court may deem proper. DATED: October 29, 2020 MYER LAW, P.C. \oooumm-pww...‘ By: Raymonaffl. Myer Raymond A. Myer Ariana A. Vugrek Attorneys for BELOW MAGID CONSTRUCTION COMPANY NNNNNNNNNHHHHHHHHi—‘i—d OCNONU‘JE-UJNHowOONONL/‘I-bwwflo 7 COMPLAINT FOR BREACH OF CONTRACT, ETC. Beiow Magid Construction Company BUILDING CONSTRUCTION CONTRACT THKS AGREEMENT is made this 10th day of October, 2019 between Jeremy Bassan, hereinafter called Owner or Agent of 1081 Alston Road, Montecito, CA at which contracted work win take place, and Below Magid Construction Company, hereinafter calfed General Contractor. License No. 881360, whose address is 823 Jennings Ave., Santa Barbara. CA 93103. 1‘ General Contractor agrees to construct and complete in a good workmanlike and substantial manner. upon the above-described materials. real estate property, furnishing all 1abor, tools. and floor — addition of a small equipment to make improvements as follows: lnteriorremodeI at portionof first wet bar area in the lounge. removal of a shower at Powder‘ replace (E) fireplace with (E) fireplace at living room. Interior remodel at portion of second floor — reconfigure master bathroom, create targer closet, remove (E) fireplace with (N) fireplace in master bedroom. Scope of Work: This estimate is for the work specified in the attached detailed estimate. Any and all work the attached spreads/7991(5) is not included. Please note: There may be items on the not included in plans that are not included in the spreadsheet and are thus not in the estimate. All allowances are for / material and labor installed unless specified otherwise, All work tobe done during normal business hours 7:30 am to 4:00 pm Monday through Friday‘ If mold, fungus, or asbestos is suspected, Below Magid Construction willalert Owner/agent. Below Magid Construction is not a mold, fungus, or asbestos abatement or testing contracton Alternates and Exclusions: A. ALTERNATES: Initial the items you would like to include in the contract. a. Drywall: Putty coat lounge where wailpaper was removed ADD $ 548.55 bfabrication and Instaliationof Fireplace Hearth ADD 5 975420 c.8hower Glass: Starphire glass. ADD $ 1,967.47 (é B. Estimate does not include paint over same coIor unless specified, Change of color requires additional coats of primer. C. Estimate does not include rot repair.All rot repair is costplus because the extent of rot damage cannot be determined untilwork begins. D. Estimate does not include floor prep which wil! be done at cost plus if floor is not visible at time of estimate. E‘ Estimate includes a portable toilet F, Estimate includes supervision of project by Genera! Contractor and his empbyees. G. Permit coordination, Owner‘s requests forGO toorder product/materiais originallyto be provided Owner, or plan deviation or design consultation and/or coordination willbe billedat T&M at by SSS/hour. H. Estimate assumes Owner wm ensure that access is possible General Contractor is not responsible for architectural errors‘ omissions. contradictions or inconsistencies. J. Owner to remove any items of furniture. etc.prior to start of construction if theseitems are in the way of construction work, K; Owner to indemnify and hold genera! contractor and his subcontractors harmless of any injury suffered by Owner(s) and/or their family or guests during the course of construction. L. Owner is responsible to provide a safe and secure place for any and all pets during construction hours. Contractor is not responsibie forloss of orinjury topets. M. Estimate does not include the foliowing items—neither provided or installed unless noted otherwise: Architectural work; plans; permits; engineering; fees: utility electricalsurface fixtures; PV system. sons reports or inspections: termite work: mold abatement or removal work: lead abatement or removal work. N. The parties to thiscontract agree that the General Contractor and his subcontractors are in no way responsible to find. search out, remedy, repair, rebuild, or give advice about existing on its improvements which might in any way in the present —EXHIBIT conditions on the jobsile or in the future Below Magid Construction have Company property and a negative impact on the construction proposed in Page the 1 plans of 7 and H> specifications for this project. If applicabie‘the Owner may choose to consult experts prior to the stead of constructfion to determine if there are existing conditions which might be detrimentai to the proposed construction project in the present or future. 0. NOTE: All site drainage work, including but not limited to, French drains, sitedrains. catch basins, downspout drains, patio and driveway drains shall be engineered Costs for said engineering are not inciuded in this contract. All drainage work will be estimated per the engineer's drawings and detaits and willbe inspected and signed off on by the engineer. N0 estimates for drainage are included in this contract. P. Due to the inabi|ity to foresee the weather, estimate does not include rain protection of property or materiais (NIC). Said rain protection willbe provided by General Contractor and bilied at the rate of General Contractor’s cost plus 15% Q. General Contractor is not a licensed asbestos contractor. H is the Owner's responsibimy to determine prior to construction that there is no asbestos at the siteand to inform General Contractor of the same, If the Owner determines that asbestos is found at the site,Owner must inform General Contractor prior to construction. R‘ General Contractor is not a licensed maid abatement or removal contractor. No mold abatement or removal work whatsoever will be performed by General Contractor nor is any such mold work by a subcontractor included in this bid. It isthe Owner‘s responsibifity to determine prior to construction that that is no mold at the site and to inform Generai Contractor of the same If the Owner determines that mold is found at the site,Owner must inform General Contractor prior to construction and the Owner must have a“ maid removed prior to General Contractor or any of its subcontractors starting work at the site 8‘ As of April 22. 2010, if project site is a pre 1978 structure lead testing must be performed to verify if any lead is present Owner is responsible for all testingprior to start of construction. General Contractor is an EPA/RRP Certified Renovatcr and wili provide an estimate for mandatory EPA lead safety measures, if Owner desires. No lead safety and/or removal measures are included in this estimate and/0r contract. T, NOTE: Contractor assumes lot lines are cleafly marked and that zoning setbacks are correct. Contractor is not responsible for any CC&R violations. Surveyor to determine house comers for general contractor prior to start of foundation work—this work is not included in bid (NIC). U. All subcontractors to do work on this project are Genera! Contractor's subcontractors and a” material is to be provided by General Contractor, unless expressly stated otherwise herein. V, Standard rock clause applies to all excavation. lf rock is encountered during excavation, removal of same is an extra billed at General Contractor's cost plus 15% of said cost. 2. Genera! Contractor has prepared a de’tailed_estimate incorporated herein, Said estimate includes “Allowances" which are provided as budgetary numbers as they Wm depend upon the finalproduct(s) chosen by Owner(s) scope of work or the full is unabfe to be determined. Said Allowances can come in above or below the budgetary numbers provided, and Owner(s) will be billed or credited approprialeiy. 3. Due to the volatile nature of the lumber market. Lumber Material (and truss material if applicable) is a budgetary estimate. This Lumber number reflects the price of lumber at the time thatthe estimate was put together. If Owner accepts and signs this contract. lumber materials will be billed through at General Contractor’s cost plus 15%. Inaddition, due to the volatilenature of the copper and pvc markets. price increases of more than 3% from the date of contract execution wm be passed onto the Owner. 4. The structure is tobe constructed and completed in strict conformance with plans and specifications for the same signed by the parties hereto, a copy of which plans and specifications have been fiIed with [_ [ hereinafter referred to as Iienholder‘If no lienholder is named herein all references to same in this contract isto be disregarded. The structure is also to be constructed and completed in strictcompliance with all laws, ordinances, rules and regulations of competent pubtic authority. Owner is to appIy for and obtain a“ required permits unless otherwise agreed herein that General Contractor will apply for and obtain said permits. General Contractor will pick up permits and jurisdiction once notified when ready, if applicable 5. In consideration of the covenants and agreements hereof being strictlyperformed and kept by General Contractor, including the suppiying ofall labor, materials and services required by this contract, and the construction of this structure. Owner agrees to pay General Contractor for all labor, materials and associated costs $267,240.15 for a}!labor, material and services provided, paid in installments biiled twice a month by Genera! Contractor, If any installment is not paid when due. interest shallrun on Below Magid Construction Company Page 2 0f 7 the amount of the installment from the due date until paid at therate of 18% per annum. lnstalimems are due and payable upon presentation. be charged Interest will if payment is not received wiihin 30 days of presentation. 6. Change Orders: Should the Owner at any time during the progress of the work request any modification, alterations or deviations in, additions to, or omissions from, this contract or the plans or specifications, s/he shall be at liberty to do so, and the same shailin no way affect or make void this contract: but the amount thereof she” be added to or deducted from the amount of the contract price aforesaid, as the case may be. by a fair and reasonable valuation, based upon the cost of labor, materials and supervision plus 20% General Contractor's Fee‘ And this contract shall be held to be completed when the work is finished in accordance with the original plans as amended or modified by such changes, whatever may be the nature or extent thereof. The character and valuation of any and allChanges, omissions or extra work shall be agreed upon and fixed in writingand signed by the Owner and General Contractor. 7. The Genera! Contractor shall not be responsible for any damage occasioned by the Owner or Owner's agent, Acts of God, earthquake, or other causes beyond the control of the General Contractor, unless otherwise herein provided. or unless he is obligated by the terms hereof to provide insurance against such hazard or hazards. 8. Owner agrees to procure at its own expense and prior to the commencement of any work hereunder, fire insurance with course of construction clause in an appropriate amount to cover said improvements as set forth inParagraph 5 (Section 3 Scope of Work), hereof‘ with payable to any mortgagee or loss. if any, beneficiary, such insurance to be written to protect the Owner and the General Contractor; as their interests may appear. and should Owner failto do 30‘ Owner agrees upon demand to reimburse General Contractor in cash for the cost thereof. 9. General Contractor shat! at his own expense carry all workers’ compensation insurance and public insurance necessary for the liability fullprotection of General Contractor and Owner during the progress of the work. 10. Any controversy or claim raising out of or relating to this contract, or the breach thereof shall be settled by arbitration in accordance with the rules of the American ArbitrationAssociation. and judgment upon the award rendered by the Arbitrator(s)shail be entered in any Court having jurisdiction thereof. Any such award may include costs and reasonable attorney's fees as may be directed by the Arbitrator(s). 11. Should either party hereto bring suit in court to enforce the terms hereof, any judgment awarded shall include court costs and reasonable attorney‘s fees to the successful party. 12. Upon the completion of the work. the General Contractor agrees to remove all debris and surplus materials from the Owner‘s said property and ieave property in a neat and dean condition unless otherwise stipulated herein. 13. The General Contractor shall not assign or transfer this contract without first obtaining Owner's consent in writing. 14. The aforesaid Lienholder is not a party to thiscontract and isnot bound or obiigated by or under any of the terms hereof. 15. Time is of the essence of the contract as to both parties hereto. 16. General Contractor shaH commence work under this agreement within first five to six weeks of signed contract. Work is commenced when General Contractor moves equipment on the job site or when workers arrive on the site. If General Contractor fails to substantially commence work within twenty (20) days from the approximate date of commencement. Owner may delay the date of the next succeeding payment made to the General Contractor for a period of time equal to that of the delay of the commencement of work. Allowance in approximate commencement and compietion dates shall be made for any deIays attributable to circumstances beyond General Contractor's control and for extra work‘ The work will be substantiafly completed within fifteen to twenty weeks depending on weather conditions. on the availability of materials, performance of any subcontractors not under Below Magid Construction‘s supervision, and on what the final scope of work isdetermined to be‘ Additiona! time will be added if changes are made. In addition, the General Contractor‘s unexcused faitureto substantially commence work within twenty (20) days from the approximate date specified is a violation of the contractor license law. 17. Any delays in the normal sequence of construction caused by changes, indecision on behalf of Owner, and/or inabilityto provide products in a timely manner may resultin additional charges and will affect the schedule outlined above. 18. Owner shall be in default ifOwner or Owner's agent breaches any of the express or implied conditions or covenants contained in this agreement. Actions ofdefault by Owner shallincIude failureto Below Magid Construction Company Page 3 of 7 campensaie General Contractor as pmvrded by this;agreement. as we” as umustified interferencewim the progress 0% {he work being performed by General Contracéor or any m his Subcontractors. ‘19 Remedies of General Contractor: If Owner breaches ims contract: a) General Cantractor she“ be emified to recover, in the absence of specificprovisions in this agreement to the contrary, the pro~raiaportion of his profits and fees based on {he percentage of completion or based on the percentage of prom and fees as specified by ihe contract times the actual COStS of work performed and materiais supplied in Any compensation due Genera: Contractor remaining unpaid shafl be due and payable forthwith upon presentaiion mi :3 bill fur same from the General Cmntractmz c} General Contractor. in addition to any other Iega‘ remedies or processes available.may‘ upon five (5) days’ written neflco. tormmafe the agmemom GMGT the premigge, {and remove any portion or all of the materials or goods instaifedor fixed to the premises under thisagreement to the extent they represent in{hair than currem conditmn the portion of the press then owmg General Contractor. 20. This contract may be withdrawn unless signed by Owner and General Contractor within 10 busmess days from October ’10. 2019. IN WITNESS WHEREQF. the said ‘ jgsberamio set their hands the day and year first above writien‘ /':v»~”\w. “ "v V. //,,/ r/{// l/f“: