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Clark & Sullivan Builders, Inc v. Incline Glass

July 10, 2012

CLARK & SULLIVAN BUILDERS, INC., PLAINTIFF,
v.
INCLINE GLASS, DEFENDANT.



FINDINGS & RECOMMENDATIONS

Pending before the court is plaintiff Clark & Sullivan Builders, Inc.'s ("C&S") amended application for default judgment. Defendant Incline Glass ("Incline") has not filed an opposition. On review of the application and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:

ALLEGATIONS IN THE COMPLAINT

C&S is a California-licensed general contractor. In March 2010, the Judicial Council of California, Administrative Office of the Courts ("AOC"), publicly advertised for bid proposals from qualified general contractors to construct the new Susanville Courthouse located at 2610 Riverside Drive, Susanville, California ("the Project").

In 2010, C&S solicited bids for the Project from subcontractors for the various scopes of work to be performed on the Project as part of its effort to bid the Project. Nevada- based Incline was one of the responsive bidders for the scope of the work including the provision of labor and materials related to the installation of aluminum frames, sidelites and entrances, glass entrances and storefronts, balanced door entrances, glazed aluminum curtain walls, interior structural glass walls, aluminum windows, bullet resistant aluminum windows, security windows, metal framed skylights, glass glazing and door hardware.

As the lowest bidder for the Project, C&S was chosen as the general contractor on October 7, 2010 and entered into a written contract for construction of the Project ("the Prime Contract").

On July 22, 2010, C&S and Incline entered into an agreement for performance of the work on the Project. The agreement included the Subcontract Agreement and the Scope of Work, and incorporated the Prime Contract, including General Conditions and Special Conditions ("the Subcontract Agreement"). The contract price for the Subcontract Agreement was &723,328.00. Incline was to provide all labor and materials within the listed scope of work.

Prior to entering into the Subcontract Agreement, C&S provided a bid package to Incline which contained, among other things, a construction schedule, project drawings and specifications and conditions of the contract (including, but not limited, to General, Special and other Conditions), all of which were deemed part of the Subcontract Agreement.

During the course of construction of the Project, C&S issued written change orders to Incline, which adjusted the contract balance to a total of $712,784.

Incline allegedly breached the Subcontract Agreement by failing to timely pay its second tier subcontractors and suppliers, and failing to complete all of the work. Plaintiff alleges Incline abandoned the project.

C&S notified Incline of its failure to perform and abandonment, and demanded completion of the work. Incline failed and refused to perform. As a result, C&S itself is forced to pay to complete Incline's work and to pay suppliers and second-tier subcontractors.

Under the express terms of the Subcontract Agreement, Incline is required to indemnify and hold harmless C&S from any and all forms of liabilities, costs, damages, and expenses arising out of Incline's performance or failure to perform under the Subcontract Agreement, including losses or claims related to mechanics liens.

RELEVANT PROCEDURAL BACKGROUND

Plaintiff initiated this diversity action on April 12, 2012 raising claims for breach of contract, common counts and contractual indemnity. Plaintiff seeks actual, compensatory, consequential and incidental damages not less than $250,000.00. Plaintiff also seeks attorney's fees.

Defendant was served with personal service with a copy of the summons and complaint on April 26, 2012. See Doc. No. 7. The copies were served on Jones Vargas and Danielle Durkee, ...


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