09-113 FERMA Corp. SCCPAGREEMENT
CITY OF CUf'ERTINO 0 3 2 8 5 9
10300 Torre Avenue
Cupertino, CA 95014
408-777-:3200 NO.
BY THIS AGREEMENT, made and entered into this 3 th day of September , 2009] by and between the CITY OF
CUPERTINO (Hereinafter referred to as CITY) and FERMI Corporation; Joe Broz; Address: 1265 Montecito
Avenue, Suite 200, Mountain View, CA 94043 ;Phone: 650-961-2742; Fax: 925-968-3945; a-mail:
jbroz@fermacorp.com Hereinafter referred as CONTRACTOR), in consideration of their mutual covenants, the
parties hereto agree as follows:
CONTRACTOR shall provide or furnish the following specified services and/or materials:
At Stevens Creek Corridor Park install large boulders for plaque and for play area
EXHIBITS: The following attached exhibits hereby are made part of this Agreement: Proposal Marked "Exhibit A"
TERMS: The services and/or materials furnished under this P,greement shall commence on September 7, 2009
and shall be completed before September 18, 2009
COMPENSATION: For the full perFormance of this Agreemer~t, CITY shall pay CONTRACTOR:
Lump Sum Not to Exceed $ 3,200.00 without Clfy approval
California Labor Code, Section 1771 requires the payment of prevailing wages to all workers employed on a Pubiic Works contract in excess of
$1,000.00.
GENERAL TERMS AND CONDITIONS
Hold Harmless. Contractor agrees to save and hold harmless the City, its officers, agents and employees from any and all damage and Ilabil(ty due
to negligence, errors and omissions, Including all costs of defending any claim, caused by or arising out of the pertormance of this Agreement. City
shall not be liable for acts of Contractor in performing services described here ln.
Insurance. Should the City require evidence of insurability, Contractor shall ~`ile with City a Certificate of Insurance before commencing any services
under this Agreement. Said Certificate shall be subJect to the approval of Cit~~'s Director of Administrative Services.
Non-Discrimination. No discrimination shall be made in the employment of persons under this Agreement because of the race, color, national
origin, ancestry, religion or sex of such person.
Interest of Contractor. it is understood and agreed ihat this Agreement Is not a contract of employment in the sense that the relationship of master
and servant exists between City and undersigned. At all times, Contractor shall be deemed to be an independent contractor and Contractor is not
authorized to bind the Clty to any contracts or other obligations in executing this agreement. Contractor certifies chat no one who has or will have
any financial Interest under this Agreement is an officer or employee of City.
Changes. This Agreement shall not be assigned or transferred without the written consent of the City. No changes or variations of any kind are
authorized without the written consent of the Cliy.
CONTRACT CO-ORDINATOR and representative for CITY shall be:
NAME: Terry Greene DEPARTMENT: Public Works Department
This Agreement shall become effective upon its execution by CITY, in witness thereof, the parties have executed this
Agreement the day and y r first written above.
CONT OR: ~ CITY OF CUPERTINO:
By By
T le tilt Title: erry Greene, AIA, City Architect
Soc. Sec. # or Tax I.D.
APPRO A S
E};PENDITURE DISTRIBUTION
A E E DAT ^
~ ~. 427-9112-9300 $ 3,200.00
K ~ DATE
'~ ~ FERMA CORPORATION
September 3, 2009
09-0968
City of Cupertino
10300 Torre Ave.
Cupertino, CA 95014
Attention: Carmen Lynaugh
RE: Blackberry Farm - 21975 San Fernando Ave., Cupertino
Quotation
Dear Ms. Lynaugh
Ferma Corporation is pleased to provide the following quotation for the PCC demolition and moving of boulders
at the above referenced site per our walk through and field observation with Dick Roache on 9/2/09 and
described in the following scope of work:
Inclusions:
. Place large boulder at plaque location
. Remove PCC pad
. Place 3 or 4 boulders in playground area
. City of Cupertino to provide boulders
Labor and Eauinnteut
. OE foreman and pick up $720.00
. OE and telehandler $880.00
. Two laborers $720.00
. Cat 257-skidder bare $440.00
. Transport move $436.00
Ferma Corporation proposes to perform the above-described work for a total bid price of: $ 3,200.00
Proiect Sc%edule:
One work day (included)
Payment Schedule:
Payments on account shall be due and payable within thirty (30) days after the date of the invoice for all
acceptable work completed each month (no retention). (purchase order)
Sincerely,
Ferma ration
Joe Br rrl
Cc: ck Roache
1265 Montecito Avenue, Suite 200 Mountain View, CA 94043-4506 (650) 961-2742
Estimating/Administration Fax (650) 968-3'x45 Accounting Fax (650) 961-0967
Project No.2008-9112 j
DOCUMENT 00650
AGREEMENT AND RELEASE OF ANY AND ALL CLAIMS
THIS AGREEMENT SAND RELEASE OF ANY AND ALL CLAIMS ("Agreement and Release"), made and entered
into this /61! of Ste,2009,by and between the City of Cupertino("City"),and FERMA Corporation
("Contractorse place of business is at 1265 Montecito Avenue, Suite 200,Mountain View,CA 94043. .
0"
REC]TALS
A. City and Contractor entered into Contract P.O.No. 032760(the"Contract").
B. The Work under the Contract has been completed.
Now,therefore,it is mutually agreed between City and Contractor as follows: .
AGREEMENT
1. Contractor will not be assessed liquidated damages except as detailed below:
N/A
Original Contract Sum $2,265,457.70
Modified Contract Sum $ 2,397,957.55
Payment to Date $-2,278,059.66
Liquidated Damages $0,
Payment Due Contractor $119 9 0 d 1 q`], )9
2. Subject to the provisions of this Agreement and Release,City will forthwith pay to Contractor the sum of$One
Hundred Nineteen Thousand Nine Hundred Eighty Seven Dollars and Eighty Nine Cents($ 119,987.89)under
the Contract,less any amounts withheld under the Contract or represented by any Notice to Withhold Funds on
Me with City as of the date of such payment.
3. Contractor acknowledges and hereby agrees that there are no unresolved or outstanding claims in dispute
against City arising from the Contract,except for the claims described in paragraph 4 of this Document 00650.
It is the intention of the parties in executing this Agreement and-Release that this Agreement and Release shall
be effective as a full, final and general release of all claims, demands, actions, causes of action, obligations,
costs, expenses, damages, losses and liabilities of Contractor against City, and all if its agents, employees,
consultants (including without limitation Consulting Cupertino), inspectors, representatives, assignees and
transferees except for the Disputed Claims set forth in paragraph 4 of this Document 00650. Nothing in this
Agreement and Release shall limit or modify Contractor's continuing obligations described in paragraph 6 of
this Document 00650.
City of Cupertino Agreement and Release of Any and All Claims
SCCP Phase lA 00650-1
Project No.2008-9112
4. The following claims are disputed(hereinafter,the"Disputed Claims")and are specifically excluded from the
operation of this Agreement and Release:
Claim No. Date Submitted Description of Claim Amount of Claim
NONE
5. Consistent with California Public Contract Code Section 7100, Contractor hereby agrees that, in consideration
of the payment set forth in paragraph 2 of this Document 00650, Contractor hereby releases and forever
discharges City,and all of its agents,employees,consultants,inspectors,assignees and transferees from any and
all liability,claims,demands,actions or causes of action of whatever kind or nature arising out of or in any way
concerned with the Work under the Contract
6. Guarantees and warranties for the Work,and any other continuing obligation of Contractor, shall remain in full
force and effect as specified in the Contract Documents.
7. Contractor shall immediately defend, indemnify and hold harmless the City of Cupertino, Santa Clara County,
its Architect, any of their Representatives,and all of their agents,employees, consultants,inspectors, assignees
and transferees, from any and all claims, demands, actions, causes of action, obligations, costs, expenses,
damages, losses and liabilities that may be asserted against them by any of Contractor's suppliers and/or
Subcontractors of any tier and/or any suppliers to them for any and all labor,materials, supplies and equipment
used,or contemplated to be used in the performance of the Contract,except for the Disputed Claims set forth in
paragraph 4 of this Document 00650.
8. Contractor hereby waives the provisions of California Civil Code Section 1542,which provides as follows:
A general release does not extend to claims that the creditor does not know or
suspect to exist in his favor at the time of executing the release,which if known
by him,must have materially affected his settlement with the debtor.
9. The provisions of this Agreement and Release are contractual in nature and not mere recitals and shall be
considered independent and severable,and if any such provision or any part thereof shall be at any time held
invalid in whole or in part under any federal, state, county,municipal or other law,ruling, or regulation,then
such provision, or part thereof shall remain in force and effect only to the extent permitted by law, and the
remaining provisions of this Agreement and Release shall also remain in full force and effect, and shall be
enforceable.
10. Contractor represents and warrants that it is the true and lawful owner of all claims and other matters released
pursuant to this Agreement and Release,and that it has full right,title and authority to enter into this instrument.
Each party represents and warrants that it has been represented by counsel of its own choosing in connection
with this Agreement and Release.
11. All rights of City shall survive completion of the Work or termination of the Contract, and execution of this
Agreement and Release.
City of Cupertino Agreement and Release of Any and All Claims
SCCP Phase IA 00650-2
Project No:2008-9112
***CAUTION: THIS IS A RELEASE-READ BEFORE EXECUTING
THE CITY OF CUPERTINO,
a Municipal Corporation of the State of California
L f:�-
By:
Its:
ATTEST:
City Clerk
[CONTRACTOR]
By:
Name: ` � �-t�(, �1�1� ��I
Its: l.fQ�.�/AI��KA
By:
Name:
Its:
RE
WED AS TO FORM:
City Attorney
ctI 2 20 U9.
END OF DOCUMENT
City of Cupertino Agreement and Release of Any and All Claims
SCCP Phase IA 00650-3