05-039, Ross McDonald Company, Inc.
Project No.2003-05
DOCUMENT 00650
AGREEMENT AND RELEASE OF ANY AND ALL CLAIMS
THIS AGREEMENT AND RELEASE OF ANY AND ALL CLAIMS ("Agreement and Release"), made and entered into
this 15th day of February, 2005 by and between the City of Cupertino ("City"), and Ross McDonald Company, Inc.
("Contractor"), whose place of business is at 6776 Preston Avenue, Suite B, Livermore, CA 94551.
RECITALS
A. City and Contractor entered into Project Number 2003-05(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:
Original Contract Sum
$ 439,248.00
Modified Contract Sum
$N/A
Payment to Date
$ 395,323.20
Liquidated Damages
$0
Payment Due Contractor
$ 43,924.80
2. Subject to the provisions of this Agreement and Release, City will forthwith pay to Contractor the sum of $ Four
Hundred and Thirty Nine Thousand, Two Hundred Forty Eight Dollars and No Cents ($ 439,248.00) under the
Contract, less any amounts withheld under the Contract or represented by any Notice to Withhold Funds on file with
City as of the date of such payment.
3. Contractor acknowledges and hereby agrees that there are no umesolved 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.
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
[Insert information, including attachment if necessary]
City of Cupertino
Civic Center & Library Project - Book Stack Shelving 00650 - 1
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Agreement and Release of Any and All Claims
Project No.2003-05
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
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Agreement and Release of Any and All Claims
Project No.2003-05
* * * CAUTION: THIS IS A RELEASE - READ BEFORE EXECUTING * * *
THE CITY OF CUPERTINO,
a Mum' Corpora 'on of the State of Cali fomi a
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By:
DavId W. Knapp, City Manag
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City Clerk 1 '1flt lit1
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Ross McDonald Company, Inc.
By: 1>>- 1
Name: ~.~
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Its:
END OF DOCUMENT
City of Cupertino
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Agreement and Release of Any and All Claims