09-119 Ferma CorporationProject No. 2008-9112
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 ~{ /O~ay of _~ 2009, by and between the City of Cupertino ("City"), and FERMA Corporation
("Contractor"), whose place of business ~s at 1265 Montecito Avenue, Suite 200, Mountain View, CA 94043.
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
Contractor will not be assessed liquidated damage:; except as detailed below:
N/A
Original Contract Sum $ 2,265,457.7(1
Modified Contract Sum $ 2,397,957.55
Payment to Date $ 2,278,059.66
Liquidated Damages $ 0
Payment Due Contractor $ 119,987.89
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
file with City as of the date of such payment.
Contractor acknowledges and hereby agrees thad 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 (10650 - 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 Docunnents.
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 eztend to claims that the creditor does not know or
suspect to ezist in his favor at the time of ezecnting the release, which if known
by him, most have materially affected Iris settlement with the debtor.
9. The provisions of this Agreement and Release ~~re 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 bet:n 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 lA 00650 - 2