CC Resolution No. 5756 ~
• • ~
~
~
RESOLUTION N0. 5756
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
AUTHORIZING EXECUTION OF "RECEIPT, RELEASE AND ASSIGN-
MENT" BETWEEN THE CITY OF CUPERTINO AND SURETY INSURANCE
COMPANY OF CALIFOR"lIA; ELECTROLIER CONVERSION PROJECT
81-13
WHEREAS, a RECEIPT, RELF.~ISE AND aSSIG:JMENT becween the Ci[y of Cuper-
tino and Surety Insurance Company oE Califocnia, has been presented to the
City Council for approval; and
WHEREAS, said documen[ defines the terms and provision for the comple-
tion of Elec[rolier Conversion Project 81-13 by Surety Insurance Company
of California inasmuch as Che principal, D. H. and Company defaui[ed in its
obligations; and
WHEREAS, said document has been approved by the City Attorney;
NOW, THEREFORE, BE IT RESOLVED that the Mayor and the City Clerk are
hereby authorized to execute the aforementioned RECEIPT, RELEASE AND ASSIGN-
PiENT in behalf of the City of Cupertino.
PASSED AND ADOPTED at a regular meeting of the City Council of the City
of Cupertino this 16~h day of November , 1981 by [he following vote:
Vote Members of the CitY Council
AYES: Gatto, Johnson, Plungy, Rogers, Sparks
NOES: None
ABSENT: None
ABSTAI:I: Yone
APPROVED:
~
Mayor, Ci[y of C rtino
ATTEST: •
~
s-s~.t•
Ci y Clerk
i
• r • •
~
RECEIPT, RELEASE A~VD ASSIGN~lE:vT
WHEREAS, SUFtETY INSURANCE COMP~A?Y OF CALIFORNIA,
a California corporation, hereinafter called "SURETY", executed
its performance bond, bond no. 551272 in the penal sum of
Onc Hundre3 Fourteen Thcusand, Three Fiundred and Eleven Dollars
(5114,311.00) dated February S, 1981, with D. H. and Company, as
principal, and the CITY OF CUPERTINO, as obligee, hereinafter
called "CliPERTIIvO", which bond was in connection with the
Electrolier Conversion, Project 81-13 in the city of Cupertino,
State of California;
ttiF:ERF.AS, SL'RE.Y, executec its payment bond, bond no.
551272 in the penal sum o~ One Hundred Fourteen Thousand, Three
Hundred and Eleven Dollars (5114,311.00) with D. H. s Co^~pazy,
as principal, and those persons nar,ed in California Ci~~:l Ccde
§3181 as obligees, which bond was in cer.nection with the Eiectrcii2:
Conversion, Pro;ect &1-13 in the City of Cupertino, State o_
Califorria;
kfiER°_nS, saic D. H. s Co^pany defaulted in its oblicatic::s
under saia bon8ed contracts to said City cf Cupertino;
~~'HEREAS, the City of Cupertino, State of Cali_`ornia, has
made claim against SURE:1 under said performance bond as a re~ult
of D. H. s Company's failure to perform, and represents it has
sustained a loss as a result of said default;
1.
J
• ~ • •
r
P:HEREAS, St. Francis Electric has submitted a bid
in the sum of $66,420.00 to complete said project;
WHEREAS, SURETY and Cupertino desire to resolve all
disputes in connection with said bonds as between the City of
Cupertino and SURETY;
NOW, THERErORE, the parties agree as follows:
1. Cupertino shall retain the sur.t of Seventy-five
Thousand, Seven Hundred Thirty-five Dollars and Seventy Cents
(Si5,735.70) representing the amount of retained contract funds
under its bonded contracts with D. H. & Company.
2. Cuoertino shall retain as its properties all
fixtures installed by D. H. s Compar.y, under the terms of
said contracts prior to default.
3. SliRETY's obligations under said perforn:ance bon~
shall in no event exceed the penal st:n of One Hundred Pourteen
Thousand, Three Hundred Eleven Dollars (5114,311.00).
4. SURETY will continue its obligations under its
labor and materia2s bcad as provided by statute (including bu~
not limited to the clai^ o` tiestinghouse Electric Corpora~ion),
a~d if aopropriate, ma}• at its sole and absolute discretion,
commence an interpleader action against known claimants.
Cupertino will cooperate in said interpleader action and will
perform any acts or will fail to perform any acts necessary to
preserve the penal sum of said payment bond.
5. Cupertino, its successors and assigns, does
' hereby release, discharge and exonerate SURETY, its successors
and assigns, from any and all liability, claims, demands, debts,
2.
~ ~ ~
dues, accounts, cause or causes of action of whatsoever kind or
nature that it now has, has had, or may hereafter have under said
performance bond;
6. Cupertino, with respect to said performance bond
, does hereby waive the benefits of California Civil Code §1542,
and acknowledges the significance and consequences of specifically
waiving said section, which section provides as follows:
~ A general release does not extend to claims
' wii~ch the creditor does not know or expect
! 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.
7. SURETY will hold the City harmless and indemnify
the City against any claim by a trustee in bankruptcy for
D. H. & Company arising out of the City's retaining the sum of
S9,315.70 as compensatory damages, representing the difference
between retained contract funds and the bid price of St. Francis
Electric. SURETY's obligations under this paragraph shall under
no circumstances exceed the sum of $9,315.70.
Executed within the State of California.
Date: CITY OF CUPERZ NO
APPROVED AS TO F~RM: By
~ Mayor
~ ~ ,
' ' % ' 1~ ,
' ' : ~ J ~ ~l li;~ ! , $y ~ a..~z.:=
_ C ty Attorney City Clerk
Date:
APPROVED AS TO FORM: SURETY INSURANCE COMPANY OF CALIFORNIA
1 `
. i • - ,
J. M chael P sias, Jr. obert Shoemaker
Attorney for SURETY
3.