2007/10/09 City Council Resolution 2007-166RESOLUTION NO. 2007 -166
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK
AUTHORIZING AND APPROVING AN
ESCROW AGREEMENT FOR SECURITY DEPOSITS IN LIEU OF RETENTION WITH
NORTH BAY CONSTRUCTION
FOR THE EASTSIDE TRUNK SEWER PROJECT - PHASE I
CITY PROJECT NO. 2004-05
WHEREAS, the City of Rohnert Park entered into a construction agreement with North Bay
Construction on August 14, 2007, for the Eastside Trunk Sewer Project — Phase I, Project No. 2004-
05; and
WHEREAS, pursuant to Section 22300 (b) of the Public Contract Code of the State of
California, a contractor may request that a public agency make payment of retentions earned directly
to an escrow agent at the expense of the contractor; and
WHEREAS, the contractor may direct the investment of the payments into securities and the
contractor shall receiver the interest earned on the investments for securities deposited by the
contractor; and
WHEREAS, upon satisfactory completion of the contract, the contractor shall receive from
the escrow agent all securities, interest, and payments received by the escrow agent from the public
agency.
NOW THEREFORE BE IT RESOLVED by the City Council of the City of Rohnert Park
that it does hereby authorize and approve an escrow agreement for security deposits in lieu of
retention by and between North Bay Construction, a corporation, and the City of Rohnert Park, a
municipal corporation.
BE IT FURTHER RESOLVED that the City Manager is hereby authorized and directed to
execute this agreement in substantially similar form to the attached agreement for and on behalf of the
City of Rohnert Park.
DULY AND REGULARLY ADOPTED this 91h day of October, 2007.
City Cle
i
CITY OF ROHNERT PARK
BREEZE: AE MACKENZIE: ABSENT SMITH: AYE STAFFORD: AYE VIDAK- MARTINEZ: AYE
AYES: (4) NOES: (0) ABSENT: (1) ABSTAIN: (0)
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NBC #1687
Account # 1998001557
BANKaF PETALUMA
A MEMBER OF THE GREATER BAY BANCORP FAMILY
ESCROW AGREEMENT FOR SECURITY DEPOSITS IN LIEU OF RETENTION
This Escrow Agreement, dated as of August 20, 2007, is made and entered into by and
between City of Rohnert Park, whose address is 6750 Commerce Blvd., Rohnert Park CA
94928, hereinafter called "Owner," and North Bay Construction, whose address is P.O. Box
6004, Petaluma CA 94955 -6004, hereinafter called "Contractor," and Bank of Petaluma, whose
address is P.O. Box 750488, Petaluma, CA 94975 -0488, hereinafter called "Escrow Agent."
For the consideration hereinafter set forth, the Owner, Contractor, and Escrow Agent
agree as follows:
(1) Pursuant to Section 22300 of the Public Contract Code of the State of California,
the Contractor has the option to deposit securities with the Escrow Agent as a substitute for
retention earnings required to be withheld by the Owner pursuant to the Construction Contract
entered into between the Owner and the Contractor for Eastside Trunk Sewer Phase 1 - proiect
#2004 -05 in the amount of $10.196.052.00 dated (hereinafter referred to as the
"Contract"). Alternately, on written request of the Contractor, the Owner shall make payments of
the retention earnings directly to the Escrow Agent. When the Contractor deposits the securities
as a substitute for Contract earnings, the Escrow Agent shall notify the Owner within 10 days of
the deposit. The market value of the securities at the time of the substitution shall be at least
equal to the cash amount then required to be withheld as retention under the terms of the
Contract between the Owner and the Contractor. Securities shall be held in the name of City of
Rohnert Park, and shall designate the Contractor as the beneficial owner.
(2) The Owner shall make progress payments to the Contractor for those funds which
otherwise would be withheld from progress payments pursuant to the Contract provisions,
provided that the Escrow Agent holds securities in the form and amount specified above.
.1
(3) When the Owner makes payment of retentions earned directly to the Escrow Agent,
the Escrow Agent shall hold. them for the benefit of the Contractor until the time that the escrow
created under this Contract is terminated. The Contractor may direct the investment of the
payments into securities. All terms and conditions of this Agreement and the rights and
responsibilities of the parties shall be equally applicable and binding when the Owner pays the
Escrow Agent directly.
(4) The Contractor shall be responsible for paying all fees for the expenses incurred by
the Escrow Agent in administering the Escrow Account and all expenses of the Owner. These
expenses and payment terms shall be determined by the Owner, Contractor and Escrow Agent.
(5) The interest earned on the securities or the money market accounts held in escrow
and all interest earned on that interest shall be for the sole account of the Contractor and shall be
subject to withdrawal by the Contractor at any time and from time to time without notice to the
Owner.
(6) . The Contractor shall have the right to withdraw all or any part of the principal in the
Escrow Account only by written notice to the Escrow Agent accompanied by written authorization
from the Owner to the Escrow Agent that the Owner consents to the withdrawal of the amount
sought to be withdrawn by the Contractor.
NBC #1687
Account # 1998001557
(7) The Owner shall have a right to draw upon the securities in the event of default by
the Contractor. Upon seven days' written notice to the Escrow Agent from the Owner of the
default, the Escrow Agent shall immediately convert the securities to cash and shall distribute the
cash as instructed by the Owner.
(8) Upon receipt'of written notification from the Owner certifying that the Contract is
final and complete, and that the Contractor has complied with all requirements and procedures
applicable to the Contract, the Escrow Agent shall release to the Contractor all securities and
interest on deposit less escrow fees and charges of the Escrow Account. The escrow shall be
closed immediately upon disbursement of all moneys and securities on deposit and payments of
fees and charges.
(9) The Escrow Agent shall rely on the written notifications from the Owner and the
Contractor pursuant to sections (5) to (8), inclusive, of this Agreement and the Owner and
Contractor shall hold the Escrow Agent harmless from the Escrow Agent's release and
disbursement of the securities and interest as set forth above.
(10) The names of the persons who are authorized to give written notice or to receive
written notice on behalf of the Owner and on behalf of the Contractor in connection with the
foregoing, and exemplars of their respective signatures are as follows:
On behalf of the Owner:
On behalf of the Contractor:
Dir. of Public Works /City Engineer Executive Assistant
Title Title
Darrin Jenkins Lisa Tiede
Name Name
c
Signature
6750 Commerce Blvd., Rohnert Park,
CA 94928
Address
On behalf of the Escrow Agent:
Senior Vice President
Title
Dean Abercrombie
Name //ll
04'e—
Signature
P.O. Box 750488, Petaluma CA 94975-
0488
Address
R-0. Box 6004, P,otaluma CA 94955-
6004
Address
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NBC #1687
Account# 1998001557
At the time the Escrow Account is opened, the Owner and the Contractor shall deliver to
the Escrow Agent a fully executed counterpart of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement by their proper
officers on the date first set forth above.
On behalf of the Owner: On behalf of the Contractor:
City Manager Executive Assistant
Title Title
Stephen R. Donley Lisa Tiedem n
Name Name
` da4_) Signature tur
Per Reso. No. 2007 -166 adopted by
the City Council on 10/9/07.
On behalf of the Escrow Agent:
Senior Vice President
Title
Dean Abercrombie
Name
Signature
Approved as to form: Attest
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City Clerk