2007/10/09 City Council Resolution 2007-157RESOLUTION NO. 2007 -167
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 ROHNERT PARK EXPRESSWAY (RPX) REHABILITATION PROJECT
CITY PROJECT NO. 2005-02
WHEREAS, the City of Rohnert Park entered into a construction agreement with North Bay
Construction on July 10, 2007, for the RPX Rehabilitation Project No. 2005 -02; 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 Mthe 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 OF ROHNERT PARK
Mayor
A
City Clerk
y ./1
BREEZE: AYE MACKENZIE: ABSENT SMITH: AYE STAFFORD: AYE VIDAK- MARTINEZ: AYE
AYES: (4) NOES: (0) ABSENT: (1) ABSTAIN: (0)
NBC #1692
Account # 1998001611
BANK2F 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 29, 2007, is made and entered into by and
between City of Rohnert Park, whose address is P.O. Box 1489, 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 Rohnert Park Expressway Rehabilitation
— project #2005 -02 in the amount of $1,308.384.90 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.
(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 #1692
Account # 1998001611
(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:
Executive Assistant
Dir. of Public Works /City Engineer
Title Title
_Darrin Jenkins
Name
Signature
P.O. Box 1489, Rohnert Park, CA
94928
Address
On behalf of the Escrow Agent:
Senior Vice President
Title
Dean Abercrombie
Name
Signdture
P.O. Box 750488, Petaluma CA 94975-
0488
Address
6004
Address
NBC #1692
Account # 1998001611
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:
Executive Assistant
Title
T itle
On behalf of the Escrow Agent:
Senior Vice President
Title
Dean Abercrombie
Name
Signa ure
Approved as to form:
v
CA�-A ty
9
Attest
City Clem