CC Resolution No. 7167
RESOIIJI'ION NO. 7167
A RESOIIJI'ION OF 'mE CITY CXXJNCIL OF 'mE CITY OF aJPERl'INO
AImIORIZING EXECUTION OF "ESCOCM AGREEMENT FOR SEaJRITY
DEPOSITS IN LIEU OF REl'ENTION" BEIWEEN 'mE CITY AND
S. J. AmRœO OONSI'RUCI'ION CD., INC.
REIATIVE 'ro 'mE CIVIC CENTER EXPANSION PROJECr
WHEREAS, there has been presented to the city Council an "Escrow
Agreement for Security Deposits in Lieu of Retention", by ani between the
City of CUpertino, OWner; S. J. Amoroso Construction Co., Inc.,
Contractor; ani The Bank of Califo:rnia, Escrow Agent; ani
WHEREAS, pursuant to section 4590 of O1apter 13 of Division 5 of Title
1 of the Goverrnnent Code of the state of Califo:rnia, Contractor has the
option to deposit securities with Escrow Agent as a substitute for
retention eanrln;Js required to be withheld by OWner pursuant to the
Construction Contract entered into between the owner ani Contractor for
civic Center Expansion Project; ani
WHEREAS, Contractor desires to exe=ise its option to deposit
securities with the Escrow Agent; ani
WHEREAS, the aforementioned agreement outlines the procedure by which
the option shall be exe=ised; ani the terns ani conditions of said
agreement have been reviewed ani approved by the City Attorney ani the
Director of Public Works;
MOO, THERE;ßuRE, BE IT RESOLVED that the Mayor ani the City Clerk are
hereby authorized to execute the agreement herein referred to in behalf of
the City of CUpertino.
PASSED AND AOOPI'ED at a regular meeting of the City Council of the
City of CUpertino this ~ day of May , 1987 by the following vote:
Vote Members of the Citv Council
AYES:
NOES:
ABSENT:
ABSTAIN:
Johnson, Plungy, Rogers, Sparks
Gatto,
None
None
None
ATI'EST:
APPROVED:
/s/ Roberta A. Wolfe
Deputy City Clerk
/s/ W. Reed Sparks
Mayor, City of CUpertino
ESCRa-J AGREEMENT
FOR
SECURITY DEPOSITS IN LIEU OF RETENTION
This Escrow Agreement is made and entered into by and between the City
of Cupertino whose address is 10300 Torre Avenue, Cupertino, California 95014
hereinafter called "Owner", S. J. Amoroso Construction Co., Inc. whose address is
348 Hatch Drive, Foster City, California 94404 hereinafter called "Contractor" and
The Bank of California whose address is 400 California Street, San Francisco,
Cal ifornia 94104 hereinafter called "Escrow Agent."
For the consideration hereinafter set forth, the Owner, Contractor, and
Escrow Agent agree as follows:
.
1. Pursuant to Section 4590 of Chapter 13 of Division 5 of Title 1 of
the Government Code of the State of California, Contractor has the option to
deposit securities with Escrow Agent as a substitute for retention earnings
required to be withheld by Owner pursuant to the Construction Contract entered
into between the Owner and Contractor for Civic Center Improvements in the amount
of $3,942,300.00 dated January 19, 1987 (hereinafter referred to as the "Contract").
When Contractor deposits the securities as a substitute for Contract earnings,
the Escrow Agent shall notify the Owner within ten 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 Contractor. Securities shall be
held in the name of S. J. Amoroso Construction Co. ,Inc. and the City of Cupertino,
and shall designate the Contractor as the beneficial owner.
2. The Owner shall make progress payments to the Contractor for such
funds which otherwise would be withheld from progress payments pursuant to the
Contract provisions, provided that the Escrow Agent hold securities in the form
and amount specified above.
3. Alternatively, the Owner may make payments directly to Escrow Agent
in the amount of retention for the benefit of the Owner until such time as the
escrow created hereunder is terminated.
,
4. Contractor shall be responsible for paying all fees for the expenses
incurred by Escrow Agent in administering the escrow account. These expenses
and payment terms shall be determined by the 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 Contractor and shall be subject to withdrawal by Contractor at any
time and from time to time without notice to the Owner.
6. Contractor shall have the right to withdraw all or any part of the
principal in the Escrow Account only by written notice to Escrow Agent accompanied
by written authorization from Owner to the Escrow Agent that Owner consents
to the withdrawal of the amount sought to be withdrawn by Contractor.
7. The Owner shall have a right to draw upon the securities in the event
of defaul t 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, Escrow Agent shall
release to 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. Escrow Agent shall rely on the written notifications from the Owner
and the Contractor pursuant to Sections (5) to (7), inclusive, of this agreement
and the Owner and Contractor shall hold Escrow Agent harmless from 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 Contractor
in connection with the foregoing, and exemplars of their respective signatures
are as follows:
On beha lf of ONner:
On behalf of Contractor:
Title
V.P.,Chief Financial Officer
Title
Signature
Name
348 Hatch Drive
Foster City, CA 94404
Address
Address
On behalf of EscrolV Agent:
The Bank of California, N.A.
.
Title
Name
Signature
400 California Street
San Francisco, CA 94104
Address
At the time the Escrow Account is opened, the ONner and Contractor shall
deliver to the Escrow Agent a fully executed counterpart of this Agreement.
IN WITNESS WHEREOF, the parties
proper officers on the date first set
have executed this Agreement by their
forth above.
OWNER
CONTRAC'lDR
Title
Secretary/Treasurer
Title
Signature
Gilbert J. Amoroso
æ,~~, ~
Name
348 Hatch Drive
Foster City, CA 94404
Address
Address