HomeMy WebLinkAbout05.L- Public Works RESOLUTION (ID#2822) DOC ID: 2822 A
CITY OF SAN BERNARDINO—REQUEST FOR COUNCIL ACTION
Agreement/Contract Amendment
From: Tony Frossard M/CC Meeting Date: 01/06/2014
Prepared by: Olivia Wolff, (909) 384-5140
Dept: Public Works Ward(s): 2,3,4,7
Subject:
Resolution of the Mayor and Common Council of the City of San Bernardino Authorizing
Execution of an Escrow Agreement for Security Deposits in Lieu of Retention with All
American Asphalt and Community Bank. (#2822)
Current Business Registration Certificate: Yes
Financial Impact:
This action will not have any financial impact.
Motion: Adopt the Resolution.
Synopsis of Previous Council Action:
10/22/13 Resolution No. 2013-300 - The Mayor and Common Council awarded a Contract
to All American Asphalt for Pavement Rehabilitation on Three City Streets: Del
Rosa Avenue, from Pumalo Street to Date Street (East), per Plan No. 12819
(SS 12-007); Highland Avenue, from Cedar Street to Golden Avenue, per Plan No.
12820 (SS12-014); and Mt. Vernon Avenue, from Grant Avenue to Northerly of
Walnut Street, per Plan No. 12994 (SS 14-005).
04/22/13 Resolution No. 2013-76 - The Mayor and Common Council approved and
adopted the City of San Bernardino's Final Budget Document for Fiscal Years
2012/13 and 2013/14.
Background:
On October 22, 2013, the Mayor and Common Council awarded a contract to All American
Asphalt of Corona, California, for Pavement Rehabilitation on three City streets (Del Rosa
Avenue, from Pumalo Street to Date Street per Plan No. 12819 (SS12-007); Highland Avenue,
from Cedar Street to Golden Avenue, per Plan No. 12820 (SS12-014); and Mt. Vernon Avenue,
from Grant Avenue to Northerly of Walnut Street, per Plan No. 12994 (SS 14-005).
Pursuant to Section 22300 of the Public Contract Code of the State of California, All American
Asphalt has made a written request of the City of San Bernardino to execute an Escrow
Agreement for security deposits in lieu of retention and to make payments of retention earnings
directly to an escrow agent, Community Bank a California banking corporation, whose address is
505 E. Colorado Boulevard, Pasadena, CA 91101. Pursuant to the Escrow Agreement, retention
funds would not be released without written authorization from the Director of Public Works.
City Attorney Review:
Supporting Documents:
Updated: 12/19/2013 by Jolena E. Grider A Packet Pg. 170
2822
reso 2822 (PDF)
Exhibit A-Escrow Agreement (PDF)
Updated: 12/19/2013 by Jolena E.Grider A
1 RESOLUTION NO.
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN ESCROW
3 AGREEMENT FOR SECURITY DEPOSITS IN LIEU OF RETENTION WITH ALL
4 AMERICAN ASPHALT AND COMMUNITY BANK.
5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO AS FOLLOWS:
6
SECTION 1. By Resolution No. 2013-300, the Mayor and Common Council
8 awarded a contract to All American Asphalt, Corona, California, for Pavement Rehabilitation a
r
9 on Three City Streets (Del Rosa Avenue, from Pumalo Street to Date Street (East), per Plan
L
d
10 No. 12819 (SS 12-007); Highland Avenue, from Cedar Street to Golden Avenue,per Plan No. a
11 a
12820 (SS 12-014); and Mt. Vernon Avenue, from Grant Avenue to Northerly of Walnut
12 3
Street,per Plan No. 12994 (SS 14-005).
13 d
14 SECTION 2. Pursuant to Section 22300 of the Public Contract Code of the State of a
15 California, for the project described in Section 1, above, All American Asphalt has made a 0
16 written request of the City of San Bernardino to execute an Escrow Agreement for Security W
17 00
Deposits in Lieu of Retention and to make payments of retention earnings directly to an
18 N
escrow agent, Community Bank, a California banking corporation, whose address is 505 E. N
19 N
20 Colorado Boulevard,Pasadena, California 91101. L
21 SECTION 3. The City Manager is hereby authorized and directed to execute an E
s
22 Escrow Agreement for Security Deposits in Lieu of Retention with All American Asphalt and a
23 Community Bank, a copy of which is attached hereto marked Exhibit "A" and incorporated
24 herein.
25
26 SECTION 4. The Director of Administrative Services or his designee is hereby
27 authorized and directed to make payments of retention earnings to the escrow agent and
28 oversee the administration of the escrow account in accordance with the Escrow Agreement.
Packet Pg: 172'
S.L.a
1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN ESCROW
2 AGREEMENT FOR SECURITY DEPOSITS IN LIEU OF RETENTION WITH ALL
AMERICAN ASPHALT AND COMMUNITY BANK.
3
4 SECTION S. The authorization to execute the above-referenced Agreement is
5 rescinded if not issued within sixty (60) days of passage of this Resolution.
6
7 ///
a
8
9
10 a
12 Ill
w
13 /ll E
14
15 0
16 w
"'
17 co
N
18 /// N
00
N
19 III N
L
20
m
21 E
22 a
23 111
24
25 IlI
26
27 111
28
73
1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN ESCROW
2 AGREEMENT FOR SECURITY DEPOSITS IN LIEU OF RETENTION WITH ALL
AMERICAN ASPHALT AND COMMUNITY BANK.
3
4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
5 and Common Council of the City of San Bernardino at a meeting
6 thereof, held on the day of , 2014,by the following vote,to wit:
7 0
Council Members: AYES NAYS ABSTAIN ABSENT a
8 a
9
MARQUEZ
E
JENKINS
� 10 a
11 VALDIVIA a
3
12 SHORETT
aD
13 E
VACANT
14 a
JOHNSON
15 c
16 MULVIHILL w
N
17 N
N
I 18 Georgeann Hanna, City Clerk N
19 0
The foregoing resolution is hereby approved this day of ,2014.
20 w
21 E
22 Patrick J. Morris, Mayor a
City of San Bernardino
23
Approved as to form:
24 GARY D. SAENZ,
25 City Attorney
26 B
27
28
Packet Pg. 174"
Ex
COMMUNIT,y BANK
Partnership Banking®
CONTRACTOR COP
November 13, 2013
t
CL
N
City of San Bernardino
Attn: Jeffrey Schafer
300 North "D" Street
3rd Floor a
San Bernardino, CA 92418 a
s
3
RE: Escrow#2198
Project: Pavement Rehabilitation on Three City Streets, Del Rosa Avenue, E
Highland Avenue and Mr. Vernon Avenue
Contractor: All American Asphalt a
3
0
An escrow has been opened for the above referenced project. Please find N
enclosed herewith three copies of the escrow agreement executed on behalf of W
All American Asphalt and Community Bank. Please sign all three escrow N
agreements where indicated and return to the Contractor and retain one copy for c
your records. Kindly arrange your finance department to have all retention _
deposits and release requests sent to the following address: E
0
Community Bank a
505 E Colorado Blvd. 3
Pasadena, CA 91101 °
Attn: Brian Sinclair-Escrow 2198 w
If you have any questions or concerns please contact me directly at (951) 808- a
8947.
X
W
Sincerely,
d
E
11 r. t� U
1 YY +�+
Tia L. Ballesteros a
Vice President
Customer Service Manager
tballesteros(a_cbank.com
255 E.RINCON STREET,SUITE 312,CORONA,CA 92879.1369
Tel(951)808-8910-Fax (951)808-8949 fteket Pa. 175
_ www.chank.cum
ESCROW NO: 2198
ACCOUNT NO: 14913602
ESCROW AGREEMENT FOR SECURITY DEPOSITS IN LIEU OF RETENTION
THIS ESCROW AGREEMENT FOR SECURITY DEPOSITS IN LIEU OF RETENTION (hereinafter
called the "Agreement") is made and entered into on this 5th day of November, 2013, by and between City of a
San Bernardino, whose address is 300 North "D" Street 3rd Floor, San Bernardino, CA 92418 (hereinafter Q
called "Owner"), All American Asphalt, whose address is P.O. Box 2229, Corona, CA 92878 (hereinafter C
called "Contractor"), and Community Bank, a California banking corporation, whose address is 505 E.
Colorado Boulevard, Pasadena, California 91101 (hereinafter called "Escrow Agent"). L
WHEREAS, the parties desire to establish an escrow account with Escrow Agent(the "Escrow Q
Account")pursuant to the provisions of Section 22300 of the California Public Contract Code. —
Q
NOW, "THEREFORE, for the consideration hereinafter set forth, the Owner, Contractor, and Escrow r
3
Agent agree as follows:
a�
1. Pursuant to Section 22300 of the Public Contract Code of the State of California,the Contractor E
has the option to deposit securities with Escrow Agent as a substitute for retention earnings required to be a
withheld by the Owner pursuant to the Construction Contract entered into between the Owner and the 3
Contractor, for Pavement Rehabilitation on Three City Streets, Del Rosa Avenue, Highland Avenue and Mt. o
Vernon Avenue in the amount of $990,000.00 (hereinafter referred to as the "Contract"). Alternatively, on W
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
co
Escrow Agent shall notify the Owner within ten (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 E
the name of City of San Bernardino, and shall designate the Contractor as the beneficial owner.
rn
a
2. The Owner shall make progress payments to the Contractor for those funds which otherwise o
would be withheld from progress payments pursuant to the Contract provisions, provided that the Escrow o
Agent holds securities in the form and amount specified above. w
a
3. When the Owner makes payment of the 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 x
this Agreement is terminated. The Contractor may direct the investment of the payments into securities. All w
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. E
4. The Contractor shall be responsible for paying all fees for the expenses incurred by the Escrow Q
Agent in administering the Escrow Account and all expenses of the Owner. These expenses and payment
terms shall be determined by the Owner,the Contractor and the 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.
CBCR-Agrmnt 1
I
Packet Pg. 176
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.
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. c
a
8. Upon receipt of written notification from the Owner certifying that the Contract is final and r-
complete, and that the Contractor has complied with all requirements and procedures applicable to the L
Contract, the Escrow Agent shall release to the Contractor all securities and interest on deposit less escrow E
fees and charges of the Escrow Account. The escrow shall be closed immediately upon disbursement of all a
moneys and securities on deposit and payments of fees and charges. a
9. The Escrow Agent shall rely on the written notifications from the Owner and the Contractor 3
pursuant to Sections 5 to 8, inclusive, of this Agreement and the Owner and the Contractor shall hold the E
Escrow Agent harmless from the Escrow Agent's release and disbursement of the securities and interest as d
d
set forth above. `v,
a
10. The names of the persons who are authorized to give written notice or to receive written notice o
L-
on behalf of the Owner and on behalf of the Contractor in connection with the foregoing, and exemplars of N
their respective signatures are as follows: "'
N
N
On behalf of the Owner: On behalf of the Contractor: FS
c
as
City o San Bernardino All American Asphalt 0
f
a�
m
L
Name: Name: Mark Luer a
3
Title: Title: President °
w
Signature: Signa e: a
w
s
X
Address: 300 North "D" Street 3rd Floor Address: P.O. Box 2229 w
San Bernardino, CA 92418 Corona, CA 92878 E
.r
a
CBCR-Agrmnt 2
Pa�ic�t Pg. 177
On behalf of the Escrow Agent:
COMMUNITY BAND
Name: Tia Ballesteros
Title: 'Vice President
Signature:,'—- 1, I
t
CL
Address: 505 E. Colorado Blvd. a
Pasadena, Ca. 91101 (626) 253-8290 =
,L
At the time the escrow account is opened, the Owner and the Contractor shall deliver to the E
Escrow Agent a fully executed original of this Agreement. Q
Q
s
w
IN WITNESS WHEREOF, the parties have executed this Agreement by their proper officers on the �
date first set forth above.
E
OWNER: CONTRACTOR:
a
3
0
Title: Title: President
Name: Name: Mark Luer w
N
N
00
Sir at
Signature: w
c
d
E
d
d
L
a
3
0
L
V
N
W
t
K
W
C
d
E
t
V
co
Q
- n' 3
Packet Pg. 178'.
__-IIfMYfYxwm�
S.L.b
ESCROW NO.: 2198
ACCOUNT NO.: 14913602
SUPPLEMENTAL TERMS OF ESCROW AGREEMENT FOR
SECURITY DEPOSITS IN LIEU OF RETENTION
THESE SUPPLEMENTAL TERMS OF ESCROW AGREEMENT FOR SECURITY DEPOSITS IN LIEU OF
RETENTION(hereinafter called the"Agreement")is made and entered into on this 5th day of November 2013,by and between
All American Asphalt,whose address is P.O.Box 229,Corona,CA 92878 (hereinafter called"Contractor"),and Community Q
Bank,a California banking corporation,whose address is 505 E.Colorado Boulevard,Pasadena,California 91101 (hereinafter w
called"Escrow Agent"). Q
c
M
WI IEREAS,the parties have entered into that certain Escrow Agreement For Security Deposits In Lieu Of Retention of L
even date herewith(the"Escrow Agreement")to establish an escrow account with Escrow Agent(the'Escrow Account")
pursuant to the provisions of Section 22300 of the California Public Contract Code(the"Statute");and Q
WHEREAS,the parties desire to set forth certain supplemental terms of the Escrow Agreement to cover the terms and Q
conditions upon which Escrow Holder has agreed to undertake its responsibilities under the Escrow Agreement. r
3
NOW,THEREFORE,for the consideration hereinafter set forth,the Contractor and Escrow Agent agree as follows:
E
1. The Escrow Agent agrees to open the Escrow Account to receive,hold,administer and dispose of the funds ai
and/or securities deposited into the Escrow Account pursuant to the Escrow Agreement and the Statute. All interest rate is
subject to market conditions,is determined by us from time to time,and can change as often as daily. Interest earned on your Q
account will be paid to your account on the last business day of the month. Interest is available to the contractor as soon as it is o
paid,however,no more than one interest withdrawal may be made from the escrow account per calendar month. L
U
N
2. Acceptance by the Escrow Agent of its duties under the Escrow Agreement is subject to the following terms
and conditions,which all parties to this Agreement hereby agree shall govern and control the rights,duties and immunities of N
Escrow Agent: N
a. The Escrow Agent undertakes to perform such duties and only such duties as are expressly set
forth herein and in the Statute,and no implied agreements or obligations shall be read into the Escrow Agreement against the
Escrow Agent;the Escrow Agent shall not be liable except for the performance of such duties and obligations as are expressly set a)
out in the Escrow Agreement and the Statute; m
rn
Q
b. The Escrow Agent shall not be responsible in any manner whatsoever for any failure or inability of 3
the Contractor or the Owner to honor any of the provisions of the Escrow Agreement,or any other agreement; 0
U
N
C. No provision of the Escrow Agreement shall require the Escrow Agent to expend or risk its own W
funds or otherwise incur any financial liability in the performance of its duties thereunder,or in the exercise of any of its rights or Q
powers,if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or Y_
liability is not reasonably assured to it.
.c
X
d. Unless otherwise instructed in writing by the Contractor,the Escrow Agent shall invest and W
reinvest the amounts deposited into the Escrow Account in an FDIC insured interest-bearing account(with no penalty for
immediate withdrawal)customarily used by the Escrow Agent to invest funds held in circumstances similar to those a)
E
contemplated hereby. v
C. If a controversy arises between one or more of the parties hereto,or between any of the parties Q
hereto and any person not a party hereto,as to whether or not or to whom the Escrow Agent shall deliver funds or securities in
the Escrow Account or as to any other matter arising out of or relating to the Escrow Account or the Escrow Agreement,the
Escrow Agent shall not be required to determine the same and shall not make any delivery of funds or securities from the Escrow
Account but shall retain the same until Escrow Agent shall have received either(a)written instructions signed by both the
Contractor and the Owner,or(b)a final,non-appealable judgment of a court of competent jurisdiction declaring the respective
rights of the Contractor and the Owner with respect to the Escrow Account,in which case the Escrow Agent shall disburse the
Escrow Account in accordance with such instructions,decision,award or judgment.The Escrow Agent shall be entitled to
assume that no such controversy has arisen unless it has received notice that such a controversy has arisen which refers
CBCR-Supp
Packet Pg. 179
specifically to the Escrow Agreement. If a controversy of the type referred to in this Section arises,the Escrow Agent may(but
shall not be obligated to)commence interpleader or similar actions or proceedings for determination of the controversy.
3. The Escrow Agreement and this Agreement shall be construed under and governed by and enforced in
accordance with the laws of the State of California.
4. This Agreement or the Escrow Agreement can be amended,modified,supplemented,extended,terminated,
discharged or changed only by an agreement in writing which makes specific reference to this Agreement or the Escrow
Agreement and which is signed by Contractor,Escrow Agent and Owner.
5. This Agreement and the Escrow Agreement shall be binding upon and inure solely to the benefit of the
parties hereto and their permitted successors and assigns and shall not be enforceable by or create or evidence any right of any N
third party;provided,that this Agreement or the Escrow Agreement cannot be assigned by Contractor or Owner without the Q
express written consent of all the parties hereto. v
.L
6. Any provision of this Agreement which may be determined by a court of competent jurisdiction to be d
prohibited or unenforceable(or to render this Agreement unenforceable pursuant to California Public Contract Code Section Q
22300(f))in any jurisdiction shall,as to such jurisdiction,be ineffective to the extent of such prohibition or unenforceability Q
without invalidating the remaining provisions hereof,and any such prohibition or unenforceability in any jurisdiction shall not s
invalidate or render unenforceable such provisions in any other jurisdiction.
3
7. The prevailing party shall be entitled to costs and expenses in connection with the enforcement of this
Agreement or the Escrow Agreement and any matter related thereto,whether or not suit is filed,and including any appeals or
bankruptcy proceeding,including the fees and out-of-pocket expenses of any legal counsel,and all costs and expenses of
enforcing any judgment or prosecuting any appeal of any judgment,order or award arising out of or in any way related to this Q
Agreement or the Escrow Agreement.
3
0
IN WITNESS WHEREOF,the parties have executed this Agreement by their proper officers on the date first set forth v
above. N
W
CONTRACTOR: Escrow Agent: N
N
All American Asphalt COMMUNITY BANK
c
m
"Title:President Title:Vice President E
w
d
Name: Mark Luer Name:Tia L.Ballesteros co
Signat s Signature:: '
v
N
W
P.O.Box 2229 505 E Colorado Q
Corona,CA 92878 Pasadena,CA 91101 n
t
X
W
C
d
E
.0
t�
t0
w
Q
CBCR-Supp 2
Packet Pg..180
COMMUNIT,yBANK
Partnership Banking'
BANK COPY
November 13, 2013
N
City of San Bernardino =
Attn: Jeffrey Schafer
300 North "D" Street
3`d Floor a
San Bernardino, CA 92418 a
3
RE: Escrow#2198
Project: Pavement Rehabilitation on Three City Streets, Del Rosa Avenue, E
Highland Avenue and Mr. Vernon Avenue
Contractor: All American Asphalt a
3
0
An escrow has been opened for the above referenced project. Please find y
enclosed herewith three copies of the escrow agreement executed on behalf of w
All American Asphalt and Community Bank. Please sign all three escrow N
agreements where indicated and return to the Contractor and retain one copy for co
your records. Kindly arrange your finance department to have all retention =
deposits and release requests sent to the following address: E
a)
$D
Community Bank a
505 E Colorado Blvd. 3
Pasadena, CA 91101 °
Attn: Brian Sinclair-Escrow 2198 N
w
If you have any questions or concerns please contact me directly at (951) 808- a
8947.
X
W
Sincerely,
E
w
Tia L. Ballesteros a
Vice President
Customer Service Manager
tballesteros@cbank.com
255 E.RINCON STREET,SUITE 312,CORONA,CA 92879-1369`
Tel(951)808-8940,Fax(951)808-8949 Packet Pg. 181
i
ESCROW NO: 2198
ACCOUNT NO: 14913602
ESCROW AGREEMENT FOR SECURITY DEPOSITS IN LIEU OF RETENTION
THIS ESCROW AGREEMENT FOR SECURITY DEPOSITS IN LIEU OF RETENTION (hereinafter
called the "Agreement") is made and entered into on this 5th day of November, 2013, by and between City of
San Bernardino, whose address is 300 North "D" Street 3rd Floor, San Bernardino, CA 92418 (hereinafter Q,
called "Owner"), All American Asphalt, whose address is P.O. Box 2229, Corona, CA 92878 (hereinafter a
called "Contractor"), and Community Bank, a California banking corporation, whose address is 505 E.
Colorado Boulevard, Pasadena, California 91101 (hereinafter called 'Escrow Agent").
WHEREAS, the parties desire to establish an escrow account with Escrow Agent (the 'Escrow E
Account")pursuant to the provisions of Section 22300 of the California Public Contract Code. _
d
NOW, THEREFORE, for the consideration hereinafter set forth, the Owner, Contractor, and Escrow 3
Agent agree as follows: _
a�
1. Pursuant to Section 22300 of the Public Contract Code of the State of California,the Contractor
has the option to deposit securities with Escrow Agent as a substitute for retention earnings required to be a,
withheld by the Owner pursuant to the Construction Contract entered into between the Owner and the 3
Contractor, for Pavement Rehabilitation on Three City Streets, Del Rosa Avenue, Highland Avenue and Mt. o
Vernon Avenue in the amount of$990,000.00 (hereinafter referred to as the "Contract"). Alternatively, on w
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 C
Escrow Agent shall notify the Owner within ten (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 a
retention under the terms of the Contract between the Owner and the Contractor. Securities shall be held in E
the name of City of San Bernardino, and shall designate the Contractor as the beneficial owner. d
rn
Q
2. The Owner shall make progress payments to the Contractor for those funds which otherwise o
would be withheld from progress payments pursuant to the Contract provisions, provided that the Escrow 0
Agent holds securities in the form and amount specified above. w
a
3. When the Owner makes payment of the 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 Agreement is terminated. The Contractor may direct the investment of the payments into securities. All x
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. E
U
4. The Contractor shall be responsible for paying all fees for the expenses incurred by the Escrow a
Agent in administering the Escrow Account and all expenses of the Owner. These expenses and payment
terms shall be determined by the Owner, the Contractor and the 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.
CBCR-Agrmnt 1
Packet Pg.182
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.
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.
CL
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
•L
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 Q
moneys and securities on deposit and payments of fees and charges. Q
9. The Escrow Agent shall rely on the written notifications from the Owner and the Contractor 3
pursuant to Sections 5 to 8, inclusive, of this Agreement and the Owner and the Contractor shall hold the
Escrow Agent harmless from the Escrow Agent's release and disbursement of the securities and interest as E
set forth above. a,
Q
10. The names of the persons who are authorized to give written notice or to receive written notice o
on behalf of the Owner and on behalf of the Contractor in connection with the foregoing, and exemplars of y
their respective signatures are as follows: w
N
N
On behalf of the Owner: On behalf of the Contractor: N
c
d
City of San Bernardino All American Asphalt m
a�
L
Name: Name: Mark Luer a
3
Title: Title: President
N
Signature: Sign at I e:
X
Address: 300 North "D" Street 3rd Floor Address: P.O. Box 2229 W
u
San Bernardino, CA 92418 Corona, CA 92878
E
r
U
f6
w+
w
Q
CBCR-Agrmnt 2
Packet Pg. 183
On behalf of the Escrow Agent:
COMMUNITY BANK
Name: Tia Ballesteros
Title: Vice President
�
_
a
Address: 505 E. Colorado Blvd. Q
Pasadena,Ca. 91101 (626)253-8290
L
At the time the escrow account is opened,the Owner and the Contractor shall deliver to the E
Escrow Agent a fully executed original of this Agreement. a
a
Y
IN WITNESS WHEREOF, the parties have executed this Agreement by their proper officers on the 3
date first set forth above. a
E
OWNER: CONTRACTOR:
Q
3
0
Title: Title: President
Name: Name: Mark Luer
N
N
co
Signature: Signature-
(D
E
L
rn
Q
3
0
L
N
W
s
X
W
c
a�
E
_
a
Q
3
Packet Pg. 184
ESCROW NO.: 2198
ACCOUNT NO.: 14913602
SUPPLEMENTAL TERMS OF ESCROW AGREEMENT FOR
SECURITY DEPOSITS IN LIEU OF RETENTION
THESE SUPPLEMENTAL TERMS OF ESCROW AGREEMENT FOR SECURITY DEPOSITS IN LIEU OF
RETENTION(hereinafter called the"Agreement")is made and entered into on this 5th day of November 2013,by and between
All American Asphalt,whose address is P.O.Box 229,Corona,CA 92878 (hereinafter called"Contractor"),and Community Q
Bank,a California banking corporation,whose address is 505 E.Colorado Boulevard,Pasadena,California 91101 (hereinafter Q
called'Escrow Agent").
WHEREAS,the parties have entered into that certain Escrow Agreement For Security Deposits In Lieu Of Retention of L
even date herewith(the'Escrow Agreement')to establish an escrow account with Escrow Agent(the'Escrow Account") E
pursuant to the provisions of Section 22300 of the California Public Contract Code(the"Statute");and Q
WHEREAS,the parties desire to set forth certain supplemental terms of the Escrow Agreement to cover the terms and Q
conditions upon which Escrow Ifolder has agreed to undertake its responsibilities under the Escrow Agreement.
3
NOW,THEREFORE,for the consideration hereinafter set forth,the Contractor and Escrow Agent agree as follows:
a�
E
1. The Escrow Agent agrees to open the Escrow Account to receive,hold,administer and dispose of the funds
and/or securities deposited into the Escrow Account pursuant to the Escrow Agreement and the Statute. All interest rate is
subject to market conditions,is determined by us from time to time,and can change as often as daily. Interest earned on your Q
account will be paid to your account on the last business day of the month. Interest is available to the contractor as soon as it is o
paid,however,no more than one interest withdrawal may be made from the escrow account per calendar month.
N
2. Acceptance by the Escrow Agent of its duties under the Escrow Agreement is subject to the following terms u►
and conditions,which all parties to this Agreement hereby agree shall govern and control the rights,duties and immunities of N
N
Escrow Agent: N
a. The Escrow Agent undertakes to perform such duties and only such duties as are expressly set c
forth herein and in the Statute,and no implied agreements or obligations shall be read into the Escrow Agreement against the m
Escrow Agent;the Escrow Agent shall not be liable except for the performance of such duties and obligations as are expressly set 00%
out in the Escrow Agreement and the Statute; L
Q
b. The Escrow Agent shall not be responsible in any manner whatsoever for any failure or inability of 3
the Contractor or the Owner to honor any of the provisions of the Escrow Agreement,or any other agreement; o
U
N
C. No provision of the Escrow Agreement shall require the Escrow Agent to expend or risk its own W
funds or otherwise incur any financial liability in the performance of its duties thereunder,or in the exercise of any of its rights or Q
powers,if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
s
X
d. Unless otherwise instructed in writing by the Contractor,the Escrow Agent shall invest and ul
reinvest the amounts deposited into the Escrow Account in an FDIC insured interest-bearing account(with no penalty for c
immediate withdrawal)customarily used by the Escrow Agent to invest funds held in circumstances similar to those a)
E
contemplated hereby.
U
fC
w
C. If a controversy arises between one or more of the parties hereto,or between any of the parties Q
hereto and any person not a party hereto,as to whether or not or to whom the Escrow Agent shall deliver funds or securities in
the Escrow Account or as to any other matter arising out of or relating to the Escrow Account or the Escrow Agreement,the
Escrow Agent shall not be required to determine the same and shall not make any delivery of funds or securities from the Escrow
Account but shall retain the same until Escrow Agent shall have received either(a)written instructions signed by both the
Contractor and the Owner,or(b)a final,non-appealable judgment of a court of competent jurisdiction declaring the respective
rights of the Contractor and the Owner with respect to the Escrow Account,in which case the Escrow Agent shall disburse the
Escrow Account in accordance with such instructions,decision,award or judgment.The Escrow Agent shall be entitled to
assume that no such controversy has arisen unless it has received notice that such a controversy has arisen which refers
CBCR-Supp
Packet Pg. 185
specifically to the Escrow Agreement. If a controversy of the type referred to in this Section arises,the Escrow Agent may(but
shall not be obligated to)commence interpleader or similar actions or proceedings for determination of the controversy.
1 The Escrow Agreement and this Agreement shall be construed under and governed by and enforced in
accordance with the laws of the State of California.
4. This Agreement or the Escrow Agreement can be amended,modified,supplemented,extended,terminated,
discharged or changed only by an agreement in writing which makes specific reference to this Agreement or the Escrow
Agreement and which is signed by Contractor,Escrow Agent and Owner.
ca
5. This Agreement and the Escrow Agreement shall be binding upon and inure solely to the benefit of the Q,
parties hereto and their permitted successors and assigns and shall not be enforceable by or create or evidence any right of any Q
third party;provided,that this Agreement or the Escrow Agreement cannot be assigned by Contractor or Owner without the
express written consent of all the parties hereto. v
6. Any provision of this Agreement which may be determined by a court of competent jurisdiction to be E
prohibited or unenforceable(or to render this Agreement unenforceable pursuant to California Public Contract Code Section Q
22300(f))in any jurisdiction shall,as to such jurisdiction,be ineffective to the extent of such prohibition or unenforceability Q
without invalidating the remaining provisions hereof,and any such prohibition or unenforceability in any jurisdiction shall not <
invalidate or render unenforceable such provisions in any other jurisdiction.
3
7. The prevailing party shall be entitled to costs and expenses in connection with the enforcement of this y
Agreement or the Escrow Agreement and any matter related thereto,whether or not suit is filed,and including any appeals or
bankruptcy proceeding,including the fees and out-of-pocket expenses of any legal counsel,and all costs and expenses of
enforcing any judgment or prosecuting any appeal of any judgment,order or award arising out of or in any way related to this Q
Agreement or the Escrow Agreement.
3
0
IN WITNESS WHEREOF,the parties have executed this Agreement by their proper officers on the date first set forth v
above. t I
CONTRACTOR: Escrow Agent: N
eo
N
All American Asphalt COMMUNITY BANK w
c
m
Title:President Title:Vice President E
m
w
Name:Mark Lucr Namc:`I'ia Iv,Ballesteros Q
Sign Signature-. A-.,. J` �,� t'L'LC`' o
N
W
P.O.Box 2229 505 E.Colorado Q
Corona,CA 92878 Pasadena,CA 91101 .0
t
X
W
C
d
E
U
f0
Q
CBCR-Sapp 2
Packet Pg 186e;,
II
COMMUNIT,yBANK
a� Partnership Banking'
AGENCY COPY
November 13, 2013
a
N
City of San Bernardino =
Attn: Jeffrey Schafer U
300 North "D" Street
3`d Floor a
San Bernardino, CA 92418 a
3
RE: Escrow#2198
Project: Pavement Rehabilitation on Three City Streets, Del Rosa Avenue,
Highland Avenue and Mr. Vernon Avenue
Contractor: All American Asphalt Q
3
0
An escrow has been opened for the above referenced project. Please find N
enclosed herewith three copies of the escrow agreement executed on behalf of W
All American Asphalt and Community Bank. Please sign all three escrow N
agreements where indicated and return to the Contractor and retain one copy for
your records. Kindly arrange your finance department to have all retention
deposits and release requests sent to the following address:
a�
Community Bank a
505 E Colorado Blvd.
Pasadena, CA 91101 °
Attn: Brian Sinclair-Escrow 2198 w
If you have any questions or concerns please contact me directly at (951) 808- a
8947. °
X
W
Sincerely,
W
N
Tia L. Ballesteros Q
Vice President
Customer Service Manager
tballesteros(a�cbank.com
255 E.RINCON STREET,SUITE 312,CORONA,CA 92.879-1.369
Tel(95l)808.8940 Fax(951)808-8949
mm.chank.com 7 7::7717711111< -:
ESCROW NO: 2198
ACCOUNT NO: 14913602
ESCROW AGREEMENT FOR SECURITY DEPOSITS IN LIEU OF RETENTION
THIS ESCROW AGREEMENT FOR SECURITY DEPOSITS IN LIEU OF RETENTION (hereinafter
called the "Agreement") is made and entered into on this 5th day of November, 2013, by and between City of
San Bernardino, whose address is 300 North "D" Street 3rd Floor, San Bernardino, CA 92418 (hereinafter a
called "Owner"), All American Asphalt, whose address is P.O. Box 2229, Corona, CA 92878 (hereinafter a
called "Contractor"), and Community Bank, a California banking corporation, whose address is 505 E.
Colorado Boulevard, Pasadena, California 91101 (hereinafter called "Escrow Agent").
d
WHEREAS, the parties desire to establish an escrow account with Escrow Agent(the 'Escrow E
Account")pursuant to the provisions of Section 22300 of the California Public Contract Code. —
a
NOW, THEREFORE, for the consideration hereinafter set forth,the Owner, Contractor, and Escrow 3
Agent agree as follows:
d
1. Pursuant to Section 22300 of the Public Contract Code of the State of California, the Contractor d
has the option to deposit securities with Escrow Agent as a substitute for retention earnings required to be a
withheld by the Owner pursuant to the Construction Contract entered into between the Owner and the 3
Contractor, for Pavement Rehabilitation on Three City Streets, Del Rosa Avenue, Highland Avenue and Mt. 0
Vernon Avenue in the amount of$990,000.00 (hereinafter referred to as the "Contract"). Alternatively, on w
written request of the Contractor, the Owner shall make payments of the retention earnings directly to N
the Escrow Agent. When the Contractor deposits the securities as a substitute for Contract earnings, the
co
Escrow Agent shall notify the Owner within ten (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 E
the name of City of San Bernardino, and shall designate the Contractor as the beneficial owner. d
rn
a
2. The Owner shall make progress payments to the Contractor for those funds which otherwise c
would be withheld from progress payments pursuant to the Contract provisions, provided that the Escrow 0
Agent holds securities in the form and amount specified above. w
Q
3. When the Owner makes payment of the 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 E
this Agreement is terminated. The Contractor may direct the investment of the payments into securities. All w
terms and conditions of this Agreement and the rights and responsibilities of the parties shall be equally Z
applicable and binding when the Owner pays the Escrow Agent directly. E
4. The Contractor shall be responsible for paying all fees for the expenses incurred by the Escrow a
Agent in administering the Escrow Account and all expenses of the Owner. These expenses and payment
terms shall be determined by the Owner, the Contractor and the 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.
CSCR-A.rmnt 1
L-10,acket 0 g. 1,814
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.
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.
a
N
8. Upon receipt of written notification from the Owner certifying that the Contract is final and C
complete, and that the Contractor has complied with all requirements and procedures applicable to the m2
L
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. Q
9. The Escrow Agent shall rely on the written notifications from the Owner and the Contractor 3
pursuant to Sections 5 to 8, inclusive, of this Agreement and the Owner and the Contractor shall hold the
Escrow Agent harmless from the Escrow Agent's release and disbursement of the securities and interest as E
set forth above.
a�
a
10. The names of the persons who are authorized to give written notice or to receive written notice c
on behalf of the Owner and on behalf of the Contractor in connection with the foregoing, and exemplars of N
their respective signatures are as follows: W
N
N
On behalf of the Owner: On behalf of the Contractor: N
r
C
a)
City of San Bernardino All American Asphalt E
I i
Name: Name: Mark Luer Q
3
Title: Title: President o
U
N
W
Signature: Signature'
t
X
Address: 300 North "D" Street 3rd Floor Address: P.O. Box 2229 W
San Bernardino, CA 92418 Corona, CA 92878 C
E
z
c�
a
CBCR-Agrnmt z
Packet Pg.189
On behalf of the Escrow Agent:
COMMUNITY BANK
Name: Tia Ballesteros
Title: Vice President
Signature'
Address: 505 E. Colorado Blvd. y
Pasadena, Ca. 91101 (626)253-8290
L
At the time the escrow account is opened,the Owner and the Contractor shall deliver to the E
Escrow Agent a fully executed original of this Agreement. Q
Q
r
IN WITNESS WHEREOF, the panties have executed this Agreement by their proper officers on the 3
date first set forth above. 0
E
OWNER: CONTRACTOR:
a�
Q
3
Title: Title: President
N
Name: Name: Mark Luer
CM
04
Sltllte;_ Signatiii N
c
m
E
d
m
L
Q
3
0
L
w
Z
X
w
c
(D
E
s
ca
w
Q
. +nc' 3
Packet Pg. 190