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HomeMy WebLinkAbout8038RESOLUTION NO. 8038 A RESOLUTION APPROVING AN ESCROW CONTRACT AND SECURITY AGREEMENT, BY AND BETWEEN THE CITY OF PUEBLO AND LAWRENCE CONSTRUCTION COMPANY, CONCERNING THE HARP PROJECT BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Escrow Contract and Security Agreement dated January 27, 1997, by and between the City of Pueblo, a Municipal Corporation, and Lawrence Construction Company, a copy of which is attached hereto, having been approved as to form by the City Attorney, is hereby approved. The President of the City Council is authorized to execute the Escrow Contract and Security Agreement in the name of the City, and the City Clerk is directed to affix the seal of the City thereto and attest same. INTRODUCED January 27 1 1997 By Samuel Corsentino Councilperson APPROVED: Presicont oft Council ATTEST: 71 e r �k 01/17/97 11:31 $303 791 5647 LAWRENCE CONST � LCCO P UEBLO PROJECT NO. 96 -043 CITY OF PUEBLO - IUSTORIC ARKANSAS RIVERWALK PROJECT (HARP) - PHASE I ESCROW CONTRACT AND SECURITY AGREEMENT THIS ESCROW CONTRACT AND SECURITY AGREEMENT (the "Agreement "), made this day of , 19 by and between the City of Pueblo, a Municipal Corporation (the "City ") and Lawrence Construction Company, 9002 North Moore Road, Littleton, Colorado 80125, a corporation, doing business by virtue of the laws of the State of Colorado, (the "Contractor "), and BANK OF DENVER, 1534 California Street, Denver, Colorado 80202 (a state bank) located in Colorado, (the "Escrow Agent "). WHEREAS, required approval clearance and coordination has been accomplished from and with appropriate agencies; and WHEREAS, the City and Contractor have heretofore entered into a construction contract identified as Project No. 96 -043 and dated October 10, 1996, exceeding the amount of $50,000, for the construction, alteration, or repair of one or more public buildings, works, improvements, structures or systems (the "Contract "); and WHEREAS, pursuant to Colorado Revised Statutes, Article 91, of Title 24, as amended, (the "Statute ") the City has already retained or shall retain payments otherwise due to said Contractor in accordance with the terms and conditions of the Contract; and WHEREAS, the Statute authorizes withdrawal by the Contractor of sums retained by the City if the Contractor deposits acceptable securities with the City; and WHEREAS, pursuant to the Statute, the City and the Contractor may enter into an escrow contract with an Escrow Agent designated by mutual agreement of the City and the Contractor, after notice to the Surety, to provide for the custodial care and servicing of acceptable securities deposited by the Contractor in substitution for the retained payments; and WHEREAS, the Escrow Agent and Contractor have agreed and understand that the City shall be protected under this Agreement to the same extent it would have been had the withdrawal not been made by the Contractor or had the acceptable securities been deposited with the City; and WHEREAS, the Escrow Agent and Contractor have agreed that any expenses incurred for the services of the Escrow Agent shall be paid by Contractor and not be charged to the City. 10001 -1- 7,:1H0MF.1tSCR0 WS'�Crr -PUE L,SA.�I NOW, THEREFORE, it is hereby agreed that: 1. In order to assure full and complete performance by the Contractor under the Contract, and to allow withdrawal of amounts retained by the City to assure such performance of the Contract, the Contractor and Escrow Agent hereby certify that the Contractor has deposited "acceptable securities" with the Escrow Agent as collateral security for satisfactory performance of the Contract, and that the Contractor has assigned and transferred, in accordance with paragraph 4 of this Agreement, unto the City all of its right, title and interest in and to the acceptable securities deposited with the Escrow Agent pursuant to this Agreement, and the contractor does hereby irrevocably constitute and appoint the Escrow Agent its attorney to transfer said acceptable securities at any time unto the City upon demand of the City and without any showing by the City other than this Agreement. Each acceptable security initially deposited by the Contractor with the Escrow Agent hereunder is itemized in Exhibit A attached hereto and by this reference made a part hereof. From time to time as may be necessary said Exhibit A shall be modified, in accordance with paragraph 6 of this Agreement by the Contractor and the Escrow Agent to identify any and all additional or substituted acceptable securities and to certify that the acceptable securities have been deposited and assigned or transferred in accordance with this paragraph 1. Any such modification of Exhibit A shall, upon execution by the Escrow Agent and Contractor and delivery to the City, be incorporated herein by reference. 2. "Acceptable securities" may be in any form permitted by the Statute, except as noted herein, to -wit: United States Bonds, United States Treasury Notes, United States Treasury Bills, General Obligation or Revenue Bonds of the State of Colorado, General Obligation or Revenue Bonds of any political subdivision of the State of Colorado having a rating of "AA" or better, or Certificates of Deposit from a state or national bank or a savings and loan association insured by the Federal Deposit Insurance Corporation or the Federal Savings and Loan Insurance Corporation and having its principal office in the State of Colorado, whether in existence or hereafter arising, presently owned or hereafter acquired, and the proceeds thereof, and any additions or substitutions thereof. 3. Contractor hereby warrants that it is the owner of each acceptable securities deposited with the Escrow Agent pursuant to this Agreement, and has full power and authority to assign, transfer, pledge, encumber, or otherwise deal with the acceptable securities, free of any claim by any entity other than the City. 4. Contractor has executed documents necessary to further the purposes of this Agreement, authorizing the City to negotiate each of the acceptable security and receive any payments due the City pursuant to law or the terms of this Agreement upon the City's demand, and including but not limited to the following: (a) For all securities, the Contractor has executed and attached to each security an Assignment in the form approved by the City (Attachment 1), specifically setting forth the type, number, amount, date of issuance, maturity date and other information necessary to identify such acceptable securities and effectively and lawfully assigning each security to City. -2- Z\FiOME\ESCROW S\CIT -PUEL. SAM 01/17/97 11:31 $303 791 5647 LAWRENCE CONST. - -+ LCCO PUEBLO 2002 5. The City at any time may exercise its rights under this Agreement to make demand upon the Escrow Agent for presentment or for negotiation of the acceptable securities or for delivery of the acceptable securities and asignments to the City; or the City may retain payments due to the Contractor, deemed necessary by the City to protect the Cities interests. The City shall not be responsible or liable for any loss or damages to the Contractor arising from or related to City exercising, its rights under this Agreement, including but not limited to, any loss or damaged resulting from the maturity of any of the acceptable securities, depreciation in the market value thereof, penalties for early withdrawal or negotiation, or in failing to exercise any rights in connection therewith. 6. At any time the Contractor wishes to add or substitute other acceptable securities, including those circumstances where acceptable securities have matured, such addition or substitution shall be made in accordance with Paragraph 1 of this Agreement. After any such substitution is made and determined to be acceptable by the City, the City by its designated representative, shall instruct the Escrow Agent as to the disposition of such security for which the substitution is proposed. 7. The Escrow Agent shall retain each of the acceptable securities until such time as the City, by its designated representative, shall instruct the Escrow Agent as to the disposition of such acceptable securities. 8. The Escrow Agent shall collect all interest and income when due on the acceptable securities so deposited and shall pay such interest and income when and as collected, to the Contractor unless otherwise instructed by the City_ If the deposit is in the form of coupon bonds, the Escrow Agent shall deliver each coupon, as it matures, to the Contractor subject to any demand by the City in accordance with this Agreement. 9. The Escrow Agent shall maintain the acceptable securities so deposited, under this Agreement, in a separate custody account and shall estimate, on a reasonable basis consistent with its normal procedures, the market value of such securities not less than once each month, and report such value to the designated representative of the City and to the Contractor. 10. Once each quarter the Escrow Agent shall furnish the City and the Contractor a statement showing any transactions for the preceding quarter and identifying acceptable securities being held by the Escrow Agent as of the last day of the previous quarter. From time to time at the request of the City or the Contractor, the Escrow Agent will furnish to the City and to the Contractor an interim statement showing the acceptable securities currently being held as of the 25th day of each month, or if the 25th day is a non - business day, then the following business day. -3- ZIHOME\ESCROWSICMPUEL.SAM 11. Any expense incurred by the Escrow Agent or fees, costs and charges by the Escrow Agent in connection with any aspect of the holding in escrow of the acceptable securities pursuant to the provisions of this Agreement shall be the obligation of the Contractor and shall not be charged to the City. The acceptable securities shall be free of any claim or charge for such expenses, fees, costs or charges except as provided in this Agreement. The Escrow Agent may pay itself for such accrued fees, costs and charges out of interest or income received from the acceptable securities which otherwise would be payable hereunder to the Contractor. 12. The City shall have the right to have its designated representative inspect the acceptable securities from time to time and as frequently as City may desire to determine their authenticity and to determine compliance with this Agreement. If such inspection shall determine that any of the securities are not authentic or collectible, or this Agreement is not being complied with, the City shall have shall have the right, but not the obligation to forthwith notify the Contractor and the Escrow Agent of such deficiency. If such deficiency is not corrected or resolved to the satisfaction of the City within two working days of such notification being provided, the City may immediately terminate this Agreement or require the Contractor to cure the deficiency. If this Agreement is terminated, Escrow Agent will immediately transfer and deliver all securities then on deposit to City and the security interest hereby created shall remain in full force and effect. 13. The Escrow Agent shall not be deemed liable or responsible for the collectability of any acceptable security it holds pursuant to this Agreement. The Escrow Agent agrees to pay on demand of the City, and to indemnify and hold harmless the City, from and against all other costs, damages, judgments, attorney's fees, expenses, obligations and liabilities of any kind or nature which, in good faith, the City may incur or sustain in connection with, or arising out of this Agreement. The City shall not be responsible or liable for damages to the Escrow Agent in exercising its rights under this Agreement or in failing to exercise its rights in connection therewith. 14. Notwithstanding anything to the contrary herein appearing, the City shall have no duty to know or determine the performance or non - performance of any term or condition of this Agreement as between the Escrow Agent and the Contractor, and the Escrow Agent shall have no duty to know or determine the performance or non - performance of any Contracts between the City and the Contractor, and the duties and responsibilities of the parties hereto are limited to those specifically stated herein. 15. In the event that the Escrow Agent receives demand from the City, the Escrow Agent shall cease any payments or delivery of coupons to the Contractor for acceptable securities deposited pursuant to this Agreement, and shall retain such acceptable securities, payments and coupons until it receives instructions from the City regarding disposition of such acceptable securities. In the event the City makes demand verbally, it shall confirm the demand in writing within three working days. H ZAH OMMESCRO W SCrr -PUEL SAM 16. The Contractor agrees to pay on demand to the Escrow Agent, and to indemnify and hold harmless the Escrow Agent and the City, from and against all costs, damages, judgments, attorneys' fees, expenses, obligations and liabilities of any kind or nature which, in good faith, the Escrow Agent may incur or sustain in connection with, or arising out of this Agreement, and the Escrow Agent is hereby given a lien upon all right, title and interest the Contractor has in the interest which may accrue on the acceptable securities and in that portion of the acceptable securities to which the Contractor is entitled under the statute. The Escrow Agent shall not be responsible or liable for damages to the Contractor if it acts upon the instructions of the City in the handling of acceptable securities or for the Cities failure to exercise any right in connection therewith. 17. The Escrow Agent shall waive and hereby does waive, any right or power of set -off against the City or against the Contractor arising out of any obligation of Contractor other than under this Agreement in relation to the acceptable securities or their proceeds. 18. The Contractor represents and warrants that it has taken all actions that are necessary or that are required by its procedures, bylaws or applicable law, to legally authorize the undersigned signatory to execute this Agreement on behalf of the Contractor and to bind the Contractor to its terms. 19. The Escrow Agent represents and warrants that it has taken all actions that are necessary or that are required by its procedures, bylaws, or applicable law, to legally authorize the undersigned signatory to execute this Agreement on behalf of the Escrow Agent and to bind the Escrow Agent to its terms. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first above written. ATTEST: City of Pueblo, a Municipal Corporation By: By: GLCc.- Title: ATTEST: CONTRACTOR: Lawrenc Construction Comp By: .�—' By: -SeeF" y C. -� /S President (SEAL) ATTEST: ESCROW AQZNT -BANK OF DENVER By: f �'z✓ By: �' Title: 42 2 w l Title: PRESIDENT -5- ZAHOME\ESCROW S\CTr -PUEL. SAM (Attachment 1) ASSIGNMENT OF ACCEPTABLE SECURITY The undersigned Contractor represents that he (it) is the Owner of the acceptable security identified as follows: BANK OF DENVER CERTIFICATE OF DEPOSIT #7196 IN THE AMOUNT OF $411,456.94: MATURES 4 -16 -97 Contractor hereby sells, assigns and transfers unto the City of Pueblo, Colorado a municipal corporation, all of his (its) right, title and interest in and to said security and does hereby irrevocable constitute and appoint Bank of Denver (Escrow Agent) attorney to transfer said security at any time unto the City of Pueblo, a municipal corporation upon its demand. Dated at DENVER Colorado this 9TH day of JANUARY 19 97 11*6xerfe e Contractor - Owner By: Y Title: f+'�ryG �- Note: A separate form of this assignment shall be executed and attached to each separate security. -6- ZViOME\ESCROW S/CCP- PUEL.SAM