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HomeMy WebLinkAboutC08-251PROJECTS NOS. A.I.P. No. 3-08-0020-41 ESCROW CONTRACT AND SECURITY AGREEMENT THIS ESCROW CONTRACT AND SECURITY AGREEMENT (the "Agreement"), -- -made effective.the -1st day of May. 20118, >ay andbetween the-Eoard of bounty- - -- - -- Commissioners of Eagle (the "County"), and Oldcastle SW Group, Inc., dba: United Companies of Mesa Counter a corporation doing business by virtue of the laws of the State of Colorado, (the "Contractor"), and Wells Faro (a national bank) located in Colorado, (the "Escrow Agent"). WHEREAS, a required approval clearance and coordination has been accomplished from and with appropriate agencies; and WHEREAS, the County and Contractor have heretofore entered into a construction contract identified as Eagle County Airport A.I.P. 3-08-0020-41 and dated 5/01/08 Exceeding the amount of $80,000 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 County has already retained or shall retain payments otherwise due to said Contractor in accordance with the terms and conditions of the aforesaid construction contract; and WHEREAS, the Statute authorizes withdrawal by the Contractor of sums retained by the County if the contractor deposits acceptable securities with the County; and WHEREAS, pursuant to the Statute, the County and the Contractor may enter into an escrow contract with an Escrow Agent designated by mutual agreement of the County 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 County 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 County; and WHEREAS, the Escrow Agent and Contractor have agreed that any expenses incurred for the services of the Escrow Agent shall not be charged to the County. NOW, THEREFORE it is hereby agreed that: 1. In order to assure satisfactory performance of the Contractor under Contract, and to allow withdrawal of amounts retained by the County to assure satisfactory performance of the Contracts under the Statute, 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 County all of its right, title and interest in and to the acceptable -- ~ecuriti€s deposited with the Escrow Agont-pursua~t- to-this Agrgo~ngnt,--and-- the Contractor does hereby irrevocably constitute and appoint the Escrow Agent its attorney to transfer said acceptable securities at any time unto the County upon demand of the County and without any showing by the County 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 County, be incorporated herein by reference. 2. "Acceptable securities" may be in any form permitted by the Statute, 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, 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 there of. 3. Contractor shall identify the type and amount of security being used and the County must approve the acceptability of the security prior to implementation. 4. Contractor hereby warrants that it is the owner of each acceptable security 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 that the County. 5. Contractor has executed documents necessary to further the purpose of this 2 Agreement, authorizing the County to negotiate the security and receive any payments due the County pursuant to law or the terms of this Agreement upon the County's demand, and including but not limited to the following: a) For all securities which are negotiable instruments, the Contractor has executed and attached to each security an Assignment in the form approved by the County (Attachment 1), specifically setting forth the type, number, amount, dated of issuance, maturity date and other information necessary to identify such acceptable securities. b_- _The-County-at an-y time-may-~xercisa-itsxights under~hisAgreement to make -__- - -- demand upon the Escrow Agent for presentment or for negotiation of the acceptable securities or for delivery of the acceptable securities to the County; or the County may retain payments due to the Contractor, deemed necessary by the County to protect the County's interests. The County shall not be responsible or liable for any damages to the Contractor in exercising its rights under this Agreement resulting from, among other things, the maturity of any of the acceptable securities or depreciation in the market value thereof or in failing to exercise any rights in connection therewith. 7. 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 County, the County by its designated representative, shall instruct the Escrow Agent as to the disposition of such security for which the substitution is proposed. 8. The Escrow Agent shall retain the acceptable securities until such time as the County, by its designated representative, shall instruct the Escrow Agent as to the disposition of such acceptable securities. 9. 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 County. 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 County in accordance with this Agreement. 10. 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 County and to the Contractor. 11. Once each quarter the Escrow Agent shall furnish the County and the 3 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 County or the contractor, the Escrow Agent will furnish to the County and 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 anon-business day, then the following business day. 12. 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 thi's Agreement-shalLhe the obligation of the Contractor and shall not be charged to the County. 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. 13. The County shall have the right to have its designated representative inspect the acceptable securities from time to time 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 County shall have 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 County within two (2) working days of such notification being provided, the County may immediately terminate this escrow arrangement or require the Contractor to cure the deficiency. If this escrow arrangement is terminated, the security interest hereby created shall remain in full force and effect. 14. 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 County, and to indemnify and hold harmless the County, 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 County may incur or sustain in connection with, or arising out of this Agreement. The County 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. 15. Notwithstanding anything to the contrary therein appearing, the County 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 Contract between the County and the 4 Contractor, and the duties and responsibilities of the parties hereto are limited to those specifically stated herein. 16. In the event that the Escrow Agent received demand from the County, the Escrow Agent shall cease any payments or delivery of coupons to the Contractor for acceptable securities pursuant to this agreement, and shall retain such acceptable securities until it receives instructions from the County regarding disposition of such acceptable securities. In the event the County makes demand verbally, it shall confirm the demand in writing within three (3) working days. 17 The Contractor agrees to pay on demand to the Escrow Agent, and to indemnify and hold harmless the Escrow Agent and the County, from and against all costs, damages, judgment, attorney's 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 County in the handling of acceptable securities any rights in connection there with. 18. The Escrow Agent shall waive and hereby does waive, any right or power of set-off against the County 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. 19. The Special Provisions attached hereto are hereby made a part of this contract. 20. 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 contract on behalf of the Contractor and to bind the contractor to its terms. 21. The Escrow Agent represents and warrants that it has taken all actions that are necessary of that are required by its procedures, bylaws, or applicable law, to "legally" authorize the undersigned signatory to execute this contract on behalf of the Escrow Agent and to bind the Escrow Agent to its term. 22. This Agreement shall be governed and construed in accordance with the laws of Colorado. Venue for any action arising out of any dispute pertaining to this Agreement shall be in the State of Colorado District Court for the Fifth Judicial District, Eagle County, Colorado 5 IN WITNESS WHEREOF, the parties hereto have executed this Agreement On the date first above written. ATTEST: ~,,," B ~~i Clerk lg~: ,D~~ ATTEST: -~ ~~ ,f: By ~~~!f ; r '~-~~L~ ~,` , ~~ r ~., Title: Asst Secretary ATTEST: By ~~ ~~.~.~.~ `~. _ ~, ~ ~~ ~ Title: ~ - BOARD OF COUNTY COMMISSIONERS OF EAGLE COUNTY, COLORADO ~~ c - -- - - - ~ --- - -- ,~ Chairp~r5on "otoa~~ CONTRACTOR- OLDCASTLE SW GROUP, INC., dba UNITED COMPANIES OF MESA COUNTY By raig Lam erty Title: President ESCROW AGENT -WELLS FARGO BANK, N.A. By (~~~ Title: Business Relationship Manager 6 - - - - ---- -EXHIBIT LIST OF SECiJRITIES TO BE ATTACHED BY THE CONTRACTOR 80715004D2 w Time Account ...v• .:'a4~~~ ReceiptlDisclosure a name Wells Fargo Bank , N.A. Time Accour~ number Data operrad Term of 1'rcrre Account 8071500402 0710912008 24 months days au a Ir2erestra79 Fixtdrafe Yerfah'erdte Anrwalpercentageyield Your Time Account will mature an 07!0912010 2.08 X 2'10 EVERY 01 MONTHS AND AT WITHDRAWAL ' e me o i e paY+ne _ BY CREDITING CHECKING ACCT N0. 102000078 0534475801 ra~a~mera~~or,rv~maerfn~+J errewabn'ty YOU WILL AUTOMATICALLY RENEW MY TIME ACCOUNT 840449536 AT MATURITY UNLESS I NOTIFY YOU OTHERWISE The Bank is opening the above described Time Account for your deposit of TEN THOUSAND AND 0(100 $ "}$10,000.00 ::_ ' ; Your name and address OLDCASTLE SW GROUP, INC 2273 RNER RD GRAND JUNCTION CO 81505-7179 Page: 1 Document Name: Untitled RSPO 6 FSS RST PLEDGE INQ/MAINT 08/07/09 17.16.00 CUPR CO 163 OP MS 46677 ONLY ONE ITEM FOUND FOR SEARCH ACTION INQ COID ACCT COND PROD CODE CDA ACCT 8071500402 SHORT NAME OLDCASSWGR CLASS 2 (1,2,3) TYPE 1 SEQ 1 CURRENCY ORIGINAL PLEDGE AMT.... 10000.00 DATE PLACED............ 108/07/09 CURRENT PLEDGE AMT..... 10000.00 DATE EXPIRES........... 999/99/99 STATUS CODE............ 1 PLEDGED TO PRODUCT..... REVIEW FREQUENCY....... PLEDGED T6 ACCT N0:..- ..- 0~0~~000600OD0--LAST--R ..:--.:: -- - SPECIAL COMMENTS LINE 1 MERRIE BARLEY .~70-248-4868 LINE 2 PLEDGED TO EAGLE COUNTY RESTRAINT REASON LINE 1 EAGLE AIRPORT 3-08-0020-41 LINE 2 UNITED JOB NO 491966 CHANNEL ID HH CO/ACCT FOR DCST SORT VERBIAGE CD ORIG ITEM AMT: .00 ONLINE NOTICES CHECK # TOTAL DEP AMT: .00 DEP DATE MAKER RTN MAKER ACCT: STATUS CODE VALUES: 1 = ACTIVE 2 = DELETE A = ACTIVE PAID B = DELETE PAID PF: 2-CONY 4-CHG 6-INQ 9-NXT ..-DEL ..-ADD ..-FAD 4-m A 3270 Ses 10.103.30.114 LUDQB6J 3/9 Name: uden2900 - Date: 7/9/2008 Time: 4:16:03 PM (Attachment 1) ASSIGNMENT OF ACCEPTABLE SECURITY The undersigned Contractor represent that he (it) is the Owner of the acceptable security identified as follows: Certificate of Deposit Wells Fargo Bank of Grand Junction, N.A. Contractor hereby sells, assigns and transfers unto the Board of County Commissioners of Eagle County, Colorado all of his (its) right, title and interest in and to said security and does hereby irrevocably constitute and appoint Camilla Hightower (Escrow Agent) attorney to transfer said security at any time unto the Board of County Commissioners of Eagle County, Colorado upon its demand. Dated at Grand Junction, Colorado this 9th day of July ~ 2008 Contractor - By Title• resident 8 Note: A separate form of this assignment shall be executed and attached to each separate security. 9