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ORD 16-814ORDINANCE NO. 16 -814 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, GRANTING JOSEPH E. MAYER, PAMELA R. MAYER, AND NATALIE A. MAYER, A NONEXCLUSIVE FRANCHISE TO OCCUPY RIGHTS -OF- WAY OF THE CITY OF FEDERAL WAY, WASHINGTON, WITHIN THE SPECIFIED FRANCHISE AREA TO CONSTRUCT, MAINTAIN, REPAIR, OPERATE, AND REMOVE A PRIVATE SEWER LINE WITHIN AND THROUGH SPECIFIED RIGHTS -OF -WAY AND STREETS WITHIN THE CITY OF FEDERAL WAY. WHEREAS, Joseph E. Mayer, Pamela R. Mayer, and Natalie A. Mayer have requested a franchise from the City of Federal Way, in order to continue to maintain, repair, and, operate a private sewer line within the City of Federal Way rights -of -way; and WHEREAS, the City Council of Federal Way finds that it is in the public interest to grant such a franchise, which will specify the rights and duties of Joseph E. Mayer, Pamela R. Mayer, and Natalie A. Mayer; and WHEREAS, RCW 35A.47.040 permits the City of Federal Way to grant nonexclusive franchises for the use of public streets, bridges or other public ways for, inter alia, poles, conduits, tunnels, towers and structures, pipes, wires, and appurtenances thereof for water, sewer, and other private and publicly owned and operated facilities; and WHEREAS, in granting such a nonexclusive franchise, the City of Federal Way reserves such other powers and authorities granted to Washington code cities by general law; NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS: Ordinance No. 16 -814 Page 1 of 22 Section 1. Definitions Where used in this Franchise the following terms shall be defined as follows: 1.1 "City" means the City of Federal Way, Washington, a municipal corporation of the State of Washington, and its respective successors and assigns. 1.2 "Council" means the City of Federal Way Council acting in its official capacity. 1.3 "Director" means the Public Works Director, or designee, of the City of Federal Way Public Works Department. 1.4 "Facilities" means Franchisee's equipment to be located within the public right -of- way. 1.5 "FWRC" means the Federal Way Revised Code. 1.6 "Franchise. Area" means only that portion of the SW Dash Point Road, 52nd Avenue SW and 53rd Avenue SW rights -of -way located in the City of Federal Way and shown in Exhibit A attached hereto, and/or any other areas approved by the Federal Way City Council and incorporated into this Ordinance via amendment. 1.7 "Franchisee" means Joseph E. Mayer, Pamela R. Mayer, and Natalie A. Mayer, and their respective successors and assigns if consented to by the City of Federal Way as provided in Section 24 herein. Section 2. Grant /Acceptance 2.1 Grant of Franchise. The City hereby grants to Franchisee the nonexclusive right to enter upon the Franchise Area for the limited purpose of constructing, excavating, installing, maintaining, restoring, and repairing Facilities within the Franchise Area. This Franchise is specifically limited to the right for Franchisee to install Facilities owned and operated by Franchisee. This Franchise does not permit Franchisee to Ordinance No. 16 -814 Page 2 of 22 lease, rent, or otherwise allow use of conduits, space, or capacity provided by the Facilities to other third - parties, and Franchisee covenants and agrees that it will not do so. 2.2 Acceptance by Franchisee. Franchisee shall have no rights under this Franchise, nor shall Franchisee be bound by the terms and conditions of this Franchise, unless Franchisee shall, within sixty (60) days after the effective date of this Franchise, file with the City its written acceptance of this Franchise and all of its terms and conditions. Section 3. Non - Franchise Area City Property This Franchise does not and shall not convey any right to Franchisee to install its Facilities on, under, over, across, or to otherwise use City -owned or leased properties of any kind outside the Franchise Area, or to install Facilities on, under, over, across or otherwise use any City -owned or leased property within the Franchise Area other than public roads, streets, avenues, alleys, and highways. Section 4. Term Subject to Franchisee filing its acceptance pursuant to Subsection 2.2, the term of this Franchise shall be for a period of ten (10) years commencing on the effective date of this Franchise, unless terminated earlier pursuant to this Franchise or other applicable law. At any time nor more than two (2) years, nor less than one hundred eighty (180) days before the expiration of the Franchise term, either party may request a renewal of the Franchise for an additional ten (10) year renewal period. Section 5. Location of Facilities 5.1 Location. The Facilities permitted by this Franchise shall be installed and remain underground. The location of the Facilities, including any underground Facilities and appurtenances, their depths below surface of ground or grade of a right -of -way, and any related existing equipment Ordinance No. 16 -814 Page 3 of 22 to which the Facilities are connected are depicted on Exhibit A. Upon written request of the City, Franchisee shall update the map contained in Exhibit A to reflect actual or anticipated improvements to the system. Any such map (or update thereof) so submitted shall be for informational purposes only and shall not obligate Franchisee to undertake any specific improvements, nor shall such map be construed as a proposal to undertake any specific improvements. 5.2 Design Markings. In the event the City desires to design new streets or intersections, renovate existing streets, or make any other public improvements, Franchisee shall at the City of Federal Way's reasonable request, provide the location of Franchisee's underground Facilities within the Franchise Area by either field markings or by locating the Facilities on the City's design drawings, and shall provide all other reasonable cooperation and assistance to the City. Section 6. Noninterference of Facilities Franchisee agrees to maintain its Facilities and perform any and all activities authorized by this Franchise: (1) so as not to unreasonably interfere with the free passage of traffic; (2) in accordance with the laws of the State of Washington and City Code requirements, Franchise provisions, regulations, resolutions and rules, as now existing or as hereafter amended; and (3) as required by the Director. This requirement applies whether the work is performed by the Franchisee, its agents, employees, subcontractors, or other third parties at Franchisee's direction. Section 7. Requirement to Obtain Permits 7.1 Permits and Permit Applications. Franchisee shall, at its expense, obtain all permits, (including rights -of -wayy permits), and pay all permit fees required by applicable City ordinances, regulations, resolutions and rules prior to commencing any work within the Franchise Area. Franchisee permit applications shall show the position and location of the proposed facilities to be constructed, laid, installed, or erected at that Ordinance No. 16 -814 Page 4 of 22 time, show their relative position to existing rights -of -way or property lines upon prints drawn to scale, designate rights -of -way by their names and improvements, such as, but not limited to, sidewalks, curbs, gutters, shoulders of roadway, ditches, paved roadways, roadways to property lines, turnouts, parking strips, telephone or electric distribution poles, and water pipes existing on the ground to be occupied, or as required by the Director. The Franchisee shall specify the class and type of materials to be used, equipment to be used, and mode of safeguarding and facilitating the public traffic during construction. Materials and equipment shall be in new or like -new condition for its type and kind. The manner of excavation, construction, installation, backfill, and temporary structures such as, but not limited to, traffic turnouts and road obstructions shall meet the standards of the FWRC and be satisfactory to the Director. All traffic control shall be in accordance with the right -of -way permit, and shall be in accordance with the Manual on Uniform Traffic Control Devices ( "MUTCD "). The Franchisee shall indicate on any permit application the time needed to complete the work. The time needed to complete the work is subject to approval by the City as a condition of the issuance of the permit or approval. 7.2 Emergency Exception to Permit Requirement. In the event of an emergency in which Franchisee's Facilities within the Franchise Area are in a condition as to immediately endanger the property, life, health or safety of any individual, Franchisee may take action immediately to correct the dangerous condition without first obtaining any required permit so long as: (1) Franchisee informs the City of the nature and extent of the emergency, and the work to be performed, prior to commencing the work; and (2) such permit is obtained by Franchisee as soon as practicable following cessation of the emergency. Section 8. Standard of Performance The Franchisee shall not excavate for a distance of more than one hundred feet (100') without Ordinance No. 16 -814 Page 5 of 22 immediately backfilling and compacting to surface grade and City standards. Backfilled trench areas within a driving lane must be patched, either temporarily or permanently, before the end of the work day in which they have been opened. Trench areas within the right -of -way, but not with in a driving lane, must also be patched within the time limits specified by the City on the right -of -way use permit. Final surface restoration shall be completed within thirty (30) days and shall be equal to or better than the surface condition prior to permit issuance. Any asphalt overlay completed within the Franchise Area during the five (5) year- period immediately prior to the date of permit application shall not be open cut by Franchisee unless required by an emergency and subject to the provisions of Subsection 7.2 above. Franchisee shall install new asphalt overlay on any street that is open cut, whether in an emergency or otherwise, for a minimum of one (1) block (approximately 500 feet) in length in both directions from the open cut, unless determined otherwise by the Director. Within fifteen (15) days of completion of any installation of Franchisee's Facilities within the Franchise Area, Franchisee shall submit to the Director plans, stamped by a Professional Engineer licensed by the State of Washington, showing the "as- built" location of the Facilities. Section 9. Survey Markers and Monuments Franchisee shall, using a licensed surveyor, immediately replace all markers or monuments disturbed during any work by Franchisee within the Franchise Area. Franchisee shall pay all costs associated with such lost, destroyed, or disturbed monuments or markers. Section 10. Surface Markings /Stakes Prior to Franchisee commencing any excavation work within the Franchise Area, Franchisee shall reference all monuments and markers relating to subdivisions, plats, highways, and other surveys. The reference points shall be located so that they shall not be disturbed during the Ordinance No. 16 -814 Page 6 of 22 Franchisee's operations under this Franchise. The method of referencing these monuments or other points shall be approved by the City before placement. The construction shall be made as expeditiously as conditions permit, and as directed by the City. The cost of monuments or other markers lost, destroyed, or disturbed, and the expense of replacement of the monuments, shall be borne solely by the Franchisee. A complete set of reference notes for monuments and other ties shall be filed with the City. Section 11. Right of City to Complete Work In the event Franchisee fails to comply with any applicable federal, state or City laws, ordinances, rules, regulations or standards or with any of the terms of this Franchise, and such noncompliance continues for a period of ten (10) days after Franchisee receives written notice from the City regarding the noncompliance, the City may, but in no event is the City obligated to, order any work completed, including without limitation Franchisee's obligation to repair pursuant to Section 13 herein and Franchisee's obligation to remove or relocate facilities pursuant to Section 12 herein. If the City causes such work to be done by its own employees or by any person or entity other than Franchisee, Franchisee shall, upon the City's written request, immediately reimburse the City for all reasonable costs and expenses incurred by the City in having such work performed, which costs may include the City's reasonable overhead expenses and attorneys' fees; however, the City shall not have any electrical work accomplished by any person or entity other than Franchisee or a qualified and licensed electrical contractor. Section 12. Required Relocation of Facilities 12.1 City Reservation of Rights. The City reserves the right to use, occupy and enjoy all or any part of the Franchise Area, either above, below, or adjacent to the Facilities, for any purpose that is not inconsistent with the terms and conditions of this Franchise. The rights reserved herein Ordinance No. 16 -814 Page 7 of 22 include, without limitation, the construction, installation, and/or maintenance of any electrical, water, sewer or storm drainage line, traffic signals, street lights, trees, landscaping, bicycle paths and lanes, equestrian trails, sidewalks, other pedestrian amenities, and other public street improvement projects. This Franchise is not an exclusive Franchise shall not be construed to in any manner prohibit the City from granting other and further Franchises in, under, over, upon, and along the Franchise Area, nor from exercising such other powers and authorities granted to the City by the Washington State Constitution and general law. 12.2 City's Duties. In the event the City undertakes any work, including necessary maintenance within a right -of -way in which Franchisee's facilities are located, and such work necessitates the relocation of Franchisee's then existing Facilities within the Franchise Area, the City shall: (a) Provide written notice of the required relocation to Franchisee within a reasonable time prior to the commencement of such City work; and (b) Provide Franchisee with copies of pertinent portions of the City's plans and specifications so that Franchisee may relocate its Facilities to accommodate the City work Nothing in this section shall be construed as to relieve Franchisee of its duty and obligation to relocate its Facilities, at Franchisee's sole cost, for any improvement project undertaken by, or on behalf of, the City in the interest of public health, safety, welfare, necessity or convenience, as adjudged in the sole discretion of the City. 12.3 Franchisee's Duties. Within thirty (30) days of receipt of the City notice under Subsection 12.2(a) requiring relocation and receipt of the plans and specifications pursuant to Subsection 12.2(b), Franchisee shall raise, lower, or move such Facilities within the Franchise Area at its sole cost and expense to the location or position directed by the City, to cause the least Ordinance No. 16 -814 Page 8 of 22 interference with the improvement, repair, or alteration contemplated by the City and to conform to such new grades as may be established. If the City improves a right -of -way, Franchisee shall, at its sole cost and expense, upon receipt of notice, replace the Facilities located in the improved subgrade of the improvement with substitute Facilities conforming to the specifications for the improvement of the right -of -way. Section 13. Damage Repair In case of damage by the Franchisee, its agents or employees or by the Facilities of the Franchisee to rights -of -way, or to public and private improvements within or adjacent to rights -of- way, the Franchisee agrees to repair the damage at its own cost and expense. The Franchisee shall, upon discovery of any such damage, immediately notify the City. The City will inspect the damage, and set a time limit for completion of the repair. If the City discovers damage caused by the Franchisee to rights -of -way, or to public and private improvements within or adjacent to rights -of- way, the City shall give the Franchisee notice of the damage and set a time limit in which the Franchisee must repair the damage. In the event the Franchisee does not repair a right -of -way or an improvement as required in this section, the City may repair the damage pursuant to Section 11 of this Agreement. Section 14. Default 14.1 Notice of Default. In addition to other remedies set forth herein, if Franchisee shall fail to comply with any of the provisions of this Franchise, the City may serve a written notice to Franchisee ordering such compliance and Franchisee shall have sixty (60) days from the receipt of such notice in which to comply. 14.2 Revocation of Franchise. If Franchisee is not in compliance with this Franchise after the expiration of the sixty (60) day period, the City may, by resolution, declare the franchise Ordinance No. 16 -814 Page 9 of 22 immediately revoked. Section 15. Limited Rights This Franchise is intended to convey only a limited right and interest to Franchisee in the Franchise Area. This Franchise is not a warranty of title or conveyance of any ownership interest in or to the Franchise Area to Franchisee. Section 16. Eminent Domain The existence of this Franchise shall not preclude the City from acquiring by condemnation, in accordance with applicable law, all or a portion of Franchisees Facilities within the Franchise Area for the fair market value thereof. In determining the value of such Facilities, no value shall be attributed to the right to occupy the Area conferred by this Franchise. Section 17. Vacation If at any time the City, by ordinance, vacates all or any portion of the Franchise Area, the City will not be liable for any damages or loss to the Franchisee by reason of such vacation. The City shall notify Franchisee in writing not less than 30 days before vacating all or any portion of the Franchise Area. The City may, after thirty (30) days written notice to Franchisee, terminate this Franchise with respect to any such vacated area. Section 18. Compliance with Laws 18.1 General. Franchisee shall comply with all applicable federal, state and City laws, franchises, resolutions, regulations, standards, policies and procedures, as now existing or hereafter amended or adopted, including without limitation the State Environmental Policy Act; provided, however, that if any term or condition of this Franchise and any term or condition of any City law, code, franchise, resolution, regulation, standard, procedure, permit or approval are in conflict, the term or condition of this Franchise will control. Ordinance No. 16 -814 Page 10 of 22 18.2 Future City of Federal Way Regulation. Franchisee acknowledges that the City may develop rules, regulations, ordinances and specifications for the use of the right -of -way which shall govern Franchisee's Facilities and activities hereunder as if they were in effect at the time this Franchise was executed by the City and Franchisee covenants and agrees to be bound by same. Section 19. Guarantee Franchisee shall guarantee work completed by the Franchisee under this Franchise for a period of 10 years against settlement or repair. Section 20. Charge for Administrative Costs Franchisee agrees to pay a fee or a charge of One Thousand and No /100 Dollars ($1,000.00) to recover the administrative expenses incurred by the City that are directly related to preparing and approving this Franchise. Nothing herein shall preclude the City from charging administrative fees or recovering any administrative costs incurred by the City in the approval of permits or in the supervision, inspection or examination of all work by Franchisee in the Franchise Area as prescribed in accordance with applicable provisions of the Federal Way Revised Code. Section 21. Indemnification Franchisee agrees to indemnify and hold harmless and defend the City, its elected officials, officers, employees, agents, and volunteers from any and all claims, demands, losses, actions and liabilities (including costs and all attorney's fees) to or by any and all persons or entities, including, without limitation, their respective agents, licensees, or representatives, arising from, resulting from, or connected with this Franchise to the extent caused in part or in whole by the acts, errors or omissions of the Franchisee, its officers, partners, shareholders, agents, employees, or by the Franchisee's breach of any provisions of this Franchise; provided, however, that this section shall not be construed as requiring Franchisee to indemnify, hold harmless or defend the City against claims or Ordinance No. 16 -814 Page 11 of 22 damages arising from the negligence of the City, its agents or employees. In the event any claim, demand, suit or action is commenced against the City that gives rise to Franchisee's obligation pursuant to this Section 21, the City shall promptly notify Franchisee thereof. Franchisee's selection of an attorney to defend any such claim, demand, suit or action shall be subject to the City's approval, which shall not be unreasonably withheld. Franchisee shall not settle or compromise any such suit or action except with prior written consent of the City, which shall not be unreasonably withheld. The City shall have the right at all times to participate through its own attorney in any suit or action which arises pursuant to this Franchise when the City determines that such participation is required to protect the interest of the City or the public. In the event it is determined that RCW 4.24.115 applies to this Franchise, Franchisee agrees to defend, hold harmless and indemnify the City to the maximum extent permitted thereunder, to the full extent of Franchisees negligence. Section 22. Insurance 22.1 Minimum Limits. The Franchisee agrees to carry as a minimum, the following insurance, in such forms and with such carriers as are satisfactory to the City. (a) The Franchisee agrees to procure and maintain for the duration of this Franchise and any renewals, general liability insurance against claims for injuries to persons or damages to property which may arise from, or in connection with Franchisee's facilities, operations, acts, and omissions under this Franchise at a level of no less than $1,000,000 per occurrence. (b) Automobile liability insurance with combined single limits of liability not less than $500,000 for bodily injury, including personal injury or death and property damage. 22.2 Mandatory Insurance Provisions. The general liability insurance and automobile liability insurance policies shall be endorsed to contain the followin g p rovisions: (a) The City, its officers, elected officials, employees, and volunteers are to be Ordinance No. 16 -814 Page 12 of 22 named as additional insured; (b) Coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability; Coverage shall not be suspended, canceled, modified or reduced except after thirty (30) days prior written notice to the City delivered by certified mail, return receipt requested; and Coverage shall be primary as to the City, its officers, officials, employees and volunteers. Any insurance or self - insurance by the City, its officers, officials, employees or volunteers shall be in excess of Franchisee's required insurance. 22.3 Verification of Coverage. Franchisee shall furnish the City with certificates of insurance and original endorsements evidencing the coverages required by this Section. The certificates and endorsements shall be signed by a person authorized by the insurer to bind coverage on its behalf and must be received and approved by the City prior to the commencement of any work. At the City's request, Franchisee shall deliver certified copies of all required insurance policies. Section 23. Bond Before commencing work within the City, the Franchisee shall post a bond in the form attached as Exhibit B and in the amount of $100,000 to guarantee performance of the construction, performance, maintenance or repair in accordance with any permits required and with any provisions of this franchise. Procedures for submission and release of the bond shall be as provided by City Code. In the event that the Franchisee fails to perform as required herein or by any permits required, the City may perform the work as provided herein, and may have recourse to the bond in addition to or in lieu of the remedies provided herein, at the City's sole discretion. Franchisee shall be entitled to return of the bond, or portion thereof, as remains sixty (60) days after the expiration of the term of the Franchise, provided the City has not notified Franchisee of any actual or potential damages Ordinance No. 16 -814 Page 13 of 22 incurred as a result of Franchisee's operations pursuant to the Franchise or as a result of default thereunder. Section 24. General Provisions 24.1 Entire Agreement. This Franchise contains all of the agreements of the Parties with respect to any matter covered or mentioned in this Franchise and no prior agreements or understandings pertaining to any such matters shall be effective for any purpose. 24.2 Modification. No provision of this Franchise may be amended or added to except by agreement in writing signed by both of the Parties. 24.3 Assignment. Franchisee shall not have the right to transfer or assign, in whole or in part, any or all of its obligations and rights hereunder without the prior written consent of the City. Any assignee shall, within thirty (30) days of the date of any approved assignment, file written notice of the assignment with the City together with its written acceptance of all terms and conditions of this Franchise. Notwithstanding the foregoing, Franchisee shall have the right, without such notice or such written contest, to mortgage its rights, benefits and privileges in and under this Franchise to the Trustee for its bondholders. 24.4 Attorney Fees. In the event the City or the Franchisee defaults on the performance of any terms in this Franchise, and the Franchisee or the City places the enforcement of the Franchise or any part thereof or for the collection of any monies due, or to become due hereunder, in the hands of an attorney, or files suit upon the same, each party shall be responsible for its own attorneys' fees, costs and expenses. The venue for any dispute related to this Franchise shall be King County, Washington. 24.5 No Waiver. Failure of either party to declare any breach or default by the other party immediately upon the occurrence thereof, or delay in taking any action in connection therewith, shall Ordinance No. 16 -814 Page 14 of 22 not waive such breach or default, but such party shall have the right to declare any such breach or default at any time. Failure of either party to declare one breach or default does not act as a waiver of such party's right to declare another breach or default. 24.6 Governing Law. This Franchise shall be made in and shall be governed by and interpreted in accordance with the laws of the State of Washington. 24.7 Authority. Each individual executing this Franchise on behalf of the City and Franchisee represents and warrants that such individual is duly authorized to execute and deliver this Franchise on behalf of the Franchisee or the City. 24.8 Notices. Any notices required to be given by the City to Franchisee or by Franchisee to the City shall be delivered to the parties at the following addresses: Franchisee: City: Joseph Mayer 312 S. 112th Street Tacoma, WA 98444 City of Federal Way Attn: City Attorney 33325 8th Avenue South Federal Way, WA 98003 Any notices may be delivered personally to the addressee of the notice or may be deposited in the United States mail, postage prepaid, to the address set forth herein. Any notice so posted in the United States mail shall be deemed received three (3) days after the date of mailing. 24.9 Captions. The respective captions of the sections of this Franchise are inserted for convenience of reference only and shall not be deemed to modify or otherwise affect in any respect any of the provisions of this Franchise. 24.10 Remedies Cumulative. Any remedies provided for under the terms of this Franchise are not intended to be exclusive but shall be cumulative with all other remedies available to the City at law, in equity or by statute. Ordinance No. 16 -814 Page 15 of 22 Section 25. Severability If any section, sentence, clause, or phrase of this Franchise should be held to be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of any other section, sentence, clause or phrase of this Franchise. Section 26. Ratification Any act consistent with the authority and prior to the effective date of this Franchise is hereby ratified and affirmed. Section 27. Effective Date This Franchise shall take effect and be in full force thirty (30) days after its passage and publication, according to law (see Effective Date below). PASSED by the City Council of the City of Federal Way this 16th day of February, 2016. ATTEST: te.) aatiet ERK, STEPHANIE CO 4 EY, CMC APPROVED AS TO FORM: CITY A RNEY, AMY JO PEARSALL Ordinance No. 16 -814 Page 16 of 22 FILED WITH THE CITY CLERK: 01/29/2016 PASSED BY THE CITY COUNCIL: 02/16/2016 PUBLISHED: 02/19/2016 EFFECTIVE DATE: 03/20/2016 ORDINANCE NO. 16 -814 Ordinance No. 16 -814 Page 17 of 22 ACCEPTANCE: The undersigned hereby accepts all the rights and privileges of the above granted License and acknowledges that such rights and privileges are subject to and limited by all of the terms, conditions and obligations contained therein. DATED this day of , 2016. Joseph E. Mayer Pamela R. Mayer Natalie E. Mayer Ordinance No. 16 -814 Page 18 of 22 EXHIBIT A LOCATION OF FACILITIES WITHIN THE FRANCHISE AREA City of Federal Way Parcel 321020 0107 Both parcels are owned by Joeseph Mayer. Map Date: Nov 2014 C ot Feciera. Way alms Awe S Federa, Way. Wa..98,2,03 2S3-83S-7:100 (W:www.otyofeceraiway.own FederalWay MgArrts', WK FIRF S, This map is intended for use as a graphical representation. The arty of Federal Way makes no warranty as to its accuracy. Ordinance No. 16-814 Page 19 of 2 2 EXHIBIT B CITY OF FEDERAL WAY PERFORMANCE[MAINTENANCE BOND KNOW ALL PEOPLE BY THESE PRESENTS: We, the undersigned , ( "Principal ") and , the undersigned corporation organized and existing under the laws of the State of and legally doing business in the State of Washington as a surety ( "Surety "), are held and firmly bound unto the City of Federal Way, a Washington municipal corporation, ( "City") in the penal sum of Dollars and No/ 100 ($ ) for the payment of which we firmly bind ourselves and our legal representatives, heirs, successors and assigns, jointly and severally. This obligation is entered into pursuant to the statutes of the State of Washington and the ordinances, regulations, standards and policies of the City, as now existing or hereafter amended or adopted. The Principal has entered into an Agreement with the City dated , 20_, for NOW, THEREFORE, if the Principal shall perform all the provisions of the Agreement in the manner and within the time period prescribed by the City, or within such extensions of time as may be granted under the Agreement, and shall pay all laborers, mechanics, subcontractors and material men or women, and all persons who shall supply the Principal or subcontractors with provisions and supplies for the carrying on of said work, and shall hold the City, their officials, agents, employees and volunteers harmless from any loss or damage occasioned to any person or property by reason of any carelessness or negligence on the part of the Principal, or any subcontractor in the performance of said work, and shall indemnify and hold the City harmless from any damage or expense by reason of failure of performance as specified in the Agreement, or from defects appearing or developing in the material or workmanship provided or performed under the Agreement within a period of two (2) years after the completion of final installation or construction by the Principal, then and in the event this obligation shall be void; but otherwise, it shall be and remain in full force and effect. And the Surety, for value received, hereby further stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Agreement or to the work to be performed thereunder or the specifications accompanying the same shall in any way affect its obligation on this bond, and it does hereby waive notice of any change, extension of time, alterations or additions to the terms of the Agreement or to the work in connection herewith. Within forty -five (45) days of receiving notice that the Principal has defaulted on all or part of the terms of the Agreement, the Surety shall make a written commitment to the City that it will either: (a) cure the default itself within a reasonable time period, or (b) tender to the City, the amount necessary for the City to remedy the default, including legal fees incurred by the City, or (c) in the event that Surety's evaluation of the dispute is not complete or in the event the Surety disputes the Ordinance No. 16 -814 Page 20 of 22 City' s claim of default, the Surety shall notify the City of its finding and its intent, if any, to interplead. The Surety shall then fulfill its obligations under this bond, according to the option it has elected. Should Surety elect option (a) to cure the default, the penal sum of the Bond shall be reduced in an amount equal to the costs actually incurred by the Surety in curing the default. If the Surety elects option (b), then upon completion of the necessary work, the City shall notify the Surety of its actual costs. The City shall return, without interest, any overpayment made by the Surety and the Surety shall pay to the City any actual costs which exceed the City estimate, limited to the bond amount. Should the Surety elect option (c), the Parties shall first complete participation in mediation, described in the below paragraph, prior to any interplead action. In the event a dispute should arise between the Parties to this Bond with respect to the City's declaration of default by the Principal, the Parties agree to participate in at least four hours of mediation in accordance with the mediation procedures of United States Arbitration and Mediation ( "USA &M "). The Parties shall proportionately share in the cost of the mediation. The mediation shall be administered by the Seattle USA &M office, 4300 Two Union Square, 601 Union Street, Seattle, Washington 98101 -2327. The Surety shall not interplead prior to completion of the mediation. DATED this day of , 20_. CORPORATE SEAL OF PRINCIPAL: [PRINCIPAL] By: Its (Name of Person Executing Bond) (Title) (Address) (Phone) CERTIFICATE AS TO CORPORATE SEAL I hereby certify that I am the (Assistant) Secretary of the Corporation named as Principal in the within bond; that , who signed the said bond on behalf of the Principal, was of the said Corporation; that I know his or her signature thereto is genuine, and that said bond was duly signed, sealed, and attested for and in behalf of said Corporation by authority of its governing body. Secretary or Assistant Secretary Ordinance No. 16 -814 Page 21 of 22 CORPORATE SEAL OF SURETY: By: APPROVED AS TO FORM: Amy Jo Pearsall, City Attorney Surety Attorney -in -Fact (Attach Power of Attorney) (Name of Person Executing Bond) (Address) (Phone) Ordinance No. 16 -814 Page 22 of 22