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AG 96-230Key Bank of Washington RECEI AKo Co ., SEP 0 $ 1996 Corporate Insurance & Claims Post Office Box 11500, MS WA-31-04-0377 Tacoma, WA. 98411-5500 FEDERAL WAY PUBLIC WOP. ES (206) 305-7044 3.DMI~I~RA?ION DlVl~I01~I FAX 305-7047 DATE: August 26, 1996 TO: Steve Cary, Project Manager MS: WA-31-06-0141 FROM: Marge Barzar, Corporate Insurance & Claims Manager MS: WA-31-04-0377 PHONE: (206)305-7044 OV: AD31MRB SUBJECT: Performance/Maintenance Bond for the City of Federal Way Enclosed are the following completed original bond documents required by the City of Federal Way: City of Federal Way Agreement and Performance/Maintenance Bond Exhibit A Exhibit D All three documents require the signature of a Key Bank representative which you indicated would be Ron Peterson. Exhibit D requires the signature be notarized. Page 2 of Exhibit A requires the Corporate Seal impression and page 3 requires the signature of the Secretary of the Corporation, Mike Rodin, WA-31-10-4910. I have placed yellow post-it notes to indicate the location of the appropriate signatures. After all these signatures the bond will be ready to submit to the city. The annual premium will be $322.00 and will be billed separately. If you have any questions, do not hesitate to caJl me. Encl. Applicant: Key Bank of Washington Bond #: 8144-60-69 Project: SeaTac Mall Key Center Remodel Permit#: BLD 96-0275 Property Address: 32400 Pacific Highway South Bond Amount: ~ 104,000.00 Federal Way, WA 98003 Cash Deposit Amount: t~2,600.00 CITY OF FEDERAL WAY AGREEMENT AND PERFORMANCE/MAINTENANCE BOND THIS AGREEMENT ("Agreement") is dated effective this 6th day of August, 1996. The parties ("Parties") to this Agreement are the City of Federal Way, a Washington municipal corporation ("City") and Key Bank of Washington, a Washington corporation ("Applicant"). A. The Applicant is required to perform certain work and/or complete certain improvements, including on and off site improvements associated with expansion of the SeaTac Branch of Key Bank including: bio-filtration, street improvements, curb, gutter, sidewalk, landscaping and driveway upgrades at the above referenced address located in Federal Way, Washington in connection with Applicant's Land Use Application under the above-referenced permit number ("Permit"); B. The improvements will be constructed or the work performed in accordance with record drawings and approved plans on file with the City ("Plans"); C. The City has determined that the Applicant must post security with the City pursuant to Sections 22-146 through 22-159 of the Federal Way City Code ("FWCC") as now existing or hereafter adopted or amended, to guarantee Applicant's performance of the required construction of improvements or performance of work, maintenance or repair in accordance with the Plans as a condition of granting the Permit. NOW, THEREFORE, the Parties agree as follows: 1. Improvements. Applicant shall construct all improvements and perform all maintenance pursuant to the Plans, to the City's satisfaction ("Work"). The obligation to maintain the improvements shall continue for a period of two (2) years after issuance of the certificate of occupancy or final inspection, or such longer period as required by the FWCC or other applicable law, rule or regulation. 2. ComDletion of Work. The Applicant shall complete the Work to the City's satisfaction, within the time period prescribed by the City, and in full compliance with the Plans, including any approved amendments thereto, and in conformance with all applicable laws, rules or regulations. 3. Performance/Maintenance Bond. Applicant shall deliver the fully executed Performance/ Maintenance Bond to the City in the form attached hereto as Exhibit "A" and incorporated by this reference (" Bond"), to guarantee Applicant's performance of the construction of the improvements and/or maintenance of the improvements pursuant to the Plans. 4. Release of Bond. If the Principal constructs the improvements in accordance with the terms of the Bond, the Permit and all applicable law, the sum of the Bond shall be reduced by seventy percent (70%) after final inspection and approval of the improvements by the City and the City will deliver to Principal the fully executed Partial Release of Bond attached hereto as Exhibit "B". Except as set forth in the preceding sentence, the Bond shall remain in full force and effect. That portion of the Bond equal to thirty percent (30%) of the original penal sum shall remain in full force and effect for two (2) years after final inspection and approval, as a maintenance bond to guarantee against defective materials and workmanship in the construction of the improvements and to insure continued maintenance of the improvements. Two (2) years after final inspection and approval of the improvements and performance of the maintenance, the City will release the remaining portion of the Bond by executing and delivering to Principal the Full Release of Bond attached hereto as Exhibit "C". 5. Ri.qht to Complete Work. In the event the Applicant fails to perform the WorE, the City may, but in no event is it obligated to, request the disbursement of the Bond from the surety and perform any of the necessary Work. Upon demand, Applicant agrees to pay the City an amount equal to all of the City's costs and expenses in performing such Work in excess of the amount of the Bond. 6. Notice. The Community Development Department of the City shall be given forty-eight (48) hours notice prior to the commencement of the Work. 7. Indemnification. Applicant agrees to indemnify and hold the City, its elected officials, officers, employees, agents, and volunteers harmless from any and all claims, demands, losses, actions and liabilities (including costs and attorney fees) arising from, resulting, or connected with this Agreement and the Bond, including without limitation, the City's performance of the Work pursuant to Section 5 herein. 8. Administrative Cash Deposit. In addition to the amount of the Bond, Applicant agrees to pay a cash deposit to the City pursuant to Section 22-151 of the FWCC, upon the execution of this Agreement equal to the following percentages of the amount of the Bond: Amount of Bond Amount of Cash Deposit Up to $20,000 5% of Bond (minimum $100) 820,001 - $50,000 4% of Bond 850,001 - $100,000 3% of Bond t~100,001 and up 2-1/2% of Bond The cash deposit may be used by the City to cover its actual expenses in administering this Agreement and, if necessary, collecting and using the proceeds from the Bond. 9. Remedies Cumulative. No remedy provided for by this Agreement shall be deemed exclusive, but shall be deemed cumulative and in addition to every other remedy available to the City at law, in equity or by statute. Applicant's liability under this Agreement is not limited to the amount of the Bond. 10. License. Applicant shall record a license in the form attached hereto as Exhibit "D" and incorporated herein by this reference with the King County Department of Records, immediately upon the execution of this Agreement and at Applicant's cost. 11. General Provisions. This Agreement may not be amended except by written agreement signed by the Parties. Any provision of this Agreement which is declared invalid, shall not invalidate the remaining provisions of this Agreement. The failure or delay of the City to declare any breach or default shall not waive such breach or default. This Agreement may not be assigned by any Party without the written consent of the other Party. This Agreement shall be binding upon and insure to the benefit of the Parties' successors in interest. Time is of the essence. KEY BANK OF WASHINGTON ,ts: 1323 - 34th Avenue East Tacoma, WA 98424 (206) 591-6226 CITY OF FEDERAL WAY ~ Kenneth E. N~/berg, City Manager 33530 1st Way South Federal Way, WA 98003 ST: : , [r City Clerk, N. Christine Green, CM~- ' - APPROVED AS TO FORM: ::~ ~i K. ~,~ell, City Attorney -3- EXHIBIT A Project: SeaTac Mall Key Center Remodel Permit #: BLD 9S-0275 CITY OF FEDERAL WAY PERFORMANCE/MAINTENANCE BOND KNOW ALL PEOPLE BY THESE PRESENTS: We, the undersigned, Key Bank of Washington, as principal ("Principal"), and Federal Insurance Company, the undersigned corporation organized end existing under the laws of the State of Indiana, 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 One Hundred and Four Thousand end no/100 Dollars ($104,000.00) for the payment of which they firmly bind themselves and their legal representatives, successors and assigns, jointly and severally. This obligation is entered into in 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 of even date to provide on and off site improvements associated with expansion of the SeaTac Branch of Key Bank including: bio- filtration, street improvements, curb, gutter, sidewalk, landscaping and driveway upgrades. 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 its final acceptance thereof by the City, 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. The Surety hereby agrees that modifications and changes may be made in the terms and provisions of the Agreement without notice to Surety, and any such modifications or changes increasing the total amount to be paid the Principal shall automatically increase the obligation of the Surety on this Performance Bond in a like amount, such increase, however, not to exceed twenty-five percent (2§%) of the original amount of this bond without the consent of the Surety. ORIGINAL 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 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 23rd day of August 199 6 CORPORATE SEAL OF PRINCIPAL: KEY BANK OF WASHINGTON y/~ame~of P~rson Executing Bond Its: (Title) 1323 - 34th Avenue East Tacoma, WA 98424 (206) 591-6226 -2- CORPORATE SEAL OF SURETY: FEDERAL INSURANCE COMPANY Surety~ ^ Attorney-irY-Fact (Attach Power of Attorney) Barbara W. Munch Name of Person Executing Bond 127 Public Square~ llth Floor Cleveland, OH 44114 Address (216) 689-4520 Phone BOND NUMBER: 8144-60-69 APPROVED AS TO FORM: CERTIFICATE AS TO CORPORATESEAL I hereby certify that i am the ~A~/~pcretary of the Corporation named as Principal in the within bond; that ~/~/~/J/~5%~/ , who signed the said bond on behalf of the Principal, was <~'///~3 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. Secretery ~ ' ~ -3- POWER OF AI'I'ORNEY FEDERAL INSURANCE COMPANY ATFN: SURETY DEPARTMENT 15 Mountain View Road, Warren, NJ 07059 Telephone: (908) 903-2000 Fax No.: (908) 903-3656 Know all Men by these Presents, That FEDERAL INSURANCE COMPANY, an Indiana Corporation, has constituted and appointed, and does hereby constitute and appoint Michael A. Mas troianni, Barbara W. Munch and Ronald J. Swiner of Cleveland, Ohio .................................................. each its true and lawfulAttomey-in-Fact to execute under such designation in its name and to affix its corporate seal to and deliver for and on its behalf as surety thereon or otherwise, bends of any of the following classes, to-wit: 1. Bonds and Undertakings (other than Bail Bonds) filed in any suit, matter or proceeding in any Court, or filed with any Sheriff or Magistrate, for the doing or not doing of anything specified in such Bond or Undertaking. 2. Surety bends to the United States of Amedca or any agency thereof, including those reduired or permitted under the laws or regulations relating to Customs or Internal Revenue; License and Permit Bonds or other indemnity bonds under the laws, ordinances or regulations of any State, City, Town, Village, Board or other body or organizaUon,, public or private; bonds to Transportation Companies, Lost instrument Bonds; Lease Bonds, Workers' Compensation Bonds, Miscellaneous Surety Bonds and bonds on behalf of Notaries Public, Sheriffs, Deputy Sheriffs and similar public officials. 3. Bonds on behalf of contractors in connection with bids, preposals or contracts. In Witness Whereof, the said FEDERAL INSURANCE COMPANY has, pursuant to its By-Laws, caused these presents to be signed by its Vice President and Assistant Secretary and its conporate seal to be hereto affixed this 9 th day of January 19 95 / FEDERAL INSURANCE COMPANY BY Kenn .~ndel / Gerardo G. Maudz Assistant Secretary Vice President STATE OF NEW JERSEY '[ ss. County of Somerset J On this 9 th day of January 19 95, before me personally came Kenneth C. Wendel to me known and by me known to beAssistant Secretary of FEDERAL INSURANCE COMPANY, the corporation described in and which executed the foregoing Power of Attorney, and the said Kenneth C. Wendel being by me duly sworn, did depose and say that he is Assistant Secretary of FEDERAL INSURANCE COMPANY and knows the corporate seal thereof; that the seal affixed to the foregoing Power of Attomey is such corporate seal and was thereto affixed by authority of the By-Laws of said Company, and that he signed said Power ofAttorney asAssistant Secretary of said Company by like authority; and that he is acquainted with Gerardo G. Maudz and knows him to be the Vice President of said Company, and that the signature of said Gerardo G. Maudz subscribed to said Power of Attorney is in the genuine handwriting of said Gerardo G. Mauriz and wes thereto subscribed by authority of said By- Laws and in deponent's presence. Notarial Seal ~%.~ Acknowledged and Sworn to before me · .~, ....... .? %. on the date above wdtten. Nota~ Public IN THE EVENT YOU WISH TO NOTIFY US OF A CLAIM, VERIFY THE AUTHENTICITY OF THIS BOND OR NOTIFY US OF ANY OTHER MATTER, PLEASE WRITE TO US AT THE ADDRESS LISTED ABOVE. ~ae'm~sJon Ex4aire~ July 29, 1996 CERTIFICATION STATE OF NEW JERSEY '~ County of Somerset,~ ss. I, the undersigned, Assistant Secretary of FEDERAL iNSURANCE COMPANY, do hereby certify that the following is a true excerpt from the By-Laws of the said Company as adopted by its Board of Directors and that this By-Law is in full force and effect. 'ARTICLE XVIIL Section 2. All bOnds, undertakings, contracts and other instruments other than as above for and on behalf of the Company which it is authorized by law or its charter to execute, may and shall be executed in the name and on behalf of the Company either by the Chairman or the Vice Chain~tan or the President or a Vice President, jointly with the Secretary or an Assistant Secretary, under their respective designations, except that any one or more officers or attorneys-in-fact designated in any resolution of the Board of Directors or the Executive Committee, or in any power of attorney executed as provided for in Sec'don 3 below, may execute any such bOnd, undert~ing or other obligation as provided in such resolution or power of attorney. Section 3. All powers of attorney for and on behalf of the Company may and shall be executed in the name and on behalf of the Company, either by the Chairman or the Vice Chairman or the President or a Vice President or an Assistant Vice President, jointly with the Secretary or an Assistant Secretary, under their respective designations. The signature of such officers may be engraved, printed or lithographed. The signature of each of the following officers: Chairman, Vice Chair- man, President, any Vice President, any Assistant V~ce President, any Secretary, any Assistant Secretary and the seal of the Company may be affixed by tacsimiie to any power of attorney or to any certificate relating thereto appointing Assistant Secretaries or Attorneys-in-Fact for purposes on;y of executing and attesting bOnds and undertakings and other writings obligatory in the nature thereof, and any such power of attorney or certificate bearing such facsimile signature or facsimile seal shall be valid and binding upon the Company and any such power so executed and certified by such facsimile signa- ture and facsimile seal shall be valid and binding upon the Company with respect to any bOnd or undertaking to which it is attached." I further certify that said FEDERAL INSURANCE COMPANY is duly licensed to transact fidelity and surety business in each of the States of the United States of America, District of Columbia, Puerto Rico, and each of the Provinces of Canada with the exception of Prince Edward Island; and is also duly licensed to become sole surety on bonds, undertakings, etc., permitted or required by the law. I, the undersigned Assistant Secretary of FEDERAL INSURANCE COMPANY, do hereby certify that the foregoing Power of Attorney is now in full force and effect. Given under my hand and the seal of said Company at Warren, N.J., this 23rd day of August , 19 96 . Corporate Seal ¢ ,~' - ~ssist~nt -S~ retsry ~, EXHIBIT B PARTIAL RELEASE OF BOND # 8144-60-69 The undersigned hereby acknowledges that a portion of the conditions of the Agreement and Performance/Maintenance Bond for SeaTac Mall Key Center Remodel, Permit No. BLD 96- 0275, have been satisfied and hereby authorizes the release of an amount equal to Seventy- Two Thousand, Eight Hundred and no/100 Dollars ($72,800.00). The remaining funds equaling thirty (30%) of the cost of the work or improvements shall be retained by the City for a period of two (2) years as security for Assignor's performance of all maintenance for the above described project and as a guarantee against defective materials or workmanship in the construction and maintenance of such improvements. DATED this day of ,199_. CITY OF FEDERAL WAY By: (Name, Title) EXHIBIT C FULL RELEASE OF BOND # 8144-60-69 TERMINATION OF LICENSE The undersigned hereby acknowledges that the two (2) year maintenance period has expired, that the work or improvements covered by the Agreement and Performance/ Maintenance Bond for SeaTac Mall Key Center Remodel, Permit No. BLD 96-0275, have been completed to the City's satisfaction and that the City is not aware of any defect in workmanship or materials. Accordingly, the undersigned hereby releases the sum of Forty- Two Thousand and no/lO0 Dollars ($42,000.00). The undersigned further releases all right, title and interest granted to the undersigned by reason of a certain License Agreement recorded under King County Recording No. ("License Agreement") and acknowledges that all obligations and rights contained in the License Agreement are hereby terminated. DATED this day of ,19 CITY OF FEDERAL WAY By: (Name, Title) interoffice 1,4 g' M O R A bi D U M Public: Works Development Services Division To: Patrick Briggs, Administrative Assistant Chris Green, City Clerk From: Stephen Clifton, Development Services Manager S~bjm: Signature Required on Key Bank Bond oat~: September 4, 1996 Please have Ken Nyberg and Chits Green sign the attached Bond documents. After Chris signs, please have BOb prepare a complete copy for my files. Thank You L:"..t~,MSYS'~KX)C~_02.75'~BONDMI~MO. 1