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AG 96-163 Applicant: Barry Fisher D.B.A. BC Construction Project: Wildwood Estates Property Address: Parcel # 122103-9090 Bond #: \N~ ì 1044 Permit#: SUB 90-0004 Bond Amount: $145,862 Cash Deposit Amount: $ 3,646 116 Q{,,-/('3 CITY OF FEDERAL WAY AGREEME;NTAN_D_- ._c PERFORMANCE/MAINTENANCE BOND THIS AGREEMENT ("Agreement") is dated effective this - day of May, 1996. The parties ("Parties") to this Agreement are the City of Federal Way, a Washington municipal corporation (HCity") and Barry Fisher, doing business as BC Construction, a Washington corporation, ("Applicant"). A. The Applicant is required to perform certain work and/or complete certain improvements, including construction of all utilities and street improvements in connection with completing the subdivision of Wildwood Estates, as described by drawings, 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 Federa' 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 ~f granting the Permit. NOW, THEREFORE, the Parties agree as follows: 1. Imorovements. 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 'onger period as required by the FWCC or other applicable law, rule or regulation. 2. Comoletion of Work. The App'icant shall comp'ete 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. 'A'29ìJ~J[ 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 Principa' the Full Release of Bond attached hereto as Exhibit HC". - - - .- - ..- 5. Riaht to Comolete Work. In the event the Applicant fails to perform the Work, the City may, but in no event is it ob'igated 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. 'ndemnification. 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 'imitation, the City's performance of the Work pursuant to Section 5 herein. 8. Administrative Cash Deoosit. 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 Deoosit Up to $20,000 $20,001 - $50,000 $50,001- $100,000 $100,001 and up 5% of Bond (minimum $100) 4% of Bond 3% of Bond 2-1/2% of Bond The cash deposit may be used by the City to cover its actua' 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 liabi'ity 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 App'icant's cost. -2- 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. . :RRY bßRUCTlON Barry Fish -- ) - J.rd) Its: er~n/q,,-- 29629 176th Ave. SE Kent, WA 98042 (206)631-1498 C'TY OF FEDERAL WAY ~~ By: ~~~ Kenneth E. Nyberg, Ity Manage - 33530 1 st Way South Federa' Way, WA 98003 ~ TTEST' / ~ ru~~<~ City Clerk, N. Christine Green, C.M.C. APPROVED AS TO FORM: ~ ~)~ ell, City Attorney K,lbondolbooonot,.bnd "". O4-12-96Id,dl -3- Bond }lo. WÍ!7644 Premium $2,917.00 per year EXHIBIT A Proiect: Wildwood Estetes Permit #:SUB 90-0004 CITY OF FEDERAL WAY PERFORMANCE/MAINTENANCE BOND KNOW ALL PEOPLE BY THESE PRESENTS: We, the undersigned, Barry Fisher, D.B.A. BC Construction, a Washington corporation ("Principal") and Contractors Bonding & Insurance Company, Inc. ("CBIC"), the undersigned corporation organized and existing under the laws of the State of Washington, and jegally doing business in the State of Washington as -a -Surety ("SUiety"1; -are held and firmly bound unto the City of Federal Way, a Washington municipal corporation (HCity") in the penal sum of One Hundred Forty Five Thousand Eight Hundred Sixty Two and No/100 Dollars ($145,862.00). 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 Applicant, Barry Fisher, D.B.A. BC Construction, has entered into an Agreement with the City of even date to have the Principal perform construction of all utilities and street improvements in connection with completing the sub-division of Wildwood Estates. 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 fai'ure 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 (25%) of the original amount of this bond without the consent of the Surety. 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 comp'ete 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 eleèt 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 r-eturn, 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 June . 199!f. CORPORATE SEAL OF PRINCIPAL: BARRY F'SHER, D.B.A. BC CONSTRUCTION By: £~ Its: ~.IV~ (Title) 29629 17th Ave. SE Kent, WA 98042 (206) 631-1498 -2- CORPORATE SEAL OF SURETY: CONTRACTORS BONDING & INSURANCE COMPANY, INC. B" ~~~h- (Attach Power of Attorney) Melinda Kludsikofsky (Name of Person Executing Bond) .14!1.Y~¡eY St. Seattle. WA 98109 (Address) (206) 628-7200 (Phone) APPROVED AS TO FORM: ð ~gff~D:L' ;;;;~~ORNFY CERT'FICATE AS TO CORPORATE SEAL I hereby certify that I am the (Assistant) Secretary of the Corporation named as Principa' in the within bond: that , who signed the said bond on behalf of the Principa', 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 ',IBaNaSIBCCaNSTR.BNa Rov.a4-'2.'. -3- d^ CORPORATE SEAL OF SURETY: CONTRACTORS BONDING & INSURANCE COMPANY, INC. By: Attorney-in-Fact - (Attach Power of Attorney) (Name of Person Executing Bond) (Address) (Phone) APPROVED AS TO FORM: 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' know his or her signature thereto is genuine, and that said bond was duly signed, sealed, and attested for and in beha'f of said Corporation by authority of its governing body. Secretary or Assistant Secretary K.\BONOS\BCCONSTA.BNO Aov. 04.12.96 - -3- 06/05/96 13:16"23; (206) 662-1556-) (206} 662-1556b ; CBIC 2 Page ._~"'C""""---"'-""""""""""""'- ""..."" _,.","_...... POW""'" ,-- ,-".,.......... ". "'"',to"""", """"'........"" "",d, bondi" _bod ,,"'. "'" to."" 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"..,. ,..,"', """I .m"""""""," """,""""""."""""'. "" -"""",...""".",...... "" -.--., """,U""-."",,- ...""..- _.............. "-......,...",, "- -..,,-.. ""... "'... -. -..."" ..-"'.........,.-. "'O<.VfO""THfft.....---....,.......-....---............,.........-...",..-- ~~:;'.:w ~RS ~.llÐNSUIIANÅ’ COOFANY ", """" "':,~::~ ""'ood by .. ChOfEKiOWw CffisO<, -, Chiol ""","I ""'" "'" ~"_donl."" ;1, 50"""'" _/ CCNTRA~~~'ì'.~".~RANCECOMPANY ~ BY'~ rl¡~"PO~~;¡t<)\(L..L~ ~ Donold9io1dn,Ch...Ex....,;..0ffic00- ~~\. ~EAL jj):.....,.FoIskow,V;08 -----~ 'fO'. ,'~- ~~ . .- 'I,"" "..1979/ "J' -- ',Ip "".." 'Ò: ~------ I, 4$ . I;\()--- By.. ',..HIN"_--B,,,. -.A."""..,P_t "",.. """"A.M_ChiefFin""""'",,",,", STATE OF WASHINGTON - COUNTY DF KING 0,.11/03/ 9 3,"-_DOfWDSlRK.N,S1EVEN'GA"""""'RKI'ICKA""CHA""J.FALSXOW"'~_.""""""""""MOII\"'""""""","_.""""~dY",_. ...".'..... of."........... -"'" """""'" umo.. "",d """""""""""""l.rn,'" ,-......,.. "'., ,_"""""".., """""'.'" "~"'m. "'.. ,- "" ,...- Ih,~" _.'~"""~""""""""R'""""",,. n,""', a"""',""""""', NWlT>SSW."""",I""'"""",, """""", m"""""""'i:go{ÅWP~""'-' STAn; OF WAS~TON MOLlVA.HUDSI'ETH '~"Å""-""'- MvAPPOW"'entE.<"""'JAN9.1<¡9 '::::S:::'~- C>:.-;';:,~~------ NoIooy . in..... !he ol""""_,_,"ng..""" Th, """""'4 "'" "dO< ,...... of........ of O"<:Iom . CCMIIACJtR """""" -"""""'ECO"W<Y, """'- .. " ¡. I 9011"'" d ". ""R"" of """"""CAS IIOODNC AND """"""-""" ,"'" "",_.,;"""t......"" """""",,"h,Orio.. """"of.......,.",..'b, "~Co""""'" ""h_""""",..tify~.....,,"P-~""moy¡' '" '" .,~ ,,""'" """"""""""4" Seattle, WA ~"--~--- "'Ol____~!!..-_---------,,~. eLL 9. 7~ ------ "1'2<12041 v --------- EXHIBIT B PARTIAL RELEASE OF BOND # The undersigned hereby acknowledges that a portion. of the conditions of the Agreement and Performance/Maintenance Bond for Barry Fisher. D.B.A. BC Construction. Permit No. SUB 90-0004 have been satisfied and hereby authorizes the release of an amount equal to One Hundred Two Thousand One Hundred Three and No/100 Dollars ($102,103.00). The remaining funds equalling thirty (30%) of the cost of the work or improvements shall be retained by the City for a period of two (2)-years às se-cu(it~r16rAssÎ9nor'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 # 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 Wi'dwood Estates, Permit No. SUB 90-0004 have been completed to the City's satisfaction and that the City is not aware of any defect in workmanship or materia's. According'y, the undersigned hereby releases the sum of- Forty Three Thousand Seven Hundred Fifty Nine -and-No/tOO--C;-ö"ars ($43,759.00). 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 ,199_. CITY OF FEDERAL WAY By: (Name, Title)