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AG 96-164 , " Applicant: Project: Federal Way Church of the Nazarene Federal Way Church of the Nazarene - Foyer Addition Property Address: 1525 SW Dash Pt. Road Federal Way, WA 980.23 Bond #: 4259035 Permit#: BLD95-1o.12 Bond Amount: $65,000.00 Cash Deposit Amount: $1,950..0.0. J4b o¡& -/~Lj - - - - - -- -. CITY OF FEDERAL WAY AGREEMENT AND PERFORMANCE/MAINTENANCE BOND THIS AGREEMENT ("Agreement") is dated effective this 9th day of May, 1996. The parties ("Parties") to this Agreement are the City of Federal Way, a Washington municipal corporation ("City") and Federal Way Church of the Nazarene, a Washington corporation ("Applicant"). A. The Applicant is required to perform certain work and/or complete certain improvements associated with the construction of a seventeen hundred square foot (1700. ft') foyer addition to the Federal Way Church of the Nazarene, including resurfacing of a new parking area and construction of storm drainage facilities 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 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 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 fina' inspection, or such longer period as required by the FWCC or other applicable law, rule or regu'ation. 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. (CQ)~lf 1¡,j,3/!¡" O{¡.l)l¥Ia.R. -10 ~((.6. &C;~. 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 re'ease the remaining portion of the Bond by executing and delivering to Principal the Full Re'ease of Bond attached hereto as Exhibit "C". .-- ..--. -.'- 5. Richt to Comolete Work. In the event the Applicant fails to perform the Work, 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. App'icant agrees to indemnify and hold the City, its elected officia's, officers, emp'oyees, 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 DeDosit. 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 DeDosit 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 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 availab'e to the City at law, in equity or by statute. Applicant's liability under this Agreement is not 'imited to the amount of the Bond. 10. License. Applicant shall record a license in the form attached hereto as Exhibit "0" 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. FEDERAL WAY CHURCH OF THE NAZARENE B~: ~ .~~ j~ {;e¿r~~ 1525 SW Dash t. Road Federal Way, WA 98023 Its: CITY OF FEDERAL WAY By: ¿~b Kenneth E. Nyberg, cirv Manager 33530 1st Way South Federa' Way, WA 98003 ATTESTW' / / / - l.. / . '-'-z APPROVED AS TO FORM: ~~~ -3- EXHIBIT A Project: FW Churoh of the NezerBne Permit #: BLD 95-1012 Bond No. 4259038 CITY OF FEDERAL WAY PERFORMANCE/MAINTENANCE BOND KNOW ALL PEOPLE BY THESE PRESENTS: We, the undersigned, Federal Way Church of the Nazarene, as principal ("Principal"), and ~ ~~the undersigned corporation organized and existing under the laws of the State of ~~~nd 'egally doing business in the State ol Wasnîngti>¡:ras -a surety ("Surety"), are he'd and firm'y bound unto the City of Federal Way, a Washington municipal corporation ("City") in the penal sum of Sixty-Five Thousand and no/1 00 Dollars ($65,000.00) for the payment of which they firmly bind themselves and their legal representatives, successors and assigns, jointly and severally. *Indemnity Company of California **California 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 Principa' has entered into an Agreement with the City of even date to make site improvements associated with the construction of a foyer at the Federal Way Church of the Nazarene, including resurfacing a new parking area and construction of storm drainage facilities. 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, emp'oyees 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 (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 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 pena' 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 feturn, without interest, any overpayment made-by the' Surety-ahdtliè-'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 defau't 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, Seatt'e, Washington 98101-2327. The Surety shall not interplead prior to completion of the mediation. DATED this ~ day of June , 199~. CORPORATE SEAL OF PR'NCIPAL: FEDERAL WAY CHURCH OF THE NAZARENE By: ~~ /þ; ,J~ Name ~rson Executing ond Its: 5Cb/~e ~Y- (Title) 1525 SW Dash Pt. Road Federal Way, WA 98023 (206) 623-2390 -2- CORPORATE SEAL OF SURETY: ~, Surety Indemnity Company of California By: ~¿J.~~~ AttorneY-in-Fact. (Attach Power of Attorney) Jake W. Murphree - Nam-e"Uf'F3erson Executing Bond 9725 - 3rd Avenue NE, Suite 602 Seattle, WA 98115 Address (206)525-8201 Phone APPROVED AS TO FORM: ~ ~ LO IK. L~ATTORNEY CERTIFICATE AS TO CORPORATE SEAL I hereby certify that I am he (Assj;¡tan~) Secretary of the Corporation named as PrinCipal in the within bond; that Y.;.;. ¡JCÞ , 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, nd that said bond was duly signed, sealed, and attested for and in behalf of said Corporation by authority of its governing body. -3- EXHIBIT B PARTIAL RELEASE OF BOND # 4259038 The undersigned hereby acknowledges that a portior} of the conditions of the Agreement and Performance/Maintenance Bond for Federal Way Church of the Nazarene, Permit No. BLD 95-1012, have been satisfied and hereby authorizes the release of an amount equal to Forty- Five Thousand, Five Hundred and no/1 00 Dollars ($45,500.00). The remaining funds equalling thirty (30%) of the cost of the work or improvements shall be retained by the City for a-period of two (2) years as security for Assignor's performance-of 'afl--maintenance for the above described project and as a guarantee against defective materials or workmanship in the construction and maintenance of such improvements. DATED this day of ,199_. CITY OF FEDERAL WAY By: (Name, Title) EXHIBIT C FULL RELEASE OF BOND It 4259038 TERMINATION OF LICENSE The undersigned hereby acknowledges that the two (2) year maintenance period has expired, that the work or improvements covered by' the Agreement and Performance! Maintenance Bond for Federal Way Church of Nazarene, Permit No. BLD 95.1 a 12, have been completed to the City's satisfaction and that the City is not aware of any defect in workmanship or materials. Accordingly, the undersigned hereby releases the sum of Nineteen Thousand, Five Hundred and no!100 Dollars ($l9,500.00);-T-he-andersigned further re'eases 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) EXHIBIT D FILED FOR RECORD AT REQUEST OF: Federal Way Church of the Nazarene MAIL TO: CITY OF FEDERAL WAY 33530 1ST WAY SOUTH FEDERAL WAY, WA 98003 ATTN: Julie Venn THIS SPACE RESERVED FOR: RECORDERS USE: LICENSE - - -- - ---- The undersigned owner of certain real property located in Federal Way, Washington and legally described as follows: Legal Description attached hereto as Exhibit "1" and incorporated herein by this reference ("Property") hereby grants an irrevocable license to the City of Federal Way ¡"City"' and the City's agents, employees, contractors or representatives to enter upon the Property to inspect the construction of improvements, the performance of work or to allow the City to perform any necessary maintenance or work, all pursuant to that certain Agreement and Performance/Maintenance Bond of even date entered into between the City and the undersigned and incorporated herein by this reference, DATED this k- day of May, 1996. FEDERAL WAY CHURCH OF THE NAZARENE By: ;~ -1r d¥--t- ç(!,ó}'r' I ¿LY'~ V Its: [Individual Notary] STATE OF WASHINGTON I I ss. COUNTY OF KING , On me, to me known to e the individuaHsl described in and who executed the foregoing License, and on oath swore that ~/she/they executed the foregoing instrument as his/her/their free and voluntary act and deed for the uses Md purposes therein mentioned. 1 GIVEN my hand and °Yi~ial seal this L day of ~.:L ,1~~ .!b°tary Signat~ 'flr1ê !/rlflSélJ (typed/printed'name of notary) Notary Public in and for the State of W My commission expires I/-..J.Y~ ~1 K.\bo"d.\"...~",.... 5.'-'.".-'.""" [Corporate Notary] STATE OF WASHINGTON) ) ss. COUNTY OF KING J On this day personaiiy appeared before me , to me known to be the of Federal Way Church of the Nazarene, the corporation that executed the foregoing License, and acknowiedged the said instrument to be the free and voluntary act and deed of said corporation, for the uses and purposes therein mentioned, and on oath stated that he/she was authorized to execute said instrument and that the seal affixed, if any, is the corporate seal of said corporation. GIVEN my hand and official seal this - day of ,19_, (notary signaturel (typed/printed name of notary) Notary Public in and for the State of Washington, My commission expires ORIGINAL Exhibit "1" That portion of Government Lot 2, in Northwest Quarter of section 7, Township 21 North, Range .4 East, W.M., described as follows: Commencing at the west quarter of said section 7" thence south 88°58'35" east along the south line of said northwest quarter, 547.06 feet; thence.-north.OQ.o5.7.'-50" east - 518.35 feet to the true pointing of beginning; thence south 89°11'58" east 125.00 feet; thence north 00057'40" east 200.00 feet; thence north 89°11'58" west 261.45 feet to the southeasterly margin of S.W. Dash Point Road (S.S.H. I-V); thence southwesterly along said margin, 140.32 feet; thence south 53002'15" east 146.96 feet; thence south 89011'58" east 100.00 feet to the true point of beginning; Together with Lot 1, King County Short Plat No. 379053 recorded under Auditor's file No. 8004110692, Records of King County, Washington; POWER OF ATTORNEY OF DEMNITY COMPANY OF CALlFO: A AND DEVELOPERS INSURANCE COMI'ANY p.o. BOX 19725, IRVINE, CA 92713' (714) 263-3300 N~ 27662 5 NOTICE: ,. All pow", and authority harain g'antad shall In any event ta",,'nate on }he 31st day of March, 1999. 2. This Pow", of Anomey Is voòd If o1tared", If any portion Is ...sad. 3. This Powal of A"omey Is void unless the seal Is I'OOdabla, the text Is In bmwn Ink, the sl9natures era In blua Ink and this notice is In red ink. 4. This Pow", of Anomey should not be retumad to the A"omeyls)-In-Fact. but should """ain a permanant part of tho obligee's """'ms. KNOW ALL MEN BY THESE PRESENTS, that except as axpnossly IImltad, INDEMNITY COMPANY OF CAUFORNIA and DEVELOPERS INSURANCE COMPANY, do each severally, but not jointly, heraby make, constitute and appoint "'JAKE W. MURPHREE, KAREN L. STAFFANSON, MARY J. THOMAS, LISA A. UTSCH'G, JOINTLY OR SEVERALLY'" - - --------'----- the true and lawful Anomey(sHn-Fact, to make, exacute, delivar and acknowledge. fer and on behalf of said eo<porations as suroties, bonds, underta}dngs and contracts of surelyahlp In an amount not excaading - Million Five Hundred Thousand Doll.,. ($2,500,000) in any slngla undertakJng: giving and g_lng unto said A"omey(s)-In-Fact full power and authortty to do and to panonn fNfMY act necessaty, requisite er pm"", to be done in connection therawith as each of said corporations cculd do, but resllfVing to each of said corporations full pow", of substitution and revocation; and 011 of the acts of said A"omayls)-In-Fact, pursuant to th... presents, era heraby ratified and confinned. This Power of A"omey is grantad and is signad by facsimile under and by autholily of the following resolutions adoptad by the respective Bo"'" of Directors of INDEMNITY COMPANY OF CAUFORNIA and DEVELOPERS INSURANCE COMPANY, effective as of Septem"'" 24, 1986: RESOLVED, that the Chal""an of the 8oam, the Presldant and any Vica Presidant of the corporation be, and that each of them hereby is, authorizad to execute Powers of A"omey, quaiifying the attorney!s) namad In the Powers of A"omey to execute, on beha" of the corporation, bonds, undertakings and contracts of suretyship; and that the Sacratæy cr any Assistant Sacnltæyoftho corporation be, and each of them h",eby is, authorized to "est the execution of any such Powe<of A"omey; RESOLVED, FURTHER, that the signatures of such officars may be affixed to any such Pow", of A"omey cr to any certificate ralatlng thereto by facsimile, and any such Power of A"omey or certificate bearing such facsimile signatures sho1l be valid and binding upon the corporation whan so affixad and In tho Mure with respect to any bond, undertaking or contract of surelyahlp to which it is attached. IN WITNESS WHEREOF, INDEMNITY COMPANY OF CALIFORNIA and DEVELOPERS INSURANCE COMPANY have -Iy causad these pnosents to be signed by their respective Presidents and attested by their respective Secretaries this 14th day of June, 1995. INDEMNITY COMPANY OF CALIFORNIA DEVELOPERS INSURANCE COMPANY By Q~g~. Äk~ Walt", Crowell Sacretary By Q~eß~::Ai' Ahr£~ ATTEST By By Sacratæy STATE OF CALIFORNIA ) )SS. ) COUNTY OF ORANGE On June 14, 1995, before me, C.V. Brink, personallyappearad Dante F. Vincantl, Jr. and Walt",c.owell, personally known to me lor pmvad to me on the basis of satisfactory evIdence) to be the person!s) whose name(s) is/era subscribed to the within instrument and acknowJedged to me that helshelthay executed tha same in hislhar!their euthorized capaclty{}es), and that by hls/h",lthelr signatura(s) on the instrument the person!s), "' the antity upon behalf of which the person(s) acted, executed the instruman!. WITNESS my hand end officio1 seal. CERTIFICATE Signature ~ The undersigned, as Sanior V<ca Presldant of INDEMNITY COMPANY OF CALIFORNIA, and Sanlor Vice PresIdent of DEVELOPERS INSURANCE COMPANY, does heraby certify that the fcragolng and attachad Pow", of Anorney ""","ns in full foroe and has not bean revoked; and furthannono, that tho pm~sions of the """"utions of the respectIve BoIIFds of D;ractors of said corporations set forth In the POW.' of Attomey, era in force es of the date of thIs Certificate. This Caitificate is executed in the City of Irvine, Co1~omia, this (q 11; day o~ ' 199~. IINDEMNITY COMPANY OF CALIFORNIA DEVELOPERS INSURANCE COMPANY By ~(õ~ Sanior V<ca Presidant ~(ó~ Sanior Vice Pras>dant i0-310 REV. (2196)