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AG 00-080 CITY OF FEDERAL WAY LAW DEPARTMENT REQUEST FOR CONTRACT PREPARATION/CIOCUMENT REVIEW/SIGNATURE ROUTING SLIP 4. ~RE OF OOCUMENT REQUESTED (CHECK ONE)= ~ PROFEBBIONAL ~ERVICE AGREEME~ ~ ~ECURI~ DOCUMENT ~ MAINTBNANC~BOR A~REEMENT (E,~,~ A~EEME; & PER~N BONO; ~IONME~ ~ FUNOB IN UEU ~ BON~ ~ PUBLIC WORKS CONTRACT ~ CO--RACeR ~E~CTION DOCUMENT ~ SMALL PUBLIC WORKS CONTRACT (E.G., R~B, RFP, (LEBBTHAN $~,000) ~ CO~RA~ AMBNDMBNT A~I: ~ PURCHABB A~REEMENT ~ EABEME~ 0 REAL ESTATE PURCHABE & BALEB AGREEMENT 0 COB;f ADDRE~: -- ~ ' .... PHONE:~ 7.~CO~E OF WORK: A~ACH ~IB~ A - A COMP~b ~D D~AI~D DEBCRI~ON ~ ~E 8E~ICEB WORK~ INC~OING COMP~ION OA~ FOR ~CH ~E OF ~RK ~0 ~ATI~ OF ~RK. 8. TERM: COMMENCEMENT OATE: COMPLETION OATE= 9. TOTAL COMPENSATION $. (INCLUOE EXPENSES ANO ~ALEB T~ IF AN~ REIMBURSABLE EXPEN~E~: ~ YE~ ~ NO IF YE~ M~IMUM OOL~R AMOUNT: I~ SALE~ T~ OWEO? ~ YE~ ~ NO IF YEB~ $ PAIO BY: ~ CONTRACTOR 0 Cl~ 10. ~ELECTION ~ROCE~ U~EO (CHECK ~ R;~T FOR BIO~ ~ REQUEST FOR ~O~B ~ ARCHI~CT & ~N~IN;BR ~I~T ~ R;~;BT FOR ~ROPOBALB ~ R;~BBT FOR ~AUFICATIONB ~ ~MALL WORK~ ROSTER I I · CONTRACT REVIEW INITIA~ATE APPROVED ~ ~W (~LC CON~C~S) ~ RISK MANAgEMeNT ~ ~UMAN ~ERVICEB I I · CONTRACT ~I~NATURE ROUTING INITIA~ATE APPROVED COMMENTB ~ ~ ~ . t - ~ ~~ ~-~t\:) Applicant: PB Investments Limited Partnership Project: Pacific Retail Center Property Address: 33002 Pacific Highway South Federal Way,WA 98003 Bond #: 111C>O2Oß{P Permit#: BlD99-0583 Bond Amount: $46,534 Cash Deposit Amount: $1,860 CITY OF FEDERAL WA V AGREEMENT AND PERFORMANCE/MAINTENANCE BOND THIS AGREEMENT ("Agreement") is dated effective this ï~ day of ~~ , 2000. The parties ("Parties") to this Agreement are the City of Federal Way, a Washington municipal corporation ("City") and PB Investments Limited Partnership, a Washington corporation ("Applicant"). A. The Applicant is required to perform certain work and/or complete certain improvements, including on site grading, paving, curbs, erosion control, and storm water conveyance and biofiltration 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 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. ImDrovements. 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) yeôrs sfte:- i~~:..:ance 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. Comoletion 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. CC(Q)[P)f 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. Riaht 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. 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, orconnected with this Agreement and the Bond, including without limitation, 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 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. -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. PB Investments limited Parnership - - - / fJ~ ~1.' L.eIftNIU r"'-.lp8~~. , ~~ BY:~ . . --E.L-~ Its: ?u4\~ ~ ft . - ^ .-..t 202 Lake Washington Blvd Seattle, WA 98122 STATE OF WASHINGTON ) ) ss. ) COUNTY OF KING . . On this day personally appeared before me T~ 1... Lc.ø.u;ð- , to me known to be the ?.q~ MElAeaiAa Aaet'\t of PB Investments Limited Partnership, the corporation that executed the foregoing License, and acknowledged 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 1 ~ day of ~ ,2000. n .. ~ tL-.. (no ry signature) JAMES C. EDRIS NOTARY PUBLIC STATE OF WASHINGTON COMMISSION EXPIRES MARCH 19, 2003 (typed/printed name of notary) Notary Public in and for the State of Washington. My c:>:11m¡~sion e:!pires 3f\C\ I ~z.. By: );L~ City Clerk, N. Christine Green, CMC -3- APPROVED AS TO FORM: c~:7e. ::'eCt:bIiC Wo'k. K:\FORMS\PERFMAIN.AGT Rev. 01-28-97 -4- . t EXHIBIT A Project: Pacific Retail Center Permit #: BLD99-QS83 CITY OF FEDERAL WAY PERFORMANCE/MAINTENANCE BOND KNOW ALL PEOPLE BY THESE PRESENTS: We, the undersigned, PB Investments limited Partnership, as principal ("Principal"), and Amwest Surety Insurance Company, surety bond company, the undersigned corporation organized and existing under the laws of the State of Nebraska, 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 Fourty-Six Thousand Five Hundred Thirty Four and no/100 Dollars ($46,534) 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 construct onsite paving, curbs, erosion control, and storm water conveyance and biofiltration 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, 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 (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 Q 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 i~t 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 com~lete 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 22ND day of FEBRUARY , 2000. CORPORATE SEAL OF PRINCIPAL: PB INVESLMENTS LIMITED PARTNERSHIP ~"" UM4w SkCloj (p ;s), ~ -e, . ~_N't#H I ~ ~ P-4þ- By: ... . .. -,:w;~ 6. ~Q."* Its: ~~lA.wr M&,,'£g¡A§ l'.Gont 202 Lake Washington Blvd Seattle, WA 98122 (206) 726-8291 -2- . - , , CORPORATE SEAL OF SURETY: AMWEST SURETY INSURANCE COMPANY Surety By: -~~n Øé~~ ' Susan B. Larson Attorney-in-Fact (Attach Power of Attorney) 2233 11 2th Ave. NE Bellevue, WA 98004 (425) 709-3600 Phone BOND NUMBER: 111002086 APPROVED AS TO FORM: ca~ed :'Ct~bIiC Works 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 ~e:. L,Q."":'j , 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 JAMES C. EDRIS NOTARY PUBLIC STATE OF WASHINGTON COMMISSION EXPIRES MARCH 19. 2003 K:\FORMSIPERFMAIN.B D File No.- g -3- , . , LIMII ~D POWER OF A Tr-lo. JRNEY Amwest Surety Insurance Company Expiration Date: 06/29/01 POWER NUMBER 0001031405 This document is printed on white paper containing the artificial watermarked logo (It ) of Amwest Surety Insurance Company on the front and brown security paper on the back. Only unaltered originals of the Limited Power of Attorney ("POA") are valid. This POA may not be used in conjunction with any other POA. No representations or warranties regarding this POA may be made by any person. This POA is governed by the laws of the State of Nebraska and is only valid until the expiration date. Amwest Surety Insurance Company (the "Company") shall not be liable on any limited POA which is fraudulently produced, forged or otherwise distributed without the permission of the Company. Any party concerned about the validity of this POA or an accompanying Company bond should call your local Amwest branch office at (206) <;22-l111 KNOW ALL BY THESE PRESENT, that Amwest Surety Insurance Company, a Nebraska corporation, does hereby make, constitute and appoint: Pamela Nelson Deanna M. Meyer Susan B. Larson Tim Church Carl Newman Karen P. Dever As Employees of Parker, Smith & Feek, Inc. its true and lawful Attorney-in-fact, with limited POWeT and authority for and on behalf of the Company as surety to execute, deliver and affix the seal of the company thereto if a seal is required on bonds, undertakings, recognizances, reinsurance agreement for a Miller Act or other performance bond or other written obligations in the nature thereof as follows: All Bonds up to $5,000,000.00 Jeffrey W. Parkhurst and to bind the company thereby. This appointment is made under and by authority of the By-Laws of the Company, which are now in full force and effect. I, the undersigned secretary of Amwest Surety Insurance Company, a Nebraska corporation, DO HEREBY CERTIFY that this Power of Attorney remains in full force and effect and has not been revoked and furthermore, that the resolutions of the Board of Directors of Amwest Surety Insurance Company set forth on this Power of Attorney, and that the relevant provisions of the By-Laws of each company, are now in full force and effect. Signed & sealed this22ND day of FEBRUARY 2000 ~ R. ~~ Karen G. Cohen, Secretary * * * * * * * * * * * * * * * * * RESOLUTIONS OF THE BOARD OF DIRECTORS * * * * * * * * * * * * * * * * * * * * * * * * * * * This POA is signed and sealed by facsimile under and by the authority of the following resolutions adopted by the Board of Directors of Amwest Surety Insurance Company at a meeting duly held on December 15, 1975: RESOLVED, that the President or any Vice President, in conjunction with the Secretary or any Assistant Secretary, may appoint attorneys-in-fact or agents with authority as defined or limited in the instrument evidencing the appointment in each case, for and on behalf of the Company, to execute and deliver and affix the seal of the Company to bonds, undertakings, recognizances, and suretyship obligations of all kinds; and said officers may remove any such attorney-in-fact or agent and revoke any POA previously granted to such person. RESOLVED FURTHER, that any bond, undertaking, recognizance, or suretyship obligation shall be valid and bind upon the Company: (i) when signed by the President or any Vice President and attested and sealed (if a seal be required) by any Secretary or Assistant Secretary; or (ii) when signed by the President or any Vice President or Secretary or Assistant Secretary, and countersigned and sealed (if a seal be required) by a duly authorized attorney-in-fact or agent; or when duly executed and sealed (if a seal be required) by one or more attorneys-in-fact or agents pursuant to and within the limits of the authority evidenced by the power of attorney issued by the Company to such person or persons. RESOLVED FURTHER, that the signature of any authorized offiCeT and the seal of the Company may be affixed by facsimile to any POA or certification thereof authorizing the execution and delivery of any bond, undertaking, recognizance, or other suretyship obligations of the Company; and such signature and seal when so used shall have the same force and effect as though manually affixed. Bond No. 111002086 (iii) IN WITNESS WHEREOF, Amwest Surety Insurance Company has caused these present to be signed by its proper officers, and its corporate seals to be hereunto affixed this 251h day of September, 1998. n- ~ ~./ ~ / ~ /? ~ VO"""'M. C- Þ<T CM/~...L ~ ~ ,. John E. Savage, Preside6t . Karen G. Cohen, Secretary State of California County of Los Angeles On September 25,1998 before me, Peggy B. Lofton Notary Public, personally appeared John E. Savage and Karen G. Cohen, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me all that he/she/they executed the same in hislher/their authorized capacity(ies), and that by hislheT/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS mY~ and official seal ,. ..-.. .-. ..... .-. .-. ~ .-....::. ..-.. ..... <I "..,...",.."."", ~' r~.. ............... r "'<{ \NS(¡ """'" . Å.. $ @ ComrnIIIIon#1CU)61 ~ ;",~ .................!:¡.., ~" ~I.J P~~B.~~ ~Lo' ~~'bI- 2' NoIarrNllc CaIbnIa ~ l§"~.¿ê/~.POlf;'~1:A Signature ~ ~ ~ '~, ~ (Seal) ~ Lo8~Ccu1Iy ¡ [U)f~ DEC. 14, O\~~ I 'Or 'Or -- ~~o:"'~ex:-'Or~6~': ¡ h-\ 1995 jo~ \~""":-~eRþ..S.s;.~,../~/ ~~11 ~>....."'..,_...::.:\~ ,,;,;' "",;;;r It * ,,~;""" """"......", 5230 Las Virgenes Road Calabasas, CA 91302 TEL 818 871-2000 EXHIBIT B PARTIAL RELEASE OF BOND # The undersigned hereby acknowledges that a portion of the conditions of the Agreement and Performance/Maintenance Bond for Pacific Retail Center - BLD99-0583, have been satisfied and hereby authorizes the release of an amount equal to Thirty Two Thousand Five Hundred Seventy Four Dollars ($32,574). 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 ,20- CITY OF FEDERAL WAY By: (Name, Title) i' 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 Pacific Retail Center - BLD99-0583, 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 Thirteen Thousand Nine Hundred Sixty Dollars ($13,960). 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 ,20- CITY OF FEDERAL WAY By: (Name, Title) ( ( A Am west Amwest Surety Insurance Company GENERAL INDEMNITY AGREEMENT This Agreement of Indemnity, made and entered into this 22ND day of FEBRUARY 2000 is executed by the Undersigned for the purpose of indemnifying AMWEST SURETY INSURANCE COMPANY, herein referred to as "Surety", in connection with any Bonds written on behalf of P. B. INVESTMENTS LIMITED PARTNERSHIP , herein referred to as "Principal:' 1. DEFINITIONS - The following definitions apply in this Agreement: Bond - Any contractual obligation undertaken by Surety for Principal, before or after the date of this Agreement and any renewal or extension of said obligation. ' Principal - The person(s) or entity(ies) set forth above or anyone of them or any combination thereof, or their successors in interest, whether alone or joint venture with others named herein ór not. . .- Surety - AMWEST SURETY INSURANCE COMPANY, its affiliates, subsidiaries or reinsùrers, and any other person(s) or entity(ies) which the Surety may procure to act as a Surety or as a Co-Surety on any Bond, or any other person or entity who executes a Bond at the request of Surety. Contract - Any agreement of Principal, including that which is bonded by the Surety. 2. INDEMNITY - In consideration of the execution and delivery by the Surety of a Bond or any Bonds on behalf of the Principal, the Undersigned agree to indemnify and hold the Surety harmless from and against any and all demands, liabilities, losses, costs, damages, attorneys' fees and expenses of whatever kind or nature which arise by reason of, or in consequence of, the execution by the Surety of any Bond on behalf of the Principal and whether or not the Surety shall have paid any sums in partial or complete payment thereof, including but not limited to: sums paid including interest, or liabilities incurred in settlement of claim; expenses paid or incurred in connection with claims, suits, or judgments under such Bonds; expenses paid or incurred in enforcing the terms of this Agreement; expenses paid or incurred in procuring or attempting to procure release from liability under its Bond by Surety; expenses incurred in recovering or attempting to recover losses or expenses paid or incurred; attorneys fees and all legal expenses related to any items herein: including in-house attorney fees, costs and expenses; investigation, accounting or engineering services; adjustment of claims; premiums on Bonds issued by Surety on behalf of the Principal; monies advanced or loaned in accordance with Section 4(d) of this Agreement. In furtherance of such indemnity: A. The liability of the undersigned shall extend to and include all amounts paid by the Surety in good faith under the belief that 1) principal was in default as hereinafter described in Section 3 of this agreement; 2) Surety was or might be liable therefore; 3) such payments were necessary or advisable to protect any of Surety's rights as to avoid or lessen Surety's liability or alleged liability. B. Surety shall have the right to incur such expenses in handling a claim as it shall deem necessary, including but not limited to the expense for investigative, accounting, engineering and legal services. C. Surety shall have the foregoing rights, irrespective of the fact that the Undersigned may have assumed, or offered to assume, the defense of the Surety upon such claim. D. In any claim or suit hereunder, an itemized statement of the aforesaid losses and expenses, sworn to by an officer of Surety, or the vouchers or other evidence of disbursement by Surety; shall be prima facie evidence of the fact and extent of the liability hereunder of the Undersigned. E. Surety shall have the right to reimbursement of its expenses, premiums and attorneys' fees, including in-house attorneys' fees, costs and expenses hereunder, irrespective of whether any Bond loss payment has been made by Surety. In any suit on this Agreement, Surety may recover its further expenses and attorneys' fees, including in-house attorneys' fees, costs and expenses incurred in suit. F. If the principal advises the Surety in a timely manner of its defenses relating to any claim arising out of any bond written pursuant "to this agreement, and instructs the Surety not to payor otherwise perform thereunder, based upon such defenses the Undersigned agrees to indemnify, hold harmless and reimburse the Surety for any consequential or other damages - including but not limited to attorneys' fees (whether for outside attorneys or in-house counsel), legal costs, bad faith judgments, etc. - which thereafter may arise. 3. DEFAULT - Principal shall be in Default with respect to a Contract and hereunder if any of the following occur: A. Principal breaches, abandons or repudiates any Contract. B. Any Obligee declares Principal to be in Default. C. Principal fails to pay for any labor or materials when such payment is due. D. Principal diverts any Contract funds from one Contract to another, prior to the complete discharge of Surety. E. Principal, or any of the Undersigned, breaches any provision of this Agreement. F. Principal, or anyone of the Undersigned, becomes the subject of any Agreement or proceedings of composition, insolvency, bankruptcy, receivership, trusteeship, or assignment for creditors. G. Principal, or anyone of the undersigned, becomes actually insolvent. H, Principal (if an individual) dies, is adjudged mentally incompetent, convicted of a felony, becomes a fugitive from justice or disappears and cannot be located with the usual methods. 4. REMEDIES UPON DEFAULT - In the event of a Default, as defined above, Surety may at its option and sole discretion: A. Take over any Contract and arrange for its completion, utilizing either the Principal's current or any other subcontractors and material suppliers as the Surety may select. B. Take possession of the Principal's equipment, materials and supplies at the site of the work or elsewhere, and utilize the A UN-A1012 (Rev. 12/99) Q same for Completion of any Contract. C. Take possession of the office equipment, books and records of Principal as are necessary for completion of any Contract. D. Loan such funds or guarantee a loan for such funds (prior to or after default), as Surety shall deem necessary for the completion of any Contract and for the discharge of Surety in connection with any Contract. Repayment of such loan shall be the responsibility of the Undersigned. But, in no event shall the Surety be obligated to use either its own funds, or collateral provided by the Principal (or any third party) to fund the Principal (or, any designee or assignee of the Principal) to complete any Contract. Such determination shall be at the sole discretion of the Surety. 5. COLLATERAL SECURITY - If a claim is made against Surety, whether disputed or not, or if Surety deems it necessary to establish a reserve for potential claims, and upon demand from <3urety, the Undersigned shall deposit with Surety cash or other property acceptable to Surety, as collateral security, in sufficient amount to protect Surety with respect to such claim or potential claims and any expense or attorneys' fees. Such collateral may be held or utilized by Surety until it has received evidence of its complete discharge from such claim or potential claims, and until it has been fully reimbursed for all loss, expense, attorneys' fees and unpaid premiums. If said Collateral, or collateral previously deposited with Surety, is deemed insufficient by Surety, the Undersigned agree to deposit additional or substitute collateral in an amount and type acceptable to Surety. This may include the Surety's demand for cash collateral in substitution for trust deed collateral. The Undersigned further agrees to reimburse the Surety for all attorneys' fees, costs, expenses, etc., including any in-house attorneys' fees, in the Surety's defense of any action brought by the Principal or Indemnitors to effect the return of their collateral, if the Court subsequently upholds the Surety's position in retaining that collateral. 6. ASSIGNMENT - As security for the performance of all of the provisions of this Agreement, the Undersigned hereby assign, transfer, pledge and convey to the Surety (effective as of the date of each such Bond or Bonds, but only in the event of Default referred to in preceding Section 3): A. All rights in connection with any Contract, including but not limited thereto: 1. All subcontracts let in connection therewith and such subcontractors' Surety Bonds. 2. All machinery, plant, equipment, or tools which shall be upon the site or sites of the work or elsewhere for the purpose of any Contract, including all material ordered for any Contract. 3, Any and all sums due or which may thereafter become due under any Contract and all other sum or sums due or to become due on all other contracts, bonded or unbonded, in which any of the Undersigned have an interest. 4. All rights arising out of insurance policies, notes and accounts receivable, and choses in action. 7. POWER OF ATTORNEY - The Undersigned hereby irrevocably nominate, constitute, appoint and designate the Surety or its designee as their attorney-in-fact with the power, but not the obligation, to exercise all of the rights assigned, transferred and set over to the Surety by the Undersigned in this Agreement, and to make, execute and deliver any and all additional or other assignments, documents or papers, including but not limited to: the execution of instruments referred to in Section 6, the endorsement of checks or other instruments payable to any of the Undersigned deemed necessary and proper by the Surety in order to give full effect to the intent and meaning of the within assignment for the full protection intended to be given to the Surety under all other provisions of this Agreement. The Undersigned hereby ratify and affirm all acts and actions taken and done by the Surety or its designee as attorney-in-fact. 8. GENERAL PROVISIONS A. The obligations of the Undersigned hereunder are joint and several. Surety may bring separate suits hereunder against any or all of the Undersigned as causes of action may accrue hereunder. Surety need not proceed first against the Principal. B. Undersigned will, on request to Surety, procure the discharge of Surety from any Bond, and all liability by reason thereof. C. Undersigned warrant that each of them is specifically and beneficially interested in obtaining each Bond and agree to pay the initial, renewal, and additional premiums thereon, including premiums based on overrun in contract price according to the Companies current rate manual recognizing that the initial premium is fully earned upon execution of said Bond. D. Undersigned waive notice of: any Default, the making of a claim against Surety, or Surety's loaning funds to Principal. E. Undersigned agree to give to Surety prompt notice of any facts which might give rise to any claims or suits against Surety upon any Bond. F. Surety shall have the right, at its option and in its sole discretion, to issue or cancel or decline the execution of any Bond, or renewal thereof, including a final Bond when it has furnished a bid Bond. G, Surety may consent to any changes or alterations in a Contract or Bond, without affecting the liability hereunder of the Undersigned, including but not limited to riders extending the time of completion, or increases or decreases in the penal sum of the bond, who hereby agree to pay any additional premium resulting from said changes or alterations, without giving notice thereof to the indemnitors. H. Surety shall have every right, defense, or remedy which a personal Surety without compensation would have, including the right of exoneration. I. Until Surety shall have been furnished with conclusive evidence of its discharge without loss from any Bonds, and until Surety has been otherwise fully indemnified hereunder provided, Surety shall havè right of free access to the books, records and accounts of the Undersigned for the purpose of examining and copying them. The Undersigned hereby authorize third parties, including but not limited to depositories of funds of the Undersigned, to furnish to Surety any information requested by Surety in connection with any transaction. Surety may furnish any information, which it now has or may hereafter acquire concerning the Undersigned, to other persons, firms or entities for the purpose of procuring co-suretyship or reinsurance or of advising such persons, firms, or entities as it may deem appropriate. J. If the execution of this Agreement by any of the Undersigned be found defective or invalid for any reason, such defect or invalidity shall not affect the validity of this Agreement with respect to any other of the Undersigned. The invalidity of any provision of this Agreement by reason of the law of any state or by any other reason shall not affect the validity of any other provision of this Agreement. K, The Surety may, at its option, file or record this Agreement or any other document executed by any or all of the \ ) ì ì Undersigned, individually or jointly, in connection with the application, issuance or execution of any Bond or Bonds, or renewal thereof, coming within the scope of this instrument as: a security agreement or as part of a financing statement or, as notice of its prior interest and assignment under the provisions of the Uniform Commercial Code or any other statute, ordinance or regulation of any jurisdiction or agency. The filing or recording of such document shall be solely at the option of the Surety. The failure to so file shall not release or discharge any of the obligations of the Undersigned under this Agreement. L. The Surety shall have the right to fill in any blanks left herein and to correct any errors in filling in any blanks herein. M, The Undersigned waive any defense that this instrument was executed subsequent to the date of any such Bond, admitting and covenanting that such Bond was executed pursuant to the Undersigneds' request and in reliance on the Undersigneds' promise to execute this instrument. N. This Agreement may not be changed or modified orally. No change or modification shall be effective unless speci~ically agreed to in writing. O. In the event any of the Undersigned shall fail to execute this instrument or become insolvent, or in the event any of the Undersigned who execute this Agreement, shall not be bound for any reason, the other Undersigned shall, nevertheless, be bound hereunder for the full amount of the liability as aforesaid, P. Repeated actions may be maintained by Surety on this instrument as breaches of it occur without any former action operating as a bar to any subsequent action, O. Wherever used in this instrument, the plural shall include the singular, the singular shall include the plural, and the neuter shall include both genders as the circumstances require. . R. The liability of the Undersigned hereunder shall not be affected by: (a) the failure of the Principal to sign any bond (b) any claim that other indemnity or security was to have been obtained, (c) the release of any indemnity, (d) the return or exchange of any collateral that may have been obtained. S. The Undersigned and their successors, executors and administrators agree to hold all money or other proceeds of a Contract, however received, as a trust for the benefit of Surety and to use such money or other proceeds of performing the Contract and discharging the obligations of the Bond, and for no other purpose until the Bond is completely exonerated. 9. WAIVER OF NOTICE - We agree that the Company need not give us, or any of us, notice of any act, fact or information coming to the notice or knowledge of the Company concerning or affecting its rights or liabilities under any such bond or our rights or liabilities hereunder, notice of all such being hereby expressly waived, 10. CREDIT RELATIONSHIP - Each of the Undersigned further affirms that he understands bonds are a credit relationship and hereby authorizes Amwest Surety Insurance Company or its authorized agent, Amwest General Agency, Inc. to gather such credit information it considers necessary and appropriate for purposes of evaluating whether such credit should be effected or continued. 11. TERMINATION - This Agreement is a continuing obligation of the Undersigned unless terminated by written notice to Surety as hereinafter provided, and such termination by a particular Undersigned shall in no way affect the obligation of any other Undersigned who has not given such notice. The liability of the Undersigned hereunder as to the future Bonds of Principal shall not terminate by reason of the failure of Surety to disclose facts known about the Principal, even though such facts materially increase the risk beyond that which the Undersigned might intend to assume. Whether Surety may have reason to believe such facts are unknown to the Undersigned, or whether Surety may have reasonable opportunity to communicate such facts to the Undersigned, the Undersigned hereby waive notice of such facts, In order to terminate liability as to future Bonds of Principal, an Undersigned must: A. Give written notice by means of certified mail to Surety at its office at P.O. Box 4500, Woodland Hills, California 91365- 4500 of such termination; and B. State in such notice the effective date (not less than thirty days after receipt thereof by Surety) of termination of such Undersigneds' liability for future Bonds. After the effective date of such termination by giving notice, the Undersigned shall nonetheless be liable hereunder for: A, Bonds executed or authorized prior to such date, and renewals, substitutions and extensions thereof; and B. Bonds executed pursuant to a bid or proposal Bond executed or authorized prior to such date, and renewals, substitutions and extensions thereof; and C. Any maintenance or guarantee Bonds executed incidental to any other Bond executed prior to such date, and renewals, substitutions and estensions thereof. 12. ~ UN-A1012 (Rev. 12199) n I CORPORATIONS'~ To be signed and attested to by authorized officers of the corporation Attest: Print Name And Title By: Print Name And Title (SEAL) Attest: Print Name And Title By: Print Name And Title (SEAL) Attest: Print Name And Title By: Print Name And Title (SEAL) Attest: Print Name And Title By: Print Name And Title (SEAL) Attest: Print Name And Title By: Print Name And Title (SEAL) Attest: Print Name And Title By: Print Name And Title (SEAL) ERSHIP COMPANY INC. AS AGING GENERAL PARTNER By: Print Name And Title By: Print Name And Title By: Print Name And Title ¡INDIVIDUALS - Including Proprietorships By: Print Name By: Print Name By: Print Name By: Print Name By: Print Name By: Print Nanie By: Print Name By: Print Name ALL SIGNATURES MUST BE NOTARIZED \ , \..V~~ ~ \¿ jj- On w...-.L.ï ~ before me, 311..~ c... ~ (here insert name) Notary Public, personally appeared THOMAS E. LEAVITT ,personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me all that he/shelthey executed the same in his/her/their authorized ca a i . 's/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the pe sont.JÀM~' ~~~I~e in trument. WITNESS my h d official seal. NOTARY PUBLIC ¿ (Seal) STATE OF WASHINGTON MARCH 19,2003 State of County of Signature State of County of On before me, (here insert name) Notary Public, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me all that he/she/they executed the same in his/herltheir authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature (Seal) State of County of On before me, (here insert name) Notary Public, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me all that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature (Seal) State of County of On before me, (here insert name) Notary Public, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me all that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature (Seal) State of County of On before me, (here insert name) Notary Public, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me all that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature (Seal)