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AG 02-028 L- DATE OUT, ¥JV ~ dSt:tí CITY OF FEDERAL WAY LAW DEPARTMENT REGlUEBT FOR CONTRACT PREPARATIONIDOCUMENT REVIEWIBIGNATURE ROUTING BLIP 1. DRI13INATIN13DEPT.JDIV.: PW I JJt1If)opmen..b &.rv/e~ 2. ORI13INATIN13 BTAFF PERBDN:Jlm FfÆIlI1.!j EXT,tJi!Jk 3. DATE REG. Bv: !5. PRO.JECT NAME: 8eJI ð..Mvrinn PoY1IJ. -' fotebtl!J S. NAME DF CDNTRACTDR: q28: 0 Par-h1eís U¿ ADDREBB,/~:lJ5 7:LhdAt/(IIUf.$. ktflf, WA q~o.jl..- PHDNE'~ ~/-{¡"O TYPE OF PERBDN DR ENTITY [CHECK DNEJ, 0 INOOVOOUAL q BoLE PROPROETORSHIP BTATE' I ^ / A D PARTNER"HIP )Q CORPORATION ~ - SI13NATURE NAME,Î11JJmJJ A. ~i1fLuS-ettJ 4. TYPE DF DDCUMENT REGUEBTED [CHECK DNE]: 0 PROFESSIONAL BERVICE ABREEMENT D MAINTENANCoILAsOR ABREEMENT D PURLOC WORK" CONTRACT 0 BMALL PUSUC WORKS CONTRACT """'" THAN 8".,000' 0 PURCHASE ABRSEMENT 'MATE.~L8. SUOOUE., E""'OMEN" D REAL ESTATE PURCHA"E & BALE" ABREEMENT I( BECURITY DoCUMENT IE.B., AGREE~" _R- RDND, "",,,_ME~ ~ FUNDE 'N UEU DF RoND' D CONTRACTOR BELECTION DocUMENT 'E,B.. RFR, RFB, RFOEJ 0 CONTRACT AMENDMENT 0 EASEMENT D OTHER 0 COB13 A13" TAX IO'IBB" TITLE' .M11v1t2.j/hj .Muni}Ô-- 7. SCDPE DF WORK, ATTACH ExHIBIT A . A CDMPLETE AND DETAILED DESCRIPTION DF THE SERVICES DR BCDPE DF WORK, INCLUDING COMPLETlDN DATE FDR EACH PHASE OF WORK AND LOCATION OF WORK. B. TERM, COMMENCEMENT DATE' COMPLETION DATE' B. TOTAL COMPENSATION S [INCLUDE EXPENBEB AND BALEB TAX, IF ANy) IIF CA~U~TED DN HDURLV LABDR CHARGE - A~ACH "CHEDULE8 OF EM~VE." "TLE. AND HOUDAV RA~. REIMBURBABLE EXPENBEB: DYES DNO OND IB SALEB TAX DWED? DYES 1D. SELECTION PRDCEBB UBED (CHECK DNE]: 0 REmuEBT FOR BlOB 0 R"muEST FOR PROPOSALS IF YEB, MAXIMUM DOLLAR AMDUNT, S IF YEB. S PAID BV, 0 CDNTRACTOR 0 CITY 0 REmuEST FOR GLOaTES D REmuEST FOR GLOAUFICATIONB 0 ARCHITECT & ENBINSER LIBT D BMALL WORKR Ro,,-nõR 11. CDNTRACT REVIEW ~1~~!L~DlrtciÐr 2h101- ~ ;; ;;;~~:;:7:.NU:::l2l~1J It! o~/bZ- CoNTRA=R .ELEC-nDN ODCUME"" J:J II . .~- "--11.. 11. C;frjTR~1:{i~ R?J,Jl()Þ (ÞW)é J./2blu Z- ~ LAw DEPARTMENT. ~ COTY MANABER ft MyAAÞ1ß!!'/ .!2þø I o;z- ¡)(COTV CLERK ~ ~h -r;;'i-i;""4Tiú!i z n- R"" R"'- a'u,,~""u'Ba~TD' INITIALIDATE ;';(~E~ IILq ~)({(¡;:¡lf'nJ f(' 'h.., Q I ~rølo~ Lic..\V"CL ' .,~~_~.Ic;T ~6c. I"'-I.C-- ck:mi ihl 07- INITIALIDATE ApPROVED z. N~~!$="~ ~ ~ ;--:~ ~ ~ WH'TE - DR"'N", ~.vo - =-~ CRNAOV - c- m ~"F ~N' - ~w ..~. ~L_"D - DR~N",'N' .",. LOEB. ,- ,,~., AG1Io~-o~r( Applicant: 9280 Partners, LLC Project: Bellacarino Pond Forebay Property Address: Tract A Bellacarino Woods Federal Way, WA Bond #:856705S Pennit #:01-1 00128-000-00-EN Bond Amount: $22,141.00 Cash Deposit Amount: $886.00 CITY OF FEDERAL WAY AGREEMENT AND PERFORMANCEIMAINTENANCE BOND THIS AGREEMENT ("Agreement") is dated effective this Lf day of fthr11li1j , 2002. The parties ("Parties") to this Agreement are the City of Federal Way, a Washington mun. ipal corporation ("City") and 9280 Partners, LLC, a Washington corporation ("Applicant"). A. The Applicant is required to perfonn certain work and/or complete certain improvements, including fencing, excavation of the existing pond bottom, construction of a forebay, access road and landscaping at the Bellacarino Woods Pond located in Tract A of that development, in connection with Applicant's Land Use Application under the above-referenced pennit number ("Pennit"); B. The improvements will be constructed or the work perfonned in accordance with record drawings and approved plans on file with the City ("Plans"); C. The City has detennined 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 perfonnance of the required construction of improvements or perfonnance of work, maintenance or repair in accordance with the Plans as a condition of granting the Pennit. NOW, THEREFORE, the Parties agree as follows: I. Improvements. Applicant shall construct all improvements and perfonn 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. Completion 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 confonnance with all applicable laws, rules or regulations. 3. PerfonnancelMaintenance Bond. Applicant shall deliver the fully executed PerfonnancelMaintenance Bond to the City in the fonn attached hereto as Exhibit "A" and incorporated by this reference ("Bond"), to guarantee Applicant's perfonnance of the construction of the improvements and/or maintenance of the improvements pursuant to the Plans. 4. Release of Bond. This PerfonnancelMaintenance 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 perfonnance 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 "B". 5. Right to Complete 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 ofthe 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- I 5 I 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 $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. 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 the Parties' successors in interest. Time is of the essence. By: Its: STATE OF WASHINGTON ) )ss. ) COUNTY OF KING On this day personally appeared before me Thomas A. Barghusen, to me known to be the Managing Member of 9280 Partners LLC, the corporation that executed the foregoing Agreement and Performance/Maintenance Bond, and acknowledged the said instrument to be the free and voluntary act and deed of said corporation, for t1l.Ii..&\.~ and purposes therein mentioned, and on oath stated that he was authorized to execute said }.~t\l1Bl~\~at the seal affixed, if any is the corporate seal of said corporatIOn. .:".i.~ "';'O'N'k"~.~<>}11 ... §" """ö\ """..... , ~ ; ""'~ ",'.;... , Given under my ~oå¥~MYs¡':thi~ rda of :.u..¡.,; ~ ,0 - '~ ~ :0 -_\I'. : ~ ~ '. MJDL.'-~: '" I," - ^~ .. . ~ II ~"..,11-9-"./ ot ry Pu he In an l' '\\~~ÖFŸ¡ ¿My commission expires: """""--- By: ~. APPROVED AS TO FORM C;~ Icr~ ~:~ ~t~Y¡,~~ 1~ ¡'\csdc\docslsave\4636753053.doc G,ILA WFORMSIPERFMAIN.AGT Rev. 01-28-97 Bond #856705S EXHIBIT A Project: Bellacarino Pond Forebay Pennit#: 01-1 00 I 28-000-00-EN CITY OF FEDERAL WAY PERFORMANCEIMAINTENANCE BOND KNOW ALL PEOPLE BY THESE PRESENTS: We, the undersigned, 9280 Partners, LLC, as principal ("Principal"), and Developers Surety and Indemnity Company, the undersigned corporation organized and existing under the laws of the State of Iowa, and legally doing business in the State of Washington as a surety ("Surety"), are held and finnly bound unto the City of Federal Way, a Washington municipal corporation ("City") in the penal sum of Twenty-Two Thousand One Hundred Forty One and nollOO Dollars ($22,141.00) 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 construct a stonn water forebay, access road, excavation of the pond bottom, fencing and landscaping related to the developments ofSilverwood and Rosewood. NOW, THEREFORE, if the Principal shall perfonn 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 hannless 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 perfonnance of said work, and shall indemnifY and hold the City hannless 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 oftime, alteration or addition to the tenus of the Agreement or to the work to be perfonned there under 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 Perfonnance 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 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 (nUSA&Mn). 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 -...JL day of ~pM,þ..'1-' 2002. CORPORATE SEAL OF PRINCIPAL: 9280 Partne~ By: ~~ Thomas A. Ba gh usen Managing Member Its: 18215 72nd Avenue South Kent, WA 98032 (425) 251-6110 CORPORATE SEAL OF SURETY: Developers Surety and Indemnity Company By: ~i~t~ (Attach Power of Attorney) Jake W. Murphree Name of Person Executing Bond 9725 Third Avenue NE, Suite 602 Seattle, WA 98115 (206) 525-8201 POWER OF ATTORNEY FOR DEVELOPERS SURETY AND INDEMNITY COMPANY INDEMNITY COMPANY OF CALIFORNIA PO BOX 19725. IRVINE. CA 92623 . (949) 263-3300 KNOW ALL MEN BY THESE PRESENTS, that except as expressly limited, DEVELOPERS SURETY AND INDEMNITY COMPANY aad INDEMNITY COMPANY OF CALIFORNIA, do each severally, hut not jointly, herehy make, constltote and appoint: ***Jake W. Murphree, Karen L. Staff anson, Mary 1. Thomas, Kenneth D. Thompson, jointly or severally*** as the true and lawful Attorney(s)-in-Fact, to make, execute, deliver and acknowledge, for and on behalf of said corpo..tlons as sureties, honds, undertakings and contracts of suretyship giving and granting unto said Attorney(s)-in.Fact full power and authority to do and to perform every act necessary, requisite or proper to be done in connection therewith as each of said corporations could do, hut reserving to each of said corporations fnll power of snhstitutlon and revocation, and all oflhe acts o!sald Attorney(s)-In-Fact, pursuant to these presents. are herehy ratified and confirmed. This Power of Attorney Is granted and Is signed hy facsimile under and hy authority of the followlag resoiutloas adopted hy the respective Board of DIrectors of DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA, effective as of November I, 2000: RESOLVED, that the Chairman oflhe Board, the Presldeat and any Vice President oflhe corpo..tion be, and that each oflhem herehy Is, authorized to execute Powers of Attorney, qualifying the atturney(s) named la the Powers of Attorney to execute, ou behalf ollhe corporations, honds, undertakings and cuntracts of suretyship; and that the s.cretary or any Assistant Secretary of the corporations he, and each of them herehy is, authorized to attest the execution of any such Power of Attorney: RESOLVED, FURTHER, that the slgaatures of such omcers may be amxed to aay such Power of Attoraey or to aay certificate relating thereto hy facsimile, and any such Power of Attorney or certificate heariag such facsimile signatures shall be valid and hindlag upon the corporation when so amxed and In the future with respect to any hoad, undertaking or contract of suretyship to which it Is attached. IN WITNESS WHEREOF, DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA have seve..lly caused these preseats to he signed hy their respective Executive Vice President and attested hy their respective Secretary thIs 8" day of Novemher, 2000. By: c-~ ~ David H. Rhodes, Executive Vice Presldeat By: f;V~ U1 Walter A. Crowell, Secretary ,,""'~":;:ND'~;:"", ..,~~~ ,""""" .,.,¡:, (%~~ STATE OF CALIFORNIA ) )SS. ) COUNTY OF ORANGE On Novemher 8, 2000, hefore me, Diane J. Kawata, personally appeared DavId H. Rhodes and Walter A. Crowell, personally known to me (or proved to me on the hasis of satisfactory evidence) to be the persons whose names are suhscribed to the within Instrumeat and acknowledged to me that they execnted the same In their authorized capacities, and that hy their signatures on the Instrument the entity upon behalf of which the persons acted, executed the Instrument. WITNESS my hand and official seal. SIgnature r~)J-OoJ..!J ~~ I CtANEJ.KAWATA I e COMM.#11871128 II 5 _PUBUC-CAlIFORIIA ë ¡ ORANGE COUNTY ~ I MyConmEJop.Jan.8.2002 I CERTIFICATE The undersigned, as Chief Operating Omcer of DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA, does herehy certify that the foregoing Power of Attorney remains In full force and has not heen revoked, and furthermore, that the provisions of the resolutions of the respective Boards of DIrectors of said corporations set forth In the Puwer of Attorney, are in force as of the date of this Certificate. '4"'- - This Certificate is executed In the City of Irvine, California, the ~ day of ¡- ~ . d->o..::L Q~./J . By )*í-- David G. Lane, Chief Operating Omcer 1D-1380 (11/00) BOND NUMBER: 856705S STATE OF WASHINGTON ) ) ss. ) COUNTY OF KING On this day personally appeared before me Thomas A. Barghausen, to me known to be the Managing Member of 9280 Partners, LLC, the corporation that executed the foregoing Performance/Maintenance Bond, 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 was authorized to execute sai:!._~'\~t and that the seal affixed, if any, is the corporate seal of said corporation. ;--y, \.. 8L.O...'\, -':\""'N""""<>"" ...~ ;' ~v.., ~O "" ~ I . GIVEN my J~~ Offi~ tj/¡¡s I d y O.,.f.. .hJ , 2002. ,)2t:¡~O"'íÞi ( )~ ~ , ~ ~ :0 -- : ~ ~ ~.o ~~: ~ . ,"" - ~ ... ~ (notary slg\"')Ì¡¡re) , '" oS}."'..!1.:~'" ¿ Ktcl,.h<L1h L... -O.-vf'!DI'" "'~OFW _: (typed/printed name of notary) """"--- Notary Public in and for the State of Washington. My commission expires I ! -'( - kk APPROVED AS TO FORM: EXHIBIT B FULL RELEASE OF BOND #856705S The undersigned hereby acknowledges that the two (2) year maintenance period has expired, that the work or improvements covered by the Agreement and PerfonnancelMaintenance Bond for Bellacarino Pond, 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 Twenty- Two Thousand, One Hundred Forty-One and 00/100 Dollars ($22,141.00). DATED this day of ,2002. CITY OF FEDERAL WAY By: (name, title)