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AG 03-035CITY OF FEDERAL WAY DEPARTMENT SCANN REQUEST FOIl CONTRACT PREPARATION/DOCUMENT REVIEW/SIGNATURE ROUTING SLIP ORIGINATING DEPT./DIV: ORIGINATING STAFF PERSON: io% [").e_.-I~..c:~,'x-r-)_ EXT: 4fO-5'~ 3. DATE REQ. BY: 5. TYPE OF DOCUMENT REQUESTED (CHECK ONE) N PROFESSIONAL SERVICE AGREEMENT [~ MAINTENANCE/LABOR AGREEMENT F! PUBLIC WORKS CONTRACT ~'] SMALL PUBLIC WORKS CONTRACT (Luss ~ ~I^N S200,000; L] PURCHASE AGREEMENT) (MATI~R1ALS, SUPPI.II-~S, EQUIPMENT) EJ REAL ESTATE DOCUMENT SECURIT__.X._DOCUMENT (u G A(}REEMENT& ~--~F/MAIN BON~2~ASSIGNMEN! Ok FtINDS [N [JKIJOF BOND) CONTRACTOR SELECTION DOCUMENT O~ G, RFB, RFP, RFQ) CONTRACT AMENDMENT AG~/: CDBG OTHER PROJECT AME:~_Bn_.~2-_~ NAME OF CONTRACTOR:_ ADDRESS: t~l? 5~ I~~~~ SIGNATURE NAME: .~~~- ' J ATTACH ALL EXHIBITS AND CHECK BOXES i: sCOPE OF SERVICES ~AIj. EXI HBITS REFERISNCID IN DOCUMI~NF ('] INSURANCE CI~IO IFICA'I'[{ ~'D()CUMISNT AUT[ IORIZING SIGNATURIE TERM: COMMENCEMENT DATE: COMPLETION DATE: TOTAL COMPENSATION $ (INCLUDE EXPENSES AND SALES TAX, IF ANY) (IF CALCULKFED ON HOURLY LABOP, Ct lARGE - ATTAC[I SCI IEDL;LES OF EMPLOYEES TITLES AND [tOLII)AY RATES) REIMBURSABLE EXPENSE: L~ YES !] NO II: YES, MAXIMUM DOLLAR AMOUNT: $ IS SALES TAX OWED ~] YES ) NO IF YES, $ PAID BY: ~ i CONTRACTOR -J Cfi I0. I1. CONTRACT REVIEW ~ PROJECT MANAGER ~ DIRECTOR g2-R4S~ IVI,4. N/k 6 E ivi E N T- CONTRACT SIGNATURE ROUTING ~ LAW DEPARTMENT'tt, ITY MANAGER ;.~J~tl RK ~ sIG~ coPY BACK TO oR6~xrmo D~PT. 0 . ' RGE TO: INITIAL/DATE APPROVED ~NmAL/D^TE APPROVED INITIAL/DATE APPROVED INITIAL/DATE APPR. OVED COMMENTS 10/09/02 Applicant: DCG II, LLC Project: Tract "C" Evergreen Plaza Property Address: 2:[00 Block of S 320th Street Federal Way, WA Bond #: 570177s Permit#: 02-101485-000-00-EN Bond Amount: $41,015.00 Cash Deposit Amount: $1,640.00 CITY OF FEDERAL WAY AGREEMENT AND PERFORMANCE/MAINTENANCE BOND THIS AGREEMENT ("Agreement") is dated effective this ~_ day of 1~4,'~ , 2003. The parties ("Parties") to this Agreement are the City of Federal Way, a Washington municipal corporation ("City") and DCG II, LLC, a Washington corporation ("Applicant"). A. The Applicant is required to perform certain work and/or complete certain improvements, including fill existing detention pond at the above referenced address located in Federal Way, Washington in connection with Applicant's Land Use Application under the above-referenced permit number ("Permit"); B. The improvements will be constructed or the work performed in accordance with record drawings and approved plans on file with the City ("Plans"); C. The City has determined that the Applicant must post security with the City pursuant to Sections 22-146 through 22:159 of the Federal Way City Code ("FWCC") as now existing or hereafter adopted or amended, to guarantee Applicant's performance of the required construction of improvements or performance of work, maintenance or repair in accordance with the Plans as a condition of granting the Permit. NOW, THEREFORE, the Parties agree as follows: 1. Improvements. Applicant shall construct all improvements and perform all maintenance pursuant to the Plans, to the City's satisfaction ("Work"). The obligation to maintain the improvements shall continue for a period of two (2) years after issuance of the certificate of occupancy or Final inspection, or such longer period as required by the FWCC or other applicable law, rule or regulation. 2. 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 conformance with all applicable laws, rules or regulations. 3. Performance/Maintenance Bond. Applicant shall deliver the fully executed Performance/Maintenance Bond to the City, in the form attached hereto as Exhibit "A" and incorporated by this reference ("Bond"), to guarantee Applicant's performance of the construction of the improvements and/or maintenance of the improvements pursuant to the Plans. 4. Release of Bond. If the Principal constructs the improvements in accordance with the terms of the Bond, the Permit and all applicable law, the sum of the Bond shall be reduced by seventy percent (70%) after final inspection and approval of the improvements by the City and the City will deliver to Principal the fully executed Partial Release of Bond attached hereto as Exhibit "B". Except as set forth in the preceding sentence, the Bond shall remain in full force and effect. That portion of the Bond equal to thirty percent (30%) of the original penal sum shall remain in full force and effect for two (2) years after final inspection and approval, as a maintenance bond to guarantee against defective materials and workmanship in the construction of the improvements and to insure continued maintenance of the improvements. Two (2) years after final inspection and approval of the improvements and performance of the maintenance, the City will release the remaining portion of the Bond by executing and delivering to Principal the Full Release of Bond attached hereto as Exhibit "C". ORIGINAL 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 of the Bond. 6. Notice. The Cormnunity Development Department of the City shall be given forty-eight (48) hours notice prior to the commencement of the Work. 7. Indemnification. Applicant agrees to indemnify and hold the City, its elected officials, officers, employees, agents, and volunteers harmless from any and all claims, demands, losses, actions and liabilities (including costs and attorney fees) arising from, resulting, or connected with this Agreement and the Bond, including without limitation, the City's performance of the Work pursuant to Section 5 herein. 8. Administrative Cash Deposit. In addition to the amount of the Bond, Applicant agrees to pay a cash deposit to the City pursuant to Section 22~ 151 of the FWCC, upon the execution of this Agreement equal to the following percentages of the amount of the Bond: Amount of Bond Up to $20,000 $20,001- $50,000 $50,001- $100,000 $100,001 and up Amount of Cash Deposit 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. 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 inure to the benefit of the Parties' successors in interest. Time is of the essence. By: Its; Managing Parmer 10618 SE Kent-Kangley Road, Suite 104 Kent, WA 98031 (253) 852-6400 35530 1st Way South PO Box 9718 Federal Way, Washington 98063-9718 ,~i~I'EST: City Clerk, N. Christine Green, CMC APPROVED AS TO FORM: Patric~i& A.~icl;a~o~CS~y ~tto~n~y"~ ' STATE OF WASHINGTON ) ) SS. COUNTYOF ~l('~ ) On this day personally appeared before me D. Michael Dunne, to me known to be the Managing Partner of DCG II, Inc. that executed the foregoing instrument, 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 ~ fiay.~f ~'~Ct_F ~ ,200~.. --'"'"' -5.' 5- . ,._..~ .__...,, ~' ."_~,e~.^,.,.-"~.~; '~, (typed/printed name of notary) ~. -" O0 I~ ~,,~ I" ~o~ ~ ~ Notary Public in and for the State of Washington. ~ :. t~ ~. ,~- : ~ My commission expires ',,o..~). ~ . ."._x~ 't~ ~,,~..."2'- ? 9 .~ ~...563' ..~ l:\csdc\docs\save\350~5~'~"d~''~ . G:\LAWFORMS\Agreement&PerformanceMaintenancct3ond Rev 12/02 Bond# 570177S Project: Tract "C" Evergreen Plaza Permit #: 02-101485-000-00-EN EXItlBIT A CITY OF FEDERAL WAY PERFORMANCE/MAINTENANCE BOND KNOW ALL PEOPLE BY THESE PRESENTS: We, the undersigned DCG II, LLC, ("Principal") and Developer Surety & Idemnity 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 fn-rnly bound unto the City of Federal Way, a Washington municipal corporation, ("City") in the penal sum of Forty One Thousand Fifteen Dollars and no/100 ($41,015.00) for the payment of which they firmly bind themselves and their legal representatives, successors and assigns, jointly and severally. This obligation is entered into 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 fill existing detention pond. 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 indemmfy 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 £ees 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 ORIGINAL upon completion of the necessary work, the City shall notify the Surety of its actual costs. The City shall return, without interest, any overpayment made by the Surety and the Surety shall pay to the City any actual costs which exceed the City estimate, limited to the bond amount. Should the Surety elect option (c), the Parties shall first complete participation in mediation, described in the below paragraph, prior to any interplead action. In the event a dispute should arise between the Parties to this Bond with respect to the City's declaration of default by the Principal, the Parties agree to participate in at least four hours of mediation in accordance with the mediation procedures of United States Arbitration and Mediation ("USA&M"). The Parties shall proportionately share in the cost of the mediation. The mediation shall be administered by the Seattle USA&M office, 4300 Two Union Square., 601 Union Street, Seattle, Washington 98101-2327. The Surety shall not interplead prior to completion of the mediation. DATED this day of · _ ,2003. CORPORATE SEAL OF PRINCIPAL: [PRINCIPAL] By: Its DCG II, LLC D. Michael ~unne / Managing Parmer 10618 SE Kent-Kangley Road, Suite 104 Kent, WA 98031 (253) 852-6400 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 D. Michael Dunne, who signed the said bond on behalf of the Principal, was Managing Partner 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. CORPORATE SEAL OF SURETY: Surety Secretary o~ssista~t Secretary By: L, LaCombe (Attach Power of Attorney) APPROVED AS TO FORM: PatrbX'i~A .~Ric hlr~so~/~itk 3.t;tor~ety l:\csdc\docs~save\3500822072.doc G :kLawForms~PefformanceMaintenanc eB ond Rev. 12/02 Janet L. LaCombe (Name of Person Executing Bond) 9725 Third Avenue NE S#602 · qe~trl~_, WA 08115 (Address) 206-525-8201 (Phone) 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 limiled, DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA. do each, hereby make, constitute and appoint: · **C. L. Colbath, Donald C. Brunni, Robert S. Russell, Merilee A. Rees, Darleen M. Jorgensen, Janet L. LaCombe, jointly or severally*** as their lrue and lawful Attorney(s)-in-Facl, to make, execute, deliver and acknowledge, for and on behalf of said corporations, as sureties, bonds, underlakings and contracts of suretyship giving and granting unlo said Allorney(s)-in-Fact full power and authority to do and to perform every act necessary, requisite or proper to be done in connection therewilh as each of said corporations could do, bul reserving Io each of said corporations full power of substilution and revocation, and all of the acts of said Altorney(s)-in-Facl. pursuant to these presents, are hereby ratified and confirmed. This Power of Attorney is granted and is signed by facsimile under and by authority of the following resolutions adopted by the respeclive Board of Directors of DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA, effective as of November I, 2000: RESOLVED, that lhe Chairman of the Board, the Presidenl and any Vice President of the corporation be, and that each of them hereby is, authorized lo execule Powers of Atlorney, qualifying the attorney(s) named in lhe Powers of Atlorney Io execute, on behalf of the corporations, bonds, underlakings and contracls of suretyship; and that lhe Secretary or any Assislanl Secrelary of the corporalions be, and each of them hereby is, authorized to attesl the execution of any such Power of Attorney; RESOLVED, FURTHER, that Ihe signalures of such officers may be affixed 1o any snch Power of Attorney or to any cerlificale relating Ihereto by facsimile, and any such Power of Attorney or cerlificate bearing such facsimile signatures shall be valid and binding upon Ihe corporalion when so affixed and in the future with respecl to any bond. undertaking or contract of suretyship to which it is attached. IN WITNESS WHEREOF, DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA have severally caused these presents to be signed by their respective Executive Vice President and attested by their respective Secrelary Ibis 8'h day of January, 2002. David H. Rhodes, Executive Vice President By: ~~~/~ Waher A. Crowell, Secrelary STATE OF CALIFORNIA ) )ss. COUNTY OF ORANGE ) On January 8, 2002. before me, Anionic Alvarado, personally appeared David H. Rhodes and Walter A. Crowell, personally known to me (or proved Io me on the basis of salisfaclory evidence) to be the persons whose names are subscribed to lhe within instrument and acknowledged to me Ihal they executed lhe same in their aulhorized capacities, and that by Iheir signalures on the instrumenl lhe entity upon behalf of which lhe nersons acled, executed Ihe instalment. WITNESS my hand and official seal. Signature ~ CERTIFICATE ANTONIO ALVARADO COMM. # 1300303 Notary Public - California .... ~ My Comm. Expires APRIL 10, 2005 The undersigned, as Chief Operating Officer of DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA, does hereby certify thai the foregoing Power of Allorney remains in full force and has not been revoked, and furthermore, Ihal lhe provisions of Ihe resolutions of the respeclive Boards of Directors of said corporalions sel forlh in the Power of Attorney, are in force as of lhe date of this Certificate. This Certificale is execuled in Ibc Cily of Irvine, California, lhe day of Harch ,2003 David G. Lane, Chief Operating Officer ID- 1380 (OI/02) EXHIBIT B PARTIAL RELEASE OF BOND # The undersigned hereby acknowledges that a portion of the conditions of the Agreement and Performance/Maintenance Bond for Tract "C" Evergreen Plaza, have been satisfied and hereby authorizes the release of an amount equal to Twenty Eight Thousand Seven Hundred Ten Dollars and 50/100 ($28,710.50). 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 ., 200__. 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 Tract "C" Evergreen Plaza, 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 Twelve Thousand Three Hundred Four Dollars and 50/100 ($12,304.50). 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 ., 200_ CITY OF FEDERAL WAY By: (Name, Title) FILED FOR RECORD AT REQUEST OF: MAIL TO: CITY OF FEDERAL WAY PO BOX 9718 FEDERAL WAY, WA 98063-9718 ATTN: KEV1N PETERSON EXHIBIT D LICENSE The undersigned owner of certain real property located in Federal Way, Washington and legally described as follows: TAX PARCEL NO: 242320 0070 PARCEL A TRACT B, C AND LOT 1, EVERGREEN PLAZA, ACCORDING TO THE PLAT THEREOF RECORDED IN VOLUME 100 OF PLATS, PAGE 74, IN KING COUNTY, WASHINGTON. ("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 this2~ day of ~'~,_M~C .~ , 200_~ By: Its: Managing Partner 10618 SE Kent-Kangley Road, Suite 104 Kent, WA 98031 (253) 852-6400 STATE OF WASHINGTON ) COUNTY OF KING ) On this day personally appeared before me D. Michael Dunne, to me known to be the Managing Partner of DCG II, LLC, 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 ~' day of~~ ,20~3. ~ ~ ~OT~ ~ (t~eWp.nted name of notary) ~ : o ~ ~: ~ Nota~ Public in and for the State of Washington. ~. ~ ~G ~ ~ My co~ssion expires q, I%'~ ..... l:\csdc\docs~savcL3500822072.doc G:\LA WFORMSLa~greemcnt&Per formanceM aintenanceBond Rev. 01-31-02