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AG 96-284 RECEIVED 33530 ] ST WAY SOUTH FEDERAL WA~253) FEDEI~AL WAY. WA 98003-621 September 14, 1998 Robert D. Scholes R & F Properties (DBA Emerald Professional Center, LLC) 720 South 348th Street Federal Way, WA 98003 Steve Skony Medical Real Estate Services, L.L.C. 105 Central Way, Suite 203 Kirkland, WA 98033 RE: Latecomers Agreement for Lake No. 6 Improvements Federal Way Ordinance 98-316 _ Dear Messrs. Scholes and Skony: According to subject Latecomers Agreement ("Agreement"), entered into between you and the City of Federal Way, the cost of the improvements to Lake No. 6 were incurred by you as a necessity to develop your land. At the time the Agreement was executed, there were no property owners to share in the cost and expense of constructing the drainage improvements. The shared cost of the improvements for design and construction totaled $78,1B9.78. A portion of this mount ($9,084.96) was to be paid to the City, by the owner(s) of parcel 2021049101, referenced within the Agreement, upon development of subject parcel. A permit has been issued for Brooldake Professional Center (parcel 2021049101) and a latecomers fee of $9,084.96 has been collected to partially reimburse R & F Propertes and Medical Real Estate Services L.L.C. Pursuant to the terms of the Latecomers Agreement, the amount will divided between both partes; checl~ in the following amounts will be sent to you shortly: R & F Properties - $3,158.84 ~ Medicltt Real Estate Services L.L.C;~, $5,926A~1 Thank you for participating in the Latecomer Agreemem process. If you have any questiom, please call me at (253) 661-4109. Devel6pment Services Manager c: Chris Green, City Clerk Trent Ward, Acting Se[flor Development Engineer Project File Day File L:\PRMS YS\DOCUMENT~BLD97_06.91 \LATECOMM. DOC Cl'r,- OF I:'E~DE~RAI. WAY LAW DE:PARTI~IICNT FOR CONTRACT PRE:PARATION/OOCUMm'NT RE:VIE:w/clIONATuRE: RO~I~&v j ~Y A~ORNE~i Applicant: Medical Real Estate Services, LLC Bond #: ~_~,9 20 (~l Project: Medical Pavilion at St. Francis Permit/f: BLD 92-2359 Hospital Bond Amount: $378,660.00 Property Address: 34515 9th Ave South Cash Deposit Amount: $9,278.00 Federal Way, WA 98003 CITY OF FEDERAL WAY AGREEMENT AND PERFORMANCE/MAINTENANCE BOND THIS AGREEMENT ("Agreement") is dated effective this 10th day of June, 1996. The parties ("Parties") to this Agreement are the City of Federal Way, a Washington municipal corporation ("City") and Medical Real Estate Services, LLC, a Washington corporation ("Applicant"). A. The Applicant is required to perform certain work and/or complete certain improvements, including grading, storm drainage system, utilities, parking lot curbing and paving, landscaping, Lake No. 6 berm, plant restoration and completion of a Berm Restoration, performance in accordance with a Wetland Monitoring and Contingency Plan, on file with the Federal Way Department of Community Development, and incorporated herein by this reference for a fifty four thousand (§4,000) square foot medical office building 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. Imorovements. Applicant shall construct all improvements and perform all maintenance pursuant to the Plans, to the City's satisfaction ("Work"). The obligation to maintain the improvements shall continue for a period of two (2) years after issuance of the certificate of occupancy or final inspection, or such longer period as required by the FWCC or other applicable law, rule or regulation, provided however, that the Wetland Monitoring and Contingency Plan, prepared by B-twelve Associates, Inc. shall continue for a period of five (5) years from the date of final inspection and approval of the improvements. 2. ~. 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. ORIGINAL 4. ~. 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, less the amount needed to guarantee performance of the Wetland Monitoring and Contingency Plan, by executing and delivering to Principal the Second Partial Release of Bond attached hereto as Exhibit "C". If the Principal performs in accordance with the Wetland Monitoring and Contingency Plan, five (5) years after final inspection and approval of the improvements, 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 "D". 5. Rioht 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, or connected with this Agreement and the Bond, including without limitation, the City's performance of the Work pursuant to Section 5 herein. 8. Adr~inistrative 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 5% of Bond (minimum $100) $20,001 - $50,000 4% of Bond $50,001 - $100,000 3% of Bond $100,001 and up 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. -:2- 10. License. Applicant shall record a license in the form attached hereto as Exhibit "E" 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. ' ' . 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. MEDICAL REAL ESTATE SERVICES, LLC 105 Central Way, Suite 203 Kirkland, WA 98033 (206) 889-9099 CITY OF FEDERAL WAY ~ Kennet ' Manager 33530 1st Way South Federal Way, WA 98003 ATTEST: Ci[y Clerk, N. Christine Green, CMC APPROVED AS TO FORM: dell, City Attorney K:\BONDS'~STFRANCIS.BOND 5-31-95 -3- BOND #149 20 61 EXHIBIT A Project: Medical Pavilion at St. Francis Hospital Permit #: BLD 92-2359 CITY OF FEDERAL WAY PERFORMANCE/MAINTENANCE BOND KNOW ALL PEOPLE BY THESE PRESENTS: We, the undersigned, Medical Real Estate Services, LLC, as principal ("Principal"), and Insurance Company of the West, the undersigned corporation organized and existing under the laws of the State of California, 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 Three Hundred Seventy-Eight Thousand, Six Hundred Sixty and no/100 Dollars ($378,660.00)for the payment of which they firmly bind themselves and their legal representatives, successors and assigns, jointly and severally. The ~)~ _//bond total includes an amount of TWELVE THOUSAND THIRTY SiX AND NO/100 DOLLARS ..... (~.') ($12,036--) which is to be held and converted to a five (5) year maintenance bond once the berm is planted, inspected and approved. 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 include grading, storm drainage system, utilities, parking lot curbing and paving, landscaping, Lake No. 6 berm, and plant restoration for a fifty-four thousand (54,000) square foot medical office building. 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. Provided, however that the obligation to monitor the wetland and act upon the contingency plan if needed, shall extend for a period of five (5) years after final acceptance thereof by the City. 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 © 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 ("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,~r~ay o~, 199~. CORPORATE SEAL OF PRINCIPAL: MEDICAL REAL ESTATE SERVICES, LLC (Title) 105 Central Way, Suite 203 Kirkland, WA 98033 (206) 889-9099 -2- CORPORATE SEAL OF SURETY: INSURAN/GE~COMPANY OF THE WEST By: - /~ttorney-in-Fact (Att~ic~ Power of Attorney) CYNTHIA L. JAY 999 3RD AVE. STE. 1700 SEAttLE, WA 98104 Address (206) 382-7900 Phooe APPROVED AS TO FORM: CERTIFICATE AS TO CORPORATE SEAL I hereby certify that I am the (Assistant) Secretary of the Corporation named as Principal in the within bond; that , who signed the said bond on behalf of the Principal, was of the said Corporation; that I know his or her signature thereto is genuine, and that said bond was duly signed, sealed, and attested for and in behalf of said Corporation by authority of its governing body. Secretary or Assistant Secretary K:~bonds~st fr ancis.bond 5-24-96 -3- I. arance Company of the W~t HOME OFFICE: SAN DIEGO, CALiFORNiA POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS: That INSURANCE COMPANY OF THE WEST. a California Corporation. does hereby appoint: CYNTHIA L. JAY Its true and lawful Anorney(s)-in-Fact, with full power and authority, to execute, on behalf of the Company, tidelity and surety bonds, undertakings. and other contracts ol suretyship of a similar nalure. This Power of Attorney is granted and is signed and sealed by facsimile under the authority of the following Resolution adopted by the Board of Directors on the 22nd day of November, 1994, which said Resolution has not been amended or rescinded and of which the follow~ng ~s a true copy: "RESOLVED, that the Chairman of the Board, the President, an Executive Vice President or a Senior Vice President of the Company, and each of them, is hereby authorized to execute Powers of Attorney qualifying the attorney named in the given Power of Attorney to execute on behalf of the Company, fidelity and surety bonds, undertakings, or other contracts of suretyship of a similar nature; and to attach thereto the seal of the Company; provided however, that the absence of the seal shali not affect the validity of the instrument. FURTHER RESOLVED, that the s~gnatures ct such officers and the seal of the Company, and the signatures of any witnesses, the signatures and seal of any notary, and the signatures ot any officers certifying the validity of the Power of Attorney, may be affixed by facsimile.' IN WITNESS WHEREOF, INSURANCE COMPANY OF THE WEST has caused these presents to be signed by its duly authorized officers this 13th day of December 19 96 O INSURANCE COMPANY OF THE WEST STATE OF CALIFORNIA SS: COUNTY OF SAN DIEGO ~ohn L. Hannum. Senior Vice President V On this December 13th, 1994 before me personally appeared John L. Hannum, Senior Vice President of INSURANCE COMPANY OF THE WEST, personally known to me to be the individual and officer who executed the within instrument, and acknowledged to me that he executed the same in his ofiicia~ capacity and that by his signature on the instrument the corporation on behalf of which he acted, executed the instrument· WITNESS my hand and official seal I LJ~_,~::fi~T~;-I ~IOTARYPUBLIC-CAUFORNIA i I:~.~ ~"-~:1:~ SAN DIEGO COUNTY I~~ ~/MYAuGUST 11, ,9gsCOMM/SSJON EXP,RES CERTIFICATE: I, E. Harned Davis, Vice President of iNSURANCE COMPANY OF THE WEST, do hereby certify that the original POWER OF ATTORNEY, of which the foregoing is a true copy, is still in full force and effect, and that this certificate may be signed by facsimile under the authority of the above quoted resolution. IN WITNESS WHEREOF, I have subscribed my name as Vice President, on this ~-lr~ day of DEC]~]V~ER t9 96 Q INSURANCE COMPANY OF THE WEST E. Harned Davis, Vice President ICW 37 PARTIAL RELEASE OF BOND #149 20 61 The undersigned hereby acknowledges that a portion of the conditions of the Agreement and Performance/Maintenance Bond for Medical Pavilion at St. Francis Hospital, Permit No. BLD 92-2359, have been satisfied and hereby authorizes the release of an amount equal to Two Hundred Sixty-Five Thousand, Sixty Two and no/lO0 Dollars ($265,062.00). 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. The remaining funds include an amount of Twelve Thousand Thirty-Six and no/lO0 ($12,036.00) which is to be held to guarantee performance of the five (5) year Wetland Monitoring and Contingency Plan from the date of this release notice. DATED this day of , 199__. CITY OF FEDERAL WAY By: (Name, Title) SECOND PARTIAL RELEASE OF BOND The undersigned hereby acknowledges that the two (2) year maintenance period for grading, utilities and landscaping has expired, that the work or improvements covered by the Agreement and Performance/ Maintenance Bond for Medical Pavilion at St. Francis Hospital, Permit No. BLD 92-2359, 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 One Hundred One Thousand, Five Hundred Sixty-Two and no/100 dollars ($101,562.00). The remaining balance of Twelve Thousand Thirty-Six and no/100 ($12,036.00) is to be held for an additional three (3) years to guarantee performance of the Wetland Monitoring and Contingency Plan. FULL RELEASE OF BOND #149 20 61 TERMINATION OF LICENSE The undersigned hereby acknowledges that the five (5) year maintenance period for the berm has expired, that the work or improvements covered by the Agreement and Performance/ Maintenance Bond for Medical Pavilion at St. Francis Hospital, Permit No. BLD 92-23§9, 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, Thirty-Six and no/100 Dollars ($12,036.00). The undersigned further releases all right, title and interest granted to the undersigned by reason of a certain License Agreement recorded under King County Recording No. ("License Agreement") and acknowledges that all obligations and rights contained in the License Agreement are hereby terminated. DATED this day of , 19 CITY OF FEDERAL WAY By: (Name, Title) -6- FILED FOR RECORD AT REQUEST OF: THIS SPACE RESERVED FOR: Medical Real Estate Services, LLC RECORDERS USE: MAIL TO: CITY OF FEDERAL WAY 33530 1 ST WAY SOUTH FEDERAL WAY, WA 98003 ATTN: Stephen Clifton LICENSE The undersigned owner of certain real property located in Federal Way, Washington and legally described as follows: Tract "C-1" of St. Francis Hospital, a Binding Site Plan - Amendment No. 1, according to the plat thereof, recorded in Volume 176 of Plats, Pages 71 through 75, inclusive, King County Auditor's File No. 960411-0564, situated in City of Federal Way, County of King, State of 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 wore 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. ISi-gnaturel Its: ~,d~'/~ ~ [Individual Notary] [Corporate Notary[ STATE OF WASHINGTON ) STATE OF WASHINGTON ) ) ss. ) ss. COUNTY OF ..NG , COUNTY CE ..NG , O~this day ,~ pers~ne~ly appeared before me, On this day personally appe~,[p~ befor, e m,e ~,~//~-~/~--/'. ~¢¢~t'/'-~')~_ to me known to be the ~?~- of MEDICAL t~o me known to be the individual(s) descril~ed in and who REAL ESTATE SERVICES, LLC, the corporation that executed the foregoing License, and on oath swore that executed the foregoing License, and acknowledged the he/she/they executed the foregoing instrument as said instrument to be the free and voluntary act and deed his/her/their free and voluntary act and deed for the uses of said corporation, for the uses and purposes therein and purposes therein mentioned, mentioned, and on oath stated that he/she was authorized to execute said instrument and that the seal affixed, if ,,~x,_IVEN my hand and of~[~,~3~ I seal this,-~/~ay of any, is the corporate seal of said corporation, ~'t'J , 19~f.~2 ~ _~E,N.~my and official seal this<~/'~ay of /~?~,~,~ ~'/~'/~/~ ~//~/~Z;~,~ 4./ ~/z-~-~_~ hand ,1 ~ (~otary signature) .~ (typed/printed name of notary) ,(~o~tary signature) Notary Public in and for the State o,f Washington. ~'~/¢~'~.,/,~-~'~',4_ ~z~¢::~/,,~, My commission expires ///Y--t/,~ ~¢j~' (t~ped/printed name of notary) Notary Public in and for the Stale of, Washington. My commission e×pirea ORIGINAL