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AG 95-255 CITY OF FEDERAL WAY LAW DEPARTMENT TOTAL COMPENSATION,' Applicant: Evergreen Environmental Services, Inc. Bond #: WB6191 Project: Road Runner Grocery and Deli Permit#: BLD95-0809 Property Address: 2124 SW 356th Street Bond Amount: $34,390.00 Federal Way, WA Cash Deposit Amount: $1,375.00 CITY OF FEDERAL WAY AGREEMENT AND PERFORMANCE/MAINTENANCE BOND THIS AGREEMENT ("Agreement") is dated effective this 27st day of November, 1995. The parties ("Parties") to this Agreement are the City of Federal Way, a Washington municipal corporation ("City") and Evergreen Environmental Services, Inc., a Washington corporation ("Applicant"). A. The Applicant is required to perform certain work and/or complete certain improvements, including right-of-way and site improvements including curbs, cutters, sidewalk, paving, storm drainage facilities and an oil water separator 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 perform-- of the required construction of improvements or performance of work, maintenanc- -- ' ce with the Plans as a condition of granting 1. Imp, ~provements and perform all maintenance pursuant to the PI~ ~ obligation to maintain the improvements shall continue for ..~ ~ . of the ce~ificate of occupancy or final inspection, orsuch ~/~)~ ~~[ L~ ~ther applicable law, rule or regulation. 2. Compl ~te the Work to the City's satisfaction, within the time peri ~ qpliance with the Plans, including any approved amendmen', ~/~ qcable laws, rules or regulations. 3. Perform shall deliver the fully executed Performance/Maintena .~ereto as Exhibit "A" and incorporated by this reference ("Bom . ~=~rormance of the construction of the improvements and/or maintenance of ~, ...,,,~s pursuant to the Plans. ORI61NAL 4. Release of Bond. If the Principal constructs the improvements in accordance with the terms of the Bond, the Permit and ail 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 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 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 De00sit. 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. 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. Evergreen Environmental Services, Inc. By: Its ~ 19121 60th Ave W #2 Lynnwood, WA 98036 (206) 712-8986 CITY OF FEDERAL WAY . N~yberg, City Manager 33530 1 st Way South Federal Way, WA 98003 ST' City Clerk, N. Christine Green, CMC APPROVED AS TO FORM: ,~-~K.~in~, City Attorney -3- CBIC Bond No. WB6191 EXHIBIT A Project: Road Runner Grocery & Deli Permit #: BLD95-0809 CITY OF FEDERAL WAY PERFORMANCE/MAINTENANCE BOND KNOW ALL PEOPLE BY THESE PRESENTS: We, the undersigned, Evergreen Environmental Services, Inc., as principal ("Principal"), and CBIC, the undersigned corporation organized and existing under the laws of the State of Washington, 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 Thirty Four Thousand, Three Hundred Ninety Dollars and no/100 ($34,390.00) 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 install right-of-way and site improvements including curb, gutter, sidewalk, paving, storm drainage facilities and an oil water separator. 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 (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 ("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 27th day of November , 19_.95 CORPORATE SEAL OF PRINCIPAL: Evergreen Environmental Services, Inc, 'Patrick Donohue Its: Project Manager 19121 - 60th Ave. W., #2 Lynnwood, WA 98036 (206) 712-8986 -2- CORPORATE SEAL OF SURETY: CBIC //// ':,~ontrac~, ndingf~c.e Company Att~r~-i~-~:act - (Attach PoWer of Attorney) Eric Sirkin APPROVED AS TO FORM: CERTIFICATE AS TO CORPORATE SEAL I hereby certify that I~.a~m 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~Rr~a~ ~,~,~-_,~z_ 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 AYsista~t Secretary K:~ONDS\ROADRUNNER GBIG Home Office: Limited 1213 Valley Street P.O, Box 9271 CONTRACTORS BONDING Power of Attorney sea.~e, WA 98109-0271 AND INSURANCE COMPANY (2o6) 622-7053 KNOW ALL MEN BY THESE PRESENTS that CONTRACTORS BONDING AND INSURANCE COMPANY, a corporation duly organized and existing under the laws of the Stale of Washington, and having its principal office in Seattle, King County, Washington, does by these presents make, constitute and appoint ERIC SIRKiN, of Seattle, Washington, its true and lawful attarney-in-fact, with lull power and authodty hereby conferred in its name, place and stead, to execute, acknowledge and dffiiver: (1 } SBA guaranteed pedormance and payment ponds not exceeding the penal sum of $1,250,000; (g) bid bonds for jobs where, if the contract is awarded, the SBA guaranteed performance and/or payment bond{s) will not exceed $1,250,000; (3) all other bonds coOed and classified by the Surely Association of Amehea in its Rate Manual of Fidelity, Forgery and Surely Bonds (including future amendments thereto) as Judicial, Contract (excluding bid bonds), Miscellaneous, License and Permit, and Federal not exceeding the penal sum of $1,250,000; (4) bid bonds for jobs written pursuant to the authooty in cffiuse (3) above where, if the contract is awarded, the pedormance and/or payment bond(s) will not exceed $1,250,000; and (5) all other Ponds not exceeding the penal sum of Sf ,250,000. Provided, however, that ERIC SIRKIN is granled power and authoo[y to exceed the applicable penal limit previously set forth for any bond in an amount equal to the amount of any ffiger of credit, or similar security, received as cffilathral security by the Company as an inducement to issue the bond; and to bind the Company thereby as fully and to the same extent as if such bonds were signed by the President, sealed with the corporate seal of the Company and duly attested by its Secretsly; hereby ratifying and confirming all that the said agomey-in-fact may do in the premises. Said appointment is made under and by autpodty of the following resolutions adopted by the Board of Directors of the CONTRACTORS BONDING AND INSURANCE COMPANY on May 23, 1995: RESOLVED that the President is authorized to appoint as agorney-in-fact of the Company ERIC SI REIN with power and authority to sign on behalf of the Company: (1) SBAguarantsed performance and payment Ponds not exceeding the penal sum of $1,250,000; (2) bid bonds for jobs where, if the contract is awarded, the SBA guaranteed performance and/or payment bond(s) will not exceed $1,250,0CO; (3) all other bonds coded and classified by the Surety Association of America in its Rate Manual of Fidelity, Forgery and Surety Bonds (including lutare amendments thereto) as Judicial Contract (excluding bid bonds), Miscellaneous, License and Permit, and Federal not exceeding the penth sum of $1,250,000; (4) bid bonds thr jobs written pursuant to the authodty in clause (3) above where, if the contract is awarded, 1he pedormar~e and/or payment Pond(s) will not exceed $1,250,000; and (5) all other bonds not exceeding the penal sum of $1,250,000. RESOLVED FURTHER that ERIC SIRKIN is granted power and authority to exceed the applicable penal limit set fodh in the preceding resolution for any bond in an amount equal to the amount of any letter of credit, or similar security, received as collateral secpefy by the Company as an inducement to issue the bond. RESOLVED FURTHER that the authority of the Secretary of the Company to certify the authenticfly and effectiveness d/the foregoing two resolutions in any Limited Power of Attorney is hereby delegated ts the following persons, the signature of any of the fffiffiwieg to bind the Company with respect to the authenticity and effectiveness of the foregoing resolutions as if signed by the Secretaly of the Company: Donald Sirkin, J. D. Mitao, Jo~n Alicre, Charles J. Falskow and Janet K. Avctins. RESOLVED FURTHER that the signalures (including certJficution that the Power of Attorney is still in force and effect} of the President, Notary Public and person cedgyieg authenticity and effectiveness, and the corporate and Notarp seals appearing on any Limited Power of Attamey containing this and the foregoing resolctions as well as the Limited Power of AUorney itself and its transmission, may be by facsimile; and such Limited Power of Agornny shall be deemed an ongthal in all aspects. RESOLVED FURTHER that all resolutions adopted pdor to today appointing the above named as agornny-th-tsct for CONTRACTORS BON D~NG AND INSURANCE COMPANY are hereby superseded. ~N WITNESS WHEREOF, CONTRACTORS BONDING AND INSURANCE COMPANY has caused these presents to Po signed by its President and its corporate seal to be hereto affixed this 23rd day of May, 1995. CONTRACTORS BONDING AND INSURANCE COMPANY ~ - · .~- --,- . -~'-. o SEAL ,. : By: ', ~4;'.~.."~_-' STATE OF WASHINGTO~OUNTY OF KING On this 23rd day of May, 1995, personaily appeared STEV EN A. GAIN ES, to me known to be the President of the corporation that executed the foregoing Limited Power of AUorney and acknowledged said Limited Power of Attorney to be the Iree and voluntary act and deed of said corporation, for the uses and p~rposes therein mentioned, and on oath stated that he is authorized to execute the said Umtied Power of Agomey. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above wrlgen, · STATE OF WASHING;TON The undersigned, acting u~de~l~thorlly of the Board of Directors of CONTRACTORS BONDING AND INSURANCE COMPANY, hereby certilies, as or in lieu of Cortigcsts of the Bocreta7 of CONTRACTORS BONBING ANB INSURANCE COMPANY, that the above and fo~egoffig is a full, ttue a~icorrect copy of the Original Power of Attorney ~ued by said Company, and does herebyfu~er certify that the said Power of Attorney is still In force and effect. 2 7 ~'h Nov~ll~b~r 9 5 "* GlVENundermyhendat Sea[~]_et ~i~A __ ,this dayof ,lg __ EXHIBIT B PARTIAL RELEASE OF BOND # The undersigned hereby acknowledges that a portion of the conditions of the Agreement and Performance/Maintenance Bond for Road Runner Grocery and Deli, Permit No, BLD95- 0809 have been satisfied and hereby authorizes the release of an amount equal to Thirty Four Thousand, Three Hundred Ninety and no/100 Dollars ($34,390.00). 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. DATED this day of ,19 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 Road Runner Grocery and Deli, Permit No. BLD95-0809 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 Thirty Four Thousand, Three Hundred Ninety and no/100 Dollars ($34,390.00). 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) EXHIBIT D FILED FOR RECORD AT REQUEST OF: THIS SPACE RESERVED FOR: RECORDERS USE: Evergreen Environmental Services, Inc MAIL TO: CITY OF FEDERAL WAY 33530 1ST WAY SOUTH FEDERAL WAY, WA 98003 ATTN: Ron Garrow LICENSE The undersigned owner of certain real property located in Federal Way, Washington and legally described as follows: Legal description attached hereto as Exhibit "1" and incorporated herein by this reference. ("Property") hereby grants an irrevocable license to the City of Federal Way ("City") and the City's agents, employees, contractors or representatives to enter upon the Property to inspect the construction of improvements, the performance of work or to allow the City to perform any necessary maintenance or work, all pursuant to that certain Agreement and Performance/Maintenance Bond of even date entered into between the City and the undersigned and incorporated herein by this reference. DATED this ~'7 day of J~C~,~,,~,~--. , 1995. Evergreen Environmental Services, Inc. (Signature) [Individual Notary] [Corporate Notary] STATE OF WASHINGTON ) STATE OF WASHINGTON ) ) ss. ) ss. COUNTY OF KING ) COUNTY OF KING ) On~ p~,e~appeared before me, On this day personally appeared before me .~~ , to me known to be to me known to be the individual(s) described in and who the of Evergreen Environmental executed the foregoing License, and on oath swore that Services, Inc., the corporation that executed the foregoing he/she/they executed the foregoing instrument as License, and acknowledged the said instrument to be the his/her/their free and voluntary act and deed for the uses free and voluntary act and deed of said corporation, for and purposes therein mentioned, the uses and purposes therein mentioned, and on oath stated that he/she was authorized to execute said GIVEN my hand and official seal this ~"~;~ day of instrument and that the seal affixed, if any, is the ~/~ , 19 ~,E. corporate seal of said corporation. -//~, GIVEN my hand and official seal this __ day of ~_,otary signa~,~re~. , 19 (, (t~jped/pr{n~ed na~e of notary) No~a'~y., Pu,blic r{-alld for the State of Wash ngton. (notary signature) I '~ ~*' i ~/ (typed/printed name of notary} ~ ;, ~, Notary Public in and for the State of Washington. ,. ' ~ My commission expires ORIGINAL EXHIBIT I Legal Description THAT PORTION OF LOTS 1 AND 2, KING COUNTY SHORT PLAT NO. 677183, AS RECORDED UNDER RECORDING NO. 7803130566, RECORDS OF KING COUNTY, WASHINGTON, SAID SHORT PLAT SITUATED IN A PORTION OF GOVERNMENT LOT 1, SECTION 25, TOWNSHIP 21 NORTH, RANGE 3 EAST, W.M., OF SAID COUNTY, DESCRIBED AS FOLLOWS: COMMENCING AT THE CENTERLINE INTERSECTION OF S.W. 356TH STREETWITH 21STAVENUE S.W., A 4" X 4" CONCRETE MONUMENT WITH BRASS NAIL IN CASE FOUND IN PLACE, SAID MONUMENT SITUATED ON THE EAST LINE OF SAID GOVERNMENT LOT 1; THENCE SOUTH 00'17'23" EAST ALONG SAID EAST LINE 50.02 FEET TO THE SOUTH RIGHT OF WAY MARGIN OF SAID S.W. 356TH STREET; THENCE NORTH 88'41 '38" WEST ALONG SAID SOUTH MARGIN 98.99 FEET TO THE POINT OF BEGINNING; THENCE CONTINUING NORTH 88'41 '38" WEST ALONG SAID SOUTH MARGIN 86.39 FEET TO THE BEGINNING OF A CURVE CONCAVE TO THE SOUTHEAST HAVING A RADIUS OF 25.00 FEET; THENCE SOUTHWESTERLYAND SOUTHERLYALONG THE ARC OF SAID CURVETHROUGH A CENTRAL ANGLE OF 91 '21 '07" A DISTANCE OF 39.86 FEET TO A POINT OF TANGENCY, SAID POINT BEING ON THE EAST RIGHT OF WAY MARGIN OF 22ND AVENUE S.W. AS DEEDED TO THE CITY OF FEDERAL WAY UNDER RECORDING NO. 9511071347; THENCE SOUTH 00'02'45" EAST 124.44 FEET TO THE SOUTH LINE OF SAID LOT 1; THENCE SOUTH 88'41 '38" EAST ALONG SAID SOUTH LINE 108.60 FEET; THENCE NORTH 01 '14'47" EAST 150.00 FEET TO THE POINT OF BEGINNING.