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AG 97-189 interoffice M EM 0 RAN DUM Federal Way Dep't of Public Works Development Services Division To: Ken Nyberg, City Manager Chris Green, City Clerk Stephen Clifton, Development Services Manager Signatures on attached Performance Bond 9/4/97 From: Subject: Date: Ken and Chris, Please sign the attached bond on page 3. After Chris signs document, please copy for City Clerk files and return to me, Thanks, C\~,\îq ~ 11& 97- /11 Applicant: Lakha Investment Co, LLC Project: Lakha Chevron Service Station #1 Property Address: 16650 SW Dash Point Road Federal Way, WA Bond #: 4419105 Permit#: BLD96-0270 Bond Amount: $74,347,00 Cash Deposit Amount: $2,230,00 CITY OF FEDERAL WAY AGREEMENT AND PERFORMANCE/MAINTENANCE BOND THIS AGREEMENT ("Agreement") is dated effective 28th day of August, 1997, The parties ("Parties") to this Agreement are the City of Federal Way, a Washington municipal corporation ("City") and Lakha Investment Co, LLC, i,e" a Washington Limited Liability Corporation in ("Applicant.). A. The Applicant is required to perform certain work and/or complete certain improvements, including installation of on-site work, utilities, paving, grading and right-of-way improvements for the 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. Imnrovements. 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. 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. 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, 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. ~, 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 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 Bnnd 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, Li.I:e.nse.. 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 insure to the benefit of the Parties' successors in interest. Time is of the essence, -2- ATTEST: c ¡11 4- Cary M, R ,Director of Public Works L:IPRMS YS IDOCUMENT\BLD9 6_02, 70\PER FMA I N ,A GT Rev, 01-26-97 By: Its: 19119 North Creek Parkway #101, Bothel/, WA 98011 (206) 487-0988 CITY OF FEDERAL WAY By: f4ð!~ f Kenneth E. Nyberg, City Manager 33530 1 st Way South Federal Way, WA 98003 -3- EXHIBIT A Project: lakha Chevron Service Station #1 Permit #: BlD96-O270 CITY OF FEDERAL WAY PERFORMANCE/MAINTENANCE BOND KNOW ALL PEOPLE BY THESE PRESENTS: We, the undersigned, Lakha Investment Co" LLC, as principal ("Principal"). and Indemnity Company of California, 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 Seventy Four Thousand Three Hundred Forty Seven and no/100 Dollars ($74,347) 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 on-site work, utilities, paving, grading and right-of-way improvements, 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 ~ day of AUGUST ,199L CORPORATE SEAL OF PRINCIPAL: ~KH~VEST~~ ~e of Person Executing Bond Amin S, lakha Member (Title) Its: 19119 North Creek Parkway #101 Bothell, WA 98011 (206) 487-0988 -2- CORPORATE SEAL OF SURETY: INDEMNITY COMPANY OF CALIFORNIA A S~urety(\ , By: ~.tV. , A rney-in-Fact (Attach ower ::::ey) Glenn F. Davidson Name of Person Executing Bond 9725 - 3rd Avenue NE #602 Seattle,WA 98115 (206) 525-8201 BOND NUMBER: 4419105 APPROVED AS TO FORM: ¡11 rt- , DIRECTOR OR PUBLIC 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 , 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,\FORMS\PEAfMAIN.BND FII,No.- -3- 08/28/87 TBU 12: 17 FAX 2088814129 CITY OF FEDERAL WAY 1aI002 STATE OF WASHINGTON) COUNTY OF KING )a8. ) On this day P8tlOl'lllly appear.d before me Am inS. La k h a . to me known to be the Managing Partner of 1 AKHA J NVFqMFNT co . L L. C. . the limited liability company that .xecUted .. PrIncipal the foregoing PerformencelMaimenance Bond. and acknowledged the Mid Instrument to be the frea and voluntary aet and deed of .aid company, for the Ul81 and purpoø. therein mentioned. and on oath stated that he/she wa. authorized to axecUte Mid instrument on behalf of said company. GIVEN my h8~ and official _I thia ;2'1' day of *~~ :..M Hu [ ~ ý ~ . ,giZ Washington. ItYØ8dlprlnt8cl Nine of notary) Notary Public In and for the Stllte of My commission expire. ~, /0/ 1C:\f-'-...,bd.1e POWER OF ATTORNEY OF I. .JEMNITY COMPANY OF CALIFOR. AND DEVELOPERS INSURANCE COMPANY po. BOX 19725, IRVINE. CA 92623 . (714) 263-3300 NQ 0 0 9 1 4 7 NOTICE: 1. All power and authority ha"'n grantad shall in any avant terminataon the 31st day of March, 1999. 2. Th;o Powarof Atlomay is void II alte,"" '" if eny portion is ...ased. 3. This Power of Attomay is void unless the seal is n>adable, the text is in brown ink, the signatures are in blue ink and this notice is In blue Ink. 4. This Power of Attomey should not be ratumadto the Attomey(s)-In-Fact, but should ramain a permanent part of the obligee's records. KNOW ALL MEN BY THESE PRESENTS, that except as exp",ssly !;mlled, INDEMNITY COMPANY DF CALIFORNIA and DEVELOPERS INSURANCE COMPANY, do each severelly, but not jointly, hereby make, constitute and appoint "'GLENN F. DAVIDSON, J, WILLIAMSON. ANN BOSIK, LORNA F. WILLIAMS, LINDA D, NELSON, JOINTLY OR SEVERALLY'" the tnJe and lawful Atlomey(s)-In-Fact, 10 make, execute, da"ver and acknowledge, 10< and on behalf of said corporations as sureties, bonds, undertakings and contracls of suretyship in an amount not eXCeedin9 Three Million Five Hund,"" Thousand Dollars ($3,500,000) in any singre undertaking; giving and granting unto said Atlomay(s)-In-Fact full power and authority to do and to perform every act necessary, requislla or proper to be done In connection therewith as each of said corporations could do, but reserving to each of said corporations full pow... of substitution and revocation; and all of the acts of said Atlomey(s)-In-Fact, pursuant to Ihese presents, are h...eby ratifiad and confirmad. This Power of Attorney is granled and is si9ned by facsimile under and by authmlly of the following ",solutions adopted by the respective Board of Directors of INOEMNITY COMPANY OF CALIFORNIA and ~EVELOPERS INSURANCE COMPANY, effective as of September 24,1986: RESOLVED, thaI the Chairman of the Board. Ihe President and any V;ce Presidenl of the corporations be, and that each of Ihem h...eby is, authorized 10 execute Powers of Atlorney. qualifying the attorney!s) named in the Powers of Attorney to execute, on behalf of the corpmatlons, bonds, undertakings and contracts of suretyship: and Ihat Ihe Secretary or any Assistant Secretary of the corporations be, and each of them hereby is, authorized to attest the execution of any such Power of Attorney: RESOLVED, FURTHER, that the signatures of such officers may be affixed to any such Power of Atlorney or to any certificate relating thereto by facsimile, and any such Power of Attornay '" certificate bearing such facsimile signalures shall be va!;d and binding upon the corporation when so affixed and in the future wllh respect to any bond. undertaking or contract of suretyship to which it is attached. IN WrrNESS WHEREOF, INDEMNITY COMPANY OF CALIFORNIA and DEVELOPERS INSURANCE COMPANY have severelly caused Ihese presents to be signed by their respective Presidents and attested by their respective Secretaries this 3rd day of February, 1997. INDEMNITY COMPANY OF CALIFORNIA DEVELOPERS INSURANCE COMPANY By By Ä~~ ATTEST .By By Äk~ Wall... Crowell Secrelary Secretary STATE OF CALIFORNIA ) )SS. ) COUNTY OF ORANGE On February 3,1997, before me, Sh...ie L. Bell, personally appeared Dante F. V;ncenti, Jr. and Walt... Crowell, p...sonally known to me (or proved 10 me on the basis of satistactory evidence) to be the person(s) whose name(s) isf"'e subscribed 10 the within instrument and acknowledged 10 me Ihat helshellhey exe,uted Ihe same in hislher/their aulhorized capacity(ies), and that by hislher/their signature(s) on the instrument the person!s), or the entity upon behalf of which Ihe person!s) acted, execuled the instrument. WITNESS my hand and official seal. CERTIFICATE @ SHERIE L BaJ. COUM.111111419 a NOTARY PUIII£ - CAI.f'OR A ~ OIWGE COOOY "'II!'!t'~~I~II~;~11 Signature ~'w?I ~ The undersigned, as Senior V;ce President of INDEMNITY COMPANY OF CALIFORNIA, and Senior V;ce President of DEVELOPERS INSURANCE COMPANY, does hereby certify that the foregoing and attached Power of Attorney remains in full force and has not been revoked; and furthermore, that the provisions of the resolutions of the respective Boards of Directors of said corporations set forth in the Power of Attorney, ",e in force as of the date of this Certificate. This CertIficate is executed in the City of Irvine, California, this 28th day of AUGUST ,'99~. INDEMNITY COMPANY OF CALIFORNIA DEVELOPERS INSURANCE COMPANY By -ø.. (óL.~ Senior V;ce PresIdent By -ø.. (l!L~ Senior V;ce President 10-3'3 REV (3/97) EXHIBIT B PARTIAL RELEASE OF BOND #4419105 The undersigned hereby acknowledges that a portion of the conditions of the Agreement and Performance/Maintenance Bond for Lakha Chevron Service Station #1, Permit No. BLD96- 0270. have been satisfied and hereby authorizes the release of an amount equal to Fifty Two Thousand Forty Three and no/100 Dollars ($52,043,00), 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 ,199_, CITY OF FEDERAL WAY By: (Name. Title) EXHIBIT C FUll RELEASE OF BOND # 4419105 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 lakha Chevron Service Station #1, Permit #BlD96-0270, 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 Three Hundred Four and no!100 Dollars ($22.304.00), 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) FILED FOR RECORD AT REQUEST OF: Lakha Investment Co, LLC MAIL TO: CITY OF FEDERAL WAY 33530 1 ST WAY SOUTH FEDERAL WAY, WA 98003 ATTN: Stephen Clifton, AICP EXHmII...Q LICENSE The undersigned owner of certain real property located in Federal Way, Washington and legally described as follows: TAX PARCEL NO:122103-9069 Legal Description: BEGINNING AT A POINT ON THE NORTHWESTERLY MARGIN OF THE DASH POINT ROAD (FORMERLY MALTBY ROAD) AS ESTABLISHED BY CONVEYANCE PER RECORDING NO, 5254575, RECORDS OF KING COUNTY WASHINGTON, SAID POINT LYING SOUTH 36'23'31' WEST 119,63 FEET FROM THE INTERSECTION OF SAID MARGIN WITH THE EAST LINE OF SAID SECTION 12; THENCE NORTH 74'52'03" WEST 118,64 FEET; THENCE SOUTH 36'37'57" WEST 22,94 FEET TO THE NORTH MARGIN OF SOUTHWEST 312TH STREET; THENCE SOUTH 88'55'44" EAST ALONG SAID MARGIN 132,48 FEET TO INTERSECT THE NORTHEASTERLY MARGIN OF DASH POINT ROAD, AS ESTABLISHED BY SAID CONVEYANCE, BEING ON A 915,37 FOOT RADIUS CURVE TO THE LEFT HAVING A RADIUS POINT WHICH BEARS NORTH 48'39'40" WEST; THENCE NORTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 4'56'49" AN ARC LENGTH OF 79,03 FEET TO A POINT OF TANGENCY; THENCE NORTH 36'23'31" EAST ALONG SAID MARGIN 110,43 FEET TO THE POINT OF BEGINNING, SITUATE IN THE 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 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 28th day of AUGUST ,1997, ~~~I~d Liability Company) [ Notary] STATE OF WASHINGTON I I ss. COUNTY OF KING I On this day personally appeared before me Ami n S. Lakha , to me known to be the M~n~QinQ Member ofLAKHA ~VESTMENT CO"the J1IU¡I~that executed the foregoing License, and acknowledged the said instrument to be the free and voluntary act and deed of said JIOI( I:lmlQfl{'"for the uses and purposes therein mentiDned, and on oath stated that helshe was authorized tD execute said instrument;aUtlIlUIID,ItIIII1WIIC~a~Itt:~.~~""illI~, *Limited Liability Company GIVEN my hand and official seal this :2 0/ day of J"",otary signatur~ u,sJ'h<.} L, If 19 Ý (typed/printed name of notary) Notary Public in and for the StatB of Wa~hingtDn, My commission expires ~/~ 'if ()I [Individual NDtary) STATE OF WASHINGTON) ) ss, COUNTY OF KING ) On this day personally appeared before me, tD me knDwn tD be the individual(sl described in and who executed the foregoing License, and Dn oath swore that he/she/they executed the foregoing instrument as his/her/their free and voluntary act and deed for the uses and purposes therein mentioned. GIVEN my hand and official seal this - day of ,19_. (notary signaturel (typed/printed name of notaryl Notary Public in and for the State of Washington, My commission expires L:IPRMSYSIDOCUMENT\BLD9 6_02, 70lPERFMAIN ,AGT Revised: 01.28-97