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AG 95-184Applicant: LES SCHWAB TIRE CENTERS OF WASHINGTON, INC. Project: LES SCHWAB TIRE CENTER Property Address: 34415 - 16th Avenue South Federal Way, WA Bond#: KO 40 33 72 3 Permit#: BLD 94-0903 Bond Amount: $119,936.00 Cash Deposit Amount: $2,998.00 CITY OF FEDERAL WAY AGREEMENT AND PERFORMANCE/MAINTENANCE BOND THIS AGREEMENT ("Agreement") is dated effective this Jay of'H~c~rl995. The parties ("Parties") to this Agreement are the City of Federal Way, a Washington municipal corporation ("City") and LES SCHWAB TIRE CENTERS OF WASHINGTON, INC., a Washington corporation ("Applicant"). A. The Applicant is required to perform certain work and/or complete certain improvements, including on site paving\drainage improvements and off site street right of way improvements 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. Imerovements. 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. ORIGINAL 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 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 Deoosit. In addition to the amount of the Bond, Applicant agrees to pay a cash deposit to the City pursuant to Section 22-1§1 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-$50,000 850,001-$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. -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. LES SCHWAB TIRE CENTERS OF WASHINGTON, INC. 1015 Madras Highway Prineville, Oregon,~ 97754 (Phone} ATTEST: CITY OF FEDERAL WAY By: Kenneth E. l~lyberg, City Manager 33530 1st Way South Federal Way, WA 98003 APPROVED AS TO FORM: K:~BONDS\LESSCHWAB.AGT Rev. 07°03-95 -3- EXHIBIT A Project: Les Schwab Tire Center Permit #: BLD 94-0903 CITY OF FEDERAL WAY PERFORMANCE/MAINTENANCE BOND B(~) l~. KO 40 33 72 3 KNOW ALL PEOPLE BY THESE PRESENTS: ,.W.,e, the undersigr~:r~C.,~y'~A~k~F.,~,F,,,~l~T~Rs OF WASHINGTON INC., as pr nc pal ..... :~.. ,u.~ 0~ .-~.~'~-~ .,,~--T,-A ,tneunoerslgneocorporatlonorgan zed and ex~stmg under ~'he'~aws of't'~':~te of _])E~._][o~k~, 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 One Hundred Nineteen Thousand, Nine Hundred Thirty-Six Dollars and no/100 (8119,936.00)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 on site paving\drainage improvements and off site street right of way improvements at 34415 - 16th Avenue South in Federal Way, Washington. 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 ~)~z, ,1995. CORPORATE SEAL OF PRINCIPAL: LES SCHWAB TIRE CENTERS OF WASHINGTON, INC. By: ~ ~.....---~ ~, y(Name of Person Executing Bond) Its: (Title) 1015 Madras Highway Prineville, Oregon 97754 (Phone) -2- CORPORATESEALOFSURETY: APPROVED AS TO FORM: Surety Atto~-in-Fact (Attach Power of Attorney) I'~L]'L'-iA1 M. ~ ~'~ (Name of Person Executing Bond) IP, arsh & t4~T,=nn~m. Inc. 111 S.W. l~i_fth Avenue Portland, (~t 97204 (Address) (50.3) 2~6-9500 (Phone) CERTIFICATE AS TO CORPORATE SEAl I hereby certify that I am the ~J~vS-Secretary of the Corporation named as Principal in the within bond; that ~, who signed the said bond on behalf of the Principal, was ~r. ~. ~,CL° J~.~t~' of the said Corporation; that I know his er 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. K:~BONDS~LESSCHWAB.AGR Rev. 7-07-95 -3- · each individually if thet~ bc mom than one named, itt tree and lawful attomey-~-fact, to make, cxexut~, seal and deliver on its behalf, and as itt act and dead any and all bonds, under.firings, recognizances, contractt and other writings in the mtur~ thereof in ~emltles not ex¢¢ecllng Ten.Ilion DOLLARS($10~000,000)each, and the execution of such writings in pursuance of these presents dali be as pon said Company, as f~lly and amply as if they had been duly executed and acknowlcclged by the regularly elected Officers of the Company at itt principal IN WITNF~$ Wh'ER.EOF, the said the said Imiemni~y Insurance Company Of North America COMMONWEALTH OF PENNSYLVANIA COUNTY OF PHI~AD.ELPHfA W'tiliamJungrcls , Vice-President, has hereunto mbecribed hla 17~ ~y of ~ 1995 . ~ ~ Com~ ~ No~ the Vice P~csident Onthls 17th dayof April, A.D. 1995. boforeme, aNotttyPubricofth~Cg, mmo,~ nw~alth o~ pennsylvanla in and for the County of Phlhdelphia~am~ W~lllam~ungre~s ,¥ic~-~sld~ntofthe tnd~,m~,C~l~n~,OfNorthAme~a- to me personally .. Au~st 19 95. EXHIBIT B PARTIAL RELEASE OF BOND # ](O /K) 33 72 3 The undersigned hereby acknowledges that a portion of the conditions of the Agreement and Performance/Maintenance Bond for LES SCHWAB TIRE CENTER, Permit No. BLD 94-0903 have been satisfied and hereby authorizes the release of an amount equal to Eighty-Three Thousand Nine Hundred Fifty-Five and no/lO0 Dollars ($83,9§5.00). The remaining funds equalling 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 # ](0 /-K) 33 72 3 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 LES SCHWAB TIRE CENTER, Permit No. BLD 94-0903 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- Five Thousand Nine Hundred Eighty-One and no/100 Dollars ($35,981.00). 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. 9409210166 ("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: LES SCHWAB TIRE CENTERS OF WASHINGTON, INC. (Applicant's Name) MAIL TO: CITY OF FEDERAL WAY 33530 1ST WAY SOUTH FEDERAL WAY, WA 98003 ATTN: Skip Tullock THIS SPACE RESERVED FOR: RECORDERS USE: LICENSE The undersigned owner of certain real property located in Federal Way, Washington and legally described as follows: Lot line elimination 94-0010 as recorded under recording No. 9409210166. Records of 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~t~ 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 ]~ day of LES SCHWAB TIRE CENTERS OF WASHINGTON, INC. STATE OF ) ) ss. COUl OF KING ) to me known to be the individual(s) described who executed the foregoing License, and on he/she/they executed the foregoin( as his/her/their free and voluntary act for the uses and purposes therein mentioned. GIVEN my hand and seal this day of (notary si (typ )rinted name of notary) in and for the State of Washington. MARY J~ ~ ~[~iJ~ NOTARY PUBLIC- OREGON ~ \~.~....',Y./ COMMISSION NO. 040254 ~) ~ MYCOMMISSIONEX~IRESJAN. 24,19~9 [Corporate Notary] STATE OF WASHINGTON ) ) ss. COUNTY OF KING ) On this day personally appeared before me -)-or~ ,C'/.~/y~ , to me known to be the .c.~.. ~,~. V~J'. P.~sIE.~ of LES SCHWAB TIRE CENTERS OF WASHINGTON, INC, 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.he 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 JU.J~ , 1 9 ).5, (not~'ry ~rgnature) (type~/printed ~ame of notary) Notary Public in and for the State of ~ My commission expires J- z~/-~