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1998-0123_KAISER FOUNDATION HEALTH PLAN INC_Surety Agreement • Y ' 1� ., • _tel C , SURETY AGREEMENT THIS AGREEMENT is made by and between the CITY OF SAN JUAN CAPISTRANO, a municipal corporation, hereinafter referred to as the "City" and Kaiser Foundation Health Plan, Inc., a Non-Profit Public Benefit Corporation referred to as "Developer". WITNESSETH WHEREAS, City will issue Grading Permit No. 37790 to Developer to construct certain designated improvements, more particularly described in Exhibit"A" attached and incorporated herein /\ by reference, which said improvements constitute a portion of that real property at the location 30400 Camino Capistrano, commonly referred to as Kaiser, San Juan Capistrano. WHEREAS, San Juan Capistrano Municipal Code Section 8-3.05 requires the posting of financial security to secure the faithful performance and labor and materials for the grading and installation of improvements connected with issuance of grading permits. WHEREAS, San Juan Capistrano Municipal Code Section 8-3.06 authorizes the Building Official to require additional bonding as security to ensure against adverse aesthetic impacts arising from incomplete grading and/or improvements from development projects which have not been completed. WHEREAS, the Building Official finds that the proposed project site is highly prominent and visible to the community, has unique topographic features or involves substantial grading of slope areas. NOW,THEREFORE,in consideration of the premises and promises hereinafter contained, City and Developer agree as follows: 1. Developer's Improvements Obligations. Developer shall, at its sole cost and expense, provide and furnish all labor, materials and equipment for the installation of improvements set forth in Exhibit "A". The grading permit and plans,which further defines the improvements in Exhibit "A", are on file in the office of the City's Building Official, and all documents referenced.in Exhibit "A" are incorporated herein by reference. 2. Developer's Security. Developer shall provide a bond by a duly authorized corporate surety, subject to the approval of the City's City Attorney, to secure Developer's improvement obligations required under this agreement. The amount of the bond shall be $478,621 for that work described in Exhibit "A". This security of$478,621 shall also serve as security for restoration of the site. A copy of the surety instrument, as approved by the City Attorney, is attached as Exhibit "D". Surety Agreement Page 2 Kaiser, San Juan Capistrano 30400 Camino Capistrano 3. Completion of Improvements. To ensure the protection of the public safety, health and welfare, Developer shall construct the improvements described in Exhibit "A" in accordance with the schedule as set forth in Exhibit "B", and the conditions as set forth in Exhibit "C". 4. Developer Default. In the event Developer does not complete the required improvements,including erosion-control measures within the time required, or abandons the project site, or suspends work for more than twenty working days other than previously prescribed, City shall have the right to immediately declare a default and to make demand on the surety for performance. 5. Restoration of Site. San Juan Capistrano Municipal Code Section 8-3.06 allows the City to require bonding as security to ensure against adverse aesthetic impacts arising from uncompleted grading and/or improvements. The purpose of this bonding shall be to restore the property to its original condition if the Developer defaults. This restoration shall include: A. Dismantle and/or demolish improvements; B. Grade property to its original contours as shown on the grading plan referred to in Exhibit "A"; C. Remove all debris and construction materials from the site; and D. Install erosion control, including hydroseeding, to the satisfaction of the Building Official. 6. Attorney's Fees. Developer agrees to pay City such sum as the court may adjudge as reasonable for the legal services of an attorney representing the City in an action brought to enforce or interpret the obligations of this agreement, and such sum shall be made a part of any judgment in such action against Developer if such action is determined in favor of said City. 7. Developer's Work in Safe Condition. Developer shall perform all work in a safe workmanlike manner and shall take such precautions as may be necessary to warn and protect the public from any dangerous condition caused by the construction of said improvements. 8. Liability. Developer shall hold City, its officers, and employees harmless from any and all claims, demands, causes of action, liability or loss of any sort because of, or arising out of, the acts or omissions of Developer, his contractor, subcontractors,agents or employees in the performance of this agreement. Y Surety Agreement Page 3 Kaiser, San Juan Capistrano 30400 Camino Capistrano In witness whereof, the parties have executed this agreement as of / 4_3 , 1998 at San Juan Capistrano, California. Developer City of San Juan Capistrano KAISER FOUNDATION HEALTH PLAN `' ° 'V By: Daniel . McFarland Building Official By: Sum ah Area Architect Approved as to Form: glik1 r By: John R. Shaw City Attorney • Surety Agreement Page 4 Kaiser, San Juan Capistrano 30400 Camino Capistrano EXHIBIT "A" Item 1: Construction of all on-site grading(cut, fill and slope stabilization) operations in accordance with Grading Permit No.37790 and the Developer's plans and supporting documents as listed below: (A) Grading Plan for Kaiser, San Juan Capistrano, dated 12/24/97, prepared by Fuscoe Engineering, Inc., Tom Oshita, RCE No. 17388. (B) Geotechnical Report for Kaiser Permanente, dated 12/10/97, prepared by Leighton and Assoc., Scott Burns, RCE No. 55370. Item 2: Construction of all on-site improvements in accordance with Grading Permit No. 37790 and Developer's grading plans referenced in Item 1 above, including, but not limited to: driveways, parking areas, retaining walls, terrace drains, down drains, subdrains, area drainage systems, and private storm drain systems not a part of Developer's Improvement Plans filed with the City Engineer. Surety Agreement Page 5 Kaiser, San Juan Capistrano 30400 Camino Capistrano EXHIBIT "B" SCHEDULE FOR COMPLETION OF IMPROVEMENTS Completion Date Task 2/20/98 Rough Grade Certification 7/30/98 Landscape Irrigation (Per grading plans for erosion and silt control) 8/30/98 Landscape Planting (Per grading plans for erosion and silt control) Surety Agreement Page 6 Kaiser, San Juan Capistrano 30400 Camino Capistrano EXHIBIT "C" CONDITIONS FOR COMPLETION OF IMPROVEMENTS A. The grading for this project shall be in strict conformance with the grading plans and related documents as described in Exhibit "A" and Grading Permit No. 37790. B. Grading operations shall commence within fourteen (14) calendar days after issuance of Grading Permit No. 37790. Winter grading will be conducted in strict accordance with the dynamic erosion-control plan submitted by the Developer, and approved by the City. This erosion-control plan reflects erosion mitigation measures for expected grading conditions as the work progresses through the winter season and shall not be amended except with the permission of the City. In the event Developer does not wish to implement winter grading, or permission for winter grading is rescinded, static erosion-control plans reflecting current conditions of grading shall be submitted within ten (10) days of cessation of work. These plans shall include erosion- control planting as required by the City. C. Except as specified in item "F" below, suspension in excess of twenty (20)working days of work authorized by Grading Permit No. 37790, including erosion-control measures and landscaping and irrigation, shall constitute default of this agreement. D. The supervising civil engineer and soils engineer shall file biweekly progress reports of all grading operations with the Building Official. An interim compaction report, for that work completed at the time work is suspended for the rainy season(see item "F" below), shall be filed with the Building Official. This interim report shall conform to the grading code requirements for final compaction reports. E. Contractor shall control dust to the satisfaction of the Building Official or his deputy. During grading, Contractor shall keep water truck on site and dampen work area, grounds, and loaded trucks. F. Grading operations suspended during the rainy season shall be resumed no later than 15 days from date of suspension. G. Developer shall provide approved on-site archaeological monitor during all phases of grading and foundation excavation and submit a final archaeological report to the City upon completion of the grading. i Surety Agreement Page 7 Kaiser, San Juan Capistrano 30400 Camino Capistrano H. Installation of interim erosion-control devices and systems shall commence within seven(7) days after rough grade certification has been approved by the Building Official and must be completed within fifteen (15) days of rough grade certification. Final erosion-control landscaping and irrigation systems shall be installed prior to final inspection of the grading permit. I. All work shall be performed in strict observation of the Hours of Operation in accordance with San Juan Capistrano Municipal Code Section 8-107. J. Contractor shall adhere to conditions of haul route permit and encroachment permit issued by the City Engineer. K. No construction trucks are to stop or stand on Camino Capistrano. L. Parking for construction crew is to be on-site. EXHIBIT "D" • THE AMERICAN INSTITUTE OF ARCHITECTS Bond No. 04-0120-06136-98-1 AIA Document A312 Performance Bond Any singular reference to Contractor. Surety, Owner or other party shall be considered plural where applicable. CONTRACTOR (Name and Address): SURETY (Name and Principal Place of Business): The Whiting-Turner Contracting Company United States Fidelity and Guaranty Company 300 East Joppa Road 5801 Centennial Way Baltimore MD 21286 Baltimore MD 21209 OWNER (Name and Address): City of San Juan Capistrano CONSTRUCTION CONTRACT Date: Amount: Four Hundred Seventy Eight Thousand, Six Hundred Twenty One ----00/100 ($478,621.00) Description (Name and Location): Construction of all on-site grading and on-site improvements in accordance with Grading Permit No. 37790 BOND Date (Not earlier than Construction Contract Date): January 20, 1998 Amount: Four Hundred Seventy Eight Thousand ix Hundred Twenty One --00/•.00 ($478,621.00) Modifications to this Bond: yj None _ See Page 3 CONTRACTOR AS-PRINCIPAL SURETY • Company: (Cor•: . - Seal) Company: (Corpo'rate Seal)- The Whiting-Turn _cont41 ting'y, / United States F' •-=I ity and Guaranty- Company r_ Signature: 1,1., � `�' _ Signature: r-= • Name an. itle: Name .,d T' e: B an E. i !cox, Attorneyn F act (Any adtlitiont� Igf1atU`l�a�p mDrpgege g (FOR INFORMATION ONLY-Name, Address and Telephone) AGENT or BROKER: OWNER'S REPRESENTATIVE (Architect. Engineer or other party): HMS Insurance Associates , Inc. 10751 Falls Road, Suite 256 Brooklandville, MD 21022 (410] 227-975,5 AIA DOCUMENT A312 •PERFORMANCE BOND AND PAYMENT BOND • DECEMBER 1984 ED.•AIA CI THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE.. N.W.. WASHINGTON. D.C. 20006 A312-1984 1 r • v / 1 The Contractor and the Surety, jointly and severally, which it may be liable to the Owner and, as bind themselves, their heirs, executors, administrators, soon as practicable after the amount is successors and assigns to the Owner for the perfor- determined, tender payment therefor to the mance of the Construction Contract, which is incor- Owner: or porated herein by reference. .2 Deny liability in whole or in part and notify 2 If the Contractor performs the Construction Contract, the Owner citing reasons therefor. the Surety and the Contractor shall have no obligation under this Bond, except to participate in conferences as 5 If the Surety does not proceed as provided in provided in Subparagraph 3.1. Paragraph 4 with reasonable promptness, the Surety shall Surety's obligation bef deemed to be in defaultdn on this Bondofeifteen dayst 3 If there is no Owner Default, the Surety's after receipt of an additional written notice from the under this Bond shall arise after: Owner to the Surety demanding that the Surety perform its obligations under this Bond, and the Owner shall be 3.1 The Owner has notified the Contractor and the entitled to enforce any remedy available to the Owner. If Surety at its address described in Paragraph 10 the Surety proceeds as provided in Subparagraph 4.4, below that the Owner is considering declaring a and the Owner refuses the payment tendered or the Contractor Default and has requested and attempted Surety has denied liability, in whole or in part, without to arrange a conference with the Contractor and the further notice the Owner shall be entitled to enforce Surety to be held not later than fifteen days after any remedy available to the Owner. receipt of such notice to discuss methods of per- forming the Construction Contract. If the Owner, the 6 After the Owner has terminated the Contractor's right Contractor and the Surety agree, the Contractor shall to complete the Construction Contract, and if the Surety be allowed a reasonable time to perform the Con- elects to act under Subparagraph 4.1, 4.2, or 4.3 above, struction Contract, but such an agreement shall not then the responsibilities of the Surety to the Owner waive the Owner's right. if any, subsequently to shall not be greater than those of the Contractor under declare a Contractor Default: and the Construction Contract, and the responsibilities of the 3.2 The Owner has declared a Contractor Default and Owner to the Surety shall not be greater than those of formally terminated the Contractor's right to complete the Owner under the Construction Contract. To the limit the contract. Such Contractor Default shall not be of the amount of this Bond, but subject to commitment declared earlier than twenty days after the Contractor by the Owner of the Balance of the Contract Price to and the Surety have received notice as provided in mitigation of costs and damages on the Construction Subparagraph 3.1: and Contract, the Surety is obligated without duplication for: 3.3 The Owner has agreed to pay the Balance of the 6.1 The responsibilities of the Contractor for cor- Contract Price to the Surety in accordance with the rection of defective work and completion of the terms of the Construction Contract or to a contrac- Construction Contract; tor selected to perform the Construction Contract in accordance with the terms of the contract with the 6.2 Additional legal, design professional and delay Owner. costs resulting from the Contractor's Default, and resulting from the actions or failure to act of the 4 When the Owner has satisfied the conditions of Surety under Paragraph 4; and Paragraph 3, the Surety shall promptly and at the Surety's expense take one of the following actions: 6.3 Liquidated damages, or if no liquidated damages are specified in the Construction Contract, actual 4.1 Arrange for the Contractor, with consent of the damages caused by delayed performance or non- Owner, to perform and complete the Construction performance of the Contractor. Contract; or 4.2 Undertake to perform and complete the Con- 7 The Surety shall not be liable to the Owner or others for obligations of the Contractor that are unre- struction Contract itself, through its agents or lated to the Construction Contract, and the Balance of through independent contractors: or the Contract Price shall not be reduced or set off on account of any such unrelated obligations. No right of 4.3 Obtain bids or negotiated proposals from action shall accrue on this Bond to any person or entity qualified contractors acceptable to the Owner for a other than the Owner or its heirs, executors, ad- contract for performance and completion of the ministrators or successors. Construction Contract, arrange for a contract to be prepared for execution by the Owner and the con- 8 The Surety hereby waives notice of any change, in- fractor selected with the Owner's concurrence, to be cluding changes of time. to the Construction Contract or secured with performance and payment bonds ex- to related subcontracts, purchase orders and other ecuted by a qualified surety equivalent to the bonds obligations. issued on the Construction Contract, and pay to the Owner the amount of damages as described in Paragraph 6 in excess of the Balance of the Con- 9 Any proceeding, legal or equitable, under this Bond may tract Price incurred by the Owner resulting from the be instituted in any court of competent jurisdiction in the Contractor's default: or location in which the work or part of the work is located and shall be instituted within two years after Contractor 4.4 Waive its right to perform and complete, arrange Default or within two years after the Contractor ceased for completion, or obtain a new contractor and with working or within two years after the Surety refuses or reasonable promptness under the circumstances: fails to perform its obligations under this Bond, whichever occurs first. If the provisions of this Paragraph are void or .1 After investigation, determine the amount for prohibited by law, the minimum period of limitation avail- AIA DOCUMENT A312 •PERFORMANCE BOND AND PAYMENT BOND • DECEMBER 1984 ED. •AIA QQ THE AMERICAN INSTITUTE OF ARCHITECTS. 1735 NEW YORK AVE.. N.W., WASHINGTON, D.C. 20006 A312-1984 2 . L able to sureties as a defense in the jurisdiction of the Contractor of any amounts received or to be suit shall be applicable. received by the Owner in settlement of insurance or other clams for damages to which the Contractor is 10 Notice to the Surety, the Owner or the Contractor entitled, reduced by all valid and proper payments shall be mailed or delivered to the address shown on made to or on behalf of the Contractor under the the signature page. Construction Contract. 11 When this Bond has been furnished to comply with a 12.2 Construction Contract: The agreement between statutory or other legal requirement in the location the Owner and the Contractor identified on the sig- where the construction was to be performed, any nature page, including all Contract Documents and provision in this Bond conflicting with said statutory or changes thereto. legal requirement shall be deemed deleted herefrom and provisions conforming to such statutory or other legal 12.3 Contractor Default: Failure of the Contractor. requirement shall be deemed incorporated herein. The which has neither been remedied nor waived, to intent is that this Bond shall be construed as a statutory perform or otherwise to comply with the terms of bond and not as a common law bond. the Construction Contract. 12 DEFINITIONS 12.4 Owner Default: Failure of the Owner, which has neither been remedied nor waived, to pay the 12.1 Balance of the Contract Price: The total Contractor as required by the Construction Contract amount payable by the Owner to the Contractor or to perform and complete or comply with the under the Construction Contract after all proper ad- other terms thereof. justments have been made, including allowance to the MODIFICATIONS TO THIS BOND ARE AS FOLLOWS: (Space is provided below for additional signatures of added parties, other than those appearing on the cover page.) CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: (Corporate Seal) Signature: Signature: Name and Title: Name and Title: Address: Address: AIA DOCUMENT A312 •PERFORMANCE BOND AND PAYMENT BOND • DECEMBER 1984 ED.•AIA Q THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE.. N.W., WASHINGTON. D.C. 20008 A312-1984 3 ^o' t 1642518 United States Fidelity and Guaranty CompanyF� + • Power of Attorney No. 107418 Know all men by these presents:That United States Fidelity and Guaranty Company,a corporation organized and existing under the laws of the State of Maryland and having its principal office at the City of Baltimore,in the State of Maryland,does hereby constitute and appoint Carl W. Schmidt Gary A. Pyne, Brian E. Wilcox, Christine M. Kram and Robert F. White of the City of Brooklandville ,State of Maryland its true and lawful Attorney(s)-in-Fact,each in their separate capacity if more than one is named above.to sign its name as surety to,and to execute,seal and acknowledge any and all bonds,undertakings,contracts and other written instruments in the nature thereof on behalf of the Company in its business of guaranteeing the fidelity of persons:guaranteeing the performance of contracts;and executing or guaranteeing bonds and undertakings required or permitted in any actions or proceedings allowed by law. In Witness Whereof,the said United States Fidelity and Guaranty Company,has caused this instrument to be sealed with its corporate seal,duly attested by the signatures of its Vice President and Assistant Secretary,this 5th day of February ,A.D.19 9 7. United States Fidelity and Guaranty Company, y ROI • (Signed) By e► Vice President � !Iltil (Signed) By 6 7 L c 11:t— 'ssistant ecretary State of Maryland) "`y� } SS: Baltimore City ) • ( +\5 ) On this 5th day of February ,A.D.19,J "efore me personnlly'ca \ary A.Wilson,Vice President of United States Fidelity and Guaranty Company,and Thomas E.Huibregtse,Assistant Secretajyof.said Company,with both whom I am personally ac`�uainted,who being by me severally duly sworn, said,that they,the said Gary A.Wilson and Thomas E.Huibr 99,t, `iv&e respectively the Vi(e:President and the Assi ari�iretary of the said United States Fidelity and Guaranty Company,the corporation described in and�rcf.kexecuted the foregoi g,Po aero Attomey,that tf�e eal.i knew the seal of said corporation;that the seal affixed to said Power of Attorney was such corporate seal, a�it\+vas so affixed by orciSe f,the Board of Directo of sai corporation,and that they signed their names thereto by like order as Vice President and Assistant Secrea(yrrespectively,of theompany. My Commission expires the 1st day of Augil� A.D.19 9 :,c) - —ten- , (Signed�v 0 oue ....... J , NOTAuRY 1c' to Public ry �4pNE E�j y�j This Power of Attorney is granted under and by ait h�gnty of the following Resolutions adopted by the Board of Directors of the United States Fidelity and - Guaranty Company on September 24,1992: Resolved,that in connection with the fidelity and surety insurance business of the Company,all bonds,undertakings,contracts and other instruments relating to said business may be signed,executed,and acknowledged by persons or entities appointed as Attomey(s)-in-Fact pursuant to a Power of Attorney issued in accordance with these resolutions.Said Power(s)of Attorney for and on behalf of the Company may and shall be executed in the name and on behalf of the Company,either by the Chairman, or the President,or an Executive Vice President,or a Senior Vice President.or a Vice President or an Assistant Vice President,jointly with the Secretary or an Assistant Secretary,under their respective designations.The signature of such officers may be engraved,printed or lithographed.The signature of each of the foregoing officers and the seal of the Company may be affixed by facsimile to any Power of Attorney or to any certificate relating thereto appointing Attomey(s)in-Fact for purposes only of executing and attesting bonds and undertakings and other writings obligatory in the nature thereof,and subject to any limitations set forth therein,any such Power of Attorney or certificate bearing such facsimile signature or facsimile seal shall be valid and binding upon the Company and any such power so executed and certified by such facsimile signature and facsimile seal shall be valid and binding upon the Company with respect to any bond or undertaking to which it is validly attached. Resolved.That Attorney(s)-in-Fact shall have the power and authority,and,in any case,subject to the terms and limitations of the Power of Attorney issued to them,to execute and deliver on behalf of the Company and to attach the seal of the Company to any and all bonds and undertakings,and other writings obligatory in the nature thereof,and any such instrument executed by such Attorney(s)-in Fact shall be as binding upon the Company as if signed by an Executive Officer and sealed and attested to by the Secretary of the Company. I,Thomas E.Huibregtse,an Assistant Secretary of the United States Fidelity and Guaranty Company,do hereby certify that the foregoing are true excerpts from the Resolutions of the said Company as adopted by its Board of Directors on September 24,1992 and that these Resolutions are in full force and effect. I,the undersigned Assistant Secretary of the United States Fidelity and Guaranty Company,do hereby certify that the foregoing Power of Attorney is in full force and effect and has not been revoked. In Testimony Whereof,I have hereunto set my hand and the seal of the United States Fidelity and Guaranty Company, on this 20th day of January 19 98 •40741%7 F ;J Assistant Secretary staiutura -a, 3 1896 q ' 1 A?, FS 3(12/96)