1998-0123_KAISER FOUNDATION HEALTH PLAN INC_Surety Agreement • Y ' 1� ., •
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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.
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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
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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,
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(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,
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