20-0923_ACE CAPITAL ENGINEERING_Grading Surety AgreementORIGINAL
GRADING 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 Ace Capital Engineering,
hereinafter referred to as "Developer."
WITNESSETH
WHEREAS, City will issue Precise Grading Permit No B20-0050 to Developer to
construct certain designated improvements upon a portion of that real property located at
29342 Spotted Bull Way, San Juan Capistrano, CA, such work being commonly referred to
as Shayan Residence ("Project").
WHEREAS, San Juan Capistrano Municipal Code Section 8-2.08 requires the
posting of financial security to secure the faithful performance for the grading and
installation of related improvements connected with issuance of grading permits including
the construction of drainage and protection devices and any other corrective work to
remove and eliminate engineering and geological hazards.
WHEREAS, San Juan Capistrano Municipal Code Section 8-2.09 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 Project depicted on
the plans entitled "Grading Plan for the Proposed Accessory Structure at 29342 Spotted
Bull Way , San Juan Capistrano" as approved by the City Engineer, on 9/2/2020. The
grading permit and plans, which describe all the work to be constructed pursuant to this
Agreement, are on file in the office of the City's Building Official.
Grading Surety Agreement, Permit #B20-0050 Page 1 of 10
61147.02100133279758.1
2. Developer's Security. Developer shall provide a cash deposit, irrevocable
letter of credit, certificate of deposit or a bond by a duly authorized corporate surety subject
to the approval of the City Attorney, or as approved by the City Engineer, to secure
Developer's improvement obligations required under this Agreement ("Security").
The amount of the Security shall be $ 300,026 for all onsite grading improvements
as approved by the City Engineer. This Security shall also serve as security for restoration
of the Project site. A copy of the performance bond form, as approved by the City
Attorney, is attached hereto as Exhibit "C" and incorporated herein by this reference.
Copies of approved irrevocable letter of credit forms and certificate of deposit form are
available upon request.
3. Completion of Improvements. To ensure the protection of the public safety,
health and welfare, Developer shall construct the Project in accordance with the schedule
asset forth in Exhibit "A", and the conditions asset forth in Exhibit "B". Exhibits "A" and "B"
are attached hereto and incorporated herein by this reference.
4. Developer Default. In the event Developer does not complete the required
improvements, including erosion and silt control measures within the time required, using
Best Management Practices (BMP) in implementing a Water Quality Management Plan in
full compliance with Orange County National Pollutant Discharge Elimination System
(NPDES) Storm Water Implementation Agreement and San Juan Capistrano Municipal
Code Section 8-14, or abandons the Project site, or suspends work for more than twenty
(20) working days without written approval of the City, City shall have the right to
immediately declare a default and to make demand on Developer's surety for performance
of all obligations under this Agreement.
5. Restoration of Site. San Juan Capistrano Municipal Code Section 8-2.09
allows the City to require bonding as security to ensure against adverse aesthetic impacts
arising from incomplete grading, drainage and/or improvements which includes illicit non -
storm drain water discharge. The purpose of this security shall be to restore the property to
a safe and acceptable condition in the event the Developer defaults. This restoration shall
include but not be limited to the following:
A. Dismantle and/or demolish improvements;
B. Grade property to its original contours as shown on the approved
grading plans.
C. Remove all debris and construction materials from the site; and
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61147.02100133279758.1
D. Install erosion and silt control devices, including hydroseeding, to
insure a uniform vegetative cover, or equivalent stabilization
measures which include the use of such Best Management Practices
as blankets, fiber matrices, catch basin filters, or other erosion
resistant soil coverings or treatments to satisfaction of the Director of
Engineering and Building.
E. Protection and repair of existing public street, water, sewer and storm
drain system(s).
6. Attorney's Fees. Developer agrees to pay City such sum as the court may
judge 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 the 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 Project.
8. Liability. City, its officials, officers, employees, agents, and volunteers shall
not be liable for any injury to persons or property occasioned by reason of the acts or
omissions of Developer, its agents or employees in the performance of this Agreement.
Developer further agrees to protect, indemnify, and hold harmless City, its officials, officers,
employees, agents, and volunteers from any and all claims, demands, causes of action,
liability or loss of any sort, because of, or arising out of, the alleged acts or omissions of
Developer, its agents or employees in the performance of this Agreement, including all
claims, demands, causes of action, liability, or loss because of, or arising out of, in whole or
in part, the design or construction of the Project. This indemnification and agreement to
hold harmless shall extend to injuries to persons and damages or taking of property
resulting from the design or construction of said Project, and in addition, to adjacent
property owners as a consequence of the diversion of waters from the design or
construction of drainage systems, streets and other improvements.
SIGNATURES ON FOLLOWING PAGE
Grading Surety Agreement, Permit #1320-0050 Page 3 of 10
61147.02100133279758.1
SIGNATURE PAGE TO GRADING SURETY AGREEMENT
BETWEEN
THE CITY OF SAN JUAN CAPISTRANO AND
ACE CAPITAL ENGINEERING
IN WITNESS WHEREOF, the parties have executed this Agreement as of
OF SAN JUAN CAPISTRANO
Official
Dated:
Approved as to Form:
By:
City Attorney
20
ACE CAPITAL ENGINEERING
Printed Name: Ali Mohammadi
Title: Director of Engineering, PhD
By:
Printed
Grading Surety Agreement, Permit #820-0050 Page 4 of 10
61147 021 M03279759 1
Task
EXHIBIT"All
SCHEDULE FOR COMPLETION OF IMPROVEMENTS
Completion Date
1. Complete rough grading 10/10/2020
2. Start installation of onsite Storm drain work 10/15/2020
3. Start & Finish Soil Stabilization work TBD (1 week after No.2)
4. Curb & Gutter work NIA
5. Walks, Railings & Fences NIA
6. AIC Paving NIA
Grading Surety Agreement, Permit #1320-0050 Page 5 of 10
61147.021 00\33279759.1
EXHIBIT"B"
CONDITIONS FOR COMPLETION OF IMPROVEMENTS
The grading for this project shall be in strict conformance with the grading plans as
well as the San Juan Capistrano Municipal Code.
2. Grading operations shall commence within sixty (60) calendar days after issuance
of Grading Permit.
Winter grading will be conducted in strict accordance with the dynamic erosion and
silt control plan submitted by the Developer, and approved by the City. This erosion
and silt control plan reflects erosion and silt 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 and silt control plans reflecting current
conditions of grading shall be submitted within ten (10) days of cessation of work.
These plans shall:
1. Identify all pollutant sources including sources of sediment that may affect
the quality of storm water discharges associated with the construction
activity.
2. Include the erosion and sediment control planting and hydroseeding to
insure a uniform vegetative cover or equivalent stabilization measures which
include the use of such Best Management Practices as blankets, fiber
matrices, catch basin filters or other erosion resistant soil covering or
treatments to the satisfaction of the City Engineer.
3. Suspension in excess of twenty (20) working days of work authorized by approved
grading plans and grading permit for subject property, including erosion and
sediment control measures and landscaping and irrigation, shall constitute default of
this agreement unless Developer has received approval from the City authorizing a
suspension in excess of twenty (20) days.
4. 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, shall be
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61147.02106133279758.1
filed with the Building Official. This interim report shall conform to the grading code
requirements for final compaction reports.
5. 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.
6. Grading operations suspended during the rainy season shall be resumed no later
than 15 days from date of suspension termination unless the Developer has
received approval from the City authorizing a suspension in excess of fifteen (15)
days.
7. Installation of interim erosion and sediment 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 and sediment controls devices, planting,
landscaping and irrigation systems shall be installed prior to final inspection of the
grading permit.
8. All work shall be performed in strict observation of the Hours of Operation in
accordance with San Juan Capistrano Municipal Code Section 8-1.03.
9. Contractor shall adhere to conditions of haul route permit and encroachment permit
issued by the City Engineer.
10. Parking for construction crew is to be on-site.
11. Exoneration of Security: Developer's security shall be reduced to 90% upon signoff
of precise grading permit. The remaining 10% of the security given by Developer
shall not be released until the expiration of the warranty period and until any claims
filed during the warranty period have been settled. Nothing herein shall limit the
City's rights or the Developer or surety's obligations under this Agreement.
12. Warranty Period: 1 year from permit signoff by City.
Grading Surety Agreement, Permit #B20-0050 Page 7 of 10
61147.02100\33279758.1
BOND NO. WFB5423158
INITIAL PREMIUM: $9,015.78
SUBJECT TO RENEWAL
GRADING SURETY AGREEMENT
PERFORMANCE BOND
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS the City of San Juan Capistrano ("City") and ACE CAPITAL ENGINEERING
("Principal"), have executed an agreement for work consisting of, but not limited to, the furnishing
of all labor, materials, tools, equipment, services, and incidentals for all grading and installation of
related improvements for located at 29342 Spotted Bull Way, San Juan Capistrano, CA ("the
Work");
WHEREAS, the Work to be performed by Principal is more particularly set forth in
that certain Grading Surety Agreement dated -20 ("Agreement"), which
Agreement is incorporated herein by this reference; and
WHEREAS, Principal is required by the Agreement to provide a good and sufficient
bond for performance of the Agreement, and to guarantee and warranty the Work performed
thereunder.
NOW, THEREFORE, Principal and Old Republic Surety Company as surety
("Surety"), a corporation organized and existing under the laws of the State ofCalif rnia and
duly authorized to transact business under the laws of the State of California, are held and firmly
bound unto City in the sum of Three hundred thousand and twenty six dollars and no cents
300,026.00), for which amount well and truly to be made, we bind ourselves, our heirs, executors,
administrators, successors or assigns, jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION is such, that if Principal, his or its heirs,
executors, administrators, successors or assigns, shall in all things stand to and abide by, and well
and truly keep and perform the covenants, conditions, agreements, guarantees, warranties and
provisions in the Agreement and any alteration thereof made as therein provided, on his or their part,
to be kept and performed at the time and in the manner therein specified, and in all respects
according to their intent and meaning, and shall indemnify and save harmless City, its officers,
employees, and agents, as therein stipulated in the Agreement, then this obligation shall become null
and void; otherwise it shall be and remain in full force and effect.
As part of the obligation secured hereby, and in addition to the face amount specified
therefor, there shall be included costs and reasonable expenses and fees, including reasonable
attorney's fees, incurred by City in successfully enforcing such obligation, all to be taxed as costs
and included in any judgment rendered.
Surety, for value received, hereby stipulates and agrees that no change, extension of
time, alteration, or addition to the terms of the Agreement, or to any plans, profiles, and
specifications related thereto, or to the Work to be performed thereunder, shall in any way affect its
obligations on this bond, and it does hereby waive notice of any such change, extension of time,
alteration, or addition to the terms of the Agreement, or to the Work or to the specifications.
Grading Surety Agreement, Permit #620-0050 Page 8 of 10
61147.02100\24835741 2
IN WITNESS WHEREOF, the seal, if any, and signature of the Principal is hereto
affixed, and the corporate seal and the name of the Surety is hereto affixed and attested by its duly
authorized Attomey-in-Fact at ,this 15th dayof September
20 20 .
Ace Caf;j'I Eny'nev'^f Old Republic Surety Company
Principal Suret � •
By: dSEAL
NeC�o/ o� Eunne� Phn By: SFAL ;f
President omey m -Fa
Al' M hhad- Kevin Harvey
(print name) (print name)
.f,CE ATTACr1E7
• -$1 NOW LEDGMEHT
NOTE: APPROPRIATE NOTARIAL ACKNOWLEDGMENTS OF EXECUTION BY
PRINCIPAL AND SURETY, AND A COPY OF THE POWER OF
ATTORNEY TO LOCAL REPRESENTATIVES OF THE SURETY MUST BE
ATTACHED TO THIS BOND.
Grading Surety Agreement, Permit #820-0050 Page 9 of 10
M 147021 WQ483574 t 2
CALIFORNIA ALL- PURPOSE
CERTIFICATE OF ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity
of the individual who signed the document to which this certificate is attached,
and not the truthfulness, accuracy, or validity of that document.
State of California }
County of Orange }
On °i11ffl7DZ.e beforeme, Daiki Occhoa Espinosa -Notary Public ,
personally appeared /(1:
who prove_rr(( to me on the basis of satisfactory evidence to be the person(s) whose
name(srWare subscribed to the within instrument and acknowledged to me that
(56/she/they executed the same in &/her/their authorized capacity(les), and that by
di7$/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
DANNottr PubII%GHOA 5PINOSA
WITNESS my hen I. 1 Notary Pube only OranBc#unry
Jf_ Comssion • 2178159 >
My Comm.iExpires Jan 1.4041
Notary -Public Signature (NO., Public Soon
ADDITIONAL OPTIONAL INFORMATII
DESCRIPTION OF THE ATTACHED DOCUMENT
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Number of Pages Document Date
CAPACITY CLAIMED BY THE WNER
❑ Individual (s) ae�/
❑ C0
rporate0
❑ artner(s)
❑ Attorney -in -Fact
❑ Trustee(s)
❑ Other
twmr. NouryClasses.com 500 873 9865
INSTRUCTIONS FOR COMDd
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Notary Acknowledgment
A notary public or other officer completing this certificate
verifies only theidentity of the individual who signed the
document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
STATE OF CA OMNIA
COUNTY OFtc
b'e�°j1( t� - vv CU9
b�jOn J� 20020 before me, e Qi" Y1�Er''Notary Plic personally
appearedKevin , who proved to me on the basis of satisfactory
evidence to be the person(, whose name( is subscribed to the within instrument a d acknowledged to me
tha he sHekhey executed the same in i r authorized capacity(it , and that by i he0114eir signatureK
on the instrument the personN, or the entity upon behalf of which the person(sk acted, a cuted the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is
true and correct.
ASHLEY NICOLE DELAVERGNE
COMK MUM
• notary PWW4. cardomio h
~ RNERSIDECOUNTY
My Comm. Up= DEC. 09.2023
Signature of Notary 0ubfic
WITNESS my hand and official seal.
OPTIONAL
Though the Information below Is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
❑ Individual
❑ Corporate Officer
Title(s)
❑ Partner(s) ❑ Limited
❑ General
❑ Attorney -In -Fact
❑ Trustee(s)
❑ Guardian/Conservator
❑ Other:
Signer is representing:
Name Of Person(s) Or Entity(fes)
Above
Grading Surety Agreement, Permit #1320-0050 Page 10 of 10
61137.021001—)4835741.2
* OLD REPUBLIC SURETY COMPANY
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS: That OLD REPUBLIC SURETY COMPANY. a Wisconsln stock insurance corporation, does make, constitute and
appoint:
Kevin Harvey
its true and lawful Attomey(s)-in-Fad, with full power and authority for and on behalf of the company as surety, to execute and
deliver and affix the seal of the company thereto (if a seal is required), bonds, undertakings, moognizances or other written obligations In the nature thereof,
(other than ball bonds, bank depository bonds, mortgage deAciency bonds, mortgage guaranty bonds, guarantees of Installment paper and note
guaranty bonds, sofl-insurance workers compensation bonds guaranteeing payment of benefits, asbestos abatement contract bonds, waste
management bonds, hazardous waste remedlatfon bonds or black lung bonds), as follows:
ALL WRITTEN INSTRUMENTS
- Bond# WFB5423158 -
and to bind OLD REPUBLIC SURETY COMPANY thereby, and all of the acts of said Attomeys-in-Fact, pursuant to these presents, are ratified and confirmed.
This appointment Is made under and by authority of the board of directors at a special meeting held on February 18, 1982.
This Power of Attorney is signed and seated by facsimile under and by the authority of the follawing resolutions adopted by the board of directors of the OLD
REPUBLIC SURETY COMPANY on February 18,1982.
RESOLVED that, the president, any vice-president or assistant vice president, in conjunction with the secretary or any assistant secretary, may appoint
attorneys -in fad or agents with authority as defined or limited In the instrument evidencing the appointment to each case, for and on behalf of the company to
execute and deliver and affix the seal of the company to bonds, undertakings, mcognizanoss, and suretyship obligations of all kinds; and said officers may
remove any such attorney-in-fact or agent and revoke any Power of Attorney previously granted to such person.
RESOLVED FURTHER, that any bond, undertaking, recognizance, or suretyship obligation shall be valid and binding upon the Company
(1) when signed by the president, any vice president or assistant vice president, and attested and sealed (if a seal be required) by any secretary or assistant
secretary; or
(ii) when signed by the president, any vice president or assistant vice president, secretary or assistant secretary, and countersigned and sealed (it a seal be
required) by a duly authorized attorney -In -fact or agent: or
(ill) when duly executed and seated (if a seal be required) by one or more attorneys -tri -fact or agents pursuant to and within the limits of the authority
evidenced by the Power of Attorney Issued by the company to such person or persons.
RESOLVED FURTHER that the signature of any authorized officer and the seal of the company may be affixed by facsimile to any Power of Attorney or
certification thereof authorizing the execution and delivery of any bond, undertaking, recognizance, or other suretyship obligations of the company; and such
signature and seal when so used shall have the some force and effect as though manually affixed.
IN WITNESS WHEREOF. OLD REPUBLIC SURETY COMPANY has caused these presents to be signed by its proper officer, and its corporate seal to be
affixed this 24th day of May 2019
OLD REPUBLIC SURETY COMPANY
9 SEAL � a
Assistant So-a4m.0011 President
STATE OF WISCONSIN, COUNTY OF WAUKESHA - SS
On this 24th day of May 2019 personally came before me, Alan Pay1ic
and Kevin Abitz to me known to be the individuals and officers of the OLD REPUBLIC SURETY COMPANY
who executed the above instrument, and they each acknowledged the execution of the same. and being by me duly swam, did severally depose and say: that
they are the said officers of the corporation aforesaid, and that the seal affixed to the above Instrument is the seal of the corporation, and that said corporate seal
and their signatures as such officers were duly affixed and subscribed to the said instrument by the authority of the board of directors of said corporation.
�TA4y &WV--
—rAAMttVC •
�raO'F Notary Pwft
My commission Expires: September 28, 2022
CERTIFICATE (Expiration of notary's commission does not invalidate this Instrument)
I, the undersigned, assistant secretary of the OLD REPUBLIC SURETY COMPANY, a Wisconsin corporation, CERTIFY that the foregoing and attached
Power of Attorney remains in full force and has not been revoked; and furthermore, that the Resolutions of the board of directors set forth in the Power of
Attorney, are now in force.
o ' SEAL > s Signed and sealed at the City of Brookfield, WI this 8th day of April 2020
ORSC 22282 rim) "�•• ` r Assistant Sobaaiif