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22-0223_ACE CAPITAL ENGINEERING_Staff Memo Bond ReductionMEMORANDUM February 23, 2022 TO: Maria Morris, City Clerk FROM: Thomas Toman, Public Works Directo SUBJECT: Grading Surety Reduction — B20-0050 29342 Spotted Bull Way This memorandum is authorization to reduce the Grading Bond numbered WFB5423158 for B20-0050, for a private residence, 29342 Spotted Bull Way, San Juan Capistrano. Said reduction is in the amount of $270,023.40. The reduction of the grading deposit has been approved by the Building Official. Please advise Old Republic Surety Company of the surety release. Attachment — Copy of Grading Surety Agreement cc: Building; file Z-)ORIGINAI 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 Engineerinq, 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 forthe 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 #820-0050 Page 1 of 10 61147.02100\33279758 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 as set forth in Exhibit "A", and the conditions as set 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 Grading Surety Agreement, Permit #B20-0050 Page 2 of 10 61147,02100\33279758 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. Developers 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 #B20-0050 Page 3 of 10 61147.02100\37279758 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 20_ CITOF S N UA CAPISTRANO ACE CAPITAL ENGINEERING By: C s Y i ing Official By: Dated: (%Ov Printed Name: Ali Mohammadi Approved as to Form: By: City Attorney Title: Director of Engineering, PhD By: Printed Name Title Grading Surety Agreement, Permit #B20-0050 Page 4 of 10 61147 02t00\33279758,1 EXHIBIT"A" SCHEDULE FOR COMPLETION OF IMPROVEMENTS Task 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 N/A 5. Walks, Railings & Fences N/A 6. A/C Paving N/A Grading Surety Agreement, Permit #B20-0050 Page S of 10 61147.021 00\33279758,1 EXHIBIT"B" CONDITIONS FOR COMPLETION OF IMPROVEMENTS 1. 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 rcflccts crosion 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 engineershall 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 Grading Surety Agreement, Permit #B20-0050 Page 6 of 10 61147 02100\33279758 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 02100133279756.1 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 A CACAPITAL. 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 SpUlted Bul! Wa San .loan Capistrano, CA ("the Work"); WHEREAS, the Work to be performed by Principal is more particularly set forth in that certain Grading Surety Agreement dated s, 20, ("Agreement"), which Agreement is incorporated herein by this reference; and WHEREAS, Principal is required by the Agreementto 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 or the State of — Califomw 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 300.02 , 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 al things stand to and abide by, and well and truly keep and perlorm the covenants. conditions, agreements, guarantees, warranties and provisions in the Agreement and any alteration thereof made as therein provided, on his or their pail, to he 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 (Its, its officers, employees, and agents, as thereiia stipulated in the Agreement, then til is obligation shall become mill and void; otherwise it shall be and rein ain in lull force and elTect. As part of the obligation secured hereby, and in addition to the: face amount speci red therefor, there shall be included costs and reasonable expenses and Zees, 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 plaits, profiles, and specifications related thereto, or to the Work to be perrarmed thereunder, Shall in any way affect its obligations on this bond, and it does hereby waive notice or 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 #820-0050 Page 8 of 10 61147 02100124835741 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 Attorney -in -Fact at , this 15th day of _Se ptemher 20 20 . Ace Principal By: birec�o✓ �/„y�Hera� President (print name) Old Republic Sure Com Surety - — TTT79 4 5101v# �,� By: ; 9 SEAL r t niei v -in -F Kevin Harvey 4 'w (print name) ,(:.E Al JACHE') v1\1 o1 E D3MF C 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 4820-0050 Page 9 of 10 61 147 02100\24835741 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 141- zol d before me, _ Daiki Ochoa Espinosa - Notary Public reriwa' ria a ori .-- personally appeared --�� who proveq to me on the basis of satisfactory evidence to be the person(s) whose name( are subscribed to the within instrument and acknowledged to me that di�/shelthey executed the same inli /her/their authorized capacity(ies), and that by t%/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. y, DA191 OCHUA hSPIPIt)5A WITNESS my hand a ffrcial seal.,;;; .t JNotary Publla • C3litornia e •+� < Orange County x Commission 0 217STS9 My Comm. Expires pan t, 2+XJ3� Notary—Public Signature (Notary Public Seal) INSTRUCTIONS FOR COMPLETING THIS FORM ADDITIONAL OPTIONAL INFORMATION Thisformcomplies with current California statutes regarding nolmy wording and, DESCRIPTION OF THE ATTACHED DOCUMENT ifneeded, should be completed and attached to the document. Acknowledgments fronr other states may be completed for documents being sent to that stare so long iA ll� t as the wording does not require the California notary to violate California nolmy I ' law. (ittte � eseripllon atla ed dmne.ntl f_ 1 61t.�/Y) Tulle a d peon of attached documeni continued) vItmiber of Pages 1---1Nocument Date CAPACITY CLAIMED BY THE SIGNER ❑ Individual (s) ❑ Corporate Officer' I Partner(s) Attorney -in -Fact Trustee(s) Other www,NotaryClasses.com 800-873-9865 • State and County information must be the State and County where the document signer(s) personally appeared before the notary public for acknowledgment. • Date of notarization must be the date that the signer(s) personally appeared which must also be the same date the acknowledgment is completed • The notary public must print his or her name as it appears within his or her commission followed by a comma and then your title (notary public). • Print the name(s) of document signer(s) who personally appear at the time of notarization • Indicate the correct singular or plural forms by crossing off incorrect forms (i.e. hatshe/ttrey,- is lore) or circling the correct forms. Failure to correctly indicate this information may lead to rejection of document recording. • The notary seal impression must be clear and photographically reproducible. impression must not cover text or lines. If seal impression smudges, reseal if a sufficient area permits, otherwise complete a different acknowledgment form. • Signature of the notary public must match the signature on file with the office of the county clerk Additional information is not required but could help to ensure this acknowledgment is not misused or attached to a different document. io Indicate Lille or type of attached document, number of pages and date. •9 Indicate the capacity claimed by the signer If the claimed capacity is a corporate officer, indicate the title (i,r. CEO, CFO, Secretary). • Securely attach this document to the signed document with a staple. Notary Acknowledgment A notary public or other officer completing this certificate verifies only the identity of the indivtdual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CA i 1 OF NIA COUNTY OF J"' A' f Notary ic,y On 2002 before me, '� Lj �y 1 [ G �C' � 1�+ r t4 L oto u : [c, personal) appeared , f who proved to me on the basis of satisfactory evirf A fn hr? the person() whose narne( [stare subscribed to the within instrument argd acknowledged tome t#[a�hejshe tliey executed the same it ti �Vhe heir authorized capacity(jX, and that by [ h94"r signature(!!4 on the instrument the persons,), or the entity upon hehalf of which the person(sj acted. ecuted the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. •ice ASHLEY NICOLE DEIAVF UM WITNESS my hand and official seal, 1 �1• COMM. #2314990 Notary Public-Ce111—is I RIVERSIDE COUNTY ' My Comm Expires DEC 09, 2023 0 n Ll Signature of Notary PubfiC 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 i rtle(s) ❑ Partner(s) ❑ Limited ❑ General ❑ Attorney -In -Fact ❑ Trustee(s) ❑ Guardian/Conservator ❑ Other: Signer is representing: Name of Person(s) Or Entity(ies) Grading Surety Agreement, Permit 4B20-0050 61147 02100124835741.2 7il[e od , at l� Document Number of Pages T Date of Document Signar(s) Other Than Named Above Page 10 of 10 OLD REPUBLIC SURETY COMPANY POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS: That OLD REPUBLIC SURETY COMPANY, a Wisconsin slack insurance corporation, does make, constitute and appoint: Kevin Harvey its true and lawful Attorney(s)-In-Fact, 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, recognizances or other written obligations In the nature thereof, (other than bail bonds, bank depository bonds, mortgage deficiency bonds, mortgage guaranty bonds, guarantees of Ins lament paper and note guaranty bonds, seH-insurance workers compensation bonds guaranteeing payment of benefits, asbestos abatement contract bonds, waste management bonds, hazardous waste remedlatlon 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 Attorneys -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 an February 18, 1982. This Power of Attorney is signed and sealed by facsimile under and by the authority of the following 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 attomeys-in-fact or agents with authority as defined or limited in the instrument evidencing the appointment in each case, for and on behalf of the company to execute and deliver and affix the seal of the company to bonds, undertakings, recognizances, and suretyship obligations of all kinds; and said officers may remove any such attomey-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 (i) 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 (if a seal be required) by a duly authorized attomey-in-fact or agent; or (iii) when duly executed and sealed (if a seal be required) by one or more attorneys -in -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 same 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 SEAL - O ly t Assistant seer President STATE OF WISCONSIN, COUNTY OF WAUKESHA - SS On this 24th day of May 2019 personally came before me, Nan P"It 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 sworn, 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. iDtfnL�'ij `• Notary Public 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. 54He F .. 8th April 2020 SEAL, o ; Signed and sealed at the City of Brookfield, WI this day of ree� ORSC 22262 (3-06) "• r Assislant Stl