04-0831_SJD PARTNERS, LTD._Surety AgreementSURETY AGREEMENT
THIS AGREEMENT is made by and between the CITY OF SAN JUAN CAPISTRANO, a
municipal corporation, hereinafter referred to as the "City" and SJD Partners, Ltd., a
California Limited Partnership, referred to as "Developer'.
WITNESSETH
WHEREAS, City will issue Grading Permit No. 48472 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 of Reservoir Canyon, commonly referred to as 760 Zone SC -04
Water Reservoir and Access Road from Calle Delgado, San Juan Capistrano.
WHEREAS, San Juan Capistrano Municipal Codes Section 8-2.08 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
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 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 Performance Bond by Arch
Insurance Co., a duly authorized corporate surety, Bond No. SU5010032, subject to the
approval of the City Attorney, to secure Developer's improvement obligations required
under this agreement.
The amount of the bond shall be $1,198,048.00 for that work described in Exhibit "A". This
security of $1,198,048.00 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".
3. Completion of Improvements. To ensure the protection of the public safety,
health and welfare, Developer shall construct the improvements described in Exhibit "N' 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 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
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 8-2.09
allows the City to require bonding as security to ensure against adverse aesthetic impacts
arising from uncompleted grading, drainage and/or improvements which includes illicit non -
storm drain water discharge. The purpose of this bonding shall be to restore the propertyto
its original condition if 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 grading plan
referred to in Exhibit "A';
C. Remove all debris and construction materials from the site; and
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.
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 anyjudgment 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.
In witness whereof, the parties have executed this agreement as of
f -3/ , 202!!Lat San Juan Capistrano, California.
LJ
Develo
By: Ron Free an
Principal, SJD Partners, LTD.
Approved as to Form:
By: John haw
City Attorney
City of Ian Juan Capistrano
By: aniel c rland
Building Official
EXHIBIT "A"
760 Zone SC -04 Reservoir for Pacifica San Juan Project
Item 1: Construction of all on-site grading (cut, fill and slope stabilization) operations in
accordance with Grading Permit No. 48472 and the Developer's plans and
supporting documents as listed below:
(A) Grading Plan for 760 Zone SC -04 Water Reservoir, dated June 29, 2004,
prepared by Hunsaker and Associates, Douglas L. Staley, RCE No. 38796.
(B) Geotechnical Report for 760 Zone SC -04 Water Reservoir, dated April 23,
2004, prepared by Pacific Soils Engineering, Inc., Ronald A. Reed RCE
No. 53581.
Item 2: Construction of all on-site improvements in accordance with Grading Permit
No. 48472 and Developer's grading plans referenced in Item 1 above, including,
but not limited to: driveways, parking areas, retaining walls, erosion and silt
control, terrace drains, down drains, sub -drains, area drainage systems, and
private storm drain systems not a part of Developer's Improvement Plans filed
with the City Engineer.
EXHIBIT "B"
SCHEDULE FOR COMPLETION OF IMPROVEMENTS
Completion Date
August 2005
March 2005
March 2005
Task
Rough Grade Certification
Hydroseeding and Interim Irrigation
Landscape Planting
EXHIBIT "C"
CONDITIONS FOR COMPLETION OF IMPROVEMENTS
1. The grading forthis project shall be in strict conformance with the grading plans and
related documents as described in Exhibit "A" and Grading Permit No. 48472
2. Grading operations shall commence within fourteen (14) calendar days after
issuance of Grading Permit No. 48472.
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. A sequence plan of grading operations shall be approved by the City prior to the
issuance of any grading permit for this project. Any variation or deviation in the
sequence of operations must be recommended, in writing, by the supervising civil
and soils engineers and approved by the Building Official prior to performing any
work related to the variation or deviation.
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
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.
7. 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.
8. Developer shall provide an approved Native American monitor during all phases of
grading and foundation excavation and submit a final Native American report to the
City upon completion of the grading.
9. Developer shall provide an approved Paleontologist to monitor all phases of grading
and foundation excavation and submit a final Paleontological report to the City upon
completion of the grading.
10. 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 control devices, planting,
landscaping and irrigation systems shall be installed prior to final inspection of the
grading permit.
11. 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.
12. Contractor shall adhere to conditions of haul route permit and encroachment permit
issued by the City Engineer.
13. Parking for construction crew is to be on-site.
14. Developer shall provide all traffic control measures as required for safe vehicular
movement and shall secure an encroachment (haul -route) permit from the
Engineering Department prior to issuance of the grading permit.
0
PERFORMANCE BOND
BOND ISSUED IN TRIPLICATE
BOND NUMBER: SU5010032
PREMIUM: $11,980.00
KNOW ALL MEN BY THESE PRESENTS, that SJD PARTNERS, LTD., A CALIFORNIA
LIMITED PARTNERSHIP as Principal (hereinafter called
"Contractor"), and ARCH INSURANCE COMPANY
as Surety (hereinafter called "Surety"), are held and firmly bound unto the City of San Juan
Capistrano, as obligee (hereinafter called "City"), in the amount of ONE MILLION ONE
HUNDRED NINETY-EIGHT THOUSAND FORTY-EIGHT 6 NO/100--- Dollars($ 1,198,048.00 ---
for payment whereof Contractor and Surety bind themselves, their heirs, executors,
administrators, successors and assigns, jointly and severally, fairly by these presents.
WHEREAS, Contractor has, by written agreement dated
entered into a (describe agreement): FOR GRADING OF THE 760 ZONE RESERVOIR FOR THE
PACIFICA SAN JUAN PROJECT
which contract is, by reference, made a part hereof.
NOW, THEREFORE, the condition of this obligation is such that, if Contractor shall
promptly and faithfully perform said agreement, then this obligation shall be null and void;
otherwise it shall remain in full force and effect. Surety waives whatever legal right it may
have to require that a demand be made first against the Contractor in the event of default.
BE IT FURTHER RESOLVED, that:
1. As a part of the obligation secured hereby, and in addition to the face amount
specified, 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.
c: 1my81esVofms\PerfonnanceBond.wpd -1- 05110/00
2. Said Surety, forvalue received, hereby stipulates and agrees that no change,
extension of time, alteration, or modification of the contract documents, or of the work to
be performed thereunder, shall in any way affect its obligations or this bond, and it does
hereby waive notice of any such change, extension of time, alteration or modification of the
contract documents or of work to be performed thereunder.
Executed this 20TH dayof AUGUST 209L,
ORANGE , California.
APPROVED AS O FORM:
By
John R. Shaw, City Attorney
PRINCIPAL SJD LIMITED PARTNERTtJERSHLTD A CALIFORNIA
BY: SJ LOPMENT CORP.
A A I RNIA CORPORATION
(NOTARIZATION AND SEAL)
SURETY
ARCH INSURANCE C NPAN
BY: �� `
(NOTARIZATION AND SEAL)
D.S. PICARD, ATTORNEY-IN-FACT
c:Ynyfile Vo \Pe,f"manm6mampa -2- 05170100
TOTAL P.03
CALIFAHPIIA ALL-PUKYU,
State of CALIFORNIA
County of ORANGE
On AUGUST 20, 2004
DATE
A61\ryVrOLCL#UMr-M I
before me, CYNTHIA S. WOZNEY, NOTARY PUBLIC
NAME, TITLE OF OFFICER - E.G., -JANE DOE. NOTARY PUBLIC
personally appeared D.J. PICARD
I
NE(S) OF SIGNER(S)
AM
® personally known to me - OR - ❑ proved to me on the basis of satisfactory evidence
to be the person(s) whose name(s) iskm
subscribed to the within instrument and ac-
knowledged to me that he/sbudhW executed
the same in his/eft authorized
.> capacity(, and that by his/ km4x
c S-wort+EY signature(s) on the instrument the person(a),
c,(,MM.#I3d225S f,
f Or. PlJbfic-CaliforniZ. or the entity upon behalf of which the
ORAAGE COUNITY ,neE personM acted, executed the instrument.
e ' fifty Gomm. rx{2. dune 2�, �+>
WITNESS my hand and official seal.
SM,NAT El♦ OF NO tRV
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons retying on the document and could prevent
fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER
❑ INDIVIDUAL
❑ CORPORATE OFFICER
TmEm
®
❑ PARTNER(S) ❑ LIMITED
❑ GENERAL
ATTORNEY-IN-FACT
❑ TRUSTEE(S)
❑ GUARDIANICONSERVATOR
❑ OTHER:
SIGNER IS REPRESENTING:
NAME OF PERSONS) OR ENTRY(IES)
ARCH INSURANCE COMPANY
DESCRIPTION OF ATTACHED DOCUMENT
GRADING -
PERFORMANCE BOND
TITLE OR TYPE OF DOCUMENT
ONE
NUMBER OF PAGES
AUGUST 20, 2004
N/A
DATE OF DOCUMENT
SIGNER(S) OTHER THAN NAMED ABOVE
ALL PURPOSE ACKNOWLEDGMENT
STATE OF CALIFORNIA
COUNTY OF ORANGE
On August 24th, 2004 before me, Tracie Thompson, a Notary Public, personally appeared Bruce Elieff, personally
known to me ( ) the person(&) whose name(s) Were
subscribed to the within instrument and acknowledged to me that he/sheAhey executed the same in hisIhAF4heir
authorized capacity(i , an that by his/her/their signature(6) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signatur
TRACIE THOMPSON
Commission # 1383422
;-j Notary Public - California z.
Orange County
My Comm. Expires Nov 5, 2006
(NOTARY SEAL)
ATTENTION NOTARY: Although the information requested below is OPTIONAL, it could prevent fraudulent attachment
of this certificate to another document.
THIS CERTIFICATE MUST BE ATTACHED TO Title of Document Type: SJD Partners, Ltd. Bond for Grading
Performance Bond THE DOCUMENT DESCRIBED AT RIGHT is 2
Pages: Signers) Other Than Named Above n/a
POWER OF ATTORNEY
Know All Men By These Presents:
That the Arch Insurance Company, a corporation organized and existing under the laws of the State of Missouri, having its
principal office in Kansas City, Missouri (hereinafter referred to as the "Company") does hereby appoint
Todd M. Rohm, Cathy S. Kennedy, Sejal P. Lange, D. J. Picard and Beata A. Sensi of Orange, CA (EACH)
its true and lawful Attomey(s}in-Fact, to make, execute, seal, and deliver from the date of issuance of this power for and
on its behalf as surely, and as its act and deed:
Any and all bonds and undertakings
EXCEPTION: NO AUTHORITY is granted to make, execute, seal and deliver bonds or undertakings that guarantee the
payment or collection of any promissory note, check, draft or letter of credit
This authority does not permit the same obligation to be split into two or more hands in order to bring each such bond
Within the dollar limit of authority as set forth herein.
The Company may revoke this appointment at any time.
The execution of such bonds and undertakings in pursuance of these presents shall be as binding upon the said
Company as fully and amply to all intents and purposes, as if the same had been duty executed and acknowledged by its
regularly elected officers at its principal office in Kansas City, Missouri.
This Power of Attorney is executed by authority of resolutions adopted by unanimous consent of the Board of Directors of
the Company on March 3, 2003, true and accurate copies of which are hereinafter set forth and are hereby certified to by
the undersigned Secretary as being in full force and effect:
"VOTED, That the Chairman of the Board, the President, or any Vice President, or their appointees designated in writing
and filed with the Secretary, or the Secretary shad have the power and authority to appoint agents and aftomeys:m.fact,.
and to authorize them to execute on behalf of the Company, and attach the seal of the Company thereto, bonds and
undertakings, reoognizances, contracts of indemnity and other writings, obligatory In the nature thereof, and any such
officers of the Company may appoint agents for acceptance of process.'
This Power of Attorney is signed, sealed and certified by facsimile under and by authority of the following resolution
adopted by the unanimous. consent of the Board of Directors of the Company on March 3, 2003:
VOTED, That the signature of the Chairman of the Board, the President, or any Vice President, or their appointees
designated in writing and filed with the Secretary, and the signature of the Secretary, the seal of the Company, and
certifications by the Secretary, may be affixed by facsimile on any power of attorney or bond executed pursuant to the
resolution adopted by the Board of Directors. on March 3, 2003, and any such power so executed, sealed and certified
with respect to any bond or undertaking to which it is attached, shall continue to be valid and binding upon the Company.
OOML0o13 00 03 03
Page 1 of 2 Printed in U.S.A.
In Testimony Whereof, the Company has caused this instrument to be signed and its corporate seal to be affixed by their
authorized officers, this 1st day of April , 20 03
Attested and Certified
5otance C
c o
OOnOIIATF a9
e s,.0
'171 t
/ Mlswtld
Joseph S. L I, Corporate Secretary
STATE OF CONNECTICUT SS
COUNTY OF FAIRFIELD SS
Arch Insurance Company
Thomas P. Luckstone, Vice President
Melissa B. Gilligan, a Notary Public, do hereby certify that Thomas P. Luckstone and Joseph S. Labell personally known
to me to be the same persons whose names are respectively as Vice President and Corporate Secretary of the Arch
Insurance Company, a Corporation organized and existing under the laws of the State of Missouri, subscribed to the
foregoing instrument, appeared before me this day in person and severally acknowledged that they being thereunto duly
authorized signed, sealed with the corporate seal and delivered the said instrument as the free and voluntary act of said
corporation and as their own free and voluntary acts for the uses and purposes therein set forth.
OFnC6Y- SEAL
LSSA B. M11GMf,IlotaryPut*toe of CXf4cW ��M IrX/YLl/I'`/
Melissa B. Gilligan, Notary Public
My commission expires 2-28-05
CERTIFICATION
I, Joseph S. Wbell. Comorate Secretary of the Arch Insurance Company, do hereby certify that the attached Power of
Attorney dated April 1, 2003 on behalf of the person(s) as listed above is a true and correct copy and that
the same has been in full force and effect since the date thereof and is In full force and effect on the date of this certificate:
and I do further certify that the said Thomas P. Luckstone, who executed the Power of Attorney as Vice President, was on
the date of execution of the attached Power of Attorney the duly elected Vice President of the Arch Insurance Company.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed the corporate seal of the Arch Insurance
Company on this 20TH day of AUGUST 20 04 _
Joseph S ell, Corporate Secretary
This Power of Attorney limits the acts of those named therein to the bonds and undertakings specifically named therein
and they have no authority to bind the Company except in the manner and to the extent herein stated.
Home Office: Kansas City, MO
00ML0013 00 03 03
Page 2 of 2 Printed in U.S.A.
ARCH Insurance Company ARCH Surety
NOTICE — DISCLOSURE OF TERRORISM PREMIUM
In accordance with the Terrorism Risk Insurance Act of 2002, we are providing this
disclosure notice for bonds on which Arch Insurance Company is the surety.
DISCLOSURE OF PREMIUM
The portion of the premium attributable to coverage for terrorist acts certified under the
Act is Zero Dollars ($0.00).
DISCLOSURE OF FEDERAL PARTICIPATION IN PAYMENT OF TERRORISM
LOSSES
The United States will pay ninety percent (90%) of covered terrorism losses exceeding
the applicable insurer deductible.