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01-0913_FRIESS COMPANY BUILDERS, INC._Surety AgreementI i 0 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 Friess Company Builders, Inc., a California Corporation, referred to as "Developer'. WITNESSETH WHEREAS, City will issue Grading Permit No. 44505 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 30300 Camino Capistrano, commonly referred to as Serra Vista Office Building. 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 "N' are incorporated herein by reference. r 2. Developer's Security. Developer shall provide a Performance Bond #3SM 990 765 00 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 $13,287.50 for that work described in Exhibit "A". This security of $13,287.50 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 "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 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 property to 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 measu res which include the use of such Best Management Practices as blankets, fiber matrices, catch basin filters, 0 a 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 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. In witness whereof, the parties have executed this agreement as of September 13, 2001 at San Juan Capistrano, California. Developer City of San Juan Capis ano all I Friess Company Bu' ers, Inc. By: Daniel W. McFa and Building Official By: Daniel Fri4ss \ Secretary/Treasurer Appro as to orm: By: John Shaw City Attorney 0 0 EXHIBIT "A" Serra Vista Office Building 30300 Camino Capistrano Item 1: Construction of all on-site grading (cut, fill and slope stabilization) operations in accordance with Grading Permit No. 44505 and the Developer's plans and supporting documents as listed below: (A) Grading Plan for (Project Name) Serra Vista Office Building, dated July 27, 2001, prepared by (Firm) Charles Hartman & Associates, (Engineer) Charles O. Hartman, RCE No. 29243. (B) Geotechnical Report for (Project Name) Serra Vista Office Building, dated February 28, 2001, prepared by (Firm), Hetherington Engineering, Inc., (Engineer) Paul A. Bogseth CEG 1153 and Mark D. Hetherington, GE 397. Item 2: Construction of all on-site improvements in accordance with Grading Permit No. 44505 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. Item 4: Construction and placement of landscaping and irrigation in accordance with approved plans for (Project Name) Serra Vista Office Building as included in the above plans. 0 EXHIBIT "B" I] SCHEDULE FOR COMPLETION OF IMPROVEMENTS Completion Date November 1, 2001 May 1, 2002 Task Rough Grade Certification Landscape Irrigation May 15, 2002 Landscape Planting 0 EXHIBIT "C" CONDITIONS FOR COMPLETION OF IMPROVEMENTS A. 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. 44505. B. Grading operations shall commence within fourteen (14) calendar days after issuance of Grading Permit No. 44505. 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. C. 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. 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, 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 termination. 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. If deemed necessary, the 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. H. 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. I. 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. J. Contractorshall adhere to conditions of haul route permit and encroachment permit issued by the City Engineer. K. Parking for construction crew is to be on-site. 32400 PASEO ADELANTO SAN JUAN CAPISTRANO, CA 92675 (949) 493-1171 (949) 493-10531" www.sanjuancaplstrano.org January 17, 2005 dww► mmnrourtn • aunusxao � 196) 1776 Mr. Michael A. Coutu American Motorists Insurance Company/Kemper Surety Underwriting One Corporate Drive, C-2 Long Grove, IL 60049-0001 MEMBERS OF THE CITY COUNCIL SAM ALLEVATO DIANE L BATHGATE WYATT HART JOE SOTO DAVID M. SWERDLIN Re: Release of Bond — Performance Bond #3SM 990 765 00 ($13,287.50)/Serra Vista Office Building, 30300 Camino Capistrano Dear Mr. Coutu: A Performance Bond was received by the City of San Juan Capistrano on September 10, 2001, provided by Friess Company Builders, Inc. BOND NO. #3SM 990 765 00 AMOUNT $13,287.50 GRADING PERMIT NO 40384 — Grading Plan for Tract 13823 This letter serves as notification that the City of San Juan Capistrano hereby fully and forever releases and discharges American Motorists Insurance Company/Kemper Surety Underwriting from any and all liability under the abovementioned bond number -- per instruction of the Building Official. The original — released — document is attached. If you have any questions, please do not hesitate to call me at (949) 443-6308. truly yours, CMC — as noted cc: Dan McFarland, Development Services Manager/Building Official Friess Company Builders San Juan Capistrano: Preserving the Past to Enhance the Future FIRST TERM PREMIUM • IS FULLY EARNED Bond: #3SM 990 765 00 PERFQRMCE BOND Premium: $266.00/2 Yrs. KNOW ALL MEN BY THESE PRESENTS, that FRIESS COMPANY BUILDERS, INC.. as Principal (hereinafter called "Contractor"), and American Motorists 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 THIRTEEN THOUSAND TWO HUNDRED EIGHTY—SEVEN AND 50/100 Dollars($13,2S7-50 ) 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 AUG UST 31, 2001 entered into a (describe agreement): GRADING CONTRACT FOR IMPROVEMENTS AT 30300 CAMINO CAPISTRANO (SERRA VISTA OFFICE BUILDING 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 perforin 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 attomeys fees, incurred by City in successfully enforcing such obligation, all to be taxed as costs and included in any judgment rendered. RELEASED c:VnyNaMfom Parbr nceBond.wpd -t W � 0510/00 DATE 09-06-01 16:03 RECEIVED FROM:[ / P.02 2. Said Surety, for value 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. Executedthis 10th dayof SEPTEMBER 200 l,at SAN JUAN cAP I sTR AN o California. PRINCI Friess ompany Builders, Inc. (NOTARIZATION ND SEAL) APPROVED AS TO FORM: By Johnha , ity'Attomey SURETY American Motorists Insurance Company (NOTARIZATION Michael E. Cundiff/ cAmyfihnkfp s%Perform2nce9axl.wpd KN t 09-06-e1 16:03 RECEIVED FROM: P.03 CALIFORNIA ALL - &POSE ACKNOWLEDGMES State of California County of Orange On SEP 1 U 2001 personally appeared ® Personally known to me . or - ❑ �ISUSAN E. MORALES I� o,IlCOMM 01166606 NOTARY PJ8LIC CALIFORNIA90 ORANGE COUNTY wr My Comm. Exp. Dec. 25, 2001 if before me, Susan E. Morales/Notary Public NAME, TITLE OF OFFICER Michael E. Cundiff NAME OF SIGNER(S) Proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that helshelthey executed the same in hislherltheir authorized capacity(ies), and that by his/her/their signature(s) 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. 4. m (SIGNATURE OFNOTARY) OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER ❑ INDIVIDUAL/OWNER ❑ 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(IES) DESCRIPTION OF ATTACHED DOCUMENT Lumbermens Mutual Casualty Company American Motorists Insurance Company American Manufactures Mutual Insurance Company TITLE OR TYPE OF DOCUMENT NUMBER OF PAGES DATE OF DOCUMENT lcLmPLR. • Is Home Office: Long Grove, IL 60049 POWER OF ATTORNEY Know All Men By These Presents: That the Lumbennens Mutual Casualty Company, the American Motorists Insurance Company, and the American Manufacturers Mutual Insurance Company, corporations organized and existing under the laws of the State of Illinois, having their principal office in Long Grove, Illinois, (hereinafter collectively referred to as the "Company") do hereby appoint Michael E. Cundiff of Orange, California""""""""""' their true and lawful agent(s) and attorney(s)-in-fact, to make, execute, seal, and deliver during the period beginning with the date of issuance of this power and ending on the date specified below, unless sooner revoked for and on its behalf as surety, and as their act and deed: Any and all bonds and undertakings provided the amount of no one bond or undertaking exceeds TWO MILLION DOLLARS ($2,000,000.00)",..." ....„".."." """ ” """""""""""""""""' EXCEPTION: NO AUTHORITY is granted to make, execute, seal and deliver any bond or undertaking which guarantees 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 bonds in order to bring each such bond within the dollar limit of authority as set forth herein. This appointment may be revoked at any time by the Company. The execution of such bonds and undertakings in pursuance of these presents shall be as binding upon the said CO. "ny as filly End amply to all intents and purposes, as if the same had been duly executed and acknowledged by their regularly elected officers at their principal office in Long Grove, Illinois. THIS APPOINTMENT SHALL CEASE AND TERMINATE WITHOUT NOTICE AS OF December 31. 2001 This Power of Attorney is executed by authority of resolutions adopted by the Executive Committees of the Boards of Directors of the Company on February 23, 1988 at Chicago, Illinois, 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 shall have the power and authority to appoint agents and attomeys-in-fact, and to authorize them to execute on behalf of the Company, and attach the seal of the Company thereto, bonds and undertakings, recognizances, 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 Executive Committee of the Boards of Directors of the Company at a meeting duly called and held on the 23rd day of February, 1988: NOTED, That the signature of the Chairman of the Board, the President, 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 resolution adopted by the Executive Committee of the Board of Directors on February 23, 1988 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." In Testimony Whereof, the Company has caused this instrument to be signed and their corporate seals to be affixed by their authorized officers, this August 30, 1999. Attested and Certified: e[AI 1" 9 VOt Y�dY oar Robert P. Hames, Secretary by Lumbermens Mutual Casualty Company American Motorists Insurance Company American Manufacturers Mutual Insurance Company J. S. Kemper, III, Exec.Vice President 6 S State of County of OnSepf./3,2001 before V IDArE1 personally appeared 7-)aif, c C L - it:�cc5s (NAMEIS) OF SIGNERISII Ily known to me -OR- ❑ V CAMELA H. TORRANCE X51 COMM #1212697 N0 ARYPUBLIC-CALIFORNIA (n Y ORANGECOUNTY N 4 My Comm. Expires Mar. 11, 2Df13 y, ATTENTION NOTARY proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. my hand and official seal. The information requested below and in the column to the right is OPTIONAL. Recording of this document is not required by law and is also optional. It could, however, prevent fraudulent attachment of this certificate to any unauthorized document. THIS CERTIFICATE Title or Type of Document 'Q� ''moi`-�� ✓Oh-� MUST BE ATTACHED TO THE DOCUMENT Number of Pages Date of Document /c., 0 DESCRIBED AT RIGHT: Si511erls) Other Than Named Above WOLCOTTS FORM 83740 Rev. 5-94 W.ce clan 8-7A) 1584 WOLCOTTS FORMS, INC. ALL PURPOSE ACKNOWLEDGMENT WITH SIGNER CAPACITYMEPRESENTATIONRWO FINGERPRINTS RIGHT THUMBPRINT (Optional) CAPACITY CLAIMED BY SIGNERIS) OINDIVIDUAL(S) ❑CORPORATE OFFICER(S) aITIEW OPARTNER(S) ❑LIMITED OGENERAL ❑ATTORNEY IN FACT OTRUSTEE(S) ❑GUARDIAN/CONSERVATOR ❑OTHER: SIGNER IS REPRESENTING: (Name of Person(s) or Emity(ies) RIGHT THUMBPRINT fOptionsl) CAPACITY CLAIMED BY SIGNERIS) ❑INDIVIDUALIS) ❑CORPORATE OFFICERIS) 0 ES1 OPARTNER(S) ❑LIMITED ❑GENERAL ❑ATTORNEY IN FACT OTRUSTEE(SI OGUARDIANICONSERVATOR ❑OTHER: SIGNER IS REPRESENTING: (Name of Person(s) or Entity(iee) 7 (IIIIIII77 VIII I 63240 II 8 6 S FRIFss COMPANYBUILDERS, INC. SERRA VISTA OFFICE BUILDING 30300 CAMINO CAPISTRANO ESTIMATE OF ON AND OFF-SITE HARD COSTS # Description Off -Site On -Site 1 Erosion Control $ 1,500 2 Grading - 2750 Cubic Yards $ 11,788 3 Site Drainage $ - $ 17,500 4 Water service - potable/non-potable $ 9,500 5 Fire hydrants and detector check $ 18,500 6 Sewer $ 4,800 7 Site Concrete $ 18,500 8 Parking lot $ 21,600 9 Lot Stripe, Bumpers, and Signage $ 3,500 10 Street widing $ 15,400 11 Curb and gutter - street $ 15,600 12 Off-street bike lane $ 17,500 13 Street lights $ 9,500 14 Parking lot lights $ 21,200 16 17 18 ITOTAL $ 90,800 1 95,588 Grading Bond Amount For Grading And Erosion Control $ 13,288 Date: 011/10/01 Tame: 10:03 AM To: C B 1-949-248-8433 341-5400 Page: 001-001 Lou Jones &Associates "Surety Bond Specialists" 1855 West Katella, Suite 325, Orange, CA 92867 Phone: 714-771-4701 Fax: 714-771-4705 To: Camela Company: Fax: 1-949-248-8433 Phone: From: Mike Cundiff Date: September 10, 2001 Pages: 1 Re: Serra Vista Dear Camela: Thank you for faxing over the bond form for the above referenced. In order for me to issue this bond I will need a copy of the award letter and the contract agreement from the City. If you have any questions please call, thanks. Sincerely, Ts��l Mike Cundiff THE INFORMATION CONTAINED IN THIS TRANSMISSION MAY BE PRIVILEGED AND MAY CONTAIN CONFIDENTIAL INFORMATION INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY NAMED ABOVE. IF THE READER OF THIS MESSAGE IS NOT THE RECIPIENT, OR THE EMPLOYEE OR AGENT RESPONSIBLE TO DELIVER IT TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS TRANSMISSION IN ERROR. PLEASE NOTIFY US 0 0 MEMORANDUM January 13, 2005 TO: Meg Monahan, City Clerk FROM: Dan McFarland, Development Services Manager A�v SUBJECT: Grading Bond Release, Serra Vista Office Building 30300 Camino Capistrano This memorandum is authorization to release the grading bond posted for the above reference address. The grading for the project has been completed sufficiently to warrant the release of the bond. A Performance Bond, held by Kemper Surety Underwriting., Bond Number 3SM 990765 00, was posted as security for the bond. A copy of the Surety Agreement and Performance Bond is attached for your information. If you have any questions, please contact me. Attachment cc: file (Letterhead of Obligee) November 30, 2004 Kemper Surety Underwriting 1 Corporate Drive Long Gove, IL 90049 RE: Release of Bond Number 3SM 990765 Dear Sir/Madam: This letter serves as notification that the City of San Juan Capistrano hereby fully and forever releases and discharges Kemper Insurance Companies from any and all liability under Bond No. 3SM 990765 Very truly yours, 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 Friess Company Builders, Inc., a California Corporation, referred to as "Developer". WITNESSETH C O p1 WHEREAS, City will issue Grading Permit No. 44505 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 30300 Camino Capistrano, commonly referred to as Serra Vista Office Building. 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 othercorrective 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 #3SM 990 765 00 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 $13,287.50 for that work described in Exhibit "A". This security of $13,287.50 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 "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 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 property to 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, . 1 0 *copy 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 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. LiabilitV. 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 ifie performance of this agreement. In witness whereof, the parties have executed this agreement as of September 13, 2001 at San Juan Capistrano, California. Developer City of San Juan Capis ano Friess Company Bu' ers, Inc. By: Daniel W. McFa and Building Official By: Daniel Fri4ss Secretary/Treasurer Appro as to orm: By: John Shaw City Attorney FIRST TERM PREMIUM 0 0 IS FULLY EARNEDCOPY Bond: II3SM 990 765 00 Premium: $266.00/2 Yrs. KNOW ALL MEN BY THESE PRESENTS, that FRIESS COMPANY BUILDERS, INC. as Principal (hereinafter called "Contractor"), and American Motorists Insurance 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 THIRTEEN THOUSAND TWO HUNDRED EIGHTY—SEVEN AND 50/100 Dollars($13,287.50 ) 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, bywriften agreement dated AUGUST 31, 2001 entered Into a(describe agreement): GRADING CONTRACT Fog IMPROVEMENTS AT 30300 CAMINO CAPISTRANO (SERRA VISTA OFFICE BUILDING 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. Asa 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 attorneys fees, incurred by City in successfully enforcing such obligation, all to be taxed as costs and included in anyjudgment rendered. cVny IAMfornkPsrkr nc annd.wpd -1- 0511 WOO 09-06-01 16:03 RECEIVED FROM: P-02 2. Said-Surety,forva- lue 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 ks 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. Executedthis 10th dayof SEPTEMBER 200 1,9t SAN JUAN CAPISTRANO , California. APPROVED AS TO FORM: By . ( I John . ha , ityAttorney c: myfile kfb s1Perfo ancaamd.wpd -2- Friess (NOTARIZATION 4WD SEAL) Builders, Inc. SURETY American Motorists Insurance Compan. (NOTARIZATION ANL) Michael E. Cundiff/ 05/10/00 09-06-01 16:03 RECEIVED FRODI: P-0'3