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08-0215_SUPERIOR AUTOMOTIVE LLC_Grading Surety AgreementZ) ORIGINAL 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 Superior Automotive a Limited Liabiity Corporation referred to as "Developer". WITNESSETH WHEREAS, City will issue Grading Permit No B07-1281 to Developer to construct certain designated improvements which constitute a portion of that real property at the location of 33395 Camino Capistrano, commonly referred to as Superior Automotive Toyota Temporary Parking Lot. 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 I morovements Obligations. Developer shall, at its sole cost and expense, provide and furnish all labor, materials and equipment for the construction of grading improvements as approved by the City Engineer. The grading permit and plans, which describe all the work to be constructed per this agreement are on file in the office of the City's Building Official. 0 0 2. Developer's Security. Developer shall provide a cash deposit, 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. The amount of the bond shall be $ 53,000 for all onsite grading improvements as approved by the City Engineer. This security 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 "A". 3. Completion of Improvements. To ensure the protection of the public safety, health and welfare, Developer shall construct all said improvements 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 a safe and acceptable 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 approved grading plans. 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 01 0 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 r,6 &, r U a 1 20 d �_ at San Juan Capistrano, California. Developer City of San Juan Capistrano By: (Signee) By: Sam Shoucair (Title) rc.S'.c, Senior Engineer Approved af to Fop: By: 16n Shaw City Attorney 0 EXHIBIT "B" 0 SCHEDULE FOR COMPLETION OF IMPROVEMENTS Completion Date Task 3/1/2008 Fine Grade Certification EXHIBIT "C" 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 fourteen (14) 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. 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. 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 grad 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. BOND NUMBER: 4366709 PREMIUM: $1,325.00 FOR A TWO YEAR TERM PERFORMANCE RMANCE BOND KNOW ALL MEN :BY THESE PRESENTS, that SUPERIOR AUTO OF SJC, LLC als Princlpal (hereinafter called "COntm;toe', and SURETEC INSURANCE COMPANY as Surety (hereinafter called "surety-), are held and firstly bound unto the City of San Juan OapistrariD, as. oblige (hereinafter called "city,). in the amount of FIFTY THREE THOUSAND AND NO/100 4UI1aIs t�p 53,000.00 ) 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 clted e p /�jgq�.ry}�p �rq, ��,y}�� a GRADING PERMIT N 07- iN NOtCA T1'NO�SUFiERrrlriA9JW IRJ�L'TOY@'TA TEMPORARY PARKIN61 9T which contact is, by reference, made a part hereof. NOW, THEREFORE, the condition of this Obligation is such that, if contractor shall promptly and fa'itftlly perform said agreement then this abligatton shall be null and Void; otherwise'ft shall retrain 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: Ars a partof the Obligation .secured hereby, and in addition .to the face amount specified, there shall be included : and reasonable expenses and fees,including reasonable attorney's fees, incurred by the City in successfully enforcing such obligation, all to be taxed as Costs and included in any judgment rendered. 2. Said Surety, for value received, hereby stipuiates and agrees that no change; or extension of time, alteration, or mod cation of .the contract documents, or of .the work to be performed thereunder; shall jn any way affect its obligation orthis bond, and It doe's hereby waive the notice of any such change, extension of tlme, alteration or modification of the contract documents or of work the be performed thereunder. 0 Executed thiday of {7/ ,4 a Lz, 204, At California. SJC, LLC PRINCIPAL DIXON(NOTARIZATION AND SEAL) DARLEEN �My Comm. Exom Oct ;,: SURETEC INSURANCE COMPANY SURETY OTARIAZA T. MULLICK. ACKNOWLEDGMENT State of California County of ORANC,F ) On d d9QQF2 before me, (insert name and title of the officer) YUNG T. MULLICK, ATTORNEY-IN-FACT personally appeared who 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 signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. 0 JENNIFER K. SMITH, NOTARY PUBLIC I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. ,, JENN!PER K. SMITH N.'�.'/ +moi^ COMM. if 1479028 fA s ki NO TARP PI,CALIFORNIA N m ORANFFF.COUNTY N r * My Cnmm. €xplrn MAR 11, 21108 Signature a 0 0 ACKNOWLEDGMENT STATE OF CALIFORNIA} COUNTY OF ORANGE} S.S. ON FEBRUARY 15TH, 2008 BEFORE ME, DARLEEN DIXON, A NOTARY PUBLIC, PERSONALLY APPEARED MICHAEL KAHN, WHO PROVED TO ME ON THE BASIS OF SATISFACTORY EVIDENCE TO BE THE PERSON WHOSE NAME IS SUBSCRIBED TO THE WITHIN INSTRUMENT AND ACKNOWLEDGED TO ME THAT HE EXECUTED THE SAME IN HIS AUTHORIZED CAPACITIES, AND THAT BY HIS SIGNATURE ON THE INSTRUMENT THE PERSON, OR THE ENTITY UPON BEHALF OF WHICH THE PERSON ACTED, EXECUTED THE INSTRUMENT. I CERTIFY UNDER PENALTY OF PURJURY UNDER THE LAWS OF THE STATE OF CALIFORNIA THAT THE FOREGOING PARAGRAPH IS TRUE AND CORRECT. WITNESS MY HAND A D OFFICIAL SEAL. SIGNATURE: �� v (SEAL) DARLEEN DIXON _s%MV CommUlon # 1519855 T Notary Public - California Orange County COMM. Exprea Oct 16, 2008 POA tl: 510002 SureTec Insurance Company LEMTED POWER OF ATTORNEY Know AU Men by These Preseaft, That SURETEC INSURANCE COMPANY (the "Company"), a corporation duly organized and existing under the laws of the State of Texas, and having its principal office in Houston, Harris County, Texas, does by these presents make, constitute and appoint Jennifer C. Giboney, James W. Moilanen, Yung T. Mullick of Mission Viejo, CA its true and lawful Attomey(s)-in-fact, with full power and authority hereby conferred in its name, place and stead, to execute, acknowledge and deliver any and all bonds, recognizances, undertakings or other instruments or contracts of suretyship to include waivers to the conditions of contracts and consents of surety, providing the bond penalty does not exceed Five Million Dollars and no/100 ($5,000,000.00) and to bind the Company thereby as fully and to the same extent as if such bonds were signed by the President, sealed with the corporate seal of the Company and duly attested by its Secretary, hereby ratifying and conforming all that the said Attomey(s)-in-Fact may do in the premises. Said appointment shall continue in force until 10/31/OB and is made under and by authority of the following resolutions of the Board of Directors of the SureTec Insurance Company: Be it Resolved that the Presider, any Vice -President, any Assistant Vice -President, any Secretary or any Assistant Secretary shall be and is hereby vested with full power and authority to appoint any one or more suitable persons as Attomey(s)-in-Fact to represent and act for and on behalf of the Company subject to the following provisions: Attorneydn-Fact may be given full power and authority for and in the name of and of behalf of the Company, to execute, acknowledge and deliver, any and all bonds, rccognirances, contracts, agreements or indemnity and other conditional or obligatory undertakings and any and all notices and documents canceling or terminating the Company's liability thereunder, and any such instruments so executed by any such Atmmey-in-Fact shall be binding upon the Company as if signed by the President and sealed and effected by the Corporate Secretary. Be it Resolved, that the signature of any authorized officer and seal of the Company heretofore or hereafter affixed to any power of attorney or any certificate relating thereto by facsimile, and any power of attorney or certificate bearing facsimile signature or facsimile seal shall be valid and binding upon the Company with respect to any bond or undertaking to which it is attached. (Adopted at a meeting held on ?Oa ojApril, 1999.) In Wkness Whereof, SURETEC INSURANCE COMPANY has caused these presents to be signed by its President, and its corporate seal to be hereto affixed this 20th day of June, A.D. 2005. �TECRANCE COMPANY ON By:BJ- ICi g, ide t State of Texas ss: County of Harris On this 20th day of June, A.D. 2005 before me personally came B.J. Ring, to me known, who, being by me duly swom, did depose and say, that he resides in Houston, Texas, that he is President of SURETEC INSURANCE COMPANY, the company described in and which executed the above instrument; that he knows the seal of said Company; that the seal affixed to said instrument is such corporate seal; that it was so affixed by order of the Board of Directors of said Company; and that he signed his name thereto by like order. MiChd PLtft DVW M1,tnn���� I� • ldsdTo= ' w it " Wil myCamnlltbn EdtpYst iyllebolle Denny, Notary Pilblie AJgW 27, 2008 My commission expires August 27, 2008 1, M. Brent Beaty, Assistant Secretary of SURETEC INSURANCE COMPANY, do hereby certify that the above and foregoing is a true and correct copy of a Power of Attorney, executed by said Company, which is still in full force and effeM; and furthermore, the resolutions of the Board of Directors, set out in the Power of Attorney are in full force and effect Given under my hand and the seal of said Company at Houston, Texas this 15 day FE RUARY 20 08 , A.D. Brent Bea , of `ry Any instrument bawd In excess of the penalty stated above Is totally void and without any validity. For verl8cation of the authority of this power you may call (713) 8124808 any business day between 8:00 am and 5:00 pm CST. 0 0 MEMORANDUM TO: Meg Monahan, City Clerk FROM: Deena Berens, Senior Permit Technician February 19, 2008 SUBJECT: Performance Bond, Precise Grading for Superior Automotive - Toyota Temporary Parking Lot. ------------------------------------------------------ Please find attached for your records, the original Grading Surety Agreement and Performance Bond # 4366709 in the amount of $53,000 for the placement of bond for the purpose of grading for Superior Automotive - Toyota Temporary Parking Lot. Attachment