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1991-0404_MARBELLA PLAZA PARTNERS_Surety AgreementAND THIS AGREEMENT is made by and between the CITY OF SAN JUAN CAPISTRANO, a municipal corporation, hereinafter referred to as the "City" and Marbella Plaza Partners, a General Partnership, referred to as "Developer". WITNESSETH WHEREAS, City will issue Grading Permit No.21161-B and Building Permit No. 21473-B, 21474-B, 21475-B, 21476-B, 21477-B and 21478-B 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 South West Corner of Rancho Viejo Road and Golf Club Drive, commonly referred to as Marbella Plaza. WHEREAS, San Juan Capistrano Municipal Code 8-3.05 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. WHEREAS, San Juan Capistrano Municipal Code 8-3.06 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 letter of credit, 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 $120,000.00 for that work described in Exhibit "A". This security of $120,000.00 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 "A" in accordance with the schedule as set forth in Exhibit "B", and the conditions as set forth in Exhibit "C". -1- 9 4. Developer Default. In the event Developer does not complete the required improvements, including erosion -control measures within the time required, 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 8-3.06 allows the City to require bonding a security to ensure against adverse aesthetic impacts arising from incompleted grading and/or improvements. The purpose of this bonding shall be to restore the property to its original condition if the Developer defaults. This restoration shall include: Dismantle and/or demolish improvements; 2. Grade property to its original contours as shown on the grading plan referred to in Exhibit "A"; 3. Remove all debris and construction materials from the site; and 4. Install erosion control, including hydroseeding, to the satisfaction of the Building Official. 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 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. -2- srties have executed this agreement San Juan Capistrano, California. ty of San Juan apistran By: ria el W. McFarland Building Official as Principal14 By: Derek Aynsley Title: President Z Capital & Counties U.S.A., Inc. General Partner, Marbella Plaza Partners By: Title: By: Title: -3- • HIBIT "A" Marbella Plaza ITEM 1: Construction of all on-site grading (cut, fill and slope stabilization) operations in accordance with Grading Permit No. 21161-B and the Developer's plans and supporting documents as listed below: (A) Grading Plan for Marbella Plaza prepared by Lockman & Associates, Leland F. Johnson, RCE No. 13560, dated December 13, 1990. (B) Geotechnical Report for Marbella Plaza prepared by Leighton & Associates, Lan N. Pham, No. GE 686, dated December 4, 1990. ITEM 2: Construction of all on-site improvements in accordance with Grading Permit No. 21161-B and Developer's grading plans referenced in Item 1 above, including, but not limited to: driveways, parking areas, retaining walls, terrace drains, down drains, subdrains, area drainage systems, and private storm drain systems not a part of Developer's Improvement Plans filed with City Engineer. ITEM 3: Construction of foundations and buildings in accordance with Building Permit Nos. 21473-B, 21474-B, 21475-B, 21476-B, 21477-B and 21478-B, and the building plans for Marbella Plaza by Musil Perkowitz Ruth, Inc., Steven Ruth No. G13363. ITEM 4: Construction and placement of landscaping and irrigation in accordance with approved plans for Marbella Plaza as included in the above plans. -4- • • EXHIBIT B SCHEDULE FOR COMPLETION OF IMPROVEMENTS " Completion Date Task 4.3.91 Rough Grade Certification 6.10.91 Foundation ' 7.16.91 Rough Plumbing ` 7,25.91 Rough Electric 8.8.91 :. Structural Framing j 11.4.91 Structural Final �t 11.4.91 Mechanical Final 11.4.91 Plumbing Final 11.4'91 Electrical Final 9.9.91 Landscape Irrigation 10.14.91 Landscape Planting i I� ti i -5- 0 0 EXHIBIT "C" CONDITIONS FOR COMPLETION OF IMPROVEMENTS A. The grading for this project shall be in strict conformance with the grading plans and related documents as described in Exhibit "A" and Grading Permit No. 21161-B. B. Grading operations shall commence within fourteen (14) calendar days after issuance of Grading Permit No. 21161-B. Winter grading will be conducted in strict accordance with the dynamic erosion - control plan submitted by the developer, and approved by the City. This erosion - control plan reflects erosion 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 -control plans reflecting current conditions of grading shall be submitted within ten (10) days of cessation of work. These plans shall include erosion -control planting as required by the City. 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. Except as specified in "G" below, suspension in excess of twenty (20) working days of work authorized by Grading Permit No. 21161-B and Building Permit Nos. 21473-B, 21474-13, 21475-B, 21476-B, 21477-B and 21478-B, including erosion -control measures and landscaping and irrigation, shall constitute default of this agreement. E. 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 (see "G" below), shall be filed with the Building Official. This interim report shall conform to the grading code requirements for Final Compaction Reports. F. Contractor shall control dust to satisfaction of Building Official or his deputy. During grading, Contractor shall keep water truck on site and dampen work area, grounds, and loaded trucks. G. Grading operations suspended during the rainy season shall be resumed no later than 15 days from date of suspension. H. Developer shall provide approved on-site archaeological monitor during all phases of grading and foundation excavation. I. Developer shall provide approved Native American monitor during all phases of grading and foundation excavation. Developer shall provide approved Paleontologist to monitor all phases of grading and foundation excavation. K. A building construction phasing plan shall be submitted for review by Development Services Division no later than April 1, 1991. Said plan must be approved prior to issuance of any building permits for any structures with the boundaries of this project. L. Installation of interim erosion 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 control landscaping and irrigation systems shall be installed prior to final inspection of the grading permit. M. All work shall be performed in strict observation of the Hours of Operation in accordance with San Juan Capistrano Municipal Code Section 8-107. N. Contractor shall adhere to conditions of haul route permit and encroachment permit issued by the City Engineer. O. No construction trucks are to stop or stand on Rancho Viejo Road. P. Parking for construction crew is to be on site. Q. Construction and grading equipment traffic shall take access from Rancho Viejo Road. No heavy equipment traffic will be permitted on Ortega Highway. Developer shall provide all traffic control measures as required for safe vehicular movement and shall secure an encroachment (haul -route) permit from Public Works prior to issuance of the grading permit. -7- STATUTORY PERFORMANCE BOND KNOW ALL MEN BY THESE PRESENTS, that Marbella Plaza as Principal, hereinafter called CONTRACTOR, and Hong Kong Bank 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 hundred twenty thousand Dollars ($120,000.00 ) for payment whereof Contractor and Surety bind them- selves, their heirs, executors, administrators, successors, and assigns, jointly and severally, fairly by these presents. WHEREAS, Contractor is required to provide a faithful per- formance bond pursuant to the statutory requirements of the San Juan Capistrano Municipal Code to guarantee certain work, more particularly described as follows: Grading. landscaping and on-site improvements as shown on grading plans dated December 13, 1990 and authorized by grading permit No. 21161-B located at the southwest corner of Rancho Viejo Road and Golf Club Drive, San Juan Capistrano, California r NOW, THEREFORE, the condition of this obligation is such that, if Principal shall promptly and faithfully perform said statutory obligation, 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 Principal 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, 11 • incurred by 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 stipulates and agrees that no change, extension of time, alteration, or modification of statutory obligation, or of the work to be performed thereunder, shall in any way affect its cbligations or this bond, and it does hereby waive notice of any such change, extension of time, alterations, or modifications, or of the work to be performed thereunder. Executed this 4th day of April 19 91 at San Juan Capistrano , California. APPROVED AS TO FORK. Min R. Shaw ty Attorney Page 2.- STATUTORY PERFORMANCE BOND PRINCIPAL BY Derek Aynslev Title President I I Capital & Counties U.S.A.,/Inc. General Partner, Marbella Plaza Partners (NOTARIZATION AND SEAL) SURETY By �% Q Title (NOTARIZATION AND SEAL) STATE OF CALIFORNIA COUNTY OF rLW4 J ct- OFFICIAL SEAL CHERYL A, JOHNSON M NOTARY PUBLIC • CALIFORNIA �y ORANGE COUNTY My comm, expires DEC 13, 1993 ACKNOWLEDGMENT—General or Lim eco Pa,nersMp—Wolceta Farm 238CA—Rev. 5-82 ©1982 WOLCOTTS. INC. IpKe Me 8-21 On this `1� day of _ion in the year 19�, before me, the undersigned, a Notary Public in,and for said State, personally appeared per""*r*"Wed (or proved to me on the basis of satisfactory evidence) to be the person Who executed t e within instrument on behalf of the Partnership named therein, and acknow- ledged to me that the _%Partnership executed it. WITNESS my hand and official eal. NdKry Public ik and far said State. 11 • • • • i _ 1 . The Hongkong and Shanghai Banking Corporation Limited 160 Sansome Street San Francisco California 94104 11 March 1991. City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: Stephen B. Julian, City Manager Re: Irrevocable Letter of Credit No. DCSFH910065 Gentlemen: EH -1 RELEASED DATE This Letter of Credit is given to fulfill the requirements of that certain agreement entered into between the City of San Juan Capistrano, a political subdivision of the State of California, hereinafter referred to as "City", and CAPITAL AND COUNTIES U.S.A. INC. hereinafter referred to as "Principal" covering certain improvements to be installed in that certain subdivision known and designated as MARBELLA PLAZA by Principal and in accordance with said agreement. At the request of the Principal, we hereby establish in favor of City and for the account of Principal our Irrevocable lettter of Credit No. DCSFH910065, in the amount of ONE HUNDRED TWENTY THOUSAND U.S. DOLLARS ($120,000.00), to be paid by drafts at sight on us if accompanied by the following documents: City's written statement (signed by the City Manager, or City Attorney) certifying that there has been a failure of the Principal to perform the above agreement. Said statement shall declare the amount of the sight draft on us and that the amount of this draft is, therefore, now due and payable. All drafts under this Letter of Credit shall be marked: The Hongkong Shanghai Banking Corporation Limited 160 Sansome Street San Franisco, California 94104 Irrevocable Letter of Credit No. DCSFH910065 Incorporated in Hong Kong with limited liability Telephone: (415) 677-1370 Telex: WUI 67653 WILD 340484 Answerback: HSBC 67653 HSBC SFO Partial drawings are permitted hereunder. We expressly agree with you that all drafts drawn under and in compliance with the terms of this Letter of Credit shall meet with due honor upon presentation in accordance with California Uniform Commercial Code 5112, that is, by not later than the close of the third banking day following receipt of the documents. This Letter of Credit expires at our office on 25 February, 1992, and shall be automatically extended without written amendment to 25 August, 1992 in each successive calendar year unless not less than SIXTY (60) calendar days prior to 25 February, 1992, we have sent notice to you in writing by registered or certified mail at your address above that we elect not to renew this Letter of Credit beyond the 25 February, 1992 expiry next succeeding by at least SIXTY (60) calendar days, the date we send you such notice. This Letter of Credit is subject to the Uniform Customs and Practice for Documentary Credits (1983 Revision) International Chamber of Commerce, Publication No. 400 ("UCPA") and to the Uniform Commercial Code of the State of California ("UCC"). In the event of any conflict between the UCPA and UCC, the UCC shall prevail and control. Dated: k (9a 1 The kong and Shanghai Banking Corporation Limited Au orizing Agent or Representative Approved as to form City Attorney Alh May 27, 1992 Mr. Derek Aynsley 101 California Street, Ste. 2525 San Francisco, CA 94111 Re: Letter of Credit No. DCSFH910065, Marbella Plaza Dear Mr. Aynsley: 0 MEMBERSOF THE CITY COUNCIL JERRY HARRIS KENNETH E. FRIESS GARY HAUSOORFER GIL JONES JEFF VASQUEZ CITY MANAGER 57EPHEN B JULIAN Enclosed is a copy of a letter to Hongkong Bank authorizing the exoneration and full release of the above referenced bond for Marbella Plaza project in the City of San Juan Capistrano. The work guaranteed by the bond has been completed to the satisfaction of the City of San Juan Capistrano. If you have any questions or need further assistance, please contact me. Sincerely, *1e c arl n Building be Safety Manager DWM/st Attachment cc: George Scarborough William Huber City Clerk 32400 PASEO ADELANTO, SAN JUAN CAPISTRANO, CALIFORNIA 92675 0 (714) 493.1171 6 J� �j nN�rall�l ' nuuueR 1961 1776 VIA CERTIFIED MAIL #P 325 791 944 May 27, 1992 MEMBERS OF THE CITY COUNCIL JERRY HARRIS KENNETH E FRIESS GARY HAUSDORFER GIL JONES JEFF VASQUEZ CITY MANAGER STEPHEN B JULIAN Hongkong Bank 160 Sansome Street San Francisco, CA 94104 Re: Letter of Credit No. DCSFH910065, Marbella Plaza This letter is to authorize the exoneration and full release of the Letter of Credit No. DCSFH910065, posted for the benefit of Marbella Plaza for improvements within the City of San Juan Capistrano, California. The improvements guaranteed by surety including grading, drainage, and on-site improvements have been completed to the satisfaction of the City of San Juan Capistrano. Attached is a copy of the original bond for your reference. If you have any questions or need further information, please contact me. Sincerely, ani#Mc arland Building do Safety Manager DWM/st Attachment cc: George Scarborough William Huber City Clerk 32400 PASEO ADELANTO, SAN JUAN CAPISTRANO, CALIFORNIA 92675 111 (714) 493-1171 Ll dwon IIAfO RIO' IT(1 ❑1111IsI to 1961 1776 VIA CERTIFIED MAIL OP 325 791 944 May 27, 1992 MEMBERS OF THE CITY COUNCIL JERRY HARRIS KENNETH E FRIESS GARY HAUSDORFER GIL JONES JEFF VASQUEZ CITY MANAGER STEPHEN B JULIAN Hongkong Bank 160 Sansome Street San Francisco, CA 94104 Re: Letter of Credit No. DCSFH910065, Marbella Plaza This letter is to authorize the exoneration and full release of the Letter of Credit No. DCSFH910065, posted for the benefit of Marbella Plaza for improvements within the City of San Juan Capistrano, California. The improvements guaranteed by surety including grading, drainage, and on-site improvements have been completed to the satisfaction of the City of San Juan Capistrano. Attached is a copy of the original bond for your reference. If you have any questions or need further information, please contact me. Sincerely, amel W. Mc arland Building do Safety Manager DWM/st Attachment cc: George Scarborough William Huber City Clerk 32400 PASEO ADELANTO, SAN JUAN CAPISTRANO, CALIFORNIA 92675 0 (714) 493-1171