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22-0811_BRENT ENGINEERING, INC._Grading Surety AgreementD 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 Brent Engineering Inc., hereinafter referred to as "Developer." WITNESSETH WHEREAS, City will issue Precise Grading Permit No B22-0010 to Developer to construct certain designated improvements upon a portion of that real property located at 31891 Peppertree Bend, San Juan Capistrano, CA, such work being commonly referred to as Williams Residence ("Project"). WHEREAS, San Juan Capistrano Municipal Code Section 8-2.08 requires the posting of financial security to secure the faithful performance for the grading and installation of related improvements connected with issuance of grading permits including the construction of drainage and protection devices and any other corrective work to remove and eliminate engineering and geological hazards. WHEREAS, San Juan Capistrano Municipal Code Section 8-2.09 authorizes the Building Official to require additional bonding as security to ensure against adverse aesthetic impacts arising from incomplete grading and/or improvements from development projects which have not been completed. WHEREAS, the Building Official finds that the proposed Project site is highly prominent and visible to the community, has unique topographic features or involves substantial grading of slope areas. NOW, THEREFORE, in consideration of the premises and promises hereinafter contained, City and Developer agree as follows: 1. Developer's Improvements Obligations. Developer shall, at its sole cost and expense, provide and furnish all labor, materials and equipment for the Project depicted on the plans entitled "Precise Grading &Drainage Plan for Williams Residence" as approved by the City Engineer, on 8/11/2022. The grading permit and plans, which describe all the work to be constructed pursuant to this Agreement, are on file in the office of the City's Building Official. Grading Surety Agreement, Permit #B22-0010 Page 1 of 10 61147.02100124835741.2 2. Developer's Security. Developer shall provide a cash deposit, irrevocable letter of credit, certificate of deposit or a bond by a duly authorized corporate surety subject to the approval of the City Attorney, or as approved by the City Engineer, to secure Developer's improvement obligations required under this Agreement ("Security"). The amount of the Security shall be $992,420.00 forall onsite grading improvements as approved by the City Engineer. This Security shall also serve as security for restoration of the Project site. A copy of the performance bond form, as approved by the City Attorney, is attached hereto as Exhibit "C" and incorporated herein by this reference. Copies of approved irrevocable letter of credit forms and certificate of deposit form are available upon request. 3. Completion of Improvements. To ensure the protection of the public safety, health and welfare, Developer shall construct the Project in accordance with the schedule as set forth in Exhibit "A", and the conditions as set forth in Exhibit "B". Exhibits "A" and "B" are attached hereto and incorporated herein by this reference. 4. Developer Default. In the event Developer does not complete the required improvements, including erosion and silt control measures within the time required, using Best Management Practices (BMP) in implementing a Water Quality Management Plan in full compliance with Orange County National Pollutant Discharge Elimination System (NPDES) Storm Water Implementation Agreement and San Juan Capistrano Municipal Code Section 8-14, or abandons the Project site, or suspends work for more than twenty (20) working days without written approval of the City, City shall have the right to immediately declare a default and to make demand on Developer's surety for performance of all obligations under this Agreement. 5. Restoration of Site. San Juan Capistrano Municipal Code Section 8-2.09 allows the City to require bonding as security to ensure against adverse aesthetic impacts arising from incomplete grading, drainage and/or improvements which includes illicit non - storm drain water discharge. The purpose of this security shall be to restore the property to a safe and acceptable condition in the event the Developer defaults. This restoration shall include but not be limited to the following: A. Dismantle and/or demolish improvements; B. Grade property to its original contours as shown on the approved grading plans. C. Remove all debris and construction materials from the site; and Grading Surety Agreement, Permit #B22-0010 Page 2 of 10 61147.02100124835741.2 D. Install erosion and silt control devices, including hydroseeding, to insure a uniform vegetative cover, or equivalent stabilization measures which include the use of such Best Management Practices as blankets, fiber matrices, catch basin filters, or other erosion resistant soil coverings or treatments to satisfaction of the Director of Engineering and Building. E. Protection and repair of existing public street, water, sewer and storm drain system(s). 6. Attorney's Fees. Developer agrees to pay City such sum as the court may judge as reasonable for the legal services of an attorney representing the City in an action brought to enforce or interpret the obligations of this agreement, and such sum shall be made a part of any judgment in such action against Developer if such action is determined in favor of the City. 7. 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 Project. 8. Liability. City, its officials, officers, employees, agents, and volunteers shall not be liable for any injury to persons or property occasioned by reason of the acts or omissions of Developer, its agents or employees in the performance of this Agreement. Developer further agrees to protect, indemnify, and hold harmless City, its officials, officers, employees, agents, and volunteers from any and all claims, demands, causes of action, liability or loss of any sort, because of, or arising out of, the alleged acts or omissions of Developer, its agents or employees in the performance of this Agreement, including all claims, demands, causes of action, liability, or loss because of, or arising out of, in whole or in part, the design or construction of the Project. This indemnification and agreement to hold harmless shall extend to injuries to persons and damages or taking of property resulting from the design or construction of said Project, and in addition, to adjacent property owners as a consequence of the diversion of waters from the design or construction of drainage systems, streets and other improvements. SIGNATURES ON FOLLOWING PAGE Grading Surety Agreement, Permit #B22-0010 Page 3 of 10 61147.02100124835741.2 SIGNATURE PAGE TO GRADING SURETY AGREEMENT BETWEEN THE CITY OF SAN JUAN CAPISTRANO AND Brent Engineering Inc. IN WITNESS WHEREOF, the parties have executed this Agreement as of CITY F AN PISTRANO By: �s James Wiatrak, Building Official 1�- 206' Brent Engineering Inc. By:_ Printed Name: Ron Burek Dated: '�I 1C' 122 Approved as to Form: By:i =aE-Z City Attomey Title President Printed Title Grading Surety Agreement, Permit #B22-0010 Page 4 of 10 61147 02100124835741 2 Task EXHIBIT"A" SCHEDULE FOR COMPLETION OF IMPROVEMENTS Completion Date tl Complete rough grading November 202 . Start installation of onsite Storm drain work November 202a 0. Start & Finish Soil Stabilization work June 2023 4. Curb & Gutter work June 202$ _ b. -Walks, Railings--& Fences July 202 A/C Paving August 202 Grading Surety Agreement, Permit #B22-001 61147.02100124835741.2 Page 5 of 10 EXHIBIT "B" CONDITIONS FOR COMPLETION OF IMPROVEMENTS 1. The grading for this project shall be in strict conformance with the grading plans as well as the San Juan Capistrano Municipal Code. 2. Grading operations shall commence within sixty (60) calendar days after issuance of Grading Permit. Winter grading will be conducted in strict accordance with the dynamic erosion and silt control plan submitted by the Developer, and approved by the City. This erosion and silt control plan 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 implementwinter grading, or permission for winter grading is rescinded, static erosion and silt control plans reflecting current conditions of grading shall be submitted within ten (10) days of cessation of work. These plans shall: 1. Identify all pollutant sources including sources of sediment that may affect the quality of storm water discharges associated with the construction activity. 2. Include the erosion and sediment control planting and hydroseeding to insure a uniform vegetative cover or equivalent stabilization measures which include the use of such Best Management Practices as blankets, fiber matrices, catch basin filters or other erosion resistant soil covering or treatments to the satisfaction of the City Engineer. 3. Suspension in excess of twenty (20) working days of work authorized by approved grading plans and grading permit for subject property, including erosion and sediment control measures and landscaping and irrigation, shall constitute default of this agreement unless Developer has received approval from the City authorizing a suspension in excess of twenty (20) days. 4. The supervising civil engineer and soils 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 Grading Surety Agreement, Permit #B22-0010 Page 6 of 10 61147.02100124835741.2 filed with the Building Official. This interim report shall conform to the grading code requirements for final compaction reports. 5. Contractor shall control dust to the satisfaction of the Building Official or his deputy. During grading, Contractor shall keep water truck on site and dampen work area, grounds, and loaded trucks. 6. Grading operations suspended during the rainy season shall be resumed no later than 15 days from date of suspension termination unless the Developer has received approval from the City authorizing a suspension in excess of fifteen (15) days. 7. Installation of interim erosion and sediment control devices and systems shall commence within seven (7) days after rough grade certification has been approved by the Building Official and must be completed within fifteen (15) days of rough grade certification. Final erosion and sediment controls devices, planting, landscaping and irrigation systems shall be installed prior to final inspection of the grading permit. 8. All work shall be performed in strict observation of the Hours of Operation in accordance with San Juan Capistrano Municipal Code Section 8-1.03. 9. Contractor shall adhere to conditions of haul route permit and encroachment permit issued by the City Engineer. 10. Parking for construction crew is to be on-site. 11. Exoneration of Security: Developer's security shall be reduced to 90% upon signoff of precise grading permit. The remaining 10% of the security given by Developer shall not be released until the expiration of the warranty period and until any claims filed during the warranty period have been settled. Nothing herein shall limit the City's rights or the Developer or surety's obligations under this Agreement. 12. Warranty Period: 1 year from permit signoff by City. Grading Surety Agreement, Permit #622-0010 Page 7 of 10 61147.02100124835741.2 BOND NO. 4187856 INITIAL PREMIUM: $14,886.00 SUBJECT TO RENEWAL GRADING SURETY AGREEMENT PERFORMANCE BOND KNOW ALL MEN BY THESE PRESENTS WHEREAS the City of San Juan Capistrano ("City") and Brent Engineering Inc.("Principal"), have executed an agreement for work consisting of, but not limited to, the furnishing of all labor, materials, tools, equipment, services, and incidentals for all grading and installation of related improvements for Tract Map Nos. Parcel 2, PMB 172/18-20("the Work"); WHEREAS, the Work to be performed by Principal is more particularly set forth in that certain Grading Surety Agreement dated August 11th 20 22 ("Agreement"), which Agreement is incorporated herein by this reference; and WHEREAS, Principal is required by the Agreement to provide a good and sufficient bond for performance of the Agreement, and to guarantee and warranty the Work performed thereunder. NOW, THEREFORE, Principal and Great American Insurance Company as surety ("Surety"), a corporation organized and existing under the laws of the State of Ohio , and duly authorized to transact business under the laws of the State of California, are held and firmly bound unto City in the sum of Nine Hundred Ninety Two Thousand Four Hundred Twenty dollars ($992,420.00), for which amount well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors or assigns, jointly and severally, firmly by these presents. THE CONDITION OF THIS OBLIGATION is such, that if Principal, his or its heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions, agreements, guarantees, warranties and provisions in the Agreement and any alteration thereof made as therein provided, on his or their part, to be kept and performed at the time and in the manner therein specified, and in all respects according to their intent and meaning, and shall indemnify and save harmless City, its officers, employees, and agents, as therein stipulated in the Agreement, then this obligation shall become null and void; otherwise it shall be and remain in full force and effect. As part of the obligation secured hereby, and in addition to the face amount specified therefor, 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. Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration, or addition to the terms of the Agreement, or to any plans, profiles, and specifications related thereto, or to the Work to be performed thereunder, shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration, or addition to the terms of the Agreement, or to the Work or to the specifications. Grading Surety Agreement, Permit #1322-0010 Page 8 of 10 61147.02100\24835741.2 IN WITNESS WHEREOF, the seal, if any, and signature of the Principal is hereto affixed, and the corporate seal and the name of the Surety is hereto affixed and attested by its duly authorized Attorney -in -Fact at Denver, CO this 11th day of August 20 22 . Brent Eng' ri g Inc. Principal By: Preside Ron Burek (print name) Great American Insurance Company Surety INSUq By X'4o"— Attoinjy-in-Fict- Andrew Waterbury. (print name) NOTE: APPROPRIATE NOTARIAL ACKNOWLEDGMENTS OF EXECUTION BY PRINCIPAL AND SURETY, AND A COPY OF THE POWER OF ATTORNEY TO LOCAL REPRESENTATIVES OF THE SURETY MUST BE ATTACHED TO THIS BOND. Grading Surety Agreement, Permit #B22-0010 Page 9 of 10 61147.02100\24835741.2 Notary Acknowledgment A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA COUNTY OF On a( , 201LL before me, ��1��— � Notary Public, personally appeared Z' dc\ 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. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. oil LEE WITNESS my and and o cial seal. COM&L MW W L@ NO MIT pdi7,2021 Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT ❑ Individual ❑ Corporate Officer Title(s) Title or Type of Document ❑ Partner(s) ❑ Limited ❑ General Number of Pages ❑ Attorney -In -Fact ❑ Trustee(s) ❑ Guardian/Conservator Date of Document ❑ Other: Signer is representing: Name Of Person(s) Or Entity(les) Signer(s) Other Than Named Above Grading Surety Agreement, Permit #B22-0010 Page 10 of 10 61147.02100\24835741.2 4 ..+a . i i. ,._.~Ia`tL J; ,:1 (' Vii' :� 4 ,�> .�r, � i - ��tl�,i�_N___....�,�. 1, .: -,.�. COLORADO NOTARY ACKNOWLEDGEMENT (INDIVIDUAL) State of Colorado County of Denver This record was acknowledged before me on August 11, 2022 (date) by Andrew Waterbury (name[s] of individual[s]). � �� Si nature f N taria Officer Jody Lynn Anderson Notary Public Title of Office My Commission Expires: 07/06/2026 (Seal) JODY LYNN ANDERSON Notary Public State of Colorado Notary ID M 19924011849 My Commission Expires 07-06-2026 Copyright © 2018 NotaryAcknowledgement.com. All Rights Reserved. GREAT AMERICAN INSURANCE COMPANY® Administrative Office: 301 E 4TH STREET • CINCINNATI, OHIO 45202 • 513-369-5000 • FAX 513-723-2740 The number of persons authorized by this power of attorney is not more than ONE No.0 22034 POWER OFATTORNEY KNOW ALL MEN BY THESE PRESENTS: That the GREAT AMERICAN INSURANCE COMPANY, a corporation organized and existing under and by virtue of the laws of the State of Ohio, does hereby nominate, constitute and appoint the person or persons named below, each individually if more than one is named, its true and lawful attorney-in-fact, for it and in its name, place and stead to execute on behalf of the said Company, as surety, any and all bonds, undertakings and contracts of suretyship, or other written obligations in the nature thereof; provided that the liability of the said Company on any such bond. undertaking or contract of suretyship executed under this authority shall not exceed the limit stated below. Name Address Limit of Power ANDREW WATERBURY DENVER. COLORADO $10Q000,000 This Power of Attorney revokes all previous powers issued on behalf of the attomey(s)-in-fact named above. IN WITNESS WHEREOF the GREAT AMERICAN INSURANCE COMPANY has caused these presents to be signed and attested by its appropriate officers and its corporate seal hcrewto affixed this 11TH day of AUGUST 2022 Attest GREAT AMERICAN INSU)tANCE COMPAN Assatant Sennnrr Divu'ianul Srnlor Kuv Pmsulrw STATE OF OHIO, COUNTY OF HAMILTON - ss: MMK VICARIO (977-377-24W On this 11TH day of AUGUST 2022 , beforemepersonally appeared MARK VICARIO, tome known, being duly sworn, deposes and says that he resides in Cincinnati, Ohio, that he is a Divisional Senior Vice President of the Bond Division of Great American Insurance Company, the Company described in and which executed the above instrument; that he knows the seal of the said Company; that the seal affixed to the said instrument is such corporate seal; that it was so affixed by authority of his office under the By -Laws of said Company, and that he signed his name thereto by like authority. SUSAN A KOHORST Notary Public fState of Ohio Aly Comm. Expires May 19, 2025 10 • - i` This Power ofAttomey is granted by authority of the following resolutions adopted by the Board of Directors of Great American Insurance Company by unanimous written consent dated June 9, 2008. RF -SOLVED: That the Divisional President, the several Divisional Senior rice Presidents, Divisional Ittee Presidents and Divisonal Assistant Vice Presidents, or any one of them, be and hereby is authorced, from time to time. to appoint one or more Attorneys -in -Fact to execute on behalf of the Company, air sure0t any and all bonds, undertakings and contracts ofsurelyship, or other written obligations in the nature thereof,' to prescribe their respective duties and the respective limits of their authority, and to revoke any such appointment at any time. RESOLVED FURTHER: That the Company seal and the signature of any of the aforesaid officers and any Secretary or Assistant Secretary of the Company maybe affixed by facsimile to any power of attorney or certificate of either given for the execution of any bond, undertaking, contract ofsurelyship, or other written obligation in the nature thereof, such signature and seal when so used being hereby adopted by the Company as the original signature ofsuch officer and the original seat of the Company. to he valid and binding upon the Company with the same force and effect as though manually affixed. CERTIFICATION 1, STEPHEN C. BERAHA. Assistant Secretary of Great American Insurance Company, do hereby certify that the foregoing Power of Attorney and the Resolutions of the Board of Directors of Jane 9, 2008 have not been revoked and are now in full force and effect. Signed and sealed this 11th day of August. 2022 51029AH OM Assistant Secretary C*�ATAMERICAN, INSURANCE GROUP Surety Bond Seal Addendum Great American Insurance Company During the COVID-19 pandemic, use of traditional seals has been made impractical due to government stay-at-home orders and social distancing guidelines. As a result, Great American Insurance Company ("Great American") has authorized its Attorneys -in -Fact to affix Great American's corporate seal to any bond executed on behalf of Great American by any such Attorney -in -Fact by attaching this Addendum to said bond. To the extent this Addendum is attached to a bond that is executed on behalf of Great American by its Attorney -in -Fact, Great American agrees that the seal below shall be deemed affixed to said bond to the same extent as if its raised corporate seal were physically affixed to the face of the bond. Dated this 24th day of March, 2020. Great American Insurance Company OZ Stephen C. Beraha, Assistant Vice President P9935-GAIC (03/20) Page 1