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01-1114_MARCUS, GRANT_Surety AgreementY 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 Mr. Grant Marcus, an Owner/Builder, referred to as "Developer". WITNESSETH WHEREAS, City will issue Grading Permit No. 44714 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 Tract 10593 Lot 28, commonly referred to as 31991 Peppertree Bend. WHEREAS, San Juan Capistrano Municipal Codes Section 8-2.08 requires the posting of financial security to secure the faithful performance and labor and materials for the grading and installation of improvements connected with issuance of grading permits including the construction of drainage and protection devices and any other corrective work to remove and eliminate engineering and geological hazards. WHEREAS, San Juan Capistrano Municipal Code Section 8-2.09 authorizes the Building Official to require additional bonding as security to ensure against adverse aesthetic impacts arising from incomplete grading and/or improvements from development projects which have not been completed. WHEREAS, the Building Official finds that the proposed project site is highly prominent and visible to the community, has unique topographic features or involves substantial grading of slope areas. NOW, THEREFORE, in consideration of the premises and promises hereinafter contained, City and Developer agree as follows: 1. Developer's Improvements Obligations. Developer shall, at its sole cost and expense, provide and furnish all labor, materials and equipment for the installation of improvements set forth in Exhibit "A". The grading permit and plans, which further defines the improvements in Exhibit "A", are on file in the office of the City's Building Official, and all documents referenced in Exhibit "A" are incorporated herein by reference. 0 0 2. Develooer's Security. Developer shall provide a Performance Bond Account Number 58599760 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 $8,050 for that work described in Exhibit "A". This security of $8,050 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 "U'. 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, orequivalent stabilization measureswhich include the use of such Best Management Practices as blankets, fiber matrices, catch basin filters, 0 0 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 November 14, 2001 at San Juan Capistrano, California. Developer Mr. Grant Marcus By: Mr. Grant Marcus Owner/Builder Approved to Fo By: John S aw City Attorney City of San JuanCapi rano By: Daniel W. cFa nd Building Official a • 0 EXHIBIT "A" Grant Marcus Residence 31991 Peppertree Bend Item 1: Construction of all on-site grading (cut, fill and slope stabilization) operations in accordance with Grading Permit No. 44714 and the Developer's plans and supporting documents as listed below: (A) Grading Plan for (Project Name) 31991 Peppertree Bend, dated October 16, 2001, prepared by (Firm) Alpine Consultants, Inc., (Engineer) Gaby M. Antoun, RCE No. 041671. (B) Geotechnical Report for (Project Name) 31991 Peppertree Bend, dated September 11, 2001, prepared by (Firm), Petra Geotechnical, Inc., (Engineer) Soumitra Guha Ph.D. No. RCE 58967. Item 2: Construction of all on-site improvements in accordance with Grading Permit No. 44714 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. 0 EXHIBIT "B" SCHEDULE FOR COMPLETION OF IMPROVEMENTS Completion Date December 15, 2001 December 15, 2002 December 15. 2002 Task Rough Grade Certification Landscape Irrigation Landscape Planting 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. 44714. B. Grading operations shall commence within fourteen (14) calendar days after issuance of Grading Permit No. 44714. 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. 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. H. 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. Contractor shall adhere to conditions of haul route permit and encroachment permit issued by the City Engineer. J. Parking for construction crew is to be on-site. Bond No. 58599760 Premium: $242.00 PERFORMANCE BOND KNOW ALL MEN BY THESE PRESENTS that Grant R. Marcus as Principal (hereinafter called "Contractor"), and western Surety Company as Surety (hereinafter called "Surety"), are held .Ind firmly bound unto the City of San Juan Capistrano, as obligee (hereinafter called "Citi"), in the amount of Eight Thousand Fifty and 00/100 ---------------------------------- Dollars ($8,050.00 ) for payment whereof Contractor and Surety Hind themselves, their heirs, executors, administrators, successors and assigns, jointly ,tnd severally, fairly by these presents. WHEREAS, Contractor has, by written ag eementdated 11/05/2001 entered into a (describe agreement): Per Grading Permit No. 44714, Tract 10593, Lot 28 / 31991 Peppertree Bend 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, I hen 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 agai ist the Contractor in the event of default. BE IT FURTHER RESOLVED, that: 1. As a part of the obligation secured t ereby, and in addition to the face amount specified, there shall be included costs and reasonable expenses and fees, including reasonable attorney's fees, incurred by City in sl rccessfully enforcing such obligation, all to be taxed as costs and included in any judgment rendered. c:lmyfileslfo"s%PerfoonanceBond.wpd -1- 05n0/00 R 2. Said Surety, for value received, hei eby stipulates and agrees that no change, extension of time, alteration, or modification of :he contract documents, or of the work to be performed thereunder, shall in any way affe,,t its obligations or this bond, and it does hereby waive notice of any such change, extensi in of time, alteration or modification of the contract documents or of work to be performed thereunder. Executed this 13th day of November San Clemente APPROVED AS TO FORM: By John R. Sha ity Attorney V"W6SV0M%5NPeft,, arM13md.wpd Califom a. -2- 2001 , PRINCIPAL : Grant R. Marcus 9 By: (NOTARIZATION AND SEAL) J V f�L 4 parry By: Steven tz, orney-in-Fact NOTARIZATION AND SEAL) 05/10/00 0 0 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT No. 5907 State of California County of Orange On November 13, 2001 DATE before me, N. Swartz, Notary Public , NAME, TITLE OF OFFICER - E.G.. `JANE DOE, NOTARY PUBLIC' personally appeared Steven Alan Swartz NAMES) OF SIGNER(S) ❑x personally known to me - OR - ❑ proved to me on the basis of satisfactory evidence to be the person(s) whose name(1;) is/Am subscribed to the within instrument and ac- knowledged to me that he/XN)WbW executed the same in hisPbeoOM .x authorized capacity0c;W, and that by his/hs000W4X signature(s) on the instrument the perso), or the entity upon behalf of which the person(s) acted, executed the instrument. =AR.CO840 WITNEifny ha and offi 'al seal. Nnia (Q " Y _./ My /30/0241 O 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 ❑ CORPORATE OFFICER ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL ATTORNEY-IN-FACT TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR ❑ OTHER; SIGNER IS REPRESENTING: NAME OF PERSON(S) OR ENTITY(IES) Western S_ 1�rat rc)mpanj DESCRIPTION OF ATTACHED DOCUMENT Performance Bond TITLE OR TYPE OF DOCUMENT NUMBER OF PAGES November 13, 2001 DATE OF DOCUMENT SIGNER(S) OTHER THAN NAMED ABOVE 01993 NATIONAL NOTARY ASSOCIATION • 8230 Remmel Ave., P.O. Box 7184 • Canoga Park, CA 91309-7184 Astern Surety Comany POWER OF ATTORNEY APPOINTING INDIVIDUAL ATTORNEY-IN-FACT Know All Men By These Presents, That WESTERN SURETY COMPANY, a South Dakota corporation, is a duly organized and existing corporation having its principal office in the City of Sioux Falls, and State of South Dakota, and that it does by virtue of the signature and seal herein affixed hereby make, constitute and appoint _ Patricia Ruth Minder, Steven Alan Swartz, Individually of San Clemente, CA, its true and lawful Attomey(s)-in-Fact with full power and authority hereby conferred to sign, seal and execute for and on its behalf bonds, undertakings and other obligatory instruments of similar nature - In Unlimited Amounts - and to bind it thereby as fully and to the same extent as if such instruments were signed by a duly authorized officer of the corporation and all the acts of said Attorney, pursuant to the authority hereby given, are hereby ratified and confirmed. This Power of Attorney is made and executed pursuant to and by authority of the By -Law printed on the reverse hereof, duly adopted, as indicated, by the shareholders of the corporation. In Witness Whereof, WESTERN SURETY COMPANY has caused these presents to be signed by its Executive Vice President and its corporate seal to be hereto affixed on this 4th day of June, 2001. State of South Dakota l ss )j County of Minnehaha On this 4th day of June, 2001, before me personally came Stephen T. Pate, to me known, who, being by me duly sworn, did depose and say: that he resides in the City of Sioux Falls, State of South Dakota; that he is the Executive Vice President of WESTERN SURETY COMPANY described in and which executed the above instrument; that he knows the seal of said corporation; that the seal affixed to the said instrument is such corporate seal; that it was so affixed pursuant to authority given by the Board of Directors of said corporation and that he signed his name thereto pursuant to like authority, and acknowledges same to be the act and deed of said corporation. My commission expires q` J. MOHR October 22, 2005 NOTARY PUBLIC � — ^ SEAL SOUTH DAKOTA SEAL • j Aty Commission Ecpsses ra-2220oa I J. Mohr, Notary Public CERTIFICATE 1, 1„ Nelson, Assistant Secretary of WESTERN SURETY COMPANY do hereby certify that the Power of Attorney hereinabove set forth is still in force, and further certify that the By -Caw of the corporation printed on the reverse hereof is still in force. In testimony whereof I have hereunto subscribed my name and affixed the seal of the said corporation this 13th day of November 2001 ="` WESTERN SURETY COMPANY C «�'po?4agq fly Is CA �-rll ePKdp L. Nelson, Assistant Secretary Pom P4290 -O4-01 WESTERN SURETY COMPANY p+�nErreo s q4 o w� l—� err Stephen T. Pate, Executive Vice President State of South Dakota l ss )j County of Minnehaha On this 4th day of June, 2001, before me personally came Stephen T. Pate, to me known, who, being by me duly sworn, did depose and say: that he resides in the City of Sioux Falls, State of South Dakota; that he is the Executive Vice President of WESTERN SURETY COMPANY described in and which executed the above instrument; that he knows the seal of said corporation; that the seal affixed to the said instrument is such corporate seal; that it was so affixed pursuant to authority given by the Board of Directors of said corporation and that he signed his name thereto pursuant to like authority, and acknowledges same to be the act and deed of said corporation. My commission expires q` J. MOHR October 22, 2005 NOTARY PUBLIC � — ^ SEAL SOUTH DAKOTA SEAL • j Aty Commission Ecpsses ra-2220oa I J. Mohr, Notary Public CERTIFICATE 1, 1„ Nelson, Assistant Secretary of WESTERN SURETY COMPANY do hereby certify that the Power of Attorney hereinabove set forth is still in force, and further certify that the By -Caw of the corporation printed on the reverse hereof is still in force. In testimony whereof I have hereunto subscribed my name and affixed the seal of the said corporation this 13th day of November 2001 ="` WESTERN SURETY COMPANY C «�'po?4agq fly Is CA �-rll ePKdp L. Nelson, Assistant Secretary Pom P4290 -O4-01 Authorizing By -Law ADOPTED BY THE SHAREHOLDERS OF WESTERN SURETY COMPANY This Power of Attorney is made and executed pursuant to and by authority of the following By -Law duly adopted by the shareholders of the Company. Section 7. All bonds, policies, undertakings, Powers of Attorney, or other obligations of the corporation shall be executed in the corporate name of the Company by the President, Secretary, and Assistant Secretary, Treasurer, or any Vice President, or by such other officers as the Board of Directors may authorize. The President, any Vice President, Secretary, any Assistant Secretary, or the Treasurer may appoint Attorneys in Fact or agents who shall have authority to issue bonds, policies, or undertakings in the name of the Company. The corporate seal is not necessary for the validity of any bonds, policies, undertakings, Powers of Attorney or other obligations of the corporation. The signature of any such officer and the corporate seal may be printed by facsimile.