06-1213_WHISPERING HILLS, LLC_Grading Surety Agreement (3)�J
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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
Whispering Hills, LLC a California Corporation (General
Partnership, Limited Partnership, California Corporation, etc.) referred to as "Developer".
WITNESSETH
WHEREAS, City will issue a Grading Permit to Developer to construct certain
designated improvements which constitute a portion of that real property at the location of
Tract 16634 commonly referred to as
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 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,
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2. Developer's Security. Developer shall provide a cash deposit or a bond by a
duly authorized corporate surety, subject to the approval as to form 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 $ 1,148 , 000.00 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 property
to 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
ORIGINAL
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.
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. Liabili . 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
December 13 20 06 at San Juan Capistrano, California.
Developer City of San Juan Capistrano
By: (Signee) Dermis Gag, By: Sam Shoucair
(Title) principal Senior Engineer
Approved a9to For1n:
By: 16n Shaw
City Attorney
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EXHIBIT "B"
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SCHEDULE FOR COMPLETION OF IMPROVEMENTS
Completion Date
&- ;5D-6)7
q-31- D7
1/- 3a- o'�
Task
Rough Grade Certification
Landscape Irrigation
Landscape Planting
n
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EXHIBIT "C"
0 E) ORIGINAL
CONDITIONS FOR COMPLETION OF IMPROVEMENTS
1. The grading for this project shall be in strict conformance with the approved grading
plans as well as the San Juan Capistrano Municipal Code.
2. Grading operations shall commence within fourteen (14) calendar days after
issuance of a 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. Except as specified in item " " below, suspension in excess of twenty (20)
working days of work authorized by the 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
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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
grade certification. Final erosion and sediment control 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.
• L) ORIGINAL
Bond No. SU5022197
Premium: $11,480.00
PERFORMANCE BOND
KNOW ALL MEN BY THESE PRESENTS, that Whispering. Hills, LLC
,as principal (hereinafter
called "contractor", and Arch Insurance Company
, as Surety (hereinafter called "Surety'), are
held and firmly bound unto the City of San Juan Capistrano, as oblige
(hereinafter called "city"), in the amount of
One Million One Hundred Forty Eight Thousand Dollars and 00/100.
Dollars ($ 1,148,000.00 ) 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 - dated
entered into a (describe agreement):
Whispering Hills - West Canyon tract 16634 - Grading Bond
which contact 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:
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, 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 valpe received, hereby stipulates and agrees that
no change, or extension of time; alteration, or modification of the
contract documents, or of the work to be performed thereunder,
shall in any way affect Its obligation or this bond, and. it does hereby
waive the notice of any such change., extension of time, alteration
or modification of the contract documents or of work the be
performed thereunder.
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L) ORIGINAL
Executed this 7th day of December 20 o§
At Irvine California.
Whispering Hills, LLC,
a Delaware limited Llabfifty, Com
By: Concorde Development, L.
rtne
a California limited pa airship
8YWlaur" ' nji'11s, L
EUGEPN D
a a i orma corporation, General Po
6ENIRY
Commfubn N 1642212
. NUOY NbMC. • Calllomia
ouft
MYComm fopswC<hETt,201 By:
APPROVED AS TO FORM:
S
John ..haw, City Attorney
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`(NOTARIZATION AN' SEAL)
Arch Insurance Company
SURETY
Monroe, Attorney -in -Fact
CALIFORNIA ALL-PURPOSIOCKNOWLEDGMENT •
State of Cal i fornia
County of Orange
On DEC 0 7 2006 before me, Paris Shahabi, Notary Public
Name aeo TNe of Offioar (e.g.,'Jane Doe. Notary Public
personally appeared Janina Monroe
Names) of Signers)
x❑ personally known to me – OR – ❑ proved to
PARIS SHAHABI
_Commission # 1572409 z
-m Notary Public - Califoinla 5
Otange County
,My Comm. ExpVes Apr24, 2009►
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.
WITNES my�hand
,and offic'
Signature of Notary Pudic
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons retying on the document and could prevent
fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date:
Signer(s) Other Than Named Above:
Capacity(es) Claimed by Signer(s)
Signer's Name:
❑ Individual
❑ Corporate Officer
❑ Title(s):
❑ Partner - ❑ Limited ❑ General
® Attorney -in -Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:Top of thumb here
Signer Is Representing:
130-1133 9197
Number of Pages:
Signer's Name:
❑ Individual
❑ Corporate Officer
❑ Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Attorney -in -Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
RIGHT TH UM6PR I NT
OF SIGNEn
0
• L) ORIGINAL
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
...................
State of California
ss.
County of _A&Z
On 21- . Z4
Date
personally appeared
tlIG6M D. C642V�
1 cannb1
lon s a22a2
Db1I I4Aft - Callomlo
Orange County
IMCgM►BpwtNb7�.�t
Place Notary Seel Above
ersonally known to me
❑ 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.
WITNES my hand and_ 2a0l
T , A
Sign re of Notary Public Vr
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.
Description of Attached
Title or Type of Document: _
Document Date:
Signer(s) Other Than Named Above:
Capacity(les) Claimed
Signer's Name:
❑ Individual
by Signer(s)
❑ Corporate Officer— Title(s):
❑ Partner —❑ Limited ❑ General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
RIGHT THUMBPRINT
OF SIGNER
01
Number of Pages:
Signer's Name:
❑ Individual
❑ Corporate Officer — Title(s):
❑ Partner —❑ Limited ❑ General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
RIGHT THUMBPRINT
OF SIGNER
0
® 2004 National Notary Association - 9350 De Soto Ave., P.O. Box 2402 - Chatsworth, CA 91313-2402 Item No, 5907 Reorder. Call Toll -Free 1-800-876-6827
POWER OF ATTORNEY •
Know Ali Men By These Presents:
L) ORIGINAL
That the Arch Insurance Company, a corporation organized and existing under the laws of the State of Missouri, having its
principal office in Kansas City, Missouri (hereinafter referred to as the "Company") does hereby appoint
1 iicloria M. Campbell, Thomas G. McCall and Janina Monroe of Irvine, CA (EACH)
Christine Marotta of Chicago. IL
its true and lawful Attorney(s)4n-Fact to make, execute, seal, and deliver from the date of issuance of this power for and
on its behalf as surety, and as its act and deed:
Any and all bonds and undertakings
EXCEPTION: NO AUTHORITY is granted to make, execute, seal and deliver bonds or undertakings that guarantee 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.
The Company may revoke this appointment at any time.
The execution of such bonds and undertakings in pursuance of these presents shall be as binding upon the said
Company as fully and amply to all intents and purposes, as if the same had been duly executed and acknowledged by its
regularly elected officers at its principal office in Kansas C'Av Mt
This Power of Attorney is executed by authority of resolutions adopted by unanimous consent of the Board of Directors of
the Company on March 3, 2003, 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 unanimous consent of the Board of Directors of the Company on March 3, 2003:
VOTED, That the signature of the Chairman of the Board, the President, or 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 the
resolution adopted by the Board of Directors on March 3, 2003, 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.
00ML0013 00 03 03
Page 1 of 2 Printed in U.S.A.
In Testimony Whereof, ha C^^^p ny I .•„e:: thw sG^ ^a^t,, ba signed and it porate seal to be affixed by their
authorize ATMVf y day of April 2006
Arch Insurance Company
Attested and Certified
Martin J. Nitseroecretary
STATE OF NEW YORK SS
COUNTY OF NEW YORK SS
I Peter J. Callao, a Notary Pubfic, do hereby certify that Edward M. Titus and Martin J. Nilsen personally known to me to
be the same persons whose names are respectively as Vice President and Secretary of the Arch Insurance Company, a
Corporation organized and existing under the laws of the State of Missouri, subscribed to the foregoing instrument,
appeared before me this day in person and severally acknowledged that they being thereunto duly authorized signed,
sealed with the corporate seal and delivered the said instrument as the free apAvoluntary act said corporation and as
their own free and voluntary acts for the uses and purposes therein set forth_ n R _
PETER J. CALLED, ESO.
Notary Public, State of New York
No. 02CA6109336Orallfied in pe r J, Nota blit
commiaslon Expires York
3, 2 oa My comm � expires 5-03-2008
CERTIFICATION
1, Martin J. Nilsen, Secretary of the Arch Insurance Company, do hereby certify that the attached Power of Attorney dated
on behalf of the person(s) as listed above is a true and correct copy and that the same has been in full force and effect
since the date thereof and is in full force and effect on the date of this certificate; and I do further certify that the said
Edward M. Titus, who executed the Power of Attorney as Vice President, was on the date of execution of the attached
Power of Attorney the duly elected Vice President of the Arch Insurance Company.
IN TESTIMONY'Aq'EREOF, I have hemunrto _I bamxrbed my name and a d the corpora se I of the Arch Insurance
Company on this day of DEQ 0 7 2006. 20,_
Martin J. Nils , Secretary
This Power of Attorney limits the acts of those named therein to the bonds and undertakings specifically named therein
and they have no authority to bind the Company except in the manner and to the extent herein stated.
PLEASE SEND ALL CLAIM INQUIRIES RELATING TO THIS BOND TO THE FOLLOWING ADDRESS:
Arch Contractors & Developers Group
135 N. Robles Ave., Ste, 825
Pasadena, CA 91101
OOML0013 00 03 93
Page 2 of 2
Printed in U.S.A.
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MEMORANDUM
TO: Meg Monahan, City Clerk
FROM: Deena Berens, Permit Technician
February 1, 2007
SUBJECT: Performance Grading Bond, Whispering Hills East & West Canyon
Please find attached for your records, the original Grading Surety Agreements and
Performance Bonds #SU5022196 in the amount of $1,330,000.00 & SU5022197 in the
amount of $1,148,000.00 for the placement of bond for the purpose of grading for the East
and West Canyons for the Whispering Hills Development, Tract 16634.
Attachment