23-0406_IN-N-OUT BURGERS_Surety AgreementSURETY AGREEMENT
In -N -Out Burgers
Street and Plans
For Del Obispo Street
THIS AGREEMENT is made by and between the CITY OF SAN JUAN CAPISTRANO, a
municipal corporation, hereinafter referred to as the "City," and In -N -Out Burgers,
hereinafter referred to as "Developer."
WITNESSETH
WHEREAS, City will issue construction permits to Developer to construct certain
designated public improvements near or adjacent to a portion of that real property located
at 31791 Del Obispo St, San Juan Capistrano, CA 92675. Said work includes construction
of certain STREET IMPROVEMENT PLANS, Permit No. SIP22-003 hereinafter ("Project").
WHEREAS, Condition of Approval #42 of Resolution No. 22-02-08-01 requires the
posting of bonds or financial security in the amount equal to 100 percent of the estimated
improvement cost to ensure satisfactory performance for the installation of related
improvements connected with issuance of Permit No. SIP22-003.
WHEREAS, the City Engineer has reviewed and approved Street Improvement
Plans and Cost Estimates for said work within the Public Rights -of -Way (PROW).
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 "STREET IMPROVEMENT PLAN FOR DEL OBISPO STREET" as
approved by the City Engineer, on 02/22/2023.
2. Develo er's Securit . 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 one hundred seventy thousand dollars
($170,000.00) for all street improvements as approved by the City Engineer. A copy of the
performance bond form, as approved by the City Attorney, is attached hereto as Exhibit "C"
Surety Agreement — Street Improvement Plans Page 1 of 8
Permit No. SIP22-003
and incorporated herein by this reference. Copies of approved irrevocable letter of credit
forms and certificate of deposit form are available upon request.
3. Comeletion 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 in compliance with San Juan Capistrano Municipal Code Section 8-14, or
abandons the Project site, or suspends work for more than thirty-one (31) consecutive
Calendar days without written approval of the City, the 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. 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.
6. 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.
7. Liabogy. 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.
8. Force Maieure. Any prevention, delay or stoppage due to strike, lockouts,
labor disputes, acts of God, inability to obtain labor or materials or reasonable substitutes
Surety Agreement— Street Improvement Plans Page 2 of 8
Permit No. SIP22-003
therefor, failure of power, governmental restrictions, judicial orders, riots, insurrection,
enemy or hostile governmental action, terrorism, civil commotion, fire or other casualty,
epidemic, and other reason of a similar or dissimilar nature beyond the reasonable control
of the party obligated to perform ("Force Majeure"), shall excuse the performance by such
party for a period equal to any such prevention, delay or stoppage and the period for the
performance of any act shall be extended for the period of the delay. Force Majeure shall
excuse the performance by that party for a period equal to the prevention, delay or
stoppage; provided the party prevented, delayed or stopped shall have given the other
party written notice thereof within thirty (30) days of such event causing the prevention,
delay or stoppage. Delays or failure to perform resulting from lack of funds or financial
inability shall not be deemed delays beyond the reasonable control of a party and shall not
constitute Force Majeure.
XXX
SIGNATURES ON FOLLOWING PAGE
Surety Agreement — Street Improvement Plans Page 3 of 8
Permit No. SIP22-003
SIGNATURE PAGE TO SURETY AGREEMENT
BETWEEN
THE CITY OF SAN JUAN CAPISTRANO
AND
IN -N -OUT BURGERS
FOR
STREET IMPROVEMENTS - DEL OBISPO
IN WITNESS WHEREOF, the parties have executed this Agreement as of
4 , 2023
CITY OF SAN JUAN CAPISTRANO
Joe Parca, Cky Engineer
Dated: ! Z 3
Approved as to Form:
Best Best & Krieger LLP
Jeffrey Ballinger, City Attorney
Dated' March 31, 2023
IN -N -OUT BURGERS
�.�-
2!
Andy Daws ,❑ artment Head,
Real Estate Legal
Dated. 3(yo�a3
Surety Agreement — Street Improvement Plans Page 4 of 8
Permit No. SIP22-003
EXHIBIT"A"
SCHEDULE FOR COMPLETION OF IMPROVEMENTS
SIP22-003 Del Obispo
Task
Street Improvements
Duration/Days
Start
Finish
Commencement
0
5/15/23
5/15/23
Mobilization and Dig Alert
10
5/15/23
5/25/23
Demolition
14
5/25/23
6/8/23
WQMP BMP's & Erosion control est.
5
6/8/23
6/13/23
Relocate Water Line
75
6/13/23
8/27/23
Storm Drain Improvements
N/A
N/A
N/A
Curb and Gutter
14
8/27/23
9/10/23
Sidewalk PCC
7
9/10/23
9/17/23
Street Pavement
14
9/17/23
10/1/23
Striping and Signage
7
10/1/23
10/8/23
Final Inspection & Completion
7
10/8/23
10/15/23
Total Duration
153
Surety Agreement— Street Improvement Plans Page 5 of 8
Permit No. SIP22-003
EXHIBIT "B"
CONDITIONS FOR COMPLETION OF IMPROVEMENTS
1. These Off-site Improvements for Street and Storm Drain Improvements shall be in
strict conformance with the approved Improvement Plans for SIP20-003 as well as
the San Juan Capistrano Municipal Code.
2. Street and Storm Drain Improvements shall commence within one hundred twenty
(120) calendar days after issuance of Permit for SIP22-003.
3. Suspension in excess of thirty-one (31) consecutive calendar days of work
authorized by approved improvement plans for subject project, including water
quality best management practices and control measures, shall constitute default of
this agreement unless Developer has received approval from the City authorizing a
suspension in excess of thirty-one (31) consecutive calendar days.
4. 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 or as further
conditioned on the haul route and encroachment permit.
5. Contractor shall adhere to conditions of any haul route permit and encroachment
permit issued by the City Engineer.
& Exoneration of Security: Developer's security shall be reduced to 90% upon signoff
of Street and Storm Drain Improvement 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.
7. Warranty Period: 1 year from permit signoff by City.
Surety Agreement — Street Improvement Plans Page 6 of 8
Permit No. SIP22-003
EXHIBIT"C"
PERFORMANCE BOND FORM
BOND NO. CMS0351952
INITIAL PREMIUM: S1,275.00
SUBJECT TO RENEWAL
SURETY AGREEMENT - PERFORMANCE BOND
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS the City of San Juan Capistrano ("City") and IN -N -OUT BURGERS A
CALIFORNIA CORPORATION ("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.
("the Work");
WHEREAS, the Work to be performed by Principal is more particularly set forth in
that certain Grading Surety Agreement dated 20� ("Agreement"), which
Agreement is incorporated herein by this reference; and
WHRREAS, 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 RLI INSURANCE COMPANY as surety
("Surety"), a corporation organized and existing under the laws of the State of Illinois, 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 One Hundred Sev.-ntvThousand and 001100 dollars ($170,000.00), 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
Surety Agreement — Street Improvement Plans Page 1 of 2
Permit No. SIP22-003
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.
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 Los Angeles, CA, this 14th day of March, 2423.
IN -N -OUT BURGERS,
A CALIFOR 1A CORPORATION
Principal
By:
-P- _ nt 5I ce ";cie}vT
ul bbc��r
(print name)
RLI INSURANCE COMPANY
Surety
By:
ktA�tomeyin-Fact
Tracy Aston
(print name)
NOTE: APPROPRIATE NOTARIAL ACKNOWLEDGMENTS OF EXECUTION BY
PRINCIPAL AND SURETY, AND A COPY OF THE POWER OF
ATTORNEY TO LOCAL REPRESENTATIVES OF TAE SURETY MUST BE
ATTACHED TO- THIS- BOND.
Surety Agreement — Street Improvement Plans Page 2 of 2
Permit No: SIP22-003
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
validLty of that document.
State of Caffomia
County of LOS. M�1�fs )
On _MkOYA before me, Lei GHQe-60 1 A0-qA0+V4-q i' DV l i C.-
��}}f_ (insert name and title of th6 officer)
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.
certify. under PENALTY OF PERJURY under the laws of the State of California that the foregoing.
paragraph is true and correct.
@My
LOIDA REBONG
Notary Public - California
Los Angeles County
WITNESS my hand and official seal.Commission 9 2279633
Comm. Expires Mar 31, 2023
f
Signature .0d (Seal)
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.
Tennessee
State of (XMRO CCK
County of Knox y
On March 10, 2023 before me,
Mary Y. Volmar, Notary Public
(insert name and title of the officer)
personally appeared Tracy Aston
who proved to me on the basis of satisfactory evidence to be the person( whose name($) is/are-
subscribed to the within instrument and acknowledged to me that#aelshe/they-executed the same in
hWher/t#teir-authorized capacity(ies), and that by # Wher/4h& signature(s) on the instrument the
person(p), or the entity upon behalf of which the person(,) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of Califomia that the foregoing
paragraph is true and correct. '%b, M I,,,,'
WITNESS my hand and official seal.
Signature
`�?4
..........
aum -
ac
NOTARY —
pVb.tC
(Seal) .r' fox cam" ` •�'.
9/24
I
POWER OF ATTORNEY
RLI Insurance Company
Contractors Bonding and Insurance Company
9025 N. Lindbergh Dr. Peoria, IL 61615
Phone: 800-645-2402
Know All Men by These Presents.
That this Power of Attorney is not valid or in effect unless attached to the bond which it authorizes executed, but may be detached by the
approving officer if desired.
That RLI Insurance Company and/or Contractors Bonding and Insurance Company, each an Illinois corporation, (separately and
together, the "Company") do hereby make, constitute and appoint:
Trac Aston Rosa E_ Rivas Samantha Russell. Me¢han Hanes Mary Y. Volmar. •Qintly or severally
in the City of Irvine . State of Qwifornia its true and lawful Agent(s) and Attomey(s) in Fact, with
full power and authority hereby conferred, to sign, execute, acknowledge and deliver for and on its behalf as Surety, in'general, any and all
bonds and undertakings in an amount not to exceed n Five Miilian Dollars
( $25.000.000.00 ) for any single obligation.
The acknowledgment and execution of such bond by the said Attorney in Fact shall be as binding upon the Company as if such bond had been
executed and acknowledged by the regularly elected officers of the Company.
RLI Insurance Company and/or Contractors Bonding and Insurance Company, as applicable, have each further certified,that the
following is a true and exact copy of a Resolution adopted by the Board of Directors of each such corporation, and is now in force, to -wit:
"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, any 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."
IN WITNESS WHEREOF, the RLI Insurance Company and/or Contractors Bonding and Insurance Company, as applicable, have
caused these presents to be executed by its respective Vice Presidcja with its corporate seal affixed this 21 st day of
July 2022
RLI Insurance Company
L*
a+w,
ti ,2,. b
S.:
_� :•LppP9AlrA ?.1 Gr�RPPRR TF
�Ea.,` SEAL {-
~'a cutis+5 r. :ry9'•.,,. .IH��,:•'`•
State of Illinois l SS
}
County of Peoria )))
On this Z Ist day of July_ . - 2422 before rne, a Notary Public,
personally appeared Barton W. Davis who being by me duly swam,
acknowledged that he signed the above Power of Attorney as the aforesaid
officer of the ILLI insurance Company and/or Contracters Bonding and
Insurance Company and acknowledged said instrument to be the voluntary
act and deed of said corporation.
By: �q)&,
Catherine D. Glover Notary Public
CATHEFONE 0. GLOVER .
oFRCu1l sm
nMue Kwny PAft • Stam at I
e Uy%
Contractors Bonding
gaandInsurance Company
By: • N/I
Barton W. Davis Vice President
CERTIFICATE
I, the undersigned officer of RLI Insurance Company and/or
Contractors Bonding and Insurance Company, do hereby certify
that the attached Power of Attorney is in full force and effect and is
irrevocable; and %nhermore, that the Resolution of the Company as
set forth in the Power of Attorney, is now in force. In testimony
whereof, 1 have hereunto set my hand and the seal of the RLI
Insurance Company andlor Contractors Bonding and insurance
Company this 10th day of March0�_
RLI Insurance Company
Contractors Bonding and Insurance Company
By:
Jeffrey�ickO U V Corporate Secretary
0433477020212 A0058D I9
low
LIA'
/ GIN _
ENGINEERING, INC. lNoNmOU
- BURGER
FEBRUARY 09, 2023 MSL JN 20004
PAGE 1 OF 1
ENGINEER'S OFFSITE COST AND QUANTITY ESTIMATE FOR THE PROPOSED STREET IMPROVEMENTS
LOCATED AT 31791 DEL OBISPO STREET IN THE CITY OF SAN JUAN CAPISTRANO BASED ON MSL
ENGINEERING INC. 01-30-23 STREET IMPROVEMENT PLANS SIP22-003
I. SAWCUT, REMOVE AND DISPOSE AC AND CONC. PAVEMENT 3,865 S.F. @ $4.00/S.F. $15,460
2. REMOVE AND DISPOSE DEBRIS, VEGETATION, ROOTS, AND 0.02 AC. @ $15,000/AC. $300
RUBBISH.
3. REMOVE AND ABANDON EXISTING 8" WATER LINE, L.S. @ $4,000 $4,000
6" WATER LATERAL AND VAULT, AND 2" WATER SERVICE.
4. REMOVE SIGN, POST AND CONCRETE FOOTING. 1 EA_ @ $150 $150
5. REMOVE TREE, LIMBS, AND ITS ROOT SYSTEM 3 EA. @ $1,500/EA. $4,500
6. TEMPORARY TRAFFIC CONTROL L.S. @ $15,000 $15,000
7. 6" TALL CONCRETE CURB 95 L.F. @ $301L.F. $2,850
8. VARYING HEIGHT CONCRETE CURB FACE TRANSITION 60 L.F. @ $30/1,.F. $1,800
9. 0" CONCRETE CURB. 15 L.F. @ $251 L.F. $375
10. 8" CONCRETE CURB 160 L.F. @ $35/L.F. $5,600
11. 4" THICK CONCRETE SIDEWALK 1,570 S.F. @ $9/S.F. $14,130
12. 8" THICK CONCRETE PAVEMENT OVER 6" A.B. 2,510 S.F. @ $1 8/&F. $45,180
13. 12" WIDE 6" MINIMUM THICK A.C. PAVEMENT OVER 12" A.B. 215 L.F. @ $9/L.F. $1,935
14. 2" THICK A.C_ GRIND AND OVERLAY 435 S.F. @ $5.00/S.F. $2,175
15. TRUNCATED DOME PATTERN 125 S.F. @ $20/S.F. $2,500
16. UNDERSIDEWALK PARKWAY DRAIN 1 EA. @ $3,000/EA. $3,000
17. ADJUST UTILITY VAULT TO NEW GRADE 2 EA. @ $1,500/EA. $3,000
18. RELOCATE STREET LIGHT AND PULL BOX I EA. @ $5,000/EA. $5,000
19. STREET LIGHT SERVICE, CONDUIT, AND PULL BOXES 210 L.F. @ $20/L.F. $4,200
20. 30' TALL STREET LIGHT 1 EA. @ 8,000/EA $8,000
21. PAVEMENT STRIPING, WORDS, DIRECTIONAL ARROWS, L.S. @ $15,000 $15,000
STOP BAR, AND CROSSWALK
22. INSTALL TRAFFIC CONTROL SIGNS AND POSTS 2 EA. @ $250/EA. $500
SUBTOTAL $154,655
10% CONTINGENCIES
TOTAL $170,000
C 3M GONG ENTERPRISES, INC. r�
PLAN CK �`#: AGENCY: -QJ 2—
* RECEIVED
FE 3 0 S 209-34
DATE COh;1PLE E :
NAPPROVED: Y
SED
301 North San Dimas Avenue, San Dimas, CA 91773 • (909) 305-2395 • Fax (909) 305-2397