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HomeMy WebLinkAboutRESOLUTIONS - 01012002 - 2002-085 THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA. Adopted this Resolution on February 12, 2002,by the following vote: AYES: Supervisors Gerber, Uilkema, DeSaulnier, Glover and Gioia NOES: None ABSENT: None ABSTAIN: None RESOLUTION NO. 2002/ 85 SUBJECT: Approval of Road Improvement Agreement for Bollinger South Alternative, RA 1127 and Off-Site Right of Way Agreement for Bollinger South, (RA 1094/1127), Subdivision 7976,being developed by Windemere BLC Land Company, LLC, San Ramon area(District III). The following documents were presented for Board approval for Bollinger South Alternative, road acceptance file RA 1127 (Subdivision 7976) property located in the San Ramon area, Supervisorial District III. A Road Improvement Agreement with Windemere BLC Land Company, LLC, principal, whereby said principal agrees to complete all improvements,as required in said road improvement agreement, within one year from the date of said agreement. Improvements generally consist of roadway and drainage. Said document was accompanied by security to guarantee the completion of road improvements, as required by Title 9 of the County Ordinance Code, as follows: I hereby certify that this is a true and correct copy of an action Originator Public Works(ES) taken and entered on the minutes of the Board of Supervisors Contacts Teri Ric(313-2363) G.:'GirpData\EngSve�30\200212-12-02lltA 1127DO-15.doc on the date shown. WL:lad cc: Pubic Works- R.Bnmo,Construction Current Planning,Conmamity Development ATTESTED: Februa 12 2002 T--12-12-02 M) > Windemere BLC Land Company,LLC JOHN SWEETEN, Clerk of the Board of Supervisors and 3130 Crow Canyon PI.,#310 San Ramon,CA 94583 County Adrninlstrator The Arnerican Insurance Company 5 Peters Canyon Road Irvine,CA 92606 By ,Deputy RESOLUTION NO.2002/ 85 SUBJECT: Approval of Road Improvement Agreement for Bollinger South Alternative, RA 1127 and Off-Site Right of Way Agreement for Bollinger South, (RA 1094/1127), Subdivision 7976,being developed by Windemere BLC Land Company, LLC, San Ramon area(District III). DATE: February 12, 2002 PAGE: 2 I. Cash Bond Performance Amount: $18,300.00 Auditor's Deposit Permit No. DP 380881 Date: January 30, 2002 Submitted by: Windemere BLC Land Company, LLC Taxpayer identification number: 94-329-15-16 H. Surety Bond Bond Company: The American Insurance Company Bond Number and Date: 11127507363, January 24, 2002 Performance Amount: $1,814,400.00 Labor&Materials Amount: $916,300.00 Principal: Windemere BLC Land Company, LLC The Principal has executed an agreement with the County to acquire off-site right of way for the construction of road improvements for RA 1127 and RA 1094 (cross-reference SUIS 7976),as specified in the Acquisition of Off`-Site Right-of-Way Agreement,and to complete said work within the time specified for completion in the Acquisition of Off-Site Right-of- Way Agreement,all in accordance with State and local laws and rulings thereunder in order to satisfy conditions for filing of the Final Map for said Subdivision. Additional security to guarantee the completion of these improvements, as required by Title 9 of the County Ordinance, as follows: M. Cash Bond Performance Amount: $20,000.00 Auditor's Deposit Permit No. DP 380881 Date: January 30, 2002 Submitted by: Windemere BLC Land Company, LLC Taxpayer identification number: 94-329-15-16 IV. Surety Bond Bond Company: The American Insurance Company Bond Number and Date: 11127507355, January 24, 2002 Performance Amount: $1,980,000.00 Principal: Windemere BLC Land Company, LLC NOW, THEREFORE, IT IS RESOLVED that said road improvement agreement is APPROVED. All deposit permits are on file with the Public Works Department. RESOLUTION NO. 2002/85 ROAD IMPROVEMENT AGREEMENT Developer: Windemere BLC Land Company,LLC Completion Period: One year after written notification from the County(see Section 2 below) Development: Windemore(Dougherty Valley);Subdivision 7976 (� t U ttitt E t+►iIE"�B L.0 t.,I►As+Ad. l ,C}wt o� � t.l.C: Road: RA 1127 Bollinger Canyon Road(Bollinger South—Alternative B) fa CAgt.VFO ,'IIA t.r vwtt-YV IZb L.I Aral 1-1 y b w1 qtv Effective Date: February�2002 Lr--Act— a%S ��t�r>✓w\�2e C_�+C_ � '" t-•14 r$t 41`r C;f7 THESE SIGNATURES ATTEST TO THE PARTIES'AGREEMENT HERETO: rkC AA iVtDVLA.�1 A CO QJ cO qA X IO tU , �"���Q CQNMA COSTA CQUNTY DDEVI LL?PER �J Maurice SSjtiu,Public Works Director By; �cif /` '€.-� �'._.,.a- (signature) (print name& °tie)(Q,r Ctd kJ RECQMENI)Ecx %tCJt"o 'i By: (signature)- _ E meeting Services Division (Ont rAMO&title) V4 v .J t _ C�1, FI v a r s z t,ki„, It oc P, FORM APPR©VED: Silvano B.Marchesi,County Counsel (INCITE: All signatures to be acknowledged. If Subdivider is incorporated,signatures must conform with the designated representative groups pursuant to Corporations Code §313.) 1. PSS&DATE.Effective on the above date,the County of Contra Costa,California,hereinafter called"Quay,"and the above-mentioned evelo , mutually promise and agree as follows concerning this development: 2. 1MPRQVFZ4ENTS. If Developer fails to meet any deadline for the Camp Parks ROW specified in the AGREEMENT(ACQUISITION OF OFF-SITE RIGHT C3F- WAY)(referred to as"Right-of-Way Acquisition Agreement")entered into concurrently with this Agreement,Developer agrees to: A. install certain road improvements(both public and private)on the Right-of-Way described in the Right-of-Way Acquisition Agreement,together with drainage improvements,signs,street lights,fire hydrants,landscaping,and such other improvements(including appurtenant equipment)described on attached FahibitA and as more fully described in the improvement plans for this development to be prepared by Developer and submitted for review to the Contra Costa County Public Works Department in conformance with the Contra Costs County Ordinance Code(including future amendments thereto),and B. Before installing the improvements,prepare improvement plans and submit them to the Public Works Department for review,as required by Articles 96- 2.2 and 96-2.4 of the County Ordinance Code. Developer shall submit the improvement plans to the Public Works Department no later than 60 days after written notification from the County. Developer shall begin installing the improvements no later than 30 days after receiving stamped,reviewed plans from the County and shall complete installing the improvements within the above completion period in a good workmanlike manner, in accordance with accepted construction practices and in a manner equal or superior to the requirements of the County Ordinance Code and rulings made thereunder;and where there is a conflict between the improvement plans and the County Ordinance Code,the stricter requirements shall govern. 3. IM OOVEMET SECURITY. Upon executing this Agreement,the Developer shall,pursuant to the County Ordinance Code,provide as security to the County: A. For EafQmanpc and Cruar$nta: $i 8.300.00 cash,plus additional security,in the amount of$I6814_400.00,which together total one hundred percent (100116)of the estimated cost of the work. Such additional security is presented in the form of Cash,certified check or cashiers check. x Acceptable corporate surety bond(Bond No.1112750 7363 dated January 24,2002). Acceptable irrevocable letter of credit. In addition to the$1,832,700.00 in security just described,the Developer has provided$2,843,000.00 in additional performance and guarantee security,consisting of $28,400.00 cash and a$2,814,600.00 corporate surety bond(Bond No_ 1113359 9370 dated December 18,2001),pursuant to a separate Road Improvement Agreement entered into concurrently with this Agreement. With all of the above security,the Developer guarantees performance of the design and construction work under this Agreement,maintenance of the work for one year after its completion and acceptance against any defective workmanship or materials or any unsatisfactory performance,and payment of all costs,charges,and expenses,including, but not limited to,attorney's fees and litigation expenses,incurred by the County. In the event of a default under this Agreement,both the$1,832,700.00 security provided under this Agreement and the$2,843,000.00 provided under the separate Road improvement Agreement shall be immediately available to the County to perform any of the design, construction,or maintenance work described in this Agreement or to cover any of the costs,charges,and expenses,including,but not limited to,attorney's fees and litigation expenses,incurred by the County. B. For Pg}mrtent: Security in the amount of$916.300.00,which is fifty percent(501/6)of the estimated cost of the work. Such security is presented in the form of Cash,certified check,or cashier's check x Acceptable corporate surety bond(Bond No.It 12750 7363 dated January 24,2002). Acceptable irrevocable letter of credit. In addition to the$916,300.00 in security just described,the Developer has provided$1,421,500.00 in additional payment security,consisting of a$1,421,500.00 corporate surety bond(Bond No.1113359 9370 dated December 18,2001),pursuant to a separate Road Improvement Agreement entered into concurrently with this Agreement. With all of the above security, the Developer guarantees payment to all contractors, subcontractors, laborers, materialmen, and other persons employed in the performance of this Agreement and referred to in Title 15(commencing with Section 3082)of Part 4 of Division 3 of the Civil Code for materials furnished or labor thereon of any kind,or for amounts due under the Unemployment Insurance Act with respect to this work or labor. In the event the Developer fails to guarantee payment to the persons just listed,both the$916,300.00 security provided under this Agreement and the$1,421,500.00 provided under the separate Road Improvement Agreement shall be immediately available to cover payment to the persons just listed,including payment of any interest,anomey's fees,court costs,and litigation expenses authorized by law. Upon acceptance of A the work as complete by the Board of Supervisors and upon request of the Developer,the amount of the security may be reduced in accordance with Sections 944.406 and 4.4084 the County Ordinance Code. ' 4. GUARANTEE AND WARRANTY OF WORK. Developer guarantees that said work shall be free from defects in material or workmanship and shall perform satisfactorily for a period of one-year from and after the Board of Supervisors accepts the work as complete in accordance with Article 96-4.6, "Acceptance,"of the County Ordinance Code. Developer agrees to correct repair,or replace,at his expense,any defects in said work. The guarantee period does not apply to road improvements for private roads that are not to be accepted into the County road system. 3. PLANT LUABLISHMEN-f WORK. Developer agrees to perform establishment work for landscaping installed under this Agreement Said plant establishment work shall consist of adequately watering plants,replacing unsuitable plants,doing weed,rodent and other pest control and other work determined by the Public Works Department to be necessary to insure establishment of planks. Said plant establishment work shall be performed for a period of one-year from and after the Board of Supervisors accepts the work as complete. 6. IMPROVEMENT ELAN W Bt2ANTY. Developer warrants the improvement plans for the work will be adequate to accomplish the work as promised in Section 2 and as required by the Conditions of Approval for the development. If,at any time before the Board of Supervisors accepts the work as complete or during the one-year guarantee period,said improvement plans prove to be inadequate in any respect,Developer shall make whatever changes are necessary to accomplish the work as promised. 7. NO WAIVER BY COUNTY. Inspection of the work and/or materials,or approval of work and/or materials or statement by any officer,agent or employee of the County indicating the work or any part thereof complies with the requirements of this Agreement,or acceptance of the whole or wry part of said work and/or materials,or payments,therefor,or any combination or all of these acts,shall not relieve the Developer of his obligation to fulfill this Agreement as prescribed;nor shall the County be thereby be stopped from bringing any action for damages arising from the failure to comply with any of the terms and conditions hereof. 8. IIVDEMNITY: Developer shall hold harmless and indemnify the indemnitees from the liabilities as defined in this section: A. The kdmitees benefitted and protected by this promise are the County,and its special districts,elective and appointive boards,commissions,officers, agents,and employees. B. The liabilid protected against are any liability or claim for damage of any kind allegedly suffered,incurred or threatened because of actions defined below,and including personal injury,death,property damage,inverse condemnation,or any combination of these,and regardless of whether or not such liability,claim or damage was unforeseeable at any time before the County reviewed said improvement plans or accepted the work as complete,and including the defense of any suit(s),action(s),or other proceeding(s)concerning said liabilities and claims. C. The actions causing liability are any act or omission(negligent or non-negligent)in connection with the matters covered by this Agreement and attributable to the Developer,contractor,subcontractor,or any officer,agent,or employee of one or more of them; D. Non-Conditions: The promise and agreement in this section are not conditioned or dependent on whether or not any Indemnitee has prepared,supplied,or approved any plans)or specification(s)in connection with this work,or has insurance or other indemnification covering any of these matters,or that the alleged damage resulted partly form any negligent or willful misconduct of any Indemnity. E. 1. Windernere BLC Laird Company LLC("BLC")shall indemnify,defend and protect Contra Costa County("County")and the Corina Costa County Flood Control and Water Conservation District(collectively,"District")against,and hold County and District harmless from,any and all claims,costs,losses,liabilities,damages or other expenses(including attorneys fees and expensesl to the fullest extent not prohibited by applicable law,arising out of or alleged to arise out of BLC's activities under Section 5(c)of that certain"Supplement to Cooperation Agreement,"dated June,2000,by and between BLC and Shapell Industries,Inc.("Shapell")including,without limitation, any claim, cast,loss,liability,damage or other expense arising out of any action or other proceeding brought by Shapell against County or District in connection with any act, approval or other requirement of County or District in connection with BLC's activities under the aforementioned Supplement to Cooperation Agreement. 2. BLC's obligations under Section I above shall exist regardless of concurrent negligence or willful misconduct on the part of the County or District or any other person;provided,however,that BLC shall not be required to indemnify,protect,defend or hold County or District harmless to the extent any claims,losses,liabilities, damages or other expenses are attributable to the negligence or willful misconduct of County or District in maintaining or repairing improvements that have been offered for dedication to and accepted by County or District for maintenance. The obligations of BLC contained in the Agreement shall survive termination of the Cooperation Agreement and shall survive the dedication and aczaptance of improvements by County or District 9. COSTS: Developer shall pay when due,all the costs of the work,including inspections thereof and relocating existing utilities required thereby. 10. NON-PERF RMANCE AND COSTS:If Developer fails to complete the work within the time specified in this Agreement,and subsequent extensions,or fails to maintain the work,the County may proceed to complete and/or maintain the work by contract or otherwise,and Developer agrees to pay all costs and charges incurred by the County(including,but not limited to: engineering,inspection,surveys,contract,overhead,etc.)immediately upon demand. Developer hereby consents to entry on the development property by the County and its forces,including contractors,in the event the County proceeds to complete and/or maintain the work. Once action is taken by County to complete or maintain the work,Developer agrees to pay all costs incurred by the County,even if Developer subsequently completes the work. Should County sue to compel performance under this Agreement or to recover costs incurred in completing or maintaining the work,Developer agrees to pay ail attorney's fees,and all other expenses of litigation incurred by County in connection therewith,even if Developer subsequently proceeds to complete the work. IL 1NC0RPORA11QN1AMMX6MQN. it before the Board of Supervisors accepts the work as complete,the development is included in territory incorporated as a city or is annexed to an existing city,the Cotntys rights under this Agreement and/or any deposit,bond,or letter of credit securing said rights shall be transferred to the new or annexing city. Such city shall have all the rights of a third party beneficiary against Developer,who shall fulfill all the terms of this Agreement as though Developer had contracted with the city originally. 12. CONSIDERATION. In consideration hereof: (Check applicable section(s)) x County shall allow Developer to obtain building permits for said development,assuming it fully complies with other applicable regulations. A County agrees to accept the road(s)into the County-maintained road system,after the improvements are complete. 3 Other(requires County Counsel approval): So long as Developer strictly complies with all obligations and deadlines of the Right-of-Way Acquisition Agreement and this Agreement and fully complies with other applicable regulations,County shall allow Developer to secure approval of final subdivision maps and other entitlements,permits and approvals for individual phases of Subdivision 7976. DS:HB:iad G:\GrpData\EngSvc\HEATHER\2002\Febraary\RA 1127 Agr.doc CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT z State of County of CLI-X)l4v C L , On -�J)fZfr"i�� before me, '�r Dalt Name and Title of Officer(e.g. Jana Doo,Notaryub6c") personally appeared � s :In n �t " Name(s)of Signer(h) I, I personally known to me--OR–❑proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)4sfare subscribed to the within instrument and acknowledged to me that /they executed the same in hWMr/their authorized capacity(ies),and that by DEBRA ASHERWOOD hie/ r/their signature(s)on the instrument the person(s), COMM.#1313582 9 or the entity upon behalf of which the person(s) acted,NOTARY PUBC-CALIFORNIAG) CONTRA C05TA COUNTY k executed the instrument. COMM.Exf'.JULY 16,A9 WITNESS my hand and official seal. Signature of Notary PubNc 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 Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Individual ❑ Individual ❑ Corporate Officer ❑ Corporate Officer Title(s): Title(s): ❑ Partner—❑ Limited ❑ General ❑ Partner—❑ Limited ❑ General ❑ Attorney-in-Fact ❑ Attorney-in-Fact 11 Trustee ❑ Trustee ❑ Guardian or Conservator ❑ Guardian or Conservator . Aft El Other: Top of thumb here ❑ Other: Top of thumb here Signer Is Representing: Signer Is Representing: 0 1995 National Notary Association-8238 Remmot Ave.,P.O.Box 7184-Canoga Park,CA 91309-7184 Prod.No.5907 Reorder:Call Toll-Free 1-800-876-6827 AGREEMENT (Acquisition of Off-Site Right-of-Way) 1. PARTIES. Effective on February 12, 2002, the County of Contra Costa, referred to as the "County," and Windemere BLC Land Company, a California limited liability company, referred to as the "Subdivider," agree as follows: 2. PURPOSE. The Subdivider is subdividing certain real property within the County designated as Windemere Phase I (Subdivision 7976), and as a condition of such subdivision, is required to construct or install certain off-site improvements consisting of the southerly extension of Bollinger Canyon Road. The construction or installation of the off-site improvements requires the acquisition of title to, or an interest in, certain land located within the unincorporated area of the County, in which land neither the Subdivider nor the County presently has sufficient title or interest to permit the improvements to be made. The Subdivider presently is acquiring a right-of-way (referred to as the "Camp Parks ROW") that runs across federal'land owned by the U.S. Department of the Army ("Army"). In the event that the Subdivider fails to acquire or improve the Camp Parks ROW according to the schedule set forth in Section 11 below, the purpose of this Agreement is to provide for acquisition of a different right-of-way (referred to as the "Right-of-Way") on other land located west of Camp Parks. Another purpose of this Agreement is to provide for payment by the Subdivider of all costs of acquiring the Camp Parks ROW or the Right-of-Way, including, without limitation, all costs, charges, and expenses incurred by the County. 3. ACQUISITION OF RIGHT-OF-WAY. The County agrees to consider the institution of condemnation proceedings to acquire the Right-of-Way, so as to enable the construction or installation of the off-site improvements described in Section 2 above and in the conditions of approval for the Subdivider's subdivision. Should the County elect to institute condemnation proceedings, the County shall determine, in its sole discretion, whether to acquire the Right-of-Way in fee, by easement or otherwise, and whether to acquire title by deed, offer of dedication or other document. Title to the Right-of-Way shall be acquired in the name of the County or such other public entity as the County shall determine. The Right-of-Way is generally described or depicted in Exhibit"A" attached to and made a part of this Agreement. 4. PAYMENT OF ACQUISITION COSTS. The Subdivider shalt pay all costs and expenses of acquiring the Right-of-Way, including, but not limited to: a. The deposit necessary to obtain immediate possession of the Right-of-Way. b. The purchase price or compensation for the Right-of-Way, whether determined through settlement, judgment or otherwise. C. Relocation benefits, if any, payable to the owner(s) or tenants of the Right-of-Way. d. Compensation for loss of goodwill, if any, payable to the owner(s) or tenants of the Right-of-Way. e. Attorney's fees, costs of suit, appraisal fees and other litigation expenses incurred by the County, whether prior to trial, at trial, or on appeal. f. The cost of preparing environmental documents and of performing environmental review necessary to comply with the provisions of the California Environmental Quality Act. g. Fees and costs payable upon abandonment of the condemnation proceedings. h. Fees and costs awarded upon a finding of no or insufficient public use or necessity. L The cost of negotiation, relocation assistance or other services performed by the County. The Subdivider's obligation to pay all costs and expenses of acquiring the Right- of-Way shall exist whether the County elects to institute condemnation proceedings or not. 5. INFORMATION FOR RESOLUTION OF NECESSITY. No later than 30 days after a request from the County, the Subdivider shall provide the County with all information necessary to obtain a Resolution of Necessity, including the following documents and information in writing: a. The name and address of the owner(s) of the property, and any tenants on the property, the legal description (metes and bounds) and plat maps (drawn to scale) of the property to be condemned. b. Evidence of compliance with the California Environmental Quality Act of 1970 (Pub. Resources Code Section 7260 et seq.). C. A statement of all offers made to obtain the property by negotiation and copies of all correspondence indicating offers and responses, including evidence of an offer, which satisfies the requirements of Government Code Section 7267.2. d. A current title report and appraisal of the property. r 6. LEGAL SERVICES. Upon election by the County to institute condemnation proceedings, the County Counsel's Office shall have supervision of the said condemnation action but the Subdivider's attorney shall perform all legal services required for said condemnation action, such as (a) commencing proceedings pursuant to Title 7 (commencing with Section 1230.010) of Part 3 of the Code of Civil Procedure to acquire an interest in the land which will permit the improvements to be made, including proceedings for immediate possession of the property under Article 3 (commencing with Section 1255.410) of Chapter 6 of such title; (b) all required legal appearances; (c) conducting the trial of said matter; and (d) handling any required post trial proceedings, including appeals. Any attorney retained by the Subdivider shall be associated as special counsel for the County, but the County shall not be responsible for payment of the fees or expenses charged by such attorney. The Subdivider agrees that any attorney retained by the Subdivider shall conduct the legal proceedings without delay and in such a manner as to acquire the Right-of-Way as soon as practicable, but in no event shall the eminent domain action be filed later than ten (10) days after a Resolution of Necessity has been adopted by the Board of Supervisors. Title to the property (whether by fee, easement or otherwise) shall be acquired no later than 18 months after filing the eminent domain action. The Subdivider's attorney shall notify County Counsel in writing of the following events immediately upon their occurrence. the date eminent domain proceedings are commenced, the date possession of the property is obtained, and the date title to the property is obtained. Notwithstanding the Subdivider's use of a private attorney, the County retains the right, in its sole discretion, at any time, to require that the County Counsel's Office resume exclusive handling of the legal proceedings until the Right-of-Way has been finally acquired, whether through settlement, judgment or otherwise. All services rendered by the County Counsel's Office will be charged to the Subdivider at the rate of$120.00 per hour, as adjusted from time to time. Costs of suit, deposition fees, appraisal fees, telephone tolls, mileage, fax changes, delivery or mailing services and other expenses are additional and will be charged to the Subdivider at actual cost. 7. OTHER SERVICES. The County may perform such other services as the County, in its sole discretion, deems necessary for acquisition of the Right-of-Way. These may include, without limitation, negotiation and relocation assistance service provided by the Public Works Department (Real Property Division) and environmental review service provided by the Community Development Department. Such other services will be charged to the Subdivider at the County's fully burdened salary rate. 8. DEPOSIT OF PRELIMINARY COSTS AND EXPENSES. At the time of executing this Agreement, the Subdivider shall deposit with the County the sum of $20,000.00 in cash, certified check or cashier's check, which sum shall cover the estimated costs and expenses described in Sections 4, 5, and 6 above. M ' If, at any time, the deposit just described is exhausted, or is insufficient to cover costs or expenses incurred by the County, the County shall promptly notify the Subdivider in writing. Within 15 days of the date of such notice, the Subdivider shall deposit with the County the additional sum specked in the notice. Any portion of the deposit(s) made by the Subdivider that is not used to cover costs or expenses incurred by the County shall be refunded to the Subdivider. J. DEPOSIT OF PROBABLE COMPENSATION. In those cases where the Subdivider has obtained an appraisal of the Right-of--Way prior to executing this Agreement, the Subdivider shall, at the time of executing this Agreement, deposit with the County, in cash, certified check or cashier's check, the sum shown in the appraisal, which sum shall be used to obtain immediate possession of the Right-of--Way pursuant to Code of Civil Procedure Section 1255.010. In those cases where the Subdivider has not obtained an appraisal of the Right- of-Way ight- of Way prior to executing this Agreement, the Subdivider shall, apt the time of submitting the appraisal required under Section 5, also make the deposit just described. An appraisal (check one): [ ] has been obtained. The probable amount of compensation to be deposited with the County is $ [xx] has not been obtained. Prior to the time the condemnation action is to be filed, Subdivider may make written application to the County to deposit with the Court the probable amount of compensation pursuant to Code of Civil Procedure Section 1255.010. Said application must be made no later than 3 days following the adoption of the Resolution of necessity by the Board of Supervisors and a copy of the application shall be sent to the County Counsel's Office. In the alternative, the Subdivider may make the Code of Civil Procedure Section 1255.010 deposit from other sources and, upon proof thereof, request return of the amount of probable compensation from the County. If an increase of deposit is ordered by the court pursuant to Code of Civil Procedure Section 1255.030, the Subdivider shall deposit the amount of the increased deposit with the court, within 5 days of receipt of the court's order to increase the deposit. Any portion of the deposit(s) made by the Subdivider and retained by the County (as opposed to being deposited with the court) that is not used to cover costs or expenses incurred by the County shall be refunded to the Subdivider. 10. SECURITY FOR SUBDIVIDER'S OBLIGATIONS. At the time of executing this Agreement, the Subdivider shall, in addition to the deposits described in Sections 8 and 9, submit to the County a corporate surety bond, letter of credit or other security in the sum of$1,980,000.00, which sum shall cover the estimated costs and expenses to be incurred by the County between the time immediate possession of the Right-of-Way is obtained and the time the eminent domain proceeding is finally concluded, as well as any potential additional compensation, benefits and attorney's fees that may be awarded to the owner(s) of the Right-of-Way in the eminent domain proceeding. The security submitted by the Subdivider shall be in a form acceptable to the County Counsel's Office, shall list the County as beneficiary or payee, and shall guarantee the payment and performance of all obligations of the Subdivider under this Agreement. Should the County file suit to collect the security submitted by the Subdivider, the Subdivider and the issuer of the security shall pay all costs, attorney's fees, investigation and expert fees, and other expenses incurred by the County, and this section shall in no way limit the Subdivider's responsibility for payment of all costs and expenses described in Section 4, 6 and 7. 11. CAMP PARKS IR , To satisfy the conditions of approval for Subdivision 7976,the Subdivider has committed to use its best efforts to acquire a different right-of-way ("Camp Parks ROW"), which runs across federal land owned by the Army and is generally described in Exhibit"B" attached to and made a part of this Agreement. The Camps Parks ROW provides a superior route for the southerly extension of Bollinger Canyon Road and is the route preferred by the County and the Subdivider. The Subdivider presently is negotiating with the Army an exchange agreement, under which the Subdivider will construct certain improvements within the Camp Parks Reserve Training Area, and, in exchange, the Army will grant a right of entry to the Subdivider to enable the Subdivider to construct the above off-site improvements within the Camp Parks ROW. Upon completion of the off-site improvements, the Army will provide to the Subdivider an offer of dedication or other instrument acceptable to the County transferring to the County fee title to the Camp Parks ROW. The Subdivider has committed to and shall complete the following actions by the following deadlines: Action Deadline 1. Complete negotiation of and execute exchange May 31, 2002 agreement with the Army, obtain right of entry over Camp Parks ROW 2. Begin construction of off--site improvements on August 1, 2002 Camp Parks ROW pursuant to improvement plans reviewed by Public Works department (see Road Improvement Agreement; County Ordinance Code Chapters 96-2 and 96-4) 3. Complete construction of off-site improvements August 1, 2003 on Camp Parks ROW to satisfaction of Public Works Department (see Road Improvement Agreement; County Ordinance Code Chapter 96-4) 4. Obtain County acceptance of off-site September 15, 2003 improvements on Camp Parks ROW; deliver to County offer of dedication or other instrument for Camp Parks ROW in form acceptable to County (see Road Improvement Agreement; County Ordinance Code Chapter 964) So long as the Subdivider performs each of the above actions in strict compliance with the listed deadlines, the County agrees not to elect to institute cgndemnation proceedings for the Right-of-Way, as authorized under Section 3, and agrees not to request information for a resolution of necessity, as authorized under Section 5. If the Subdivider enters into the exchange agreement with the Army by May 31, 2002, but later fails to perform any other action by the listed deadline, the County shall have the right in its sole discretion to: (a) elect to institute condemnation proceedings for the Right-of-Way pursuant to Sections 3 and 6; or (b) using all or part of the security provided by the Subdivider under Sections 8, 9, and 10, proceed to complete design and construction of the off-site improvements on the Camps Parks ROW and to fulfill any other obligations of the Subdivider under the exchange agreement. In the event that the County chooses to proceed under option (b), the County shall be entitled to all rights and remedies provided by the Road Improvement Agreement and by law. In particular, to the extent not covered by the security provided by the Subdivider, the Subdivider shall promptly pay, upon demand, all costs, charges, and expenses incurred by the County, including, but not limited to, Public Works staff charges (including benefits and overhead), attorneys fees, litigation expenses, and court costs. 12. RECORDS. The County shall maintain accurate records of all services performed by the County and all costs or expenses incurred by the County. 13. ACQUISITION TIME. Concurrently with signing this Agreement, the Subdivider plans to file with the County for approval the final maps for Subdivisions 8149, 8152, 8154, and 8158 (phases of Subdivision 7976) pursuant to Government Code Section 66457. Consistent with the court's holding in Hill v. City of Clovis (2000) 80 Cal.AppAth 438, the Subdivider acknowledges and agrees that, upon the County's approval of the final maps, the 120-day time limit in Government Code Section 66462.5 does not apply to acquisition of the Right-of-Way. By this Agreement, the Subdivider assumes the obligation to: (1) acquire possession of the Camp Parks ROW by May 31, 2002 and to meet the other applicable deadlines for the Camps Parks ROW listed in Section 11; or(2) to file an eminent domain action to acquire title to and possession of the Right-of-Way no later than 10 days after a Resolution of Necessity has been adopted by the Board of Supervisors. If the Subdivider does not obtain possession of the Camp Parks ROW by May 31, 2002 or if the Subdivider misses any other deadline for the Camp Parks RDW listed in Section 11, the Subdivider shall notify the County Public Works Department and the County Counsel's Office of this fact, in writing, no later than 10 days after the applicable deadline. Thereafter, if the County elects to institute condemnation proceedings for the Right-of-Way, the Subdivider shall file an eminent domain action for acquiring title to the Right-of-Way and shall obtain possession of the Right-of-Way no later than 10 days after a Resolution of Necessity has been adopted by the Board bf Supervisors, in such event, the Subdivider shall acquire and dedicate to the County title to the Right-of-Way (whether by fee, easement or otherwise) no later than 18 months after the commencement of the eminent domain action or by February 1, 2004, whichever comes first. If, for any reason, the 120-day limit of Government Code Section 66462.5 is construed to apply to acquisition of the Right-of-Way, the obligation to meet that limit has been assigned to the Subdivider by this Agreement. The Subdivider shall make all payments, and perform all obligations, required of the Subdivider under this Agreement in a prompt manner, so as to meet the schedule imposed by Government Code Section 66462.5, to the extent applicable. Any time delay caused by or resulting from delay in payment or a delay in the performance of or failure to perform any act required by or related to this Agreement, for whatever reason, on the part of the Subdivider, the Subdivider's attorney or their agents or employees, any time expended in complying with the requirements of the California Environmental Quality Act, or any time expended in acquiring or improving the Camp Parks ROW shall not apply against the 120-day time limit and shall not relieve the Subdivider of the obligation to complete off-site improvements. The Subdivider agrees that the 120-day time limit shall be tolled for the period of the delay. The Subdivider further agrees that, if the 120-day time limit is exceeded as the result of any act of the Subdivider, the Subdivider's attorney or their agents or employees, the Subdivider shall not be relieved of its obligation to construct or install the off-site improvements described herein. 14. HOLD HARMLESS. The Subdivider agrees to defend, indemnify, save and hold harmless the County, its boards, officers, employees and agents from and against any and all costs, expenses or liability incurred by the County or the Subdivider in connection with the Subdivider's acts, errors, or omissions pursuant to this Agreement, or otherwise related directly or indirectly to the acquisition of the Right-of- Way, ight-o#Way, or the project to be constructed by the Subdivider. 15. WARRANTY OF AUTHORITY. By executing this Agreement, each of the undersigned covenants, warrants, and represents that he, she or it is fully authorized to enter into this Agreement. 16. TIME OF ESSENCE. Time is of the essence in this Agreement. The Subdivider shall perform all of its obligations in strict compliance with the time limits specified in this Agreement. 17. DEVELOPMENT AGREEMENT. In executing this Agreement, the Subdivider reserves all rights granted under the "DEVELOPMENT AGREEMENT BY AND BETWEEN THE COUNTY OF CONTRA COSTA AND WINDEMERE RANCH PARTNERS"dated January 18, 1896. 18. AMENDMENT. This Agreement may be amended only with the advance, written approval of the County and the Subdivider. 19. NO WAIVER. During the pendency of this Agreement, should either party fail to enforce or fail to require strict compliance with any of this Agreement's provisions, such failure shall not affect the validity of this Agreement and shall not be deemed a waiver to thereafter enforce this Agreement or any of its provisions, including those not previously enforced. 20. NOTICES. Except as otherwise specifically set forth herein, all notices or other communications specifically required or permitted to be given under this Agreement shall be in writing. Notice shall be sufficiently given for all purposes as follows: a. When mailed by United States first class mail with postage prepaid, notice shall be deemed delivered three (3) business days after deposit in the United States mail b. When mailed by certified mail with return receipt requested, notice shall be deemed delivered on receipt if delivery is confirmed by a return receipt. C. When delivered by overnight delivery by a nationally recognized overnight courier, notice shall be deemed delivered one (1) business day after deposit with that courier. d. When personally delivered, notice shall be deemed delivered on the date personally delivered. Any party may at any time change its address for the delivery of notice upon five (5) days' written notice to the other party. COUNTY— Contra Costa County Public Works Department Engineering Services Division 255 Glacier Drive Martinez, CA 94553-4897 Attention: Heather Ballenger, Assistant Public Works Director with a copy to: Contra Costa County Counsel's Office 651 Pine Street, 9th Floor Martinez, CA 94553-1229 Attention: Linda Wilcox, Deputy County Counsel SUBDIVIDER— Windemere BLC Land Company LLC 3130 Crow Canyon Place#310 San Ramon, CA 94583 Attention: Pete Peterson with a copy to: R. Clark Morrison, Esq. Morrison & Foerster LLP 101 Ygnacio Valley Rd., Suite 450 Walnut Creek, CA 94596 21. NO THIRD PARTY BENEFICIARIES. This Agreement is intended solely for the benefit of the parties hereto and their respective successors, assigns, affiliates and subdivisions, and shall not be construed to create any rights in any other person or entity, 22. EXECUTION IN COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument. Furthermore, this Agreement may be executed and delivered by the exchange of electronic facsimile copies or counterparts of the signed documents, which facsimile copies or counterparts shall be binding upon the parties. 23, INTERPRETATION: GOVERNING LAVA. This Agreement shall be interpreted, and the rights and the duties of the parties shall be determined, in accordance with the laws of the State of California. 24. HEADINGS; CROSS-REFERENCES; EXHIBITS. The headings and captions used in this Agreement are for convenience and ease of reference only and shall not be used to construe, interpret, expand or limit the terms of this Agreement. All cross-references in this Agreement, unless specifically directed to another agreement or document, shall refer to provisions in this Agreement and shall not be deemed to be references to any other agreements or documents. Each of the exhibits attached to this Agreement is hereby incorporated into this Agreement by this reference. 25. NO DURESS. This Agreement is executed voluntarily by each of the parties without any duress or undue influence on the part of, or on behalf of, any of them. Each of the parties to this Agreement has read and full understands the meaning of each provision of this Agreement and has had an opportunity to consult with legal counsel prior to entering into this Agreement. 26. SUCCESSORS AND ASSIGNS. The terms and conditions of this Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns. 27. CONSTRUCTION. This Agreement has been reviewed by legal counsel for all parties, and no presumption or rule that ambiguities shall be construed against the drafting party shall apply to the interpretation or application of this Agreement. 28. SEVERABILITY. Should any provision of this Agreement be held to be invalid or unenforceable by a court of competent jurisdiction, such holding shall not affect the remaining provisions of this Agreement COUNTY SUBDIVIDER County of Contra Costa Windemere BLC Land Company LLC � �'t.�t�J�lt2.� R.9r�11'YiE� L.►A�i4 '(�Ctsi�p�N� '� L, �1ht4+Lryi pwtE Ga►�►?cs2N►+t M W�e , V"A ruAa IW3 By By ir, Board of Supervisors Its C-V ..-%I Q&&IT ATTEST: John Sweeten, County Administrator and Clerk of the Board of Supervisors By f Its . rag T W.crAl n s By epu r t RECOMMENDED FOR APPROVAL: Maurice M. Shiu, Public Works Director By FORM APPROVED: Silvano B. Marchei, County Counsel By Deputy CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State ofr County of On*eQ2U� 'Z %t- before .jvat& Name and Title of Officer(e.g.,"Jane Doe,Nota. Public") personally appeared �,CLJ :r" tPl '_;'i r I��J /ra'fI n Name(s)of Signer(s) personally known to me-OR-❑proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)Ware subscribed to the within instrument and acknowledged to me that he/she/they executed the w same i�r/their authorized capacity(ies),and that by +- DEi�ItA A.5HERWOOD his/her/their signature(s)on the instrument the person(s), NO L PU9LIC CALIFC)RNIA+� or the entity upon behalf of which the person(s) acted, COA CosrA counm 0 executed the instrument. COMM.EXP.JULY)b,2005'° WITNESS my hand and official se*.-7 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. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Individual ❑ Individual ❑ Corporate Officer ❑ Corporate Officer Title(s): Title(s): ❑ Partner—❑ Limited ❑ General ❑ Partner—❑ Limited ❑ General ❑ Attorney-in-Fact ❑ Attorney-in-Fact ❑ Trustee _ ❑ Trustee ❑ Guardian or Conservator ❑ Guardian or Conservator HEINEN ❑ Other: Top of thumb here ❑ Other: Top of thumb here Signer Is Representing: Signer Is Representing: 0 1995 National Notary Association•8236 Remmet Ave.,P.O.Box 7184"Canoga Park,CA 91309-7184 Prod.No.5907 Reorder:Call Toll-Free 1.800-876-6827 t COUNTY OFtONTRA COSTA DEPd$IT PERMIT + j OFFICE OF COUNTY., WPJ'TOR-CONTROLLER TO THE TREASURER: MARTINEZ,CALIFORNIA RECEIVED FROM _ ORGANIZATION NUMBER t4 (ory�anlmBa,} Pu bi is Ot)ko (For Cash Collection Procedures see County Administrator's Bulletin 105.) DESCRIPTION FUND/ORQ ACCT TASK OPTION ACTIVITY AMOUNT X,34o � 46 �l� f3�� � l•7�� �i�� ��v( i � �- �- GLo�7a J rev 75 7 '11811, t _ o 1 . 1 L I I v r; q a5j p d4 EXPLANATION: /Nkj >I 5'• 'i t `j ) 5 "�w, tr-1 Pq -aG� TOTAL RecI" IW t 1 I-- I Fj iQ9 l b5 DEPOSIT cDeposit consists of the following items )5 7 O 5 81 C04N and CURRENCY S � r 4`,f t) ) CHECKS,M.O..ETC, E)�b LP 13 9 oi5 10 1,;L 1 9 l> io 4)6 ,L7 `J 9 t,.q L)v5 9 9SANK DEPOSITS $ - FOR AUDITOR-CONTROLLER USE ONLY DEPOSIT PERMIT C7P NUMBER DATE 380881 JAN 30 ASSIGNED The amount of money described above is for Treasurer's receipt of above amount is approved Receipt of above amou t is hereby de posit into the County Treasury. acknowled d. { 47 Sued: Date 'r' ' ►e' Signed. Signed. Titl+s. ► EXT. ounty itor ut}+County Treasurer. iy 3dtxEV(7-93) Mot— G!bJd` _ COUNTY OF CONTRA COSTA 7IN V DEPOSIT PERMIT OFFICE OF COUNTY AUDITOR-CONTROLLER TO THE TREASURER: MARTINEZ,CALIFORNIA RECEIVED FROM - ORGANIZATION NUMBEROU r(j P501 (Far Cash Collection Procedures see County Administrator's Bulletin 105.) DESCRIPTION FUhD/dRG. CT TASK OPTION ACTIVITY AMOUNT f / 711 �D �ob&si �, LD a I�tj 1A- OF �j 715 604530 q931 S 1 1,0 5 ' rn� 5`vt R r R wgjot a 919j 1v-Ali-tom DA 66 I 14370156 I I I I I I I I I f r EXPLANATION: TC1 J S , . . �51T Depbsit-conists of the following items R•a CdtN and CURRENCY CHECKS,KQ,ETC. $ BANK DEPOSITS $ FOR AUDITOR-CONTROLLER USE ONLY DEPOSIT � PERMIT DP C 6: NUMBER ASSIGNED DATE The amount money described above is for Treasurer's receipt of above,amount is approved. Receipt of above am t is hereby deposit into the County Treasury i acknaw Signed: V T Data . Tide: XT. Depu County FwtY County Treasurer D-3dREV.(7-93) 0682-9752 1819200: 61091261, $1,900.00, Bacation of Kenzor Ave, 601866, Barbara Peterson, 250 Lake Dr. Kenington, CA 94708 8 0649-96b5 / 1000: 61091262 $ 0.00 Rord oSurvey R , 50 ____.._.. �_ ecf 15 . _ --- -- 2678, Roger bavid beakins, 549 Miner Rd, Orinda, CA 94563- 1429 819800-0800: 61091264, $18,300.00, RA1127, Cash Bond, Windemere BLC, LLC, 3130 Crow Canyon Rd, Ste 310, San Ramon, CA 94583 819800-0800: 61091269, $20,000.00, RA1094, RA1127, Sub 7976, Cash Bond, Windemere BLC, LLC, 3130 Crow Canyon Rd, Ste 310, San Ramon, CA 94583 0648-91401 812100: 61091066, $16,378.50, City of Antioch, P 0 Box 5007, Antioch, CA 94531-5007 Bond No. Ill 2750 7363 „0� Premium: $6,350.00 Development: RA 11.27 (cross-reference SUB 7976) 1mrRoYEMENT SECURI'T'Y BOND Fort ROAD IMI'ItovmENT AGREEMENT (Performance, Cmarantee, and Payment) (California Government Cade §§ 65499 - 66499.10) 1. RECITAL OF ROAD IMPROVEMENT AGREEMENT: The Developer a3rincipal)has executed an agreement (Road Improvement Agreement) with the County to install and pay- for street, drainage and other improvements on,or along Ballinger South—Alternative B to complete said work within the time specified for completion in the Road Improvemcnt Agreement,all in accordance with Mate and local laws and rulings. 2. OBLIGATION: Windemere BLC, LLC, as Principal and The Americas Insurance* a corporation organized under the law's of the State of Nebraska and authorized to transact surety business in California, as Surety, hereby jointly and severally bind ourselves, our heirs, executors, administrators,successors and assigns to the County of Contra Costa, California to pay as follows. *Company A. Performance: Gne Millia „ Ei&M Hundred Fourteen ThQuussand._Four Hund Dollars ($1,814,404.00) for itself or any city assignee under the above County Road Improvement Agreement,plus B. Payment: Nine Hundldre_d SixtgM Thousand. Three Hu ed Dollars ($916,304.00) to secure the claims to which reference is made in Title 15 §§ et seq. of the Civil Code of the State ofCahfomia. 3. CONDITION: A. The Condition of this obligation as to Section(2.A.)above is such that ifthe above bonded Principal, or principal's 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 and provisions in the said agreement and any alteration thereof made-as therein provided on it or its part, to be kept and performed at the time and in the manner therein specified and in all respects according to their true intent and meaning and shall indemnify and save harmless the County of Contra Costa or city assignee,its officers, agents and employees,as therein stipulated,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 therefore,there shall be included reasonable costs,expenses and fees,including reasonable attorney's fees,incurred by the-County of Contra Costa or city assignee,in successfully enforcing such obligation, all to be taxed as costs and included in any judgement rendered. B. The condition of this obligation, as to Section (2.13,) above, is such that said Principal and the undersigned as corporate surety are held firmly bound unto the County of Contra Costa and all contractors,subcontractors,laborers,:material men and other persons employed in the performance of the aforesaid agreement and referred to in the aforesaid Civil Code,for materials furnishes,labor of any kind,or for amounts due under the Unemployment Insurance Act with rgspect to such work or labor and that said undersigned surety will pay the same in ars amount not exceeding the mount herein above set forth and also,incase suit is brought upon this bond,will pay,in addition to the fact amount thereof,reasonable costs,expenses and fees,including reasonable attorneys fees,incurred by the County of Contra Costa or city assignee,in successfully enforcing such obligation,to be awarded and fixed by the court,all to be taxed as costs and to be included in the judgement therein rendered. It is hereby expressly stipulated and agreed that this bond shall 'inure to the benefit of any and all persons,companies and corporations entitled to file claims under Title 15(commencing with Section 3082 of Part 4 of Division 3) of the Civil Code of the State of-Californi CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT No.5907 State of California County of Orange On January 24, 2002 before me, Alexis H.Bryan,Notary Public DATE NAME,TITLE OF OFFICER o E.G.,"JANE:DOE,NOTARY PUBLIC" personally appeared Patricia Brebner NAME(S)OF SIGNER(S) personally known to me-OR- ❑ 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. ALEXIS H.BRYAN WITNESS my hand and official seal. %MY Commission#1306738 Notary Public-California ZzOrange County kz Comm Expires Jun 1,2006 SIGNATURIFE OF NOTAR OPTIONAL 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 DESCRIPTION OF ATTACHED DOCUMENT ❑ INDIVIDUAL ❑ CORPORATE OFFICER TITLE OR TYPE OF DOCUMENT TITLE(S) ❑ PARTNER(S) LIMITED ® GENERAL (� ATTORNEY-IN-FACT ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR NUMBER OF PAGES ❑ OTHER: SIGNER IS REPRESENTING: DATE OF DOCUMENT NAME OF PERSON(S)OR ENTITY(IES) SIGNER(S)OTHER THAN NAMED ABOVE S 40671GEEF 2/98 0 1993 NATIONAL NOTARY ASSOCIATION•8236 Remmet Ave.,P.O.Box 7184-Canoga Park,CA 91309-7184 PIREMAWS FUND INSURANCE COMPANY NATIONAL SURETY CORPORATION ASSOCIATED INDEMNITY CORPORATION THE AMERICAN INSURANCE COMPANY AMERICAN AUTOMOBME INSURANCE COMPANY GENERAL POWER OP ATTORNEY KNOW ALL MEN BY THESE PRESENTS: That FIREMAN'S FUND INSURANCE COMPANY, a California corporation, NATIONAL SURETY CORPORATION,an Illinois corporation,THE AMERICAN INSURANCE COMPANY,a New Jersey cods tion radomesticated In Nebraska, ASSOCIATED INDEbOM CORPORATION, a California corporation, and AMERICAN AUT6MMOBTL.E INSURANCE COMPANY,a Nssoud corporation,(herein collectively called"the Companies")does each hereby appoint Patricia Brebner bf Costa Mesa, CA their true and lawful Attorneys)-in-Fact, with full power of authority bereby conferred in their name, place and stead, to execute, seal, acknowledge and deliver any and all bonds,undertakings,recognintices or other written obligations in the nature thereof-----------•-- aad to bind the Companies thereby as fully and to the same extent as if such bonds were signed by the President,sealed with the corporate seals of the Companies and duly attested by the Corttpanies'Saxuary,hereby ratifying and corifirming all that the said Attomey(s)-in-Fact may do in the premises. This power of attorney is granted under and by the authority of Article VII of the By-laws of each of the Companies which provisions are now in full force and effect. This power of attorney is signed and sealed rider the authority of the following Resoiuti p adopted by the Board of Directors of each of the Companies at a meeting duly called and held,or by written consent,on the 19th day of March, 1995,and said Resolution has not been amended or repealed: "RESOLVED.that the signature of any Vice-President,Assistant Secretary,and Resident Assistant Secretary of the Companies, and the seal of the Companies may be allured or printed on any power of attorney,on any revocation of any power of attorney, or on any certificate relating thereto,by facsimile,and any power of attorney,any revocation of any power of attorney,or certificate bearing such facsimile signature or facsimile seal shall be valid and binding upon the Companies." IN WITNESS WHEREOF,the Companies have caused these presents to be si pod by their Vice-President,and their corporate seals to be hereunto affixed this 30 day of January , 2901 - L` �..■�Ary +. ti FIREMAN'S FUND INSURANCE COMPANY , p"""R' :r•'••••,,,g� ,�*,.•�..`ky® ` o NATIONAL SURETY CORPORATION r � i • a r s s,.L' '�SCAN INSURANCE COMPANY a■rr.a as � AS5 INDE INITY CORPORATION ''•. 'Hr eo+ 0a+xe r++`` '>ea■rss a' AMERI UTOMOBME INSURANCE COMPANY STATE OF CALIFORNIA SS. By t COUNTY OF MARIN vrce41ya cat On this 30 day of January , 0 01,before me personally came Donn R. Kolbeck to me known,who,being by me duty sworn,did depose and say: that he is a Vice-President of each company,described in and which executed the above instrument;that he knows the seals of the said Co es;that the seals affixed to the said instrument are such company seals;that they were so affixed by order of the Board of Directors of said companies and that he signed his name thereto by like order. IN Wn`NESS WHEREOF,I have hereunto set my hand and affixed my official seat,the day and year herein first above written. IVtISTtN A.GAZZOIJ COMM.*12am 11 i NOTARY Nuance✓MFON " iu►nuc COUNTY 0 My C~% Apd aa,sae 00, STATE OF CALIFORNIAN COUNTY OF MARIN }SS. Ct1TFTCAYE I, tate undersiped., Resident Assistant Secretary of each company, DO HEREBY CERTIFY that the foregoing and attached POWER OF ATTORNEY remains in full force and has not been revoked;and furthermore that Article VII of the By-laws of each company,and the Resolution of the'Board of Directors; set forth in the Power of Attorney,are now in force. Signed and sealed at the County of Marin. Dated the 24th day of January 2002 T ■EIT.iVfO - L � � �l�i E AL. tte■ideat Assi■nct CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of County of (,41- On Taro Axa gg .before me — D�a e Name and n1a of Officer(e.g., Jane Doe,Nota4 Public") personally appeared ILhi^wi Pj Name(s)of Slgnena) personally known to me–OR–❑proved to me on the basis of satisfactory evidence to be the person(e) whose name(e)is/€tip subscribed to the within instrument and acknowledged to me that he/sy executed the DEBRA A.SHERwQ Z same in his/I efA4eir authorized capacity(iss),and that by comm.$1313M2 his/bs0hsir signature(4on the instrument the person(&), NOTARY pUBLiC-CAuroRNIA� CONTRA Coy-TA C�'�;OUNT!Q or the entity upon behalf of which the person(,,) acted, Comm. ., executed the instrument. WITNESS my hand and official seal. 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. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer(s) Signer's Name: Signer's Name: Individual ❑ Individual ❑ Corporate Officer ❑ Corporate Officer Title(s): Title(s): Partner----❑ Limited ❑ General ❑ Partner—❑ Limited ❑ General E3 Attorney-in-Fact ❑ Attorney-in-Fact ❑ Trustee ❑ Trustee ❑ Guardian or Conservator iffif MIN 11 ❑ Guardian or Conservator 0 Other: Top of thumb here ❑ Other: Top of thumb here Signer Is Representing: Signer Is Representing: 01985 National Notary Association•8238 Remmet Ave.,P.O.Box 7184•Canoga Park,CA 91309-7184 Prost.No.5907 Reorder.Cali Toll-Free 1.800-87"827 a Bond No. 111 2750 7355 Premium: $6,930.00 Subdivision: RA .1127 fcrosL-referericoSUB 7975 SECURITY BOND FORACQUISITION OF OFF-SITE RIGHT-OF-WAY AGREEMENT (Performance,Guarantee,and Payment) (Calif. Government Code §§ 66499-66499.10) 1. RFQJTAL OF ST T D SIQN AGREI~:�N�`I'.The Principal has executed an agreement with the County to acquire off-site right of way for the construction of road improvements for Subdivision RA 1127(cross-reference SUIS 7976,as specified in the Acquisition of Off­Site Right-of-Way Agreement, and to complete said work within the time specified for completion in the Acquisition of Off-Site Might-of-Way Agreement, all in accordance with State and local laws and rulings thereunder in order to satisfy conditions for filing of the Final Map for said Subdivision. 2. OBLIQATM.Windemere BLC,LLC,as Principal, and The American Insurance Company . a corporation organized existing under the laws of the State of Nebraska , and authorized to transact surety business in California, as Surety, hereby jointly and severally bind ourselves, our heirs, executors,administrators, successors, and assigns to the County of Contra Costa,California,to pay it. A. Performance&guarantee S 1,980,000.00 Dollars(S)for itself or any city-assignee under the above County Acquisition of Off Site Right-of-Way Agreement. 3. CONDITION, This obligation is subject to the condition set forth on the reverse side hereof. A. The Condition of this obligation as to Section 2.(A)above is such that if the above bounded principal, Isis or its heirs, executors,administrators,successors or assigns,shall in all things sterid to and abide by,and well and truly keep and perform the covenants, conditions and provisions in the said agreement and any alteration thereof made as therein provided, on is or its part,to be kept and performed at the time and in the manner therein specified,and in all respects according to their true intent and meaning,and shall indemnify and same harmless the County of Contra,Costa(or city assignee),its officers,agents and employees,as therein stipulated,then this obligation shall become null and void,otherwise it shall be and remain in full force and effect. As a part of the obligation secured hereby and in addition to the face amount specified therefor,there shall be included costs and reasonable cxpennses and fees, including reasonable attorney's fees,incurred by County(or,city assignee)in successfully enforcing such obligation,all to be taxed as costs and included in any judgement rendered. B. The condition of this obligation as to Section 2.(B) above is such that said Principal and the undersigned as corporate surety are held firmly bound unto the County of Contra Costa and all ether persons employed in the performance of the aforesaid agreement and referred to in the aforesaid Cavil Code for materials furnished or labor thereon of any kind,or for amounts due under the Unemployment Insurance Act with respect to such work or labor,that said surety will pay the same in an amount not exceeding the amount herein above set forth,and also in case suit is brought upon this bond,will pay,in addition to the fact amount thereof,costs and reasonable expenses and fees,including reasonable attorney's fees,incurred by County(or city assignee)in successfully enforcing such obligation,to be awarded and fixed by the court,and to be taxed as costs and to be included in the judgement therein rendered. It is hereby expressly stipulated and agreed that this bond shall inure to the benefit of any and all persons,companies and corporations entitled to file claims under Title 15 (commencing with Section 3082)of Part 4 of Division 3 of the Civil Code,so as to give a right of action to them or their assigns in any suit brought upon this bond. Should the condition of this bond be fully performed there this obligation shall become null and void, otherwise it shall be and remain in full force and effect. C. No alteration of said Acquisition of Off-Site Right-of-Way Agreement agreed to by the Principal and the County shall relieve any Surety from liability on this bond, and consent is hereby given to make such alterations without further. notice to or consent by Surety, and the Surety hereby waives the provisions of California Civil Code §§ 2819, and holds itself bounce without regard to and independently of any action against Principal whenever taken. SIGNEDAND SEALED on January 24, 2002 WINDEMERE BLC LAND COMPANY, LLC By: Lennar Homes of California, Inc. its manager THE AMERICAN INSURANCE COMPANY Principal Surety 3130 Crow Canyon Place Ste 310 5 Peters Canyon Address Address San Ramon, CA 94583 Irvine, CA 92606 i , to and Zip City,State and Zip By By Richard A. Petersen Patricia Brebner Print Name Print Nana Vice President Attorney-in-Fact Title Title (This area for official notary flags.All signatures must be properly notarized in accordance with Civil Code Section 1180.The names and titles of the people signing the documents must be listed on the notary flag.) TR-lad G,1GcpDsnl9hg5v dkTr W2\RA 1127 M4-11d" j46v.Juiue'21'!j09 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT No.5907 State of California County of Orange On January 24, 2002 before me, Alexis H.Bryan,Notary Public DATE NAME,TITLE OF OFFICER-E.G.,"JANE DoE,NOTARY PUBLIC" personally appeared Patricia Brebner NAME(S)OF SIGNER(S) personally known to me-OR- 0 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. ALEXIS H.BRYAN WITNESS my hand and official seal. _ f Commission#1306735 1 •� Notary Public-Calitomia Orange County My Comm.Expires Ju»1,2005 SIGNATURE OF NO RY OPTIONAL 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 DESCRIPTION OF ATTACHED DOCUMENT ® INDIVIDUAL ❑ CORPORATE OFFICER TITLE OR TYPE OF DOCUMENT TITLE(S) ❑ PARTNER(S) LIMITED GENERAL ATTORNEY-IN-FACT TRUSTEE(S) �] GUARDIAN/CONSERVATOR NUMBER OF PAGES ❑ OTHER: SIGNER IS REPRESENTING: DATE OF DOCUMENT NAME OF PERSON(S)OR ENTITY(IES) SIGNER(S)OTHER THAN NAMED ABOVE S-40671GEEF 2198 01993 NATIONAL NOTARY ASSOCIATION•8238 Remmet Ave.,P.O.Box 7184•Canoga Park,CA 91309-7184 FIREMAN"S FUND INSURANCE COMPANY NA'T'IONAL SURETY CORPORATION ASSOCIATED INDENWIT CORPORATION THE AMERICAN INSURANCE COMPANY AMERICAN AUTOMOBILE INSURANCE COMPANY GENERAL POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS: That FIREMAN'S FUND INSURANCE COMPANY, a California corporation, NATIONAL SURETY CORPORATION,an Illinois corporation,THE AMERICAN INSURANCE COMPANY,it New JerseycorporaOBILE INSURANCE redornesticated in Nebraska, ASSOCIATED INDEMNITY CORPORATION, a California corporation, and AMERICAN UT COMPANY,a Missouri corporation,(herein collectively called"the Companies')does each hereby appoint Patricia Brebrier bf Costa Mesa, CA their true and lawful Ammiey(s)-in-Fact, with full power of authority hereby conferred in their name, place and stead, to execute, seal, acknowledge and deliver any and all bonds,undertakings,recognizances or other written obligations in the nature thereof------------ and to bind the Companies thereby as fully and to the same extent as if such bonds were signed by the President,sealed with the corporate seals of the Companies and duly attested by the Companies'Secrttary,hereby ratifying and confirming all that the said Attorneys)-in-Fact may do in the premises. This power of attorney is granted under and by the authority of Article VII of the By-laws of each of the Companies which provisions are now in foil force and effect. This power of attorney is signed and sealed under the authority of the following Resolutio adopted by the Board of Directors of each of the Companies at a meeting duly called and hold,or by written consent,on the 19th day of March, 1995,and said Resolution has not been amended or repealed: "RESOLVED,that the signature of any Vice-President,Assistant Secretary,and Resident Assistant Secretary of the Companies, and the seal of the Companies may be affixed or printed on any power of attorney,on any revocation of any power of attorney, or on any certificate relating thereto,by facsimile,and any power of attorney,any revocation of any power of attorney,or certificate bearing such facsimile signature or facsimile seal shall be valid and binding upon the Companies." IN WITNESS WIFEREOF,the Companies have caused these presents to be signed by their Vice-President,and their corporate seals to be hereunto affixed this 30 day of January 2 0 •i•ur, y�'"''+'r if". �" FIR]?MAN'S FUND INSURANCE COMPANY NATIONAL SURETY CORPORATION • + #`+ THE AMERICAN INSURANCE COMPANY """'•'b� lr r s ASSOCIATM INDEMNITY CORPORATION t` .j `......,•`;� t'"re c � `�+m"I�c�►`` +,ca,rs AMERI UTOMOBIIE INSURANCE COMTANY STATE OF CALIFORNIA SS. By �^k+ .• COUNTY OF MARIN W44Pmk arc on" 30 day of January ,01,before mepersonally came Donn R. ]Colbeck - to me known,who,being by me duly sworn,did depose and say:that he is a Vice-President of each company,described in and which executed the above instrument;that he knows the seals of the said Companies;that the seals affixed to the said instrument are such company seals;that they were so affixed by order of the Board of Directors of said companies and that he signed his name thereto by like order. IN WITNESS WHEREOF.I have hereunto set my hand and affixed my official seal,the day and year herein first above written. P KRISTIN A.GAZZOU 0 COMM.#1262236 IL NOTARY M�RIN t�CfJFt1'ItFCFWUI My C wL tbtpk+•APIS 7Y.2W4 'k ` N STATE OF CALIFORNIA I SS. CERTIFICATE COUNTY OF MARIN I. the undersigned, Resident Assistant Secretary of each company, DO HEREBY CERTIFY that the foregoing and attached POWER OF ATTORNEY remains in full force and has not been revoked;and furthermore that Article VII of the By-laws of each company,and the Resolution of the Board of Directors;set forth in the Power of Attorney,are now in force. Signed and sealed at the County of Marin. Dated the 24th day of January 2002 +'"u•nrc sx' "'fit + ® # d rZGfkCBt ASSi3tORt CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT StateofG11cC`n► . County ofCo� On TOLA\J C_AA before me dbf LA_ sy)e-CL43 )"I,+, , NO(i Date �- y Name and Title of Officer(e.g.,"J ne Doe,Notary lic") personally appeared `k\d) c� 0- Name(s)of Signer(s) (personally known to me-OR-El proved to me on the basis of satisfactory evidence to be the person whose nameH is/.ve subscribed to the within instrument and acknowledged to me that he/eheAhey executed the :.s_ 7 same in his/4e#their authorized capacity(-ies), and that by r DE$RA A.SHE�WOOi7 his/bei#ti�&si nature on the instrument the person(z), � COMM.�13135132 g (�' p {� 0 NOTARY PUBLIC-CAUFORNIA�i or the entity upon behalf of which the person(4 acted, CONTRA COSTA COUNTY�} executed the instrument. COMM.EXP.JULY 16,2005 WITNESS my hand official seal. Signature of Notary Public 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: Number of Pages: Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Individual ❑ Individual ❑ Corporate Officer ❑ Corporate Officer Title(s): Title(s): ❑ Partner—❑ Limited ❑ General ❑ Partner—❑ Limited ❑ General ❑ Attorney-in-Fact ❑ Attorney-in-Fact ❑ Trustee ❑ Trustee ❑ Guardian or Conservator ❑ Guardian or Conservator OP. ❑ Other: Top of thumb here ❑ Other: Top of thumb here Signer is Representing: Signer Is Representing: -3 01995 National Notary Association-8236 Remmet Ave.,P.O.Box 7184•Canoga Park,CA 91309-7184 Prod.No.5907 Reorder:Call Toll-Free i-800-876.6827