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HomeMy WebLinkAboutMINUTES - 06032008 - C.18 C S E__L TO: BOARD OF SUPERVISORS `�� 7.. °t`; Contra FROM: JULIA R. BUEREN PUBLIC WORKS DIRECTOR Costa DATE: Juhe 3, 2008 rls>q - �i Count coon Y SUBJECT: Approve Subdivision Agreement(Right-of-Way Landscaping) for Road Acceptance 05-01187 (cross-reference Subdivision 99-08306), being developed by Shapell Homes, a Division of Shapell Industries, Inc. a Delaware Corp., San Ramon (Dougherty Valley) area. (District III) SPECIFIC REQUEST(S)OR RECOMME•NDA-1-ION(S)&BACKGROUND AND JUSTIFICATION RECOMMENDATION(S):. ADOPT Resolution No. 2008/ 4lv for Road Acceptance 05-01187 (cross-reference Subdivision 99-08306), approving Subdivision Agreement (Right-of-Way Landscaping), for,project being developed by Shapell Homes, a Division of Shapell Industries, Inc. a Delaware Corp., San Ramon (Dougherty Valley) area. (District III) FISCAL IMPACT: None. BACKGROUND/REASON(S) FOR R.ECOMMENDATION(S): Road Acceptance 05-01187 has been reviewed and processed by Public Works staff and meets all applicable conditions of approval regarding landscape improvements. CONSEQUENCES OF NEGATIVE ACTION: The Subdivision Agreement(Right-of-Way Landscaping) will not be approved. Continued on Attachment: L,� SIGNATURE: _ ECOMMENDATION OF COUNTY ADMINISTRATOR _RECOMMENDATION OF BOARD COMMITTEE "APPROVE THER SIGNATURES : s — ACTION OF BO(AIJD ON APPROVED AS RECOMMENDED OTHER v TE OF SUPERVISORS I hereby certify that this is a true and correct UNANIMOUS(ABSENT_ copy of an action taken and entered on the AYES: NOES: minutes of.the Board of Supervisors on the ABSENT: ABSTAIN: date shown. i..l,jc G:\EiigSvc\BO\2008\06-03\RA 05-01187 BO-1617ORM.docx Originator: Public Works(FS) /o Contact: 7•.Ric -2363) O 3 d cc: Public Worksrks- Construction ( ATTESTED: © Current Planning,Community Development JOHN CULLEN, Clerk of the Board of Chris Low,City of San Ramon 2222 Camino Ramon,San Ramon,CA 94583 Supervisors and County Administrator Shapell llomes 100 N.Milpitas Blvd Milpitas,CA 95035 Attn:Jim Gold/Sam Worden The Continental Insurance Company By , Deputy 2355 E.Camelback Road,Suite 500 Phoenix,A7 85016 SUBJECT: Approving Subdivision Agreement (Right-of-Way Landscaping) for Road Acceptance 05-01187 (cross-reference Subdivision 99-08306); being developed by Shapell Homes, a Division of Shapell Industries, Inc. a Delaware Corporation, Spin Ramon (Dougherty Valley) area. (District III) DATE: June 3, 2008 PAGE: 2 II. Surety Bond Bond Company: The Continental Insurance Company Bond Number and. Date: 929 412 140 Performance Amount: $222,380.00 Labor& Materials Amount: $112,290.00 Principal: Shapell. Homes, a Division of Shapell Industries, Inc. a Delaware Corp. NOW THEREFORE BE IT RESOLVED that said Subdivision Agreement (Right-of- Way Landscaping) is APPROVED. All deposit permits are on. file with the Public Works Department. THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA Adopted this Resolution on June 3, 2008 by the following vote: AYES: Gioia,Uilkema,Piepho,Bonilla&Glover NOES: none ABSENT: none ABSTAIN: none RESOLUTION NO. 2008/3 �� SUBJECT: Approving Subdivision Agreement (Right-of-Way Landscaping) for Road Acceptance 05-01187 (cross-reference Subdivision 99-08306), being developed by Shapell Homes,, a Division of Shapell Industries, Inc. a Delaware Corporation, San Ramon (Dougherty Valley) area. (District III) These improvements are approximately located along Main Branch Road and Bollinger Canyon Road.. The following document was presented for Board approval this date for Road Acceptance 05-01187, located in the San Ramon (Dougherty Valley) area. A Subdivision Agreement (Right-of-Way Landscaping) with Shapell Homes, a Division of Shapell Industries, Inc. a Delaware Corporation,;developer, whereby said developer agrees to complete all improvements as required in said Subdivision. Agreement (Right-of-Way Landscaping) within two, year(s) from the date of said agreement. Improvements generally consist of landscaping. Said document was accompanied by the following: Security to guarantee the completion of right-of-way landscaping as required by Title 8 and 9 of the County Ordinance Code, as follows: I. Cash Deposit Deposit Amount: $2,200.00 Deposit made by: Shapell Homes, a Division of Shapell Industries, Inc. a Delaware Corporation Auditor's Deposit Permit No. and Date: 502197 May 1, 2008 LL:;c I hereby certify that this is a true and correct copy of an Originator: '. Public `ork 1)5-01187 HO-IG FORM.docx action taken and entered on the minutes of the Board of Originator: � Public Works(ES) Contact: T.Rie(313-2363) cc: Public Works- Construction - Supervisors on the date shown. Current Planning,Community Development C'Itris Low,City of San Ramon 2222 Camino Ramon,San Ramon,CA 94583 ATTESTED: © �o� Shapell Homes 101)N.Milpitas Blvd JOHN CULLEN, Clerk of the Board of Supervisors and Milpitas•CA 95035 . Attn:Jim Gold•'Sarn Worden County Administrator The Continental Insurance Company. ' 2355 E.Camelback Road.Suite 500 Phoenix,Al.85U16 By ,Deputy RESOLUTION NO.2008/ �'�a Authorizing By-Laws and Resolutions ADOP I•I?D BY THF;130ARD OF DIRECTORS OF THE CONTINENTAL INSURANCE COMPANY: This Power of Attorney is made and executed pursuant to and by authority of the following By-Law duly adopted by the Board of Directors of the company. "Article VI-Execution of Documents Section 3. Appointment of Attorney-in-Pact. The Chairman of the Board of Directors,the President or any Executive or Senior Vice President may, from time to time,appoint by written certificates attorneys-in-fact to act in behalf of the Company in the execution of policies of insurance,bonds,undertakings and other obligatory instruments of like nature. Such attorneys-in-fact,subject to the limitations set forth in their respective certificates of authority shall have full power to bind the Company by their signature and execution of any Such instruments and to attach the seal of the Company thereto. The Chairman of the Board of Directors,the President or any Executive or Senior Vice President or the Board of Directors,may,at any time,revoke all power and authority previously given to any attorney-in-tact. This Power of Attorney is granted and is signed by facsimile under and by the authority of the following Resolution adopted by the I xeCuliye Committee of the Board of Directors of The Continental Insurance Company by unanimous written consent dated the 13"'day of.Ianuai.y, 1959: RESOLVED,that the signatures of.such officers and the seal of the Company may be affixed to any such Power of Attorney or to any certificate relating thereto by facsimile,and any Such Power of Attorney or certificate bearing Such facsimile signatures or facsimile Seal shall be valid and binding upon the Company when so affixed and in the future with respect to any bond,undertaking or contract of Suretyship to which it is attached." POWER OF ATTORNEY APPOINTING iNDiVI.I.)UAL ATTORNEY-IN-FACT . Know All Men lay"These Presents,"I'hat The Continental Insurance Company,a Pennsylvania corporation, is a duly organized and existing corporation having its principal office in the City of Chicago,and State of Illinois,and that it docs by virtue of the signature and seal herein affixed hereby make,constitute and appoint Pamela L Stocks, Beverly A Hall,Sandra V Manner,Gina O'Shea, individually of Sherman Oaks,CA,its true and lawful Attor-ncy(s)-in-Fact with full power and authority hereby conferred to sign,seal and execute torr and on its behalf bonds,undertakings and other obligatory instruments of similar nature - In Unlimited Amounts- and to bind them thereby as fully and to the same extent as if such instruments were signed by a duly authorized officer ol'the corporation and all the acts of said Attorney,pursuant to the authority hereby given is hereby ratified and confirmed. This tower of Attorney is rnade and executed pursuant to and by authority of the By-Law and Resolutions,printed on the reverse hereof,duly adopted,as indicated,by the Board of Directors of the corporation. In Witness Whereof,The Continental Insurance Company has caused these presents to be signed by its Senior Vice President and its-corporate seal to be hereto affixed on this 22nd flay of November,2006. The Continental Insurance Company ;��,y ixst,R.• • ... fin. er �: Thomas P. Stillman Senior Vice President State of Illinois,County of C..'ook,ss: On this 22nd day of\ovember,2006,before me personally came Thomas P. Stillman to me known,who,being by me duly sworn,did depose and say: that he resides in the City of Chicago,State of Illinois;that he is a Senior Vice President of The Continental Insurance Company,a Pennsylvania corporation,described in and which executed the above instrument;that he knows the seal of'said corporation;that the seal affixed to the said instrument is such corporate seal;that it was so affixed pursuant to authority given by the Board of Directors ol'said corporation and that he signed his name thereto Pursuant to like authority,and acknowledges same to be the act and decd ofsaid corporation. eooeeeseoeoeeoeeeooeoee a "OFFICIAL SEAL" °e MARIA M.MEDINA e Notary mission Stoto a o} s � My Commission Expires 3/1lo8 oeeeoeesessoeseeeeeooe. `J My Commission Expires March 15, 2009 Maria M. Medina Notary Public CERTIFICATE I, Mary A. Ribikawskis,Assistant Secretary of The Continental insurance Company,a Pennsylvania corporation,do hereby certify that the Power of Attorney herein above set forth is still in force,and further certify that the By-Law and Resolution of the Board of Directors of the corporation printed on the reverse hereof is still in force. In testimony whereof I have hereunto subscribed my name and affixed the seal of the said corporation this 11th day of_.-_.._Agri 1 • 00,9 ••'v���1,1NS pR4�� The Continental Insurance Company :U '•. �. rc, b ���'••o•••••• Mary A. I+kal8kis Assistant Secretary Form F6850-11!2001 • e As par(of the obligation secured hereby and in addition to the face amount specified therefore,there shall be included costs and reasonable expenses 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.(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 eontractor-s,subcontractors,laborers,material men and other persons employed in the perforniance of the aforesaid agreement and referred to in the aforesaid Civil Code Fo•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 beincluded 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 UnderTitle.15(commencing with Section 3082)of fart 4 of Division 3 of the Civil Code,so as to give a right ofaction to them or their assigns in any suit brouglit upon this bond. Should the condition of this bond be fully performed then this obligation shall becomenull and void, otherwise it shall be and remain in full force and effect. C. No alteration oCsaid subdivision agreement or any plan or specification of said work agreed to bythe Principal and the County shall relieve any Surety fiom liability on this bond;and consent is hereby given to make such alteration without further notice to or consent by Surety;and the Surety hereby waives the provisiotis of Cali fonsia Civil Code Section 2819,and holds itself bound without regard to and independently of any action against Principal whenever taken. SIGNED AND SEALED on April 11_, 2008 Shapell Homes, a Division of Shapell Industries, Inc., PRINCIPAL: a Delaware Corp. _ _ SURETY; The Continental Insurance Company Address: 100 N. Milpitas Blvd. Address: 2355 E. Camelback Road, Suite 500 City: Mili s, A ZiI�: 95035 City: Phoenix. AZ Zip: 85016 Print Name: _ E'iN Print Name: Pamela L. Stocks Title' 7" _ Title: Attorne -in_Fact Bqn0' _ P andTitle: Qo�� �• �yt�Q, - �'• U .� .P1VSI SI61Rp,1TA(igiDelalrngSwTumn ON 15'ORD•13N-I2A.Uut Rev.Julie 17.1949 J Subdivision: RA 05-01187 (cross-ref SUB 8.306) Bond No.: 929 412 140 Premium: $1,001.00 Gale Ranch III, RA 05-01187 11i�IPROvrtwNT SFCURITY BONI) FOR PUBLIC RIGH"r OF WAY LANDSCAPE AGREEMENT (Performance, Guarantee, and Payment) (California Government Code Sections 66462 and 66463) 1. RECITAL.OF SUBDIVISION AGREEMENT: The Principal has executed an agreement with the County to install and pay for public right of way landscaping, and other related improvements in RA 05-01197 Lcoss-ref SUB 830 _as specified in the Subdivision Agreement(Right of Way Landscaping),and to complete said work within the linre specifted for completion in the Subdivision Agreement (Right of Way Landscaping), all in accordance with State and local laws and rulings thereunder in order to satisfy conditions for filing of the Final Map or Parcel Map for said Subdivision. 2. OBLIGATION: Sliapell Homes,a Division of Shapell Industries. .inc.. a Delaware Corn ,asPrincipal,and The Continental..Insurance Company _ ,a corporation organized existing under the laws of the State of _ PA _ and authorized to transact surety business in California, as Surety, hereby jointly and severally bind ourselves, our heirs, executors, administrators,successors, and assigns to the County of Contra Costa, California to pay it: A. Performance and Guarantee: Twe._Hundred Twenty-Two Thousand.,Three Hundred Eighty and 00/100 Dollars ($_. 222,380.00 .__) for itself or any city assignee under the above County Subdivision Agreement, plus B. Payment; One Hundred Twelve'rhousand,Two_Hundred Ninety a►td 00/100 _Dollars ($ 112,290.00 �_) to secure the claims to which reference is made in Title XV (commencing with Section 3032) of Part 4 of Division ill of the Civil Code of the State of. California. 3. CONDI'T'ION: A. The Condition of this obligation as to Section 2.(A) above is such that if the above bounded 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 perforni 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 tinie 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; othertivise it shall be and remain in full force and effect. CALIFORNIA ALL-PURPOSE ACKNO LE6GMENT State of California County of_Los Angeles On April 11, 20.08 before me, Beverly A. Hall, Notary Public Date Here insert Name and Title of the Officer personally appeared Pamela L. Stocks Name(s)of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name( is/Am subscribed to the within instrument and acknowledged to me that M/she/tkWexecuted the same in tWher/tdx&authorized capacityox#, and that by WherAWK signature(s) on the instrument the person(s), or the entity upon behalf of BEVERLY A. KM—L---j which the person(&) acted, executed the instrument. Commission• 1717919 .•• Notary Public•California I certify under PENALTY OF PERJURY under the laws Los Angola County of the State of California that the foregoing paragraph is -14,COMMOOMAM6.2011 true and correct. WITNESS my hand and official seal. Notary Seal Signature_—___ Signad of Notary Publir; • 1 (\(�nrN�%�:�v`Nv/N%v'\(�V�tiV'.!�\N,.ti'.��\i\%�iVNv\�iVW\MVV•.N�M�i'\i\N\\M�/\%\v�`l���ti�v�/N^iV\\/�N,'/�\/�/�VV�W\!�!n%\�lvi\!'Miv'�N^n^�l i I� CALIFORNIA ALL PURPOSE ACKNOWLEDGMENT zj S` State of California z County of Santa Clara <. On April 15,2008, before me,Janice T. Kruse, Notary Public personally appeared > >� Robert D. Moore and Ken Cox who proved to me on the basis of satisfactory evidence z� to be the persons whose names are subscribed to the within instrument and acknowledged z<; to me that they executed the same in their authorized capacities, and that by their z� signature on the instrument the person, or the entity upon behalf of which the person S acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. �s zs Z JANICE T.KRUSE WITNESS my hand 4t4..2fficial seal. ; {� Commission# 1597428 i OMY Notary Public-CaliforniaSanta ClaraCounty Comm.Expires Aug24,2009y Sig ature of Notary Public Optional Information ,z Title or Type of Document: Improvement Bond - Landscape RA-05-01187,.Tract ` 8306 z5 �, zz �z Capacity Claimed by Signer: Assistant Vice President and Assistant Secretary of � Shapell Industries,Inc. ?� z3 Effective 1/1/08 `INVV(\^nN!\,'.\!V-..NN'.'�(\lN./\.'✓\^/W!'•.^NV\!\'!`t.N\/\:'V'.NW\:\/\✓\.nM.N,I^!\M^.'\/N\(i./W\/\:^(�\n/\N'/\/.\/`.MN,.'/\l.nlV.n(\^N\.'/\M N/\M, \^'\/\!\!\.',•/\.(v\/./!'!\/.•v\!.."..\/.•VAN'/\.'W`.N`.N\M/\(.(\.(.M.NVIV NV.(\/\•'.NWS:'!\/\N.'\.n-'\.YV/`!V•!W!\ \nN'\•Y.V\J//•N','�W,\:'\.'\!\.\//\.ni'\(v'!`!Vy`!V 3 SUBDIVISION AGREEMENT (Right of Way Landscaping) (Government Code§66462 and§66463) Subdivision: RA 05-01187(cross-ref SUI3 8306) Effective Date: Subdivider: Shapell Homes, a Division of Shapell Completion Period: 2 year Industries, Inc., a Delaware Corp. THESE SIGNATURES ATTEST TO THE PARTIES'AGREEMENT HERETO: CONTRA COSTA COUNTY SUBDIVIDER: (Name and Title) Julia R. Bueren, Public Works Director (signature) (print name411v �C(�MENDED' FOR APPROVAL: K t fst �'ec;`fy• By: (signature) Engineering Service Di Iso (print name&fi e) ^ FORM APPROVED: Victor .Westman, County Counsel (NOTE:All signatures to be acknowledged. If Subdivider is incorporated, signatures must conform with the designated representative groups pursuant to Corporations Code§313.) 1. PARTIES&DATE. Effective on the above date,the City of County of Contra Costa,California,hereinafter called"Cour ,"and the above-mentioned Subdivider,mutually promise and agree as follows concerning this subdivision: 2. IMPROVEMENTS. Subdivider agrees to install certain road improvements(both public and private), drainage improvements, signs, street lights, fire hydrants, landscaping, and such other improvements (including appurtenant equipment) as required in the improvement plans for this subdivision as reviewed and on file with the Contra Costa County Public Works Department and in conformance with the Contra Costa County Ordinance Code(including future amendments thereto). Subdivider shall complete said work and improvements(hereinafter called"work")within the above completion period from date hereof as required by the California Subdivision Map act(Government Code§§66410 and following),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. IMPROVEMENT SECURITY. Upon executing this Agreement,the Subdivider shall,pursuant to Government Code§66499,and the County Ordinance Code,provide as security to the County: A. For Performance and Guarantee: $2,200.00 cash,plus additional security,in the amount of$ 222,380.00 which together total one hundred percent(10011/c.)of the estimated cost of the work. Such additional security is presented in the form of: Cash,certified check or cashiers check. XX Acceptable corporate surety bond. Acceptable irrevocable;letter of credit. With this security,the Subdivider guarantees performance under this Agreement and maintenance of the work for one year after its completion and acceptance against any defective workmanship or materials or any unsatisfactory performance. B. For Payment: Security in the amount of$112,290.00,which is fifty percent(50%)of the estimated cost of the work. Such security is presented in the form of: Cash,certified check,or cashier's check XX Acceptable corporate surety bond. Acceptable irrevocable letter of credit. With this security,the Subdivider guarantees payment to the contractor,to his subcontractors,and to persons renting equipment or furnishing labor or materials to them or to the Subdivider. C. Upon acceptance of the work as complete by the Board of Supervisors and upon request of the Subdivider,the amount securities may be reduced in accordance with§94-4.406 and§94-4.408 of the Ordinance Code. 4. GUARANTEE AND WARRANTY OF WORK. Subdivider guarantees that said work shall be free from defects in material or workmanship and shall perform satisfactorily fora period of one-yearfrom and after the Board of Supervisors accepts the work as complete in accordance with Article 96-4.6,"Acceptance",of the Ordinance Code. Subdivider 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 which are not to be accepted into the County road system. 5. PLANT ESTABLISHMENT WORK. Subdivider 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 plants.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. At the discretion of the County,bids may be released after final acceptance of landscaping improvements by the County. 6. IMPROVEMENT PLAN WARRANTY. Subdivider warrants the improvement plans for the work are adequate to accomplish the work as promised in Section 2 and as required by the Conditions of Approval for the Subdivision. 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,Subdivider 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 any part of said work and/or materials,or payments,therefor,or any combination or all of these acts,shall not relieve the Subdivider 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. INDEMNITY: Subdivider shall hold harmless and indemnify the indemnitees from the liabilities as defined in this section: A. The indemnities benefitted and protected by this promise are the County,and its special district,elective and appointive boards,commissions,officers,agents,and employees. B. The liabilities 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),orother proceeding(s)conceming 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 Subdivider,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 plan(s)or specification(s)in connection with this work or subdivision,or has insurance or other indemnification covering any of these matters,or that the alleged damage resulted partly form any negligent orwillful misconduct of any Indemnity. 9. COSTS: Subdivider shall pay when due,all the costs of the work,including inspections thereof and relocating existing utilities required thereby. 10. SURVEYS. Subdivider shall set and establish survey monuments in accordance with the filed-map and to the satisfaction of the County Road Commissioner-Surveyor before acceptance of any work as complete by the Board of Supervisors. 11. NON-PERFORMANCE AND COSTS: If Subdivider 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 Subdivider 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. Subdivider hereby consents to entry on the subdivision 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,Subdivider agrees to pay all costs incurred by the County,even if Subdivider subsequently completes the work. Should County sue to compel performance under this Agreement or to recover costs incurred in completing or maintaining the work,Subdivider agrees to pay all attorney's fees,and all other expenses of litigation incurred by County in connection therewith,even if Subdivider subsequently proceeds to complete the work. 12. INCORPORATION/ANNEXATION. If,before the Board of Supervisors accepts the work as complete,the subdivision is included in territory incorporated as a city or is annexed to an existing city,the County's 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 Subdivider,who shall fulfill all the terms of this agreement as though Subdivider had contracted with the city originally. 13. RECORD MAP. In consideration hereof, County,shall allow Subdivider to file and record the Final Map or Parcel Map for said Subdivision. kvrlap G:1GrpData%EngSvrTonnMG WORDIAG-30A.doc Rev May 18.2001 I\ l CALIFORNIA ALL PURPOSE ACKNOWLEDGMENT �S :z State of California < County of Santa Clara On April 15,2008, before me, Janice T. Kruse, Notary Public personally appeared >' Robert D. Moore and Ken Cox who proved to me on the basis of satisfactory evidence <; <: to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities, and that by their z: signature on the instrument the person, or the entity upon behalf of which the person %z acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that. 1` the foregoing paragraph is true and correct. z JANICE T.KRUSE WITNESS my hand an fficial seal. Commission# 1597428 Notary Public-California Z Santa Clara County My Comm.ExpiresAug24,2C109 Sig ature of Notary Public z` X. Optional Information Z /. i< Title or Type of Document: Right of Way Landscape Agreement RA-05-01187, Tract 8306 Capacity Claimed by Signer: Assistant Vice President and Assistant Secretary ofd Shapell Industries, Inc. < �l f. Effective 1/l/08 15;