HomeMy WebLinkAboutJoint Community Facilities Agreement (Flood Control Improvements) dated as of November 1, 2004
CLERK'S COPY Contract N0g ffj s 0> JOINT COMMUNITY FACILITIES AGREEMENT (Flood Control Improvements) by and among RIVERSIDE COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT, COUNTY
OF RIVERSIDE, CITY OF TEMECULA, TEMECULA PUBLIC FINANCING AUTHORITY and ASHBYUSA,LLC a California limited liability company Dated as of Novemberl, 2004 Relating to: Temecula Public Financing
Authority Community Facilities District No. 03-02 (Roripaugh Ranch) CFD No. 03-02 (Roripaugh Ranch) -JCFA Flood Control Facilities -Execution Copy 1AM A 7finR l\ U
TABLE OF CONTENTS ARTICLE I DEFINITIONS Section 1.1. Definitions 5 ARTICLE II CONDITIONS PRECEDENT Section 2.1. Proceedings ...9 ARTICLE III ACQUISITION OF THE FLOOD CONTROL FACILITIES
Section 3.1. Acquisiton of the Flood Control Facilties 10 Section 3.2. Determination of the Purchase Price 10 Section 3.3. Dedication of Property and Easements to the Flood Control District
12 Section 3.4. Modifications to Acquisition Costs 12 Section 3.5. Application of Realized Savings 13 ARTICLE IV CONSTRUCTION OF THE FLOOD CONTROL FACILITIES Section 4.1. Preparation
and Approval of Plans 14 Section 4.2. Duty of Developer to Construct 14 Section 4.3. Bid and Construction Requirements 14 Section 4.4. Licenses and Regulatory Permits 16 Section 4.5.
NPDES Compliance 17 Section 4.6. Cal/OSHA, Confined Space Entry 18 Section 4.7. Notice of Intent to Commence Construction 18 Section 4.8. Bonding Requirements 20 Section 4.9. Additional
Conditions to be Satisfied during Construction 20 Section 4.10. Inspection, Completion of Construction 20 Section 4.11. Maintenance of Facilities; Warranties 21 Section 4.12. Insurance
Requirements 21 Section 4.13. Ownership of the Facilities 23 ARTICLE V REPRESENTATIONS, WARRANTIES AND COVENANTS; INDEMNIFICATION Section 5.1. Representations, Warranties and Covenants
of the Developer. 25 Section 5.2. Representations, Warranties and Covenants of the Authority 26 CFD No. 03-02 (Roripaugh Ranch) -JCFA Flood Control Facilities -Execution Copy
Section 5.3. Representations, Warranties and Covenants of the Flood Control District 27 Section 5.4. Representations, Warranties and Covenants of the City 28 Section 5.4. Representations,
Warranties and Covenants of the County 29 Section 5.6. Indemnification 29 ARTICLE VI MISCELLANEOUS Section 6.1. Developer as Independent Contractor.... 31 Section 6.2. Other Agreements
31 Section 6.3. Binding on Successors and Assigns 31 Section 6.4. Amendments 32 Section 6.5. Waivers 32 Section 6.6. No Third Party Beneficiaries 32 Section 6.7. Notices 32 Section 6.8.
Jurisdiction and Venue 33 Section 6.9. Attorney's Fees 33 Section 6.10. Governing Law 34 Section 6.11. Usage of Words 34 Section 6.12. Counterparts 34 Section 6.13. Interpretation 34
Section 6.14. Designation of Party Representative 34 EXHIBIT A PROPOSED BOUNDARY MAP OF CFD NO. 03-02 A-l EXHIBIT B FLOOD CONTROL IMPROVEMENTS -DIAGRAM, DESCRIPTION AND ACQUISITION COSTS
B-l EXHIBIT C PARCELS AND EASEMENTS TO BE CONVEYED TO THE FLOOD CONTROL DISTRICT C-l EXHIBIT D FORMS OF PAYMENT AND PERFORMANCE BONDS ..B-l EXHIBIT E FORM OF PAYMENT REQUEST F-l EXHIBIT
F FORM OF LICENSE AGREEMENT G-l CFD No. 03-02 (Roripaugh Ranch) -JCFA Flood Control Facilities -Execution Copy
JOINT COMMUNITY FACILITIES AGREEMENT THIS JOINT COMMUNITY FACILITIES AGREEMENT (this "Joint Community Facilities Agreement") is made and entered into as of November 1, 2004, by and among
Riverside County Flood Control and Water Conservation District, a public agency organized and existing pursuant to Chapter 48 of the Appendix to the California Water Code (hereinafter,
the "Flood Control District"), County of Riverside, a political subdivision of the State of California (hereinafter the "County"), the City of Temecula, an incorporated municipality
(hereinafter, the "City"), the Temecula Public Financing Authority, a Joint Powers Authority established pursuant to Article 4, Chapter 5, Division 5 of Title 1 of the California Government
Code (the "Authority"), and Ashby USA, LLC, a California limited liability company (hereinafter, the "Developer"). RECITALS WHEREAS, pursuant to a petition presented to the Authority
executed by the Developer who owns more than ten percent (10%) of approximately 805 vacant acres comprising Tract Map Nos. 29353-1, 29353-2 and 29353-3 (collectively, the "Property")
that are located within the boundaries of the City and are commonly referred to as "Roripaugh Ranch," the Board of Directors of the Authority (the "Legislative Body") has initiated proceedings
to form a community facilities district that is to be identified as Temecula Public Financing Authority Community Facilities District No. 03-02 ("Roripaugh Ranch") (the "Community Facilities
District") by the adoption of its Resolution No. TPFA 04-08 on August 24, 2004, as amended by Resolution No. TPFA 04-10 (the "Resolution of Intention"), under the authority of the Mello-Roos
Community Facilities Act of 1982 (the "Mello-Roos Act") (commencing with Section 53311 of the California Government Code (the "Code")). WHEREAS, the Developer is the master developer
of the Property, as shown on Exhibit A, attached hereto, that will allow for the construction of approximately 2,000 residential units, approximately 15 acres of related commercial development,
school and park sites, and construction of a fire station all within the boundaries or in the vicinity of the Community Facilities District. WHEREAS, the Developer has requested and
proposed that the Community Facilities District be formed for the purpose of providing the means of financing the construction and/or acquisition of certain streets, related drainage
improvements, and park facilities to be owned and maintained by the City, certain street and related drainage improvements to be owned and maintained by the County of Riverside (the
"County"), certain flood control and storm water drainage facilities to be owned and maintained by the Flood Control District (the "Flood Control Facilities") and certain water and sewer
improvements to be owned and maintained by Eastern Municipal Water District. The Flood Control Facilities are to be owned, operated and maintained by the Flood Control CFD No. 03-02
(Roripaugh Ranch) -JCFA Flood Control Facilities -Execution Copy 2
District upon their acceptance by the Flood Control District. The Flood Control Facilities are diagramed in concept, described and their estimated acquisition costs are stated in Exhibit
B attached hereto and incorporated herein by this reference. WHEREAS, Section 53313.5 of the Code provides that a community facilities district may only finance the purchase of facilities
whose construction has been completed, as determined by the legislative body of the community facilities district, before the resolution of formation to establish the community facilities
district is adopted pursuant to Section 53325.1 of the Code, except that a community facilities district may finance the purchase of facilities completed after the adoption of a resolution
of formation if the facility is constructed as if it had been constructed under the direction and supervision, or under the authority of, a local public agency. WHEREAS, alternatively,
Section 53314.9 of the Code provides that at any time either before or after the formation of a community facilities district, the legislative body may accept advances of funds or work
in-kind from any source, including, but not limited to, private persons or entities, and may provide, by resolution, for the use of those funds or that work in-kind for any authorized
purpose, under all of the following conditions: (a) the proposal to repay the funds or the value or cost of the work in-kind, whichever is less, is included in both the resolution of
intention to establish the community facilities district adopted pursuant to Section 53321 of the Code and in the resolution to establish the community facilities district pursuant to
Section 53325.1 of the Code, (b) any proposed special tax is approved by the qualified electors of the community facilities district pursuant to the Act, and (c) any work in-kind accepted
pursuant to Section 53314.9 of the Code shall have been performed or constructed as if the work had been performed or constructed under the direction and supervision, or under the authority,
of a local public agency.WHEREAS, pursuant to the Act, the Board of Directors has adopted the Resolution of Intention stating that it is the intention of the Authority to cause the proposed
Community Facilities District to be established, and if established, to reimburse the Developer all, or a portion, of the funds or value or cost of the work in-kind, whichever is less,
without interest, provided all of the conditions of Section 53314.9 of the Code are satisfied and that such reimbursement shall only be from the proceeds of special tax bonds, if any
are sold and issued by the proposed Community Facilities District.WHEREAS, the Act provides that the proposed Community Facilities District may finance the Flood Control Facilities only
pursuant to a joint community facilities agreement adopted pursuant to Sections 53316.2, 53316.4 and 53316.6 of the Code. WHEREAS, the Flood Control District, the County, the City, the
Authority and the Developer desire to enter into this Joint Community Facilities Agreement, as required by the aforementioned sections of the Code and prior to the adoption by the Board
of Directors of the resolution establishing the Community Facilities District. The provisions of this Joint Community Facilities Agreement are intended to apply only to the Flood Control
Facilities, unless expressly stated otherwise. CFD No. 03-02 (Roripaugh Ranch) -JCFA Flood Control Facilities -Execution Copy 3
WHEREAS, consistent with Section 53316.2 of the Code, the Authority, the City, the Flood Control District, and the County find that the approval of this Joint Community Facilities Agreement
will be beneficial to the residents of the their respective jurisdictions and to the owners of property within the Community Facilities District. NOW, THEREFORE, for and in consideration
of the mutual premises and covenants contained herein, the parties hereto agree as follows: CFD No. 03-02 (Roripaugh Ranch) -JCFA Flood Control Facilities -Execution Copy
ARTICLE I DEFINITIONS Section 1.1 Definitions. Unless the context otherwise requires, the terms defined in this Article I shall have the meaning herein specified when used in this Joint
Community Facilities Agreement: "Acceptable Title" means title to land, or an easement therein, delivered free and clear of all liens, taxes, assessments, leases, easements and encumbrances,
whether any such item is recorded or unrecorded, except those non-monetary items which are reasonably determined by the Flood Control District and/or the City not to interfere with the
intended use of such land or easement and therefore are not required to be cleared from title. "Acceptance Date" means, with respect to any Flood Control Facility, the date that the
Flood Control Facility is accepted by the Flood Control District into its maintained system and the Purchase Price therefor has been determined pursuant to the terms this Joint Community
Facilities Agreement. "Acquisition Agreement" means the "Acquisition Agreement" to be entered into by and between the Authority and the Developer, as originally executed or as the same
may be amended from time to time in accordance with its terms "Acquisition Account" means the account by that or a similar name established within the "Improvement Fund" created by the
Indenture. "Acquisition Cost" means, with respect to a Flood Control Facility, the amount specified as the Acquisition Cost for such Flood Control Facility in Exhibit B attached hereto,
as the same may be modified by one or more supplements thereto entered into in accordance with Section 3.4 hereof or augmented as a result of cost savings pursuant to Section 3.5 hereof.
"Act" means the Mello-Roos Community Facilities Act of 1982, constituting Section 53311 et seq. of the Code, as amended. "Actual Cost" means, with respect to a Flood Control Facility,
an amount equal to the sum of (a) the Developer's actual, reasonable cost of constructing such Flood Control Facility, including labor, material and equipment costs, (b) the Developer's
actual reasonable cost of designing and preparing the Plans for such Flood Control Facility, including engineering services provided in connection with designing and preparing such Plans,
(c) the Developer's actual, reasonable cost of environmental evaluations required specifically for such Flood Control Facility, (d) the amount of any fees actually paid by the Developer
to governmental agencies in order to obtain permits, licenses or other necessary governmental approvals and reviews for such Flood Control Facility, (e) the Developer's actual reasonable
cost for professional services directly related to the construction of such Flood Control Facility, including engineering, legal, inspection, construction staking, CFD No. 03-02 (Roripaugh
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materials testing and similar professional services, (f) the Developer's actual, reasonable cost for construction management bid administration services which shall not exceed 5% of
construction costs, (g) the Developer's actual reasonable cost of payment, performance or maintenance bonds and insurance (including any title insurance required hereby) for such Flood
Control Facility, (h) the Developer's actual, reasonable cost of any real property or interest therein acquired after the date on which the Community Facilities District is established
pursuant to the Act for a party other than the Developer, which real property or interest therein is either necessary for the construction of such Flood Control Facility (e.g., temporary
construction easements, haul roads, etc.) or is required to be conveyed with such Flood Control Facility in order to convey Acceptable Title thereto to the Flood Control District, all
as specified in a Payment Request that is to be reviewed and approved by the Flood Engineer; provided, however, that (x) no item of cost relating to a Flood Control Facility shall be
included in more than one category of cost specified in clauses (a) through (h) of this definition, and (y) each item of cost shall include only amounts actually paid by the Developer
to third parties and shall not include overhead or other internal expenses of the Developer, except that, if Developer employees perform construction management, bid administration or
contract administration services with respect to a Flood Control Facility, the actual reasonable cost of the salaries and benefits paid by the Developer to such employees for performing
such services may be included as an item of cost relating to such Flood Control Facility for the category of cost specified in clause (f) of this definition and subject to the 5% limitation
specified in clause (f). "Administrator" means the Treasurer of the Authority, or her/his designee. "Authority" means the Temecula Public Financing Authority, a Joint Powers Authority
established established pursuant to Article 4, Chapter 5, Division 5 of Title 1 of the Code. "Board of Directors" means the Board of Directors of the Authority. "Board of Supervisors"
means, respectively, the Board of Supervisors of the Riverside County Flood Control and Water Conservation District and the Board of Supervisors of the County of Riverside. "Bonds" means
the bonds that the Community Facilities District may attempt to sell and issue in one or more series if the Proceedings are approved, a portion of the proceeds of which will be used
to acquire the Flood Control Facilities. "Business Day" means a day which is not a Saturday or Sunday or a day of the year on which the Flood Control District is not required or authorized
to be open. "CEQA" means the California Environmental Quality Act (CEQA), constituting Section 21000 et seq. of the California Public Resources Code, as amended. "City" means the City
of Temecula, an incorporated municipality. "City Engineer" means the Director of Public Works of the City, or his/her designee. CFD No. 03-02 (Roripaugh Ranch) -JCFA Flood Control Facilities
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"Code" means the California Government Code. "Community Facilities District" means the Temecula Public Financing Authority Community Facilities District No. 03-02 (Roripaugh Ranch),
a community facilities district to be organized and existing under the Code. "Construction Site" means the site on which the Flood Control Facilities are to be constructed, including
off site staging areas and material storage areas. "County" means the County of Riverside, a political subdivision of the State, and its successors. "County Engineer" means the Director
of Transportation of the County (or any successor to the responsibilities thereof if such office is no longer in existence), or his/her designee. "Developer" means Ashby USA, LLC, a
California limited liability company, and its successors and assigns, acting as the master developer of infrastructure within the Community Facilities District, including but not limited
to the Flood Control Facilities. "Developer's Representative" means the person or persons designated as such by the Developer in a certificate signed by the Developer and delivered to
the City, the Community Facilities District, and the Flood Control District, which certificate shall contain an original or specimen signature of each person so designated. "Flood Control
District" means the Riverside County Flood Control and Water Conservation District, a public agency organized and existing pursuant to Chapter 48 of the Appendix to the California Water
Code. "Flood Control Facility" or "Flood Control Facilities" means one or more of those public improvements that are identified and described in Exhibit B attached hereto and are to
be owned, operated and maintained by the Flood Control District. "Flood Engineer" means the General Manager-Chief Engineer of the Flood Control District (or any successor to the responsibilities
thereof if such office is no longer in existence), or his/her designee. "General Prevailing Wage Rates" means those rates as determined by the Director of the Department of Industrial
Relations of the State. "Hazardous Material" means any hazardous or toxic substance, material or waste which is or becomes regulated by any local governmental authority, the State or
the United States Government, including, without limitation, any material or substance which is (a) designated as a "hazardous substance" pursuant to Section 311 of the Federal Water
Pollution Control Act, 33 U.S.C. § 1251 et seq. (33 U.S.C. § 1321), (b) defined as a "hazardous waste" pursuant to Section 1004 of the Federal Resource Conservation and Recovery Act,
42 U.S.C. § 6901 et seq. (42 U.S.C. § 6903), (c) defined as a "hazardous substance" pursuant to Section 101 of the Comprehensive Environmental Response, CFD No. 03-02 (Roripaugh Ranch)
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Compensation and Liability Act of 1980, as amended, 42U.S.C. §9601 et seq., (d) petroleum, or (e) asbestos. "Indenture" means the indenture, trust agreement, resolution, fiscal agent
agreement or similar instrument, regardless of title, pursuant to which bonds, notes or other evidences of indebtedness of the Community Facilities District have been issued and are
outstanding, as originally executed or as the same may from time to time be supplemented or amended pursuant to the provisions thereof. "Joint Community Facilities Agreement" means this
Joint Community Facilities Agreement, dated as of November 1, 2004, by and among the Flood Control District, the County, the City, the Authority and the Developer, as originally executed
or as the same may be amended from time to time in accordance with its terms. "Legislative Body" means the Board of Directors of the Temecula Public Financing Authority, acting ex officio
as the legislative body of the Community Facilities District."Payment Request" means the document to be provided by the Developer to substantiate the Purchase Price of one or more the
Flood Control Facilities, which shall be substantially in the form of Exhibit E attached hereto. "Plans" mean the plans and specifications for the Flood Control Facilities prepared or
to be prepared at the direction of the Developer pursuant to Section 4.1 hereof. "Proceedings" means those proceedings to be undertaken by the Board of Directors to consider the formation
of the Community Facilities District and the approval by the Board of Directors and the qualified electors of the Community Facilities District of the authorization to levy special taxes
therein pursuant to the Rate and Method and by the Legislative Body to sell and issue the Bonds. "Property" means the real property located within the Community Facilities District."Purchase
Price" means, subject to the provisions of Section 3.2 hereof, the lesser of the Actual Cost or the Acquisition Cost of a Flood Control Facility, allowing for the application of the
provisions of Section 3.4 which provides for the modification of the Acquisition Cost and the provisions of Section 3.5 which specifies the circumstances in which additional monies may
be made available to pay the Purchase Price. "Rate and Method" means the rate and method of apportionment of special taxes authorized to be levied within the Community Facilities District
pursuant to the Proceedings. "State" means the State of California. CFD No. 03-02 (Roripaugh Ranch) -JCFA Flood Control Facilities -Execution Copy
ARTICLE II CONDITIONS PRECENDENT Section 2.1. Proceedings. The Developer has submitted to the Authority a petition requesting that the Proceedings be initiated by the Authority with
regard to the formation of the Community Facilities District for the purpose of financing the acquisition or construction of certain public facilities, including the Flood Control Facilities,
to authorize the levy of special taxes within the Community Facilities District pursuant to the Rate and Method and for the Legislative Body to authorize the sale and issuance of one
or more series of Bonds. Should the formation of the Community Facilities District be approved, the Legislative Body will use its best efforts to cause to be sold and issued, pursuant
to the terms of the Act and Indenture, the Bonds in one or more series and a portion of the proceeds of the Bonds are intended to provide funds that will allow the Community Facilities
District to finance a portion of the costs of acquiring the Flood Control Facilities. Should the the Board of Directors not be able to approve the formation of the Community Facilities
District and/or the Legislative Body not be able to sell and issue the first series of the Bonds within two years of date hereof, the Authority, the City, the Flood Control District,
the County and the Developer will not be bound by the terms of this Joint Community Facilities Agreement and it shall be considered null and void by the parties to it. The Developer
acknowledges that the decision of the Board of Directors to approve the formation of the Community Facilities District and of the Legislative Body to authorize the sale and issuance
of the Bonds is an exercise of the legislative discretion of the Board of Directors and Legislative Body, respectively, and that the Authority may not enter into a contract or obligate
either the Board of Directors or the Legislative Body to exercise its legislative discretion in a particular manner. This Joint Community Facilities Agreement does not, therefore, in
any way create a contractual, legal or equitable obligation of or commitment by the Board of Directors to approve the formation of the Community Facilities District or the Legislative
Body to authorize the sale and issuance of the Bonds. Should the Developer elect to abandon the Proceedings, the Developer shall provide written notification of such election to the
Authority, the City, the Flood Control District and the County prior to the adoption by the Legislative Body of the Resolution authorizing the sale and issuance of the Bonds. The Board
of Directors and the Legislative Body shall have the jurisdiction to and shall be solely responsible for undertaking the Proceedings consistent with the provisions of the Act, the Indenture
and the applicable provisions of the Acquisition Agreement. CFD No. 03-02 (Roripaugh Ranch) -JCFA Flood Control Facilities -Execution Copy
ARTICLE III ACQUISITION OF FLOOD CONTROL FACILITIES Section 3.1. Acquisition of Flood Control Facilities. The Developer hereby agrees to transfer to the Flood Control District each of
the Flood Control Facilities and the Community Facilities District hereby agrees to pay the Purchase Price thereof, subject to the terms and conditions hereof and the Acquisition Agreement.
Acceptable Title to any parcels on which any Flood Control Facility is constructed and for which title is not presently held by the Flood Control District as well as the Flood Control
Facility financed pursuant hereto shall be transferred to the Flood Control District as of the Acceptance Date; provided, however, that notwithstanding such transfer, as provided in
Section 4,11 hereof, the Developer shall be solely responsible for the maintenance of any Flood Control Facility until the Acceptance Date of said Flood Control Facility. The Purchase
Price of the Flood Control Facilities is to be paid solely from the amounts in the Acquisition Account, and the Community Facilities District shall not be obligated to pay the Purchase
Price of the Flood Control Facilities except from the amounts in the Acquisition Account. Neither the Authority, the Community Facilities District, the Flood Control District, the County
nor the City make any warranty, either expressed or implied, that the amount in the Acquisition Account available for the payment of the Purchase Price of the Flood Control Facilities
will be sufficient for such purpose. The date on which the Purchase Price is to be paid by the Community Facilities District and whether all or any portion of the Purchase Price will
be paid to the Developer are controlled by the terms of the Acquisition Agreement Section 3.2. Determination of the Purchase Price. The determination of the Purchase Price shall be made
consistent with the provisions of this Section 3.2. In order for the Flood Engineer to be able to determine the Purchase Price for a completed Flood Control Facility, the Developer shall
deliver to the Flood Engineer: (a) A Payment Request for said Flood Control Facility, together with all attachments and exhibits to be included therewith; (b) A copy of the documents
conveying or which previously conveyed to the Flood Control District Acceptable Title to the real property on, in or over which such Flood Control Facility is located, as described in
Section 3.3 thereof; (c) A copy of the Notice of Completion for said Flood Control Facility that will be filed in accordance with Section 3093 of the California Civil Code, if applicable.
Final lien releases addressed to the Authority, the Community Facilities District, the Flood Control District, and the City must be received by the CFD No. 03-02 (Ronpaugh Ranch) -JCFA
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Flood Engineer prior to the Flood Engineer executing the authorization for the Community Facilities District to pay the Purchase Price. (d) The Developer's civil engineer of record or
construction civil engineer of record duly registered in the State shall provide to the Flood Control District redlined "as-built" plans and profile sheets for the Flood Control Facility.
After the Flood Control District's approval of the redlined "as-built" drawings, the Developer's engineer shall schedule with the Flood Control District a time to transfer the redlines
onto the Flood Control District's original mylars at the Flood Control District's office, after which, said engineer shall review, stamp and sign the original mylars "As-Built." (e)
The City and the Flood Control District will enter into a license agreement (the "License Agreement") that is substantially in the form of Exhibit F. The License Agreement will provide
that the City has access to Facility No. 1 as described in Exhibit B for purposes of use of the maintenance roads and a structure to be constructed within the Flood Control District's
right-of way for a multi-purpose trail. It will also require the City to indemnify the Flood Control District for use of portions of the Flood Control District's right-of-way as a multipurpose
trail. Notwithstanding anything to the contrary contained herein, no payment of the Purchase Price for any Flood Control Facility shall be made unless the Flood Control District has
by written notice to the Community Facilities District and the City stated that the Flood Control District is willing to accept ownership of the Flood Control Facility as constructed
and to include it as part of its maintained system as of the Acceptance Date. Said notice will not be provided to the Community Facilities District and the City until the Developer has
provided or caused to be provided to the Flood Control District: (a) Documents by which the Developer conveys to the Flood Control District an easement for storm drain facilities, in
a form approved by the Flood Control District, for rights of way as shown in concept in red on Exhibit C, and policies of title insurance, in an amount not less than fifty percent (50%)
of the estimated fee value, as determined by the Flood Control District, for each parcel so conveyed have been provided to the Flood Control District. (b) Documents by which the Developer
conveys to the Flood Control District an easement, including ingress and egress, in a form approved by the Flood Control District, for the rights of way shown in concept blue on Exhibit
C, and policies of title insurance, in an amount not less than fifty percent (50%) of the estimated fee value, as determined by the Flood Control District, for each parcel so conveyed
have been provided to the Flood Control District. (c) Documents by which the Developer conveys to the Flood Control District fee title, in a form approved by the Flood Control District,
for the rights of way shown in concept green on Exhibit C, and policies of title insurance, in an amount amount not less than one hundred percent (100%) of the estimated fee value, as
CFD No. 03-02 (Roripaugh Ranch) -JCFA Flood Control Facilities -Execution Copy 11
determined by the Flood Control District, for each parcel so conveyed have been provided to the Flood Control District. Once the Flood Engineer has been provided with a complete Payment
Request Form for the Purchase Price and all other documents as required by him to determine the Purchase Price, the Flood Engineer will sign the Payment Request Form, identifying the
Purchase Price and (i) forward said document to the Administrator for payment consistent with the terms of the Acquisition Agreement and (ii) provide written notice to the Community
Facilities District and the City as provided above. Section 3.3. Dedication of Property and Easements to Flood Control District Acceptable Title to all property not presently held by
the Flood Control District on, in or over which the Flood Control Facility will be located shall be deeded over to Flood Control District by way of grant deed, quitclaim, or dedication
of such property, or easement thereon, if such easement is approved by Flood Control District as being a sufficient interest therein to permit Flood Control District to properly own,
operate and maintain such Flood Control Facility located therein, thereon or thereover, and to permit the Developer to perform its obligations as set forth in this Joint Community Facilities
Agreement. The Developer shall furnish to the Flood Control District a title report for such property not previously dedicated or otherwise conveyed to the Flood Control District for
review and approval at least thirty (30) Business Days prior to the notice required by Section 4.7 hereof. The Flood Control District shall approve the title report unless it reveals
a matter that, in the sole judgment of the Flood Control District, could materially affect the Flood Control District's use and enjoyment of any part of the property or easement covered
by the title report. In the event the Flood Control District does not approve such title report, the Flood Control District shall notify the Administrator in writing and the Flood Control
District shall not be obligated to accept title to said Flood Control Facility, and the Community Facilities District shall not be obligated to pay any portion of the Purchase Price
for said Flood Control Facility until the Developer has cured such objections to title to the satisfaction of the Flood Control District Consistent with the proceeding paragraph, the
Developer shall obtain and provide, or cause to be obtained or provided, to the Flood Control District duly executed irrevocable offer(s) of dedication to the public for flood control
purposes, including ingress and egress, for rights of way deemed necessary by the Flood Control District for the construction, inspection, operation and maintenance of the Flood Control
Facilities as shown in concept on Exhibit C which is attached hereto and by this referenced incorporated herein. The irrevocable offer(s) of dedication shall be in a form approved by
the Flood Control District and shall be executed by all legal and equitable owners described in the offer. Section 3.4. Modifications to the Stated Acquisition Cost. The Administrator,
the Flood Control District and the Developer may make modifications in the composition and description of the Flood Control Facilities, or in the amount of the Acquisition Cost for the
Flood Control Facilities, whenever the Administrator, the City CFD No. 03-02 (Roripaugh Ranch) -JCFA Flood Control Facilities -Execution Copy 12
Engineer, the Flood Engineer and the Developer deem such modifications to be appropriate; provided, however, that such Flood Control Facility, as so modified, must be fully functioning
and capable of being used for its intended purpose and must be consistent with the description of the Flood Control Facilities in the Proceedings. Any such modification shall be approved
and implemented by the Administrator, with the approval of the City Engineer, on behalf of the Community Facilities District, the Flood Engineer, on behalf of the Flood Control District,
and the Developer by executing a supplement to Exhibit B containing a description of the modified Flood Control Facility and, if applicable, the adjusted Acquisition Cost. Upon the execution
of any such supplement to Exhibit B, the description of the Flood Control Facility and, if applicable, the adjusted Acquisition Cost in Exhibit B shall be deemed to have been modified
in accordance therewith. Any modification made pursuant to this Section shall not be deemed to be an amendment of this Joint Community Facilities Agreement for purposes of Section 6.4
hereof. No Flood Control Facility may be deleted or added from Exhibit B pursuant to this Section 3.4. The deletion or addition of a Flood Control Facility from Exhibit B constitutes
an amendment to this Joint Community Facilities Agreement and may only be made pursuant to Section 6.4 hereof. Section 3.5. Application of Realized Savings. If the Purchase Price determined
by the Flood Engineer for a completed Flood Control Facility is less than the stated Acquisition Cost of said Flood Control Facility on Exhibit B for said Flood Control Facility, then
the difference is to be identified as "realized savings" that are available and can be applied to increase the Purchase Price of another Flood Control Facility or another improvement
whose acquisition or construction is authorized to be funded with the proceeds of the Bonds. A request for an adjustment to the Acquisition Cost pursuant to this Section 3.5 is to be
initiated by the Developer or the City Engineer and an appropriate supplement to Exhibit B is to be prepared by initiating party. Any proposed adjustment to a Flood Control Facilities
Acquisition cost is subject to the approval by the City Engineer, on behalf of the Community Facilities District, the Flood Engineer on behalf of the Flood Control District, and the
Developer. CFD No. 03-02 (Ronpaugh Ranch) -JCFA Flood Control Facilities -Execution Copy 13
ARTICLE IV CONSTRUCTION OF THE FLOOD CONTROL FACILITIES Section 4.1. Preparation and Approval of Plans. To the extent that the Developer has not already done so, it shall cause Plans
to be prepared for the Flood Control Facilities. The Developer shall obtain the written approval of the Plans from the Flood Engineer, the City Engineer and the County Engineer, as appropriate.
The Developer shall provide a copy of all such Plans to the Flood Engineer, the City Engineer, and the County Engineer, as appropriate. Once the Plans have been approved, no changes
are to be made thereto without prior written consent of the Flood Control District, the City and the County Engineer, as appropriate. Section 4.2. Duty of Developer to Construct. The
Developer shall construct or cause to be constructed the Flood Control Facilities in accordance with the Plans approved by the Flood Engineer, the City Engineer, and the County Engineer.
The Developer shall perform all of its obligations hereunder and shall conduct all operations operations with respect to the construction of the Flood Control Facilities in a good, workmanlike
and commercially reasonable manner, with the standard of diligence and care normally employed by duly qualified persons utilizing commercially reasonable efforts in the performance of
comparable work and in accordance with generally accepted practices appropriate to the activities undertaken. Notwithstanding the foregoing, nothing set forth in this Joint Community
Facilities Agreement shall be construed (i) to require the Developer to perform any work requiring a contractor's license, nor shall the Developer be deemed to be performing construction
services pursuant to this Joint Community Facilities Agreement or (ii) require the Developer to cause the Plans to be prepared for the Flood Control Facilities at a specific time or
in a manner other than as required by the approved conditions for the development of the Property. Section 4.3. Bid and Construction Requirements. (a) In order to ensure that a Flood
Control Facility is constructed as if it had been constructed under the direction and supervision, or under the authority of, a public agency, so that they may be acquired pursuant to
Section 53313.5 of the Code, the Developer shall comply with all of the requirements set forth in the Public Contract Code regarding the notice of bidding and award of contract for a
public works project by a public agency such as the Flood Control District. (b) Prior to awarding the bid for any Flood Control Facilities, the Developer shall submit a bid packet for
review to the Flood Engineer. A copy of the bid packet is to be provided to the City Engineer. The contract for construction of any Flood Control Facility is to be awarded to the responsible
bidder submitting the lowest responsive bid after notice inviting sealed bids. Bids are to be publicly solicited consistent with the applicable provisions of Public Contract Code dealing
with the bidding of public works projects constructed by the Flood Control District. Public notice notice is to be given consistent CFD No. 03-02 (Roripaugh Ranch) -JCFA Flood Control
Facilities -Execution Copy 14
with the Public Contract Code as to the date, time and place where bids will be opened. The Flood Control District is to be provided with copies of all bids received to assure that the
Developer adheres to the applicable legal requirements for public works projects. (c) The Developer shall require, and the Plans, bid and contract documents shall require, all contractors,
subcontractors, vendors, equipment operators and owner operators, in each such case to the extent such individuals or entities are engaged to perform work on a Flood Control Facility,
to pay not less than General Prevailing Wage Rates to all workers employed in the execution of the contract, as required by the Labor Code, to post a copy of the General Prevailing Wage
Rates at the job-site in a conspicuous place available to all employees and applicants for employment, and to otherwise comply with applicable provisions of the California Labor Code,
the Code and the California Public Contracts Code relating to General Prevailing Wage Rates as as required by the specifications approved by the Flood Engineer. The Flood Control District
has provided the Developer with copies of tables setting forth the General Prevailing Wage Rates, and the Developer hereby acknowledges receipt thereof. (d) The Developer shall require
each principal contractor to provide proof of insurance coverage to the Flood Control District satisfying the requirements of Section 4.12 hereof throughout the term of the construction
of the Flood Control Facilities. Rather than requiring its principal contractors to provide such insurance, the Developer may elect to provide the same for the benefit of its principal
contractors. (e) Each principal contractor engaged to perform work on the Flood Control Facilities shall be required to furnish (i) labor and material payment bonds, and (ii) contract
performance bonds, each in an amount equal to 100% of the contract price naming the Developer, the Community Facilities District, the Flood Control District, the Authority, and the City
as obligees and issued by a California admitted surety having a current A.M. Best A:VIE (A: 8) rating or an admitted surety insurer which complies with the provisions of Section 995.660
of the California Code of Civil Procedure. All such bonds shall be in a form as shown in Exhibit D. The bonds tendered pursuant to this subsection are to be accepted and held by the
City Engineer. Rather than requiring its contractors to provide such bonds, the Developer may elect to provide the same for the benefit of its principal contractors. (f) The Developer
shall comply, and shall cause each contractor, subcontractor, vendor, equipment operator and owner operator, in each such case to the extent such individual or entity is engaged to perform
work on the Flood Control Facilities, to comply, with such other requirements relating to the construction of the Flood Control Facilities as the Flood Control District may impose by
written notification delivered to the Developer, to the extent legally required as a result of changes changes in applicable federal, State or County laws, rules or procedures. (g) The
Developer shall require, and the Plans and bid and contract documents shall require, all contractors, subcontractors, vendors, equipment operators and owner operators, in each such case
to the extent such individuals or entities are engaged to perform work on the Flood Control Facilities, to submit certified weekly payroll records CFD No. 03-02 (Roripaugh Ranch) -JCFA
Flood Control Facilities -Execution Copy 15
or other proof of payment of General Prevailing Wage Rates to the Developer and to furnish certified payroll records or such other proof of payment of General Prevailing Wage Rates to
the Flood Engineer and City Engineer promptly upon request. (h) All change orders shall be reviewed and, if appropriate, approved by the Flood Engineer for the purpose of ensuring that
they comply with Flood Control District standards and for the work represented by the change order to be eligible for consideration in determining the Purchase Price. If necessary, the
provisions of Section 3.3 and 3.5 hereof may be utilized to accommodate the construction costs associated with the change order. (i) The Developer shall provide proof to the City Engineer
and the Flood Engineer, at such intervals and in such form as the City Engineer or the Flood Engineer may require, that the foregoing requirements have been satisfied as to all of the
Flood Control Facilities. (j) The Developer has deposited with the Flood Control District monies monies to cover the anticipated costs, deemed necessary and reasonable, associated with
the review and approval of the Plans, the review and approval of right of way and conveyance documents and with the processing and administration of this Joint Community Facilities Agreement.
The Developer, within thirty (30) days after receipt of an additional billing for such costs, will forward the billed amount to the Flood Control District. (k) At the time the Developer
submits a "Notice of Intent" to commence construction as set forth in Section 4.7 below, the Developer shall deposit with Flood Control District (Attention: Business Office -Accounts
Receivable) the estimated cost of providing construction inspection for the Flood Control Facilities, in an amount as determined and approved by Flood Control District in accordance
with Ordinance Nos. 671 and 749, including any amendments thereto, of the County, based upon the bonded value of Flood Control Facilities to be inspected, operated and maintained by
Flood Control District. (1) At the time the Developer submits a "Notice of Intent" to commence construction as set forth in Section 4.7 below, the Developer shall make a one time cash
deposit with the Flood Control District of $782,640 with respect to the Flood Control Facilities that represents the Flood Control District's estimated cost to operate and maintain each
Flood Control Facility for a period often (10) years commencing upon the Acceptance Date. The deposit will be placed in the Flood Control District's Zone 7 Maintenance Subaccount. This
one time deposit for operation and maintenance shall not be included in the determination of the Actual Cost or the Purchase Price of the Flood Control Facilities for which the deposit
is made. Section 4.4. Licenses, and Regulatory Permits. The Developer shall secure all necessary licenses, agreements, permits, rights of entry and temporary construction easements (collectively
"Licenses") that may be needed for the construction, inspection, operation and maintenance of the the Flood Control Facilities. The Developer is to secure all permits approvals or agreements,
if any, required by the various Federal and State CFD No. 03-02 (Roripaugh Ranch) -JCFA Flood Control Facilities -Execution Copy 16
resource and/or regulatory agencies (collectively, the "Regulatory Permits") for the construction, operation and maintenance of the Flood Control Facilities. The Regulatory Permits include,
but are not limited to, those permits issued by the U.S. Army Corps of Engineers, the State Water Resources Control Board ("SWRCB"), California State Department of Fish and Game and
the Regional Water Quality Control Board. All Licenses and Regulatory Permits secured by the Developer shall be reviewed by the Flood Engineer prior to execution or acceptance by the
Developer to determine whether the conditions they specify are satisfactory to the Flood Control District to allow it to operate and maintain the Flood Control Facilities. Section 4.5.
NPDES Compliance. The Developer shall prepare and implement, or cause to be prepared and implemented, a Stormwater Pollution Prevention Plan (SWPPP) in accordance with the requirement
of the State's National Pollutant Discharge Elimination System (NPDES) General Permit for Stormwater Discharges Associated with Construction Activity (SWRCB Order No. 99-08 DWQ) and
any amendments thereto (the "General Permit"). The General Permit regulates both Stormwater and non-stormwater discharges associated with construction activities required by this Joint
Community Facilities Agreement. The SWPPP shall identify site specific "Best Management Practices" ("BMP's") to be implemented during and after construction to control pollution of Stormwater
runoff and receiving waters. The identified BMP's shall include, but not be limited to, "good housekeeping" practices for the Construction Site such as establishing stabilized construction
access points, providing adequate sanitary/septic waste management, designating vehicle and equipment cleaning/maintenance areas, employing proper material handling and storage practices,
maintaining adequate soil stabilization and erosion control practices to control the discharge of pollutants from the Construction Site and any activities thereon. The SWPPP shall also
stipulate to an ongoing program for monitoring and maintenance of all BMP's. The Developer shall be solely responsible throughout the duration of constructing the Flood Control Facilities
for placing, installing, constructing, inspecting and maintaining all BMP's identified in the SWPPP and amendments thereto and for removing and disposing of temporary BMP's. The Developer
shall become fully informed of and comply with the applicable provisions of the General Permit, Federal, State and local regulations that govern the Developer's activities and operation
pertaining to both Stormwater and non-stormwater discharges from the Construction Site of the Flood Control Facilities and any area of disturbance outside said Construction Site relating
to the Flood Control Facilities. The Developer shall, at all times, keep copies of the General Permit, approved SWPPP and all amendments at the Construction Site. The SWPPP shall be
made available upon request of a representative of the SWRCB, San Diego Regional Water Quality Control Board, or the United States Environmental Protection Agency. The Developer shall,
at reasonable times, allow authorized agents of the above sited agencies, upon the presentation of credentials to: (i) enter upon the Construction Site; (ii) have access to and copy
any records required to be kept as specified in the General Permit, (iii) inspect the CFD No. 03-02 (Roripaugh Ranch) -JCFA Flood Control Facilities -Execution Copy 17
Construction Site and determine whether related soil stabilization and sediment control BMP's have been implemented and maintained, and (iv) sample or monitor stormwater or non-stormwater
runoff for purposes of ensuring compliance with the General Permit. The Developer shall be solely and exclusively responsible for any arrangements made between it and other property
owners or entities that result in disturbance of land at the Construction Site. The Developer shall be responsible for all costs and for any liability imposed by law as a result of the
its failure to comply with the requirements set forth in this Section, including but not limited to, compliance with the applicable provisions of the General Permit and Federal, State
and local regulations. For the purpose of this Section, costs and liabilities include, but are not limited to, fines, penalties and damages whether assessed against the Flood Control
District, the City, the Authority, the Community Facilities District or the Developer, including those levied under the Federal Clean Water Act and the State's Porter-Cologne Water Quality
Act. Section 4.6. Cal/OSHA, Confined Space Entry. At all times during the construction of the Flood Control Facilities, the Developer shall require all contractors to comply with all
Cal/OSHA safety regulations including regulations concerning confined space and maintenance of a safe working environment for the Flood Control District, the County, the City, the Authority
and their respective employees on the site. This will include the preparation of a confined space procedure specific for all storm drain facilities. The procedure shall comply with requirements
contained hi Sections 5157 and 5158 of Title 8 of the California Code of Regulations and the Flood Control District's "Confined Space Procedure, SOM-18." The confined space procedure
is to be review and approved by the Flood Engineer before proceeding with construction of the Flood Control Facilities. Section 4.7. Notice of Intent to Commence Construction. Not less
less than twenty (20) Business Days prior to the date on which it intends to commence construction on a Flood Control Facility, the Developer is to provide written "Notice of Intent"
to the Flood Engineer. Construction on the Flood Control Facility may not proceed until the Flood Engineer issues a "Notice to Proceed" to the Developer, with a copy to the City Engineer.
The "Notice of Intent" is to include the following documents: (a) Copies of all Licenses and Regulatory Permits secured pursuant to Sections 4.4 and 4.5, above, including a copy of the
Notice of Intent ("NOI") and waste discharge identification number ("WDID No.") received from the SWRCB pursuant to Section 4.5, above. (b) Copies of the bonds required by Section 4.3(e),
above. (c) Construction Inspection Deposit required by Section 4.3(k), above. The Flood Control District's construction inspection staff is limited and, therefore, the issuance of a
Notice to Proceed is subject to staff availability, m the event the Developer wishes to expedite expedite issuance of the Notice to Proceed, the Developer CFD No. 03-02 (Roripaugh Ranch)
-JCFA Flood Control Facilities -Execution Copy 18
may elect to famish an independent qualified construction inspector. The Developer shall furnish appropriate documentation of the individual's credentials and experience to the Flood
Engineer for review and approval. The Flood Engineer shall review the individual's qualifications and experience and, upon approval, said individual shall be "deputized" and authorized
to act on the Flood Control District's behalf on all construction inspection and quality control matters. If the Developer's initial construction inspection deposit furnished pursuant
to Section 4.3(k) exceeds the amount of $5,000, the Flood Control District shall refund to the Developer up to eighty percent (80%) of the Developers initial inspection deposit within
forty (45) days of Flood Engineer's approval of the "deputized" inspector; however, a minimum balance of $5,000 shall be retained in the account. (d) Duly executed irrevocable offends)
of dedication to the public for flood control purposes, including ingress and egress, for the rights of way deemed necessary by the Flood Control District for the construction, inspection,
operation and maintenance of the Flood Control Facilities as provided for in Section 3.3 hereof. (e) Preliminary reports of title dated not more than thirty (30) days prior to date of
submission for all property described in the irrevocable offer(s) of dedication. (f) A complete list of all contractors and subcontractors to be performing work on the Flood Control
Facilities, including the corresponding license number and license classification of each. On said list, the Developer shall also identify its designated superintendent for construction
of the Flood Control Facilities. (g) A construction schedule which shall show the order and dates in which the Developer and the Developer's contractor proposes to carry on the various
parts of work, including estimated start and completion dates. As the construction progresses the Developer shall update said construction schedule upon request. (h) The final mylar
plan and profile profile sheets for the Flood Control Facilities and assign their ownership to the Flood Control District prior to the start of construction of each Flood Control Facility.
(i) Certificates of insurance and endorsements as required by Section 4.12., below. (j) The confined space procedure as required by Section 4.6, above, (k) Zone 7 Maintenance deposit
required by Section 4.3(1), above. CFD No. 03-02 (Roripaugh Ranch) -JCFA Flood Control Facilities -Execution Copy 19
Section 4.8. Bonding Requirements. The Developer shall post such subdivision bonds as are required by the City in connection with the recording of all subdivision maps for the Property.
The Developer's obligations pursuant to this Section will be considered satisfied, in part, through the contract performance bonds to be provided by the Developer's contractors pursuant
to Section 4.3(e) hereof. Section 4.9. Additional Conditions to be Satisfied during Construction. (a) The Developer shall make a good faith effort to complete construction of the Flood
Control Facilities within eighteen (18) consecutive months after the date of issuance of the Bonds It is expressly understood that since time is of the essence in this Joint Community
Facilities Agreement, failure of the Developer to perform the work within the agreed upon time shall constitute authority for the Flood Control District to cause the remaining work to
be performed and the cost thereof to be paid from the Acquisition Account, and should the amounts amounts held in the Acquisition Account prove insufficient to complete the Flood Control
Facilities, the Flood Control District may require the Developer's surety to pay to the Flood Control District the penal sum of any and all bonds. (b) Construction of the Flood Control
Facilities shall be on a five (5) day, forty (40) hour workweek with no work on Saturday, Sundays or days designated by the Flood Control District as legal holidays, unless otherwise
approved by the Flood Control District. If the Developer feels it is necessary to work
more than normal forty (40) hour workweek or on holidays, the Developer shall make a written request for permission from the Flood Control District to work the additional hours (with
a copy to the City Engineer). The request shall be submitted to the Flood Control District at least 72 hours prior to the request date for additional work hours and state the reasons
for the overtime and the specific time frames required. The decision granting permission for overtime work shall shall be made by the Flood Control District at its sole discretion and
shall be final. If permission is granted, the Developer will be charged the cost incurred at the overtime rates for additional inspection time required in connection with the overtime
work in accordance with Ordinances Nos. 671 and 749 of the County, including any amendments thereto.Section 4.10. Inspection; Completion of Construction. The Flood Engineer shall have
primary responsibility for providing inspection of the work of construction of the Flood Control Facilities to ensure that the work of construction is accomplished in accordance with
the Plans approved by the Flood Control District. Flood Control District staff shall have access to the Construction Site at all reasonable times for the purpose of accomplishing such
inspection. The Developer is to provide the Flood Control District with written notice that it considers construction of a Flood Control Facility to have been completed consistent with
the Plans and, upon receipt of said notice, Flood Control District's staff will provide written confirmation that construction of the Flood Control Facility is complete consistent with
the approved Plans and the provisions of this Joint Community Facilities Agreement. Upon receipt of both written notices, the Flood Engineer will in a timely CFD No. 03-02 (Roripaugh
Ranch) -JCFA Flood Control Facilities -Execution Copy 20
manner notify the City Engineer, the Developer and the Administrator that the Flood Control Facility has been satisfactorily completed and that the Developer is to proceed with the recording
of a Notice of Completion with respect to such construction pursuant to Section 3093 of the California Civil Code. The Developer is to provide a duplicate copy of the recorded Notice
of Completion to the City Engineer, the Administrator and the Flood Control District. Within a reasonable time following receipt of the duplicate copy of the recorded Notice of Completion
and the Developer's compliance with other provisions of Section 3.2 hereof, the Flood Control District will issue the written notice required by said Section 3.2 that it will accept
the Flood Control Facility into its maintained system. Section 4.11. Maintenance of Facilities; Warranties. The Developer shall maintain the Flood Control Facilities in good and safe
condition until the Acceptance Date of the Flood Control Facilities. Prior to the Acceptance Date, the Developer shall be responsible for maintaining the Flood Control Facilities in
proper operating condition, and shall perform such maintenance on the Flood Control Facilities as the Flood Engineer reasonably determines to be necessary. As of the Acceptance Date,
the performance bond provided by the Developer for the Flood Control Facilities pursuant to Section 4.3 (e) hereof shall be reduced to an amount equal to 10% of the original amount thereof
and shall serve as a warranty bond to guarantee that the Flood Control Facilities will be free from defects due to faulty workmanship or materials for a period of 12 months from the
Acceptance Date, or the Developer may elect to provide a new warranty bond or cash in such an amount. As of the Acceptance Date, the Developer shall assign to Flood Control District
all of the Developer's rights in any warranties, guarantees, maintenance obligations or other evidence of contingent obligations of third persons with respect to the Flood Control Facilities.
Section 4.12. Insurance Requirements. Without limiting or diminishing the Developer's obligation to indemnify or hold the Flood Control District, the County, the City, Community Facilities
District and the Authority harmless pursuant to Section 5.6 hereof, the Developer shall procure and maintain or cause to be procured and maintained, at its sole cost and expense the
following insurance coverages, or alternate coverages acceptable to the County's Risk Manager, during the term of this Joint Community Facilities Agreement: (a) Commercial General Liability:
Commercial General Liability insurance overage, including but not limited to, premises liability, contractual liability, products and completed operations, explosion, collapse, use of
cranes, and other heavy equipment and underground hazards, personal and advertising injury covering claims which may arise from or out of the Developer's performance of its obligations
hereunder. Policy shall name by endorsement the Flood Control District, the County, the City, the Community Facilities District, the Authority, their respective directors, officers,
Board of Supervisors, City Council, Board of Directors, Legislative Body elected officials, employees, agents or representatives as "Additional rnsureds." Policy's limit of liability
shall not be less than $2,000,000 per occurrence combined single limit. If such insurance contains a general aggregate limit, it shall apply separately to this Joint CFD No. 03-02 (Roripaugh
Ranch) -JCFA Flood Control Facilities -Execution Copy 21
Community Facilities Agreement or be no less than two (2) times the occurrence limit. (b) Vehicle Liability: The Developer shall maintain liability insurance for all owned, non-owned
or hired vehicles in an amount not less than $1,000,000 per occurrence combined single limit. If such insurance contains a general aggregate limit, it shall apply separately to this
Joint Community Facilities Agreement or be no less than two (2) times the occurrence limit. Policy shall name by endorsement the Flood Control District, the County, the City, the Community
Facilities District, the Authority, their respective directors, officers, Board of Supervisors, City Council, Board of Directors, Legislative Body, elected officials, employees, agents
or representatives as "Additional Insureds." (c) Worker's Compensation Insurance: The Developer shall maintain Workers' Compensation Insurance (Coverage A) as prescribed by the laws
of the State of California. Policy shall include Employers' Liability (Coverage B) including Occupation Disease with limits not less than $1,000,000 per person per accident. Policy shall
be endorsed to waive subrogation in favor of the Flood Control District, the County, the City, the Community Facilities District, the Authority; and if applicable, to provide a Borrowed
Servant/Alternate Employer Endorsement. General Insurance Provisions -all lines: (i) Any insurance carrier providing insurance coverage hereunder shall be admitted to the State of California
and have an A.M. Best rating of not less than an A:VHI (A:8) unless such requirements are waived, in writing, by the County's Risk Manager. (ii) The Developer's insurance carrier(s)
must declare its insurance deductibles or self-insured retentions. If such deductibles or self-insured retentions exceed $500,000 per occurrence such deductibles and/or retentions shall
have the prior written consent of the County's Risk Manager before the commencement of operations under this Joint Community Facilities Agreement. Upon notification of deductibles or
self-insured retentions which are deemed unacceptable to the Flood Control District, at the election of the County's Risk Manager, the Developer's carriers shall either: (i) reduce or
eliminate such deductibles or self-insured retentions as respects this Agreement with the Flood Control District, or (ii) procure a bond which guarantees payment of losses and related
investigations, claims administration, defense costs and expenses. (iii) The Developer shall cause its insurance carrier(s) to furnish the Flood Control District and the City with (i)
a properly executed original certificate(s) of insurance and certified original copies of endorsements effecting coverage as required herein; or (ii) evidence of coverage acceptable
to the County's Risk Manager that may include original certified copies of policies including all endorsements and all attachments thereto, showing such insurance is in full force and
effect. CFD No. 03-02 (Roripaugh Ranch) -JCFA Flood Control Facilities -Execution Copy 22
(iv) Further, said certificate(s) and endorsements to policies of insurance shall contain the covenant of the insurance carrier(s) that it shall provide no less than sixty (60) days
written notice be given to the Flood Control District, the Community Facilities District, the City and the Authority prior to any material modification or cancellation of such insurance.
In the event of a material modification or cancellation of coverage, this Joint Community Facilities Agreement shall terminate forthwith, unless the Flood Control District, the Community
Facilities District, the City and the Authority receives, prior to such effective date of said material modification or cancellation, another properly executed original certificate of
insurance and original copies of endorsements or certified original policies, including all endorsements and attachments thereto evidencing coverages and the insurance required herein
is in full force and effect, rndividual(s) authorized by the insurance carrier to do so on its behalf shall sign the original endorsements for each policy and the certificate of insurance.
(v) The Developer shall not commence construction of the Flood Control Facilities until the Flood Control District, the County and the City have been furnished either original certificate^)
of insurance and certified original copies of endorsement, policies of insurance including all endorsements and any and all other attachments as required in this Section, or other evidence
of coverage acceptable to County's Risk Manager. (vi) It is understood and agreed by the parties hereto and the Developer's insurance company(s) that the certificate(s) of insurance
and policies shall so covenant and shall be construed as primary insurance, and the Flood Control District's insurance and/or deductibles and/or self-insured retentions or self-insured
programs shall not be construed as contributory. (vii) The Developer may pass down to its principal contractors the insurance obligations contained herein and will require it principal
contractors to name on their insurance policies by endorsement the Flood Control District, the County, the City, Community Facilities District, the Authority, their respective directors,
officers, Board of Supervisors, City Council, Board of Directors, Legislative Body, elected officials, employees, agents or representatives as "Additional rnsureds." Copies of such certificates
and endorsements shall be provided to the Flood Control District and the City. Section 4.13. Ownership of Facilities, (a) Notwithstanding the fact that some or all of the Flood Control
Facilities may be constructed in dedicated street rights of way or on property which is owned by or has been or will be dedicated to the Flood Control District, the County or the City,
a Flood Control Facility shall be and remain the property of the Developer until Acceptable Title to parcels not owned by the Flood Control District, the County or the City with respect
to such Flood Control Facility is conveyed to the Flood Control District or the City, as appropriate, as provided herein. Ownership of said parcels by the Developer or other third parties
shall likewise not be affected by any agreement that the Developer may have entered into or may enter into with the City pursuant to the provisions of the Subdivision Map Act, Section
66410 et seq. of the Code, and the provisions of this Section shall control. CFD No. 03-02 (Roripaugh Ranch) -JCFA Flood Control Facilities -Execution Copy 23
(b) The City is to own, maintain and operate those catch basins, connector pipes and laterals, within those street rights-of-way within the City in which the Flood Control Facilities
are located. The City, by execution of this Agreement, grants to the Developer the right to construct the Flood Control Facilities and to the Flood Control District the right to inspect,
operate and maintain the Flood Control Facilities located within those City rights-of-way in which the Flood Control Facilities are located. (c) The County is to own, maintain and operate
those catch basins, connector pipes and laterals, within those street rights-of-way within the County in which the Flood Control Facilities are located. The County, by execution of this
Agreement, grants to the Developer the right to construct the Flood Control Facilities and to the Flood Control District the right to inspect, operate and maintain the Flood Control
Facilities located within those County rights-of-way in which the Flood Control Facilities are located. (d) The City is to maintain the structural integrity of the bridge structure within
its rights-or-way for North Loop Road and its right-of-way for Butterfield Stage Road at the Santa Gertrudis Creek Channel and the portion of the bridge structure between the two rights-of-way
and grants to the Flood Control District the right to remove silt and debris from this portion of the Santa Gertrudis Channel. (e) The City is to maintain the structural integrity of
the bridge structure within its right-of-way for Butterfield Stage Road at the Long Valley Wash Channel and grants to the Flood Control District the right to remove silt and debris from
this portion of the Long Valley Wash Channel. (f) The Developer, or its successors) in interest, is to maintain the structural integrity of the bridge structure located on Long Valley
Wash Channel at North Loop Road and grants to the Flood Control District the right to remove silt and debris from this portion of the Long Valley Wash Channel. CFD No. 03-02 (Roripaugh
Ranch) -JCFA Flood Control Facilities -Execution Copy 24
ARTICLE V REPRESENTATIONS, WARRANTIES AND COVENANTS; INDEMNIFICATION Section 5.1. Representations. Warranties and Covenants of the Developer. The Developer makes the following representations,
warranties and covenants for the benefit of the Flood Control District, the County, the City and the Authority, as of the date hereof: (a) Organizatioa The Developer represents and warrants
that it is a limited liability company duly organized and validly existing under the laws of the State, is in good standing under the laws of the State, and has the power and authority
to own its properties and assets and to carry on its business as now being conducted and as now contemplated. (b) Authority. The Developer represents and warrants that it has the power
and authority to enter into this Joint Community Facilities Agreement, and has taken all action necessary to cause this Joint Community Facilities Agreement to be executed and delivered,
and this Joint Community Facilities Agreement has been duly and validly executed and delivered on behalf of the Developer. (c) Binding Obligation. The Developer represents and warrants
that this Joint Community Facilities Agreement is a valid and binding obligation of the Developer and is enforceable against the Developer in accordance with its terms, subject to bankruptcy,
insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights in general and by general equity principles. (d) Completion of Flood Control Facilities.
The Developer covenants that it will use its reasonable and diligent efforts to do all things that may be lawfully required of it in order to cause the Flood Control Facilities to be
completed in accordance with this Joint Community Facilities Agreement. (e) Proposed Improvements Not Shown on Plans. The Developer covenants that it shall submit plans and specification
to the Flood Control District, and obtain the Flood Control District's approval thereof, prior to construction any proposed improvements within the Flood Control District's future rights-of-way,
as set forth herein, which are not shown on the Plans. (f) Compliance with Laws. The Developer covenants that, while the Flood Control Facilities are owned by the Developer or required
pursuant to this Joint Community Facilities Agreement to be maintained by the Developer, it will not commit, suffer or permit any of its agents, employees or contractors to commit any
act to be done in, upon or to the Flood Control Facilities hi violation in any material respect of any law, ordinance, rule, regulation or order of any CFD No. 03-02 (Roripaugh Ranch)
-JCFA Flood Control Facilities -Execution Copy 25
governmental authority or any covenant, condition or restriction now or hereafter affecting the Flood Control Facilities. (g) Payment Requests. The Developer represents and warrants
that (i) it will not request payment from the Community Facilities District under this Joint Community Facilities Agreement for the acquisition of any improvements that are not part
of a Flood Control Facility, and (ii) it will diligently follow all procedures set forth in this Joint Community Facilities Agreement. (h) Financial Records. Until the final Acceptance
Date of all Flood Control Facilities, the Developer covenants to maintain proper books of record and account for the Flood Control Facilities and all costs related thereto. The Developer
covenants that such accounting books will be maintained in accordance with generally accepted accounting principles, and will be available for inspection by the Community Facilities
District, the Flood Control District, the City and the Authority, and their respective agents, at any reasonable time during regular business hours on two (2) Business Days' prior written
notice, subject to mutually acceptable arrangements regarding the confidentiality of proprietary data. (i) Hazardous Materials. The Developer represents and warrants that neither the
Developer, nor any subcontractor, agent or employee thereof will use, generate, manufacture, procure, store, release, discharge or dispose of any Hazardous Material on, under or about
the Construction Site or the Flood Control Facilities or transport any Hazardous Material to or from the Construction Site or the Flood Control Facilities in violation of any federal,
state or local law, ordinance, regulation, rule, decision or policy statement regulating Hazardous Material. 0') Permits. The Developer covenants that it will pursue in a commercially
reasonable manner all governmental or other permits or licenses required to proceed with the construction of the Flood Control Facilities and that it will pay all fees relating thereto.
The Developer represents and warrants that to the best of the Developer's knowledge, as of the date hereof, there is no material legal impediment to the Developer's proceeding with and
completing the construction of the Flood Control Facilities or to the development of the Construction Site as contemplated by the Developer, except for government or other permits to
be obtained. (k) Environmental Matters. The Developer represents and warrants that to its present actual knowledge all governmental agencies have complied with, CEQA as required for
the construction of the Flood Control Facilities and their conveyance to the Flood Control District. Section 5.2. Representations. Warranties and Covenants of the Authority. The Authority
makes the following representations, warranties and covenants for the benefit of the Flood Control District, the County, the City and the Developer: CFD No. 03-02 (Roripaugh Ranch) -JCFA
Flood Control Facilities -Execution Copy 26
(a) Authority. The Authority represents and warrants that the Authority has the power and authority to enter into this Joint Community Facilities Agreement, and has taken all actions
necessary to cause this Joint Community Facilities Agreement to be executed and delivered, and this Joint Community Facilities Agreement has been duly and validly executed and delivered
on behalf of the Authority. (b) Binding Obligation. The Authority represents and warrants that this Joint Community Facilities Agreement is a valid and binding obligation of the Authority
and is enforceable against the Authority in accordance with its terms, subject to bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors'
rights in general and by general equity principles. (c) Payment Requests. The Authority represents and warrants that Authority will follow all procedures applicable to it set forth in
this Joint Community Facilities Agreement. (d) Financial Records. Until the final Acceptance Date, Date, the Authority covenants to maintain, or cause to be maintained, books of record
and account for the Special Taxes and the Bonds in accordance with the requirements of the Code. The Authority covenants that such accounting books will be maintained in accordance with
generally accepted accounting principles applicable to governmental entities, and will be available for inspection by the Developer and its agents at any reasonable time during regular
business hours on two Business Days prior written notice. Section 5.3. Representations, Warranties and Covenants of the Flood Control District The Flood Control District makes the following
representations, warranties and covenants for the benefit of the Authority, the City, the County and the Developer: (a) Authority. The Flood Control District represents and warrants
that the Flood Control District has the power and authority to enter into this Joint Community Facilities Agreement, and has taken all action necessary to cause this Joint Community
Facilities Agreement to be executed and delivered, and this Joint Community Facilities Agreement has been duly and validly executed and delivered on behalf of the Flood Control District.
(b) Binding Obligation. The Flood Control District represents and warrants that this Joint Community Facilities Agreement is a valid and binding obligation of the Flood Control District
and is enforceable against the Flood Control District in accordance with its terms, subject to bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement
of creditors' rights in general and by general equity principles. (c) Completion of Flood Control Facilities. The Flood Control District covenants that it will use its reasonable and
diligent efforts to take CFD No. 03-02 (Ronpaugh Ranch) -JCFA Flood Control Facilities -Execution Copy 27
expeditiously all actions that may be lawfully required of it in issuing permits, processing and approving Plans and inspecting the Flood Control Facilities in accordance with this Joint
Community Facilities Agreement. (d) Payment Requests. The Flood Control District represents and warrants that the Flood Control District will follow all procedures applicable to it set
forth in this Joint Community Facilities Agreement. Section 5.4. Representations, Warranties and Covenants of City. The City makes the following representations, warranties and covenants
for the benefit of the Authority, the Flood Control District, the County and the Developer: (a) Authority. City represents and warrants that City has the power and authority to enter
into this Joint Community Facilities Agreement, and has taken all action necessary to cause this Joint Community Facilities Agreement to be executed and delivered, and this Joint Community
Facilities Agreement has been duly and validly executed and delivered on behalf of City. (b) Binding Obligation. City represents and warrants that this Joint Community Facilities Agreement
is a valid and binding obligation of City and is enforceable against City in accordance with its terms, subject to bankruptcy, insolvency, reorganization or other similar laws affecting
the enforcement of creditors' rights in general and by general equity principles. (c) Completion of Flood Control Facilities. The City covenants that it will use its reasonable and diligent
efforts to take expeditiously all actions that may be lawfully required of it in issuing permits and processing and approving Plans in accordance with this Joint Community Facilities
Agreement. (d) Pedestrian Bridge/Long Valley Wash Channel. The City covenants that it will cause all plans that are submitted to it regarding the pedestrian bridge that is to cross the
Long Valley Wash Channel to also be provided to the Flood Engineer for review and approval. (e) CEOA Compliance. On November 26, 2002, the City Council of the City adopted Resolution
No. 02-111 entitled "A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TEMECULA, CALIFORNIA, CERTIFYING THE FINAL ENVIRONMENTAL IMPACT REPORT PREPARED FOR THE RORIPAUGH RANCH SPECIFIC
PLAN AND RELATED PLANNING APPLICATIONS ACTIONS AND ADOPTING THE ENVIRONMENTAL FINDINGS PURSUANT TO THE CALIFORNIA ENVIRONMENTAL QUALITY ACT, AND THE STATE CEQA GUIDELINES, A MITIGATION
MONITORING AND REPORTING PROGRAM AND A STATEMENT OF OVERRIDING CONSIDERATIONS IN CONNECTION THEREWITH FOR THE RORIPAUGH RANCH SPECIFIC PLAN, LOCATED NEAR THE FUTURE INTERSECTION OF BUTTERFffiLD
STAGE ROAD AND NICOLAS ROAD. (PLANNING APPLICATION 94-CFD No. 03-02 (Roripaugh Ranch) -JCFA Flood Control Facilities -Execution Copy 28
0076)." The Notice of Determination for the Roripaugh Ranch Final EIR approved by Resolution No. 02-111 was posted in the Riverside County Clerk's Office on November 27,2002 as required
by law. All of the public improvements which are to be funded by Temecula Public Financing Authority Community Facilities District No. 03-02 (Roripaugh Ranch), including, without limitation,
the public improvements identified in this Agreement, were described, evaluated, and studied as part of the Roripaugh Ranch EIR and Council Resolution No. 02-111. Additionally, on August
24, 2004, the Board of Directors of the Temecula Public Financing Authority adopted Resolution No. TPFA 04-08 entitled "A RESOLUTION OF THE BOARD OF DIRECTORS OF THE TEMECULA PUBLIC
FINANCING AUTHORITY DECLARING ITS INTENTION TO ESTABLISH A COMMUNITY FACILITIES DISTRICT AND TO AUTHORIZE THE LEVY OF SPECIAL TAXES THEREIN -RORIPAUGH RANCH 03-02," which was subsequently
amended by Resolution No. TPFA 04-10 adopted on September 28, 2004. In Section 14 of Resolution No. TPFA 04-08, as amended, the Board found that: "no significant changes have occurred
with respect to the project or the environment which require further study or which render invalid the conclusions and findings of the Roripaugh Ranch EIR. No facts exist upon which
any findings pursuant to Sections 15162, 15163, 15165 of the State CEQA Guidelines could be based to require the preparation of a subsequent EIR, Supplemental EIR or addendum to an EIR."
Section 5.5. Representations, Warranties and Covenants of County. The County makes the following representations, warranties and covenants for the benefit of the Authority, the City,
the Flood Control District and the Developer: (a) Authority. County represents and warrants that County has the power and authority to enter into this Joint Community Facilities Agreement,
and has taken all action necessary to cause mis Joint Community Facilities Agreement to be executed and delivered, and this Joint Community Facilities Agreement has been duly and validly
validly executed and delivered on behalf of County. (b) Binding Obligation. County represents and warrants that this Joint Community Facilities Agreement is a valid and binding obligation
of County and is enforceable against County in accordance with its terms, subject to bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors'
rights in general and by general equity principles. (c) Completion of Flood Control Facilities. The County covenants that it will use its reasonable and diligent efforts to take expeditiously
all actions that may be lawfully required of it in issuing permits and processing and approving Plans in accordance with this Joint Community Facilities Agreement. Section 5.6. The Developer
Indemnification. The Developer agrees to protect, indemnify, defend and hold the Authority, the Community Facilities District, the Flood Control District, the County, the City, and their
respective directors, officers, Board of Supervisors, Board of Directors, the Legislative Body, City Council, elected officials, CFD No. 03-02 (Roripaugh Ranch) -JCFA Flood Control Facilities
-Execution Copy 29
employees, representatives and agents (the "Indemnified Parties"), and each of them, harmless from and against any and
all claims, losses, expenses, suits, actions, decrees, judgments, awards, reasonable attorney's fees, and court costs which the Indemnified Parties, or any combination thereof, may suffer
or which may be sought against or recovered or obtained from the Indemnified Parties, or any combination thereof, as a result of or by reason of or arising out of or in consequence of
(a) the approval of this Joint Community Facilities Agreement, (b) the acquisition, construction, or installation of the Flood Control Facilities, (c) for the design, construction, or
failure of the Flood Control Facilities or an assertion, pursuant to Article I, Section 8 of the California Constitution, the Fifth Amendment of the United States Constitution, or any
other law or ordinance which seek to impose any other liability or damage whatsoever, from the diversion of the waters from their natural drainage patterns, or from the discharge of
drainage from the Flood Control Facilities, (d) the untruth or inaccuracy of any representation or warranty made by the Developer in this Joint Community Facilities Agreement or in any
certifications delivered by the Developer hereunder, or (e) any act or omission of the Developer or any of its contractors, subcontractors, or their respective officers, employees or
agents, in connection with the Flood Control Facilities. If the Developer fails to do so, the Indemnified Parties, or each of them, shall have the right, but not the obligation, to defend
the same and charge all of the direct or incidental costs of such defense, including reasonable attorneys' fees or court costs, to and recover the same from the Developer. No indemnification
is required to be paid by the Developer for any claims, losses, expenses, suits, actions, decrees, judgments, awards, reasonable attorney Fees, and court costs (a) arising directly from
the willful misconduct or sole and active negligence of the Indemnified Indemnified Parties or (b) arising from the use or operation of a Flood Control Facility after the Acceptance
Date of the Flood Control Facility, unless such claim, loss or expense results from the defective or improper design, acquisition, construction or installation of such Flood Control
Facility by the Developer or its agents. The provisions of this Section shall survive the termination of this Joint Community Facilities Agreement. CFD No. 03-02 (Roripaugh Ranch) -JCFA
Flood Control Facilities -Execution Copy 30
ARTICLE VI MISCELLANEOUS Section 6.1. Developer as Independent Contractor. In performing under this Joint Community Facilities Agreement, it is mutually understood that the Developer
is acting as an independent contractor, and not as an agent of the Authority, the Community Facilities District, the Flood Control District, the County or the City. Neither the Authority,
the Flood Control District, the County nor the City shall have any responsibility for payment to any contractor, subcontractor or supplier of the Developer. The Community Facilities
District shall not have any responsibility for payment to any contractor, subcontractor or supplier of the Developer unless such entity or individual is specifically listed as a payee
on the Payment Request submitted by the Developer pursuant to this Joint Community Facilities Agreement in which case the Community Facilities District shall be responsible for making
such payment only if such Payment Request is approved pursuant to the provisions of this Joint Community Facilities Agreement and only from funds available in the Improvement Fund-Section
6.2. Other Agreements. Nothing contained herein shall be construed as affecting the Flood Control District, the County, the City or the Developer's respective duty to perform their respective
obligations under other agreements, land use regulations or subdivision requirements relating to the development of the Property, which obligations are and shall remain independent of
the Developer's rights and obligations, and the Flood Control District, the County and the City's rights and obligations, under this Joint Community Facilities Agreement; provided, however,
that the Developer shall use its reasonable and diligent efforts to perform each and every covenant to be performed by it under any lien or encumbrance, instrument, declaration, covenant,
condition, restriction, license, order, or other agreement, the nonperformance of which could reasonably be expected to materially and adversely affect the acquisition, construction
and installation of the Flood Control Facilities. Section 6.3. Binding on Successors and Assigns. Neither this Joint Community Facilities Agreement nor the duties and obligations of
the Developer hereunder may be assigned to any person or legal entity other than an affiliate of the Developer without the written consent of the Authority, the Community Facilities
District, the Flood Control District, the County and the City, which consent shall not be unreasonably withheld or delayed. Neither this Joint Community Facilities Agreement nor the
duties and obligations of Authority, the Flood Control District, the County the City or the Community Facilities District hereunder may be assigned to any person or legal entity, without
the written consent of the Developer, which consent shall not be unreasonably withheld or delayed. The agreements and covenants included herein shall be binding on and inure to the benefit
of any partners, permitted assigns, and successorsin-interest of the parties hereto. CFD No. 03-02 (Roripaugh Ranch) -JCFA Flood Control Facilities -Execution Copy 31
Section 6.4. Amendments. This Joint Community Facilities Agreement can only be amended by an instrument in writing executed and delivered by the Authority, the Flood Control District,
the County, the City and the Developer. Notwithstanding the foregoing, Exhibit B may be supplemented consistent with Section 3.4 and 3.6 above. Section 6.5. Waivers. No waiver of, or
consent with respect to, any provision of this Joint Community Facilities Agreement by a party hereto shall in any event be effective unless the same shall be in writing and signed by
such party, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which it was given. Section 6.6. No Third Party Beneficiaries.
Other than the Community Facilities District when formed, no person or entity shall be deemed to be a third party beneficiary hereof, and nothing in this Joint Community Facilities Agreement
(either expressed or implied) is intended to confer upon any person or entity, other than the Authority, the Community Facilities District, the Flood Control District, the County, the
City and the Developer (and its respective successors and assigns), any rights, remedies, obligations or liabilities under or by reason of this Joint Community Facilities Agreement.
Section 6.7. Notices. Any written notice, statement, demand, consent, approval, authorization, offer, designation, request or other communication to be given hereunder shall be given
to the party entitled thereto at its address set forth below, or at such other address as such party may provide to the other party in writing from time to time, namely: Flood Control
District: County: City: Riverside County Flood Control and Water Conservation District Attn: Mark H. Wills 1995 Market Street Riverside, California 92501 Telephone: (951) 955-1200 Fax:
(951) 955-788-9965 Director of Transportation County of Riverside 4080 Lemon Street, 8th Floor Riverside, California 92501 Telephone: (951) 955-6740 Fax:(951)955-3198 Director of Public
Works CityofTemecula 43200 Business Park Drive Temecula, California 92590 Telephone: (951)694-6411 Fax: (951) 694-6475 CFD No. 03-02 (Roripaugh Ranch) -JCFA Flood Control Facilities
-Execution Copy 32
Authority: Temecula Public Financing Authority Treasurer 43200 Business Park Drive Temecula, California 92590 Telephone: (951) 694-6430 Fax:(951)694-6479 Developer: Richard K. Ashby
AshbyUSA,LLC 407 East Harrison Street Corona, California 92879 Telephone: (951)898-1692 Fax: (951)898-1693 Each such notice, statement, demand, consent, approval, authorization, offer,
designation, request or other communication hereunder shall be deemed delivered to the party to whom it is addressed (a) if personally served or delivered, upon delivery, (b) if given
by electronic communication, whether by telex, telegram or telecopier, upon the sender's receipt of a document confirming satisfactory transmission, (c) if given by registered or certified
mail, return receipt requested, deposited with the United States mail postage prepaid, 72 hours after such notice is deposited with the United States mail, (d) if given by overnight
courier, with courier charges prepaid, 24 hours after delivery to said overnight courier, or (e) if given by any other means, upon delivery at the address specified in this Section.
Section 6.8. Jurisdiction and Venue. Each of the Authority, the Community Facilities District, the Flood Control District, the County, the City and the Developer (a) agrees that any
suit action or other legal proceeding arising out of or relating to this Joint Community Facilities Agreement shall be brought in state or local court in the County of Riverside or in
the Courts of the United States of America in the district in which said County is located, (b) consents to the jurisdiction of each such court in any suit, action or proceeding, and
(c) waives any objection that it may have to the laying of venue or any suit, action or proceeding in any of such courts and any claim that any such suit, action or proceeding has been
brought in an inconvenient forum. Each of the Authority, the Community Facilities District, the Flood Control District, the County, the City and the Developer agrees that a final and
non-appealable judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
Section 6.9. Attorneys* Fees. If any action is instituted to interpret or enforce any of the provisions of this Joint Community Facilities Agreement, the party prevailing in such action
shall be entitled to recover from the other parties thereto reasonable attorney's fees and costs of such suit (including both prejudgment and postjudgment fees and costs) as determined
by the court as part of the judgment. CFD No. 03-02 (Roripaugh Ranch) -JCFA Flood Control Facilities -Execution Copy 33
Section 6.10. Governing Law. This Joint Community Facilities Agreement and any dispute arising hereunder shall be governed by and interpreted in accordance with the laws of the State
applicable to contracts made and performed in the State. Section 6.11 Usage of Words. As used herein, the singular of any word includes the plural, and terms in the masculine gender
shall include the feminine. Section 6.12. Counterparts. This Joint Community Facilities Agreement may be executed in counterparts, each of which shall be deemed an original. Section
6.13 Interpretation. The parties to this Joint Community Facilities Agreement and their counsel have reviewed and revised this Joint Community Facilities Agreement, and the normal rule
of construction to the effect that any ambiguities in an agreement are to be resolved against the drafting parties shall not be employed in the interpretation of this Joint Community
Facilities Agreement. Section 6.14. Designation of Party's Representative. Each party is to prepare a certificate designating the person or persons that are to serve as the liaison between
the Flood Control District, the County, the City, and the Community Facilities District regarding design, engineering and construction of the Flood Control Facilities. The certificates
are to contain an original and specimen signature of each designated person. The certificates are to be provided to the Flood Control District, the County, the City, and the Community
Facilities District at the time the series of the Bonds are issued. [Balance of Page Intentionally Left Blank] CFD No. 03-02 (Roripaugh Ranch) -JCFA Flood Control Facilities -Execution
Copy 34
IN WITNESS WHEREOF, the parties hereto have executed this Joint Community Facilities Agreement as of the day and year first hereinabove written. RIVERSIDE COUNTY FLOOD CONTROL AND WATER
CONSERVATION DISTRICT RECOMMEND. WILLIAS General Manager-Chief Engineer Jeff Stone Vice Chairman, Board of Supervisors of the Flood Control and Water Conservation District ATTEST: NANCY
ROMERO, Clerk to the Riverside County Flood Control and Water Conservation District Board of Supervisors By: Deputy Clerk APPROVED AS TO FORM: WILLIAM C. KATZENSTEIN, County Counsel
By: Deputy County Counsel RECOMMEND FOR APPROVAL: GEORGE A. JOHNSON Director of Transportation ATTEST: NANCY ROMERO, Clerk to the Board of Supervisors Deputy Clerk COUNTY OF RIVERSIDE
Bob Buster Vice Chairman, Board of Supervisors CFD No. 03-02 (Roripaugh Ranch) -JCFA Flood Control Facilities -Execution Copy 35 //.
ATTEST: City Clerk City Attorney By: CITY OF TEMECULA Mayor Jeff Comerchero Peter Thorson ATTEST: Secretary TEMECULA PUBLIC FINANCING AUTHORITY /Chairperson, Board of Directors Jeff
Comerchero [Signatures continued on next page] CFD No. 03-02 (Roripaugh Ranch) -JCFA Flood Control Facilities -Execution Copy 36
ASHBY USA, LLC, a California limited liability company By: Ashby Development Company, Inc., a California Corporation, its Managing Member By: Justin K. Ashby, President By: USA Investment
Partners, LLC, a Nevada limited liability company, its Member By: USA Commercial Mortgage Company a Nevada corporation, its non-Member Manager By: Joseph D. Milanowski, President CFD
No. 03-02 (Roripaugh Ranch) -JCFA Flood Control Facilities -Execution Copy 37
EXHIBIT A Proposed Boundary Map of Temecula Public Financing Authority Community Facilities District No. 03-02 (Roripaugh Ranch) CFD No. 03-02 (Roripaugh Ranch) -JCFA Flood Control Facilities
-Execution Copy A-l
SHEET i OF i PROPOSED BOUNDARIES OF TEMECULA PUBLIC FINANCING AUTHORITY COMMUNITY FACILITIES DISTRICT NO. 03-02 (RORIP AUGH RANCH) RIVERSIDE COUNTY STATE OF CALIFORNIA (1) Filed in the
office of the Secretary of the Board of Directors of Temecula Public Financing Authority this day of , 2004. Secretary of the Board of Directors Temecula Public Financing Authority (2)
I hereby certify that the within map showing the proposed boundaries of Community Facilities District No. 03-02 (Roripaugh Ranch) of Temecula Public Financing Authority, County of Riverside,
State of California, was approved by the Board of Directors of Temecula Public Financing Authority at a regular meeting thereof, held on the day of , 2004, by its Resolution No. . Secretary
of the Board of Directors Temecula Public Financing Authority Reference is hereby made to the Assessor's maps of the County of Riverside for an exact description of the lines and dimensions
of each lot and parcel. FY 2004-05 Assessor Parcel Numbers 957-340-046 957-340-048 Through 957-340-055 958-260-011 958-260-013 Through 958-260-021 958-810-001 958-810-002 and 958-810-006
Through 958-810-015 day of , o'clock .m., in of Maps of Assessment and Community Facilities Districts in the Office of the County Recorder in the County of Riverside, State of California.
(3) Recorded this 2004, at the hour of _ Book ,Pages_ Fee No. LEGEND CFD Boundary County Recorder of Riverside County PREPARED BY DAVID TAUSSIG* ASSOCIATES, INC,
EXHIBIT B FLOOD CONTROL FACILITIES Temecula Public Financing Authority Community Facilities District No. 03-02 (Roripaugh Ranch) Acquisition Cost Facility No. 1: Long Valley Wash: (Sta.
38+00.00 to 98+41.53)1 A variable width (150'± to 340'±) by 6,065'± long earthen and Armorflex lined trapezoidal channel extending from 500'± west of Butterfield Stage Road to East Tract
Boundary, with transition structures, two road crossings, flow-by basin, rip rap dissipaters, headwalls, wing walls, miscellaneous cutoff walls, security fencing and gates, and a 16'
wide paved maintenance road paralleling both sides of the channel. $ 7,762,515 Facility No. 2: Santa Gertrudis Channel: (From Habitat Area to Westerly Boundary of M.W.D. Easement)1 A
variable width (300'± to 540'±) by 8,170'± long earthen and Armorflex lined trapezoidal channel extending from westerly boundary of M.W.D. easement to habitat area, with transition structures,
two road crossings, flow-by basin, rip rap dissipater, headwalls, wing walls, miscellaneous cutoff walls, security fencing and gates, and a 16' wide paved maintenance road paralleling
both sides of the channel. $ 3,161,086 Facility No. 3: Line "F" (Sta. 30+29.42 to 31+63.86) Consists of 134.44'± of 60" RCP from centerline of Butterfield Stage to inlet structure easterly
of R.O.W., joining existing 60" CIPP, with headwall, wingwall, inlet structure, trash rack, and concrete aprons. $49,195 The work required to complete both channels will include, but
is not limited to, all necessary clearing and grubbing, temporary bypass channel construction and removal, dewatering, temporary shoring, grading, excavation, backfill, construction
of any necessary appurtenances including junction structures, cutoff walk, access roads, right-of-way fencing, flow by basins and any necessary work or utility relocation costs required
to facilitate the completion of the channels. CFD No. 03-02 (Roripaugh Ranch) -JCFA Flood Control Facilities -Execution Copy B-l
Acquisition Cost Facility No. 4: Line "J" (Sta. 10+00.00 to 20+39.56) Consists ofl,039.32'± of 72" RCP from westerly of R.O.W. of Butterfield Stage to inlet structure easterly of R.O.W.,
with manholes, junction structures, headwall, inlet structure, and concrete aprons. $397,111 Facility No. 5: Line «M" (Sta. 9+91.25 to 19+23.50) Consists of 428.87'+ of 54" RCP and 490.00"±
of 42" RCP from outlet structure westerly of R.O.W. of Butterfield Stage to transition structure at station 19+23.50, with manholes, junction structures, headwall, and outlet structure
$ 400,787 TOTAL $ 11,770,694 CFD No. 03-02 (Roripaugh Ranch) -JCFA Flood Control Facilities -Execution Copy B-2
'S/DECOUNTYFL CONSERVATION RORIPAUGHRAN
Butterfield Stage Road Sta. 193+06 EXHIBIT "B-2" RIVERSIDE COUNTY FLOOD CONTROL AND WA TER \ CONSERVATION IMPROVEMENTS RORIPAUGHRANCH TRACT29353
COUNTYFL CONSERVATIONS RORIPAUGHRA
INE "F" iaSerena'Way Butterfield Stage Road Sta. 193+06 STORM DRAIN EASEMENT INGRESS/EGRESSEXHIBIT "C-2" RIVERSIDE COUNTY FLOOD CONTROL AND WA TER tfSERVA TION PARCELS AND EASEMENTS
RORIPAUGHRANCH TRACT29353
EXHIBIT D PAYMENT BOND (Public Work -Civil Code Section 3247 et seq.) The makers of this Bond are as Principal and Original Contractor and , a corporation, authorized to issue Surety
Bonds in California, as Surety, and this Bond is issued in conjunction with that certain public works contract dated as of July 1, 2003, between Principal, , as owner, for dollars ($
) the total amount payable. THE AMOUNT OF THIS BOND IS 100% OF SAID SUM. Said contract is for public work of those certain as defined and described in said agreement entitled: "Joint
Community Facilities Agreement by and among Riverside County Flood Control And Water Conservation District, County of Riverside, City of Temecula, Temecula Public Financing Authority,
and Ashby USA, LLC" dated as of November 1,2004 The beneficiaries of this Bond are as is stated in 3248 of the Civil Code and the requirements and conditions of this Bond are as is set
forth in Sections 3248, 3249, 3250 and 3252 of said Code. Without notice, Surety consents to extension of time for performance, change in requirements, amount of compensation, or prepayment
under said Contract Signed and Sealed this Day of 200 (Firm Name -Principal) Affix Seal (Business Address) if Corporation By: -. (Signature -Attach Notary's Acknowledgment) (Title) (Corporation
Name -Surety) Affix (Business Address) Corporate Seal By: , : . (Signature -Attached Notary's Acknowledgment) ATTORNEY-IN-FACT (Tide-Attach Power of Attorney) CFD No. 03-02 (Roripaugh
Ranch) -JCFA Flood Control Facilities -Execution Copy D-1
PERFORMANCE BOND The makers of this Bond, as Principal, and as Surety, are held and firmly bound unto , hereinafter called the Owner, in the sum of Dollars ($ ) for the payment of which
sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, and successors, jointly and severally, firmly by these presents. The condition of this obligation
is such, that whereas the Principal entered into a certain contract, hereto attached, with the Owner, dated as of , 200_ for those certain as defined and described in said agreement
entitled: "Joint Community Facilities Agreement by and among Riverside County Flood Control and Water Conservation District, County of Riverside, City of Temecula, Temecula Public Financing
Authority, and Ashby USA, LLC" dated as of November 1,2004. Now therefore, if the Principal shall well and truly perform and fulfill all the undertakings covenants, terms, conditions
and agreements of said Contract during the original term of said Contract and any extension thereof mat may be granted by the Owner, with or without notice to the Surety, and during
the file of any guarantee required under the Contract, and shall also well and truly perform and fulfill all the undertakings, covenants, terms, conditions, and agreements of any and
all duly authorized modifications of said Contract that may thereafter be made, then this obligation to be void, otherwise to remain in full force and virtue. Without notice, Surety
consents to extension of time for performance, change in requirements, change in compensation or prepayment under said Contract. Signed and Sealed this Day of ,200 (Firm Name -Principal)
_ Affix Seal (Business Address) if Corporation By: (Signature -Attach Notary's Acknowledgment) (Title) (Corporation Name -Surety) Affix (Business Address) Corporate Seal By: (Signature
-Attach Notary's Acknowledgment) ATTORNEY-IN-FACT (Title-Attach Power of Attorney) CFD No. 03-02 (Roripaugh Ranch) -JCFA Flood Control Facilities -Execution Copy D-2
EXHIBIT E FORM OF PAYMENT REQUEST Temecula Public Financing Authority Community Facilities District No. 03-02 (Roripaugh Ranch) Ashby USA, LLC hereby requests payment of the Purchase
Price for the Flood Control Facility described in Attachment A attached hereto. Capitalized undefined terms shall have the meanings ascribed thereto in the Joint Community Facilities
Agreement, dated as of November 1, 2004 (the "Joint Community Facilities Agreement"), by and among Riverside County Flood Control and Water Conservation District (the "Flood Control
District"), County of Riverside (the County"). City of Temecula (the "City"), Temecula Public Financing Authority and Ashby USA, LLC (the "Developer"). In connection with this Payment
Request, the undersigned hereby represents and warrants to the Flood Control District as follows: 1. The undersigned is a Party Representative, qualified to execute this request for
payment on behalf of the Developer and is knowledgeable as to the matters set forth herein. 2. The Developer Developer has submitted or submits herewith to the Flood Engineer and the
City Engineer as-built drawings or similar Plans and specifications for the Flood Control Facility for which payment is requested, and such drawings or plans and specifications, as applicable,
are true, correct and complete. 3. The Flood Control Facility has been constructed in accordance with the Plans therefor, and in accordance with all applicable Flood Control District
standards and the requirements of the Joint Community Facilities Agreement, and the as-built drawings or similar Plans and specifications referenced in paragraph 2 above. 4. There has
not been filed with or served upon the Developer notice of any lien, right to lien or attachment upon, or claim affecting the right to receive the payment requested herein which has
not been released or will not be released simultaneously with the payment of such obligation, other than material men's or mechanics' liens accruing by operation of law. Copies of lien
releases for all work work for which payment is requested hereunder are attached hereto. 5. The representations and warranties of the Developer set forth in Section 5.1 of the Joint
Community Facilities Agreement are true and correct on and as of the date hereof with the same force and effect as if made on and as of the date hereof. CFD No. 03-02 (Roripaugh Ranch)
-JCFA Flood Control Facilities -Execution Copy E-l
I hereby declare under penalty of perjury that the above representations and warranties are true and correct. Date: Developer By: Party Representative CFD No. 03-02 (Roripaugh Ranch)
-JCFA Flood Control Facilities -Execution Copy E-2
ATTACHMENT A PAYMENT REQUEST -ACTUAL COSTS Developer Is to complete Columns 1 through 7 CFD/Tract Number: Facility Descrlotlon: 1 Bid Kern No. 2 3 4 5 6 7 8 9 10 11 Bid Item Description
Unit of Measure Unit Price Original Contract Quantity Quantity Invoiced Amount Invoiced Quantity Calculated By Flood District Amount Calculated By Flood District Difference Actual Cost
123456789 10 11 12 13 14 15 16 17 18 19 20 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 00000000000000000000 00000000000000000000
0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 00000000000000000000 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 Total: Amount Requested: 0.00 0.00 0.00 CFD No.
03-02 (Roripaugh Ranch) -JCFA Flood Control Facilities -Execution Copy E-3
APPROVAL BY THE FLOOD ENGINEER The Flood Engineer confirms that the Flood Control Facility described in Attachment A-1 has been constructed in accordance with the Plans therefor. The
Actual Cost of each Flood Control Facility as described in Attachment A-1 has been reviewed, verified and approved by the Flood Engineer. The Purchase Price for said Flood Control Facility
is established at $ . Payment of the Purchase Price for the Flood Control Facility is hereby approved. Date: FLOOD CONTROL ENGINEER By: CFD No. 03-02 (Roripaugh Ranch) -JCFA Flood Control
Facilities -Execution Copy E-4
ATTACHMENT A-l PAYMENT REQUEST -ACTUAL COSTS Flood Control District to complete Columns 8 through 11 CFD/Tract Number: Facility Description: 1 Bid Item No. 2 Bid Hem Description 3 4
5 6 7 8 9 1 0 1 1 Unit of Measure Unit Price Original Contract Quantity Quantity Invoiced Amount Invoiced Quantity Calculated By Flood District Amount Calculated By Flood District Difference
Actual Cost 123456789 10 11 12 13 14 15 16 17 18 19 20 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 00000000000000000000 00000000000000000000
0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 00000000000000000000 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 Total: Amount Requested: 0.00 0.00 0.00 CFD No.
03-02 (Roripaugh Ranch) -JCFA Flood Control Facilities -Copy E-5
EXHIBIT F LICENSE AGREEMENT The RIVERSIDE COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT, hereinafter called "DISTRICT", and the CITY OF TEMECULA, hereinafter called "CITY", hereby
agree as follows: RECITALS A. Pursuant to the Joint Community Facilities Agreement, hereinafter called the "AGREEMENT", dated as of November 1, 2004 by and among DISTRICT, CITY, Temecula
Public Finance Authority and Ashby USA, LLC, hereinafter called "DEVELOPER", DEVELOPER is to construct approximately 6,065 lineal feet of the Long Valley Wash Channel that is to be a
variable width, earthen and Armorflex lined trapezoidal channel extending from Station No. 38+00.00 to Station No. 98+41.53 and includes a 16 feet wide paved maintenance roads paralleling
both sides of the channel and a pedestrian bridge ("CHANNEL") that is within the boundaries of the Temecula Public Financing Authority Community Facilities District No. 03-02 (Roripaugh
Ranch) (the "Community Facilities District"). B. CHANNEL has been designed to collect and convey storm and flood waters emanating from the Long Valley Wash watershed. Pursuant to said
AGREEMENT, DISTRICT is to accept CHANNEL right of way for ownership upon its completion of construction and transfer of the necessary fee interest to DISTRICT. Said right of way, hereinafter
called the "CHANNEL
RIGHT-OF-WAY", which consists of three (3) parcels and is shown in concept in red on Exhibit "A" attached hereto and made a part hereof, and does not include any road or pedestrian crossing
to be owned by either CITY or DEVELOPER. C. CHANNEL is an essential and critical component of the proposed flood protection and drainage infrastructure for the Long Valley Wash drainage
area. Upon acceptance by DISTRICT, CHANNEL will become an integral element of DISTRICT'S maintained system of flood protection works. D. The flood hazard associated with Long Valley
Wash is sporadic in nature; thus, portions of the CHANNEL RIGHT-OF-WAY may be utilized for certain public recreation uses including pedestrian, equestrian and bicycling. CFD No. 03-02
(Roripaugh Ranch) -JCFA Flood Control Facilities -Execution Copy F-l
E. As set forth herein, DISTRICT is willing to allow the public to utilize the CHANNEL RIGHT-OF-WAY for purposes of accommodating appropriate recreational uses, provided (i) said uses
do not compromise CHANNEL'S primary flood protection purpose, (ii) said uses do not unduly interfere with DISTRICT'S ability to operate and maintain CHANNEL and (iii) DISTRICT is held
harmless and indemnified against any claims that may result from the public's use of CHANNEL RIGHT-OF-WAY for recreational purposes. F. As set forth herein, CITY is willing to extend
an easement to DISTRICT for the removal of silt and debris at road crossings, and the CITY is willing to indemnify and hold DISTRICT harmless against any claims resulting from the public's
use of the RCFC PARCEL or CITY's responsibilities in connection therewith or the condition thereof.G. It is in the public interest to proceed with this License Agreement. NOW, THEREFORE,
the parties hereto mutually agree as follows: ARTICLE I DISTRICT shall: 1. Grant to CITY a license to utilize CHANNEL RIGHT-OF-WAY for public recreation purposes which are not incompatible
with CHANNEL'S primary flood protection purpose and function and which do not otherwise interfere with or impair the DISTRICT'S ability to operate and maintain CHANNEL or any of its
appurtenant works. Said license shall remain in effect indefinitely so long as CITY's use of the CHANNEL RIGHT-OF-WAY is so limited. 2. Give written notice to CITY of any use of CHANNEL
RIGHT-OF-WAY that is not in conformity with this License Agreement or which may adversely affect the flood protection function of CHANNEL, and grant to CITY thirty (30) days from and
after such notice to correct any such nonconforming use. 3. With regard to the use of CHANNEL RIGHT-OF-WAY as set forth herein, DISTRICT reserves the right to require remediation, and,
if remediation is unsuccessful, to terminate this License Agreement if, in the opinion of the General Manager-Chief Engineer, the public's use of the CHANNEL RIGHT-OR-WAY results in,
or contributes to, a public hazard, a public nuisance, a degradation of water quality, or any other matter of substantive concern to the DISTRICT. CFD No. 03-02 (Roripaugh Ranch) -JCFA
Flood Control Facilities -Execution Copy F-2
ARTICLE II CITY shall: 1. Within CHANNEL RIGHT-OR-WAY, assume sole responsibility for ensuring the public's safety and enjoyment thereof, including but not limited to assuming all liability
associated with the recreational use of CHANNEL RIGHT-OF-WAY, including claims of third persons for injury or death or damage to property. Said obligation shall not include any inverse
condemnation liability of DISTRICT by reason of the location of CHANNEL RIGHT-OF-WAY or CHANNEL unless such liability is the result of CITY's operations or use of the property by the
public pursuant to CITY's actual or tacit consent. 2. Within the CHANNEL RIGHT-OF-WAY, or otherwise associated with this License Agreement, indemnify and hold DISTRICT, its Board of
Supervisors, officers, agents, employees and independent contractors free and harmless from any liability whatsoever, based or asserted upon any act or omission of CITY, its officers,
agents, employees, subcontractors, independent contractors, guests and invitees for property damage, bodily injury or death (CITY employees included) or any other element of damage of
any kind or nature, related to or in any manner connected with or arising from the public's use and responsibilities in connection therewith of the CHANNEL RIGHT-OF-WAY or the condition
thereof, and CITY shall defend, at its expense, including attorneys' fees, DISTRICT, its Board of Supervisors, officers, agents, employees and independent contractors, in any legal action
based upon such alleged acts or omissions. ARTICLE IV It is further mutually agreed: 1. Each party, as to any claim or liability arising out of any act or omission with reference to
any work to be performed by or authority delegated to such party as a result of this License Agreement, shall save, defend, indemnify and hold harmless the other party, their respective
officers and employees from all liability from death or injury to person, or damage to property, or claim therefore. 2. DISTRICT reserves the right to terminate any use granted pursuant
to this license, if for any reason whatsoever, DISTRICT determines that said use of the CHANNEL RIGHT-OF-WAY is not compatible with CHANNEL'S primary flood protection function and purpose
or said use unduly interferes with DISTRICT'S ability to operate and maintain CHANNEL. 3. Any waiver by DISTRICT or by CITY of any breach of any one or more of the terms of this License
Agreement shall not be construed to be a waiver of any CFD No. 03-02 (Roripaugh Ranch) -JCFA Flood Control Facilities -Execution Copy F-3
subsequent or other breach of the same or of any other term hereof. Failure on the part of DISTRICT or CITY require exact, full and complete compliance with any terms of this License
Agreement shall not be construed as in any manner changing the terms hereof, or estopping DISTRICT of CITY from enforcement hereof. 4. If any provision in this License Agreement is held
by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in
any way. 5. This License Agreement is to be construed in accordance with the laws of the State of California. 6. Any written notice, statement, demand, consent, approval, authorization,
offer, designation, request or other communication to be given hereunder shall be given to the party entitled thereto at its address set forth below, or at such other address as such
party may provide to the other party in writing from time to time, namely: RIVERSIDE COUNTY FLOOD CONTROL CITY OF TEMECULA AND WATER CONSERVATION DISTRICT P. O. BOX 9033 1995 Market
Street Temecula, CA 92589-9033 Riverside, CA 92501 Telephone: (909) 694-6411 Telephone: (909) 955-1200 Fax: (909) 694-6475 Fax:(909)788-9965 Each such notice, statement, demand, consent,
approval, authorization, offer, designation, request or other communication hereunder shall be deemed delivered to the party to whom it is addressed (a) if personally served or delivered,
upon delivery, (b) if given by electronic communication, whether by telex, telegram or telecopier, upon the sender's receipt of a document confirming satisfactory transmission, (c)if
given by registered or certified mail, return receipt requested, deposited with the United States mail postage prepaid, 72 hours after such notice is deposited with the United States
mail, (d) if given by overnight courier, with courier charges prepaid, 24 hours after delivery to said overnight courier, or (e) if given by any other means, upon delivery at the address
specified in this Section. 7. Any action at law or in equity brought by any of the parties hereto for the purpose of enforcing a right or rights provided for by the License Agreement,
shall be tried in a court of competent jurisdiction in the County of Riverside, State of California, and the parties hereto waive all provisions of law providing for a change of venue
in such proceedings to any other county. 8. This License Agreement is the result of negotiations between the parties hereto, and the advice and assistance of their respective counsel.
The fact that this License Agreement was prepared as a matter of convenience by DISTRICT shall have no import or significance. Any uncertainty or ambiguity in this License Agreement
shall not be construed against DISTRICT because DISTRICT prepared this License Agreement in its final form. CFD No. 03-02 (Roripaugh Ranch) -JCFA Flood Control Facilities -Execution
Copy F-4
9. This License Agreement is intended by the parties hereto as a final expression of their understanding with respect to the subject matter hereof and as a complete and exclusive state
of the terms and conditions thereof and supersedes any and all prior and contemporaneous agreements and understandings, oral or written, it connection therewith. This License Agreement
may be change or modified only upon the written consent of the parties hereto. [Balance of Page Intentionally Left Blank] CFD No. 03-02 (Roripaugh Ranch) -JCFA Flood Control Facilities
-Execution Copy F-5
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on (to be filled in by Clerk of the Board) RIVERSIDE COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT RECOMMEND
FOR APPROVAL: By: By: WARREN D. WILLIAMS JAMES A. VENABLE General Manager-Chief Engineer Chairman, Board of Supervisors of the Flood Control and Water conservation District ATTEST: Nancy
Romero, Clerk of the Riverside County Flood Control and Water Conservation District By: Deputy APPROVED AS TO FORM: WILLIAM C. KATZENSTEIN, County Counsel By: Deputy County Counsel CITY
OF TEMECULA ATTEST: By:__ City Clerk Michael S. Naggar, Mayor By: Susan W. Jones, CMC APPROVED AS TO FORM: City Attorney By: Peter Thorson CFD No. 03-02 (Roripaugh Ranch) -JCFA Flood
Control Facilities -Execution Copy F-6