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HomeMy WebLinkAboutJoint Community Facilities Agreement, among the Authority, Ashby USA, LLC and the Eastern Municipal Water District ; Quint & Thimmig LLP 10/29/04 12/22/04 JOINT COMMUNITY FACILITIES AGREEMENT by and among the TEMECULA PUBLIC FINANCING AUTHORITY and ASHBY USA, LLC and EASTERN MUNICIPAL WATER DISTRICT relating to: Temecula Public Financing Authority Community Facilities District No. 03-02 (Roripaugh Ranch) 20009.01:J7832 JOINT COMMUNITY FACILITIES AGREEMENT THIS JOINT COMMUNITY FACILITIES AGREEMENT (the "Agreement") is entered into effective as of the 1st day of January, 2005, by and among TEMECULA PUBLIC FINANCING AUTHORITY, a joint exercise of powers authority (the "Authority"), ASHBY USA, LLC, a California limited liability company ("Property Owner"), and EASTERN MUNICIPAL WATER DISTRICT, a public agency organized and existing pursuant to Division 20 of the California Water Code ("EMWD"), and relates to the proposed formation by Authority of a community facilities district to be known as "Temecula Public Financing Authority Community Facilities District No. 03-02 (Roripaugh Ranch)" (the "CFD") for the purpose of financing certain facilities to be owned and operated by EMWD from proceeds of bonds issued by the proposed CFD. RECITALS: A. The property described and depicted in Exhibit "A" hereto (the "Property") which is located in the City of Temecula, County of Riverside, State of California, is proposed to constitute the the land within the boundaries of the CFD. B. Property Owner intends to develop the Property for residential purposes and has obtained or intends to obtain the necessary development approvals to construct approximately 1,761 detached single family residential units on the Property, as such development may be modified from time to time (the "Project"). C. Property Owner petitioned the Authority to form the CFD for the purpose of financing, among other things, the acquisition and/or construction of various public facilities to be owned and operated by EMWD as described in Exhibit "B" hereto, which facilities will benefit the Project in whole or in part, and will be constructed by or on behalf of Property Owner and ultimately owned and operated by EMWD (the "Acquisition Facilities"). Upon the construction of the Acquisition Facilities by or on behalf of Property Owner and the inspection and acceptance thereof by EMWD as described herein, the Acquisition Facilities shall become part of the EMWD system. D. Property Owner has yet to determine whether it will finance any or all of the Acquisition Facilities with Bond Proceeds (defined below) available for such purpose. The parties hereto acknowledge that the purpose of this Agreement is to satisfy the requirements of the Act (defined below). E. EMWD and Property Owner agree that any Acquisition Facilities to be constructed by Property Owner shall be eligible for acquisition by EMWD and the costs thereof shall be eligible for reimbursement from Bond Proceeds pursuant to this Agreement. F. [intentionally omitted] G. In addition to the Acquisition Facilities, certain facilities to be owned and operated by City of Temecula and the Temecula Community Services District (collectively, the "City Facilities") are expected to be funded from proceeds of bonds issued by proposed the CFD prior to the funding of Acquisition Facilities. H. Authority will have sole discretion and responsibility for the formation and administration of the CFD. -2- I. The Board of Directors of the Authority (the "Board of Directors") has, by adoption of Resolution No. TPFA 04-08 on August 24, 2004, declared its intention to form and establish the CFD pursuant to the provisions of the Act (defined below). J. Authority is authorized by Section 53313.5 of the Act to assist in the financing of the acquisition and/or construction of the Acquisition Facilities. This Agreement constitutes a joint community facilities agreement, within the meaning of Section 53316.2 of the Act, by and among EMWD, Property Owner, and Authority, pursuant to which the CFD, when and if formed, will be authorized to finance the acquisition and/or construction of all or a portion of the Acquisition Facilities. As authorized by Section 53316.6 of the Act, responsibility for constructing, providing for and operating the Acquisition Facilities is delegated to EMWD. K. The parties hereto find and determine that the residents residing within the boundaries of EMWD, City of Temecula and the CFD will be benefited by the construction and/or acquisition of the City Facilities and Acquisition Facilities and that this Agreement is beneficial to the interests of such residents.AGREEMENT NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, the parties hereto agree as follows: 1. Recitals. Each of the above recitals is incorporated herein and is true and correct. 2. Definitions. Unless the context clearly otherwise requires, the terms defined in this Section shall, for all purposes of this Agreement, have the meanings herein specified. (a) "Acquisition Facility or Facilities" means those sewer and water facilities listed on Exhibit "B" hereto, which are eligible to be constructed by the Property Owner, acquired by EMWD and paid for with Bond Proceeds. (b) "Acquisition Price" means the amount to be paid out of Bond Proceeds for an Acquisition Facility. (c) "Act" means the Mello-Roos Community Facilities Act of 1982, Chapter 2.5 (commencing with Section 53311) of Part 1 of Division 2 of Title 5 of the California Government Code. (d) "Actual Costs" with respect to an Acquisition Facility includes: (i) the actual hard construction costs including labor, materials and equipment costs, (ii) the costs incurred in design, engineering and preparation of plans and specifications, (iii) the fees paid to consultants and government agencies in connection with and for obtaining permits, licenses or other required governmental approvals, (iv) construction management fee of 5% of the costs described in clause (i) above, (v) professional costs such as engineering, legal, accounting, inspection, construction staking, materials testing and similar professional services, (vi) costs of payment, performance of maintenance bonds, and insurance costs (including the costs of any title insurance), and (vii) the value of any real property or interests therein that (1) are required for the construction of the Acquisition Facility such as temporary construction easements, haul roads, etc. and (2) are required to to be conveyed with such Acquisition Facility in an amount equal to the fair market value of such real property or interests therein. (e) [intentionally omitted] -3- (f) "Bond Proceeds" or "Proceeds of the Bonds" shall mean those net funds generated by the sale of the Bonds and investment earnings thereon. (g) "Bond Resolution" means the Fiscal Agent Agreement providing for the issuance of the Bonds. (h) "Bonds" shall mean those bonds issued by, or on behalf of the CFD in one or more series, as authorized by the qualified electors within the CFD. (i) "City Facilities" means those public improvements to be owned, operated or maintained by the City of Temecula and the Temecula Community Services District identified in proceedings to form the CFD that are eligible to be financed with Bond Proceeds. (j) "EMWD Engineer" means the engineering firm or in-house personnel used by EMWD to determine the value of an Acquisition Facility to be acquired with Bond Proceeds. (k) "EMWD Fees" means water supply development fees, water backup fees, sewer backup fees, sewer treatment capacity charges and all components thereof imposed by EMWD upon the Project. (1) [intentionally omitted] (m) "EMWD Representative" means the EMWD Engineer or his designee. (n) "Field Engineer" shall have the meaning ascribed to the term in Section 7(a)(i) of this Agreement. (o) [intentionally omitted] (p) "Party" or "Parties" shall mean any one or all of the parties to this Agreement. (q) "Plans and Specifications" shall mean the plans and specifications for the design and construction of an Acquisition Facility as approved by EMWD, which approval shall not be unreasonably withheld. (r) "Rate and Method" means the Rate and Method of Apportionment of the Special Tax authorizing the levy and collection of special taxes pursuant to proceedings undertaken for the formation of the CFD pursuant to the Act. (s) "Special Taxes" means the special taxes authorized to be levied and collected pursuant to the Rate and Method. (t) "State" means the State of California. (u) "Substantially Complete" or "Substantial Completion" with respect to an Acquisition Facility means that such Acquisition Facility is substantially complete complete in accordance with its Plans and Specifications and is available for use by the public for its intended purpose, notwithstanding any final "punch list" items still required to be completed, unless such items are required for the safe operation of such Acquisition Facility, and shall be based upon approval of EMWD's inspectors, which shall not be unreasonably withheld. -4- 3. Proposed Formation of the CFD. Authority will undertake to analyze the appropriateness of forming the CFD to finance the Acquisition Facilities and other facilities. Authority has retained, at the expense of the Property Owner, the necessary consultants to analyze the proposed formation of the CFD. 4. Sale of Bonds and Use of Proceeds. In the event that the CFD is formed, the Board of Directors acting as the legislative body of the CFD may, in its sole discretion, finance the Acquisition Facilities by issuing the Bonds. Nothing herein shall supersede the obligation of an owner of the Property to pay EMWD Fees to EMWD when due as a condition of receiving water and sewer service to the Property. The purpose of this Agreement is to provide a mechanism by which the CFD may issue the Bonds to provide a source of funds to fund the Acquisition Price of Acquisition Facilities. The Bonds shall be issued only if, in its sole discretion, the Board of Directors determines that all requirements of State and Federal law and all Authority policies have been satisfied or have been waived by Authority. In no event shall EMWD or any owner of the Property, including Property Owner, have a right to compel the issuance of the Bonds or the disbursement of Bond Proceeds to fund Acquisition Facilities. 5. [intentionally omitted] 6. Ownership of Acquisition Facilities. The Acquisition Facilities shall be and remain the property of EMWD. 7. Acquisition Facilities. The Parties acknowledge that EMWD may require the Property Owner, pursuant to the EMWD Rules and Regulations, to design, construct and dedicate to EMWD the Acquisition Facilities as a condition to providing water and sewer service to the Property. The following provisions of this Section 7 shall apply solely with respect to those Acquisition Facilities to be constructed by Property Owner and acquired by EMWD with Bond Proceeds: (a) Construction and Acquisition of Acquisition Facilities. (i) The Property Owner will complete the Plans and Specifications for such Acquisition Facilities. The Plans and Specifications shall include EMWD's standard specifications and shall be subject to EMWD approval, which shall not be unreasonably withheld. EMWD agrees to process any Plans and Specifications for approval with reasonable diligence and in a timely manner. The Property Owner may proceed with the construction of any such Acquisition Facilities in accordance with the provisions of Section 7(b) hereof. A qualified engineering firm (the "Field Engineer") shall be employed by Property Owner to provide all field engineering surveys determined to be necessary by the EMWD inspection personnel. Field Engineer shall promptly furnish to EMWD a complete set of grade sheets listing all locations, offsets, etc., in accordance with good engineering practices, and attendant data and reports resulting from the Field Engineer's engineering surveys and/or proposed facility design changes. EMWD shall have the right, but not the obligation, to review, evaluate and analyze whether such results comply with with applicable specifications. (ii) A full-time soils testing firm, approved by EMWD, shall be employed by Property Owner to conduct soil compaction testing and certification. Property Owner shall promptly furnish results of all such compaction testing to EMWD for its review, -5- evaluation and decision as to compliance with applicable specifications. In the event the compaction is not in accordance or compliance with applicable specifications, Property Owner shall be fully liable and responsible therefore. A final report shall be required fully certifying trench compaction efforts prior to acceptance of each of the Acquisition Facilities. (iii) The cost of all surveying, compaction testing and report costs associated with such Acquisition Facilities furnished and constructed by any contractors or subcontractors (collectively, "Contractors") shall be included among the costs which are eligible to be paid from the Bond Proceeds. (iv) EMWD shall not be responsible for conducting any environmental, archaeological, biological, or cultural studies or any mitigation requirements related to the Acquisition Facilities to be constructed by Property Owner that may be requested by appropriate Federal, State, and/or local agencies. Any such work shall be paid for and such work shall be conducted by, or on behalf of Property Owner and the costs of such work shall be eligible to be paid from the Bond Proceeds. (b) Public Works Requirements. In order to ensure that the Acquisition Facilities to be constructed by the Property Owner and acquired with Bond Proceeds will be constructed as if they had been constructed under the direction and supervision, or under the authority of, the EMWD, so that they may be acquired by the EMWD pursuant to Government Code Section 53313.5, the Property Owner shall comply with all of the following requirements: (i) The Property Owner shall obtain a minimum of three (3) bids from firms reasonably determined to be qualified to construct the Acquisition Facilities in conformance with the Plans and Specifications. (ii) Property Owner shall make arrangements with EMWD to schedule the bid opening, which is to be held at EMWD headquarters, conducted by Property Owner and witnessed by EMWD staff. (iii) The contract or contracts for the construction of such Acquisition Facilities Facilities shall be awarded to the responsible bidder(s) submitting the lowest responsive bid(s) for the construction of such Acquisition Facilities. (iv) The Property Owner shall require, and the specifications and bid and contract documents shall require all such Contractors to pay prevailing wages and to otherwise comply with applicable provisions of the State Labor Code, Government Code and Public Contract Code relating to public works projects to the extent applicable to a non-governmental entity constructing infrastructure to be acquired by a public entity. (v) Said Contractors shall be required to furnish labor and material payment bonds and contract performance bonds in an amount equal to 100 percent of the contract price naming the Property Owner and the EMWD as obligees and issued by insurance or surety companies approved by the EMWD. All such bonds shall be in a form approved by the EMWD Representative. Rather than requiring its Contractors to provide such bonds, the Property Owner may elect to provide the same for the benefit of its Contractors. (vi) All such Contractors shall be required to provide proof of insurance coverage throughout the term of the construction of such Acquisition Facilities which they will construct in conformance with the approved Plans and Specifications. -6- (vii) The Property Owner and all such Contractors shall comply with such other requirements relating to the construction of such Acquisition Facilities which the EMWD may impose by written notification delivered to the Property Owner and each such Contractor at any time either prior to the receipt of bids by the Property Owner for the construction of such Acquisition Facilities or, to the extent required as a result of changes in applicable laws, during the progress of construction thereof. In accordance with this Section 7(b), the Property Owner shall be deemed the awarding body and shall be solely responsible for compliance and enforcement of the provisions of the State Labor Code, Government Code, and Public Contract Code to the extent expressly applicable to a non-governmental entity constructing infrastructure to be acquired by a public entity. (viii) The Property Owner shall provide proof to the EMWD, at such intervals and in such form as the EMWD Representative may require, that the foregoing requirements have been satisfied as to all of the Acquisition Facilities constructed by Property Owner, acquired by EMWD and paid for with Bond Proceeds. (c) Inspection; Completion of Construction. (i) EMWD shall have primary responsibility for providing inspection of the construction of the Acquisition Facilities constructed by the Property Owner to ensure that the construction is accomplished in accordance with the Plans and Specifications. EMWD's personnel shall have access to the site of the work at all reasonable times for the purpose of accomplishing such inspection. Upon Substantial Completion of the construction of such Acquisition Facilities by Property Owner, the Property Owner shall notify the EMWD in writing that the construction of such Acquisition Facilities has been Substantially Completed. (ii) Upon receiving such written notification from the Property Owner, and upon receipt of written notification from its inspectors that construction of any of the Acquisition Facilities by Property Owner has been been Substantially Completed, EMWD shall within 15 days notify the Property Owner in writing that the construction of such Acquisition Facilities has been satisfactorily completed. Upon receiving such notification, the Property Owner shall forthwith file with the County Recorder of the County of Riverside a Notice of Completion pursuant to the provisions of Section 3093 of the Civil Code. The Property Owner shall furnish to the EMWD a duplicate copy of each such Notice of Completion showing thereon the date of filing with the County Recorder. Any actual costs reasonably incurred by the EMWD in inspecting and •approving the construction of any Acquisition Facilities by Property Owner not previously paid by the Property Owner shall be eligible to be reimbursed from Bond Proceeds, or shall be directly paid by Property Owner if not reimbursed with Bond Proceeds. (d) Liens. Upon the expiration of the time for the recording of claim of liens as prescribed by Sections 3115 and 3116 of the Civil Code, the Property Owner shall provide to the EMWD such evidence or proof as the EMWD shall require that all persons, firms and corporations supplying work, labor, materials, supplies and equipment on behalf of Property Owner for the construction of any Acquisition Facilities have been paid, and that no claims of liens have been recorded by or on behalf of any such person, firm or corporation. Rather than await the expiration of the said time for the recording of claims of liens, the Property Owner may elect to provide to the EMWD a title insurance policy or other security acceptable to the EMWD guaranteeing that no such claims of liens will be recorded or become a lien upon the -7- Property with priority over the lien of the special taxes to be levied thereon in the proceedings for the formation of the CFD. (e) Acquisition, Acquisition Price; Source of Funds. (i) Provided the Property Owner has complied with the requirements of this Agreement, EMWD agrees to acquire the Acquisition Facilities from the Property Owner. Notwithstanding the above, nothing herein shall be construed as requiring Property Owner to construct and deliver any Acquisition Facility. The price to be paid by the CFD for the acquisition of such Acquisition Facilities by EMWD (the "Acquisition Price") shall be the lesser of (i) the value of the Acquisition Facilities, or (ii) the total of the Actual Costs of the Acquisition Facilities, or (iii) the amount otherwise permitted under the Acquisition Agreement between the Authority and the Property Owner. The Property Owner shall transfer ownership of the Acquisition Facilities to the EMWD by grant deed, bill of sale or such other documentation as the EMWD may require. Upon the transfer of ownership of the Acquisition Facilities or any portion thereof from the Property Owner to EMWD, EMWD shall be responsible for the maintenance of the Acquisition Facilities or the portion transferred. (ii) For purposes of determining the Acquisition Price to be paid by the CFD for the acquisition of the Acquisition Facilities by EMWD, the value of such improvements shall be the amount determined by the EMWD Engineer to be the value of the Acquisition Facilities based on the Actual Costs submitted by the Property Owner, as hereinbefore specified; provided, however, that if the EMWD Engineer determines that such Actual Costs, or any of them, are excessive and that the value of the Acquisition Facilities is less than the total amount of such Actual Costs, the Acquisition Price to be paid by the CFD for the acquisition of the Acquisition Facilities shall be the lesser of the value thereof as determined by the EMWD Engineer, or the amount otherwise permitted under the Acquisition Agreement between the Authority and the Property Owner. (iii) Upon completion of the construction of any Acquisition Facilities by Property Owner, the Property Owner shall deliver to EMWD copies of the contract(s) with the Contractor(s) who have constructed the Acquisition Facilities or other relevant documentation with regard to the payments made to such Contractor(s) and each of them for the construction of such Acquisition Facilities, and shall also provide to EMWD copies of all invoices and purchase orders with respect to all supplies and materials purchased for the construction of such Acquisition Facilities. EMWD shall require the EMWD Engineer to complete its determination of the value of the Acquisition Facilities as promptly as is reasonably possible. (iv) To the extent funds are available therefor in accordance with the Acquisition Agreement between the Authority and the Property Owner, and to the extent otherwise permitted under such Acquisition Agreement, the Acquisition Price of any Acquisition Facilities may may be determined and paid out of Bond Proceeds available for such purpose prior to transfer of ownership of the Acquisition Facilities to EMWD upon a determination of Substantial Completion of such Acquisition Facility. Property Owner shall submit a payment request form to the Authority which must also contain therewith approval of EMWD, which approval shall not be unreasonably withheld. (v) Notwithstanding the preceding provisions of this section, the sole source of funds for the acquisition by EMWD of the Acquisition Facilities or any portion thereof shall be the Bond Proceeds made available by the CFD pursuant to the Acquisition Agreement between the Authority and the Property Owner. If for any reason beyond EMWD's control, the proceedings for the formation of the CFD are not completed or the -8- Bonds are not sold, EMWD shall not be required to acquire any Acquisition Facilities from the Property Owner. In such event, the Property Owner shall complete the design and construction and offer to the EMWD ownership of such portions of Acquisition Facilities as are required to be constructed by the Property Owner as a condition to recordation of subdivision maps for the Property or any other agreement between Property Owner and EMWD, but need not construct any portion of the Acquisition Facilities which it is not so required to construct. (vi) Any EMWD monetary reimbursements for construction of Acquisition Facilities funded by the CFD will be paid to the CFD to pay down CFD bond debt or otherwise be used by the CFD as permitted under the Act and the Bond Resolution. All other reimbursements due Property Owner for the construction of facilities other than those financed by the CFD shall be addressed in a separate agreement between Property Owner and EMWD. (f) Easements. The Property Owner shall, at the time EMWD acquires the Acquisition Facilities as provided in Section 7(e) hereof, grant to EMWD, by appropriate instruments prescribed by EMWD, all easements on private property which may be reasonably necessary for the proper operation and maintenance of such Acquisition Facilities, or any part thereof. (g) Maintenance. Prior to the transfer of ownership of an Acquisition Facility by the Property Owner to EMWD, as provided in Section 7(e) hereof, the Property Owner shall be responsible for the maintenance thereof and shall maintain and transfer such Acquisition Facility to EMWD in as good condition as the Acquisition Facility was in at the time the Property Owner notified the EMWD that construction of same had been completed in accordance with the Plans and Specifications. (h) Responsibility for Acquisition Facilities. The Parties acknowledge and agree that all responsibility and obligation for the design, construction and dedication of such Acquisition Facilities to EMWD, in accordance with all applicable statutes and the EMWD Rules and Regulations, shall be and remain the responsibility of the Property Owner. The Parties also acknowledge and agree that the construction and acquisition of the Acquisition Facilities to be constructed by Property Owner is a matter between Property Owner and EMWD only, and that the Authority and the CFD shall have no responsibility or liability for on-site inspection or monitoring or for certifying that the provisions of this Section 7 be satisfied. 8. Indemnification. (a) Indemnification by Authority. Authority shall assume the defense of, indemnify and save harmless, EMWD, its officers, employees and agents, and each and every one of them, from and against all actions, damages, claims, losses or expenses of every type and description to which they may be subjected or put, by reason of, or resulting from, any act or omission of Authority with respect to this Agreement and the issuance of the Bonds; provided, however, that Authority shall not be required to indemnify any person or entity as to damages resulting from negligence or willful misconduct of such person or entity or their officers, agents or employees. (b) Indemnification by Property Owner. Property Owner shall assume the defense of, indemnify and save harmless Authority, CFD and EMWD, their respective officers, employees and agents, and each and every one of them, from and against all actions, damages, claims, losses or expenses of every type and description to which they may be subjected or put, by reason of, or resulting from, any act or omission of Property Owner with respect to this Agreement, and the design, engineering and construction of the Acquisition Facilities constructed by Property Owner; provided, however, that Property Owner shall not be required -9- to indemnify any person or entity as to damages resulting from negligence or willful misconduct of such person or entity or their officers, agents or employees. (c) Indemnification by EMWD. EMWD shall assume the defense of, indemnify and save harmless, Authority, CFD and Property Owner, their respective officers, employees and agents, and each and every one of them, from and against all actions, damages, claims, losses or expenses of every type and description to which they may be subjected or put, by reason of, or resulting from, any act or omission of EMWD with respect to this Agreement, and the design, engineering and construction of the Acquisition Facilities constructed by EMWD; provided, however, that EMWD shall not be required to indemnify any person or entity as to damages resulting from negligence or willful misconduct of such person or entity or their officers, agents or employees. 9. Allocation of Special Taxes. The Board of Directors, as the legislative body of the CFD, shall annually levy or cause to be levied the Special Tax as provided for in the formation proceedings of the CFD. The entire amount of any Special Tax levied by the CFD shall be allocated to the CFD. 10. Amendment and Assignment. This Agreement may be amended at any time but only in writing signed by each party hereto. This Agreement may be assigned, in whole or in part, by the Property Owner to the purchaser of any parcel of land within the Property provided, however, such assignment shall not be effective unless and until EMWD and Authority have been notified, in writing, of such assignment. 11. Entire Agreement. This Agreement contains the entire agreement between the parties with respect to the matters provided for herein and supersedes all prior agreements and negotiations between the parties with respect to the subject matter of this Agreement. 12. Notices. Any notice, payment or instrument required or permitted by this Agreement to be given or delivered to either party shall be deemed to have been received when personally delivered or seventy-two hours following deposit of the same in any United States Post Office in California, registered or certified, postage prepaid, addressed as follows: Authority/CFD: Temecula Public Financing Authority 43200 Business Park Drive Temecula, California 92590 Attention: Director of Public Works with a copy to: Temecula Public Financing Authority 43200 Business Park Drive Temecula, California 92590 Attention: Treasurer EMWD: Eastern Municipal Water District P.O. Box 8300 2270 Trumble Road Ferris, California 92572-8300 Attn: General Manager Property Owner: Ashby USA, LLC 470 E. Harrison Street Corona, CA 92879-1314 -10- Each party may change its address for delivery of notice by delivering written notice of such change of address to the other party hereto. 13. Exhibits. All exhibits attached hereto are incorporated into this Agreement by reference. 14. Attorneys' Fees. In the event of the bringing of any action or suit by any Party against any other Party arising out of this Agreement, the Party in whose favor final judgment shall be entered shall be entitled to recover from the losing Party all costs and expenses of suit, including reasonable attorneys' fees. 15. Severability. If any part of this Agreement is held to be illegal or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be given effect to the fullest extent reasonably possible. 16. Governing Law. This Agreement and any dispute arising hereunder shall be governed by and interpreted in accordance with the laws of the State of California applicable to contracts made and performed in such State. 17. Waiver. Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by the other party hereto, or the failure by a party to exercise its rights upon the default of another party, shall not constitute a waiver of such party's right to insist and demand strict compliance by such other party with the terms of this Agreement thereafter. 18. No Third Party Beneficiaries. No person or entity other than the CFD, when and if formed, shall be deemed to be a third party beneficiary hereof, and nothing in this Agreement (either express or implied) is intended to confer upon any person or entity, other than EMWD, Authority, CFD, and Property Owner (and their respective successors and assigns, exclusive of individual homebuyers), any rights, remedies, obligations or liabilities under or by reason of this Agreement. 19. Singular and Plural: Gender. As used herein, the singular of any word includes the plural, and terms in the masculine gender shall include the feminine. 20. Counterparts. This Agreement may be be executed in counterparts, each of which shall be deemed an original, but all of which shall constitute but one instrument. -11- IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year written above. TEMECULA PUBLIC FINANCING AUTHORITYExecutive Director Shawn D. Nelson EASTERN MUNICIPAL WATER DISTRICT ATTEST: Secretary! of the Board of Directors Susan M/. Jones, C 20009.01J7832 By:. Anthony J. Pack, General Manager ASHBY USA, LLC By: Ashby Development Company, Inc., a California corporation, Managing Member-Justin K. Ashby, Vice-fteeMent By: USA Investment PartnersKfcCC7aN Nevada limited liabiljfcycompany^ Member /h fj. Miranowski, President By: -12- IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year written above. TEMECULA PUBLIC FINANCING AUTHORITYExecutive Director Shawn D. Nelson EASTERN MUNICIPAL WATER DISTRICT ATTEST: By:. Anthony J. Pack, General Manager By: Secretary of the Board of Directors ASHBY USA, LLC By: Ashby Development Company, Inc., a California corporation, Managing Member By:. Justin K. Ashby, Vice President By: USA Investment Partners, LLC, a Nevada limited liability company, Member 20009.01 :J7832 By:.Joseph D. Milanowski, President -12- EXHIBIT A DESCRIPTION OF PROPERTY Riverside County Assessor's Parcel Numbers: 957-340-001, 957-340-003, 957-340-007, 957-340-008, 957-130-001, 957-130-002, 957-260-001 and 957-260-002 A-l SHEET 1 OF 1 QDO CO PROPOSED BOUNDARIES OF TEMECULA PUBLIC FINANCING AUTHORITY COMMUNITY FACILITIES DISTRICT NO. 03-02 (RORIPAUGH 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 (3) Recorded this day of o'clock .m., in of Maps of 2004, at the hour of _ Book , Pages_ Assessment and Community Facilities Districts in the Office of the County Recorder in the County of Riverside, State of California. Fee No. LEGEND CFD Boundary County Recorder of Riverside County PREPARED BY DAVID TAUSSIG i ASSOCIATES, INC. N EXHIBIT B ACQUISITION FACILITIES DESCRIPTIONS Acquisition Facilities. The Acquisition Facilities eligible to be financed by the CFD under the Act are as follows: The type of Acquisition Facilities eligible to be financed by the CFD under the Act are as follows: "Acquisition Facilities" means those facilities constructed by or on behalf of the Property Owner which are needed by EMWD in order to provide services to the Property. The Acquisition Facilities listed below are anticipated to be financed by the CFD. Detailed scope and limits of specific projects will be determined as appropriate, consistent with the standards of EMWD. 1. Sanitary sewer system improvements within: • Butterfield Stage Road, from Nicolas Road to Calle Chapos/South Loop Road; • Nicolas Road, from Butterfield Stage Road to Joseph Road; • North Loop Road, from Butterfield Stage Road to the Gate House East of Butterfield Stage Road (public section only); • South Loop Road, from Butterfield Stage Road to the Gate House East of Butterfield Stage Road (public section only); • Roripaugh Valley Road (A Street), from Murrieta Hot Springs Road to Butterfield Stage Road; and • Fiesta Ranch Road (B Street), from Roripaugh Valley Road to Nicolas Road. 2. Water system improvements within: • Murrieta Hot Springs Road, from the West boundary of Tract 29661 to Butterfield Stage Road; • Butterfield Stage Road, from Murrieta Hot Springs Road to Calle Chapos/South Loop Road; • Nicolas Road, from Butterfield Stage Road to Fiesta Ranch Road (B Street); • North Loop Road, from Butterfield Stage Road to the Gate House East of Butterfield Stage Road (public section only); • South Loop Road, from Butterfield Stage Road to the Gate House East of Fiesta Ranch Road (public section only); • Roripaugh Valley Road (A Street), from Murrieta Hot Springs Road to Butterfield Stage Road; and • Fiesta Ranch Road (B Street), from Roripaugh Valley Road to Nicolas Road.