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HomeMy WebLinkAboutJoint Community Facilities Agreement (Street Improvements) dated as of November 1, 2004 PI pRl/'Q rnPY C°ntractNo. 0*1-1'As* &> J ULLnrx o uur i Riverside Co. Transportation i-y-as JOINT COMMUNITY FACILITIES AGREEMENT (Street Improvements) by and among COUNTY OF RIVERSIDE and CITY OF TEMECULA and TEMECULA PUBLIC FINANCING AUTHORITY and ASHBYUSA,LLC a California limited liability company Dated as of November 1,2004 Relating to: Temecula Public Financing Authority Community Facilities District No. 03-02 (Roripaugh Ranch) CFD No. 03-02 (Roripaugh Ranch) -JCFA County Facilities -Execution Copy IAN A 7005 3-3' TABLE OF CONTENTS ARTICLE I DEFINITIONS Section 1.1. Definitions ..5 ARTICLE II CONDITIONS PRECEDENT Section 2.1. Formation Proceedings 9 ARTICLE HI ACQUISITION OF THE COUNTY FACILITIES Section 3.1. Acquisiton of County Facilties ... 10 Section 3.2. Determination of the Purchase Price 10 Section 3.3. Dedication of Property and Easements to County 11 Section 3.4. Modifications to Acquisition Costs 12 Section 3.5. Application of Realized Savings 12 ARTICLE IV CONSTRUCTION OF THE COUNTY FACILITIES Section 4.1. Preparation and Approval of Plans 13 Section 4.2. Duty of Developer to Construct 13 Section 4.3. Bid and Construction Requirements 13 Section 4.4. Licenses and Regulatory Permits , 15 Section 4.5. NPDES Compliance 15 Section 4.6.Cal/OSHA, Confined Space Entry 17 Section 4.7. Notice of Intent to Commence Construction 17 Section 4.8. Bonding Requirements .... 18 Section 4.9. Additional Conditions to be Satisfied during Construction 18 Section 4.10. Inspection, Completion of Construction.. 18 Section 4.11. Maintenance of Facilities; Warranties 19 Section 4.12. Maintenance Deposits by the Developer for Energizing Street Lights and Maintenance of Retention Wall 19 Section 4.13. Insurance Requirements 20 Section 4.14. Ownership of the Facilities 22 CFD No. 03-02 (Roripaugh Ranch) -JCFA County Facilities -Execution Copy ARTICLE V REPRESENTATIONS, WARRANTIES AND COVENANTS; INDEMNIFICATION Section 5.1. Representations, Warranties and Covenants of the Developer 23 Section 5.2. Representations, Warranties and Covenants of the Authority.. 24 Section 5.3. Representations, Warranties and Covenants of the County 25 Section 5.4. Representations, Warranties and Covenants of the City 25 Section 5.6. The Developer Indemnification 27 ARTICLE VI MISCELLANEOUS Section 6.1. The Developer as Independent Contractors 28 Section 6.2. Other Agreements 28 Section 6.3. Binding on Successors and Assigns 28 Section 6.4. Amendments 28 Section 6.5. Waivers 29 Section 6.6. No Third Party Beneficiaries 29 Section 6.7. Notices 29 Section 6.8. Jurisdiction and Venue 30 Section 6.9. Attorneys Fees 30 Section 6.10. Governing Law 30 Section 6.11. Usage of Words 30 Section 6.12. Counterparts.... 30 Section 6.13. Interpretation 30 Section 6.14. Designation of Party Representative 31 EXHIBIT A PROPOSED BOUNDARY MAP OF CFD NO. 03-02 A-l EXHIBIT B COUNTY IMPROVEMENTS -DIAGRAM, DESCRIPTION AND ACQUISITION COSTS B-l EXHIBIT C FORM OF SUMMARY OF BIDS RECEIVED ...C-l EXHIBIT D FORM OF PAYMENT AND PERFORMANCE BONDS D-l EXHIBIT E FORM OF PAYMENT REQUEST E-l CFD No. 03-02 (Roripaugh Ranch) -JCFA County 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 the County of Riverside, a public 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 (hereinafter, 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 " 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 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 owned and maintained by the County (the "County Facilities") certain flood control and storm water drainage facilities to be owned and maintained by the Riverside County Flood Control and Water Conservation District and certain water and sewer improvements to be owned and maintained by Eastern Municipal Water District (the "EMWD Improvements"). The County Facilities are to be owned, operated and maintained by the County upon their acceptance by the County. The County Facilities are CFD No. 03-02 (Roripaugh Ranch) -JCFA County Facilities -Execution Copy 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 mat 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 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 tile 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 County 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 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 County Facilities, unless expressly stated otherwise. CFD No. 03-02 (Roripaugh Ranch) -JCFA County 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 County Facilities -Execution Copy ARTICLE! 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 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 County Facility, the date that the County Facility is accepted by the County into its maintained system and the Purchase Price therefor has been determined pursuant to the terms the 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 County Facility, the amount specified as the Acquisition Cost for such County Facility in Exhibit B attached hereto, as the same may be modified by one or more supplements thereto entered into hi 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 County Facility, an amount equal to the sum of (a) the Developer's actual, reasonable cost of constructing such County Facility, including labor, material and equipment costs, (b) the Developer's actual reasonable cost of designing and preparing the Plans for such County 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 County 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 County Facility, (e) the Developer's actual reasonable cost for professional services directly related to the construction of such County Facility, including engineering, legal, inspection, construction staking, materials testing and similar professional services, (f) the Developer's actual, reasonable cost for construction management bid administration services which shall CFD No. 03-02 (Roripaugh Ranch) -JCFA County Facilities -Execution Copy 5 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 County 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 County Facility (e.g., temporary construction easements, haul roads, etc.) or is required to be conveyed with such County Facility in order to convey Acceptable Title thereto to the County, all as specified in a Payment Request that is to be reviewed and approved by the County Engineer; provided, however, that (x) no item of cost relating to a County 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 County 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 County 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 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 the Board of Supervisors of the County. "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 County Facilities. "Business Day" means a day which is not a Saturday or Sunday or a day of the year on which the County 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. "Code" means the California Government Code. CFD No. 03-02 (Roripaugh Ranch) -JCFA County Facilities -Execution Copy "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 County Facilities are to be constructed, including off site staging areas and material storage areas. "County" means the County of Riverside, apolitical 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. "County Facility" or "County Facilities" means the street and related drainage improvements as shown and described in Exhibit B attached hereto and are to be owned, operated and maintained by the County. "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 County 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 County, which certificate shall contain an original or specimen signature of each person so designated. "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, Compensation and Liability Act of 1980, as amended, 42 U.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 tune to time be supplemented or amended pursuant to the provisions thereof. CFD No. 03-02 (Roripaugh Ranch) -JCFA County Facilities -Execution Copy "Joint Community Facilities Agreement" means this Joint Community Facilities Agreement, dated as of November 1,2004, by and among 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 County Facilities, which shall be substantially in the form of Exhibit E attached hereto. "Plans" mean the plans and specifications for the County 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 and 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 County 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 County Facilities -Execution Copy ARTICLE II CONDITIONS PRECENDENT Section 2.1. Formation 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 County 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 County Facilities. Should 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 the date hereof, the Authority, the City, the County, and the Developer will not be bound by the terms of mis 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, 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 County Facilities -Execution Copy ARTICLE III ACQUISITION OF COUNTY FACILITIES Section 3.1. Acquisition of County Facilities. The Developer hereby agrees to transfer to the County each of the County 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 County Facility is constructed and for which title is not presently held by the County as well as the County Facility financed pursuant hereto shall be transferred to the County 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 County Facility until the Acceptance Date of said County Facility. The Purchase Price of the County 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 County Facilities except from the amounts in the Acquisition Account. Neither the Authority, the Community Facilities 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 County 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 County Engineer to be able to determine the Purchase Price for a completed County Facility, the Developer shall deliver to the County Engineer: (a) A Payment Request for said County Facility, together with all attachments and exhibits to be included therewith, including a a "Final Billing Calculation," as incorporated in Exhibit E with the County inspector having signed off as to all quantities stated in said form; (b) A copy of the documents conveying or which previously conveyed to the County Acceptable Title to the real property on, in or over which such County Facility is located, as described in Section 3.3 thereof. (c) A copy of the Notice of Completion for said County 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 County, and the City must be received by the County Engineer prior to the CFD No. 03-02 (Roripaugh Ranch) -JCFA County Facilities -Execution Copy 10 County 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 hi the State shall provide to the County redlined "as-built" plans and profile sheets for the County Facility. After the County 's approval of the redlined "as-built" drawings, the Developer's engineer shall schedule with the County a tune to transfer the redlines onto the County 's original mylars at the County 's office, after which, said engineer shall review, stamp and sign the original mylars "As-Built." Notwithstanding anything to the contrary contained herein, no payment of the Purchase Price for any County Facility shall be made unless the County has by written notice to the Community Facilities District and the City stated that the County is willing to accept ownership of the County Facility as constructed and to include it as part of its maintained system as of the Acceptance Date. Once the the County Engineer has been provided with a complete Payment Request Form for the Purchase Price and all other documents as required by her/him to determine the Purchase Price, the County 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 County. Acceptable Title to all property not presently held by the County on, in or over which the County Facility will be located shall be deeded over to County by way of grant deed, quitclaim, or dedication of such property, or easement thereon, if such easement is approved by County as being a sufficient interest therein to permit County to properly own, operate and maintain such County Facility located therein, thereon or thereover, and to permit the Developer to perform its obligations as set forth hi this Joint Community Facilities Agreement. The Developer shall furnish to the County a title report for such property not previously dedicated or otherwise conveyed to the County for review and approval at least thirty (30) Business Days prior to the notice required by Section 4.7 hereof. The County shall approve the title report unless it reveals a matter that, in the sole judgment of the County, could materially affect the County's use and enjoyment of any part of the property or easement covered by the title report. In the event the County does not approve such title report, the County shall notify the Administrator in writing and the County shall not be obligated to accept title to said County Facility, and the Community Facilities District shall not be obligated to pay any portion of the Purchase Price for said County Facility until the Developer has cured such objections to title to the satisfaction of the County Consistent with the proceeding paragraph, the Developer shall obtain and provide, or cause to be obtained or provided, to the County duly executed irrevocable offer(s) of CFD No. 03-02 (Roripaugh Ranch) -JCFA County Facilities -Execution Copy 11 dedication to the public for road and drainage purposes, including ingress and egress, for rights of way deemed necessary by the County for the construction, inspection, operation and maintenance of the County Facilities. The irrevocable offer(s) of dedication shall be in a form approved by the County 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 County and the Developer may make modifications in the composition and description of the County Facilities, or in the amount of the Acquisition Cost for the County Facilities, whenever the Administrator, the City Engineer, the County Engineer and the Developer deem such modifications to be appropriate; provided, however, that such County 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 County 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 County Engineer, on behalf of the County, and the Developer by executing a supplement to Exhibit B containing a description of the modified County Facility and, if applicable, the adjusted Acquisition Cost Upon the execution of any such supplement to Exhibit B, the description of the County 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 County Facility may be deleted or added from Exhibit B pursuant to this Section 3.4. The deletion or addition of a County 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. 3.5. Application of Realized Savings. If the Purchase Price determined by the County Engineer for a completed County Facility is less than the stated Acquisition Cost on Exhibit B for said County 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 County 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 as to a specific County Facility 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 the initiating party. Any proposed adjustment to a County Facility's acquisition cost is subject to approval by the City Engineer, on behalf of the Community Facilities District, the County Engineer on behalf of the County, and the Developer. CFD No. 03-02 (Roripaugh Ranch) -JCFA County Facilities -Execution Copy 12 ARTICLE IV CONSTRUCTION OF THE COUNTY 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 County Facilities. The Developer shall obtain the written approval of the Plans from the County Engineer. The Developer shall provide a copy of all such Plans to the County Engineer and the City Engineer. Once the Plans have been approved, no changes are to be made thereto without prior written consent of the County and the City. Section 4.2. Duty of Developer to Construct The Developer shall construct or cause to be constructed the County Facilities in accordance with the Plans approved by the County Engineer. The Developer shall perform all of its obligations hereunder and shall conduct all operations with respect to the construction of the County 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 County 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 County 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 applicable requirements set forth in the Public Contract Code regarding the notice of bidding and award of a contract for a public works project by a county. (b) Prior to awarding the bid for any County Facilities, the Developer shall submit a bid packet and a signed set of Plans for the County Facility(ies) being bid for review to the County Engineer. A copy of the bid packet is to be provided to the City Engineer. The contract for construction of any County 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 applicable provisions of the Public Contract Code dealing with the bidding of public works projects constructed by the County. Public notice is to be given consistent with the Public Contract Code as to the date, time and place where bids will be opened. The County Engineer is to be provided with copies of all bids received and a bid summary in a form similar to Exhibit C hereto CFD No. 03-02 (Roripaugh Ranch) -JCFA County Facilities -Execution Copy 13 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 County 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 Contract Code relating to General Prevailing Wage Rates as required by the specifications approved by the County Engineer. The County 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 County satisfying the requirements of Section 4.12 hereof throughout the term of the construction of the County 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 County 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 County, the Authority, and the City as obligees and issued by a California admitted surety having a current A.M. Best A:VTfl (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 sub-section 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 County Facilities, to comply, with such other requirements relating to the construction of the County Facilities as the County may impose by written notification delivered to the Developer, to the extent legally required as a result of 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 the extent such individuals or entities are engaged to perform work on the County Facilities, to submit certified weekly payroll records or other proof of payment of General Prevailing Wage Rates to the Developer and to furnish CFD No. 03-02 (Roripaugh Ranch) -JCFA County Facilities -Execution Copy 14 certified payroll records or such other proof of payment of General Prevailing Wage Rates to the County Engineer and City Engineer promptly upon request. (h) All change orders shall be reviewed and approved by the County Engineer for the purpose of ensuring that they comply with County 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 3.4 and 3.5 hereof may be utilized to accommodate the construction costs associated with an approved change order. (i) The Developer shall provide proof to the City Engineer and the County Engineer, at such intervals and in such form as the City Engineer or the County Engineer may require, that the foregoing requirements have been satisfied as to all of the County Facilities. (j) The Developer has deposited with the County $50,000 to cover the anticipated costs, deemed necessary and reasonable, associated with the review and approval of the Plans, the review and 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 County. (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 County the estimated cost of providing construction inspection for the County Facilities, in an amount as determined and approved by County in accordance with Ordinance Nos. 671 and 749, including any amendments thereto, of the County, based upon the bonded value of County Facilities to be inspected, operated and maintained by County. 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, inspection, operation and maintenance of the County Facilities. The Developer is to secure all permits approvals or agreements, if any, required by the various Federal and State resource and/or regulatory agencies (collectively, the "Regulatory Permits") for the construction, operation and maintenance of the County 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 County Engineer prior to execution or acceptance by the Developer to determine whether the conditions they specify are satisfactory to the County to allow it to operate and maintain the County 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 CFD No. 03-02 (Roripaugh Ranch) -JCFA County Facilities -Execution Copy 15 Associated with Construction Activity (SWRGB 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 County 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 County Facilities and any area of disturbance outside said Construction Site relating to the County 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 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 County, the City, the Authority, the Community Facilities District or the CFD No. 03-02 (Roripaugh Ranch) -JCFA County Facilities -Execution Copy 16 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 County 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 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 in Sections 5157 and 5158 of Title 8 of the California Code of Regulations. The confined space procedure is to be reviewed and approved by the County Engineer before proceeding with construction of the County Facilities. Section 4.7. Notice of Intent to Commence Construction. Not less than twenty (20) Business Days prior to the date on which it intends to commence construction on a County Facility, the Developer is to provide written "Notice of Intent" to the County Engineer. Construction on the County Facility may not proceed until the County Engineer issues a "Notice to Proceed" to the Developer, with a copy to the City Engineer. The "Notice of Intent" is to include me 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. (d) Duly executed irrevocable offer(s) of dedication to the public for road and drainage purposes, including ingress and egress, for the rights of way deemed necessary by the County for the construction, inspection, operation and maintenance of the County Facilities. (e) Preliminary reports of title 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 County 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 County 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 CFD No. 03-02 (Roripaugh Ranch) -JCFA County Facilities -Execution Copy 17 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 sheets for the County Facilities and assign their ownership to the County prior to the start of construction of each County Facility. (i) Certificates of insurance and endorsements as required by Section 4.13., below. (j) The confined space procedure as required by Section 4.6, above. 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) Construction of the County Facilities shall be on a five (5) day, forty ((40) hour workweek with no work on Saturday, Sundays or days designated by the County as legal holidays, unless otherwise approved by the County. 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 County to work the additional hours (with a copy to the City Engineer). The request shall be submitted to the County 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 be made by the County 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 County Engineer shall have primary responsibility for providing inspection of the work of construction of the County Facilities to ensure that the work of construction is accomplished in accordance with the Plans approved by the County, unless the Developer has made the election allowed by Section 4.7(c) above. County 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 County with written notice that it considers construction of a County Facility to have been completed consistent with the Plans and, upon receipt of said notice, County's staff will provide written confirmation that construction of the County Facility is complete consistent with the approved Plans and the provisions of this Joint Community Facilities Agreement, which would include a CFD No. 03-02 (Roripaugh Ranch) -JCFA County Facilities -Execution Copy 18 verification by the County's inspector as to the quantities used. Upon receipt of both written notices, the County Engineer will in a timely manner notify the City Engineer, the Developer and the Administrator that the County 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 County. 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 County will issue the written notice required by said Section 3.2 that it will accept the County Facility into its maintained system. Section 4.11. Maintenance of Facilities; Warranties. The Developer shall maintain the County Facilities in good and safe condition until the Acceptance Date of the County Facilities. Prior to the Acceptance Date, the Developer shall be responsible for maintaining the County Facilities in proper operating condition, and shall perform such maintenance on the County Facilities as the County Engineer reasonably determines to be necessary. As of the Acceptance Date, the performance bond provided by the Developer for the County 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 County 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 hi such an amount As of the Acceptance Date, the Developer shall assign to County 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 County Facilities. Section 4.12. Maintenance Deposits by the Developer for Energizing Street Lights and Maintenance of Retention Wall. (a) Street Lights. Plans that have been submitted to the County indicate that there are 20 street lights that are to be constructed within the right-ofway for the County Facilities. The County in its routine maintenance of street and drainage facilities does not have funds to energize street lights. Consequently, as a condition of acceptance of the initial segment of a County Facility in which a street light has been installed within the County's right-of-way, the Developer is to deposit with the County the sum of $240,638.25 to be placed in a trust account to be held hi the County Treasury. This amount has been determined by the County to energize the 20 street lights for a period of 30 years. If at any point after the deposit of said monies, the County Facilities in which the 20 street lights are located are annexed into the City, City Service Area, or other public agency agency that will assume responsibility for energizing the street lights, the County will provide the Developer with a full accounting of all monies expended and return the unused balance to the Developer, including any interest earned. All interest earned by the trust account will be retained hi the trust account and applied to energizing said street lights. CFD No. 03-02 (Roripaugh Ranch) -JCFA County Facilities -Execution Copy 19 (b) Retention Wall. The Plans for Segment 8 that have been submitted to the County indicate that there is a retention wall to be constructed in the County's right-of-way that will measure approximately 360 feet in length and varies in height from approximately 2 feet to 25 feet. The County in its routine maintenance of street and drainage facilities does not have funds to maintain such a wall. Consequently, as a condition of acceptance of Segment 8 and said retention wall, the Developer is to deposit with the County the sum of $314,298.85 to be placed in a trust account to be held in the County Treasury. This amount has been determined by the County to remove any graffiti and repair the wall for a period of 30 years. If at any point after the deposit of said monies, the Segment 8 is annexed into the City, a city service area providing such services, or other public agency that will assume responsibility for the removal of graffiti and the repair of said retention wall, the County will provide the Developer with a full accounting of all monies expended and return the unused balance to the Developer, including any interest earned. All interest earned by the trust account will be retained in the trust account and applied to maintaining the retention wall. Section 4.13. Insurance Requirements. Without limiting or diminishing the Developer's obligation to indemnify or hold the County, the City, the Community Facilities District and the Authority harmless pursuant to Section 5.5 hereof, the Developer shall procure and maintain or cause to be 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 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." 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 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 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." CFD No. 03-02 (Roripaugh Ranch) -JOFA County Facilities -Execution Copy 20 (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 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 carriers) 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 County, 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 County, 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 County 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. (iv) Further, said certificate(s) and endorsements to policies of insurance shall contain the covenant of the insurance carriers) that it shall provide no less than sixty (60) days written notice be given to the County, the Community Facilities District, the City and the Authority prior to any material modification or cancellation of such insurance, m the event of a material modification or cancellation of coverage, this Joint Community Facilities Agreement shall terminate forthwith, unless the County, 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. Individual(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. CFD No. 03-02 (Roripaugh Ranch) -JCFA County Facilities -Execution Copy 21 (v) The Developer shall not commence construction of the County Facilities until 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^) of insurance and policies shall so covenant and shall be construed as primary insurance, and the County'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 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 Lisureds." Copies of such certificates and endorsements shall be provided to the County and the City. Section 4.14. Ownership of Facilities. Notwithstanding the fact that some or all of the County 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 County, a County Facility shall be and remain the property of the Developer until Acceptable Title to parcels not owned by the County with respect to such County Facility is conveyed to the County 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 of this Section shall control. CFD No. 03-02 (Roripaugh Ranch) -JCFA County Facilities -Execution Copy 22 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 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 County Facilities. The Developer covenants that it will use its reasonable and diligent efforts to do all things mat may be lawfully required of it in order to cause the County Facilities to be completed hi accordance with this Joint Community Facilities Agreement. (e) Compliance with Laws. The Developer covenants that, while the County 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 County Facilities in violation in any material respect of any law, ordinance, rule, regulation or order of any governmental authority or any covenant, condition or restriction now or hereafter affecting the County Facilities. (f) 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 County Facility, and (ii) it will diligently follow all procedures set forth in this Joint Community Facilities Agreement. CFD No. 03-02 (Roripaugh Ranch) -JCFA County Facilities -Execution Copy 23 (g) Financial Records. Until the final Acceptance Date of all County Facilities, the Developer covenants to maintain proper books of record and account for the County 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 County, 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. (h) 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 County Facilities or transport any Hazardous Material to or from the Construction Site or the County Facilities in violation of any federal, state or local law, ordinance, regulation, rule, decision or policy statement regulating Hazardous Material. (i) 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 County 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 County Facilities or to the development of the Construction Site as contemplated by the Developer, except for government or other permits to be obtained. (j) 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 County Facilities and their conveyance to the County. Section 5.2. Representations. Warranties and Covenants of the Authority. The Authority makes the following representations, warranties and covenants for the benefit of the County, the City and the Developer: (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, CFD No. 03-02 (Roripaugh Ranch) -JCFA County Facilities -Execution Copy 24 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, 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 County. The County makes the following representations, warranties and covenants for the benefit of the Authority, the City and the Developer: (a) Authority. The County represents and warrants that the County 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 County. (b) Binding Obligation. The County represents and warrants that this Joint Community Facilities Agreement is a valid and binding obligation of the County and is enforceable against the 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 County 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, processing and approving Plans and inspecting the County Facilities in accordance with this Joint Community Facilities Agreement. (d) Payment Requests. The County represents and warrants mat County 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 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 CFD No. 03-02 (Roripaugh Ranch) -JCFA County Facilities -Execution Copy 25 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 County 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) 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 CONNECTIOIN THEREWITH FOR THE RORIPAUGH RANCH SPECIFIC PLAN, LOCATED NEAR THE FUTURE INTERSECTION OF BUTTERFffiLD STAGE ROAD AND NICOLAS ROAD. (PLANNING APPLICATION 94-0076)." 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. 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 CFD No. 03-02 (Roripaugh Ranch) -JCFA County Facilities -Execution Copy 26 Guidelines could be based to require the preparation of a subsequent EIR, Supplemental EIR or addendum to an EIR." Section 5.5. The Developer Indemnification. The Developer agrees to protect, indemnify, defend and hold the Authority, the Community Facilities District, the County, the City, and their respective directors, officers, Board of Supervisors, Board of Directors, City Council, Legislative Body, elected officials, 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 County Facilities, (c) for the design, construction, or failure of the County 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 County 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 Parties or (b) arising from the use or operation of a County Facility after the Acceptance Date of the County Facility, unless such claim, loss or expense results from the defective or improper design, construction or installation of such County Facility by the Developer of its agents. The provisions of this Section shall survive the termination of this Joint Community Facilities Agreement. CFD No. 03-02 (Roripaugh Ranch) -JCFA County Facilities -Execution Copy 27 ARTICLE VI MISCELLANEOUS Section 6.1. The Developer as Independent Contractor. In performing under this Joint Community Facilities Agreement, it is understood that the Developer is acting as an independent contractor, and not as an agent of the Authority, the Community Facilities District, the County or the City. Neither the Authority, 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 the Improvement Fund. Section 6.2. Other Agreements. Nothing contained herein shall be construed as affecting 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 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 County 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 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 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 successors-in-interest of the parties hereto. 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 County, the City and the Developer. Notwithstanding the foregoing, Exhibit B may be supplemented consistent with Section 3.4 and 3.5 above. CFD No. 03-02 (Roripaugh Ranch) -JCFA County Facilities -Execution Copy 28 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 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: County: City: Authority: Developer: Director of Transportation County of Riverside 4080 Ijemon 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 Temecula Public Financing Authority Treasurer 43200 Business Park Drive Temecula, California 92590 Telephone: (951) 694-6430 Fax: (951) 694-6479 Richard K. Ashby AshbyUSA,LLC 407 East Harrison Street Corona, California 92879 Telephone: (951) 898-1692 Fax: (951)898-1693 CFD No. 03-02 (Roripaugh Ranch) -JCFA County Facilities -Execution Copy 29 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 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 County, the City and the Developer agrees that a final and nonappealable 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. 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 mis 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. CFD No. 03-02 (Roripaugh Ranch) -JCFA County Facilities -Execution Copy 30 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 County, the City, and the Community Facilities District regarding design, engineering and construction of the County Facilities. The certificates are to contain an original and specimen signature of each designated person. The certificates are to be provided to the County, the City, and the Community Facilities District at the time the first series of the Bonds are issued. [Balance of Page Intentionally Left Blank] CFD No. 03-02 (Roripaugh Ranch) -JCFA County Facilities -Execution Copy 31 IN WITNESS WHEREOF, the parties hereto have executed this Joint Community Facilities Agreement as of the day and year first hereinabove written. RECOMMEND FOR APPROVAL: COUNTY OF RIVERSIDE j^. Johnsfirff Director of Transportation ATTEST: Nancy Romero, Clerk to the Board of Supervisors Deputy Clerk APPROVED AS TO FORM: William C. Katzenstein, County Counsel By: Deputy County Counsel ATTEST: City Clerk Bob Buster Vice Chairman, Board of Supervisors CityAttorney Mayor Jeff Comerchero ' Peter Thorson CFD No. 03-02 (Roripaugh Ranch) -JCFA County Facilities -Execution Copy 32 JAN 4 2005 TEMECULA PUBLIC FINANCING AUTHOWTY ATTEST: Secretary Susan IW. Jones, CMC irperson, Board of Directors Jeff Comerchero 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 County Facilities -Execution Copy 33 EXHIBITA Proposed Boundary Map of Temecula Public Financing Authority Community Facilities District No. 03-02 (Ronpaugh Ranch) CFD No. 03-02 (Roripaugh Ranch) -JCFA County Facilities -Execution Copy A-l ATTEST: Secretary TEMECULA PUBLIC FINANCING AUTHORITY By: Chairperson, Board of Directors Jeff Comerchero By. Susan W. Jones, CMC ASHBY USA, LLC By: Ashby Development Company, Inc., a California corporation, Managing Member By: _ ^f '*%.. -• •'* 7 Justin K. Ashby, By: USA Inve^mient '. Nevada Kmitesi liattijafy comi: its Me: ).*Milanowski Manager SHEET 1 OF 1 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. 2004, at the hour of _ Book , Pages_ 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. Fee No. LEGEND CFD Boundary County Recorder of Riverside County PREPARED BY DAVID TAUSSIO & ASSOCIATES, INC. EXHIBIT B COUNTY FACILITIES Temecula Public Financing Authority Community Facilities District No. 03-02 (Roripaugh Ranch) Acquisition Cost Facility No. 1: Butterfield Stage Road Sta. 145+58.43 to Sta. 193+06 Street Facilities: Approximately 4,748' linear feet of easterly half width street improvements, including paving, curb and gutter, sidewalks, median curb, grading, acquisition of slope, storm drain, and ingress/egress easements, but excluding street lights, and median and parkway landscaping. Underground Facilities: Line "A": From centerline of Butterfield Stage to inlet structure easterly of R.O.W., consists of 47.5'± of 36" RCP, 30'± of 18" RCP, catch basins, monolithic catch basins, local depressions, headwall, inlet structures, and concrete aprons. Underground Facilities: Line "B": From centerline of Butterfield Stage to easterly inlet structure, consists of 52.7'± of 24" RCP, joining existing 24" RCP, manhole, cutoff wall, headwall, inlet structure, and concrete aprons. Underground Facilities: Line Line "C": From centerline of Butterfield Stage to easterly inlet structure, consists of 35.14'± of 30" RCP, joining existing 30" RCP, inlet structure, and concrete aprons. Underground Facilities: Line "D2": From centerline of Butterfield Stage to easterly inlet structure, consists of 62.7'± of 24" RCP, catch basin, monolithic catch basin, local depression, cutoff wall, headwall, inlet structure, and concrete apron. Underground Facilities: Line "D": Consists of 79.57'± of 60" RCP from centerline to inlet structure easterly of R.O.W., with headwall, inlet structure, and concrete aprons. $ 3,098,523 $ 59,438 $ 22,043 $18,914 $ 20,518 $ 52,663 CFD No. 03-02 (Roripaugh Ranch) -JCFA County Facilities -Execution Copy B-l Acquisition Cost Underground Facilities: Line "E" (Sta. 10+87.65 to 11+50.21) consists of 62.56'± of 60" RCP from centerline of Butterfield Stage to inlet structure easterly of R.O.W., with headwall, inlet structure, and concrete aprons. Underground Facilities: Line "Fl": From centerline of Butterfield Stage to easterly inlet structure, consists of 71.45'± of 18" RCP, junction structure, catch basin, local depression, inlet structure, and concrete apron. Line "F2": From centerline of Butterfield Stage easterly inlet structure, consists of 91.52'± of 24" RCP, junction structure, catch basin, local depression, inlet structure, and concrete apron. Line "F3": From centerline of Butterfield Stage easterly inlet structure, consists of 39.65'± of 18" RCP, junction structure, catch basin, local depression, inlet structure, headwall, and concrete apron. $ 32,136 $55,270 Total: $3,327,369 Facility No. 2: Butterfield Stage Road Sta. 193+06.89 to Sta. 226+40.43 Street Facilities: Approximately 2,827 linear feet of easterly half width street improvements, including paving, curb and gutter, sidewalks, median curb, grading, retaining walls, acquisition of slope, storm drain, and ingress/egress easements, but excluding sidewalks, street lights, and median and parkway landscaping. Underground Facilities: Line "G" Consists of 162.08'± of 60" RCP from centerline of Butterfield Stage to inlet structure easterly of R.O.W., with headwall, inlet structure, and concrete aprons. Underground Facilities: Line "H": From centerline of Butterfield Stage to easterly inlet structure, consists of 135'± of 24" RCP, headwall, inlet structure, and concrete apron. Underground Facilities: Line "I": From centerline of Butterfield Stage to easterly inlet structure, consists of 117'± of 36" RCP, headwall, wingwall, inlet structure, and concrete apron. Butterfield Stage Road at Rancho California Road $ 2,564,510 $ 58,166 $ 30,194 $ 24,068 CFD No. 03-02 (Roripaugh Ranch) -JCFA County Facilities -Execution Copy B-2 Street Facilities: Intersection improvements, including paving, curb and gutter, grading, sidewalks, signalization, drainage devices, retaining wall, signing and striping, and erosion control but excluding median and parkway landscaping. $491,549 Murrieta Hot Springs Road & Pourroy Road Street Facilities: Intersection signalization. Acquisition Cost $ 350,000 Total: $3,518,487 GRAND TOTAL: $6,845,856 CFD No. 03-02 (Roripaugh Ranch) -JCFA County Facilities -Execution Copy B-3 \Butterfield Stage Road Sta. 193+06. EXHIBIT RIVERSIDE COUNTY DEPARTMENT OF TRANSpORfA TION FACILITIES RORIPAUGH RANCH TRACT29353 Facility No. 1: Butterfleld Stage Road Sta. 145+58.43 to 193+06 SO LINE "F3 LINE"F1" HALF WIDTH STREET IMPROVEMENT Street HALF WIDTH STREET IMPROVEMENT Butterfield Stage Road Sta. 145+58.43 Retaining Wall SDLINEW Vista &el Monte Road Butterfield Stage Road Sta. 226+40.43 EXHIBIT "B-2" RIVERSIDE COUNTY DEPARTMENT OF TRANSPORTA TION FACILITIES RORIPAUGH RANCH TRACT29353 Facility No. 2: Butterfield Stage Road s. 193+06.89 to 226+40.43\ \ButterfieldStage Road Sta. 193+06,89.-.-- EXHIBIT C SUMMARY OF BIDS RECEIVED Temecula CFD No. 03-02 (Roripaugh Ranch) Summary of Bids Advertised: Bids Op ITEM NO. 123456789 10 11 12 13 14 15 16 17 18 19 20 en: ITEM CODE CONTRACT ITEM UNITS PROJECT: PROJECT NO. DEVELOPER'S ESTIMATE QUANTITY 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 UNIT PRICE 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 ENG ESTIMATE 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 Contractor #1 City, State BID 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 (Low Bidder) AMOUNT0.00 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 CFD No. 03-02 (Roripaugh Ranch) -JCFA County Facilities -Execution Copy C-l EXHIBIT C SUMMARY OF BIDS RECEIVED Temecula CFD No. 03-02 (Roripaugh Ranch) Summary of Bids Advertised: Bids Open: ITEM NO.1 23456789 10 11 12 13 14 15 16 17 18 19 20 ITEM CODE CONTRACT ITEM UNITS PROJECT: PROJECT NO. DEVELOPER'S ESTIMATE QUANTITY 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 UNIT PRICE 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 ENG ESTIMATE 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 Contractor #1 (Low Bidder) City, State BID 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 o.oo 0.00 AMOUNT0.00 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 CFD No. 03-02 (Roripaugh Ranch) -JCFA County Facilities -Execution Copy C-2 EXHIBIT C SUMMARY OF BIDS RECEIVED Temecula CFD No. 03-02 (Roripaugh Ranch) Summary of Bids Advertised: Bids Open: ITEM NO.1 23456789 10 11 12 13 14 15 16 17 18 19 20 ITEM CODE CONTRACT ITEM UNITS PROJECT: PROJECT NO. DEVELOPER'S ESTIMATE QUANTITY 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 UNIT PRICE 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 ENG ESTIMATE 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 Contractor #1 (Low Bidder) City, State BID 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 AMOUNT0.00 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 CFD No. 03-02 (Roripaugh Ranch) -JCFA County Facilities -Executiion Copy C-3 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 , 2004, 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 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 form 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 (Title-Attach Power of Attorney) CFD No. 03-02 (Roripaugh Ranch) -JCFA County Facilities -Execution Copy D-l 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 , 2004 for those certain as defined and described in said agreement entitled: "Joint Community Facilities Agreement by and among 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 that 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 County 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 County 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 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 County 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 form herein. 2. The Developer has submitted or submits herewith to the County Engineer as-built drawings or similar Plans and specifications for the County Facility for which payment is requested, and such drawings or plans and specifications, as applicable, are true, correct and complete. 3. The County Facility has been constructed in accordance with the Plans therefor, and in accordance with all applicable County 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 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 County Facilities -Execution Copy E-1 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 County Facilities -Execution Copy E-2 ATTACHMENT A PAYMENT REQUEST -ACTUAL COSTS Developer Is to complete Columns 1 through 7 CFD /Tract Number: Facility Description: 1 Bid Item No. 2 34 Bid Item Description Unit of Measure Unit Price 5 6 7 8 9 Original Contract Quantity Quantity Invoiced Amount Invoiced Quantity Calculated By County Amount Calculated By County 10 11 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 County Facilities -Execution Copy E-3 APPROVAL BY THE COUNTY ENGINEER The County Engineer confirms that the County Facility described in Attachment A-l has been constructed in accordance with the Plans therefor. The Actual Cost of each County Facility as described in Attachment A-l has been reviewed, verified and approved by the County Engineer. The Purchase Price for said County Facility is established at $ . Payment of the Purchase Price for the County Facility is hereby approved. Date: COUNTY ENGINEER By: CFD No. 03-02 (Roripaugh Ranch) -JCFA County Facilities -Execution Copy E-4 ATTACHMENT A-l PAYMENT REQUEST -ACTUAL COSTS County to complete Columns 8 through 11 CFD/Tract Number: Facility Description: 1 Bid Item No. 2 3 4 Bid Kern Description UnKof Measure Unit Price 5 6 7 8 9 Original Contract Quantity Quantity Invoiced Amount Invoiced Quantity Calculated By County Amount Calculated By County 10 11 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 00000000000000 r -o00000 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 County Facilities -Execution Copy E-5