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2009/05/05 Fairfield Holland Road, LLC Traffic Signal ImprovementsContract No....1 —O.�-O i R Rl�iBiSlOf9 Co. TransportationCOUNTY OF RIVERSIDE CITY OF MENIFEE PROJECT AGREEMENT TRAFFIC SIGNAL IMPROVEMENTS FOR FEE CREDIT/REIMBURSEMENT (Holland Road/Antelope Road) IS PROJECT AGREEMENT (this "Agreement"), entered into this 44 day of rI% , 2009, by and between the County of Riverside (the "County"), the City of Menifee (the "City'b and Fairfield Holland Road LLC, a Delaware Limited Liability Company (the "Developer"). The County, City, and Developer are sometimes hereinafter referred to individually as "Parry" and collectively as "Parties". RECITALS WHEREAS, Developer presently owns a property, which has received development approval from the County of Riverside for Plot Plan 22338, collectively 230 multi -family dwelling units, as shown on Exhibit A which is attached hereto and incorporated herein (the "Property"); and WHEREAS, as a condition of development of the Property, the Developer is required to construct or cause to be constructed traffic signal improvements at the intersection of Holland Road and Antelope Road (the "Project"), as shown and described in Exhibit B which is attached hereto and incorporated herein, to partially mitigate identified impacts resulting from the residential development of the Property; and WHEREAS, the County/City, by the adoption of County of Riverside Ordinance No. 659, as amended and Section 17 of the Riverside County Code establishing development impact fees (respectively, the "Ordinance" and the "Developer Impact Fee") to be paid at the time a certificate of occupancy is issued or upon final inspection, whichever occurs first: and WHEREAS, Section 17 of the Ordinance provides general conditions under which a credit against all or a portion of the Developer Impact Fee may earned; and WHEREAS, a component of the Developer Impact Fee is a stated dollar amount to be utilized for the construction of traffic signal improvements within the incorporated area of the City; and WHEREAS, the Parties have negotiated that the Developer is eligible to receive a reimbursement for the actual cost of the project, but not to exceed $ 86,940, as shown and described in Exhibit C which is attached hereto and incorporated herein to Developer's construction of the Project; and WHEREAS, the Parties desire to enter into this Agreement to provide the conditions under which the Developer is to construct or cause to be constructed the Project, to establish the fee credit to be earned by the Developer, and the manner in which the fee credit is to be applied against the Development Impact Fee to be paid by the Developer upon the development of the Property; Fairfield Holland Road, LLC Improvement and Credit Agreement MAY 5 2oo9 3• ,g 7 WHEREAS, this signal project is deemed eligible for fee creditor reimbursement based on the criteria set out in Riverside County Ordinance No. 659, Ordinance No. 748, and the policies and practices of the County/City. AGREEMENT NOW, THEREFORE, for good and valuable consideration and the mutual promises contained herein, it is agreed as follows: Section 1. Purpose of the Agreement: Following execution of this Agreement, the Developer shall cause, consistent with Sections 3 through 12, below, the Project to be designed, engineered and constructed as if it had been constructed under the direction and supervision or under the authority of the County/City, and upon acceptance of the Project by the County/City, the Developer will have earned a fee credit in the dollar amount determined consistent with the provisions of this Agreement that is to be applied against the Development Impact Fee to be paid for the development of the Properly. Section 2. Definitions: Unless otherwise specifically defined in this Agreement, all terms will have the meaning ascribed to them by the Ordinance. Section 3. Preparation and Approval of Plans and Specifications: To the extent that it has not already done so, the Developer shall cause plans and specifications (collectively, the "Plans") to be prepared for the Project. The Developer shall obtain the written approval of the Plans from the County of Riverside. The Developer shall provide a copy of the Plans to the County/City Engineer, or his/her designee (the "County/City Engineer"). Section 4. Duty of Developer to Construct: The Developer shall construct or cause to be constructed the Project in accordance with the approved Plans approved by the County/City Engineer. The Developer shall perform all of its obligations hereunder and shall conduct all operations with respect to the construction of the Project 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 Agreement shall be construed 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 Agreement. Section 5. Bid and Construction Requirements: (a) In order to insure that the Project is constructed as if it had been constructed under the direction and supervision, or under the authority of, the County/City, the Developer shall comply with all of the requirements set forth in this Section. (b) Not Applicable Fairfield Holland Road, LLC Improvement and Credit Agreement (c) The Developer shall require and the specifications, and contract documents shall require all contractors, subcontractors, vendors, equipment operators and owner operators, in each such case to the extent such individuals or entities are engaged to perform work on the Project, to pay at least general prevailing wage rates to all workers employed in the execution of the contract, 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 California Government Code and the California Public Contracts Code relating to general prevailing wage rates as required by the specifications approved by the County/City Engineer. The County/City 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 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 Project, to provide proof of insurance coverage satisfying the requirements of Section 10 (g) hereof throughout the term of the construction of the Project. Rather than requiring its contractors to provide such insurance, the Developer may elect to provide the same for the benefit of its contractors. (e) Each principal contractor engaged to perform work on the Project 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 and the County and City as obligees and issued, by a California admitted surety and a 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. Rather than requiring its contractors to provide such bonds, the Developer may elect to provide the same for the benefit of its 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 Project, to comply, with such other requirements relating to the construction of the Project as the County/City may impose by written notification delivered to the Developer, to the extent legally required as a result of changes in applicable Federal, State, County or City laws, rules or procedures. (g) The Developer shall require, and the specifications, and contract documents shall require, all contractors, subcontractors, vendors, equipment operators and owner operators, in each such case to the extent such individuals or entities are engaged to perform work on the Project, to submit certified weekly payroll records to the Developer for inspection by the County/City Engineer, and to furnish certified payroll records to the County/City Engineer promptly upon request. (h) All change orders shall be reviewed and approved by the Engineer for the purpose of ensuring that they comply with Flood Control District or County and City standards, which review and approval shall not be unreasonably withheld. (i) At the time the Developer submits a "Notice of Intent" to commence construction as set forth in Section 8 below, the Developer shall deposit with the County/City the estimated cost of providing construction inspection for the Project, in an amount as determined and approved by the Fairfield Holland Road, LLC Improvement and Credit Agreement 3 County/City in accordance with Ordinance Nos. 671 and 749, including any amendments thereto, of the County/City, based upon the bonded value of the Project. The Developer shall provide proof to the County/City Engineer, at such intervals and in such form as the County/City Engineer may require that the foregoing requirements have been satisfied as to the Project. Section 6. ' NPDES Compliance. Not Applicable Section 7. Licenses and Permits: County/City will grant the Developer any license and/or permit required from it to allow for the construction of the Project. The form and content of said license and/or permit shall be in form mutually acceptable to the County/City and the Developer. Section 8. Notice of Intent to Commence Construction. Not less than twenty (20) Business Days prior to the date on which it intends to commence construction of the Project, the Developer is to provide written "Notice of Intent" to the County/City Engineer. Construction of the Project may not proceed until the County/City Engineer issues a "Notice to Proceed" to the Developer. The "Notice of Intent" is to include the following documents: (a) Copies of all Licenses and Regulatory Permits secured pursuant to Sections 6 and 7, above. (b) Copies of the bonds required by Section 5(e), above. (c) Construction Inspection Deposit required by Section 5(i), above. (d) Duly executed irrevocable offer(s) of dedication to the public for flood control purposes, including ingress and egress, for the rights of way deemed necessary by the County/City for the construction, inspection, operation and maintenance of the Project. (e) Preliminary reports of title dated not more than thirty (30) days prior to date of submission for all property described in the irrevocable offer(s) of dedication. (f) A complete list of all contractors and subcontractors to be performing work on the Project, 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 Project. (g) A construction schedule which shall show the order and dates in which the Developer and the Developer's contractor proposes to carry on the various parts of work, including estimated start and completion dates. As the construction progresses the Developer shall update said construction schedule upon request. (h) The final mylar plan and profile sheets for the Project and assign their ownership to the County/City, as appropriate, prior to the start of construction of the Project. Fairfield Holland Road, LLC Improvement and Credit Agreement 4 (i) Certificates of insurance and endorsements as required by Section 11, below. Section 9. Inspection; Completion of Construction: The County/City Engineer shall have responsibility for providing inspection of the work of construction of the Project to insure that the work of construction is accomplished in accordance with the Plans approved by the County/City Engineer. County/City personnel shall have access to the site of the work of construction at all reasonable times for the purpose of accomplishing such inspection. No later than ten business days after receiving notification from the County/City that the Project has been constructed in accordance with the Plans, the Developer shall forthwith file with the County Recorder a Notice of Completion pursuant to the provisions of Section 3093 of the California Civil Code. The Developer shall furnish to the County/City a duplicate copy of each such Notice of Completion showing thereon the date of filing with said County Recorder. Section 10. Maintenance of Facilities,_ Warranties: The Developer shall maintain the Project in good and safe condition until its acceptance by the County/City. Prior to the acceptance of the Project, the Developer shall be responsible for maintaining the Project in proper operating condition, and shall perform such maintenance as the County/City Engineer reasonably determines to be necessary. As of the date of acceptance, the performance bond provided by the Developer for the Project pursuant to Section 5(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 Project will be free from defects due to faulty workmanship or materials for a period of 12 months from the date of acceptance, or the Developer may elect to provide a new warranty bond or cash in such an amount. As of the date of acceptance of the Project, the Developer shall assign to the County/City 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 Project. Section 11. Insurance Requirements: Without limiting or diminishing the Developer's obligation to indemnify or hold the County and City harmless, the Developer shall procure and maintain or cause to be maintained, at its sole cost and expense the following insurance coverages during the term of this Agreement (i) Commercial General Liability: Commercial General Liability insurance overage, including but not limited to, premises liability, contractual liability, products and completed operations, explosion, collapses, use of cranes, and other heavy equipment and underground hazards, personal and advertising injury covering claims which may arise from or out of Developer's performance of its obligations hereunder. Policy shall name by endorsement the County, City and its special districts, respective directors, officers, Board of Supervisors, City Council, elected officials, employees, agents or representatives as Additional Insureds. Policy's limit of liability shall not be less than $5,000,000 per occurrence combined single limit. If such insurance contains a general aggregate limit, it shall apply separately to this Agreement or be no less than two (2) times the occurrence limit. (ii) Vehicle Liability: Developer shall maintain liability insurance for all owned, non -owned or hired vehicles in an amount not less than $2,000,000 per occurrence combined single limit. If such insurance contains a general aggregate limit, it shall apply separately to Fairfield Holland Road, LLC Improvement and Credit Agreement this Agreement or be no less than two (2) times the occurrence limit. Policy shall name by endorsement the County, City, its special districts, their respective directors, officers, Board of Supervisors, City Council, elected officials, employees, agents or representatives as Additional Insureds. (iii) Worker's Compensation Insurance: 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 and City, and if applicable, to provide a Borrowed Servant/Alternate Employer Endorsement. General Insurance Provisions - all lines: (a) 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:VIII (A:8) unless such requirements are waived, in writing, by the County/City Risk Manager. (b) The Developer's insurance carrier(s) must declare its insurance deductibles or self -insured retentions. If such deductibles or self -insured retentions exceed $500,000 per occurrence such deductibles and/or retentions shall have the prior written consent of the County/City Risk Manager before the commencement of operations under this Agreement. Upon notification of deductibles or self -insured retentions which are deemed unacceptable to the County/City, at the election of the County's/City'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 and City, or (ii) procure a bond which guarantees payment of losses and related investigations, claims administration, defense costs and expenses. (c) The Developer shall cause their insurance carrier(s) to furnish the County/City with (i) a properly executed original Certificate(s) of Insurance and certified original copies of Endorsements effecting coverage as required herein; or (ii) if requested to do so orally or in writing by the County/City Risk Manager, provide original certified copies of policies including all Endorsements and all attachments thereto, showing such insurance is in full force and effect. (d) Further, said Certificate(s) and Endorsements to policies of insurance shall contain the -covenant of the insurance carrier(s) that it shall provide no less than thirty (30) days written notice be given to the County/City prior to any material modification or cancellation of such insurance. In the event of a material modification or cancellation of coverage, this Agreement shall terminate forthwith, unless the County/City receives, prior to such effective date, 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 are 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. Fairfield Holland Road, LLC Improvement and Credit Agreement (e) The Developer shall not commence construction of the Improvements until the County/City has been furnished original Certificate(s) of Insurance and certified original copies of Endorsements or policies of insurance including all endorsements and any and all other attachments as required in this Section. (f) It is understood and agreed by the Parties hereto and the Developer's insurance company(s) that the Certificate(s) of Insurance and policies shall so covenant and shall be construed as primary insurance, and the County's and City's insurance and/or deductibles and/or self -insured retentions or self -insured programs shall not be construed as contributory. (g) The Developer and contractors shall pass down the insurance obligations contained herein to all tiers of subcontractors working under this Agreement and will require all such subcontractors to name on their insurance policies by endorsement the County and City, its special districts, their respective directors, officers, Board of Supervisors, City Council, elected officials employees, agents or representatives as Additional Insureds. Copies of such certificates and endorsements shall be provided to the County/City. The minimum limits of liability required of all tiers of subcontractors are $1,000,000 Combined Single Limit for Commercial General Liability and $1,000,000 Combined Single Limit for Vehicle Liability Insurance. Section 12. Ownership of Facilities: Notwithstanding the fact that a portion or all of the Project may be constructed in dedicated street rights -of -way or on property that has been or will be dedicated to the County/City, the Project shall be and remain the property of the Developer until acceptable title thereto is conveyed to the County/City as provided herein. Such ownership by the Developer shall likewise not be affected by any agreement that the Developer may have entered into or may enter into with the County/City pursuant to the provisions of the Subdivision Map Act, Section 66410 et seq. of the Code and the provisions of this Section shall control. Section 13. Fee Credit and Reimbursement for Construction Costs. The Developer has previously paid $86,940 in Traffic Signal Mitigation Fees for 230 multi -family dwelling units. The Developer acknowledges that the Property is subject to a Developer Impact Fee of $378 per dwelling unit resulting in a total traffic signal fee within the Plot Plan 22338 of $86,940. The Developer accepts that this Agreement does not serve to estop the County/City from making adjustments to the Developer Impact Fee, by amending the Ordinance, consistent with State law. Finally, the Developer acknowledges that the County/City will annually consider adjustments to the Developer Impact Fee, including the traffic signal fee component, which address, at minimum, increases in the consumer price index. Additionally, cash reimbursement is subject to availability and programming of funds received by the County/City. (a) Upon recordation of a Notice of Completion for the Project and acceptance of the Project by the County/City Engineer, the Developer shall submit a billing to the County/City Engineer requesting determination of the actual cost of the Project and the traffic signal fee credit. The dollar amount of the earned fee credit cannot exceed the dollar amount stated in Exhibit C. The Developer is to supply all documentation requested by the County/City Engineer in determining the actual construction cost of the Project. The County/City Engineer Fairfield Holland Road, LLC Improvement and Credit Agreement 7 is to use his best efforts to determine the amount of the earned fee credit within thirty (30) calendar days of receipt of the bill submitted by the Developer. (b) The County/City Engineer will provide the Developer written notice, in the form of Exhibit E attached hereto (the "Credit Notice"), of the dollar amount of the earned credit. If the dollar amount of the earned fee credit exceeds the dollar amount of the traffic signal component of the Developer Impact Fee that would otherwise be due from the Developer (the "Fee Credit Excess"), the County/City Engineer will identify in the Notice that the Fee Credit Excess will generate either: (i) a cash reimbursement to the Developer or (ii) an earned fee credit to offset the traffic signal fee component of the Developer Impact Fee required on another approved tract or parcel map to be developed by the Developer. Once completed, the Credit Notice is to be executed and dated by the County/City Engineer and the Developer. A copy of the Credit Notice will be provided to the County/City Executive Office who has responsibility for the administration of the Ordinance. (c) If the dollar amount of the earned fee credit is less than the traffic signal fee component of the Developer Impact Fee that would be due from the Developer, the Credit Notice will so note and the amount of credit to be applied with each Development Impact Fee payment on either a per unit or per acre basis will be identified. (d) If the Developer is issued one or more certificates of occupancy prior to date the County/City Engineer accepts the Project and prepares the Notice of Credit, then the Developer will have to pay the full Developer Impact Fee for each certificate issued, and upon acceptance of the Project by the County/City Engineer, the County/City Engineer will note on the Notice of Credit the full traffic signal fee component paid to date of acceptance and make the appropriate adjustment for the application of the earned fee credit consistent with subsection (b) above. Section 14. Representations, Warranties and Covenants of the Developer: The Developer makes the following representations, warranties and covenants for the benefit of the County/City, as of the date hereof and as of the date of the Payment Request is delivered to the County/City hereunder: (a) Organization. The Developer represents and warrants that the Developer is a limited partnership duly organized and validly existing under the laws of the State of California, 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 the Developer has the power and authority to enter into this Agreement, and has taken all action necessary to cause this Agreement to be executed and delivered, and this Agreement has been duly and validly executed and delivered on behalf of the Developer. (c) Binding Obligation. The Developer represents and warrants that this Agreement is a valid and binding obligation of the Developer and is enforceable against the Fairfield Holland Road, LLC Improvement and Credit Agreement 1.1 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 Project. The Developer covenants that it will use its reasonable and diligent efforts to do all things that may be lawfully required of it in order to cause the Project to be completed in accordance with this Agreement. (e) Compliance with Laws. The Developer covenants that, while the Project is owned by the Developer or required pursuant to this 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 Project 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 Property or the Project. (f) Financial Records. Until the final acceptance of the Project, the Developer covenants to maintain proper books of record and account for the Project 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 County/City, at any reasonable time during regular business hours on two business days' prior written notice, subject to mutually acceptable arrangements regarding the confidentiality of proprietary data. (g) Permits. The Developer covenants that it will obtain all governmental or other permits required to proceed with the construction of the Project and that it will pay all fees relating thereto. The Parties mutually represent and warrant to each other that to their actual knowledge, as of the date hereof, there is no material legal impediment to the Developer's proceeding with and completing the construction of the Project. Section 15. Representations, Warranties and Covenants of County and City: County and City makes the following representations, warranties and covenants for the benefit of the Developer: (a) Authority. County/City represents and warrants that County and City has the power and authority to enter into this Agreement, and has taken all action necessary to cause this Agreement to be executed and delivered, and this Agreement has been duly and validly executed and delivered on behalf of County and City. (b) Binding Obligation. County and City represents and warrants that this Agreement is a valid and blinding obligation of County and City and is enforceable against County and 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 the Improvements. The County and City covenants that it will use its reasonable and diligent efforts to take expeditiously all actions that may be lawfully Fairfield Holland Road, LLC Improvement and Credit Agreement 9 required for the Project including issuing permits, processing and approving plans and specifications and inspecting the Project in accordance with this Agreement. Section 16. Indemnification: The Developer agrees to protect, indemnify, defend and hold the County and City, and their respective directors, officers, Legislative Body, Board of Supervisors, City Council, elected officials, employees, representatives and agents (the "Indemnified Parties"), and each of them, harmless from and against any and all claims, including, but not limited to, third -party claims, and against any and all losses, expenses, suits, actions, decrees, judgments, awards, 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 acquisition, construction, or installation of the Project, (b) the untruth or inaccuracy of any representation or warranty made by the Developer in this Agreement or in any certifications delivered by the Developer hereunder, or (c) any act or omission of the Developer or any of its subcontractors, or their respective officers, employees or agents, in connection with the Project. 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 any attorney's fees or court costs, to and recover the same from the Developer. The provisions of this Section shall survive the termination discharge or other termination of this Agreement. Section 17. Developer as a Private Developer: In performing under this Agreement, it is mutually understood that the Developer is acting as a private developer, and not as an agent of the County or City. The County and City shall have no responsibility for payment to any contractor, subcontractor or supplier of the Developer. Section 18. Other Agreements: Nothing contained herein shall be construed as affecting the Parties'respective duty to perform its 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's and City's rights and obligations, under this 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 Project. Section 19. Entire Agreement. This Agreement contains the entire agreement between the parties with respect to the matters herein provided for. Section20. Binding on Successors and Assigns: Neither this 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 County and City, which consent shall not be unreasonably withheld or delayed. Neither this Agreement nor the duties and obligations of the County and City 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. Fairfield Holland Road, LLC Improvement and Credit Agreement 10 Section2l. Amendments: This Agreement can only be amended by an instrument in writing executed and delivered by all Parties. Section 22. Waivers: No waiver of, or consent with respect to, any provision of this Agreement by a Party hereto shall in any event be effective unless the same shall be in writing and signed by such Parry, 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 23. No Third Party Beneficiaries: No person or entity, other than the County and City, shall be deemed to be a third parry beneficiary hereof, and nothing in this Agreement (either express or implied) is intended to confer upon any person or entity, other than the Parties (and their respective successors and assigns), any rights, remedies, obligations or liabilities under or by reason of this Agreement. Section 24. Notices: Any written notice, statement, demand, consent, approval, authorization, offer, designation, request or other communication to be given hereunder shall be given to the Parry entitled thereto at its address set forth below, or at such other address as such Party may provide to the other Parties in writing from time to time, namely: DEVELOPER Ed McCoy Vice President Fairfield Holland Road, LLC 5510 Morehouse Drive, Ste 200 San Diego, CA 92121 Phone: 858 457-2123 Fax: 858 457-1121 CITY J. Bradley Kutzner City Engineer City of Menifee 29683 New Hub Drive, Suite C Menifee, CA 92586 Phone: 951-672-6777 Fax: 951-679-3843 COUNTY Juan C. Perez Director of Transportation County of Riverside 4080 Lemon St., 81h Floor Riverside, CA 92501 Phone: 951-955-6740 Fax: 951-955-3198 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 telecopy, upon the sender's receipt of an appropriate answerback or other written acknowledgment, (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 25. Jurisdiction and Venue: Each of the Parties (a) agrees that any suit action or other legal proceeding arising out of or relating to this 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 Fairfield Holland Road, LLC Improvement and Credit Agreement 11 brought in an inconvenient forum. Each of the Parties agrees that a final and non -appealable judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Section 26. Attorneys' Fees: If any action is instituted to interpret or enforce any of the provisions of this Agreement, the Party prevailing in such action shall be entitled to recover from the other Party or Parties thereto reasonable attorney's fees and costs of such suit (including both prejudgment and post judgment fees and costs) as determined by the court as part of the judgment. Section 27. Governing Law: This Agreement and any dispute arising hereunder shall be governed by and interpreted in accordance with the laws of the State of California. Section 28. 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 29. Interpretation. The Parties to this Agreement and their counsel have reviewed and revised this 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 Agreement. Section 30. Counterparts: This Agreement may be executed in counterparts, each of which shall be deemed an original and which collectively shall constitute one instrument. [SIGNATURES OF PARTIES ON NEXT PAGE] Fairfield Holland Road, LLC Improvement and Credit Agreement 12 IN WITNESS HEREOF, the parties hereto have executed the Project Agreement to be effective on the day and year first above written. CITY OF MENIFEE PASSEp on this 1 �y of jg' d-�D09, By: Wallace W. Edgerton, Mayor ATTEST: ny: &MIL Kathy Bennett, City Clerk APPROVED AS TC FORM: By: rr A, n � Eli th Martyn, Interim City Attorney Fairfield Holland Road, LLC Improvement and Credit Agreement DEVELOPER Fairfield Holland Road LLC, a -Delaware limited liability company By: FF CRF Fund LLC, a Delaware limited liability company, its Manager By: FF Properties, Inc., a Delaware corporation, its Manager. LE go Printed Name Title 13 COUNTY OF RIVERSIDE RECOMMENDED FOR APPROVAL: Date, L--1-9 JuankPerez Director of Transportation APPROVED AS T FORM: ©ale A. G rdne: '11 Date:�6�� County Counsel APPROVAL BY THE BOARD OF SUPERVISORS: Abi�D Date: MAY 52009 (Lai*4,11kyloard of Supervisors JEFF STONE ATTEST: 4-t� Date: MAY 5 2009 Clerk of the ❑ SEAL) KECIAHARPER-IHEM Fairfield Holland Road, LLC Improvement and Credit Agreement MAY 3 2009 j • Z 7 14 Fairfield Holland Road, LLC Improvement and Credit Agreement EXHIBIT A DESCRIPTION OF PROPERTY [ATTACHED BEHIND THIS PAGE] EXHIBIT "A" E l ON ff Me r f.1 AAA a sl..� Alt = _ =JM LIT 12 t Fib r !11l11li�il� ��`�I��_ems,_ �j�, 1. �` �' � !�,• � :k wo 000 i ]j y.• a .1.. YY-�I • 1 'fail � � �x�l• it c e��E it -��fi` �. �t� �. � ���pp,,,,r�� 'AA��-��'�r • $='_a�� � r-. a ��. ! . �#* ram°! -IN . ,ate SIZ kVMHDIH 2ivis RECORDING P•.EOUESTED BY RIVERSIDE COUNTY ldlinen recorded, return to: Riverside County Planning Department 91h Floor County Administrative Center Mail Stop * 1070 No Fee, 6103 GoVemment Code THIS AREA FOR REi30R[DER--S USE ONLY sii�aFzOes Conformed Copy was not been aarpar,ed with original LarrX W Uard assessarunty a Riverside County Clerk & Recorder CERTIFICATE OF PARCEL MERGER NO. 14 6 RECORD OWNERS EXISTING PARCELS (Assessor Parcel Numbers) FAIRFIELD HOLLAND ROAD L.P. 364-070-042 FAIRFIELD HOLLAND ROAD L.P. 364-070-007 FAIRFIELD HOLLAND ROAD L.P. 364-070-008 FAIRFIELD HOLLAND ROAD L.R 364-07Q-00? LEGAL DESCRIPTION OF MERGED PARCELS See attached - Exhibit. SIGNATURES) OF RECORDED OWN ust Notarized) d McCoy; Vice. President Na -Signature: Print framer! Me: Ed McCoy; Vice President sigr,atUre: rint NarrelTitlz: Ed McCoy; Vice President Signature: girt Na;re/Title_: Ed McCoy; Vice President Signature: RIVERSIDE COUNTY PLANNING DEPARTWENTAPPROVAL T his Cerltifcate of Parcel Merger is approved_ Sionature:pentad Name: i5 v A;_i Hip: �� Ate^ Date: i 1 RIVERSIDE COUNTY SURVEYOR'S APPROVAL This docurr, I reviewedappy Riverside Count' Surveyor. !]ate: ! ! (' NOTARY � STATE OF oj I -Y- i COUNTY OF On �,� �, before rne, (j , personally appeared �°�' personally known to me 0 mvni$4e-FPr.. ---[laarrv[ orsiflne!(s;J c--n catssfacto�d to be the person(o whose name isl& a subscribed to the within instrument and acknowledged W. me that helsbebbzy executed the same in hiss ., , 'sr authorized capaoity() ), and that by .) on the instrument the person(, or the entity upon behalf of which the perso.) acted, hislh rair signature(? executed the instrument. 2F 111,1N 11 DAYIr PIEWEL VNITNESS my hand and official seal Corrimisslon,# 155DB71 _ ` hotcry Pubik - Callfornio • r: Son M-ego County r r - lrgy Comm, Expires Feb 7, 2007 NOTARY \--r-' V Y EXHIBIT "'A"'.- LEGAL DESCRIPTION CERTIFICATE OF PARCEL MERGER NO. � �- / -77- PARCELS 1, 2, 3 AND 4 OF PARCEL MAP NO. 12598. IN THE COUNTY OF RIVERSIDE, STATE OF CALIFORNIA AS PER MAP FILED IN BOOK 69, PAGE 95 OF PARCEL MAPS, IN THE OFFICE: OF THE COUNT Y RECORDER OF SAID COUNTY_ SUBJECT TO ALL LEGAL STREETS, HIGHWAYS. AND EASEMENTS OF RECORD. GON T AINING 537,227 SQUARE FEET MORE OR LESS. ALL AS SHOWN ON A SKETCH ATTACHE=D HERETO AS EXHIBIT "B" FOE, REFERENCE ONLY MARK P. } PF-iLER L.S. 5959 MAR P.7PFEILER L,X/5959 DATE' O7 p�9��-p E � • EXPIRES 12-31--08, Record Owner(s);, FAIRFIELip HOLLAND RESIDENTIAL LLC Address. 5510 MDREHOUSE DR. SUITE 200, SAN DIEGO, CA 92121 Exhibit Prepared by: PFEILER &ASSOCIATE=S ENGINEERS. IN( , Address: 14181 FERN AVE„CHINO. CA 91710 Phone Number: [809 993-5800 Scale: AS SHOWN Assessor's Parcel Number(s):, 364-070-042, 007. 008, & 009 EXHIBIT "Ba -MAP CERTIFICATE OF PARCEL MERGER NO.. _V �6 r'� -I PARCEL MAP NO. 2-1638 PARCH 1 � P.NI B. Jrrsal r-2B � o ALBION LANE 3 3 D1 33 Ub t � �-y PYs� L .L 1 Flo. DE3 P m. BD/III oLO y CD Q _t u U ' u U a, w y, 0 Q o 0 o CD a= u C, N ST33`05" W 943.51' HOLLAND I ROAD TRACT MAP ND, 22000 M-8, J-98/20--34 0' 100' 200' 400' MERGED PARCEL AREA = 537,227 SO. FT. SCALE: V= 2001 S�� LA�lD s G LINE BEARING DISTANCE f� p] �, bra L€ S 44724'18" E 21.27' MARK MARK PFEILER kE.S. 5959 D. E v I2 S 4-T59'45' W 33.B9' EXPIRES 12-31-08. PFEILER L3 N 46"45'35" W .54.04' LS. 5959 L4 N 45'35'55" E 1 21.i8' Record Owners): FAIRFIELD .IOLLAND RESIDENTIAL, LLC Address: 5510 MOREHOUSE DR. SUITE 200, SAN DIEGO, CA 92121 Exh bit Prepared by: PFEILER & ASSOCIATES ENGINEERS INC. Address: 14i81 FERN AVE..CHJND, CA 91710 Phone Dumber: i909j 995-5B00 Scale: 1"=200' Assessor's Parca.I Nurnb�r(s): 364-070-042, 007, 008, & 009 PRO,. SITE VICIN7Y MAP NTS - EXHIBIT "C" .___ SITE PLAN CERTIFICATE OF PARCEL MERGER NO. [ IF6 I 1 r. .1C ucKC•i•+z' a - •. C 7.-.V. �F.il �Y se.:L.�r•1 w o" PLOT PLAN ------------ I! pop Ll - � . �Y � i. � s •-J_'7 r'S.z �`'�^':di-. _ rl' f�� � ' � I s�9 �+�+rx'a�-....-.-. if I •. `r+>:rs�.�• 1� ���sT-�s"vt.wrev�--. _ .y •.. , � � ����a'a-..•_. • � M.{'r'- yf �..s [ r�'o f'�i1� iY+.�r� .F��.f �x�..� ��"` ' ' � //- T �� _ .. _-��� r -_. r-- Y'•r-ram ... Record Owners]; FAIRFIELD HOLLAND RESIDENTIAL, LLC Address- 5510. MOREHOUSE DR. SUITE 200 Exhibit Prepared by: ALLIANCE LAND PLANNING & ENG. Address: 2248 FARADAY AVE. Phone Number. -_-- - (760) 431-9896 Scr{s: NOT TO SCALE r,ssessor's Parcel Number€si: 364-070-042, 007, 008, & 009 EXHIBIT B DESCRIPTION OF INTERSECTION IMPROVEMENTS a Traffic Signal at the intersection of Holland Road and Antelope Road City of Menifee Traffic Signal, Lighting, Signing and Striping Plans — Plot Plan 22338 0 IP 070142 Fairfield Holland Road, LLC Improvement and Credit Agreement EXHIBIT "B" SUP PROJECT -- NO SCALE VICINITY MAP N . T. S. 'I-OWNSHIP: 6- RANGE: 3W SECTION: 2,-1 1 2004 THOMAS BROS. MAP PACE 868 1. , Emml W 2.114% FEE EXHIBIT C TRAFFIC SIGNAL FEE OBLIGATION PLOT PLAN 22338 Number of Multi -Family Residential Units Developer Signal Fee Obligation Amount Fee Breakdown Paid Lots: Multi -Family ($378/du) 230 Unpaid Lots: Multi -Family ($378/du) 0 Traffic SignalCost Estimate (Low Bid) Estimate Breakdown Signalization/Signing/Striping Design/Engineering Fees and Bonds Traffic Signal Cost Estimate Total 230 $ 86,940 $ 86,940 $ 145,781 $ 145,781 $ 145,781 City will reimburse actual eligible cost up to a maximum of $86,940 once the project is complete and actual costs are verified. Fairfield Holland Road, LLC Improvement and Credit Agreement EXHIBIT "C" EXHIBIT D PAYMENT BOND & PERFORMANCE BOND (Public Work - Civil Code Section 3247 et seq.) Fairfield Holland Road, LLC Improvement and Credit Agreement [ATTACHED BEHIND THIS PAGE] EXHIBIT "D" FAITHFUL PERFORMANCE BOND COUNTY OF RIVERSIDE, STATE OF CALIFORNIA (Government Code Section 66499.1) FOR: Streets and Drainage $ 1333.000 Tract/Parcel Map PP22338 Water System $ G4.700 Bond No. 2278124 Sevver System $ 3.900 Premium $16,214.00 Surety Insurance Company of the West Address 10509 Vista Sorrento Parkway #310 Cily/State San Diego, California Zin 92121 Phone 858-350-2924 Principal Fairfield Holland Road LLC Address 5510 Morehouse Dr.. Ste 200 City/State -San Diego. CA Zip 9212:1 Phone ._ (858) 457-2123, WHEREAS. the County of Riverside, State of California, and Fairfield Holland Road LLC (hereinafter designated as "principal") have entered into, or are about to enter into, the attached agreement(s) whereby principal agrees to install and complete the above designated public improvements relating to (Tract/Parcel) PP22338 , which agreement(s) is/are hereby referred to and made a part hereof; and, WHEREAS, said principal is required under the terms of said agreements) to furnish bond(s) for the faithful performance of said agrcement(s); NOW.. THEREFORE, we the principal and Insurance Company of the West as surety, are held and firmly bound unto the County of Riverside in the penal slim of one million ei�iit hundred one thousand and six hundred Dollars ( 1.801,�Qa ) lawful money of the United States, for the payment of which suin will and truly be made, we bind ourselves, our heirs, successors, executors and administrators, jointly and severally, finely by these presents. The condition of this obligation is such that if the above bonded principal, his or its heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by, and wen and truly keep and perform the covenants, conditions and provisions in the said agreement and any alteration thereof made as therein provided, on his or their part, to be kept and performed at the time and in the manner therein specified, and in all respects according to their true intent and meaning, and shall indemnify and save harmless the County of Riverside, its officers, agents and employees, as therein stipulated, then this obligation shall become null and void; otherwise, it shall reina in in full for6e'and effect. As a part of the obligation secured hereby and in addition to the face amount specified therefore, there shall be included costs and reasonable expenses and fees, including reasonable attorney's fees, incurred by the County in successfully erfforcing such obligation, all to be taxed as costs and included in any judgment rendered. FAITHFUL PERFORMANCE BOND The surety hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of this agreement or to the work to be performed thereunder or the specifications accompanying the same Shall in anywise affect its obligation on this bond, and it does hereby waive notice of any such change;, extension of time, alteration or addition. Surety further stipulates and agrees that the provisions of Section 2845 of the Civil Code and commencement of construction Are not conditions precedent to surety's obligations hereunder and are hereby waived by surety. When the work covered by the agreement is complete, the County of Riverside vrill accept the work and thereupon, the amount of the obligation of this Bond is reduced by 90% with the remaining 10% held as security for the one-year maintenance period provided for in the a reements(s). IN WITNESS WHEREOF, this instrument has been duly executed by the principal and surety above named, on September 90th , 2006 NAME OF PRINCIPAL: Fairfield Holland Road LLC AUTHORIZED SIC"rNA7'UIt.F;(S):.I3y.� `� C[ 1 Title •, Title Title (IF CORPORATION, AFFIX SEAL) NAME OF SURETY: Insurance Company of th est AUTHORIZED SIGNATURE: Thomas A James Its Attorn - -act Title (IF CORPORATION,, AFFIX: SEAL) AT1"AC'fl NOTARIAL, ACKNOWI.,EDGMENT OF SIGNATURES OF PRINCIPAL AND ATTORNEY -IN -FACT. Revised 11/15/07 No. 0001404 TCw GROUP Power of Attorney Insurance Company of the West Explorer insurance Company Independence Casualty and Sugary Company KNOW A1,L MEN 13Y 'rnESE PRr—si 'i-s: That lnsum%ce Conmpany of the W>sl. a Corporation duiy argani2txi under the laws of the Stan of California, FNpinrtx insurance Company, a Corporation duly organized under the laws of the State ofCaliroinia. and lnd"tdone. Casualty and Surety Company, a Corporation duly organim-d, under the laws of the State of Texas, (Collw6vvly referred to as the "Cc mpanic5"), do hereiry appoint THOMAB A JAMES, MICHAEL H. PRADELS, DENNIS BORSENBERGER,LiARY T. PETERSON, KEVIN T. CASEY their true and lawful Attomey(s)-in-Farr:,Aith authority to date, execute, sign, seal, and deliver on beAiatfof the Companies, fidelity and surety bonds, undertakings, aril other similar contracts of suretyship, and any rel td, doeummu. In witness whereof, the Companies have caused these presents to be executed by its duly authorized office this 2nd day ofJanuary, 2008. M. per' TN5UR:11+r:£caMPANYO><THEWEST EXPLORER INSURANCE CO:tfPANA' INDE PF KDLNCE CASUALTY AND SURETY COMPANY Y Jeffrey D. Sweeney,.' mistant Secretary 1. Douglas Browne, Senior Vice President State of California ss. County of San Diego On 3anuary 2.2008. bcfora me, Wry Cobb, Notary Publit:, personally sppcau ,d 3- Douglas Browne mid Jeffrey D. Sv acncy, who proved (a me on the basis of satisfactory evidence to be the person(s) whuse nalrte(s) islare subscribed to the within instrument, and aclataMedCod to nit that ili ry executed the same in their authorised capacities, and that by Bid sigtatures On tho in-vnimeot, rite cmity upon behalf of which the persons acted, executed the instrurnent. i certify under PENALTY OF PRJURY under the laws of the state of Califomia that the foregoing piragaph is true and correct. Witness my hand and oi'icial seat. MARY cow NDTARY PUBLIC-MLIFOFiVA in ! SAN DIEG❑ COUNTY 0 SwEI'TEIASEPi V 4 9� ! Mary Cobb, Notary Public RESOLUTIONS This Power of Attorney is grttmedand is signed, sealed and notaiized with facsimile signanures and seals under authority ofthe following resolutions adorfM by the respective Brands of DirnWtors of each of the Companies: `W-ZOINED: That the Fresident, an Exezurive or Senior Vice president ofthe Company, together with the Seerctary or any Assistant Socretary, am, hereby authorized to cxncurr Potters of Attorney appointing the perion(sy nun+ed as Aiiomsy%in•Fact to date, execute, sign, seal, un d deliver on behutf of the Comnpany: fidelity and surety bonds. undertakings, raid athcrsimilar contracts of sureyship, and any Hatcd documents. RESOLVED FtJR'IIIML, Thnt fire signmtues or ttis officers making ZhL appointment, and the signatuto of arty officer certifying tlic validity mid current statute or the appo-Ameot, may be facsimblit repmemations Of those signatures; and the signu two and seal of any notary, and the sent of the Canipany, may be ficsinoe representations of those signatures and seals, acid such facsimile representations shad have the same rorcc nerd clliret as if manually affixed. The faesimilc represe:amtiorts referred to herein may be affixed by stamping, printing, typing, or photocopying." CERTIFICATE t. the undt:rsig ed, Assistant Secretor}• of lnstutmce Company of the Wesr, Dyplmcr Insurance Company, and independence Casualty and Surety Company, do hereby certify that the foregoing Po%iw of Attorney is in roll force and all'ett. and has not NX111 revoked, and that the above resolutions were duly adopted by the respective Boards of Ditectors of the Companies, and are miw in dull for f IN WffNT;.SS WHEREOF.1 have set my hand this day of Jeffrey D. Sweeney, Assistatit Secretary To verify she authenticity of tins Power of Attomq you may call 1-800.877-11 l l and ask for the Sumry Di-0sion. Plut_sc rerea to the Power of Attomey Number, the above namnedindividtial(s) and details of thebond to which the power k artaclied. For information or filing claims, pleasecurusct Surety Claims, ICW Group, 11.155 N Camino Real, San Diego, CA .92130-2045 or call (858) 350-?100. CALIFORNIA ALL—PURPOSE ACKNOWLEDGMENT State of California County of Sari Diego On September 10, 2008 before me, Kimberly A. McCoy, Notary Public, personally appeared Thomas A. James, who proved to me on the basis of satisfactory evidence to be the person(s) whose naine(o is/am subscribed to the within instrument and acknowledged to me that he,sh=z-Aheu executed the same in his/1}t ieir authorized capacity(ies), and that by his/I it signature(s) on the instrument the perso.n(s), or the entity upon behalf of which the person(-&) acted, executed the instrument. KIMSERIY A' MCCOY "i Commission # 1749933 Notary Public - Cai#arnlO I certify under PENALTY OF PERJURY under the laws of the State of 4 Scn Diego County California that the foregoing paragraph is true and correct. KW Comm, i;xpiivs Jun 4, 2011 WITNESS my hand and official seal. gnaturc of Notary — OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER ❑ INDIVIDUAL ❑ CORPORATE OFFICER DESCRIPTION OF ATTACHED DOCUMENT Bond No. 2278124 for Fairfield Holland Road LLC [] PARFNER(S) ❑ LIMITED 3 pages ® ATTORNEY -IN -FACT ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR OTHER: Issued on September 10, 2008 SIGNER IS REPRESENTING: Insurance Company of the West NAME OF PERSON(S) OR ENTITY(IES) 'Thomas A. James RE: Signature Page for Faithful Performance Bond; Fairfield Holland Road .I.,.LC; PP 22338 Fairfield Holland Road LLC, a Delaware limited liability company By: FF CRF Fund LLC, - a Delaware limited Iiability company, its Manager Bv: FF Properties, Inc., a Delaware corporation, its Mana r , ., By: Nance: .lohn . Feehan Title: Vice President R N TI Notary Acknowledgement STATE OF CALIFORNIA COUNTY OF 2� On eforniq 1 Notary Public, personal appeared who proved to me on the basis of satisfactory evidence to be the perso s whose named fsl re ubscribed to t e within instrument and acknowledged to me that he4ie 0executed the same in hisA►erlt e' ` authorized capacit ie and that by hiAwr nee ignatureff bn the instrument the persond or the entity upon behalf of which the persorkol executed the instrument, I certify- tinder Pi~NALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. S IDS; MA30056V801565 01 hand and official seal. 5HAhlt YN DATE HENKEL CamrnEssio # r55p871 • "� Notary "'f' Q��� 1b 7.21 RE: Signature Page for Faithful Performance Bond; Fairfield Holland Road LLC; PP 22338 Fairfield Rolland Road LLC, a Delaware limited liability company By: FF CRF Fund LLC, a Delaware limited liability company, its Manager By: FF Properties, Inc., a are corporation, its Manager By:-�--� Name: lames A. Hribar Title: CFO and Secretary Notary Acknowledoment: STATE OF CALIFORNIA COUNTY OF SAN DIE GO On Sewelnber 11, 2008 be -ore the Shaniiyn Daye Henkel, Notary Public personally appeared Janes A. Hribar who proved to me on the basis of satisfactory evidence to be the person.A whose name isimewsubscribed to the within instrument and acknowledged to me that he/sku-44-wy executed the same in his/heTjt idT authorized capacity(j*, and that by hisAiffA a'ir signatures) on the instrument the person(), or the entity upon behalf of which the personW- acted, executed the instnment. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing, paragraph is true and correct WITNESS my hand yandoifficial seal. SHANNYN D,,EHENKEL COMMUslon * 1550871 Notary Pubtie . Callrorrg San ❑sego County h QMY Comm, Expires Feb 7, za091 16S535000081f 9428201 MATERIAL AND LABOR BOND COUNTY OF RIVERSIDE, STATE OF CALIFORNIA (Government Code Section 66499.1) FOR: Streets and Drainage $ - 866,500 _ _ Tract/Parcel Map PP22338 Water System $ 32.350 Bond No. 22781N Sewer System $ 1.950 Premium Included Surety Insurance Company of the West principal Fairfield Holland Road LLC Address 10509 Vista Sorrento Parkway #310 Address 5510 Morehouse Dr.. Ste 200 City/State San Die.co. California CitylState San Diegro CA Zip 92121 Zip 92121 Phone 858-350-2924 Phone 858 457-2123 WHEREAS, the County of Riverside, State of California, and Fairfield Holland Road LLC (hereinafter designated as "principal") have entered into, or are about to enter into, the attached agreement(s) whereby principal agrees to install and complete the above designated public improvements relating to (Tract/Parcel) PP22338 _, which agreement(s) is/are hereby referred to and made a part hereof; and, WHEREAS, under the terns of said agreement, principal is required, before entering upon the performance of the work, to file a good and sufficient payment bond with the County of Riverside to secure the claims to which reference is made in Title 15 (commencing with Section 3082) of Part 4 of Division 3 of the Civil Code of the State of California; NOW, THEREI~ORE, said principal and the undersigned, as corporate surety, are held firmly unto the County of Riverside and all contractors, subcontractors, laborers, material persons and other persons employed in the performance of said Civil Code in the sum of nine hundred thousand and eight hundred_ Dollars ($ 900,800 for materials furnished or labor thereon of any kind, or for amounts due under the Unemployment Insurance Actwith respect to such work or labor, that said surety will pay the same in an amount not exceeding the amount hereinabove set forth, and also in case suit is brought upon this bond, will pay, in addition to the face amount thereof, costs and reasonable expenses and fees, including reasonable attorney's fees, incurred by the County in successfully enforcing such obligation, to be awarded and fixed by the court, and to be taxed as costs and to be included in the judgement therein rendered. It is hereby expressly stipulated and agreed upon that this bond shall inure to the benefit of any and all persons, companies and corporations entitles to full claims under Title 15 (commencing with Section 3082) of Part 4 of Division 3 of the Civil Code, so as to give a right of action to them or their assigns in any suit brought upon this bond. Should the condition of this bond be frilly performed, then this obligation shall become null and void; otherwise, it shall be and remain in full force and effect. MATERIAL AND LABOR BOND The surety hereby stipulates and agrees that no change, extension of time. alteration or addition to the terms of this agreement or to the specifications accompanying the same shall in anywise affect its obligation on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition. Surety further stipulates and agrees that the provisions of Section 2845 of the Civil Code are not a condition precedent to surety's obligations hereunder and are hereby waived by surety. IN WITNESS WHEREOF, this instrument has been duly executed by the principal and surety above named, on September 10th 2008 NAME OF PRINCIPAL: Fairfield Holland Road LLC AUTk- ORIZED SIGNATURE(S): 13y: Title Title Title (IF CORPORATION, AFFIX SEAL) NAME OF SRETY: Insurance Company of th t; est AUTTHORI%FD SIGNATURE: Thomas A James Its Atto sy= 1-Fact Title ('IF CORPORATION, AFFIX SEAL) ATfACI-I NOTARIAL ACKNOWLEDGMENT OF SIGMA T'URES OF PR.IN"CIPAL AND AT COIRWEY-1N-FACT. CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of San Diego On September 10 before me, Kimberly A. McCoy, Notary Public, personally appeared 'Iliomas A. James, who proved to me an die basis of satisfactory evidence to be the persons) whose name(s) is/are subscribed to die within instrument and acknowledged to me that he/4he't4tey executed the same in his/her/iheif authorized capacity(ies), and that by his/hed4ie* signature(.0 on the instrument the person(, or the entity upon behalf of which the person(s) acted, executed the instrument. igMeERLY A. MCCOY 1 certify under PENALTY OF PERJURY under die laws of the State of Fe - 7! i Commisslon 1749933 California that the foregoing paragraph is true and correct. »a Nofofy Pu1711C - California son oiego Counly MYCOMM.Expres.Au 9Z01I WITNESS my hand and official seal. Si ture of Notary OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER ❑ INDIVIDUAL ❑ CORPORATE OFFICER DESCRIPTION OF ATTACHED DOCUMENT Bond No. 22781 a4 for Fairfield Holland Road LLC ❑ PARTNER(S) ❑ LIMITED 3 pages ® ATTORNEY -IN -FACT Q TRUSTEF(S) Q GUARDIAN/CONSERVATOR. OTHER: Issued on September 10, 2008 SIGNER IS REPRESENTING: Insurance Company of the West NAME OF PERSON(S) OR ENTITY{ICS) Thomas A. James No, 0001.404 1CW GROUP Power ofAttorney Insurance Company of the Nest Explorer insurance Company Independence: Casualty and Surety Compauv KNOW ALL MEN BY THM PRESENT'S: That Insurance Company of the West, a Corporation duly organfr,A under the laws of the State of California, Explorer Insurance Company, a Corporation duly organized undo the laws ofthe State of California, and Independence Casualty and Surety Company, a Corporation duty organized under the lairs ofthe State of Texas, (collectively referred to as the `Companies"), do hereby appoint 11-101MAS A W&S, MIICHAEL H. PRADELS, DENNIS WRSENBBRGER GARY T. PETERSON, KEVIN T. CASEY their true and lawful Attomey(s)-in-Fact with authority to date, execute, sign, seal, and deliver on behalf of the Companies, fidelity and surety bonds, undertakings, and other similar contracts ofsuretyship, and any related documents. In witness whereof, the Companies have caused these presents to be executed by its duly authorized officers this grad day of January, 2008. R.r ' erroryFe;u ! t yam rM o . rt INSIJRANCE COMPANY OF THR WEST FXPI.ORER INSURANCE COMPANY t s, �° t o•'''iy ,?« / p� INDEPENDENCE CASUALTY AIND SURETY COAIPANIi Jeffrey D. S,.vecney, As.5istant Secretary State of California ss. County of San Diego 1. Douglas Browne, Senitrr Vice President On January 2, 2008, bcfart: me, Mary Cobb. Notary Publlc, pasoaally appeared J_ Douglas Browne and Jeffrey D. gwvemty, who proved to me on the basis ofsodakctory ovidunee to be the perstui(s) whale name(s) islarn subscribed to the within instrument, and ack=Mkdgod to me that they cxowcd the same in their authorized eapackies, and that by their signatures on the srsstrumant, thecrsthy upon behalf of which the persons acted, executed the instrument. I certify under PENALTY OF .PMIJP Y under the laws of the State of California that the foregoing: paragraph is true and correct. MARY'GQSS AM. 41602390 0 NOTARY PUBl1C•CRUFORMA � SAN DIEGO COUNTY MY Commission E i pima ,No WTEMBER 20. 2000 Witness my hand and official seal. Maw Cobb, Notary Public RESOLUTIONS This Power of Attomey is granted and is signed, sealed and notarized with facsimile signatures and seats under authority ofthe following resolutions adopted by the. respective Boards of Directors of each oftho Companies: "RESOLVED; That the President, an &=tit vc or Senior Vice President of thus Company. together with the Seeautasty or any Assistant Secretary, arc hereby authorized to exctuie Powers of Attorney appointing the peimn(s) named as Attonie)t s}in-Fart to date, execute, sign, seat, and deliver on b tstfofthe Company. finality and suety bonds, undwiaking,C and other Similar contracts of suretyship, and any related documents. MOLVED FURTHMR: That the signatures of lho offtcrrs malting the appoin(mcoi. and the signature of any officer certifying the validity and eurtrnt status of the appohstment, may be facsimile mprrsontations of those signatures; and the sigr attire and seal of any notary, and the seal of the Company, may be facsimile mpresentations of thaw signatures and seals, turd such facsimile mpresentations shall have the same force and effect as if manually affixed. The facsimile representations referred to herein may be aff ixod by stamping, printing, 3yping, or photocopying." CERTIFICATE I. the undersigned. Assistant Scon:tary of lasumnee Company ofthe West. Rcplorer Insonnoe Company, and .lnuiep hdence Casualty and Surety Company, do hemby certify that the foregoing Powor of Attonney is in 11111 force and effect, and lies not been revoked, and Hutt the above resolutions «+ere duly edopred by the respective Boards of Directors or the: Companies, and are now in full forcc, 0 IN WnWr;= VMM, 'OF, I have Betray hand this 1 , day of Jeffrey D. Sweeney, Assistant Secretary To verify the authenticity ofthis Power of Attorney you may call 1-800-877-i Ill and ask for the Surety Division, PlctaSe refer to the PowtrofAttomcy Number, the above ranted indiv-dutnl(s) and details of the bond to which the power is attached. For information or filing claims, please contact Surety Claims, ICW Group, 11455 PA Camino Real, San Diego, CA 92I30.2045 or mill (S58) 350• 1400. RE: Signature Page for Material and Labor Bond; Fairfield Holland Road LLC; PP 22338 Fairfield Holland Road LLC, a Delaware limited liability.company By: FF CRF Fund LI,C, a Delaware limited liability company, its Manager By: FF Properties, Inc., a Delaware corporation, its Manager B Name: John J. Fee "an Title: Vice President 13y: Name: fEdwk F. McCoy Title: Vi&-President Notary Acknowledgement STATE OF CALIFORNIA COUNTY O1 hjp,� 4 'id personally appeared— 1 on the; basis of satisfactory evidence to be the per -so within instrument and acknowledged to me al�luf authorized capacity}, and that. by Ms1her s1 the entity upon behalf of which the persot ;acted, �NUtary Public, rho proved to me nails isl re ubscribod to the xeCILte the same in hi&4hcl- ei ' Eon the instrument the persogs , or the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing; paragraph is true and correct. SHANN'M DAYS FIENK[ EL S Commission # 1 SSW 71 ew k Notary PubUc - Gailtomta yTt Stan Diego county — L Camm. Expfrss Feb 712DQF i2RMN7" 10SS:i�110(1Sfik?RC13Sry$ p! RE: Signature Page for Material and Labor Bond; Fairfield Holland .Road .LLC; PP 22338 Fairfield Holland Road LLC, a Delaware limited liability company By: FF CRF Fund LLC, a Delaware limited liability company, its Manager By: FF Properties, Inc., a IJ a are corporation., its Manager By: & _ Name: It' A. Hribar Title: .a and Secretary -- Notary Acknowledgment: STATE: OF CALIFORNIA COUNTY OF SAN DIrGO On Se attetnber 11. 2008 before me Shannyn Uave_Henkel, Notary Public personally appeared James A. Hribar who proved to me on the basis of satisfactory evidence to be the person.W whose name(s) istam-subscribed to the within instrument and acknowledged to me that he/shGAey executed the same in his/U4zheir authorized capacitycieS), and that by hislltetAheir signature,(') on the instrument the person(), or the entity upon behalf of which the person(§) acted, executed the instniment. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true; and correct WITNL;SS my hand and official seal. SHMiNM DNA HENKEL ' Commissfon # 1550371 Notary Pub9c - Cullfornio %. Sari Diego County �Y Comm. Expires Feb 7, 2 9Y SHANit QAVE HENKEL Commission # 3550873 L@-,�� hlairary Pub11 Caufomlp Son Diego County Comm. Exp4as Fab 7, 2fJQB 105535 ao.iss t<6+9aas -oi EXHIBIT E NOTICE OF CREDIT Plot Plan No. 22338 Units that have not paid Development Impact Fees as of the date of this Notice: Earned Fee Credit Amount: Date; 0 Units Subtract Amount of Development Impact Fee traffic fee component still due as of the date of this Notice: $378 / unit x 0 units $0 Fee Credit - Excess/(Deficiency) A fee credit of 01 unit* will apply to Plot Plan No. 22338 Application of Fee Credit Excess: Amount of Fee Credit Excess: Amount to be Applied to Plot Plan 22338 on a per unit basis of $ 0/ unit*: Amount to be Applied to Tract/Parcel Map a per unit/acre basis of � / unit*: $86,940 $0 on $0 Amount to be Reimbursed $86,940 Terms on which Reimbursement is to be made: City will reimburse actual eligible cost up to a maximum of $86,940 once the proiect is complete and actual costs are verified. * The traffic signal component of the Development Impact Fees collected for the above specified Plot Plan shall be reduced by the rates shown in bold face type at the time of payment. Fairfield Holland Road, LLC Improvement and Credit Agreement EXHIBIT "E"