RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
City of Placentia
401 East Chapman Avenue
Placentia, California 92807
Attention: City Clerk
Document exempt from payment of a recording fee pursuant to California Government Code Section 27383, and Building Homes and Jobs Act Fee pursuant to California Government Code Section 27388.1(a)(2).
COMMUNITY BENEFITS AGREEMENT
(VESTING TENTATIVE TRACT MAP 19250)
This COMMUNITY BENEFITS AGREEMENT (VESTING TENTATIVE TRACT MAP 19250) ("CBA" or "Agreement") is entered into by and between the City of Placentia, a municipal corporation ("City"), and Toll Bros. Inc., a Pennsylvania corporation ("Developer") regarding Vesting Tentative Tract Map 19250. City and Developer are each a "Party" and collectively are the "Parties".
RECITALS
A. Whereas, the Developer owns approximately 14.47 acres of real property in the City of Placentia, north of Alta Vista Street, east of the Ralph's shopping center on Rose Drive, and west of Placentia Champions Sports complex (APNs 341-501-01- 341-501-62), as more specifically described in Exhibit A ("Property");
B. Whereas, the City previously approved Tentative Tract Map 15700 for the division of the Property into 74 lots, each to be developed with a single-family residential unit (the "Approved Project"), and also adopted an Initial Study/Mitigated Negative Declaration ("IS/ MND") in accordance with the California Environmental Quality Act ("CEQA") to evaluate the environmental impacts of the 74 -lot subdivision ("Original Project Approvals"); C. Whereas, the City later approved the recordation of the Final Tract Map No. 15700 for the subdivision of the Property into 62 residential lots, each to be developed with a single- family residential unit, with a remainder parcel corresponding to 12 future lots ("Final Map"); D. Whereas, the Property has not been developed since the City recorded the Final Map;
E. Whereas, Developer is proposing to modify the Approved Project and its associated approvals to allow development of an additional 38 units for a total of 100 single family residential lots pursuant to a new vesting tentative subdivision map on the Property ("Revised Project");
F. Whereas, this Agreement will help ensure (1) the productive use of the Property and foster orderly growth and quality development in City; (2) that development will provide housing units during an unprecedented housing crisis; (3) that City will receive increased property BN 73262625v4
tax and sales tax revenues; (4) that development will proceed in accordance with the goals and policies set forth in the Placentia General Plan and will implement General Plan policies for residential development; and (5) that City will receive the Public Benefits provided by the Revised Project for City residents.
G. Whereas, on , 2023, the City Council, at a duly noticed public hearing, and after consideration of all matters in the record, including without limitation City Staff's report on Developer's Revised Project, all other evidence heard and submitted at such public hearing found that approval of the Agreement is in compliance with CEQA and consistent with the General Plan and other regulations prescribed for the use of land, and that the economic interests of City residents and the public health, safety and welfare will be best served by entering into this Agreement. On , 2023, the City Council adopted the resolution approving this Agreement (the "Resolution").
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing Recitals and the mutual covenants and promises of the Parties herein contained, the amount and sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. The Property. The Property which is the subject of this Agreement is defined in Recital A and more particularly described in Exhibit A.
2. The Revised Proiect. Developer shall subdivide, develop, and use the Property for the development of a total of 100 single-family residential units pursuant to a revised vesting tentative tract map ("Revised Project") to update the Existing Project Approvals, more particularly described in Section 4.a herein.
3. Effective Date; Term. The Effective Date of this Agreement shall be the date that the Parties have executed this Agreement, and the City adopts the Resolution approving this Agreement. Not later than ten (10) days after the Effective Date, and upon receipt of such executed and acknowledged Agreement, Developer shall cause this Agreement to be recorded in the Official Records of the County of Orange ("Official Records").
a. Term. The term of this Agreement ("Term") shall commence on the Effective Date, and shall expire upon the later of: 1) the tenth anniversary of the Effective Date or 2) issuance of the initial certificate of occupancy for the final single family residential unit developed as a part of the Revised Project, provided Developer has fully satisfied all obligations set forth in Section 5 of this Agreement.
b. Termination. This Agreement shall terminate and be of no further force and effect (subject to Section 3.e) on the earliest of (1) the expiration of the Term; or (2) the completion of the Project and all of Developer's obligations in connection therewith. c. Termination for Default. In the event of a Default by a breaching Party, the non - breaching Party may terminate this Agreement as provided for in Section 10.
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d. Subsequent Amendments or Termination. If the Parties amend, modify or terminate this Agreement as herein provided, or this Agreement is modified or terminated pursuant to any provision hereof, then Developer shall, within ten (10) days after such action takes effect, cause an appropriate notice of such action to be recorded in the Official Records.
e. Effect of Expiration of Term or Termination. Upon expiration of the Term or earlier termination of this Agreement, this Agreement and all of the rights, duties and obligations of the Parties hereunder shall terminate and be of no further force or effect, except for obligations under this Agreement that expressly survive expiration or termination, accrued obligations of a Party, and obligations to comply with Project Approvals and other laws. The expiration or termination of the Agreement shall not affect the effectiveness of the Project Approvals except as may be expressly provided therein.
4. The Revised Proiect Approvals. Developer has applied for and obtained various environmental and land use approvals and entitlements related to the development of the Original Project as further revised by the Revised Project Approvals, as described below. For purposes of this Agreement, "Project Approvals" shall mean the Original Project Approvals and the Revised Project Approvals (each as defined herein).
a. The term "Original Project Approvals" shall mean all of the following approvals, plans and agreements that were approved in furtherance of the implementation of the Placentia East Specific Plan (SP -7) on the Property:
i. CEQA. The Previous CEQA documents include an Initial Study/Mitigated Negative Declaration (IS/MND) which evaluated the environmental impacts of the 74 -lot subdivision and Original Project Approvals and was adopted by the City Council on , by Resolution No.
ii. Tentative Tract Map No. 15700 and Development Plan Review 98/18.
Tentative Tract Map No. 15700 and Development Plan Review 98/18 provided for the subdivision of the Property for the development of 74 single family residential units. The City Planning Commission recommended approval of Tentative Tract Map 15700 and Development Plan Review 98/18 on November 24, 1998. After a duly noticed public hearing, Tentative Tract Map 15700 and Development Plan Review 98/18 was approved by the City Council on January 19, 1999, by Resolution No. .
iii. Final Tract Map No. 15700. On , the City approved the Final Tract Map No. 15700 for the subdivision of the Property into 62 residential lots with a remainder parcel corresponding to 12 lots. Final Tract Map No. 15700 was recorded on February 9, 2004, via instrument number 2004000098902. b. Revised Proiect Approvals. The term "Revised Project Approvals" shall mean all of the following as finally approved by City:
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i. CEQA. City will adopt an addendum analyzing an additional 26 single family residential units (compared to the IS/MND for the Original Project Approvals).
ii. Specific Plan Amendment and Rezoning. City will adopt an amendment to SP -7 and rezoning to allow medium density residential uses on the Property consistent with the intent of the Placentia East Specific Plan. iii. Tract Map No. 19250. Vesting Tentative Tract Map No. 19250 would subdivide the Property into 100 individual lots for the development of 100 single family residential units. Subsequently, the City Council will approve the final map in substantial conformance with the Tentative Tract Map No. 19250, and the final map is anticipated to be recorded with the County of Orange. iv. Deviations from Original Project Approvals and Development Standards. Approval of Vesting Tentative Tract Map No. 19250 requires approval of revisions and amendments to the Original Project Approvals, including but not limited to modifications to Development Plan Review 98/18 with respect to applicable development standards.
c. Subsequent Approvals. Subsequent Approvals may include, without limitation:
development plans, conditional use permits, subdivision approvals, subdivision improvement agreements, architectural design review approvals, demolition permits, infrastructure agreements, grading permits, building permits, right-of-way permits, lot line adjustments, sewer and water connection permits, certificates of occupancy, parcel maps, landscaping plans, master sign programs, affordable housing agreement, and encroachment permits. At such time as any Subsequent Approval applicable to the Project is approved by the City, then such Subsequent Approval shall become subject to all the terms and conditions of this Agreement applicable to the Initial Project Approvals and shall be treated as a "Project Approval" under this Agreement.
5. Developer Obligations. Developer agrees to voluntarily contribute a one-time sum of Six Hundred Thousand Dollars ($600,000) ("Community Benefit Payment") to the City for City's use for funding City community services programs as further described in Section 6 below. a. Developer agrees to make a one-time payment of the Community Benefit Payment to City no less than ninety (90) days after the City approves Vesting Tentative Tract Map 19250 and any associated Revised Project Approvals and all appeal periods have passed including the challenge period pursuant to CEQA.
b. Developer agrees that upon payment of the Community Benefit Payment, it shall not exercise any review, approval, discretion, or any other control in the process by which the City decides how to allocate the Community Benefits Payment, or any portion thereof.
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6. City Obligations
a. Timely Review. City shall reasonably cooperate with Developer to facilitate prompt and timely review and processing of applications for the Revised Project Approvals, including the timely provision of notice and scheduling of all required public hearings, and processing and checking of all maps, plans, permits, building plans and specifications and other plans relating to development of the Revised Project filed by Developer, subject in all events to Developer's satisfaction of the conditions for obtaining such approvals as set forth in the Revised Project Approvals. b. Processing During Third Party Litigation. Subject to Developer's rights to tolling under applicable laws, the filing of any third party lawsuit(s) against City or Developer relating to this Agreement, the Revised Project Approvals, Subsequent Approvals, or any other action taken in furtherance of the Revised Project, including actions related to the Property outside the control of City or Developer, shall not delay or stop the development, processing, or construction of the Project or the issuance of Subsequent Approvals, unless the third party obtains a court order preventing the activity. To the extent such third -party litigation results in a court order that delays or stops the development, processing, or construction of the Project, the Term of this Agreement and any Revised Project Approvals affected by such litigation shall be extended by the period of such delay.
c. Use of Community Benefits Payment. If the City Council elects to allocate the Community Benefits Payment, or any portion thereof, to fund the design and/or engineering costs of any other City project or projects that the City, in its sole discretion, determines will benefit the community, the City will be responsible for conducting any requisite analysis and preparing any designs or engineering.
7. Development of the Property.
a. Development Rights. Developer has the right to proceed with development of or on the Property, or any portion thereof, in accordance with the Revised Project Approvals and the provisions of this Agreement
b. Subsequent Proiect Approvals. Developer and City acknowledge and agree that Developer intends to submit applications for Subsequent Approvals as part of the Revised Project Approvals, as defined herein. In connection with any Subsequent Approval, City shall conduct its review and exercise its discretion in accordance with the Revised Project Approvals, and as provided by this Agreement.
8. Extensions of Time. Without further action by the City Council, the City Manager shall have the authority, in his or her sole and absolute discretion, to extend or adjust the deadline for Developer to complete any obligation under this Agreement for up to one (1) year, upon any terms or conditions he or she deems appropriate, if she or he believes the Developer has made a good faith effort to meet the deadline and the additional time is necessary to accommodate delays that were not the result of actions by the Developer.
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9. Transfer and Assignment. "Transfer" shall be defined as the sale, conveyance, transfer, ground lease or assignment of Developer's interest in the Property or any portion thereof ("Transferred Property") to another party (including a joint venture or partnership) ("Transferee"). No Transfer shall require the amendment of this Agreement, provided that such Transfer is completed in conformance with the following requirements:
a. Right to Transfer Property. A Transfer shall be permitted, provided (1) Developer concurrently assigns to the Transferee, and Transferee assumes, all of Developer's rights and obligations under this Agreement and the Revised Project Approvals with respect to the Transferred Property. At least 30 days prior to a Transfer, Developer shall (i) notify City in writing of such Transfer; and (ii) provide the City a written assignment and assumption agreement in a form reasonably acceptable to the City Attorney.
b. Permitted Transfers. Notwithstanding the foregoing, the following Transfers of interests in the Property shall be permitted without the City's consent, but otherwise subject to the requirements of Section 11.a:
i. Any Transfer creating a security financing.
ii. Any Transfer resulting from the foreclosure of a security financing interest or the granting of a deed in lieu of foreclosure of a security financing interest. iii. Any Transfers between or among existing members of Developer. iv. Any Transfer to a corporation, limited liability company, partnership or other entity which is controlling of, controlled by, or under common control with the Developer. For purposes of this paragraph, "control" means effective management and control of the other entity, subject only to major events requiring the consent or approval of the other owners of such entity ("Affiliated Party"). c. City Consent. City's consent to a Transfer shall not be unreasonably withheld, delayed or conditioned. City's decision to withhold consent shall be based upon its determination, in its reasonable discretion, that the Transferee is not qualified to develop the Project or is unable to perform the obligations of Developer under this Agreement. Any such consent shall be in a writing signed by the City Administrator and approved as to form by the City Attorney.
d. Assignment and Assumption. Developer shall not assign its rights or obligations under this Agreement except in connection with a Transfer, or as the City may otherwise approve in its sole and absolute discretion.
10. Remedies for Default. If a Party is in Default under this Agreement, it may pursue one or more of the following courses of action after thirty (30) days' prior written notice to the other Party:
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a. Breach. The failure by a Party to timely perform any obligation under this Agreement shall constitute a breach of this Agreement. In the event of alleged breach of any terms, or obligations under this Agreement, the Party alleging such breach shall give the other Party notice in writing specifying the nature of the breach and the manner in which said breach may be satisfactorily cured, and the Party in breach shall have thirty (30) days following such notice ("Cure Period") to cure such breach, except that in the event of a breach of an obligation to make a payment, the Party in breach shall have ten (10) days to cure the breach. If the breach is of a type that cannot be cured within thirty (30) days (or ten (10) days in the case of an obligation to make a payment), the breaching Party shall, within a thirty (30) day period (or ten (10) day period in the case of an obligation to make a payment) following notice from the non -breaching Party, notify the non -breaching Party of the time it will take to cure such breach which shall be a reasonable period under the circumstances ("Extended Cure Period"); commence to cure such breach; and proceed diligently to cure such breach. The Extended Cure Period shall in no event exceed one hundred twenty (120) days unless otherwise agreed by the Parties. During the Cure Period or Extended Cure Period, the Party charged shall not be considered in Default for purposes of termination or institution of legal proceedings; but the City's right to refuse to issue a permit or Subsequent Project Approval, under Section 7.b. shall not be limited by this provision. The failure of any Party to give notice of any breach shall not be deemed to be a waiver of that Party's right to allege that breach or any other breach at any other time. b. Default. If the breaching Party has not cured such breach within the Cure Period or the Extended Cure Period, if any, such Party shall be in default ("Default"), and the non - breaching Party, at its option, may institute legal proceedings or otherwise avail itself of the remedies set forth in this Agreement.
c. Indemnification. To the maximum extent permitted by law, Developer shall defend, indemnify, release and hold harmless City and its elected and appointed officials and employees (the "Indemnified Parties") from and against any Indemnified Claim. "Indemnified Claim" means any litigation, claim, action, court proceeding, loss, damage, arbitration proceedings, administrative proceedings, regulatory proceedings, civil penalties and fines brought against any of the Indemnified Parties, arising directly or indirectly from any third party claim arising from a Default by Developer under this Agreement. 11 Attorney's Fees. If one of the Parties brings legal action against the other to enforce or defend a provision of this Agreement, the parties shall bear their own costs and fees, including attorney's fees, regardless of who prevails.
12. Third Party Legal Action: Attorney's Fees. If City chooses to defend any third party claim or suit challenging any action taken by City with regard to any procedure or aspect of City's approval of the development of the Project, including the environmental review process, Developer agrees to reimburse City for attorney's fees, expert witness fees, and related costs as City may incur in connection with its retention of outside counsel, and for any award of damages, court costs or fees against City. City has the right to choose and retain such legal counsel as City deems appropriate.
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13. Provisions that Survive Termination of this Agreement. It is expressly agreed by the Parties that the following provisions survive the termination or expiration of this Agreement, together with any definitions or other general provisions necessary to effectuate the rights and obligations set forth therein:
Section 5 — Developer Obligations
Section 10 — Remedies for Default & Indemnification
Section 11 — Attorney's Fees, and
Section 12 — Third Party Legal Action; Attorney's Fees.
14. Waiver of Claims. Developer consents to, and waives any rights it may have now or in the future, to challenge the legal validity of the application of Applicable Law to the Project or the Property, or of any conditions or requirements imposed on Developer by the Revised Project Approvals, including, without limitation, any claim that such terms and conditions constitute an abuse of discretion, are not within the police power, violate substantive or procedural due process, deny equal protection of the laws, effect a taking of property without payment of just compensation, or impose an unlawful tax.
15. Severabilitv. If any term or provision of this Agreement or the application of any term or provision of this Agreement to a particular situation, is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining terms and provisions of this Agreement, or the application of this Agreement to other situations, shall continue in full force and effect unless amended or modified by mutual consent of the Parties.
16. Recordation: Binding Effect. This Agreement shall be recorded in the Official Records and shall be binding upon and inure to the benefit of successors in interest to the Parties. Where there is more than one Developer, the obligations are joint and several.
17. Binding Effect: Covenants to Run with the Land. This Agreement shall be binding upon and inure to the benefit of the heirs, administrators, executors, successors in interest, and assigns of each of the Parties, and the terms of this Agreement shall constitute covenants running with the land; provided, however, that there shall be no transfer of rights or obligations under this Agreement except as permitted in Section 12, and in no event shall any property transferred release Developer from any such obligations. Any reference in this Agreement to a specifically named Party shall be deemed to apply to any heir, administrator, executor, successor in interest, or assign of such Party who has acquired an interest in compliance with the terms of this Agreement or under law. Where there is more than one Developer, the obligations of Developer are joint and several.
18. Successors and Assigns. Subject to the provisions of Section 11 relating to Transfer, the terms, covenants and conditions contained in this Agreement shall bind and inure to the benefit of City, Developer and their respective successors and assigns; provided. however. that the City shall have no obligation under this Agreement to, nor shall any benefit of this Agreement accrue to, any unapproved successor or assign of Developer where City approval of a successor or assign is required by this Agreement.
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19. Cooperative Drafting. This Agreement has been drafted through a cooperative effort of both Parties, and both Parties have had an opportunity to have the Agreement reviewed and revised by legal counsel of their own choosing. No Party shall be considered the drafter of this Agreement, and no presumption or rule that an ambiguity shall be construed against the Party drafting the clause shall apply to the interpretation or enforcement of this Agreement.
20. Integration. This Agreement constitutes in full the final and exclusive understanding and agreement of the Parties and supersedes all negotiations or previous agreements of the Parties with respect to all or any part of the subject matter hereof. All waivers of the provisions of this Agreement shall be in writing and signed by Developer and the City Administrator and shall be approved as to form by the City Attorney.
21. No Third Party Beneficiaries. There are no third -party beneficiaries to this Agreement.
22. Non -Liability of Officials. Employees and Agents. No City elected or appointed official, board member, commission, officer, employee, attorney, agent, volunteer or their respective successors, and assigns shall be personally liable to Developer, or any successor or interest, in the event of a City Default.
23. Parties Not Co -Venturers. Nothing in this Agreement is intended to or does establish the Parties as partners, co -venturers, or principal and agent with one another.
24. Time of the Essence. Time is of the essence in this Agreement. All reference to days shall mean calendar days unless otherwise noted. All references to year shall mean calendar year unless otherwise noted.
25. Force Mai eure. Each milestone or deadline in this Agreement shall be extended by one day for each day that the accomplishment of the milestone or deadline is delayed by Force Majeure.
Force Majeure shall mean any of the following events that cause delay beyond the reasonable control of the Party claiming Force Majeure: strikes, lockouts or other labor disturbances; one or more acts of a public enemy; war; riot; sabotage; blockade; freight embargo; floods; earthquakes; fires; unusually severe weather; quarantine restrictions and any government orders connected thereto; delays resulting from Hazardous Material Delay; litigation that enjoins construction or other work on the Project or any portion thereof except to the extent caused by the Party claiming an extension and provided further that the Party subject to such litigation is actively mounting a defense to such litigation; a development moratorium, as defined in section 66452.6(0 of the California Government Code; and any other causes beyond the reasonable control and without the fault of the Party claiming an extension of time to perform that prevents the Party claiming an extension of time from performing its obligations under this Agreement. The Party claiming Force Majeure shall use good faith efforts to notify the other Party in writing of the Force Majeure event and the claimed extension right within 15 days after the first occurrence of the Force Majeure event.
26. Applicable Law and Venue. This Agreement shall be interpreted, construed and enforced with the laws of the State of California. All rights and obligations of the Parties under this Agreement are to be performed in the City of Placentia in the County of Orange and such county BN 73262625v4
shall be the venue for any legal action or proceeding that may arise out of or be brought in connection with or by reason of this Agreement.
27. Signature in Counterparts. This Agreement may be executed in duplicate counterpart originals, each of which is deemed to be an original, and all of which when taken together shall constitute one and the same instrument.
28. Notices. The address of each Party for the purpose of all notices permitted or required by this Agreement is as follows:
To City:
City of Placentia
Placentia City Hall
401 East Chapman Avenue
Placentia, California 92807
Attn: City Administrator
With a copy to: City of Placentia
Placentia City Hall
401 East Chapman Avenue
Placentia, California 92807
Attn: City Attorney
To Developer:
With a copy to:
Toll Bros., Inc.
725 West Town & Country Road, Suite 200
Orange, California 92868
Attn: Peter Kim
Buchalter, A Professional Corporation
55 Second Street, Suite 1700
San Francisco, CA 94105-3493
Attn: Alicia Guerra
The written address of either party set forth above may be changed by written notice given not less than five (5) days prior to the date such change is to be in effect. All notices under this Agreement shall be in writing, shall be properly addressed and shall be sent by personal delivery, United States mail (registered, certified, or Express Mail, return receipt requested and postage prepaid), or by overnight courier delivery service. All such notices shall be considered delivered:
(i) if personally delivered, on the date of delivery; (ii) if sent by United States mail in the manner prescribed above, on the date shown on the return receipt for acceptance or rejection; or (iii) if sent by overnight courier delivery service, on the date of delivery or attempted delivery as shown by the written delivery record of such service.
29. Amendments. The Agreement may only be amended by mutual agreement of the Parties.
Except as may otherwise be required by law or court order, all amendments to this Agreement shall be approved by the City Council, and shall be: (i) in writing; (ii) approved by the City Council BN 73262625v4
in its sole discretion, by ordinance, at a public meeting; (iii) signed by both Parties; and (iv) entitled "Community Benefits Agreement — Vesting Tentative Tract Map 19250". [Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties have signed this Agreement on the dates indicated below.
1) TOLL BROS., INC, 2) CITY OF PLACENTIA
a Pennsylvania corporation a municipal corporation
By: By:
Peter Kim
(Notary Acknowledgment Required)
Date:
Date:
Damien Arrula, City Administrator
Attest: Recommended for Approval:
Robert McKinnell, City Clerk Joseph Lambert, Director of Development Services Approved as to Form:
Christian Bettenhausen
City Attorney
Exhibits:
A. Legal Description of Property
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