When Recorded Mail to:
City of Placentia
401 East Chapman Avenue
Placentia, California 92807
Attention: City Clerk
EXEMPT FROM FILING FEES
GOVERNMENT CODE §§ 6103, 27383
Space above for Recorder's Use)
DEVELOPMENT IMPACT FEE DEFERRAL AGREEMENT
between
THE CITY OF PLACENTIA,
a California municipal corporation
and
TOLL BROS. INC.
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DEVELOPMENT IMPACT FEE DEFERRAL AGREEMENT
This Development Impact Fee Deferral Agreement ("Deferral Agreement") is entered into effective , 2023 ("Effective Date") by and between the City of Placentia, a California municipal corporation ("City"), and Toll Bros. Inc., a Pennsylvania corporation ("Developer"). City and Developer are hereinafter collectively referred to as the "Parties."
RECITALS
A. Developer is the fee simple owner of that certain real property designated by APNs 341-501-01 - 341-501-62 in Placentia, California ("Property") and more particularly described in Exhibit A attached hereto and incorporated herein by reference.
B. Developer desires to modify existing approvals for a 62 single family residential lot subdivision of the Property 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 ("Project").
C. A building permit will be required for each single family residence constructed as a part of the Project.
D. In connection with the granting of such permits and entitlements for the Project, the City has imposed certain development impact fees and charges ("Impact Fees").
E. Placentia Municipal Code section 5.02.040(b) allows new developments that include a subdivision map with multiple buildings to defer the payment of Impact Fees, allowing Impact Fees to be paid to the City in phases prior to the issuance of the first building permit of each phase, if requested in writing by the developer.
F. Developer has submitted to the Director of Development Services a request to defer payment of the Impact Fees.
G. The City has determined that the Project is eligible to defer payment of the Impact Fees consistent with Placentia Municipal Code section 5.02.040(b), and that the Project will generally contribute to the economic and commercial well-being of the City and its residents.
H. The City has agreed, subject to the terms, conditions and limitations of this Deferral Agreement, to allow the phasing of the payment of the Impact Fees on a pro -rated basis as more particularly set forth in this Deferral Agreement.
I. The City shall cause this Deferral Agreement to be recorded in the Official Records of the County of Orange.
AGREEMENT
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows.
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1. Deferred Imuact Fees.
(a) The City hereby agrees, subject to the terms, conditions and limitations of this Deferral Agreement, to defer payment of the following Impact Fees due for or in connection with development of the Project ("Deferred Impact Fees"):
Traffic Impact Fee — Residential
Sewer Impact Fee — Residential
Public Safety Impact Fee — Residential
Affordable Housing Impact Fee
Park and Recreation Impact Fee
Quimby In -Lieu Impact Fee
Total
Schedule B
$161,900.00
$155,700.00
$120,400.00
$803,400.00
$350,200.00
$526,400.00
$2,118,000.00
Storm Drainage — Residential (Area A)
Storm Drainage — Residential (Area C)
Storm Drainage — Residential (Area G)
Traffic Impact Fee — Retail/Commercial
Sewer Impact Fee — Retail/Commercial
Public Safety Impact Fee — Retail/Commercial
Storm Drainage — Retail/Commercial (Area A)
Storm Drainage — Retail/Commercial (Area C)
Traffic Impact Fee — Office
Sewer Impact Fee — Office
Public Safety Impact Fee — Office
Storm Drainage — Office (Area A)
Storm Drainage — Office (Area C)
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Estimated Amo
$300.00/dwelling unit
$13 7.00/dwelling unit
$4,625 .00/acre
$1.49/square foot
$0.70/square foot
$0.72/square foot
$0.17/square foot
$0.07/square foot
$2.13/square foot
$1.04/square foot
$1.03/square foot
$0.11/square foot
$0.05/square foot
(b) For the Fees identified in Schedule A above, Developer shall pay a Deferred Impact Fee payment of $21,180 per dwelling unit prior to the issuance of each initial building permit for each of the one hundred (100) single family residential units included in the Project for a total deferred amount of $2,118,000.00.
(c) For the Fees identified in Schedule B above, Developer shall pay a Deferred Impact Fee calculated either on 1) a per dwelling unit basis, 2) a per acre basis, or 3) a per square foot basis, consistent with Schedule B, prior to the issuance of each initial building permit for each of the one hundred (100) single family residential units included in the Project. (d) Developer shall have the right to prepay any Deferred Impact Fees, or any fraction thereof, at any time, without penalty or premium. (e) All of the fee types and amounts listed above are subject to annual escalation factors as set forth in Placentia Municipal Code section 5.02.160.
2. Conditions to Deferment. The City shall defer the payment of the Impact Fees upon satisfaction of each of the following conditions:
(a) The Developer's execution and delivery to the City of this Deferral Agreement; and
(b) Recordation of this Deferral Agreement in the Official Records of Orange County.
3. Effective Date; Term. The Effective Date of this Deferral Agreement shall be the date that the Parties have executed this Agreement, and the City causes this Agreement to be recorded in the Official Records of the County of Orange. (a) The term of this Agreement ("Term") shall commence on the Effective Date, and shall expire upon the issuance of the one hundredth (100th) initial building permit for the Project.
4. Renresentations and Warranties. Developer makes the following representations and warranties, and covenants and acknowledges that the City is relying thereupon in agreeing to defer payment of the Development Impact Fees:
(a) Developer is a Pennsylvania Corporation in good standing under the laws of the State of California. The person(s) executing this Deferral Agreement on behalf of Developer have been duly authorized to do so. Developer has all requisite power and authority to execute, deliver and perform its obligations under the Deferral Agreement. Developer is the fee simple owner of the Property, subject only to liens, encumbrances, easements, restrictions, conditions, and other matters of record or disclosed in writing to the City. (b) The execution of the Deferral Agreement and Developer's performance thereunder do not and will not result in a breach of or constitute a default under any agreement, indenture or other instrument to which Developer is a party or by which Developer may be bound. 3 BN 75279141v4
(c) The Deferral Agreement and the transactions contemplated thereby have each been duly authorized by Developer, and when executed and delivered will each constitute a valid and binding obligation of Developer, enforceable in accordance with the respective terms thereof.
(d) There are no pending, or to Developer's knowledge, threatened, actions or proceedings before any court or administrative agency which may adversely affect the financial condition or operation of Developer or Developer's interest in the Property. (e) No representation or warranty made by Developer in this Deferral Agreement contains any untrue statement of a material fact or omits to state any material fact necessary to make the statements therein not misleading.
5. Affirmative Covenants.
Developer covenants to punctually pay each phased Deferred Impact Fee prior to the issuance of the initial building permit for each Project single family residential unit.
6. Rithts Not Granted Under Deferral Agreement. This Deferral Agreement is not, and shall not be construed to be, an approval or an agreement to issue permits or a granting of any right or entitlement by the City concerning the construction of the Project, or any other project, development or other construction by Developer within the City. This Deferral Agreement does not, and shall not be construed to, exempt Developer from paying any fees for any permits, licenses or other approvals which may be required by the City, and (other than the Deferred Impact Fees) at the time required by the City, concerning the construction of the Project, or any other project, development or other construction by Developer within the City. This Deferral Agreement does not, and shall not be construed to, exempt Developer in any way from the requirement to obtain permits and/or other discretionary or non -discretionary approvals as may be necessary for the development, maintenance or operation of the Project, or any other project, development or other construction by Developer within the City. This Deferral Agreement does not, and shall not be construed to, exempt Developer or the Property from the application and/or exercise of the City's power of eminent domain, or its police powers including, but not limited to, the regulation of land uses, and the taking of any actions necessary to protect the health, safety and welfare of its citizenry.
7. Default.
(a) Events of Default. Each of the following events shall constitute an event of default hereunder ("Event of Default"):
(i) Developer fails to make payment of Deferred Impact Fees when due consistent with the terms of this Deferral Agreement;
(ii) Any representation or warranty contained in the Application, this Deferral Agreement, or any document furnished in connection with the foregoing proves to have been false or misleading in any material adverse respect when made; 4 BN 75279141v4
(iii) Developer defaults in the performance of any term, provision, covenant or agreement (other than an obligation enumerated in this Section 7) contained in this Deferral Agreement or unless a shorter cure period for such default is specified herein, the default continues for ten (10) days in the event of a monetary default or thirty (30) days in the event of a nonmonetary default after the date upon which the City shall have given written notice of the default to Developer (or such longer time as the City may agree upon in writing), provided that in each case Developer commences to cure the default within thirty (30) days and thereafter prosecutes the curing of such default with due diligence and in good faith; or (b) Rights Upon Event of Default. Upon the occurrence of an Event of Default, the City shall have all remedies available to it under law or equity, including, but not limited to the following, and the City may, at its election, without notice to or demand upon Developer, except for notices or demands required by law or expressly required pursuant to this Deferral Agreement, exercise one or more of the following remedies:
(i) Seek specific performance to enforce the terms of this Deferral Agreement;
(ii) Pursue any and all other remedies available under law to enforce the terms of this Deferral Agreement and the City's rights hereunder. (c) Cumulative Remedies. Each of the remedies provided herein is cumulative and not exclusive of, and shall not prejudice any other remedy provided herein. The City may exercise from time to time any rights and remedies available to it under applicable law, in addition to, and not in lieu of, any rights and remedies expressly granted in this Deferral Agreement or in any other instrument or notice.
8. Indemnification. 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 Deferral Agreement.
9. Successors and Assiens. 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 Deferral Agreement to, nor shall any benefit of this Deferral Agreement accrue to, any unapproved successor or assign of Developer where City approval of a successor or assign is required by this Deferral Agreement.
10. Governine Laws. This Deferral 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 5 BN 75279141v4
county shall be the venue for any legal action or proceeding that may connection with or by reason of this Agreement.
11. Notices. The address of each Party for the purpose
required by this Agreement is as follows:
To City:
With a copy to:
To Developer:
City of Placentia
Placentia City Hall
401 East Chapman Avenue
Placentia, California 92807
Attn: City Administrator
City of Placentia
Placentia City Hall
401 East Chapman Avenue
Placentia, California 92807
Attn: City Attorney
arise out of or be brought in
of all notices permitted or
Toll Bros., Inc.
725 West Town & Country Road, Suite 200
Orange, California 92868
Attn: Peter Kim
With a copy to: Toll Bros., Inc.
725 West Town & Country Road, Suite 200
Orange, California 92868
Attn: Legal Department
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.
12. Attorneys' Fees and Costs. If one of the Parties brings legal action against the other to enforce or defend a provision of this Deferral Agreement, the parties shall bear their own costs and fees, including attorney's fees, regardless of who prevails.
13. Entire Agreement. This Deferral Agreement, together with Exhibit A, which are incorporated herein by reference, constitutes the entire agreement of the City and Developer and supersedes all previous agreements, oral or written, on the subject matter of this Deferral Agreement.
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14. Modification. This Deferral Agreement shall be amended or modified only by an agreement in writing signed by each of the Parties.
15. Further Acts. The Parties agree to execute such additional documents and to take such further actions as are reasonably necessary to accomplish the objectives and intent of this Deferral Agreement.
16. Severabilitv. If any term or provision of this Deferral Agreement or the application of any term or provision of this Deferral 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 Deferral Agreement, or the application of this Deferral Agreement to other situations, shall continue in full force and effect unless amended or modified by mutual consent of the Parties.
17. Cautions; Interpretation; Time. The captions of the Sections of this Deferral Agreement are for convenience only and are not intended to affect the interpretation or construction of the provisions herein contained. The language of this Deferral Agreement shall be construed as a whole according to its fair meaning and not strictly for or against any Party. Time is of the essence in the performance of this Deferral Agreement.
18. Counterparts. This Deferral Agreement may be executed in multiple counterparts each of which shall be an original and all of which taken together shall constitute one and the same instrument.
19. No Third Party Beneficiary. This Deferral Agreement and the performance of the City's and the Developer's obligations hereunder are for the sole and exclusive benefit of the City and the Developer. No person or entity who or which is not a signatory to this Deferral Agreement shall be deemed to be benefited or intended to be benefited by any provision hereof, and no such person or entity shall acquire any rights or causes of action against either the City or the Developer hereunder as a result of the City's or the Developer's performance or nonperformance of their respective obligations under this Deferral Agreement.
20. Assignment. This Deferral Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns.
21. Survival. All representations made by Developer herein and the provisions of Section 8 hereof shall survive the expiration or earlier termination of this Deferral Agreement.
The representations of Developer made herein have been or will be relied upon by the City, notwithstanding any investigation made by the City or on its behalf. [SIGNATURES ON FOLLOWING PAGE; SIGNATURES OF CITY
AND DEVELOPER MUST BE NOTARIZED.]
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IN WITNESS WHEREOF, the Parties have each caused this Deferral Agreement to be duly executed as of the date first written above.
DEVELOPER
By:
Its:
CITY OF PLACENTIA
a California municipal corporation
By:
Damien Arrula, City Administrator
ATTEST:
Robert McKinnell, City Clerk
APPROVED AS TO FORM:
By:
Christian Bettenhausen, City Attorney
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EXHIBIT A
PROPERTY
(attach legal description)
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