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IMPACT FEE DEFERRAL AGREEMENT TEMPLATE
<br />CITY ATTORNEY APPROVED VERSION REV: 06-10-25 VR
<br />Page 2 of 11
<br />if applicable, subject to the provisions of Section 2b below. This Agreement shall be
<br />recorded in the grantor-grantee index in the name of the City as grantee and in the name
<br />of Developer as grantor.
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<br />b. Notwithstanding anything herein to the contrary, until such time as any
<br />indebtedness secured by a deed of trust recorded prior to the date hereof (the “Senior
<br />Indebtedness”) has been repaid in full and the security instrument securing such Senior
<br />Indebtedness for the benefit of a senior lender (the “Senior Lender”) has been released
<br />and discharged, the City shall not, without the prior written consent of Senior Lender, which
<br />may be withheld in Senior Lender’s sole and absolute discretion, take any enforcement
<br />action set forth herein, including, without limitation, (i) accelerate any amounts due
<br />hereunder, or (ii) exercise any of City’s remedies or enforcement actions hereunder
<br />(including, without limitation, the commencement of any judicial or non-judicial action or
<br />proceeding, exercise of any power of sale or commencement of foreclosure of the lien
<br />created hereunder). Notwithstanding the foregoing, if the Developer does not timely pay
<br />the Impact Fees, the City shall have the right, in its sole and absolute discretion, to
<br />withhold issuance of any Certificates of Occupancy for the Project.
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<br />3. Release of Lien and Issuance of Certificate of Occupancy. Upon full payment of
<br />the Impact Fees and foreclosure costs for a foreclosure commenced but not completed (if
<br />applicable): (i) the City shall promptly reconvey, terminate and release this Agreement and any
<br />lien created hereunder by executing a release of the lien from the Property in substantially the
<br />same form as shown in Exhibit C; and (ii) the City’s Community Development Director will issue
<br />the Certificates of Occupancy for any completed dwelling units in the Project being withheld
<br />pending such payment.
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<br />4. Enforcement of Lien. In the event Developer fails to pay any amount owing
<br />hereunder, on or before the due date, the City has the right to exercise all rights and remedies
<br />and to maintain any action in law or equity to enforce the terms and covenants of this Agreement.
<br />Without limiting the foregoing, the City shall have the right to withhold the issuance of any
<br />Certificates of Occupancy or final building inspection approval for the Project, may foreclose the
<br />lien described herein, using the power of sale, by non-judicial foreclosure under Civil Code
<br />Section 2924 et seq., and may appoint or substitute any title insurance company as trustee for
<br />such purpose, subject to the provisions of Section 2b, above. Any costs, expenses or fees related
<br />to any collection or enforcement of the foreclosure, including, but not limited to, City staff time,
<br />third-party costs, reasonable attorneys’ fees and litigation costs, interest, and any other costs,
<br />shall also be secured by the lien. A failure to cure a default under this Agreement within ten (10)
<br />business days after written notice shall cause the Impact Fees to come due.
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<br />5. Covenants Run with the Land. The terms, covenants, and conditions made in this
<br />Agreement shall run with the land and shall bind all heirs, legal representatives, successors in
<br />interest, assigns, contractors, and subcontractors of the parties. If there is more than one
<br />successor in interest, all successors will be jointly and severally liable for all obligations under this
<br />Agreement. This Section does not limit the effect of Section 7 below.
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<br />6. Payment of Escrow Proceeds. Developer shall notify the City of the opening of any
<br />escrow account for the sale of the Property, or portion thereof, while this Agreement is effective.
<br />In addition, Developer shall provide appropriate notification in the escrow instructions to the
<br />escrow agent that the total amount of the Impact Fees shall be paid to the City from the sale
<br />proceeds in escrow prior to disbursing proceeds to the seller.
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