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PARCEL MAPS 20183 & 20184
PARTIAL SATISFACTION OF
DEVELOPMENT IMPACT FEES CREDIT AGREEMENT
between
THE CITY OF FONTANA
a California municipal corporation
and
TDC Boyle Partners, L.L.C., a Delaware limited liability company
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PARTIAL SATISFACTION OF DEVELOPMENT
IMPACT FEES CREDIT AGREEMENT
1. PARTIES AND DATE
This Partial Satisfaction of Development Impact Fees Credit Agreement (“Agreement”) is made this ______ day of ___________, 2022 for reference purposes only, between: (i) The City of Fontana ( “City”), a California m unicipal corporation and (ii) TDC Boyle Partners, L.L.C., a Delaware limited liability company (“Developer”). The term “Developer” includes Developer and its successors to all or any portion of the Property. This Agreement will not become effective until the date (“Effective Date”) on which all of the following are true:
(i) This Agreement has been approved and executed by the appropriate authorities of the Developer, as defined in this Section 1, and this Agreement has been delivered to the City;
(ii) Following all legally required not ices and h earings, this Agreement has been approved by the City’s City Council; and
(iii) This Agreement has been executed by the appropriate authorities of the C ity and delivered to Developer.
2. RECITALS
2.1 Developer owns certain real property located in the City of Fontana, San Bernardino County, State of California, and shall be referred to herein as the “Property”. The Property is more particularly shown in Exhibit “A-1 and Exhibit A-2” attached hereto and incorporated by reference herein and consists of approximately 8.68 net acres and 3.65 net acres.
2.2 The Developer is developing an approximately 167,219 and 7 1,428 square foot warehouse buildings on the property more particularly described as Parcel Map No. 20183/ Design Review No. 19-043 and Parcel Map No. 20184/Design Review No. 19-044 (“Project”).
2.3 The City has imposed certain conditions of approval on the Project in connection with the City’s issuance of a building permit for the Project, which conditions, among other things, require the payment of, among others, certain Circulation (“Subject Development Fees”) as follows:
Subject Development
Fee Obligation
Construction In-Lieu
Amount
Net Development Fee
Obligation
Circulation $837,412.32 $596,018.28 $241,394.04
Storm Drain $287,498.61 $546,351.84 $0
Sewer $4,203.52 $154,836.00 $0
Total
$1,129,114.45 $1,297,206.12 $241,394.04
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Such fees are set based upon the City’s determination as to the square footage of the wa rehouse attributable to the Pr oject as more particularly set forth in Exhibit “B” attached hereto and incorporated by reference herein.
2.4 In satisfaction of the Subject Development Fee Obligation as identified in Recital 2.3 above, Developer shall, at its sole cost, expense and lia bility, construct and dedicate to the City certain public improvements as more particularly set forth in this Agreement.
3. TERMS
3.1 Payment of Subject Development Fees
3.1.1 Payment of Subject Development Fees. Developer would, in the absence of this Agreement, be obligated to pay the Subject Development Fees described in Recital 2.3 in accordance with the City’s normal fee payment schedule, as a condition to the issuance of a building permit for the Project. Such amount would total One million one hundred twenty-nine thousand one hundred fo urteen dollars and forty -five cents ($1,129,114.45) (“Subject Development Fe e Obligation”). However, Developer shall construct and dedicate the Subject Improvements as set forth in Section 3.2 below, at a cost to Developer of approximately One million two hundred ninety- seven thou sand t wo hundred six dollars and twelve cents ($1,297,206.12). Therefore, upon Developer’s dedication to City and City’s acceptance of the Subject Improvements, as defined and set forth in Section 3.2.1, below, Developer shall be deemed to have satisfied its Subject Development Fee Obligation . Developer sha ll thereafter be entitled to no further payment, reimbursement or refund arising out of or related to the Subject Development Impact Fee Obligation.
3.1.2 Full Satisfaction of Subject Development Fees. The Subject Development Fee Obligation shall be satisfied for the Project in consideration of Developer’s construction and dedication, and the City’s acceptance, of those Subject Improvements, as defined and set forth in Section 3.2.1, below, in accordance with this Agreement.
3.2 Construction and Dedication of Subject Improvements.
3.2.1 Construction and Dedication of Subject Improvements. In satisfaction of the Subject Development Fees for the Project as set forth in Recital 2.3, Developer shall, at its sole cost, expense and liability, develop and d edicate to the City those certain public Circulation improvements (“Subject Improvements”) described in Exhibit “C-1”, Exhibit “C-2” and Exhibit “C- 3” attached hereto and incorporated by reference herein. Developer sh all develop the Subject Improvements in accordance with plans and specifications to be approved by the City, in accordance with then-current City public works standards and policies. The Subject Improvements shall be dedicated to the City as provided in S ection 3.2.6. Developer hereby warrants and guarantees all Subject Improvements against any defective work or labor done, or defective materials furnished in the performance of this Agreement, including the maintenance of all landscaping within the Property in a vigorous and th riving condition reasonably acceptable t o City, for a period of one (1) year following completion of the work and acceptance by City ( “Warranty”). During the Warranty, Developer shall repair, replace, or reconstruct any defective or otherwise unsatisfactory portion of the Subject Improvements, in accordance with the current ordinances, resolutions, re gulations,
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codes, standards, or other requirements of City, and to the approval of the City Engineer. All repairs, replacements, or reconstruction during the Warranty shall be at the sole cost, expense, and liability of Developer and its surety. As to an y Subject Improvements that have been repaired, replaced, or reconstructed during the Warranty, Developer and its surety hereby agree to extend the Warranty for an additional one (1) year period following City’s acceptance of the repaired, replaced, or reconstructed Subject Improvements. Nothing herein shall relieve Develope r from any other liability it may have under federal, state, or local law to repair, replace, or reconstruct any Subject Improvement following expiration of the Warranty or any extension thereof. Developer’s warranty obligation under this section shall survive the expiration or termination of this Agreement.
3.2.2 Subdivision Improvement Agreements. Developer and City have heretofore entered into one or more subdivision improvement agreements for the Project, pursuant to Government Code section 66462 (“Improvement Agreement”). All work required to be completed by D eveloper under this Agr eement shall be subject to the provision s of the Improvement Agreement, including, without limitat ion, the security, insurance, prevailing wage, and indemnification provisions thereof.
3.2.3 Meaning of “Dedicate.” The term “dedicate,” as used in this Agreement, means to acquire all necessar y land or rights -of-way and to construct thereon the Subject Improvements required by this Agreement, and thereafter to offer to convey such land/rights-of-way and improvements to the City at no cost to the City. Developer shall offer the land/rights-of-way and Subject Improvements at the time required by the Ci ty Engineer in the exercise of his or her reasonable discretion. The satisfaction of Developer’s obligations with respect to the dedication of the Subject Improvements described in this Section 3.2 shall be contingent upon the City Council’s acceptance of said improvements, which acceptance shall occur in a manner consistent with the City’s standard policies and standards for the acceptance of dedicated improvements.
3.3 Not a Statutory Development Agreement. This Agreement is not a statutory development agreement as described by Government Code section 65864, et seq. This Agreement confers no vested entitlements with respect to the development of the Project. This Agreement does not limit, in any way whatsoever, any authority the City may have to lawfully increase Impact Fees, change land use regulations, or otherwise lawfully exercise all powers available to the City pursuant to its police power, statutes, and judicial decision. Likewise, nothing in this Agreement shall limit, in any way, any right or remedy Developer may have to protest or challenge any unlawful increase in the Impact Fees . Except where subject to partial or total satisfaction as provid ed in t his Agreement, Developer shall pa y all Impact Fees, as they may be adjusted by the City dur ing construction of the Project. Without limiting the generality of the foregoing paragraph, if the City at any time increases its Impact Fees, and such increases can otherwise be lawfully imposed against the Project, then Developer (or its successors, as applicable) shall pay the increased Impact Fees for only those portions of the Project (units or acreage, as applicable) for which the prior, lower Impact Fees have not yet been paid in full at the time provided for in this Agreement. If the City increases any Subject Development Fee, and such increase results in the value (as established by the applicable fee program) of the Subject Improvements being less than Developer’s increased Subject Development Fees for only those portions of the Project for which the prior, lower Impact Fees have not yet been paid in full, then Dev eloper shall pay the amount of the difference between the Subject Improvement’s value and the increased amount of the Subject Development Fees.
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3.4 City’s Remedies Upon Default. Subject to Section 3.2, if the Developer fails to complete and offer for dedication a particular public improvement described in Section 3.2 in the manner required by this Agreement then the City may, upon fifteen (15) days’ prior written notice to the Developer, exercise any one or more of the following remedies, independently or conjunctively:
(i) The City may terminate this Agreement in its entirety and shall have no obligation to reduce the Developer the Subject Fee Obligation as set forth in Section 3.1; provided, however, that the City shall either (1) reimburse the Developer for the Developer ’s actual third -party costs (without interest) incurred with respect t o any public improvements satisfactorily completed and dedicated to the City prior to termination, or ( 2) reimburse the Developer’s Impact Fee obligation in a particular category in an amount equal to the Developer’s actual third-party costs (without interest) incurred with respect to the public improvements related to that category that are satisfactorily completed and dedicated to the City prior to termination; provided, however, that the maximum amount of the reimbursement paid or credit given pursuant t o (1) o r (2) above shall not exceed the cost for the public improvements satisfactorily completed and d edicated prior to termination as set forth in the applicable fee program or study upon which the applicable Impact Fee is based; or
(ii) The City may ter minate this Agreement in its entirety an d shall have no obligation to credit to Developer the Subject Impact Fee reduction as set forth in Section 3.1; provided, however, that the City shall either (1) reimburse the Developer for the value (“Incomplete Value”), as determined in the City Engineer’s reasonable discretion, of any public improvements that are not satisfactorily completed and dedicated to the City prior to termination; or (iii) The City may exercise any other right or remedy available to it at law or in equity.
3.5 No Waiver. Developer’s or the City’s failure to insist on performance of any of the terms or conditions of this Agreement or to exercise any right, remedy or privilege, or Developer’s or the City’s waiver of any breach hereunder, shall not thereafter be deemed a subsequent waiver of any other terms, conditions, or rights, remedies or privileges, whether of the same or similar type.
No party will be deemed to have waived any rights under this Agreement unless the waiver is made in writing and signed by the waiving party’s duly authorized representative. All rights and remedies provided for under this Agreement are cumulative.
3.6 Cooperation. The parties agree to cooperate with each other in furthering the purposes of this Agreement. The parties hereby agree to take such other actions and execute such other reasonable documents as are consistent with this Agreement and as are reasonably necessary to effectuate this Agreement; provided, however, that the foregoing shall not require the City to take any legislative act or exercise its discretion in any particular manner.
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3.7 Entire Agreement. This Agreement contains the final and complete agreeme nt between the parties with respect to the matters herein discus sed and supersedes all previous communications and agreements b etween them, either oral or written, to the extent such pr ior communications and agreements are inconsistent with this Agreement.
3.8 No Agency. Each party acknowledges that it is not the ag ent or fiduciary of the other.
3.9 No Assignment. This Agreem ent, including, without limitation, the parties ’ obligations under Section 3.2, is not assignable, in whole or in part, by Developer, without the prior written consent of the City, and any atte mpt to make such assign ment sh all be void and shall constitute an incurable material default under this Agreement.
3.10 Attorneys’ Fees. In the event that any action or proceeding is commenc ed to regarding any term of this Agreement, the prevailing party in such action or proceeding, in addition to all other relief to which it may be entitled, shall be entitled to recover from the other party the prevailing party’s costs of suit and reasonabl e attorneys’ fees. The prevailing party shall be as determined by the court in accordance with Code of Civil Procedure section 1032. The attorneys’ costs and expert fees recoverable pursuant to this Section 3.10 include, without limitation, attorneys’ costs and expert fees incurred on appeal and those incurred in enf orcing any judgment rendered.
Attorneys’ costs and fees may be recovered as an element of costs in the underlying action or proceeding or in a separate recovery action.
3.11 Notices. All notices, demands or other communications (collectively, “Notices”) required or allowed by this Agreement shall be in writing and shall be considered given: (i) when delivered in person to the recipient named below; or (ii) three (3) business days after deposit in the United States mail, postage prepaid, addressed to the recipient named below; or (iii) on the date of delivery by facsimile transmission to the recipient named below. All Notices shall be addressed as follows:
If to the City: City Manager
City of Fontana
8353 Sierra Avenue
Fontana, CA 92334-0518
With copies to: Best Best & Krieger LLP
2855 E. Guasti Rd., Suite 400
Ontario, CA 91767
Attn: Jeff Ballinger, Esq.
If to Developer: TDC Boyle Partners, LLC
3501 Jamboree, Suite 4400
Newport Beach, CA 92660
Attn: Stephen Batcheller
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Any party may, by notice g iven at any time, require subsequent Notices to be given to another person or entity, whether a party or an officer or representative of a party, or to a different address, or both. Notices given before actual receipt of Notice of change shall not be inva lidated by the change.
3.12 Governing Law. This Agreement and its pr ovisions shall in all respec ts be interpreted, construed, enfor ced and governed by and under the la ws of the State of California, without regard to its conflict of laws principles.
3.13 Consent to Jurisdiction, Venue and Service. Any action or proceeding brought respecting this Agreement shall be instituted and maintained in the appropriate court in the County of San Bernardino, California. Developer hereby forgoes and waives any provi sion of State or Federal law or judicial decision providing for a change of venue from such court on the grounds that the City is or may be a party to a ny such action or proceeding, including, without limitation, California Code of Civil Procedure section 394. Each party hereby irrevocably consents to the personal jurisdiction of the court. Service of process may be made in any manner provided by law.
3.14 Modification. This Agreement may be modified only by another written instrument duly authorized and executed by the parties. The foregoing notwithstanding, the City M anager is hereby authorized to make such minor amendments to this Agreement on behalf of the City as the City Manager may deem prudent and necessary in its administration, with the concu rrence of the City Attorney.
3.15 Severability. The provisions of this Agreement are specifically made severable. If any clause, provision, rights and/or remedy provided for herein is unlawful or unenforceable, the remainder of this Agreement shall remain in effect and be enforced as if such clause, provision, right and/or remedy were not contained herein.
3.16 Rules of Construction. The language in all parts of this Agreement shall in all cases be construed as a whole according to its fair meaning, and not strictly for or against, either the City or Developer. Sectio n headings in this Agreement are for convenience only and are n ot to be considered as a part of this Agreement or in any way limiting or amplifying the provisions hereof.
All provisions and any variations thereof shall be deemed to refer to the masculine, feminine, neuter, singular or plural, as the identification of the person or pers ons, firm or firm s, corporation or corporations may require. This Agreement is the product of mutual negotiation and drafting efforts.
Accordingly, the judicial rule of construction that ambiguities in a document are to be construed against the drafter of that document shall have no application to the interpretation or enforcement of this Agreement. In any action or proceeding to interpret or enforce this Agreement, the finder of fact may refer to such extrinsic evidence not directly in conflict with the express terms hereof to ascertain and give effect to the intent of the parties to this Agreement.
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3.17 Execution/Counterparts. This Agreement may be executed in one or mo re counterparts, each of which shall be an original and all such counterparts together shall constitute the entire agreement of the parties hereto.
3.18 Authorization. Each individual executing this Agreement hereby represents and warrants that he or she has the full power and authority to execute this Agreement on behalf of the named parties.
[Signatures on Following Pages]
16498.00001\9162190.1
SIGNATURE PAGE TO
PARTIAL SATISFACTION OF
DEVELOPMENT IMPACT FEES CREDIT AGREEMENT
CITY OF FONTANA
By:________________________________
Matthew C. Ballantyne
City Manager
TDC Boyle Partners, LLC
By:_________________________________
Stephen Batcheller
Partner
Attest:
By:________________________________
Germaine McClellan Key, City Clerk
Attest: 1
By:__________________________________
INSERT NAME
INSERT TITLE
Approved as to form:
Best Best & Krieger LLP
City Attorney
By:_____________________________
Phillip Burum, Deputy City Manager
Development Services Organization
By:_____________________________
Gia Kim
Director of Engineering/City Engineer
IN COMPLIANCE WITH INSURANCE ADMINISTRATION POLICIES/PROCEDURES
By:_____________________________
Rakesha Thomas, Director of
Human Resources and Risk Management
IN COMPLIANCE WITH PURCHASING AND CONTRACT ADMINISTRATION POLICIES/PROCEDU RES
Daniel Schneider
Community Services Director
__________________________
Purchasing
1 Attestation of Consu ltant’s signature must be obtained when required by the by -laws, articles of incorporat ion or other laws, rules or regulations applicable to Consultant’s business entity.
Exhibit A
16498.00001\9162190.1
EXHIBIT A
TO
PARTIAL SATISFACTION OF DEVELOPMENT
IMPACT FEES CREDIT AGREEMENT
Depiction of Property
[Attached]
PM 20183
PM 20184
9/15/2022
Exhibit B
16498.00001\9162190.1
EXHIBIT B
TO
PARTIAL SATISFACTION OF DEVELOPMENT
IMPACT FEES CREDIT AGREEMENT
Subject Development Fees
[Attached]
QUANTITY UNIT FEE TOTAL
INDUSTRIAL
Building 1 - Boyle 167219 S.F.
Bulding 2 - Juniper 71428 S.F.
Subtotal 238647
Construct 8" curb LF $21.50
Construct 4" sidewalk
Construct access ramps 2 EA $9,900.00 $19,800.00
Traffic Control/Demolition/Grading/Signing & Striping 1 LS $53,302.00 $53,302.00 10% Contingency
Soft Costs 20% (10% design, 10% Construction Management) Total Intersection Improvement Cost
SUB-TOTAL
EXHIBIT B
SLOVER/JUNIPER INTERSECTION IMPROVMENTS
CIRCULATION IMPACT FEE
SUB-TOTAL
CITY OF FONTANA
IMPACT FEE AGREEMENT EXHIBIT
Juniper & Boyle Industrial Center
Transwestern
DATE:
CIRCULATION IMPACT FEE
Total Circulation Construction Cost
PM 20183 & PM 20184
3.509
3.509
$586,771.47
$250,640.85
$837,412.32
0 and gutter
Construct (7.5") AC pavement
4,167
TON
$90
$375,030.00
158
$3397.00
$451,529.00
$45,152.90
$496,681.90
$99,336.38
$596,018.28
$596,018.28
Total Obligation - Remaining Fees Due (Interchange)
$241,394.04
08-08-2022
QUANTITY UNIT FEE TOTAL
INDUSTRIAL
Building 1 - Boyle 8.68 Net AC $23,317.00 $202,391.56
Building 2 - Juniper Net AC $23,317.00
Subtotal - Square Footage
Construction Cost in Excess of Fees
Total Obligation - Remaining Fees Due
Jumiper Ave & Intersection
L.F. $238.00
L.F. $269.00
TRAFFIC CONTROL 1 LS $44,000.00 $44,000.00
CATCH BASIN W=28' 1 EA $16,850.00 $16,850.00
1 EA $9,875.00 $9,875.00
1 EA $4,500.00 $4,500.00
JUNCTION STRUCTURE EA
MANHOLES EA $8,300.00
LOCAL DEPRESSION 2 EA $3,500.00 $7,000.00
CONCRETE COLLAR 1 EA $2,200.00 $2,200.00
DEMO AND REPLACE ASPHALT 1 LS $62,789.91 $62,789.91
REMOVE EXISTING RCP AND CATCH BASINS 1 LS $48,965.00 $48,965.00
EXHIBIT B
STORM DRAINAGE CONSTRUCTION COST
36" RCP
STORM DRAIN IMPACT FEE
SUB-TOTAL
CITY OF FONTANA
IMPACT FEE AGREEMENT EXHIBIT
Juniper & Boyle Warehouse
Transwestern
42" RCP
CATCH BASIN W=10'
STORM DRAIN FEE -DECLEZ NORTH BENEFIT AREA
Total Storm Drain Construction Cost
VIDEO INSPECTION
10% Contingency
Soft Costs 20% (10% design, 10% Construction Management) Total Storm Drainage Construction Cost
SUB-TOTAL
Transwestern
PM 20183 & PM 20184
3.65 $85,107.05
$287,498.61
1 $3,200
$3,200.00
651
25 $154,938.00
$6,725.00
14" DIP
233
$120
$27,960.00
3 $24,900.00
$ 4 1 3 , 9 0 2 . 9 1
$41,390.29
$ 4 5 5 , 2 9 3 . 2 0
$91,058.64
$276,853.23
LF
t)
DATE: 08-08-2022
$546,351.84
$546,351.84
QUANTITY UNIT FEE TOTAL
Commercial/Industrial
Building 1 - Boyle 2.3976 EDU's 876.61 $2,101.76
Building 2 - Juniper 2.3976 EDU's 876.61 $2,101.76
Subtotal $4,203.52
$4,203.52
Difference (Construction cost in excess of fees)
600 LF $168.00 $100,800.00
3 EA $5,500.00 $16,500.00
SEWER CONNECTION IMPACT FEE
SUB-TOTAL
SUB-TOTAL
CITY OF FONTANA
IMPACT FEE AGREEMENT EXHIBIT
Juniper & Boyle Industrial Center
Transwestern
48" Sewer Manhole
SEWER CONNECTION IMPACT FEE
Total Eligible Sewer Connection Fees
Total Sewer Construction Cost
SEWER CONSTRUCTION COST
8" SDR 26 Sewer
10% Contingency
Soft Costs 20% (10% design, 10% Construction Management)
TOTAL SEWER CONSTRUCTION COST
Transwestern
PM 20183 & PM 20184
$ 1 1 7 , 3 0 0 . 0 0
$11,730.00
$ 1 2 9 , 0 3 0 . 0 0
$25,806.00
$ 1 5 4 , 8 3 6 . 0 0
$154,836.00
$150,632.48
DATE: 08-08-2022
EXHIBIT B
Exhibit C
16498.00001\9162190.1
EXHIBIT C
TO
PARTIAL SATISFACTION OF DEVELOPMENT
IMPACT FEES CREDIT AGREEMENT
Subject Improvements
[Attached]