Recording Requested By, and
When Recorded, Return to:
When Recorded Mail To:
City of Fontana
8353 Sierra Avenue
Fontana, CA 92335
ATTN: City Manager
______________________________________________________________________________ Space Above this Line for Recorders Use
No Recording Fee Pursuant to Cal. Gov’t Code §27383
TEMPORARY DEVELOPMENT IMPACT FEE REDUCTION PARTICIPATION AGREEMENT This Temporary Development Impact Fee Reduction Program Participation Agreement (“Agreement”) is made and entered into as of ________________, 2023 (the “Effective Date”), by and between the CITY OF FONTANA, (“City”), a general law city, and _____________________________________________________________, (the “Developer”), as developer of that certain property located within the boundaries of the City and more particularly described in Exhibit A hereto (the “Property”). The City and Developer are sometimes referred to individually as “Party” and collectively as “Parties.”
RECITALS
A. Developer is developing the Property, which is a residential real estate development consisting of ____________ (the “Project”) and is applying for permits that are subject to plan check number _______________.
B. Due to rising inflation, the cost of developing the Project has increased significantly. Additionally, homes have become less affordable due to rising interest rates.
C. The City charges development impact fees on new residential development pursuant to Government Code section 66000 et seq., including Circulation, Active Transportation, Local Arterials, Traffic Signals, landscape Median, Public Facilities, Police, Library, Fire Facilities, Park Development, and Municipal Services Fees (collectively, “DIFs”). Each DIF is designed to recover the proportional cost of mitigating impacts on City services and facilities attributable to each development.
D. In order to reduce the cost of developing the Project within the City, and to continue to provide affordable housing within the City, the City previously adopted the Temporary Reduction to DIF program (“TRDIF”) pursuant to Resolution No. _______. Pursuant to the TRDIF, the City Council reduced the DIFs by 50% for a period of 6 months, commencing January 30, 2023 and ending July 31, 2023, with the revenue shortfall paid from unrestricted revenues. The TRDIF is available to developers of residential real estate that enter into an agreement with the City pursuant to which the developer agrees to commence construction of a residential real estate development within 90 days of the date of the agreement.
E. Developer wishes to participate in the TRDIF, and is entering into this Agreement as required by the TRDIF.
F. This Agreement accomplishes a public purpose by encouraging orderly residential development within the City.
AGREEMENT
NOW THEREFORE, IT IS AGREED AS FOLLOWS:
Mutual Agreement.
Subject to collection of a processing fee of $350.00 and to the standard terms and conditions of this Agreement, the City’s municipal code and any permit being requested, Developer agrees to pay, and City agrees to accept, the TRDIF rate for the permits noted below Address or APN
Permit No.
Total DIF Rate
TRDIF Rate
TOTAL:
In exchange for participation in the TRDIF, Developer agrees to commence construction promptly within 90 days of the Effective Date hereof. Commencement of construction shall be defined as obtaining the first inspection for the building permit that is subject to this Agreement.
Subject only to Force Majeure events, Developer agrees to complete construction within 270 days of permit issuance.
Term.
If Developer fails to commence construction by _____________________________, which is the date that is 90 days after the Effective Date or fails to complete construction by ______________________________, this Agreement shall terminate automatically, and Developer shall be required to pay the Total DIF Rate, as noted above, prior to receiving an occupancy permit for the unit that fails to meet conditions noted above. Otherwise, this Agreement shall terminate upon completion of construction and satisfaction of all terms and conditions related to such permit (each a “Termination Date”).
Covenant; Recordation:
To participate in the TRDIF program, Developer covenants to comply with the terms and conditions of this Agreement.
Developer agrees that this Agreement and the conditions and obligations herein shall be binding on and shall inure to the benefit of City, and its successors, heirs, personal representatives, or assigns, and are intended to run with the land.
Developer agrees that, at the city’s discretion, this Agreement may be recorded against the Property.
Events of Default:
The following events shall each constitute an Event of Default hereunder:
Developer fails to commence construction of the Project by _____________________ or failure to complete construction by _________________________.
Developer transfers the Property, or any portion thereof, to any other person without obtaining prior written consent from the City to assign the rights of this Agreement.
Developer’s development of the Property, or any portion thereof, for anything other than residential use.
Failure to comply with any other provision hereunder.
Remedies:
If an Event of Default occurs, Developer agrees and acknowledges that such a default shall be treated in the same way as a violation of the City’s Municipal Code, and all applicable remedies existing thereunder shall be available to the City in the enforcement of this Agreement. In addition, upon occurrence of an Event of Default, the City shall have the following additional remedies:
The City may terminate this Agreement.
Upon such termination, the City may revoke Developer’s building permits with respect to the Property, unless Developer first pays an additional $_____________, which represents the amount necessary when, taken together with the amount previously paid, equals the total DIFs owed for the Project (“Total DIF”).
The City may exercise any and all other remedies available to the City under law.
Laws, Venue, and Attorneys’ Fees:
This Agreement shall be interpreted in accordance with the laws of the State of California. If any action is brought to interpret or enforce any term of this agreement, the action shall be brought in a state or federal court situated in the County of San Bernardino, State of California. In the event of any such litigation between the Parties, the prevailing party shall be entitled to recover all reasonable costs incurred, including reasonable attorney’s fees, as determined by the court.
Release and Termination of Covenant:
Upon satisfaction of the conditions and covenants set forth herein, or upon termination of this Agreement and either the revocation of building permits or Developer’s payment of the Total DIF, the Parties agree that the encumbrance on title to the Property created by this Agreement shall be released and terminated, and the City shall provide any assistance deemed necessary to terminate and release such covenant from title.
Incorporation of Recitals and Exhibits:
Each of the exhibits attached hereto (if any) is incorporated herein by this reference. The Parties hereby affirm the facts set forth in the Recitals, above, and agree to the incorporation of the Recitals as though fully set forth herein.
Entire Agreement:
This Agreement memorializes and constitutes a final expression and a complete and exclusive statement of the Agreement and understanding between the parties and supersedes and replaces all prior negotiations, proposed agreement and agreements, whether written or unwritten. Each of the Parties to this Agreement acknowledges that no other party, nor any agent or attorney of any party, has made any promise, representation or warning whatsoever, express or implied, which is not expressly contained in this Agreement.
Time is of the Essence:
Time is of the essence in this Agreement, and the Parties agree to execute all documents and proceed with diligence to complete all covenants and conditions.
Counterparts:
This Agreement may be signed in counterparts, each of which shall constitute an original and which collectively shall constitute one instrument.
No Third-Party Beneficiaries:
There are no intended third-party beneficiaries of any right or obligation assumed by the Parties.
Invalidity; Severability:
If any part of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
Authority to Enter Agreement:
Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority make this Agreement and bind each respective Party.
Waiver:
No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual right by custom, estoppel, or otherwise.
Amendment; Modification:
No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. [SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement for Payment of Fees as of the Effective Date first above written.
Date: ____________
CITY:
City of Fontana, a general law city
By:
Name:
Its:
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California )
County of San BERNARDINO )
On ____________________, 2023 before me, , Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
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 and official seal.
Signature:
(seal)
Date: ____________
DEVELOPER:
By:
Name:
Its:
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California )
County of San BERNARDINO )
On ____________________, 2023 before me, , Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
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 and official seal.
Signature:
(seal)
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
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