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RECORDING REQUESTED BY AND WHEN
RECORDED MAIL TO:
City of Chino
City Clerk
P.O. Box 667
Chino, CA 91708
Exempt from recording fees according to
Government Code Section No. 27383
SPACE ABOVE THIS LINE FOR RECORDER’S USE
COVENANT AGREEMENT TO ANNEX
AND FOR SANITARY SEWER CONNECTION
This Covenant Agreement (“Agreement”) is made this ____ day of ____ __________, 2023, by and between the City of Chino, a municipal corporation , hereinafter referred to as “City”, and Helen Shi, hereinafter referred to as “Owner.”
RECITALS
A. Owner owns that certain real property located at 11589 Yorba Avenue , Chino, in the County of San Bernardino, State of California, and more particularly described in Exhibit “A” attached hereto (“Property”).
B. The Property is outside of City’s territorial boundaries but within City’s Sphere of Influence.
C. Owner has requested permission to conne ct the Property, and existing and/or proposed improvements on the Property, to the City’s sanitary sewer system (“Sewer”).
D. City is willing to allow Owner to connect the Property to the Sewer on the condition that Owner (i) enter into an irrevocable agreement to annex the Property to the City at such time as the City determines a sufficient number of parcels are assembled for annexation and the number of parcels or area qualifies for annexation in accordance with the Local Agency Formation Commission (LAFCO) policy pertaining to such annexations, and (ii) that Owner agrees to develop the Property in accordance with the City’s General Plan and in conformance with all City codes and standards pertaining to the Sewer.
E. As required by Government Code Section 56133 , the City has requested and received approval from the Local Agency Formation Commission (LAFCO) of San Bernardino County (“LAFCO”) to provide Sewer services to the Property.
AGREEMENT
NOW, THEREFORE, the Parties agree as follows:
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1. Incorporation of Recitals . The foregoing r ecitals are incorporated herein by reference.
2. Effective Date; Duration. This Agreement shall be effective (“Effective Date”) on the date it is recorded in the Official Records of San Bernardino County (“Official Records”) and shall continue in full force and effect until terminated in accordance with Section 7 below.
Owner shall execute and ack nowledge this Agreement and deliver it to City for execution after which City shall have it recorded in the Official Records and send a recorded copy to Owner.
3. Owner’s Representations and Warranties . Owner represents and warrants to the City that, as of t he Effective Date, Owner is the fee owner of the Property , that there are no other owners of the Property other than those listed in t his Agreement, and that Owner has authority to execute this Agreement which shall be binding on the Property.
4. Covenants, Restrictions and Obligations. Owner covenants and agrees as follows:
(a) Annexation.
(i) At such time as the City decides to seek annexation of the Property to the City (“Annexation”), in the City’s sole discretion, Owner shall consent to the Annexation, shall fully coop erate with, and provide all necessary assis tance to the City during the Annexation process, and shall take a ll actions required to effectuate the Annexation. Owner waives all rights to protest or otherwise oppose the Annexation of the Property to the City of Chino. S pecifically, Owner shall not present any written o r or al protest of or obj ection to Annexation to LAFCO and shall not ob ject (either orally or in writing) to any proposal by LAFCO to waive protest proceedings concerning the Annexation, whether at a public hearing or otherwise.
(ii) Additionally, Owner shall pay all fees and costs, at the t ime tha t they become due an d payable, as would ordina rily be charged to an Owner whose p roperty is being considered for annexation or is annexed to the City, if any. (b) Development of Property . Upon a nd after connecting the Property to the Sewer, Owner shal l use an d develop the Property only in a manner consistent with the permitted use(s) for the Property as show in the Land Use Element of the City’s General Plan (“General Plan”), in addition to any other land use and d evelopment standards imposed by the County of San Bernardino. Prior to connecting to and receiving Sewer se rvice, Owner shall provi de the City with suff icient i nformation a nd documentation, inclu ding plan s, drawings, and s pecifications, if necessary, to demonstrat e to the City ’s reasonable satisfaction that the existing or proposed use of the Property is consistent with the General Plan. Notwithstanding any other provision of this Agreement, a current or proposed use that is not consistent with the General Plan will not be permitted to connect to the Sewer. (c) Sewer Connection. Owner shall (i) pay all fees, charges, and deposits required by the City for connection to and use o f the Sew er including but not limited to fees for Sewer Maintenance and IEUA Sewage Treatment ; (ii) shall complete all improvements required to extend the Sewer to the Property, in accordance with City standards (as determined by the City Engineer), at Own er’s sole expense; and (iii) shall comply with all City
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codes and standards regarding use of the Sewer, in cluding but not limited to, discharge regulations.
5. Extension of Se wer Servic es. City agrees to allow the Property to connect to the Sewer, subject to Owner’s compliance with t he terms of th is Agreement and subject to any conditions imposed by LAFCO in its approval of City ’s request to extend Sewer services to the Property, if any, which are incorporated herein.
6. Runs with the Land . This Agreement shall run with and burden the Prope rty and all future owners, tenants, and occupants of the Property, and shall run in favor of the City in gross as a covenant and equitable servitude and shall benefit all real property o wned by the City from time to time.
7. Release of Covenant. Provided Ow ner is not in default of t his Agreement, Owner may request that this Agreement be released by sending written notic e to City requesting the release after the Property has been an nexed to the City of Chino . Upon confirma tion o f compliance with the foregoing to the reasonable satisfa ction of the City, City shall execute a release in a form approved by the City Attorney , which shall be executed and acknowledged by the City and recorded in th e Official Records. The release may be executed by the City Manager.
8. Violations; Remedies.
(a) Breach of Annexation Covenant.
(i) Owner’s breach of Sectio n 4 (a)(i) of th is Agreement wi ll ca use substantial injury to the City, including but not limited t o delaying and potentially prev enting City’s ability to annex the Property and other properties to the City, which is the City’s primary aim and intent in entering into this Agreement. Since the determination of actual dama ges caused by a breach of Section 4(a) (i) would be difficult or imp ractical to determine, City and Owner agree that if Owner breaches Section 4(a)(i) either by making a protest or objection as described in Section 4( a)(i) or refusing to take any actions requ ired to effectuate the Annexation, Owner shall be l iable for and shal l pay to the City the sum of Ten Tho usand Dollars ($10,000), and shall also reimburse the City for all costs (including l egal fees) incurred by the City as a result of Owner’s breach, all of which shall be due upon demand by the City , and shall be due whether o r not Own er’s breach pre vents Annexation. City may also seek any other remedy for such breach available under law. (ii) If Owner refuses or fails to timely make any payment described in Section 4(a)(ii), Owner authorizes City to ma ke such payment on Owner’s behalf and Owner shall reimburse City for such payment within (30) days of a written demand by the City. (b) Breach of Sewer Regulations. If the City believes Owner has violated Section 4(c) of this Ag reement, City may provide written no tice of breach and demand that O wner remedy the breach within thirty (30) days of receipt of the notice . If Owner fails to remedy the breach in the specified time period and provide proof thereof to the reasonable satisfaction of the City, Owner shall be liab le for and shall pay to the City One Hund red Dollars ($100.00) per day until the breach is cured to the City’s reasonable satisfaction.
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(c) Rights and Remedies are Cumulativ e. The rights and remedies of the City listed in this Section 8 are cumulative and the exercise by City of one or more of such rights or remedies shall not preclude the exercis e by it, at the same or different times, of any other rights or remedies for the same default or any other default by Owner. (d) Lien. If any amount due to the City under this Section 8 is not paid within thirty (30) days of a written demand by the City, City shall have the right to record a lien against the Property for such amount.
9. Amendment or Modification . This Agree ment may not be amended or modified except (i) in writing executed by the t hen current owner(s) of the Property and the City, and (ii) recorded in the Official Records.
10. Notices. Any notice to be given under this Agre ement shall be given by personal delivery or by depositing the same in the United S tates Mail, certified or registered, postage prepaid, at the following addresses:
City: City of Chino
13220 Central Avenue
Chino, CA 91710
Attn: Director of Development Services
With Copy to: City of Chino
13220 Central Avenue
Chino, CA 91710
Attn: City Attorney
Owner: Helen Shi
11589 Yorba Avenue
Chino, CA 91710
Any notice delivered personally shall be effective upon delivery. Any notice giv en by mail as above pr ovided shall be effect ive forty -eight (48) hours after deposi t in the mail. Any party may change address for notice by giving written notice of such change to the other party.
11. Miscellaneous.
(a) Severability. If any term of this Agre ement is held by a cou rt of competent jurisdiction to be invalid or unenforceable, then this Agreement, including all of the remaining terms, will re main in full force and effect as if such invalid or unenforceable term had never been included.
(b) Governing Law. This Agreemen t shall be construed a nd enforced in accordance with the laws of the State o f California and any legal action shall be brought in a court of competent jurisdiction in San Bernardino County. (c) Attorney's Fees. In the event of any li tigation or other legal proceeding arising from this Agreement, the prevailing part y will be entit led to re cover, in ad dition to an y other relief awa rded or grant ed, its re asonable costs and e xpenses, including attorney's fees, incurred in the proceeding.
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(d) Final Agreement . This Agreement contains the entire understanding and agreement with respect t o the sub ject matter of this Agre ement and all prio r or contemporaneous do cuments, communications, understandings, representations, and statements shall be of no force or effect.
(e) Construction. This Agreement shall be construed according to its fair meaning as if prepared by all parties to this Agreement. Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent. (f) No Waiver . The failure t o enforce any term, covenant, or condit ion of this Agreement shall not be construed as a waiver of the ri ght to enforce this, or any other, term, covenant, or condition of this Agreement.
(g) Counterparts. This Agreement may be executed in any number of counterparts each of which shall be an or iginal but all of which shall constitute one and the same document.
[Signatures on Following Page]
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IN WITN ESS WHEREOF, the parties here to have caused this agreement to be executed by their respective officials thereunto duly authorized.
CITY:
CITY OF CHINO, a municipal corporation
Linda Reich, City Manager
ATTEST:
Natalie Gonzaga, City Clerk
APPROVED AS TO FORM: APPROVED AS TO CONTENT:
ALESHIRE & WYNDER, LLP
Fred Galante, City Attorney Warren Morelion, AICP
Interim Director of Development Services
Department
OWNER:
HELEN SHI
By:
Name:
Title:
Address: 11589 Yorba Avenue
Chino, CA 91710
[OWNER’S SIGNATURE SHALL BE NOTARIZED]
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EXHIBIT A
PROPERTY DESCRIPTION
That certain real property in the County of San Bernardino, State of California, legally described as follows:
THE SOUTH 165 FEET OF LOT 18, IN THE SECTION 34, TOWNSHIP 1 SOUTH, RANGE 8
WEST, SAN BERNARDINO MERIDIAN, ACCORDING TO MAP SHOWN IN PART OF
SUBDIVISION OF RANCHO S ANTA ANA DEL CHINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 6 PAGE 15 OF MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY .