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1. Incorporation of Recitals. The foregoing recitals 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 acknowledge 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 the Effective Date, Owner is the fee owner of the Property, that there are no other owners of the Property other than those listed in this 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 cooperate with, and provide all necessary assistance to the City during the Annexation process, and shall take all 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.
Specifically, Owner shall not present any written or oral protest of or objection to Annexation to LAFCO and shall not object (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 time that they become due and payable, as would ordinarily be charged to an Owner whose property is being considered for annexation or is annexed to the City, if any. (b) Development of Property. Upon and after connecting the Property to the Sewer, Owner shall use and 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 development standards imposed by the County of San Bernardino. Prior to connecting to and receiving Sewer service, Owner shall provide the City with sufficient information and documentation, including plans, drawings, and specifications, if necessary, to demonstrate to the City’s reasonable satisfaction that the existing or proposed use of the Property is consistent with the General Plan; provided that any accessory dwelling unit meeting the standards of the County of San Bernardino zoning regulations shall not require conformance with the City's General Plan, Codes or standards. Notwithstanding any other provision of this Agreement, a pr oposed 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 of the Sewer 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 Owner’s sole expense; and (iii) shall comply with all City
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codes and standards regarding use of the Sewer, including but not limited to, discharge regulations.
5. Extension of Sewer Services. City agrees to allow the Property to connect to the Sewer, subject to Owner’s compliance with the terms of this 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 Property 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 owned by the City from time to time.
7. Release of Covenant. Provided Owner is not in default of this Agreement, Owner may request that this Agreement be released by sending written notice to City requesting the release after the Property has been annexed to the City of Chino. Upon confirmation of compliance with the foregoing to the reasonable satisfaction 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 the Official Records . The release may be executed by the City Manager.
8. Violations; Remedies.
(a) Breach of Annexation Covenant.
(i) Owner’s breach of S e ct io n 4(a)(i) of this Agreement will cause substantial injury to the City, including but not limited to delaying and potentially preventing 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 damages caused by a breach of Section 4(a)(i) would be difficult or impractical to determine, City and Owner agree that if Owner breaches Section 4(a)(i) either by making a protest or objectio n as described in Section 4(a)(i) or refusing to take any actions required to effectuate the Annexation, Owner shall be liable for and shall pay to the City the sum of Ten Thousand Dollars ($10,000), and shall also reimburse the City for all costs (including legal 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 or not Owner’s breach prevents 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 make 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 Agreement, City may provide written notice of breach and demand that Owner 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 liable for and shall pay to the City One Hundred 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 Cumulative. 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 exercise 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 Agreement may not be amended or modified except (i) in writing executed by the then 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 Agreement shall be given by personal delivery or by depositing the same in the United States 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: OC Properties, LLC
4330 Francis Avenue
Chino, CA 91710
Any notice delivered personally shall be effectiv e upon delivery. Any notice given by mail as above provided shall be effective forty-eight (48) hours after deposit 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 Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included.
(b) Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of 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 litigation or other legal proceeding arising from this Agreement, the prevailing party will be entitled to recover, in addition to any other relief awarded or granted, its reasonable costs and expenses, 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 to the subject matter of this Agreement and all prior or contemporaneous documents, 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 to enforce any term, covenant, or condition of this Agreement shall not be construed as a waiver of the right 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 original but all of which shall constitute one and the same document.
[Signatures on Following Page]
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IN WITNESS WHEREOF, the parties hereto 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
Director of Development Services
OWNER:
OC PROPERTIES, LLC
By:
Name:
Title:
Address: 4330 Francis 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 254 FEET OF THE SOUTH ONE-HALF OF LOT 25, IN SECTION 35, TOWNSHIP 1 SOUTH, RANGE 8 WEST, SAN BERNARDINO MERIDIAN, IN THE COUNTY
OF SAN BERNARDINO, STATE OF CALIFORNIA, IN THE SUBDIVISION OF RANCHO SANTA ANA DEL CHINO, AS PER MAP RECORDED IN BOOK 6 PAGE 15 OF MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPTING THE EAST 471 FEET THEREOF.
APN: 1014-321-08
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MEMORANDUM
CITY OF CHINO
DEVELOPMENT SERVICES DEPARTMENT
CITY COUNCIL MEETING DATE: DECEMBER 5, 2023
TO: LINDA REICH, CITY MANAGER
FROM: WARREN MORELION, AICP, DEVELOPMENT SERVICES DIRECTOR
SUBJECT
..titl e
Covenant Agreement to Annex for Sanitary Sewer Service and Request Approval from the San Bernardino Local Agency Formation Commission (LAFCO) for the CarMax Vehicle Wholesale Auction Facility Project.
..end
RECOMMENDATION
1) Adopt Resolution 2023 -074 conditionally approving a Covenant Agreement to Annex for Sanitary Sewer Service; 2) request approval from the San Bernardino Local Agency Formation Commission for sanitary sewer service for the CarMax Vehicle Wholesale Auction Facility Project located at 11708 East End Avenue; and 3) authorize the City Manager to execute all the necessary documents on behalf of the City.
..body
FISCAL IMPACT
The property owner will be required to pay the City’s Sewer Service Charge, the Sewer Facilities Development Fee (a pass -through fee to the Inland Empire Utilities Agency), and Sewer Development Impact Fees as applicable.
CITY OF CHINO MISSION / VISION / VALUES / STRATEGIC ISSUES The recommendation detailed above will further the City’s values and strategic issues that serve as key pillars on which identified priorities, goals, and action plans are built, by fostering:
Responsible Long-Range Planning
Revenue: Click or tap here to enter text.
Expenditure:
Transfer In: Click or tap here to enter text. Transfer Out: Click or tap here to enter text. 170
CITY COUNCIL MEETING DATE: DECEMBER 5, 2023
TITLE: COVENANT AGREEMENT TO ANNEX FOR SANITARY SEWER SERVICE AND
REQUEST APPROVAL FROM THE SAN BERNARDINO LOCAL AGENCY FORMATION
COMMISSION (LAFCO) FOR THE CARMAX VEHICLE WHOLESALE AUCTION FACILITY PROJECT.
PAGE: 2
BACKGROUND
Chino East End Industrial, LLC (“Developer”) submitted its application to the C ounty of San Bernardino (“County”) to develop existing parcels (APNs: 1013-271-01 and 1013-261-17) for the future construction of a CarMax Vehicle Wholesale Auction Facility (“Project”) in the Light Industrial General Plan land -use designation zone. The Project is located at 11708 East End Avenue in the City’s Sphere of Influence (“SOI”).
At the Developer’s request, the City analyzed the existing sewer facilities contiguous t o the subject property that could potentially provide sanitary sewer service to the Project. The City requested that the Developer provide a sewer study to ensure that the 8” sewer main in East End (fronting the proposed development) is adequate to handle the additiona l flows generated from the subject property, and the tributary properties that will connect to the sewer line in East End Avenue in the future. The analysis also evaluated the proposed point of connection and determined that no system deficiencies or neede d improvements to up -size downstream facilities for the purpose of taking on the additional flows is necessitated by the proposed development.
Parcels in the SOI that are requesting to obtain sanitary sewer service from the City must be developed in accord ance with the City’s General Plan and in conformance with all City codes and standards, as outlined in the City’s Sewer Policy. City staff had the opportunity to review the preliminary plans provided by the County and determined that the Project meets the City’s Zoning Code requirements.
ISSUES/ANALYSIS
The subject property is adjacent to the City boundary and would typically require the Developer to initiate the annexation process and pay all the associated fees to the City and the Local Agency Fo rmation Commission (“LAFCO”). However, the subject parcels where the future CarMax Vehicle Wholesale Auction Facility will be constructed are within the boundaries of an imminent annexation that was initiated by another developer (“ the East End Annexation”). The City Council approved the submittal of the East End Annexation application to LAFCO on October 3, 2023. The annexation is anticipated to be completed within one-year, which does not align with the Developer’s construction schedul e. As a r esult, the Developer will execute a Covenant Agreement to Annex for Sanitary Sewer Service with the City for the subject property to annex into the City in the future (attached to the Resolution as Exhibit B). This is consistent with current City Council policy for sewer service.
With the adoption of Resolution No. 2023 -074, the City Manager will be authorized to execute the LAFCO Application for Extension of Service by Contract (attached to the Resolution as Exhibit A), submit the Application to LAFCO, and allow sewer service for the Project. In addition, the approval of the Covenant Agreement to Annex for Sanitary Sewer Service is contingent upon the approval by LAFCO and reimbursement by the applicant of all the applicable fees incurred by the City in pr eparing, submitting, and processing a request to LAFCO to extend sewer service to the Project. The City Manager is authorized to execute the Agreement on behalf of the City following notification by LAFCO that the City’s request to extend services to the Property has been approved. If the City’s request to extend services to the property is not approved by LAFCO, or if the applicant does not submit a full reimbursement to the City, the Covenant Agreement to Annex for Sanitary Sewer Service shall not be executed by the City. 171
CITY COUNCIL MEETING DATE: DECEMBER 5, 2023
TITLE: COVENANT AGREEMENT TO ANNEX FOR SANITARY SEWER SERVICE AND
REQUEST APPROVAL FROM THE SAN BERNARDINO LOCAL AGENCY FORMATION
COMMISSION (LAFCO) FOR THE CARMAX VEHICLE WHOLESALE AUCTION FACILITY PROJECT.
PAGE: 3
Therefore, it is staff’s recommendation that the City Council adopt Resolution No. 2023 -074, conditionally approving the Covenant Agreement to Annex for Sanitary Sewer Service, request approval from LAFCO, and allow sewer service for the Project.
Attachment: Resolution 2023-074
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RESOLUTION NO. 2023-074
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHINO,
CALIFORNIA, CONDITIONALLY APPROVING A COVENANT
AGREEMENT TO ANNEX AND FOR SANITARY SEWER SERVICE AND
REQUEST APPROVAL FROM LAFCO (ASSESSOR PARCEL NUMBERS
1013-271-01 AND 1013-261-17)
WHEREAS, Chino East End Industrial, LLC (“Developer”) has filed an application with the County of San Bernardino (“County”) for the future construction of a CarMax Vehicle Wholesale Auction Facility (“Project”); and
WHEREAS, City of Chino (“City”) received a request to provide sanitary sewer services to said Project, which is located outside the City’s jurisdictional boundaries but within the City’s sphere of influence, located at 11708 East End Avenue , Chino, CA 91710 (APNs 1013-271-01 and 1013-261-17) (“Property”); and
WHEREAS, Property is currently part of the City’s planned East End Annexation site generally located south of Francis Avenue, west of East End Avenue, north of Philadelphia Street, and a small portion south of Philadelphia Street (“Annexation Area”); and WHEREAS, due to the timing of the Annexation Area, the Developer desires to move forward with its request for sanitary sewer service to facilitate the Project’s entitlements with the County; and
WHEREAS, pursuant to Resolution No. 2022-041, the City’s policy is to only allow new or existing developments located outside of the City’s jurisdictional boundaries but within its sphere of influence to connect to the City’s sanitary sewer system in accordance with the following requirements:
(1) If the parcel is not adjacent to the City boundary, the owner of the parcel must execute and file an irrevocable agreement to annex to the City at such time as sufficient parcels can be assembled and qualify for annexation in accordance with Local Agency Formation Commission (“LAFCO”) policy pertaining to such annexations.
(2) If the parcel is contiguous to a City boundary, the owner will be required to annex the parcel to the City, or, if this is determined to be infeasible, to execute an irrevocable agreement to annex.
(3) Finally, all parcels requesting sewer service must be developed in accordance with the City’s General Plan and in conformance with all City codes and standards; and
WHEREAS, pursuant to Government Code Section 56133, the City may only provide new or extended services by agreement outside of its jurisdictional boundary if it first requests and receives written approval from LAFCO.
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RESOLUTION NO. 2023-074
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NOW, THEREFORE, BE IT RESOLVED, that the City of Chino does hereby determine, find, resolve, and order as follows:
SECTION 1. The City Manager or designee is authorized to execute the San Bernardino LAFCO Application for Extension of Service by Contract (attached to this Resolution as Exhibit A) and to submit the Application to the San Bernardino County LAFCO.
SECTION 2. The Covenant Agreement to Annex and For Sanitary Sewer Connection (“Agreement”) (attached to this Resolution as Exhibit B) is approved, conditioned on (i) approval by LAFCO, and (ii) reimbursement by the applicant of all application fees and other costs incurred by the City in preparing, submitting, and processing a request to LAFCO to extend sewer serves to the Property pursuant to Government Code Section 56133 (“Reimbursement”). T he City Manager is authorized to execute t he Agreement on behalf of the City following notification by LAFCO that the City’s request to extend services to the Property has been approved and following Reimbursement by the applicant. If the City’s request to extend services to the Property is not approved by LAFCO or if applicant does not submit a full Reimbursement to the City, the Agreement shall not be executed by the City.
APPROVED AND ADOPTED THIS 5TH DAY OF DECEMEBER 2023.
EUNICE M. ULLOA, MAYOR
ATTEST:
NATALIE GONZAGA, CITY CLERK
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RESOLUTION NO. 2023-074
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State of California )
County of San Bernardino ) ss.
City of Chino )
I, NATALIE GONZAGA , City Clerk of the City of Chino, do hereby certify that the forgoing Resolution was duly adopted by the City Council at a regular meeting held on the 5th day of December 2023, by the following votes:
AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
NATALIE GONZAGA, CITY CLERK
Attachments: Exhibit A – LAFCO Application
Exhibit B – Covenant Agreement to Annex
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____________________ (FOR LAFCO USE ONLY)SAN BERNARDINO LAFCO APPLICATION FOREXTENSION OF SERVICE BY CONTRACT(A certified copy of the City Council/District Board of Directors resolution or a letter from the City Manager/General Manager requesting approval for an out-of-agency service agreement must be submitted together with this application form.) AGENCY TO EXTEND SERVICE:AGENCY NAME: _________________________________________CONTACT PERSON: _________________________________________ ADDRESS: _________________________________________ _________________________________________ PHONE: _________________________________________ EMAIL: _________________________________________ CONTRACTING PARTY:NAME OFPROPERTY OWNER: _________________________________________CONTACT PERSON: _________________________________________MAILING ADDRESS: __________________________________________________________________________________PHONE: _________________________________________EMAIL: _________________________________________ADDRESS OF PROPERTYPROPOSED FOR CONTRACT: __________________________________________________________________________________CONTRACT NUMBER/IDENTIFICATION: _________________________________________PARCEL NUMBER(S): _________________________________________ACREAGE: _________________________________________ City of ChinoJesus Plasencia13220 Central AvenueChino, CA 91710(909) [email protected], CA 91710See attached Exhibit A - Legal Description10.52 acres1013-271-01 & 1013-261-17Chino East End Industrial, LLCJennifer Dorgan 2010 Main Street, 8th Floor Irvine, CA 92614-7214(949) [email protected] East End Avenue 176
Extension of Service by Contract____________________ Application Form (FOR LAFCO USE ONLY)The following questions are designed to obtain information related to the proposed agreement/contract to allow the Commission and staff to adequately assess the proposed service extension. You may include any additional information which you believe is pertinent. Please use additional sheets where necessary.1. (a) List the type or types of service(s) to be provided by this agreement/contract.________________________________________________________________________________________________________________________________________________________________________________________________(b) Are any of the services identified above "new" services to be offered by the agency? YES NO. If yes, please provide explanation on how the agencyis able to provide the service. ________________________________________________________________________________________________________________________________________________________________________________________________2. Is the property to be served within the agency's sphere of influence? YES NO3. Please provide a description of the service agreement/contract.__________________________________________________________________________________________________________________________________________________________________________________________________________________4. (a) Is annexation of the territory by your agency anticipated at some point in the future? YES NO. If yes, please provide a projected timeframe when it anticipates filing an application for annexation of territory that would include the area to be served. If no, please provide an explanation as to why a jurisdictional change is not possible at this time. ________________________________________________________________________________________________________________________________________________________________________________________________ Sewer service to the proposed 10,000 SF CarMax Vehicle Maintenance Refer to the Covenant Agreement to Annex for Sanitary Sewer Connection. The developer will connect to an existing sewer main on East End Avenue (attached as Exhibit B)owned and maintained by the City of Chino.
Please see the attached report and resolution for details.
Facility.
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Extension of Service by Contract____________________ Application Form (FOR LAFCO USE ONLY) (b) Is the property to be served contiguous to the agency's boundary? YES NO. If yes, please provide explanation on why annexation to the agency is not being contemplated. ________________________________________________________________________________________________________________________________________________________________________________________________5. Is the service agreement/contract in responseto a threat to the public health and safety of the existing residents as defined byGovernment Code Section 56133(c)? YES NO. If yes, please provide documentation regarding the circumstance (i.e. letter from Environmental Health Services or the Regional Water Quality Control Board).__________________________________________________________________________________________________________________________________________________________________________________________________________________6. (a) What is the existing use of the property? ________________________________________________________________________________________________________________________________(b) Is a change in use proposed for the property? YES NO. If yes, please provide a description of the land use change. ________________________________________________________________________________________________________________________________7. If the service agreement/contract is for development purposes, please provide acomplete description of the project to be served and its approval status.__________________________________________________________________________________________________________________________________________________________________________________________________________________ See response 4(a).
Vacant lot Zoning - Light Industrial The owner is in the "process" of seeking approval from the County's Planning Commission for a 10,000 SF CarMax Vehicle Wholesale Auction Facility as better described in the staff report. 178
Extension of Service by Contract____________________ Application Form (FOR LAFCO USE ONLY)8. Are there any land use entitlements/permits involved in the agreement/contract? YES NO. If yes, please provide documentation for this entitlement including the conditions of approval and environmental assessment that are being processed together with the project. Please check and attach copies of those documents that apply: Tentative Tract Map / Parcel Map Permit (Conditional Use Permit, General Plan Amendment, etc.) Conditions of Approval Negative Declaration (Initial Study) Notice of Determination (NOD)/Notice of Exemption (NOE) Department of Fish and Game (DFG) Receipt Others (please identify below) ________________________________________________________________________________________________________________________________9. Has the agency proposing to extend service conducted any CEQA review for thiscontract? YESNO. If yes, please provide a copy assessment including a copy of the filed NOD/NOE and a copy of the DFG Receipt.10. Plan for Service:(a) Please provide a detailed description of how services are to be extended to theproperty. The response should include, but not be limited to, a description of:1) capacity of existing infrastructure, 2) type of infrastructure to be extended or added to serve the area, 3) location of existing infrastructure in relation to the area to be served, 4) distance of infrastructure to be extended to serve the area, and 5) other permits required to move forward with the service extension._______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________Permits must be obtained from the City of Chino and the County ofSan Bernardino. Refer to 1(b) & Exhibit B - Covenant Agreement (Location Map) 179
Extension of Service by Contract____________________ Application Form (FOR LAFCO USE ONLY)________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________(b) Please provide a detailed description of the overall cost to serve the property.The response should include the costs to provide the service (i.e. fees, connection charges, etc.) and also the costs of all improvements necessary to serve the area (i.e. material/equipment costs, construction/installation costs, etc.). (c) Please identify any unique costs related to the service agreement such as premium outside City/District rates or additional 3rd-party user fees and charges (i.e. fees/charges attributable to other agencies). ________________________________________________________________________________________________________________________________________________________________________________________________SB County permits for both on-site private sewer and road/sidewalk. 180
Extension of Service by Contract____________________ Application Form (FOR LAFCO USE ONLY)(d) If financing is to occur, please provide any special financial arrangement between the agency and the property owner, including a discussion of any later repayment or reimbursement (If available, a copy of the agreement for repayment/reimbursement is to be provided). ________________________________________________________________________________________________________________________________________________________________________________________________11 Does the City/District have any policies related to extending service(s) outside its boundary? YES NO. If yes, has a copy been provided to LAFCO? YES NO. If not, please include a copy of the policy or policies (i.e. resolution, municipal code section, etc.) as part of the application. ________________________________________________________________________________________________________________________________________________________________________________________________CCEERRTTIIFFIICCAATTIIOONNAs a part of this application, the City of Chino, agrees to defend, indemnify, hold harmless, promptly reimburse San Bernardino LAFCO for all reasonable expenses and attorney fees, and release San Bernardino LAFCO, its agents, officers, attorneys, and employees from any claim, action, proceeding brought against any of them, the purpose of which is to attack, set aside, void, or annul the approval of this application or adoption of the environmental document which accompanies it.This indemnification obligation shall include, but not be limited to, damages, penalties, fines and other costs imposed upon or incurred by San Bernardino LAFCO should San BernardinoLAFCO be named as a party in any litigation or administrative proceeding in connection with this application.The agency signing this application will be considered the proponent for the proposed action(s) and will receive all related notices and other communications. I understand that if this application is approved, the Commission will impose a condition requiring the applicant to indemnify, hold harmless and reimburse the Commission for all legal actions that might be initiated as a result of that approval.
See attached City Council Resolution No. 2022-041N/A
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Extension of Service by Contract____________________ Application Form (FOR LAFCO USE ONLY)I hereby certify that the statements furnished above and in the attached exhibits present the data and information required for this evaluation of service extension to the best of my ability, and that the facts, statement and information presented herein are true and correct to the best of my knowledge and belief. SIGNED ________________________________ NAME: _____________________________POSITION TITLE: _____________________________DATE: _____________________________REQUIRED EXHIBITS TO THIS APPLICATION: 1. Copy of the agreement/contract.2. Map(s) showing the property to be served, existing agency boundary, the location of theexisting infrastructure, and the proposed location of the infrastructure to be extended.3. Certified Plan for Service (if submitted as a separate document) including financingarrangements for service.Please forward the completed form and related information to: Local Agency Formation Commission for San Bernardino CountySan Bernardino, CA 92415-0490PHONE: (909) 38--Rev: krm 8/19/2015 Jesus PlasenciaAssistant City Engineer11/16/23Jesus Plasencia 182
EXHIBIT APROPERTY DESCRIPTIONThat certain real property in the County of San Bernardino, State of California, legally described as follows:
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Exhibit C
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185
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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 ____ __________, 202_, by and between the City of Chino, a municipal corporation , hereinafter referred to as “City”, and Chino East Industrial , LLC, a Delaware limited liability company , hereinafter referred to as “Owner.”
RECITALS
A. Owner owns that certain real property located at 11708 East End Avenue , Chino, CA (APNs 1013-271-01 and 1013 -261-17) 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 exist ing 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 determ ines 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 construc ts those certain Sewer main improvements on Placentia Road sh own in Exhibit “B” attached hereto (“Sewer Main Improvements”) based on a Public Improvement Agreement to be entered into between the City and Owner as a condition to plan check approval for the Sewer connection.
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.
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AGREEMENT
NOW, THEREFORE, the Parties agree as follows:
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 Officia l 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 d eliver it to City for execution after which Cit y shall have it recorded in the Official Records and send a recorded copy to Owner.
3. Owner’s Representations and Warranties . Owner represents and wa rrants 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 du ring 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. (iii) Additionally, as a condition to plan check approval by the City for the connection of the Sewer, owner shall enter into a Public Improvement Agreement with the City committing to perform the Sewer Main Improvements shown in Exhibit B and as shall be further described in the Public Improvement Agreement within the timeline to be set forth therein, providing applicable bonds for such Sewer main Improvements, complying with the public works procedures and standards imposed by City pursuant to such agreement an d all other relevant provisions therein. Owner acknowledges that it has been provided with a copy of the City’s standard Public Improvement Agreement and agrees to the use of such form and terms.
(b) Sewer Connection. Owner shall (i) pay all fees, charges, a nd deposits required by the City for connection to and use of the Sewer including but not limited to fees for Sewer Maintenance and IEUA Sewage Treatment ; (ii) shall complete all improvements 188
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required to extend the Sewer to the Property, in accordance with City standards (as determined by the City Engineer), at Owner’s sole expense; and (iii) shall comply with all City codes and standards regarding use of the Sewer, in cluding but not limited to, discharge regulations. At such time Owner completes the Sewer Main Improvements, owner shall have nor further liability or obligation with respect to the Sewer Main Improvements except as otherwise provided in this Section 4(b).
5. Extension of Se wer Servic es. City agrees to allow the Property to connect t o the Sewer, subject to Owner’s compliance with t he terms of this 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 Lan d. 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 Cove nant. Provided Owner i s 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 Chi no. Upon con firmation of 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 e xecuted 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 poten tially preventing 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 di fficult or impractical 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 an d 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 du e whether or not Owner ’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 Agreement, City ma y provide writte n 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 189
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the City, Owner shall be liable 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. (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 then 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 sam e in the United States 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: Chino East End Industrial, LLC
C/o Jennifer Dorgan
2010 Main Street, 8th Floor
Irvine, CA 92614-7214
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) ho urs 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 remain 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 e nforced in accordance with the laws of the State of Californi a and any legal action shall be brought in a court of competent jurisdiction in San Bernardino County. 190
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(c) Attorney's Fees. In the event of any litigation or other legal proceeding arising from this Agreement, the prevailing party will be entitled to reco ver, in addition to any other relief awarded or grant ed, its re asonable costs and e xpenses, including attorney's fees, incurred in the proceeding.
(d) Final Agreement . This Agreement contains the entire understandi ng and agreement with respect to the subje ct matt er of thi s Agreement and all prior 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 en force any term, cov enant, or condit ion of this Agreement shall not be construed as a waiver of the right to enforc e 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 whic h shall be an or iginal but all of which sh all con stitute o ne 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:
Natlie Gonzaga, City Clerk
APPROVED AS TO FORM: APPROVED AS TO CONTENT:
ALESHIRE & WYNDER, LLP
Fred Galante, City Attorney Warren Morelion, AICP
Director of Development Services Department
OWNERS:
By:
Name:
By:
Name:
[OWNERS’ SIGNATURES 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:
PARCEL 1:
LOT 37 OF SECTION 33, TOWNSHIP 1 SOUTH, RANGE 8 WEST, IN T HE COUNTY O F
SAN BERNARDINO, STATE OF CALIFORNIA, ACCORDING TO MAP OF SUBDIVISION OF
PART OF RANCHO SANTA ANA DEL CHINO, ACCORDING TO PLAT THEREOF RECORDED IN BOOK 6, PAGE 15 OF MAPS, RECORDS OF SAID COUNTY.
TOGETHER WITH THE SOUTH ONE-HALF OF THAT PORTION OF FRANCIS (FRANKLIN) AVENUE VACATED BY RESOLUTION NO. 2008 -28 OF THE BOARD OF SUPERVISORS
OF THE COUNTY OF SAN BERNARDINO, A CERTIFIED COPY OF WHICH WAS RECORDED FEBRUARY 12, 2000, AS INSTRUMENT NO. 2000050455, OF OFFICIAL RECORDS. EXCEPT THAT PORTION OF SAID LOT 37, DESCRIBED IN THE DEED TO THE COUNTY OF SAN BERNARDINO, RECORDED APRIL 21, 2009, AS INSTRUMENT NO. 2009-0168946, OF OFFICIAL RECORDS.
PARCEL 2:
THAT PORTION OF LOT 28, AND FRANCIS (FRANKLIN) AVENUE COINCIDENT THERETO, OF THAT CERTAIN TRACT ENTITLED “RANCHO SANTA ANA DEL CHINO” RECORDED AUGUST 8, 1887, IN BOOK 6, PAGE 15 OF MAPS, R ECORDS OF THE
COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, SAID PORTION BEING DESCRIBED AS FOLLOWS:
THAT ENTIRE PARCEL OF LAND DESCRIBED IN THAT CERTAIN DEED RECORDED MAY 29, 1911, AND RECORDED IN BOOK 475, PAGE 16, OF DEEDS, RECORDS OF SAID COUNTY, SAID DESCRIPTION IN SAID DEED BEING RESTATED BELOW AS RECORDED:
BEGINNING AT THE S OUTHEAST CORNER OF THE NORTHEAST QUARTER OF SECTION 33, TOWNSHIP 1 SOUTH, RANGE 8 WEST , SA N B ERNARDINO BASE MERIDIAN, RUNNING THENCE NORTH ALONG THE CENTER OF ROAD 33 FEET;
THENCE WEST ALONG THE NORTH SIDE OF ROAD 133-53 FEET;
THENECE NORTH 62o 59’ WEST 399.36 FEET TO THE LOS ANGELES COUNTY LINE;
THENCE ALONG THE SAID LOS AN GELES COUNTY LINE SOUTH 17o 12’ WEST 223.05 FEET TO CENTER OF SAID ROAD PRODUCED.
THENCE EAST ALONG CENTER OF SAID ROAD 555.25 FEET TO PLACE OF BEGINNING.
APNs: 1013-271-01-0-000 & 1013-261-17-0-000
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EXHIBIT B
SEWER MAIN IMPROVEMENTS
[attached]
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