Declaration – Page 1 of 7
FREE RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
CITY OF RIALTO
290 W. Rialto Ave.
Rialto, CA 92376
Attn: City Clerk
Filing Fee Exempt Per Government Code 6103
(For Recorder's Use Only)
______________________________________________________________________
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS TO INSTALL
STREET IMPROVEMENTS UPON NOTICE
THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS TO INSTALL STREET IMPROVEMENTS UPON NOTICE (“ Declaration”) is made and entered into, to be effective this 10th day of May , 2022, by and between the CITY OF RIALTO, a California municipal corporation, (hereinafter referred to as “City”), and PO G Enterprises, LLC, a California limited liability company , (hereinafter referred to as “Owner”). City and Owner are sometimes hereinafter individually referred to as “Party” and are hereinafter collectively referred to as the “Parties”.
RECITALS
A. Owner is the owner of that certain real property located in the City of Rialto , San Bernardino County, State of California, commonly known as 906 S. Riverside Avenue, Rialto, California 92376 , more particularly described on Exhibit “A” attached hereto and incorporated herein by reference, and also identified by County Assessor Parcel Number (“APN”) 0132 -031-03 and 0132 -031-21 (the “Property”). The City has fee or easement interests in various streets, sidewalks and other public property within the City and is responsible for the planning and development of land within the City in such a manner as to provide for the health, safety, and welfare of the residents of the City.
That portion of the City's interest in real property most directly affected by this Declaration is S. Riverside Avenue (the “Public Parcel”). Owner proposes to dedicate right-of-way on S. Riverside Avenue to the City’s current standards.
B. Owner desires to obtain building permits and other discretionary City approvals to construct certain improvements upon the Property related to a new vehicle f ueling
Declaration – Page 2 of 7
station and convenience market identified by the City as Preci se Plan of Design No. 2018-0061 (the “City Approval”). Section 11.04.240 of the Rialto Municipal Code normally requires as a condition precedent to the City Approval, that Owner construct certain public improvements on the Property or the Public Parcel, as more particularly described on Exhibit “B” attached hereto and incorporated herein by reference (the “Public Pa rcel Improvements”). Owner desires to defer the construction of the Public Parcel Improvements and, pursuant to Section 11.04.245, subsection B of the Rialto Municipal Code, the City has determined that the construction of the Public Parcel Improvements can be deferred on the terms more particularly set forth herein.
NOW THEREFORE , the Owner declares, covenants and agrees, by and for itself, its heirs, executors and assigns, and all persons claiming under or through it that the Property shall be held, transferred, encumbered, used, sold, conveyed, leased and occupied subject to the covenants and restrictions hereinafter set forth, which covenants are established expressly and exclusively for the use and benefit of the City and the Public Parcel.
1.0 Covenants, Conditions and Restrictions.
1.1 Dedication of Right-of-Way. Within 5 days of the execution of this Declaration , Owner shall deliver an executed irrevocable offer of the dedication (“Irrevocable Offer”) to the City for the required right -of-way for the Public Parcel in a form approved by the City Attorney and substantively similar to Exhibit “C.” The Irrevocable Offer shall be recorded in the Office of the San Bernardino County Recorder.
1.2 Construction of Improvements on the Public Parcel . At any time after this Declaration is executed by Owner and if one of the following conditions has occurred: (i) over 50 percent of the lineal right -of-way on that side of the Public Parcel and in that block (herein referred to as the “ 50% Qualifier Standard” ) has been constructed to the City’s standard plan ultimate width, or (ii) the City has obtained Declarations from other property owners meeting the 50% Qualifier Standard, or, (iii) the City is prepared to proceed with a public works capital improvement project that will cause construction of the Public Parcel Improvements, then City shall notify Owner in writing that Owner must commence construction of the Public Parcel I mprovements hereby Owner by this Declaration (“Notice”). Within ninety (90) days from the date of the Notice, Owner shall, at its sole cost and expense, (i) pre pare construction drawings, apply for, and receive approval of all necessary permits and approvals required by the City to construct the Public Parcel I mprovements, and (ii) commence construction of the Public Parcel Improvements. The construction of the Public Parcel I mprovements shall be in accordance with all laws, ordinances and regulations of the City and any other governmental entity with jurisdiction in effect at the time construction is commenced.
Owner shall complete the construction of the Public Parcel Improvements no later than one hundred eighty (180) days of the date of the Notice.
Declaration – Page 3 of 7
1.3 Dedication of Improvements . Upon the completion of the construction of the Public Parcel I mprovements and final inspection by the City, Owner shall irrevocably offer to dedicate the Public Parcel Improvements to the City in a form approved by the City Attorney.
1.4 Maintenance of Improvements. Until the dedication of the Public Parcel Improvements is accepted by the City, Owner shall maintain and repair or cause to be maintained and repaired the Public Parcel I mprovements in a first class condition and repair, free of rubbish, debris and other hazards to persons using the same, and in accordance with all applicable laws, rules, ordinances and regulations of all federal, state, and local bodies and agencies having jurisdiction, at Owner ’s sole cost and expense.
1.5 Right of City to Construct Improvements . The City may, at its sole discretion, elect to construct the Public Parcel I mprovements, either alone or as part of a larger project, through the establishment of an improvement district, assessment district, benefit area, or any other lawful plan or procedure for the construction and financing of public improvements (the “District”) . If the City elects to establish a District, Owner hereby agrees to join the District and pay its proportionate share of the cost of constructing the Public Parcel Improvements. Further, Owner hereby waives its right to protest the formation of the District or the imposition of an assessment under the Special Assessment Investigation, Limitation and Majority Protest Act of 1931, California Streets and Highways Code Section 2800 et seq . or any other procedure for the establishment of a District and/or the implementation of an assessment.
1.6 Indemnity. The Owner shall indemnify, defend, and hold harmless the City, its officers, agents and employees from every expense, liability or payment, including injury to persons or damage to property, suffered through any act or omission, including passive negligence or acts of negligence, or both, of the Owner , his employees, agents, contractors, subcontractors, or anyone directly or indirectly employed or arising in any way from Ow ner’s performance or nonperformance of this Declaration, including the performance or nonperformance of the work required by this Declaration. This provision shall not be deemed to require the Owner to indemnify the City against the liability for damage arising from the sole negligence or willful misconduct of the City or its agents, servants or independent contractors who are directly responsible to the City.
1.7 Insurance. Owner shall maintain, or shall require the contractor engaged to perform the work to maintain, at all times during the performance of the work called for herein, a separate policy of insurance in a form and amount acceptable to the City. The City may at any time request, and Owner shall produce to the City, evidence of insurance in conformance with this section.
Declaration – Page 4 of 7
2.0 Enforcement.
2.1 Rights of City. In the event of any violation or threatened violation of any of the provisions of this Declaration, then in addition to, but not in lieu of, any of the rights or remedies the City may have to enforce the provisions hereof, the City shall have the right (i) to enforce the provisions hereof as a party hereto and as an owner of the Public Parcel, (ii) to withhold or revoke, after giving written notice of said violation, any building permits, occupancy permits, certificates of occupancy, business licenses and s imilar matters or approvals pertaining to the Property or any part thereof or interests therein as to the violating person or one threatening violation and (iii) to obtain from a court of competent jurisdiction an injunction against such violation or threatened violation.
2.2 Failure to Perform: Lien . If any owner of the Property defaults on the performance of any of their obligations hereunder, the City, its employees, contractors and agents may, at their sole option, and after making reasonable demand of the owners of the Property that it cures said default, cure the default. In making a cure, the City shall give the owners of the Property, or their representative, notice in writing and at the address described at Section 4.5 below of the time and manner of said action and said action shall only be at such times and in such manner as reasonably necessary to carry out this Declaration. In such event, the owners of the Property shall reimburse the City for all costs and expenses related to the curing of said default plus interest at a rate of ten percent (10%) per annum commencing on the date that is thirty (30) days after the date notice thereof is given and ending on the date said sum is fully repaid. Any and all delinquent amounts, together with said interest, costs and reasonable attorney’s fees shall be a personal obligation of the owners of the Property as well as a lien and charge, with power of sale, upon the Property. The City may bring an action at law against the owners of the Property to pay any suc h sums. The lien provided for in this Section may be recorded by the City as a Notice of Lien against the Property in the Office of the San Bernardino County Recorder, signed and acknowledged, which Notice of Lien shall contain a statement of the unpaid am ount of costs and expenses. Such lien may be enforced and foreclosed in a suit or action brought in any court of competent jurisdiction or in accordance with the provisions of Section 2924 of the California Civil Code applicable to the exercise of powers of sale for mortgages and deeds of trust, or in any other manner permitted by California law. Upon the timely curing of any default for which such lien was recorded, the City shall record an appropriate release of such lien, upon payment by the owner of the Property of a reasonable fee to cover the costs of preparing and recording such release, together with the payment of such other costs, including, without limitation, reasonable attorney’s fees, court costs, interest or other fees which have been incurred.
Declaration – Page 5 of 7
3.0 Covenants to Run With the Land.
3.1 Covenants Running With the Land. This Declaration is designed to create equitable servitudes and covenants appurtenant to the Public Parcel and running with the Property. Owner hereby declares that all of the Property shall be held, sold, conveyed, encumbered, hypothecated, leased, used, occupied and improved subject to the covenants, conditions, restrictions and equitable servitudes, all of which are for the purposes of uniformly enhancing or protecting the value, attractiveness and desirability of the Property and the Public Parcel. The covenants, conditions, restrictions, reservations, equitable servitudes, liens and charges set forth herein shall run with the Property and shall be binding upon all persons having any right, title or interest in the Property, or any part thereof, their heirs, successive owners and assigns; shall inure to the benefit of every portion of the Public Parcel and any interest therein; shall inure to the benefit of the City and its successors and assigns and successors in interest; shall be binding upon the Owner, its successors and assigns and successors in interest; and may be enforced by the City.
3.2 Agreement among Owner and City . In exchange for granting of the City Approval by the City, the Owner hereby agrees to hold, sell and convey the Property subject to t he covenants, conditions, restrictions and reservations of this Declaration.
Owner also grants to the City the right and power to enforce the covenants, conditions, restrictions and reservations contained in this Declaration against the Owner and all persons having any right, title or interest in the Property, or any part thereof, his heirs, successive owners and assigns.
4.0 Miscellaneous.
4.1 Term. The covenants, conditions and restrictions contained in this Declaration shall remain in effect until the Public Parcel Improvements are constructed and accepted by the City, unless otherwise terminated by the City.
4.2 Modification. This Declaration may not be modified, terminated or rescinded, in whole or in part, except by a written instrument duly executed and acknowledged by the parties hereto, their successors or assigns and duly recorded in the Office of the County Recorder, San Bernardino County.
4.3 Governing Law . This Declaration shall be governed by and construed in accordance with the laws of the State of California.
4.4 Severability. The invalidity or inability to enforce any provision of this Declaration with respect to a particular party or set of circumstances shall not in any way affect the validity and enforceability of any other provision hereof, or t he same provision when implied to another party or to a different set of circumstances.
Declaration – Page 6 of 7
4.5 Notices. Any notice to be given under this Declaration shall be given by personal delivery or by depositing the same in the United States Mail, certified or registered, postage prepaid, to the address set forth on the first page of this Declaration.
Any notice delivered personally shall be effective upon delivery. Any notice given by mail as above provided shall be effective forty -eight (48) hours after deposit in the m ail.
Any party may change address for notice by giving written notice of such change to the other party.
4.6 Attorney’s Fees. In any action between the parties seeking enforcement of any of the terms and provisions of this Declaration, the prevailing party in such action shall be awarded, in addition to any damages, injunctive or other relief, its reasonable costs and expenses, including attorney's fees.
4.7 Counterparts. This Declaration 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]
Declaration – Page 7 of 7
IN WITNESS WHEREOF , the parties hereto have executed and entered into this Declaration on the date first written above.
CITY: OWNER:
CITY OF RIALTO, a California
municipal corporation
POG Enterprises, LLC, a California
limited liability company
By: By:
Marcus Fuller, City Manager Signature
ATTEST: Jake Scott
Name
By:
Barbara A. McGee, City Clerk Managing member
Title
APPROVED AS TO FORM:
Burke, Williams & Sorensen, LLP
By:
Eric S. Vail, City Attorney
(Original and notarized signatures of the City and Owner are required.)
Declaration – Exhibit A
EXHIBIT “A”
LEGAL DESCRIPTION OF PROPERTY
Those certain parcels of land identified as Parcel No. 1 and Parcel No. 3 conveyed by Grant Deed recorded July 10, 2018, as Document No. 2018- 0249722, official records of San Bernardino County and more fully described as follows:
Parcel No. 1
The East 350 feet of Lot 156, according to Map showing Subdivision of Lands belong to the Semi -Tropic Land and Water Company, in the City of Rialto, County of San Bernardino, State of California, as per Map Recorded in Book 11, Page 12 of Maps, in the Office of the County Recorder of Said County.
Excepting therefrom the South 332 feet thereof.
Also excepting therefrom the West 155 feet of the South 382 feet thereof.
The area and distance of the above described property are computed to the center of all adjoining streets as shown on said Map.
Also excepting therefrom the South 14.0 feet of the North 44.0 feet of the West 310.0 feet of the East 350.0 feet and the West 4.0 feet of the East 44.0 feet of the South 294.66 feet of the North 338. 66 feet, as conveyed t o the City of Rialto for street and highway purposes, by Deed recorded December 23, 1965 in Book 6538, Page 523 of Official Records.
APN 0132-031-21
Parcel No. 3
The North 60 feet of the South 382 feet of the East 350 feet of Lot 156, according to the Map showing the Subdivision of Lands belong to the Semi -Tropic Land and Water Company, in the City of Rialto, County of San Bernardino, State of California, as per Map Recorded in Book 11, Page 12 of Maps, in the Office of the County Recorder of Said County.
Saving and excepting therefrom the North 50 feet of the East 195 feet thereof.
Also excepting therefrom that portion conveyed to the City of Rialto, for road pur poses, by Deed recorded September 22, 1965, in Book 6477, Page 872 of Official Records.
Areas and distances measured to the center of adjoining streets.
APN 0132-031-03
EXHIBIT “B”
DESCRIPTION OF PUBLIC PARCEL IMPROVEMENTS
DEFERRED BY THIS DECLARATION
The Public Parcel Improvements being deferred by this Declaration generally include any and all work required to fully widen the Public Parcel along the frontage of the Property in accordance with the City’s standards in effect at the time the Public Parcel Improvements are to be constructed. As identified in the City Approval, the Public Parcel Improvements were identified as follows:
Those certain Conditions of Approval generally requiring widening of the west side of Riverside Avenue to its General Plan cross -section standard as a 6-lane divided Major Arterial including construction of a raised and landscaped median across the frontage of the Property, including relocation of existing traffic signal improvements at the southwest corner of Riverside Avenue and Randall Avenue, and all related improvements as further identified under “Engineering Division” including, but not limited to: 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 106 relating to raised median, 107, 109, 111, 113, 114, 115, 116, 117 relating to future driveway approach, 118 relating to future curb ramps, 119 relating to future curb ramp.
EXHIBIT “C”
MODEL DEDICATION
RECORDED AT THE REQUEST OF
AND AFTER RECORDING MAIL TO:
City of Rialto
290 W. Rialto Ave.
Rialto, CA 92376
Attn: City Clerk
APN: 0132-031-03 / 0132-031-21
Space above this line reserved for
recorder’s use Exempt from Recording Fees
(Government Code §27383)
IRREVOCABLE OFFER OF DEDICATION
This Irrevocable Offer of Dedication (the “Offer”) is made on May 10, 2022, by POG Enterprises, LLC, a California limited liability company , (“Offeror”), to the City of Rialto, a California municipal corporation and general law city (“City”) with reference to the following:
Recitals
A. Offeror is the owner of that certain real property located in the City of Rialto, San Bernardino County, State of California, commonly known as 906 S.
Riverside Avenue, Rialto, California 92376, identified by County Assessor Parcel Number (“APN”) 0132-031-03 and 0132-031-21 (the “Property”).
B. Offeror voluntarily agreed to irrevocably offer to dedicate to the City a public right-of-way easement, which may be accepted by the City or some other entity designated by the City at a future date.
C. Offeror now desires to docu ment the offer of the right-of-way easement to City via a separate recorded document that provides more specificity as to the easement, as defined in Section 1 below.
NOW THEREFORE , in consideration of the mutual promises, approvals, and covenants made by the parties and other considerations, the value, adequacy and receipt of which are hereby acknowledged, the parties agree as follows:
1. Irrevocable Offer of Dedication of Right -of-Way. Offeror does hereby irrevocably offer to dedicate to City or an entity designated by the City a right -of-way easement for roads and public use, together with any and all appurtenances pertaining
thereto, over, above, on, under, in, across, along and through that certain portion of the real property located in the City of Rialto more particularly described in Exhibit A, and depicted in Exhibit B, attached hereto and incorporated herein (“Dedicated Property”).
If this Offer is accepted by the City or an entity designated by the City, the City or entity designated by the City shall be responsible for maintaining the Dedicate d Property after the date of acceptance. This Offer is irrevocable and shall be binding upon the Offeror, its heirs, successors, assigns, and all persons claiming an interest in the Property through them.
2. Condition of Title. Offeror warrants that there are no oral or written leases or liens on all or any portion of the Dedicated Property as of the date of this Offer .
Subsequent to the date of this Offer, Offeror agrees to keep the Dedicated Property free and clear of oral or written leases or liens. Offeror agrees to hold City harmless and reimburse City for any and all of its losses and expenses, including attorney’s fees, occasioned by reason of any lease or lien on the Dedicated Property.
3. T
ime and Manner of Acceptanc e. This Offer shall remain in effect until accepted by the City. This Offer may not be terminated, or the right to accept the Offer abandoned, except by Resolution of City’s City Council in the same manner as prescribed for summary vacation of streets or highways by Part 3 (commencing with Section 8300) of Division 9 of the Streets and Highways Code. City or an entity designated by City may accept this Offer by recording an acceptance of the Offer in the Official Records of San Bernardino County. Such acceptance may include a legal description of the Dedicated Property if deemed necessary by City.
4. Us
e of Property Prior To Acceptance o f Offer . The City shall incur no liability with respect to this Offer and shall not assume any responsibility for the Dedicated Property until accepted by the City. Offeror agrees that City and its designees may access the Property to complete a legal description prior to acceptance of the Offer.
5. O
ffer Runs With Land. The provisions of this Offer shall inure to the benefit of and be binding upon the owners of the Property and their heirs, successors or assigns, and any other person claiming an interest in the Site through them.
6. N otification Upon Conveyance or Transfer. Upon the conveyance or transfer of the Property or any portion of the Property, Offeror or its successor, shall advise the purchaser or transferee of the existence of this Offer.
7. C
ounterparts . This Offer may executed by the parties in counterparts.
[Signatures follow on next page]
IN WITNESS WHEREOF, the parties have executed this Offer as of the day and year first written above.
CITY: OFFEROR:
CITY OF RIALTO, a California
municipal corporation
POG Enterprises, LLC, a California
limited liability company
By: By:
Marcus Fuller, City Manager Signature
ATTEST: Jake Scott
Name
By:
Barbara A. McGee, City Clerk Managing Member
Title
APPROVED AS TO FORM:
ACKNOWLEDGMENT
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
________________________
)
On ____________________, before me, ____________________________, a Notary Public, personally appeared _______________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) i s/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
ACKNOWLEDGMENT
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
________________________
)
On ____________________, before me, ____________________________, a 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
Declaration – Exhibit C
EXHIBIT A
Description of Dedicated Property
Declaration – Exhibit C
EXHIBIT B
Depiction of Dedicated Property