Recording Requested by
CITY OF PATTERSON
After Recording Return to
CITY OF PATTERSON
ATTN: CITY CLERK
POST OFFICE BOX 667
1 PLAZA
PATTERSON, CA 95363
(Space above this line for recorder's use)
PATTERSON CENTER, LLC
(GROCERY OUTLET BARGIN MARKET & DUTCH BROS.
COFFEE
2900 & 2930 Sperry Avenue, Patterson, CA 95363
APN# 021-093-005
(Resolution Attached)
LANDSCAPE & STORMWATER TREATMENT CONTROL MEASURES
(SCMs) MAINTENANCE & ACCESS AGREEMENT
THIS LANDSCAPE & STORMWATER TREATMENT CONTROL MEASURES (SCMs) MAINTENANCE & ACCESS AGREEMENT, (the "Agreement") is made and entered into _ _ day of 2022 (the "Effective Date"), by and between the City of Patterson ("City"), a California municipal corporation, and Patterson Center, LL.C, a California limited liability company, ("Owner").
City and Owner each are referred to herein separately as "Party" and collectively as the "Parties". There are no other parties to this Agreement.
RECITALS
This Agreement is being entered with reference to the following facts:
In accordance with the recommendations of the Planning Commission ("Commission"), the City Council for City ("City Council") approving applications for Architectural & Site Plan Reviews #21-01 and #21-02 and Conditional Use Permit #21-02 to
LANDSCAPE AND STORMWATER MAINTENANCE & ACCESS AGREEMENT 2900 & 2930 SPERRY AVENUE
Date: 9/13/22
develop a retail grocery store and coffee drive thru facility (the "Project") within the South Rogers South Master Development Plan area.
B. The Project is located on parcels located at 2900 and 2930 Sperry Avenue, Patterson, California, Stanislaus County Assessor's Parcel Number 021-093-005 (the "Subject Property"), as shown in more detail in Exhibits A and Exhibit B.
As a condition of approval of the Project, Owner has installed, constructed, and agreed to perpetually maintain and repair any stormwater treatment control devices and adequate landscaping on the Subject Property (the "Private Improvements"), as shown in more detail in the approved improvement plans, referenced as Exhibit C. The SCM have been installed in accordance with plans and specification accepted by the City of Patterson; SCM has been installed on private property and draining into a private owned storm drainage basin. Therefore, the SCM installed on-site will be used to treat all stormwater onsite before it enters the private storm basin. The SCMs installed are "private" facilities with all maintenance or replacement to be the sole responsibility of the Owner in accordance with the terms of this agreement. The storm drainage basin will be private until the basin is completed and the basin has been dedicated to the city as a public facility. Therefore, maintenance of the basin remains private under the property owner's responsibility. Additionally, the Owner agrees to enroll in the City's Fats, Oils, and Grease (F.O.G.) Program, which will require maintenance reports be submitted to the City on a regular basis and/or upon request of the City.
D. The City's approval of the Project was conditioned upon Owner satisfying certain conditions, which included the obligation to construct and dedicate to City certain offsite improvements near the Subject Property (the "Civil Public Improvements"), as shown in more detail in the approved improvement plans, referenced as Exhibit C.
E. As a condition of approval, Owner shall maintain the landscaping for the Onsite Improvements at the location shown in Exhibit C ("Civil Public Improvements").
City and Owner desire to enter into this Agreement to clearly define the responsibilities for both Parties with respect to the Civil Improvements and Stormwater Treatment Control Measures (SCMs), including on-site storm drain inlets, trash receptacles, etc. installed as part of the Project (collectively, the "Project Maintenance").
NOW, THEREFORE, in consideration of the foregoing and the covenants and agreements contained in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
LANDSCAPE AND STORMWATER MAINTENANCE & ACCESS AGREEMENT 2900 & 2930 SPERRY AVENUE
Date: 9/13/22
AGREEMENT
Section 1. Recitals. The Recitals above are true and correct and are hereby incorporated into and made part of this Agreement. In the event of inconsistency between the Recitals and the provisions of Sections 1 through 11, the provisions of Sections 1 through 11 shall prevail.
Section 2. Exhibits. The following Exhibits are attached to and incorporated into this Agreement:
Exhibit Designation Exhibit Description
Exhibit A Legal Description (see attached)
Exhibit B Site Map
Exhibit C Approved Civil Public Improvement Plans
Exhibit D Operations & Maintenance Plan
Section 3. Owner Responsibilities and Rights. Owner shall perform all Project Maintenance, subject to the terms and conditions of this Agreement. Project Maintenance includes the following:
Section 3.1. Permit Required. Owner shall obtain a permit and approval from City before establishing any future connections to the City's water, sewer, and storm systems.
Section 3.2. Routine Maintenance. Owner shall routinely and regularly maintain all Onsite Improvements, including the post-construction stormwater treatment control measures (SCMs) installed on the Subject Property, including any landscaping and/or permanent storm drainage basins, bio filtration area(s), trash receptacles, etc., and shown on the approved improvement plans, referenced as Exhibit C.
This routine maintenance includes keeping all storm water treatment control BMPs clean and clear of debris and properly maintained. Owner shall participate in and remain in compliance with the City's Fats, Oils, and Grease (F.O.G.) Control Program for on-going maintenance (storm/sewer) per Operations & Maintenance Manual, Exhibit D, and to the satisfaction of the Public Works Department.
Section 3.3. Landscaping and Storm Drainage System. Owner shall plant and maintain, all Onsite Improvements including all trees and other landscaping, stormwater treatment BMPs/control measures/LID improvements located on the Subject Property and as shown on Exhibit C. All trees shall be planted, maintained and replaced in accordance with the City's Street Tree Plan and Approved Tree List, per the City's municipal code.
Section 3.4. Assembly Bill 1881. Owner will own, maintain and replace all landscaping, including the planter installed on private property within the Subject Property in accordance with all
LANDSCAPE AND STORMWATER MAINTENANCE & ACCESS AGREEMENT 2900 & 2930 SPERRY AVENUE
Date: 9/13/22
applicable local and state laws, including the requirements established by Assembly Bill 1881 (Reg. Sess. 2005-2006) ("AB 1881") and Chapter 15.48 of the City of Patterson Municipal Code. Before changing any landscaping or irrigation system within the Subject Property or at the location of Offsite Public Improvements, Owner shall submit such proposed changes (the "Proposed Plans") to the City for review and shall not commence such changes until City provides written approval, such approval shall not to be unreasonably withheld, conditioned or delayed. City shall have fifteen (15) days following its receipt of the Proposed Plans to either approve or disapprove the Proposed Plans, in its reasonable discretion, by delivering written notice to Owner of its approval or disapproval of the Proposed Plans ("Approval Notice" or "Disapproval Notice", as applicable). If City disapproves the Proposed Plans, then City shall give specific reasons therefor in the Disapproval Notice, whereupon Owner shall have fifteen (15) days following its receipt of the Disapproval Notice to submit to City revised plans and specifications for the landscaping and/or irrigation system (the "Revised Plans"). City shall have fifteen (15) days following its receipt of the Revised Plans to either approve or disapprove the Revised Plans, in its reasonable discretion, by delivering written notice to Owner of its approval or disapproval of the Revised Plans. The foregoing process shall continue until the Proposed Plans (or the Revised Plans) have been finally approved by City in an Approval Notice. If City fails to approve or disapprove the Proposed Plans or Revised Plans, as applicable, within the time period specified above, said plans shall be deemed approved. For any change to the landscaping or irrigation system within the Subject Property Owner shall also complete and submit an AB 1881 Audit and Certification to City.
Section 3.5. Backflow Protection Device. In addition to the maintenance and landscaping requirements set forth in Section 3 of this Agreement, Owner shall maintain the backflow protection device constructed as part of the Offsite Public Improvements as shown on Exhibit C in accordance with City standards even if the device is located within a public right-of-way.
Section 4. City Responsibility and Rights.
Section 4.1. City shall own, maintain, repair and replace the water meters, and the water meter boxes for the Project, as it deems necessary.
Section 4.2. City and City's employees, officials, representatives, commissioners, officers, contractors, and members ("City's Agents") have the right to enter the Subject Property from time to time during normal business hours to inspect the water meters, water meter boxes, fire hydrants, and Project Maintenance to ensure compliance with all applicable maintenance requirements and regulations. City Agents shall not unreasonably interfere with Owner's business activities on the Subject Property.
Section 4.3. In the event of an emergency situation or if City determines that public health, safety or welfare are likely to be harmed, City and City's Agents shall have the right to enter any portion of the Subject Property necessary to resolve the issue or abate the danger or emergency. In such situation, Owner shall provide City and City's Agent's with access to the water meters and water boxes as the City deems necessary for meter reading, maintenance, repair, or replacement.
LANDSCAPE AND STORMWATER MAINTENANCE & ACCESS AGREEMENT 2900 & 2930 SPERRY AVENUE
Date: 9/13/22
Section 4.4. City or a qualified third party approved by City will test all backflow devices installed on any of the water meters installed on the Subject Property on an annual basis at a schedule to be reasonably determined by City and Owner, at the sole cost of Owner. Notwithstanding the foregoing, Owner shall only be responsible for the actual, documented out-of-pocket cost of any such testing.
Section 4.5. The Parties acknowledge and agree that City owns and shall maintain all water, sewer, and storm drain lines within the public rights-of-way adjacent to the Subject Property, including the Civil Improvements shown in Exhibit D.
Section 5. Term of Agreement. This Agreement is binding upon the Parties, their successors and assigns and the agreements and covenants contained in this Agreement run with the land and with title to the Subject Property. Termination of the Agreement must be mutually agreed to in writing by the Parties.
Section 6. Default. In the event Owner fails to properly perform Project Maintenance, including but not limited to maintaining, or causing to be maintained, the Offsite Public Improvements and Onsite Improvements and associated landscaping as set forth in Section 3 of this Agreement, beyond any applicable notice and cure period, Owner shall be in default of this Agreement ("Default"). Upon receipt of a notice from City, Owner shall have sixty (60) days to cure such failure in accordance with the terms set forth by City (the "Cure Period"). If Owner fails to cure such failure to City's reasonable specifications and parameters, Owner agrees to participate in and not protest the inclusion and annexation of the Subject Property into any appropriate Landscape Maintenance District, Benefit Assessment District, Community Facilities Districts), or any other assessment or financing vehicle City reasonably deems appropriate to provide proper maintenance of the Onsite Improvements and Offsite Public Improvements.
Section 7. Waiver. City or City's officers, employees, agents, representatives or contractors may inspect or make statements indicating that certain work or materials used to complete construction of the Project Maintenance comply with this Agreement. There may also be acceptance of certain Offsite Public Improvements or payments associated with the Offsite Improvements by City. None of these acts or statements shall relieve Owner of its obligations in this Agreement or serve as a basis or defense against City seeking to bring an action against Owner for any damages arising from the breach of any term or condition of this Agreement by Owner.
Section 8. Indemnity. Owner shall hold harmless, indemnify, and defend City and City's Agents from all liability that may be incurred by City as a result of any injuries to persons or damage to property arising out of or attributable to Owner's Project Maintenance including construction or maintenance of the Onsite Improvements and Offsite Public Improvements, except for such liability directly resulting from City's negligence or willful misconduct.
Section 9. Notices. Any notice or communication required hereunder between City and Owner must be in writing, and may be given either personally, by facsimile (with original forwarded by regular U.S.
Mail), by registered or certified mail (return receipt requested), or by Federal Express, UPS or other
LANDSCAPE AND STORMWATER MAINTENANCE & ACCESS AGREEMENT 2900 & 2930 SPERRY AVENUE
Date: 9/13/22
similar couriers providing overnight delivery. If personally delivered, a notice shall be deemed to have been given when delivered to the Party to whom it is addressed. If given by facsimile transmission, a notice or communication shall be deemed to have been given and received upon actual physical receipt of the entire document by the receiving party's facsimile machine. Notices transmitted by facsimile after 5:00 p.m. on a normal business day or on a Saturday, Sunday or holiday shall be deemed to have been given and received on the next normal business day. If given by registered or certified mail, such notice or communication shall be deemed to have been given and received on the first to occur of (i) actual receipt by any of the addressees designated below as the party to whom notices are to be sent, or (il) five (5) days after a registered or certified letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail. If given by Federal Express or similar courier, a notice or communication shall be deemed to have been given and received on the date delivered as shown on a receipt issued by the courier. Any Party hereto may at any time, by giving ten (10) days written notice to the other Party hereto, designate any other address in substitution of the address to which such notice or communication shall be given. Such notices or communications shall be given to the Parties at their addresses set forth below:
LANDSCAPE AND STORMWATER MAINTENANCE & ACCESS AGREEMENT 2900 & 2930 SPERRY AVENUE
Date: 9/13/22
If to City: City of Patterson
ATTN: City Clerk
1 Plaza
City Hall
Patterson, California 95363
Tel: (209) 895-8000
Fax: (209) 895-8019
With courtesy copy to: City of Patterson
ATTN: City Manager
1 Plaza
City Hall
Patterson, California 95363
Tel: (209) 895-8000
Fax: (209) 895-8019
and
City of Patterson
ATTN: City Attorney
1 Plazar
City Hall
Patterson, California 95363
Tel: (209) 895-8000
Fax: (209) 895-8019
If to Owner: Patterson Center, LLC
ATTN: Carl E. Best, Manager
2580 Sierra Blvd., Suite E
Sacramento, CA 95825
Tel: (916) 486-2694
Fax: (916) 486-0559
And Patterson Center, LLC
ATTN: Terry Johnson
Best Development Group
2580 Sierra Blvd., Suite E
Sacramento, CA 95825
Tel: (916) 482-8330
Fax: (916) 486-0559
Email: [email protected]
LANDSCAPE AND STORMWATER MAINTENANCE & ACCESS AGREEMENT 2900 & 2930 SPERRY AVENUE
Date: 9/13/22
Heirs, Successors and Assigns. This Agreement shall be recorded and shall apply to all future owners of any portion of the Subject Property. Any subsequent transferee of the Subject Property, or any part thereof, by acceptance of a deed or conveyance of the said property shall be deemed to have consented to and become bound by the terms of this Agreement. This Agreement shall be binding on the heirs, successors, and assigns of the Parties.
Section 11. General Provisions.
Section 11.1. Modification of Agreement. This Agreement may be supplemented, amended, or modified only by the mutual agreement of the Parties. No supplement, amendment, or modification of this Agreement will be binding unless it is in writing and signed by all the Parties. No provisions in either Party's correspondence or other business forms used by either Party will supersede or add to the terms and conditions of this Agreement.
Section 11.2. Entire Agreement. This Agreement and all other agreements and exhibits referenced in this Agreement constitutes the final, complete, and exclusive statement of the terms of the agreement between the Parties pertaining to the matters pertaining to the Project Maintenance as set forth herein and supersedes all prior and contemporaneous understandings or agreement of the Parties. No Party has been induced to enter into this Agreement by, nor is any Party relying on, any representation or warranty outside those expressly set forth in this Agreement.
Section 11.3. Severability of Agreement. If a court or an arbitrator of competent jurisdiction holds any provision of this Agreement to be illegal, unenforceable, or invalid in whole or in part for any reason, the validity and enforceability of the remaining provisions, or portions of them, will not be affected, unless an essential purpose of this Agreement would be defeated by the loss of the illegal, unenforceable, or invalid provision.
Section 11.4. Intentionally deleted.
Section 11.5. Ambiguities. Each Party and its counsel have participated fully in the review and revision of this Agreement. Any rule of construction that ambiguities are to be resolved against the drafting Party does not apply in interpreting this Agreement.
Section 11.6. Headings. The headings in this Agreement are included for convenience only and neither affect the construction or interpretation of any provision in this Agreement nor affect any of the rights or obligations of the Parties to this Agreement.
LANDSCAPE AND STORMWATER MAINTENANCE & ACCESS AGREEMENT 2900 & 2930 SPERRY AVENUE
Date: 9/13/22
IN WITNESS WHEREOF, the Parties have duly executed this Agreement, with the intention of being bound by it, on the Effective Date set forth above, per attached Resolution.
CITY: City of Patterson, a Municipal Corporation of the State of California By:
Ken Irwin, City Manager Date Signed
Approved as to Form:
Nubia Goldstein, City Attorney Date Signed
Attest By:
Aracely Alegre, City Clerk Date Signed
LANDSCAPE AND STORMWATER MAINTENANCE & ACCESS AGREEMENT 2900 & 2930 SPERRY AVENUE
Date: 9/13/22
OWNER: Patterson Center, LLC, a California limited liability company By:
9-16-22
Carl E. Best, Manager Date Signed
LANDSCAPE AND STORMWATER MAINTENANCE & ACCESS AGREEMENT 2900 & 2930 SPERRY AVENUE
Date: 9/13/22
NOTARY 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 Sacraments
9-16 _ 2022, before me, _ Jan Snyder , Notary Public,
personally appeared Carl E. Bast • 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.
JAN SNYDER
WITNESS my hand and official seal. COMM. #2307278
No Say Pulic - California Sacramento Count
My Comm. Expires Oct. 2, 2023 /
Dan Snyder
Notary Public [Seal]
LANDSCAPE AND STORMWATER MAINTENANCE & ACCESS AGREEMENT 2900 & 2930 SPERRY AVENUE
Date: 9/13/22
EXHIBIT "A'
LEGAL DESCRIPTION (INSERT HERE FOR 2900 & 2930 SPERRY AVENUE)
3. Title is vested in:
Patterson Center, LLC, a California limited liability company
4. The Land referred to in this policy is described as follows:
Real property in the City of Patterson, County of Stanislaus, State of California, described as follows:
PARCEL 5, AS PER THAT CERTAIN PARCEL MAP FOR SPERRY COMMERCIAL PARK - PHASE 1, THEREOF FILED FOR RECORD NOVEMBER 19, 2019, IN BOOK 58 OF PARCEL MAPS, AT PAGE 05, STANISLAUS COUNTY RECORDS.
APN: 021-093-005-000
LANDSCAPE AND STORMWATER MAINTENANCE & ACCESS AGREEMENT 2900 & 2930 SPERRY AVENUE
Date: 9/13/22
XHIBIT "B"
SITE MAP (Project Parameters in Red)
SITE INFORMATION brr
COUPERA MUNCIDAL CODE 1870
LEGEND
Grocery
PRoPeRTY UM!
Outlet
Dutch
Bros.
SPERRY AVENUE
A COUCEPTUAL SITE PLAN - OPTION B
SP1-B
LANDSCAPE AND STORMWATER MAINTENANCE & ACCESS AGREEMENT 2900 & 2930 SPERRY AVENUE
Date: 9/13/22
EXHIBIT "C"
APROVED IMPROVEMENT PLANS - Grocery Outlet 5/19/22 & Dutch Bros 9/12/22
BEST DEVELOPMENT - GROCERY OUTLET
TANISLAL
CIVIL IMPROVEMENT PLANS
CITY OF PATTERSON
STANISLAUS COUNTY, CALIFORNIA
STATE DE CALIFORNLA
-(-
DUTCH BROS. COFFI 209 - PATTERSON. CA
COVER SHEET
2SO0 SPEART ANONE
E
CITY OF PATTERICH GENETIN, NOTES
NOTES EART-HONK ситтка
LEGEND
HOTE
AND /BAVEL NEORRU TOM NOTE
LANDSCAPE AND STORMWATER MAINTENANCE & ACCESS AGREEMENT 2900 & 2930 SPERRY AVENUE
Date: 9/13/22
EXHIBIT "D"
OPERATIONS & MAINTENANCE MANUAL
Operation and Maintenance Responsibility Plan: Grocery Outlet & Dutch Bros.
The Owner of the property, 2900 & 2930 Sperry Avenue, Patterson, CA 95363 (APN# 021-093- 005) shall be responsible for funding, inspecting, and maintaining all improvements onsite.
Maintenance and inspection activities for the identified BMPs will be performed as indicated on the enclosed BMP Maintenance Responsibility/ Frequency Matrix. The Owner shall be responsible for all maintenance and inspection responsibilities for all improvements located within the limits of the project.
LANDSCAPE AND STORMWATER MAINTENANCE & ACCESS AGREEMENT 2900 & 2930 SPERRY AVENUE
Date: 9/13/22
NON-STRUCTURAL BMP MAINTENANCE RESPONSIBILITY/ FREQUENCY MATRIX
BMP RESPONSIBILITY BMP START DATE FREQUENCY
Education for Property Owners, Owner Upon completion of Information to be provided to employees/contractors upon Operators, Tenants, Occupants, or project. hire and residents upon lease signing. Information to Employees
Activity Restrictions Owner Upon completion of Continuous. project.
Imgation System and Landscape Owner Upon completion of Monthly during regular maintenance, manage landscaping Maintenance in accordance with the City of Patterson Water Conservation Ordinance and with the State of Califomia
epartment of Pesticides management guidelines for use
fertilizers and pesticide
Common Area Litter Control Owner Upon completion of Daily inspection oftrash receptacles to ensure thatlids are project. closed and pick up any excess trash on the ground, noting ash disposal violations by tenants or employees an
porting the violations to the ownerforinvestigatic
Drainage Facilty Inspection and Owner Upon completion of Two times annually to clean debris and silt from Maintenance project. drains as needed.
LANDSCAPE AND STORMWATER MAINTENANCE & ACCESS AGREEMENT 2900 & 2930 SPERRY AVENUE
Date: 9/13/22
STRUCTURAL BMP MAINTENANCE RESPONSIBILITY/ FREQUENCY MATRIX
BMP RESPONSIBILITY BMP START DATE FREQUENCY
Descape and l rigation system Owner Upon completion
ofproject.
(SD-10 & SD-12)
LANDSCAPE AND STORMWATER MAINTENANCE & ACCESS AGREEMENT 2900 & 2930 SPERRY AVENUE
Date: 9/13/22
LID BMP MAINTENANCE RESPONSIBILITY/FREQUENCY MATRIX
BMP RESPONSIBILITY BMP START DATE FREQUENCY
Storm Drain Inlet with City Cate fine per ere wilbe ange ed and mediced FloGard+PLUS ® inserts by Kristar
for Water Quality pre-treatment
Biorwale City or prompletion
operation.
LANDSCAPE AND STORMWATER MAINTENANCE & ACCESS AGREEMENT 2900 & 2930 SPERRY AVENUE
Date: 9/13/22