LANDSCAPE AND STORMWATER MAINTENANCE & ACCESS AGREEMENT LOVES TRAVEL CENTER AND SPEEDCO TIRE SHOP- S. ROGERS ROAD Date: 11/18/22
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
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(Space above this line for recorder’s use)
LOVES TRAVEL CENTER & SPEEDCO TIRE
SHOP
55 S. Rogers Road & 93 S. Rogers Road, Patterson, CA 95363 APN# 021-093-003
(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 Love’s Country Stores of California (“Developer”). City and Developer 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:
A. In accordance with the recommendations of the Planning Commission (“Commission”), the City Council for City (“City Council”) approving an application for Conditional Use Permit #19-07 and Architectural & Site Plan Review #19-07 to develop a Commercial Gasoline and Retailer/Tire Shop facility (the “Project”) within the South Rogers Road Master Development Plan area.
LANDSCAPE AND STORMWATER MAINTENANCE & ACCESS AGREEMENT LOVES TRAVEL CENTER AND SPEEDCO TIRE SHOP- S. ROGERS ROAD Date: 11/18/22
B. The Project is located on parcels located at 55 S. Rogers Road & 93 S. Rogers Road, Patterson, California, Stanislaus County Assessor’s Parcel Number 021-093-003 (the “Subject Property”), as shown in more detail in Exhibits A and Exhibit B.
C. As a condition of approval of the Project, Developer has installed, constructed, and agreed to perpetually maintain and repair all 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-1, with the exception of the landscaped slope area described in Exhibit E.
The SCM (as hereafter defined) 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 which is located on a separate parcel, not owned by Developer. 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 of such property in accordance to all the terms of this Agreement, and Developer shall be responsible only for those SCMs installed on property owned by Developer. The storm drainage basin installed at this development will be private and the basin will be owned and maintained by the owner(s) of the property on which the drainage basin is installed. Therefore, maintenance of the basin remains private under the responsibility of the owner of the property on which the drainage basin is installed. Additionally, the Developer agrees to enroll in the City’s Fats, Oils, and Grease (F.O.G.) Program, which will require maintenance reports to 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 Developer 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-2.
E. As a condition of approval, Developer shall maintain the landscaping for the Onsite Improvements at the location shown in Exhibit C-1 that are within the boundaries of the Subject Property (“Civil Public Improvements”), except for the sloped area as Described in Exhibit E, which shall not be the responsibility of Developer.
F. City and Developer 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, full capture trash screens, etc. installed as part of the Project on the Subject Property (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:
AGREEMENT
LANDSCAPE AND STORMWATER MAINTENANCE & ACCESS AGREEMENT LOVES TRAVEL CENTER AND SPEEDCO TIRE SHOP- S. ROGERS ROAD Date: 11/18/22
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
Exhibit B Site Map
Exhibit C-1 Approved Onsite Civil Improvement Plans
Exhibit C-2 Approved Offsite Civil Public Improvement Plans Exhibit D Operations & Maintenance Plan
Exhibit E Slope Area and Access Area for Maintenance Purposes Section 3. Developer Responsibilities and Rights. Developer shall perform all Project Maintenance, subject to the terms and conditions of this Agreement. Project Maintenance includes the following:
Section 3.1. Permit Required. Developer 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. Developer shall routinely and regularly maintain all Onsite Improvements, including the storm drain interceptor, post-construction stormwater treatment control measures (SCMs) installed on the Subject Property, including any vegetated swales, temporary/permanent storm basins, bio-filtration area(s), trash capturing devices, etc., as shown on the approved onsite improvement plans, referenced as Exhibit C-1. This routine maintenance includes keeping the storm drain interceptor and stormwater treatment control BMPs clean and clear of debris and properly maintained.
Developer 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 to this Agreement, and to the satisfaction of the Public Works Department.
Section 3.3. Landscaping and Storm Drainage System. Developer shall plant and maintain, all Onsite Improvements including all trees and other landscaping, stormwater treatment BMPs/control measures/LID improvements, and or vegetated swales 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. Developer 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 LOVES TRAVEL CENTER AND SPEEDCO TIRE SHOP- S. ROGERS ROAD Date: 11/18/22
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, Developer 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 Developer 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 Developer 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 Developer 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 Developer 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, Developer shall maintain the backflow protection device constructed as part of the Onsite Civil Improvements as shown on Exhibit C-1 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 Developer’s business activities on the Subject Property.
Section 4.3. In the event of an emergency situation or if City reasonably 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, Developer 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 LOVES TRAVEL CENTER AND SPEEDCO TIRE SHOP- S. ROGERS ROAD Date: 11/18/22
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 Developer, at the sole cost of Developer. Notwithstanding the foregoing, Developer 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 Offsite Civil Public Improvements shown in Exhibit C-2.
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 Developer 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, Developer shall be in default of this Agreement (“Default”). Upon receipt of a notice from City, Developer shall have sixty (60) days to cure such failure in accordance with the terms set forth by City (the “Cure Period”). If Developer fails to cure such failure to City’s reasonable specifications and parameters, Developer 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 District(s), 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 Developer of its obligations in this Agreement or serve as a basis or defense against City seeking to bring an action against Developer for any damages arising from the breach of any term or condition of this Agreement by Developer.
Section 8. Indemnity. Developer 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 Developer’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 Developer 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 similar couriers providing overnight delivery. If personally delivered, a notice shall be deemed to have
LANDSCAPE AND STORMWATER MAINTENANCE & ACCESS AGREEMENT LOVES TRAVEL CENTER AND SPEEDCO TIRE SHOP- S. ROGERS ROAD Date: 11/18/22
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 (ii) 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:
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 Plaza
City Hall
Patterson, California 95363
Tel: (209) 895-8000
Fax: (209) 895-8019
If to Developer: Love’s Country Stores of California
ATTN: Rick Shuffield
10601 N. Pennsylvania Avenue
Oklahoma City, OK 73120
LANDSCAPE AND STORMWATER MAINTENANCE & ACCESS AGREEMENT LOVES TRAVEL CENTER AND SPEEDCO TIRE SHOP- S. ROGERS ROAD Date: 11/18/22
Tel: (405) 302-6646
Fax: (405) 936-7423
Section 10. 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.
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.
LANDSCAPE AND STORMWATER MAINTENANCE & ACCESS AGREEMENT LOVES TRAVEL CENTER AND SPEEDCO TIRE SHOP- S. ROGERS ROAD Date: 11/18/22
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 LOVES TRAVEL CENTER AND SPEEDCO TIRE SHOP- S. ROGERS ROAD Date: 11/18/22
DEVELOPER: Love’s Country Stores of California
By:
Name and Title:
LANDSCAPE AND STORMWATER MAINTENANCE & ACCESS AGREEMENT LOVES TRAVEL CENTER AND SPEEDCO TIRE SHOP- S. ROGERS ROAD Date: 11/18/22
NOTARY ACKNOWLEDGMENT
State of California )
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County of ____________ )
On _________________, 20 , before me, , Notary Public,
personally appeared , who proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Notary Public [Seal]
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.
LANDSCAPE AND STORMWATER MAINTENANCE & ACCESS AGREEMENT LOVES TRAVEL CENTER AND SPEEDCO TIRE SHOP- S. ROGERS ROAD Date: 11/18/22
EXHIBIT “A’
LEGAL DESCRIPTION
. For APN/Parcel ID(s): 021-091-012-000 (portion)
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF
PATTERSON, COUNTY OF STANISLAUS, STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS:
Parcel 3 as per that certain parcel map thereof filed for record November 19, 2019 in Book 58 of Parcel Maps, at page 05, Stanislaus County Records
APN: 021-021-012 (portion)
LANDSCAPE AND STORMWATER MAINTENANCE & ACCESS AGREEMENT LOVES TRAVEL CENTER AND SPEEDCO TIRE SHOP- S. ROGERS ROAD Date: 11/18/22
EXHIBIT “B”
SITE MAP
LANDSCAPE AND STORMWATER MAINTENANCE & ACCESS AGREEMENT LOVES TRAVEL CENTER AND SPEEDCO TIRE SHOP- S. ROGERS ROAD Date: 11/18/22
EXHIBIT “C-1”
APRPOVED ONSITE CIVIL IMPROVEMENT PLANS (APPROVAL DATE:03/01/21)
LANDSCAPE AND STORMWATER MAINTENANCE & ACCESS AGREEMENT LOVES TRAVEL CENTER AND SPEEDCO TIRE SHOP- S. ROGERS ROAD Date: 11/18/22
EXHIBIT “C-2”
APRPOVED OFFSITE CIVIL PUBLIC IMPROVEMENT PLANS FOR SPERRY AVENUE (APPROVAL DATE:06/15/21)
LANDSCAPE AND STORMWATER MAINTENANCE & ACCESS AGREEMENT LOVES TRAVEL CENTER AND SPEEDCO TIRE SHOP- S. ROGERS ROAD Date: 11/18/22
EXHIBIT “C-2” (CONTINUED)
APRPOVED OFFSITE CIVIL PUBLIC IMPROVEMENT PLANS FOR ROGERS ROAD (APPROVAL DATE:06/15/21)
LANDSCAPE AND STORMWATER MAINTENANCE & ACCESS AGREEMENT LOVES TRAVEL CENTER AND SPEEDCO TIRE SHOP- S. ROGERS ROAD Date: 11/18/22
EXHIBIT “D”
OPERATIONS & MAINTENANCE MANUAL (SEE ATTACHED)
Operation and Maintenance Responsibility Plan: The owner of the property, Love’s Travel Center and Speedco Tire Shop, 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 LOVES TRAVEL CENTER AND SPEEDCO TIRE SHOP- S. ROGERS ROAD Date: 11/18/22
LANDSCAPE AND STORMWATER MAINTENANCE & ACCESS AGREEMENT LOVES TRAVEL CENTER AND SPEEDCO TIRE SHOP- S. ROGERS ROAD Date: 11/18/22
LANDSCAPE AND STORMWATER MAINTENANCE & ACCESS AGREEMENT LOVES TRAVEL CENTER AND SPEEDCO TIRE SHOP- S. ROGERS ROAD Date: 11/18/22
LANDSCAPE AND STORMWATER MAINTENANCE & ACCESS AGREEMENT LOVES TRAVEL CENTER AND SPEEDCO TIRE SHOP- S. ROGERS ROAD Date: 11/18/22
EXHIBIT E
SLOPE AREA(S) ACCESS SITE MAP (LOT A1, LOT B1, AND LOT C1) (Access Areas highlighted in Orange)