RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
City Council
City of Anaheim
c/o City Clerk
P.O. Box 3222
Anaheim, California 92805
This Document was electronWregiVcity
City of Anaheim
Recorded in Official Records, Orange County
Tom Daly, Clerk-Recorder
1111IIHI 11111 1111111 111001011111110111101001 NO FEE 2008000301339 10:46am 0 6/24/08 105 59 Al2 59
0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Fee Exempt Per Gov't Code 6103
(Space Above Line For Recorder's Use)
DEVELOPMENT AGREEMENT
BY AND BETWEEN
CITY OF ANAHEIM
AND
KAISER FOUNDATION HOSPITALS
DEVELOPMENT AGREEMENT NO. 2007-00003
BETWEEN
THE CITY OF ANAHEIM
AND
KAISER FOUNDATION HOSPITALS
TABLE OF CONTENTS
RECITALS
Section 1. DEFINITIONS
1.1 Assessment District
1.2 Authorizing Ordinance
1.3 CITY
1.4 Development
1.5 Development Agreement Date
1.6 Development Agreement Statute
1.7 Development Approvals
1.8 Enabling Ordinance
1.9 Existing Land Use Regulations
1.10 Final Site Plan
1.11 Gross Floor Area/GFA
1.12 Infrastructure Improvement Fund
1.13 Mortgage
1.14 Mortgagee
1.15 OWNER
1.16 Parking Areas
1.17 Permitted Buildings
1.18 Northeast Area Specific Plan
1.19 Procedures Resolution
1.20 Project
1.21 Property
1.22 Support Commercial Uses
1.23 Term
Section 2. TERM
Section 3. BINDING COVENANTS
Section 4. EFFECT OF AGREEMENT
Section 5. PROJECT LAND USES
Section 6. PERMITTED BUILDINGS
6.1 Description of Permitted Buildings
6.2 Parking Areas
Section 7. DENSITY OF PERMITTED BUILDINGS
Section 8. ENFORCEMENT
2 Section 9.
9.1 9.1.1
9.2 9.3
PUBLIC IMPROVEMENTS AND SERVICES
Utilities (Water, Electrical, Gas, Sewer, & Drainage)
Storm and Sewer Drains
Timing, Phasing and Sequence of Public Improvements and Facilities Traffic Circulation Improvements
Section 10. REIMBURSEMENT PROVISION
Section 11. DEDICATIONS AND EXACTIONS
Section 12. FEES, TAXES, ASSESSMENTS, AND COMMUNITY BENEFITS
12.1 Fees, Taxes and Assessments
12.1.1 Infrastructure Improvement Fund
12.2 Community Benefits
12.2.1 Job Training Covenant
12.2.2 Purchase Electric Power
12.2.3 Nondiscrimination Covenants
12.2.4 Other Community Benefits
12.3 City Processing Fees
12.4 Accounting of Funds
12.5 Imposition of Increased Fees, Taxes or Assessments Section 13. TIMING OF DEVELOPMENT
Section 14. EXISTING USES
Section 15. FUTURE APPROVALS
15.1 Basis for Denying or Conditionally Granting Future Approvals
15.2 Standard of Review
15.3 Future Amendments to Final Site Plan
Section 16. AMENDMENT
16.1 Initiation of Amendment
16.2 Procedure
16.3 Consent
16.4 Amendments
16.5 Effect of Amendment to Development Agreement
Section 17. RESOLUTION OF INTENT AND USES FOR THE PROPERTY
17.1 Non-Cancellation of Rights
Section 18. BENEFITS TO CITY
Section 19. BENEFITS TO OWNER
Section 20. UNDERTAKINGS AND ASSURANCES CONTEMPLATED AND
PROMOTED BY DEVELOPMENT AGREEMENT STATUTE
Section 21. RESERVED AUTHORITY
21.1 State and Federal Laws and Regulations
21.2 Model Codes
21.3 Public Health and Safety
Section 22. CANCELLATION
22.1 Initiation of Cancellation
22.2 Procedure
22.3 Consent of OWNER and City
Section 23. PERIODIC REVIEW
23.1 Time for Review
23.2 OWNER's Submission
23.3 Findings
23.4 Initiation of Review by City Council
Section 24. EVENTS OF DEFAULT
24.1 Defaults by OWNER
Section 25. MODIFICATION OR TERMINATION
25.1 Notice to OWNER
25.2 Public Hearing
25.3 Decision
25.4 Implementation
25.5 Schedule for Compliance
Section 26. ASSIGNMENT
26.1 Right to Assign
26.2 Release upon Transfer
Section 27. NO CONFLICTING ENACTMENTS
Section 28. GENERAL
28.1 Force Majeure
28.2 Construction of Development Agreement
28.3 Severability
28.4 Cumulative Remedies
28.5 Hold Harmless Agreement
28.6 Cooperation in the Event of Legal Challenge
28.7 Public Agency Coordination
28.8 Initiative Measures
28.9 Attorneys' Fees
28.10 No Waiver
28.11 Authority to Execute
28.12 Notice
28.12.1 To OWNER
28.12.2 To City
28.13 Captions
28.14 Consent
28.15 Further Actions and Instruments
28.16 Subsequent Amendment to Authorizing Statute
28.17 Governing Law
28.18 Effect on Title
28.19 Mortgagee Protection
28.20 Notice of Default to Mortgagee, Right of Mortgagee to Cure
28.21 Bankruptcy
28.22 Disaffirmance
28.23 No Third Party Beneficiaries
28.24 Project as a Private Undertaking
28.25 Restrictions
28.26 Recitals
28.27 Recording
28.28 Title Report
28.29 Entire Agreement
28.30 Successors and Assigns
28.31 OWNER' s Title of Property
28.32 Exhibits
Exhibit "A"
Exhibit "B"
Exhibit "C"
Exhibit "C-1"
Exhibit "C-2"
Exhibit "D"
Exhibit "E"
LIST OF EXHIBITS
Legal Description of the Property
Final Site Plan
Development Approvals
Development Agreement Conditions of Approval
Conditional Use Permit Resolution
Anaheim Canyon Metrolink Station Plan
Preliminary Title Report
DEVELOPMENT AGREEMENT
BY AND BETWEEN
THE CITY OF ANAHEIM
AND
KAISER FOUNDATION HOSPITALS
This Development Agreement is entered into this 6th day of November, 2007, by and between the City of Anaheim, a charter city and municipal corporation, duly organized and existing under the Constitution and laws of the State of California (hereinafter "CITY") and Kaiser Foundation Hospitals, a California nonprofit public benefit corporation (hereinafter "OWNER"), pursuant to the authority set forth in Article 2.5 of Chapter 4 of Division 1 of Title 7, Sections 65864 through 65869.5 of the California Government Code (the "Development Agreement Statute").
RECITALS
This Development Agreement is predicated upon the following facts:
A. To strengthen the public planning process, encourage private participation in comprehensive planning, and reduce the economic risk of development, the Legislature of the State of California adopted the Development Agreement Statute, Sections 65864, et seq., of the Government Code. The Development Agreement Statute authorizes CITY to enter into binding development agreements with persons having legal or equitable interests in real property for the development of such property in order to, among other things: encourage and provide for the development of public facilities in order to support development projects; provide certainty in the approval of development projects in order to avoid the waste of resources and the escalation in project costs and encourage investment in and commitment to comprehensive planning which will make maximum efficient utilization of resources at the least economic cost to the public; provide assurance to the applicants of development projects (1) that they may proceed with their projects in accordance with existing policies, rules and regulations, subject to the conditions of approval of such projects and provisions of such development agreements, and (2) encourage private participation in comprehensive planning and reduce the private and public economic costs of development.
B. This Development Agreement has been processed, considered and executed in accordance with the procedures and requirements set forth in the Development Agreement Statute and CITY's ordinances and procedures as set forth in Recital N.
C. These Recitals refer to and utilize certain capitalized terms which are defined in this Development Agreement. The parties intend to refer to those definitions in conjunction with the use thereof in these Recitals.
D. On August 22, 1995 the City Council of the City of Anaheim approved Resolution No. 95R-155 to approve Specific Plan No. 94-1, the Northeast Area Specific Plan, for the 2,645- acre area generally bounded by the Riverside (SR-91) Freeway on the south, the Orange (SR-57) Freeway on the west, Orangethorpe Avenue on the north and Imperial Highway on the east; and that on September 12, 1995 the City Council adopted Ordinance Nos. 5517 and 5518 to add Chapter 18.110 "Northeast Area Specific Plan No. 94-1(SP 94-1)" to the Anaheim Municipal Code relating to zoning and development standards for the Northeast Area Specific Plan, and to amend the Zoning Map by incorporating said 2,645-acre area into the SP 94-1 Zone.
E. On August 6, 2002 the City Council adopted Ordinance No. 5817 amending Ordinance No. 5517 and Chapter 18.110 to allow hospitals as conditional uses Development Area 3 (La Palma Core) and Development Area 4 (Transit Core) in the Northeast Area Specific Plan ("Adjustment No. 8");
F. On May 25, 2004, the Anaheim City Council approved General Plan Amendment No. 2004-00419 setting forth the City's vision for development of the City of Anaheim (the "General Plan Amendment"), and certified Final Environmental Impact Report No. 330, adopting Findings of Fact and a Statement of Overriding Considerations, and associated Mitigation Monitoring Plans ("FE1R No. 330"), in conjunction with its consideration and approval of the General Plan Amendment, amendment of CITY's zoning code, and a series of related actions.
G. Pursuant to the provisions of the California Environmental Quality Act ("CEQA"), on May 25, 2004, the Anaheim City Council, by its Resolution No. 2004-94, certified Final Environmental Impact Report No. 330, adopting Findings of Fact and Statement of Overriding Considerations, Mitigation Monitoring Program No. 122 for General Plan Amendment No. 2004- 00419, the amended monitoring program described as Mitigation Monitoring Program No. 112 for The Platinum Triangle, and the amended monitoring program described as Mitigation Monitoring Program No. 85a for The Anaheim Resort; determined that said Final Environmental Impact Report No. 330 fully complies with CEQA, reflects the independent judgment of the City Council, and is adequate to serve as the environmental documentation for (i) General Plan Amendment No. 2004-00419, (ii) Zoning Code Amendment No. 2004-00029, (iii) Reclassification No. 2004-00117, (iv) Amendment No. 5 to the Anaheim Resort Specific Plan No. 92-2, (v) Amendment No. 2 to the Northeast Area Specific Plan No. 94-1, and (vii) future discretionary actions described in Environmental Impact Report No. 330, such as Amendment No. 3 to the Northeast Area Specific Plan No. 94-1; and H. OWNER represents that it owns in fee approximately 28 acres of real property commonly known as 3400 East La Palma, 3450 East La Palma and 959-1001 North Grove Street, in the City of Anaheim, County of Orange (hereinafter "County"), State of California (hereinafter collectively called the "Property") in The Northeast Area Specific Plan 94-1 zone and more particularly shown on Exhibit "A" attached hereto and made a part hereof by this reference.
I. OWNER desires to develop the Property in accordance with the provisions of this Development Agreement by developing a medical office campus that will be built out in multiple phases over a nearly twenty five (25) year period, all as more particularly set forth in the Final Site Plan (hereinafter collectively called the "Project"). The Project is anticipated to include a Hospital with up to 360 beds phased over time, Administrative Offices, Medical Office Buildings, a Central Utility Plant, retail areas and associated parking. Medical Office Buildings (MOBs) would be built in phases over time to support the Hospital, resulting in approximately 420,000 square feet of medical office space. In addition, Administrative Offices of approximately 120,000 square feet would be built to support the Hospital and MOBs. A Central Utility Plant would be constructed which would facilitate the Hospital, MOBs and campus development. The Property would contain approximately 1.2 million square feet of total building space at final build out, and an estimated 3,782 parking spaces in a combination of surface and parking structures.
J. CITY desires to accomplish the goals and objectives set forth in the CITY's General Plan and the objectives for the Northeast Area Specific Plan Zone as set forth in subsection
18.20.010.020 of the Anaheim Municipal Code, and finds that the Project will accomplish said goals and objectives.
K. Pursuant to the Final Site Plan, OWNER will submit tentative maps and/or vesting tentative maps, if required. OWNER further anticipates the submission of detailed construction plans and other documentation required by CITY in order for OWNER to obtain its building permits.
L. As consideration for the benefits gained from the vested rights acquired pursuant to the Development Agreement Statute, to conform to the requirements of the Northeast Area Specific Plan Zone, and to comply with the applicable mitigation measures imposed by Updated and Modified Mitigation Monitoring Program No. 106A and Mitigation Monitoring Program No. 147 for the Project, CITY is requiring that OWNER construct and install or pay OWNER's fair share in fees for a number of public improvements, including off-site traffic circulation improvements, and provide other public benefits as set forth in this Development Agreement including Section 12 below.
M. In order to avoid any misunderstandings or disputes which may arise from time to time between OWNER and CITY concerning the proposed development of the Project and to assure each party of the intention of the other as to the processing of any land use entitlements which now or hereafter may be required for such development, the parties believe it is desirable to set forth their intentions and understandings in this Development Agreement. In order for both CITY and OWNER to achieve their respective objectives, it is imperative that each be as certain as possible that OWNER will develop and that CITY will permit OWNER to develop the Project and public improvements as approved by CITY within the time periods provided in this Development Agreement.
N. CITY, as a charter city, has enacted Ordinance No. 4377 on November 23, 1982, which makes CITY subject to the Development Agreement Statute. Pursuant to Section 65865 of the Development Agreement Statute, CITY adopted Resolution No. 82R-565 (the "Procedures Resolution") on November 23, 1982. The Procedures Resolution establishes procedures and requirements for the consideration of development agreements upon receipt of an application.
0. On August 22, 2007, as required by Section 1.0 of the Procedures Resolution, OWNER submitted to the Planning Department an application for approval of a development agreement (hereinafter called the "Application"). The Application was subsequently amended to include a proposed development agreement.
P. On September 20, 2007, as required by Section 65867 of the Development Agreement Statute and Section 2.1 of the Procedures Resolution, the Planning Director gave public notice of the City Planning Commission's intention to consider a recommendation to the City Council regarding adoption of a development agreement.
Q. On October 15, 2007, as required by Section 65867 of the Development Agreement Statute and Section 2.2 of the Procedures Resolution, the City Planning Commission held a public hearing on the Application.
R. On that date, the Planning Commission after considering an Initial Study conducted pursuant to CEQA for this Development Agreement, and the requirements of CEQA, including Section 21166 of the California Public Resources Code and Section 15162 of the CEQA Guidelines, found and determined and recommended that the City Council find that EIR No. 2007-00337, together with the Mitigation Monitoring Program No. 147 for the Kaiser Anaheim Medical Center, are adequate to serve as the required environmental documentation for this Development Agreement and satisfies all of the requirements of CEQA, and that no further environmental documentation need be prepared for this Development Agreement.
S. The Planning Commission further found that the Development Agreement meets the following standards set forth in Section 2.3 of the Procedures Resolution, to wit, that the Proposed Project: (a) is consistent with the CITY's existing General Plan, (b) is compatible with the uses authorized in and the regulations prescribed for the applicable zoning district, (c) is compatible with the orderly development of property in the surrounding area and (d) is not otherwise detrimental to the health, safety and general welfare of the citizens of CITY. Based upon the aforesaid findings, the City Planning Commission recommended that the City Council approve the Application and this Development Agreement pursuant to Resolution No. PC2007- 126.
T. On October 25, 2007, as required by Section 65867 of the Development Agreement Statute and Section 3.1 of the Procedures Resolution, the City Clerk caused public notice to be given of the City Council's intention to consider adoption of a development agreement.
U. On November 6, 2007, as required by Section 65867 of the Development Agreement Statute and Section 3.2 of the Procedures Resolution, the City Council held a public hearing on the Application..
V. On that date, the City Council after considering the recommendation of the Planning Commission, found and determined that ElR No. 2007-00337, together with the Mitigation Monitoring Program No. 147 for the Kaiser Permanente Anaheim Medical Center, are adequate to serve as the required environmental documentation for this Development Agreement and satisfies all of the requirements of CEQA, and that no further environmental documentation need be prepared for this Development Agreement.
W. On November 6, 2007, the City Council found and determined that this Development Agreement: (i) is consistent with the CITY's existing General Plan; (ii) is not otherwise detrimental to the health, safety and general welfare of the citizens of CITY; (iii) is entered into pursuant to and constitutes a present exercise of the CITY's police power; and (iv) is entered into pursuant to and in compliance with the requirements of Section 65867 of the Development Agreement Statute and the Procedures Resolution.
X. In preparing and adopting the General Plan and in granting the Development Approvals, CITY considered the health, safety and general welfare of the residents of CITY and prepared in this regard an extensive environmental impact report and other studies. Without limiting the generality of the foregoing, in preparing and adopting the General Plan and in granting the Development Approvals, the City Council carefully considered and determined the projected needs (taking into consideration the planned development of the Project and all other areas within the CITY) for water service, sewer service, storm drains, electrical facilities, traffic/circulation infrastructure, police and fire services, paramedic and similar improvements, facilities and services within The Northeast Area Specific Plan, and the appropriateness of the density and intensity of the development comprising the Project and the needs of the CITY and surrounding areas for other infrastructure.
Y. On November 6, 2007, the City Council adopted the Authorizing Ordinance authorizing the execution of this Development Agreement.
NOW, THEREFORE, pursuant to the authority contained in the Development Agreement Statute, as it applies to CITY, and pursuant to the Enabling Ordinance, the Procedures Resolution and CITY's inherent powers as a charter city, and pursuant to the mutual promises and covenants herein contained, the parties hereto agree as follows:
Section 1. DEFINITIONS.
The following words and phrases are used as defined terms throughout this Development Agreement, and each defined term shall have the meaning set forth below.
1.1 Assessment District. "Assessment District" for purposes of this Development Agreement means a special district, assessment district or benefit area existing pursuant to State law or the charter powers of CITY for purposes of financing the cost of public improvements, facilities, services and/or public facilities fees within a distinct geographic area of CITY.
1.2 Authorizing Ordinance. The "Authorizing Ordinance" means Ordinance No. 6081 approving this Development Agreement.
1.3 CITY. The "CITY" means the City of Anaheim, a charter city and municipal corporation, duly organized and existing under its charter and the Constitution and laws of the State of California.
1.4 Development. "Development" means the improvement of the Property for purposes of effecting the structures, improvements and facilities comprising the Project, including, without limitation: grading, the construction of infrastructure and public facilities related to the Project whether located within or outside the Property, the construction of structures and buildings and the installation of landscaping.
1.5 Development Agreement Date. The "Development Agreement Date" means the latest of (i) the date of recordation in the office of the County Recorder of this Development Agreement, or a memorandum thereof, or (ii) the effective date of the Authorizing Ordinance.
1.6 Development Agreement Statute. The "Development Agreement Statute" means Sections 65864 through 65869.5 of the California Government Code as it exists on the Development Agreement Date.
1.7 Development Approvals. "Development Approvals" means the Final Site Plan and all site specific plans, maps, permits and other entitlements to use of every kind and nature contemplated by the Final Site Plan which are approved or granted by CITY in connection with development of the Property, including, but not limited to: site plans, tentative and final subdivision maps, vesting tentative maps, variances, conditional use permits and grading, building and other similar permits. To the extent any of such site specific plans, maps, permits and other entitlements to use are amended from time to time, "Development Approvals" shall include, if OWNER and CITY agree in writing, such matters as so amended. If this Development Agreement is required by law to be amended in order for "Development Approvals" to include any such amendments, "Development Approvals" shall not include such amendments unless and until this Development Agreement is so amended.
1.8 Enabling Ordinance. The "Enabling Ordinance" means Ordinance No. 6081 enacted by CITY on November 6, 2007.
1.9 Existing Land Use Regulations. "Existing Land Use Regulations" mean the ordinances and regulations adopted by the City of Anaheim in effect on the Effective Date, including the adopting ordinances and regulations that govern the permitted uses of land, the density and intensity of use, and the design, improvement, construction standards and specifications applicable to the development of the Property, including, but not limited to, the General Plan, the Zoning Code, EIR No. 2007-00337, Mitigation Monitoring Plan No. 147, and all other ordinances of the CITY establishing subdivision standards, park regulations, impact or development fees and building and improvement standards, but only to the extent the Zoning Ordinance and such other regulations are not inconsistent with this Development Agreement.
Existing Land Use Regulations do not include non-land use regulations, which includes taxes.
1.10 Final Site Plan. The "Final Site Plan" means the Project as described in this Development Agreement and conditions with respect thereto, as set forth as Exhibit "B" attached hereto and made a part hereof by this reference.
1.11 Gross Floor Area/GFA. "Gross Floor Area" or "GFA" means the gross floor area of any permitted buildings.
1.12 Infrastructure Improvement Fund. "Infrastructure Improvement Fund" shall have the meaning set forth in Section 12.1.1, below.
1.13 Mortgage. "Mortgage" means a mortgage, deed of trust or sale and leaseback arrangement or other transaction in which the Property, or a portion thereof or an interest therein, is pledged as security.
1.14 Mortgagee. "Mortgagee" means the holder of the beneficial interest under a Mortgage, or the owner of the Property, or interest therein, under a Mortgage.
1.15 Northeast Area Specific Plan. "The Northeast Area Specific Plan" means that portion generally bounded by the Riverside (SR-91) Freeway on the south, the Orange (SR-57) Freeway on the west, Orangethorpe Avenue on the north, and Imperial Highway on the east.
1.16 OWNER. "OWNER" is Kaiser Foundation Hospitals, a California nonprofit public benefit corporation, and any person or entity with which or into which Kaiser Foundation Hospitals may merge, and any person or entity who may acquire substantially all of the assets of Kaiser Foundation Hospitals, and any person or entity who receives any of the rights or obligations of under this Development Agreement in accordance with the provisions of Section 27 (Assignment) of this Development Agreement.
1.17 Parking Areas. The "Parking Areas" means all parking structure(s), and/or all surface parking servicing the Project.
1.18 Permitted Buildings. "Permitted Buildings" includes all buildings and the Parking Areas as identified in Section 6 of this Development Agreement and as further set forth in the Final Site Plan.
1.19 Procedures Resolution. The "Procedures Resolution" is Resolution No. 82R-565 adopted by CITY pursuant to Section 65865 of the Development Agreement Statute.
1.20 Project. The "Project" means the development project contemplated by the Final Site Plan with respect to the Property, including but not limited to on-site and off-site improvements, as such development project is further defined, enhanced or modified pursuant to the provisions of this Development Agreement.
1.21 Property. The "Property" means that certain real property shown and described on Exhibit "A" to this Development Agreement.
12 1.22 Support Commercial Uses. "Support Commercial Uses" are commercial/retail uses which may include retail uses, banking or financial offices, food service, restaurants, service establishments and other similar uses that will provide needed services to members, employees, contractors and others associated with the Kaiser Permanente Anaheim Medical Center.
1.23 Term. "Term" is defined in Section 2 of this Development Agreement.
Section 2. TERM.
2.1 The term (hereinafter called "Term") of this Development Agreement shall be that period of time during which this Development Agreement shall be in effect and bind the parties hereto. The Term shall commence on the Development Agreement Date and shall extend for a period of twenty-five (25) years thereafter, terminating at the end of the day on the twenty-fifth anniversary of the Development Agreement Date, subject to Section 9.2(b) of this Development Agreement, and further subject to the periodic review and modification or termination provisions defined in Section 24 and Section 26, respectively, of this Development Agreement.
2.2 This Development Agreement shall terminate and be of no force and effect upon the occurrence of the entry of a final judgment or issuance of a final order, after all appeals have been exhausted, directed to CITY as a result of any lawsuit filed against CITY to set aside, withdraw or abrogate the approval of the City Council of this Development Agreement or if termination occurs pursuant to the provisions of the Procedures Resolution and such termination is so intended thereby.
2.3 If not already terminated by reason of any other provision in this Development Agreement, or for any other reason, this Development Agreement shall automatically terminate and be of no further force and effect upon completion of the Project pursuant to the terms of this Development Agreement and any further amendments thereto and the issuance of all occupancy permits and acceptance by CITY of all dedications and improvements as required by the development of the Project.
Section 3. BINDING COVENANTS.
The provisions of this Development Agreement to the extent permitted by law shall constitute covenants which shall run with the Property for the benefit thereof, and the benefits of this Development Agreement shall bind and inure to the benefit of the parties and all successors in interest to the parties hereto.
Section 4. EFFECT OF AGREEMENT.
As a material part of the consideration of this Development Agreement, unless expressly otherwise provided herein, the parties agree that the Existing Land Use Regulations shall be applicable to development of the Project. In connection with all subsequent discretionary actions by CITY required to implement the Final Site Plan and any discretionary actions which 13 CITY takes or has the right to take under this Development Agreement relating to the Project, including any review, approval, renewal, conditional approval or denial, CITY, shall exercise its discretion or take action in a manner which complies and is consistent with the Final Site Plan, the Existing Land Use Regulations (as the same may be modified in accordance with this Development Agreement) and such other standards, terms and conditions expressly contained in this Development Agreement. CITY shall accept and timely process, in the normal manner for processing such matters as may then be applicable, all applications for further approvals with respect to the Project called for or required under this Development Agreement, including, any necessary site plan, tentative map, vesting tentative map, final map and any grading, construction or other permits filed by OWNER in accordance with the Development Approvals.
Section 5. PROJECT LAND USES.
The Property shall be used for such uses as may be permitted by the Development Approvals and the Existing Land Use Regulations. The duration of this Development Agreement, the density and intensity of use, developable GFA, footprint square footage, the maximum height and size of proposed buildings and structures, lot sizes, set back requirements, zoning, public improvements, and the provisions for reservation or dedication of land for public purposes shall be those set forth in the Development Approvals, the Existing Land Use Regulations and this Development Agreement pursuant to Section 65865.2 of the Development Agreement Statute and shall be vested through the Term hereof.
Section 6. PERMITTED BUILDINGS.
6.1 Description of Permitted Buildings. The Permitted Buildings to be located on the Property shall be as set forth on the Final Site Plan. The Project shall be constructed substantially in conformance with the Final Site Plan.
6.2 Parking Areas. The Parking Areas shall be constructed so that there will be sufficient parking spaces available within the Property as depicted and substantially in conformance with the Final Site Plan. Prior to commencement of construction of the first Permitted Building, OWNER shall restrict the use of the Parking Areas to, and shall record a covenant against the Property in a form approved by the City Attorney stating that the use of the Parking Areas shall be limited to tenants, visitors, patrons, invitees and other users of the Kaiser Permanente Anaheim Medical Center.
Section 7. DENSITY OF PERMITTED BUILDINGS.
The Permitted Buildings shall not exceed the maximum heights and maximum footprints set forth in the Final Site Plan.
Section 8. ENFORCEMENT.
Unless this Development Agreement is terminated or cancelled pursuant to the provisions of this Development Agreement, this Development Agreement or any amendment hereto, shall 14 be enforceable by any party hereto notwithstanding any change hereafter in any applicable general plan, specific plan, zoning ordinance, subdivision ordinance or building ordinance adopted by CITY which alters or amends the rules, regulations or policies of Development of the Project as provided in this Development Agreement pursuant to Section 65865.4 of the Development Agreement Statute; provided, however, that the limitations of this Section shall not apply to changes mandated by State or Federal laws or other permissible changes or new regulations as more particularly set forth in Section 22 of this Development Agreement.
Section 9. PUBLIC IMPROVEMENTS AND SERVICES.
In addition to performing any other obligations heretofore imposed as conditions of the Development Approvals set forth in Exhibit "C," as material consideration for the CITY's entering into this Development Agreement, OWNER shall undertake the construction and installation of the following public improvements required to support the Project and to enhance area-wide traffic circulation and emergency police and fire protection service within the time periods as set forth below and in conformance with the Existing Land Use Regulations. CITY shall cooperate with OWNER for the purpose of coordinating all public improvements constructed under the Development Approvals or this Development Agreement to existing or newly constructed public improvements, whether located within or outside of the Property.
OWNER shall be responsible for and use good faith efforts to acquire any right(s)-of-way necessary to construct the public facility improvements required by, or otherwise necessary to comply with the conditions of, this Development Agreement or any Development Approvals.
Should it become necessary due to OWNER's failure or inability to acquire said right(s)-of-way within four months after OWNER begins its efforts to so acquire said right(s)-of-way, CITY shall negotiate the purchase of the necessary right(s)-of-way to construct the public improvements as required by, or otherwise necessary to comply with the conditions of, this Development Agreement and, if necessary in accordance with the procedures established by State law, and the limitations hereinafter set forth in this section, CITY may use its powers of eminent domain to condemn said required right(s)-of way, after conducting a duly noticed public hearing and obtaining the necessary vote of the City Council. OWNER agrees to pay for all costs associated with said acquisition and condemnation proceedings. If the CITY cannot make the proper findings or if for some other reason under the condemnation laws CITY is prevented from acquiring the necessary right(s)-of-way to enable OWNER to construct the public improvements required by, or otherwise necessary to comply with the conditions of, this Development Agreement, then the parties agree to amend this Development Agreement to modify OWNER's obligations accordingly. Any such required modification shall involve the substitution of other considerations or obligations by OWNER (of similar value) as are negotiated in good faith between the parties hereto. Nothing contained in this Section shall be deemed to constitute a determination or resolution of necessity by CITY to initiate condemnation proceedings.
9.1 Utilities (Water, Electrical, Gas, Sewer, and Drainage). OWNER shall construct the public improvements necessary for the provision of requisite water, electrical, gas, sewer and drainage requirements for Project as more fully set forth in the Development Approvals.
OWNER shall construct and relocate utilities as may be required to provide services to the Permitted Buildings on the Property or that are displaced by the construction of the Permitted Buildings. As OWNER submits detailed construction plans in order to obtain building permits for Permitted Buildings and/or the size and nature of the Project varies, the utilities that OWNER will construct or relocate may be revised accordingly by the CITY.
9.1.1 Storm and Sewer Drains. Prior to final building and zoning inspections for each Permitted Building, OWNER will construct sewers and storm drains to serve the ultimate development of the Property as provided by areawide engineering studies to be conducted prior to issuance of any building permits for the first Permitted Building and updated prior to the issuance of any building permits for each subsequent Permitted Building. All studies shall be subject to the approval of the City Engineer. OWNER will construct improvements identified in said studies. The systems may be constructed subject to the approval of the City Engineer incrementally provided that said incremental phasing is adequate to provide capacity for the proposed development phasing.
9.2 Timing, Phasing and Sequence of Public Improvements and Facilities. (a) The timing, phasing and sequence of the construction of public improvements and facilities or the payment of fees therefore shall be constructed or paid in accordance with the timing, phasing and sequence set forth in this Development Agreement and the Final Site Plan.
(b) OWNER shall have obtained the first building permit for the Project prior to the fifth anniversary of the Development Agreement Date. If OWNER has not timely obtained the first building permit for the project, the Term of this Development Agreement shall be for a period of eight (8) years, terminating at the end of the eighth anniversary of the Development Agreement Date, subject to the periodic review and modification or termination provisions defined in Section 24 and Section 26, respectively, of the Development Agreement. (c) Notwithstanding any provision of this Agreement, except subsections 9.2(a) and 9.2(b) above, CITY and OWNER expressly agree that there is no requirement that OWNER initiate or complete development of the Project or any particular phase of the Project within any particular period of time, and CITY shall not impose such a requirement on any Project Approval. The parties acknowledge that OWNER cannot at this time predict when or the rate at which or the order in which phases will be developed. Such decisions depend upon numerous factors which are not within the control of OWNER, such as changes in health care delivery requirements, member needs, market orientation and demand, interest rates, competition and other similar factors.
9.3 Traffic Circulation Improvements. In order to assist CITY in providing for area-wide traffic circulation as required by this Project, OWNER shall cause to be made the on-site and off- site traffic circulation improvements ("Traffic Circulation Improvements") identified for the Project including all applicable measures from the Mitigation Monitoring Program 147 approved in conjunction with EIR No. 2007-00337 as shown on the Final Site Plan.
Section 10. REIMBURSEMENT PROVISION.
CITY and OWNER agree that certain facilities, including but not limited to roadway, wastewater, water, drainage and landscaping may be constructed by certain OWNER (the "Constructing Party(ies)") and will benefit other OWNER and/or third-party landowners (collectively, the "Benefited Parties"). It is the intent of the parties hereto that the pro rata share of such upfront planning, design, permitting, and construction costs, calculated at the time of reimbursement, shall be paid to Constructing Party(ies) by such Benefited Parties. Consistent with this stated intent, CITY shall require that for any such facilities constructed and/or funded in whole or in part by the Constructing Party(ies) for which the Constructing Party(ies) are entitled to reimbursement, CITY shall impose a reimbursement obligation upon the Benefited Parties at the earliest opportunity. CITY will work with OWNER to establish mechanisms for proportional reimbursement from the Benefited Parties. All costs associated with establishing said mechanisms shall be paid by OWNER.
Section 11. DEDICATIONS AND EXACTIONS.
Prior to issuance of the first building permit for the Project, OWNER shall irrevocably offer for dedication the rights-of-way, if applicable, and other areas as more fully set forth in the Final Site Plan for the uses set forth in the Final Site Plan. These dedications shall be in fee or as an easement at the discretion of CITY, and upon completion and acceptance by CITY of the associated improvements in compliance with the specifications as approved by CITY, CITY shall accept OWNER's offer of dedication. Nothing contained in this Development Agreement, however, shall be deemed to preclude CITY from exercising the power of eminent domain with respect to the Property or the Project, or any part thereof, or shall give rise to the suggestion that the City may enter into any binding commitment to acquire any property without an open public hearing before the Anaheim City Council.
Section 12. FEES, TAXES, ASSESSMENTS, AND COMMUNITY BENEFITS.
12.1 Fees, Taxes and Assessments. OWNER shall be responsible for the payment of fees in the amount and at the times set forth in the Existing Land Use Regulations, as said amounts and timing may be modified in accordance with this Development Agreement. In addition to such fees and any fees and exactions imposed by the Development Approvals and the Environmental Impact Report for this Project, OWNER agrees to create an Infrastructure Improvement Fund as follows:
12.1.1 Infrastructure Improvement Fund. To enhance the existing infrastructure in the Project area that will benefit the Project, OWNER agrees to make a one-time payment of two million dollars ($2,000,000) as a contribution towards the construction of various improvements serving the Anaheim Canyon Metrolink Station, as set forth in Exhibit "D". Such payment shall be made within two years of the Development Agreement Date. The City desires to facilitate the addition of a second rail line and related improvements to this station in connection with the Metrolink program. Related improvements may include enhancements of the platforms on both sides of the second rail line, which would provide for increased rail access and utilization, and a pedestrian-rail separation, which would provide safe access from the Project property and surrounding mixed-use areas to the Metrolink facilities and to the business operations located at the southeast comer of La Palma and Tustin Avenues. The Infrastructure Improvement Fund shall be transferred to the Anaheim Redevelopment Agency to be used, at the discretion of the Anaheim Redevelopment Agency, for any costs associated with implementation of the Anaheim Canyon Area Metrolink Station improvements as illustrated by Exhibit "D".
12.2 Community Benefits. In addition to the above-described Infrastructure Improvement Fund , fees and exactions, the Project is being approved by CITY after due consideration of certain public benefits and opportunities which are advanced by OWNER as part of the Kaiser Permanente Medical Center community benefit program, which program is expected to evolve and change over the Term of this Agreement, City has considered the following community benefits advanced by OWNER as follows:
12.2.1 Job Training Covenant. The City has been designated a "Service Delivery Area" pursuant to the Workforce Investment Act. The City's Workforce Investment Program Division administers a Workforce Investment Program pursuant to the Act. As defined herein, the Workforce Investment Program also includes any future or successor federal or state job training programs which are administered by the City and/or the Workforce Investment Program Division.
Except as set forth below, the OWNER desires to use the Workforce Investment Program as a nonexclusive source for the recruiting and hiring of all of their employees with regard to employment opportunities which arise at such Project (exclusive of the construction and development of the Improvements) and will share information with the Workforce Investment Program Division as soon as possible when employment opportunities become or are anticipated to become available. The decision to hire or not to hire any persons referred to such OWNER through the Workforce Investment Program shall remain in the sole and absolute discretion of such OWNER. Notwithstanding the foregoing, however, these provisions will not apply to the recruiting or hiring of union jobs or training programs which are covered by collective bargaining agreements without the written approval of the affected union or conflict with any applicable labor or other governmental laws or regulations.
12.2.2 Purchase Electric Power. It is Owner's intent to purchase its electric power requirements from the City. Requirements for purchase of electric power from City or other agencies are subject to the City's Public Utilities Department Electric Rates, Rules and Regulations.
12.2.3 Nondiscrimination Covenants. The OWNER covenants by and for itself and any successors in interest that there shall be no discrimination against or segregation of any person or groups of persons on account of race, color, creed, religion, sex, martial status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Project, nor shall the OWNER itself or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Project. The foregoing covenants shall run with the land.
(a) The OWNER shall refrain from restricting the rental, sale, or lease of the Project on the basis of race, color, religion, sex, marital status, ancestry or national origin of any person. All such deed, leases or contracts shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses:
(b) In deeds: "The grantee herein covenants by and for himself or herself, his or her heirs, executors, administrators and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, subleases or vendees in the land herein conveyed. The forgoing covenants shall run with the land."
(c) In leases: "The lessee herein covenants by and for himself or herself his or hers heirs, executors, administrators, and assigns, and all persons claiming under or through him or her, and this lease is made and accepted upon and subject to the following conditions:
"That there shall be no discrimination against or segregation of any person or group of persons, on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the premises herein leased nor shall the lessee himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy of tenants, sublessees, subtenants, or vendees in the premises herein leased."
(d) In contracts: "There shall be no discrimination against or segregation of, any person, or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the premises, nor shall the transferee himself or herself or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the premises."
12.2.4 Other Community Benefits. Recognizing that the OWNER possesses certain unique resources that would benefit the public in general, the OWNER intends to make the following assets available to the community, which benefits are expected to evolve and change over the Term of this Agreement:
19 (a) In accordance with state and federal law, a state of the art emergency room available to anyone needing emergency care, regardless of ability to pay. (b) Opportunities to provide health coverage for children in need in the City of Anaheim, such as the KP Child Health Plan which currently covers 1,800 children in the City of Anaheim.
(c) A source of grant funding to non-profit community organizations in Anaheim. (d) Conference rooms which can be made available for use by Anaheim's community organizations.
(e) Opportunities for education classes.
(f) Opportunities for internship programs.
(g) Opportunities for summer youth programs.
(h) Opportunities for disaster preparedness training partnering. (i) Public access connection to Anaheim Canyon Metrolink Station.
12.3 City Processing Fees. OWNER shall pay all standard City-wide processing fees for building permits, zoning review, and other similar fees associated with the Development of the Project which are in existence at the time of approval of this Development Agreement at the rate in existence at the time said fees are normally required to be paid to CITY.
12.4 Accounting of Funds. CITY will comply with applicable requirements of Government Code Section 65865 relating to accounting of funds.
12.5 Imposition of Increased Fees, Taxes or Assessments. Except as expressly set forth or reserved in this Development Agreement, CITY shall not, without the prior written consent of OWNER, impose any additional fee, tax or assessment on the Project or any portion thereof as a condition to the implementation of the Project or any portion thereof, except such fees, taxes and assessments as are described in or required by this Development Agreement, the Existing Land Use Regulations or the Development Approvals. The rates of such fees, taxes and assessments shall be the rates in existence at the time said fees, taxes and assessments are normally required to be paid to CITY. Nothing contained herein shall be construed to prohibit CITY from imposing fees, taxes or assessments on the Property which are unrelated to the implementation of the Project.
Section 13. TIMING OF DEVELOPMENT.
Timing of development of infrastructure shall be as set forth in the Final Site Plan.
Section 14. EXISTING USES.
20 CITY and OWNER agree that those existing legally established uses on the Property may be retained until the Project is implemented. When those existing uses are demolished, no credit for any such demolished square footage for which Interim Development Fees have not been paid will be given OWNER against Interim Development Fees due on a square footage basis as provided for in this Development Agreement. OWNER will pay the full Interim Development Fees for Permitted Buildings constructed pursuant to the Final Site Plan.
Section 15. FUTURE APPROVALS.
15.1 Basis for Denying or Conditional Granting Future Approvals. Before OWNER can begin grading on the Property or other development of the Property, OWNER must secure several additional permits and/or approvals from CITY. The parties agree that to the extent said Development Approvals are ministerial in nature, CITY shall not, through the enactment or enforcement of any subsequent ordinances, rules, regulations, initiatives, policies, requirements, guidelines, or other constraints, withhold such approvals as a means of blocking construction or of imposing conditions on the Project which were not imposed during an earlier approval period unless CITY has been ordered to do so by a court of competent jurisdiction. Notwithstanding the previous sentence, CITY and OWNER will use their best efforts to ensure each other that all applications for and approvals of grading permits, building permits or other developmental approvals necessary for OWNER to develop the Project in accordance with the Final Site Plan are sought and processed in a timely manner.
15.2 Standard of Review. The rules, regulations and policies that apply to any additional Development Approvals which OWNER must secure prior to the Development of the Property shall be the Existing Land Use Regulations, as defined in this Development Agreement.
15.3 Future Amendments to Final Site Plan. Future amendments to all or a portion of the Final Site Plan which increase the intensity or density of the Development of the Property, or change the permitted uses of the Property, and are not among those described in Section 17.4 of this Development Agreement, may subject the portion or portions of the Project being amended or affected by the amendment to any change in the CITY's General Plan, zoning designations and rules applicable to the Property and further environmental review and possible mitigation of adverse impacts under CEQA in effect at the time of such amendment. Any such amendment to the Final Site Plan shall be processed concurrently with the processing of an amendment to this Development Agreement. It is the desire and intent of both parties, except as set forth herein, that any such future amendment of the Final Site Plan will not alter, affect, impair or otherwise impact the rights, duties and obligations of the parties under this Development Agreement with respect to the unamended portions of the Final Site Plan.
Section 16. AMENDMENT.
16.1 Initiation of Amendment. Either party may propose an amendment to this Development Agreement.
16.2 Procedure. Except as set forth in Section 17.4 below, the procedure for proposing and adopting an amendment to this Development Agreement shall be the same as the procedure required for entering into this Development Agreement in the first instance. Such procedures are set forth in Sections 2, 3 and 5 of the Procedures Resolution.
16.3 Consent. Except as provided in Section 24 of this Development Agreement, any amendment to this Development Agreement shall require the consent of both parties. No amendment of this Development Agreement or any provision hereof shall be effective unless set forth in writing and signed by duly authorized representatives of each party hereto.
16.4 Amendments. Subject to the foregoing provisions of this Section, the parties acknowledge that refinements and further development of the Project may demonstrate that changes are appropriate with respect to the details and performance of the parties under this Development Agreement. The parties desire to retain a certain degree of flexibility with respect to the details of the Development of the Project and with respect to those items covered in general terms under this Development Agreement. If and when the parties find that changes or adjustments are necessary or appropriate to further the intended purposes of this Development Agreement, they may, unless otherwise required by law, effectuate such changes or adjustments as specified in the Development Approvals.
16.5 Effect of Amendment to Development Agreement. The parties agree that except as expressly set forth in any such amendment, an amendment to this Development Agreement will not alter, affect, impair, modify, waive or otherwise impact any other rights, duties or obligations of either party under this Development Agreement.
Section 17. RESOLUTION OF INTENT AND USES FOR THE PROPERTY.
17.1 Non-Cancellation of Rights. Subject to defeasance pursuant to Sections 25, 26 or 27 of this Development Agreement, the Final Site Plan and other Development Approvals as provided for in this Development Agreement shall be final and the rights once granted thereby shall be vested in the Property upon recordation of this Development Agreement.
Section 18. BENEFITS TO CITY.
The direct and indirect benefits CITY (including, without limitation, the existing and future anticipated residents of CITY) expects to receive pursuant to this Development Agreement include, but are not limited to, the following:
The participation of OWNER in the accelerated, coordinated and more economic construction, funding and dedication to the public, as provided in this Development Agreement, of certain of the vitally needed on-site and area-wide public improvements and facilities, and assurances that the entire Project infrastructure will be developed as set forth in the Final Site Plan and this Development Agreement in order to encourage development of The Northeast Area; and
The considerations set forth in Sections 9 and 10 of this Development Agreement.
Section 19. BENEFITS TO OWNER.
OWNER has expended and will continue to expend large amounts of time and money on the planning and infrastructure construction for the Project. OWNER asserts that OWNER would not make any additional expenditures, or the advanced expenditures required by this Development Agreement, without this Development Agreement and that any additional expenditures which OWNER makes after the Development Agreement Date will be made in reliance upon this Development Agreement. Without limiting the generality of the foregoing, this Development Agreement provides for the completion of public improvements and facilities at the time when they would be justified economically in connection with the phasing of the Project, and of a size which would be justified only by the magnitude of the Project provided for by the Final Site Plan and this Development Agreement. The benefit to OWNER under this Development Agreement consists of the assurance that OWNER will preserve the right to develop the Property as planned and as set forth in the Final Site Plan and this Development Agreement. The parties acknowledge that the public benefits to be provided by OWNER to CITY pursuant to this Development Agreement are in consideration for and reliance upon assurances that the Property can be developed in accordance with the Final Site Plan and this Development Agreement.
Section 20. UNDERTAKINGS AND ASSURANCES CONTEMPLATED AND PROMOTED BY DEVELOPMENT AGREEMENT STATUTE.
The mutual undertakings and assurances described above and provided for in this Development Agreement are for the benefit of CITY and OWNER and promote the comprehensive planning, private and public cooperation and participation in the provision of public facilities, and the effective and efficient development of infrastructure and facilities supporting development which was contemplated and promoted by the Development Agreement Statute. CITY agrees that it will not take any actions which are intended to circumvent this Development Agreement.
Section 21. RESERVED AUTHORITY.
21.1 State and Federal Laws and Regulations. In the event that the State or Federal laws or regulations enacted after this Development Agreement has been entered into, prevent or preclude compliance with one or more provisions of the Development Agreement, such provisions of the Development Agreement shall be modified or suspended as may be necessary to comply with such State or Federal laws or regulations, provided, however, that this Development Agreement shall remain in full force and effect to the extent it is not inconsistent with such laws or regulations and to the extent such laws or regulations do not render such remaining provisions impractical to enforce. Notwithstanding the foregoing, CITY shall not adopt or undertake any rule, regulation or policy which is inconsistent with this Development Agreement until CITY makes a finding that such rule, regulation or policy is reasonably necessary to comply with such State and Federal laws or regulations.
21.2. Model Codes. This Development Agreement shall not prevent CITY from applying new rules, regulations and policies contained in model codes, including, but not limited to, the Anaheim Building Code as adopted in Title 15, Section 15.02.
21.3 Public Health and Safety. This Development Agreement shall not prevent CITY from adopting new rules, regulations and policies, including amendments or modifications to model codes described in Section 22.2 of this Development Agreement which directly result from findings by CITY that failure to adopt such rules, regulations or policies would result in a condition injurious or detrimental to the public health and safety. Notwithstanding the foregoing, CITY shall not adopt any such rules, regulations or policies which prevent or preclude compliance with one or more provisions of this Development Agreement until CITY makes a finding that such rules, regulations or policies are reasonably necessary to correct or avoid such injurious or detrimental condition.
Section 22. CANCELLATION.
22.1 Initiation of Cancellation. Either party may propose cancellation of this Development Agreement.
22.2 Procedure. The procedure for proposing a cancellation of and cancelling this Development Agreement shall be the same as the procedure required for entering into this Development Agreement in the first instance. Such procedures are set forth in Sections 2, 3 and 5 of the Procedures Resolution and Section 65868 of the Government Code.
22.3 Consent of OWNER and CITY. Any cancellation of this Development Agreement shall require the mutual consent of OWNER and CITY.
Section 23. PERIODIC REVIEW.
23.1 Time for Review. CITY shall, at least every twelve (12) months after the Development Agreement Date, review the extent of good faith compliance by OWNER with the terms of this Development Agreement. OWNER's failure to comply with the timing schedules set forth in the Final Site Plan shall constitute rebuttable evidence of OWNER's lack of good faith compliance with this Development Agreement. Such periodic review shall determine compliance with the terms of this Development Agreement pursuant to California Government Code Section 65865.1 and other successor laws and regulations.
23.2 OWNER's Submission. Each year, not less than forty-five (45) days or more than sixty (60) days prior to the anniversary of the Development Agreement Date, OWNER shall submit evidence to the City Council of its good faith compliance with the terms and conditions of this Development Agreement. OWNER shall notify the City Council in writing that such evidence is being submitted to CITY pursuant to the requirements of Section 6.2 of the Procedures Resolution. On each occasion that OWNER submits its evidence for a periodic review, OWNER shall pay to CITY a reasonable processing fee in an amount established by the CITY at the time of approval of this Development Agreement.
23.3 Findings. Within forty-five (45) days after the submission of OWNER's evidence, the City Council shall determine, on the basis of substantial evidence, whether or not OWNER has, for the period under review, complied in good faith with the terms and conditions of this Development Agreement. If the City Council finds that OWNER has so complied, the review for that period shall be deemed concluded. If the City Council finds and determines, on the basis of substantial evidence, that OWNER has not complied in good faith with the terms and conditions of this Development Agreement for the period under review, OWNER shall be given at least sixty (60) days to cure such non-compliance and if the actions required to cure such non- compliance take more than sixty (60) days, then CITY shall give OWNER additional time provided that OWNER is making reasonable progress towards such end. If during the cure period, OWNER fails to cure such noncompliance or is not making reasonable good faith progress towards such end, then the City Council may, at its discretion, proceed to modify or terminate this Development Agreement or establish a time schedule for compliance in accordance with the procedures set forth in Section 26 of this Development Agreement.
23.4 Initiation of Review by City Council. In addition to the periodic review set forth in this Development Agreement, the City Council may at any time initiate a review of this Development Agreement upon the giving of written notice thereof to OWNER. Within thirty (30) days following receipt of such notice, OWNER shall submit evidence to the City Council of OWNER's good faith compliance with this Development Agreement and such review and determination shall proceed in the manner as otherwise provided in this Development Agreement.
Section 24. EVENTS OF DEFAULT.
24.1 Defaults by OWNER. Within forty-five (45) days after the submission of OWNER's evidence, the City Council shall determine on the basis of substantial evidence, whether or not OWNER has, for the period under review, complied in good faith with the terms and conditions of this Development Agreement. If the City Council finds that OWNER has so complied, the review for that period shall be deemed concluded. If the City Council finds and determines, on the basis of substantial evidence, that OWNER has not complied in good faith with the terms and conditions of this Development Agreement for the period under review, OWNER shall be given at least sixty (60) days to cure such non-compliance and if the actions required to cure such non-compliance take more than sixty (60) days, then CITY shall give OWNER additional time provided that OWNER is making reasonable progress towards such end. If during the cure period OWNER fails to cure such non-compliance or is not making reasonable progress towards such end, then the City Council may, at its discretion, proceed to modify or terminate this Development Agreement or establish a time schedule for compliance in accordance with the procedures set forth in Section 26 of this Development Agreement. Upon the occurrence of a default under this Agreement, the non-defaulting party may institute legal proceedings to enforce the terms of this Agreement or, in the event of a material default, terminate this Agreement. If the default is cured, then no default shall exist and the noticing party shall take no further action.
Section 25. MODIFICATION OR TERMINATION.
If pursuant to Section 25.1 of this Development Agreement, CITY elects to modify or terminate this Development Agreement or establish a revised time schedule for compliance as herein provided, then CITY shall proceed as set forth in this Section.
25.1 Notice to OWNER. CITY shall give notice to OWNER of City Council's intention to proceed to modify or terminate this Development Agreement or establish a time schedule for compliance within ten (10) days of making the CITY's findings.
25.2 Public Hearing. The City Council shall set and give notice of a public hearing on • modification, termination or a time schedule for compliance to be held within forty-days after the City Council gives notice to OWNER.
25.3 Decision. The City Council shall announce its findings and decisions on whether this Development Agreement is to be terminated, how this Development Agreement is to be modified or the provisions of the Development Agreement with which OWNER must comply and a time schedule therefore not more than ten (10) days following completion of the public hearing.
25.4 Implementation. Amending or terminating this Development Agreement shall be accomplished by CITY enacting an ordinance. The ordinance shall recite the reasons which, in the opinion of the CITY, make the amendment or termination of this Development Agreement necessary. Not later then ten (10) days following the adoption of the ordinance, one copy thereof shall be forwarded to OWNER. This Development Agreement shall be terminated or this Development Agreement as modified shall become effective on the effective date of the ordinance terminating or modifying this Development Agreement. This Development Agreement shall supercede all ordinances, rules and regulations that are inconsistent with its provisions.
25.5 Schedule for Compliance. Setting a reasonable time schedule for compliance with this Development Agreement may be accomplished by CITY enacting a resolution. The resolution shall recite the reasons which, in the opinion of CITY, make it advisable to set a schedule for compliance and why the time schedule is reasonable. Not later than ten (10) days following adoption of the resolution, one copy thereof shall be forwarded to OWNER.
Compliance with any time schedule so established as an alternative to amendment or termination shall be subject to periodic review as provided in this Development Agreement and lack of good faith compliance by OWNER with the time schedule shall be basis for termination or modification of this Development Agreement.
Section 26. ASSIGNMENT.
26.1 Right to Assign. OWNER shall have the right to sell, mortgage, hypothecate, assign or transfer this Development Agreement, and any and all of its rights, duties and obligations hereunder, to any person, partnership, joint venture, firm or corporation at any time during the term of this Development Agreement, provided that any such sale, mortgage, hypothecation, assignment or transfer must be pursuant to a sale, assignment or other transfer of the interest of OWNER in the Property, or a portion thereof. In the event of any such sale, mortgage, hypothecation, assignment or transfer, (a) OWNER shall notify CITY of such event and the name of the transferee, together with the corresponding entitlements being transferred to such transferee and (b) the agreement between OWNER and such transferee shall provide that either OWNER or the transferee or both shall be liable for the performance of all obligations of OWNER pursuant to this Development Agreement and the Development Approvals. Such transferee and/or OWNER shall notify CITY in writing which entity shall be liable for the performance of such obligations, and upon the express written assumption of any or all of the obligations of OWNER under this Development Agreement by such assignee, transferee or purchaser shall, without any act of or concurrence by CITY, relieve OWNER of its legal duty to perform said obligations under this Development Agreement with respect to the Property or portion thereof, so transferred, except to the extent OWNER is not in default under the terms of this Development Agreement.
26.2 Release Upon Transfer. It is understood and agreed by the parties that the Property may be subdivided following the Development Agreement Date. One or more of such subdivided parcels may be sold, mortgaged, hypothecated, assigned or transferred to persons for development by them in accordance with the provisions of this Development Agreement.
Effective upon such sale, mortgage, hypothecation, assignment or transfer, the obligations of OWNER shall become several and not joint, except as to OWNER's obligations set forth in Section 10 of this Development Agreement. Upon the sale, transfer, or assignment of OWNER's rights and interests under this Development Agreement as permitted pursuant to the Section 27.1 above, OWNER shall be released from its obligations under this Development Agreement with respect to the Property, or portion thereof so transferred, provided that (a) OWNER is not then in default under this Development Agreement, (b) OWNER has provided to CITY the notice of such transfer specified in Section 27.1 above, (c) the transferee executes and delivers to CITY a written agreement in which (i) the name and address of the transferee is set forth and (ii) the transferee expressly and unconditionally assumes all the obligations of OWNER under this Development Agreement and the Development Approvals with respect to the property, or portion thereof, so transferred and (d) the transferee provides CITY with security equivalent to any security provided by OWNER to secure performance of its obligations under this Development Agreement or the Development Approvals. Non-compliance by any such transferee with the terms and conditions of this Development Agreement shall not be deemed a default hereunder or grounds for termination hereof or constitute cause for CITY to initiate enforcement action against other persons then owning or holding interest in the Property or any portion thereof and not themselves in default hereunder. Upon completion of any phase of development of the Project as determined by CITY, CITY may release that completed phase from any further obligations under this Development Agreement. The provisions of this Section shall be self-executing and shall not require the execution or recordation of any further document or instrument. Any and all successors, assigns and transferees of OWNER shall have 27 all of the same rights, benefits and obligations of OWNER as used in this Development Agreement and the term "OWNER" as used in this Development Agreement shall refer to any such successors, assigns and transferees unless expressly provided herein to the contrary.
Section 27. NO CONFLICTING ENACTMENTS.
By entering into this Development Agreement and relying thereupon, OWNER is obtaining vested rights to proceed with the Project in accordance with the terms and conditions of this Development Agreement, and in accordance with, and to the extent of, the Development Approvals. By entering into this Development Agreement and relying thereupon, CITY is securing certain public benefits which enhance the public health, safety and general welfare.
CITY therefore agrees that except as provided in Section 22 of this Development Agreement, neither the City Council nor any other agency of CITY shall support, adopt, or enact a rule, regulation, ordinance or other measure which relates to the rate, timing or sequencing of the Development or construction of any part of the Project and which is inconsistent, in conflict with or would violate the express provisions or intent of this Development Agreement or the Development Approvals.
Section 28. GENERAL.
28.1 Force Majeure. The Term of this Development Agreement and the time within which OWNER shall be required to perform any act under this Development Agreement shall be extended by a period of time equal to the number of days during which performance of such act is delayed unavoidably by strikes, lock-outs, Acts of God, failure or inability to secure materials or labor by reason of priority or similar regulations or order of any governmental or regulatory body, initiative or referenda, moratoria, enemy action, civil disturbances, fire, unavoidable casualties, or any other cause beyond the reasonable control of OWNER.
28.2 Construction of Development Agreement. The language in all parts of this Development Agreement shall in all cases, be construed as a whole and in accordance with its fair meaning. The captions of the paragraphs and subparagraphs of this Development Agreement are for convenience only and shall not be considered or referred to in resolving questions of constructions. This Development Agreement shall be governed by the laws of the State of California. The parties understand and agree that this Development Agreement is not intended to constitute, nor shall be construed to constitute, an impermissible attempt to contract away the legislative and governmental functions of CITY, and in particular, the CITY's police powers. In this regard, the parties understand and agree that this Development Agreement shall not be deemed to constitute the surrender or abnegation of the CITY's governmental powers over the Property.
28.3 Severability. If any provision of this Development Agreement shall be adjudged to be invalid, void or unenforceable, such provision shall in no way affect, impair or invalidate any other provision hereof, unless such judgment affects a material part of this Development Agreement, the parties hereby agree that they would have entered into the remaining portions of this Development Agreement not adjudged to be invalid, void or illegal. In the event that all or 28 any portion of this Development Agreement is found to be unenforceable, this Development Agreement or that portion which is found to be unenforceable shall be deemed to be a statement of intention by the parties; and the parties further agree that in such event they shall take all steps necessary to comply with such public hearings and/or notice requirements as may be necessary in order to make valid this Development Agreement or that portion which is found to be unenforceable. Notwithstanding any other provisions of this Development Agreement, in the event that any material provision of this Development Agreement is found to be unenforceable, void or voidable, OWNER or CITY may terminate this Development Agreement in accordance with the provisions of the Development Agreement Statute and the Procedures Resolution.
28.4 Cumulative Remedies. In addition to any other rights or remedies, either party may institute legal action to cure, correct or remedy any default, to enforce any covenant or agreement herein, or to enjoin any threatened or attempted violation, including suits for declaratory relief, specific performance, relief in the nature of mandamus and actions for damages. All of the remedies described above shall be cumulative and not exclusive of one another, and the exercise of any one or more of the remedies shall not constitute a waiver or election with respect to any other available remedy.
28.5 Hold Harmless Agreement. OWNER and CITY hereby mutually agree to, and shall hold each other, each other's elective and appointive councils, boards, commissions, officers, partners, agents, representatives and employees harmless from any liability for damage or claims for damage for personal injury, including death, and from claims for property damage which may arise from the activities of the other's or the other's contractors', subcontractors', agents', or employees' which relate to the Project whether such activities be by OWNER or CITY, or by any of OWNER's or the CITY's contractors, subcontractors, or by any one or more persons indirectly employed by, or acting as agent for OWNER any of OWNER's or the CITY's contractors or subcontractors. OWNER and CITY agree to and shall defend the other and the other's elective and appointive councils, boards, commissioners, officers, partners, agents, representatives and employees from any suits or actions at law or in equity for damage caused or alleged to have been caused by reason of the aforementioned activities which relate to the Project.
28.6 Cooperation in the Event of Legal Challenge. (a) In the event of any administrative, legal or equitable action or other proceeding instituted by any person not a party to this Agreement challenging the validity of any provision of the Agreement or any Project Approval or Subsequent Approval, the parties shall cooperate in defending such action or proceeding. The parties shall use best efforts to select mutually agreeable legal counsel to defend such action, and OWNER shall pay compensation for such legal counsel; provided, however, that such compensation shall include only compensation paid to counsel not otherwise employed as City staff and shall exclude, without limitation, City Attorney time and overhead costs and other City staff overhead costs and normal day-to-day business expenses incurred by CITY. OWNER's obligation to pay for legal counsel shall not extend to fees incurred on appeal unless otherwise authorized by OWNER. In the event CITY and OWNER are unable to select mutually agreeable legal counsel to defend such action or proceeding, each party may select its own legal counsel at its own expense.
28.7 Public Agency Coordination. At OWNER's sole discretion and in accordance with OWNER's construction schedule, OWNER shall apply for such other permits and approvals as may be required by other governmental or quasi-governmental entities in connection with the development of, or the provision of services to, the Project. CITY shall cooperate with OWNER in its efforts to obtain such permits and approvals and shall, from time to time at the request of OWNER, use its best efforts to enter into binding agreements with any such entity as may be necessary to ensure the timely availability of such permits and approvals.
28.8 Initiative Measures. Both CITY and OWNER intend that this Development Agreement is a legally binding contract which will supersede any initiative, measure, moratorium, referendum, statute, ordinance or other limitation (whether relating to the rate, timing or sequencing of the Development or construction of all or any part of the Project and whether enacted by initiative or otherwise) affecting parcel or subdivision maps (whether tentative, vesting tentative or final), building permits, occupancy certificates or other entitlements to use approved, issued or granted within the CITY, or portions of the CITY, and which Agreement shall apply to the Project to the extent such initiative, measure, moratorium, referendum, statute, ordinance or other limitation is inconsistent or in conflict with this Development Agreement. Should an initiative, measure, moratorium, referendum, statute, ordinance, or other limitation be enacted by the citizens of CITY which would preclude construction of all or any part of the Project, and to the extent such initiative, measure, moratorium, referendum, statute, ordinance or other limitation be determined by a court of competent jurisdiction to invalidate or prevail over all or any part of this Development Agreement, OWNER shall have no recourse against CITY pursuant to the Development Agreement, but shall retain all other rights, claims and causes of action under this Development Agreement not so invalidated and any and all other rights, claims and causes of action as law or in equity which OWNER may have independent of this Development Agreement with respect to the project. The foregoing shall not be deemed to limit OWNER's right to appeal any such determination that such initiative, measure, referendum, statute, ordinance or other limitation invalidates or prevails over all or any part of this Development Agreement. CITY agrees to cooperate with OWNER in all reasonable manners in order to keep this Development Agreement in full force and effect, provided OWNER shall reimburse CITY for its out-of-pocket expenses incurred directly in connection with such cooperation and CITY shall not be obligated to institute a lawsuit or other court proceedings in this connection.
28.9 Attorneys' Fees. In the event of any dispute between the parties involving the covenants or conditions contained in this Development Agreement, the prevailing party shall be entitled to recover reasonable expenses, attorneys fees and costs.
28.10 No Waiver. No delay or omission by either party in exercising any right or power accruing upon non-compliance or failure to perform by the other party under any of the provisions of this Development Agreement shall impair any such right or power or be construed to be a waiver thereof. A waiver by either party of any of the covenants or conditions to be performed by the other party shall not be construed as a waiver of any succeeding breach of non- performance of the same or other covenants and conditions hereof. 30 28.11 Authority to Execute. The person executing this Development Agreement on behalf of OWNER warrants and represents that he/she has the authority to execute this Development Agreement on behalf of his/her partnership and represents that he/she has the authority to bind OWNER to the performance of OWNER's obligations hereunder.
28.12 Notice.
28.12.1 To OWNER. Any notice required or permitted to be given by CITY to OWNER under or pursuant to this Development Agreement shall be deemed sufficiently given if in writing and delivered personally to an officer of OWNER or mailed with postage thereon fully prepaid, registered or certified mail, return receipt requested, addressed; to OWNER as follows:
Attention: Kaiser Foundation Hospitals
1800 Harrison Street, 19th Fl.
Oakland, CA 94612
Attn: Indrajit Obeysekere
Legal and Entitlements
[email protected]
(510) 625-6405
With copies to:
Barbara Shipnuk
Director of Public Affairs
Kaiser Permanente Orange County
1851 E. First St., Suite 1140
Santa Ana, CA 92705-4017
or such changed address as OWNER shall designate in writing to CITY.
28.12.2 To CITY. Any notice required or permitted to be given to CITY under or pursuant to this Development Agreement shall be made and given in writing, if by mail addressed to:
City Council
City of Anaheim
c/o City Clerk
P.O. Box 3222
Anaheim, California 92803
or such changed address as CITY shall designate in writing to OWNER:
With copies to:
City Manager
City of Anaheim
P.O. Box 3222
Anaheim, California 92803
City Attorney
City of Anaheim
P.O. Box 3222
Anaheim, California 92803
and if personally delivered to the City Clerk, at the Anaheim Civic Center, 200 S. Anaheim.
Blvd., Anaheim, California, together with copies marked for the City Manager and the City Attorney or, if so addressed and mailed, with postage thereon fully prepaid, registered or certified mail, return receipt requested, to the City Council in care of the City Clerk at the above address with copies likewise so mailed to the City Manager and the City Attorney, respectively and also in care of the City Clerk at the same address. The provisions of this Section shall be deemed permissive only and shall not detract from the validity of any notice given in a manner which would be legally effective in the absence of this Section.
28.13 Captions. The captions of the paragraphs and subparagraphs of this Development Agreement are for convenience and reference only and shall in no way define, explain, modify, construe, limit, amplify or aid in the interpretation, construction or meaning of any of the provisions of this Development Agreement.
28.14 Consent. Any consent required by the parties in carrying out the terms of this Development Agreement shall not unreasonably be withheld.
28.15 Further Actions and Instruments. Each of the parties shall cooperate with and provide reasonable to the other to the extent contemplated hereunder in the performance of all obligations under this Development Agreement and the satisfaction of the conditions of this Development Agreement. Upon the request of either party at any time, the other party shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this Development Agreement to carry out the intent and to fulfill the provisions of this Development Agreement or to evidence or consummate the transactions contemplated by this Development Agreement.
28.16 Subsequent Amendment to Authorizing Statute. This Development Agreement has been entered into in reliance upon the provisions of the Development Agreement Statute in effect as of the Development Agreement Date. Accordingly, subject to Section 22.1 above, to the extent that subsequent amendments to the Government Code would affect the provisions of this Development Agreement, such amendments shall not be applicable to this Development Agreement unless necessary for this Development Agreement to be enforceable or unless this 32 Development Agreement is modified pursuant to the provisions set forth in this Development Agreement and Government Code Section 65868 as in effect on the Development Agreement Date.
28.17 Governing Law. This Development Agreement, including, without limitation, its existence, validity, construction and operation, and the rights of each of the parties shall be determined in accordance with the laws of the State of California.
28.18 Effect on Title. OWNER and CITY agree that this Development Agreement shall not continue as an encumbrance against any portion of the Property as to which this Development Agreement has terminated.
28.19 Mortgagee Protection. Entering into or a breach of this Development Agreement shall not defeat, render invalid, diminish, or impair the lien of Mortgagees having a mortgage on any portion of the Property made in good faith and for value, unless otherwise required by law.
No Mortgagee shall have an obligation or duty under this Development Agreement to perform OWNER's obligations, or to guarantee such performance prior to any foreclosure or deed in lieu thereof.
28.20 Notice of Default to Mortgagee, Right of Mortgagee to Cure. If the City Clerk timely receives notice from a Mortgagee requesting a copy of any notice of default given to OWNER under the terms of this Development Agreement, CITY shall provide a copy of that notice to the Mortgagee within ten (10) days of sending the notice of default to OWNER. The Mortgagee shall have the right, but not the obligation, for a period up to ninety (90) days after the receipt of such notice from CITY to cure or remedy, or to commence to cure or remedy the default unless a further extension of time to cure is granted in writing by CITY. If the default is of a nature which can only be remedied or cured by such Mortgagee upon obtaining possession, such Mortgagee shall seek to obtain possession with diligence and continually through foreclosure, a receiver or otherwise, and shall thereafter remedy or cure the default or non-compliance within thirty (30) days after obtaining possession. If any such default or non-compliance cannot, with diligence, be remedied or cured within such thirty (30) day period, then such Mortgagee shall have such additional time as may be reasonably necessary to remedy or cure such default or non-compliance if such Mortgagee commences cure during such thirty (30) day period, and thereafter diligently pursues and completes such cure.
28.21 Bankruptcy. Notwithstanding the foregoing provisions of Section 29.20 of this Development Agreement, if any Mortgagee is prohibited from commencing or pursues and prosecuting foreclosure or other appropriate proceedings in the nature thereof by any process or injunction issued by any court or by reason of any action by any court having jurisdiction of any bankruptcy or insolvency proceeding involving CITY, the times specified in this Section for commencing or prosecuting foreclosure or other proceedings shall be extended for the period of the prohibition.
28.22 Disaffirmance.
28.22.1 CITY agrees that in the event of termination of this Agreement by reason of any default by CITY, or by reason of the disaffirmance hereof by a receiver, liquidator or trustee for OWNER or its property, CITY, if requested by any Mortgagee, shall enter into a new Development Agreement for the Project with the most senior Mortgagee requesting such new agreement, for the remainder of the Term, effective as of the date of such termination, upon the terms, provisions, covenants and agreements as herein contained to the extent and subject to the law then in effect, and subject to the rights, if any, of any parties then in possession of any part of the Property, provided:
28.22.2 The Mortgagee shall make written request upon CITY for the new Development Agreement for the Project within thirty (30) days after the date of termination;
28.22.3 The Mortgagee shall pay to CITY at the time of the execution and delivery of the new Development Agreement for the Project expenses, including reasonable attorneys' fees, to which CITY shall have been subjected by reason of OWNER's default; and
28.22.4 The Mortgagee shall perform and observe all covenants herein contained on OWNER's part to be performed, and shall further remedy any other conditions which OWNER under the terminated agreement was obligated to perform under its terms, to the extent the same are curable or may be performed by the Mortgagee.
28.22.5 Nothing herein contained shall require any Mortgagee to enter into a new agreement pursuant to Section 29.22.1 above, nor to cure any default of OWNER referred to above.
28.23 No Third Party Beneficiaries. This Development Agreement and all provisions hereof is made and entered into for the sole protection and benefit of CITY, OWNER and their successors and assigns. No other person shall have right of action based upon any provision in this Development Agreement.
28.24 Project as a Private Undertaking. It is specifically understood and agreed by and between the parties hereto that the Project is a private development, that neither party is acting as the agent of the other in any respect hereunder, and that each party is an independent contracting entity with respect to the terms, covenants and conditions contained in this Development Agreement. No partnership, joint venture or other association of any kind is formed by this Development Agreement. The only relationship between CITY and OWNER is that of a government entity regulating the development of private property and OWNER of such private property.
28.25 Restrictions. Property OWNER shall place in any agreements to sell or convey any interest in the Property or any portion thereof, provisions making the terms of this Development Agreement binding on any successors in interest of OWNER and express provision for OWNER or CITY, acting separately or jointly, to enforce the provisions of this Development Agreement and to recover attorneys' fees and costs for such enforcement.
28.26 Recitals. The recitals in this Development Agreement constitute part of this Development Agreement and each party shall be entitled to rely on the truth and accuracy of each recital as an inducement to enter into this Development Agreement.
28.27 Recording. The City Clerk shall cause a copy of this Development Agreement to be executed by CITY and recorded in the Official Records of Orange County no later than ten (10) days after CITY approves this Development Agreement.
28.28 Title Report. CITY is required to sign this Development Agreement only after OWNER has provided CITY with a satisfactory preliminary title report evidencing and showing OWNER's legal and equitable ownership interest in the Property, current within six (6) months, unencumbered except for the exceptions (hereinafter the "Permitted Exceptions") set in a preliminary title report for the Property acceptable to CITY (the "Preliminary Title Report").
Any instrument of monetary encumbrance such as a deed of trust or a mortgage entered into subsequent to the date of the Preliminary Title Report and prior to the Development Agreement Date, shall contain language expressly subordinating such instruments of monetary encumbrance to the provisions of this Development Agreement. OWNER shall present evidence, satisfactory to CITY, of OWNER's legal title to Property, subject only to the Permitted Exceptions and any such subordinated instruments of monetary encumbrance, at the time of recordation of this Agreement, or a memorandum thereof.
28.29 Entire Agreement. This Development Agreement, constitutes the entire agreement between the parties with respect to the subject matter of this Development Agreement, and this Development Agreement supersedes all previous negotiations, discussions and agreements between the parties, and no parol evidence of any prior or other agreement shall be permitted to contradict or vary the terms hereof.
28.30 Successors and Assigns. The burdens of the Development Agreement shall be binding upon, and the benefits of the Development Agreement inure to all successors in interest and assigns of the parties to the Development Agreement.
28.31 OWNER's Title of Property. Neither party hereto shall be bound by any provision of this Agreement unless and until OWNER shall record this Development Agreement or a memorandum thereof, in the office of the County Recorder of the County sufficient to cause this Agreement and the obligations contained herein to attach to and encumber OWNER's fee title to Property.
28.32 Exhibits. All exhibits, including attachments thereto, are incorporated in this Development Agreement in their entirety by this reference.
CITY OF ANAHEIM, a
municipal corporation
By:
Mayor
IN WITNESS WHEREOF, CITY and OWNER have executed this Development Agreement as of the date and year first above written.
"CITY" "OWNER"
KAISER FOUNDATION HOSPITALS
a California nonprofit public benefit
corporation
By:
Indrajit Obe sekere
Title: Counsel and Assistant Secretary
INDRAJIT OBEYSEKERE
Counsel and Assistant Secretary
LINDA ANDAL
City Clerk
APPROVED AS TO FORM:
tr&S ,.
City Attorney
STATE OF CALIFORNIA )
)ss:
COUNTY OF ORANGE
On this _____ day of , 2008, be undersigned, a Notary Public for the State of California duly commissioned and sworn, personally appeared personally known to me or proved to me on the basis of satisfactory evidence, to be the person who executed the within instrument as Mayor of the City of Anaheim, the municipal corporation executing the within instrument, and acknowledged to me that the corporation executed it.
WITNESS my hand and official seal.
[SEAL]
STATE OF CALIFORNIA
)ss.
COUNTY OF ALAMEDA
On May 16, 2008, before me, the undersigned, a Notary Public in and for said State, personally appeared INDRAJIT OBEYSEKERE personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument as on behalf of Kaiser Foundation Hospitals, the corporation therein named that executed the within instrument, and acknowledged to me that suc . • i oration exie ted the same. i o t JENELLE FLEW ELLEN comm. U 1539835
NOTARY PUBLIC-CALIFORNIA „
ALAMEOA COUNTY Li
COMM. DT. DEC. 31.2008
Jenell Flewellen, Notary Public
)ss.
COUNTY OF ORANGE
On this day of , 2008, BEFORE ME, THE Undersigned, A Notary Public for the State of California, duly commissioned and sworn, personally appeared LINDA ANDAL, personally known to me or proved to me on the basis of satisfactory evidence, to be the person who executed the within instrument as City Clerk of the City of Anaheim, the municipal corporation executing the within instrument, and acknowledged to me that the corporation executed it.
WITNESS my hand and official seal.
Notary Public
37 WITNESS my hand and official seal.
EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY
PARCEL 1:
THAT PORTION OF LOT 3 OF ORANGE GROVE ACRES, AS SHOWN ON A MAP RECORDED IN BOOK 6, PAGE 42 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF SAID LOT 3; THENCE NORTH 73° 49' 30" EAST 121.24 FEET ALONG THE SOUTHEASTERLY LINE OF SAID LOT TO AN
ANGLE POINT IN THE LAND DESCRIBED IN DEED TO THE STATE OF CALIFORNIA, RECORDED NOVEMBER 13, 1953 IN BOOK 2613, PAGE 231 OF OFFICIAL RECORDS; THENCE NORTH 9° 15' 43" EAST 79.00 FEET TO AN ANGLE POINT IN SAID STATE LAND; THENCE NORTH 62° 22' 41" EAST 68.45 FEET TO THE EASTERLY LINE OF THE WESTERLY 2/3RDS OF SAID LOT 3; THENCE NORTH 3° 45' 29" WEST 392.19 FEET ALONG SAID EASTERLY LINE; THENCE SOUTH 73° 49' 30" WEST 203.56 FEET TO THE WESTERLY LINE OF SAID LOT; THENCE SOUTH 3° 45' 29" EAST 479.15 FEET TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM THE SOUTHERLY 12.00 FEET, MEASURED AT RIGHT ANGLES FROM THE SOUTH LINE OF SAID LOT 3. ALSO EXCEPTING THEREFROM THAT PORTION THEREOF DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF THE LAND CONVEYED TO THE STATE OF CALIFORNIA BY DEED RECORDED IN BOOK 2613, PAGE 231 OF OFFICIAL RECORDS IN SAID OFFICE; THENCE ALONG THE WESTERLY LINE OF SAID LAND SOUTH 9° 34' 41" WEST 46.91 FEET; THENCE NORTH 13° 55' 07" WEST
46.02 FEET; THENCE ALONG A NON-TANGENT CURVE CONCAVE SOUTHERLY AND HAVING A RADIUS OF 50.00 FEET, FROM A TANGENT WHICH BEARS NORTH 15° 51' 30" WEST, THROUGH AN ANGLE OF 130° 59' 58" AN ARC DISTANCE OF 114.32 FEET; THENCE TANGENT SOUTH 64° 51' 32" EAST 10.07 FEET TO THE EAST LINE OF THE WEST 2/3 OF SAID LOT; THENCE ALONG SAID EAST LINE SOUTH 3° 24' 32" EAST 21.68 FEET TO THE NORTHERLY LINE OF SAID LAND CONVEYED TO SAID STATE; THENCE ALONG SAID NORTHERLY LINE SOUTH 62° 41'39" WEST
68.49 FEET TO THE POINT OF BEGINNING.
PARCEL 2:
PARCELS 1 AND 2, AS SHOWN ON THE PLAT ATTACHED TO LOT LINE ADJUSTMENT NO. 330 RECORDED MAY 15, 1995 AS INSTRUMENT NO. 95-0208325 OF OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA.
PARCEL 2A:
A NON-EXCLUSIVE EASEMENT FOR VEHICULAR INGRESS AND EGRESS AND UTILITIES OVER THAT PORTION OF LOT 6 OF ORANGE GROVE ACRES, AS 38 SHOWN ON A MAP RECORDED IN BOOK 6, PAGE 42 OF MISCELLANEOUS MAPS,
RECORDS OF ORANGE COUNTY, CALIFORNIA, INCLUDED WITHIN THE LAND DESCRIBED AS FOLLOWS:
COMMENCING AT THE CENTERLINE INTERSECTION OF MILLER STREET AND LA PALMA AVENUE AS SHOWN ON PARCEL MAP NO. 90-334, AS PER MAP RECORDED IN BOOK 271, PAGES 42 AND 43 OF PARCEL MAPS, IN THE OFFICE OF
SAID COUNTY RECORDER, THENCE AT RIGHT ANGLES TO THE CENTERLINE OF SAID LA PALMA AVENUE SOUTH 16° 16' 00" EAST 53.00 FEET TO A POINT ON THE SOUTHERLY LINE OF LA PALMA AVENUE (106 FEET WIDE) AS DESCRIBED IN THE DEED TO THE CITY OF ANAHEIM, AS RECORDED IN BOOK 5794, PAGE 284 OF
OFFICIAL RECORDS OF SAID COUNTY, SAID POINT BEING THE TRUE POINT OF BEGINNING; THENCE EASTERLY ALONG SAID SOUTHERLY LINE NORTH 73° 44' 00" EAST 25.00 FEET; THENCE SOUTH 16° 16' 00" EAST 3223 FEET TO THE
BEGINNING OF A TANGENT CURVE CONCAVE TO THE NORTHEAST HAVING A RADIUS OF 35.00 FEET; THENCE SOUTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 77° 25' 53" AN ARC LENGTH OF 47.30 FEET; THENCE TANGENT TO SAID CURVE NORTH 86° 18' 07" EAST 83.53 FEET TO THE
BEGINNING OF A TANGENT CURVE CONCAVE TO THE SOUTHWEST HAVING A RADIUS OF 60.00 FEET; THENCE SOUTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 89° 55' 59" AN ARC LENGTH OF 94.18 FEET TO A POINT OF TANGENCY ON A LINE PARALLEL WITH AND DISTANT EASTERLY 15
FEET, AS MEASURED AT RIGHT ANGLES, FROM THE EASTERLY LINE OF SAID LOT 6; THENCE SOUTHERLY ALONG SAID PARALLEL LINE SOUTH 3° 45' 54 EAST 1017,06" FEET TO THE NORTH LINE OF THE SOUTH 12 FEET OF LOTS 5 AND 6 OF SAID ORANGE GROVE ACRES; THENCE WESTERLY ALONG SAID NORTH LINE SOUTH 73° 47' 20" WEST 30.72 FEET TO A LINE PARALLEL WITH AND DISTANT WESTERLY 15 FEET, AS MEASURED AT RIGHT ANGLES, FROM SAID EAST LINE OF LOT 6; THENCE NORTHERLY ALONG SAID PARALLEL LINE NORTH 3° 45' 54" WEST 978.30 FEET TO THE BEGINNING OF A NON-TANGENT CURVE CONCAVE TO THE SOUTHWEST HAVING A RADIUS OF 95.00 FEET, A RADIAL LINE FROM SAID NONTANGENT POINT BEARS SOUTH 77° 28' 49" WEST; THENCE
NORTHWESTERLY ALONG SAID NON-TANGENT CURVE THROUGH A CENTRAL ANGLE OF 48° 26' 39", AN ARC LENGTH OF 80.32 FEET TO A POINT ON A NON- TANGENT LINE, A RADIAL LINE THROUGH SAID POINT BEARS NORTH 29° 02' 10" EAST; THENCE LEAVING SAID CURVE SOUTH 86° 18' 07" WEST 81.33 FEET TO THE
BEGINNING OF A TANGENT CURVE CONCAVE TO THE NORTHEAST HAVING A RADIUS OF 75.00 FEET; THENCE NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 77° 25' 53" AN ARC LENGTH OF 101.36 FEET; THENCE NORTH 16° 16' 00" WEST 30.00 FEET TO SAID SOUTH LINE OF LA PALMA AVENUE; THENCE EASTERLY ALONG SAID SOUTH LINE NORTH 73° 44' 00" EAST
25.00 FEET TO THE TRUE POINT OF BEGINNING.
PARCEL 3:
THAT PORTION OF LOT 3 OF ORANGE GROVE ACRES, IN THE CITY OF ANAHEIM, 39 COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP THEREOF RECORDED IN BOOK 6, PAGE 42, MISCELLANEOUS MAPS, RECORDS OF SAID ORANGE COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF SAID LOT 3, SAID POINT BEING IN THE CENTER LINE OF LA PALMA AVENUE (40.00 FEET WIDE); THENCE SOUTH 3° 45' 29" EAST ALONG THE WESTERLY LINE OF SAID LOT 3 A DISTANCE OF 764.48 FEET TO A POINT THAT IS NORTH 3° 45' 29" WEST 479.15 FEET FROM THE SOUTHWEST CORNER OF SAID LOT 3 SAID POINT ALSO BEING THE NORTHWEST CORNER OF THE LAND DESCRIBED IN DEED TO FREDERICK P. MORLEY AND OTHERS, RECORDED APRIL 28, 1959, IN BOOK 4687, PAGE 372, OFFICIAL RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY; THENCE NORTH 73° 49' 30" EAST ALONG THE NORTHERLY LINE OF SAID LAND TO MORLEY, 203.56 FEET TO A POINT IN THE EASTERLY LINE OF THE WESTERLY 2/3RDS OF SAID LOT 3, SAID POINT BEING THE NORTHEAST CORNER OF SAID MORLEY LAND; THENCE NORTH 3° 45' 29" WEST ALONG SAID EASTERLY LINE OF THE WESTERLY 2/3RDS OF LOT 3 A DISTANCE OF 764.81 FEET TO A POINT IN
SAID CENTER LINE OF LA PALMA AVENUE, SAID CENTER LINE BEING THE NORTH LINE OF SAID LOT 3; THENCE SOUTH 73° 44' 00" WEST 203.56 FEET TO THE POINT OF BEGINNING.
PARCEL 3A:
THE WEST ONE-THIRD OF LOT 2 AND THE EAST ONE-THIRD OF LOT 3, BOTH OF ORANGE GROVE ACRES, AS PER MAP RECORDED IN BOOK 6, PAGE 42 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA. EXCEPT
THAT PORTION THEREOF LYING SOUTHERLY OF THE NORTHERLY LINE OF THE
LAND DESCRIBED IN THE DEED TO THE STATE OF CALIFORNIA RECORDED MAY 4, 1964 IN BOOK 7029, PAGE 419 OF OFFICIAL RECORDS. PARCEL 38: THAT PORTION OF LOT 4,OF ORANGE GROVE ACRES, AS PER MAP RECORDED IN BOOK 6, PAGE 42 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY,
CALIFORNIA, LYING EASTERLY AND NORTHEASTERLY OF THE FOLLOWING DESCRIBED LINE: BEGINNING AT A POINT ON THE NORTHERLY LINE OF SAID LOT 4, SOUTH 73° 44' 00" WEST 85.29 FEET FROM THE NORTHEASTERLY CORNER OF SAID LOT 4, SAID POINT BEING ON THE CENTERLINE OF LA PALMA AVENUE (40.00 FEET WIDE); THENCE SOUTH 03° 45' 29" EAST 662.78 FEET, PARALLEL WITH THE EASTERLY LINE OF SAID LOT 4; THENCE SOUTHEASTERLY 117.77 FEET TO A POINT ON SAID EASTERLY LINE NORTH 03° 45' 29" WEST 479.15 FEET FROM THE SOUTHEASTERLY CORNER OF SAID LOT 4, SAID POINT BEING THE NORTHWEST CORNER OF THE LAND DESCRIBED IN THE DEED TO FREDERICK P. MORLEY AND OTHERS RECORDED APRIL 28, 1959 IN BOOK 4687, PAGE 372 OF OFFICIAL RECORDS OF SAID ORANGE COUNTY.
40 EXHIBIT "B"
FINAL SITE PLAN
Exhibit No. Title
1 Title Sheet
2 Site data and parking
3 Tentative Parcel Map
4 Grading and utilities
5 Site Plan / Buildout
6 Site Plan / Three Phases
7 Conceptual Signage
8 Illustrative Site Plan
9-12 Building sections and elevations
13 Hospital floor plans
14 POB floor plans
15 Parking structure floor plans
16 Landscape plan
17 Colored site plan
18 Colored rendering
41 EXHIBIT "C"
DEVELOPMENT APPROVALS
EXHIBIT "C-1" DEVELOPMENT AGREEMENT CONDITIONS OF APPROVAL EXHIBIT "C-2" CONDITIONAL USE PERMIT RESOLUTION
EXHIBIT "C-1"
Development Agreement No. 2007-00003
CONDITIONS OF APPROVAL
"OWNER" shall be as defined in subsection 1.16 of Section 1 DEFINITIONS of Development Agreement No. 2007-00003.
Planning
1. That the project is expressly conditioned upon the OWNER indemnifying and holding harmless the City, its agents, officers, council members, employees, boards, commissions and their members and the City Council from any claim, action or proceeding brought against any of the foregoing individuals or entities, the purpose of such litigation being to attack, set aside, void or annul any approval of the application or related decision, or the adoption of any environmental documents which relates to the approval of the Proposed Actions. This indemnification shall include, but is not limited to, all reasonable damages, costs, expenses, attorney fees or expert witness fees that may be awarded to the prevailing party, and costs of suit, attorneys' fees, and other costs, liabilities and expenses arising out of or in connection with the approval of the application or related decision, whether or not there is concurrent, or passive negligence on the part of the City, its agents, officers, council members, employees, boards, commissions and their members and the City Council. The OWNER shall have the right to select legal counsel. The City shall have the right to approve, which approval will not be unreasonably withheld, the legal counsel providing the City's defense, and the OWNER shall reimburse the City for any costs and expenses reasonably incurred by the City in the course of the defense. No later than 30 (thirty) days following the City Council's adoption of the Ordinance adopting Development Agreement No. 2007-00003, the OWNER shall provide a letter to the City satisfactory to the City Attorney's Office memorializing the foregoing.
2. That this Development Agreement No. 2007-00003 is granted expressly conditioned upon approval of Conditional Use Permit No. 2006-05146, Specific Plan Amendment No. 2007- 00048, and Tentative Parcel Map No. 2007-195, and the determination by the City Council that ElR No. 2007-00337, along with Mitigation Monitoring Plan No. 147 are adequate to serve as the environmental documentation for these actions.
3. The Planning Director has the authority to grant the modification of the timing of any of the conditions of approval of Development Agreement No. 2007-00003, provided said modification does not result in any increase in environmental impacts for which sufficient mitigation cannot be provided. Any request for such modifications shall be in writing and shall clearly identify the reason for the modification. Appeal of such decision shall be provided pursuant to Section 18.60.135 (Appeals — Planning Director Decisions) of the Anaheim Municipal Code.
4. That OWNER shall be responsible for compliance with all mitigation measures within the assigned time frames and any direct costs associated with Mitigation Monitoring Plan No. 147 43 as established by the City of Anaheim and as required by Section 21081.6 of the Public Resources Code to ensure implementation of those identified mitigation measures.
5. That prior to issuance of any sign permit, OWNER shall submit a coordinated sign program for the review and approval of the Planning Department. Any decision by the Planning Department may be appealed to the Planning Commission as a Reports and Recommendations item
6. That the Parking Areas shall be constructed so that there will be sufficient parking spaces available within the Property to serve the Project, as depicted and substantially in conformance with the Final Site Plan. Prior to commencement of construction of the first building within the Project, OWNER shall restrict the use of the Parking Areas to tenants, visitors, patrons, invitees and other users of the Permitted Development, with the exception of occasional hospital/medical and non profit related special events, and shall record a covenant against the Property in a form approved by the City Attorney stating that the use of the Parking Areas shall be limited in that manner.
7. That prior to the issuance of building permits for the parking structure, plans shall show that all necessary columns are provided and that the striping/layout meets all Code requirements.
8. That prior to the issuance of the first building permit, plans shall show that all proposed water vaults, telecommunication utilities, and all other above-ground utilities shall be located behind the setback and fully screened as required by Code or integrated within the proposed buildings.
9. That final elevation plans, including colored elevations and a material board, shall be submitted to the Planning Department for review and approval by the Planning Commission as a Reports and Recommendations item.
Public Works, Development Services
10. Prior to the first final building and zoning inspection, OWNER shall execute and record with the Orange County Recorder a declaration of Covenants, Conditions and Restrictions ("CC&Rs") to run with the land, satisfactory to the Planning Director, City Engineer and the City Attorney, creating maintenance obligations to maintain the following areas and facilities (collectively referred to hereinafter as the "Maintenance Areas and Facilities") as indicated below:
(a) Private drives and parking (if applicable), including sidewalks, landscaping, street lighting, mounted lighting, signage, striping and parkways. (b) Private sewer lines, grease interceptors, manholes and clean outs. (c) Private storm drain lines, area drains, inlets, manholes and catch basins. (d) Treatment Controls Best Management Practices for Water Quality Management Plan. (e) Demonstrate that the OWNER is prepared to implement all non-structural BMP's described in the Project WQMP.
44 (g)
(h)
(f) Demonstrate that an adequate number of copies for all responsible parties of the approved Project WQMP are available on-site.
Internal landscape areas, courtyards, common areas.
Internal hardscape and enhanced paving areas.
On-site fountains and art elements.
Enclosed parking structure with trash collection areas.
Bicycle storage areas.
Site lighting systems.
Trash collection and facilities including the Solid Waste Management Plan for the Project as approved by the CITY.
(n) Squeal-free surfaces in parking structures.
(o) Maintenance of on-site signs and awnings.
(p) Outdoor seating and dining areas.
(q) Maintenance of all security equipment required by the Police Department including antennas providing radio communication.
(r) Maintenance of private water meters and backflow devices. (s) OWNER shall initiate the removal of all graffiti from the Property within twenty-four (24) hours of occurrence and shall complete any necessary painting or repair within five (5) days.
(t) Ongoing during operation, provision for the property to be permanently maintained in an orderly fashion by providing regular landscape maintenance and removal trash or debris. (u) Provision for the replacement of any landscaping planted on-site in accordance with project landscaping plans in a timely manner in the event that landscaping is removed, damaged, diseased, and/or dead.
(v) Provision for continued implementation of all mitigation measures from Mitigation Monitoring Plan No. 147 that require on-going execution. (w) Provision for continued maintenance of all automatic fire sprinkler systems and fire alarm system.
(x) Provisions to ensure that ongoing during business operations, no required parking area shall be fenced or otherwise enclosed for outdoor storage uses. 45 (y) Provision of agreement with the Anaheim Transportation Network (ATN).
The obligations described above and depicted in the Maintenance Exhibit shall collectively be referred to as the "Maintenance Obligations." The OWNER shall be responsible for the maintenance of the Maintenance Areas and Facilities and performance of the Maintenance Obligations, including any additional obligations, which may be specified herein. The CC&Rs set forth herein constitutes a general scheme for the development, protection and maintenance of the Property. Said CC&Rs is for the benefit of the Property and shall bind all successor owners thereof. Such CC&Rs shall be a burden upon, and a benefit to, not only the OWNER but also its successors and assigns. Such CC&Rs are intended to be and shall be declared to be running with the land or equitable servitudes upon the land, as the case may be.
The CC&Rs shall provide that amendment of any provision thereof, which may negatively impact performance of the Maintenance Obligations, shall require prior written consent of the City. Termination of the CC & R's is not a release of Declarant with regard to Declarant's independent obligations in connection with development and approval of the Project or with regard to obligations and liabilities incurred prior to such termination.
11. That prior to issuance of the grading permit, the OWNER shall submit to the Public Works Department, Development Services Division for review and approval a Water Quality Management Plan that:
• Addresses Site Design Best Management Practices (BMP's) such as minimizing impervious areas, maximizing permeability, minimizing directly connected impervious areas, creating reduced or "zero discharge" areas, and conserving natural areas; • Incorporates the applicable Routine Source Control BMP's as defined in the Drainage Area Management Plan (DAMP);
• Incorporates Treatment Control BMP's as defined in the DAMP; • Describes the long-term operation and maintenance requirements for the Treatment Control BMP's;
• Identifies the entity that will be responsible for long-term operation and maintenance of the Treatment Control BMP's, and describes the mechanism for funding the long-term operation and maintenance of the Treatment Control BMP's; and • Ensures implementation of the Water Quality Management Plan during on-going grading operations.
12. That prior to the first final building and zoning inspection, the OWNER shall, to the satisfaction of the Department of Public Works, Development Services Division:
• Demonstrate that all structural BMP's described in the Project WQMP have been constructed and installed in conformance with approved plans and specifications; and 46 • Demonstrate that the OWNER is prepared to implement all non-structural BMP's described in the Project WQMP; and
• Demonstrate that an adequate number of copies of the approved Project WQMP are available on-site; and
• Submit for review and approval by the City an Operation and Maintenance Plan for all structural BMPs.
13. That prior to approval of the first building permit, a maintenance covenant must be recorded by the OWNER. Prior to recordation, the OWNER shall submit the maintenance covenant to the Department of Public Works, Development Services Division, for approval by the City Engineer and the City Attorney. The covenant shall include provisions for maintenance of facilities as required above, including compliance with the approved Water Quality Management Plan and a maintenance exhibit.
14. That prior to issuance of the grading permit, the OWNER shall demonstrate that coverage has been obtained under California's General Permit for Stormwater Discharges Associated with Construction Activity by providing a copy of the Notice of Intent (NOT) submitted to the State Water Resources Control Board and a copy of the subsequent notification of the issuance of a Waster Discharge Identification (WDID) Number. The OWNER shall prepare and implement a Stormwater Pollution Prevention Plan (SWPPP). A copy of the current SWPPP shall be kept at the project site and be available for City review on request.
15. That prior to issuance of the grading permit, the OWNER shall submit a Drainage Study prepared by a registered professional Civil Engineer in the State of California. The study shall be based upon and reference the latest edition of the Orange County Hydrology Manual and the applicable City of Anaheim Master Plan of Drainage for the project area. All drainage sub-area boundaries per the Master Plan for Drainage shall be maintained. The study shall include an analysis of 10, 25, and 100-year storm frequencies, an analysis of all drainage impacts to the existing storm drain system based upon the ultimate project build-out condition, and address whether off-site and/or on-site drainage improvements (such as detention/retention basins or surface run-off reduction) will be required to prevent downstream properties from becoming flooded. The lateral storm drains will be necessary to meet the surface flow requirements stated in the drainage criteria.
16. That prior to issuance of the first building permit, plans shall indicate that all driveways shall be constructed with ten (10) foot radius curb returns as required by the City Engineer in conformance with applicable City of Anaheim, Department of Public Works, Standard Plans and Details.
17. That prior to final parcel map approval, all existing structures shall be demolished. The OWNER shall obtain a demolition permit from the Planning Department, Building Division. 47 18. That prior to issuance of the first building permit, OWNER shall irrevocably offer to dedicate to the City of Anaheim an easement 60 feet in width from the centerline of La Palma Avenue for street, public utility and/or other public purposes.
19. That prior to issuance of the first building permit, OWNER shall obtain a Right of Way Construction Permit from the Public Works Department, Development Services Division to replace curb, gutter, parkway landscaping, and sidewalks on those requisite portions of La Palma Avenue, and shall be maintained by OWNER. A bond shall be posted in an amount approved by the City Engineer and a form approved by the City Attorney prior to the issuance of the first building permit. The improvements shall be installed prior to final zoning and building inspection.
20. That sanitary sewer, private streets within the development, and storm drains for this development shall be privately maintained by OWNER prior to the approval of the CC&Rs as required above.
21. That prior to issuance of the first building permit and right-of-way construction permit for the storm drain, whichever occurs first, a Save Harmless in-lieu of Encroachment Agreement is required to be recorded on the property for any private storm drains connecting to a City storm drain.
22. That a final parcel map shall be submitted to and approved by the City of Anaheim and the Orange County Surveyor and then shall be recorded in the Office of the Orange County Recorder.
23. That OWNER shall execute a Subdivision Agreement, in a form approved by the City Attorney, to complete the required public improvements at the OWNER's expense. Said agreement shall be submitted to the Public Works Department, Subdivision Section and approved by the City Attorney and City Engineer and then recorded concurrently with the final parcel map.
24. That prior to issuance of the first building permit, the following shall be submitted and approved by the Public Works Department:
• Proof of Final Parcel Map recordation
• Any revisions to the original grading plan related to the building pad(s) • Two copies of the interim soils report indicating pad compaction and site stability • The original and two copies of a letter of certification for the building pads from the civil engineer.
25. That prior to issuance of first building permit, OWNER shall obtain a Right of Way Construction Permit from Public Works/Development Services to widen and replace curb, gutter, parkway landscaping/irrigation, and sidewalks on those requisite portions of La Palma Avenue, and shall be maintained by OWNER. A bond shall be posted in an amount approved by the City Engineer and a form approved by the City Attorney prior to the issuance of the first 48 building permit. The improvements shall be installed prior to final zoning and building inspections.
26. Bonds required for traffic-related improvements shall be posted in the amounts required and in accordance with Public Works requirements and the Subdivision Map Act except that the timing of these bonds for traffic-related improvements where the permit is issued by outside agencies such as Caltrans may be deferred in light of the extended period of time before such improvements are required to be installed subject to approval of the City's Traffic and Transportation Manager.
27. That prior to final parcel map approval, the existing 60-foot wide utility and access easement adjacent to the SR-91 Freeway shall be abandoned.
Streets and Sanitation
28. That prior to issuance of the first building permit, Owner shall submit a final written solid waste management plan signed by the OWNER to the Streets and Sanitation Division of the Public Works Department for review and approval. The property owner shall then operate in accordance with the approved written solid waste management plan, as it may be modified by OWNER from time to time subject to written approval by the Director of Public Works. Said solid waste management plan shall be incorporated into the recorded CC&Rs for the Property required pursuant to conditions contained herein.
29. That prior to issuance of the first demolition permit, OWNER shall submit a demolition recycling plan for review and approval by the Public Works Department, Streets and Sanitation Division. The demolition recycling plan shall indicate type of material to be demolished, anticipated tonnage diverted and anticipated tonnage landfilled. Inert demolition material (dirt, concrete, masonry, asphalt, etc.) shall be disposed of in an inert reclamation site, or diverted by other means rather than landfilled.
30. That plans shall indicate trash storage areas in a location acceptable to the Public Works Department, Streets and Sanitation Division, as depicted in the approved Final Site Plan.
Water
31. That prior to issuance of the first building permit, plans shall be submitted for approval by the Public Utilities Department, Water Engineering Division and the Cross Connection Control Inspector demonstrating that all backflow equipment shall be located above ground outside of the street setback area in a manner fully screened from all public streets and alleys in locations approved by the Water Engineering Division of the Public Utilities Department and the Planning Department. Any backflow assemblies currently installed in a vault shall be brought up to current standards. Any other large water meter system equipment shall be installed to the satisfaction of the Public Utilities Department, Water Engineering Division above ground and outside of the street setback area on private property in an easement, in a manner fully screened through landscaping from all public streets and alleys. 49 32. That prior to issuance of the first building permit, plans shall demonstrate that all existing water services and fire lines shall conform to current Water Utility Standards to the satisfaction of the Public Utilities Department, Water Engineering Division. Any existing water services and/or fire lines that are not approved by the Utility for continued use shall be upgraded to current standards, or abandoned, if no longer needed, by the OWNER prior to approval of the grading plan.
33. That prior to issuance of the first building permit all requests for new water services or fire lines, as well as any modifications, relocations, or abandonment of existing water services and fire lines, shall be processed through and approved by the Public Utilities Department, Water Engineering Division.
34. That prior to submitting an application for water meters, fire lines or water improvement plans for approval, whichever occurs first, OWNER shall submit to the Public Utilities Department, Water Engineering Division, an estimate of the maximum fire flow rate and maximum day and peak hour water demands for the entire project. This information will be used to determine the adequacy of the existing water system to provide the estimated water demands. Any off-site water system improvements required to serve the project shall be done in accordance with Rule No. 15A.6 of the Water Utility Rates, Rules, and Regulations.
35. That prior to issuance of the first building permit, because this project has a landscaping area exceeding 2,500 square feet, plans shall specifically show that a separate irrigation meter shall be installed in compliance with City Ordinance No. 5349 and Chapter 10.19 of the Anaheim Municipal Code. Said information shall be specifically shown on plans submitted for building permits. OWNER shall install the required meter and backflow device prior to the first final building and zoning inspection.
36. That prior to issuance of the first building permit, OWNER shall irrevocably offer to dedicate to the City of Anaheim an easement on OWNER's Property for all large domestic water meters, including a five (5) foot wide easement around the water meter pad, a twenty (20) foot wide easement for all water service laterals, and an easement for other public water facilities to the satisfaction of the Water Engineering Division of the Public Utilities Department. The requirements and easement notes of the Public Utilities Department, Water Engineering Division shall be included in all easement dedications/deeds for water facilities.
37. That all existing water services and fire lines shall conform to current Water Services Standards Specifications. Any water service and/or fire line that does not meet current standards shall be upgraded if continued use is necessary or abandoned if the existing service is no longer needed. OWNER shall be responsible for the costs to upgrade or abandon any water service or fire line.
Fire
38. That prior to issuance of the first building permit and prior to commencement of structural framing, fire hydrants shall be installed and charged as required by the Fire Department and shall meet minimum Fire Department Specifications and Requirements for spacing, distance to 50 structure and available fire flow. Said information shall be specifically shown on plans submitted for building permits.
39. That prior to issuance of the first building permit, or prior to delivery of combustible materials for construction of buildings, whichever occurs first, OWNER shall complete all necessary water facilities to provide the fire flows required by the Fire Department. Said information shall be specifically shown on plans submitted for building permits.
40. That during construction, an all-weather access road as approved by the Fire Department shall be provided.
41. That prior to final building and zoning inspection, a fire alarm system shall be designed, installed and maintained as required by the Fire Department. Said information shall be specifically shown on plans submitted for building permits. Provisions for continued maintenance of the fire alarm system shall be included in the recorded CC&Rs for the project required pursuant to the conditions contained herein.
42. That prior to issuance of the first building permit, plans shall show how emergency vehicular access will be provided and maintained in accordance with Fire Department Specifications and Requirements.
43. That prior to final building and zoning inspection, an automatic fire sprinkler system shall be designed, installed and maintained as required by the Fire Department. Said information shall be specifically shown on plans submitted for building permits. Provisions for continued maintenance of the fire sprinkler system shall be included in the recorded CC&Rs for the project pursuant to the conditions contained herein.
44. That prior to issuance of the first building permit, as determined by the Fire Chief in consultation with City staff, OWNER shall enter into an agreement with the City for the installation of traffic signal preemption equipment for the surrounding controlled intersections.
Electrical
45. That prior to issuance of the first building permit, plans shall demonstrate that all above-ground utility devices shall be located on private property and outside any required setback areas unless otherwise permitted by Code.
46. That prior to issuance of the first building permit, plans shall show the location and required landscape and/or hardscape screening of all pad-mounted equipment.
47. That any required relocation of City electrical facilities shall be at OWNER's expense per the Electrical Rates, Rules, and Regulations.
48. That the property is to be served with underground utilities per the Electrical Rates, Rules, and Regulations.
51 49. That prior to final building and zoning inspection, OWNER shall provide the City of Anaheim with a public utilities easement (per final electrical design), along/across high voltage lines, low voltage lines crossing private property, and around all pad-mounted transformers, switches, capacitors, etc. on OWNER's Property. Said easement shall be submitted to the City of Anaheim prior to connection of electrical service.
50. That prior to issuance of the first building permit, OWNER shall finalize the abandonment of any existing public utilities easements to the satisfaction of the Department of Public Works, Development Services Division and the Public Utilities Department, Electrical Engineering Division.
Police
51. As shown on approved Final Site Plan, OWNER shall submit plans to the Police Department for review and approval for the purpose of incorporating safety measures in the project design including the concept of crime prevention through environmental design (e.g. building design, circulation, site planning, and lighting of parking structures and parking areas).
52. That prior to issuance of the first building permit including the parking structure, OWNER shall submit plans for review and approval by the Police Department indicating closed circuit television (CCTV) security cameras shall be installed to monitor the parking structure and lobby entrances to the satisfaction of the Anaheim Police Department. Said information shall be specifically shown on plans submitted for building permits. Security cameras and emergency stations shall be installed and operational to the satisfaction of the Anaheim Police Department prior to the final building and zoning inspection.
53. That prior to issuance of building permits, plans shall show that 4-foot-high address numbers shall be displayed on the roof of the building in a contrasting color to the roof material. Said numbers shall not be visible from view of the street or adjacent properties. Said information shall be subject to the review and approval of the Police Department and the Planning Department, Planning Services Division. Said numbers shall be provided prior to the first final building and zoning inspection for each building.
54. That prior to issuance of building permits, plans shall indicate that the building address shall be clearly marked with its appropriate building number and address. These numbers shall be positioned so they are easily viewed from vehicular and pedestrian pathways throughout the complex. The building number shall be a minimum of 12-inches in height. Main building numbers and address numbers shall be illuminated during hours of darkness. Said numbers shall be installed prior to the first final building and zoning inspection for each building.
55. That prior to issuance of the first building permit, plans shall indicate that adequate lighting shall be provided throughout the project, including circulation areas, aisles, passageways, recesses, and grounds contiguous to buildings with lighting of sufficient wattage to provide adequate illumination to make clearly visible the presence of any person on or about the premises during the hours of darkness and provide a safe, secure environment for all persons, 52 property, and vehicles on-site. Said lighting shall be installed prior to the first final building and zoning inspection for the parking structure.
56. That prior to issuance of the building permit for the parking structures, plans shall show that a minimum lighting level of one (1) foot-candle measured at the parking surface shall be maintained for the parking structures with a maximum to minimum ratio no greater than 10:1.
Said lighting shall be installed prior to the first final building and zoning inspection for the parking structure.
57. That prior to final building and zoning inspections, a lcnox box shall be installed at any roof-top hatchway to allow Police and Fire access to interior.
58. That prior to issuance of the first building permit, plans shall show that windows accessible from the side and rear and not viewable from the street shall consist of rated burglary resistant glazing or its equivalent that attaches to the frame.
59. That prior to issuance of the building permit, OWNER shall comply with Anaheim Ordinance No. 6016, Public Radio System Coverage and complete the Initial tests, as noted in the ordinance. Proof of compliance shall be provided prior to the first final building and zoning inspection.
60. That prior to issuance of the first building permit for the parking structure, plans shall show directional signage, including floor designation and section, on each level of the parking structure to expedite movement within the facility. Said signage shall be a minimum of 12 inches in height and of a contrasting color to the background. It shall be displayed not less than 60 inches from the parking surface and be highly visible form within any portion of the facility.
61. That prior to issuance of the first building permit, plans shall show that emergency exits, not intended as a primary entrance, shall have no exterior handles, knobs, or levers.
62. That prior to issuance of the first building permit, plans shall show that any exterior doors that open in an outward direction that uses pin-type hinges shall have non-removable hinge pins.
63. That ongoing during construction, emergency contact information including contact name and phone number shall be posted on the project site. Said information shall be indicated on plans submitted for building permits.
Traffic
64. That prior to issuance of a building permit, the applicable Citywide Traffic Impact Fee shall be paid to the City of Anaheim, in an amount established by the City Council Ordinance/Resolution. This fee will be used to fund traffic and transportation improvements within the area impacted by this project. Said fee shall be subject to adjustment by the City Council.
65. That prior to the issuance of the first building permit, street improvement plans shall be submitted for the new traffic signal and related traffic circulation improvements at the 53 intersection of La Palma Avenue and Cosby Way to the Public Works Department, Development Services Division for review and approval. All improvements shall be installed and completed prior to the first final building and zoning inspection.
66. That prior to issuance of building permits, a bond shall be posted for all traffic related street improvements, including, but not limited to, traffic signals (including modification of the signals and relocation of signal poles and equipment), directional signage, striping, and median islands as required for said project. All improvements identified as required for the project opening shall be completed prior to final building and zoning inspection.
67. That prior to the issuance of a building permit, plans shall be submitted to the City Traffic and Transportation Manager for his review and approval showing conformance with all applicable City of Anaheim, Department of Public Works, Standard Plans and Details pertaining to parking standards and driveway locations. Subject property shall thereupon be developed and maintained in conformance with said plans.
68. That prior to the issuance of a building permit, plans shall be submitted to show any proposed gates and shall demonstrate that gates shall not be installed across any driveway in a manner which may adversely affect vehicular traffic on the adjacent public street. Installation of any gates shall conform to all applicable City of Anaheim, Department of Public Works, Standard Plans and Details. The location of any proposed gates shall be subject to the review and approval of the City Traffic and Transportation Manager.
69. That ongoing during business operations, no parking area shall be fenced off or otherwise enclosed for outdoor storage uses.
70. That prior to the issuance of a building permit, plans shall show conformance with all applicable City of Anaheim, Department of Public Works, Standard Plans and Details pertaining to sight distance visibility for signs and wall/fence locations to the satisfaction of the City Traffic and Transportation Manager.
71. That prior to final building and zoning inspection, fire lanes shall be posted with "No Parking Any Time." Said information shall be specifically shown on plans submitted for building permits.
72. That prior to issuance of building permits, plans shall specifically indicate that all vehicular ramps and grades conform to all applicable City of Anaheim, Department of Public Works, Standard Plans and Details to the satisfaction of the City Traffic and Transportation Manager.
73. That prior to issuance of the first building permit for the parking structure, plans shall demonstrate that at-grade ducts and overhead pipes shall not encroach in the parking space area or required vehicle clearance area.
Parks
54 74. That prior to issuance of a building permit, the applicable Citywide Park Fee shall be paid to the City of Anaheim, in an amount established by the City Council Ordinance/Resolution. Said fee shall be subject to adjustment by the City Council.
Miscellaneous
75. That the property shall be permanently maintained in an orderly fashion by providing regular landscape maintenance, removal of trash or debris, and removal of graffiti.
76. That subject property shall be developed substantially in accordance with plans and specifications submitted to the City of Anaheim by project applicant and which plans are on file with the Planning Department marked Exhibit Nos. 1 through 18 of Conditional Use Permit No. 2006-05146, and as conditioned herein.
77. That the applicant is responsible for paying all charges related to the processing of this discretionary case application within seven (7) days of the issuance of the final invoice or prior to the issuance of building permits for this project, whichever occurs first. Failure to pay all charges shall result in delays in the issuance of required permits or the revocation of the approval of this application.
See also attached Mitigation Monitoring Plan No. 147.
55 EXHIBIT "C-2"
Conditional Use Permit No. 2006-05146 Resolution
56 EXHIBIT "D"
Anaheim Canyon Area Metrolink Station
57 EXHIBIT "E"
PRELIMINARY TITLE REPORT
58