CITY COUNCIL AGENDA ITEM NO. 3
Meeting Date: July 24, 2001
Subject/Title: Second reading and adoption of Ordinance No. 676 - John Muir/Mt. Diablo Health System General Plan Amendment, Rezone, and Development Agreement
Submitted by: Mitch Oshinsky, AICP, Community Development Director
Approved by: Jon Elam, City Manager
RECOMMENDATION: Waive second reading and adopt Ordinance No. 676.
PREVIOUS ACTION: On July 6, 2001, the Council waived first reading and introduced the Ordinance.
BACKGROUND: Adoption of this Ordinance will enable the project to be developed as proposed by the applicant, and as stipulated in the Development Agreement.
ORDINANCE NO. 676
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD APPROVING: A MITIGATED NEGATIVE DECLARATION; GENERAL PLAN AMENDMENT; REZONE AND DEVELOPMENT AGREEMENT FOR THE PROPERTY LOCATED ON THE SOUTH SIDE OF BALFOUR ROAD, WEST OF EXISTING CONCORD AVE./FUTURE HIGHWAY 4 BYPASS.
The Council of the City of Brentwood does ordain as follows:
SECTION 1. The City Council hereby finds and determines as follows:
- John Muir/Mt. Diablo Health System ("JMMD") has purchased a legal interest in certain real property, consisting of approximately 58 acres near the intersection of Balfour Road and Concord Avenue ("Property") and;
- JMMD intends to construct various medical facilities which may include a urgent care, emergency care, medical offices, wellness center, and a hospital on the Property; and
- JMMD has applied for: a General Plan Amendment from the existing combination of office, neighborhood commercial and high density residential uses, to create a new Special Planning Area (SPA) Q, to allow a medical campus, commercial/office and high density residential uses; a Rezone from Planned Development (PD) 20, which divides the site into several subareas, allowing for general commercial, planned employment center, and residential uses, to create a new PD 49 Zone specifically tailored for the Muir site, including a Conceptual Site Plan, intended to implement the SPA General Plan designation; and a Development Agreement, for the subject site of 57.6 acres located on the south side of Balfour Road, west of existing Concord Ave./future Highway 4 Bypass; and
- The Planning Commission has approved a recommendation to the City Council to enter into the Development Agreement based upon the findings outlined in its May 1, 2001, Resolution No. 01-24 and the Planning Commission's determination the proposed Development Agreement conforms to the findings set forth in Brentwood Municipal Code §17.810.008.
The Planning Commission's recommendation is to approve the General Plan Amendment, Rezone, Development Agreement and the Project, including the project approvals as outlined in the Development Agreement, and subsequent approvals and certain alternatives to the Project. The Planning Commission has reviewed and assessed the environmental impacts of the Development Agreement and Project based upon the California Environmental Quality Act, California Public Resources Code Section 21000, et seq. the CEQA guidelines, and California Code of Regulations, Title 14, Section 1500, et seq. and the City's local guidelines and based on earlier EIR and planning studies, including a traffic study for the Property and its proposed land uses and adjacent planned uses as well as the Initial Study/Mitigated Negative Declaration adoption; and
- A Notice of Mitigated Negative Declaration for the subject General Plan Amendment, and Rezone has been prepared as required by CEQA and that mitigation measures have been incorporated into the project which are intended to reduce the identified impacts to a less than significant level; and
- A Notice of Public Hearing before the City Council was mailed to all property owners of record within 300 feet of the project and published in the Ledger Dispatch; and
- On June 12, 2001, the City Council conducted a duly noticed public hearing, for the above listed items, considered the staff recommendation and public comment; and
- After the close of the public hearing, the City Council considered all public comments received both before and during the public hearing, the presentation by City staff, the staff report, and all other pertinent documents and associated actions regarding the proposals, and continued the matter to July 6, 2001; and
- The Mitigated Negative Declaration (MND) for the Project has been prepared and circulated in accordance with all applicable provisions of CEQA and represents the independent judgment of the City of Brentwood. Pursuant to Sections 15168(c) and 15162 of the CEQA Guidelines, the City Council finds that the project is within the scope of the development levels evaluated in the Program EIR prepared for the 1993 City of Brentwood General Plan. The Initial Study has further evaluated potential project specific impacts to the environment. Based upon this evidence and the Mitigated Negative Declaration this City Council finds that any potentially significant adverse environmental impacts generated by this project will be reduced to acceptable levels by implementation of the mitigation measures recommended in the MND, and incorporated as provisions of this project by reference; and
- The City Council further finds that no significant new information within the meaning of Public Resources Code Section 21092.1 and CEQA Guidelines Section 15088.5 has been presented to the City which would necessitate recirculation of the Mitigated Negative Declaration for further public review; and
- On the basis of the whole record before it, there is no substantial evidence that this project will have a significant effect on the environment, and the Mitigated Negative Declaration reflects the City Council’s independent judgment and analysis; and
- The General Plan Land Use Element Text and Map Amendment shown below is consistent with and implements the General Plan; and
- The General Plan Amendment is internally consistent with the General Plan; and
- The Zoning Amendment is consistent with the General Plan and other applicable City plans, and is appropriate to the public interest, in that it will help implement several General Plan Policies, and protect, maintain and enhance the built environment and economy of Brentwood; and
- Both parties acknowledge that the JMMD's Property is larger than what is needed for a medical campus given the campus' proposed service area population; and
- Both parties acknowledge that JMMD intends to develop the area of the Property not needed for medical campus as an employment generating mixed-use campus consisting of possible medium to very high-density residential units, retail, and medical, and professional office uses; and
- City acknowledges JMMD's uncertainty regarding the future health care needs of the City and medical campus's proposed service area and JMMD's need to maintain flexible for its future development options on the Property; and
- Both parties agree that medical uses are intended to be constructed on the 37.4 acre portion of the Property ("East Site") as set forth in the Development Agreement; and
- The remainder to the Property consisting of approximately 20.28 acres ("West Site") is planned for possible commercial, office uses, or medium to very high density residential uses; and
- In order to expedite health care provision in the City and to encourage JMMD to move forward with its Project applications, the City and JMMD desire to enter into a Development Agreement as provided by Brentwood Municipal Code Chapter 17.810.; and
- The City desires to promote the orderly development of the subject real property described in the Development Agreement between the City of Brentwood and JMMD ("Development Agreement") and to outline the applicable law, regulations, ordinances, resolutions, policies, and standards and specifications, permitted uses, and restrictions on moratoria and other limitations on the rate or timing of development, and the life of subdivision maps.
SECTION 2. The City Council of the City of Brentwood acts as follows:
- Approves the Mitigated Negative Declaration, and Mitigation Monitoring Program and authorizes the filing of a Notice of Determination for the project.
- Approves the amendment of the General Plan Land Use Element text and Map on the subject property as described below.
- Approves the amendment of Zoning text and Map as described below.
SECTION 3. INCORPORATION. The foregoing sections, findings, and staff report statements are found and determined to be true and correct.
SECTION 4. COMPLIANCE. The Development Agreement has been processed, considered, approved, and executed in accordance with Brentwood Municipal Code Chapter 17.810.
SECTION 5. FINDINGS PURSUANT TO B.M.C. §17.810.008. The City Council specifically further finds as follows:
- The development agreement is consistent with the objectives, policies, general land uses and programs specified in the City General Plan and any applicable specific plans as it provides for the creation of new jobs in an attempt to attain a 1:5 housing to jobs ratio and much needed medical care facilities and campus.
- The development agreement will not be detrimental to the health, safety and general welfare of persons residing in the immediate area, nor be detrimental or injurious to property or persons in the general neighborhood or to the general welfare of the residents of the city as a whole, as it simply carries out the land use and zoning designations approved for the Property.
- The development agreement will not adversely affect the orderly development of property or the preservation of property values as it is the intention of the development agreement to implement the existing land use and zoning designations for the Property as suggested in the General Plan update process.
- As there is an applicable specific plan to the subject sites, the finding concerning facilitation of the implementation of a specific plan is applicable in this case as determined by the City Council through its
rezoning and Specific Plan amendment process.
The development agreement is consistent with the provisions of Government Code Section 65864 through 65869.5.
SECTION 6. The General Plan Land Use and Noise Elements text and Map, are hereby amended as follows:
- Special Planning Area Q is hereby created on the subject site, and added to the General Plan Land Use Map, per Exhibit A.
- Text for Special Planning Area Q is hereby added to the Special Planning Areas section of the General Plan Land Use Element, as follows.
- Text for Chapter IV of the Noise Element is hereby added, as follows:
SPECIAL PLANNING AREA “Q”
Background: This special planning area, approximately 57 gross acres in size (prior to dedications), is bounded by Balfour Road to the north, the Suncal residential development to the west, the Timms, Spies and future park properties to the south, and the proposed State Route 4 Bypass to the east. Concord Avenue bisects the planning area from the northwest to the south-east, creating an east parcel of approximately 32 net acres (the “East Site”) and a western parcel of approximately 17 net acres (the “West Site”). Based on its proximity to State Route 4 and Balfour Road, as well as its relative central location with respect to transportation infrastructure and the in-fill nature of future development there, this planning area is ideal for a mixed-use development, including medical, business and professional office, commercial, and mid- to high- to very high- density residential (including health-care related residential) uses.
Policy Direction: Consistent with “smart growth” planning principles, provide a mixed use development consisting of Office/Professional, Commercial, Medium Density and/or High Density Residential uses. The medical campus and/or office and commercial land uses should take advantage of existing and projected traffic infrastructure, including the State Route 4 and Balfour Road frontages, with the intent of creating an employment center adjacent to a key regional transportation corridor. The higher density residential uses should generally be located proximate to the office and commercial uses, with mid-density residential uses generally located to the south and west of the Special Planning Area.
The suggested density and intensity of the mixed land uses is as follows:
Up to 625,000 square feet of building area of
Medical Office/ Medical Campus, OR
a combination of the above mixed uses.
Commercial/Retail/Office -- up to 260,000 square feet, OR
Medium- to High to Very High-Density Residential -- up to an average of 25 units per acre, OR
a combination of the above uses
- A coordinated circulation system that provides access to the East Site from both Balfour Road and Concord Avenue with no driveway openings directly onto State Route 4.
- The residential land use shall increase in density as it moves away from the planned or existing single-family residential neighborhoods located to the west and towards the planned Medical/Commercial/Office uses within the planning area, and the Highway.
Design of buildings above two stories shall be designed to minimize obstruction of scenic views of Mt. Diablo and the foothills to the west.
The following language shall be added to Chapter IV, Noise Element:
Police vehicles, fire engines, ambulances and emergency helicopters are necessary and desirable for the health, safety and general welfare of the City’s families, including the elderly, injured workers and children. Under State law, emergency vehicles are entitled to the use of emergency warning sirens. Given the relative infrequency of emergency vehicle related noise disturbances and the overriding policies in State law and this General Plan regarding the need to provide for the rapid, safe transportation of members of the community in emergency situations, police vehicles, fire engines, ambulances and emergency helicopters shall be excluded from the noise policies of this general plan.
SECTION 7. The Zoning Ordinance text and Map, are hereby amended as follows:
- Planned Development Zone (PD) 49 is hereby created on the subject site, and added to the Zoning Map, per Exhibit A.
- Text for PD 49 is hereby added to the Zoning Ordinance as Chapter 17.504, as follows:
PD-49 (PLANNED DEVELOPMENT FORTYNINE) ZONE – JOHN MUIR/MT. DIABLO MEDICAL CAMPUS/MIXED USE AREA
17.504.001 Authority, purpose and intent.
17.504.002 Permitted uses eastern site
17.504.003 Permitted uses western site
17.504.004 Conditionally permitted uses eastern site
17.504.005 Conditionally permitted uses western site
17.504.006 Development standards
17.504.007 Conceptual site plan
17.504.001 Authority, purpose and intent.
The authority, purpose and intent for the adoption of the PD-49 zone are as
- Authority. The PD-49 zone is adopted pursuant to the authority set forth in Chapter 17.450, Planned Development Zones--General Regulations.
- Purpose. Consistent with “smart growth” planning principles, the purpose of the PD-49 zone is to permit and regulate mixed use development of approximately 57 gross acres located south of Balfour Road, west of existing Concord Avenue/future Highway 4 Bypass, and to allow for the phased development of a mix of medical campus, office, retail and residential uses, variations in density and building intensities, innovative design characteristics, that would not normally be permitted in a single-use zone, and retention of greater flexibility to adjust square footage allocated to each permitted use. The precise square footage for each use would be determined at the time of approval of the development plans as described below. The land covered by this PD-49 zone is designated by the Brentwood General Plan as a Special Planning Area (SPA) Q, to be developed consistent with this PD-49 zone.
- Intent. It is intended that, in order to achieve the purpose of the PD-49 zone of implementing a medical campus, mixed-use development in conformance with the Brentwood General Plan, development within the PD-49 zone shall be consistent with the permitted and conditionally permitted uses set forth below. It is further intended that in order to provide for the phased development of the property, development of portions of the property may occur upon the approval of a development plan for each such phase.
17.504.02 Permitted Uses: Eastern Site.
The following uses are permitted on the eastern site within the PD-49 zone.
- Medical facilities, medical offices, hospitals, inpatient and outpatient medical care, birthing facilities, dialysis units, medical and dental laboratory, convalescent hospitals, large residential care facilities, including residential, congregate residential and convalescent care, medical schools and teaching facilities, a single emergency helipad, facilities for the care of the sick or elderly, health club or recreational club, veterinary clinic, public and quasi public uses, such as government office, library, employment office, utility offices, and similar uses, including day care facilities.
- Professional and business offices.
- General commercial retail and service businesses which are ancillary to the primary medical uses, limited to 10% of the total building area on any parcel.
- General retail sales and services
- Other similar uses as determined by the Community Development Director.
17.504.003 Permitted Uses: Western Site.
The following uses are permitted on the western site within the PD-49 zone:
- Professional and business offices.
- Facilities for the care of the elderly including residential, congregate residential and convalescent care; health club or recreational club; veterinary clinic; public and quasi-public uses such as government office, library, employment office, utility offices, and similar uses, including day care facilities.
- General retail sales and services.
- Medium to high to very high density multi-family residential not exceeding an average density of 25 units per acre.
- Other similar uses as determined by the Community Development Director.
17.504.004 Conditionally permitted uses eastern site
The following uses are permitted subject to a conditional use permit:
- Drive-in or drive thru establishments related to a permitted use
- Auto service station, car wash, tire shop, new or used car sales, vehicular repair
- Outdoor sales or display
- Churches, synagogues, temples
- Other similar uses as determined by the Community Development Director
17.504.005 Conditionally permitted uses western site
The following uses are permitted subject to a conditional use permit:
- Hotels and motels.
- Mixed residential and nonresidential uses within the same structure, except as permitted above.
- Other similar uses as determined by the Community Development Director.
17.504.006 Development standards
- Minimum lot area: four acres on East Site; two acres on West Site. Smaller parcel size may be considered if it is part of an overall master plan.
- Maximum building height: eastern site, 75 feet or 6 stories; western site, 40 feet or 3 stories.
- Building setbacks: Balfour Road - 50 feet
Concord Avenue – 50 feet
Highway 4 – 50 feet
John Muir Parkway – 50 feet
Eagle Rock – 25 feet
Interior property lines – 10 feet on each property
17.504.007 Conceptual site plan
Development in this Zone shall be subject to being in substantial conformance with the Conceptual Site Plan date stamped April 19, 2001, attached hereto, unless otherwise approved by the Planning Commission.
SECTION 8. EFFECTIVE DATE. This ordinance shall go into effect and be in full force and operation from and after thirty (30) days after its final passage and adoption.
SECTION 9. PUBLICATION. At least two (2) days prior to its final adoption, copies of this ordinance shall be posted in at least three (3) prominent and distinct locations in the City; and a notice shall be published once in Ledger Dispatch, the official newspaper of the City of Brentwood, setting forth the title of this ordinance, the date of its introduction and the places where this ordinance is posted.
SECTION 10. RECORDATION. Pursuant to Government Code §65868.5, the City Council authorizes the City Clerk to record a fully executed copy of the Development Agreement, attached hereto as Exhibit a, in the Official Records of the County of Contra Costa, within 10 days after City enters into this Development Agreement.
PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a regular meeting on the 24th day of July 2001 by the following vote:
Michael A. McPoland, Sr.
Karen Diaz, CMC
State of California )
County of Contra Costa ) ss.
City of Brentwood )
I, Karen Diaz, City Clerk of the City of Brentwood, do hereby certify that the foregoing Ordinance had its first reading on July 6, 2001 and was passed by the following vote:
And had its second reading on July 24, 2001 and was passed and adopted by the following vote:
Karen Diaz, CMC
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Morrison & Foerster
P.O. Box 8130
101 Ygnacio Valley Road, Suite 450
Walnut Creek, California 94596-3570
Attention: David A. Gold
(Space Above This Line Reserved For Recorder's Use)
THE CITY OF BRENTWOOD
JOHN MUIR/MT. DIABLO HEALTH SYSTEM
Table of Contents
ARTICLE 1. DEFINITIONS
ARTICLE 2. EFFECTIVE DATE AND TERM
SECTION 2.01. EFFECTIVE DATE
SECTION 2.02. TERM 6
ARTICLE 3. OBLIGATIONS OF JOHN MUIR 6
SECTION 3.01. OBLIGATIONS OF JMMD GENERALLY 6
SECTION 3.02. TRAFFIC AND INFRASTRUCTURE IMPROVEMENTS 6
SECTION 3.03. DEDICATION OF PROPERTY FOR PUBLIC ROADWAYS 7
SECTION 3.04. EARLY DEDICATION OF STATE ROUTE 4 INTERCHANGE 7
ARTICLE 4. OBLIGATIONS OF CITY 7
SECTION 4.01. OBLIGATIONS OF CITY GENERALLY 7
SECTION 4.02. PROTECTION OF VESTED RIGHTS 7
SECTION 4.03. AVAILABILITY OF PUBLIC SERVICES 8
SECTION 4.04. JMMD’S RIGHT TO REBUILD 8
SECTION 4.05. ARCO SITE ACQUISITION 8
SECTION 4.06. SECONDARY ACCESS TO THE EAST SITE 9
SECTION 4.07. PARTIAL REIMBURSEMENT OF INFRASTRUCTURE IMPROVEMENTS 9
ARTICLE 5. COOPERATION - IMPLEMENTATION 9
SECTION 5.01. PROCESSING APPLICATIONS FOR SUBSEQUENT APPROVALS 10
SECTION 5.02. TIMELY SUBMITTALS BY JMMD 10
SECTION 5.03. TIMELY PROCESSING BY CITY 10
SECTION 5.04. REVIEW OF SUBSEQUENT APPROVALS 10
SECTION 5.05. SPECIFIC SUBSEQUENT APPROVALS 11
SECTION 5.06. OTHER GOVERNMENT PERMITS 11
SECTION 5.07. RETAIL USES ON THE EAST SITE 11
ARTICLE 6. STANDARDS, LAWS AND PROCEDURES GOVERNING THE PROJECT 12
SECTION 6.01. VESTED RIGHT TO DEVELOP 12
SECTION 6.02. PERMITTED USES VESTED BY THIS AGREEMENT 12
SECTION 6.03. APPLICABLE LAW 12
SECTION 6.04. DEVELOPMENT FEES 12
SECTION 6.05. FEE CREDITS FOR DEDICATION OF PUBLIC RIGHT-OF-WAYS AND
CONSTRUCTION OF IMPROVEMENTS 13
SECTION 6.06. UNIFORM CODES 13
SECTION 6.07. NO CONFLICTING ENACTMENTS 14
SECTION 6.08. INITIATIVES AND REFERENDA 15
SECTION 6.09. ENVIRONMENTAL MITIGATION 15
SECTION 6.10. LIFE OF SUBDIVISION MAPS, DEVELOPMENT APPROVALS, AND PERMITS 16
SECTION 6.11. STATE AND FEDERAL LAW 16
SECTION 6.12. TIMING OF PROJECT CONSTRUCTION AND COMPLETION 16
SECTION 6.13. EXEMPTING FEES IMPOSED BY OUTSIDE AGENCIES 17
ARTICLE 7. AMENDMENT 17
SECTION 7.01. AMENDMENT TO PROJECT APPROVALS, SUBSEQUENT APPROVALS 17
SECTION 7.02. AMENDMENT OF THIS AGREEMENT 18
ARTICLE 8. ASSIGNMENT, TRANSFER AND MORTGAGEE PROTECTION 19
SECTION 8.01. ASSIGNMENT OF INTERESTS, RIGHTS AND OBLIGATIONS 19
SECTION 8.02. TRANSFER AGREEMENTS 19
SECTION 8.03. NONASSUMING TRANSFEREES 20
SECTION 8.04. MORTGAGEE PROTECTION 20
SECTION 8.05. NOTICE OF COMPLIANCE 21
ARTICLE 9. COOPERATION IN THE EVENT OF LEGAL CHALLENGE 22
SECTION 9.01. COOPERATION 22
SECTION 9.02. CURE; REAPPROVAL 22
ARTICLE 10. DEFAULT; REMEDIES; TERMINATION 23
SECTION 10.01. DEFAULTS 23
SECTION 10.02. TERMINATION 24
SECTION 10.03. PERIODIC REVIEW 24
SECTION 10.04. DEFAULT BY CITY OR JMMD 25
SECTION 10.05. EXCUSABLE DELAY; EXTENSION OF TIME OF PERFORMANCE 25
SECTION 10.06. LEGAL ACTION 25
SECTION 10.07. CALIFORNIA LAW 26
SECTION 10.08. RESOLUTION OF DISPUTES 26
SECTION 10.09. ATTORNEYS’ FEES 26
SECTION 10.10. HOLD HARMLESS 26
ARTICLE 11. MISCELLANEOUS 26
SECTION 11.01. INCORPORATION OF RECITALS AND INTRODUCTORY PARAGRAPH 26
SECTION 11.02. ENFORCEABILITY 26
SECTION 11.03. FINDINGS 27
SECTION 11.04. SEVERABILITY 27
SECTION 11.05. OTHER NECESSARY ACTS 27
SECTION 11.06. CONSTRUCTION 27
SECTION 11.07. OTHER MISCELLANEOUS TERMS 27
SECTION 11.08. COVENANTS RUNNING WITH THE LAND 27
SECTION 11.09. NO AGENCY, JOINT VENTURE OR PARTNERSHIP 28
SECTION 11.10. NOTICES 28
SECTION 11.11. ENTIRE AGREEMENT, COUNTERPARTS AND EXHIBITS 29
SECTION 11.12. RECORDATION OF DEVELOPMENT AGREEMENT 30
THE CITY OF BRENTWOOD
JOHN MUIR/MT. DIABLO HEALTH SYSTEM
THIS DEVELOPMENT AGREEMENT (the "Agreement") is entered into as of ___________ ___, 2001 by and between John Muir/Mt. Diablo Health System, a California not-for-profit corporation (“JMMD”), and the City of Brentwood, a municipal corporation (“City”), pursuant to California Government Code § 65864 et seq.
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 enacted California Government Code § 65864 et seq. (the “Development Agreement Statute”), which authorizes City to enter into a development agreement with any person having a legal or equitable interest in real property regarding the development of such property.
B. Pursuant to California Government Code § 65865, City has adopted procedures and requirements for the consideration of development agreements (City of Brentwood Municipal Code, Chapter 17.810). This Agreement has been processed, considered and executed in accordance with such procedures and requirements.
C. JMMD has a legal interest in certain real property consisting of approximately 58 acres located in the City near the intersection of Balfour Road and Concord Avenue, as more particularly described in Exhibit A-1 attached hereto, and as diagrammed in Exhibit A-2 attached hereto (the “Property”).
D. JMMD intends to develop a portion of the Property with certain medical facilities which may include a hospital, emergency care and urgent care facilities (projected 100 beds approximately), medical offices and a wellness center, all with the intended purpose to improve the delivery and convenience of quality health care services to the citizens of Brentwood and East Contra Costa County. However, even assuming greater than expected growth in the City and surrounding community, the 58-acre Property is much larger than would be required for a medical campus. Therefore, JMMD intends to develop the Property as an employment generating, mixed-use campus, consisting of approximately 880,000 square feet of medical, professional office, and commercial uses, and approximately 405 medium- and high-density residential units.
E. The City acknowledges JMMD’s uncertainty regarding the future healthcare needs of the community and its need to maintain flexibility for its future development options on the Property. In this regard, the parties acknowledge that JMMD’s ability to develop the health-related uses described above is dependent upon future growth of JMMD’s member population in the community. The medical uses are intended to be developed on all or a portion of the approximately 37.4-acre eastern portion of the Property (the “East Site”). JMMD desires to develop the East Site with a total of approximately 620,000 square feet of medical, office, commercial and retail uses, provided that retail uses shall not be developed on more than twelve (12) acres of the East Site, as designated by JMMD, and shall be subject to the timing limitation set forth in Section 5.07 (the “East Site Project”). JMMD also desires to develop the approximately 20.28-acre western portion of the Property (the “West Site”) with 260,000 square feet of commercial and/or office uses, 405 units of medium- and high-density residential uses (including congregate care and other health-care related residential), or a combination of one or more of these uses. (the “West Site Project”). The East Site Project and the West Site Project shall be referred to herein collectively as the “Project.” The contemplated City land use entitlements related to the Project are further described in the Project Approvals, defined below.
F. On June 2, 2000, in order to encourage JMMD to move forward with the processing of its Project applications, the City and JMMD entered into that certain Pre-Development Agreement and Outline Development Process for the John Muir/Mt. Diablo Health System Brentwood Project (the “Pre-Development Agreement”), setting forth certain understandings related to the future processing of the Project. The parties desire that the Pre-Development Agreement will terminate upon the Effective Date of this Agreement.
G. City has taken several actions to review and plan for the future development of the Project. These include, without limitation, the following:
1. Initial Study/Mitigated Negative Declaration. The environmental impacts of the Project, including the Project Approvals (as defined below), the Subsequent Approvals (as defined below) and certain alternatives to the Project have properly been reviewed and assessed by the City pursuant to the California Environmental Quality Act, California Public Resources Code Section 21000 et seq., the “CEQA Guidelines,” California Code of Regulations, Title 14, Section 15000 et seq., and the City’s local guidelines promulgated thereunder (hereinafter collectively referred to as “CEQA”). Following earlier environmental impact reports and planning studies, including traffic studies covering the Property and the development area surrounding the Property, and pursuant to CEQA and in accordance with the recommendation of the City’s Planning Commission, the Initial Study/Mitigated Negative Declaration for the John Muir/Mount Diablo East County Campus (the “Tiered MND”) was adopted by the City on July 6, 2001;
2. General Plan Amendment. Following review and recommendation by the City Planning Commission and after a duly noticed public hearing and certification of the Tiered MND, the City Council, by Ordinance No. 676, approved the General Plan Amendment to Special Planning Area-Mixed Use and added a new provision to the City’s noise element (the “GPA”) on July 6, 2001;
3. Planned Development Rezoning. Following Planning Commission review and recommendation, adoption of the Tiered MND and GPA, and a duly noticed public hearing, the City Council adopted City Ordinance No. 676 on July 6, 2001, rezoning the Property from Planned Development Zone 20 to Planned Development Zone ___ (the “PD Rezone”);
4. Tentative Map. On May 1, 2001, the City Planning Commission approved Tentative Map No. 8517 covering the Property, creating 6 lots and providing for phased final maps, pursuant to Resolution No. 01-24 (the “Tentative Map”);
5. Development Agreement. Upon consideration of the recommendation of the Planning Commission, the City Council adopted Ordinance No. 676 on July 6, 2001.
The approvals and development policies described in this Recital G are collectively referred to herein as the “Project Approvals.”
H. City has determined that the Project presents substantial regional health, safety and general welfare public benefits and opportunities which are advanced by City and JMMD entering into this Agreement. This Agreement will, among other things, (1) reduce uncertainties in planning and provide for the orderly development of the Project; (2) mitigate certain significant environmental impacts; (3) provide critical medical services to City and East County residents, including acute medical services, coordination with urgent care facilities, health education, and out-patient health care; (4) strengthen the City’s economic base with a variety of high quality long term medical and commercial jobs, in addition to shorter term construction jobs; (5) improve the City’s jobs-housing balance; (6) provide for and generate substantial revenues for the City in the form of one time and annual fees and exactions and other fiscal benefits, including sales taxes generated on supplies purchased for the medical portion of the Project; (7) provide a variety of housing; (8) result in the construction of certain regionally significant infrastructure improvements; and (9) otherwise achieve the goals and purposes in the City’s General Plan for which the Development Agreement Statute was enacted.
I. In exchange for the benefits to City described in the preceding Recital, together with the other public benefits that will result from the development of the Project, JMMD will receive by this Agreement assurances and vested rights that it may proceed with the Project in accordance with the “Applicable Law” (defined below), and therefore desires to enter into this Agreement.
J. The City Council, after conducting a duly noticed public hearing, has found that this Agreement is consistent with the General Plan as amended by the GPA and has conducted all necessary proceedings in accordance with the City’s rules and regulations for the approval of this Agreement.
NOW, THEREFORE, in consideration of the premises, covenants and provisions set forth herein, the receipt and adequacy of which is hereby acknowledged, the parties agree as follows:
“Administrative Project Amendment” shall have that meaning set forth in Section 7.01 of this Agreement.
“Agreement” shall have that meaning set forth in the introductory clause of this Agreement.
“Applicable Law” shall have that meaning set forth in Section 6.03 of this Agreement.
“Changes in the Law” shall have that meaning set forth in Section 6.11 of this Agreement.
“City” shall mean the City of Brentwood, and shall include, unless otherwise provided, any of the City’s agencies, departments, employees or consultants.
“City Law” shall have that meaning set forth in Section 6.07 of this Agreement.
“Community Development Director” shall mean the Director of the City of Brentwood Department of Community Development, or his or her designee.
“Default Notice” shall have that meaning set forth in Section 10.01 of this Agreement.
“Deficiencies” shall have that meaning set forth in Section 9.02 of this Agreement.
“Development Agreement Statute” shall have that meaning set forth in Recital A of this Agreement.
“East Site” shall mean the approximately 37-acre eastern portion of the Property described in Recital E and diagramed in Exhibit A-2.
“East Site Project” shall have that meaning set forth in Recital E of this Agreement.
“Effective Date” shall have that meaning set forth in Section 2.01 of this Agreement.
“JMMD” shall mean John Muir/Mt. Diablo Health System, a California not-for-profit corporation.
“Judgment” shall have that meaning set forth in Section 9.02 of this Agreement.
“Minimum Construction” shall mean at least 15,000 square feet of health clinic or related uses.
“Mitigation Monitoring Program” shall mean the mitigation monitoring program adopted by the City pursuant to Public-Resources Code Sec. 21081.6 concurrent with its approval of the Tiered MND.
“Mortgage” shall have that meaning set forth in Section 8.04 of this Agreement.
“Mortgagee” shall have that meaning set forth in Section 8.04 of this Agreement.
“Non-Assuming Transferee” shall have that meaning set forth in Section 8.03 of this Agreement.
“Notice of Compliance” shall have that meaning set forth in Section 8.05 of this Agreement.
“OSHPD” means the California Office of Statewide Health Planning and Development.
“Periodic Review” shall have that meaning set forth in Section 10.03 of this Agreement.
“Planning Commission” shall mean the Planning Commission of the City of Brentwood.
“Project” shall have that meaning set forth in Recital E of this Agreement.
“Project Approvals” shall have that meaning set forth in Recital G of this Agreement.
“Property” shall have that meaning set forth in Recital C of this Agreement.
“Subsequent Approvals” shall mean those certain other land use approvals, entitlements, and permits other than the Project Approvals that are necessary or desirable for the implementation of the Project. The Subsequent Approvals may also include, without limitation, the following: amendments of the Project Approvals, design review approvals, improvement agreements, use permits, grading permits, building permits, lot line adjustments, sewer and water connection permits, certificates of occupancy, subdivision maps, permits, resubdivisions, and any amendments to, or repealing of, any of the foregoing.
“Term” shall have that meaning set forth in Section 2.02 of this Agreement.
“Transfer Agreement” shall have that meaning set forth in Section 8.02 of this Agreement.
“West Site” shall mean the approximately 20-acre western portion of the Property described in Recital E and diagramed in Exhibit A-2.
“West Site Project” shall have that meaning set forth in Recital E of this Agreement.
EFFECTIVE DATE AND TERM
Effective Date. This Agreement shall become effective upon the date the ordinance approving this Agreement becomes effective (the “Effective Date”). Upon the Effective Date, the Pre-Development Agreement shall terminate.
Term. The term of this Agreement (the “Term”) shall commence upon the Effective Date and continue for a period of twenty (20) years. However, notwithstanding this Term, JMMD must (i) commence the Minimum Construction within the initial three (3) years (of this Agreement and (ii) thereafter complete the Minimum Construction within eighteen (18) months, or be subject to the loss of certain legal rights and financial benefits, as more particularly set forth in Section 6.04, below. In addition to the provisions of Section 10.05 below, City shall reasonably extend the 3-year Minimum Construction period upon finding that events have occurred that have adversely affected the feasibility of commencing the Minimum Construction. Further, the eighteen (18) month period to complete the Minimum Construction shall reasonably be extended by the City, provided JMMD has demonstrated commercially reasonable efforts to complete the Minimum Construction. Upon completion by JMMD of no less than 45,000 square feet of health care related uses, the Term shall be extended an additional ten (10) years to a total of thirty (30) years. For purposes of this Agreement, completion of the Minimum Construction or completion of the 45,000 square feet of health care related uses shall mean the date on which City could issue a Temporary Certificate of Occupancy excluding all interior JMMD tenant improvements or health care related equipment.
OBLIGATIONS OF JOHN MUIR
Obligations of JMMD Generally. The parties acknowledge and agree that the City’s agreement to perform and abide by the covenants and obligations of City set forth in this Agreement is a material consideration for JMMD’s agreement to perform and abide by its long term covenants and obligations, as set forth herein. The parties acknowledge that many of JMMD’s long term obligations set forth in this Agreement are in addition to JMMD’s agreement to perform all the mitigation measures identified in the Tiered MND and the Mitigation Monitoring Program.
Traffic and Infrastructure Improvements. As a condition of development of the Project, JMMD shall complete the following improvements, as described below:
Balfour Road Improvements. Prior to the issuance of certificates of occupancy by the City or OSHPD for any structure within the Project, JMMD shall signalize the intersection at Balfour Road as shown on the Site Plan and provide two left-turn lanes from westbound Balfour Road into the East Site.
Secondary Access Improvements. Prior to the issuance of a certificate of occupancy by the City for more than 400,000 square feet of commercial or office development on the East Site or any development on the West Site, JMMD shall construct a secondary vehicle access point as shown on the Site Plan or as adjusted pursuant to Section 4.06 below.
Dedication of Property for Public Roadways. In order to facilitate improved traffic circulation adjacent to the Property, JMMD shall dedicate to the City or other appropriate agency (i) property required by the City for the future extension of Concord Avenue as a public right-of-way, and (ii) property required by the City for the future Eagle Rock Avenue, both generally in the location shown on Exhibit A-2.
Early Dedication of State Route 4 Interchange. In order to facilitate improved regional traffic circulation, JMMD shall, as a material consideration for this Agreement, dedicate to the City property for the future Balfour Road interchange of State Route 4, generally in the location shown on Exhibit A-2 (the “Bypass Parcel”). Notwithstanding the terms of the Tentative Map, JMMD agrees to reserve the Bypass Parcel for the City, for ultimate acquisition by the State Route 4 Bypass Authority (the “Bypass Authority”), at its fair market value as of the date the Bypass Parcel is acquired by the Bypass Authority. Prior to such date, the parties shall meet and confer to determine if they can agree on the fair market value of the Bypass Parcel. In the event the parties do not come to agreement, fair market value shall be determined by an appraisal prepared by an appraiser mutually chosen by City and JMMD. Such appraiser shall have a minimum of five (5) years experience conducting appraisals of commercial and mixed-use properties in Contra Costa County. With respect to valuation of the Property, the appraisal shall reflect the Property’s full entitlement status consistent with the then current zoning.
OBLIGATIONS OF CITY
Obligations of City Generally. The parties acknowledge and agree that JMMD’s agreement to perform and abide by its covenants and obligations set forth in this Agreement, including JMMD’s decision to process the siting of the Project in the City, is a material consideration for City’s agreement to perform and abide by the long term covenants and obligations of City, as set forth herein.
Protection of Vested Rights. To the maximum extent permitted by law, City shall take any and all actions as may be necessary or appropriate to ensure that the vested rights provided by this Agreement can be enjoyed by JMMD and to prevent any City Law, as defined below, from invalidating, frustrating or prevailing over, all or any part of this Agreement. City shall cooperate with JMMD and shall undertake such actions as may be necessary to ensure this Agreement remains in full force and effect. City shall not support, adopt, or enact any City Law, or take any other action which would conflict with the express provisions or intent of the Project Approvals or the Subsequent Approvals.
Availability of Public Services. To the maximum extent permitted by law and consistent with its authority, City shall, in recognition of the critical health and safety related benefits of the Project, (i) reserve for JMMD such wastewater treatment capacity in City’s wastewater treatment facilities as may be necessary to serve and operate the Project in a minimum capacity of 155,920 gallons per day, (ii) assist JMMD in reserving on a first priority basis such capacity and transmission for water services as may be necessary to serve and operate the Project in a minimum water capacity of 191,160 gallons per day, and (iii) assist JMMD in reserving, stormwater drainage capacity in an amount of 65 CFS from the Property related to the buildout of the Project, including but not limited to assisting in reserving stormwater capacity for JMMD to use the existing 54 inch stormdrain outfall at the northeast corner of the Property.
JMMD’s Right to Rebuild. City agrees that JMMD may renovate or rebuild the Project within the Term of this Agreement should it become necessary due to natural disaster, changes in seismic requirements, changes in federal or state laws, or should the buildings located within the Project become functionally outdated, within JMMD’s sole discretion, due to changes in technology. Any such renovation or rebuilding shall be subject to the capacity, square footage and height limitations vested by this Agreement, and shall comply with the Project Approvals, the building codes existing at the time of such rebuilding or reconstruction, and the requirements of CEQA.
ARCO Site Acquisition. The City understands that JMMD and ARCO are in the process of negotiating an agreement to provide for privately-owned joint access to the East Site and the adjacent property owned by ARCO. However, upon notice by JMMD to the City that JMMD, in its sole discretion, has been unable to reach agreement with ARCO to provide for such joint access, City shall, within two (2) years from the Effective Date, ensure public vehicular access to the East Site from Balfour Road at its intersection with Street A of Tentative Map No. 8550, also known as the ARCO and JMMD Access Road of Tentative Map No. 8517, by either (i) requiring dedication of an adequate public right-of-way by ARCO as a condition of approval of ARCO’s project at the intersection of Balfour Road and Concord Avenue, or (ii) initiating eminent domain proceedings to acquire such right-of-way as a public street. Whether the public right of way is acquired by (i) or (ii), City agrees that either the right of way acquired from ARCO will comply with all City roadway standards or that City shall modify its roadway standards as they apply to such right-of-way. JMMD shall reimburse City for all reasonable costs incurred by City associated with the acquisition of such right-of-way through City’s power of eminent domain, provided that JMMD shall have the right to offset such costs against any traffic-related fees imposed on the Project by City.
Secondary Access to the East Site. Within two (2) years from the Effective Date, City shall ensure public vehicular access to the East Site from Concord Avenue by either (i) requiring dedication of an adequate public right-of-way opposite Eagle Rock Drive by ARCO as a condition of approval of ARCO’s project at the intersection of Balfour Road and Concord Avenue, or (ii) cooperating with JMMD to locate the an access drive from another mutually agreeable location on Concord Avenue. Whether the public right of way is acquired by (i) or (ii), City agrees that either the right of way acquired from ARCO will comply with all City roadway standards or that City shall modify its roadway standards as they apply to such right-of-way. JMMD shall reimburse City for all reasonable costs incurred by City associated with the acquisition of such right-of-way through City’s power of eminent domain, provided that JMMD shall have the right to offset such costs against any traffic-related fees imposed on the Project by City, consistent with the City’s Development Fee Program.
Partial Reimbursement of Infrastructure Improvements. To the extent JMMD’s costs for dedications and infrastructure for the Project exceed JMMD’s fair share obligation for such dedications and infrastructure as contemplated by California Government Code Section 66000 et. seq., as more specifically described in the City's Development Fee Program, and to the extent that such dedications and infrastructure benefit third party landowners, City shall use its best efforts, consistent with applicable law and procedures, to identify benefited third parties and ensure reimbursement to JMMD, through City, of that portion of the costs incurred by JMMD for such dedications and infrastructure which directly benefits such third parties.
Reimbursement to JMMD by City for Fee Credits.
Upon the incurrence of costs by JMMD for dedications and infrastructure, JMMD shall determine its eligibility for fee credits to the extent such costs exceed JMMD’s fair share obligations as set forth in Section 4.07, above, and shall notify the City in writing of the amount of such fee credits. The City shall review the notification and shall notify JMMD within thirty (30) days if it disagrees with JMMD’s calculations of the fee credits. The parties shall meet and confer in good faith to resolve any discrepancies in the event of such disagreement.
Following determination of the fee credits to which JMMD is eligible, City shall use its best efforts to identify opportunities for transfer of such fee credits to third parties that process any development application with the City and are obligated to pay any City- or Bypass-related fees. Upon the City’s collection of payment from such third parties, City shall diligently process such payment and shall reimburse JMMD within a reasonable amount of time, not to exceed sixty (60) days. At the time of reimbursement, the City shall notify JMMD of the amount of remaining unreimbursed fee credits.
COOPERATION - IMPLEMENTATION
Processing Applications for Subsequent Approvals. By approving the Project Approvals, City has made a final policy decision that the Project is in the best interests of the public health, safety and general welfare. Accordingly, City shall not use its discretionary authority in considering any application for a Subsequent Approval to change the policy decisions reflected by the Project Approvals or otherwise to prevent or delay development of the Project as set forth in the Project Approvals. Instead, the Subsequent Approvals shall be deemed to be tools to implement those final policy decisions and shall be issued by City so long as they comply with this Agreement and Applicable Law and are not inconsistent with the Project Approvals as set forth above.
Timely Submittals By JMMD. JMMD acknowledges that City cannot expedite processing Subsequent Approvals until JMMD submits complete applications on a timely basis. JMMD shall use its best efforts to (i) provide to City in a timely manner any and all documents, applications, plans, and other information necessary for City to carry out its obligations hereunder; and (ii) cause JMMD’s planners, engineers, and all other consultants to provide to City in a timely manner all such documents, applications, plans and other necessary required materials as set forth in the Applicable Law. It is the express intent of JMMD and City to cooperate and diligently work together to obtain any and all Subsequent Approvals.
Timely Processing By City. Upon submission by JMMD of all appropriate applications and processing fees for any Subsequent Approval, City shall promptly and diligently commence and complete all steps necessary to act on the Subsequent Approval application including, without limitation: (i) providing at JMMD’s expense and subject to JMMD’s request and prior approval, reasonable overtime staff assistance and/or private staff consultants for planning and processing of each Subsequent Approval application; (ii) if legally required, providing notice and holding public hearings; and (iii) acting on any such Subsequent Approval application.
Review of Subsequent Approvals. City agrees to grant and implement the Subsequent Approvals that comply with this Agreement, the Project Approvals and Applicable Law, defined below (provided, however, that inconsistency with the Project Approvals shall not constitute grounds for denial of a Subsequent Approval which is requested by JMMD as an amendment to that Project Approval). City may approve an application for such a Subsequent Approval subject to any conditions necessary to bring the Subsequent Approval into compliance with this Agreement or Applicable Law. If City denies any application for a Subsequent Approval, City must specify in writing the reasons for such denial and suggest modifications which could be approved. Any such specified modifications must be economically feasible, consistent with this Agreement, Applicable Law and the Project Approval, and City shall approve the application if it is subsequently resubmitted for City review and addresses the reason for the denial in a manner that is consistent with this Agreement, Applicable Law and the Project Approvals.
Specific Subsequent Approvals. City acknowledges that timing and other factors preclude City from acting on certain Subsequent Approvals as of the Effective Date. These contemplated Subsequent Approvals include future residential and commercial subdivision maps and development plans and site plans. In addition to the other general covenants concerning processing of Subsequent Approvals set forth in this Agreement, City shall, to the maximum extent permitted by law, promptly and diligently commence and complete all steps (including noticing and public hearings) necessary to act on these contemplated Subsequent Approval applications. Without limiting the generality of the foregoing, City acknowledges that JMMD will be required to process certain Subsequent Approvals in furtherance of the implementation of the development of the West Site Project. City agrees that the Applicable Law is hereby vested, and that JMMD may develop the West Site Project so long as such development is consistent with the West Site’s General Plan designation and applicable zoning. City further agrees that its review of Subsequent Approvals related to the heliport on the East Site shall be limited to a ministerial determination whether the design of such heliport is consistent with the East Site’s General Plan designation and applicable zoning.
Other Government Permits. At JMMD’s sole discretion and in accordance with JMMD’s construction schedule, JMMD 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. Specifically, City acknowledges that certain State regulatory agencies, including the Office of Statewide Health Planning and Development (OSHPD), have significant permitting authority over the construction, life safety and design features of the East Site Project. In addition, construction of the heliport on the East Site will require certain approvals from the Federal Aviation Administration (FAA), and the California Department of Transportation Aviation Division. City shall cooperate with JMMD in its efforts to obtain such permits and approvals and shall, from time to time at the request of JMMD, 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.
Retail Uses on the East Site. Consistent with the PD Rezone, the East Site Project contemplates the development of up to twelve (12) acres of the East Site, as designated by JMMD, with retail uses. Notwithstanding this provision, JMMD shall not submit an application for development of retail uses on the East Site prior to five (5) years from the Effective Date of this Agreement, or JMMD’s commencement of the Minimum Construction, whichever is earlier. Consistent with the PD Rezone, the East Site Project acreage and timing limitations imposed by this Section 5.07 shall not apply to retail uses that are ancillary to the medical uses on the East Site.
STANDARDS, LAWS AND PROCEDURES GOVERNING THE PROJECT
Vested Right to Develop. JMMD shall have a vested right to develop the Project on the Property in accordance with the terms and conditions of this Agreement.
Permitted Uses Vested by This Agreement. The permitted uses of the Property; the density and intensity of use of the Property; the maximum height, bulk and size of proposed buildings; provisions for reservation or dedication of land for public purposes and the location of public improvements; the general location of public utilities; and other terms and conditions of development applicable to the Project, shall be as set forth in the Project Approvals and, as and when they are issued (but not in limitation of any right to develop as set forth in the Project Approvals), the Subsequent Approvals.
Applicable Law. Subject to Section 6.04, below, the rules, regulations, official policies, standards and specifications applicable to the Project (the "Applicable Law") shall be those set forth in this Agreement and the Project Approvals, and, with respect to matters not addressed by this Agreement or the Project Approvals, those rules, regulations, official policies, standards and specifications (including City ordinances and resolutions) governing permitted uses, building locations, timing of construction, densities, design, heights, fees, exactions, and taxes in force and effect on the Effective Date of this Agreement.
(a) With respect to health-care related uses on the East Site and any health-care related uses constructed on the West Site, and except as provided in Section 6.04(b), City shall not establish, enact, increase (except for previously authorized annual increases in an amount no greater than the applicable engineering index), impose against or apply to the Project any conditions, exactions, dedications, fees, taxes (including without limitation general, special and excise taxes), assessments, liens or other monetary obligations, through the exercise of either the police power or the taxing power, which are not specifically authorized and in force and effect on the Effective Date of this Agreement.
(b) With respect to health-care related uses on the East Site and any health-care related uses constructed on the West Site, in the event Developer fails to commence construction of the Minimum Construction prior to the expiration of the initial 3 years of the Term and thereafter complete the Minimum Construction within eighteen (18) months, City shall have the right thereafter to impose those applicable development fees authorized by Section 6.04(a) at the current rate in effect on a City-wide basis with respect to comparable projects at the time of City’s issuance of building permits, or with respect to a hospital, issuance of comparable permits by OSHPAD. Except as specifically provided by this Section 6.04(b), all of JMMD’s rights and obligations with respect to the Project shall continue in force and effect through the remainder of the Term.
(c) Except as set forth in Section 6.04(a), above, City may impose those applicable development fees which are operative and in force and effect on a Citywide basis with respect to comparable projects at the time of City’s issuance of building permits.
(d) Notwithstanding the above, and in view of the jobs and higher density housing provisions of the Project, the Project shall be exempt from all exactions or other monetary obligations, through the exercise of either the police power or the taxing power, designed to mitigate for impacts of the Project for the loss of agricultural lands, provided that as required by City’s existing ordinance, JMMD shall pay a maximum of $1,000 per acre for development of health care related uses to mitigate for the loss of agricultural lands. Non-health care uses shall pay those agricultural preservation fees in effect at issuance of building permits. Any fees required under this Section 6.04(d) shall be subject to fee credits under Section 6.05.
Fee Credits for Dedication of Public Right-of-Ways and Construction of Improvements. The parties intend that the dedication requirements described in Article 3, above, will be applicable as partial payments for any exactions, taxes or assessments imposed by the City. The parties further intend that JMMD shall not be required to pay two times for any such exaction, fee or assessment. Accordingly, pursuant to the reimbursement provisions of Section 4.08, the development fees described in Section 6.04 shall be subject to reductions, credits and reimbursement in an amount equal to: (i) the fair market value of the Bypass Parcel, (ii) JMMD’s costs of acquisition of that portion of the Property dedicated as a public right-of-way pursuant to Section 3.03, and (iii) the costs to JMMD of constructing the roadways and other infrastructure improvements required by this Agreement and the City’s Development Fee Program. JMMD shall be eligible for such reductions/credits at the time of the earliest imposition of fees.
Uniform Codes. City may apply to the Property, at any time during the Term, then current Uniform Building Code and other uniform construction codes, and City’s then current design and construction standards for road and storm drain facilities, provided (1) any such uniform code or standard has been adopted and uniformly applied by City on a citywide basis, (2) no such code or standard is adopted for the purpose of preventing or otherwise limiting construction of all or any part of the Project or (3) with respect to the improvements comprising the medical portion of the Project, a different code or standard approved by federal or state regulatory agencies shall govern over a City code or standard.
No Conflicting Enactments. City shall not impose on the Project (whether by action of the City Council or by initiative, referendum or other means) any ordinance, resolution, rule, regulation, standard, directive, condition or other measure (each individually, a “City Law”) that is in conflict with Applicable Law or this Agreement or that reduces the development rights or assurances provided by this Agreement. Without limiting the generality of the foregoing, any City Law shall be deemed to conflict with Applicable Law or this Agreement or reduce the development rights provided hereby if it would accomplish any of the following results, either by specific reference to the Project or as part of a general enactment which applies to or affects the Project:
(e) Change any land use designation or permitted use of the Property;
(f) Limit or control the availability of public utilities, services or facilities or any privileges or rights to public utilities, services, or facilities (for example, water rights, water connections or sewage capacity rights, sewer connections, etc.) for the Project;
(g) Limit or control the location of buildings, structures, grading, or other improvements of the Project in a manner that is inconsistent with or more restrictive than the limitations included in the Project Approvals or the Subsequent Approvals (as and when they are issued);
(h) Limit or control the rate, timing, phasing or sequencing of the approval, development or construction of all or any part of the Project in any manner;
(i) Apply to the Project any City Law otherwise allowed by this Agreement that is not uniformly applied on a City-wide basis to all substantially similar types of development projects and Properties;
(j) Result in JMMD having to substantially delay construction of the Project or require the issuance of additional permits or approvals by the City other than those required by Applicable Law;
(k) Substantially increase the cost of constructing or developing the Project or any portion thereof;
(l) Establish, enact, increase, or impose against the Project or Property any fees, taxes (including without limitation general, special and excise taxes), assessments, liens or other monetary obligations (including generating demolition permit fees, encroachment permit and grading permit fees) other than those specifically permitted by this Agreement or other connection fees imposed by third party utilities;
(m) Impose against the Project any condition, dedication or other exaction not specifically authorized by Applicable Law; or
(n) Limit the processing or procuring of applications and approvals of Subsequent Approvals.
Initiatives and Referenda.
(o) If any City Law is enacted or imposed by initiative or referendum, or by the City Council directly or indirectly in connection with any proposed initiative or referendum, which City Law would conflict with Applicable Law or this Agreement or reduce the development rights provided by this Agreement, such Law shall not apply to the Project.
(p) Without limiting the generality of any of the foregoing, no moratorium, growth management restriction, or other limitation (whether relating to the rate, timing, phasing or sequencing of development) affecting subdivision maps, building permits or other entitlements to use that are approved or to be approved, issued or granted within the City, or portions of the City, shall apply to the Project, except that such moratorium, growth management restriction, or other limitation may be applied to portions of the West Site developed at an average density of less than eight (8) residential units per acre.
(q) To the maximum extent permitted by law, City shall prevent any City Law from invalidating or prevailing over all or any part of this Agreement, and City shall cooperate with JMMD and shall undertake such actions as may be necessary to ensure this Agreement remains in full force and effect.
(r) City shall not support, adopt or enact any City Law, or take any other action which would violate the express provisions or spirit and intent of this Agreement, the Project Approvals or the Subsequent Approvals.
(s) JMMD reserves the right to challenge in court any City Law that would conflict with Applicable Law or this Agreement or reduce the development rights provided by this Agreement.
Environmental Mitigation. The Tiered MND for the Project was prepared following the completion of numerous studies and in light of previous environmental impact reports completed within the City for related development and planning efforts, including the State Route 4 Bypass Project Environmental Impact Report (SCH #89032824) and the City of Brentwood General Plan Environmental Impact Report (SCH #92063113). The parties understand that the Tiered MND is intended to be used in connection with each of the Project Approvals and Subsequent Approvals needed for the Project. Consistent with the CEQA policies and requirements applicable to the Tiered MND, City agrees to use the Tiered MND in connection with the processing of any Subsequent Approval to the maximum extent allowed by law and not to impose on the Project any mitigation measures or other conditions of approval other than those specifically imposed by the Project Approvals and the Mitigation Monitoring Program or specifically required by Applicable Law.
Life of Subdivision Maps, Development Approvals, and Permits. With respect to the East Site, the term of any subdivision map or any other map, permit, rezoning or other land use entitlement approved as a Project Approval or Subsequent Approval shall automatically be extended for the longer of the duration of this Agreement (including any extensions) or the term otherwise applicable to such Project Approval or Subsequent Approval if this Agreement is no longer in effect. The term of this Agreement and any subdivision map or other Project Approval or Subsequent Approval shall not include any period of time during which a development moratorium (including, but not limited to, a water or sewer moratorium or water and sewer moratorium) or the actions of other public agencies that regulate land use, development or the provision of services to the land, prevents, prohibits or delays the construction of the Project or a lawsuit involving any such development approvals or permits is pending. With respect to any subdivision map or other map approved for the West Site, City approves the filing of phased final subdivision maps pursuant to Section 66456.1 of the Subdivision Map Act.
State and Federal Law. As provided in California Government Code § 65869.5, this Agreement shall not preclude the application to the Project of changes in laws, regulations, plans or policies, to the extent that such changes are specifically mandated and required by changes in state or federal laws or regulations ("Changes in the Law"). In the event Changes in the Law prevent or preclude compliance with one or more provisions of this Agreement, such provisions of the Agreement shall be modified or suspended, or performance thereof delayed, as may be necessary to comply with Changes in the Law, and City and JMMD shall take such action as may be required pursuant to this Agreement including, without limitation, Article 5 (Cooperation-Implementation) and Section 10.05 (Excusable Delays; Extension of Time of Performance). Not in limitation of the foregoing, nothing in this Agreement shall preclude City from imposing on JMMD any fee specifically mandated and required by state or federal laws and regulations, provided, however, that JMMD expressly preserves its right to object to any fees imposed pursuant to this Section 6.11.
Timing of Project Construction and Completion.
(t) Notwithstanding any provision of this Agreement, but subject to the Term set forth in Section 2.02, City and JMMD expressly agree that there is no requirement that JMMD 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 JMMD 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 JMMD, such as market orientation and demand, interest rates, competition, health care regulations, and other similar factors.
(u) In light of the foregoing and except as set forth in Section 2.02 above and subsection (c) below, the parties agree that JMMD shall be able to develop in accordance with JMMD’s own time schedule as such schedule may exist from time to time, and JMMD shall determine which part of the Property to develop first, and at JMMD's chosen schedule. In particular, and not in limitation of any of the foregoing, since the California Supreme Court held in Pardee Construction Co. v. City of Camarillo, 37 Cal.3d 465 (1984), that the failure of the parties therein to consider and expressly provide for the timing of development resulted in a later-adopted initiative restricting the timing of development to prevail over such parties’ agreement, it is the parties’ desire to avoid that result by acknowledging that JMMD shall have the right to develop the Project in such order and at such rate and at such times as JMMD deems appropriate within the exercise of its subjective business judgment.
(v) Nothing in this Agreement shall exempt JMMD from completing work required by a subdivision agreement, road improvement agreement or similar agreement in accordance with the terms thereof.
Exempting Fees Imposed by Outside Agencies. The City agrees to exclude JMMD from any and all collection agreements regarding fees, including, but not limited to, development impact fees which other public agencies request the City to impose on health-care related uses on the East Site and any health-care related uses constructed on the West Site after the Effective Date through the Term of this Agreement. This section shall not prohibit the City from imposing on JMMD any fee or obligation that is imposed by a regional agency in accordance with state or federal obligations and implemented by the City in cooperation with such regional agency. Without limiting the generality of the foregoing, City may impose on the Project only those fees lawfully adopted and imposed by the Bypass Authority for comparable development projects within the City at the time of issuance of building permits by the City, provided, however, that JMMD expressly preserves its right to object to any fees imposed pursuant to this Section 6.13.
Amendment to Project Approvals, Subsequent Approvals. To the extent permitted by state and federal law, any Project Approval or Subsequent Approval may, from time to time, be amended or modified in the following manner:
(w) Administrative Project Amendments. Upon the written request of JMMD for an amendment or modification to a Project Approval or Subsequent Approval, the Community Development Director or his/her designee shall determine: (i) whether the requested amendment or modification is minor when considered in light of the Project as a whole; and (ii) whether the requested amendment or modification is substantially consistent with this Agreement and Applicable Law. If the Community Development Director or his/her designee finds that the proposed amendment or modification is minor, substantially consistent with this Agreement and Applicable Law, and will result in no new significant impacts not addressed and mitigated in the Tiered MND (or the prior CEQA documents which the Tiered MND relied upon) the amendment shall be determined to be an “Administrative Project Amendment” and the Community Development Director or his designee may, except to the extent otherwise required by law, approve the Administrative Amendment without notice and public hearing. Without limiting the generality of the foregoing, lot line adjustments, reductions in the density, intensity, scale or scope of the Project, minor alterations in vehicle circulation patterns or vehicle access points, changes in trail alignments, substitutions of comparable landscaping for any landscaping shown on any final development plan or landscape plan, variations in the location of structures that do not substantially alter the design concepts of the Project, variations in the location or installation of utilities and other infrastructure connections or facilities that do not substantially alter the design concepts of the Project, and minor adjustments to the Property diagram or Property legal description shall be treated as Administrative Amendments.
(x) Non-Administrative Amendments. Any request of JMMD for an amendment or modification to a Project Approval or Subsequent Approval which is determined not to be an Administrative Amendment as set forth above shall be subject to review, consideration and action pursuant to the Applicable Law and this Agreement.
Amendment of This Agreement. Consistent with Section 17.810.011 of the Brentwood Municipal Code, this Agreement may be amended from time to time, in whole or in part, by mutual written consent of the parties hereto or their successors in interest, as follows:
(y) Administrative Agreement Amendments. Any amendment to this Agreement which does not substantially affect (i) the Term of this Agreement, (ii) permitted uses of the Property, (iii) provisions for the reservation or dedication of land, (iv) conditions, terms, restrictions or requirements for subsequent discretionary actions, (v) the density or intensity of use of the Property or the maximum height or size of proposed buildings, or (vi) monetary contributions by JMMD, shall be an “Administrative Agreement Amendment”, and shall not, except to the extent otherwise required by law, require notice or public hearing before the parties may execute an amendment hereto. Such amendment may be approved by City resolution.
(z) Amendment Exemptions. No amendment of a Project Approval or Subsequent Approval, or the approval of a Subsequent Approval, shall require an amendment to this Agreement. Instead, any such matter automatically shall be deemed to be incorporated into the Project, the Project Approvals and vested under this Agreement.
ASSIGNMENT, TRANSFER AND MORTGAGEE PROTECTION
Assignment of Interests, Rights and Obligations. JMMD may transfer or assign all or any portion of its interests, rights or obligations under this Agreement, the Project Approvals or Subsequent Approvals to third parties acquiring an interest or estate in the Project or any portion thereof including, without limitation, purchasers or ground lessees of lots, parcels or facilities.
(aa) In connection with the transfer or assignment by JMMD of all or any portion of the Project (other than a transfer or assignment by JMMD to an affiliated party, a “Mortgagee” (as defined in Section 8.04) or a “Non-Assuming Transferee” (as defined in Section 8.03)), JMMD and the transferee shall enter into a written agreement (a “Transfer Agreement”) regarding the respective interests, rights and obligations of JMMD and the transferee in and under the Agreement, the Project Approvals, and the Subsequent Approvals. Such Transfer Agreement may (i) release JMMD from obligations under the Agreement, the Project Approvals, or the Subsequent Approvals that pertain to that portion of the Project being transferred, as described in the Transfer Agreement, provided that the transferee expressly assumes such obligations, (ii) transfer to the transferee vested rights to improve that portion of the Project being transferred and (iii) address any other matter deemed by JMMD to be necessary or appropriate in connection with the transfer or assignment.
(bb) With respect to the East Site, JMMD shall seek City’s prior written consent to any Transfer Agreement, which consent shall not be unreasonably withheld or delayed. Failure by City to respond within forty-five (45) days to any request made by JMMD for either (i) an acknowledgement of a Transfer Agreement for the West Site, or (ii) a consent to a Transfer Agreement for the East Site, shall be deemed to be City’s approval of such Transfer Agreement. With respect to the East Site, City may refuse to give its consent only if, in light of the proposed transferee’s reputation and financial resources, such transferee would not in City’s reasonable opinion be able to perform those obligations under this Agreement proposed to be assumed by such transferee. Such determination shall be made by the Community Development Director, and is appealable by JMMD to the City Council. JMMD shall not be required to obtain City’s consent to any Transfer Agreement for the West Site.
(cc) Any Transfer Agreement shall be binding on JMMD, City and the transferee. Upon recordation of any Transfer Agreement in the Official Records of Contra Costa County, JMMD shall automatically be released from those obligations assumed by the transferee therein.
(dd) JMMD shall be free from any and all liabilities accruing on or after the date of any assignment or transfer with respect to those obligations assumed by a transferee pursuant to a Transfer Agreement. No breach or default hereunder by any person succeeding to any portion of JMMD's obligations under this Agreement shall be attributed to JMMD, nor may JMMD's rights hereunder be canceled or diminished in any way by any breach or default by any such person.
Nonassuming Transferees. Except as otherwise required by JMMD in JMMD's sole discretion, the burdens, obligations and duties of JMMD under this Agreement shall terminate with respect to, and neither a Transfer Agreement nor City’s consent shall be required in connection with (i) any single residential parcel conveyed to a purchaser, (ii) any property transferred as fewer than 100 lots to a single retail builder or (iii) any property that has been established as one or more separate legal parcels for office, commercial, industrial, open space, park, school or other nonresidential uses. The transferee in such a transaction and its successors (“Non-Assuming Transferees”) shall be deemed to have no obligations under this Agreement, but shall continue to benefit from the vested rights provided by this Agreement for the duration of the Term. Nothing in this section shall exempt any property transferred to a Non-Assuming Transferee from payment of applicable fees and assessments or compliance with applicable conditions of approval.
(ee) Mortgage Protection. This Agreement shall be superior and senior to any lien placed upon the Property or any portion thereof after the date of recording of this Agreement, including the lien of any deed of trust or mortgage ("Mortgage"). Notwithstanding the foregoing, no breach hereof shall defeat, render invalid, diminish or impair the lien of any Mortgage made in good faith and for value, but all of the terms and conditions contained in this Agreement (including but not limited to City’s remedies to terminate the rights of JMMD (and its successors and assigns) under this Agreement, to terminate this Agreement, and to seek other relief as provided in this Agreement) shall be binding upon and effective against any person or entity, including any deed of trust beneficiary or mortgagee ("Mortgagee") who acquires title to the Property, or any portion thereof, by foreclosure, trustee's sale, deed in lieu of foreclosure, or otherwise.
(ff) Mortgagee Not Obligated. Notwithstanding the provisions of Section 8.04(a) above, no Mortgagee shall have any obligation or duty under this Agreement to construct or complete the construction of improvements, or to guarantee such construction or completion; provided, however, that a Mortgagee shall not be entitled to devote the Property to any uses or to construct any improvements thereon other than those uses or improvements provided for or authorized by this Agreement, or otherwise under the Project Approvals.
(gg) Notice of Default to Mortgagee. If City receives a written notice from a Mortgagee or from JMMD requesting a copy of any notice of default given JMMD and specifying the address for service thereof, then City shall deliver to such Mortgagee at such Mortgagee’s cost (or JMMD’s cost), concurrently with service thereon to JMMD, any notice given to JMMD with respect to any claim by City that JMMD has committed an event of default, and if City makes a determination of default hereunder, City shall if so requested by such Mortgagee likewise serve at such Mortgagee’s cost (or JMMD’s cost) notice of such noncompliance on such Mortgagee concurrently with service thereon on JMMD. Each Mortgagee shall have the right during the same period available to Developer to cure or remedy, or to commence to cure or remedy, the event of default claimed or the areas of noncompliance set forth in City’s notice.
(hh) No Supersedure. Nothing in this Section 8.04 shall be deemed to supersede or release a Mortgagee or modify a Mortgagee’s obligations under any subdivision improvement agreement or other obligation incurred with respect to the Project outside this Agreement, nor shall any provision of this Section 8.04 constitute an obligation of City to such Mortgagee, except as to the notice requirements of Section 11.10.
Notice of Compliance. Within thirty (30) days following any written request which JMMD may make from time to time, City shall execute and deliver to JMMD (or to any party requested by JMMD) a written “Notice of Compliance,” in recordable form, duly executed and acknowledged by City, that certifies:
(ii) This Agreement is unmodified and in full force and effect, or if there have been modifications hereto, that this Agreement is in full force and effect as modified and stating the date and nature of such modifications;
(jj) There are no current uncured defaults under this Agreement or specifying the dates and nature of any such default;
(kk) Any other information reasonably requested by JMMD. The failure to deliver such a statement within such time shall constitute a conclusive presumption against City that this Agreement is in full force and effect without modification except as may be represented by the JMMD and that there are no uncured defaults in the performance of the JMMD, except as may be represented by the JMMD. JMMD shall have the right at JMMD's sole discretion, to record the Notice of Compliance.
COOPERATION IN THE EVENT OF LEGAL CHALLENGE
(ll) 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 JMMD 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. JMMD’s obligation to pay for legal counsel shall not extend to fees incurred on appeal unless otherwise authorized by JMMD. In the event City and JMMD 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.
(mm) The parties agree that this Section 9.01 shall constitute a separate agreement entered into concurrently, and that if any other provision of this Agreement, or the Agreement as a whole, is invalidated, rendered null, or set aside by a court of competent jurisdiction, the parties agree to be bound by the terms of this section, which shall survive such invalidation, nullification or setting aside.
(nn) If, as a result of any administrative, legal or equitable action or other proceeding as described in Section 9.01, all or any portion of this Agreement, Project Approvals, or Subsequent Approvals are set aside or otherwise made ineffective by any judgment (a “Judgment”) in such action or proceeding (based on procedural, substantive or other deficiencies, hereinafter “Deficiencies”), the parties agree to use their respective best efforts to sustain and reenact or readopt this Agreement, Project Approvals, and/or Subsequent Approvals that the Deficiencies related to, as follows, unless the Parties mutually agree in writing to act otherwise:
(i) If any Judgment requires reconsideration or consideration by City of this Agreement, Project Approval, or Subsequent Approval, then the City shall consider or reconsider that matter in a manner consistent with the intent of this Agreement. If any such Judgment invalidates or otherwise makes ineffective all or any portion of this Agreement, Project Approval, or Subsequent Approval, then the Parties shall cooperate and shall cure any Deficiencies identified in the Judgment or upon which the Judgment is based in a manner consistent with the intent of this Agreement. City shall then readopt or reenact this Agreement, Project Approval, Subsequent Approval, or any portion thereof, to which the Deficiencies related.
(ii) Acting in a manner consistent with the intent of this Agreement includes, but is not limited to, recognizing that the Parties intend that JMMD may develop a mixed use development, including retail, residential, office, commercial, hospital, and health care related land uses, and adopting such ordinances, resolutions, and other enactments, including but not limited to Initial Study/Mitigated Negative Declaration, General Plan Amendment, Planned Development Rezoning, Tentative Map, and Development Agreement, as are necessary to readopt or reenact all or any portion of this Agreement, Project Approvals, and/or Subsequent Approvals without contravening the Judgment.
(oo) The parties agree that this Section 9.02 shall constitute a separate agreement entered into concurrently, and that if any other provision of this Agreement, or the Agreement as a whole, is invalidated, rendered null, or set aside by a court of competent jurisdiction, the parties agree to be bound by the terms of this section, which shall survive such invalidation, nullification or setting aside.
DEFAULT; REMEDIES; TERMINATION
Defaults. Upon failure by either party to perform any term or provision of this Agreement, the party alleging such failure to perform shall give written notice to the other party, which notice shall specify the nature of the alleged failure with reasonable particularity and, where appropriate, the manner in which said failure satisfactorily may be cured (the “Default Notice”). Upon receipt of such Default Notice, the alleged breaching party shall have a period of thirty (30) days to either (a) use good faith efforts to cure such breach, or (b) if in the determination of the alleged breaching party, such event does not constitute a breach of this Agreement, such party may deliver to the party claiming the breach a “Notice of Non-Breach” which sets forth with reasonable particularity the reasons that a breach has not occurred. If the nature of the alleged failure is such that it cannot reasonably be cured within such 30-day period, then the commencement of the cure within such time period, and the diligent prosecution to completion of the cure thereafter, shall be deemed to be a cure within such 30-day period. Any alleged breach that continues uncured for a period of thirty (30) days following written notice of such failure from the other party (unless such period is extended by mutual written consent), or for which no Notice of Non-Breach was received and acknowledged in writing by the non-breaching party as acceptable, shall constitute a default under this 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.
Termination. If City elects to consider terminating this Agreement due to a material default of JMMD, then City shall give a notice of intent to terminate this Agreement and the matter shall be scheduled for consideration and review by the City Council at a duly noticed and conducted public hearing. JMMD shall have the right to offer written and oral evidence prior to or at the time of said public hearings. If the City Council determines that a material default has occurred and is continuing, and elects to terminate this Agreement, City shall give written notice of termination of this Agreement to JMMD by certified mail and this Agreement shall thereby be terminated sixty (60) days thereafter; provided, however, that if JMMD files an action to challenge City’s termination of this Agreement within such sixty-day period, then this Agreement shall remain in full force and effect until a trial court has affirmed City’s termination of this Agreement and all appeals have been exhausted (or the time for requesting any and all appellate review has expired).
(pp) Conducting the Periodic Review. Throughout the Term of this Agreement, at least once every twelve (12) months following the execution of this Agreement, City shall review the extent of good-faith compliance by JMMD with the terms of this Agreement. This review (the “Periodic Review”) shall be conducted in accordance with Section 17.810.012 of the Brentwood Municipal Code and shall be limited in scope to compliance with the terms of this Agreement pursuant to California Government Code Section 65865.1.
(qq) Notice. At least ten (10) days prior to the Periodic Review, and in the manner prescribed in Article 13 of this Agreement, City shall deposit in the mail to JMMD a copy of any staff reports and documents to be used or relied upon in conducting the review and, to the extent practical, related exhibits concerning JMMD’s performance hereunder. JMMD shall be permitted an opportunity to respond to City’s evaluation of JMMD’s performance, either orally at a public hearing or in a written statement, at JMMD’s election. Such response shall be made to the Community Development Director.
(rr) Good Faith Compliance. During the Periodic Review, the City shall review JMMD’s good-faith compliance with the terms of this Agreement. At the conclusion of the Periodic Review, the City Council shall make written findings and determinations, on the basis of substantial evidence, as to whether or not JMMD has complied in good faith with the terms and conditions of this Agreement. If the City Council finds and determines, based on substantial evidence, that JMMD has not complied with such terms and conditions, the City Council may initiate proceedings to terminate or modify this Agreement, in accordance with California Government Code Section 65865.1, by giving notice of its intention to do so, in the manner set forth in California Government Code Sections 65867 and 65868. The costs incurred by City in connection with the Periodic Review process described herein shall be shared equally by JMMD and City.
(ss) Failure to Properly Conduct Periodic Review. If City fails, during any calendar year, to either (i) conduct the Periodic Review or (ii) notify JMMD in writing of City’s determination, pursuant to a Periodic Review, as to JMMD’s compliance with the terms of this Agreement and such failure remains uncured as of December 31 of any year during the term of this Agreement, such failure shall be conclusively deemed an approval by City of JMMD’s compliance with the terms of this Agreement.
(tt) Written Notice of Compliance. With respect to any year for which JMMD has been determined or deemed to have complied with this Agreement, City shall, within thirty (30) days following request by JMMD, provide JMMD with a written notice of compliance, in recordable form, duly executed and acknowledged by City. JMMD shall have the right, in JMMD’s sole discretion, to record such notice of compliance.
Default by City or JMMD. In the event City or JMMD defaults under the terms of this Agreement, City or JMMD shall have all rights and remedies provided herein or under law.
Excusable Delay; Extension of Time of Performance. In addition to specific provisions of this Agreement, neither party shall be deemed to be in default where delays in performance or failures to perform are due to, and a necessary outcome of, war, insurrection, strikes or other labor disturbances, walk-outs, riots, floods, earthquakes, fires, casualties, acts of God, restrictions imposed or mandated by other governmental entities (including new or supplemental environmental regulations), enactment of conflicting state or federal laws or regulations, judicial decisions, enactment or imposition against the Project of a any moratorium, or time period of legal challenge of such moratorium by JMMD, or similar basis for excused performance which is not within the reasonable control of the party to be excused. Litigation attacking the validity of this Agreement or any of the Project Approvals or Subsequent Approvals, or any permit, ordinance, entitlement or other action of a governmental agency other than City necessary for the development of the Project pursuant to this Agreement, or JMMD’s inability to obtain materials, power or public facilities (such as water or sewer service) to the Project, shall be deemed to create an excusable delay as to JMMD. Upon the request of either party hereto, an extension of time for the performance of any obligation whose performance has been so prevented or delayed will be memorialized in writing. The term of any such extension shall be equal to the period of the excusable delay, or longer, as may be mutually agreed upon.
Legal Action. Either party may, in addition to any other rights or remedies, institute legal action to cure, correct, or remedy any default, enforce any covenant or agreement herein, enjoin any threatened or attempted violation thereof, recover damages for any default, enforce by specific performance the obligations and rights of the parties hereto, or to obtain any remedies consistent with the purpose of this Agreement.
California Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California.
Resolution of Disputes. With regard to any dispute involving development of the Project, the resolution of which is not provided for by this Agreement or Applicable Law, JMMD shall, at City’s request, meet with City. The parties to any such meetings shall attempt in good faith to resolve any such disputes. Nothing in this Section 10.08 shall in any way be interpreted as requiring that JMMD and City and/or City’s designee reach agreement with regard to those matters being addressed, nor shall the outcome of these meetings be binding in any way on City or JMMD unless expressly agreed to by the parties to such meetings.
Attorneys’ Fees. In any legal action or other proceeding brought by either party to enforce or interpret a provision of this Agreement, the prevailing party is entitled to reasonable attorneys’ fees and any other costs incurred in that proceeding in addition to any other relief to which it is entitled.
Hold Harmless. JMMD shall hold City and its elected and appointed officers, agents, employees, and representatives harmless from claims, costs, and liabilities for any personal injury, death, or property damage which is a result of the construction of the Project, or of operations performed under this Agreement by JMMD or by JMMD’s contractors, subcontractors, agents or employees, whether such operations were performed by JMMD or any of JMMD’s contractors, subcontractors, agents or employees. Nothing in this section shall be construed to mean that JMMD shall hold City harmless from any claims of personal injury, death or property damage arising from, or alleged to arise from, the sole negligence or willful act on the part of City, its elected and appointed representatives, offices, agents and employees.
Incorporation of Recitals and Introductory Paragraph. The Recitals contained in this Agreement, and the introductory paragraph preceding the Recitals, are hereby incorporated into this Agreement as if fully set forth herein.
Enforceability. City and JMMD agree that unless this Agreement is amended or terminated pursuant to the provisions of this Agreement, this Agreement shall be enforceable by any party hereto notwithstanding any change hereafter enacted or adopted (whether by ordinance, resolution, initiative, or any other means) in any applicable general plan, specific plan, zoning ordinance, subdivision ordinance, or any other land use ordinance or building ordinance, resolution or other rule, regulation or policy adopted by City that changes, alters or amends the rules, regulations and policies applicable to the development of the Property at the time of the approval of this Agreement as provided by California Government Code Section 65866.
Findings. City hereby finds and determines that execution of this Agreement furthers public health, safety and general welfare and that the provisions of this Agreement are consistent with the General Plan.
Severability. If any term or provision of this Agreement, or the application of any term or provision of this Agreement to a particular situation, is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining terms and provisions of this Agreement, or the application of this Agreement to other situations, shall continue in full force and effect unless amended or modified by mutual consent of the parties. Notwithstanding the foregoing, if any material provision of this Agreement, or the application of such provision to a particular situation, is held to be invalid, void or unenforceable, either City or JMMD may (in their sole and absolute discretion) terminate this Agreement by providing written notice of such termination to the other party.
Other Necessary Acts. Each party shall execute and deliver to the other all such other further instruments and documents as may be reasonably necessary to carry out the Project Approvals, Subsequent Approvals and this Agreement and to provide and secure to the other party the full and complete enjoyment of its rights and privileges hereunder.
Construction. Each reference in this Agreement to this Agreement or any of the Project Approvals or Subsequent Approvals shall be deemed to refer to the Agreement, Project Approval or Subsequent Approval as it may be amended from time to time, whether or not the particular reference refers to such possible amendment. This Agreement has been reviewed and revised by legal counsel for both City and JMMD, and no presumption or rule that ambiguities shall be construed against the drafting party shall apply to the interpretation or enforcement of this Agreement. In the event of inconsistencies between the specific provisions of this Agreement and the Project Approvals, Subsequent Approvals or the City’s Development Fee Program, the provisions of this Agreement shall govern.
Other Miscellaneous Terms. The singular shall include the plural; the masculine gender shall include the feminine; “shall” is mandatory; “may” is permissive. If there is more than one signer of this Agreement, the signer obligations are joint and several.
Covenants Running with the Land. All of the provisions contained in this Agreement shall be binding upon the parties and their respective heirs, successors and assigns, representatives, lessees, and all other persons acquiring all or a portion of the Project, or any interest therein, whether by operation of law or in any manner whatsoever. All of the provisions contained in this Agreement shall be enforceable as equitable servitudes and shall constitute covenants running with the land pursuant to California law including, without limitation, Civil Code Section 1468. Each covenant herein to act or refrain from acting is for the benefit of or a burden upon the Project, as appropriate, runs with the Property and is binding upon the owner of all or a portion of the Property and each successive owner during its ownership of such property.
No Agency, Joint Venture or Partnership. It is specifically understood and agreed to by and between the parties hereto that: (i) the subject development is a private development; (ii) City has no interest or responsibilities for, or duty to, third parties concerning any improvements until such time, and only until such time, that City accepts the same pursuant to the provisions of this Agreement or in connection with the various Project Approvals or Subsequent Approvals; (iii) JMMD shall have full power over and exclusive control of the Project herein described, subject only to the limitations and obligations of JMMD under this Agreement, the Project Approvals, Subsequent Approvals, and Applicable Law; and (iv) City and JMMD hereby renounce the existence of any form of agency relationship, joint venture or partnership between City and JMMD and agree that nothing contained herein or in any document executed in connection herewith shall be construed as creating any such relationship between City and JMMD.
Notices. Any notice or communication required hereunder between City or JMMD must be in writing, and may be given either personally, by telefacsimile (with original forwarded by regular U.S. Mail) by registered or certified mail (return receipt requested), or by Federal or other similar courier promising overnight delivery. If personally delivered, a notice shall be deemed to have been given when delivered to the party to whom it is addressed. If given by facsimile transmission, a notice or communication shall be deemed to have been given and received upon actual physical receipt of the entire document by the receiving party’s facsimile machine. Notices transmitted by facsimile after 5:00 p.m. on a normal business day or on a Saturday, Sunday or holiday shall be deemed to have been given and received on the next normal business day. If given by registered or certified mail, such notice or communication shall be deemed to have been given and received on the first to occur of (i) actual receipt by any of the addressees designated below as the party to whom notices are to be sent, or (ii) five (5) days after a registered or certified letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail. If given by Federal Express or similar courier, a notice or communication shall be deemed to have been given and received on the date delivered as shown on a receipt issued by the courier. Any party hereto may at any time, by giving ten (10) days written notice to the other party hereto, designate any other address in substitution of the address to which such notice or communication shall be given. Such notices or communications shall be given to the parties at their addresses set forth below:
If to City, to: City of BrentwoodAttn: City Manager150 City Park WayBrentwood, CA 94513Tel: (925) 634-6900Fax: (925) 516-8706
With a Copy to: City AttorneyCity of Brentwood150 City Park WayBrentwood, CA 94513Tel: (925) 634-6900Fax: (925) 516-8706
If to JMMD, to: John Muir/Mt. Diablo Health SystemAttn: President1800 Treat BoulevardWalnut Creek, CA 94596Tel: (925) 941-2000Fax: (925) 947-3225
With Copies to: The Terrill CompanyAttn: Tom Terrill1211 Newell Avenue, Suite 124Walnut Creek, CA 94596Tel: (925) 296-0855Fax: (925) 296-0877Morrison & Foerster, LLPAttn: David Gold101 Ygnacio Valley Road, Suite 450Walnut Creek, CA 94596Tel: (925) 295-3310Fax: (925) 946-9912
Entire Agreement, Counterparts and Exhibits. This Agreement is executed in two (2) duplicate counterparts, each of which is deemed to be an original. This Agreement consists of 30 pages and 1 exhibit which constitute in full, the final and exclusive understanding and agreement of the parties and supersedes all negotiations or previous agreements of the parties with respect to all or any part of the subject matter hereof. All waivers of the provisions of this Agreement shall be in writing and signed by the appropriate authorities of City and the JMMD. The following exhibit is attached to this Agreement and incorporated herein for all purposes:
Exhibit A Property Description
Recordation of Development Agreement. Pursuant to California Government Code § 65868.5, no later than ten (10) days after City enters into this Agreement, the City Clerk shall record an executed copy of this Agreement in the Official Records of the County of Contra Costa.
IN WITNESS WHEREOF, this Agreement has been entered into by and between JMMD and City as of the day and year first above written.
Dated: Attest:_____________________________Karen Diaz, CMC, City Clerk “CITY”City of BrentwoodBy: Jon Elam City Manager
Dated: Approved as to form: By: Dennis Beougher City Attorney
Dated: “JOHN MUIR”JOHN MUIR/MT. DIABLO HEALTH SYSTEMa California not-for-profit corporationBy: J. Kendall Anderson President and Chief Executive Officer
Dated: Approved as to form: By: David A. Gold Morrison & Foerster LLP Attorneys for John Muir/Mt. Diablo Health System