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HomeMy WebLinkAboutKAISER FOUNDATION HEALTH PLAN INC. (2)RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Clerk of the Council City of Santa Ana 20 Civic Center Plaza M-30 P.O. Box 1988 Santa Ana, California 92702 Recorded in the County of orange, California Gary L. Granville, Clerk/Recorder Illllllllllllllllllllllllllllllllllllllllllllilllllllllllllllllll No Fee 19990374202 3,16pm H/20/99 005 10048883 10 30 A17 22 6.00 63.00 0.00 0.00 0.00 0.00 FREE RECORDING GOVERNMENT CODE § 6103 FIRST AMENDED AND RESTATED DEVELOPMENT.' AGREEMENT BETWEEN THE CITY OF SANTA ANA AND KAISER FOUNDATION HEALTH PLAN, INC. This FIRST AMENDED AND RESTATED DEVELOPMENT AGREEMENT ("Agreement") is entered into between THE CITY OF SANTA ANA, a charter city ("City") and KAISER FOUNDATION HEALTH PLAN, INC_, a California non-profit corporation ("Owner" or "Property Owner"). As provided in Section 9.2, infra, this Agreement shall fully supercede and replace any other development agreement between the parties. RECITALS. The Agreement is entered into with reference to the following facts: 1.1 Code Authorization. City is authorized pursuant to Government Code Sections 65864 through 65869.5 to enter into development agreements with persons having legal or equitable interests in real property for the purpose of establishing certainty for both City and Owner in the development process. City enters into the Agreement pursuant to the provisions of the Government Code and applicable City policies. The parties acknowledge: (1) This Agreement is intended to assure adequate public facilities at the time of development- (2) This Agreement is intended to assure development in accordance with City's General Plan, applicable Specific Plans and Capital Improvement Plan- (3) This Agreement will permit achievement of goals and objectives as reflected in the City's General Plan and all applicable Specific Plans. (4) Owner is required by existing City regulations to provide mitigation for certain impacts and pay certain regulatory fees as conditions of approvals through the regulatory process. (5) This Agreement will allow City to realize extraordinary and OA 98-1 EXHIBIT 3 significant public infrastructure facilities and other supplemental benefits in addition to those available through the existing regulatory process. (6) Many of the extraordinary and significant benefits identified as consideration to City for entering into this Agreement are of regional significance, relate to existing deficiencies in public facilities, require Owner to contribute a greater percentage of benefits than would otherwise be required, and represent benefits which would not otherwise be required as part of the development process. 1.2 Owner. Owner represents and warrants that it has a legal or equitable interest in the real property located in City of Santa Ana, California, legally described on Exhibit A attached hereto and incorporated herein, and graphically described on Exhibit B attached hereto and incorporated herein (hereinafter the "Property"). The Property consists of approximately 8.72 acres, located at the southeast intersection ofilarbor Boulevard and MacArthur Avenue. The Owner desires to develp Property with a medical facility of approximately 80,000 square feet with on -site parking_ 1.3 Interest of Owner. Owner hereby represents that it has an equitable• and legal interest in the Property. Owner further hereby represents that it has approved this Agreement and is authorized to enter into this Agreement. 1.4 Planning Commission - Council Hearings. On September 14, 1998, the Planning Commission of the City ("Planning Commission"), after giving notice pursuant to Government Code Sections 65090 and 65091, held a public hearing to consider the Owner's application for this Agreement. The Planning Commission recommended to the City Council of City that it execute this Agreement. On October 5, 1998, the City Council of the City of Santa Ana ("Council"), after providing notice as required by law, held a public earing to consider the Owner's application for this Agreement. OnManzktj�'1999 and , 1999, respectively, the Planning Commission and City Council held a pu lic hearing on the amended and restated Agreement. 1.5 Council Findings. The Council finds that this Agreement is consistent with the General Plan, applicable Specific Plan(s) as well as all other applicable ordinances, plans, policies and regulations of the City. May 1.6 City Ordinance On Apt 17, 1999, the Council adopted Ordinance No. NS -9 3 s 5 approving this Agreement. The ordinance became effective on M2�KX 1999. June 16, 2. DEFINITIONS. In the Agreement, unless the context otherwise requires: 2.1 "Final Design' means the final design documents for the off -site storm drain system including catch basins, to be constructed along Harbor Boulevard between Sunflower and the Property, as prepared by Owner and approved by City, which are set forth in greater detail in Section 5.8 of this Agreement. 2.2 "Property Owner" or "Owner" means Kaiser Foundation Health Plan, Inc., being the person, persons, or entity having a legal or equitable interest in the Property, and includes Kaiser Foundation Health Plan, Inc.'s successors in interest. 2.3 "Property" is the real property described in Exhibit A and referred to in Exhibit B. 2.4 "Project" is the development of the Property as generally set forth in GPA No. 98-04, AA No. 98-11 for the change of zoning district, and the Project Description as set forth in the negative declaration for the Project. 2.5 Storm Drain Locational Plan means the conceptual Storm Drain Plan attached hereto as Exhibit C. The parties recognize that the Storm Drain Locational Plan sets - forth.the public facilities which will be required for the ultimate build -out of the City's Master Plan of Drainage. The- general description, process and allocation of costs contained in the.Sto"rm Drain Locational Plan are further explained and identified in this Agreement as Exhibit C attached hereto and incorporated herein. 3. EXHIBITS. The following documents referred to in the Agreement are attached to this Agreement and are identified as follows: Exhibit Referred to Designation Description in Section A Property Legal Description 1.2 B Property Graphical Description (Site Plan) 1.2 C Storm Drain Locational Plan 2.5 4. GENERAL PROVISIONS. 4.1 Property Subject to the Agreement. Until released pursuant to the provisions of Section 9.3 below, no property shall be released from this Agreement until Property Owner has fully performed its obligations arising out of the Agreement. 4.2 Duration of Agreement. The term of the Agreement shall commence on, and the effective date of the Agreement shall be, the effective date of City Ordinance No. as set forth in Section 1.6 above, and the term shall extend for a period of six (6) years following the effective date unless the Agreement is earlier terminated, or its term modified of fully executed by both parties; provided, however, that nothing herein is intended nor shall it be interpreted to extend the period of validity of any approval issued in conjunction with the City's Development Project Plan process or building permit, beyond local requirement. 4.3 Assignment. Owner shall have the right to transfer or assign the Property, in whole or in part, to any person, entity (public or private), partnership, joint venture, firm or corporation at any time during the term of this Agreement; provided, however, the rights of Owner under this Agreement may not be transferred or assigned unless the written consent of the Council is fast obtained and any transfer or assignment of the rights under this Agreement shall include in writing the assumption of the duties, obligations, and liabilities arising from this Agreement if the City grants written consent to transfer the rights. Nor shall the rights of the Owner hereunder be subject to assignment by attachment, execution, or proceedings under any provision of the Bankruptcy Act, and any such assignment or transfer shall be wholly void and of no force and effect unless such written consent thereto be obtained from the Council. Such transfer or assignment shall not relieve the Owner of any duty, obligation or liability to City without the consent of the City. During the term of this Agreement, any approved assignee or transferee of the rights under this Agreement shall observe and perform all of the duties and obligations of Owner contained in this Agreement as such duties and obligations pertain to the portion of the Property transferred or assigned- Any and all approved successors and assigneesW Owner shall have all of the same riglits, benefits, duties, obligations, and liabilities of Owner under this Agreement. If the Property is subdivided, any 'subdivided parcel may be sold, mortgaged, hypothecated, assigned, or transferred to persons for development by them in accordance with the provisions of this Agreement. Upon assignment or transfer of the rights of Owner under this Agreement, the obligations of Owner and the transferee or assignee shall be joint and several. 4.4 Amendment or Cancellation of Agreement. This Agreement may be amended from time to time or cancelled by the mutual consent of the parties, but only in the same manner as its adoption by an ordinance as set forth in Government Code Section 65868. The term "Agreement" or `Development Agreement" as used herein shall include any amendment properly approved and executed. 4.5 Enforcement, Notwithstanding Government Code Section 65865.4, this Agreement is enforceable by any party to the Agreement in any manner provided by law. The remedies provided in Section 8.4 of this Agreement shall not include, and City shall not be liable for, any action in damages or any costs or attorney's fees resulting from any dispute, controversy, action or inaction, or any legal proceeding arising out of this Agreement except as may be provided in Section 6.3(5) of this Agreement. 4.6 Hold Harmless. Property Owner agrees to and shall hold City, its officers, agents, employees, consultants, special counsel, and representatives harmless from liability: (1) for damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including health, and claims for property damage, which may arise from the direct or indirect operations of the Property Owner or their contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the Project; and (2) from any claim that damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. Property Owner agrees to pay all costs for the defense of the City and its officers, agents, employees, consultants, special counsel, and representatives regarding any action for damages, just compensation, restitution, judicial or equitable relief caused or alleged to have been caused by reason of Property Owner's actions in connection with the Project, any claims arising out of this Agreement, or any approval or certification by the City relating to the Project. This hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or due by reason of the terms of, or effects, arising from this Agreement or any approval or certification by the City relating to the 10 Project, regardless of whether or not the City prepared, supplied or approved this Agreement, plans or specifications, or both, for the Project. The Property Owner further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement or any approval or certification by the City relating to the Project, or asserting that damages, just compensation, restitution, judicial or equitable relief is due to personal or property rights by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. 4.7 Binding Effect of Agreement. To the extent not otherwise provided in Section 4.3 of this Agreement, the burdens of the Agreement bind, and the benefits of the Agreement inure, to the parties' successors in interest. 4.8 - Relationship of the Parties. The contractual relationship between City and Owner arising out of the Agreement is one of independent contractor and not agency. This Agreement does not create any third party beneficiary rights. _ 4.9 Notices. Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: If to City, to: and, City Manager City of Santa Ana 20 Civic Center Plaza M-31 P.O. Box 1988 Santa Ana, California 92702 telefacsimile (714) 647-6954 City Attorney City of Santa Ana 20 Civic Center Plaza M-29 P.O. Box 1988 Santa Ana, California 92702 telefacsimile (714) 647-6515 If to Owner, to: 0 and, Richard R. Miller, Jr., Ph.D. Land Use Manager Kaiser Permanente Facilities Services 393 East Walnut Street Pasadena, California 91188 telefacsimile (626) 685-3910 Stephen Doshay, Counsel Kaiser Permanente Legal Services Department . 393 East Walnut Street Pasadena, California 91188 telefacsimile (626) 405-5221 A party may change its address by giving notice in writing to the other party_ Thereafter, any notice, tender, demand, delivery, or other communication shall be addressed and transmitted to the new address. If sent by mail, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County, or city holidays shall be excluded. 5. DEVELOPMENT OF THE PROPERTY. 5.1 Rules, Regulations and Policies. The rules, regulations and official policies governing the permitted use(s) of the Property, with respect to and only with respect to the density and intensity of use of the Property, shall be those rules, regulations, and policies applicable to the Property as of (a) the effective date of this Agreement, or (b) the time at which Owner obtains a building permit for the Project or any unit or structure contained within the Project, whichever is later. 5.2 Permitted Use, Density, and Intensity of Use; Rate and Amount of Growth. Pursuant to Government Code Section 65866, and Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d 465, 208 Cal.Rptr. 228, 690 P.2d 701, the right to enact police power regulations on matters not covered by section 5.1 of this Agreement, including without limitation regulation of the rate and amount of growth, is not abrogated by the City. The City hereby retains the police power to provide for change in regulations, ordinances, policies, and plans relating to moratoria, building permit allocations, timing, and sequencing of development and the financing and provision of adequate public facilities at the time of development. No vested rights as to any requirements in this sub -section either as to existing or future regulations, ordinances, policies, and plans are hereby conferred. C 5.3 Design and Construction Standards and Specifications. The design and construction standards and specifications for all Project construction, including without limitation the facilities set forth in the Storm Drain Locational Plan, shall be subject to applicable design standards and guidelines in effect at the time that any development approval shall be sought for the Project or any unit or structure contained within the Project. 5.4 Maximum Height and Size of Structure. The maximum height and size for all structures shall be as provided in the applicable zoning classifications. 5.5 Future Discretionary Approvals. This Agreement shall not prevent the City, when considering requests for discretionary approvals not covered by Section 5.2 of this Agreement subsequent to -the effective date of this Agreement, from applying new rules, regulafions, -and policies which are applicable to the Property, including but not limited to, changes in the general plans, specific plans, zoning, subdivision or building regulations, nor shall this Agreement prevent the City from denying or conditionally approving any subsequent applications for land use entitlements based on such existing or new rules, regulations, and/or policies; provided however, that such new rules, regulations, and official policies are of general application to all development within the City and are not imposed solely with respect to the subject property. In addition, this Agreement shall not prevent the City from exercising its police power to protect the health, safety, and welfare of the public. This police power, exercised in accordance with Section 5.2 of this Agreement, is paramount to any rights or obligations created or existing between the parties. 5.6 Processing Fees. All fees and charges intended to cover City costs associated with processing development of the Property, including but not limited to fees and charges for applications, processing, inspections, plan review, plan processing, and/or environmental review, which are existing or may be revised or adopted during the term of this Agreement, shall apply to the development of the Property. 5.7 Amendments or Additions to Citywide Fee Programs. This Agreement shall not preclude the inclusion of and changes to fee programs, taxes whether special or general, or assessments (hereafter collectively referred to as "fees") adopted by the City after the effective date of this Agreement, which shall be applicable to the Project or the Property provided that they (1) are standard fees applicable to all development in the City (although actual fee rates may vary within the City where bona fide Citywide fee zones have been established), (2) are not applicable primarily or only to this Project, or (3) are not imposed to either (a) mitigate, offset or compensate for Project impacts which were analyzed in the negative declaration prepared for the Project, or (b) duplicate any project design features conditions of approval, agreements, or mitigation measures contained in the Development Plan or this Agreement. 5.8 Development, Construction and Completion of Project. In consideration for the extraordinary and significant benefits set forth in this Section, the Owner has been legally vested under Section 5.2 with regard to the permitted uses of land, density, and intensity of use. Facilities specified below must be designed and/or constructed prior to the triggering event. Facilities to Be Constructed Triggering Event (E.g., New Use or New Areal 7 1. Submit Final Design of off -site Storm Prior to issuance of Building Permit for Phase I Drain and obtain review and approval by building, as set forth in developer's plans submitted the City and the City of Costa Mesa. in connection with GPA No. 98-04, AA No. 98-11, Final design must conform to Storm and related negative declaration. Drain Locational Plan. 2. Install off -site storm drain system Prior to City's issuance of Certificate of Use and from Sunflower to the Owner's property Occupancy for Phase I building, or six (6) years line along Harbor Boulevard as set forth from the effective date of this Agreement, in the Final Design. whichever comes first. After the effective date of this Agreement, Owner shall promptly and diligently make good faith'efforts to secure all necessary permits, variances and approvals necessary to pursue to completion the facilities set forth in the Final Design of the Storm Drain Locational Alan and the development therefor as provided in this Agreement, including without limitation all permits from the City of Costa Mesa. With respect to the Final Design, Owner shall complete all construction and development, shall submit all plans, drawings, and other documents, and perform all of its obligations under this Agreement within the times specified above. During periods of construction of the off -site storm drain encompassed in the Storm Drain Locational Plan, Owner shall submit to the City a written report of the progress of the construction when and as reasonably requested by the City. The report shall be in such form and detail as may be reasonably required by the City, and shall include a reasonable number of construction photographs (if requested) taken from the last report by Owner. Development scheduling or date or times of performance may be subject to revision from time to time if first mutually agreed to in writing. Such revisions do not constitute amendments requiring further notice and public hearing. Notwithstanding the foregoing, for a twelve (12) month period following the effective date of this restated and amended Agreement as set forth in Section 1.6 above„ Owner shall have the unilateral right to inform the City in writing that it is canceling this Agreement on the sole grounds that it has chosen to not proceed with the Project_ This twelve (12) month period within which the Owner may cancel this Agreement may be extended for an additional six (6) months upon Owner's written request coupled with the written approval of this request by the Executive Director of the City's Public Works Agency. Should Owner exercise its right to cancel this Agreement during this twelve (12) month period or any six (6) month extension, neither Owner nor City shall have any rights or obligations hereunder. After this twelve (12) month period, together with any six (6) month extension, Owner's obligations hereunder may only be waived or amended pursuant to the provisions of Section 9.2 of this Agreement. 5.9 Responsibility For Costs of Off -Site Storm Drain. The City and Owner agree that Owner shall be responsible for all costs associated with the design and construction of the off -site storm drain provided for in the Storm Drain Locational Plan. Upon acceptance of the off -site storm drain, including but not limited to the catch basins, by the City and the City of Costa Mesa, Owners responsibility to pay all costs associated with the off -site storm drain shall cease. Owner shall obtain at least three (3) bids from qualified bidders for the construction of the off -site storm drain, which identifies all labor and construction costs associated with the Storm Drain Locational Plan. These bids shall be submitted to the City and Owner shall award the contract to construct the off -site storm drain to the bidder selected by the City. Owner's overall financial obligation shall be as follows: Portion of off -site storm drain 100% of all costs between Lake Center Drive and Owner's property (design and construction) Portion of off site storm drain 18% of all costs between Sunflower and Lake Center Drive (design and construction) The City shall be responsible to Owner to reimburse the 82% of the overall cost of design and construction of the portion. of the off -site storm between Sunflower and Lake Center Drive as set forth in section 5.10 below (hereafter "City's Share"). 5.10 Fee Deferral and Reimbursement. To reimburse Owner for Owner's initial obligations to pay the entire cost associated with design and construction of the off site storm drain provided for in the Storm Drain Locational Plan, the parties agree that the following fees, otherwise due and oweable by Owner, shall be deferred and not be paid by Owner as a ` condition of obtaining any City permit or approval: Fee Unit Fee Amount Total Deferred Fee (Estimated) TSIA Fee (Area E) 80,000 SF $2,01/sf $160,800 Sewer Connection 293 Plumbing $57.97/fixture $ 16,985 Charge Fixtures Water Main Charges 520 Linear Ft on $24.00/hnear foot $ 28,104 Harbor 651 Linear Ft on MacArthur TOTAL $205,889 (estimare) In addition, the parties agree that the City's reimbursement obligation shall be credited by the City Drainage Assessment Fees (Area Ell) that Owner would otherwise be required to pay, estimated to be $23,544, and that Owner shall not be required to pay this fee. This sum, together with the $205,899 estimated fee deferral shall be referred to as the Offset Amount. The exact amount of the Offset Amount shall be calculated by the City at the time that Owner obtains a building permit for the Phase I building, using the then current rates of each fee and the final Units of size. Within sixty (60) days of the date upon which the City accepts the off -site storm drain, as set forth in the Storm Drain Locational Plan, into the City's storm drain system, City shall provide Owner with all monies then present in the City Local Drainage Area III to an amount equal to the City's Share minus the Offset Amount. Should their be insufficient funds in the Local Drainage Area III account to equal the City's Share minus the Offset Amount, then the City shall, within. sixty (60) days of the conclusion of each fiscal year, forward all sums in the City Local Drainage Area 111 to Owner until the Owner has been reimbursed the City's Share minus the Offset Amount; provided, however, that the entire amount of the City's Share minus the Offset Amount shall be provided to Owner no later than sixty (60) days following the end of the two (2) full fiscal years from the date upon which the City accepts the off -site storm drain, as set forth in the Storm Drain Locational Plan, into the City's storm drain system. Thereafter, payments into the Local Drainage Area III account shall be directly used to re -pay the estimated $205,899 in Owner Offset Amount. 5.11 Moratoriums. Moratoriums enacted by the City for the public health, safety, and welfare, .which are imposed on the Property or Project, shall toll the time periods "set forth in this Agreement. 5.12 City to Receive Construction Contract Documents. Owner shall furnish City, upon written request, copies of any public facilities construction contracts and supporting documents relating to the off -site storm drain. 5.13 Conditions of Discretionary Approvals. The requirements imposed as conditions of any discretionary approval received through the City's existing regulatory process shall be governed by the terms of those approvals, and in no event shall such conditions be affected by the termination, cancellation, rescission, revocation, or default or expiration of this Agreement. 5.14 Compliance With Governmental Requirements. Owner shall carry out the design, construction, and operation of the Project in substantial conformity with all applicable laws, ordinances, statutes, codes, rules, regulations, orders, and decrees of the United States, the State of California, the County of Orange, the City, or any other political subdivision in which the Property is located, and of any other political subdivision, agency, or instrumentality exercising jurisdiction over the City, the Owner or the Property, including all applicable federal, state, and local occupation, safety and health laws, rules, regulations and standards, applicable state and labor standards, applicable prevailing wage requirements, the City zoning and development standards, City permits and approvals, building, plumbing, mechanical and electrical codes, as they apply to the Property and the Project, and all other provisions of the City and its Municipal Code (as they apply to the Property and the Project), and all applicable disabled and handicapped access requirements, including, without the limitation, the Americans With Disability Act, 42 U.S.C. § 12101 et seq., Government Code § 4450 et seq., and the Unruh Civil Rights Act, Civil Code § 51 et seq. ("Governmental Requirements"), Owner explicitly acknowledges that construction of the off -site storm drain required pursuant to the Storm Drain Locational Plan shall be subject to the requirement that Owner pay "prevailing wage" rates pursuant to Labor Code section 1720 et seq., and that this standard shall constitute one of the Governmental Requirements. ANNUAL REVIEW_ 6.1 City and Owner Responsibilities. City shall, at least every twelve (12) 10 months during the term of this Agreement, review the extent of good faith substantial compliance by Owner with the terms of this Agreement. Pursuant to Government Code Section 65865.1, as amended, Owner shall have the duty to demonstrate by substantial evidence its good faith compliance with the terms of the Agreement at the periodic review. 6.2 Review Letter. If Owner is found to be in compliance with the Agreement after annual review, City shall, upon written request by Owner, issue a Review Letter to Owner (the "Letter") stating that based upon information known or made known to the City Council, the City Planning Commission and/or the City Planning Director, the Agreement remains in effect and Owner is not in default. Owner may record the Letter in the Official Records of the County of Orange. 6.3 Failure of Periodic Review. City's failure to review at least annually Owner's compliance with the terms and conditions of this Agreement shall not constitute or be asserted by any party as a breach of the Agreement by Owner or City. DEFAULT, 7.1 Events of Default. Property Owner is in default under this Agreement upon the happening of one or more of the following events or conditions: (1) If a warranty, representation, or statement made or famished by Property Owner to the City is false or proves to have been false in any material respect when it was made; (2) A finding and determination made by the City following a periodic review under the procedure provided for in Government Code Section 65865.1 that upon the basis of substantial evidence the Property Owner has not complied in good faith with one or more of the terms or conditions of this Agreement; (3) Failure to comply with Governmental Requirements; (4) Any other event, condition, act, or omission which materially interferes with the intent and objectives of this Agreement. 7.2 Procedure upon Default. (1) Upon the occurrence of default, City shall give Property Owner (the "defaulting party") thirty (30) days written notice specifying the nature of the alleged default and, when appropriate, the manner in which said default may be satisfactorily cured. After proper notice and expiration of said thirty (30) day cure period without cure, City may terminate or amend this Agreement in accordance with the procedure adopted by the City as to all defaults that may be cured within said thirty (30) day cure period. For defaults that cannot be cured within said thirty (30) day cure period, City may terminate or amend this Agreement in accordance with the procedure adopted by the City should at any time Owner fail to diligently proceed in curing the default. Failure or delay in giving notice of default shall not constitute a waiver of any default, nor shall it change the time of default. 11 (2) City does not waive any claim of defect in performance by Property Owner, if on periodic review the City does not propose to modify or terminate this Agreement. (3) Non-performance shall not be excused because of a failure of a third person. (4) An express repudiation, refusal, or renunciation of the contract, if the same is in writing and signed by the Property Owner, shall be sufficient to terminate this Agreement and a hearing on the matter shall not be required. (5) Adoption of a law or other governmental activity making performance by the Owner unprofitable or more difficult or more expensive does not excuse the performance of the obligation by the Property Owner. (6) All other remedies at law or in equity which are not inconsistent with the provisions of this Agreement are available to the parties to pursue in the event there is a breach. 7.3 Damages upon Termination. In no event shall Property Owner be entitled to any damages against City upon termination of this Agreement. 7.4 Institution of Legal Action. In addition to any other rights or remedies, either party may institute legal action to cure, correct, or remedy any default or breach, to specifically enforce any covenants or agreements set forth in the Agreement, or to enjoin any threatened or attempted violation of the Agreement; or to obtain any remedies consistent with the purpose of the Agreement. Legal actions shall be instituted in the Superior Court of the County of Orange, State of California, or in the Federal District Court in the Central District of California, Southern Division. ENCUMBRANCES AND RELEASES ON PROPERTY. 8.1 Discretion to Encumber. This Agreement shall not prevent or limit Owner, in any manner, at Owner's sole discretion, from encumbering the Property or any portion of the Property or any improvement on the Property by any mortgage, deed of trust, or other security device securing financing with respect to the Property or its improvement. 8.2 Entitlement to Written Notice of Default. The mortgagee of a mortgage or beneficiary of a deed of trust encumbering the Property or any part thereof and their successors and assigns shall, upon written request to City, be entitled to receive from City written notification of any default by Owner of the performance of Owner's obligations under the Agreement which has not been cured within thirty (30) days following the date of default. 8.3 Releases. City agrees that upon written request of Property Owner and payment of all fees and performance of the requirements and conditions required of Owner by this Agreement with respect to the Property, or any portion thereof, City may execute and deliver to Owner appropriate release(s) of further obligations imposed by this Agreement in form and substance acceptable to the Orange County Recorder or as may otherwise be necessary to effect 12 the release. 9. MISCELLANEOUS PROVISIONS. 9.1 Rules of Construction. The singular includes the plural; the masculine gender includes the feminine; "shall" is mandatory; "may" is permissive. If there is more than one signer of this Agreement; their obligations are joint and several. 9.2 Entire Agreement, Waivers and Amendments. This amended and restated Agreement constitutes the entire understanding and agreement of the parties with respect to the matters set forth in this Agreement. This Agreement supersedes all negotiation or previous agreements between the parties respecting this Agreement. All waivers of the provision of this Agreement must be in writing and signed -by the appropriate authorities of City or of Owner. All amendments to this .Agreement must be in writing signed by the appropriate authorities of City and Owner, in a form suitable for recording in the Official Records of Orange County, California. Within ten (10) days following the effective date of this Agreement, a copy of this Agreement shall be recorded in the Official Records of Orange County, California. Upon the completion of performance of this Agreement or its revocation or termination, anappropriate Certificate of Completion acknowledging such occurrence signed by the appropriate agents of Owner and City shall be recorded in the Official Records of Orange County, California. 9.3 Project as a Private Undertaldng. It is specifically understood by the parties that: (a) the Project is a private development for purposes of Government Code Section 65864 et seq.; (b) City has no interest in or responsibilities for or duty to third parties concerning any improvements to the Property or in connection with the Project until City accepts the improvements pursuant to the provisions of this Agreement or in connection with discretionary approval(s); and (c) Owner shall have the full power and exclusive control of the Property subject to the obligations of Owner set forth in this Agreement. 9A Incorporation of Recitals. The Recitals set forth in Section 1 of this Agreement are part of this Agreement. 9.5 Captions. The captions of this Agreement are for convenience and reference only, and shall not define, explain, modify, construe, limit, amplify, or aid in the interpretation, construction, or meaning of any of the provisions of this Agreement. 9.6 Consent. Where the consent or approval of a party is required in or necessary under this Agreement, the consent or approval shall not be unreasonably withheld. 9.7 Covenant of Cooperation. The parties shall cooperate with, deal with each other in good faitb, and assist each other in the performance of the provisions of this Agreement. 9.8 Time of Essence. Time is of the essence for each provision of this Agreement of which time is an element. 9.9 Conflicts of Law. In the event that state or federal laws or regulations enacted after this Agreement has been entered into or the action or inaction of any other affected 13 9.8 Time of Essence. Time is of the essence for each provision of this Agreement of which time is an element. 9.9 Conflicts of Law. In the event that state or federal laws or regulations enacted after this Agreement has been entered into or the action or inaction of any other affected governmental jurisdiction prevent or preclude compliance with one or more provisions of this Agreement or require changes in plans, maps, or permits approved by the City, the parties shall provide the other party with written notice of such state or federal restriction, provide a copy of such regulation or policy, and a statement of conflict with the provisions of this Agreement. The parties shall, within thirty (30) days, meet and confer in good faith in a reasonable attempt to modify this Agreement to comply with such federal or state law or regulati6n. Thereafter, regardless of whether the parties reach an agreement on the effect of such federal or state taw or - regulation upon the Agreement, the matter shall be scheduled for hearing before the Council. Public notice of such hearing shall be given pursuant to Government Code Section 65854.5. The City Council, at such hearing, shall determine the exact modification or suspension which shall be necessitated by such federal or state law or regulation pursuant to Government Code Section 65869.5. At the hearing Owner shall have the right to offer oral and written testimony. 9.10 Recording. The City Clerk shall cause a copy of this Agreement to be recorded with the Office of the County Recorder of Orange County, California; within ten (10) days following the effective date of this Agreement. IN WITNESS WHEREOF, this Agreement has been executed by the City of Santa Ana, acting by and through its Mayor, and by Property Owner. Dated this day of 1"lo, 1999. ATTEST: JAZE-C. GUY CLERK GE THE COUNCIL Approved as to Form: JOSEPH W. FLETCHER, CITY ATTORNEY By BE AMIN Chi f Assistant ney THE CITY OF SANTA ANA By ACTING MAYOR THOMAS E. LUT PROPERTY OWNER Kaiser Foundation Health Plan, Inc_,a nonprofit Public Benefit Corp ra io By t___ Itsyice President"nf National Facilities Services CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of Orange On May 19, 1999 before me, Elizabeth Dane , DATE ELIZABETH DANG, SENIOR DEPUTY CLERK OF THE COUNCIL personally appeared Tom Lutz NAME(S) OF SIGNER(S) 9 personally known to me - OR - ❑ proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that -by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. "� -- SIG URE OF SENIOR DEPUTY CLERK OF TYCOUNCIL CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of Orange On (t, l jq before me,_ Iv i 01 V-LG, D . V Ot lea DATE MARIA D. RUANO. DEPUTY CLERK OF THE CODNCIL personally appeared 1 Z t — '- j) p, ng NAME(S) OF SIGNER(S) personally known to me - OR - ❑ proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that . he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their ® .$ signature(s) on the instrument the person(s), or" the ¢9 0 entity upon behalf of which the person(s) acted, A s executed the instrument. RE ��l 9i%ED C� tssa AV 0-9- WITNESS my hand and official seal. SIGNATURE OF DEPUTY CLERK T� STATE OF CALIFORNIA } ss. COUNTY OF � ) On this day of., : 1999, before me, a Notary Public in and for said state, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the Mayor of THE CITY OF SANTA ANA, the charter city that executed the within instrument, known to me to be the person who executed the within instrument on behalf of the municipal corporation therein named, and acknowledgedto me that such municipal corporation executed the within instrument pursuant to its bylaws or a resolution , of its City Council. WITNESS my hand and official seal. NOTARY PUBLIC STATE OF CALIFORNIA ) '44Rrr5PA ) ss. COUNTY OF 81 E ) On this 1q day of M4-C# 1999, before me, 'Moot/ , a Notary Public in and for said state, personally appeared O/n ffeGLEli✓ personally known o m ourpgd to me on the basis of satisfactory evidence) to be the 111661R�S�t>Stfi-`o aiser Foun ation Health Plan, Inc., the �,O"SC that executed the within instrument, known to me to be the person who executed the within instrument on behalf of the municipal corporation therein named, and acknowledged to me that such municipal corporation executed the within instrument pursuant to its bylaws or a resolution of its Board - WITNESS my hand and official seal. MARILYN M.L. SULLIVAN � . CMAK #1130135 NOTARY PUBLIC-CAUFORNIA x K COUNTY OF ALAMEDA MY Comm Fxpi;es .Mar. I4.2001 r 4 a �- &' K 'J"� NOTARY PUBLIC OR=97323AO ALL Tr'.=.e CERT iti 1-kND S ,U HE Sm .. OF C-r I=OLI L-k. COL!—S I OF CR AGE, CII"S O: S i'�Ti A YA, DESC=ES-D zS FOLLOWS: PARCEL .A PARCEL 1, AS S^0'+i:\ ON EXHIBIT 'B' ATTACHED TO LOF LINE ADJLiST'MENT LL 93-7 RECORDED AUGUST 13, I993 AS INSTRUMENT NO. 93-0545721 OF OFFICIAL RECORDS OF 0?=.NGE COUNTY, CALIFORNIA. EXCEPT FP.O:MM A PORTION OF S AID LAND AN UNDIVIDED ONE-H.kLF INTFP EST IN ..LL `•`INERALS; ORES, PRECIOL•:e5 AND LiSEFtiL','ETALSZ SUBSTANCES AND PIYDROC;!.RBONS OF EVERY KJ?\D AND CHARACTER, INCLUDING PETROLEUM, OIL, GAS, ASPHALTUM A'iD TAR, IN' AND UNDER SAID LAND, BUT WITROUT THE RIGHT TO USE THE SURFACE OF SAID LAND IN CONNFCTIO\ WITH THE DEVELOPMENT THEREOF, PROVIDED, HOWF%'ER THE SAME SHALL NOT BE CONSTRUED TO PROHIBIT SLANT DRILLING OPEP-,' IONS'OR SUCH OTHER OPERATIONS WINCH IN NO W.AY USE OR IN ANY VY'AY AFFECT THE SURFACE RIGHTS TO SAID LAND_AND %'INCH DO NOT ENTER SAID LAND AT A POINT LESS THAN S0'0 FEET TO SAID SURFACE AS RESERVED IN THE DEED FROM MARY .ANN VINCENT, AND OTHERS, RECORDED APRIL 15, 1957 IN BOOK 3574, PAGE 311 OF OFFICIAL RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. ALSO EXCEPT FROM A PORTION OF SAID LAND, AN UN'DWIDED ONE-HALF INTEREST IN ALL IMINERALS, ORES, PRECIOUS AND USEFUL METALS, SUBSTANCES AND HYDROCARBONS OF EVERY KIND AND CHARACTER, INCLUDING PETROLEUM, OIL GA, ASPHALTUM AND T: _R, IN AND UNDER SAID LAND, BUT WITHOUT THE RIGHT TO USE THE SURFACE OF SAID LAND IN CONNECTION TVITH THE D�VELCP'+1E1T THEP.EOF , PROVIDED, HOWEVER, THE S?.?+?E SHALL NOT SE CONSTRUED TO PROHIBIT SL ANT DRILLING OPERATION S OR SUCH O T HER OPERATIONS WHICH DO NOT ENTER SAID LAND AT A POINT LESS THAN ;C0 FEET TO SAID SURF.-CES, AS RESERVED Iti THE DEED FROM ANTON H. SEGERSTROM AND OTHERS, TO ROBERT F. JONES AND WIFE, RECORDED JANUARY 7, 1959 IN BOOK 4539, PAGE 489 OF OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY' RECORDER OF SAID COiiNTI'. A NON-EXCLUSIVE EASEMENT FOR VEHICULAR INGRESS AND EGRESS, DRAINAGE` AND MAINTENANCE OF PRIVATE RO.".D OVER THAT PORTION OF PARCEL 2, AS SHOWN ON THE M.4P FILED IN BOOT; 38, PAGE 13 OF PARCEL IhMAPS INI THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, TOGETHER WITH THAT PORTION OF LOT 3 OF THE WILL IA -.MS TRACT AS SHMVIN ON THE i.MAP RECORDED IN BOOT: 30, PAGE 14 OF DEEDS IN THE OFFICE OF THE COUNT7' RECORDER OF LOS .ANGELES COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS: BEGINNING AT THE INT-RSECTION OF THE EASTERLY LINE OF SAID PARCEL 2 V:ITH THE SOU7H7RL Y LINE OF MAC ART i.R BOULEVARD, 104.0 FEET IN WIDTH, AS DESCRIBED IN THE DEED TO TEE CITY OF SANTA : NA RECORDED OCT0BER 23, 1952 Iti BOOK 5294PAGE 1-95 OF uFFiCfAL RECORDS IN THE OFFICE OF SAID COUNTY RECORDER OF OR=.AGE COUNTY, SAID SOUTHERLY LItiE BEING PARALLEL ii'ITH -kND SOUTHER Y 53.C}7 FEET FROM THE EASTERLY PP.OLONG.ATION OF THE NORTH_: LY LINE OF S `.ID PA-RCEL 2; Tl-IENCE NOPTH SS` 39' 10" EAST 17.79 FEET ALONG SAID SOUTHERLY LINE TO A POItiT ON A NON-TA.NG_NT CURVE CONCAVE SOUTH='.STERL�' HAS'iNG A R '.D,iLS OF 29.50 FEET, A. r ADI .L LINI TO SAID POi. T BF RS 'FORTH '1: =5' So" V%7EST: THENCE SOUTHEV.-ESiERLY 25.53 FEET ALONG S .ID C RVE THROLGH .. CENTRAL ANGLE OF 49' 35' G) THENCE SOUTH 1` 20' Sb" EAST '4.ii FEEa TO THE BEGt\NING OF A TANGENT CURVE COtiCAA'L WESTERLY HAVING A RADIUS OF 175.CID FEET; THENCE Exhibit A OR-97323 4 0 1iCL`.O r:CER-SVlEP.CZPWS�T SOUTHEERLY 117.10 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 3S' 20' 22"; THENCE SOUTH 35' 59' 26" V,'EST 60M FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE EASTEFLY HAVING A RADIUS OF 123.00 FEET; THENCE SOUTHERLY 75.15 FEET ALONG SAID CURVE TYPOUGH A CENTRAL :.NGLE OF 35' 00' 20% THENCE SOUTH 1' 59' 06" PEST 78.43 FEET, - THENCE SOUTH 2' 22' 5=- EAST 163.76 FEET; THENCE SOUTH i' 19' 16` EAST 29%},77 FEET; THENCE SOUTH 5 ` 29' 39' EAST 82.39 FEET; THENCE SOUTH I ` P4' 59" EAST 37.74 : EET TO THE BEGINNING OF A TANGENT CURVE CONCAVE EASTERLY HAVING A RADIO-, C= 20.00 FEET; THENCE SOUTHERLY 10.6' FEET ALONG SAID CURVE THROUGH A CENTRALAN: :,E C'F 30' 28' 32" TO THE NORTl-iERLY' LINE OF L.AL-E CENTER DRIVE (FORMERLY JUNIPER .''' =_N• . ; n -DESCRIBED IN THE DEED TO THE CITY OF SANTA ANA RECORDED SEPTEMBER 21, BOCK 10911, PAGE 625 OF OFFICIAL RECORDS IN THE OFFICE OF SAID COUNTY RECORDER OF Oi:ANGE COUNTY; THENCE SOUTH SS' 37' 14' NEST 37.03 FEET ALONG SAID NORTHERLY LINE TO THE EASTERLY LINE OF PARCEL I AS SHOWN ON SAID MAP FILED IN BOOK 38, PAGE 13 OF PARCEL .MAPS; THENCE NORTH 1' -19' 45" WE$T 3S4.I.2 FEET.ALONG SAID EASTERLY LINE AND SAiu F..,STERLY -LINE OFF PARCEL 1 TO A POINT Oti .NON -TANGENT CURVE CONC?? VE WESTERLY HAVING A RADIUS OF 80.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 71' 57' 45" EAST; THENCE NORTHERLY 3.26 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 2' 19' 54"; THENCE NORTH 20' 22' 09" WEST 12.65 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE EASTERLY HAVING A RADIUS OF 150.00 FEET; THENCE NORTHERLY 43.09 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 16' 27' 30'; THENCE NORTH 3' 54' 39" IVEST 142.84 FEET; THENCE NORTH I' 23' 32" «'EST 72.66 FEET TO A POINT ON A NON -TANGENT CURVE CONCH'; E E.' STERLY HAVING A RADIUS OF 172.60 FEET, A RADIAL LIFE TO SAID POINT BE.s.RS SOUTH 89' 04' 46- WEST; THENCE NORTHERLY114.21 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 37' 54' 40"; THENCE NORTH 36'.59' 26" EAST 60.00 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE WESTERLY HAVING A RADIUS OF 125.40 FEET; THENCE NORTHERLY 83.91 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 38' 20' 23"; THENCE NORTH 1' 20' 56" WEST 25.00 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHWESTERLYHAVING A RADIUS OF 29.50 FEET; THENCE NORTHWESTERLY 24.95 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 48' 27' 33" TO THE SOUTHERLY LINE OF SAID MAC ARTHUR BOULEVARD AS DESCRIBED IN THE DEED TO THE CITY" OF SANTA AN'A RECORDED OCTOBER 22, 1962 IN BOOK 6292, PAGE 65 OF OFFICIAL RECORDS IN THE OFFICE OF SAID COUNTY RECORDER OF ORANGE COUNTY; THENCE WORTH 88' 39' 10" EAST 52.12 FEET ALONG SAID SOUTHERLY LINE TO THE POINT OF BEGINNING. EXCEPTING THEP,EFROM ANY PORTION INCLUDED «'ITHIN PARCEL "A' ABOVE. 93-0545721 Cify or Bcnfc Ana EXHIBIT B LOT L I NEE ADUUSTMENT NO. LL — T CrAPI O c S I EXI UT 17t3 PAR-8 PF,u O� Pl1F �6 I A?iIr2.t PX w s � AFLL!r ltJ,7f 4r--17S,7w'e ,t.,l. - f/f-2E2-02 _ I Pi{P.C_L ! Tf Fricc QEIT, i.�.=.• flf-PEA-O/ PfP:tL 2 L EG�ti'D LGT IIhT TO E_ P_YIS=J _XISTfyG LOT L.h'E TO dE,K/10' Pr G'OSEp P (PCE L.044E c 9' cs.urs. ,,,rFEcriN� xc�e.so.e acva. .- f. TO .S_C. EOISON CO. 3. 4S68�i5/, 0,2.- r0 CITYOF S.IN rA ANI. kSM,TS. .tFfEGTING.i-;AC ARTXU!' 6L_V.�, f.-0.77i/SS6, 0. R.- TO COUNTY OF O.CA,NCrG {� 2. 4754�2l2,G I2.- TO CITY Of 1.Ati7-f. 3.-G916�T5, O. P • -• TO 5. C_ E015OIJ Co. 4. 62 S 2/65,Q1t, - 7-0 C/ rY OF SfiNTA /.NA 3. 629��f9S� O.iZ.- TO CITY GF SI.JJi .4 ANh Luau/ yso Aw .!-f Vc c l7.6I•//TJ. •'.'S'10 a _- C2>"2/S5. C..P. G29c/%.+jS�a. e!.� ti r74 ' . 1 ss. c sa. li '7S'c as ss r a'�� � �� L_JS. 25•. r 1 r0r •S9'25 — I: PCL. $ PCL. 2 }— Q 01 {56O/45I, O.F. 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