THIS AGREEMENT is made as of this 3rd day of March, 1983, by and among ALTA BATES HOSPITAL, a non-profit corporation established under the laws of the State of California (herein- after "Hospital"), BATEMAN NEIGHBORHOOD ASSOCIATION, a California non-profit corporation, FAIRVIEW PARK NEIGHBORHOOD ASSOCIATION, an unincorporated association, CLAREMONT-ELMWOOD NEIGHBORHOOD ASSOCIATION, a California non-profit corporation, and WILLARD PARK NEIGHBORHOOD ASSOCIATION, an unincorporated association (hereinafter collectively "Neighborhood Associations").
This Agreement is made by said Neighborhood Associations for the benefit of the owners of parcels of that real property situated in the area of the City of Berkeley and the City of Oakland, described more particularly as "The Benefitted Estate" in Exhibit 1 attached hereto (hereinafter "property owners"). The Agreement may be enforced by the Hospital or, pursuant to the terms of Paragraph 4 , by the Neighborhood Associations or the Property Owners.
WHEREAS, the Hospital has filed applications for an amendment to its use permit and a variance with the City of Berkeley (hereinafter "city") seeking the City's approval of a plan of replacement and development of the Hospital's
main campus, bounded by Ashby Avenue, Regent Street, South Hospital Drive and Colby Street in the City; and
WHEREAS, the Neighborhood Associations, residents of the neighborhoods surrounding the Hospital's main campus and the property Owners have opposed the Hospitals applications on the grounds that they would be adversely affected by the granting of the Hospital's applications, including adverse impacts on their health, quality of life, and the value of their property; and
WHEREAS, the Hospital may, in the future, desire to further expand its proposed new East Building by the addition of one complete floor and three partial floors for patient care purposes; and
WHEREAS; the Neighborhood Associations, the residents of the neighborhoods surrounding the Hospital's main campus, and the property owners wish to avoid any adverse impacts resulting from future Hospital construction, replacement and development; and
WHEREAS, the Hospital, the Neighborhood Associations, residents of the neighborhoods surrounding the Hospital's main campus, and the property owners wish to avoid the cost, inconvenience, and uncertainty resulting from a continued dispute regarding the Hospital's pending applications, wish to avoid future disputes, and wish to agree to specified future Hospital development notwithstanding possible adverse effects therefrom; and
WHEREAS, the Hospital and the Neighborhood Associations have reached several understandings as to the present and future use and development of the Hospital's main campus, adjacent properties owned by it, and the surrounding neighborhoods on the basis of which the Neighborhood Associations are prepared to support the Hospital's application for a variance and amendment to its use permit (except as to that portion of the application pertaining to expansion of neonatal and perinatal services) and to support certain future Hospital construction, replacement and development.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. Each Neighborhood Association agrees:
A. To file, on or before March 3, 1983, written statements with the Board of Adjustments of the City in support of the Hospital's application for a lot coverage variance and amendment to its use permit necessary to permit the Hospital to construct the East Building and Southwest Building, each consisting of a basement plus two above-grade floors, as described in Applications No. U.P. 10679 and Var. 999. Included in such support is to be the statement that the mitigation measures listed on Exhibit No. 2 attached hereto are sufficient in respect to the Hospital's application and that no additional mitigation measures should be imposed.
B. To file, on or before March 3, 1983, a written statement of neutrality regarding the Hospital's application for an amendment to its use permit authorizing
the addition of six intensive care neonatal beds and ten perinatal beds and thereafter not to oppose, before the City, such application. The Neighborhood Associations expressly reserve the right to oppose the granting of a Certificate of Need authorizing the addition of such beds before the office of Statewide Health Planning and Development (OSHPD) and the Alameda-Contra Costa County Health Systems Agency (HSA), and the Hospital expressly agrees that it will not rely upon the Neighborhood Associations' non-opposition to its use permit application for any purpose before OSHPD or HSA.
C. Not to appeal to the City Council from a decision of the Board of Adjustments granting the Hospital's applications on terms consistent with this Agreement and the Declaration of Covenants and Restrictions attached hereto as Exhibit 3 (hereinafter "Declaration"), and in the event of an appeal by a third party (whether or not he or she is a member of one of the Neighborhood Associations) to support the Hospital before the City Council by filing written statements of support and presenting oral testimony, as the Hospital may reasonably request.
D. Not to institute any legal action challenging the Board of Adjustments' or City Council's action in granting the Hospital's applications on terms consistent with this Agreement and the Declaration, and in the event of litigation filed by a third party (whether or not he or she is a member of one of the Neighborhood Associations) to support the City
and the Hospital by filing written declarations or taking such further actions as the Hospital may reasonably request, provided that such further actions are at no cost 0.0 the Associations.
E. In complying with Paragraphs 1A -1D , the Neighborhood Associations may jointly file a written statement or declaration, signed by an authorized representative of each Association, and may present oral testimony to the Board of Adjustments or City Council through a single authorized representative.
F. To provide the Hospital, on or before March 3, 1983, a written statement of support for the subsequent additions of a third floor to the East Building, a below-grade addition on the north portion of the main campus, and three partial floors to the East Building and for the subsequent replacement of buildings on the main campus. Such support shall be conditional upon the Hospital's subsequent applications and the additions or replacements not deviating from the terms of the Declaration . The statement of support shall be directed to the City's Board of Adjustments and City Council, and may be presented by the Hospital, on behalf of the Neighborhood Associations, at the time of the subsequent applications. Such statement shall bind the Neighborhood Associations.
G. Not to oppose, nor encourage others to do so, the Hospital's later applications for approval from the City of a third floor to the East Building, a below-grade
addition on the north portion of the main campus, and three partial floors to the East Building, or the replacement of existing buildings, provided that such applications and additions or replacements do not deviate from the terms of the Declaration.
H. If requested by the Hospital, to support (a) a City Council resolution placing the City on record in support of future applications for a third floor on the East Building, a below-grade addition on the north portion of the main campus, and three partial floors on the East Building and the replacement of existing buildings; and (b) a City hospital or medical Master Plan which provides for such additions and replacements to the Hospital, all provided that neither the provisions of the City Council resolution nor the Master Plan deviate from the terms of the Declaration . In addition, the Neighborhood Associations shall not oppose an ordinance approving an agreement of the type described in Government Code Sections 65864 et sec which obligates the City not to change the zoning requirements applicable to the Colby-Ashby site so as to preclude the Hospital from constructing the additions and replacements described above, provided that neither the ordinance nor the agreement deviate from the terms of the Declaration.
I. Not to recommend to the City that it take any action which would preclude the Hospital from adding to the East Building a third floor and three partial floors or a below-grade addition on the north portion of the main campus or
replacing buildings on the main campus, provided that such additions or replacements and the applications for such additions or replacements do not deviate from the terms of the Declaration .
J. Not to recommend to the City that it take any action which would preclude the Hospital from utilizing property within Area B, as set forth in Exhibit 4 attached hereto, nor to oppose actions by the Hospital in that area which are permitted by the Declaration (prior to 2014), provided that such use does not deviate from the terms of the Declaration .
K. Not to encourage any of its members to take actions individually which are in conflict with the foregoing promises of the Associations.
2. The Hospital agrees:
A. To represent to the Board of Adjustments, and in the event of an appeal or lawsuit, to the City Council. and the court, respectively, that it has no objection to the inclusion of any of the conditions listed in Exhibit 2 or in paragraph 3 of this Agreement, to its use permit and variance and to recommend to the Board, and the City Council and court, that such conditions be included.
B. Subject to any necessary approval from the City, to comply with each of the mitigation measures set forth in Exhibit 2 and to do so within the applicable time limits.
C. To execute and file for recordation the original of the Declaration attached as Exhibit 3 with the office of the Recorder, Alameda County, California, (hereinafter "Recorder") within thirty-five (35) days after the City has filed a proper "Notice of Determination" pursuant to Section 21152 of the Public Resources Code, giving notice of its decision to grant the Hospital's application for an amendment to its use permit and variance necessary to permit the construction of the Southwest and East Buildings, subject to the following provisions of this paragraph.
If the Board of Adjustments imposes any conditions in addition to those included in paragraph 3 or listed as mitigation measures on Exhibit 2 , or materially changes any of those so listed, and the changes or additions are not acceptable to the Hospital or to the Neighborhood Associations, the Hospital and the Neighborhood Associations each agree jointly to appeal the decision of the 'Board of Adjustments, insofar as it imposes fewer, more or different conditions than those agreed upon among the parties hereto which are not acceptable to one or the other party. The parties, in this appeal, will request the City Council to either (1) delete, add or amend the conditions and mitigation measures so that they correspond to those listed herein or (2) remand the entire matter, including the grant of approval of the use permit amendment and variance, to the Board of Adjustments for reconsideration.
in the event that the City Council does not delete, add or amend the conditions and mitigation measures so that they correspond to those listed herein or remand the entire matter to the Board of Adjustments for reconsideration, then the Hospital shall either (1) accept the decision and file for recordation the Declaration with the Recorder within the time set forth above (as measured from the filing of a Notice of Determination reflecting the City Council's decision) or (2) contest in court the legality of the decision adding or materially chancing the conditions and mitigation measures. If the Hospital elects to contest the legality of the conditions and mitigation measures it need not file for recordation the Declaration but shall not commence construction of the Southwest or East Building until the Declaration has first been recorded. The Neighborhood Associations agree to support the Hospital in any such legal proceeding contesting the added or changed conditions or mitigation measures, as set forth in Paragraph 1D of this Agreement.
If litigation brought by any party other than the hospital, challenging the legality of the City's decision to grant the Hospital's application, is pending at the time that this Agreement otherwise would require the Hospital to file for recordation the Declaration , and a court has enjoined the Hospital from proceeding with construction of the Southwest or East Building, then the Hospital shall not be required to file for recordation the Declaration while such injunction is
in force. The Hospital shall file for recordation the Declaration within five days after such injunction is terminated.
As used in this paragraph, "application for an amendment to its use permit and variance necessary to permit the construction of the Southwest and East Building" does not include that portion of the application seeking City approval to add neonatal beds and perinatal beds.
D. To comply with each and every term of the Declaration unless released therefrom pursuant to Section 9 thereof. Each of the covenants and restrictions contained in the Declaration shall also be deemed a part of this Agreement as if set forth in full.
E. To promptly advise each Neighborhood Association, and the City, of the filing of the Declaration and, upon receipt, to promptly provide each Association and the City with a copy of the recorded Declaration.
F. Within 30 days after the execution of this Agreement, to apply to the City requesting that the City effect, or approve, (1) the closure of South Hospital Drive between Colby Street and the proposed delivery entrance to the Hospital, except to emergency vehicles, the removal of the pavement in the closed portion and its replacement with landscaping materials which will support emergency vehicles access, as generally depicted on Exhibit 5 attached hereto, and (2) the closure of Webster Street (between the present Health Testing Center and the Huntmont Building) and Regent Street (immediately
south of its intersection with South Hospital Drive), all as generally depicted in Exhibit 5 attached hereto. The Hospital may make its application and support for such street closures contingent upon receipt of a use permit amendment and variance authorizing construction of the Southwest and East Buildings, on the conditions set forth in paragraph 3 and Exhibit 2 and no others not acceptable to or accepted by the Hospital and the absence of any judicial prohibition against construction of those two buildings. The Hospital shall cooperate with the City and the Neighborhood Associations and make all good faith efforts to obtain these street closures, including agreeing with the City that the Hospital will bear the cost of construction of the street closures and maintain, at its cost, the portions of streets closed by the City in response to the Hospital's application which are not maintained by the City. In the event that litigation is filed challenging City approval of any of these street closures, the Hospital shall seek to intervene in such litigation to support the agreed-to street closures, and cooperate with the City in its defense of said street closures.
G. if requested by the Neighborhood Associations, to support a City Council resolution placing the City on record as approving of said street closures and directing City staff, agencies, boards, and commissions to take all actions necessary to implement and complete the street closures in a timely fashion.
H. To execute and file for recordation an amendment to the Declaration to include a specific description of any real property or interests in real property acquired by the Hospital in the Benefitted Estate after the execution of the Declaration. Such amendment shall be filed for recordation in the office of the Recorder, within 30 days after acquisition of such real property or interest in real property and shall subject such real property or interest in real property to the Declaration. Any real property or interest in real property owned by the Hospital as of the date of execution of the Declaration in the Benefitted Estate shall be subject to the terms of the Declaration, regardless of whether such real property or interest in real property is described in the Declaration. Upon request of a person owning real property within the Benefitted Estate, the Hospital shall execute and file for recordation an amendment to the Declaration to include a specific description of such real property or interest in real property, with the office of the Recorder within thirty days after receipt of such request.
I. To establish a Landscaping and Mitigation Committee (hereinafter "Committee") as an advisory committee to the Hospital. The Committee will consist of six (6) members, three (3) representing the Hospital who will be appointed by the Hospital and three (3) representing the Neighborhoods who will be appointed by the Neighborhood Associations. The Committee will be expected to monitor landscaping decisions on
areas to be landscaped by the Hospital pursuant to the mitigation measures attached, or by the City in the case of street closures, as well as to review the implementation of other mitigation measures designed to minimize construction-related impacts. The Hospital will comply with recommendations from the Committee unless the Hospital, in good faith, determines such recommendations to be unreasonable.
J. In the event the Hospital purchases the property immediately south of South Hospital Drive which is now improved with a boarding house (3028 Regent Street) and if it seeks and obtains approval from the City to relocate the existing building or otherwise provide replacement housing so that the building can be removed (or if it is otherwise removed), the resulting space will be developed by the Hospital as landscaped open space for reasonable use by residents of the surrounding area. No buildings or structures will thereafter be constructed on this site.
K. To make all reasonable and good faith efforts to obtain any City permit or approval as may be necessary to carry out the terms of this Agreement and the Declaration .
L. To include a clause in each of its construction contracts relating to the construction of the Southwest Building or the East Building requiring all contractors to fully observe any and all applicable mitigation measures, and
to designate a member of its staff who will have the responsibility to ensure that the Hospital's contractors comply with applicable mitigation measures and to respond to neighborhood communications regarding compliance with mitigation measures.
M. To provide such information, documentation, and inspection as may reasonably be requested by an architect designated by the Neighborhood Associations as to enable him or her to advise the Neighborhood Associations or the City whether or not the Southwest Building is being constructed with a foundation incapable of supporting more than two above-grade floors.
N. Not to support a City master Plan or City Council resolution which, deviates from the terms of this Agreement and the Declaration .
O. To maintain (including lighting, watering, cleaning, planting and mowing) the property owned by the Hospital which is to be converted to open space pursuant to the attached Declaration .
3. The Hospital and Neighborhood Associations shall jointly request that the Board of Adjustments and/or City Council condition its approval of the Hospital's application only upon the Hospital's filing for recordation of its Declaration and subsequent amendments to its Declaration, as set forth in Paragraphs 2C and 2H of this Agreement and compliance with the mitigation measures listed on Exhibit 2 and
the terms of the Declaration , unless released therefrom pursuant to Section 9 thereof. In no event shall the Hospital begin construction of the Southwest Building or East Building until such Declaration is filed with the office of the Recorder.
4. (A) Paragraph 2B of this Agreement may be enforced by the Neighborhood Associations and by one or more property owners provided, however, that the Association or property owner has given written notice to the Hospital and to the City specifying the particular measure which the Hospital has not complied with and requesting that the City take action to enforce compliance and thereafter thirty days have elapsed during which time the Hospital has failed to comply and the City has failed to initiate enforcement actions seeking compliance.
(B) All other terms of this Agreement may be enforced as set forth in Paragraph 10 of the Declaration .
5. Nothing in this Agreement or in the attached Declaration shall be construed to prevent any Neighborhood Association from opposing (a) a Hospital project to be located outside the boundaries of the Benefitted Estate as described in Exhibit 1 ; or (b) subsequent to January 1, 2014 the Hospital's construction of any building or structure or the conversion or use of any building or structure in Area B as set forth in Exhibit 4; or (c) subsequent to January 1, 2082, the Hospital's construction of any building or structure or the conversion or
use of any building or structure in Area A as set forth in Exhibit 4.
6. All notices under this Agreement shall be given in writing, first class postage prepaid. Notice shall be considered given when mailed. Notices shall be addressed as appears below for the respective party, provided that if any party gives notice of a change of name or address, notices shall thereafter be given as set forth in that notice.
If to Hospital: Alta Bates Hospital 3001 Colby Street at Ashby Berkeley, CA 94705 Attention: Executive Vice president If to Bateman Bateman Neighborhood Association Neighborhood 2602 Webster Street Association Berkeley, CA If to Fairview Park Fairview Park Neighborhood Neighborhood Association Association 6432 Hillegass Avenue Oakland, CA 94618 If to Claremont- Claremont-Elmwood Neighborhood Elmwood Neighborhood Association Association 220 Tunnel Road Berkeley, CA If to Willard Park Willard Park Neighborhood Neighborhood Association Association 2832 College Avenue Berkeley, CA
7. This Agreement may be amended only in writing, signed by the Hospital and each of the Neighborhood Associations or by their successors.
8. This Agreement shall benefit, and be binding on, the parties hereto and their successors.
9. Both parties agree to cooperate in good faith to achieve the purposes of this Agreement.
10. This Agreement may be executed in one or more counterpart originals and each such counterpart shall constitute one and the same document.
11. To the extent that this Agreement and the Declaration (1) restrict the Hospital's use of real property and interests in real property on the Colby-Ashby, Regent Street, South Hospital Drive and Hospital Parking Sites and in Areas A and B (all as defined in the Declaration) and (2) obligate the Hospital to file the Declaration restricting the use of such property or property interests (whether presently owned or hereafter acquired), the Hospital's parent corporation, Alta Bates Corporation, and its affiliated corporations named below, agree to, and are bound by, the obligations, restrictions and covenants imposed on the Hospital by the Agreement and the Declaration.
In addition, Alta Bates Corporation agrees not to cause or allow any other corporation which it controls to take any action which Alta Bates Corporation or Alta Bates Hospital is prohibited from taking by this Agreement or the Declaration and to take those steps within its power in connection with any partnership, joint venture or similar entity in which it is a
participant to Prevent such entities from taking any action which Alta Bates corporation or Alta Bates Hospital is prohibited from taking by this Agreement or the Declaration,
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement by their respective duly authorized representatives as of the day and year first above written.
ALTA BATES HOSPITAL BATEMAN NEIGHBORHOOD ASSOCIATION
By (signed) President, Board of Trustees By (signed) President ALTA BATES CORPORATION By (signed) FAIRVIEW PARK NEIGHBORHOOD ASSOCIATION By (signed) President ALTA BATES FOUNDATION By (signed) CLAREMONT-ELMWOOD NEIGHBORHOOD ASSOCIATION By (signed) President GUARDIAN FOUNDATION By (signed) WILLARD PARK NEIGHBORHOOD ASSOCIATION By (signed) President
The following individuals, while not parties to this Agreement, are members of the Neighborhood Associations that are signatories, and wish to associate themselves with the letter and spirit of this resolution of long-standing disputes between Alta Bates Hospital and its neighbors.
Last update: May 12, 1997.