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5808ORDINANCE NO. 5808 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ANAHEIM (i) APPROVING FIRST AMENDED AND RESTATED DEVELOPMENT AGREEMENT NO. 99- 01 BY AND BETWEEN THE CITY OF ANAHEIM AND EXCEL POINTE ANAHEIM, LLC, (ii) MAKING CERTAIN FINDINGS RELATED THERETO, AND (iii) AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT FOR AND ON BEHALF OF THE CITY. WHEREAS, Article 2.5 of Chapte- 4 of Division 1 of Title 7 of the Government Code of the St..te of Cali-ornia (hereinafter "Statute") authorizes a city to enter into a contract which is called a development agreement in order to establish with certainty what regulations will govern the construction of a development; and WHEREAS, the City of Anaheim, as a charter city, has heretofore enacted Ordinance No. 4377 (hereinafter "Enabling Ordinance") making the City subject to the Statute; and WHEREAS, pursuant to Section 65865 of the Statute, the City heretofore enacted Resolution No. 82R-565 (hereinafter "Procedures Resolution") establishing procedures and requirements for the consideration of development agreements upon receipt of an application; and WHEREAS, pursuant to Section 65864, et seq. of the Statute, the City of Anaheim and Pointe Anaheim, LLC heretofore entered into that certain Development Agreement No. 99-01 dated as of July 29, 1999 (hereinafter the "Development Agreement") to vest certain project entitlements and further address the implementation of the Excel Pointe Anaheim project; and WHEREAS, the Development Agreement addresses development of an irregularly-shaped area within the Anaheim Resort area totaling approximately 29.1 acres with frontages on the east side of Harbor Boulevard, the south side of Disney Way, the west side of Clementine Street and the north side of Katella Avenue; and WHEREAS, pursuant to the procedures set forth in Chapter 18.93 of the Anaheim Municipal Code, the City Council for the City of Anaheim heretofore adopted Ordinance No. 5377 amending the zoning map to reclassify certain real property described therein into The Disneyland Resort Specific Plan No. 92-1 Zone subject to certain conditions as specified therein, and Ordinance No. 5378 relating to establishment of Zoning and Development Standards for Specific Plan No. 92-1 by the addition of Chapter 18.78 to said Code, as said Ordinances have been amended from time to time; and WHEREAS, pursuant to Chapters 18.03 and 18.93 of the Anaheim Municipal Code, Robert H. Shelton, Anaheim Center for Entertainment, LLC, as authorized agent for Excel Pointe Anaheim, LLC, successor in interest to Anaheim Center for Entertainment, LLC, submitted a request dated March 12, 2001, that the Planning Commission initiate General Plan Amendment No. 2001-00393, Amendment No. 5 to The Disneyland Resort Specific Plan No. 92-1, Amendment to Conditional Use Permit No. 4078 and other related actions pertaining to the Excel Pointe Anaheim project, as proposed to be modified, including development in up to five phases, on property within the Specific Plan not owned by Excel Pointe Anaheim, LLC; and WHEREAS, on April 9, 2001, the Planning Commission, by its Resolution No. PC2001-41, duly initiated General Plan Amendment No. 2001-00393, Amendment No. 5 to The Disneyland Resort Specific Plan No. 92-1, Amendment to Conditional Use Permit No. 4078 and other related actions; and WHEREAS, pursuant to Chapters 18.03 and 18.93 of the Anaheim Municipal Code, Robert H. Shelton, Anaheim Center for Entertainment, LLC, as authorized agent for Excel Pointe Anaheim, LLC, submitted requests on October 29, 2001 for General Plan Amendment No. 2001-00393, Amendment No. 5 to The Disneyland Resort Specific Plan No. 92-1 (including amendments to the Land Use Plan, Design Plan, Zoning and Development Standards and Conditions of Approval), Amendment to Conditional Use Permit No. 4078 with waiver of Code requirements, a request for the City of Anaheim to enter into the First Amended and Restated Development Agreement No. 99-01 with Excel Pointe Anaheim, LLC, and Amendment No. 3 to The Anaheim Resort Public Realm Landscape Program (collectively, hereinafter the "Proposed Project Actions"), which Proposed Project Actions address the Excel Pointe Anaheim project as proposed to be modified, including development in up to five phases over time; and WHEREAS, the Excel Pointe Anaheim project addressed in the First Amended and Restated Development Agreement No. 99- 01, a copy of which is attached hereto as Attachment No. 1 and incorporated herein, encompasses an irregularly-shaped area within the Anaheim Resort area and The Disneyland Resort Specific Plan No. 92-1 Area, consisting of several parcels totaling approximately 29.1 acres with frontages of E approximately 585 feet on the east side of Harbor Boulevard, 1,500 feet on the south side of Disney Way, 1,185 feet on the west side of Clementine Street and 728 feet on the north side of Katella Avenue, all of which area is more particularly described in the "Legal Descriptions" which are attached hereto as Attachment No. 2 and incorporated herein; and WHEREAS, the City Planning Commission did hold a public hearing at the Anaheim Civic Center, Council Chambers, 200 South Anaheim Boulevard, in the City of Anaheim on November 19, 2001, at 1:30 p.m., notice of said public hearing having been duly given as required by law and in accordance with the provisions of the Anaheim Municipal Code, Chapter 18.03, to hear and consider evidence for and against the Proposed Project Actions and to investigate and make findings and recommendations in connection therewith; and WHEREAS, said Planning Commission, by its Resolution No. PC2001-159, as supplemented by its Resolution No. PC2002- 22, has found and determined that the Addendum to the Pointe Anaheim Initial Study and Mitigated Negative Declaration and the Modified Mitigated Monitoring Plan No. 004 were prepared in compliance with the requirements of the California Environmental Quality Act ("CEQA") and the State and City of Anaheim CEQA Guidelines; that as demonstrated by the analysis included in said addendum for all environmental issues, the Proposed Project Actions will not result in new significant impacts or substantial increases in the severity of previously identified significant impacts and no supplemental or subsequent environmental review is required; that said addendum and the Modified Mitigation Monitoring Plan No. 004, as corrected at the Commission meeting, are adequate to serve as the required environmental documentation for the Proposed Project Actions; and by its Resolution No. PC 2001-160, said Commission made certain findings and recommended that the City Council adopt General Plan Amendment No. 2001-00393; and WHEREAS, the Planning Commission, by its Resolution No. PC2001-164, which is incorporated herein by this reference, made certain findings that the applicant has demonstrated eligibility to enter into the First Amended and Restated Development Agreement No. 99-01 and that the First Amended and Restated Agreement No. 99-1 meets the criteria set forth in the Procedures Resolution No. 82R-565; and WHEREAS, upon receipt of Resolution No. PC2001-159, as supplemented by Resolution No. PC2002-22, Resolution No. PC2001-164 and the Planning Commission's request for review of 3 its actions, summary of evidence, reports of findings and recommendations of the City Planning Commission, the City Council did fix the 11th day of December, 2001, as the time, and the City Council Chamber in the Civic Center as the place for a public hearing on the Proposed Project Actions and did give notice thereof in the manner and as provided by law, and thereafter duly continued the public hearing to January 8, February 12 and February 26, 2002; and WHEREAS, a copy of the First Amended and Restated Development Agreement No. 99-01 has been provided to the City Council and is available in the City Clerk's Office; and WHEREAS, on February 26, 2002, the City Council did hold a public hearing upon the Proposed Project Actions, notice of which hearing was given in the manner required by law; and WHEREAS, the City Council did hold and conduct said noticed public hearing on February 26, 2002 and did give all persons interested therein an opportunity to be heard and did receive evidence and reports to consider the Addendum to the Pointe Anaheim Mitigated Negative Declaration and Modified Mitigation Monitoring Plan No. 004 and the Proposed Project Actions; and WHEREAS, pursuant to the provisions of CEQA, on February 26, 2002, the City Council, by its Resolution No. 2002R-53, and based upon the recitals and findings therein, determined (i) that the Addendum to the Pointe Anaheim Modified Mitigated Negative Declaration and Modified Mitigation Monitoring Plan No. 004 were prepared in compliance with the requirements of the California Environmental Quality Act and the State and City of Anaheim CEQA Guidelines; (ii) that as demonstrated by the analysis included in the Addendum for all environmental issues, the Proposed Project Actions will not result in new significant impacts or substantial increases in the severity of previously identified significant impacts and no supplemental or subsequent environmental review is required; and (iii) that the Addendum to the Mitigated Negative Declaration including the Modified Mitigation Monitoring Plan No. 004 are adequate to serve as the required environmental documentation for the Proposed Project Actions; and WHEREAS, the applicant has demonstrated that it meets the eligibility requirements of Section 1.3 of the Procedures Resolution to enter into the First Amended and Restated Development Agreement No. 99-01 by showing that, upon 4 completion, the Pointe Anaheim Project will result in the construction of up to 634,700 gross square feet of retail/dining/entertainment uses, which includes a 94,000 square foot aquarium; up to four hotels comprising a maximum of 1,662 hotel rooms/suites (of which up to 200 units may be Vacation Ownership Resort units) with approximately 322,071 gross square feet of related accessory uses of which up to 178,120 gross square feet on top of the parking structure may be used for a hotel conference center (the hotel rooms/suites and accessory uses would encompass a maximum of 1,370,711 gross square feet); and a 1,949,800 gross square foot parking structure with up to 4,800 striped parking spaces and 15 bus spaces at ultimate build out of the project with a 10,200 square foot bus terminal/facility for airport transport and to/from sightseeing venues; and that the proposed development of Pointe Anaheim would take place in up to five phases over a period of time; and WHEREAS, the City Council of the City of Anaheim, after due inspection, investigation and study made by itself and in its behalf, and after due consideration of and based upon all evidence and reports offered at said hearing, including the evidence presented at the Planning Commission meeting and Planning Commission Resolution No. PC2001-164, does find upon review of the land use aspects of the First Amended and Restated Development Agreement No. 99-01 that: 1. The First Amended and Restated Development Agreement No. 99-01 is consistent with the General Plan of the City of Anaheim, as amended by General Plan Amendment No. 2001-00393 and The Disneyland Resort Specific Plan No. 92-1, as amended by Amendment No. 5. 2. The First Amended and Restated Development Agreement No. 99-01 is compatible with the uses authorized in and the regulations prescribed for The Disneyland Resort Specific Plan No. 92-1, as amended by Amendment No. 5. 3. The First Amended and Restated Development Agreement No. 99-01 is compatible with the orderly development of property in the Anaheim Resort area surrounding The Disneyland Resort Specific Plan No. 92-1. 4. The First Amended and Restated Development Agreement No. 99-01 is not otherwise detrimental to the 5 health, safety and general welfare of the citizens of Anaheim. 5. The First Amended and Restated Development Agreement No. 99-01 will have an overall positive effect on the health, safety and welfare of the residents of and visitors to the City. 6. The First Amended and Restated Development Agreement No. 99-01 constitutes a lawful, present exercise of the City's police power and authority ander the Statute, the Enabling Ordinance and the Procedures Resolution. 7. The First Amended and Restated Development Agreement No. 99-01 is entered into pursuant to and in compliance with its charter powers and the requirements of Section 65867 of the Statute, the Enabling Ordinance and the Procedures Resolution. NOW THEREFORE, BE IT RESOLVED by the City Council of the City of Anaheim as follows: SECTION 1 That First Amended and Restated Development Agreement No. 99-01 be, and the same is hereby, approved. SECTION 2 That the Mayor be, and is hereby, authorized to execute said First Amended and Restated Development Agreement No. 99-1 for and on behalf of the City. THE FOREGOING Ordinance is approved and adopted by the City Council of the City of Anaheim this 19th day of March, 2002. _ MAYOR OF THE CITY OF d1NAHEIM ATTEST: Aj I A , /,0' -At 1, ITY CL RK 6F THE CITY OF ANAHEIM 43607.2\SMANN WHEN RECORDED RETURN TO: City Council City of Anaheim c/o City Clerk 200 S. Anaheim Blvd. Anaheim, CA (SPACE ABOVE FOR RECORDER'S USE) FIRST AMENDED AND RESTATED DEVELOPMENT AGREEMENT NO. BETWEEN THE CITY OF ANAHEIM . a I EXCEL POINTE ANAHEIM, LLC 209905_13.DOC TABLE OF CONTENTS Page 1. DEFINITIONS.....................................................................................................................3 2. PROPERTY, PURPOSE AND INTENT............................................................................9 2.1 Property Description................................................................................................9 2.2 City Objectives.......................................................................................................10 2.3 Developer Objectives.............................................................................................10 2.4 Representation of Fee Simple or Equitable Ownership.........................................10 2.5 Mutual Objectives..................................................................................................10 3. AGREEMENT AND ASSURANCES..............................................................................10 3.1 Agreement and Assurance on the Part of Developer.............................................10 3.1.1 Development Assurances.........................................................................10 3.1.2 Effect of Delayed Performance................................................................11 3.1.3 Landscaping and Lighting District...........................................................11 3.2 Agreement and Assurances on the Part of the City...............................................12 3.2.1 Entitlement to Development.....................................................................12 3.2.2 Changes in Applicable Rules....................................................................12 3.2.2.1 Non -Application of Changes in Applicable Rules ........................ 12 3.2.2.2 Changes in Uniform Code............................................................ 12 3.2.2.3 Changes Mandated by Federal or State Law ................................ 12 3.2.2.4 Special Taxes and Assessments.................................................... 12 3.2.3 Agreed Changes and Other Reserved Powers..........................................12 3.2.4 Subsequent Development.........................................................................12 3.2.5 Effective Development Standards............................................................12 3.2.6 Timing, Sequencing and Phasing of Development..................................13 3.2.7 Impact Fees; Credit for Developer Installed Facilities .............................13 3.2.8 Right(s)-of-Way.......................................................................................13 3.3 Processing Fees, Extraordinary Processing Consultant, Charges and EnvironmentalReview..........................................................................................13 3.3.1 Processing Fees and Charges....................................................................13 3.3.2 Extraordinary Processing Consultant.......................................................13 3.3.3 Environmental Review.............................................................................13 4. DEVELOPMENT PLAN...................................................................................................13 4.1 Right to Develop Property .....................................................................................13 4.2 Phased Development..............................................................................................14 5. ANNUAL REVIEW; REIMBURSEMENT; DEFAULT; TERMINATION, AMENDMENT OR MODIFICATION; MANDAMUS; SPECIFIC PERFORMANCE .14 5.1 Annual Review.......................................................................................................14 5.2 Reimbursement of Costs.................................................................:......................14 5.3 Default by Developer.............................................................................................14 5.3.1 Default......................................................................................................14 5.3.2 Notice of Default......................................................................................14 5.3.3 Termination for Failure to Cure Default..................................................14 5.3.4 Specific Performance................................................................................15 209905_13.DOC TABLE OF CONTENTS (cont'd) Page 5.4 Default by City.......................................................................................................15 5.4.1 Notice of Default......................................................................................15 5.4.2 Specific Performance and Mandamus......................................................15 6. PUBLIC BENEFITS..........................................................................................................16 6.1 Assemblage of Properties......................................................................................16 6.2 Net Increase in Transient Occupancy Tax.............................................................16 6.3 Increase in Retail Sales Taxes................................................................................16 6.4 Increase in Property Taxes.....................................................................................16 6.5 Resort Area Traffic Improvements........................................................................16 6.6 Police Substation....................................................................................................16 7. GENERAL PROVISIONS................................................................................................16 7.1 Date Agreement Becomes Effective......................................................................16 7.2 Term.......................................................................................................................16 7.2.1 Basic Term................................................................................................16 7.2.2 Early Termination of Agreement..............................................................16 7.3 Force Majeure; Extension of Time of Performance..............................................17 7.4 Applicable Law......................................................................................................17 7.5 Amendments..........................................................................................................17 7.6 Assignment............................................................................................................17 7.7 Mortgage Rights.....................................................................................................18 7.7.1 Encumbrances on the Excel Pointe Anaheim Property and thisAgreement..........................................................................................18 7.7.2 Mortgagee Protection...............................................................................18 7.7.3 Mortgagee Not Obligated.........................................................................18 7.7.4 Notice of Default to Mortgagee; Right of Mortgagee to Cure .................18 7.7.5 Bankruptcy...............................................................................................19 7.7.6 Termination Subject to Mortgagee Rights...............................................19 7.7.7 No Cancellation........................................................................................19 7.7.8 New Agreement Upon Default by Developer..........................................19 7.7.9 Separate Agreement..................................................................................20 7.7.10 Material Notices.......................................................................................20 7.7.11 Mortgagee Right to Assign.......................................................................20 7.7.12 Conflicts with Disposition and Development Agreement ........................20 7.8 Covenants...............................................................................................................20 7.9 Implementation......................................................................................................21 7.10 Relationship of the Parties.....................................................................................21 7.11 Cooperation in the Event of Third Party Litigation...............................................21 7.12 Notices...................................................................................................................21 7.13 Recordation............................................................................................................22 7.14 Developer Hold Harmless......................................................................................22 7.15 Insurance................................................................................................................22 7.16 Successors and Assigns..........................................................................................23 7.17 Severability............................................................................................................23 7.18 Time of the Essence...............................................................................................23 7.19 Waiver....................................................................................................................23 209905 13.DOC - ii - TABLE OF CONTENTS (cont'd) Page 7.20 No Third Party Beneficiaries.................................................................................23 7.21 Expedited Processing.............................................................................................23 7.22 Requests for Payment............................................................................................23 7.23 Entire Agreement...................................................................................................23 7.24 Conflict of Laws....................................................................................................23 7.25 Legal Advice; Neutral Interpretation; Headings and Table of Contents ...............24 7.26 Counterparts...........................................................................................................24 209905 13.DOC -iii- FIRST AMENDED AND RESTATED DEVELOPMENT AGREEMENT NO. BY AND BETWEEN THE CITY OF ANAHEIM AND EXCEL POINTE ANAHEIM, LLC This First Amended and Restated Development Agreement No. ("Agreement") is made and entered into as of this 26t` day of February 2002, by and between the City of Anaheim, a charter city and a municipal corporation duly organized and existing under the Constitution and the laws of the State of California ("City"), and Excel Pointe Anaheim LLC, a Delaware limited liability company ("Developer"), whose managing member is Excel Legacy Corporation, a Delaware corporation ("Excel") pursuant to the authority set forth in section 65867 of the California Government Code, and the general authority set forth in section 65864 et seq. of the Government Code (the "Development Agreement Act"), the City's inherent power as a charter city, section 18.04.120 of the Anaheim Municipal Code (the "Enabling Ordinance"), and the Development Agreement Act implementing procedures adopted by the City in Resolution No. 82R-565 (the "Procedures Resolution"). This Agreement constitutes an amendment to and supersedes in its entirety Development Agreement No. 99-01 by and between the City of Anaheim and Pointe Anaheim, LLC, dated as of July 29, 1999 ("Development Agreement No. 99-01") The definitions contained in Section 1 shall apply to the recitals contained herein. RECITALS WHEREAS, Developer has proposed development of the Project in five (5) Phases on the Excel Pointe Anaheim Property as shown in the Site Map attached to the DDA as Exhibit A, which Site Map is incorporated herein by this reference. WHEREAS, the City and Developer recognize that development of the Project will create significant opportunities for economic growth in the City and the region; and WHEREAS, the Project will provide new Hotel Rooms and Retail, Dining and Entertainment Uses in The Disneyland Resort Specific Plan geographic area which will provide new General Fund revenues intended to offset incremental City costs associated with such uses; and WHEREAS, the Project will provide development fees and a financing vehicle for improvements to the public infrastructure which will provide area -wide benefits for The Disneyland Resort Specific Plan, Anaheim Resort Specific Plan and Hotel Circle Specific Plan -1- 209905x12 geographic areas as well as provide City infrastructure, parking and other public facilities needed to support the Project; and WHEREAS, Developer, in consideration of the benefits and opportunities provided to Developer by the Existing Approvals and the cooperation and assistance of the City in connection therewith, -will provide assurances to the City that the public infrastructure, amenities and design features of the Project are implemented in a timely manner as set forth in the Existing Approvals and Mitigation Measures; and WHEREAS, in order to provide certainty and render development of the Project more feasible in light of the large capital investment and time necessary to coordinate and implement the Project, Developer requires assurance from the City that the governmental entitlements to use contained in the Existing Approvals shall, to the extent specified herein, not be amended or supplemented with fees, burdens and exactions not otherwise permitted by this Agreement; and WHEREAS, Developer also recognizes and agrees that in extending these benefits to Developer, the City must retain the Reserved Powers; and WHEREAS, the direct and indirect benefits the City expects to receive pursuant to this Agreement for its existing and future residents include, but are not limited to, participation of Developer in the funding and dedication to the City and other public agencies of certain public improvements and facilities to mitigate the impacts of the Project and to assure completion of improvements required in the Existing Approvals; and WHEREAS, the City has evaluated previously certified EIR No. 311 and the Addendum thereto approved by the City on October 8, 1996, which environmental documents formed the basis for "tiering" as provided for in CEQA, and has required of Developer additional technical studies to assess potential impacts of the Project, which studies concluded that the Project will not result in any significant environmental impacts after implementation of the Mitigation Measures; and WHEREAS, on June 22, 1999, the City Council, following a noticed public hearing, approved Mitigated Negative Declaration/Mitigation Monitoring Plan No. 4 (Resolution No. 99R-133); WHEREAS, on July 13, 1999, the City Council, following a noticed public hearing, approved General Plan Amendment No. 359 (Resolution No. 99-R-134); Amendment No. 4 to the Disneyland Resort Specific Plan No. 92-1 (Ordinance No. 5689); Conditional Use Permit No. 4078 (Resolution No. 99R-136); Amendment to the Anaheim Resort Public Realm Landscape Program (Resolution No. 99R-137); and Development Agreement No. 99-01 (Ordinance No. 5690); and WHEREAS, Developer has proposed to amend the Existing Approvals to reflect the revised land uses listed in Table 3 of the Addendum, which uses will be constructed in up to five (5) Phases on those portions of the Excel Pointe Anaheim Property designated as Areas A through E, depicted on the "Phasing Diagram" included as Exhibit 7 of the Addendum; and -2- 209905x12 WHEREAS, City and Developer desire to enter into this Agreement in order to assure development of the Excel Pointe Anaheim Property in accordance with the Existing Approvals and provide for vesting of same for the Term of the Agreement, to assure the City of installation of the public infrastructure, including public parking facilities, amenities and design features of the Project in accordance with the Phasing set forth herein and described in the Existing Approvals; and WHEREAS, on November 19, 2001 and February 11, 2002, the City Planning Commission, the advisory agency for purposes of review of development agreements pursuant to the requirements of Government Code section 65867, held duly noticed public hearings regarding this Agreement and environmental documentation related thereto, and at the conclusion of such hearings, and after consideration of evidence and testimony submitted by City staff, the Developer and all interested parties, adopted Resolutions recommending that the City Council approve the Agreement; and WHEREAS, the City hereby finds that this Agreement and the Existing Approvals are consistent with the City's General Plan and Disneyland Resort Specific Plan as amended, and that the Revised Addendum to the Pointe Anaheim Mitigated Negative Declaration satisfies all requirements of the California Environmental Quality Act and the State CEQA Guidelines with respect to this Agreement and the Project; and WHEREAS, on February 26, 2002, the City Council held a duly noticed public hearing regarding this Agreement and, at the conclusion of the hearing, and after considering the recommendation of the Planning Commission, the evidence and testimony submitted by City staff, the Developer and all other interested parties, adopted Ordinance No. approving this Agreement; and WHEREAS, for the foregoing reasons, the Parties desire to enter into this Agreement. NOW, THEREFORE, in consideration of the promises and mutual promises and covenants herein contained and other valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties hereto agree as follows: DEFINITIONS. 1.1 "Addendum" means the Addendum to the Pointe Anaheim Initial Study and Mitigated Negative Declaration dated October 29, 2001, as revised February 21, 2002. 1.2. "Affiliate of Developer" or "Affiliate" means a sole proprietorship, limited liability company, partnership, limited partnership, joint venture, trust, unincorporated organization, association, corporation, institution, or any other entity owned and controlled by the Developer or Excel. 1.3. "AMC" means the Anaheim Municipal Code. 1.4. "Anaheim Resort" means the area of approximately 1,051 acres in the City which is designated in the General Plan for Commercial Recreation land uses. The Anaheim Resort -3- 209905v12 encompasses The Disneyland Resort Specific Plan No. 92-1, the Anaheim Resort Specific Plan No. 92-2, and Hotel Circle Specific Plan No. 93-1 geographic areas. 1.5. "Anaheim Resort Specific Plan" means the Anaheim Resort Specific Plan No. 92- 2, as amended from time to time by the City. 1.6. "Annual Review" means the annual review process as described in Section 5 of this Agreement. 1.7. "Applicable Rules" means (subject only to the qualifications set forth herein with respect to Fees and excluding the Reserved Powers) the rules, regulations, ordinances and officially adopted plans and policies of the City in force as of the Effective Date, including without limitation, General Plan Amendment Nos. 359 and 393, The Disneyland Resort Specific Plan and the remainder of the Existing Approvals. Notwithstanding this Section 1.6 or any other provision of this Agreement (i) all duly adopted codes, regulations, specifications and standards regarding the design and construction of public works facilities, if any, shall be those that are in effect at the time the plans for such public works facilities are being processed for approval and/or under construction, and (ii) except as expressly set forth in this Agreement with respect to Impact Fees and Processing Fees and Charges applicable to the Project, Applicable Rules shall mean and include only those Fees in effect as of the Effective Date. 1.8. "Approved Plans" means the preliminary conceptual design and configuration of the Project, including elevations and renderings approved by the City Council on February 26, 2002 and contained in Exhibit Nos. 1-9 of Conditional Use Permit No. 4078, as amended. Where such plans conflict with referenced design documents required by the Disposition and Development Agreement ("DDA"), the DDA shall control. 1.9. "Area D/E Litigation means that certain lawsuit styled as Excel Pointe Anaheim LLC and EPA Properties, LLC v. Pyrovest Corporation, et al., Orange County Superior Court Case No. 01 CC 13039. 1.10. "CEQA" means the California Environmental Quality Act (Cal. Public Resources Code sections 21000 et seq.), the State CEQA Guidelines (Cal. Code of Regs., Title 14, section 15000 et seq.) and City CEQA Guidelines. 1.11. "City Agency" means each and every agency, department, board, commission, authority, employee, and/or official acting under the authority of the City, including without limitation, the City Council and the Planning Commission. 1.12. "City Attorney" means the City Attorney of the City. 1.13. "City Council" means the City Council of the City. 1.14. "City Manager" means the City Manager of the City. 1.15. "Commencement of Construction" means the date upon which construction is commenced pursuant to the first building permit issued for any Hotel Rooms or Retail, Dining -4- 2o99o5v12 and Entertainment Uses, excluding (i) building permits for the Parking Facility, (ii) permits (whether building, right-of-way, public works or other permits) for work not within the boundaries of the Excel Pointe Anaheim Property, and (iii) demolition permits and grading permits for any of the Excel Pointe Anaheim Property. Commencement of Construction shall not be deemed to have occurred unless such construction is diligently completed within the applicable Construction Period. 1.16. "Commencement of Construction of Third Gate" means the date upon which the Walt Disney Company commences construction on a project that is publicly described as being the "initial phase of the Third Theme Park" on all or some portion of the approximately 77.6 acres located south of Katella Avenue and east of Harbor Boulevard and with a guest entrance and admissions gate for vehicular and pedestrian access, on the south side of the intersection of Katella and Clementine Street that is comparable to the entrance to Disneyland and Disney California Adventure at Harbor and Disney Way. 1.17. "Conditions of Approval" means those conditions of approval for the Project adopted in connection with the granting of the Existing Approvals, incorporated herein by this reference. 1.18. "Construction Period" means the time period during which each Phase of the Project is constructed pursuant to the Construction Schedule. 1.19. "Construction Schedule" means that construction schedule for each Phase of the Project as established in the Existing Approvals. 1.20. "Counsel" means the counsel retained by Developer to represent Developer and to assist the City in connection with any Litigation. 1.21. "DDA" means that certain Disposition and Development Agreement dated as of January 1, 2002, by and between the City and Developer related to the disposition of City property, and the financing, development and operation of the Project. 1.22. "Discretionary Action" means an action which requires the exercise of judgment, deliberation or a decision on the part of the City and/or any City Agency in the process of approving or disapproving a particular activity, as distinguished from an activity which merely requires the City and/or any City Agency to determine whether there has been compliance with statutes, ordinances or regulations. Discretionary Actions shall not include any Ministerial Permits and Approvals. 1.23. "Development Plan" means the land use entitlements described in the Existing Approvals. 1.24. "Effective Date" means the date on which the City executes this Agreement. 1.25. "Excel Pointe Anaheim Property" means that real property owned in fee, equitably owned, under Lease or option by Developer, or an Affiliate of Developer, within the geographic area encompassed by the Pointe Anaheim Overlay together with any additional -5- 2o99osv12 property acquired in fee or by Lease by Developer within the Pointe Anaheim Overlay geographic area following the Effective Date and annexed to the Excel Pointe Anaheim Property in accordance with the provisions of Section 2.1. 1.26. "Existing Approvals" means those approvals adopted by the City Council on June 22, 1999, July 13, 1999, and February 26, 2002 including General Plan Amendment No. 359 and No. 393, Amendment No. 4 and Amendment No. 5 to The Disneyland Resort Specific Plan, Amendments Nos. 2 and 3 to the Anaheim Resort Public Realm Landscape Program, the Amendment to Conditional Use Permit No. 4078, and the Mitigation Measures and the Conditions of Approval attached thereto. 1.27. "Extraordinary Processing Consultant" means a consultant selected by the City to coordinate and expedite processing of applications for all or any Ministerial Permits and Approvals and all or any Discretionary Actions applicable to the Project at the expense of Developer. 1.28. "Fees" means any fees or charges imposed or collected by the City as of the Effective Date other than (i) Impact Fees, Processing Fees and Charges and (ii) fees collected and/or imposed by the City for the benefit of public agencies other than the City. 1.29. "General Plan" means the General Plan of the City. 1.30. "Hotel Room" means a hotel guest room or suite as defined in Section 18.78.030.0602 or 18.78.030.0603 of The Disneyland Resort Specific Plan as of the Effective Date. 1.31. "Impact Fees" means impact fees, linkage fees, exactions, fair share charges or other similar impact fees or charges imposed on and in connection with new development on a city-wide basis by the City pursuant to rules, regulations, ordinances and policies of the City. 1.32. "Initial Phase" means, at Developer's sole discretion, any of the Initial Phase alternatives set forth in Table 3-A of the Addendum, incorporated herein by this reference. 1.33. "Inspections" means all field inspections and reviews by City officials during the course of construction of the Project and the processing of certificates of occupancy (permanent or temporary). 1.34. "Institutional Lender" means any of the following institutions having assets or deposits in the aggregate of not less than One Hundred Million Dollars ($100,000,000): a California chartered bank; a bank created and operated under and pursuant to the laws of the United States of America; and "incorporated admitted insurer" (as that term is used in Section 1100.1 of the California Insurance Code); a "foreign (other state) bank" (as that term is defined in Section 1700(1) of the California Financial Code); a federal savings and loan association (Cal. Fin. Code Section 8600); a commercial finance lender (within the meaning of Sections 2600 et seq. of the California Financial Code); a "foreign (other nation) bank" provided it is licensed to maintain an office in California, is licensed or otherwise authorized by another state to maintain an agency or branch office in that state, or maintains a federal agency or federal branch in any -6- 209905v12 state (Section 1716 of the California Financial Code); a bank holding company or a subsidiary of a bank holding company which is not a bank (Section 3707 of the California Financial Code); a trust company, savings and loan association, insurance company, investment banker; college or university; pension or retirement fund or system, either governmental or private, or any pension or retirement fund or system of which any of the foregoing shall be trustee, provided the same be organized under the laws of the United States or of any state thereof; and a Real Estate Investment Trust, as defined in Section 856 of the Internal Revenue Code of 1986, as amended, provided such trust is listed on either the American Stock Exchange or the New York Stock Exchange. 1.35. "Landscaping and Lighting District" means that Anaheim Resort Landscape and Lighting Maintenance District established by the City pursuant to the provisions of the California Streets and Highways Code, for the purpose of funding maintenance costs, above the City's standard level, for entry monumentation, decorative lighting, bus shelters, enhanced landscaping, benches, kiosks and other street features in public rights-of-way within the Anaheim Resort. 1.36. "Lease" means a ground lease having a base term of thirty-five (35) years or longer, not including optional terms or extensions. 1.37. "Litigation" means any lawsuit (including a cross -action) filed against the City and/or Developer which challenges the validity, implementation or enforcement of, or seeks any other remedy directly relating to, all or any party of the Existing Approvals, this Agreement or the DDA. 1.38. "Ministerial Permits and Approvals" means the nondiscretionary permits, approvals, plans, inspections, certificates, documents and licenses required to be taken, issued or approved by the City in order for Developer to implement, develop and construct the Project and the Mitigation Measures, including without limitation, building permits, and other similar permits and approvals. 1.39. "Mitigation Measures" means those Mitigation Measures set forth in the Mitigated Negative Declaration and Mitigation Monitoring Plan No. 004, as amended and adopted by the City on February 26, 2002. 1.40. "Mitigated Negative Declaration" or "MND" means the Mitigated Negative Declaration approved by the City on June 22, 1999, by City Council Resolution No. 99R-133, and the Revised Addendum thereto, approved by the City on February 26, 2002, by City Council Resolution No. 1.41. "Mortgage" means an instrument or instruments securing one or more financings by the Developer with respect to the construction, development, use or operation of the Project, and includes whatever security instruments are used in the locale of the Project, including, without limitation, mortgages, deeds of trust, security deeds, and conditional deeds, as well as financing statements, security agreements and other documents required pursuant to the Uniform Commercial Code. -7- 209905v12 1.42. "Mortgagee" means one or more Institutional Lenders holding a beneficial interest and secured position under any Mortgage. 1.43. "Outside Initial Phase Commencement Date" means the earliest to occur of the following: (i) sixty (60) days following the Commencement of Construction of the Third Gate, (ii) six (6) months following entry of a final judgment in the Area D/E Litigation, or (iii) three (3) years following the Effective Date of this Agreement. 1.44. "Parking Facility" means a parking structure of up to 2,000,000 gross square feet at full buildout of the Project containing 4,800 striped parking spaces and a 10,200 square foot bus terminal providing parking for up to 15 buses. 1.45. "Parties" means collectively Developer and the City. 1.46. "Party" means any one of Developer or the City. 1.47. "Phases" or "Phasing" means the phases of the Project as shown in Table 3 of the Addendum, incorporated herein by this reference. 1.48. "Plaintiff' means any party seeking relief or compensation through Litigation, whether as plaintiff, petitioner, cross-complainant or otherwise. 1.49. "Planning Commission" means the Planning Commission of the City. 1.50. "Planning Director" means the Planning Director of the City. 1.51 "Pointe Anaheim Overlay" means those regulations and guidelines established by Amendment No. 4 and Amendment No. 5 to The Disneyland Resort Specific Plan to provide for the development of the Project. 1.52. "Processing Fees and Charges" means all processing fees and charges required by the City including, but not limited to, fees and charges for land use applications, Project permits, building applications, building permits, grading permits, encroachment permits, tract or parcel maps, lot line adjustments, air right lots, street vacations, certificates of occupancy and other similar permits. Processing Fees and Charges shall not include Impact Fees. 1.53. "Project" means the mixed use, multi -phased Project and those uses identified and described in the Existing Approvals. 1.54. "Project Elements" means the specific land uses permitted by the Existing Approvals and other accessory uses, infrastructure improvements and private or public facilities contained in the Existing Approvals. 1.55. "Reserved Powers" means the rights and authority excepted from this Agreement's restrictions on the City's police powers which are reserved to the City. The Reserved Powers supersede the Applicable Rules to the extent of any inconsistency and include the power to enact and implement rules, regulations, ordinances and policies after the Effective -8- 209905v12 Date that may be in conflict with the Applicable Rules, which either (1) prevent or remedy conditions which the City has found to be injurious or detrimental to the public health or safety; (2) are Uniform Codes; (3) are necessary to comply with state and federal laws, rules and regulations (whether enacted previous or subsequent to the Effective Date) or to comply with a court order or judgment of a state or federal court; (4) are agreed to or consented to by Developer; (5) involve the formation of assessment districts, Mello -Roos Community Facilities Districts, special districts, maintenance districts or other similar districts formed in accordance with applicable laws provided, however, that Developer shall retain all its rights with respect to such districts pursuant to all applicable laws; or (6) are Processing Fees and Charges or City- wide fees or charges of general applicability. 1.56. "Retail, Dining and Entertainment Uses" means those retail, dining and entertainment uses built or caused to be built by Developer on the Excel Pointe Anaheim Property in accordance with the Existing Approvals. 1.57. "Right(s)-of-Way" means any right(s)-of-way or other real property interest necessary to access, construct, maintain, perform and/or operate any public improvements required by the Mitigation Measures in accordance with the Existing Approvals excluding the land required for the Parking Facility. 1.58. "Section" means the indicated section or subsection number of this Agreement. 1.59 "Site Map" means the map of the Pointe Anaheim Overlay which is attached as Exhibit A to the DDA. 1.60. "Term" means the period of time during which this Agreement shall be in effect and shall bind the City and Developer as provided in Section 7.2 of this Agreement. 1.61. "The Disneyland Resort Specific Plan" or "Specific Plan" means the Disneyland Resort Specific Plan No. 92-1 (including zoning and development standards) as approved by the City and as amended on or before the Effective Date. 1.62. "Uniform Codes" means those building, electrical, mechanical, fire and other similar regulations which are applicable throughout the City, including, but not limited to, the California Building Standards Code incorporating or referring to the Uniform Building Code, the National Electrical Code, the Uniform Mechanical Code, and the Uniform Fire Code (including those amendment to the promulgated uniform codes which reflect local modifications by the City, which modifications are applicable City-wide). 2. PROPERTY, PURPOSE AND INTENT. 2.1 Property Description. As depicted on the Site Map, Developer does not presently own all of the property located within the Pointe Anaheim Overlay. To the extent permitted by the Development Agreement Act, Developer shall have the right to annex additional property located within the Pointe Anaheim Overlay into the existing Excel Pointe Anaheim Property and subject such property to the terms of this Agreement, provided that Developer shall (i) provide to the City notice of the purchase, Lease or other interest in such additional property by Developer or an Affiliate of Developer, (ii) provide to the City evidence of Developer's or an Affiliate's -9- 209905v12 ownership, Lease or other interest in such additional property, and (iii) record in the Official Records of the County of Orange a Declaration of Annexation which provides that the additional property, which is described in such Declaration, is now subject to the Agreement, effective upon compliance with the requirements of this Section 2.1. 2.2 City Objectives. The City desires that the Excel Pointe Anaheim Property be developed as provided for in the Existing Approvals to: (i) create additional retail "sales and transient occupancy tax base for the City, (ii) provide additional quality Hotel Rooms and Retail, Dining and Entertainment Uses that will expand on existing and planned tourist attractions and theme park uses and will cause Anaheim visitors to extend the length of the stays in Anaheim; (iii) provide a fully integrated and coordinated development based on comprehensive planning principles; (iv) assure that the Project will be developed as described in the Existing Approvals; and (v) maximize the opportunity for site assemblage in a key portion of the Resort Area. 2.3 Developer Objectives. This Agreement is necessary to assure Developer that the Project will not be (i) reduced in density, intensity or use; and (ii) subjected to new rules, regulations, ordinances or official policies or delays which are not permitted by this Agreement. 2.4 Representation of Fee Simple or Equitable Ownership. Developer represents that it owns, directly or through its Affiliates, the fee simple, equitable interest or Lease interest or option to purchase or Lease the Excel Pointe Anaheim Property. 2.5 Mutual Objectives. Development of the Project in accordance with this Agreement will provide the assurances required for the subsequent private acquisition of multiple parcels of land and the orderly, coordinated and phased development of the Project in accordance with the goals and objectives set forth in the General Plan and the Specific Plan. Moreover, this Agreement provides additional assurance to the City and Developer that the installation of necessary improvements will occur in the manner set forth in the Existing Approvals and otherwise achieve the goals and purposes for which the Development Agreement Act was enacted. The Parties believe that such an orderly, coordinated and phased development of the Project will provide many public benefits to the City, including without limitation: development of under-utilized and legally non -conforming properties and uses, increased tax revenues, land assemblage, increased transient occupancy tax, installation of on-site and off-site improvements, public parking and job creation. Additionally, this Agreement provides the City with Reserved Powers that will enable the City to comply with applicable state and federal laws, to take action to prevent or remedy conditions found to be injurious or detrimental to the public health or safety, and to take other actions in the public interest. 3. AGREEMENT AND ASSURANCES. 3.1 Agreement and Assurance on the Part of Developer. In consideration for the City entering into this Agreement, and as an inducement for the City to obligate itself to carry out the covenants and conditions set forth in this Agreement, and in order to effectuate the purposes and intentions set forth in Section 2 of this Agreement, Developer hereby agrees as follows: 3.1.1 Development Assurances. Developer agrees to commence and complete construction of the Project in accordance with the terms and conditions of this Agreement and as provided for in the Existing Approvals. Developer agrees subject to Section 7.3 hereof to the following: -10- 20990502 (a) At a minimum, the Developer will accomplish Commencement of Construction of the Initial Phase of the Project prior to the Outside Initial Phase Commencement Date. (b) The Developer will complete the construction and open the improvements comprising the Initial Phase within two (2) years after Commencement of Construction of the Initial Phase. (c) The Developer will not seek to change the entitlements for the 1,662 Hotel Rooms into any other use; provided, however that Developer may elect to construct up to 200 Vacation Ownership Interval Units in lieu of 200 Hotel Rooms located in either Area D or E of the Project, as set forth in Footnotes "c" and "e" of Table 3 of the Addendum; and provided further, and as a condition of such election, the Parties will enter into a subsequent agreement that provides the City with (an) "in lieu" payment(s) to be made at a mutually acceptable time(s), and in an amount(s) not in excess of the equivalent Transient Occupancy Taxes to which the City would be entitled if such units were occupied as Hotel Rooms." (d) The Project will be developed in up to five Phases pursuant to the phasing schedule set forth in Table 3 and Table 3A of the Addendum. (e) The design of the Project will incorporate the hotels as integral components of the site plan, and the Project's construction will be consistent with said plan. (f) Following the Initial Phase, the Developer will use reasonable commercial efforts to commence construction of subsequent development Phases within approximately two (2) years, but in no event later than four (4) years, following the opening of the previous Phase, provided that the timing of each subsequent phase will depend primarily on market demand at the time, the availability of project financing, and acquisition of land for the proposed uses, and will use reasonable commercial efforts to overcome such adverse conditions through redesign and land use revisions to be implemented in cooperation between City and Developer. 3.1.2 _Effect of Delayed Performance. If Developer, its Affiliates and/or approved assignees shall fail to (i) timely commence Construction of the Initial Phase within the timeframe of Section 3.1.1(a); (ii) timely complete the construction and open the improvements comprising the Initial Phase within the timeframe of Section 3.1.1(b); and/or (111) timely commence construction of subsequent development Phases following the Initial Phase within four (4) years of the opening of the previous Phase, the City may, in its sole discretion, after having provided Developer with written notice and the opportunity to cure in the manner set forth in -Section 5.3, terminate this Agreement and the DDA with respect to those portions of the Project, the construction of which was not commenced prior to the date of such termination. 3.1.3 Landscaping and Lighting District. Developer agrees to participate in the Anaheim Resort Landscaping and Lighting Maintenance District -11- 209905v12 3.2 Agreement and Assurances on the Part of the City. In consideration for Developer entering into this Agreement, and as an inducement for Developer to obligate itself to carry out the covenants and conditions set forth in this Agreement, the City hereby agrees during the term as follows: 3.2.1 Entitlement to Development. Developer has a vested right to develop the Project in accordance with the Existing Approvals subject to the terms and conditions of this Agreement, the Applicable Rules and the Reserved Powers. 3.2.2 Changes in Applicable Rules. 3.2.2.1 Non -Application of Changes in Applicable Rules. Any change in, or addition to, the Applicable Rules, including, without limitation, any change in any applicable general or specific plan, zoning ordinance or building regulation adopted or becoming effective after the Effective Date, including, without limitation, any such change by means or ordinance, City Charter amendment, initiative, referendum, resolution, motion, policy, order or moratorium, initiated or instituted for any reason whatsoever and adopted by the City Council, Planning Commission or City Agency, or by the electorate, as the case may be, which would, absent this Agreement, otherwise be applicable to the Project and which would conflict with the Applicable Rules or this Agreement, shall not be applied to the Project unless such changes represent an exercise of the City's Reserved Powers or are otherwise expressly allowed by this Agreement or consented to in writing by Developer. 3.2.2.2 Changes in Uniform Code. Notwithstanding any provision of this Agreement to the contrary, construction of the Project shall comply with changes occurring from time to time in the Uniform Codes pursuant to the Reserved Powers. 3.2.2.3 Changes Mandated by Federal or State Law. This Agreement shall not preclude the application to the Project of changes in, or additions to, the Applicable Rules. In the event state or federal laws or regulations prevent or preclude compliance with one or more provisions of this Agreement, such provisions shall be modified or suspended as may be necessary to comply with such state or federal laws or regulations. 3.2.2.4 Special Taxes and Assessments. Except with regard to the Landscaping and Lighting District for the Anaheim Resort as provided for in Section 3.1.3, Developer shall have the right, to the extent permitted by law, to protest, oppose and vote against any and all special taxes, assessments, levies, charges and/or fees imposed with respect to any assessment districts, Mello -Roos Community Facilities Districts, maintenance districts or other similar districts. 3.2.3 Agreed Changes and Other Reserved Powers. This Agreement shall not preclude application to the Project of rules, regulations, ordinances and officially adopted plans and policies otherwise in conflict with the Applicable Rules if (i) agreed to in writing by Developer, or (ii) result from the Reserved Powers. - 3.2.4 Subsequent Development. The City shall not require Developer to obtain any approvals or permits for the development of the Project other than those permits or approvals which are required by the Applicable Rules or the Reserved Powers. 3.2.5 Effective Development Standards. The City agrees that with respect to the Project it is bound to permit development of the Project in accordance with the Specific Plan including without limitation, the uses, intensity and density as provided for in the Specific Plan, -12- 209905v12 subject to the Applicable Rules, Reserved Powers and this Agreement. Moreover, the City hereby agrees that it will not unreasonably withhold any Discretionary Action which must be issued by the City in order for the Project to proceed, provided that Developer reasonably and satisfactorily complies with all City-wide standard procedures and policies of the City for processing any such Discretionary Action and pays any applicable Processing Fees and Charges. 3.2.6 Timing, Sequencing and Phasing of Development. In the event an ordinance, resolution or other measure, referendum, or initiative is enacted, whether by action of the City or otherwise, which relates to the rate, amount, timing, sequencing, or phasing of the development or construction of the Project on all or any part of the Excel Pointe Anaheim Property or the implementation or construction of the Mitigation Measures, City agrees that such ordinances, resolution or other measure shall not apply to the Project, the Excel Pointe Anaheim Property or this Agreement, unless such changes are adopted pursuant to the City's exercise of its Reserved Powers or other applicable provision of this Agreement. 3.2.7 Impact Fees; Credit for Developer Installed Facilities. All Project Elements shall be subject to the Impact Fees and crediting provisions related thereto in force at time of application and as may be amended from time to time and are not restricted or limited in any way by this Agreement. 3.2.8 Right(s)-of-Way. In the event Developer cannot acquire Right(s)-of-Way necessary to perform a Mitigation Measure or complete a Condition of Approval, City shall use its best efforts to acquire such Right(s)-of-Way, the cost of which shall be reimbursed to the City by the Developer. In the event City is unable to acquire such Right(s)-of-Way, City shall institute proceedings to consider acquisition of such Right(s)-of-Way by eminent domain. Nothing contained herein shall constitute a commitment or determination by the City Council of the City to exercise the power of eminent domain. 3.3 Processing Fees, Extraordinary Processing Consultant, Charges and Environmental Review. 3.3.1 Processing Fees and Charges. Developer shall pay all Processing Fees and Charges for Ministerial Permits and Approvals and Inspections at the rate in effect at the time they are sought. 3.3.2 Extraordinary Processing Consultant. Developer may request that the City engage an Extraordinary Processing Consultant to coordinate and expedite the processing of actions required through the Ministerial Permits and Approvals and all Discretionary Actions applicable to the Project. The City agrees, if so requested, to engage such Extraordinary Processing Consultant. Developer shall reimburse the City for the costs of such Extraordinary Processing Consultant in accordance with the terms of Section 7.22 hereof. 3.3.3 Environmental Review. The City has conducted extensive environmental review of the Project and has adopted the Mitigation Measures. The City intends that Ministerial Permits and Approvals are not actions subject to requirements for further environmental review pursuant to CEQA. 4. DEVELOPMENT PLAN. 4.1 Right to Develop Property. Subject to the terms of this Agreement, Developer -13- 209905v12 shall have a vested right to develop the Excel Pointe Anaheim Property in accordance with the Existing Approvals. 4.2 Phased Development. The Project will be developed in up to five phases, with two alternatives for Area A and Area B as set forth in the Existing Approvals and Mitigation Measures as shown in Table 3 and Exhibit 7 of the Addendum, and the alternatives for the Initial Phase as set forth in the Table 3 of the Addendum. 5. ANNUAL REVIEW; REIMBURSEMENT; DEFAULT; TERMINATION, AMENDMENT OR MODIFICATION; MANDAMUS; SPECIFIC PERFORMANCE. 5.1 Annual Review. During the Term, Developer shall initiate and the City shall conduct an Annual Review of Developer's compliance with this Agreement and the Procedures Resolution. Such Annual Review shall be limited in scope to determining good faith compliance with the provisions of this Agreement. The Annual Review shall be initiated and conducted in accordance with the Procedures Resolution. 5.2 Reimbursement of Costs. Developer shall reimburse the City for its actual costs, reasonably and necessarily incurred to accomplish the required Annual Review of this Agreement or any legal or financing consultant cost necessary to accomplish review of amendments pursuant to Section 7.5 of this Agreement. Such reimbursement shall be due within thirty (30) days after receipt of invoice from the City. These costs include, but are not limited to, the Application Fee for Annual Review required by the City's Procedures Resolution. 5.3 Default by Developer. 5.3.1 Default. In the event the City reasonably determines that Developer has failed to perform any of its obligations under this Agreement, or that any such obligations are not performed in a timely manner, the City may pursue only those remedies expressly provided for in this Agreement; provided, however, that the City's right to compel specific performance of the obligations of Developer under this Agreement shall be subject to the limitations set forth in Section 5.3.4. Further, the City shall have no right to monetary damages except as set forth in Sections 3.1.2 and 5.2. 5.3.2 Notice of Default. In the event the City reasonably determines that Developer is in default of any of its obligations under this Agreement, the City shall send a notice of such alleged default(s) to Developer in which the allegations of default shall be set forth in sufficient detail to enable Developer to ascertain the specific actions necessary to cure the alleged default(s). Upon receipt of a notice of default, Developer shall promptly commence to cure the identified default(s) at the earliest reasonable time after receipt of such notice but in no event more than thirty (30) days after receipt of notice and shall complete the cure of (i) any monetary default(s) not later than thirty (30) days thereafter, and (ii) any non -monetary default(s) not later than ninety (90) days thereafter or such longer period as necessary to cure default as agreed to by City in its sole discretion. 5.3.3 Termination for Failure to Cure Default. If after the cure period provided for in Section 5.3.2 has lapsed, and the Planning Director reasonably finds and determines that Developer remains in default, the Planning Director shall make a report to the City Council concerning such default and City Council may thereafter proceed to modify or terminate this Agreement in accordance with the Procedures set forth in Sections 7.2 and 7.3 of the Procedures Resolution. -14- 209905v12 5.3.4 Specific Performance. Except as provided in this Section 5.3.4, the City shall have no right under this Agreement to seek a remedy of specific performance with respect to the Project in the event of an abandonment of the Project (including the failure to complete the Project or a portion of the Project by any required completion date) or with respect to any Project Element in the event of the abandonment of any such Project Element (regardless of whether the Project Element is or is not part of the Project). The City's right to seek specific performance to compel completion of the Project (including portions of the Project) or applicable Project Elements in the event of such abandonment shall be specifically limited to (i) compelling Developer, at the election of the City in its sole discretion, to complete or demolish any uncompleted improvements located on public property initiated in connection with the Project with the choice of whether to demolish or complete such improvements and the method of such demolition or completion of such improvements to be selected by the City in its sole discretion, and (ii) compelling Developer, at the election of Developer in its sole discretion, to complete, demolish or make safe and secure any uncompleted improvements located on the Excel Pointe Anaheim Property with the choice of whether to demolish, complete or secure such improvements and the method of such demolition, completion and securing of such improvements to be selected by Developer in its sole discretion. Prior to Commencement of Construction, Developer shall post a performance bond or other security in an amount and form reasonably satisfactory to the City Attorney to guarantee demolition or securing of such uncompleted improvements. The Developer's contractors performance bond from a creditworthy bonding company assigned to the City is a performance bond that will be acceptable to City. Nothing in this Section 5.3.4 shall limit the City's enforcement of all applicable provisions of the Applicable Rules, Existing Approvals, Mitigation Measures, and Uniform Code for any portion of the Project then or thereafter constructed (e.g., requiring Developer to build sewer laterals required under Applicable Rules to serve a hotel actually completed), termination of this Agreement in accordance with the provisions hereof notwithstanding. In addition, nothing in this Section shall limit or restrict in any way the City's monetary remedies as provided for in Section 3.1.2 hereof. 5.4 Default by City. 5.4.1 Notice of Default. Upon receipt of written notice of default from Developer, the City shall promptly commence to cure the identified default(s) at the earliest reasonable time after receipt of the notice of default and shall complete the cure of such default(s) not later than sixty (60) days after receipt of the notice of default. 5.4.2 Specific Performance and Mandamus. It is acknowledged by the Parties that the City would not have entered into this Agreement if it were to be liable in damages under or with respect to this Agreement or the application thereof. In addition, the Parties agree that monetary damages are not an adequate remedy for Developer if the City should be determined to be in default under this Agreement. The Parties further agree that specific performance and mandamus shall be Developer's only remedies under this Agreement and Developer may not seek monetary damages in the event of a default by the City under this Agreement. Developer covenants not to sue for or claim any monetary damages in the event of a default by the City under this Agreement. Developer may seek specific performance of City's obligations under this Agreement or a writ of mandate pursuant to Code of Civil Procedure sections 1085 or 1094.5, as applicable, to compel the City to take or refrain from taking any action, or to modify any action taken, that is necessary to effectuate the terms of this Agreement only after serving written notice of the alleged default(s) on City and lapse of the period given for City to cure such default(s), all in accordance with Section 5.4.1, and for so long as City remains in default of its obligations under this Agreement. 209905v12 6. PUBLIC BENEFITS. 6.1 Assemblage of Properties. The Project will involve the assemblage of a number of separate land parcels and assure the development thereon of coordinated, orderly, phased, high quality hotel, Retail, Dining and Entertainment Uses and associated Parking Facilities. Development of the Project will result in use of a number of currently under-utilized and non -conforming properties in a manner that is consistent with goals of the General Plan and Specific Plan. 6.2 Net Increase in Transient Occupancy Tax. The Project will provide substantial City benefits from the net increase in transient occupancy tax derived from the construction of the Project. 6.3 Increase in Retail Sales Taxes. The Project will provide significant additional net retail sales tax benefits upon Project completion beyond those generated by the existing uses in the Pointe Anaheim Overlay area. 6.4 Increase in Property Taxes. The Project will result in placing several historically tax-exempt properties onto the property tax rolls, and re -appraising to fair market value a number of other properties with assessed valuations that have been artificially depressed by Proposition 13 limits or under -utilization of the area. These changes will generate significant additional property taxes. 6.5 Resort Area Traffic Improvements. The Project will provide additional Anaheim Resort area traffic benefits as described in the Mitigation Measures and Existing Approvals. 6.6 Police Substation. Prior to issuance of building permit(s) for uses comprising Area B of the Project, Developer shall submit plans for a "storefront" police substation within the Project to the satisfaction of the City Police Department, together with dedicated City Police Department employees' parking spaces. Prior to the first final building and zoning inspection for the uses in Area B, the space for said substation shall be conveyed to the City in accordance with the terms set forth in the Mitigation Measures. These terms and all other relevant provisions governing this occupancy shall be set forth in the DDA. 7. GENERAL PROVISIONS. 7.1 Date Agreement Becomes Effective. This Agreement shall become effective on the Effective Date. 7.2 Term. 7.2.1 Basic Term. The Term of this Agreement shall commence on the Effective Date of this Agreement and shall extend for a period of ten (10) years after the Effective Date. 7.2.2 Early Termination of Agreement. This Agreement is terminable: (i) by mutual written agreement of the Parties; (ii) by either Party following an uncured default by the other Party under this Agreement or the DDA, subject to the procedures and limitations set forth in this Agreement and the DDA; or (iii) by the Developer, in its sole discretion, prior to the Commencement of Construction Date, in which event the City may, in its sole discretion, rescind the Existing Approvals. -16- 209905v12 7.3 Force Majeure; Extension of Time of Performance. In addition to specific provisions of this Agreement, whenever a period of time is designated within which either Party hereto is required to do or complete any act, matter or thing, both the time for the doing or completion thereof and the Term of this Agreement shall be extended by a period of time equal to the number of days which such Party is prevented from, or is unreasonably interfered with the doing or completion of such act, matter or thing because of the following causes, which causes are beyond the reasonable control of the Parry to be excused including: war, terrorist acts, insurrection; strikes; walk -outs; riots; floods; earthquakes; fires; unavoidable casualties; acts of God; third party litigation and administrative proceedings which are brought against the Project by a third party (not including any administrative proceedings contemplated by this Agreement in the normal course of affairs such as the Annual Review); any approval required by the City (not including any period of time normally expected for the processing of such approvals in the ordinary course of affairs); restrictions imposed or mandated by other governmental entities ("Governmental Restrictions"); enactment of conflicting state or federal laws or regulations ("Conflicting Laws"); judicial decisions ("Judicial Decisions"); or similar bases for excused performance which is not within the reasonable control of the party to be excused (financial inability excepted); provided that with regard to Governmental Restrictions, Conflicting Laws and Judicial Decisions, such causes shall excuse performing only if the cause for delay is not removed within 24 months after its commencement. This Section shall not be applicable to, and the required time of performance shall not be extended by, any proceedings with respect to bankruptcy or receivership initiated by or on behalf of Developer or, if not dismissed within ninety (90) days, by any third Parties against Developer. If written notice of such delay is given to either Party within thirty (30) days of commencement of such delay, an extension of time for such cause will be granted in writing for the period of the enforced delay, or longer as may be mutually agreed upon; provided, however, in the event no such notice is given, such claim or delay from that cause shall be deemed waived and no extension shall be granted on that basis. 7.4 Applicable Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California, and the venue for any legal actions brought by any Parry with respect to this Agreement shall be the County of Orange, State of California, for state actions, and the Orange County Division of the Central District of California for any federal actions. 7.5 Amendments. This Agreement may be amended from time to time in writing in accordance with Government Code section 65868 and the Procedures Resolution. 7.6 Assignment. The Parties acknowledge and agree that one of the principal inducements to the City in entering into this Agreement is the assurance that the Project Elements will be developed in accordance with the quality standards set forth in the Existing Approvals and this Agreement, and in particular that the Hotel Rooms will be opened in accordance with the time set forth herein. In furtherance of these objectives, the Parties agree that except as otherwise provided in this Section 7.6, Developer shall not be entitled to transfer any of the Excel Pointe Anaheim Property together with its rights or obligations hereunder without the written consent of the City, which consent shall not be unreasonably withheld, conditioned or delayed. The City shall consent to each transfer if evidence reasonably satisfactory to the City is presented that the entity to which the assignment is proposed (i) has adequate net worth to construct and operate the Project or applicable Project Element(s); (ii) has a demonstrated track record of having developed and operated first-class commercial facilities of a similar nature to the Project or applicable Project Element(s); (iii) has a demonstrated track record of arranging financing (through debt and/or equity) on terms and in amounts similar to the amounts necessary to complete the Project or applicable Project Element(s); and (iv) has expressly assumed all of Developer's obligations hereunder and such assignment is being -17- 209905x12 undertaken in accordance with this Section 7.6. Notwithstanding the foregoing, Developer shall have the right to lease space to Retail, Dining and Entertainment Use tenants, and assign, lease, transfer, convey or hypothecate all or any partial interest in all or any portion of the Excel Pointe Anaheim Property to any Affiliate without the consent of the City. Any such assignment, lease, transfer, conveyance, or hypothecation may include all of Developer's rights, duties and obligations under this Agreement. Notwithstanding the foregoing, no assignment shall be effective regardless of whether or not the City's consent is otherwise required, unless and until the proposed assignee accepts and agrees in writing to assume and be bound by the obligations set forth in this Agreement which apply to the Excel Pointe Anaheim Property, the Project, the Project Elements or interest therein being assigned. 7.7 Mortgage Rights. 7.7.1 Encumbrances on the Excel Pointe Anaheim Property and this Agreement. The Parties hereto agree that this Agreement shall not prevent or limit Developer, in any manner, at Developer's sole and absolute discretion, from encumbering the Excel Pointe Anaheim Property or any portion thereof or any improvements thereon with any Mortgage. Developer is hereby given the express right, in addition to any other rights herein granted, to grant a Mortgage on its interests in this Agreement or any part or parts thereof, under one or more Mortgages and to assign this Agreement as collateral security for any such Mortgage. 7.7.2 Mortgagee Protection. This Agreement shall be superior and senior to the lien of any Mortgage. Notwithstanding the foregoing, no breach of this Agreement shall defeat, render invalid, diminish, or impair the lien of any Mortgage made in good faith and for value, and any acquisition or acceptance of title or any right or interest in or with respect to the Excel Pointe Anaheim Property or any portion thereof, or to this Agreement, by a Mortgagee (whether pursuant to foreclosure, lease termination or otherwise) shall upon written election by the Mortgagee within sixty (60) days after receipt of such right, title or interest, be subject to all of the terms and conditions of this Agreement and any such Mortgagee who takes title to the Excel Pointe Anaheim Property or any portion thereof, or to this Agreement, shall also be entitled to the benefits arising under this Agreement. 7.7.3 Mortgagee Not Obligated. Notwithstanding the provisions of this Section 7.7, a Mortgagee will not have any obligation or duty pursuant to the terms set forth in this Agreement to perform the obligations of Developer or other affirmative covenants of Developer hereunder or to guarantee such performance, except that (i) the Mortgagee shall upon written election by the Mortgagee within sixty (60) days after receipt of such right, title or interest, have no right to develop the Project without fully complying with the terms of this Agreement, and (ii) to the extent that any covenant to be performed by Developer is a condition to the performance of any covenant by the City, the performance thereof shall continue to be a condition precedent to the City's performance hereunder. Although not obligated to do so, upon written election by the Mortgagee within sixty (60) days after receipt of such right, title or interest, any Mortgagee may do any act or thing required by Developer hereunder, and do any act or thing which may be necessary and properly done in the performance and observance of the agreements, covenants and conditions hereof to prevent termination of this Agreement in accordance with Section 7.7.4. Any Mortgagee and its agents and contractors shall have full access to the Excel Pointe Anaheim Property for purposes of accomplishing any of the foregoing. Any of the foregoing done by any Mortgagee shall be as effective to prevent a termination of this Agreement as if the same would have been done by the Developer. 7.7.4 Notice of Default to Mortgagee; Right of Mortgagee to Cure. Each Mortgagee shall, upon written request to City be entitled to receive written notice from the City -18- 209905x12 of the result of the Annual review and of any default by Developer of its obligations set forth in this Agreement simultaneously with the deliver of such notices to the Developer. Each Mortgagee shall have a further right, but not an obligation, to cure such default within ninety (90) days after receipt of such notice or, if such default can only be remedied or cured by such Mortgagee upon obtaining possession of the Excel Pointe Anaheim Property, such Mortgagee shall have the right to seek or obtain possession with diligence and continuity through a receiver or otherwise, and to remedy or cure such default within ninety (90) days after obtaining possession, and, except in case of emergency or to protect the public health or safety as determined by the City in its reasonable discretion, City may not exercise any of its remedies set forth in this Agreement until expiration of such ninety (90) day period whether commencing upon receipt of notice or upon obtaining possession of the interests covered by a Mortgage, as applicable; provided, however, that in the case of a default which cannot with diligence be remedied or cured or the remedy or cure of which cannot be commenced within such ninety (90) day period, the Mortgagee shall have such additional time as is reasonably necessary to remedy or cure such default. Any notice of termination delivered in violation of this Section 7.7.4 shall be rendered void. 7.7.5 Bankruptcy. Notwithstanding the foregoing provisions of this Section 7.7, if any Mortgagee is prohibited from commencing or prosecuting foreclosure or other appropriate proceedings in the nature thereof by any injunction issued by any court or by reason of any action by any court having jurisdiction of any bankruptcy or insolvency proceeding involving Developer, the times specified in Section 7.7.4 for commencing or prosecuting foreclosure or other proceedings shall be extended for the period of the prohibition. In addition, if this Agreement is rejected or otherwise terminated in connection with any such proceeding, then upon the request of any mortgagee, a new development agreement upon the same terms and conditions set forth in this Agreement shall be entered into between such Mortgagee and City. 7.7.6 Termination Subject to Mortgagee Rights. All rights of the City to terminate this Agreement as a result of the occurrence of any default shall be subject to, and conditioned upon, the City have first given to each Mortgagee written notice of the default as required under 7.7.4 above, and all Mortgagees having failed to remedy such default or acquire Developer's interests hereunder, or having failed to commence foreclosure or other appropriate proceedings in the nature thereof as set forth in Section 7.7.4 above. 7.7.7 No Cancellation. There shall be no cancellation, surrender or modification of this Agreement by joint action of the Parties without a minimum of ninety (90) days prior written notice to each Mortgagee who has requested such notice. 7.7.8 New Agreement Upon Default by Developer. City agrees that in the event of termination of this Agreement by reason of a default by Developer, the City will enter into a new development agreement with the most senior Mortgagee whose Mortgage encumbers this Agreement requesting a new development agreement for the remainder of the term of this Agreement, such new agreement being effective as of the date of such termination, and containing such terms, provisions, covenants and agreements as herein contained, provided: (a) The senior Mortgagee shall make written request upon City for such new development agreement within thirty (30) days after the date of termination; (b) The senior Mortgagee shall pay to the City at the time of the execution and delivery of such new development agreement any and all sums which would, at the time of the execution and delivery thereof, be due -19- 209905x12 and unpaid pursuant to this Agreement but for its termination; including any expenses, attorneys' fees and costs, to which the City was subjected by reason of such default; (c) The senior Mortgagee shall perform and observe all covenants herein contained on Developer's part to be performed, and shall further remedy any other conditions which Developer was obligated to perform under the terms of this Agreement, and to the extent that same are curable or may be performed by the senior Mortgagee; and (d) Notwithstanding anything to the contrary expressed or implied elsewhere in this Agreement, any new development agreement made pursuant to this Section shall be superior to any Mortgage to the same extent as this Agreement. 7.7.9 Separate Agreement. The City shall, upon request, execute, acknowledge and deliver to each Mortgagee an agreement prepared at the sole cost and expense of the Developer, (including related legal fees incurred by the City) in form satisfactory to each Mortgagee, between City, Developer and the Mortgagee(s), confirming all of the provisions hereof and/or such other documents containing terms and provisions customarily required by Institutional Lenders in connection with such financing, provided, however, the City shall not be obligated to approve any terms that would impair or adversely affect the rights and obligations of the City, or otherwise amend this Agreement and/or the obligations of the Developer as set forth in this Agreement 7.7.10 Material Notices. The Developer shall give all Mortgagees notice of any litigation relating to this Agreement, and any Mortgagee shall have the right to seek intervention therein. The parties do hereby consent to such intervention. In the event any Mortgagee shall not elect to intervene or become a party to the proceedings, such Mortgagee shall be provided notice and a copy of any award or decision made in connection therewith. 7.7.11 Mortgagee Right to Assign. Foreclosure of any Mortgage, or any sale thereunder, whether by judicial proceedings or by virtue of any power contained in the Mortgage, or any conveyance of the interest of Developer hereunder to any Mortgagee or its designee through, or in lieu of, foreclosure or other appropriate proceedings in the nature thereof, shall not require the consent of the City or constitute a breach of any provision of or a default under this Agreement; and upon such foreclosure, sale or conveyance, the City will recognize the purchaser or other transferee in connection therewith as the Developer hereunder provided that such purchaser, assignee or other transferee has a net worth, relevant experience, and evidence of financing sufficient to enable such entity to carry out this function, and otherwise conforms to the requirements of Section 7.6 hereof. 7.7.12 Conflicts with Disposition and Development Agreement. In the event of a conflict between the terms of this Section 7.7 and the express terms of Section 309 of the Disposition and Development Agreement, the terms of Section 309 of the Disposition and Development Agreement shall apply. 7.8 Covenants. The provisions of this Agreement shall constitute covenants which run with the land comprising the Excel Pointe Anaheim Property for the benefit thereof and as a burden thereon, and, subject to the restrictions on transfer as set forth in Section 7.6, the burdens and benefits hereof shall bind and inure to the benefit of all assignees, transferees and successors to the parties. -20- 2099osv12 7.9 Implementation. Upon satisfactory completion by Developer of all required applications and payment of applicable Processing Fees and Charges, including the fee for processing this Agreement, the City and Developer shall commence and diligently process all required steps necessary for the implementation of this Agreement and development of the Project in accordance with the terms of this Agreement. Developer shall, in a timely manner, provide the City with all documents, plans and other information necessary for the City to carry out its processing obligations hereunder. 7.10 Relationship of the Parties. It is understood and agreed by the Parties that the contractual relationship created between the Parties hereunder is that Developer is an independent party and not an agent of the City. Further, the City and Developer hereby renounce the existence of any form of joint venture or partnership between them and agree that nothing herein or in any document executed in connection herewith shall be construed as making the City and Developer joint venturers or partners. 7.11 Cooperation in the Event of Third Party Litigation. In the event legal action is instituted by a third parry, including any other governmental entity or official challenging the validity or enforceability of any provision of this Agreement, or the Existing Approvals vested pursuant to this Agreement, or any other action by either Parry in performing hereunder, the Parties hereby agree to affirmatively cooperate in defending said action; provided, however, that Developer agrees to and shall defend, indemnify, save and hold the City harmless from any and all claims, costs and liability, including without limitation, court costs and attorneys' fees awarded to any party, to the extent they result from any such Litigation. As the indemnifying Party, Developer shall at all times retain final authority and control over all documents to be filed in such Litigation and notwithstanding the provisions of this Section 7.11, the City shall be deemed to have waived its rights to be indemnified hereunder if the City settles any Litigation, in whole or in part, or files any documents in such Litigation without Developer's prior written approval, which approval shall not be unreasonably withheld. 7.12 Notices. Any notice or communication required hereunder between the City and Developer must be in writing, and may be given either personally, by registered or certified mail, return receipt requested or by overnight courier. If given by registered or certified mail, the same shall be deemed to have been delivered and received on the first to occur of (i) actual receipt by any of the addresses 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 personally delivered or delivered by courier, a notice shall be deemed to have been delivered when received by the Party to whom it is addressed. Any Party hereby may at any time, by giving ten (10) day's written notice to the other Party hereto, designate any other address in substitution of the address, or any additional address, to which such notice or communication shall be given. Such notices or communications shall be given to the Parties at their addresses set forth below: If to City: City Clerk City of Anaheim 200 South Anaheim Blvd. Anaheim, CA 92803 20990502 With Copies to: City Attorney, City of Anaheim City of Anaheim 200 South Anaheim Blvd., Suite 356 Anaheim, CA 92803 -21- If to Developer: William J. Stone, Senior Vice President Excel Pointe Anaheim LLC c/o Excel Legacy Corporation 17140 Bernardo Center Dr., Suite 300 San Diego, CA 92128 Robert H. Shelton Anaheim Center for Entertainment, LLC 11 Keats Court Cota de Caza, CA 92679 With Copies to: John P. Erskine, Esq. Nossaman, Guthner, Knox & Elliott, LLP 18101 Von Karman Ave. #1800 Irvine, CA 92612 7.13 Recordation. The City's Clerk shall record a copy of this Agreement with the Registrar -Recorder of Orange County within two (2) business days following its execution by both Parties. To the extent that Excel Pointe Anaheim Property consists of property under Lease by Developer, this Agreement shall encumber only the leasehold interest and shall not constitute an encumbrance upon the estate in fee. 7.14 Developer Hold Harmless. Developer hereby agrees to and shall indemnify, save, hold harmless and defend the City, and its elected and appointed representatives, boards, commissions, officers, agents, and employees (collectively, "the City" in this Section), from any and all claims, costs, and liability of any kind which may arise, directly or indirectly, from Developer or Developer's contractors, subcontractors, agents, or employees' operations, acts or omissions in connection with the construction and operation of the Project, whether such operations, acts or omissions are by Developer or any of Developer's contractors, subcontractors, or by any one or more persons directly or indirectly employed by, or acting as agent for Developer or any of Developer's contractors or subcontractors. Nothing in this Section shall be construed to mean that Developer shall hold the City harmless and/or defend it to the extent that such claims, costs or liability arise from, or are alleged to have arisen from, the negligent acts, or negligent failure to act, on the part of the City. City agrees that it shall fully cooperate with Developer in the defense of any matter in which Developer is defending and/or holding the City harmless and at no cost to City. The obligations set forth herein shall survive the Term, termination or earlier expiration of this Agreement. 7.15 Insurance. Without limiting its obligation to hold the City harmless, Developer shall provide and maintain at its own expense, at all times during the Term the following program of insurance concerning its operations hereunder. The insurance shall be placed with California -admitted insurers that carry a Best's rating equal to A VII or higher. The program of insurance provided shall specifically identify this Agreement and shall contain express conditions that the City is to be given written notice at least thirty (30) days prior to any modification or termination of coverage. Such insurance shall be primary to and not contributing with any insurance or self-insurance maintained by the City, shall name the City, its officers, officials, employees, representatives and agents, as additional insureds, shall be written on a comprehensive or commercial general liability insurance form, and shall include coverage for, but not limited to, Completed Operations, Premises/Project Site Operations, Products/Completed Operations, Contractual, Independent Contractors Broad Form Property Damage, and Personal Injury, with a per occurrence limit of not less than two million dollars ($2,000,000) written on an occurrence basis. -22- 20990502 7.16 Successors and Assigns. Subject to the limitations on transfer set forth in this Agreement, the provisions of this Agreement shall be binding upon and shall inure to the benefit of the Parties, and their respective successors, assigns and transferees. 7.17 Severability. If any provisions, conditions, or covenants of this Agreement, or the application thereof to any circumstances of either Party, shall be held invalid or unenforceable, the remainder of this Agreement or the application of such provision, condition, or covenant to persons or circumstances other than those as to whom or which it is held invalid or unenforceable shall not be affected thereby and shall be valid and enforceable to the fullest extent permitted by law. 7.18 Time of the Essence. Time is of the essence for each provision of this Agreement of which time is an element. 7.19 Waiver. No waiver of any provision of this Agreement shall be effective unless in writing and signed by the Party against whom enforcement of a waiver is sought and such waiver refers expressly to the Section containing the waived provision. No waiver of any right or remedy in respect of any occurrence or event shall be deemed a waiver of any right or remedy in respect of any other occurrence or event. 7.20 No Third Party Beneficiaries. There are no third party beneficiaries to this Agreement and this Agreement is not intended, and shall not be construed to benefit or be enforceable by any other persons or entities other than the Parties. 7.21 Expedited Processing. Developer and City agree to cooperate in the expedited processing of any legal action seeking mandamus, specific performance, declaratory relief or injunctive relief, to set court dates at the earliest practicable date(s) and not cause delay in the prosecution/defense of the action, provided such cooperation shall not require any Party to waive any rights. 7.22 Requests for Payment. With respect to any requests by the City for payment of amounts due under this Agreement, Developer retains its right to review any invoices or requests for payments submitted by the City pursuant to this Agreement. Developer shall review and reasonably approve such invoices or requests for payment or shall identify any disputed amounts within twenty (20) days after receipt. At Developer's request, the City shall provide Developer with reasonable information or back-up materials supporting such invoices or requests for payment at City offices, with reasonable notice, during business hours. In the event of any disputed invoices or requests for payment, Developer shall timely pay all amounts not disputed. 7.23 Entire Agreement. This Agreement and the documents, agreements and exhibits referenced herein or attached hereto set forth and contain the entire understandings and agreements of the parties, and there are no oral or written representations, understandings or ancillary covenants, undertakings or agreements which are not contained or expressly referred to herein and no testimony or evidence of any such representations, understandings, or covenants shall be admissible in any proceedings of any kind or nature to interpret or determine the provisions or conditions of this Agreement. 7.24 Conflict of Laws. With the exception of the Force Majeure provisions set forth in Section 7.3 hereof, it is agreed by the Parties that the obligations and conditions contained in the Existing Approvals and Mitigation Measures govern the development of the Excel Pointe Anaheim Property. To the extent that any provisions of this Agreement may conflict with any of the obligations, conditions or mitigations imposed on Developer pursuant to the Existing -23- 209905x12 Approvals and Mitigation Measures, the Existing Approvals and Mitigation Measures shall govern. 7.25 Legal Advice; Neutral Interpretation; Headings and Table of Contents. Each Party has received independent legal advice from its attorneys with respect to the advisability of executing this Agreement and the meaning of the provisions hereof. The provisions of this Agreement shall be construed as to their fair meaning, and not for or against any Party based upon any attribution to such Party as the source of the language in question. The headings and table of contents used in this Agreement are for the convenience of reference only and shall not be used in construing this Agreement. 7.26 Counterparts. This Agreement is executed in six duplicate originals, each of which is deemed to be an original. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first written below. "City" CITY OF ANAHEIM, a municipal corporation of the State of Califo 'a By: Tom Daly, Mk 209905x12 ATTEST: By: � ity Clerk' Date: APPROVED AS TO FORM: Date: -24- Jack White, City Attorney "Developer" EXCEL POINTE ANAHEIM LLC a Delaware limited liability company By: William J. Stone, Manager Date: 209905v12 APPROVED AS TO FORM: Nossaman, Guthner, Knox & Elliott LLP By: John Erskine, Esq. Date: -25- STATE OF CALIFORNIA ) ss. COUNTY OF ) On before me, , a Notary Public, personally appeared 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. Signature of Notary [Seal] STATE OF CALIFORNIA ) ss. COUNTY OF ) On before me, , a Notary Public, personally appeared 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. Signature of Notary [Seal] 20550502 STATE OF CALIFORNIA ss. COUNTY OF On before me, , a Notary Public, personally appeared 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. Signature of Notary [Seal] STATE OF CALIFORNIA } ss. COUNTY OF On before me, , a Notary Public, personally appeared 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. Signature of Notary [Seal] 2ossosvt2 ATTACHMENT NO. 2 LEGAL DESCRIPTIONS Melodyland Parcels: PARCEL A THE WEST 20 ACRES OF THE NORTHERLY 645.00 FEET OF THE SOUTHERLY 1320.00 FEET OF THE SOUTHEAST QUARTER OF SECTION 22, TOWNSHIP 4 SOUTH, RANGE 10 WEST, IN THE RANCHO SAN JUAN CAJON DE SANTA ANA, CITY OF ANAHEIM, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 51, PAGE 10 OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. EXCEPT THE WEST 720.00 FEET. ALSO EXCEPT THE NORTH 60.00 FEET. PARCEL B THAT PORTION OF THE SOUTHEAST QUARTER OF SECTION 22, TOWNSHIP 4 SOUTH, RANGE 10 WEST, IN THE RANCHO SAN JUAN CAJON DE SANTA ANA, IN THE CITY OF ANAHEIM, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 51, PAGE 10 OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY REORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHWEST CORNER OF SAID SOUTHEAST QUARTER; THENCE NORTH 675.00 FEET ALONG THE WEST LINE OF SAID SOUTHEAST QUARTER; THENCE EAST 833.51 FEET PARALLEL WITH THE SOUTH LINE OF SAID SOUTHEAST QUARTER TO THE TRUE POINT OF BEGINNING; THENCE SOUTH 00 16' 30" EAST 675.11 FEET TO A POINT, SAID POINT BEING ALSO THE SOUTHEASTERLY CORNER OF THE LAND DESCRIBED IN DEED TO ALWYN S. JEWELL AND LUCILLE G. JEWELL, RECORDED OCTOBER 5, 1979 IN BOOK 4912, PAGE 102, OFFICIAL RECORDS; THENCE EAST 486.49 FEET ALONG THE SOUTH LINE OF SAID SOUTHEAST QUARTER TO THE SOUTHEAST CORNER OF LAND CONVEYED TO DONALD F. REA BY DEED RECORDED DECEMBER 1, 1958 IN BOOK 4521, PAGE 453, OF OFFICIAL RECORDS; THENCE NORTH 675.00 FEET ALONG THE EAST LINE OF SAID LAND CONVEYED TO REA, TO THE NORTHEAST CORNER THEREOF; THENCE WEST ALONG THE NORTH LINE OF SAID LAND OF REA TO THE TRUE POINT OF BEGINNING. Attachment No. 2 (Page 1) EXCEPT THE WEST 292.00 FEET THEREOF. ALSO EXCEPT THE SOUTH 360.00 FEET THEREOF. Hasenyager Parcel: LOT 3 OF TRACT NO. 3330, IN THE CITY OF ANAHEIM, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 113, PAGES 21 AND 22 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA. Zaby's Parcel: LOTS 1 AND 2 OF TRACT 3330, IN THE CITY OF ANAHEIM, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 113, PAGES 21 AND 22 OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. EXCEPT THEREFROM THAT PORTION CONVEYED TO THE CITY OF ANAHEIM BY DEED RECORDED JULY 30, 1997 AS INSTRUMENT NO. 97- 0359942, OFFICIAL RECORDS. Berger Parcel: LOTS 4 AND 5 OF TRACT NO. 3330, IN THE CITY OF ANAHEIM, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 113, PAGES 21 AND 22 OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. Rist Parcel: PARCEL l: THE WEST 292 FEET OF THAT PORTION OF THE SOUTHEAST QUARTER OF SECTION 22, IN TOWNSHIP 4 SOUTH, RANGE 10 WEST, IN THE RANCHO SAN JUAN CAJON DE SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP THEREOF RECORDED IN BOOK 51, PAGE 10, MISCELLANEOUS MAPS, RECORDS OF SAID ORANGE COUNTY, DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHWEST CORNER OF SAID SOUTHEAST QUARTER; THENCE NORTH 675.00 FEET ALONG THE WEST LINE OF Attachment No. 2 (Page 2) SAID SOUTHEAST QUARTER; THENCE EAST 833.51 FEET PARALLEL WITH THE SOUTH LINE OF SAID SOUTHEAST QUARTER TO THE TRUE POINT OF BEGINNING; THENCE SOUTH 00 16' 30" EAST 675.11 FEET TO A POINT, SAID POINT BEING ALSO THE SOUTHEASTERLY CORNER OF THE LAND DESCRIBED IN DEED TO ALWYN S. JEWEL AND LUCILLE G. JEWELL, RECORDED OCTOBER 5, 1959 IN BOOK 4912, PAGE 102, OFFICIAL RECORDS; THENCE EAST ALONG THE SOUTH LINE OF SAID SOUTHEAST QUARTER, 486.49 FEET TO THE SOUTHEAST CORNER OF LAND CONVEYED TO DONALD F. REA BY DEED RECORDED DECEMBER 1, 1958 IN BOOK 4521, PAGE 543, OFFICIAL RECORDS; THENCE NORTH ALONG THE EAST LINE OF SAID LAND CONVEYED TO REA, 675.00 FEET TO THE NORTHEAST CORNER THEREOF; THENCE WEST ALONG THE NORTH LINE OF SAID LAND OF REA TO THE TRUE POINT OF BEGINNING; EXCEPT THEREFROM THE WEST 150 FEET OF THE SOUTH 360 FEET; ALSO EXCEPT THEREFROM THE SOUTH 60 FEET INCLUDED WITHIN KATELLA AVENUE, 120 FEET WIDE. Parcel 2 THAT PORTION OF THE SOUTHEAST QUARTER OF SECTION 22, TOWNSHIP 4 SOUTH, RANGE 10 WEST, IN THE RANCHO SAN JUAN CAJON DE SANTA ANA, IN THE CITY OF ANAHEIM, AS SHOWN ON A MAP THEREOF RECORDED IN BOOK 51, PAGE 10 MISCELLANEOUS MAPS, RECORDS OF SAID ORANGE COUNTY, DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHWEST CORNER OF SAID SOUTHEAST QUARTER; THENCE NORTH 675.00 FEET ALONG THE WEST LINE OF SAID SOUTHEAST QUARTER; THENCE EAST 833.51 FEET PARALLEL WITH THE SOUTH LINE OF SAID SOUTHEAST QUARTER TO THE TRUE POINT OF BEGINNING; THENCE SOUTH 00 16' 30" EAST 675.11 FEET TO A POINT, SAID POINT BEING ALSO THE SOUTHEASTERLY CORNER OF THE LAND DESCRIBED IN DEED TO ALWYN S. JEWELL AND LUCILLE G. JEWELL, RECORDED OCTOBER 5, 1959 IN BOOK 4912, PAGE 102, OFFICIAL RECORDS; THENCE EAST ALONG THE SOUTH LINE OF SAID SOUTHEAST QUARTER, 486.49 FEET TO THE SOUTHEAST CORNER OF LAND CONVEYED TO DONALD F. REA, BY DEED RECORDED DECEMBER 1, 1958 IN BOOK 4521, PAGE 543, OFFICIAL RECORDS; THENCE NORTH ALONG THE EAST LINE OF SAID LAND CONVEYED TO REA, 675.00 FEET TO THE NORTHEAST CORNER THEREOF; THENCE WEST ALONG THE NORTH LINE OF SAID LAND OF REA TO THE TRUE POINT OF BEGINNING. EXCEPT THEREFROM THE SOUTH 60.00 FEET INCLUDED WITHIN KATELLA AVENUE, 120.00 FEET WIDE. Attachment No. 2 (Page 3) ALSO EXCEPT THEREFROM THE NORTH 315 FEET. ALSO EXCEPT THEREFROM THE WEST 292 FEET. Ursini Parcel: THAT PORTION OF THE SOUTHEAST QUARTER OF SECTION 22, TOWNSHIP 4 SOUTH, RANGE 10 WEST, IN THE CITY OF ANAHEIM, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 51, PAGE 10 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHWEST CORNER OF SAID SOUTHEAST QUARTER; THENCE NORTH 675.00 FEET ALONG THE WEST LINE OF SAID SOUTHEAST QUARTER; THENCE EAST 833.51 FEET PARALLEL WITH THE SOUTH LINE OF SAID SOUTHEAST QUARTER; THENCE SOUTH 00 16' 30", EAST 675.11 FEET TO THE TRUE POINT OF BEGINNING, SAID POINT ALSO BEING THE SOUTHEASTERLY CORNER OF THE LAND DESCRIBED IN DEED TO ALWYN S. JEWELL AND LUCILLE G. JEWELL, RECORDED OCTOBER 5, 1959 IN BOOK 4912, PAGE 102 OF OFFICIAL RECORDS; THENCE NORTH 00 16' 30" WEST, 360.00 FEET ALONG THE EASTERLY LINE OF SAID LAND; THENCE EAST 150.00 FEET PARALLEL WITH THE SOUTHERLY LINE OF SAID SOUTHEAST QUARTER; THENCE SOUTH 00 16' 30" EAST, 360.00 FEET PARALLEL WITH SAID EASTERLY LINE OF THE LAND CONVEYED TO JEWELL TO THE SOUTHERLY LINE OF SAID SECTION; THENCE WEST ALONG THE SOUTHERLY LINE OF SAID SECTION 150.00 FEET TO THE TRUE POINT OF BEGINNING. EXCEPTING THEREFROM, THAT PORTION OF SAID PROPERTY LYING SOUTHERLY OF THE NORTHERLY LINE OF THAT CERTAIN FINAL ORDER OF CONDEMNATION DATED JANUARY 30, 1998, CASE NO. 782833 OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, A CERTIFIED COPY OF WHICH WAS RECORDED FEBRUARY 9, 1998 AS INSTRUMENT NO. 19980071981 OF OFFICIAL RECORDS. City Parcel: THE NORTHERLY 280.35 FEET OF PARCEL 1, IN THE CITY OF ANAHEIM, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A PARCEL MAP FILED IN BOOK 55, PAGE 46 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. Attachment No. 2 (Page 4) Pyrovest Parcels: PARCEL 1: THE EAST 660.00 FEET OF THE WEST 720.00 FEET OF THE NORTH 585.00 FEET OF THE SOUTH 1260 FEET OF THE SOUTHEAST QUARTER OF SECTION 22, TOWNSHIP 4 SOUTH, RANGE 10 WEST, IN THE RANCHO SAN JUAN CAJON DE SANTA ANA, IN THE CITY OF ANAHEIM, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 51, PAGE 10 OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. EXCEPTING THEREFROM, THE FOLLOWING DESCRIBED PROPERTY: BEGINNING AT A POINT SOUTH 00 13' 22" EAST 15.03 FEET FROM THE NORTHWEST CORNER OF THE ABOVE DESCRIBED PROPERTY SAID POINT BEING ON THE EASTERLY LINE OF HARBOR BOULEVARD 120 FEET WIDE; THENCE SOUTH 00 13' 22" EAST ALONG SAID EASTERLY LINE 100.08 FEET; THENCE NORTH 890 54' 30" EAST PARALLEL TO THE NORTHERLY LINE OF ABOVE DESCRIBED PARCEL 111.34 FEET; THENCE NORTH 00 13' 22" WEST, PARALLEL TO THE EASTERLY LINE OF HARBOR BOULEVARD 30.75 FEET; THENCE NORTH 890 54' 38" EAST 38.66 FEET; THENCE NORTH 00 13' 22" WEST 84.36 FEET TO A POINT ON THE SOUTHERLY LINE OF FREEDMAN WAY, 60.00 FEET WIDE; THENCE ALONG THE SOUTH LINE OF SAID FREEDMAN WAY, SOUTH 890 54' 30" WEST 134.97 FEET TO THE BEGINNING OF A CURVE CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 15.00 FEET; THENCE WESTERLY AND SOUTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 900 07' 52" A LENGTH OF 23.60 FEET TO THE TRUE POINT OF BEGINNING OF THIS DESCRIPTION. PARCEL 2: BEGINNING AT A POINT SOUTH 00 13' 22" EAST 15.03 FEET FROM THE NORTHWEST CORNER OF THE ABOVE DESCRIBED PROPERTY SAID POINT BEING ON THE EASTERLY LINE OF HARBOR BOULEVARD 120 FEET WIDE; THENCE SOUTH 00 13' 22" EAST ALONG SAID EASTERLY LINE 100.08 FEET; THENCE NORTH 890 54' 30" EAST PARALLEL TO THE NORTHERLY LINE OF ABOVE DESCRIBED PARCEL 111.34 FEET; THENCE NORTH 00 13' 22" WEST, PARALLEL TO THE EASTERLY LINE OF HARBOR BOULEVARD 30.75 FEET; THENCE NORTH 890 54' 38" EAST 38.66 FEET; THENCE NORTH 00 13' 22" WEST 84.36 FEET TO A POINT ON THE SOUTHERLY LINE OF FREEDMAN WAY, 60.00 FEET WIDE; THENCE ALONG THE SOUTH LINE OF SAID FREEDMAN WAY, SOUTH 990 54 1 30" WEST 134.97 FEET TO THE BEGINNING OF A CURVE CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 15.00 FEET; THENCE WESTERLY AND SOUTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 900 07' 52" A LENGTH OF 23.60 FEET TO THE TRUE POINT OF BEGINNING OF THIS DESCRIPTION. Attachment No. 2 (Page 5) STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF ANAHEIM ) I, SHERYLL SCHROEDER, City Clerk of the City of Anaheim, do hereby certify that the foregoing Ordinance No. 5808 was introduced at a regular meeting of the City Council of the City of Anaheim, held on the 26th day of February, 2002, and that the same was duly passed and adopted at a regular meeting of said City Council held on the 19th day of March, 2002, by the following vote of the members thereof: AYES: MAYOR/COUNCIL MEMBERS: Feldhaus, Kring, Tait, McCracken, Daly NOES: MAYOR/COUNCIL MEMBERS: None ABSENT: MAYOR/COUNCIL MEMBERS: None ABSTAINED: MAYOR/COUNCIL MEMBERS: None CITY CLEAK OF THE CITY OF ANAHEIM (SEAL) AFFIDAVIT OF PUBLICATION STATE OF CALIFORNIA, ) > ss. County of Orange ) I am a citizen of the United States and a resident of the County aforesaid; I am over the age of eighteen years, and not a party to or interested in the above entitled matter. I am the principal clerk of the Anaheim Bulletin, a newspaper that has been adjudged to be a newspaper of general circulation by the Superior Court of the County of Orange, State of California, on December 28, 1951, Case No. A-21021 in and for the City of Anaheim, County of Orange, State of California; that the notice, of which the annexed is a true printed copy, has been published in each regular and entire issue of said newspaper and not in any supplement thereof on the following dates, to wit: March 28, 2002 A certify (or declare) under the penalty of perjury under the laws of the State of California that the foregoing is true and correct": Executed at Santa Ana, Orange County, California, on Date_ _ March 28, 2002 j4 Signature Anaheim Bulletin 625 N. Grand Ave. Santa Ana, CA 92701 (714) 796-7000 ext. 3002 PROOF OF PUBLICATION RECEIVED This space is for the Coun Clerk's Filing Stamp I�1 MAR 2q P 3: 4q; OFFICE OF CITY CLERK CITY OF ANAHEIM J p:. J Article 2.5 of Chaplet 4 of Million 1 of TNe 7 of the Govern - is oWW a defteCode rR agrgreemeM in to enter � establish which what reguktfone iN gavem the corehtruction d a develop- meM. This a *Mp* le the *04 wMildnWrtt to the oAi�inat No. 99{!t, de6atl,Iu"210 to entitleN 96 and fr atijer etYe o plementetom1Dsvelopriietril�� Pointe Anaheim prcrjeo4. The M Agtlement addresees devslppeNMof an area witvn the Anat+srn tiawrCekeatotei in 29.t sores w11t+ on t o as* side of BhAd., •outr s of ay, u+e weflt of ClenettNhe Sbeet and the north epde of Kdalle Ave iue. The uropaeetl*d pris up to t,M holef rooms and 540, square feet of retail space In up to %a phases. The tame of a Disposition and Development Agreement re- quiro Points Arehekri b aitow trp to 77ft M to 6e used fix Comreniton Certter parltlo==k- 991 dedosvt are weekends. Adel oonditbms d epr .. ..1 s.w• Ml rsi. J.�a.wlwi.rurh if\/MldiWlli!_ site ac - m I, Sreh�eryrosll Schroeder, City Clerk of the CiGtqyr of Anaheim, do No. 5808 which Ordinance thatilheb a sWr4rrery of Qdiaanoe 5608 wq�lrrtroduyad eta regular mes t- ing of the Cita Council d the G of Amite an the Wf�ab�riq�sid CourgN�on� daY d�Yra at 2002 by the fblko* ng rb11 call vas d.the nVettfbere threeof: AYES: AteCnordr= Councll Members: Feldhaus, l4ing; en, Taft NOES: Pone ABSENT: None leer ccpaft 0 tied bDrdlenN dewA pIll of the 5W =, ptxsuaMtoSector►6mill toof the` p e��i4h�fbe To obtain a oopY of the fuft.tmd of the. con 8:00 A dNNt,ra fo this=' I 8:00 AM erpd 3:00 PM, ts�8h M no chwp for the copy. Published: Ateheim Mai March 28, 2002 25.405 5068504 AFFIDAVIT OF PUBLICATION STATE OF CALIFORNIA, ) ) Ss. County of Orange ) I am a citizen of the United States and a resident of the County aforesaid; I am over the age of eighteen years, and not a party to or interested in the above entitled matter. I am the principal clerk of The Orange County Register, a newspaper of general circulation , published in the city of Santa Ana, County of Orange, and which newspaper has been adjudged to be a newspaper of general circulation by the Superior Court of the County of Orange , State of California, under the date of November 19, 1905, Case No. A-21046, that the notice, of which the annexed is a true printed copy, has been published in each regular and entire issue of said newspaper and not in any supplement thereof on the following dates, to wit: March 29, 2002 "I certify (or declare) under the penalty of perjury under the laws of the State of California that the foregoing is true and correct": Executed at Santa Ana, Orange County, California, on Date: March 29 2062 Signature The Orange County Register 625 N. Grand Ave. Santa Ana, CA 92701 (714) 796-7000 ext. 3002 PROOF OF PUBLICATION This space is i Stamp ononuarotlt . tNlos AN ORDMiANCE OF THE CITY OF ANAHEIM (pp AP. PROVING FIRST AMENDED AND RESTATED DEVELOP - OMI BY A �{ eMENt N THO. EE CITY OF SM AND EX- CEL ANAHEIM, LLC, ( ENS ONAIE �.r TO, an AUTfMC- SIG THE MAY TO EXECUTE �� 7 SAID AGREEMENT FOR CITY BEHALF BEHAOF THE Article 2.8 of 0 vision t of Title emment Code City to enter Ir mint awes" Prow of tubi in t and the Aar 4.otDi- �f the Gov- Ahorbw a a� aann - el or equi- nditlorfs of TN* ordi- i AlneffdW ot, fm- ad - The Development Agree - meet addresses mens of an Ineg - R a�rtigwithin totukg ap- pprrowmMNy a8.1 acres with frgriTagas on the east aide of Harbor BIW., the south side Of of CW" north and the !' north side of Katella Avenue P Pdesbibed therein 'Escel Points Anaheim a. fhe.PoiMO Anshelm Over- lay. The proposedprod In- cludes up to 1,822 hotel rooms and 690,000 square feet of retell and aquarium end 4 Bin u: �i five Phases park ng Z.0 q a The terms of First Amended I and Restated Devsllopment N Prcved , Wm= it afflff �-b. 1eWrn doned kir theM the Co tG rnmensament opj%,- Eft"E lnn..at a,. b*W 9r— vim .fro Developer to pro - tie, Censer public arr{qa .t^ fthn Parking, Faoi b con- sbucted by pavak�par end (iii) anise, mio en op.a= ate