RES-2007-238RESOLUTION NO. 2007 -238
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF ANAHEIM APPROVING AN AMENDMENT TO THE
STANDARD DEVELOPMENT AGREEMENT FOR THE
PLATINUM TRIANGLE (MISCELLANEOUS CASE NO.
2007 00203)
WHEREAS, The Platinum Triangle comprises approximately 820 acres located at
the confluence of the Interstate 5 Freeway and the SR -57 Freeway in the City of Anaheim,
County of Orange, State of California, generally east of the Interstate 5 Freeway, west of the
Santa Ana River channel and SR -57 Freeway, south of the Southern California Edison easement,
and north of the Anaheim City limit area and which area is further depicted in "Figure LU -5:
Areas of the City with Special Density Limitations" of the City of Anaheim General Plan and
which Figure is incorporated herein as if set forth in full; and
WHEREAS, the adopted General Plan envisions The Platinum Triangle as a
thriving economic center that provides residents, visitors and employees with a variety of
housing, employment, shopping and entertainment opportunities that are accessed by arterial
highways, transit systems and pedestrian promenades (set forth in Goal 15.1 of the Land Use
Element); and
WHEREAS, the recently adopted General Plan includes policies in the Land Use
Element and the Community Design Element to implement the vision for The Platinum Triangle
including providing for more detailed planning efforts to guide the future development of The
Platinum Triangle; encouraging mixed -use projects integrating retail, office and higher density
residential land uses; encouraging a regional inter -modal transportation hub in proximity to
Angel Stadium of Anaheim; maximizing and capitalizing upon the view corridor from the Santa
Ana (I -5) and Orange (SR -57) Freeways; maximizing views and recreation and development
opportunities afforded by the area's proximity to the Santa Ana River; developing a
comprehensive Mixed -Use Overlay Zone and Design Guidelines to implement the vision for The
Platinum Triangle; providing for a mix of quality, high density urban housing that is integrated
into the area through carefully maintained pedestrian streets, transit connections, and arterial
access; developing a Public Realm Landscape and Identity Program to enhance the visibility and
sense of arrival into The Platinum Triangle through peripheral view corridors, gateways, and
specialized landscaping; developing a strong pedestrian orientation throughout the area,
including wide sidewalks, pedestrian paths, gathering places, ground -floor retail, and street -level
landscaping; encouraging extensive office development along the highly visible periphery of the
area to provide a quality employment center; developing criteria for comprehensive property
management agreements for multiple family residential projects to ensure proper maintenance as
the area develops; and, identifying and pursuing opportunities for open space areas that serve the
recreational needs of The Platinum Triangle residents and employees; and
WHEREAS, on August 17, 2004, the City Council of the City of Anaheim
adopted The Platinum Triangle Master Land Use Plan by Resolution No. 2004 -178 and The
Platinum Triangle Standardized Development Agreement by Resolution No. 2004 -179 and on
August 24, 2004, the City Council adopted the Platinum Triangle Mixed Use (PTMU) Overlay
Zone by Ordinance No. 5935; and
WHEREAS, The Platinum Triangle Master Land Use Plan provides for the
implementation of the General Plan vision, goals and policies for The Platinum Triangle and will
serve as a blueprint for future development and street improvements within The Platinum
Triangle, including setting forth planning principles, development intensities, conceptual street,
park and potential new signalized intersection locations and streetscape designs including, but
not limited to, landscaping, lighting fixtures and street furniture and by identifying the existing
Amtrack/Metrolink Station and the conceptual Anaheim Regional Transportation Intermodal
Center (ARTIC) location; and
WHEREAS, on October 25, 2005, the City Council of the City of Anaheim, by its
Resolution No. 2005 -210, approved an amendment to The Platinum Triangle Standardized
Development Agreement; and
WHEREAS, on February 13, 2007, the City Council initiated (i) General Plan
Amendment No. 2007 00454; (ii) Zoning Code Amendment No. 2007 00056; (iii) an
amendment to The Platinum Triangle Master Land Use Plan (MIS2007- 00188); (iv)
Reclassification No. 2007 00196; (v) an amendment to The Platinum Triangle Standardized
Development Agreement (MIS2007- 00203); and (vi) further discretionary actions described in
Draft Subsequent Environmental Impact Report No. 2006 -00334 (the "Draft SEIR pertaining
to The Platinum Triangle (herein collectively referred to as the "Project and
WHEREAS, said amendment to The Platinum Triangle Standardized
Development Agreement proposes to (i) approve minor revisions, editorial refinements and
updated fees for The Platinum Triangle Standardized Development Agreement as shown in
Exhibit "A" attached hereto and incorporated herein by this reference; and (ii) approve a separate
standardized Development Agreement form for the Office District of the Platinum Triangle
Mixed Use (PTMU) Overlay Zone as shown in Exhibit `B" attached hereto and incorporated
herein by this reference; and
WHEREAS, the City Planning Commission did hold a public hearing at the Civic
Center in the City of Anaheim on December 10, 2007, at 2:30 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 18.60 (Procedures), to hear and consider evidence for and against the
proposed amendment to The Platinum Triangle Standardized Development Agreement (MIS
2007 00203) and to investigate and make findings and recommendations in connection
therewith; and
WHEREAS, on December 10, 2007, said Commission, after due inspection,
investigation and study made by itself and in its behalf, and after due consideration of all oral
and written evidence and reports offered at said hearing, did make a motion recommending that
the City Council approve the proposed amendment to The Platinum Triangle Standardized
Development Agreement (MIS 2007 00203); and
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WHEREAS, the Anaheim City Planning Commission has reviewed the proposed
amendment to The Platinum Triangle Standardized Development Agreement (Miscellaneous
Case No. 2007 00203), and did find and determine and recommend, by its Resolution, that the
City Council, based upon its independent review of Final Supplemental Environmental Impact
Report No. 334 "Final SEIR and unless additional or contrary information is received during
the City Council's public hearing on the Project, certify the Final SEIR and adopt the Statement
of Findings of Fact and Statement of Overriding Considerations and the Updated and Modified
Mitigation Monitoring Program No. 106B, a copy of each of which is on file with the Planning
Department and which are incorporated herein by this reference as if set forth in full, and
determine that said Final SEIR, together with the Statement of Findings of Fact and Statement of
Overriding Considerations and the Updated and Modified Mitigation Monitoring Program No.
106B, fully complies with CEQA, reflects the independent judgment of the City Council and is
adequate to serve as the required environmental documentation for said amendment to The
Platinum Triangle Standardized Development Agreement, and that no further environmental
documentation need be prepared for said amendment; and
WHEREAS, the City Council has reviewed the proposed revisions to The
Platinum Triangle Standardized Development Agreement as shown in Exhibit "A" and the
separate standardized Development Agreement form to be required for development in the
Office District of the Platinum Triangle Mixed Use (PTMU) Overlay Zone as shown in Exhibit
"B and
WHEREAS, pursuant to the provisions of the California Environmental Quality
Act "CEQA the City Council, as lead agency for the amendment to The Platinum Triangle
Standardized Development Agreement (Miscellaneous Case No. 2007 00203), by its Resolution,
did find and determine, based upon its independent review and consideration of an Initial Study
conducted pursuant to CEQA for said amendment to The Platinum Triangle Standardized
Development Agreement, and the requirements of CEQA, including Section 21166 of the
California Public Resources Code and Section 15162 of the CEQA Guidelines, and the
recommendations of the Anaheim City Planning Commission and the evidence received at the
public hearing, that Final SEIR No. 2006 00334, including the Statement of Findings of Fact and
Statement of Overriding Considerations and Mitigation Monitoring Program No. 106B for The
Platinum Triangle Expansion, are adequate to serve as the required environmental documentation
for said amendment to The Platinum Triangle Standardized Development Agreement and satisfy
all of the requirements of CEQA, and that no further environmental documentation need be
prepared for said amendment.
NOW, THEREFORE, BE IT RESOLVED by City Council of the City of
Anaheim that the City Council does hereby approve the form and substance of the amendments
to The Platinum Triangle Standardized Development Agreement as shown in Exhibit "A" and
Exhibit `B" attached hereto.
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THE FOREGOING RESOLUTION is approved and adopted by the City Council
of the City of Anaheim this nth day of December 2007, by the following roll call vote:
AYES: Mayor Pringle, Council Members Hernandez, Sidhu, Kring
NOES: Council Member Galloway
ABSENT: NONE
ABSTAIN: NONE
ATTEST:
CI Y CLERK OF THE
67362.v1 /MGordon
OF ANAHEIM
CITY OF ANAHEIM
By
MA OR OF THE ITY F ANAHEIM
4
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
City Council
City of Anaheim
c/o City Clerk
P.O. Box 3222
Anaheim, California 92805
(Space Above Line For Recorder's Use)
DEVELOPMENT AGREEMENT NO.
BETWEEN
THE CITY OF ANAHEIM
AND
Exhibit "A"
Platinum Triangle Standardized Development Agreement Form
Mixed Use Districts
DEVELOPMENT AGREEMENT NO.
BETWEEN
THE CITY OF ANAHEIM
AND
TABLE OF CONTENTS
PAGE
RECITALS 1
Section 1. DEFINITIONS 5
1.1 Assessment District 5
1.2 Authorizing Ordinance 5
1.3 City
1.4 Development 5
1.5 Development Agreement 6
1.6 Development Agreement Date 6
1.7 Development Agreement Statute 6
1.8 Development Approvals 6
1.9 Enabling Ordinance 6
1.10 Existing Land Use Regulations 6
1.11 Final Site Plan 7
1.12 Gross Floor Area/GFA 7
1.13 Interim Development Fees 7
1.14 Mortgage 7
1.15 Mortgagee 7
1.16 Owner 7
1.17 Parking Areas 7
1.18 Permitted Development 7
1.19 Platinum Triangle 7
1.20 Procedures Resolution 7
1.21 Project 7
1.22 Property 8
1.23 Support Commercial Uses 8
1.24 Term 8
1.25 Zoning Code 8
Section 2. TERM 8
Section 3. BINDING COVENANTS 8
Section 4. EFFECT OF AGREEMENT 9
i
Section 5. PROJECT LAND USES 9
Section 6. PERMITTED DEVELOPMENT 9
6.1 Description of Permitted Buildings 9
6.2 Parking Areas 9
Section 7. DENSITY OF PERMITTED BUILDINGS 10
Section 8. ENFORCEMENT 10
Section 9. PUBLIC IMPROVEMENTS AND SERVICES 10
9.1 Public Park 11
9.2 Utilities (Water, Electrical, Gas, Sewer, Drainage) 11
9.2.1 Water Service 11
9.2.2 Sanitary Sewer and Storm Drains 11
9.3 Timing, Phasing and Sequence of Public Improvements and Facilities 12
9.4 Traffic Circulation Improvements 12
Section 10. REIMBURSEMENT PROVISION 12
Section 11. DEDICATIONS AND EXACTIONS 12
Section 12. FEES, TAXES AND ASSESSMENT 12
12.1 Fees, Taxes and Assessments 12
12.2 Platinum Triangle Interim Development Fees 12
12.2.1 Electrical Utilities Undergrounding Fee 13
12.2.2 General Plan and Environmental Processing Fee 13
12.2.3 Library Facilities Fee 13
12.3 Excluded Development Fees 13
12.3.1 Water Utilities Fees 13
12.3.2 Electrical Utilities Fees 13
12.3.3 City Processing Fees 13
12.4 Platinum Triangle Infrastructure and /or Maintenance Assessment District 13
12.5 Accounting of Funds 14
12.6. Imposition of Increased Fees, Taxes or Assessments 14
Section 13. COVENANTS, CONDITIONS AND RESTRICTIONS 14
Section 14. NEXUS /REASONABLE RELATIONSHIP CHALLENGES 14
Section 15. TIMING OF DEVELOPMENT 14
Section 16. EXISTING USES 15
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Section 17. FUTURE APPROVALS 15
17.1 Basis for Denying or Conditionally Granting Future Approvals 15
17.2 Standard of Review 15
17.3 Future Amendments to Final Site Plan 15
Section 18. AMENDMENT 15
18.1 Initiation of Amendment 16
18.2 Procedure 16
18.3 Consent 16
18.4 Amendments 16
18.5 Effect of Amendment to Development Agreement 16
Section 19. NON CANCELLATION OF RIGHTS 16
Section 20. BENEFITS TO CITY 16
Section 21. BENEFITS TO OWNER 17
Section 22. UNDERTAKINGS AND ASSURANCES CONTEMPLATED AND
PROMOTED BY DEVELOPMENT AGREEMENT STATUTE 17
Section 23. RESERVED AUTHORITY 17
23.1 State and Federal Laws and Regulations 17
23.2 Model Codes 18
23.3 Public Health and Safety 18
Section 24. CANCELLATION 18
24.1 Initiation of Cancellation 18
24.2 Procedure 18
24.3 Consent of OWNER and CITY 18
Section 25. PERIODIC REVIEW 18
25.1 Time for Review 18
25.2 OWNER's Submission 19
25.3 Findings 19
25.4 Initiation of Review by City Council 19
Section 26. EVENTS OF DEFAULT 19
26.1 Defaults by OWNER 19
26.2 Specific Performance Remedy 20
26.3 Liquidated Damages Remedy 20
Section 27. MODIFICATION OR TERMINATION 20
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27.1 Notice to OWNER 21
27.2 Public Hearing 21
27.3 Decision 21
27.4 Standard of Review 21
27.5 Implementation 21
27.6 Schedule for Compliance 21
Section 28. ASSIGNMENT 21
28.1 Right to Assign 22
28.2 Release upon Transfer 22
Section 29. NO CONFLICTING ENACTMENTS 23
Section 30. GENERAL 23
30.1 Force Majeure 23
30.2 Construction of Development Agreement 23
30.3 Severability 23
30.4 Cumulative Remedies 24
30.5 Hold Harmless Agreement 24
30.6 Cooperation in the Event of Legal Challenge 24
30.7 Public Agency Coordination 25
30.8 Initiative Measures 25
30.9 Attorneys' Fees 25
30.10 No Waiver 25
30.11 Authority to Execute 25
30.12 Notice 26
30.12.1 To Owner 26
30.12.2 To City 26
30.13 Captions 27
30.14 Consent 27
30.15 Further Actions and Instruments 27
30.16 Subsequent Amendment to Authorizing Statute 27
30.17 Governing Law 27
30.18 Effect on Title 27
30.19 Mortgagee Protection 27
30.20 Notice of Default to Mortgagee, Right of Mortgagee to Cure 28
30.21 Bankruptcy 28
30.22 Disaffirmance 28
30.23 No Third Party Beneficiaries 29
30.24 Project as a Private Undertaking 29
30.25 Restrictions 29
30.26 Recitals 29
30.27 Recording 29
30.28 Title Report 29
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Exhibit "A"
Exhibit "B"
Exhibit "C"
Exhibit "D"
Exhibit "D -1"
Exhibit "D -2"
Exhibit "D -3"
Exhibit "E"
Exhibit "F"
30.29 Entire Agreement 30
30.30 Successors and Assigns 30
30.31 OWNER's Title of Property 30
30.32 Exhibits 30
LIST OF EXHIBITS
Legal Description of the Property
Final Site Plan
Conditions of Approval
Platinum Triangle Interim Development Fees
Electrical Utilities Undergrounding Fee
General Plan and Environmental Processing Fee
Library Facilities Fee
Development Requirements and Maintenance Obligations
Preliminary Title Report
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RECITALS
DEVELOPMENT AGREEMENT NO. 2007 -00002
BETWEEN
THE CITY OF ANAHEIM
AND
This Development Agreement is entered into this day of 20_, by
and between the City of Anaheim, a charter city and municipal corporation, duly organized and
existing under the Constitution and laws of the State of California (hereinafter "CITY
and (referred to herein as "OWNER pursuant to the authority set
forth in Article 2.5 of Chapter 4 of Division 1 of Title 7, Sections 65864 through 65869.5 of the
California Government Code (the "Development Agreement Statute
This Development Agreement is predicated upon the following facts:
A. To strengthen the public planning process, encourage private participation in
comprehensive planning, and reduce the economic risk of development, the Legislature of the
State of California adopted the Development Agreement Statute, Sections 65864, et seq., of the
Government Code. The Development Agreement Statute authorizes CITY to enter into binding
development agreements with persons having legal or equitable interests in real property for the
development of such property in order to, among other things: encourage and provide for the
development of public facilities in order to support development projects; provide certainty in the
approval of development projects in order to avoid the waste of resources and the escalation in
project costs and encourage investment in and commitment to comprehensive planning which
will make maximum efficient utilization of resources at the least economic cost to the public;
provide assurance to the applicants of development projects (1) that they may proceed with their
projects in accordance with existing policies, rules and regulations, subject to the conditions of
approval of such projects and provisions of such development agreements, and (2) encourage
private participation in comprehensive planning and reduce the private and public economic
costs of development.
B. These Recitals refer to and utilize certain capitalized terms which are defined in this
Development Agreement. The parties intend to refer to those definitions in conjunction with the
use thereof in these Recitals.
C. On May 25, 2004, the Anaheim City Council approved General Plan Amendment No.
2004 -00419 setting forth the City's vision for development of the City of Anaheim (the "General
Plan Amendment and certified Final Environmental Impact Report No. 330, adopting Findings
of Fact and a Statement of Overriding Considerations, and associated Mitigation Monitoring
Plans "FEIR No. 330 in conjunction with its consideration and approval of the General Plan
Amendment, amendment of CITY's zoning code, and a series of related actions.
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D. CITY desires that the approximately 820 -acre area generally bounded by the Santa
Ana River on the east, the Anaheim City limits on the south, the Santa Ana Freeway (Interstate 5)
on the west, and the Southern California Edison Company Easement on the north (hereinafter
called "The Platinum Triangle Area be developed as a combination of high quality industrial,
office, commercial and residential uses, as envisioned in the General Plan Amendment.
E. In order to carry out the goals and policies of the General Plan for The Platinum
Triangle, on May 25, 2004, the City Council approved The Platinum Triangle Master Land Use
Plan, setting forth the new vision for The Platinum Triangle.
F. To further implement the goals and policies of the General Plan for The Platinum
Triangle, the City Council has established The Platinum Triangle Mixed -Use (PTMU) Overlay
Zone (hereinafter the "PTMU Overlay Zone consisting of approximately three hundred and
eighty -nine acres within The Platinum Triangle as depicted in The Platinum Triangle Master
Land Use Plan to provide opportunities for high quality well designed development projects that
could be stand -alone projects or combine residential with non residential uses including office,
retail, business services, personal services, public spaces and uses, and other community
amenities within the area.
G. On October 25, 2005, the Anaheim City Council certified Final Subsequent
Environmental Impact Report No. 332, adopting a Statement of Findings of Fact, a Statement of
Overriding Considerations and the Updated and Modified Mitigation Monitoring Program No.
106A "FSEIR No. 332 to provide for the implementation of the Platinum Triangle Master
Land Use Plan, in conjunction with its consideration and approval of General Plan Amendment
NB "FSEIR No. 334 in conjunction with its consideration and approval of General Plan
Amendment No. 2007 -00454 and an amendment to the Platinum Triangle Master Land Use Plan
(Miscellaneous Case No. 2007 00188) to increase the maximum number of dwelling units
permitted in The Platinum Triangle to 18,363 dwelling units, increase the maximum number of
commercial square footage to 5,657,847, increase the maximum number of office square footage
to 16,519,015 and add 1,500,000 square feet of square footage of institutional land uses.
I. OWNER represents that it owns in fee approximately acres of real
property located at in the City of Anaheim, County of Orange (hereinafter
"County State of California, (hereinafter collectively called the "Property") in The Platinum
Triangle and zoned PTMU Overlay and more particularly shown and described on Exhibit "A"
attached hereto and made a part hereof by this reference.
J. OWNER desires to develop the Property in accordance with the provisions of this
Development Agreement by developing a
all as more particularly set forth in the Final Site Plan (hereinafter collectively referred to as the
"Project
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K. CITY desires to accomplish the goals and objectives set forth in the CITY's General
Plan and the objectives for the PTMU Overlay Zone as set forth in subsection 18.20.010.020 of
the Anaheim Municipal Code, and finds that the Project will accomplish said goals and
obj ectives.
L. Pursuant to the Final Site Plan, OWNER will submit tentative maps and /or vesting
tentative maps, if required. OWNER further anticipates the submission of detailed construction
plans and other documentation required by CITY in order for the OWNER to obtain its building
permits.
M. As consideration for the benefits gained from the vested rights acquired pursuant to
the Development Agreement Statute, to conform with the requirements of the PTMU Overlay
Zone, and to comply with the applicable mitigation measures imposed by Updated and Modified
Mitigation Monitoring Program No. 106 B and Mitigation Monitoring Plan No. for the
Project, CITY is requiring that OWNER construct and install certain public improvements,
including off -site traffic circulation improvements, and provide other public benefits.
N. In order to avoid any misunderstandings or disputes which may arise from time to
time between OWNER and CITY concerning the proposed development of the Project and to
assure each party of the intention of the other as to the processing of any land use entitlements
which now or hereafter may be required for such development, the parties believe it is desirable
to set forth their intentions and understandings in this Development Agreement. In order for both
CITY and OWNER to achieve their respective objectives, it is imperative that each be as certain
as possible that OWNER will develop and that CITY will permit OWNER to develop the Project
and public improvements as approved by CITY within the time periods provided in this
Development Agreement.
O. CITY, as a charter city, has enacted Ordinance No. 4377 on November 23, 1982,
which makes CITY subject to the Development Agreement Statute. Pursuant to Section 65865
of the Development Agreement Statute, CITY adopted Resolution No. 82R -565 (the "Procedures
Resolution on November 23, 1982. The Procedures Resolution establishes procedures and
requirements for the consideration of development agreements upon receipt of an application.
P. On 20 as required by Section 1.0 of the Procedures Resolution,
OWNER submitted to the Planning Department an application for approval of a development
agreement (hereinafter called the "Application The Application included a proposed
development agreement (the "Proposed Development Agreement
Q. On 20_, as required by Section 65867 of the Development Agreement
Statute and Section 2.1 of the Procedures Resolution, the Planning Director gave public notice of
the City Planning Commission's intention to consider a recommendation to the City Council
regarding adoption of a development agreement.
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R. On 20_, as required by Section 65867 of the Development Agreement
Statute and Section 2.2 of the Procedures Resolution, the City Planning Commission held a
public hearing on the Application.
S. On that date, the City Planning Commission, after considering the requirements of
CEQA, including Section 21166 of the California Public Resources Code and Section 15162 of
the CEQA Guidelines, found and determined and recommended that the City Council find that
previously- certified FSEIR No. 334, together with the Updated and Modified Mitigation
Monitoring Program No. 106B for The Platinum Triangle, and Mitigation Monitoring Plan No.
are adequate to serve as the required environmental documentation for this Development
Agreement, and related Project Actions, and satisfy all of the requirements of CEQA, and that no
further environmental documentation need be prepared for this Development Agreement.
T. The Planning Commission further found that the Development Agreement meets the
following standards set forth in Section 2.3 of the Procedures Resolution, to wit, that the
Proposed Project: (a) is consistent with the CITY's existing General Plan, (b) is compatible with
the uses authorized in and the regulations prescribed for the applicable zoning district, (c) is
compatible with the orderly development of property in the surrounding area and (d) is not
otherwise detrimental to the health, safety and general welfare of the citizens of CITY. Based
upon the aforesaid findings, the City Planning Commission recommended that the City Council
approve the Application and this Development Agreement pursuant to Resolution No. PC
U. On 20_, as required by Section 65867 of the Development
Agreement Statute and Section 3.1 of the Procedures Resolution, the City Clerk caused public
notice to be given of the City Council's intention to consider adoption of a development
agreement.
V. On 20, as required by Section 65867 of the Development
Agreement Statute and Section 3.2 of the Procedures Resolution, the City Council held a public
hearing on the Application.
W. On that date, the City Council, after considering the requirements of CEQA,
including Section 21166 of the California Public Resources Code and Section 15162 of the
CEQA Guidelines, did find and determined that previously- certified FSEIR No. 334, together
with the Updated and Modified Mitigation Monitoring Program No. 106B for The Platinum
Triangle, and Mitigation Monitoring Plan No. are adequate to serve as the required
environmental documentation for this Development Agreement, and related Project Actions, and
satisfies all of the requirements of CEQA, and that no further environmental documentation need
be prepared for this Development Agreement.
X. On 20, the City Council found and determined that this
Development Agreement: (i) is consistent with the CITY's existing General Plan; (ii) is not
otherwise detrimental to the health, safety and general welfare of the citizens of CITY; (iii) is
entered into pursuant to and constitutes a present exercise of the CITY's police power; and (iv) is
4
entered into pursuant to and in compliance with the requirements of Section 65867 of the
Development Agreement Statute and the Procedures Resolution.
Y. In preparing and adopting the General Plan and in granting the Development
Approvals, CITY considered the health, safety and general welfare of the residents of CITY and
prepared in this regard an extensive environmental impact report and other studies. Without
limiting the generality of the foregoing, in preparing and adopting the General Plan and in
granting the Development Approvals, the City Council carefully considered and determined the
projected needs (taking into consideration the planned development of the Project and all other
areas within the CITY) for water service, sewer service, storm drains, electrical facilities,
traffic /circulation infrastructure, police and fire services, paramedic and similar improvements,
facilities and services within The Platinum Triangle, and the appropriateness of the density and
intensity of the development comprising the Project and the needs of the CITY and surrounding
areas for other infrastructure.
Z. On 20_, the City Council adopted the Authorizing Ordinance
authorizing the execution of this Development Agreement.
NOW, THEREFORE, pursuant to the authority contained in the Development Agreement
Statute, as it applies to CITY, and pursuant to the Enabling Ordinance, the Procedures Resolution
and the CITY's inherent powers as a charter city, and pursuant to the mutual promises and
covenants herein contained, the parties hereto agree as follows:
Section 1. DEFINITIONS.
The following words and phrases are used as defined terms throughout this Development
Agreement, and each defined term shall have the meaning set forth below.
1.1 Assessment District. "Assessment District" for purposes of this Development
Agreement means a special district, assessment district or benefit area existing pursuant to State
law or the charter powers of the CITY for purposes of financing the cost of public improvements,
facilities, services and /or public facilities fees within a distinct geographic area of the CITY.
1.2 Authorizing Ordinance. The "Authorizing Ordinance" means Ordinance No.
approving this Development Agreement.
1.3 CITY. The "CITY" means the City of Anaheim, a charter city and municipal
corporation, duly organized and existing under its charter and the Constitution and laws of the
State of California.
1.4 Development. "Development" means the improvement of the Property for purposes
of effecting the structures, improvements and facilities comprising the Project, including, without
limitation: grading, the construction of infrastructure and public facilities related to the Project
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whether located within or outside the Property; the construction of structures and buildings and
the installation of landscaping.
1.5 Development Agreement. "Development Agreement" means this Development
Agreement and any subsequent amendments to this Development Agreement which have been
made in compliance with the provisions of this Development Agreement, the Development
Agreement Statute, the Enabling Ordinance, and the Procedures Resolution.
1.6 Development Agreement Date. The "Development Agreement Date" means the latest
of (i) the date of recordation in the office of the County Recorder of this Development
Agreement, or a memorandum thereof, or (ii) the effective date of the Authorizing Ordinance.
1.7 Development Agreement Statute. The "Development Agreement Statute" means
Sections 65864 through 65869.5 of the California Government Code as it exists on the
Development Agreement Date.
1.8 Development Approvals. "Development Approvals" means the Final Site Plan and
all site specific plans, maps, permits and other entitlements to use of every kind and nature
contemplated by the Final Site Plan which are approved or granted by CITY in connection with
development of the Property, including, but not limited to: site plans, tentative and final
subdivision maps, vesting tentative maps, variances, conditional use permits and grading,
building and other similar permits. To the extent any of such site specific plans, maps, permits
and other entitlements to use are amended from time to time, "Development Approvals" shall
include, if OWNER and CITY agree in writing, such matters as so amended. If this
Development Agreement is required by law to be amended in order for "Development
Approvals" to include any such amendments, "Development Approvals" shall not include such
amendments unless and until this Development Agreement is so amended.
1.9 Enabling Ordinance. The "Enabling Ordinance" means Ordinance No. 4377 enacted
by the CITY on November 23, 1982.
1.10 Existing Land Use Regulations. "Existing Land Use Regulations" mean the
ordinances and regulations adopted by the City of Anaheim in effect on the Effective Date,
including the adopting ordinances and regulations that govern the permitted uses of land, the
density and intensity of use, and the design, improvement, construction standards and
specifications applicable to the development of the Property, including, but not limited to, the
General Plan, the Zoning Code, The Platinum Triangle Master Land Use Plan, Mitigation
Monitoring Plan No. 149, Updated and Modified Mitigation Monitoring Program No. 106B, and
all other ordinances of the City establishing subdivision standards, park regulations, impact or
development fees and building and improvement standards, but only to the extent the Zoning
Ordinance and such other regulations are not inconsistent with this Development Agreement.
Existing Land Use Regulations do not include non -land use regulations, which includes taxes.
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1.11 Final Site Plan. The "Final Site Plan" means the Project as described in this
Development Agreement and conditions with respect thereto, as set forth as Exhibit "B" attached
hereto and made a part hereof by this reference.
1.12 Gross Floor Area/GFA. "Gross Floor Area" or "GFA" means the gross floor area of
any buildings which are part of the Permitted Development.
1.13 Interim Development Fees. "Interim Development Fees" are the fees imposed
within The Platinum Triangle pending adoption of permanent fee programs by the City as set
forth in Paragraph 12.2 of this Agreement.
1.14 Mortgage. "Mortgage" means a mortgage, deed of trust or sale and leaseback
arrangement or other transaction in which the Property, or a portion thereof or an interest therein,
is pledged as security.
1.15 Mortgagee. "Mortgagee" means the holder of the beneficial interest under a
Mortgage, or the owner of the Property, or interest therein, under a Mortgage.
1.16 OWNER. "OWNER" is and any person or entity with
which or into which may merge, and any person or entity who may acquire
substantially all of the assets of and any person or entity who
receives any of the rights or obligations of under this Development Agreement in accordance
with the provisions of Section 27 (Assignment) of this Development Agreement.
1.17 Parking Areas. The "Parking Areas" means all parking structure(s), and/or all
surface parking servicing the Project.
1.18 Permitted Development. "Permitted Development" includes all buildings
and the Parking Areas as identified in Section 6 of this Development Agreement and as further
set forth in the Final Site Plan. This Development Agreement establishes maximum and
minimum characteristics for all Permitted Development as set forth in the Final Site Plan.
1.19 Platinum Triangle. "The Platinum Triangle" means that portion of the City of
Anaheim generally bounded on the east by the Santa Ana River, on the south by the Anaheim
city limits, on the west by the Santa Ana Freeway, and on the north by the Southern California
Edison Easement.
1.20 Procedures Resolution. The "Procedures Resolution" is Resolution No. 82R -565
adopted by CITY pursuant to Section 65865 of the Development Agreement Statute.
1.21 Project. The "Project" means the development project contemplated by the Final
Site Plan with respect to the Property, including but not limited to on -site and off -site
improvements, as such development project is further defined, enhanced or modified pursuant to
the provisions of this Development Agreement and the Development Approvals.
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1.22 Property. The "Property" means that certain real property shown and described on
Exhibit "A" to this Development Agreement.
1.23 Support Commercial Uses. "Support Commercial Uses" are commercial\retail uses
which may include retail uses, banking or financial offices, food service, restaurants, service
establishments and other similar uses in keeping with the nature of the Project and the required
uses needed to support the occupants of office buildings, other office development, sports and
entertainment venues and residential development in The Platinum Triangle.
1.24 Term. "Term" is defined in Section 2 of this Development Agreement.
1.25 Zoning Code. "Zoning Code" refers to Title 18 of the Anaheim Municipal Code.
Section 2. TERM.
2.1 The term (hereinafter called "Term of this Development Agreement shall be that
period of time during which this Development Agreement shall be in effect and bind the parties
hereto. The Term shall commence on the Development Agreement Date and shall extend for a
period of five (5) years thereafter, terminating at the end of the day on the fifth anniversary of
the Development Agreement Date, subject to the periodic review and modification or termination
provisions defined in Section 25 and Section 27, respectively, of this Development Agreement,
and further subject to a reasonable extension for completion of the Project in accordance with the
Timing of Development schedule set forth in Section 15 of this Development Agreement.
2.2 This Development Agreement shall terminate and be of no force and effect upon the
occurrence of the entry of a final judgment or issuance of a final order, after all appeals have
been exhausted, directed to CITY as a result of any lawsuit filed against CITY to set aside,
withdraw or abrogate the approval of the City Council of this Development Agreement or if
termination occurs pursuant to the provisions of the Procedures Resolution and such termination
is so intended thereby.
2.3 If not already terminated by reason of any other provision in this Development
Agreement, or for any other reason, this Development Agreement shall automatically terminate
and be of no further force and effect upon completion of the Project pursuant to the terms of this
Development Agreement and any further amendments thereto and the issuance of all occupancy
permits and acceptance by CITY of all dedications and improvements as required by the
development of the Project.
Section 3. BINDING COVENANTS.
The provisions of this Development Agreement to the extent permitted by law shall
constitute covenants which shall run with the Property for the benefit thereof, and the benefits of
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this Development Agreement shall bind and inure to the benefit of the parties and all successors
in interest to the parties hereto.
Section 4. EFFECT OF AGREEMENT.
As a material part of the consideration of this Development Agreement, unless otherwise
provided herein, the parties agree that the Existing Land Use Regulations shall be applicable to
development of the Project. In connection with all subsequent discretionary actions by CITY
required to implement the Final Site Plan and any discretionary actions which CITY takes or has
the right to take under this Development Agreement relating to the Project, including any review,
approval, renewal, conditional approval or denial, CITY, shall exercise its discretion or take
action in a manner which complies and is consistent with the Final Site Plan, the Existing Land
Use Regulations and such other standards, terms and conditions expressly contained in this
Development Agreement. CITY shall accept and timely process, in the normal manner for
processing such matters as may then be applicable, all applications for further approvals with
respect to the Project called for or required under this Development Agreement, including, any
necessary site plan, tentative map, vesting tentative map, final map and any grading, construction
or other permits filed by OWNER in accordance with the Development Approvals.
Section 5. PROJECT LAND USES.
5.1 The Property shall be used for such uses as may be permitted by the Development
Approvals and the Existing Land Use Regulations. The Term, the density and intensity of use,
developable GFA, footprint square footage, the maximum height and size of proposed buildings
and structures, lot sizes, set back requirements, zoning, public improvements, and the provisions
for reservation or dedication of land for public purposes shall be those set forth in the
Development Approvals, the Existing Land Use Regulations and this Development Agreement
pursuant to Section 65865.2 of the Development Agreement Statute.
Section 6. PERMITTED DEVELOPMENT.
6.1 Description of Permitted Development. The Permitted Development shall be as set
forth on the Final Site Plan. The Project shall be constructed substantially in conformance with
the Final Site Plan.
6.2 Parking Areas. The Parking Areas shall be constructed so that there will be sufficient
parking spaces available within the Property to serve the Project, as depicted and substantially in
conformance with the Final Site Plan. Prior to commencement of construction of the first
building within the Project, OWNER shall restrict the use of the Parking Areas to tenants,
visitors, patrons, invitees and other users of the permitted buildings, and shall record a covenant
against the Property in a form approved by the City Attorney stating that the use of the Parking
Areas shall be limited in that manner. Said covenant shall also provide that the Parking Areas
shall not be used to provide public parking for patrons of Angel Stadium of Anaheim, The Grove
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of Anaheim or Honda Center without the prior written agreement between OWNER and CITY
relating to such parking.
Section 7. DENSITY OF PERMITTED BUILDINGS.
The Permitted Buildings shall be between the minimum and maximum sizes, and shall
not exceed the maximum heights and maximum footprints set forth on the Final Site Plan.
Section 8. ENFORCEMENT.
Unless this Development Agreement is terminated or cancelled pursuant to the provisions
of this Development Agreement, this Development Agreement or any amendment hereto, shall
be enforceable by any party hereto notwithstanding any change hereafter in any applicable
general plan, specific plan, zoning ordinance, subdivision ordinance or building ordinance
adopted by CITY which alters or amends the rules, regulations or policies of Development of the
Project as provided in this Development Agreement pursuant to Section 65865.4 of the
Development Agreement Statute; provided, however, that the limitations of this Section shall not
apply to changes mandated by State or Federal laws or other permissible changes or new
regulations as more particularly set forth in Section 23 of this Development Agreement.
Section 9. PUBLIC IMPROVEMENTS AND SERVICES.
In addition to performing any other obligations heretofore imposed as conditions of
approval set forth in Exhibit "C," as material consideration for the CITY's entering into this
Development Agreement, OWNER shall undertake the construction and installation of the
following public improvements required to support the Project and to enhance area -wide traffic
circulation and emergency police and fire protection service within the time periods as set forth
below and in conformance with the Existing Land Use Regulations. CITY shall cooperate with
OWNER for the purpose of coordinating all public improvements constructed under the
Development Approvals or this Development Agreement to existing or newly constructed public
improvements, whether located within or outside of the Property. OWNER shall be responsible
for and use good faith efforts to acquire any right(s) -of -way necessary to construct the public
facility improvements required by, or otherwise necessary to comply with the conditions of, this
Development Agreement or any Development Approvals. Should it become necessary due to
OWNER's failure or inability to acquire said right(s) -of -way within four months after OWNER
begins its efforts to so acquire said right(s) -of -way, CITY shall negotiate the purchase of the
necessary right(s) -of -way to construct the public improvements as required by, or otherwise
necessary to comply with the conditions of, this Development Agreement and, if necessary in
accordance with the procedures established by State law, and the limitations hereinafter set forth
in this Section, CITY may use its powers of eminent domain to condemn said required right(s) -of
way. OWNER agrees to pay for all costs associated with said acquisition and condemnation
proceedings. If the CITY cannot make the proper findings or if for some other reason under the
condemnation laws CITY is prevented from acquiring the necessary right(s) -of -way to enable
OWNER to construct the public improvements required by, or otherwise necessary to comply
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with the conditions of, this Development Agreement, then the parties agree to amend this
Development Agreement to modify OWNER's obligations accordingly. Any such required
modification shall involve the substitution of other considerations or obligations by OWNER (of
similar value) as are negotiated in good faith between the parties hereto. Nothing contained in
this Section shall be deemed to constitute a determination or resolution of necessity by CITY to
initiate condemnation proceedings.
9.1 Public Park. If the Property is eight (8) or more acres with residential
development totaling more than 325 dwelling units, Owner shall be required to dedicate, improve
and maintain a minimum size of 44 square feet for each residential unit for public park purposes
as set forth in the Final Site Plan. The value of the parkland dedication will be credited against
overall park in lieu fees paid for the project. Consistent with existing Code requirements and
policies, not credit will be given for improvements.
9.2 Utilities (Water, Electrical, Gas, Sewer, and Drainage). OWNER shall construct
the public improvements necessary for the provision of requisite water, electrical, gas, sewer and
drainage requirements for Project as more fully set forth in the Development Approvals.
OWNER shall construct and relocate utilities as may be required to provide services to the
Permitted Development on the Property or that are displaced by the construction of the Permitted
Development. As OWNER submits detailed construction plans in order to obtain building
permits for the Permitted Development and/or the size and nature of the Project varies, the
utilities that OWNER will construct or relocate may be revised accordingly by the CITY.
9.2.1 Water Service. OWNER will provide engineering studies to size the water mains
for ultimate development within the Project. Said engineering studies will be conducted prior to
rendering of water service or signature approval of the final water improvement plans, whichever
occurs first. The studies shall be subject to the approval of the General Manager, Public Utilities
Department or authorized designee. Alternatively, at OWNER'S election, the water system may
be constructed incrementally, provided that said incremental phasing is adequate to provide
municipal demands and fire flow protection for the proposed development phasing. OWNER
will conform with Rule 15D of the Water Utility's Rates, Rules and Regulations which provides
for, in part, a fee based on GFA and the advancement of additional funds to construct the
upgraded water facilities. OWNER shall be entitled to reimbursement in accordance with the
terms of Rule 15D for the advancement of additional funds to construct the upgraded water
facilities.
9.2.2 Sanitary Sewer and Storm Drains. Prior to final building and zoning inspections
for the first building within the Permitted Development, OWNER will construct all sanitary
sewers and storm drains and appurtenant structures (including treatment control BMP's as
required by the WQMP) to serve the ultimate development of the Property as provided by
areawide engineering studies to be conducted prior to issuance of any building permits for the
first building within the Permitted Development and updated prior to the issuance of any building
permits for each subsequent building within the Permitted Development. All studies shall be
subject to the approval of the City Engineer. OWNER will construct improvements identified in
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said studies. The systems may be constructed incrementally subject to the approval of the City
Engineer, provided that said incremental phasing is adequate to provide capacity for the proposed
development phasing.
9.3 Timing, Phasing and Sequence of Public Improvements and Facilities. The timing,
phasing and sequence of the construction of public improvements and facilities or the payment of
fees therefor shall be constructed or paid in accordance with the timing, phasing and sequence set
forth in this Development Agreement and the Final Site Plan
9.4 Traffic Circulation Improvements. In order to assist CITY in providing for area -wide
traffic circulation as required by this Project, OWNER shall cause to be made the traffic
circulation improvements identified for the Project including all applicable measures from the
Updated and Modified Mitigation Monitoring Program 106B approved in conjunction with
Subsequent EIR No. 334, and Mitigation Monitoring Plan No. as shown
on the Final Site Plan.
Section 10. REIMBURSEMENT PROVISION.
In the event OWNER is required to construct public improvements which are
supplemental to the requirements of the Project for the benefit of other properties, CITY will
work with OWNER to establish mechanisms for proportional reimbursement from owners of the
benefited properties. All costs associated with establishing said mechanisms shall be paid by
OWNER.
Section 11. DEDICATIONS AND EXACTIONS.
Prior to issuance of the first building permit for the Project, OWNER shall irrevocably
offer for dedication the rights -of -way, including the public connector streets and Market Street, if
applicable, and other areas as more fully set forth in the Final Site Plan for the uses set forth in
the Final Site Plan. These dedications shall be in fee or as an easement at the discretion of CITY,
and upon completion and acceptance by CITY of the associated improvements in compliance
with the specifications as approved by CITY, CITY shall accept OWNER's offer of dedication.
Nothing contained in this Development Agreement, however, shall be deemed to preclude CITY
from exercising the power of eminent domain with respect to the Property or the Project, or any
part thereof.
Section 12. FEES, TAXES. AND ASSESSMENTS.
12.1 Fees, Taxes and Assessments. OWNER shall be responsible for the payment of
fees in the amount and at the times set forth in the Existing Land Use Regulations, as said
amounts and timing may be modified in accordance with this Development Agreement.
12.2 Platinum Triangle Interim Development Fees. CITY anticipates that a number of
fees will be adopted to pay the costs attributable to new development in The Platinum Triangle.
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The Interim Development Fees constitute amounts estimated by the applicable City Departments
to be the approximate fair share of costs attributable to the Project. If an identified fee has been
adopted prior to issuance of the first building permit for the Project, the OWNER shall pay the
fee. If an identified fee has not been adopted at the time of issuance of said building permit, the
OWNER shall pay the applicable Platinum Triangle Interim Development Fees set forth in
attached Exhibit "D." If the OWNER has paid a Platinum Triangle Interim Development Fee,
and upon subsequent adoption of a corresponding fee it is determined that the OWNER has paid
an amount greater than the amount payable pursuant to the adopted fee, the excess amount paid
as an Interim Development Fee shall be refunded to the OWNER. CITY shall not be obligated
to adopt any of the identified fees. If any such identified fee is not adopted, the parties agree that
the Interim Development Fee is adequate to address the impacts of the Project.
12.2.1 Electrical Utilities Undergrounding Fee. OWNER will pay an Electrical Utilities
Undergrounding Fee as set forth in Exhibit "D -1."
12.2.2 General Plan and Environmental Processing Fee. OWNER will pay a processing
FEE attributable to the cost of creating and establishing the Master Land Use Plan and the PTMU
Overlay Zone for The Platinum Triangle, as well as the costs of associated environmental
documentation, as said additional costs are set forth in Exhibit "D -2."
12.2.3 Library Facilities Fee. OWNER will pay a Library Facilities Fee as set forth in
Exhibit "D -3."
12.3 Excluded Development Fees. Fees Excluded from Existing Land Use Regulations.
The following fees shall not be included among the fees which would otherwise fall within the
definition of Existing Land Use Regulations:
12.3.1 Water Utilities Fees. OWNER will pay all applicable fees in accordance with the
Water Utilities Rates, Rules and Regulations in effect at the time of application for service
including Rule 15D which provides for, in part, a fee based on GFA to construct the necessary
water facility improvements within The Platinum Triangle.
12.3.2 Electrical Utilities Fees. OWNER will pay all fees in accordance with the
Electrical Utilities Rates, Rules and Regulations in effect at the time of application for service.
12.3.3 City Processing Fees. OWNER shall pay all standard City -wide processing fees
for building permits, zoning review, and other similar fees associated with the Development of
the Project which are in existence at the time of approval of this Development Agreement at the
rate in existence at the time said fees are normally required to be paid to CITY.
12.4 Platinum Triangle Infrastructure and /or Maintenance Assessment District. Prior to
the date a building or grading permit is issued relating to implementation of the Final Site Plan,
or within a period of ninety (90) days from the date of execution of this Development
Agreement, whichever occurs first, OWNER shall execute and record an unsubordinated
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covenant in a form approved by the City Attorney's Office wherein OWNER agrees not to
contest the formation of any assessment district(s) which may be formed to finance Platinum
Triangle infrastructure and /or maintenance, which district(s) could include the Property. The
covenant shall not preclude OWNER from contesting (i) the determination of benefit of such
improvements to the Property, (ii) the properties included in said district or area, (iii) the manner
in which said fee is determined or (iv) the manner in which said improvement costs are spread.
12.5 Accounting of Funds. CITY will comply with applicable requirements of
Government Code Section 65865 relating to accounting of funds.
12.6 Imposition of Increased Fees, Taxes or Assessments. Except as expressly set forth
or reserved in this Development Agreement, CITY shall not, without the prior written consent of
OWNER, impose any additional fee, tax or assessment on the Project or any portion thereof as a
condition to the implementation of the Project or any portion thereof, except such fees, taxes and
assessments as are described in or required by this Development Agreement, including the
Existing Land Use Regulations or the Development Approvals. The rates of such fees, taxes and
assessments shall be the rates in existence at the time said fees, taxes and assessments are
normally required to be paid to CITY, except as otherwise provided in this Development
Agreement. Nothing contained herein shall be construed to prohibit CITY from imposing fees,
taxes or assessments on the Property which are unrelated to the approval or implementation of
the project.
Section 13. COVENANTS, CONDITIONS AND RESTRICTIONS.
In consideration for CITY entering into this Development Agreement and other
consideration set forth in this Agreement, OWNER agrees to record unsubordinated covenants,
conditions and restrictions (CC &Rs) applicable to the Property in a form and content satisfactory
to the Planning Director, City Engineer and the City Attorney incorporating the requirements and
obligations set forth in Exhibit "E" to this Agreement, entitled the "Development Requirements
and Maintenance Obligations."
Section 14. NEXUS /REASONABLE RELATIONSHIP CHALLENGES.
OWNER consents to, and waives any right it may have now or in the future to challenge
the legal validity of the conditions, requirements, policies or programs required by Existing Land
Use Regulations or this Development Agreement including, without limitation, any claim that
they constitute an abuse of the police power, violate substantive due process, deny equal
protection of the laws, effect a taking of property without payment of just compensation, or
impose an unlawful tax.
Section 15. TIMING OF DEVELOPMENT.
Timing of Development shall be as set forth in the Final Site Plan.
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Section 16. EXISTING USES.
CITY and OWNER agree that those existing legally established uses on the Property may
be retained until the Project is implemented. When those existing uses are demolished, no credit
for any such demolished square footage for which Interim Development Fees have not been paid
will be given OWNER against Interim Development Fees due on a square footage basis as
provided for in this Development Agreement. OWNER will pay the full Interim Development
Fees for Permitted Development constructed pursuant to the Final Site Plan.
Section 17. FUTURE APPROVALS.
17.1 Basis for Denying or Conditional Granting Future Approvals. Before OWNER can
begin grading on the Property or other development of the Property, OWNER must secure
several additional permits and /or approvals from CITY. The parties agree that to the extent said
Development Approvals are ministerial in nature, CITY shall not, through the enactment or
enforcement of any subsequent ordinances, rules, regulations, initiatives, policies, requirements,
guidelines, or other constraints, withhold such approvals as a means of blocking construction or
of imposing conditions on the Project which were not imposed during an earlier approval period
unless CITY has been ordered to do so by a court of competent jurisdiction. Notwithstanding the
previous sentence, CITY and OWNER will use their best efforts to ensure each other that all
applications for and approvals of grading permits, building permits or other developmental
approvals necessary for OWNER to develop the Project in accordance with the Final Site Plan
are sought and processed in a timely manner.
17.2 Standard of Review. The rules, regulations and policies that apply to any additional
Development Approvals which OWNER must secure prior to the Development of the Property
shall be the Existing Land Use Regulations, as defined in this Development Agreement.
17.3 Future Amendments to Final Site Plan. Future amendments to all or a portion of the
Final Site Plan which increase the intensity or density of the Development of the Property, or
change the permitted uses of the Property, and are not among those described in Section 18.4 of
this Development Agreement may subject the portion or portions of the Project being amended
or affected by the amendment to any change in the CITY's General Plan, zoning designations and
rules applicable to the Property and further environmental review and possible mitigation of
adverse impacts under CEQA in effect at the time of such amendment. Any such amendment to
the Final Site Plan shall be processed concurrently with the processing of an amendment to this
Development Agreement. It is the desire and intent of both parties, except as set forth herein, that
any such future amendment of the Final Site Plan will not alter, affect, impair or otherwise
impact the rights, duties and obligations of the parties under this Development Agreement with
respect to the unamended portions of the Final Site Plan.
Section 18. AMENDMENT.
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18.1 Initiation of Amendment. Either party may propose an amendment to this
Development Agreement.
18.2 Procedure. Except as set forth in Section 18.4 below, the procedure for proposing
and adopting an amendment to this Development Agreement shall be the same as the procedure
required for entering into this Development Agreement in the first instance. Such procedures are
set forth in Sections 2, 3 and 5 of the Procedures Resolution.
18.3 Consent. Except as provided elsewhere within this Development Agreement, any
amendment to this Development Agreement shall require the consent of both parties. No
amendment of this Development Agreement or any provision hereof shall be effective unless set
forth in writing and signed by duly authorized representatives of each party hereto.
18.4 Amendments. Subject to the foregoing provisions of this Section, the parties
acknowledge that refinements and further development of the Project may demonstrate that
changes are appropriate with respect to the details and performance of the parties under this
Development Agreement. The parties desire to retain a certain degree of flexibility with respect
to the details of the Development of the Project and with respect to those items covered in
general terms under this Development Agreement. If and when the parties find that changes or
adjustments are necessary or appropriate to further the intended purposes of this Development
Agreement, they may, unless otherwise required by law, effectuate such changes or adjustments
as specified in the Development Approvals.
18.5 Effect of Amendment to Development Agreement. The parties agree that except as
expressly set forth in any such amendment, an amendment to this Development Agreement will
not alter, affect, impair, modify, waive or otherwise impact any other rights, duties or obligations
of either party under this Development Agreement.
Section 19. NON CANCELLATION OF RIGHTS.
Subject to defeasance pursuant to Sections 25, 26 or 27 of this Development Agreement,
the Final Site Plan and other Development Approvals as provided for in this Development
Agreement shall be final and the rights once granted thereby shall be vested in the Property upon
recordation of this Development Agreement.
Section 20. BENEFITS TO CITY.
The direct and indirect benefits CITY (including, without limitation, the existing and
future anticipated residents of CITY) expects to receive pursuant to this Development Agreement
include, but are not limited to, the following:
a. The participation of OWNER in the accelerated, coordinated and more economic
construction, funding and dedication to the public, as provided in this Development Agreement,
of certain of the vitally needed on -site and area -wide public improvements and facilities, and
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assurances that the entire Project will be developed as set forth in the Final Site Plan and this
Development Agreement in order to encourage development of The Platinum Triangle; and
b. The considerations set forth in Sections 9 and 10 of this Development Agreement.
Section 21. BENEFITS TO OWNER.
OWNER has expended and will continue to expend large amounts of time and money on
the planning and infrastructure construction for the Project. OWNER asserts that OWNER
would not make any additional expenditures, or the advanced expenditures required by this
Development Agreement, without this Development Agreement and that any additional
expenditures which OWNER makes after the Development Agreement Date will be made in
reliance upon this Development Agreement. Without limiting the generality of the foregoing,
this Development Agreement provides for the completion of public improvements and facilities
prior to the time when they would be justified economically in connection with the phasing of the
Project, and of a size which would be justified only by the magnitude of the Project provided for
by the Final Site Plan and this Development Agreement. The benefit to OWNER under this
Development Agreement consists of the assurance that OWNER will preserve the right to
develop the Property as planned and as set forth in the Final Site Plan and this Development
Agreement. The parties acknowledge that the public benefits to be provided by OWNER to
CITY pursuant to this Development Agreement are in consideration for and reliance upon
assurances that the Property can be developed in accordance with the Final Site Plan and this
Development Agreement.
Section 22. UNDERTAKINGS AND ASSURANCES CONTEMPLATED AND
PROMOTED BY DEVELOPMENT AGREEMENT STATUTE.
The mutual undertakings and assurances described above and provided for in this
Development Agreement are for the benefit of CITY and OWNER and promote the
comprehensive planning, private and public cooperation and participation in the provision of
public facilities, and the effective and efficient development of infrastructure and facilities
supporting development which was contemplated and promoted by the Development Agreement
Statute. CITY agrees that it will not take any actions which are intended to circumvent this
Development Agreement; provided, however, that any action of the electorate shall not be
deemed an action for purposes of this section.
Section 23. RESERVED AUTHORITY.
23.1 State and Federal Laws and Regulations. In the event that the State or Federal laws
or regulations enacted after this Development Agreement has been entered into, prevent or
preclude compliance with one or more provisions of the Development Agreement, such
provisions of the Development Agreement shall be modified or suspended as may be necessary
to comply with such State or Federal laws or regulations, provided, however, that this
Development Agreement shall remain in full force and effect to the extent it is not inconsistent
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with such laws or regulations and to the extent such laws or regulations do not render such
remaining provisions impractical to enforce. Notwithstanding the foregoing, CITY shall not
adopt or undertake any rule, regulation or policy which is inconsistent with this Development
Agreement until CITY makes a finding that such rule, regulation or policy is reasonably
necessary to comply with such State and Federal laws or regulations.
23.2. Model Codes. This Development Agreement shall not prevent CITY from
applying new rules, regulations and policies contained in model codes, including, but not limited
to, the Anaheim Building Code as adopted in Title 15, Section 15.02.
23.3 Public Health and Safety. This Development Agreement shall not prevent CITY
from adopting new rules, regulations and policies, including amendments or modifications to
model codes described in Section 23.2 of this Development Agreement which directly result
from findings by CITY that failure to adopt such rules, regulations or policies would result in a
condition injurious or detrimental to the public health and safety. Notwithstanding the foregoing,
CITY shall not adopt any such rules, regulations or policies which prevent or preclude
compliance with one or more provisions of this Development Agreement until CITY makes a
finding that such rules, regulations or policies are reasonably necessary to correct or avoid such
injurious or detrimental condition.
Section 24. CANCELLATION.
24.1 Initiation of Cancellation. Either party may propose cancellation of this
Development Agreement.
24.2 Procedure. The procedure for proposing a cancellation of and canceling this
Development Agreement shall be the same as the procedure required for entering into this
Development Agreement in the first instance. Such procedures are set forth in Sections 2, 3 and
5 of the Procedures Resolution and Section 65868 of the Government Code.
24.3 Consent of OWNER and CITY. Any cancellation of this Development Agreement
shall require the mutual consent of OWNER and CITY.
Section 25. PERIODIC REVIEW.
25.1 Time for Review. CITY shall, at least every twelve (12) months after the
Development Agreement Date, review the extent of good faith compliance by OWNER with the
terms of this Development Agreement. OWNER's failure to comply with the timing schedules
set forth in the Final Site Plan shall constitute rebuttable evidence of OWNER's lack of good
faith compliance with this Development Agreement. Such periodic review shall determine
compliance with the terms of this Development Agreement pursuant to California Government
Code Section 65865.1 and other successor laws and regulations.
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25.2 OWNER's Submission. Each year, not less than forty -five (45) days nor more than
sixty (60) days prior to the anniversary of the Development Agreement Date, OWNER shall
submit evidence to the City Council of its good faith compliance with the terms and conditions of
this Development Agreement. OWNER shall notify the City Council in writing that such
evidence is being submitted to CITY pursuant to the requirements of Section 6.2 of the
Procedures Resolution. OWNER shall pay to CITY a reasonable processing fee in an amount as
CITY may reasonably establish from time to time on each occasion that OWNER submits its
evidence for a periodic review.
25.3 Findings. Within forty -five (45) days after the submission of OWNER's evidence,
the City Council shall determine, on the basis of substantial evidence, whether or not OWNER
has, for the period under review, complied in good faith with the terms and conditions of this
Development Agreement. If the City Council finds that OWNER has so complied, the review for
that period shall be deemed concluded. If the City Council finds and determines, on the basis of
substantial evidence, that OWNER has not complied in good faith with the terms and conditions
of this Development Agreement for the period under review, OWNER shall be given at least
sixty (60) days to cure such non compliance and if the actions required to cure such non-
compliance take more than sixty (60) days, then CITY shall give OWNER additional time
provided that OWNER is making reasonable progress towards such end. If during the cure
period, OWNER fails to cure such noncompliance or is not making reasonable good faith
progress towards such end, then the City Council may, at its discretion, proceed to modify or
terminate this Development Agreement or establish a time schedule for compliance in
accordance with the procedures set forth in Section 27 of this Development Agreement.
25.4 Initiation of Review by City Council. In addition to the periodic review set forth in
this Development Agreement, the City Council may at any time initiate a review of this
Development Agreement upon the giving of written notice thereof to OWNER. Within thirty
(30) days following receipt of such notice, OWNER shall submit evidence to the City Council of
OWNER's good faith compliance with this Development Agreement and such review and
determination shall proceed in the manner as otherwise provided in this Development
Agreement.
Section 26. EVENTS OF DEFAULT.
26.1 Defaults by OWNER. Within forty-five (45) days after the submission of
OWNER's evidence, the City Council shall determine on the basis of substantial evidence,
whether or not OWNER has, for the period under review, complied in good faith with the terms
and conditions of this Development Agreement. If the City Council finds that OWNER has so
complied, the review for that period shall be deemed concluded. If the City Council finds and
determines, on the basis of substantial evidence, that OWNER has not complied in good faith
with the terms and conditions of this Development Agreement for the period under review,
OWNER shall be given at least sixty (60) days to cure such non compliance and if the actions
required to cure such non compliance take more than sixty (60) days, then CITY shall give
OWNER additional time provided that OWNER is making reasonable progress towards such
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end. If during the cure period OWNER fails to cure such non compliance or is not making
reasonable progress towards such end, then the City Council may, at its discretion, proceed to
modify or terminate this Development Agreement or establish a time schedule for compliance in
accordance with the procedures set forth in Section 27 of this Development Agreement.
26.2 Specific Performance Remedy. Due to the size, nature and scope of the Project, it
will not be practical or possible to restore the Property to its pre- existing condition once
implementation of this Development Agreement has begun. After such implementation,
OWNER may be foreclosed from other choices it may have had to utilize the Property and
provide for other benefits. OWNER has invested significant time and resources and performed
extensive planning and processing of the Project in agreeing to the terms of this Development
Agreement and will be investing even more significant time in implementing the Project in
reliance upon the terms of this Development Agreement, and it is not possible to determine sum
of the money which would adequately compensate OWNER for such efforts. For the above
reasons, CITY and OWNER agree that damages would not be an adequate remedy if CITY fails
to carry out its obligations under this Development Agreement. Therefore, specific performance
of this Development Agreement is the only remedy which would compensate OWNER if CITY
fails to carry out its obligations under this Development Agreement, and CITY hereby agrees that
OWNER shall be entitled to specific performance in the event of a default by CITY hereunder.
CITY and OWNER acknowledge that, if OWNER fails to carry out its obligations under this
Development Agreement, CITY shall have the right to refuse to issue any permits or other
approvals which OWNER would otherwise have been entitled to pursuant to this Development
Agreement. If CITY issues a permit or other approval pursuant to this Development Agreement
in reliance upon a specified condition being satisfied by OWNER in the future, and if OWNER
then fails to satisfy such condition, CITY shall be entitled to specific performance for the sole
purpose of causing OWNER to satisfy such condition. The CITY's right to specific performance
shall be limited to those circumstances set forth above, and CITY shall have no right to seek
specific performance to cause OWNER to otherwise proceed with the Development of the
Project in any manner.
26.3 Liquidated Damages Remedy. The parties hereto agree that this Development
Agreement creates an obligation and duty upon OWNER to undertake and complete development
of the Project within the time and manner specified herein. In the event OWNER breaches this
Development Agreement by failing to undertake and complete development of the Project within
the time and manner specified herein, the parties further agree that CITY will suffer actual
damages as a result thereof, the amount of which is uncertain and would be impractical or
extremely difficult to fix; therefore, OWNER agrees to pay CITY, in the event of any such
breach by OWNER, the sum of One Hundred Thousand Dollars ($100,000.00) as liquidated and
actual damages which sum shall be in addition to any other remedies available to CITY as a
result of such breach pursuant to this Section 26.
Section 27. MODIFICATION OR TERMINATION.
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If pursuant to Section 26.1 of this Development Agreement, CITY elects to modify or
terminate this Development Agreement or establish a revised time schedule for compliance as
herein provided, then CITY shall proceed as set forth in this Section.
27.1 Notice to OWNER. CITY shall give notice to OWNER of City Council's intention
to proceed to modify or terminate this Development Agreement or establish a time schedule for
compliance within ten (10) days of making the CITY's findings.
27.2 Public Hearing. The City Council shall set and give notice of a public hearing on
modification, termination or a time schedule for compliance to be held within forty-days after the
City Council gives notice to OWNER.
27.3 Decision. The City Council shall announce its findings and decisions on whether
this Development Agreement is to be terminated, how this Development Agreement is to be
modified or the provisions of the Development Agreement with which OWNER must comply
and a time schedule therefor not more than ten (10) days following completion of the public
hearing.
27.4 Standard of Review. Any determination by CITY to terminate this Development
Agreement because OWNER has not complied in good faith with the terms of this Development
Agreement must be based upon a finding by the City Council, based on the preponderance of
evidence, that OWNER is in default and has not cured that default in the timeframe permitted by
Sections 25 and 26 above, as applicable.
27.5 Implementation. Amending or terminating this Development Agreement shall be
accomplished by CITY enacting an ordinance. The ordinance shall recite the reasons which, in
the opinion of the CITY, make the amendment or termination of this Development Agreement
necessary. Not later then ten (10) days following the adoption of the ordinance, one copy thereof
shall be forwarded to OWNER. This Development Agreement shall be terminated or this
Development Agreement as modified shall become effective on the effective date of the
ordinance terminating or modifying this Development Agreement.
27.6 Schedule for Compliance. Setting a reasonable time schedule for compliance with
this Development Agreement may be accomplished by CITY enacting a resolution. The
resolution shall recite the reasons which, in the opinion of CITY, make it advisable to set a
schedule for compliance and why the time schedule is reasonable. Not later than ten (10) days
following adoption of the resolution, one copy thereof shall be forwarded to OWNER.
Compliance with any time schedule so established as an alternative to amendment or termination
shall be subject to periodic review as provided in this Development Agreement and lack of good
faith compliance by OWNER with the time schedule shall be basis for termination or
modification of this Development Agreement.
Section 28. ASSIGNMENT.
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28.1 Right to Assign. OWNER shall have the right to sell, mortgage, hypothecate, assign
or transfer this Development Agreement, and any and all of its rights, duties and obligations
hereunder, to any person, partnership, joint venture, firm or corporation at any time during the
term of this Development Agreement, provided that any such sale, mortgage, hypothecation,
assignment or transfer must be pursuant to a sale, assignment or other transfer of the interest of
OWNER in the Property, or a portion thereof. In the event of any such sale, mortgage,
hypothecation, assignment or transfer, (a) OWNER shall notify CITY of such event and the name
of the transferee, together with the corresponding entitlements being transferred to such
transferee and (b) the agreement between OWNER and such transferee shall provide that either
OWNER or the transferee or both shall be liable for the performance of all obligations of
OWNER pursuant to this Development Agreement and the Development Approvals. Such
transferee and /or OWNER shall notify CITY in writing which entity shall be liable for the
performance of such obligations, and upon the express written assumption of any or all of the
obligations of OWNER under this Development Agreement by such assignee, transferee or
purchaser shall, without any act of or concurrence by CITY, relieve OWNER of its legal duty to
perform said obligations under this Development Agreement with respect to the Property or
portion thereof, so transferred, except to the extent OWNER is not in default under the terms of
this Development Agreement.
28.2 Release Upon Transfer. It is understood and agreed by the parties that the Property
may be subdivided following the Development Agreement Date. One or more of such
subdivided parcels may be sold, mortgaged, hypothecated, assigned or transferred to persons for
development by them in accordance with the provisions of this Development Agreement.
Effective upon such sale, mortgage, hypothecation, assignment or transfer, the obligations of
OWNER shall become several and not joint, except as to OWNER's obligations set forth in
Section 9 of this Development Agreement. Upon the sale, transfer, or assignment of OWNER's
rights and interests under this Development Agreement as permitted pursuant to the Section 28.1
above, OWNER shall be released from its obligations under this Development Agreement with
respect to the Property, or portion thereof so transferred, provided that (a) OWNER is not then in
default under this Development Agreement, (b) OWNER has provided to CITY the notice of
such transfer specified in Section 28.1 above, (c) the transferee executes and delivers to CITY a
written agreement in which (i) the name and address of the transferee is set forth and (ii) the
transferee expressly and unconditionally assumes all the obligations of OWNER under this
Development Agreement and the Development Approvals with respect to the property, or portion
thereof, so transferred and (d) the transferee provides CITY with security equivalent to any
security provided by OWNER to secure performance of its obligations under this Development
Agreement or the Development Approvals. Non compliance by any such transferee with the
terms and conditions of this Development Agreement shall not be deemed a default hereunder or
grounds for termination hereof or constitute cause for CITY to initiate enforcement action against
other persons then owning or holding interest in the Property or any portion thereof and not
themselves in default hereunder. Upon completion of any phase of development of the Project as
determined by CITY, CITY may release that completed phase from any further obligations under
this Development Agreement. The provisions of this Section shall be self executing and shall
not require the execution or recordation of any further document or instrument. Any and all
22
successors, assigns and transferees of OWNER shall have all of the same rights, benefits and
obligations of OWNER as used in this Development Agreement and the term "OWNER" as used
in this Development Agreement shall refer to any such successors, assigns and transferees unless
expressly provided herein to the contrary.
Section 29. NO CONFLICTING ENACTMENTS.
By entering into this Development Agreement and relying thereupon, OWNER is
obtaining vested rights to proceed with the Project in accordance with the terms and conditions
of this Development Agreement, and in accordance with, and to the extent of, the Development
Approvals. By entering into this Development Agreement and relying thereupon, CITY is
securing certain public benefits which enhance the public health, safety and general welfare.
CITY therefore agrees that except as provided in Section 23 of this Development Agreement,
neither the City Council nor any other agency of CITY shall enact a rule, regulation, ordinance or
other measure which relates to the rate, timing or sequencing of the Development or construction
of all or any part of the Project and which is inconsistent or in conflict with this Development
Agreement.
Section 30. GENERAL.
30.1 Force Majeure. The Term of this Development Agreement and the time within
which OWNER shall be required to perform any act under this Development Agreement shall be
extended by a period of time equal to the number of days during which performance of such act
is delayed unavoidably by strikes, lock -outs, Acts of God, failure or inability to secure materials
or labor by reason of priority or similar regulations or order of any governmental or regulatory
body, initiative or referenda, moratoria, enemy action, civil disturbances, fire, unavoidable
casualties, or any other cause beyond the reasonable control of OWNER.
30.2 Construction of Development Agreement. The language in all parts of this
Development Agreement shall in all cases, be construed as a whole and in accordance with its
fair meaning. The captions of the paragraphs and subparagraphs of this Development Agreement
are for convenience only and shall not be considered or referred to in resolving questions of
constructions. This Development Agreement shall be governed by the laws of the State of
California. The parties understand and agree that this Development Agreement is not intended to
constitute, nor shall be construed to constitute, an impermissible attempt to contract away the
legislative and governmental functions of CITY, and in particular, the CITY's police powers. In
this regard, the parties understand and agree that this Development Agreement shall not be
deemed to constitute the surrender or abnegation of the CITY's governmental powers over the
Property.
30.3 Severability. If any provision of this Development Agreement shall be adjudged to
be invalid, void or unenforceable, such provision shall in no way affect, impair or invalidate any
other provision hereof, unless such judgment affects a material part of this Development
Agreement, the parties hereby agree that they would have entered into the remaining portions of
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this Development Agreement not adjudged to be invalid, void or illegal. In the event that all or
any portion of this Development Agreement is found to be unenforceable, this Development
Agreement or that portion which is found to be unenforceable shall be deemed to be a statement
of intention by the parties; and the parties further agree that in such event they shall take all steps
necessary to comply with such public hearings and/or notice requirements as may be necessary in
order to make valid this Development Agreement or that portion which is found to be
unenforceable. Notwithstanding any other provisions of this Development Agreement, in the
event that any material provision of this Development Agreement is found to be unenforceable,
void or voidable, OWNER or CITY may terminate this Development Agreement in accordance
with the provisions of the Development Agreement Statute and the Procedures Resolution.
30.4 Cumulative Remedies. In addition to any other rights or remedies, either party may
institute legal action to cure, correct or remedy any default, to enforce any covenant or agreement
herein, or to enjoin any threatened or attempted violation, including suits for declaratory relief,
specific performance, relief in the nature of mandamus and actions for damages. All of the
remedies described above shall be cumulative and not exclusive of one another, and the exercise
of any one or more of the remedies shall not constitute a waiver or election with respect to any
other available remedy.
30.5 Hold Harmless Agreement. OWNER and CITY hereby mutually agree to, and shall
hold each other, each other's elective and appointive councils, boards, commissions, officers,
partners, agents, representatives and employees harmless from any liability for damage or claims
for damage for personal injury, including death, and from claims for property damage which may
arise from the activities of the other's or the other's contractors', subcontractors', agents', or
employees' which relate to the Project whether such activities be by OWNER or CITY, or by any
of the OWNER's or the CITY's contractors, subcontractors, or by any one or more persons
indirectly employed by, or acting as agent for OWNER any of the OWNER's or the CITY's
contractors or subcontractors. OWNER and CITY agree to and shall defend the other and the
other's elective and appointive councils, boards, commissioners, officers, partners, agents,
representatives and employees from any suits or actions at law or in equity for damage caused or
alleged to have been caused by reason of the aforementioned activities which relate to the
Project.
30.6 Cooperation in the Event of Legal Challenge. In the event of any legal action
instituted by a third party or other governmental entity or official challenging the validity of any
provision of this Development Agreement and/or the Development Approvals, the parties hereby
agree to cooperate fully with each other in defending said action and the validity of each
provision of this Development Agreement, however, OWNER shall be liable for all legal
expenses and costs incurred in defending any such action. OWNER shall be entitled to choose
legal counsel to defend against any such legal action and shall pay any attorneys' fees awarded
against CITY or OWNER, or both, resulting from any such legal action. OWNER shall be
entitled to any award of attorneys' fees arising out of any such legal action.
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30.7 Public Agency Coordination. CITY and OWNER shall cooperate and use their
respective best efforts in coordinating the implementation of the Development Approvals with
other public agencies, if any, having jurisdiction over the Property or the Project.
30.8 Initiative Measures. Both CITY and OWNER intend that this Development
Agreement is a legally binding contract which will supersede any initiative, measure,
moratorium, referendum, statute, ordinance or other limitation (whether relating to the rate,
timing or sequencing of the Development or construction of all or any part of the Project and
whether enacted by initiative or otherwise) affecting parcel or subdivision maps (whether
tentative, vesting tentative or final), building permits, occupancy certificates or other entitlements
to use approved, issued or granted within the CITY, or portions of the CITY, and which
Agreement shall apply to the Project to the extent such initiative, measure, moratorium,
referendum, statute, ordinance or other limitation is inconsistent or in conflict with this
Development Agreement. Should an initiative, measure, moratorium, referendum, statute,
ordinance, or other limitation be enacted by the citizens of CITY which would preclude
construction of all or any part of the Project, and to the extent such initiative, measure,
moratorium, referendum, statute, ordinance or other limitation be determined by a court of
competent jurisdiction to invalidate or prevail over all or any part of this Development
Agreement, OWNER shall have no recourse against CITY pursuant to the Development
Agreement, but shall retain all other rights, claims and causes of action under this Development
Agreement not so invalidated and any and all other rights, claims and causes of action as law or
in equity which OWNER may have independent of this Development Agreement with respect to
the project. The foregoing shall not be deemed to limit OWNER's right to appeal any such
determination that such initiative, measure, referendum, statute, ordinance or other limitation
invalidates or prevails over all or any part of this Development Agreement. CITY agrees to
cooperate with OWNER in all reasonable manners in order to keep this Development Agreement
in full force and effect, provided OWNER shall reimburse CITY for its out -of- pocket expenses
incurred directly in connection with such cooperation and CITY shall not be obligated to institute
a lawsuit or other court proceedings in this connection.
30.9 Attorneys' Fees. In the event of any dispute between the parties involving the
covenants or conditions contained in this Development Agreement, the prevailing party shall be
entitled to recover reasonable expenses, attorneys fees and costs.
30.10 No Waiver. No delay or omission by either party in exercising any right or power
accruing upon non compliance or failure to perform by the other party under any of the
provisions of this Development Agreement shall impair any such right or power or be construed
to be a waiver thereof. A waiver by either party of any of the covenants or conditions to be
performed by the other party shall not be construed as a waiver of any succeeding breach of non-
performance of the same or other covenants and conditions hereof.
30.11 Authority to Execute. The person executing this Development Agreement on
behalf of OWNER warrants and represents that he /she has the authority to execute this
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Development Agreement on behalf of his/her partnership and represents that he /she has the
authority to bind OWNER to the performance of OWNER's obligations hereunder.
30.12 Notice.
30.12.1 To OWNER. Any notice required or permitted to be given by CITY to OWNER
under or pursuant to this Development Agreement shall be deemed sufficiently given if in writing
and delivered personally to an officer of OWNER or mailed with postage thereon fully prepaid,
registered or certified mail, return receipt requested, addressed; to OWNER as follows:
or such changed address as OWNER shall designate in writing to CITY.
30.12.2 To CITY. Any notice required or permitted to be given to CITY under or
pursuant to this Development Agreement shall be made and given in writing, if by mail
addressed to:
City Council
City of Anaheim
c/o City Clerk
P.O. Box 3222
Anaheim, California 92803
With copies to:
City Manager
City of Anaheim
P.O. Box 3222
Anaheim, California 92803
City Attorney
City of Anaheim
P.O. Box 3222
Anaheim, California 92803
or such changed address as CITY shall designate in writing to OWNER.
Alternatively, notices to CITY may also be personally delivered to the City Clerk, at the
Anaheim Civic Center, 200 S. Anaheim. Blvd., Anaheim, California, together with copies
marked for the City Manager and the City Attorney or, if so addressed and mailed, with postage
thereon fully prepaid, registered or certified mail, return receipt requested, to the City Council in
care of the City Clerk at the above address with copies likewise so mailed to the City Manager
26
and the City Attorney, respectively and also in care of the City Clerk at the same address. The
provisions of this Section shall be deemed permissive only and shall not detract from the validity
of any notice given in a manner which would be legally effective in the absence of this Section.
30.13 Captions. The captions of the paragraphs and subparagraphs of this Development
Agreement are for convenience and reference only and shall in no way define, explain, modify,
construe, limit, amplify or aid in the interpretation, construction or meaning of any of the
provisions of this Development Agreement.
30.14 Consent. Any consent required by the parties in carrying out the terms of this
Development Agreement shall not unreasonably be withheld.
30.15 Further Actions and Instruments. Each of the parties shall cooperate with and
provide reasonable to the other to the extent contemplated hereunder in the performance of all
obligations under this Development Agreement and the satisfaction of the conditions of this
Development Agreement. Upon the request of either party at any time, the other party shall
promptly execute, with acknowledgment or affidavit if reasonably required, and file or record
such required instruments and writings and take any actions as may be reasonably necessary
under the terms of this Development Agreement to carry out the intent and to fulfill the
provisions of this Development Agreement or to evidence or consummate the transactions
contemplated by this Development Agreement.
30.16 Subsequent Amendment to Authorizing Statute. This Development Agreement
has been entered into in reliance upon the provisions of the Development Agreement Statute in
effect as of the Development Agreement Date. Accordingly, subject to Section 23.1 above, to
the extent that subsequent amendments to the Government Code would affect the provisions of
this Development Agreement, such amendments shall not be applicable to this Development
Agreement unless necessary for this Development Agreement to be enforceable or unless this
Development Agreement is modified pursuant to the provisions set forth in this Development
Agreement and Government Code Section 65868 as in effect on the Development Agreement
Date.
30.17 Governing Law. This Development Agreement, including, without limitation, its
existence, validity, construction and operation, and the rights of each of the parties shall be
determined in accordance with the laws of the State of California.
30.18 Effect on Title. OWNER and CITY agree that this Development Agreement shall
not continue as an encumbrance against any portion of the Property as to which this
Development Agreement has terminated.
30.19 Mortgagee Protection. Entering into or a breach of this Development Agreement
shall not defeat, render invalid, diminish, or impair the lien of Mortgagees having a mortgage on
any portion of the Property made in good faith and for value, unless otherwise required by law.
No Mortgagee shall have an obligation or duty under this Development Agreement to perform
27
OWNER's obligations, or to guarantee such performance prior to any foreclosure or deed in lieu
thereof.
30.20 Notice of Default to Mortgagee, Right of Mortgagee to Cure. If the City Clerk
timely receives notice from a Mortgagee requesting a copy of any notice of default given to
OWNER under the terms of this Development Agreement, CITY shall provide a copy of that
notice to the Mortgagee within ten (10) days of sending the notice of default to OWNER. The
Mortgagee shall have the right, but not the obligation, for a period up to ninety (90) days after the
receipt of such notice from CITY to cure or remedy, or to commence to cure or remedy the
default unless a further extension of time to cure is granted in writing by CITY. If the default is
of a nature which can only be remedied or cured by such Mortgagee upon obtaining possession,
such Mortgagee shall seek to obtain possession with diligence and continually through
foreclosure, a receiver or otherwise, and shall thereafter remedy or cure the default or
non compliance within thirty (30) days after obtaining possession. If any such default or
non compliance cannot, with diligence, be remedied or cured within such thirty (30) day period,
then such Mortgagee shall have such additional time as may be reasonably necessary to remedy
or cure such default or non compliance if such Mortgagee commences cure during such thirty
(30) day period, and thereafter diligently pursues and completes such cure.
30.21 Bankruptcy. Notwithstanding the foregoing provisions of Section 30.20 of this
Development Agreement, if any Mortgagee is prohibited from commencing or pursues and
prosecuting foreclosure or other appropriate proceedings in the nature thereof by any process or
injunction issued by any court or by reason of any action by any court having jurisdiction of any
bankruptcy or insolvency proceeding involving CITY, the times specified in this Section for
commencing or prosecuting foreclosure or other proceedings shall be extended for the period of
the prohibition.
30.22 Disaffirmance.
30.22.1 CITY agrees that in the event of termination of this Agreement by reason of any
default by CITY, or by reason of the disaffirmance hereof by a receiver, liquidator or trustee for
OWNER or its property, CITY, if requested by any Mortgagee, shall enter into a new
Development Agreement for the Project with the most senior Mortgagee requesting such new
agreement, for the remainder of the Term, effective as of the date of such termination, upon the
terms, provisions, covenants and agreements as herein contained to the extent and subject to the
law then in effect, and subject to the rights, if any, of any parties then in possession of any part of
the Property, provided:
30.22.2 The Mortgagee shall make written request upon CITY for the new Development
Agreement for the Project within thirty (30) days after the date of termination;
30.22.3 The Mortgagee shall pay to CITY at the time of the execution and delivery of the
new Development Agreement for the Project expenses, including reasonable attorneys' fees, to
which CITY shall have been subjected by reason of OWNER's default; and
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30.22.4 The Mortgagee shall perform and observe all covenants herein contained on
OWNER's part to be performed, and shall further remedy any other conditions which OWNER
under the terminated agreement was obligated to perform under its terms, to the extent the same
are curable or may be performed by the Mortgagee.
30.22.5 Nothing herein contained shall require any Mortgagee to enter into a new
agreement pursuant to Section 30.22.1 above, nor to cure any default of OWNER referred to
above.
30.23 No Third Party Beneficiaries. This Development Agreement and all provisions
hereof is made and entered into for the sole protection and benefit of CITY, OWNER and their
successors and assigns. No other person shall have right of action based upon any provision in
this Development Agreement.
30.24 Project as a Private Undertaking. It is specifically understood and agreed by and
between the parties hereto that the Project is a private development, that neither party is acting as
the agent of the other in any respect hereunder, and that each party is an independent contracting
entity with respect to the terms, covenants and conditions contained in this Development
Agreement. No partnership, joint venture or other association of any kind is formed by this
Development Agreement. The only relationship between CITY and OWNER is that of a
government entity regulating the development of private property and the owner of such private
property.
30.25 Restrictions. Property OWNER shall place in any agreements to sell or convey
any interest in the Property or any portion thereof, provisions making the terms of this
Development Agreement binding on any successors in interest of OWNER and express provision
for OWNER or CITY, acting separately or jointly, to enforce the provisions of this Development
Agreement and to recover attorneys' fees and costs for such enforcement.
30.26 Recitals. The recitals in this Development Agreement constitute part of this
Development Agreement and each party shall be entitled to rely on the truth and accuracy of each
recital as an inducement to enter into this Development Agreement.
30.27 Recording. The City Clerk shall cause a copy of this Development Agreement to
be executed by CITY and recorded in the Official Records of Orange County no later than ten
(10) days after CITY approves this Development Agreement.
30.28 Title Report. CITY is required to sign this Development Agreement only after
OWNER has provided CITY with a satisfactory preliminary title report evidencing and showing
OWNER' s legal and equitable ownership interest in the Property, current within six (6) months,
unencumbered except for the exceptions (hereinafter the "Permitted Exceptions set in the
preliminary title report for the Property dated May 24, 2007, attached hereto as Exhibit "F" (the
"Preliminary Title Report"). Any instrument of monetary encumbrance such as a deed of trust or
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a mortgage entered into subsequent to the date of the Preliminary Title Report and prior to the
Development Agreement Date, shall contain language expressly subordinating such instruments
of monetary encumbrance to the provisions of this Development Agreement. OWNER shall
present evidence, satisfactory to CITY, of OWNER's legal title to Property, subject only to the
Permitted Exceptions and any such subordinated instruments of monetary encumbrance, at the
time of recordation of this Agreement, or a memorandum thereof.
30.29 Entire Agreement. This Development Agreement, constitutes the entire agreement
between the parties with respect to the subject matter of this Development Agreement, and this
Development Agreement supersedes all previous negotiations, discussions and agreements
between the parties, and no parol evidence of any prior or other agreement shall be permitted to
contradict or vary the terms hereof.
30.30 Successors and Assigns. The burdens of the Development Agreement shall be
binding upon, and the benefits of the Development Agreement inure to all successors in interest
and assigns of the parties to the Development Agreement.
30.31 OWNER's Title of Property. Neither party hereto shall be bound by any provision
of this Agreement unless and until OWNER shall record this Development Agreement or a
memorandum thereof, in the office of the County Recorder of the County sufficient to cause this
Agreement and the obligations contained herein to attach to and encumber OWNER's fee title to
Property.
30.32 Exhibits. All exhibits, including attachments thereto, are incorporated in this
Development Agreement in their entirety by this reference.
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IN WITNESS WHEREOF, CITY and OWNER have executed this Development
Agreement as of the date and year first above written.
"CITY" "OWNER"
CITY OF ANAHEIM, a
municipal corporation
By: By:
Mayor Name:
Title:
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
31
32
EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY
33
EXHIBIT `B"
FINAL SITE PLAN
34
EXHIBIT "C"
CONDITIONS OF APPROVAL
35
EXHIBIT "D"
PLATINUM TRIANGLE INTERIM DEVELOPMENT FEES
36
Residential Uses
EXHIBIT "D -1"
ELECTRIC UTILITIES UNDERGROUNDING FEE
$11.42 per unit
The Anaheim Master Land Use Plan and the Underground Conversion Program envision
that the public utilities along Katella Avenue, between the State College Boulevard and Anaheim
Way will need to be undergrounded. The City -owned facilities will be undergrounded using City
funds, pursuant to the Rule No. 20 of the City of Anaheim Rates, Rules Regulations.
Some of the facilities along Katella Avenue are owned by Southern California Edison
(SCE). Moneys available to underground City -owned facilities may not be used to underground
SCE facilities. The interim fee will collect the funds necessary to underground the SCE lines,
and thereby significantly improve the appearance of The Platinum Triangle.
The cost to underground the SCE lines is estimated at $104,775. These funds will
collected by imposing an interim fee on the Mixed -used residential units planned in The
Platinum Triangle.
The formula for calculating the fee is the following:
Cost to Underground SCE lines
Number of mixed -use residential units
The Per -Unit fee is calculated at:
$104,775
9,175 Units
$11.42 per Unit
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Per -Unit Fee
GENERAL PLAN AND ENVIRONMENTAL PROCESSING FEE
Residential Uses:
Non residential Uses:
These fees are intended to recover the costs associated with The Platinum Triangle including costs
incurred in the preparation of the following:
The Platinum Triangle Documents including The Platinum Triangle Master Land Use Plan, the
Platinum Triangle Mixed Use Overlay and associated environmental documentation (approved
by the City Council in August, 2004); and
Subsequent Environmental Impact Report (SEIR) No. 332, which has been prepared to serve as
the environmental documentation for activities implementing The Platinum Triangle Master
Land Use Plan (certified by the City Council on October 25, 2005).
Subsequent Environmental Impact Report (SEIR) No. 334 and an Amendment to The Platinum
Triangle Master Land Use Plan to increase the intensity of commercial, residential, office and
institutional land uses in The Platinum Triangle (approved by the City Council on
The fees are based upon the following calculations:
The Platinum Triangle Documents Fee
Contract Costs: $146,000
New Development Allowed in The Platinum Triangle
7,044,300 sq. ft. of non residential uses
9,175 residential units (assume average unit size of 800 sq. ft. 7,340,000 sq. ft.)
7,044,300
7,340,000
14,384,300 total square feet
$146,000/14,393,300 $.01 per square foot
7,340,000 x $.01 $73,400
$73,400/9175 $8 per dwelling unit
EXHIBIT "D 2"
$48.00 per unit
$0.06 per sq. ft.
Residential Uses: $8.00 per unit
Commercial /Office Uses: $0.01 per square foot
38
SEIR No. 332 Fee*
Contract Costs:
Planning Department Costs FY2004
Planning Department Costs FY2005
4,246,522 sq. ft. of commercial /office
5,495,200 sq. ft. of residential use (assume average unit size of 800 sq. ft.
6,869 residential units x 800 sq. ft 5,495,200)
4,246,522
+5,495,200
9,741,722 total square feet (non- residential and residential)
$299,770.55/9,741,722 $.03 per square foot
5,495,200 x $.03 $164,856
$164,856/6,869 dwelling units $24.00 per dwelling unit
Residential Uses: $24.00 per unit
Commercial /Office Uses: 0.03 per square foot
Note: The Planning Department Costs represents staff time and materials associated with the
preparation of SEIR No. 332 and the square footage listed above reflects the number of allowable
PTMU Overlay Zone square feet not entitled at the time SEIR No. 332 was certified.
SEIR No. 334 Fee*
Contract Costs:
Planning Department Costs
Public Works Department Costs
$164,730.00
$110,547.83
24,492.72
$299,770.55
$241,293.00
$321,724.00
41,325.00
$604,342.00
18,531,215 sq. ft. of non residential
9,214,400 sq. ft. of residential use (assume average unit size of 800 sq. ft.
11,518 residential units x 800 sq. ft 9,214,400 sq. ft.)
27,745,615 total square feet (non residential and residential)
$604,342/27,745,615 sq. ft. $.02 per square foot
Residential Uses: $16.00 per unit
Non residential Uses: 0.02 per square foot
39
Note: The Planning and Public Works Department Costs represents staff time and materials associated with the preparation
of SEIR No. 334 and the associated amendments to The Platinum Triangle Master Land Use Plan. The square footage listed
above reflects the number of allowable PTMU Overlay Zone square feet not entitled at the time SEIR No. 334 was certified.
40
Residential Uses
EXHIBIT "D -3"
LIBRARY FACILITIES FEE
$486.77 per unit
The increase of density in The Platinum Triangle to an expected population over 27,000 residents
requires the inclusion of a library facility in the Platinum Triangle. The library facilities fee includes the
cost of the purchase of a 10,000 square foot commercial condominium shell space with 50 assigned
parking spaces as well as FF &E and an opening day collection. The projected project cost for a 10,000
square foot library facility in the Platinum Triangle is $8,004,000. The individual unit library impact fee
for the Platinum Triangle is now $486.77 per unit.
41
EXHIBIT "E"
DEVELOPMENT REQUIREMENTS AND MAINTENANCE OBLIGATIONS
42
EXHIBIT "F"
PRELIMINARY TITLE REPORT
43
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
City Council
City of Anaheim
c/o City Clerk
P.O. Box 3222
Anaheim, California 92805
(Space Above Line For Recorder's Use)
DEVELOPMENT AGREEMENT NO.
BETWEEN
THE CITY OF ANAHEIM
AND
Exhibit "B"
Platinum Triangle Standardized Development Agreement Form
Office District
DEVELOPMENT AGREEMENT NO.
BETWEEN
THE CITY OF ANAHEIM
AND
TABLE OF CONTENTS
PAGE
RECITALS 1
Section 1. DEFINITIONS 5
1.1 Assessment District 5
1.2 Authorizing Ordinance 5
1.3 City 5
1.4 Development 5
1.5 Development Agreement 6
1.6 Development Agreement Date 6
1.7 Development Agreement Statute 6
1.8 Development Approvals 6
1.9 Enabling Ordinance 6
1.10 Existing Land Use Regulations 6
1.11 Final Site Plan 7
1.12 Gross Floor Area/GFA 7
1.13 Interim Development Fees 7
1.14 Mortgage 7
1.15 Mortgagee 7
1.16 Owner 7
1.17 Parking Areas 7
1.18 Permitted Development 7
1.19 Platinum Triangle 7
1.20 Procedures Resolution 7
1.21 Project 7
1.22 Property 8
1.23 Support Commercial Uses 8
1.24 Term 8
1.25 Zoning Code 8
Section 2. TERM 8
Section 3. BINDING COVENANTS 8
Section 4. EFFECT OF AGREEMENT 9
i
Section 5. PROJECT LAND USES 9
Section 6. PERMITTED DELOPMENT 9
6.1 Description of Permitted Development 9
6.2 Parking Areas 9
Section 7. DENSITY OF PERMITTED DEVELOPMENT 9
Section 8. ENFORCEMENT 10
Section 9. PUBLIC IMPROVEMENTS AND SERVICES 10
9.1 Utilities (Water, Electrical, Gas, Sewer, and Drainage) 11
9.1.1 Water Service 11
9.1.2 Sanitary Sewer and Storm Drains 11
9.2 Timing, Phasing and Sequence of Public Improvements and Facilities 11
9.3 Traffic Circulation Improvements 11
Section 10. REIMBURSEMENT PROVISION 12
Section 11. DEDICATIONS AND EXACTIONS 12
Section 12. FEES, TAXES AND ASSESSMENT 12
12.1 Fees, Taxes and Assessments 12
12.2 General Plan and Environmental Processing Fee 12
12.3 Excluded Development Fees 12
12.3.1 Water Utilities Fees 12
12.3.2 Electrical Utilities Fees 12
12.3.3 City Processing Fees 13
12.4 Platinum Triangle Infrastructure and /or Maintenance Assessment District 13
12.5 Accounting of Funds 13
12.6. Imposition of Increased Fees, Taxes or Assessments 13
Section 13. COVENANTS, CONDITIONS AND RESTRICTIONS 13
Section 14. NEXUS /REASONABLE RELATIONSHIP CHALLENGES 13
Section 15. TIMING OF DEVELOPMENT 14
Section 16. EXISTING USES 14
Section 17. FUTURE APPROVALS 14
17.1 Basis for Denying or Conditionally Granting Future Approvals 14
17.2 Standard of Review 14
17.3 Future Amendments to Final Site Plan 14
ii
Section 18. AMENDMENT 15
18.1 Initiation of Amendment 15
18.2 Procedure 15
18.3 Consent 15
18.4 Amendments 15
18.5 Effect of Amendment to Development Agreement 15
Section 19. NON CANCELLATION OF RIGHTS 15
Section 20. BENEFITS TO CITY 15
Section 21. BENEFITS TO OWNER 16
Section 22. UNDERTAKINGS AND ASSURANCES CONTEMPLATED AND
PROMOTED BY DEVELOPMENT AGREEMENT STATUTE 16
Section 23. RESERVED AUTHORITY 16
23.1 State and Federal Laws and Regulations 16
23.2 Model Codes 17
23.3 Public Health and Safety 17
Section 24. CANCELLATION 17
24.1 Initiation of Cancellation 17
24.2 Procedure 17
24.3 Consent of OWNER and CITY 17
Section 25. PERIODIC REVIEW 17
25.1 Time for Review 17
25.2 OWNER's Submission 18
25.3 Findings 18
25.4 Initiation of Review by City Council 18
Section 26. EVENTS OF DEFAULT 18
26.1 Defaults by OWNER 18
26.2 Specific Performance Remedy 19
26.3 Liquidated Damages Remedy 19
Section 27. MODIFICATION OR TERMINATION 19
27.1 Notice to OWNER 20
27.2 Public Hearing 20
27.3 Decision 20
27.4 Standard of Review 20
27.5 Implementation 20
27.6 Schedule for Compliance 20
iii
Section 28. ASSIGNMENT 20
28.1 Right to Assign 20
28.2 Release upon Transfer 21
Section 29. NO CONFLICTING ENACTMENTS 21
Section 30. GENERAL 30
30.1 Force Majeure 22
30.2 Construction of Development Agreement 22
30.3 Severability 22
30.4 Cumulative Remedies 23
30.5 Hold Harmless Agreement 23
30.6 Cooperation in the Event of Legal Challenge 23
30.7 Public Agency Coordination 23
30.8 Initiative Measures 23
30.9 Attorneys' Fees 24
30.10 No Waiver 24
30.11 Authority to Execute 24
30.12 Notice 24
30.12.1 To OWNER 24
30.12.2 To CITY 25
30.13 Captions 25
30.14 Consent 25
30.15 Further Actions and Instruments 26
30.16 Subsequent Amendment to Authorizing Statute 26
30.17 Governing Law 26
30.18 Effect on Title 26
30.19 Mortgagee Protection 26
30.20 Notice of Default to Mortgagee; Right of Mortgagee to Cure 26
30.21 Bankruptcy 27
30.22 Disaffirmance 27
30.23 No Third Party Beneficiaries 27
30.24 Project as a Private Undertaking 28
30.25 Restrictions 28
30.26 Recitals 28
30.27 Recordings 28
30.28 Title Report 28
30.29 Entire Agreement 28
30.30 Successors and Assigns 29
30.31 OWNER'S Title to Property 29
30.32 Exhibits 29
iv
Exhibit "A"
Exhibit "B"
Exhibit "C"
Exhibit "D"
Exhibit "E"
Exhibit "F"
LIST OF EXHIBITS
Legal Description of the Property
Final Site Plan
Conditions of Approval
General Plan and Environmental Processing Fee
Development Requirements and Maintenance Obligations
Preliminary Title Report
DEVELOPMENT AGREEMENT NO.
BETWEEN
THE CITY OF ANAHEIM
AND
This Development Agreement is entered into this day of 20_, by
and between the City of Anaheim, a charter city and municipal corporation, duly organized and
existing under the Constitution and laws of the State of California (hereinafter "CITY and
(referred to herein as "OWNER pursuant to the authority set forth in Article 2.5 of
Chapter 4 of Division 1 of Title 7, Sections 65864 through 65869.5 of the California Government
Code (the "Development Agreement Statute
RECITALS
This Development Agreement is predicated upon the following facts:
A. To strengthen the public planning process, encourage private participation in
comprehensive planning, and reduce the economic risk of development, the Legislature of the
State of California adopted the Development Agreement Statute, Sections 65864, et seq., of the
Government Code. The Development Agreement Statute authorizes CITY to enter into binding
development agreements with persons having legal or equitable interests in real property for the
development of such property in order to, among other things: encourage and provide for the
development of public facilities in order to support development projects; provide certainty in
the approval of development projects in order to avoid the waste of resources and the escalation
in project costs and encourage investment in and commitment to comprehensive planning which
will make maximum efficient utilization of resources at the least economic cost to the public;
provide assurance to the applicants of development projects (1) that they may proceed with their
projects in accordance with existing policies, rules and regulations, subject to the conditions of
approval of such projects and provisions of such development agreements, and (2) encourage
private participation in comprehensive planning and reduce the private and public economic
costs of development.
B. These Recitals refer to and utilize certain capitalized terms which are defined in this
Development Agreement. The parties intend to refer to those definitions in conjunction with the
use thereof in these Recitals.
C. On May 25, 2004, the Anaheim City Council approved General Plan Amendment No.
2004 -00419 setting forth the CITY's vision for development of the City of Anaheim, and
certified Final Environmental Impact Report No. 330, adopting Findings of Fact and a Statement
of Overriding Considerations, and associated Mitigation Monitoring Plans "FEIR No. 330 in
conjunction with its consideration and approval of General Plan Amendment No. 2004 00419,
amendment of the Zoning Code, and a series of related actions.
1
D. CITY desires that the approximately 820 -acre area generally bounded by the Santa
Ana River on the east, the Anaheim City limits on the south, the Santa Ana Freeway (Interstate
5) on the west, and the Southern California Edison Company Easement on the north (hereinafter
called "The Platinum Triangle be developed as a combination of high quality industrial, office,
commercial and residential uses, as envisioned in the General Plan Amendment.
E. In order to carry out the goals and policies of the General Plan for The Platinum
Triangle, on May 25, 2004, the City Council approved The Platinum Triangle Master Land Use
Plan, setting forth the new vision for The Platinum Triangle.
F. To further implement the goals and policies of the General Plan for The Platinum
Triangle, the City Council has established The Platinum Triangle Mixed -Use (PTMU) Overlay
Zone (hereinafter the "PTMU Overlay Zone consisting of approximately three hundred and
eighty -nine acres within The Platinum Triangle as depicted in The Platinum Triangle Master
Land Use Plan to provide opportunities for high quality well designed development projects that
could be stand -alone projects or combine residential with non residential uses including office,
retail, business services, personal services, public spaces and uses, and other community
amenities within the area.
G. On October 25, 2005, the Anaheim City Council certified Final Subsequent
Environmental Impact Report No. 332, adopting a Statement of Findings of Fact, a Statement of
Overriding Considerations and the updated and modified Mitigation Monitoring Program No.
106A "FSEIR No. 332 to provide for the implementation of The Platinum Triangle Master
Land Use Plan, and in conjunction with its consideration and approval of General Plan
Amendment No. 2004 00420, Miscellaneous Case No. 2005- 00089, Zoning Code Amendment
No. 2004 -00036 and a series of related actions.
H. On 2007, the Anaheim City Council adopted General Plan Amendment
No. 2007 -00454 and approved an amendment to the Platinum Triangle Master Land Use Plan
(Miscellaneous Case No. 2007 00188) and certified EIR No. 2006 00334, to increase the
maximum number of dwelling units permitted in The Platinum Triangle to 18,363 dwelling
units, increase the maximum number of commercial square footage to 5,657,847, increase the
maximum number of office square footage to 16,519,015 and add 1,500,000 square feet of
square footage of institutional land uses.
I. OWNER represents that it owns in fee approximately acres of real
property located at in the City of Anaheim, County of Orange (hereinafter
"County State of California, (hereinafter collectively called the "Property in The Platinum
Triangle and zoned PTMU Overlay and more particularly shown and described on Exhibit "A"
attached hereto and made a part hereof by this reference.
J. OWNER desires to develop the Property in accordance with the provisions of this
Development Agreement by developing a all
as more particularly set forth in the Final Site Plan (hereinafter collectively referred to as the
"Proj ect").
2
K. CITY desires to accomplish the goals and objectives set forth in the CITY's General
Plan and the objectives for the PTMU Overlay Zone as set forth in subsection 18.20.010.020 of
the Anaheim Municipal Code, and finds that the Project will accomplish said goals and
obj ectives.
L. Pursuant to the Final Site Plan, OWNER will submit tentative maps and/or vesting
tentative maps, if required. OWNER further anticipates the submission of detailed construction
plans and other documentation required by CITY in order for the OWNER to obtain its building
permits.
M. As consideration for the benefits gained from the vested rights acquired pursuant to
the Development Agreement Statute, to conform with the requirements of the PTMU Overlay
Zone, and to comply with the applicable mitigation measures imposed by Updated and Modified
Mitigation Monitoring Program No. 106 B and Mitigation Monitoring Plan No. for the
Project, CITY is requiring that OWNER construct and install certain public improvements,
including off -site traffic circulation improvements, and provide other public benefits.
N. In order to avoid any misunderstandings or disputes which may arise from time to
time between OWNER and CITY concerning the proposed development of the Project and to
assure each party of the intention of the other as to the processing of any land use entitlements
which now or hereafter may be required for such development, the parties believe it is desirable
to set forth their intentions and understandings in this Development Agreement. In order for
both CITY and OWNER to achieve their respective objectives, it is imperative that each be as
certain as possible that OWNER will develop and that CITY will permit OWNER to develop the
Project and public improvements as approved by CITY within the time periods provided in this
Development Agreement.
O. CITY, as a charter city, has enacted Ordinance No. 4377 on November 23, 1982,
which makes CITY subject to the Development Agreement Statute. Pursuant to Section 65865
of the Development Agreement Statute, CITY adopted Resolution No. 82R -565 (the "Procedures
Resolution on November 23, 1982. The Procedures Resolution establishes procedures and
requirements for the consideration of development agreements upon receipt of an application.
P. On 20 as required by Section 1.0 of the Procedures Resolution,
OWNER submitted to the Planning Department an application for approval of a development
agreement (hereinafter called the "Application The Application included a proposed
development agreement (the "Proposed Development Agreement
Q. On 20 as required by Section 65867 of the Development Agreement
Statute and Section 2.1 of the Procedures Resolution, the Planning Director gave public notice of
the City Planning Commission's intention to consider a recommendation to the City Council
regarding adoption of a development agreement.
3
R. On 20 as required by Section 65867 of the Development Agreement
Statute and Section 2.2 of the Procedures Resolution, the City Planning Commission held a
public hearing on the Application.
S. On that date, the City Planning Commission, after considering the requirements of
CEQA, including Section 21166 of the California Public Resources Code and Section 15162 of
the CEQA Guidelines, found and determined and recommended that the City Council find that
previously- certified FSEIR No. 334, together with the Updated and Modified Mitigation
Monitoring Program No. 106B for The Platinum Triangle, and Mitigation Monitoring Plan No.
are adequate to serve as the required environmental documentation for this Development
Agreement, and related Project Actions, and satisfy all of the requirements of CEQA, and that no
further environmental documentation need be prepared for this Development Agreement.
T. The Planning Commission further found that the Development Agreement meets the
following standards set forth in Section 2.3 of the Procedures Resolution, to wit, that the
Proposed Project: (i) is consistent with the CITY's existing General Plan, (ii) is compatible with
the uses authorized in and the regulations prescribed for the applicable zoning district, (iii) is
compatible with the orderly development of property in the surrounding area, and (iv) is not
otherwise detrimental to the health, safety and general welfare of the citizens of CITY. Based
upon the aforesaid findings, the City Planning Commission recommended that the City Council
approve the Application and this Development Agreement pursuant to Resolution No. PC
U. On 20 as required by Section 65867 of the Development Agreement
Statute and Section 3.1 of the Procedures Resolution, the City Clerk caused public notice to be
given of the City Council's intention to consider adoption of a development agreement.
V. On 20 as required by Section 65867 of the Development Agreement
Statute and Section 3.2 of the Procedures Resolution, the City Council held a public hearing on
the Application.
W. On that date, the City Council, after considering the requirements of CEQA,
including Section 21166 of the California Public Resources Code and Section 15162 of the
CEQA Guidelines, did find and determined that previously- certified FSEIR No. 334, together
with the Updated and Modified Mitigation Monitoring Program No. 106B for The Platinum
Triangle, and Mitigation Monitoring Plan No. are adequate to serve as the required
environmental documentation for this Development Agreement, and related Project Actions, and
satisfies all of the requirements of CEQA, and that no further environmental documentation need
be prepared for this Development Agreement.
X. On 20, the City Council did find and determined that this
Development Agreement: (i) is consistent with the CITY's existing General Plan; (ii) is not
otherwise detrimental to the health, safety and general welfare of the citizens of CITY; (iii) is
entered into pursuant to and constitutes a present exercise of the CITY's police power; and (iv) is
4
entered into pursuant to and in compliance with the requirements of Section 65867 of the
Development Agreement Statute and the Procedures Resolution.
Y. In preparing and adopting the General Plan and in granting the Development
Approvals, CITY considered the health, safety and general welfare of the residents of CITY and
prepared in this regard an extensive environmental impact report and other studies. Without
limiting the generality of the foregoing, in preparing and adopting the General Plan and in
granting the Development Approvals, the City Council carefully considered and determined the
projected needs (taking into consideration the planned development of the Project and all other
areas within the CITY) for water service, sewer service, storm drains, electrical facilities,
traffic /circulation infrastructure, police and fire services, paramedic and similar improvements,
facilities and services within The Platinum Triangle, and the appropriateness of the density and
intensity of the development comprising the Project and the needs of the CITY and surrounding
areas for other infrastructure.
Z. On 20 the City Council adopted the Authorizing Ordinance
approving and authorizing the execution of this Development Agreement.
NOW, THEREFORE, pursuant to the authority contained in the Development Agreement
Statute, as it applies to CITY, and pursuant to the Enabling Ordinance, the Procedures
Resolution and the CITY's inherent powers as a charter city, and pursuant to the mutual promises
and covenants herein contained, the parties hereto agree as follows:
Section 1. DEFINITIONS.
The following words and phrases are used as defined terms throughout this Development
Agreement, and each defined term shall have the meaning set forth below.
1.1 Assessment District. "Assessment District" for purposes of this Development
Agreement means a special district, assessment district or benefit area existing pursuant to State
law or the charter powers of the CITY for purposes of financing the cost of public
improvements, facilities, services and/or public facilities fees within a distinct geographic area of
the CITY.
1.2 Authorizing Ordinance. The "Authorizing Ordinance" means Ordinance No.
approving this Development Agreement.
1.3 CITY. The "CITY" means the City of Anaheim, a charter city and municipal
corporation, duly organized and existing under its charter and the Constitution and laws of the
State of California.
1.4 Development. "Development" means the improvement of the Property for purposes
of effecting the structures, improvements and facilities comprising the Project, including, without
limitation: grading, the construction of infrastructure and public facilities related to the Project
5
whether located within or outside the Property; the construction of structures and buildings and
the installation of landscaping.
1.5 Development Agreement. "Development Agreement" means this Development
Agreement and any subsequent amendments to this Development Agreement which have been
made in compliance with the provisions of this Development Agreement, the Development
Agreement Statute, the Enabling Ordinance, and the Procedures Resolution.
1.6 Development Agreement Date. The "Development Agreement Date" means the later
of (i) the date of recordation in the office of the County Recorder of this Development
Agreement, or a memorandum thereof, or (ii) the effective date of the Authorizing Ordinance.
1.7 Development Agreement Statute. The "Development Agreement Statute" means
Sections 65864 through 65869.5 of the California Government Code as it exists on the
Development Agreement Date.
1.8 Development Approvals. "Development Approvals" means the Final Site Plan and
all site specific plans, maps, permits and other entitlements to use, of every kind and nature,
contemplated by the Final Site Plan which are approved or granted by CITY in connection with
development of the Property, including, but not limited to: site plans (including Final Site Plans),
tentative and final subdivision maps, vesting tentative maps, variances, conditional use permits
and grading, building and other similar permits. To the extent any of such site plans, maps,
permits and other entitlements to use are amended from time to time, "Development Approvals"
shall include, if OWNER and CITY agree in writing, such matters as so amended. If this
Development Agreement is required by law to be amended in order for "Development
Approvals" to include any such amendments, "Development Approvals" shall not include such
amendments unless and until this Development Agreement is so amended.
1.9 Enabling Ordinance. The "Enabling Ordinance" means Ordinance No. 4377 enacted
by the CITY on November 23, 1982.
1.10 Existing Land Use Regulations. "Existing Land Use Regulations" mean the
ordinances and regulations adopted by the City of Anaheim in effect on the Effective Date,
including the adopting ordinances and regulations that govern the permitted uses of land, the
density and intensity of use, and the design, improvement, construction standards and
specifications applicable to the development of the Property, including, but not limited to, the
General Plan, the Zoning Code, The Platinum Triangle Master Land Use Plan, Mitigation
Monitoring Program No. 106B and Mitigation Monitoring Program No. and all other
ordinances of the City establishing subdivision standards, park regulations, impact or
development fees and building and improvement standards, but only to the extent the Zoning
Code and such other regulations are not inconsistent with this Development Agreement.
Existing Land Use Regulations do not include a non -land use regulation, including taxes.
6
1.11 Final Site Plan. The "Final Site Plan" means the Project as described in this
Development Agreement and conditions with respect thereto, as set forth as Exhibit "B" attached
hereto and made a part hereof by this reference.
1.12 Gross Floor Area/GFA. "Gross Floor Area" or "GFA" means the gross floor area of
any buildings which are part of the Permitted Development.
1.13 Interim Development Fees. "Interim Development Fees" are the fees imposed
within The Platinum Triangle pending adoption of permanent fee programs by the City as set
forth in Paragraph 12.2 of this Agreement.
1.14 Mortgage. "Mortgage" means a mortgage, deed of trust or sale and leaseback
arrangement or other transaction in which the Property, or a portion thereof or an interest therein,
is pledged as security.
1.15 Mortgagee. "Mortgagee" means the holder of the beneficial interest under a
Mortgage, or the owner of the Property, or interest therein, under a Mortgage.
1.16 OWNER. "OWNER" is and any person or entity with
which or into which may merge, and any person or entity who may acquire
substantially all of the assets of and any person or entity who
receives any of the rights or obligations of under this Development Agreement in accordance
with the provisions of Section 27 (Assignment) of this Development Agreement.
1.17 Parking Areas. The "Parking Areas" means all parking structure(s), and /or all
surface parking servicing the Project.
1.18 Permitted Development. "Permitted Development" includes all buildings and other
development, such as, the Parking Areas as identified in Section 6 of this Development
Agreement, and as further set forth in the Final Site Plan. This Development Agreement
establishes maximum and minimum characteristics for all Permitted Development as set forth in
the Final Site Plan.
1.19 Platinum Triangle. "The Platinum Triangle" means that portion of the City of
Anaheim generally bounded on the east by the Santa Ana River, on the south by the Anaheim
city limits, on the west by the Santa Ana Freeway, and on the north by the Southern California
Edison Easement.
1.20 Procedures Resolution. The "Procedures Resolution" is Resolution No. 82R -565
adopted by CITY pursuant to Section 65865 of the Development Agreement Statute.
1.21 Project. The "Project" means the development project contemplated by the
approved Final Site Plan with respect to the Property, including but not limited to on -site and
off -site improvements, as such development project is further defined, enhanced or modified
pursuant to the provisions of this Development Agreement and the Development Approvals.
7
1.22 Property. The "Property" means that certain real property shown and described on
Exhibit "A" to this Development Agreement.
1.23 Support Commercial Uses. "Support Commercial Uses" are commercial\retail uses
which may include retail uses, banking or financial offices, food service, restaurants, service
establishments and other similar uses in keeping with the nature of the Project and the required
uses needed to support the occupants of office buildings, other office development, sports and
entertainment venues and residential development in The Platinum Triangle.
1.24 Term. "Term" is defined in Section 2 of this Development Agreement.
1.25 Zoning Code. "Zoning Code" refers to Title 18 of the Anaheim Municipal Code.
Section 2. TERM.
2.1 The term of this Development Agreement (hereinafter called "Term shall be that
period of time during which this Development Agreement shall be in effect and bind the parties
hereto. The Term shall commence on the Development Agreement Date and shall extend for a
period of five (5) years thereafter, terminating at the end of the day on the fifth anniversary of the
Development Agreement Date, subject to the periodic review and modification or termination
provisions defined in Section 25 and Section 27, respectively, of this Development Agreement,
and further subject to a reasonable extension for completion of the Project in accordance with the
Timing of Development schedule set forth in Section 15 of this Development Agreement.
2.2 This Development Agreement shall terminate and be of no force and effect upon the
occurrence of the entry of a final judgment or issuance of a final order, after all appeals have
been exhausted, from a court with applicable jurisdiction directing CITY to set aside, withdraw
or abrogate the approval of the City Council of this Development Agreement or if termination
occurs pursuant to the provisions of the Procedures Resolution and such termination is so
intended thereby.
2.3 If not already terminated by reason of any other provision in this Development
Agreement, or for any other reason, this Development Agreement shall automatically terminate
and be of no further force and effect upon completion of the Project in its entirety pursuant to the
terms of this Development Agreement and the issuance of all occupancy permits and acceptance
by CITY of all dedications and improvements as required by the development of the Project.
Section 3. BINDING COVENANTS.
The provisions of this Development Agreement to the extent permitted by law shall
constitute covenants which shall run with the Property for the benefit thereof, and the benefits of
this Development Agreement shall bind and inure to the benefit of the parties and all successors
in interest to the parties hereto.
8
Section 4. EFFECT OF AGREEMENT.
As a material part of the consideration of this Development Agreement, unless otherwise
provided herein, the parties agree that the Existing Land Use Regulations shall be applicable to
development of the Project. In connection with all subsequent discretionary actions by CITY
required to implement the Final Site Plan and any discretionary actions which CITY takes or has
the right to take under this Development Agreement relating to the Project, including any review,
approval, renewal, conditional approval or denial, CITY, shall exercise its discretion or take
action in a manner which complies and is consistent with the Final Site Plan, the Existing Land
Use Regulations and such other standards, terms and conditions expressly contained in this
Development Agreement. CITY shall accept and timely process, in the normal manner for
processing such matters as may then be applicable, all applications for further approvals with
respect to the Project called for or required under this Development Agreement, including, any
necessary site plan, tentative and final subdivision maps, vesting tentative maps and any grading,
construction, building and other similar permits filed by OWNER in accordance with the
Development Approvals.
Section 5. PROJECT LAND USES.
5.1 The Property shall be used for such uses as may be permitted by the Development
Approvals and the Existing Land Use Regulations. The Term, the density and intensity of use,
developable GFA, footprint square footage, the maximum height and size of proposed buildings
and structures, lot sizes, set back requirements, zoning, public improvements, and the provisions
for reservation or dedication of land for public purposes shall be those set forth in the
Development Approvals, the Existing Land Use Regulations and this Development Agreement
pursuant to Section 65865.2 of the Development Agreement Statute.
Section 6. PERMITTED DEVELOPMENT.
6.1 Description of Permitted Development. The Permitted Development shall be as set
forth on the Final Site Plan. The Project shall be constructed substantially in conformance with
the Final Site Plan.
6.2 Parking Areas. The Parking Areas shall be constructed so that there will be sufficient
parking spaces available within the Property to serve the Project, as depicted and substantially in
conformance with the Final Site Plan. Prior to commencement of construction of the first
building within the Project, OWNER shall restrict the use of the Parking Areas to tenants,
visitors, patrons, invitees and other users of the permitted buildings, and shall record a covenant
against the Property in a form approved by the City Attorney stating that the use of the Parking
Areas shall be limited in that manner. Said covenant shall also provide that the Parking Areas
shall not be used to provide public parking for patrons of Angel Stadium of Anaheim, The Grove
of Anaheim or Honda Center without the prior written agreement between OWNER and CITY
relating to such parking.
Section 7. DENSITY OF PERMITTED DEVELOPMENT.
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The Permitted Development shall be between the minimum and maximum sizes, and
shall not exceed the maximum heights and maximum footprints set forth on the Final Site Plan.
Section 8. ENFORCEMENT.
Unless this Development Agreement is terminated or cancelled pursuant to the provisions
of this Development Agreement, this Development Agreement or any amendment hereto, shall
be enforceable by any party hereto notwithstanding any change hereafter in any applicable
general plan, specific plan, zoning ordinance, subdivision ordinance or building ordinance
adopted by CITY which alters or amends the rules, regulations or policies of Development of the
Project as provided in this Development Agreement pursuant to Section 65865.4 of the
Development Agreement Statute; provided, however, that the limitations of this Section shall not
apply to changes mandated by State or Federal laws or other permissible changes or new
regulations as more particularly set forth in Section 23 of this Development Agreement.
Section 9 PUBLIC IMPROVEMENTS AND SERVICES.
In addition to performing any other obligations heretofore imposed as conditions of
approval set forth in Exhibit "C," as material consideration for the CITY's entering into this
Development Agreement, OWNER shall undertake the construction and installation of the
following public improvements required to support the Project and to enhance area -wide traffic
circulation and emergency police and fire protection service within the time periods as set forth
below and in conformance with the Existing Land Use Regulations. CITY shall cooperate with
OWNER for the purpose of coordinating all public improvements constructed under the
Development Approvals or this Development Agreement to existing or newly constructed public
improvements, whether located within or outside of the Property. OWNER shall be responsible
for and use good faith efforts to acquire any right(s) -of -way necessary to construct the public
facility improvements required by, or otherwise necessary to comply with the conditions of, this
Development Agreement or any Development Approvals. Should it become necessary due to
OWNER's failure or inability to acquire said right(s) -of -way within four months after OWNER
begins its efforts to so acquire said right(s) -of -way, CITY shall negotiate the purchase of the
necessary right(s) -of -way to construct the public improvements as required by, or otherwise
necessary to comply with the conditions of, this Development Agreement and, if necessary in
accordance with the procedures established by State law, and the limitations hereinafter set forth
in this Section, CITY may use its powers of eminent domain to condemn said required right(s) -of
way. OWNER agrees to pay for all costs associated with said acquisition and condemnation
proceedings. If the CITY cannot make the proper findings or if for some other reason under the
condemnation laws CITY is prevented from acquiring the necessary right(s) -of -way to enable
OWNER to construct the public improvements required by, or otherwise necessary to comply
with the conditions of, this Development Agreement, then the parties agree to amend this
Development Agreement to modify OWNER's obligations accordingly. Any such required
modification shall involve the substitution of other considerations or obligations by OWNER (of
similar value) as are negotiated in good faith between the parties hereto. Nothing contained in
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this Section shall be deemed to constitute a determination or resolution of necessity by CITY to
initiate condemnation proceedings.
9.1 Utilities (Water, Electrical, Gas, Sewer, and Drainage). OWNER shall construct the
public improvements necessary for the provision of requisite water, electrical, gas, sewer and
drainage requirements for Project as more fully set forth in the Development Approvals.
OWNER shall construct and relocate utilities as may be required to provide services to the
Permitted Development on the Property or that are displaced by the construction of the Permitted
Development. As OWNER submits detailed construction plans in order to obtain building
permits for a Permitted Development and /or the size and nature of the Project varies, the utilities
that OWNER will construct or relocate may be revised accordingly by the CITY.
9.1.1 Water Service. OWNER will provide engineering studies to size the water mains
for ultimate development within the Project. Said engineering studies will be conducted prior to
rendering of water service or signature approval of the final water improvement plans, whichever
occurs first. The studies shall be subject to the approval of the General Manager, Public Utilities
Department or authorized designee. Alternatively, at OWNER'S election, the water system may
be constructed incrementally, provided that said incremental phasing is adequate to provide
municipal demands and fire flow protection for the proposed development phasing. OWNER
will conform with Rule 15D of the Water Utility's Rates, Rules and Regulations which provides
for, in part, a fee based on GFA and the advancement of additional funds to construct the
upgraded water facilities. OWNER shall be entitled to reimbursement in accordance with the
terms of Rule 15D for the advancement of additional funds to construct the upgraded water
facilities.
9.1.2 Sanitary Sewer and Storm Drains. Prior to final building and zoning inspections for
the first building within the Permitted Development, OWNER will construct all sanitary sewers,
storm drains, and appurtenant structures (including treatment control BMP's as required by the
WQMP) to serve the ultimate development of the Property as provided by areawide engineering
studies to be conducted prior to issuance of any building permits for the first building within the
Permitted Development and updated prior to the issuance of any building permits for each
subsequent building within the Permitted Development. All studies shall be subject to the
approval of the City Engineer. OWNER will construct improvements identified in said studies.
The systems may be constructed incrementally subject to the approval of the City Engineer,
provided that said incremental phasing is adequate to provide capacity for the proposed
development phasing.
9.2 Timing, Phasing and Sequence of Public Improvements and Facilities. The phasing
and sequence of the construction of public improvements and facilities or the payment of fees
therefor shall be constructed or paid in accordance with the timing, phasing and sequence set
forth in this Development Agreement and the Final Site Plan.
9.3 Traffic Circulation Improvements. In order to assist CITY in providing for area -wide
traffic circulation as required by this Project, OWNER shall cause to be made the traffic
circulation improvements identified for the Project including all applicable measures from the
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Updated and Modified Mitigation Monitoring Program No. 106B approved in conjunction with
FSEIR No. 334, and Mitigation Monitoring Plan No. and as shown on the
Final Site Plan.
Section 10. REIMBURSEMENT PROVISION.
In the event OWNER is required to construct public improvements which are
supplemental to the requirements of the Project for the benefit of other properties, CITY will
work with OWNER to establish mechanisms for proportional reimbursement from owners of the
benefited properties. All costs associated with establishing said mechanisms shall be paid by
OWNER.
Section 11. DEDICATIONS AND EXACTIONS.
Prior to issuance of the first building permit for the Project, OWNER shall irrevocably
offer for dedication the rights -of -way, including the public connector streets and Market Street, if
applicable, and other areas as more fully set forth in the Final Site Plan. These dedications shall
be in fee or as an easement at the discretion of CITY, and upon completion and acceptance by
CITY of the associated improvements in compliance with the specifications as approved by
CITY, CITY shall accept OWNER's offer of dedication. Nothing contained in this Development
Agreement, however, shall be deemed to preclude CITY from exercising the power of eminent
domain with respect to the Property or the Project, or any part thereof.
Section 12. FEES, TAXES, AND ASSESSMENTS.
12.1 Fees, Taxes and Assessments. OWNER shall be responsible for the payment of fees
in the amount and at the times set forth in the Existing Land Use Regulations, as said amounts
and timing may be modified in accordance with this Development Agreement.
12.2 General Plan and Environmental Processing Fee. OWNER will pay a processing
fee attributable to the cost of creating and establishing the Master Land Use Plan and the PTMU
Overlay Zone for The Platinum Triangle, as well as the costs of associated environmental
documentation, as said additional costs are set forth in Exhibit "D."
12.3 Excluded Development Fees. The following fees shall not be included among the
fees which would otherwise fall within the definition of Existing Land Use Regulations:
12.3.1 Water Utilities Fees. OWNER will pay all applicable fees in accordance with the
Water Utilities Rates, Rules and Regulations in effect at the time of application for service
including Rule 15D which provides for, in part, a fee based on GFA to construct the necessary
water facility improvements within The Platinum Triangle.
12.3.2 Electrical Utilities Fees. OWNER will pay all fees in accordance with the
Electrical Utilities Rates, Rules and Regulations in effect at the time of application for service.
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12.3.3 City Processing Fees. OWNER shall pay all standard City -wide processing fees
for building permits, zoning review, and other similar fees associated with the Development of
the Project which are in existence at the time of approval of this Development Agreement at the
rate in existence at the time said fees are normally required to be paid to CITY.
12.4 Platinum Triangle Infrastructure and /or Maintenance Assessment District. Prior to
the date a building or grading permit is issued relating to implementation of the Final Site Plan,
or within a period of ninety (90) days from the date of execution of this Development
Agreement, whichever occurs first, OWNER shall execute and record an unsubordinated
covenant in a form approved by the City Attorney's Office wherein OWNER agrees not to
contest the formation of any assessment district(s) which may be formed to finance Platinum
Triangle infrastructure and/or maintenance, which district(s) could include the Property. The
covenant shall not preclude OWNER from contesting (i) the determination of benefit of such
improvements to the Property, (ii) the properties included in said district or area, (iii) the manner
in which said fee is determined or (iv) the manner in which said improvement costs are spread.
12.5 Accounting of Funds. CITY will comply with applicable requirements of
Government Code Section 65865 relating to accounting of funds.
12.6 Imposition of Increased Fees Taxes or Assessments. Except as expressly set forth or
reserved in this Development Agreement, CITY shall not, without the prior written consent of
OWNER, impose any additional fee, tax or assessment on the Project or any portion thereof as a
condition to the implementation of the Project or any portion thereof, except such fees, taxes and
assessments as are described in or required by this Development Agreement, including the
Existing Land Use Regulations or the Development Approvals. The rates of such fees, taxes and
assessments shall be the rates in existence at the time said fees, taxes and assessments are
normally required to be paid to CITY, except as otherwise provided in this Development
Agreement. Nothing contained herein shall be construed to prohibit CITY from imposing fees,
taxes or assessments on the Property which are unrelated to the approval or implementation of
the Project.
Section 13. COVENANTS, CONDITIONS AND RESTRICTIONS.
In consideration for CITY entering into this Development Agreement and other
consideration set forth in this Agreement, OWNER agrees to record unsubordinated covenants,
conditions and restrictions (CC &Rs) applicable to the Property in a form and content satisfactory
to the Planning Director, City Engineer and the City Attorney incorporating the requirements and
obligations set forth in Exhibit "E" to this Agreement, entitled the "Development Requirements
and Maintenance Obligations."
Section 14. NEXUS /REASONABLE RELATIONSHIP CHALLENGES.
OWNER consents to, and waives any right it may have now or in the future to challenge
the legal validity of the conditions, requirements, policies or programs required by Existing Land
Use Regulations or this Development Agreement including, without limitation, any claim that
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they constitute an abuse of the police power, violate substantive due process, deny equal
protection of the laws, effect a taking of property without payment of just compensation, or
impose an unlawful tax.
Section 15. TIMING OF DEVELOPMENT.
Timing of Development shall be as set forth in the Final Site Plan.
Section 16. EXISTING USES.
CITY and OWNER agree that those existing legally established uses on the Property may
be retained until the Project is implemented.
Section 16. FUTURE APPROVALS.
16.1 Basis for Denying or Conditional Granting Future Approvals. Before OWNER can
begin grading on the Property or other development of the Property, OWNER must secure
several additional permits and/or approvals from CITY. The parties agree that to the extent said
Development Approvals are ministerial in nature, CITY shall not, through the enactment or
enforcement of any subsequent ordinances, rules, regulations, initiatives, policies, requirements,
guidelines, or other constraints, withhold such approvals as a means of blocking construction or
of imposing conditions on the Project which were not imposed during an earlier approval period
unless CITY has been ordered to do so by a court of competent jurisdiction. Notwithstanding the
previous sentence, CITY and OWNER will use their best efforts to ensure each other that all
applications for and approvals of grading permits, building permits or other developmental
approvals necessary for OWNER to develop the Project in accordance with the Final Site Plan
are sought and processed in a timely manner.
16.2 Standard of Review. The rules, regulations and policies that apply to any additional
Development Approvals which OWNER must secure prior to the Development of the Property
shall be the Existing Land Use Regulations, as defined in this Development Agreement.
16.3 Future Amendments to Final Site Plan. Future amendments to all or a portion of the
Final Site Plan which increase the intensity or density of the Development of the Property, or
change the permitted uses of the Property, and are not among those described in Section 17.4 of
this Development Agreement may subject the portion or portions of the Project being amended
or affected by the amendment to any change in the CITY's General Plan, zoning designations
and rules applicable to the Property and further environmental review and possible mitigation of
adverse impacts under CEQA in effect at the time of such amendment. Any such amendment to
the Final Site Plan shall be processed concurrently with the processing of an amendment to this
Development Agreement. It is the desire and intent of both parties, except as set forth herein, that
any such future amendment of the Final Site Plan will not alter, affect, impair or otherwise
impact the rights, duties and obligations of the parties under this Development Agreement with
respect to those portions of the Final Site Plan that have not been amended.
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Section 17. AMENDMENT.
17.1 Initiation of Amendment. Either party may propose an amendment to this
Development Agreement.
17.2 Procedure. Except as set forth in Section 17.4 below, the procedure for proposing
and adopting an amendment to this Development Agreement shall be the same as the procedure
required for entering into this Development Agreement in the first instance. Such procedures are
set forth in Sections 2, 3 and 5 of the Procedures Resolution.
17.3 Consent. Except as provided elsewhere within this Development Agreement, any
amendment to this Development Agreement shall require the consent of both parties. No
amendment of this Development Agreement or any provision hereof shall be effective unless set
forth in writing and signed by duly authorized representatives of each party hereto.
17.4 Amendments. Subject to the foregoing provisions of this Section, the parties
acknowledge that refinements and further development of the Project may demonstrate that
changes are appropriate with respect to the details and performance of the parties under this
Development Agreement. The parties desire to retain a certain degree of flexibility with respect
to the details of the Development of the Project and with respect to those items covered in
general terms under this Development Agreement. If and when the parties find that changes or
adjustments are necessary or appropriate to further the intended purposes of this Development
Agreement, they may, unless otherwise required by law, effectuate such changes or adjustments
as specified in the Development Approvals.
17.5 Effect of Amendment to Development Agreement. The parties agree that except as
expressly set forth in any such amendment, an amendment to this Development Agreement will
not alter, affect, impair, modify, waive or otherwise impact any other rights, duties or obligations
of either party under this Development Agreement.
Section 18. NON CANCELLATION RIGHTS.
Subject to defeasance pursuant to Sections 24, 25 or 26 of this Development Agreement,
the Final Site Plan and other Development Approvals as provided for in this Development
Agreement shall be final and the rights once granted thereby shall be vested in the Property upon
recordation of this Development Agreement.
Section 19. BENEFITS TO CITY.
The direct and indirect benefits CITY (including, without limitation, the existing and
future anticipated residents of CITY) expects to receive pursuant to this Development Agreement
include, but are not limited to, the following:
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a, The participation of OWNER in the accelerated, coordinated and more economic
construction, funding and dedication to the public, as provided in this Development Agreement,
of certain of the vitally needed on -site and area -wide public improvements and facilities, and
assurances that the entire Project will be developed as set forth in the Final Site Plan and this
Development Agreement in order to encourage development of The Platinum Triangle; and
b. The considerations set forth in Sections 9 and 11 of this Development Agreement.
Section 20. BENEFITS TO OWNER.
OWNER has expended and will continue to expend large amounts of time and money on
the planning and infrastructure construction for the Project. OWNER asserts that OWNER
would not make any additional expenditures, or the advanced expenditures required by this
Development Agreement, without this Development Agreement and that any additional
expenditures which OWNER makes after the Development Agreement Date will be made in
reliance upon this Development Agreement. Without limiting the generality of the foregoing,
this Development Agreement provides for the completion of public improvements and facilities
prior to the time when they would be justified economically in connection with the phasing of
the Project, and of a size which would be justified only by the magnitude of the Project provided
for by the Final Site Plan and this Development Agreement. The benefit to OWNER under this
Development Agreement consists of the assurance that OWNER will preserve the right to
develop the Property as planned and as set forth in the Final Site Plan and this Development
Agreement. The parties acknowledge that the public benefits to be provided by OWNER to
CITY pursuant to this Development Agreement are in consideration for and reliance upon
assurances that the Property can be developed in accordance with the Final Site Plan and this
Development Agreement.
Section 21. UNDERTAKINGS AND ASSURANCES CONTEMPLATED AND
PROMOTED BY DEVELOPMENT AGREEMENT STATUTE.
The mutual undertakings and assurances described above and provided for in this
Development Agreement are for the benefit of CITY and OWNER and promote the
comprehensive planning, private and public cooperation and participation in the provision of
public facilities, and the effective and efficient development of infrastructure and facilities
supporting development which was contemplated and promoted by the Development Agreement
Statute. CITY agrees that it will not take any actions which are intended to circumvent this
Development Agreement; provided, however, that any action of the electorate shall not be
deemed an action for purposes of this Section.
Section 22. RESERVED AUTHORITY.
22.1 State and Federal Laws and Regulations. In the event that the State or Federal laws
or regulations enacted after the this Development Agreement has been entered into, prevent or
preclude compliance with one or more provisions of the Development Agreement, such
provisions of the Development Agreement shall be modified or suspended as may be necessary
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to comply with such State or Federal laws or regulations, provided, however, that this
Development Agreement shall remain in full force and effect to the extent it is not inconsistent
with such laws or regulations and to the extent such laws or regulations do not render such
remaining provisions impractical to enforce. Notwithstanding the foregoing, CITY shall not
adopt or undertake any rule, regulation or policy which is inconsistent with this Development
Agreement until CITY makes a finding that such rule, regulation or policy is reasonably
necessary to comply with such State and Federal laws or regulations.
22.2 Model Codes. This Development Agreement shall not prevent CITY from applying
new rules, regulations and policies contained in model codes, including, but not limited to, the
Anaheim Building Code as adopted in Title 15, Section 15.02.
22.3 Public Health and Safety. This Development Agreement shall not prevent CITY
from adopting new rules, regulations and policies, including amendments or modifications to
model codes described in Section 22.2 of this Development Agreement which directly result
from findings by CITY that failure to adopt such rules, regulations or policies would result in a
condition injurious or detrimental to the public health and safety. Notwithstanding the foregoing,
CITY shall not adopt any such rules, regulations or policies which prevent or preclude
compliance with one or more provisions of this Development Agreement until CITY makes a
finding that those rules, regulations or policies are reasonably necessary to correct or avoid such
injurious or detrimental condition.
Section 23. CANCELLATION.
23.1 Initiation of Cancellation. Either party may propose cancellation of this
Development Agreement.
23.2 Procedure. The procedure for canceling this Development Agreement shall be the
same as the procedure required for entering into this Development Agreement in the first
instance. Such procedures are set forth in Sections 2, 3 and 5 of the Procedures Resolution and
Section 65868 of the Government Code.
23.3 Consent of OWNER and CITY. Any cancellation of this Development Agreement
shall require the mutual consent of OWNER and CITY.
Section 24. PERIODIC REVIEW.
24.1 Time for Review. CITY shall, at least every twelve (12) months after the
Development Agreement Date, review the extent of good faith compliance by OWNER with the
terms of this Development Agreement. OWNER's failure to comply with the phasing schedules
set forth in the Final Site Plan combined with OWNER's failure to explain the reason for said
non compliance shall constitute rebuttable evidence of OWNER's lack of good faith compliance
with this Development Agreement. Such periodic review shall determine compliance with the
terms of this Development Agreement pursuant to California Government Code Section 65865.1
and other successor laws and regulations.
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24.2 OWNER's Submission. Each year, not less than forty -five (45) days nor more than
sixty (60) days prior to the anniversary of the Development Agreement Date, OWNER shall
submit evidence to the City Council of its good faith compliance with the terms and conditions
of this Development Agreement. OWNER shall notify the City Council in writing that such
evidence is being submitted to CITY pursuant to the requirements of Section 6.2 of the
Procedures Resolution. OWNER shall pay to CITY a reasonable processing fee in an amount as
CITY may reasonably establish from time to time on each occasion that OWNER submits its
evidence for a periodic review.
24.3 Findings. Within forty -five (45) days after the submission of OWNER's evidence,
the City Council shall determine, on the basis of substantial evidence, whether or not OWNER
has, for the period under review, complied in good faith with the terms and conditions of this
Development Agreement. If the City Council finds that OWNER has so complied, the review
for that period shall be deemed concluded. If the City Council finds and determines, on the basis
of substantial evidence, that OWNER has not complied in good faith with the terms and
conditions of this Development Agreement for the period under review, OWNER shall be given
at least sixty (60) days to cure such non compliance and if the actions required to cure such non-
compliance take more than sixty (60) days, then CITY shall give OWNER additional time
provided that OWNER is making reasonable progress towards such end. If during the cure
period, OWNER fails to cure such noncompliance or is not making reasonable good faith
progress towards such end, and then the City Council may, at its discretion, proceed to modify or
terminate this Development Agreement or establish a time schedule for compliance in
accordance with the procedures set forth in Section 26 of this Development Agreement.
24.4 Initiation of Review by City Council. In addition to the periodic review set forth in
this Development Agreement, the City Council may at any time initiate a review of this
Development Agreement upon the giving of written notice thereof to OWNER. Within thirty
(30) days following receipt of such notice, OWNER shall submit evidence to the City Council of
OWNER's good faith compliance with this Development Agreement and such review and
determination shall proceed in the manner as otherwise provided in this Development
Agreement.
Section 25. EVENTS OF DEFAULT.
25.1 Defaults by OWNER. Within forty -five (45) days after the submission of
OWNER's evidence, the City Council shall determine on the basis of substantial evidence,
whether or not OWNER has, for the period under review, complied in good faith with the terms
and conditions of this Development Agreement. If the City Council finds that OWNER has so
complied, the review for that period shall be deemed concluded. If the City Council finds and
determines, on the basis of substantial evidence, that OWNER has not complied in good faith
with the terms and conditions of this Development Agreement for the period under review,
OWNER shall be given at least sixty (60) days to cure such non compliance and if the actions
required to cure such non compliance take more than sixty (60) days, then CITY shall give
OWNER additional time provided that OWNER is making reasonable progress towards such
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end. If during the cure period OWNER fails to cure such non compliance or is not making
reasonable progress towards such end, then the City Council may, at its discretion, proceed to
modify or terminate this Development Agreement or establish a time schedule for compliance in
accordance with the procedures set forth in Section 26 of this Development Agreement.
25.2 Specific Performance Remedy. Due to the size, nature and scope of the Project, it
will not be practical or possible to restore the Property to its pre- existing condition once
implementation of this Development Agreement has begun. After such implementation,
OWNER may be foreclosed from other choices it may have had to utilize the Property and
provide for other benefits. OWNER has invested significant time and resources and performed
extensive planning and processing of the Project in agreeing to the terms of this Development
Agreement and will be investing even more significant time in implementing the Project in
reliance upon the terms of this Development Agreement, and it is not possible to determine the
sum of money which would adequately compensate OWNER for such efforts. For the above
reasons, CITY and OWNER agree that damages would not be an adequate remedy if CITY fails
to carry out its obligations under this Development Agreement. Therefore, specific performance
of this Development Agreement is the only remedy which would compensate OWNER if CITY
fails to carry out its obligations under this Development Agreement, and CITY hereby agrees
that OWNER shall be entitled to specific performance in the event of a default by CITY
hereunder. CITY and OWNER acknowledge that, if OWNER fails to carry out its obligations
under this Development Agreement, CITY shall have the right to refuse to issue any permits or
other approvals which OWNER would otherwise have been entitled to pursuant to this
Development Agreement. If CITY issues a permit or other approval pursuant to this
Development Agreement in reliance upon a specified condition being satisfied by OWNER in
the future, and if OWNER then fails to satisfy such condition, CITY shall be entitled to specific
performance for the sole purpose of causing OWNER to satisfy such condition. The CITY's
right to specific performance shall be limited to those circumstances set forth above, and CITY
shall have no right to seek specific performance to cause OWNER to otherwise proceed with the
Development of the Project in any manner.
25.3 Liquidated Damages Remedy. The parties hereto agree that this Development
Agreement creates an obligation and duty upon OWNER to undertake and complete
development of the Project within the time and manner specified herein. In the event OWNER
breaches this Development Agreement by failing to undertake and complete development of the
Project within the time and manner specified herein, the parties further agree that CITY will
suffer actual damages as a result thereof, the amount of which is uncertain and would be
impractical or extremely difficult to fix; therefore, OWNER agrees to pay CITY, in the event of
any such breach by OWNER, the sum One Hundred Thousand Dollars ($100,000) as liquidated
and actual damages, which sum shall be in addition to any other remedies available to CITY as
result of such breach pursuant to this Section 25.
Section 26. MODIFICATION OR TERMINATION.
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If pursuant to Section 24 and 25 of this Development Agreement, CITY elects to modify
or terminate this Development Agreement or establish a revised time schedule for compliance as
herein provided, then CITY shall proceed as set forth in this Section.
26.1 Notice to OWNER. CITY shall give notice to OWNER of City Council's intention
to proceed to modify or terminate this Development Agreement or establish a time schedule for
compliance within ten (10) days of making the CITY's findings.
26.2 Public Hearing. The City Council shall set and give notice of a public hearing on
modification, termination or a time schedule for compliance to be held within forty (40) days
after the City Council gives notice to OWNER.
26.3 Decision. The City Council shall announce its findings and decisions on whether
this Development Agreement is to be terminated, how this Development Agreement is to be
modified or the provisions of the Development Agreement with which OWNER must comply
and a time schedule therefor not than ten (10) days following completion of the public hearing.
26.4 Standard of Review. Any determination by CITY to terminate this Development
Agreement because OWNER has not complied in good faith with the terms of this Development
Agreement must be based upon a finding by the City Council, based on the preponderance of
evidence, that OWNER is in default and has not cured that default in the timeframe permitted by
Sections 24 and 25 above, as applicable.
26.5 Implementation. Amending or terminating this Development Agreement shall be
accomplished by CITY enacting an ordinance. The ordinance shall recite the reasons which, in
the opinion of the CITY, make the amendment or termination of this Development Agreement
necessary. Not later then ten (10) days following the adoption of the ordinance, one copy thereof
shall be forwarded to OWNER. This Development Agreement shall be terminated or this
Development Agreement as modified shall become effective on the effective date of the
ordinance terminating or modifying this Development Agreement.
26.5 Schedule for Compliance. Setting a reasonable time schedule for compliance with
this Development Agreement may be accomplished by CITY enacting a resolution. The
resolution shall recite the reasons which, in the opinion of CITY, make it advisable to set a
schedule for compliance and why the time schedule is reasonable. Not later than ten (10) days
following adoption of the resolution, one copy thereof shall be forwarded to OWNER.
Compliance with any time schedule so established as an alternative to modification or
termination shall be subject to periodic review as provided in this Development Agreement and
lack of good faith compliance by OWNER with the time schedule shall be basis for termination
or modification of this Development Agreement.
Section 27. ASSIGNMENT.
27.1 Right to Assign. OWNER shall have the right to sell, mortgage, hypothecate, assign
or transfer this Development Agreement, and any and all of its rights, duties and obligations
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hereunder, to any person, partnership, joint venture, firm or corporation at any time during the
term of this Development Agreement, provided that any such sale, mortgage, hypothecation,
assignment or transfer must be pursuant to a sale, assignment or other transfer of the interest of
OWNER in the Property, or a portion thereof. In the event of any such sale, mortgage,
hypothecation, assignment or transfer, (a) OWNER shall notify CITY of such event and the
name of the transferee, together with the corresponding entitlements being transferred to such
transferee and (b) the agreement between OWNER and such transferee shall provide that either
OWNER or the transferee or both shall be liable for the performance of all obligations of
OWNER pursuant to this Development Agreement and the Development Approvals. Such
transferee and/or OWNER shall notify CITY in writing which entity shall be liable for the
performance of such obligations, and upon the express written assumption of any or all of the
obligations of OWNER under this Development Agreement by such assignee, transferee or
purchaser shall, without any act of or concurrence by CITY, relieve OWNER of its legal duty to
perform said obligations under this Development Agreement with respect to the Property or
portion thereof, so transferred, except to the extent OWNER is not in default under the terms of
this Development Agreement.
27.2 Release Upon Transfer. It is understood and agreed by the parties that the Property
may be subdivided following the Development Agreement Date. One or more of such
subdivided parcels may be sold, mortgaged, hypothecated, assigned or transferred to persons for
development by them in accordance with the provisions of this Development Agreement.
Effective upon such sale, mortgage, hypothecation, assignment or transfer, the obligations of
OWNER shall become several and not joint, except as to OWNER's obligations set forth in
Section 9 of this Development Agreement. Upon the sale, transfer, or assignment of OWNER's
rights and interests under this Development Agreement as permitted pursuant to the Section 27.1
above, OWNER shall be released from its obligations under this Development Agreement with
respect to the Property, or portion thereof so transferred, provided that (a) OWNER is not then in
default under this Development Agreement, (b) OWNER has provided to CITY the notice of
such transfer specified in Section 27.1 above, (c) the transferee executes and delivers to CITY a
written agreement in which (i) the name and address of the transferee is set forth and (ii) the
transferee expressly and unconditionally assumes all the obligations of OWNER under this
Development Agreement and the Development Approvals with respect to the property, or
portion thereof, so transferred and (d) the transferee provides CITY with security equivalent to
any security provided by OWNER to secure performance of its obligations under this
Development Agreement or the Development Approvals. Non compliance by any such
transferee with the terms and conditions of this Development Agreement shall not be deemed a
default hereunder or grounds for termination hereof or constitute cause for CITY to initiate
enforcement action against other persons then owning or holding interest in the Property or any
portion thereof and not themselves in default hereunder. Upon completion of any phase of
development of the Project as determined by CITY, CITY may release that completed phase
from any further obligations under this Development Agreement. The provisions of this Section
shall be self executing and shall not require the execution or recordation of any further document
or instrument. Any and all successors, assigns and transferees of OWNER shall have all of the
same rights, benefits and obligations of OWNER as used in this Development Agreement and
21
the term "OWNER" as used in this Development Agreement shall refer to any such successors,
assigns and transferees unless expressly provided herein to the contrary.
Section 28. NO CONFLICTING ENACTMENTS.
By entering into this Development Agreement and relying thereupon, OWNER is
obtaining vested rights to proceed with the Project in accordance with the terms and conditions
of this Development Agreement, and in accordance with, and to the extent of, the Development
Approvals. By entering into this Development Agreement and relying thereupon, CITY is
securing certain public benefits which enhance the public health, safety and general welfare.
CITY therefore agrees that except as provided in Section 22 of this Development Agreement,
neither the City Council nor any other agency of CITY shall enact a rule, regulation, ordinance
or other measure which relates to the rate, timing or sequencing of the Development or
construction of all or any part of the Project and which is inconsistent or in conflict with this
Development Agreement.
Section 29. GENERAL.
29.1 Force Majeure. The Term of this Development Agreement and the time within
which OWNER shall be required to perform any act under this Development Agreement shall be
extended by a period of time equal to the number of days during which performance of such act
is delayed unavoidably by strikes, lock -outs, Acts of God, failure or inability to secure materials
or labor by reason of priority or similar regulations or order of any governmental or regulatory
body, initiative or referenda, moratoria, enemy action, civil disturbances, fire, unavoidable
casualties, or any other cause beyond the reasonable control of OWNER.
29.2 Construction of Development Agreement. The language in all parts of this
Development Agreement shall in all cases, be construed as a whole and in accordance with its
fair meaning. The captions of the paragraphs and subparagraphs of this Development Agreement
are for convenience only and shall not be considered or referred to in resolving questions of
constructions. This Development Agreement shall be governed by the laws of the State of
California. The parties understand and agree that this Development Agreement is not intended to
constitute, nor shall be construed to constitute, an impermissible attempt to contract away the
legislative and governmental functions of CITY, and in particular, the CITY's police powers. In
this regard, the parties understand and agree that this Development Agreement shall not be
deemed to constitute the surrender or abnegation of the CITY's governmental powers over the
Property.
29.3 Severability. If any provision of this Development Agreement shall be adjudged to
be invalid, void or unenforceable, such provision shall in no way affect, impair or invalidate any
other provision hereof, unless such judgment affects a material part of this Development
Agreement, the parties hereby agree that they would have entered into the remaining portions of
this Development Agreement not adjudged to be invalid, void or illegal. In the event that all or
any portion of this Development Agreement is found to be unenforceable, this Development
Agreement or that portion which is found to be unenforceable shall be deemed to be a statement
22
of intention by the parties; and the parties further agree that in such event they shall take all steps
necessary to comply with such public hearings and /or notice requirements as may be necessary
in order to make valid this Development Agreement or that portion which is found to be
unenforceable. Notwithstanding any other provisions of this Development Agreement, in the
event that any material provision of this Development Agreement is found to be unenforceable,
void or voidable, OWNER or CITY may terminate this Development Agreement in accordance
with the provisions of the Development Agreement Statute and the Procedures Resolution.
29.4 Cumulative Remedies. In addition to any other rights or remedies, either party may
institute legal action to cure, correct or remedy any default, to enforce any covenant or
agreement herein, or to enjoin any threatened or attempted violation, including suits for
declaratory relief, specific performance, relief in the nature of mandamus and actions for
damages. All of the remedies described above shall be cumulative and not exclusive of one
another, and the exercise of any one or more of the remedies shall not constitute a waiver or
election with respect to any other available remedy.
29.5 Hold Harmless Agreement. OWNER and CITY hereby mutually agree to, and shall
hold each other, each other's elective and appointive councils, boards, commissions, officers,
partners, agents, representatives and employees harmless from any liability for damage or claims
for damage for personal injury, including death, and from claims for property damage which may
arise from the activities of the other's or the other's contractors', subcontractors', agents', or
employees' which relate to the Project whether such activities be by OWNER or CITY, or by any
of the OWNER's or the CITY's contractors, subcontractors, or by any one or more persons
indirectly employed by, or acting as agent for OWNER any of the OWNER's or the CITY's
contractors or subcontractors. OWNER and CITY agree to and shall defend the other and the
other's elective and appointive councils, boards, commissioners, officers, partners, agents,
representatives and employees from any suits or actions at law or in equity for damage caused or
alleged to have been caused by reason of the aforementioned activities which relate to the
Project.
29.6 Cooperation in the Event of Legal Challenge. In the event of any legal action
instituted by a third party or other governmental entity or official challenging the validity of any
provision of this Development Agreement and/or the Development Approvals, the parties hereby
agree to cooperate fully with each other in defending said action and the validity of each
provision of this Development Agreement, however, OWNER shall be liable for all legal
expenses and costs incurred in defending any such action. OWNER shall be entitled to choose
legal counsel to defend against any such legal action and shall pay any attorneys' fees awarded
against CITY or OWNER, or both, resulting from any such legal action. OWNER shall be
entitled to any award of attorneys' fees arising out of any such legal action.
29.7 Public Agency Coordination. CITY and OWNER shall cooperate and use their
respective best efforts in coordinating the implementation of the Development Approvals with
other public agencies, if any, having jurisdiction over the Property or the Project.
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29.8 Initiative Measures. Both CITY and OWNER intend that this Development
Agreement is a legally binding contract which will supersede any initiative, measure,
moratorium, referendum, statute, ordinance or other limitation (whether relating to the rate,
timing or sequencing of the Development or construction of all or any part of the Project and
whether enacted by initiative or otherwise) affecting parcel or subdivision maps (whether
tentative, vesting tentative or final), building permits, occupancy certificates or other
entitlements to use approved, issued or granted within the CITY, or portions of the CITY, and
which Agreement shall apply to the Project to the extent such initiative, measure, moratorium,
referendum, statute, ordinance or other limitation is inconsistent or in conflict with this
Development Agreement. Should an initiative, measure, moratorium, referendum, statute,
ordinance, or other limitation be enacted by the citizens of CITY which would preclude
construction of all or any part of the Project, and to the extent such initiative, measure,
moratorium, referendum, statute, ordinance or other limitation be determined by a court of
competent jurisdiction to invalidate or prevail over all or any part of this Development
Agreement, OWNER shall have no recourse against CITY pursuant to the Development
Agreement, but shall retain all other rights, claims and causes of action under this Development
Agreement not so invalidated and any and all other rights, claims and causes of action as law or
in equity which OWNER may have independent of this Development Agreement with respect to
the project. The foregoing shall not be deemed to limit OWNER's right to appeal any such
determination that such initiative, measure, referendum, statute, ordinance or other limitation
invalidates or prevails over all or any part of this Development Agreement. CITY agrees to
cooperate with OWNER in all reasonable manners in order to keep this Development Agreement
in full force and effect, provided OWNER shall reimburse CITY for its out -of- pocket expenses
incurred directly in connection with such cooperation and CITY shall not be obligated to institute
a lawsuit or other court proceedings in this connection.
29.9 Attorneys' Fees. In the event of any dispute between the parties involving the
covenants or conditions contained in this Development Agreement, the prevailing party shall be
entitled to recover reasonable expenses, attorneys' fees and costs.
29.10 No Waiver. No delay or omission by either party in exercising any right or power
accruing upon non compliance or failure to perform by the other party under any of the
provisions of this Development Agreement shall impair any such right or power or be construed
to be a waiver thereof. A waiver by either party of any of the covenants or conditions to be
performed by the other party shall not be construed as a waiver of any succeeding breach of non-
performance of the same or other covenants and conditions hereof.
29.11 Authority to Execute. The person executing this Development Agreement on
behalf of OWNER warrants and represents that he /she has the authority to execute this
Development Agreement on behalf of his/her partnership and represents that he /she has the
authority to bind OWNER to the performance of OWNER's obligations hereunder.
29.12 Notice.
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29.12.1 To OWNER. Any notice required or permitted to be given by CITY to OWNER
under or pursuant to this Development Agreement shall be deemed sufficiently given if in
writing and delivered personally to an officer of OWNER or mailed with postage thereon fully
prepaid, registered or certified mail, return receipt requested, addressed; to OWNER as follows:
Attention:
or such changed address as OWNER shall designate in writing to CITY.
29.12.2 To CITY. Any notice required or permitted to be given to CITY under or
pursuant to this Development Agreement shall be made and given in writing, if by mail
addressed to:
City Council
City of Anaheim
c/o City Clerk
P.O. Box 3222
Anaheim, California 92803
With copies to:
City Manager
City of Anaheim
P.O. Box 3222
Anaheim, California 92803
City Attorney
City of Anaheim
P.O. Box 3222
Anaheim, California 92803
or such changed address as CITY shall designate in writing to OWNER.
Alternatively, notices to CITY may also be personally delivered to the City Clerk, at the
Anaheim Civic Center, 200 S. Anaheim. Blvd., Anaheim, California, together with copies
marked for the City Manager and the City Attorney or, if so addressed and mailed, with postage
thereon fully prepaid, registered or certified mail, return receipt requested, to the City Council in
care of the City Clerk at the above address with copies likewise so mailed to the City Manager
and the City Attorney, respectively and also in care of the City Clerk at the same address. The
provisions of this Section shall be deemed permissive only and shall not detract from the validity
of any notice given in a manner which would be legally effective in the absence of this Section.
29.13 Captions. The captions of the paragraphs and subparagraphs of this Development
Agreement are for convenience and reference only and shall in no way define, explain, modify,
25
construe, limit, amplify or aid in the interpretation, construction or meaning of any of the
provisions of this Development Agreement.
29.14 Consent. Any consent required by the parties in carrying out the terms of this
Development agreement shall not unreasonably be withheld.
29.15 Further Actions and Instruments. Each of the parties shall cooperate with the other
to the extent contemplated hereunder in the performance of all obligations under this
Development Agreement and the satisfaction of the conditions of this Development Agreement.
Upon the request of either party at any time, the other party shall promptly execute, with
acknowledgment or affidavit if reasonably required, and file or record such required instruments
and writings and take any actions as may be reasonably necessary under the terms of this
Development Agreement to carry out the intent and to fulfill the provisions of this Development
Agreement or to evidence or consummate the transactions contemplated by this Development
Agreement.
29.16 Subsequent Amendment to Authorizing Statute. This Development Agreement has
been entered into in reliance upon the provisions of the Development Agreement Statute in effect
as of the Development Agreement Date. Accordingly, subject to Section 22.1 above, to the
extent that subsequent amendments to the Government Code would affect the provisions of this
Development Agreement, such amendments shall not be applicable to this Development
Agreement unless necessary for this Development Agreement to be enforceable or unless this
Development Agreement is modified pursuant to the provisions set forth in this Development
Agreement and Government Code Section 65868 as in effect on the Development Agreement
Date.
29.17 Governing Law. This Development Agreement, including, without limitation, its
existence, validity, construction and operation, and the rights of each of the parties shall be
determined in accordance with the laws of the State of California.
29.18 Effect on Title. OWNER and CITY agree that this Development Agreement shall
not continue as an encumbrance against any portion of the Property as to which this
Development Agreement has terminated.
29.19 Mortgagee Protection. Entering into or a breach of this Development Agreement
shall not defeat, render invalid, diminish, or impair the lien of Mortgagees having a mortgage on
any portion of the Property made in good faith and for value, unless otherwise required by law.
No Mortgagee shall have an obligation or duty under this Development Agreement to perform
OWNER's obligations, or to guarantee such performance prior to any foreclosure or deed in lieu
thereof.
29.20 Notice of Default to Mortgagee, Right of Mortgagee to Cure. If the City Clerk
timely receives notice from a Mortgagee requesting a copy of any notice of default given to
OWNER under the terms of this Development Agreement, CITY shall provide a copy of that
notice to the Mortgagee within ten (10) days of sending the notice of default to OWNER. The
26
Mortgagee shall have the right, but not the obligation, for a period up to ninety (90) days after
the receipt of such notice from CITY to cure or remedy, or to commence to cure or remedy the
default unless a further extension of time to cure is granted in writing by CITY. If the default is
of a nature which can only be remedied or cured by such Mortgagee upon obtaining possession,
such Mortgagee shall seek to obtain possession with diligence and continually through
foreclosure, a receiver or otherwise, and shall thereafter remedy or cure the default or non-
compliance within thirty (30) days after obtaining possession. If any such default or non-
compliance cannot, with diligence, be remedied or cured within such thirty (30) day period, then
such Mortgagee shall have such additional time as may be reasonably necessary to remedy or
cure such default or non compliance if such Mortgagee commences cure during such thirty (30)
day period, and thereafter diligently pursues and completes such cure.
29.21 Bankruptcy. Notwithstanding the foregoing provisions of Section 29.20 of this
Development Agreement, if any Mortgagee is prohibited from commencing or pursues and
prosecuting foreclosure or other appropriate proceedings in the nature thereof by any process or
injunction issued by any court or by reason of any action by any court having jurisdiction of any
bankruptcy or insolvency proceeding involving CITY, the times specified in this Section for
commencing or prosecuting foreclosure or other proceedings shall be extended for the period of
the prohibition.
29.22 Disaffirmance.
29.22.1 CITY agrees that in the event of termination of this Agreement by reason of any
default by CITY, or by reason of the disaffirmance hereof by a receiver, liquidator or trustee for
OWNER or its property, CITY, if requested by any Mortgagee, shall enter into a new
Development Agreement for the Project with the most senior Mortgagee requesting such new
agreement, for the remainder of the Term, effective as of the date of such termination, upon the
terms, provisions, covenants and agreements as herein contained to the extent and subject to the
law then in effect, and subject to the rights, if any, of any parties then in possession of any part of
the Property, provided:
29.22.2 The Mortgagee shall make written request upon CITY for the new Development
Agreement for the Project within thirty (30) days after the date of termination;
29.22.3 The Mortgagee shall pay to CITY at the time of the execution and delivery of the
new Development Agreement for the Project expenses, including reasonable attorneys' fees, to
which CITY shall have been subjected by reason of OWNER's default; and
29.22.4 The Mortgagee shall perform and observe all covenants herein contained on
OWNER's part to be performed, and shall further remedy any other conditions which OWNER
under the terminated agreement was obligated to perform under its terms, to the extent the same
are curable or may be performed by the Mortgagee.
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29.22.5 Nothing herein contained shall require any Mortgagee to enter into a new
agreement pursuant to Section 29.22.1 above, nor to cure any default of OWNER referred to
above.
29.23 No Third Party Beneficiaries. This Development Agreement and all provisions
hereof is made and entered into for the sole protection and benefit of CITY, OWNER and their
successors and assigns. No other person shall have right of action based upon any provision in
this Development Agreement.
29.24 Project as a Private Undertaking It is specifically understood and agreed by and
between the parties hereto that the Project is a private development, that neither party is acting as
the agent of the other in any respect hereunder, and that each party is an independent contracting
entity with respect to the terms, covenants and conditions contained in this Development
Agreement. No partnership, join venture or other association of any kind is formed by this
Development Agreement. The only relationship between CITY and OWNER is that of a
government entity regulating the development of private property and the owner of such private
property.
29.25 Restrictions. Property OWNER shall place in any agreements to sell or convey any
interest in the Property or any portion thereof, provisions making the terms of this Development
Agreement binding on any successors in interest of OWNER and express provision for OWNER
or CITY, acting separately or jointly, to enforce the provisions of this Development Agreement
and to recover attorneys' fees and costs for such enforcement.
29.26 Recitals. The recitals in this Development Agreement constitute part of this
Development Agreement and each party shall be entitled to rely on the truth and accuracy of
each recital as an inducement to enter into this Development Agreement.
29.27 Recording. The City Clerk shall cause a copy of this Development Agreement to
be executed by CITY and recorded in the Official Records of Orange County no later than ten
(10) days after CITY approves this Development Agreement.
29.28 Title Report. CITY is required to sign this Development Agreement only after
OWNER has provided CITY with a satisfactory preliminary title report evidencing and showing
OWNER's legal and equitable ownership interest in the Property, current within six (6) months,
unencumbered except for the exceptions (hereinafter the "Permitted Exceptions set in the
preliminary title reports for the Property attached hereto as Exhibit "F" (the "Preliminary Title
Reports Any instrument of monetary encumbrance such as a deed of trust or a mortgage
entered into subsequent to the date of the Preliminary Title Report and prior to the Development
Agreement Date, shall contain language expressly subordinating such instruments of monetary
encumbrance to the provisions of this Development Agreement. OWNER shall present
evidence, satisfactory to CITY, of OWNER's legal title to Property, subject only to the Permitted
Exceptions and any such subordinated instruments of monetary encumbrance, at the time of
recordation of this Agreement, or a memorandum thereof.
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29.29 Entire Agreement. This Development Agreement, constitutes the entire agreement
between the parties with respect to the subject matter of this Development Agreement, and this
Development Agreement supersedes all previous negotiations, discussions and agreements
between the parties, and no parol evidence of any prior or other agreement shall be permitted to
contradict or vary the terms hereof.
29.30 Successors and Assigns. The burdens of the Development Agreement shall be
binding upon, and the benefits of the Development Agreement inure to all successors in interest
and assigns of the parties to the Development Agreement.
30.31 OWNER'S Title to Property. Neither party hereto shall be bound by any provision
of this Agreement unless and until OWNER shall record this Development Agreement or a
memorandum thereof, in the office of the County Recorder of the County sufficient to cause this
Agreement and the obligations contained herein to attach to and encumber OWNER's fee title to
Property.
30.32 Exhibits. All exhibits, including attachments thereto, are incorporated in this
Development Agreement in their entirety by this reference.
N WITNESS WHEREOF, CITY and OWNER have executed this Development
Agreement as of the date and year first above written.
"CITY" "OWNER"
CITY OF ANAHEIM, a
municipal corporation
By:
Mayor
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
By:
Name:
Title:
29
EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY
30
EXHIBIT `B"
FINAL SITE PLAN
31
EXHIBIT "C"
CONDITIONS OF APPROVAL
32
EXHIBIT "D"
GENERAL PLAN AND ENVIRONMENTAL PROCESSING FEE
Non residential Uses: $0.06 per sq. ft.
These fees are intended to recover the costs associated with The Platinum Triangle including costs
incurred in the preparation of the following:
The Platinum Triangle Documents including The Platinum Triangle Master Land Use Plan, the
Platinum Triangle Mixed Use Overlay and associated environmental documentation (approved by
the City Council in August, 2004); and
Subsequent Environmental Impact Report (SEIR) No. 332, which has been prepared to serve as
the environmental documentation for activities implementing The Platinum Triangle Master Land
Use Plan (certified by the City Council on October 25, 2005).
Subsequent Environmental Impact Report (SEIR) No. 334 and an Amendment to The Platinum
Triangle Master Land Use Plan to increase the intensity of commercial, residential, office and
institutional land uses in The Platinum Triangle (approved by the City Council on
The fees are based upon the following calculations:
The Platinum Triangle Documents Fee
Contract Costs: $146,000
New Development Allowed in The Platinum Triangle
7,044,300 sq. ft. of non residential uses
9,175 residential units (assume average unit size of 800 sq. ft. 7,340,000 sq. ft.)
7,044,300
7,340,000
14,384,300 total square feet
$146,000/14,393,300 $.01 per square foot
7,340,000 x $.01 $73,400
$73,400/9175 $8 per dwelling unit
Residential Uses: $8.00 per unit
Commercial/Office Uses: $0.01 per square foot
SEIR No. 332 Fee*
33
Contract Costs:
Planning Department Costs FY2004
Planning Department Costs FY2005
4,246,522 sq. ft. of commercial/office
5,495,200 sq. ft. of residential use (assume average unit size of 800 sq. ft.
6,869 residential units x 800 sq. ft 5,495,200)
4,246,522
+5,495,200
9,741,722 total square feet (non- residential and residential)
$299,770.55/9,741,722 $.03 per square foot
5,495,200 x $.03 $164,856
$164,856/6,869 dwelling units $24.00 per dwelling unit
Residential Uses: $24.00 per unit
Commercial /Office Uses: 0.03 per square foot
Note: The Planning Department Costs represents staff time and materials associated with the
preparation of SEIR No. 332 and the square footage listed above reflects the number of allowable
PTMU Overlay Zone square feet not entitled at the time SEIR No. 332 was certified.
SEIR No. 334 Fee*
Contract Costs:
Planning Department Costs
Public Works Department Costs
$604,342/27,745,615 sq. ft. $.02 per square foot
$164,730.00
$110,547.83
24,492.72
$299,770.55
$241,293.00
$321,724.00
41,325.00
$604,342.00
18,531,215 sq. ft. of non residential
9,214,400 sq. ft. of residential use (assume average unit size of 800 sq. ft.
11,518 residential units x 800 sq. ft 9,214,400 sq. ft.)
27,745,615 total square feet (non residential and residential)
Residential Uses: $16.00 per unit
Non residential Uses: 0.02 per square foot
Note: The Planning and Public Works Department Costs represents staff time and materials associated with the preparation
of SEIR No. 334 and the associated amendments to The Platinum Triangle Master Land Use Plan. The square footage listed
above reflects the number of allowable PTMU Overlay Zone square feet not entitled at the time SEIR No. 334 was certified.
34
EXHIBIT "E"
DEVELOPMENT REQUIREMENTS AND MAINTENANCE OBLIGATIONS
35
EXHIBIT "F"
PRELIMINARY TITLE REPORT
36