2004-179RESOLUTION NO. 2004-179
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
ANAHEIM APPROVING THE STANDARD DEVELOPMENT
AGREEMENT FOR THE PLATINUM TRIANGLE.
WHEREAS, 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; and
WHEREAS, 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: and
WHEREAS, in order to carry out the goals and policies of the General Plan for
The Platinum Triangle, on August 17.2004, the City Council approved The Platinum Triangle
Master Land Use Plan, setting forth the new vision for The Platinum Triangle; and
WHEREAS, to further implement the goals and policies of the General Plan for
The Platinum Triangle, the City Council is amending Chapter 18.20 of the Anaheim Municipal
Code in its entirety, establishing The Platinum Triangle Mixed-Use (PTMU) Overlay Zone
(hereinafter the "PTMU Overlay Zone") consisting of approximately three hundred and seventy-
five 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.; and
WHEREAS, 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. authorizing cities to enter into binding development
agreements with persons having legal or cquitable 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; and
WHEREAS, in order to develop in the Gateway, Gene Autry and Katella Districts
under the PTMU Overlay Zone, Section 18.20.170 (hnplementation) requires that the property
owner and the City enter into a Development Agreement, including a Final Site Plan, in a form
approved by resolution of the City Council; and
WHEREAS, the City Council has reviewed the The Platinum Triangle
Standardized Development Agreement proposed to be required for development in said Districts
under the PTMU Overlay Zone, attached hereto as Exhibit "A" and incorporated herein (the
"Development Agreement).
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
Anaheim that the City Council does hereby approve the form and substance of the Development
Agreement.
BE IT FURTHER RESOLVED that the City Council of the City of Anaheim does
hereby find and determine that this Resolution is conditioned upon and will take effect upon the
effective date of Ordinance No. 5935 establishing the PTMU Overlay Zone.
THE FOREGOING RESOLUTION is approved and adopted by the City Council
of the City of Anaheim this 17th day of August, 2004, by the following roll call vote:
AYES: Mayor Pringle, Council Members Chavez, Hernandez, McCracken
NOES: none
ABSENT: none
ABSTAIN: Council Member Tait
ATTESI:
C]-T4f CLERK 6F THk CITY OF ANAHEIM
CITY O/~NAHEIM ~,a
.v
' MAYOR OF THE CItY ~
ANAHEIM
55268.1/srnann/August 13. 2004
2
Exhibit "A"
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
.i
DEVELOPMENT AGREEMENT NO.
BETWEEN
THE CITY OF ANAHEIM
AND
TABLE OF CONTENTS
Page
RECITALS ........................................................................................................................................
Section 1.
1.1
1.2
1.3
1.4
1.5
1.6
1.7
1.8
1.9
1.10
1.11
1.12
1.13
1.14
1.15
1.16
1.17
1.18
1.19
1.20
1.2l
1.22
1.23
DEFINITIONS ..........................................................................................................
Authorizing Ordinance ..................................................................................
CITY .............................................................................................................
Development .................................................................................................
Development Agreement Date ......................................................................
Development Agreement Statute ..................................................................
Development Approvals ...............................................................................
Enabling Ordinance .......................................................................................
Existing Land Use Regulations .....................................................................
Final Site Plan ...............................................................................................
Gross Floor Area/GFA ..................................................................................
Interim Development Fee ..............................................................................
Mortgage .......................................................................................................
Mortgagee .....................................................................................................
Owner ............................................................................................................
Parking Areas ................................................................................................
Permitted Buildings ......................................................................................
Platinum Triangle Area .................................................................................
Procedures Resolution ..................................................................................
Project ...........................................................................................................
Property .........................................................................................................
Support Commercial Uses ............................................................................
Section 2. TERM .......................................................................................................................
Section 3. BINDING COVENANTS .........................................................................................
Section 4. EFFECT OF AGREEMENT ....................................................................................
Section 5. PROJECT LAND USES ...........................................................................................
Section 6. PERMITTED BUILDINGS ......................................................................................
Section 7.
7.1
7.2
Section 8.
Section 9.
9.1
9.2
9.2.1
9.2.2
9.3
9.4
Section I 0.
Section 11.
Section 12.
12.1
12.2
12.2.1
12.2.2
12.2.3
12.2.4
12.2.5
12.2.7
12.2.8
12.3
12.3.1
12.3.2
12.3.3
12.4
12.5
12.6.
Section 13
Section 14
Section 15.
DENSITY OF PERMITTED BUILDINGS ..............................................................
Permitted Buildings ......................................................................................
Parking Areas ................................................................................................
ENFORCEMENT .....................................................................................................
PUBLIC IMPROVEMENTS AND SERVICES .......................................................
Public Park ....................................................................................................
Utilities (Water, Electrical, Gas, Sewer, & Drainage) ..................................
Water Service .................................................................................................
Storm and Sewer Drains ...............................................................................
Timing, Phasing and Sequence of Public
Improvements and Facilities .........................................................................
Traffic Circulation Improvements ................................................................
REIMBURSEMENT PROVISION ..........................................................................
DEDICATIONS AND EXACTIONS
FEES,
TAXES AND ASSESSMENT ......................................................................
Fees, Taxes and Assessments .......................................................................
Platinum Triangle Interim Development Fees ...............................................
Electrical Utilities Undergrounding Fee ........................................................
Fire Facilities Fee ...........................................................................................
General Plan and Environmental Processing Fee ..........................................
Library_ Facilities Fee .....................................................................................
Park Fee .........................................................................................................
Public Works Supplemental Sewer, Storm Drain and Beautification Fees...
Traffic Impact Fee .........................................................................................
Excluded Development Fees .........................................................................
Water Utilities Fees .......................................................................................
Electrical Utilities Fees .................................................................................
City Processing Fees .....................................................................................
Platinum Triangle Area Infrastructure Funding Shortfall Fees .....................
Accounting of Funds .....................................................................................
Imposition of Increased Fees, Taxes or Assessments ...................................
COVENANTS, CONDITIONS AND RESTRICTIONS .........................................
NEXUS/REASONABLE RELATIONSHIP CHALLENGES ..................................
TIMING OF DEVELOPMENT ...............................................................................
Section 16.
16.1
16.2
EXISTING USES AND REZONING ......................................................................
Existing Uses ................................................................................................
Rezoning .......................................................................................................
Section
17.
17.1
17.2
17.3
FUTURE APPROVALS ...........................................................................................
Basis for Denying or Conditionally Granting Future
Approvals ......................................................................................................
Standard of Review .......................................................................................
Future Amendments to Final Site Plan .........................................................
Section
18 AMENDMENT .........................................................................................................
18.1 Initiation of Amendment ...............................................................................
18.2 Procedure ......................................................................................................
18.3 Consent .........................................................................................................
18.4 Amendments .................................................................................................
18.5 Effect of Amendment to Development Agreement ......................................
Section 19.
19.1
RESOLUTION OF INTENT AND USES FOR THE PROPERTY .........................
Non-Cancellation of Rights .........................................................................
Section 20. BENEFITS TO CITY ...............................................................................................
Section 21. BENEFITS TO OWNER ..........................................................................................
Section 22.
UNDERTAKINGS AND ASSURANCES CONTEMPLATED AND
PROMOTED BY DEVELOPMENT AGREEMENT STATUTE ...........................
Section 23.
23.2
23.3
RESERVED AUTHORITY ......................................................................................
State and Federal Law . ..................................................................................
Building Codes ..............................................................................................
Public Health and Safety ...............................................................................
Section 24.
24.1
24.2
24.3
CANCELLATION ....................................................................................................
Initiation of Cancellation ..............................................................................
Procedure ......................................................................................................
Consent of Both Parties ................................................................................
Section 25. PERIODIC REVIEW .....................................................................................................
25.1 Time for Review . ..........................................................................................
~ '~ OWNER's Submission
25.3 Findings .........................................................................................................
.... 4 Initiation of Review bv City Council
Section 26.
26.1
EVENTS OF' DEFAULT ..........................................................................................
Defaults by OWNER ....................................................................................
lll
26.2
26.3
Section 27.
27.1
27.2
27.3
27.4
27.5
Section 28.
28.1
28.2
Section 29.
Section 30.
30.1
30.2
30.3
30.4
30.5
30.6
30.7
30.8
30.9
30.10
30.11
30.12
30.13
30.14
30.15
30.16
30.]7
30.18
30.19
30.20
30.21
30.22
30.23
30.24
30.25
30.26
30.27
30.28
Specific Performance Remedy ......................................................................
Liquidated Damages Remedy .......................................................................
MODIFICATION OR TERMiNATION ..................................................................
Notice to OWNER ........................................................................................
Public Hearing ..............................................................................................
Decision ........................................................................................................
Implementation .............................................................................................
Schedule for Compliance ..............................................................................
ASSIGNMENT .........................................................................................................
Right to Assign .............................................................................................
Release upon Transfer ...................................................................................
NO CONFLICTING ENACTMENTS ......................................................................
GENERAL ................................................................................................................
Force Majeure ...............................................................................................
Construction of Development Agreement ....................................................
Severability ...................................................................................................
Cumulative Remedies ...................................................................................
Hold Harmless Agreement ............................................................................
Cooperation in the Event of Legal Challenge ...............................................
Public Agency Coordination .........................................................................
Initiative Measures ........................................................................................
Attorneys~ Fees .............................................................................................
No Waiver .....................................................................................................
Authority to Execute .....................................................................................
Notice ............................................................................................................
Captions ........................................................................................................
Consent .........................................................................................................
Further Actions and Instruments ...................................................................
Subsequent Amendment to Authorizing Statute
Governing Law .............................................................................................
Effect on Title ...............................................................................................
Mortgagee Protection ....................................................................................
Notice of Default to Mortgagee; Right of Mortgageeto Cure .......................
Bankruptcy ....................................................................................................
Disaffirmance ................................................................................................
No Third Party Beneficiaries ........................................................................
Project as a Private Undertaking ...................................................................
Restrictions ...................................................................................................
Recitals ..........................................................................................................
Recording ......................................................................................................
Title Report ...................................................................................................
iv
30.29
30.30
30.31
30.32
Entire Agreement ..........................................................................................
Successors and Assigns .................................................................................
OWNER'S Title to Property .........................................................................
Exhibits .........................................................................................................
LIST OF EXHIBITS
Exhibit
Exhibit
Exhibit
Exhibit
Exhibit
Exhibit
Exhibit
Exhibit
Exhibit
Exhibit
Exhibit
Exhibit
Exhibit
Exhibit
"D-I"
"D-2"
"D-3"
"D-4"
"D-5"
"D-6"
"D-7"
Legal Description of the Property
Final Site Plan
Conditions of Approval
Platinum Triangle Interim Development Fees
Electrical Utilities Undergrounding Fee
Fire Facilities Fee
General Plan and Environmental Processing Fee
Library. Facilities Fee
Park Fee
Police Facilities Fee
Public Works Supplemental Sewer, Storm D/'ain and Beautification Fees
Traffic Impact Fee
Development 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, duty organized and
existing under the Constitution and laws of the State of California (hereinafter "CITY") and __
{hereinafter "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 tbllowing 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 developrnent 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.
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 ,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
seventy-five 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 serx'ices, personal services, public spaces and uses, and other community
amenities within the area.
G. OWNER represents that it owns in fee approximately acres of real
property located at , in the City, 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.
H. 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 called the
"Project").
I. 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
objectives.
J. The City Council, as duly recommended by the Planning Commission, adopted
Ordinance No. on , reclassifying the property in The Platinum
Triangle, including the Property, into the PTMU Overlay Zone.
K. 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.
L. 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 Mitigation Monitoring
Program No. 106 and Mitigation Monitoring Program No. __ for the Project, CITY is
requiring that OWNER construct and install a number of public improvements, including off-site
traffic circulation improvements, and provide other public benefits,
M. 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.
N. 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.
O. 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").
P. 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.
Q. 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.
R. On that date, the City Planning Commission, after considering an Initial Study
conducted pursuant to CEQA for this Development Agreement, and the requirements of CEQA,
including Section 21166 of the Calilbrnia Public Resources Code and Section 15162 of the
CEQA Guidelines, found and determined that FE[R No 330 previously certified by the City
Council for the Amended General Plan and related projects, together with Mitigation Monitoring
Plan No. 106 for The Platinum Triangle, and a Mitigated Negative Declaration for the
Development Agreement and the Project, together with Mitigation Monitoring Program No. ,
are adequate to serve as the required environmental documentation for this Development
Agreement and satisfies all of the requirements of CEQA, and that no further environmental
documentation need be prepared for this Development Agreement.
S. 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__
T. 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.
U. 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.
V. On that date, the City Council alter considering an Initial Study conducted pursuant
to CEQA for this Development Agreement, and the requirements of CEQA, including Section
21166 of the California Public Resources Code and Section 15162 of the CEQA Guidelines,
found and determined thai FEIR No. 330 previously certified by the City Council for the
Amended General Plan and related projects, together with Mitigation Monitoring Plan No. 106
fbr The Platinurn Triangle, and a Mitigated Negative Declaration for the Development
Agreement and the Project, together with Mitigation Monitoring Program No. , are adequate to
serve as the required environmental documentation for this Development Agreement and
satisfies all of the requirements of CEQA, and that no further environmental documentation need
be prepared for this Development Agreement.
W. On __, 20__, the City Council found and determined that this Development
Agreement: (it 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; (till is entered into
pursuant to and constitutes a present exercise of the CITY's police power: and (ix') is entered into
pursuant to and in compliance with the requirements of Section 65867 of the Development
Agreement Statute and the Procedures Resolution.
X. 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 improvernents,
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.
Y On ,20__, the City Council adopted the Authorizing Ordinance authorizing
the execution of this Developmenl 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 ten-n 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, serx'ices 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 whether located within or outside the Property: the construction of structures and
buildings and the installation of landscaping.
1.5 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.
1.6 Development Agreement Statute. The "Development Agreement Statute" means
Sections 65864 through 65869.5 of the California Govermnent Code as it exists on the
Development Agreement Date.
1.7 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 OW .~NER 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.
1.8 Enabling Ordinance. The "Enabling Ordinance" means Ordinance No. 4377 enacted
by the CITY on November 23, 1982.
1.9 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. , 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, bul 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.
I. l0 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.
1.11 Gross Floor AreWGFA. "Gross Floor Area" or "GFA" means the gross floor area of
any of the Permitted Buildings.
1.12 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
fbrth in Paragraph 12.2 of this Agreement.
6
1.13 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.
1.14 Mortgagee. "Mortgagee" means the holder of the beneficial interest under a
Mortgage, or the owner of the Property, or interest therein, under a Mortgage.
1.15 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
28 (Assignment) of this Development Agreement.
1.16 Parking Areas. The "Parking Areas" means all parking structure{s), and/or all
surface parking servicing the Project.
l.I 7 Permitted Buildings. "Permitted Buildings" include
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 the of each of
the Permitted Buildings, as set forth in the Final Site Plan.
1.18; Platinum Triangle Area. "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.
1.19 Procedures Resolution. The "Procedures Resolution" is Resolution No. 82R-565
adopted by CITY pursuant to Section 658865 of the Development Agreement Statute.
1.20 Project. The "Project" means the development project contemplated by the
Development 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.
1.21 Property. The "Property" means that certain real property shown and described on
Exhibit "A" to this Development Agreement.
1.22 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.
1.23 Term. "Term" is defined in Section 2 of this Development Agreement.
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' ora 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 tbr any other reason, this Development Agreement shall autornatically 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
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 pan 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 (as the same may be modified in accordance with this Development
Agreement) and such other standards, terms and conditions expressly contained in this
Development Agreement. CITY shall accept and timely process, in the normal rnanner 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.
The Property shall be used for such uses as may be permitted by the Development
Approvals and the Existing Land Use Regulations. The duration of this Development
Agreement, 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 BUILDINGS.
6.1 Description of Permitted. The Permitted Buildings to be located on the Property 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 as depicted and substantially in
conformance with the Final Site Plan. Prior to commencement of construction of the first
Permitted Building, OWNER shall restrict the use of the Parking Areas to, 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 to tenants, visitors, patrons, invitees and other users of the
Permitted Buildings. 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 the
Arrowhead Pond of Anaheim without the prior written approval of the City Traffic and
Transportation Manager and the Executive Director of Convention/Sports and Entertainment,
which approval shall be at CITY's sole discretion.
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 maximurn 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 entbrceable 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 pertbrming 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, OWN ER 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 confom~ance 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
necessa~ 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, tfthe 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
OWN ER 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 modi~, 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 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, no 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
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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 Buildings on the Property or that are displaced by the construction of the Permitted
Buildings. As OWNER submits detailed construction plans in order to obtain building permits
for a Permitted Building 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. 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 lSD 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 lSD
for the advancement of additional funds to construct the upgraded water facilities.
9.2.2 Storm and Sewer Drains. Prior to final building and zoning inspections for each
Permitted Building, OWNER will construct sewers and storm drains 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 Permitted Building and updated prior to the
issuance of any building permits for each subsequent Permitted Building. 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 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 tbrth 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 as Mitigation Monitoring Program
No. for the Project [or Supplemental EIR No.__, as applicable] as shown on the
Final Site Plan.
Section 10. REIMBURSEMENT PROVISION.
In the event OWN ER 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 reimbursemen! from owners of the
benefitted properties.
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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 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.
The Interim Development Fees constitute amounts estimated by the applicable Departments to
be the approximate fair share of costs attributable to the Project. lfan 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 Developmem Fee,
and upon subsequent adoption ora 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 Fire Facilities Fee. OWNER will pay a Fire Facilities Fee as set forth in Exhibit
12.2.3 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-3."
12.2.4 Library Facilities Fee. OWNER will pay a LibraO' Facilities Fee as set forth in
Exhibit "D-4."
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12.2.5 Park Fee. OWNER will pay the Park Fee as set forth on Exhibit "D-5." and, if
the Property is eight or more acres in size, OWNER will dedicate, develop and maintain a
minipark substantially in conformance with the Final Site Plan.
12.2.6 Police Facilities Fee. OWNER will pay the Police Facilities Fee to defray the
costs of capital facilities and equipment as set forth in Exhibit "D-6."
12.2.7 Public Works Supplemental Sewer, Storm Drain and Beautification Fees.
OWNER will pay Public Works Fees for supplemental sewer impacts, storm drain impacts, and
arterial highway beautification/aesthetics as set forth in Exhibit "D-7."
12.2.8 Traffic Impact Fee. OWNER will pay the Supplemental Traffic Impact Fee for
improvements required to provide acceptable traffic service levels in and through the area's
Master Plan of Arterial Highways system as set forth in Exhibit ~'D-8."
i2.3 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 l 5D 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
covenant in a form approved by the City Attorney's Office wherein OWNER agrees not to
contest the tbrmation 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 t 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.
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12.6 Imposition of Increased Fees Taxes or Assessrnents. 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. Nothing contained herein shall be construed to prohibit
CITY from imposing fees, taxes or assessments on the Property which are unrelated to the
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 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 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.
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 Buildings constructed pursuant to the Final Site Plan.
Section 17. FUTURE APPROVALS.
1 7.1 Basis Ibr Denying or Conditional Granting Future Approvals. Before OWNER can
begin grading on the Property or other development of the Property, OWNER must secure
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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.
1 7.3 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.
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 in Section 25 of 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
15
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 othem'ise 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 othena'ise impact any other rights, duties or obligations
of either party under this Development Agreement.
Section 19. RESOLUTION OF INTENT AND USES FOR THE PROPERTY.
19.1 Non-Cancellation of Rights. Subject 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:
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 tbrth in the Final Site Plan and this
Development Agreement in order to encourage development of The Platinum Triangle; and
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 ora size which would be justified only by the magnitude of the Project provided
16
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 Properly 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
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
necessaO' to comply with such State and Federal laws or regulations.
23.2. Building 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 an2 such rules, regulations or policies which prevent or preclude
compliance with one or more provisions of this Development Agreement until CITY makes a
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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 cancelling 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 Both Parties. Any cancellation of this Development Agreement shall
require the mutual consent of both parties.
Section 25. PERIODIC REVIEW.
25. I 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.
25.2 OWNER's Submission. Each year, not less than forty-five (45) days nor more than
sixty 160) 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 nol 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. lfduring the cure
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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
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 fbr 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 AgreemenL and CITY hereby agrees
that OWNER shall be entitled to specific performance in the event ora default by CITY
hereunder. CITY and OVv~ER acknowledge that, if OWNER Fails to carry, out its obligations
1t)
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 satis~, 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 ($__) 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.
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 tbrth 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 than ten (10) days following completion of the public hearing.
27.4 Implementation. Modif,ving or terminating this Development Agreement shall be
accomplished by CITY enacting an ordinance. The ordinance shall recite the reasons xvhich, in
the opinion of the CITY, make the modification 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
2O
Development Agreement as modified shall become effective on the effective date of the
ordinance terminating or modifying this Development Agreement.
27.5 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
fbllowing 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 28 ASSIGNMENT.
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, mortgage& 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 10 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 Developrnent Agreement, (b) OWNER has provided to CITY the notice of
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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 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
22
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 Developmen! 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
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.
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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.
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, 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 ClTY
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
OWN ER'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.
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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
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. l 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, addresse; to OWNER as follows:
Attention:
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
or such changed address as CITY shall designate in writing to OWNER:
With copies to:
City' Manager
City of Anaheim
P.O. Box 3222
Anaheim, California 92803
25
City Attorney
City of Anaheim
P.O. Box 3222
Anaheim, California 92803
and if 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.
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 parries 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 necessa~
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
efl'ect 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.
26
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
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 pan
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
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, join venture or other association of any kind is formed by this
Development Agreement. The only relationship between CITY and OWNER is that ora
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.
28
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 ., attached hereto as Exhibit "F" (the
"Preliminary' Title Report"). 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.
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 Title:
ATTEST:
SHERYLL SCHROEDER
City Clerk
APPROVED AS TO FORM:
JACK L. WHITE,
City Attorney
54141.2/smann.7/28/04/lgm
3O
STATE OF CALIFORNIA
tSS]
COUNTY OF ORANGE
On this __ day of ., 20_, be undersigned, a Notary Public for the State of California
duly commissioned and sworn, personally appeared personally known to me
or proved to rne on the basis of satisfactory' evidence, to be the person who executed the within
instrument as Mayor of the City of Anaheim, the municipal corporation executing the within
instrument, and acknowledged to me thai the corporation executed it.
WITNESS my hand and official seal,
[SEAL]
STATE OF
COUNTY OF
)SS.
On ., 20_, before me, the undersigned, a Notary Public in and for said State,
personally,' appeared personally known to me or proved to me on the basis
of satisfactory' evidence to be the person who executed the within instrument as
_ on behalf of ., the corporation therein named thai executed the within
instrument, and acknowledged to me that such corporation executed the same.
WITNESS my' hand and official seal.
[SEAL]
STATE OF CALIFORNIA, )
)ss.
'N ·
COU, T~r OF ORANGE )
31
On this _ day of ,20_, BEFORE ME, THE Undersigned, A Notary Public for
the State of California, duly commissioned and sworn, personally appeared SHERYLL
SCHROEDER, personally known to me or proved to me on the basis of satisfactory evidence, to
be the person who executed the within instrument as City Clerk of the City of Anaheim, the
municipal corporation executing the within instrument, and acknowledged to me that the
corporation executed it.
WITNESS my hand and official seal.
Notary Public
32
EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY
EXHIBIT "B"
FINAL SITE PLAN
34
EXHIBIT "C"
CONDITIONS OF APPROVAL
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
--- Per-Unit Fee
The Per-Unit fee is calculated at:
$104,775
9,175 Units
-- $l 1.42 per Unit
37
EXHIBIT "D-2"
FIRE FACILITIES FEE
Residential Uses
Commercial/Office Uses
$350.00 per unit
$ 0.20 per square foot
The purpose of establishing a Fire Protection Fee is to finance improvements and
additions to facilities and equipment to support fire protection and paramedic services made
necessary by new development and expansion of and additions to existing development within
The Platinum Triangle. Development will generate additional need for protection and paramedic
services in The Platinum Triangle.
There is a need in The Platinum Triangle for expansion of fire protection and paramedic
services and for new and expanded development to contribute its fair share towards the costs of
additional and improved facilities and equipment.
There is a reasonable relationship between the need for the described fire protection and
paramedic facilities and equipment and the impacts of the types of development proposed for
The Platinum Triangle, for which the corresponding Fire Protection Fee described above is
charged. There is also a reasonable relationship between the use of the fee and the type of
development for which the fee is charged, in that these fire protection and paramedic facilities
and equipment provide support for fire protection and paramedic services and accommodate
additional demand generated by development.
The cost estimates set fbrth below are reasonable cost estimates for adding to fire
protection and paramedic facilities and equipment in The Platinum Triangle. The Fire Protection
Fees collected pursuant to this agreement shall be used to finance only the additional facilities
described, which additional facilities are needed to augment existing fire protection and
paramedic facilities and equipment serving The Platinum Triangle, to offset the impacts of new
development and expansion of and additions to existing development within The Platinum
Triangle.
FIRE FACILITIES ,AND EQUIPMENT
Fire truck company with equipment
Fire engine company xvith equipment
Fire station
Sl,000,000
$ 750,000
$3,500,000
TOTAL
S5,250,000
EXHIBIT "D-3"
GENERAL PLAN AND ENVIRONMENTAL PROCESSING FEE
Residential Uses:
Commercial/Office Uses:
S8.00 per unit
$0.01 per square foot
The General Plan and Environmental Processing Fee is based on the following:
Intent: Recover partial costs incurred to develop the Mixed-Use Overlay designation for the
Platinum Triangle. including the preparation of the Environmental Impact Report
Contract Costs Incurred: $146,000
New Development Allowed in 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
$146,000/14,384,300 -- $.01 per square foot
7,340,000 x $.01 -- $73,400
$73,400/9175 = $8 per dwelling unit
Planning Entitlement Fee
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EXHIBIT "D-4"
LIBRARY FEES
Residential Uses
$144.39 per unit
The amount of the Libra~ fee is based upon the current fee structure for East Santa Ana Canyon
residential development for single family residential uses. The 2004 fee for such residential uses
is 5317.67, based upon an estimated 3.3 persons per dwelling. Using an estimate of 1.5 persons
per unit in The Platinum Triangle, the proposed interim developer fee for The Platinum Triangle
is $144.39 per unit.
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EXHIBIT "D-5"
PLATINUM TRIANGLE PARK FEES
Residential Uses $7055.74 per unit
Park fees are established by implementing various values identified for The Platinum
Triangle into the Park Dedication fee formula, as established by Anaheim Municipal Code,
Chapters 17.08 and 17.34, which is as Follows:
{Land Acquisition Costs - Land Development Costs} x 2 x DU density proposed =fee
1,000
Land acquisition costs are estimated by Keyser-Marsten to be $50/sq. ft. of property
purchased {for industrial properties, including goodwill and relocation costs*t. This equals
$2,178,000/ac.
Land Development costs have been established by the City Council at SI 73,913.33/ac.**
City Park Acreage Standard of 2 acres/1,000 population was incorporated in the formula
set forth in Chapters 17.08 and 17.34, as approved by City Council.
Estimated dwelling unit density' of 1.5 persons/unit For both the single family attached
and apartment complexes as estimated in Final Environmental Impact Report, No. 330, Table
4.3-1. for the City of Anaheim's General Plan and Zoning Code Update.
Using the above figures the park fee is $7,055.74 per unit.
($2,178,000 + S173,913.33) x 2 x 1.5 -- $7,055.74 per unit
1,000
Parkland dedication will be required for each 8 acre or larger parcel proposed for
residential development. The City's Platinum Triangle consultant, EDAW, has recommended
that each dwelling unit for parcels of 8 acres or larger dedicate 44 sq. ft. of public parkland per
each dwelling unit proposed.*** The value of the parkland dedication will be credited against
overall park in lieu fees paid for the project. Consistent with existing zoning and policies, no
credit will be given For improvements.
As an example, ifa subdivision were required to dedicate a .5 acre park, credit would be
given against the Land Acquisition value, established above, of $2,178,000 per acre.
Accordingly the Developer would be entitled to a credit of S1,089,000 for the dedication.
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Notes:
* Memorandum by Keyser-Marsten dated December 29, 2004 and updated January 15,
2004 by James Rabe of Keyser Marsten, available in the Parks Division office.
** As approved by' the City Council in Resolution No. 2004R-128, dated June 15, 2004.
*** The square foot figure for required recreational space per dwelling unit in The
Platinum Triangle is lower than the figure used elsewhere in the City, as set forth in Section
17.08. The lower figure is recommended because of the type of residential projects anticipated
for The Platinum Triangle. The mixed use type of neighborhoods proposed require smaller
human scale parks within a walking distance of 2.5 to 5 minutes of each dwelling unit.
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EXHIBIT "D-6"
POLICE FACILITIES FEE
Residential Uses $31.62 per unit
Office Uses S .10 per square foot
Commercial Uses $ .21 per square foot
The Revenue and Cost Specialists Consulting firm is still in the process of establishing
tee guidelines for The Platinum Triangle area. During the interim the foregoing formula will be
applicable to ofl~et the equipment cost for police services in The Platinum Triangle area. The
interim lee will be replaced ~vith a one-time capital facilities fee which will be applicable to the
Prqiect.
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EXHIBIT "D-7"
PUBLIC WORKS SUPPLEMENTAL FEES
SUPPLEMENTAL SEWER IMPACT FEE
All Land Uses $430.00 per 1,000 gross square foot
Gross Floor Building Area developed between 0.4 and 1.0 Floor Area Ratio (FAR)
ARTERIAL HIGHWAY BEAUTIFICATION/AESTHETIC IMPACTS FEE
All Land Uses $12,500.00 per gross acre
SUPPLEMENTAL STORM DRAIN IMPACT FEE (Drainage District 27)*
Residential Uses $24,500.00 per net acre
Non-Residential Uses $35,000.00 per net acre
*Drainage District Maps are available in the Public Works Department.
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EXHIBIT "D-8"
TRAFFIC FEE
Residential Uses
Office Uses
Commercial Uses
$871.00
$3,384.00
$10,552.00
per unit
per 1,000 square foot
per 1,000 square foot
The Supplemental Traffic Fee is based upon the following:
PLATINUM 'T'RIAN(iLE TRAFFIC IMPACT FEE CALC[/LATI()N
PM
AVERAG[- ('APA('ITY ('()ST PER IMPACT
PEAK
TRIP LEN(iTII
LAND [SE [~NIT RqTE I (MI} 2 ('()NSUMED
Residential dwelling 0.49 1.67 0.000480gfl
Office tsf 1.36 I 67 0.00133331)
('ommercia] tsf 3.89 1.67 1).(10382504
3 LANE MILE 4 FEE/UNH'
$ 2,818,092 $ 871
$ 2,818,092 $ 3,384
S 2,818,092 $ 10,552
Anaheim Traffic Analysis Model. PBQ&D, hourly trip rate between 3 & 7 pm weekdays in Platinum Triangle.
Anaheim Traffic Analysis Model, PBQ&D, average trip length during PM peak hour in Platinum Triangle
PM trip rate muhiplied by average length, then divided by OCTA standard 1,700 vehicles per hour pe~ lane.
Construction plus right-of-way i no landscaping, derived from State College/Lincoln project data below:
S 1.582.195 construction of St.('ollege/Lincoln intersection widening.
4087 linea~ feet 111) of project length.
S 387 13 per If(no landscape costs includedl
S 2,044,039 consl cost/mile
$ 774,053 row cost/mile
Impact Fee is exclusive of ('ityw, id¢ Traffic aud Transportation lmpro,,ement Fee. which also is due.
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EXHIBIT '"E"
DEVELOPMENT REQUIREMENTS AND MAINTENANCE OBLIGATIONS
As a condition of approval of Development Agreement No. , the City requires OWNER to
undertake and implement the maintenance of certain slopes, landscaping, Ia park (if Property is 8 or more
acres)] private streets and private utilities, and the performance of other obligations, as set forth herein.
Prior to the earlier of either the sale of the first [residential] lot or the issuance of the temporary or
permanent "Certificate of Occupancy" for the first [residential dwelling unit] in Tract Map
, OWNER shall execute and record with the Orange County Recorder a declaration of
covenants, conditions and restrictions ("CC&Rs") satisfactory to the Planning Director and the City Attorney
creating maintenance obligations for an incorporated association ("Association") to establish a financial
mechanism or financial mechanisms to maintain those areas and facilities (collectively referred to
hereinafter as the "Common Area"} depicted on Attachment No. 1 attached hereto. Such Area shall include
the fbllowing:
[Describe the maintenance obligations imposed on the project, which may include the following:
a. Private streets and street lights (include street name, if applicable);
b. Private sewer and storm drain lines, together with all appropriate appurtenances;
Landscape slope areas and all drainage facilities (including, but not limited to, french
drains, down drains, drainage swales, retaining and crib wall(s} etc.);
d. Landscape maintenance easements.
Parkway landscaping and irrigation.
Covered on-site storage for bicycles, scooters and athletic equipment screened from
public view'.
g. Washer and dryer in each dwelling unit.
Centralized recreational amenities appropriate to the population mix in the
development, as approved by the City.
i. Maintenance of minipark.
j. Public restrooms, if applicable.
The obligations described above and depicted in the Maintenance Exhibit shall collectively be referred to as
the "Maintenance Obligations." Until such time as the Association is formed, the CC&Rs are recorded, the
46
Common Area is conveyed in fee to the Association, and the Association has assumed responsibility to
maintain the Common Area and perform the Maintenance Obligations, OWNER shall be responsible for the
maintenance of the Common Area and performance of the Maintenance Obligations, including any
additional obligations which may be specified herein. Reconveyance of all or part of the Common Area or
any property interest therein to a party other than the Association shall require (i) the prior written consent of
the City, (ii) appurtenant easements over the Common Area for the benefit of each and every' lot in the
Property and (iii) that the reconveyance expressly affirm that the provisions of'Civil Code Section 1367
relating to lien rights to enforce delinquent assessments and the CC&Rs shall remain applicable. The
CC&Rs may provide any of the Maintenance Obligations may be assumed by a duly formed Platinum
Triangle Infrastructure and/or Maintenance Assessment District subject to CITY's written approval.
The covenants and restrictions set forth herein constitute a general scheme for the development, protection
and maintenance of the Property for the benefit of all owners. Said covenants and restrictions are for the
benefit of the Property and shall bind all owners thereof. Such covenants and restrictions shall be a burden
upon. and a benefit to, not only the OWNER but also its successors and assigns. All of such covenants and
restrictions are intended to be and shall be declared in the CC&Rs to be covenants running with the land or
equitable servitudes upon the land, as the case may be.
he CC&R's shall provide that termination of the CC&R's or amendment of any provision which may
negatively impact performance of the Maintenance Obligations shall require prior written consent of the
City. Termination of this Declaration is not a release of Declarant with regard to Declarant's independent
obligations in connection with development and approval of the Project or with regard to obligations and
liabilities incurred prior to such termination.
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EXHIBIT "F"
PRELIMINARY TITLE REPORT
48