Resolution-PC 2006-15. ./ . ~ . . . . . . ~ . ~ .~ ~ ~.. . . . . ~. . ~ . . . .
RESOLUTION NO. PC2006-15
A RESOLUTION OF THE OF ANAHEIM PLANNING COMMISSION
RECOMMENDING CITY COUNCIL APPROVAL OF AN AMENDMENT TO
DEVELOPMENT AGREEMENT NO. 2004-00002 BY AND BETWEEN THE
' CITY OF ANAHEIM AND CREA/NEXUS ANAHEIM CORNERS, LLC. AND
MAKING CERTAIN FINDINGS RELATED THERETO
(1801 E. KATELLA AVENUE)
WHEREAS, Article 2.5 of Chapter 4 of Division 1 of Title 7(commencing with Section
65864) of the Government Code of the State of California (hereinafter the "Statute") authorizes a city to
enter into a development agreement with any person having a legal or equitable interest in real property for
the development of the property as provided in said Statute; and
WHEREAS, upon request of an appficant, cities are required to establish procedures and
requirements by resolution or ordinance for the consideration of development agreements; and
WHEREAS, the City of Anaheim (hereinafter the "City"),heretofore on November 23, 1982,
enacted Ordinance No. 4377 (hereinafter the "Enabling Ordinance") which makes the City subject to the
Statute; and
WHEREAS, pursuant to subdivision (c) of Section 65865 of the Statute, the City heretofore
on November 23, 1982, adopted Resolution No. 82R=565 (hereinafter the "Procedures Resolution")
establishing procedures and requirements for the consideration of developmenf agreements upon receipt of
an application by the City; and
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 ofAnaheim ("General
Plan AmendmenY'), and certified Final Environmental lmpact 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 the City's
zoning code, and a series of related actions; and
WHEREAS, the General Plan Amendment sets forth a vision for development of Mixetl
Uses, Office High, Office Low, Industrial and Institutional land uses within an 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 Southem Califomia Edison Company Easement on the north
("hereinafter referred to as The Platinum Triangle"); 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 Councif adopted Resolution No. 2004-177, approving 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 and pursuant to the procedures set forth in Chapter 18.76 of the Anaheim Municipal Code,
on August 24, 2004, the City Counci{ adopted Ordinance No. 5378 amending Title 18 of the Anaheim
Municipal Code to establish zoning and development standards for the Platinum Triangle Mixed-Use
(PTMU) Overlay Zone (the `PTMU Overlay Zone") and Ordinance No. 5936, amending the zoning map to
reclassify approximately three hundred and seventy-five acres within The Platinum Triangle into the PTMU
Overlay Zone 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 that 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, the PTMU OverlayZone requires an approved Final Site Plan and a
DevelopmenfAgreement between the property owner and the City of Anaheim to implement all development '
Cr1PC2006-15 -1- PC2006-15
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in the Katella, Gene Autry and Gateway Districts of thePTMU Overlay Zone, except as otherwise exempt
under the Code; and
WHEREAS, when a Final Site Plan application includes a request for a Variance or a
Conditional Use Permit, the PTMU Overlay Zone requires the Variance and/or Conditional Use Permit
applications to be processed concurrently with the Development; and
WHEREAS, on August 17, 2004 the City Council adopted Resolution No. 2004-179,
approving the form of the Standard Development Agreement for The Platinum Triangle PTMU Dverlay Zone;
and
WHEREAS, in connection with adoption of The Platinum Triangle MasterLand Use Plan,
the PTMU Overlay Zone, and the form of the Standard Development Agreement for The Platinum Triangle,
the City Council by motion, as lead agency for the proposed actions,' determined that FEIR No. 330 and the
associated Updated and Modified Mitigation Monitoring Program No: 106 for The Platinum Triangle, were in
compliance with CEQA and the state and City CEQA guidelines and were adequate to serve as the required
environmental documentation for said actions based upon findings set forth in said motion; and
WHEREAS, on November 15, 2004, the Planning Commission recommended approval of
Development Agreement No. 2004-00002 by and between the City of Anaheim and CREA/Nexus Anaheim
Corners, LLC, in conjunction with the approval of Conditional Use Permit No: 2004-04906 (to modify ,
required setbacks and to permit sales of alcoholic beverages for on-premises consumption irr a proposed
7,839 square foot restaurant within the Stadium Lofts - Anaheim (a proposed high=density urban mixed-use
center with 390 apartment dwelling units located above 2,820 square feet of retail use, 7,839 square feet of
restaurant use, and 6,297 square feet of clubhouse and leasing office surrounding a 5-level parking
structure) with waivers of minimum dimension and area of patios/balconies'and required building treatment
adjacent to streets); and
WHEREAS, on November 16, 2004, the City Council did hold a public hearing at the Civic
Center in the City of Anaheim, notice of said public hearing having been duly given as required by law and in
accordance with the provisions of the Anaheim Municipal Code, Chapter 18.60, to hear and consider
evidence for and against said Development Agreement and Conditional Use Permit No. 2004-04906 and to
investigate and make findings and recommendations in connection therewith; and
WHEREAS, the City Council concurred with the decision of the Planning Commission and
approved Development Agreement No. 2004-00002 by and between the City of Anaheim and CREA/Nexus
Anaheim Corners, LLC, by adopting Resolution No. 2004-232 for the Conditional Use Permit and Ordinance
No. 5952 for the Development Agreement; and
WHEREAS, on December 18, 2005, pursuant to the Statute, the Enabling Ordinance, and
the Procedures Resolution (hereinafter collectively referred to as the "Development Agreement Law"),
CREA/Nexus Anaheim Corners, LLC. ("ApplicanY'), submitted an application to the Planning Department to
amend Development Agreement No. 2004-00002 (the "Application"), to allow residential condominiums, and
to establish a 1-lot, 390 unit residential mixed use condominium subdivision; and
WHEREAS, the Development Agreement pertains to approximately 6.284 acres of real
property in the City of Anaheim, owned in fee by the Applicant, commonly known as 1801 East Katella
Avenue (the "Property"), which is located in The Platinum Triangle and zoned PTMU Overlay (Katella
District), and more particularly shown and described on Exhibit "A", which is attached hereto and
incorporated herein by this reference; and
WHEREAS, Applicant desires to develop the Property in accordance with the provisions of
the Development Agreement by developing a mixed use project consisting of 390 dwelling units, 2,820
square feet of retail, 7,839 square feet of restaurant, 6,297 square feet of clubhouse/leasing and an 845
space parking structure, as more particularly set forth in Final Site Plan No. 2004-00005 and Conditional
Use Permit No. 2004-04906 (hereinafter collectively referred to as the "Project"); and
WHEREAS, the Planning Director approved the requested amendmentto Final Site Plan No.
2004-00005 to provide for the development of the Stadium Lofts - Anaheim project, contingent upon the
' - -2- PC2006-15
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approval of this amendmentto Development Agreement No. 2004-00002 by the Planning Commission and
City Council; and
WHEREAS, the Planning Commission did hold a public hearing at the Civic Center in the City
of Anaheim on January 23, 2006, at 2:30 p.m., notice of said public hearing having been dulygiven as
required by law and in accordance with the provisions of the Anaheim Municipal Code; Chapter 18.60'
"Procedures" tohear and consider evidence for and against said proposed amendment and to investigate
and make findings and recommendations in connection therewith; and
WHEREAS, the Applicant has demonstrated that the Project meets the eligibility
requirements of the Procedures Resolution to enter into the Development Agreement by showing that, upon
completion, the Project will result in the construction of 390 condominiums, 2,820 square feet of retail, 7,839
square feet of restaurant, 6,297 square feet of clubhouse/leasing and an 845 space parking structure; and
WHEREAS, said Commission, after due inspection, investigation and study made by itself
and in its behalf, and after due consideration of and based upon all of the evidence and reports offered at
said hearing, does find and determine that the Development Agreement meets the following standards set
forth in the Procedures Resolution:
1. That the amended Agreement has been prepared in conformance with the form of the standardized
Platinum Triangle Development Agreement approved per Resolution Na'2004-179. Further, the
applicant has demonstrated eligibility to enter into the amended Development Agreement since the
project will result in the construction of 390 residential units, 2,820 square feet of retail use and 7,839
square feet of restaurant use, as oriqinally aqqroved. The proposed amendment and tentafive tract
map would maintain consistency with goals and policies of the General Plan Mixed Use land use
designation for The Platinum Triangle and The Platinum Triangle Master Land Use Plan, and would be
consistent with the following recently approved projects in this zoning district:
• Platinum Triangle Condominiums at 1331 East Katella Avenue '- TTM 16832
• Stadium Park Residential at 1515 East Katella Avenue - TTM 16831
• Platinum Centre Condominiums at 1818 South State College- TTM 16825
• Anaheim Stadium Condominiums at 2100 East Katella- TTM 16800
2. That the amendment proposed is compatible with the uses authorized in and the regulations
prescribed for the applicable zoning district in that the Project is in compliance with the PTMU Overlay
Zone requirements as set forth in Final Site Plan No. 2004-00005 as amended, which has been
approved by the Planning Director, as there are no physical or structural changes to the building and it
will be constructed as originally approved.
3. That the requested amendment and map are compatible with the orderly development of property in
the surrounding area in that it is in conformance with and implements The Platinum Triangle Master
Land Use Plan and the PTMU Overlay Zone requirements.
4. That the Project is not otherwise detrimental to the health and safety of the citizens of the City of
Anaheim.
5. That the amendment to the Development Agreement constitutes a lawful, present exercise of the City's
police power and authority under the Staiute, the Enabling Ordinance and the Procedures Resolution.
6. That the Development Agreement is entered into pursuant to and in compliance with its charter powers
and the requirements of Section 65867 of the Statute, the Enabling Ordinance and the Procedures
Resolution.
7. That no one indicated their presence at said public hearing in opposition; and that no correspondence
was received in opposition to the subject petition.
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CALIFORNIA ENVIRONMENTAL QUAUTY ACT FINDING: That the Anaheim Planning
Commission has reviewed the proposal to amend a Development Agreement between the City of Anaheim
and CREA/Nexus Anaheim Corners, LLC to allow residential mixed use condominiums and does hereby find
that the Mitigated Negative Declaration and Mitigation Monitoring Plan No. 125 previously-approved in
connection with Development Agreement No. 2004-00002 and Conditional Use Permit No. 2004-04906 is
adequate to serve as the required environmental documentation in connection for this request upon finding
that the declaration reflects the independent judgment of the lead agency and that it has considered the
Mitigated Negative Declaration together with any comments received during'the public review process and
further finding on the basis of the initial study and any comments' received that there is no substantial
evidence that the project will have a significant effect on the environment.
NOW, THEREFORE, BE IT RESOLVED that based upon the aforesaid findings and
determinations, the Anaheim City Planning Commission does hereby recommend to the City Council
approval of the proposed amendment to Development Agreement No. 2004-00002 to allow residentiaf
condominiums, and to esta6lish a 1-1ot, 390 unit residential mixed use condominium subdivision.
THE FOREGOING RESOLUTION was ado ed e Planning m' ion meeting of
January 23, 2006. `
CHAI N, ANAHEIM LAN G COM ISSION
ATTEST: :
~~~.....s~.--
SENIOR SECRETARY, ANAHEIM PLANNING COMMISSION
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss.
CITY OF ANAHEIM )
I, Eleanor Morris, Senior Secretary of the Anaheim Planning Commission, do hereby certify
that the foregoing resolution was passed and adopted at a meeting of the Anaheim City Planning
Commission held on January 23, 2006, by the following vote of the members thereof:
AYES: COMMISSIONERS: BUFFA, EASTMAN, FLORES, KARAKI, PEREZ, ROMERO, VELASQUEZ
NOES: COMMISSIONERS: NONE
ABSENT: COMMISSIONERS: NONE
1N WITNESS WHEREOF, { have hereunto set my hand this -! ~ day of ~D7'd~.r ,
2006.
/Y.~~ s~w ~`'Y~s-S~'v~
SENIOR SECRETARY, ANAHEIM PLANNING COMMISSION
PC2006-15
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RECORDING REQUESTED BY AND '
WHEN RECORDED RETURN TO:
City Council ,
City of Anaheim
c/o City Clerk
P.O. Box 3222 ,
Anaheim, California 92$OS
(Space Above Line For Recorder's Use)
~
DEVELOPMENT AGREEMENT NO. DAG 2004=00002 _
BETWEEN
THE CITY OF ANAHEIM '
AND : `
CREA/Nexus Anaheim Corners, LLC.
~ ~
DEVELOPIVIENT AGREEMENT NO. DAG 2004-00002
BETWEEN
THE CITY OF ANAHEIM
AND
CREA/Nexus Anaheim Corners, LLC.
TABLE OF CONTENTS
Page
RECITALS . . . .......... ...............: ......:....... .................... ....... .:....... ........ ........ .. . .. 1
Section L DEFINITIONS ........................... ..:........................... ......... ............ 5
1.1 Assessment District ` ........................... ......... ......... ............. 5
1.2 Authorizing Ordinance ............ ..:...:.. ......... ......... ............. 5
1.3 CITY ........................................ ......... ......... ....::... ............. S
1.4 Conditional Use Permit .. ... .. .. . . ... .. .:. ... .... . 5
1.5 Development ...................:. ........' ....... ........ ......... ............. 6
1.6 Development Agreement Date . ......... ........: ......:.: ............ 6
' 1.7 Development A~reement Statute ........ ........ ......... ............. 6
1.8 Development Ap~rovals .............................. ......... ... ..:;:,.... 6
19 Enabling Ordinance .................. .................... :..................... 6 '
~ 1.10 Existin~ Land Use Re ulations . ................... ......... ............ 6
1.11 Final Site Plan ........................................................................ 6
1.12 Gross Floor Area/GFA .......................................................... 7
1.13 Interim Devel~ment Fees ..................................................... 7
1.14 Mort~a~e ................................................................................ 7
1.15 Mortga~ee ................................................................:............ 7 .
1.16 Owner .................................................................................... 7
1.17 Parkin~ Areas ........................................................................ 7
1.18 Permitted Buildin~s .............................................................. 7
1.19 Platinum Trian lg e Area ...................................:...................... 7
1.20 Procedures Resolution ........................................................... 7
1.21 Project .........:.......................................................................... 7
1.22 PropertX .................................................................................. $
1.23 Sunplemental Propert ~~ ........... ..... .... ...... .. .... ... .. ....... 8
1.24 Support Commercial Uses ...............................:.................... 8
1.25 Term ....................................................................................... 8
Section 2. TERM ................................................................................................. $
2.1 ................................................................................................ 8
2.2 ................................................................................................ 8
2.3 ...................................................................................... 8
Section 3. BINDING COVENANTS ................................................................. 9
Section 4. EFFECT OF AGREEMENT .............................................................
i 9
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Section 5. PROJECT LAND USES . ................... ............................................ 9
Section 6. PERMITTED BUILDINGS .:...: .......... ......... ..:... ....... .:....:. ........ . 9
6.1 Descrintion of Permitted Buildin~s ...... .:....... :.......: ......... ............ . 9
6.2 Parking Areas ........ .............................. ......... ......... ....:.... ............ . 9
Section 7. DENSITY OF PERMITTED BUILDINGS .. ......... ......... ............ 10 :
Section 8. ENFORCEMENT ........... :............... .... .:..... ......... ...................... 10
Section 9. PUBLIC IMPROVEMENTS AND SERVICES ..... ..... .... ........... 10
9.1 Public Park .......................... ....:. ....... ......... ......... ........... 11
9.2 Utilitie~Water Electrical, Gas, Sewer, & Draina~e)......... 11
9.2.1 Water Service ..........:. .............. .:...... ....... ........ .:..... ....... 11
9.2.2 Storm and Sewer Drains ........... .......: ......... ......... ............ 12
9.3 Timing, Phasing and Sequence of Public
Tmprovements and Facilities . .................. ......:..:. ..:..........
12
9.4 Traffic Circulation Improvements ...... .:....... ......... ....,....... 12
Section 10. REIMBURSEMENT PROVISION .................................................. 12
Section 1 L DEDICATIONS AND EXACTIONS .......... ....... .. .... ..... ... ... 12 :
Section 12. FEES. TAXES AND ASSESSMENT .............................................
^ 13
12.1 Fees, Taxes and Assessments ............................................... 13
12.2 Platinum Trian lg e Interim Develapment Fees ..................... 13
12.2.1 Electrical Utilities Under~roundin~ ee ............................... 13
12.2.2 Fire Facilities Fee ................................................................. 13
12.2.3 General Plan and Environmental Processin~e ................. 13
12.2.4 Librarv Facilities Fee ............................................................ 13
12.2.5 Park Fee ................................................................................ 13
12.2.6 Police Facilities Fee .............. ............... .................. 13
12.2.7 Public Warks Supplemental Sewer, Storm Drain and
Beautification Fees ................................................
13
12.2.8 Traffic Impact Fee ................................................................ 14
12.3 Excluded Development Fees ................................................ 14
12.3.1 Water Utilities Fees ............................................................. 14
12.3.2 Electrical Utilities Fees . ....................................................... 14
12.3.3 Citv Processing Fees ............................................................. 14
12.4 Platinum Triang;le Infrastructure and/or Maintenance
Assessment District ............................ ...... ......... ..... 14
12.5 Accountin~ of Funds .............................................................
ii , 14
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12.6. Im~osition of Increased Fees Taxes or Assessments........... 14
Section 13 COVENANTS. CONDITIONS AND RESTRICTIONS ......:.......... 15
Section 14 NEXUSlREASONABLE RELATIONSHIP CHALLENGES..:...... 15
Section 15: TIMING OF DEVELOPMENT " .................., ......... .::...... ........... 15
Section 16. EXISTING USES . . .. . . . .........: :.. .......: ...... ......... ......... :............ 15
Section 17. FUTURE APPROVALS . ......... ......:.. ......... ......... ......... ............ 15
17.1 Basis for Denving or Conditionallv Grantin Fg uture
At~provals ............ ........ .... ............. . ... ....:. ......... ........... 15
17.2 Standard of Review ...:.... ..:................. ......... ....:.... ............ 16
17.3 Future Amendments to Final Site Plan ................... ...:........ 16
< Section 18 AMENDMENT ............... :.............. ....... ......... ..:.. :.............. . .... 16
18.1 Initiation of Amendment ..................... ......... :........ .:......... 16
182 P d 1~
, roce ure ........................... ..... ............................ ........ ....
18.3 Consent ................................................................................ 16
18.4 Amendments ...................................................................:....1 b
18:5 Effect of Amendment to Development Agreement ..............17
Section 19. RESOLUTION OF INTENT AND USES FOR THE PROPERTY 17
19.1 Non-Cancellation of Ri~ .................................................. 17
Section 20. BENEFITS TO CITY .......................................................................17
Section 21. BENEFITS TO OWNER ................................................................. 17
Section 22. UNDERTAKINGS AND ASSUR~INCES CONTEMPLATED AND
PROMOTED BY DEVELOPMENT AGREEMENT STATUTE...18
Section 23. RESERVED AUTHORITY ............................................................. 18
23.1 State and Federal Laws and ReQUlations .............................. 18
23.2 Buildin Cg odes .................................................................... 18
23.3 Public Health and Safetv ...................................................... 18
Section 24. CANCELLATION ........................................................................... 19
24.1 Initiation of Cancellation .....................................................19
24.2 Procedure ............................................................................. 19
24.3 Consent of Both Parties ........................................................ 19
Section 25. PERIODIC REVIEW . .............................................................. ... 19
25.1 Time for Review ..................................................................19
25,2 OWNER's Submission .........................................................19
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25.3 Findin s .... ......... ...:..... ......... ............. ............ ............... 19
25.4 Initiation of Reeiew by Citv Council .. ......:.. .....................::20
~
iv
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Section 26.
~ EVENTS OF DEFAULT ......... ......... ........:..................... ....:...... 20
26.1 Defaults bv OWNER :. .......... .....:.. ................ .. ......... ...............
20
' 26.2 ~ecific Performance Remedv ......... ......... ..:...... '............:............
20
26:3 Liquidated Dama~es Remedv ........:.....:. .............. .....................
21
Section 27. MODIFICATION OR TERMINATION ........ ........:........... :...........21 '
27.1 Notice to OWNER ..::.............:. ........ ..:.....:.... ....................... ........
21 _
27.2 Public Hearing .. :........ .......... ....:......:... ..:... ....................... ........
22
27.3 ~
Decision ....................:... ....:........................................................ _
22 _
27.4 Implementation .............. ............:................... .......:.......,:.....;..
22 -
27.5 Schedule for Com~liance ............:.......... ... .......... .....:..:.............
22
Section 28. ASSIGNMENT .......................... .....:............... ................................22
28.1 ~ht to Assi~n .......................:............................. .:....... ...............
22
28.2 Release Upon Transfer .....................................................................
23
Section 29. NO CONFLICTING ENACTMENTS ............................................ 23
Section 30. GENERAL ........................................................................................24
30.1 Force Ma,~eure ..............
24
30.2 Construction of Development Agreement ......................................
24
30.3
................................................................
Severabilitv ......................
_
24
30.4 Cumulative Remedies .....................................................................
25
30.5 Hold Harmless Ag~reeinent .....................................~........................
25
30.6 Cooperation in the Event of Le a~l Challen~e .................................
25
30.7 Public A~encx Coordination ................................
25
30.8 Initiative Measures ..........................................................................
25
v
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309 Attornevs' Fees ....' .... ......:............ .:.............................. ..............
26
34.10 No Waiver . ................ ....... ..:... . ........ ..:..... . ............... .... 26
30.11 AuthoritY to Execute ........... ........ .: ..... ........ .....:.. ..:...... ... 26
30.12 Notice ....................:.... ......'.........:....................,:......... .. 26'
30.12.1 Notice to OWNER ...... ...........:........ ..................:..... ....:...........
26
30.12.2 Notice to CITY . .....:....................... .:.:...:................ ................
27
30.13 Captions .... ...................................... ...........:................ 27
30.14 Consent .......:.::. . .....:... ......:..... ................. ....:............ .... 27
30.15 Further Actions and Instruments ........:.. ....... ....'..... ........... 28
30.16 Subsequent Amendment to Authorizin Sg tatute ..:........... 28
30.17 Governing Law.... ......' ... ..:.........' ........ ................ ....:.... ... 28
30.18 Effect on Title .:.... ....:......... ....... ......:.......... ........ ............ 28
30.19 Mort~,a~ee Protection. .. ... ...... . .. .... 28
30.20 Notice of Default to Mo~_a e~e~, Ri htg of Mort~a eg; e to
Cure ..... ... ..............:........... ......... .......
.... ... 28
30.21 Bankruptcv .......... .....:.:.................................................. ... 29
30.22 Disaffirmance ....................................................................:. 29
30.22.1 .................................................. . . ..............
29
30.22.2 ...................................................................:.:. 29
~ 30.22.3 ..............................:.....................................:. 29
30.22.4 ...................................................................... 29
30.22.5 .......................................................................
29
30.23 No Third Partv Beneficiaries ............................................... 29
30.24 Proj,ect as a Private Undertakin~ ........................................... 30
30.25 Restrictions ........................................................................... 30
30.26 Recitals ............................................................. .. 30
30.27 Recordin~ .............................................................................. 30
30.28 Title Report .......................................................................... 30
30.29 Entire A~reement ................................................................. 30
30.30 Successars and Assigns ........................................................31
30.31 OWNER'S Title to Propertv ................................................. 31
30.32 Exhibits ................................................................................ 31
LIST OF EXHIBITS
Exhibit "A" Legal Description of the Property
Exhibit "B" Final Site Plan (FSP 2004-00005)
Exhibit "C" Conditional Use Permit No. CUP 2004-04906
Exhibit "D" Platinum Triangle Interim Development Fees
Exhibit "D-1" Electrical Utilities Undergrounding Fee
Exhibit "D-2" Fire Facilities Fee
Exhibit "D-3" General Plan and Environmental Processing Fee
vi
Exhibit "D-4"
Exhibit "D-5"
Exhibit "D-6"
Exhibit "D-7"
Exhibit "D-8"
Exhibit "E"
Exhibit "F"
Exhibit "G"
• ' •
Library Facilities Fee
Park Fee
Police Facilities Fee
Public Works Supplemental Sewer, Storm Drain andBeautification
Fees
Traffic Impact' Fee
Development and Maintenance Obligations
Preliminary Title Report
Connector Street Cast Estimate
vii
• •
DEVELOPMENT AGREEMENT NO. DAG 2004-00002
BETWEEN
THE CITY OF ANAHEIM
AND
CREAlNexus Anaheim Corners, LLC
This Development Agreement is entered into this 15th day ofNovember, 2004, by and
'between the City of Anaheim, a charter city and municipal corporation, duly organized
and existing under the ' Constitution and laws of the State of California (hereinafter
"CITY") and CREA/Nexus Anaheim Corners, LLC, a Delaware limited liability
company (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 following facts: :
A. To strengthen the public planning process, encourage private participation in
comprehensive planning, and reduce the economic risk of development, the Legislature
of the State of California adopted the Development Agreement Statute, Sections 65864,
et seq., of the Government Code. The Development Agreement Statute authorizes CITY
to enter into binding development agreements with persons having legal or equitable
interests in real property for the development of such property in order to, among other
things: encourage and provide for the development of public facilities in order to support
development projects; provide certainty in the approval of development projects in order
to avoid the waste of resources and the escalation in project costs and encourage
inveshnent in and commitment to comprehensive pla.nning 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 AmendmenY'), 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.
1
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D. CITY desires that the approximately 820-acre area generally bounded by the
Santa Ana River on the east, the Anaheim City limits on the south, the Santa Ana
Freeway (Interstate 5) on the west, and the Southern California Edison Company
Easement on the north (hereinafter' called "The Platinum Triangle Area") be developed as'
a combination of high quality industrial, office, commercial and residential uses, as
envisioned in the General Plan Amendment.
E. In order to carry out the goals and policies of the General Plan far The
Platinum Triangle, on May 25, 2004, the City Council approved The Platinum Triangle
Master Land Use Plan, setting forth the new vision for The Platinum Triangle.
F. To further implement the goals and policies of the General Plan for The
Platinum Triangle, the City Council has established The Platinum Triangle Mixed-Use '
(PTMLn Overlay' Zone ,(hereinafter the "PTMU Overlay Zone") consisting orf
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.
G. OWNER represents that 'it owns in fee approximately 6.284 acres of real
property located at 1801 East Katella Avenue, 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 mixed use project consisting of 390
condominiums, 2,820 square feet of retail, 7,839 square feet of restaurant, 6,297 square
feet of clubhouse/leasing and an 845 space parking structure 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.O10A20 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. 5936 on August 24, 2004 reclassifying the property in The Platinum
Triangle, including the Property, into the PTMtJ 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 far the benefits gained from the vested rights , acquired
pursuant to the Developmerit 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 Na 106 and Mitigation Monitoring Program No. 125 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 understandinga in this
Development Agreement. In arder far 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 Na 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'Na
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 October 4, 2004, 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 October 21, 2004, 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 cansider a
recommendation to the City Council regarding adoption of a development agreement.
Q. On November 15, 2004, 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 California Public Resources Code and Section
15162 of the CEQA Guidelines, found and determined that FEIR No 330 previously
certified by the City Council for the Amended General Plan and related projects, together
with Mitigation Monitoring Program No. 106 for The Platinum Triangle, and a Mitigated ,
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Negative Declaration for the Development Agreement and the' Project, together with
Mitigation' Monitoring Program No. 125, are adequate to serve as the required
environmental documentation for this Development Agreement and satisfy 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 Agreementpursuant to Resolution No. PC. 2004-140.
' T. On November 4, 2004, as required by Section 65867 of the Development
Agreement Statute and Section 31 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 November 16, 2004, 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 after 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 that FEIR No. 330 previously certified by
the City Council for the Amended General Plan and related projects, together with
Mitigation Monitoring Program No. 106 for The Platinum Triangle, and a Mitigated
Negative Declaration for the Development Agreement and the Project, together with
Mitigation Monitoring Program No. 125, are adequate to serve as the required
environmental documentation for this Development Agreement and satisfy all of the
requirements of CEQA, and that no further environmental documentation need be
prepared for this Development Agreement.
W. On November 16, 2004, the City Council found and determined that this
Development Agreement: (i) is consistent with the CITY's existing General Plan; (ii) is
not otherwise detrimental to the health, safety and general welfare of the citizens of
CITY; (iii) is entered into pursuant to and constitutes a present exercise of the CITY's
police power; and (iv) is entered into pursuant to and in compliance with the
requirements of Section 65867 of the Development Agreement Statute and the
Procedures Resolution.
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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 improvements, facilities and services within The
Platinum Triangle, and the appropriateness of the ' density and intensity of the
development comprising the Project and the needs of the CITY and surrounding areas for '
other infrastructure.
,
Y. On December 7, 2004, the City Council adopted the Authorizing Ordinance
authorizing the execution of this Development Agreement.
NOW, THEREFORE, pursuant to the authority contained in the Development'
Agreement Statute, as it applies to CITY, and pursuant to the Enabling Ordinance, the
Procedures Resolution and the CITY's infierent powers as a charter city, and pursuant to
the mutual promises and covenants herein contained, the parties hereto agree as follows:
Section 1: DEFINITIONS.
The following words and phrases are used as defined terms throughout this
Development Agreement, and each defined term shall have the meaning set forth below.
1.1 Assessment District. "Assessment District" for purposes of this Development
Agreement means a special district, assessment district or benefit area existing pursuant
to State law or the charter powers of the CITY for purposes of financing the cost of
public improvements, facilities, services and/or public facilities fees within a distinct
geographic area of the CITY.
1.2 Authorizin~`Ordinance. The "Authorizing Ordinance" means CITY Ordinance
No. 5952 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 The "Conditional Use Permit" means Conditional Use Permit No. CUP 2004-
04906 to modify the required setbacks and to permit sales of alcoholic beverages for on-
premises consumption in the proposed restaurant with waivers of minimum dimension
and area of patios/balconies and required building treatment adjacent to the street, a copy
of which is attached hereto as Exhibit "C."
• •
1.5 Develo~ment. "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.
1.6 Devel~ment Ag~eement_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, ar a memorandum thereof, or (ii) the effective date of the ~
Authorizing Ordinance.
1.7 Development Agreement Statute. The "Development Agreement Statute"
means Sections 65864 through 65869.5 of the California Government Code as it exists on
the Development Agreement Date.
1.8 Develo~ment Ap rovals. "Development Approvals" means the Final Site
Plan, the Conditional Use 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 QWNER and
CITY agree in writing, such matters as so amended. If this Development Agreement is
required by law to be amended in order for "Development Approvals" to include any
such amendments, "Development Approvals" shall not include such amendments unless
and until this Development Agreement is so amended.
1.9 Enablin~ Ordinance. The "Enabling Ordinance" means Ordinance No. 4377
enacted by the CITY on November 23, 1982.
1.10 Existing Land Use Reg;ulations. "Existing Land Use Regulations" mean the
ordinances and regulations adopted by the City of Anaheim in effect on the Effective
Date, including the adopting ordinances and regulations that govern the permitted uses of
land, the density and intensity of use, and the design, improvement, construction
standards and specifications applicable to the development of the Property, including, but
not limited to, the General Plan, the Zoning Code, The Platinum Triangle Master Land
Use Plan, Mitigation Monitoring Program No. 106, Mitigation Monitoring Program No.
125, and all other ordinances of the City establishing subdivision standards, park
regulations, impact or development fees and building and improvement standards, but
only to the extent the Zoning Ordinance and such other regulations are not inconsistent
with this Development Agreement. Existing Land Use Regulations do not include non-
land use regulations, which include taxes.
l.l l Final Site Plan. The "Final Site Plan" means Final Site Plan No. FSP 2004-
00005, as approved by the City Council on November 16, 2004, a copy of which is on
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file in the Planning Department, and made a part hereof by this reference, which is
summarized in Exhibit "B" attached hereto.
1.12 Gross Floor AreaJGFA. "Gross F1oor Area" or "GFA" means the gross floor
area of any of tihe Permitted Buildings.
,
1.13 Interim Development Fees. "Interim Development Fees" are the` fees
imposed within The Platinum' Triangle pending adoption of permanent fee programs by
the City as set forth in Paragraph 12.2 of this Agreement.
1.14 Mort~a~e: "Mortgage" means a mortgage, deed of trust or sale and leaseback
arrangement or other transaction in which the Property, or a portion thereof or an interest
therein, is pledged as security.
1.15 Mort~a~ee. "Mortgagee" means the holder of the beneficial interest under a
Mortgage, or the owner of the Property, or interest therein, under a Mortgage.
1.16 Owner. "Owner° is CREAJNexus Anaheim Corners, LLC, and any person or
entity with which or into which CREA/Nexus Anaheim Corners. LLC may merge, and
any person or entity who may acquire substantially all ' of the assets of CREA/Nexus
Anaheim Corners, LLC, 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.
1.17 Parking Areas. The "Parking Areas" means all parking structure(s), and/or all
surface parking servicing the Project.
1.18 Permitted Buildin~s. "Permitted Buildings" include a mixed use structure ,
consistin~ of condominiums clubhouse/leasing,_retail and restaurant uses 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 each of the Permitted Buildings, as set forth in the Final Site Plan.
1.19 Platinum Triang,le 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.
1.20 Procedures Resolution. The "Procedures Resolution" is Resolution No. 82R-
565 adopted by CITY pursuant to Section 65865 of the Development Agreement Statute.
1.21 Project. The "Project" means the development project contemplated by the
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.
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1.22 Propertv. The "Property" means that certain real property shown and ,
described on Exhibit "A" to this Development Agreement.
1:23 Sunnlemental Parcel. A"Supplemental Parcel" is a parcel to be incorporated
into the "Property" by separate action in the nature of a lot line adjustment prior to the
commencement of construction on the project, at which time the supplemental parcel
shall be merged into the "Property."
1.24 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 otfier 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.
1.25 Term. "Term" is defined in Section 2 of this Development Agreement.
Section 2. TERM.
21 The term (hereinafter called "Term") of this Development Agreement shall be
that period of time during which this Development Agreement shall be in effect and bind
the parties hereto. The Term shall commence on the Development Agreement Date and
shall extend for a period of five (5) years thereafter, terminating at the end of the day on
the fifth anniversary of the Development Agreement Date, subject to the periodic review
and modification or termination provisions defined in Section 25 and Section 27,
respectively, of this Development Agreement, and further subject to a reasonable _
extension for completion of the Project in accordance with the Timing of Development
schedule set forth in Section 15 of this Development Agreement.
2.2 This Development Agreement shall terminate and be of no force and effect
upon the occurrence of the entry of a final judgment or issuance of a final order, after all
appeals have been exhausted, directed to CITY as a result of any lawsuit filed against
CITY to set aside, withdraw or abrogate the approval of the City Council of this
Development Agreement or if termination occurs pursuant to the provisions of the
Procedures Resolution and such termination is so intended thereby.
2.3 If not already terminated by reason of any other provision in this Development
Agreement, or for any other reason, this Development Agreement shall automatically
terminate and be of no further force and effect upon completion of the Project pursuant to
the terms of this Development Agreement and any further amendments thereto and the
issuance of all occupancy permits and acceptance by CITY of all dedications and
improvements as required by the development of the Project.
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Section 3. BINDING COVENANTS. '
The provisions of this Development Agreement to the extent permitted by 1aw 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. BFFECT OF AGREEMENT.
As a material part of the consideration of this Development Agreement, unless otherwise
provided herein, the parties agree that the Existing Land Use Regulations shall be
applicable to development of the Project. In connection with all subsequent discretionary
actions by CITY required to implement the Final Site Plan and any discretionary actions
which CITY takes or has the right to take under this Development Agreement relating to
the Project, including any review, approval, renewal, conditional approval ar 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 manner for processing such matters as may then
be applicable, all applications for further approvals with respect to the Project called for
or required under this Development Agreement, including, any necessary site plan,
tentative map, vesting tentative map, final map and any grading, construction or other
permits filed by OWNER in accordance with the Development Approvals.
Section 5. PROJECT LAND USES.
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 Descri~tion of Permitted Buildin~s. 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 Fina1 Site Plan. Prior to issuance of a building permit for the first
residential dwelling unit in Stadium Lofts, OWNER shall xestrict the use of the Parking
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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 Directar 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 maximum footprints set forth on the Final Site
Plan.
Section $. ENFORCEMENT.
Unless this Development Agreement is terminated or cancelled pursuant to the
provisions of this Development Agreement, this Development Agreement 'or any
amendment hereto, shall be enforceable by any party hereto notwithstanding any change
hereafter in any applicable general plan, specific plan, zoning ordinance, subdivision
ordinance or building ordinance adopted by CITY which alters or amends the rules,
regulations or policies of Development of the Project as provided in this Development
Agreement pursuant to Section 65865.4 of the Development Agreement Statute;
provided, however, that the limitations of this Section shall not apply to changes
mandated by State or Federal laws or other permissible changes or new regulations as
more particularly set forth in Section 23 of this Development Agreement.
Section 9. PUBLIC IlVIPROVEMENTS AND SERVICES.
In addition to performing any other obligations heretofore imposed as conditions of
approval set forth in the Conditional Use Permit, as material consideration for the CITY's
entering into this Development Agreement, OWNER shall undertake the construction and
installation of the following public improvements required to support the Project and to
enhance area-wide traffic circulation and emergency police and fire protection service
within the time periods as set forth below and in conformance with the Existing Land Use
Regulations. CITY shall cooperate with OWNER for the purpose of coordinating all
public improvements constructed under the Development Approvals or this Development
Agreement to existing or newly constructed public improvements, whether located within
or outside of the Property. OWNER shall be responsible for and use good faith efforts to
acquire any right(s)-of-way necessary to construct the public facility improvements
required by, or otherwise necessary to comply with the conditions of, this Development
Agreement or any Development Approvals. Should : it become necessary due to
OWNER's failure or inability to acquire said right(s)-of-way within four months after
OWNER begins its efforts to so acquire said right(s)-of-way, CITY shall negotiate the
purchase of the necessary right(s)-of-way to construct the public improvements as
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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 fiereinafter set forth in this section, CITY may use its powers of
eminent domain to condemn said required right(s)-of way. OWNER agrees to pay for all
costs'associated with said acquisition and condemnation proceedings. If the CITY cannot
make the proper findings or if far some other reason under the condemnation laws CITY -
is prevented from acquiring the necessary right(s)-of-way to enable OWNER to construct
the public improvements' required by, or otherwise necessary to comply with the
conditions of, this Developxnent Agreement, then the parties agree to amend this
Development Agreement to modify OWNER's obligations accordingly. Any such
required modification shall involve the substitution of other considerations or obligations
by OWNER (of similar value) as are negotiated in good faith between the parties hereto.
Nothing contained in l1 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) ar 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 Fina1 Site P1an. 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 Draina~e). OWNER shall
construct ' the public improvements necessary for the provision of requisite water,
electrical, gas, sewer and drainage requirements for Project as more fully set forth in the
Development Approvals. OWNER shall construct and relocate utilities as may be
required to provide services to the Permitted 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 ar 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 15D of the Water Utility's Rates,
Rules and Regulations which provides ~ for, in part, a fee based on GFA and the
advancement of additional funds to construct the upgraded water facilities. OWNER shall
be entitled to reimbursement in accordance with the terms of Rule 15D for the ,
advancement of additional funds to construct the upgraded water facilities.
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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 area-wide 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 Timin~ Phasin~ 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 therefore shall be constructed or paid in accordance with the timing,
phasing and sequence set forth in this Development Agreement and the Final Site Plan
9.4 Traffic Circulation Im~rovements. In order to assist CITY in providing far
area-wide traffic circulation as requiredby this Project, OWNER shall cause to be made
the traffic circulation improvements identified for the Project as Mitigation Monitoring
Program Nos. 106 and 125 for the Project as shown on the Final Site Plan.
Section 10. REIMBURSEMENT PROVISION.
In the event OWNER is required to construct public improvements, which are
supplemental to the requirements of the Project for the benefit of other properties, CITY
will work with OWNER to establish mechanisms for proportional reimbursement from
owners of the benefited properties.
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. These
dedications shall be in fee or as an easement at the discretion of CITY. Upon completion
and acceptance by CITY of the associated improvements in compliance with the
specifications as approved by CITY, CITY may, at its discretion, accept OWNER's offer
of dedication, or CITY may elect to defer acceptance of an offer of dedication, but no
later than the time the ultimate improvements to the connector street have been made and
accepted by the CITY. Prior to the issuance of the first building permit for the Project,
OWNER shall further deposit with the CITY the Connector Street Cost Estimate in the
amount set forth in Exhibit "G." 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.
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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
Agreemenf. ,
12.2 Platinum Trian~le 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 Departmenta to be the approximate faix share of costs attributable to the
Project. If an identified fee has been adopted prior to issuance of the'first building permit
for the Project, the OWNER shall pay the fee. If an identified fee fias not been adopted at
the time of issuance of said building permit; the OWNER shall pay the applicable
Platinum Triangle Interim Development Fees set forth in attached Exhibit "D." If the
OWNER has paid a Platinum Triangle Interim Development Fee, and upon subsequent
adoption of a corresponding fee it is determined that the OWNER has paid an amount
greater than the amount payable pursuant to the adopted fee, the excess amount paid as an
Interim Development Fee shall be refunded to the OWNER. CITY shall not be obligated
, to adopf 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 "D-2."
12.2.3 General Plan and Environmental Processin~ 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 Librar~ Facilities Fee. OWNER will pay a Library Facilities Fee as set
forth in Exhibit "D-4."
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 mini-park 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 Su lemental Sewer Storm Drain and Beautification Fees.
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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 Im_pact 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."
12.3 Excluded Development Fees. Fees Excluded from Existing ` Land Use
Regulations. The following fees shall not be included among the fees, which would .
otherwise fall within the definition of Existing Land Use Regulations:
12.3:1 Water Utilities Fees. OWNER will pay all applicable fees in accordance
with the Water Utilities Rates, Rules and Regulations in effect at the time of application
for service including Rule 15D ;which provides for, in part; a fee based on GFA to
construct the necessary water facility improvements within The Platinum Triangle.
12.3.2 Electrical Utilities Fees. OWNER will pay all fees in accordance' with the
Electrical Utilities Rates, Rules and Regulations in effect at the time of application for
service.
12.3.3 City Processin~ 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 Trian~le Infrastructure and/ar Maintenance Assessment District.
Prior to the first final building or zoning inspection, OWNER shall execute and record an
unsubardinated covenant in a form approved by the City Attorney's Office wherein
OWNER agrees not to contest the formation of any assessment district(s) which may be
formed to finance Platinum Triangle infrastructure and/or maintenance, which district(s)
could include the Property. The covenant shall not preclude OWNER from contesting (i)
the determination of benefit of such improvements to the Property, (ii) the properties
included in said district or area, (iii) the manner in which said fee is determined or (iv)
the manner in which said improvement costs are spread.
12.5 Accountin~; of Funds. CITY will comply with applicable requirements of
Government Code Section 65865 relating to accounting of funds.
12.6 Imposition of Increased Fees Taxes or Assessments. Except as expressly set
forth or reserved in this Development Agreement, CITY shall not, without the prior
written consent of OWNER, impose any additional fee, tax or assessment on the Project
or any portion thereof as a condition to the implementation of the Project or any portion
thereof, except such fees, taxes and assessments as are described in or required by this
Development Agreement, including the Existing Land Use Regulations or the
Development Approvals. The rates of such fees, taxes and assessments shall be_the rates
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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 RELATIONSHIl'; 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 ar 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 payrnent 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. FLTTURE APPROVALS.
17.1 Basis for Denvin~or Conditionallv Granting Future Approvals. Before
OWNER can begin grading on the Property or other development of the Property,
OWNER must secure several additional permits and/or approvals from CITY. The parties
agree that to the extent said Development Approvals are ministerial in nature, CITY shall
not, through the enactment or enforcement of any subsequent ordinances, rules,
regulations, initiatives, policies, requirements, guidelines, or other constraints, withhold
such approvals as a means of blocking construction or of imposing conditions on the
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Project which were not imposed d`uring 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 5tandard of Review. The rules, regulations and policies that apply to any
additional Development Approvals which OWNER must secure prior to the Development
of the Property shall be the Existing Land Use Regulations, as defined in this
Development Agreement. _
17:3 Future Amendments to Final Site Plan. Future amendments to all or a portion
of the Fina1 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 '
GeneraI' 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 amendmenf 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 ar
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
hereta
18.4 Amendments. Subject to the foregoing provisions of this Section, the parties
acknowledge that refinements and further development of the Project may demonstrate
that changes are appropriate with respect to the details and performance of the parties
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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 ar; appropriate to further the
intended purposes of this Development Agreement, they may, unless otherwise required
by law, effectuate such changes or adjustments as specified in the Development
Approvals.
18.5 'Effect of Amendment to Development Agreement. The parties agree that
except as expressly set forth in any such amendment, an amendment to this Development
Agreement will not alter, affect, impair, modify, waive or otherwise ' impact any other
` rights, duties or obligations of either party under this Development Agreement.
Section 19. RESOLUTION OF INTENT AND USES FOR THE PROPERTY:
19.1 Non-Cancellation of Ri~Lhts. Subject to defeasance pursuant to Sections 25, 26
or 27 of this Development Agreement, the FinaT Site Plan and other Developmenf
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, tfie existing
and future anticipated residents of CITI~ 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
economical construction, funding and dedication to the public, as provided in this
Development Agreement, of certain of the vitally needed on-site and area-wide public
improvements and facilities, and assurances that the entire Project will be developed as
set forth in the Final Site Plan and this Development Agreement in order to encourage
development of The Platinum Triangle; and
The considerations set forth in this Development Agreement, including Section 9.
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
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economically in connection with the phasing of the Project, and of a size which would be
justified onlyby the magnitude of the Project provided for by the Fina1 Site Plan and this
Development Agreement. The benefit to OWNER under this Development Agreement '
consists of the assurance that OWNER will preserve the right to develop the Property as
planned and as set forth in the Final Site'Plan and this Development Agreement. The
parties acknowledge that the public benefits to be provided by OWNER to CITY
pursuanf 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. LTNDERTAKINGS 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 Re~ulations. 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 necessary to comply with such
State and Federal laws or regulations. .
23.2. Buildin~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 of the
Anaheim Municipal Code.
23.3 Public Health and Safetv. 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 directlyxesult from findings by CITY that failure to adopt such rules, regulations
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or policies would result in a condition injurious or detrimental to the public health and
safety. Notwithstanding the foregoing, CITY shall not adopt any such rules,; regulations
or policies 'which prevent or preclude compliance with one or more provisions of this
Development Agreement until CITY makes a finding that such rules, regulations or
policies are reasonably necessary to correct or avoid such injurious' or detrimental
condition.
Section 24. CANCELLATION.
24.1 Initiation of Cancellation. Either party may propose cancellation of this
Development Agreement. ,
24.2 Procedure. The procedure for proposing a cancellation of and canceling this
bevelopment 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.
25.1 Time for Review. CITY shall, at least every twelve (12) months after the
Development Agreement Date, review the extent of good faith compliance by OWNER '
with the terms of this Development Agreement. OWNER's failure to comply with the
timing schedules set forth in the Final Site Plan shall constitute rebuttable evidence of
OWNER's lack of good faith compliance with this Development Agreement. Such
periodic review shall determine compliance with the terms of this Development
Agreement pursuant to California Government Code Section 65865.1 and other successor
laws and regulations.
25.2 OWNER's Submission. Each year, not less than forty-five (45) days nor
more than sixty (60) days prior to the anniversary of the Development Agreement Date,
OWNER shall submit evidence to the City Council of its good faith compliance with the
terms and conditions of this Development Agreement. OWNER shall notify the City
Council in writing that such evidence is being submitted to CITY pursuant to the
requirements of Section 6.2 of the Procedures Resolution. OWNER shall pay to CITY a
reasonable processing fee in an amount as CITY may reasonably establish from time to
time on each occasion that OWNER submits its evidence for a periodic review.
25.3 Findin~s. 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
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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 noncompliance take mare than sixty
(60) days, then CITY shall give OWNER additional time provided that OWNER is
making reasonable progress towards such end. If during the cure period, OWNER fails to
cure such noncompliance or is not making reasonable good faith progress towards such
end, then the City Council may, at its discretion, proceed to modify or terminate this
Development Agreement or establish a time schedule for compliance in accordance with
the procedures set forth in Section 27 of this Development'Agreement.
25.4 Initiation of Review b~v 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 IDevelopment Agreement.
Section 26. EVENTS OF DEFALJLT. '
26.1 Defaults bv 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 Remedv. Due to the size, nature and scope of the
Project, it will not be practical or possible to restore the Property to its pre-existing
condition once implementation of this Development Agreement has begun. After such
implementation, OWNER may be foreclosed from other choices it may have had to
utilize the Property and provide for other benefits. OWNER has invested significant time
and resources and performed extensive planning and processing of the Project in agreeing
to the tertns of this Development Agreement and will be investing even more significant
time in implementing the Project in reliance upon the terms of this Development
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Agreement, and it is not possible to determine sum of the money which would adequately
compensate OWNER for such efforts: For `the above reasons, CITY and OWNER agree
that damages would not be an adequate remedy if CITY fails to carry out its obligations
under this Development Agreement. Therefore, specific performance of this
Development Agreement is the only remedy which would compensate OWNER if CITY
fails to carry out its obligations under this Development Agreement, and CITY hereby
agrees that OWNER shall be entitled to specific performance in the event of a default by
CITY hereunder. CITY and OWNER acknowledge that, if OWNER fails to carry out its
obligations under this Development Agreement, CITY shall have the right to refuse to
issue any permits or other approvals; which OWNER would otherwise have been entitled
to pursuant to this Development Agreement. If CITY issues a permit or other approval
pursuant to this Development Agreement in reliance upon a specified condition being
satisfied by OWNER in the future, and if OWNER then fails to satisfy such condition;
CITY shall be entitled to specific performance far the sole purpose of causing OWNER
to satisfy such condition. The;CITY's right to specific performance shall be limited to
those circumstances set forth above; and CITY shall have no right to seek specific '
performance to cause OWNER to otherwise proceed with the Development of the Project
in any manner.
26.3 Liquidated Dama~es Remedv. 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 specif ed herein, the
parties further agree that CITY will suffer actual damages as a result thereof, the amount
of which is uncertain and would be impractical or extremely difficult to fix; therefore,
OWNER agrees to pay CITY, in the event of any such breach by OWNER, the sum of
One Hundred Thousand Dollars ($100,000.00) as liquidated and actual damages which
sum shall be in addition to any other fees and charges owing to CITY by OWNER
together with a penalty thereon in the maximum amount allowed by Section 54348 of the '
California Government Code; and 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 forth in this Section.
27.1 Notice to OWNER. CITY shall give notice to OWNER of City Council's
intention to proceed to modify or terminate this Development Agreement or establish a
time schedule for compliance within ten (10) days of making the CITY's findings.
27.2 Public Hearin~. 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.
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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 therefore nof than ten (10) days
following`completion of the public hearing.,
27.4 Implementation. Modifying or terminating this Development Agreement
shall be accomplished by CITY enacting an ordinance. The ordinance shall recite the
reasons which, in the opinion of the CITY, make the 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 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 following adoption of the resolution, one copy thereof shall be forwaxded to
OWNER. Compliance with any time schedule so established as an alternative to
modification ar 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 Assi~n. 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.
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28.2 Release Upon Transfer. It is understood and agreed by the parties that the -
Property may be subdivided following the Development Agreement Date. One or more of
such subdivided parcels may be sold; mortgaged, hypothecated, assigned or transferred to
persons for development by them in accordance' with the provisions of this Development _
Agreement. Effective upon such sale, mortgage, hypothecation, assignment or transfer,
the obligations of OWNER shall become several and not joint, except as to OWNER's
obligations set forth in Section 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
Development Agreement, (b) OWNER has provided to CITY the notice of such transfer
specified in Section 28.1 above, (c) the transferee executes and delivers to CITY a
written agreement in which (i) the name and address of the transferee is set forth and (ii)
the transferee expressly and unconditionally assumes all the obligations of OWNER
under this Development Agreement and the Development Approvals with respect to the
property, or portion thereof, so transferred and (d) the transferee provides CITY with
security equivalent to any security provided by OWNER to secure ' performance of its '
obligations under this Development Agreement or the Development Approvals. Non-
compliance by any such transferee with the terms and conditions of this Development
Agreement shall not be deemed a default hereunder or grounds for termination hereof or
constitute cause for CITY to initiate enforcement action against other persons then
owning or holding interest in the Property or any portion thereof and not themselves in
default hereunder. Upon completion of any phase of development of the ;Project as
determined by CITY, CITY may release that completed phase from any further
obligations under this Development Agreement. The provisions of this Section
shall be self-executing and shall not require the execution or recordation of any further
document or instrument. Any and all 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.
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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 A rg eement. The language in all parts of this
' Development Agreement shall in all cases, be construed as a whole and in accordance
with' its fair meaning. The captions of the paragraphs and subparagraphs of this
Development Agreement are for convenience only and shall not be considered or referred '
to in xesolving 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 Severabilitv. If any provision of this Development Agreement "shall be '
adjudged to be invalid, void or unenforceable, such provision shall in no way affect,
impair or invalidate any other provision hereof, unless such judgment affects a material
part of this Development Agreement, the parties hereby agree that they would have
entered into the remaining portions of this Development Agreement not adjudged to be
invalid, void or illegal. In the event that all or any portion of this Development
Agreement is found to be unenforceable, this Development Agreement or that portion
which is found to be unenforceable shall be deemed to be a statement 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 andlor 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
24 . _
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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 ar 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 far damage
caused or alleged to have been caused by reason of the aforementioned activities which
relate to the Project.
30.6 Cooperation in the Event of Le~al Challen~e. 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 1ega1 action and shall
pay any attorneys' fees awarded against CITY or OWNER, or both, resulting from any
suchlegal action. OWNER shall be entitled to any award of attorneys' fees arising out of
any such legal action.
30.7 Public A~encv 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
Proj ect.
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 ar 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
25'
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which would preclude construction ofall or any part of the Project, and to the extent such
initiative, measure, moratorium, referendum, `statute, ordinance or other limitation be
determined by a court of competent jurisdiction to `invalidate or prevail over all or any
part of this Development Agreement, OWNER shall have no recourse against CITY
pursuanf 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 a11 _
other rights, claims and oauses of action as law or in equity which OWNER may have
independent of this Development Agreement with respect to the project. The foregoing
shall not be deemed to limit OWNER's right to appeal any such determination that such
initiative, measure, referendum, statute, ordinance or other limitation invalidates or
prevails over all or any part of this Development Agreement: CITY agrees to cooperate
with OWNER in all reasonable manners in order to keep;this Development Agreement in
' full force and effect, provided OWNER shall reimburse CITY for its out-of-pocket
expenses incurred directly in connection with such cooperation and CITY shall not be
obligated to institute a lawsuit or other court proceedings in this connection.
30.9 Attornevs' Fees. In the event of any dispute between the parties involving the
covenants or conditions contained in this Development Agreement, the prevailing party
shall be entitled to recover reasonable expenses, attorneys' fees and costs.
30.10 No Waiver. No delay or omission by either party in exercising any right or
power accruing upon non-compliance or failure to perform by the other party under any
of the provisions 'of this Development Agreement shall impair any such right or power or
be construed to be a waiver thereof. A waiver by either party of any of the covenants or _
conditions to be performed by the other party shall not be construed as a waiver of any
succeeding breach of nonperformance 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 lus/her partnership and represents that he/she has
the authority to bind OWNER to the performance of OWNER's obligations hereunder.
30.12 Notice.
30.12.1 Notice 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, addressee; to OWNER as follows:
CREA/Nexus Anaheim Corners, LLC.
9381 Judicial Drive, Suite 100
San Diego, CA 92121
Attention: Eric Heffner
26
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or such changed address as OWNER shall designate in writing to CITY.
30.12.2 Notice To CITY. Any notice required ar permitted to be given to GITY
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
, 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
27
. •
any actions as may be reasonably necessary under `the terms of this I7evelopment
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 Authorizin~ Statute. This Development
Agreement has been entered into in reliance upon: the provisions of the Development
Agreement Statute in effect as of the Development Agreement Date. Accordingly, subject
to Section 23.1 above, to the extent that subsequent amendments to the; Governmenf Code ,
would affect the provisions of this Development Agreement, such amendments shall not
be applicable to this Development Agreement unless necessary for this Development
Agreement to be enforceable or unless this Development Agreement is modified pursuant
to the provisions set forth in this Development Agreement and Government Code Section
65868 as in effect on the Development Agreement Date.
30.17 Governing Law. This Development Agreement, including, without ,
limitation, its existence, validity, construction and operation, and the rights of each of the
parties shall be determined in accordance with the laws of the State of California.
30.18 Effect on Title. OWNER and CITY agree that this Development Agreement '
shall not continue as an encumbrance against any portion of the Property as to which this
Development Agreement has terminated.
30.19 Mortgagee Protection. Entering into or a breach of this Development
Agreement shall not defeat, render invalid, diminish, or impair the lien of Mortgagees
having a mortgage on any portion of the Property made in good faith and for value,
unless otherwise required by law. No Mortgagee shall have an obligation or duty under
this Development Agreement to perform OWNER's obligations, or to guarantee such
performance prior to any foreclosure or deed in lieu thereof.
30.20 Notice of Default to Mort~a~ee, Ri~ht of Mort~agee 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.
2s
• •
30.21 Bankruptcv. 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 jurisdicfion 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 aenior Mortgagee
requesting such new agreement, for the remainder of the Term, effective as of the date of
such ;termination, upon the terms, provisions, covenants and agreements as herein
contained to the extent and subject to the law then in effect, and subject to the rights, if
any, of any parties then in possession of any part of the Property, provided: '
30.22.2 The Mortgagee shall make written request upon CITY for the new
Development Agreement for the Project within thirty (30) days after the date of
termination;
30.22.3 The Mortgagee shall pay to CITY at the time of the execution and
delivery of the new Development Agreement for the Project expenses, including
reasonable attorneys' fees, to which CITY shall have been subjected by reason of
OWNER's default; and
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 Undertakin~. 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 _
: 29
• ~
independent contracting entity with respect to the terms, 'covenants and conditions
contained in this Development Agreement. No partnership, join venture or other
association of any kind is formed by this Development Agreement. The only relationship
between CITY and OWNER is that of a government entity regulating the development of
private property and the owner of such private property.
30.25 Restrictions. Property OWNER shall place in any agreements to sell or
convey any interest in the Property or any portion thereof, provisions making the terms of
this Development Agreement binding on any successors in interest of OWNER and
express provision for OWNER or CITY, acting separately or jointly, to enforce the
provisions of this Development Agreement and to recover attorneys' fees and costs for
such enforcement.'
30.26 Recitals. The recitals in this Development Agreement constitute part of this
Development Agreement and each party shall be entitled to rely on the truth and accuracy
of each recital as an inducement to enter into this Development Agreement.
30.27 Recordin~. 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 October
25, 2004, 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 Developrnent 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 A~reement. 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 evidence of any prior or other
agreement shall be permitted to contradict or vary the terms hereof.
30.30 Successors and Assi~ns. 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 Propertv. Neither party hereto shall be bound by any
provision of this Agreement unless and until OWNER shall record this Development
30 '
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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.
IN WITNESS WHEREOF; CITY and OWNER,have executed this Development
Agreement as of the date and year first above written.
"CITY" «OWNER"
CREA/Nexus Anaheim Corners, LLC
CITY OF ANAHEIM, a a Delaware limited liability company
municipal corporation By: Stadium Lofts, LLC
By: A Galifornia limited liability company ,
Mayor Its Manager
By: Nexus Properties, Inc.
ATTEST: A California corporation
Its Manager
By:
SHERYLL SCHROEDER Name:
City Clerk Title:
APPROVED AS TO FORM:
JACK L. WHITE,
City Attorney
54141.2/smann.l0/26/04/lgm
~ ~
STATE OF CALIRORNIA )
)ss:
COUNTY OF ORANGE )
On this day of , 2004, be undersigned, a Notary Public for the State of
California duly commissioned and sworn, 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 Mayor 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
[SEAL]
STATE OF )
)ss.
COUNTY OF )
On , 2004, 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 that 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.
COUNTY OF ORANGE )
~ ~
On this day of , 2004, 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
instnunent, and acknowledged to me that the corporation executed it.
WITNESS my hand and official seal. '
Notary Public
a •
EXHIBIT ~~A~~
LEGAL DESCRIPTION OF THE PROPERTY
PARCEL A:
PARCEL 1 OF PARCELMAP NO. 85-214, AS'SHOWN ON A MAP FILED 1N BOOK
208, PAGES 11 AND 12 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY
RECORDEROF ORANGE COUNTY, CALIFORNIA.
PARCEL B:
PARCEL 2 OF PARCEL MAP NO. 85-214, AS SHOWN ON A MAP FILED 1N BOOK
208, PAGES 11 AND 12 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF ORANGE COUNTY, CALIFORNIA.
PARCEL C:
PARCEL 1 AS SHOWN ON A MAP IN BOOK 57, PAGE 1 OF PARCEL MAPS,
RECORDS OF SAID ORANGE COUNTY.
SUPPLEMENTAL PARCEL:
PARCEL 1, IN THE CITY OF ANAHEIM, COUNTY OF ORANGE, STATE OF
CALIFORNIA, AS SHOWN ON LOT LINE ADJUSTMENT NO. 0000580,
RECORDED , 2004 AND INSTRLTMENT NO. 2004- ,'
OF OFFICIAL RECORDS.
• •
EXHIBIT «B»
FINAL SITE PLAN (FSP 2004-00005)
The Platinum Triangle Mixed Use (PTMU) Overlay Zone (Chapter 18.20 of the Anaheim
Municipal Code) requires an approved Final Site Plan and a Development Agreement
between the property owner and the City of Anaheim far all development that
implements the PTMU Overlay Zone in the Katella, Gene Autry and Gateway Districts,
except as otherwise exempt under the Code. A Final Site Plan Application including Site
Plans, Floor Plans, Elevations, Landscape P1ans and Sign Plans, as well as other
information determined by the Planning Director, is required to be submitted to the
Planning Department for review and approval by the Planning Director as to
conformance with the provisions of the PTMU Overlay Zone and The Platinum Triangle
Master Land Use Plan. Said Plans are then attached as an exhibit'to the Development
Agreement. The Agreement is submitted to the Planning Commission and City Council
for review at a noticed public hearing.
The project applicant (CREA/Nexus Anaheim Corners,' LLC) submitted an application
for Final Site Plan No. 2004-00005 to the Planning Department to provide for the
development of the Stadium Lofts - Anaheim project (a high-density urban mixed-use '
center with 390 condominiums dwelling units located above 2,820 square feet of retail
use, 7,839 square feet of restaurant use, and 6,297 square feet of clubhouse and leasing
office surrounding a 5-level parking structure) in the PTIVILJ Overlay Zone, Katella
District. The project site encompasses approximately 6.3 acres at the northwest corner of
Katella Avenue and State College Boulevard and is currently undergoing the demolition
of two restaurants and offices. . The applicant also submitted a request for a Conditional
Use Permit (CUP No. 2004-04906) for the proposed Stadium Lofts - Anaheim project to
modify required setbacks and to permit sales of alcoholic beverages for on-premises -
consumption in the proposed 7,839 square foot restaurant with waivers of minimum
dimension and area of patios/balconies and required building treatment 'adjacent to
streets.
With the exception of the items and Code waivers requested pursuant to the Conditional
Use Permit application under the purview of the Planning Commission and City Council,
the Planning Director determined that the Final Site Plan application is in conformance
with the provisions of the PTMLT Overlay Zone and The Platinum Triangle Master Land
Use Plan and approved the Final Site Plan.
As required by the PTMU Overlay Zone, the Conditional Use Permit was considered in
connection with the Development Agreement. Both applications were duly considered
by the Planning Commission and City Council and approved by the City Council on
November 16, 2004.
Copies of the Site Plans, Floor Plans, Elevations, Landscape Plans, Sign Plans and the
Phasing Plan are attached hereto. Copies of the supplemental information required to
determine conformance with the PTMTJ Overlay Zone and The Platinum Triangle Master
Land Use Plan and the Planning Director's approval of the Final Site Plan are on file in
the Planning Department and incorporated herein by this reference.
• •
EXHIBIT "D-1"
ELECTRIC UTILITIES UNDERGROUNDING FEE
Residential Uses: $11.42 per unit
390 units x $11.42 = $4,453.80
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
be 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 Under~round SCE lines = Per-Unit Fee
Number of mixed-use residential units
The Per-Unit fee is calculated at:
104 775 = $11.42 per Unit
9,175 Units
~ • _
EXHIBIT "D-2"
FIRE FACILITIES FEE
Residential Uses: $350.00 per unit :
Commercial/Office Uses: $ 0'.20 per square foot
390 units x $350 = $136,500.00
16,956 sf : x $0.20 = $ 3,391.20
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 far 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 forth 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 EQUIl'MENT
Fire truck company with equipment $1,000,000
Fire engine company with equipment $ 750,000
Fire station $3,500,000
TOTAL $5,250,000
39
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: EXHIBIT "D-3"
GENERAL PLAN AND ENVIRONMENTAL PROCESSING FEE
Residential Uses: $8.00 per unit
CommerciaUOffice Uses: $OA1 per square foot
390 UNITS x $8.00 = $3,120.00
16,956 sf x $0.01 = $169.56
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. ofnon-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 = $.Ol per square foot
7,340,000 x $.01= $73,400
$73,400/9175 = $8 per dwelling unit
Planning Entitlement Fee
~ •
EXHIBIT "D-4"
LIBR.ARY FEES
Residential Uses; $144.39 per unit
390 units x $144:39 = ' $56,312.10
The amount of the Library fee is based upon the current fee structure for East Sanfa Ana
Canyon residential development for single family residential uses. The 2004 fee for such
residential uses is $317.67, 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. '
41
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EXHIBIT "D-5"
PLATINUM TRIANGLE PARK FEES
Residential Uses: $7055.74 per unit
390 units x $7,055.74 = $2,751,738.60
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*).
This equals $2,178,000/aa '
Land Development costs have been established by the ~City Council at
$173,913.33/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 condominium 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 +$173,913.331 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, if a 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 $1,089,000 for the
dedication.
42
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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 S minutes
of each dwelling unit.
• ~
: EXHIBIT "D-6"
POLICE FACILITIES FEE
Residential Uses: $31.62 per unit
Office Uses: $:l0 per square foot
Commercial Uses: $.21 per square foot
390 units x $31.62 = $12,331.80
6,297 sf office x $.10 = $629.70
10,659 sf commercial x $0.21 = $2,238.39
The Revenue and Cost Specialists Consulting firm is still in the process of
establishing fee guidelines for The Platinum Triangle area. During the interim the
foregoing formula will be'applicable to offset the equipmen~ cost far police services in
The Platinum Triangle area. The interim fee will be replaced with a one-time capital
facilities fee which will be applicable to the Project.
~ ~
EXHIBIT "D-7"
PUBLIC WORKS SUPPLEMENTAL' FEES
SUPPLEMENTAL SEWER IMPACT FEE ,
All Land Uses: $430.00 per 1,000 gross square foot
371.263 sf = 371.263 (372) x $430.00 = ` $159,960.00
1000
Gross F1oor Building Area developed between 0.4 and 1.0 Floor AreaRatio (FAR)
ARTERIAL HIGHWAY BEAUTIFICATION/AESTHETIC IMPACTS FEE
All Land Uses: $12,500.00 per gross acre
6.284 acres x $12,500.00 = $78,550
SUPPLEMENTAL STORM DRAIN IMPACT FEE (Drainage District 27)*
Residential Uses $24,500.00 per nef acre
Non-Residential Uses $35,000.00 per net acre
This project is located in Drainage District 26
*Drainage District Maps are available in the Public Works Department.
~ ~
EXHIBIT «D-8"
TRAEFIC FEE
Residential Uses $871.00 per unit
Office Uses $3,384.00 per 1,000 square foot
Commercial Uses $10,552.00 per 1,000 square foot
390 units x $871.00 = $339,690.00
6.297 sf office x $3,384.00 = $21,309.04
1000 ,
10.659 sf commercial x $10,552.00 - $112,473.76
' 1000
The Supplemental Traffic Fee is based upon the following:
PLATINUM TRIANGLE TRAFFIC IMPACT FEE CALCULATION
PM
PEAK AVERAGE CAPACITY COST PER IMPACT
UN TRIP
LAND USE IT RATE 1 LENGTH (MI) 2 CONSUMED 3 LANE MILE 4 FEE/UNIT 5
dw
eili
Residentiai ng 0.49 1.67 0.00048086 $ 2,818,092 $ 871
Office tsf 1.36 t.67 0.00133330 $ 2,818,092 $ 3,384
Commercial tsf 3.89 1.67 0.00382504 $ 2,818,092 $ 10,552
1 Anaheim Traffic Analysis Model, PBQ&D, hourly trip rate between 3& 7 pm weekdays in
Platinum Triangle.
2 Anaheim Traffic Analysis Model, PBQ&D, average trip length during PM peak hour in Platinum
Triangle.
3 PM Mp rate multiplied by average length, then divided by OCTA standard 1,700 vehicles per hour
per lane.
4 Construction plus right-of-way (no landscaping) derived from State College/Lincoln project data
below:
$1,582,195.00 construction of State College/Lincoln infersection widening
4087 linear feet (] fl of project length
$387.13 per lf (no landscape costs included)
$2,044,039.00 const cost per mile
$774,053.00 row cost per mile
5 Impact Fee is exclusive of Citywide Traffic and Transportation Improvement Fee, which also is
due.
~ ~
EXHIBIT ~»E» ,
Development Agreement No. DAG 2004-00002
DEVELOPMENT REQU]REMENTS AND MAINTENANCE OBLIGATIONS
As a condition of approval of Development Agreement No. 2004-00002, the City
requires OWNER to undertake and implement the maintenance of certain landscaping,
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 dwelling unit or the
issuance of the temporary or permanent "Certificate of Occupancy" for the first
residential dwelling unit, OWNER shall execute and record with the Orange County `
Recorder a declaration of covenants, conditions and restrictions (CC&Rs") shall be
submitted to the Planning Department and approved by the City Attorney's Office
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 "Maintenance Obligations"), which
include:
a. Private Alleyway/Connector Street at the west boundary of the project
including sidewalks, parkway landscaping and irrigation, street lighting, signage,
striping and all other appurteriances to the private alleyway/connector street.
b. Private sewer and storm drain lines, together with all appropriate
appurtenances including, but not limited to, area drains, inlets, and catch basins,
grease interceptor, and clean outs. '
c. All landscape improvements within the boundaries of the Project,
including all trees and tree wells, shrubbery and any and all special landscaping.
d. Exterior building facades associated with the commercial and retail
ground floor uses including, but not limited to, themed architectural features and
signage, and removal of tenant signage.
e. All hardscape improvements within the boundaries of the Project.
f. Parkway landscaping and irrigation (Connector Street, Katella Avenue,
State College Boulevard and Wright Circle).
g. Parkway hardscape (Connector Street, Katella Avenue, State College
Boulevard and Wright Circle).
h. Onsite fountains and art elements.
i. Enclosed parking structure with mail facilities, rubbish collection areas,
and bicycle storage.
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k. ' HVAC equipment in each dwelling unit associated mechanical equipment
in common roof areas.
1. Recreational amenities areas including pool & spa, barbecue areas,
clubhouse meeting room(s), sauna, workout room.
m. Public restrooms.
n. Site lighting systems.
a Common areas associated with Restaurant & Retail facilities.
p. Trash collection and facilities.
q. Squeal-free surface in parking structure. '
r. Maintenance of on-site signs and awnings.
Until such time as the Association is formed, the CC&Rs are recorded, and the
Association has assumed responsibility to perform the Maintenance Obligations,
OWNER shall be responsible for the performance of the Maintenance Obligations,
including any additional obligations which may be specified herein. Reconveyance of all
or part of any property interest therein established for the common enjoyment of the
residents in the Project to a party other than the Association shall require (i) the prior
written consent of the City, (ii) appurtenant easements over the said property 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 scherne for the
devetopment, protection and maintenance of the Property. Said covenants and
restrictions are for the benefit of the Property and shall bind all successor 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 to be running with the land or equitable servitudes
upon the land, as the case may be.
The CC&R's shall provide that termination of the CC&R's or amendment of any
provision thereof, which may negatively impact performance of the Maintenance
Obligations, shall require prior written consent of the City. Termination of this Declarant
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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 "G"
CONNECTOR STREET COST ESTIMATE
PCC SIDEWALK 2,760 LF @ 6.00 16,560
PCC CURB & GUTTER 610 LF a~, 20.50 12,505
AC PAVING 12,700 @ 5.00 63,500
CATCH BASIN (w/connection) 2 EA @ 7,700 15,400
STREET LIGHTS* 3 EA @ 12,000 36,000
DRY UTILIIES 610 LF @ 20.00 12,200
SEWER MAIN 322 LF @ - 122.00 39,040
REMOVE EXISTING SEWER 320 LF @ 19.00 6,080
NEW SEWER MANHOLE 1 EA @ 2,350.00 2,350
MAINTAIN SEWER FLOW 1 LS . @ 6,550.00 6,550
STREET TREES 17 EA @ 1,000 17,000 `
LANDSCAPING 2,250 SF @ ' S.00 11,250
SIGNING/STRIPING 1 LS @ 1,000 1,000
REMOVE EX AC PAVING 12,700 SF @ 2.00 25,400
REMOVE EX CURB & GUTTER 610 LF @ 7.50 4,575
REMOVE EX SIDEWALK 2,760 SF @ 2.00 5,520 `
ADJUST UTILITIES TO GR.ADE 1 LS @ 2,000 2,000
DRIVEWAY APPROACH 380 SF @ 7.50 2,850
REMOVE EXISTING DRIVEWAY APPROACH 380 SF @ 7.00 2,660
C~gg ~Mp 2 EA @ 1,450.00 2,900
REMOVE EXISTING CURB RAlVIl' 1 LS @ 1,000.00 1,000
REMOVE EXISTING CATCH BASIN 2 EA @ 1,400.00 ~ 2,800
SUBTOTAL 289,140
15% CONTINGENCY 43,371
TOTAL 332,511
* Unit price provided by Electrical Engineering 10-12-04
Revised: 10-12-04