Resolution-PC 2019-022RESOLUTION NO. PC2019-022
A RESOLUTION OF THE PLANNING COMMISSION OF THE
CITY OF ANAHEIM RECOMMENDING THAT THE CITY
COUNCIL APPROVE AMENDMENT NO. 5 TO THE SECOND
AMENDED AND RESTATED DEVELOPMENT AGREEMENT
NO. 99-01 BY AND BETWEEN THE CITY OF ANAHEIM AND
WESTGATE RESORTS ANAHEIM LLC AND MAKING CERTAIN
FINDINGS IN CONNECTION THEREWITH.
(DEVELOPMENT AGREEMENT NO. 99-01)
WHEREAS, the City and Anaheim GW, LLC, a Delaware limited liability company, (the
"Original Developer") entered into the Second Amended and Restated Development Agreement
No. 99-01 dated as of April 11, 2006, and recorded in the Official Records of Orange County
California on June 2, 2006, as Instrument No. 2006000373943 (the "Development Agreement")
with respect to the real property generally described and depicted in the legal description and map
attached hereto as Exhibit A and incorporated by this reference (the "Property"); and
WHEREAS, the Original Developer assigned the Development Agreement with respect to
the Parking Structure No. 1, Retail No. 1 and Vacation Ownership Resort No. 1 to Anaheim GW
II, LLC, a Delaware limited liability company ("Anaheim GW II") pursuant to the Partial
Assignment of Second Amended and Restated Development Agreement No. 99-01 dated as of
January 31, 2007, and recorded in the Official Records of Orange County California on February
7, 2007, as Instrument No. 2007000092571; and
WHEREAS, the Original Developer assigned, and GardenWalk Hotel I, LLC, a California
limited liability company ("GardenWalk Hotel") assumed, the Development Agreement with
respect to the Hotel Property and the Hotels pursuant to that certain Partial Assignment of Second
Amended and Restated Development Agreement No. 99-1 dated as of July 19, 2007 and recorded
in the Official Records of Orange County, California on July 19, 2007 as Instrument No.
2007000453402;and
WHEREAS, Anaheim GW II assigned the Development Agreement with respect to the
Timeshare Parcel and the Vacation Ownership Resort No. 1 to Westgate Resorts pursuant to that
certain Partial Assignment of Second Amended and Restated Development Agreement No. 99-01
dated as of February 29, 2008, and recorded in the Official Records of Orange County California
on March 6, 2008, as Instrument No. 2008000105443; and
WHEREAS, the Development Agreement addresses, among other things, the Developer's
construction of the Project in phases, requiring that the Developer commence construction of the
various Project Elements within certain time frames; and
WHEREAS, in 2010, GardenWalk Hotel and Westgate Resorts requested that the City
amend the Development Agreement (i) to redefine Hotel No. 1, Hotel No. 2 and Hotel No. 3 as
one (1) Project Element consisting of two (2) Hotels ("Hotels 1 and 2") totaling, approximately
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eight hundred sixty-six (866) Hotel Rooms in the aggregate, (ii) to require the Commencement of
Construction of Hotels 1 and 2 to occur on or before May 26, 2011 and (iii) to require the
Commencement of Construction of Vacation Ownership No. 1 to occur on or before March 23,
2019. Accordingly, the Development Agreement was amended by that certain Amendment No. 1
to Second Amended and Restated Development Agreement No. 99-01 dated as of March 1, 2010,
and recorded in the Official Records of Orange County California on July 19, 2010, as Instrument
No. 2010000341657 ("Amendment No. 1"); and
WHEREAS, GardenWalk Hotel thereafter requested that the City further amend the
Development Agreement, Amendment No. 2 to the Second Amended and Restated Development
Agreement No. 99-01 dated as of July 1, 2010 and recorded in the Official Records of Orange
County on August 17, 2011, as Instrument No. 2011000406499 ("Amendment No. 2"), to require
the Commencement of Construction of Hotels 1 and 2 occur on or before May 26, 2013 and the
Completion of Construction and Opening for Business (as defined in Amendment No. 2) occur no
later than 36 months after the Commencement of Construction of the Hotels; and
WHEREAS, as the successor in interest to Anaheim GW Il, Katella Anaheim Retail, LLC
("Katella Anaheim"), thereafter requested an amendment to the Development Agreement,
Amendment No. 3 to the Second Amended and Restated Development Agreement No. 99-01,
dated as of August 23, 2011 and recorded in the Official Records of Orange County on September
16, 2011, as Instrument No. 2011000459373 ("Amendment No. 3"), to make changes to the mix
of uses and the square footage of Retail No. 1; and
WHEREAS, GardenWalk Hotel thereafter requested that the City further amend the
Development Agreement, Amendment No. 4 to the Second Amended and Restated Development
Agreement No. 99-01, dated as of June 4, 2013 and recorded in the Official Records of Orange
County on June 10, 2013, as Instrument No. 2013000350713 ("Amendment No. 4"), to require
that the Commencement of Construction of the Hotels occur on or before May 26, 2015, unless
Developer elects to phase the construction of the Hotels, in which event, GardenWalk Hotel will
be allowed to commence construction of the first Hotel on or before May 26, 2015, and to
commence construction of the second hotel if at all, no later than November 26, 2019. In
connection with Amendment No. 4, the City Council approved that certain Addendum to the
Pointe Anaheim Initial Study/Mitigated Negative Declaration, dated March 27, 2013 (the "2013
Addendum"), which shall be included in the "Existing Approvals" under the Development
Agreement; and
WHEREAS, unless otherwise defined in this Amendment No. 5, all capitalized terms shall
have the meanings ascribed to such terms in the Development Agreement, as amended by
Amendment No. 1, Amendment No. 2, Amendment No. 3 and Amendment No. 4. Copies of the
Development Agreement are available as a public record in the office of the City Clerk located at
200 South Anaheim Boulevard, Anaheim, California; and
WHEREAS, Pursuant to Section 7.5 of the Development Agreement, on February 12,
2019, Westgate Resorts submitted an application to amend the Development Assurances, set forth
in paragraphs (c) and (d) of Section 3.1.1 of the Development Agreement to require the
Commencement of Construction of Vacation Ownership No. 1 to occur on or before October 1,
2021. In response to the request, Amendment No. 5 to the Amended and Restated Development
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Agreement No. 99-01 ("Amendment No. 5"), which is attached hereto as Exhibit B and
incorporated herein by this reference, was prepared; and
WHEREAS, pursuant City Council Resolution No. 82R-565 (the "Procedures Resolution"),
which was adopted by the City Council on November 23, 1982, the Planning Commission shall
provide a recommendation to the City Council with regard to Amendment No. 5 to the Development
Agreement; and
WHEREAS, pursuant to and in accordance with the provisions of the California
Environmental Quality Act (Public Resources Code Section 21000 et seq. herein referred to as
"CEQA"), the State of California Guidelines for Implementation of the California Environmental
Quality Act (herein referred to as the "CEQA Guidelines"), and the City's Local CEQA Procedure
Manual, the City is the "lead agency" for the preparation and consideration of environmental
documents; and
WHEREAS, pursuant to CEQA and the CEQA Guidelines, when a lead agency has
certified an Environmental Impact Report (EIR) or adopted a negative declaration for a project, no
subsequent EIR shall be prepared for that project unless the lead agency determines, based on
substantial evidence in the light of the whole record, one or more of the thresholds set forth in
CEQA Guidelines Section 15162 have been met. The prior environmental documentation
prepared for the Pointe Anaheim/GardenWalk Project includes: The Disneyland Resort Specific
Plan Environmental Impact Report No. 311 (herein referred to as the "Final EIR"), the 1999 Pointe
Anaheim Initial Study and Mitigated Negative Declaration (herein referred to as the "IS/MND"),
the 2001 First Addendum to the Pointe Anaheim Initial Study and Mitigated Negative Declaration
(herein referred to as the "First Addendum"), the 2006 Second Addendum to the Pointe Anaheim
Initial Study and Mitigated Negative Declaration (herein referred to as the "Second Addendum"),
the 2011 Third Addendum to the Pointe Anaheim Initial Study/Mitigated Negative Declaration
Anaheim GardenWalk Project (herein referred to as the "Third Addendum"), the 2013 Fourth
Addendum to the previously -approved Pointe Anaheim Initial Study and Mitigated Negative
Declaration, dated March 27, 2013 (herein referred to as the "Fourth Addendum"), and the 2015
Fifth Addendum, all of which were prepared pursuant to the provisions of Section 15164 of the
State of California Guidelines for Implementation of the California Environmental Quality Act
(herein referred to as the "CEQA Guidelines") in order to determine whether any significant
environmental impacts which were not identified in the previously -approved IS/MND would result
or whether previously identified significant impacts would be substantially more severe in
connection with the amendments to the Second Amended and Restated Development Agreement
No. 99-01. The Final EIR, the IS/MND, the First Addendum, the Second Addendum, the Third
Addendum, the Fourth Addendum and the Fifth Addendum, which together with the related
Mitigation Monitoring Programs, shall be referred to herein collectively as the "CEQA
Documents";
WHEREAS, based upon the evidence submitted and as demonstrated by the analysis
included in the CEQA Documents, the revisions to the term extension milestones associated with
the Development Agreement will not extend the term of the Development Agreement or increase
unit count, but simply will extend the time for the commencement of construction. As such,
Amendment No. 5 is a minor change to the Development Agreement. Therefore, the approval of
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Amendment No. 5 to the Development Agreement and does not necessitate additional
environmental review because it will not result in new or substantially more severe impacts that
were not previously evaluated and/or require additional mitigation measures, and there is no new
information of substantial importance, which was not known and could not have been known with
the exercise of reasonable diligence at the time EIR No. 311, the Pointe Anaheim Initial Study and
Mitigated Negative Declaration (IS/MND), and associated Addenda were approved that triggers
the need for the preparation of subsequent environmental review. The analysis in the CEQA
Documents included anticipated build -out contemplated by the Development Agreement and
remain relevant and retain informational value as to the Anaheim GardenWalk Project; and
WHEREAS, on April 15, 2018, the Planning Commission did hold a public hearing, notice
of said public hearing having been duly given as required by law and in accordance with the
provisions of Chapter 18.60 of the Code, to hear and consider evidence and testimony concerning
the contents of Amendment No. 5 to the Development Agreement and to investigate and make
findings in connection therewith; and
WHEREAS, at said public hearing, upon hearing and considering all testimony and
arguments (if any) of all persons desiring to be heard, the Planning Commission considered all
factors relating to Amendment No. 5 to the Development Agreement; and
WHEREAS, the Planning Commission determines that the evidence in the record
constitutes substantial evidence to support the action taken and the findings made in this
Resolution, that the facts stated in this Resolution are supported by substantial evidence in the
record, including testimony received at the public hearing, the staff presentation, the staff report
and all materials in the project files. There is no substantial evidence, nor are there other facts,
that detract from the findings made in this Resolution. The Planning Commission expressly
declares that it considered all evidence presented and reached these findings after due
consideration of all evidence presented to it.
NOW, THEREFORE, BE IT RESOLVED that the Planning 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 testimony, evidence and reports offered at said hearing, does find and
determine that proposed Amendment No. 5 to the Second Amended and Restated Development
Agreement No. 99-01, in the form presented at this meeting, meets all of the standards and
requirements set forth in the Procedures Resolution, that is:
1. The proposed Amendment No. 5 is consistent with the City's General Plan in that
it is in conformance with the General Plan Commercial Recreation land use designation and with
the goals, policies and objectives for The Disneyland Resort Specific Plan as set forth in the
General Plan.
2. The proposed Amendment No. 5 is compatible with the uses authorized in and the
regulations prescribed for the applicable zoning district in that the proposed Amendment No. 5 is
in compliance with the Disneyland Resort Anaheim GardenWalk Overlay requirements.
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3. The proposed Amendment No. 5 is compatible with the orderly development of
property in the surrounding area in that it is in conformance with and implements The Disneyland
Resort Specific Plan Land Use Plan and the Anaheim GardenWalk Overlay Zone requirements.
4. The proposed Amendment No. 5 is not otherwise detrimental to the health and
safety of the citizens of the City of Anaheim.
5. The proposed Amendment No. 5 constitutes a lawful, present exercise of the City's
police power and authority under the Statute, the Enabling Ordinance and the Procedures
Resolution.
6. The proposed Amendment No. 5 is entered into pursuant to and is in compliance
with the City's charter powers and the requirements of Section 65867 of California Government
Code and the Procedures Resolution.
BE IT FURTHER RESOVED that based on the aforesaid findings and determinations, the
Planning Commission does hereby recommend that the City Council approve Amendment No. 5
to Second Amended and Restated Development Agreement No. 99-01, in the form presented at
this meeting.
BE IT FURTHER RESOLVED that the Planning Commission does hereby find and
determine that adoption of this Resolution is expressly predicated upon Westgate Resorts'
compliance with each and all of the conditions set forth in the Development Agreement, as
amended by Amendment No. 5. Should any such condition, or any part thereof, be declared invalid
or unenforceable by the final judgment of any court of competent jurisdiction, then this Resolution,
and any approvals herein contained, shall be deemed null and void.
BE IT FURTHER RESOLVED that approval of this application constitutes approval of
the proposed request only to the extent that it complies with the Code and any other applicable
City, State and Federal regulations. Approval does not include any action or findings as to
compliance or approval of the request regarding any other applicable ordinance, regulation or
requirement.
THE FOREGOING RESOLUTION was adopted at the Planning Commission meeting of
April 15, 2019.
CHAIRP SON, PLANNING COMMISSION
OF THE CITY OF ANAHEIM
ATTEST:
SECRETARY, PLANNING COMMISSION
OF THE CITY OF ANAHEIM
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STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss.
CITY OF ANAHEIM )
I, Eleanor Morris, Secretary of the Planning Commission of the City of Anaheim, do hereby
certify that the foregoing resolution was passed and adopted at a meeting of the Planning
Commission of the City of Anaheim held on April 15, 2019, by the following vote of the members
thereof:
AYES: COMMISSIONERS: ARMSTRONG, KEYS, LIEBERMAN, MEEKS,
MULLEADY, VADODARIA
NOES: COMMISSIONERS: WHITE
ABSENT: COMMISSIONERS: NONE
IN WITNESS WHEREOF, I have hereunto set my hand this 15"' day of April, 2019.
131948/LM
SECRETARY, PLANNING COMMISSION
OF THE CITY OF ANAHEIM
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Exhibit A
Legal Description and Map
[ATTACHED]
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Real properly in the City of Orange, County of Orange, State of California, described as follows:
PARCEL A:
PARCEL 7 OF PARCEL MAP NO. 2002-205, IN THE CITY OF ANAHEIM, COUNTY OF ORANGE, STATE
OF CALIFORNIA, AS SHOWN ON A MAP THEREOF FILED IN BOOK 349, PAGES 43 TO 50 INCLUSIVE
OF PARCEL MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, AS AMENDED BY
CERTIFICATE OF CORRECTION, RECORDED APRIL 12, 2007 AS INSTRUMENT NO. 2007000236251
OF OFFICIAL RECORDS.
PARCEL B:
NON-EXCLUSIVE EASEMENTS FOR ACCESS, INGRESS, EGRESS, STRUCTURAL SUPPORT, COMMON
WALLS, CEILINGS AND FLOORS, UTILITIES, ENCROACHMENTS AND INCIDENTAL PURPOSES, ALL
AS MORE PARTICULARLY SET FORTH IN THAT CERTAIN " ANAHEIM GARDENWALK CONSTRUCTION,
OPERATION AND RECIPROCAL EASEMENT AGREEMENT' RECORDED JULY 06, 2006 AS INSTRUMENT
NO. 2006000452379 OF OFFICIAL RECORDS.
PARCEL C:
AN EXCLUSIVE EASEMENT FOR AIRSPACE AND INCIDENTAL PURPOSES AS MORE PARTICULARLY
SET FORTH IN THAT CERTAIN "GRANT OF EASEMENT AND AGREEMENT (LOBBY AND BACK OF
HOUSE)" RECORDED MARCH 06, 2008 AS INSTRUMENT NO. 2008000105435 OF OFFICIAL
RECORDS, DESCRIBED AS FOLLOWS:
THOSE PORTION OF PARCEL 4 OF PARCEL MAP NO. 2002-205 IN THE CIiY OF ANAHEIM, COUNTY
OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP THEREOF RECORDED IN BOOK 349,
PAGES 43 THROUGH 50 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
ORANGE COUNTY, DESCRIBED AS FOLLOWS:
PARCEL Al:
COMMENCING AT THE NORTHERLY TERMINUS OF THAT CERTAIN COURSE SHOWN AS BEING
"NORTH 000 38' 13" EAST 38250 FEET" IN THE EASTERLY LINE OF PARCEL 6 (LEVEL 1) ON SAID
PARCEL MAP N0. 2002-205; THENCE ALONG SAID EASTERLY LINE SOUTH 00° 38,13" WEST 87.38
FEET; THENCE AT RIGHT ANGLES TO SAID EASTERLY LINE SOUTH 890 21'47" EAST 3.52 FEET TO
A POINT IN A LINE PARALLEL WITH SAID EASTERLY LINE AND THE TRUE POINT OF BEGINNING;
THENCE ALONG SAID PARALLEL LINE NORTH 000 38' 13" EAST 85.97 FEET THENCE SOUTH 890 21'
41" EAST 0.40 FEET; THENCE NORTH 000 38' 13" EAST 18:82FEET; THENCE NORTH 550 11' 00"
EAST 2.13 FEET; THENCE SOUTH 890 21'47" EAST 43.01 FEET; THENCE SOUTH 00° 38' 13" WEST
31.22 FEET; THENCE SOUTH $96 21'47" EAST 23.74 FEET; THENCE SOUTH 00° 38-13" WEST 44.18
FEET; THENCE NORTH 890 21'47" WEST 26.66 FEET; THENCE SOUTH 00° 38' 13" WEST 16.91
FEET; THENCE SOUTH 720 38' 13" WEST 44.40 FEET TO THE TRUE POINT OF BEGINNING.
PARCEL C(Al) IS AN AIRSPACE EASEMENT WITH AN UPPER ELEVATION LIMIT OF 147.50 FEET.
THERE IS NO LOWER ELEVATION LIMIT.
PARCEL BI:
COMMENCING AT THE NORTHERLY TERMINUS OF THAT CERTAIN COURSE SHOWN AS BEING
"NORTH 000 38'13" EAST 38250 FEET' IN THE EASTERLY LINE OF PARCEL 6 (LEVEL 1) ON SAID
PARCEL MAP NO. 2002-205; THENCE ALONG SAID EASTERLY LINE SOUTH 000 38' 13" WEST 86.13
FEET; THENCE AT RIGHT ANGLES TO SAID EASTERLY LINE SOUTH 89° 21'47" EAST 103.91 FEET
TO A POINT IN A LINE PARALLEL WITH SAID EASTERLY LINE AND THE TRUE POINT OF
BEGINNING; THENCE ALONG SAID PARALLEL LINE NORTH 000 38' 13" EAST 35.21 FEET; THENCE
SOUTH 890 21' 47" EAST 37.00 FEET; THENCE SOUTH 000 38' 13" WEST 7.90 FEET, THENCE
SOUTH 890 21'47" EAST 32.67 FEET; THENCE SOUTH 000 38' 13" WEST 4.68 FEET; THENCE
SOUTH 720 38' 13" WEST 73.25 FEET; TO THE TRUE POINT OF BEGINNING.
PARCEL C(BI) IS AN AIRSPACE EASEMENT WITH AN UPPER ELEVATION LIMIT OF 147.50 FEET.
THERE IS NO LOWER ELEVATION LIMIT.
THE ELEVATION LIMIT FOR PARCELS C(A1) AND C(BI) ARE BASED ON CIiY OF ANAHEIM BENCH
MARK NO, 9A-16 HAVING AN ELEVATION OF 134.58 FEET (NGVD 1929) PER RECORDS ON FILE IN
THE OFFICE OF THE CITY ENGINEER OF THE CITY OF ANAHEIM.
PARCEL D:
AN EXCLUSIVE EASEMENT FOR AIRSPACE AND INCIDENTAL PURPOSES AS MORE PARTICULARLY
DESCRIBED IN A DOCUMENT .ENTITLED 'THE GRANT OF EASEMENT AND AGREEMENT (L08BY &
BACK OF HOUSE)" RECORDED MARCH 06, 2008.AS INSTRUM
RECORDS, DESCRIBED AS FOLLOWS: ENT NO. 2008000105435 OF OFFICIAL
THAT PORTION OF, PARCEL 6 OF PARCEL MAP NO. 200.2-205, IN THE CITY OF ANAHEIM, COUNTY
OF ORANGE, STATE .OF CALIFORNIA, AS SHOWN ON A MAP THEREOF RECORDED IN BOOK 349,
PAGES 43 THROUGH SO OF PARCEL MAPS, AS SAID PARCEL MAPS, AS SAID PARCEL WAS MODIFIED
BY A "CERTIFICATE OF CORRECTION" FOR SAID MAP RECORDED APRIL 12, 2007 AS INSTRUMENT
NO. 2007000238251 OF OFFICIAL RECORDS, BOTH IN THE OFFICE OF THE COUNTY RECORDER OF
SAID ORANGE COUNTY DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHERLY TERMINUS.OF THAT CERTAIN COURSE SHOWN AS BEING
"NORTH 00° 39' 39" EAST 585.52 FEET' IN THE WESTERLY LINE OF SAID PARCEL MAP NO. 2002-
205; THENCE ALONG SAID WESTERLY LINE NORTH 000 j9'39" EAST 64.60 FEED; THENCE AT
RIGHT ANGLES TO SAID WESTERLY LINE SOUTH 89° 21Y 21 " EAST 13.9$ FEET TO THE TRUE
POINT OF BEGINNING; THE SOUTH 89° 2V 47" EAST 43.70 FEET; THENCE SOUTH 000 38' 13"
WEST 0.50 FEET; THENCE SOUTH 89° 21'47- EAST 43.63 FEET; THENCE SOUTH 000 38' 13" WEST
26.14 FEET; THENCE SOUTH 890 21'47" EAST 839 FEET; THENCE SOUTH .00° 38,13" WEST 33:44
FEET; THENCE NORTH 890'21'47" WEST 98.02 FEET-; THENCE NORTH 000 3$' 13" EAST 9.41 FEET;
THENCE NORTH 89' 21' 47" WEST 14.69 FEET; THENCE NORTH 006 38'13" EAST 44.67 FEET TO
THE TRUE POINT OF BEGINNING.
THIS IS AN AIRSPACE EASEMENT WITH AN UPPER ELEVATION LIMIT OF 200.00 FEET. THERE IS
NO LOWER ELEVATION LIMIT.
EXCEPTING THEREFROM ANY PORTION THEREOF LYING WITHIN PARCEL 7 AS SHOWN ON SAID
PARCEL MAP NO. 2002-20S AND AS MODIFIED BY SAID INSTRUMENT 2007000236251 OF OFFICIAL
RECORDS.
THE ELEVATION LIMIT DESCRIBED IS BASED ON CITY OF ANAHEIM BENCH MARK NO. 9A-16
HAVING AN ELEVATION OF 134.58 FEET (NGVD 1929) PER RECORDS ON FILE IN THE OFFICE OF
THE CITY ENGINEER OF THE CTT OF ANAHEIM.
PARCEL E:
AN EXCLUSIVE EASEMENT FOR AIRSPACE AND INCIDENTAL PURPOSES AS MORE PARTICULARLY
DESCRIBED IN THE DOCUMENT ENTITLED "THE GRANT OF EASEMENT AND AGREEMENT (LOBBY
AND BACK OF HOUSE)" RECORDED MARCH 06,..2008 AS INSTRUMENT N0.2008000105435 OF
OFFICIAL RECORDS, DESCRIBED AS FOLLOWS:
THAT PORTION OF PARCEL 4 OF PARCEL MAP NO, 7-002-205 IN THE CITY OF ANAHEIM, COUNTY
OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP THEREOF RECORDED IN BOOK 349,
PAGES 43 THROUGH 50 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
ORANGE COUNTY, DESCRIBED AS FOLLOWS:
COMMENCING AT THE WESTERLY TERMINUS OF THAT CERTAIN COURSE .SHOWN AS BEING
"NORTH 890 21'47" WEST 208.00 FEET' IN THE NORTHERLY LINE OF AIRSPACE PARCEL 7 ON
SAID PARCEL MAP NO. 2002-203; THENCE ALONG SAID NORTHERLY LINE SOUTH 896 21'47" EAST
1:45 FEETTO THE TRUE POINT OF BEGINNING; THENCE AT RIGHT ANGLES TO .SAID NORTHERLY
LIME NORTH 000 38 13" EAST 11.25 FEET; THENCE NORTH 456 38' 13" EAST 3:54 FEET TO A LINE
PARALLEL WITH AND 13.75 FEET NORTHERLY OF SAID NORTHERLY LINE; THENCE ALONG SAID
PARALLEL LINE SOUTH 890 21'47" EAST' 63.50 FEET, THENCE SOUTH OOP 38' 13" WEST 15.00
FEET; THENCE NORTH 89° 21' 47" WEST 66.00 FEET: THENCE NORTH DO° 38' 13" EAST 1.2S FEET
TO THE TRUE POINT OF BEGINNING.
THIS IS AN AIRSPACE EASEMENT WITH AN UPPER ELEVATION LIMIT OF 273.60 FEET. THERE IS NO
LOWER ELEVATION LIMIT.
EXCEPTING THEREFROM .ANY PORTION THEREOF LYING WITHIN SAID AIRSPACE PARCEL 7.
THE ELEVATION LIMIT DESCRIBED IS BASED ON CITY OF ANAHEIM BENCH MARK NO, 9A-16
HAVING AN ELEVATION OF 134,5$ FEET (NGVD 1929) PER RECORDS ON FILE IN THE OFFICE OF
THE CITY ENGINEER OF THE CITY OF ANAHEIM.
APN: 082-551-07
EXHIBIT "Apt
DEVI NO. 2010-00166
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EXHIBIT B
Amendment No. 5 to the
Second Amended and Restated Development Agreement No. 99-01
[ATTACHED]
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RECORDING REQUESTED BY
AND, WHEN RECORDED,
MAIL TO:
City of Anaheim
P.O. Box 3222
200 S. Anaheim Boulevard, Second Floor
Anaheim, California 92805
Attn: City Clerk
[SPACE ABOVE THIS LINE FOR RECORDER'S USE ONLY.]
EXEMPT FROM FEES PURSUANT TO
CALIFORNIA GOVERNMENT CODE §272383
AMENDMENT NO. 5
TO
SECOND AMENDED AND RESTATED DEVELOPMENT AGREEMENT NO. 99-01
by and between
CITY OF ANAHEIM, a municipal corporation
and
WESTGATE RESORTS ANAHEIM LLC, a Florida limited liability company
AMENDMENT NO. 5 TO
SECOND AMENDED AND RESTATED DEVELOPMENT AGREEMENT
NO. 99-01
This AMENDMENT NO. 5 TO SECOND AMENDED AND RESTATED DEVELOPMENT
AGREEMENT NO. 99-01 (this "Amendment No. 5") dated for purposes of identification only as of
(the "Date of this Amendment No. 5"), is made and entered into between the CITY OF
ANAHEIM, a municipal corporation and charter city ("City"), on one hand and WESTGATE
RESORTS ANAHEIM LLC, a Florida limited liability company ("Westgate Resorts"), on the other
hand.
RECITALS
A. The City and Anaheim GW, LLC, a Delaware limited liability company, (the "Original
Developer") entered into the Second Amended and Restated Development Agreement No. 99-01
dated as of April 11, 2006, and recorded in the Official Records of Orange County California on
June 2, 2006, as Instrument No. 2006000373943 (the "Development Agreement") with respect to
the real property described in the "Legal Descriptions" which are attached as Exhibit A and
incorporated by this reference.
B. The Original Developer assigned the Development Agreement with respect to the Parking
Structure No. 1, Retail No. 1 and Vacation Ownership Resort No. I to Anaheim GW II, LLC, a
Delaware limited liability company ("Anaheim GW II") pursuant to the Partial Assignment of
Second Amended and Restated Development Agreement No. 99-01 dated as of January 31, 2007,
and recorded in the Official Records of Orange County California on February 7, 2007, as
Instrument No. 2007000092571.
C. The Original Developer assigned, and GardenWalk Hotel assumed, the Development Agreement
with respect to the Hotel Property and the Hotels pursuant to that certain Partial Assignment of
Second Amended and Restate Development Agreement No. 99-01 dated as of July 19, 2007 and
recorded in the Official Records of Orange County California on July 19, 2007, as Instrument No.
2007000453402.
D. Anaheim GW II assigned the Development Agreement with respect to the Timeshare Parcel and
the Vacation Ownership Resort No. I to Westgate Resorts pursuant to that certain Partial
Assignment of Second Amended and Restated Development Agreement No. 99-01 dated as of
February 29, 2008, and recorded in the Official Records of Orange County California on March
6, 2008, as Instrument No. 2008000105443.
E. The Development Agreement addresses, among other things, the Developer's construction of the
Project in phases, requiring that the Developer commence construction of the various Project
Elements within certain time frames.
F. In 2010, GardenWalk Hotel and Westgate Resorts requested that the City amend the
Development Agreement (i) to redefine Hotel No. 1, Hotel No. 2 and Hotel No. 3 as one (1)
Project Element consisting of two (2) Hotels ("Hotels 1 and 2") totaling, approximately eight
hundred sixty-six (866) Hotel Rooms in the aggregate, (ii) to require the Commencement of
Construction of Hotels 1 and 2 to occur on or before May 26, 2011 and (iii) to require the
Commencement of Construction of Vacation Ownership No. 1 to occur on or before March 23,
2019. Accordingly, the Development Agreement was amended by that certain Amendment No. 1
to Second Amended and Restated Development Agreement No. 99-01 dated as of March 1, 2010,
and recorded in the Official Records of Orange County California on July 19, 2010, as Instrument
No. 2010000341657 ("Amendment No. I").
G. GardenWalk Hotel thereafter requested that the City further amend the Development Agreement,
Amendment No. 2 to the Second Amended and Restated Development Agreement No. 99-01
dated as of July 1, 2010 and recorded in the Official Records of Orange County on August 17,
2011, as Instrument No. 2011000406499 ("Amendment No. 2"), to require the Commencement
of Construction of Hotels 1 and 2 occur on or before May 26, 2013 and the Completion of
Construction and Opening for Business (as defined in Amendment No. 2) occur no later than 36
months after the Commencement of Construction of the Hotels.
H. As the successor in interest to Anaheim GW II, Katella Anaheim Retail, LLC ("Katella
Anaheim"), thereafter requested an amendment to the Development Agreement, Amendment No.
3 to the Second Amended and Restated Development Agreement No. 99-01, dated as of August
23, 2011 and recorded in the Official Records of Orange County on September 16, 2011, as
Instrument No. 2011000459373 ("Amendment No. 3"), to make changes to the mix of uses and
the square footage of Retail No. 1.
GardenWalk Hotel thereafter requested that the City further amend the Development Agreement,
Amendment No. 4 to the Second Amended and Restated Development Agreement No. 99-01,
dated as of June 4, 2013 and recorded in the Official Records of Orange County on June 10,
2013, as Instrument No. 2013000350713 ("Amendment No. 4"), to require that the
Commencement of Construction of the Hotels occur on or before May 26, 2015, unless
Developer elects to phase the construction of the Hotels, in which event, GardenWalk Hotel will
be allowed to commence construction of the first Hotel on or before May 26, 2015, and to
commence construction of the second hotel if at all, no later than November 26, 2019. In
connection with Amendment No. 4, the City Council approved that certain Addendum to the
Pointe Anaheim Initial Study/Mitigated Negative Declaration, dated March 27, 2013 (the "2013
Addendum"), which shall be included in the "Existing Approvals" under the Development
Agreement.
Unless otherwise defined in this Amendment No. 5, all capitalized terms shall have the meanings
ascribed to such terms in the Development Agreement, as amended by Amendment No. 1,
Amendment No. 2, Amendment No. 3 and Amendment No. 4. Copies of the Development
Agreement are available as a public record in the office of the City Clerk located at 200 South
Anaheim Boulevard, Anaheim, California.
K. Westgate Resorts has requested the City amend the Development Assurances, set forth in
paragraphs (c) and (d) of Section 3.1.1 of the Development Agreement to require the
Commencement of Construction of Vacation Ownership No. 1 to occur on or before October 1,
2021.
L. The City and Westgate Resorts (each, a "Party" and collectively, the "Parties") intend, in this
Amendment No. 5, to amend the Development Agreement as stated in Recital K.
NOW, THEREFORE, FOR AND IN CONSIDERATION OF THE MUTUAL PROMISES,
COVENANTS AND CONDITIONS CONTAINED HEREIN, THE PARTIES AGREE AS
FOLLOWS:
SECTION 1. AMENDMENT OF DEVELOPMENT AGREEMENT. The Development Assurances
set forth in paragraph (d) of Section 3.1.1. of the Development Agreement is deleted and replaced
with the following:
(d) Westgate Resorts, as Developer, shall Commence Construction of
Vacation Ownership Resort No. I on or before October 1, 2021 and shall Complete
Construction and Open for Business no later than twenty-four (24) months after
Commencement of Construction of Vacation Ownership Resort No. 1.
SECTION 2. AMENDMENT OF DEVELOPMENT AGREEMENT. The Conditions of Approval
Relating to Vacation Ownership Resort No. 1 set forth in Section 2.2 of the Development
Agreement is deleted and replaced with the following:
2.2 Conditions of Approval Relating to Vacation Ownership Resort No. 1.
To the extent any of the Conditions of Approval contain any deadlines for the
Commencement of Construction of Vacation Ownership Resort No. 1, such deadlines
shall be extended to October 1, 2021. The amendment of the Development Assurances in
Section 1.1 of this Amendment No. 5 as those amendments relate to Section 3. 1.1 (d) of
the Development Agreement and the amendment of the Conditions of Approval set forth
in the preceding sentence of this Section 1.2 are hereby subject to the following
conditions:
On or before June 14, 2010, Westgate Resorts shall submit to the City a
screening plan for the exposed rebar on the upper deck of Parking Structure No. 1 which
is visible from the ground consisting of painted plywood secured to such upper deck and
generally consistent with the screening existing on the southerly edge of upper deck as of
the Date of this Amendment No. 5 (the "Screening Plan") for review and approval, which
approval shall not be unreasonably withheld, conditioned or delayed. On or before
September 30, 2010, Westgate Resorts shall implement the City -Approved Screening
Plan.
SECTION 2. INTEGRATION. Except as expressly provided to the contrary herein, all provisions of
the Development Agreement, as amended, remains in full force and effect. The Development Agreement
and this Amendment No. 5 are collectively referred to as the "Agreement". The Agreement integrates all
of the terms and conditions of agreement between the Parties and supersedes all negotiations or previous
agreements between the Parties with respect to the subject matter hereof.
SECTION 3. EFFECTIVE DATE. This Amendment No. 5 shall take effect upon the date the
ordinance of the City Council of the City approving this Amendment No. 5 takes place.
(Signatures shown on following page)
IN WITNESS WHEREOF, THE PARTIES HAVE EXECUTED THIS AMENDMENT NO. 5 OF THE
RESPECTIVE DATES STATED BELOW.
Dated:
ATTEST
CITY CLERK FOR THE CITY OF ANAHEIM
By:
Name: Theresa Bass
APPROVED AS TO FORM:
CITY ATTORNEY
By:
Name: Robert Fabela
131927
"CITY"
CITY OF ANAHEIM
a municipal corporation and charter city
IIn
Mayor of the City of Anaheim
Mayor Harry S. Sidhu
(Signatures continue on following page)
Signature Page to Amendment No. 5 to
Second Amended and Restated Development Agreement No. 99-01
Dated:
"DEVELOPER"
WESTGATE RESORTS ANAHEIM LLC
a Florida limited liability company
By: Westgate Resorts, Inc.,
a Florida corporation
its Manager
LN
David S. Siegel, President
Signature Page to Amendment No. 5 to
Second Amended and Restated Development Agreement No. 99-01
ACKNOWLEDGEMENT
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this day of 2019,
by David S. Siegel, as President of Westgate Resorts, Inc., a Florida corporation, as Manager of Westgate
Resorts Anaheim LLC, a Florida limited liability company.
(Seal)
Signature of Notary Public
Print, Type/Stamp Name of Notary
Personally known:
OR Produced Identification:
Type of Identification Produced:
EXHIBIT "A" to Amendment No. 5 to
Second Amended and Restated Development Agreement No. 99-01