Resolution-PC 2001-164•
RESOLUTION NO. PC2001-164
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A RESOLUTION OF THE CITY OF ANAHEIM PLANNING COMMISSION
DETERMINING, AND RECOMMENDING TO THE CITY COUNCIL,
THAT THE APPLICANT HAS DEMONSTRATED ELIGIBILITY TO ENTER INTO
THE FIRST AMENDED AND RESTATED DEVELOPMENT AGREEMENT NO. 99-01
BY AND BETWEEN THE CITY OF ANAHEIM AND EXCEL POINTE ANAHEIM, LLC,
AND THAT THE AGREEMENT MEETS THE CRITERIA SET FORTH IN
THE PROCEDURES RESOLUTION NO. 82R-565
WHEREAS, Article 2.5 of Chapter 4 of Division 1 of Title 7 of the Government Code of
the State of California (the "Statute") authorizes a city to enter into a contract which is called a
development agreement in order to establish with certainty what regulations will govern the construction
of a development; and
WHEREAS, the City of Anaheim, as a charter city, has heretofore enacted Ordinance No.
4377 (Section 18.04.120 "Development Agreements" of Title 18 "Zoning" of the Anaheim Municipal Code)
making the City subject to the Statute; and
WHEREAS, pursuant to Section 65865 of the Statute, the City heretofore enacted
Resolution No. 82R-565 (the "Procedures Resolution") establishing procedures and requirements for the
consideration of development agreements upon receipt of an application; and
- W~t~R€A~, ~ursuant ta the-authority sefi forth irr Cafifornia-6overnment Eode Section -
65864 et. seq. of the Statute, City of Anaheim Ordinance No. 4377 and Resolution No. 82R-565, Excel
Pointe Anaheim, LLC, has heretofore submitted an application to the City for approval of the First
Am~n~ed and R~state~+ ~p:~e!~~ment A~reement No. 99-49 fthe "pevelopment AgreemenY') to vest
certain project entitlements and further address the implementation of the Pointe Anaheim Lifestyle Retail
and Entertainment Complex (the "Pointe Anaheim ProjecY'), as it is proposed to be modified including
development in up to five phases (the Development Agreement is provided as Exhibit A of this Resolution
and is incorporated herein); and
WHEREAS, the Pointe Anaheim Project area consists of eight parcels which encompass
approximately 29.1 acres having approximate frontages of 1,500 feet on the south side of Disney Way
between Harbor Boulevard and Clementine Street, 1,185 feet on the west side of Clementine Street
between Disney Way and Katella Avenue (excluding Fire Station No. 3 at 1713-1717 South Clementine
Street), 728 feet on the north side of Katella Avenue between Clementine Street and a point 771 feet
west of the centerline of Clementine Street, and 585 feet on the east side of Harbor Boulevard between
Disney Way and a point 615 feet south of the centerline of Disney Way; that the three parceis not
currently under the direct control of the developer total 11.24 acres and consist of the 8.87-acre Pyrovest
Anaheim Plaza Hotel parcel (1700 South Harbor Boulevard), the 1.02-acre Ursini parcel (commercial strip
center at 401-409 West Katella Avenue), and the 1.35-acre City of Anaheim-owned parcel (parking lot at
the southwest corner of Disney Way and Clementine Street); and that the property which is the subject of
the First Amended and Restated Development Agreement No. 99-01 is shown in Exhibit B of this
Resolution; and
WHEREAS, pursuant to Section 65867 of the Statute and Section 2.1 of the Procedures
Resolution, the Anaheim City Planning Commission did hold a public hearing at the Anaheim Civic
Center, Council Chamber, 200 South Anaheim Boulevard, in the City of Anaheim on November 19, 2001,
at 1:30 p.m., notice of said public hearing having been duly given as required by law and in accordance
with the provisions of the Anaheim Municipal Code, Chapter 18.03, to hear and consider evidence for and
against said First Amended and Restated Development Agreement No. 99-01 and the Addendum to the
Pointe Anaheim Initial Study and Mitigated Negative Declaration dated October 29, 2001, and Modified
Mitigation Monitoring Plan No. 004, and to investigate and make findings and recommendations in
connection therewith; and
CR5246PK.doc -1- PC2001-164
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WHEREAS, the applicant has demonstrated that it meets the eligibility requirements of
Section 1.3 of the Procedures Resolution to enter into the Development Agreement by showing that, upon
completion, the Pointe Anaheim Project will result in the construction of up to 634,600 gross square feet
of retail/dining/entertainment uses; three to four hotels comprising 1,662 hotel rooms/suites (of which up
to 200 units can be developed as Vacation Ownership Resort units) with approximately 282,071 gross
square feet of related accessory uses (the hotel rooms/accessory uses would encompass a maximum of
1,330,771 gross square feet) and, of that total, an approximately 133,630 gross square foot area on the
top floor of the parking structure to be used for a hotel conference center; and a 1,949,800 gross square
foot parking structure with up to 4,800 striped parking spaces and 15 bus spaces with a 10,200 gross
square foot bus terminal/facility for airport transport and to/from sightseeing venues; and that depending
on the availability of funding at the time of construction, the conference center may be reduced in size or
eliminated from the project and the number of striped parking spaces may be reduced to 3,752 spaces;
and
WHEREAS, the Development Agreement implements The Disneyland Resort Specific
Plan No. 92-1, as proposed to be amended (Amendment No. 5) and Conditional Use Permit No. 4078, as
amended; and
WHEREAS, on November 19, 2001, the Planning Commission, by its Resolution No.
PC2001-161, recommended that the City Council adopt Amendment No. 5 to The Disneyland Resort
Specific Plan No. 92-1; that the amendment is consistent with The Disneyland Resort Specific Plan goals
and policies and the Anaheim General Plan, as amended by General Plan Amendment No. 2001-00393;
that the amendment provides for the same types of land uses currently permitted or conditionally
permitted by the Disneyland Resort Specific Plan for the project site; and that the amendment is
~ompatibte with the existing, approved aRd-proposed visitor-serving uses i~-t~ie surroundi~g Rnaheim
Resort Area; and
~lH~REAS, Qn Novemb~r 1~, 2001; the Planning Commission, by its Resolution No.
PC2001-163, approved Amendment to Conditional Use Permit No. 4078 to modify the land uses and
maximum gross square footages of the Pointe Anaheim Lifestyle Retail and Entertainment Complex
including development in up to five phases over a period of up to ten years, to modify the waiver of
minimum number of parking spaces, and to amend the conditions of approval to reflect the project
modifications; and
WHEREAS, the findings made by the Planning Commission in its Resolution No.
PC2001-161 demonstrate that the Development Agreement is consistent with the above-noted
Development Agreement criteria set forth in the Procedures Resolution, specifically that the Agreement is
consistent with the General Plan and The Disneyland Resort Specific Plan, as proposed for amendment;
compatible with the uses authorized in and the regulations prescribed for in The Disneyland Resort
Specific Plan, as proposed for amendment; and compatible with the orderly development of property in
the surrounding area; and, further, that the Addendum to the Pointe Anaheim Initial Study and Mitigated
Negative Declaration dated October 29, 2001, with Modified Mitigation Monitoring Plan No. 004, includes
a full analysis of the Pointe Anaheim Project which is discussed in the environmental impact analysis
section of the November 19, 2001 Staff Report to the Planning Commission; and
WHEREAS, pursuant to the Procedures Resofution, the Planning Commission, after due
consideration, inspection, investigation and study made by itself, and after due consideration of all
evidence and reports offered at said hearing, and further based upon the foregoing recitals, does hereby
find that the proposed Development Agreement is:
1. Consistent with the General Plan of the City of Anaheim as amended by proposed
General Plan Amendment No. 2001-00393 (Resolution No. PC2001-160) and The Disneyland Resort
Specific Plan No. 92-1 as amended by proposed Amendment No. 5(Resolution No. PC2001-161); and
2. Compatible with the uses authorized in and the regulations prescribed for in the
applicable zoning district; and
CR5246PK.doc -2- PC2001-164
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3. Compatible with the orderly development of property in the surrounding area; and
4. Not otherwise detrimental to the health, safety and general welfare of the citizens of
Anaheim.
WHEREAS, the Anaheim City Planning Commission has reviewed the land use aspects
of the First Amended and Restated Development Agreement No. 99-01 and by its Resotution No.
PC2001-159 has found and recommends that the City Council determine that the Addendum to the
Pointe Anaheim Initial Study and Mitigated Negative Declaration dated October 29, 2001, and Modified
Mitigation Monitoring Plan No. 004 are adequate to serve as the required environmental documentation
for the proposed Development Agreement, based upon a finding by the Planning Commission that the
declaration reflects the independent judgement of the lead agency; that it has considered the proposed
Addendum to the Pointe Anaheim Initial Study and Mitigated Negative Declaration dated October 29,
2001, and Modified Mitigation Monitoring Plan No. 004 together with any comments and responses
received during the public review process; and, further, finding on the basis of the Addendum and the
evidence presented that there is no substantial evidence, with the imposition of the mitigation measures
identified in Modified Mitigation Monitoring Plan No. 004, that implementation of the proposed
Development Agreement will have a significant effect on the environment.
NOW, THEREFORE, BE IT RESOLVED, pursuant to the above findings, the Anaheim
City Planning Commission does hereby recommend to the City Councif that the applicant has
demonstrated eligibility to enter into the First Amended and Restated Development Agreement No. 99-01;
and that the Development Agreement meets the criteria set forth in the Procedures Resolution.
THE FOREGOING RESOLUTION was adopted at the Planning Commission meeting of
November 19, 2001.
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/~-~,
CHAIRP SON ANAHEI C TY PLANNING COMMISSION
ATTEST:
~ ~~~~
SECRETARY, ANAHEIM CITY PLANNING COMMISSION
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss.
CITY OF ANAHEiM )
I, Eleanor Fernandes, Secretary of the Anaheim City Planning Commission, do hereby
certify that the foregoing resolution was passed and adopted at a meeting of the Anaheim City Planning
Commission held on November 19, 2001, by the following vote of the members thereof:
AYES: COMMISSIONERS:
NOES: COMMISSIONERS:
ABSENT: COMMISSIONERS:
IN WITNESS
u , 2002.
ARNOLD, BOSTWICK, BOYDSTUN, BRISTOL, EASTMAN, KOOS,
VANDERBILT
NONE
NONE
VVHEREOF, I have hereunto set my hand this ~ Q~ day of
~.,QJ1-.-._a~-~- ~2°
ySECRETARY, ANAHEIM CITY PLANNING COMMISSION
CR5246PK.doc -3- PC2001-164
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Exhibit A
First Amended and Restated Development Agreement No. 99-01
between the City of Anaheim
and
Excel Pointe Anaheim, LLC
PC2001-164
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WHEN RECORDED RETURN TO:
City Council
City of Anaheim
c/o City Clerk
200 S. Anaheim Blvd.
Anaheim, CA
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(SPACE ABOVE FOR RECORDER'S USE)
C' .
FIRST AMENDED AND RESTATED DEVELOPMENT AGREEMENT NO. ~ I
BETWEEN
THE CITY OF ANAHEIM
AND
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EXCEL POINTE ANAHEIM, LLC
Executed , _, 2001
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TABLE OF CONTENTS
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Page
1. DEFINITIONS .....................................................................................................................3
2. PROPERTY, PURPOSE AND INTENT ............................................................................9
2.1 Property Description ...........-• ...:...............................................................................9
2.2 City Objectives ............:............................................................................................9
2.3 Developer Objectives .............................................................................................10
2.4 Representation of Fee Simple or Equitable Ownership .........................................10
2.5 MutualObjectives ..................................................................................................10
3. AGREEMENT AND ASSUR.ANCES ..............................................................................10
3.1 Agreement and Assurance on the Part of Developer ............................................ .10
3.1.1 Development Assurances ...........................................................................10
3.1.2 Effect of Delayed Performance ..................................................................11
3.1.3 Landscaping and Lighting District .............................................................1 l
32 Agreement and Assurances on the Part of the City ...............................................11
3.2.1 Entitlement to Development .................................................................... ..11
3.2.2 Changes in Applicable Rules ................................................................... ..12
3.2.2.1 Non-Application of Changes in Applicable Rules ....................... . 12
3.2.22 Changes in Uniform Code ............................................................ . 12
3.2.2.3 Changes Nlandated by FederaI or Sfafe Law ................................ : r2
3.2.2.4 Special Taxes and Assessments ................................................... . 12
3.2.3 Agreed Changes and Other Reserved Powers ......................................... ..12
3.2.4 Subsequent Development ......................................................................... ..12
32.5 Effective Development Standards ............................................................ ..12
3.2.6 Timing, Sequencing and Phasing of Development .................................. ..12
3.2.7 Impact Fees; Credit for Developer Installed Facilities ............................ ..13
32.8 Right(s)-of-Way ....................................................................................... ..t3
3.3 Processing Fees, Extraordinary Processing Consultant, Charges and
Environmental Review ........................................................................................ ..13
3.3.1 Processing Fees and Charges .....................................................................13
3.3.2 Extraordinary Processing Consultant .....:................................................. ..13
3.3.3 Environmental Review ...............................................................................13
4. DEVELOPMENT PLAN ...................................................................................................13
4.1 Right to Develop Property .....................................................................................13
4.2 Phased Development ..............................................................................................13
5. ANNUAL REVIEW; REIMBURSEMENT; DEFAULT; TERMINATION,
AMENDMENT OR MODIFICATION; MANDAMUS; SPECIFIC PERFORMANCE.14
5.1 Annual Review .......................................................................................................14
5.2 Reimbursement of Costs ........................................................................................14
5.3 Default by Developer .............................................................................................14
5.3.1 Default ........................................................................................................14
5.3.2 Notice of Default ........................................................................................14
5.33 Termination for Failure to Cure Default ....................................................14
5.3.4 Specific Performance .................................................................................14
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TABLE OF CONTENTS (cont'd)
Page
5.4 Default by City .......................................................................................................15
5.4.1 Notice of Default ............................. . :.......................................................15
5.4.2 Specific Performance and Mandamus .......................................................15
6. PUBLIC BENEFITS ..........................................................................................................15
6.1 Assemblage of Properties ......................................................................................15
6.2 Net Increase in Transient Occupancy Tax .............................................................16
6.3 Increase in Retail Sales Taxes ................................................................................16
6.4 Increase in Property Taxes .....................................................................................16
6.5 Resort Area Traffic Improvements ........................................................................16
6.6 Police Substation ....................................................................................................16
7. GENERAL PROVISIONS ................................................................................................ 16
7.1 _ Date Agreement Becomes Effective ...................................................................... 16
7.2 Term ....................................................................................................................... 16
72.1 Basic Term ................................................................................................. 16
7.22 Early Termination of Agreement ............................................................... 16
7.3 Force Majeure; Extension of Time of Performance .............................................. 16
7.4 Applicable Law ...................................................................................................... 17
7.5 Amendments .......................................................................................................... 17
7.6 Assignment ............................................................................................................ 17
7.7 Mortgage Rights ..................................................................................................... 18
?.7.1 Er~cu::tb:ances cr. the Ex~el Pointe Anaheim Property and Agreement,.,. 18
7.7.2 Mortgagee Protection ................................................................................. 18
7.7.3 Mortgagee Not Obligated .......................................................................... 18
7.7.4 Notice of Default to Mortgagee; Right of Mortgagee to Cure ................... 18
7.7.5 Bankruptcy ................................................................................................. 19
7.7.6 Termination Subject to 1Vlortgagee Rights ................................................. 19
7.7.7 No Cancellation .........................................................................................19
7.7.8 New Agreement Upon Default by Developer ............................................19
7.7.9 Separate Agreement ...................................................................................20
7.7.10 Material Notices ........................................................................................ .20
7.7.11 Mortgagee Right to Assign ....................................................................... 20
7.8 Covenants .............................................................................................................. 20
7.9 Implementation ..................................................................................................... 20
7.10 Relationship of the Parties .................................................................................... .20
7.11 Cooperation in the Event of Third Party Litigation .............................................. .21
7.12 Notices .................................................................................................................. .21
7.13 Recordation ........................................................................................................... .22
7.14 Developer Hold Harmless ..................................................................................... .22
7.15 Insurance ............................................................................................................... .22
7.16 Successors and Assigns ......................................................................................... 22
7.17 Severability ........................................................................................................... .22
7.18 Time of the Essence .............................................................................................. .23
7.19 Waiver ................................................................................................................... .23
7.20 No Third Party Beneficiaries ................................................................................ .23
7.21 Expedited Processing ............................................................................................ .23
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TABLE OF CONTENTS (cont'd)
Pa~e
722 Requests for Payment ............................................................................................23
7.23 Entire Agreement ..................................................................................................23
7.24 Conflict of Laws ....................................................................................................23
7.25 Legal Advice; Neutral Interpretation; Headings and Table of Contents ...............23
7.26 Counterparts ...........................................................................................................24
LIST OF EXHIBITS:
EXHIBIT "A" - PROPERTY DESCRIPTION
EXHIBIT "B" - CONDITIONS OF APPROVAL
209905 12.DOC - iii -
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FIRST AMENDED AND RESTATED
DEVELOPM~NT AGREEMENT NO.
BY AND BETWEEN
THE CITY OF ANAHEIM AND
EXCEL POINTE ANAHEIM, LLC
This First Amended and Restated Development Agreement No. ("Agreement") is
made and entered into this day of , 200.1, by and between the City of Anaheim, a
charter city and a municipal corporation duly organized and existing under the Constitution and
the laws of the State of California ("City"), and Excel Pointe Anaheim LLC, a Delaware limited
liability company ("Developer"), whose managing member is Excel Legacy Corporation, a
Delaware corporation ("Exee~") purst~a~r~ ~o ~~ie ~~rtYtority s~~-€orth in seet~on-65867 of the
California Government Code, and the general authority set forth in section 65864 et seq. of the
Government Code (the "Development Agreement Act"), the City's inherent power as a charter
city, section 1~.U4.120 of the Anaheim Ivlunicipal Code ~the "Enabling Ordinance"), and tne
Development Agreement Act implementing procedures adopted by the City in Resolution No.
82R-565 (the "Procedures Resolution"). This Agreement constitutes an amendment to and
supersedes in its entirety Development Agreement No. 99-01 by and between the City of
Anaheim and Pointe Anaheim, LLC, dated as of July 29, 1999 ("Development Agreement No.
99-O1 ") The definitions contained in Section 1 shall apply to the recitals contained herein.
RECITALS
WHEREAS, Developer has proposed development of the Project in Phases on the Excel
Pointe Anaheim Property as shown in the Site Map attached hereto as Exhibit _ and
incorporated herein by this reference.
WHEREAS, the City and Developer recognize that development of the Project will
create significant opportunities for economic growth in the City and the region; and
WHEREAS, the Project will provide new Hotel Rooms and Retail, Dining and
Entertainment Uses in The Disneyland Resort Specific Plan geographic azea which will provide
new General Fund revenues intended to offset incremental City costs associated with such uses;
and
WHEREAS, the Project will provide development fees and a financing vehicle for
improvements to the public infrastructure which will provide area-wide benefits for The
Disneyland Resort Specific Plan, Anaheim Resort Specific Plan and Hotel Circle Specific Plan
20990~v12
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geographic areas as well as provide City infrastructure, parking and other public facilities needed
to support the Project; and
WHEREAS, Developer, in consideration of the benefits and opportunities provided to
Developer by the Existing Approvals and the cooperation and assistance of the City in
connection therewith, will provide assurances to the City that the public infrastructure, amenities
and design features of the Project are implemented in a timely manner as set forth in the Existing
Approvals and Mitigation Measures; and
WHEREAS, in order to provide certainty and render development of the Project more
feasible in light of the large capital investment and time necessary to coordinate and implement
the Project, Developer requires assurance from the City that the governmental entitlements to use
contained in .the Existing Approvals shall, to the extent specified herein, not be amended or
supplemented with fees, burdens and exactions not otherwise permitted by this Agreement; and
WHEREAS, Developer also recognizes and agrees that in extending these benefits to
Developer, the City must retain the Reserved Powers; and
WHEREAS, the direct and indirect benefits the City expects to receive pursuant to this
Agrzement for its existing and ~uture residents include, buf are not Iimited ~o, participation of
Developer in the funding and dedication to the City and other public agencies of certain public
~mprovements and facilities to mitigate the impacts of the Project and to assure completion of
improvements required in the Existing Approvals; and
WHEREAS, the City has evaluated previously certified EIR No. 311 and the Addendum
thereto approved by the City on October 8, 1996, which environmental documents formed the
basis for "tiering" as provided for in CEQA, and has required of Developer additional technical
studies to assess potential impacts of the Project, which studies concluded that the Project will
not result in any significant environmental impacts after implementation of the Mitigation
Measures; and
WHEREAS, on June 22, 1999, the City Council, following a noticed public hearing,
approved Mitigated Negative Declaration/Mitigation Monitoring Plan No. 4(Resolution
No. 99R-133);
WHEREAS, on July 13, 1999, the City Council, following a noticed public hearing,
approved Gene:al Plan Amendment No. 359 (Resolution No. 99-R-134); Amendment No. 4 to
the Disneyland Resort Specific Plan No. 92-1 (Ordinance No. 5689); Conditional Use Permit No.
407S (Resolution No. 99R-136); Amendment to the Anaheim Resort Public Realm Landscape
Pro~~ram (Resolution No. 99R-137); and Development Agreement No. 99-01 (Ordinance No.
5690); and
WHEREAS, Developer has proposed to amend the Existing Approvals to reflect the
revised land uses listed in the attached Table 1, which uses will be constructed in up to five (5)
Phases on those portions of the Excel Pointe Anaheim Property designated as Areas A through E
as depicted on the Site Map which is attached as Exhibit _; and
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20990~v12
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WHEREAS, City and Developer desire to enter into this Agreement in order to assure
development of the Property in accordance with the Existing Approvals and provide for vesting
of same for the Term of the Agreement, to assure the City of installation of the public
infrastructure, amenities and design features of the Project in accordance with the Phasing set
forth herein and described in the Existing Approvals; and
WHEREAS, on , 2001, the City Planning Commission, the advisory agency
for purposes of review of development agreements pursuant to the requirements of Government
Code section 65867, held a duly noticed public hearing regarding this Agreement and, at the
conclusion of the hearing, and after consideration of evidence and testimony submitted by City
staff, the Developer and all interested parties adopted Resolution No.
recommending that the City Council approve the Agreement; and
WHEREAS, the City hereby finds that this Agreement and the Existing Approvals are
consistent with the City's General Plan and Disneyland Resort Specific Plan as amended, and
that the Addendum to the Pointe Anaheim Mitigated Negative Declaration satisfies all
requirements of the California Environmental Quatity Act and the State CEQA Guidelines with
respect to this Agreement and the Project; and
WHEREAS, on , 2001, the City ~ouncil held a duIy noticed pubTic hearing
regarding this Agreement and, at the conclusion of the hearing, and after considering the
recommendation of the Planning Commission, the evidence and testimony submitted by City
staff, the Developer and all other interested parties, adopted Ordinance No. approving this
Agreement; and
WHEREAS, for the foregoing reasons, the Parties desire to enter into this Agreement.
NOW, THEREFORE, in consideration of the promises and mutual promises and
covenants herein contained and other valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the Parties hereto agree as follows:
l. DEFINITIONS.
l.l. "Affiliate of Developer" or "Affiliate" means a sole proprietorship, limited
liability company, partnership, limited partnership, joint venture, trust, unincorporated
organization, association, corporation, institution, or any other entity owned and controlled by
the Developer or Excel.
1.2. "AMC" means the Anaheim Municipal Code.
1.3. "Anaheim Resort" means the area of approximately 1,051 acres in the City which
is designated in the General Plan for Commercial Recreation land uses. The Anaheim Resort
encompasses The Disneyland Resort Specific Plan No. 92-1, the Anaheim Resort Specific Plan
No. 92-2, and Hotel Circle Specific Plan No. 93-1 geographic areas.
1.4. "Anaheim Resort Specific Plan" means the Anaheim Resort Specific Plan No. 92-
2, as amended from time to time by the City.
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20990~v12
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~ 1.5. "Annual Review" means the annual review process as described in Section 5 of
this Agreement. ~
1.6. "Applicable Rules" means (subject only to the qualifications set forth herein with
respect to Fees and excluding the Reserved Powers) the rules, regulations, ordinances and
officially adopted plans and policies of the City in force as of the Effective Date, including
without limitation, General Plan Amendment Nos. 359 and 393, The Disneyland Resort Specific
Plan and the remainder of the Existing Approvals. Notwithstanding this Section 1.6 or any other
provision of this Agreement (i) all duly adopted codes, regulations, specifications and standards
regarding the design and construction of public works facilities, if any, shall be those that are in
effect at the time the plans for such public works facilities are being processed for approval
and/or under construction, and (ii) except as expressly set forth in this Agreement with respect to
Impact Fees and Processing Fees and Charges applicable to the Project, Applicable Rules shall
mean and include only those Fees in effect as of the Effective Date.
1.7. "Approved Plans" means the preliminary conceptual design and configuration of
the Project, including elevations and renderings approved by the City Council on
, 2001 and contained in Exhibit Nos. of Conditional Use Permit
No. 4078, as amended. _
1.8. "Area D/E Litigation means that certain lawsuit styled as Excel Pointe Anaheim
LLC ~n~1 EPA_ Pro~erties, I I C v. Pyrovest Corporation, et al., Orange County Superior Court
Case No. O1 CC 13039.
1.9. "CEQA" means the Califomia Environmental Quality Act (Cal. Public Resources
Code sections 21000 et seq.), the State CEQA Guidelines (Cal. Code of Regs., Title 14, section
15000 et seq.) and City CEQA Guidelines.
1.10. "City Agency" means each and every agency, department, board, commission,
authority, employee, and/or official acting under the authority of the City, including without
liinitation, the City Council and the Planning Commission.
1.11. "City Attorney" means the City Attorney of the City.
1.12. "City Council" means the City Council of the City.
1.13. "City Manager" means the City Manager of the City.
1.14. "Commencement of Construction" means the date upon which construction is
commenced pursuant to the first building permit issued for any Hotel Rooms or Retail, Dining
and Entertainment Uses, excluding (i) building permits for the Parking Facility, (ii) permits
(whether building, right-of-way, public works or other permits) for work not within the
boundaries of the Excel Pointe Anaheim Property, and (iii) demolition permits and grading
permits for any of the Excel Pointe Anaheim Property. Commencement of Construction shall
not be deemed to have occurred unless such construction is diligently completed within the
applicable Construction Period.
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1.15. "Commencement of Construction of Third Gate" means the date upon which the
Walt Disney Company commences construction on a project that is publicly described as being
the "initial phase of the Third Theme Park" on all or some portion of the approximately 77.6
acres located south of Katella Avenue and east of Harbor Boulevard and ~vith a guest entrance
and admissions gate for vehicular and~ pedestrian access, on the south side of the intersection of
Katella and Clementine Street that is comparable to the entrance to Disneyland and Disney
California Adventure at Harbor and Disney Way.
1.16. "Conditions of Approval" means those conditions of approval for the Project
adopted in connection with the granting of the Existing Approvals which are collectively set
forth and attached hereto as Exhibit B and incorporated herein by this reference.
1.17. _"Construction Period" means the time period during which each Phase of the
Project is constructed pursuant to the Construction Schedule.
1.18. "Construction Schedule" means that construction schedule for each Phase of the
Project as established in the Existing Approvals.
1.19. "Counsel" means the counsel retained by Developer to represent Developer and to
assist the City in connecfion with any Litigation. -
1.20. "DDA" means that certain Disposition and Development Agreement dated
November , 2001, by and between the City and Developer related to the disposition of City
property, and the financing, development and operation of the Project.
121. "Discretionary Action" means an action which requires the exercise of judgment,
deliberation or a decision on the part of the City and/or any City Agency in the process of
approving or disapproving a particular activity, as distinguished from an activity which merely
requires the City and/or any City Agency to determine whether there has been compliance with
statutes, ordinances or regulations. Discretionary Actions shall not include any Ministerial
Permits and Approvals.
1.22. "Development Plan" means the land use entitlements described in the Existing
Approvals.
1.23. "Effective Date" means the date on which the City executes this Agreement.
1.24. "Excel Pointe Anaheim Property" means that real property o~vned in fee,
equitably owned, under Lease or option by Developer, or an Affiliate of Developer, within the
geographic area encompassed by the Pointe Anaheim Overlay together with any additional
property acquired in fee or by Lease by Developer within the Pointe Anaheim Overlay
geographic area following the Effective Date and annexed to the Excel Pointe Anaheim Property
in accordance ~vith the provisions of Section 2.1.
125. "Existing Approvals" means those approvals adopted by the City Council on June
22, 1999, July 13, 1999, and , 2001 including General Plan Amendment No. 359 and
No. 393, Amendment No. 4 and Amendment No. 5 to The Disneyland Resort Specific Plan,
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Amendments Nos. 2 and 3 to the Anaheim Resort Public Realm Landscape Program, the
Amendment to Conditional Use Permit No. 4078, and the Mitigation Measures and the
Conditions of Approval.
1.26. "Extraordinary Processing Consultant" means a consultant selected by the City to
coordinate and expedite processing of applications for all or any Ministerial Permits and
Approvals and all or any Discretionary Actions applicable to the Project at the expense of
Developer. ~
1.27. "Fees" means any fees or charges imposed or collected by the City as of the
Effective Date other than (i) Impact Fees, Processing Fees and Charges and (ii) fees collected
and/or imposed by the City for the benefit of public agencies other than the City.
128. "General Plan" means the General Plan of the City.
1.29. "Hotel Room" means a hotel guest room or suite as defined in Section
18.78.030.0602 or 18.78.030.0603 of The Disneyland Resort Specific Plan as of the Effective
Date.
I.30. "~mpact ~'ee~" r~~ans impact fees, tinkage fees, exactiorrs, fair sh~re eharges or
other similar impact fees or charges imposed on and in connection with new development on a
city-wide basis by the City pursuant to rules, regulations, ordinances and policies of the City.
1.31. "Initial Phase" means, at Developer's sole discretion, any of the Initial Phase
alternatives set forth in Table 3-A, and as provided in the Existing Approvals.
1.32. "Inspections" means all field inspections and reviews by City officials during the
course of construction of the Project and the processing of certificates of occupancy (permanent
or temporary).
1.33. "Institutional Lender" means any of the following institutions having assets or
deposits in the aggregate of not less than One Hundred Million Dollars ($100,000,000): a
California chartered bank; a bank created and operated under and pursuant to the laws of the
United States of America; and "incorporated admitted insurer" (as that term is used in Section
1100.1 of the California lnsurance Code); a"foreign (other state) bank" (as that term is defined
in Section 1700(1) of the California Financial Code); a federal savings and loan association (Cal.
Fin. Code Section 8600); a commercial finance lender (within the meaning of Sections 2600 et
seq. of the CaLifornia Financial Code); a"foreign (other nation) bank" provided it is licensed to
maintain an office in California, is licensed or otherwise authorized by another state to maintain
an agency or ~ranch office in that state, or maintains a federal agency or federal branch in any
state (Section 1716 of the California Financial Code); a bank holding company or a subsidiary of
a bank holding company which is not a bank (Section 3707 of the California Financial Code); a
trust company, savings and loan association, insurance company, investment banker; college or
university; pension or retirement fund or system, either governmental or private, or any pension
or retirement fund or system of which any of the foregoing shall be trustee, provided the same be
organized under the laws of the United States or of any state thereof; and a Real Estate
Investment Trust, as defined in Section 856 of the Internal Revenue Code of 1986, as amended,
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provided such trust is listed on either the American Stock Exchange or the New York Stock
Exchange.
1.34. "Landscaping and Lighting District" means that Anaheim Resort Landscape and
Lighting Maintenance District established by the City pursuant to the provisions of the California
Streets and Highways Code, for the purpose of funding maintenance costs, above the City's
standard level, for entry monumentation, decorative lighting, bus shelters, enhanced landscaping,
benches, kiosks and other street features in public rights-of-way within the Anaheim Resort.
1.35. "Lease" means a ground lease having a base term of thirty-five (35) years or
longer, not including optional terms or extensions.
1.36. _"Litigation" means any lawsuit (including a cross-action) filed against the City
and/or Developer which challenges the validity, implementation or enforcement of, or seeks any
other remedy directly relating to, all or any party of the Existing Approvals, this Agreement or
the DDA.
1.37. "Ministerial Permits and Approvals" means the nondiscretionary permits,
approvals, plans, inspections, certificates, documents and licenses required to be taken, issued or
approved by the City in order for Developer to implement, deveIop and construct the Project and
the Mitigation Measures, including without limitation, building permits, and other similar
permits and annrovals.
1.38. "Mitigation Measures" means those Mitigation Measures set forth in the
Mitigated Negative Declaration and Mitigation Monitoring Plan No. 004 adopted by City, [as
amended] .
1.39. "Mitigated Negative Declaration" or "MND" means the Mitigated Negative
Declaration approved by the City on June 22, 1999, by City Council Resolution No. 99R-133,
and the Addendum thereto, approved by the City on , 2001, by City Council
Resolution No. .
1.40. "Mortgage" means an instrument or instruments securing one or more financings
by the Developer with respect to the construction, development, use or operation of the Project,
and includes whatever security instruments are used in the locale of the Project, including,
without limitation, mortgages, deeds of trust, security deeds, and conditional deeds, as well as
financing statements, security agreements and other documents required pursuant to the Uniform
Commercial Code.
1.41. "Mortgagee" means one or more Institutional Lenders holding a beneficial
interest and secured position under any Mortgage.
1.42. "Outside Initial Phase Commencement Date" means the earliest to occur of the
following: (i) sixty (60) days following the Commencement of Construction of the Third Gate,
(ii) six (6) months following entry of a final judgment in the Area D/E Litigation, or (iii) three
(3) years following the Effective Date of this Agreement.
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1.43. "Parking Facility" means a parking structure of up to 2,000,000 gross square feet
at fiill buildout of the Project containing between 3,752 and 4,800 striped parking spaces and a
10,200 sc{uare foot bus terminal providing parking for up to 15 buses.
1.44. "Parties" means collectively Developer and the City.
1.45. "Party" means any one of Developer or the City.
1.46. "Phases" or "Phasing" means the phases of the Project as shown on Exhibit _
which is attached hereto and incorporated herein by this reference.
1.47. "Plaintiff' means any party seeking relief or coinpensation through Litigation,
whether as plaintiff, petitioner, cross-complainant or otherwise.
1.48. "Planning Commission" means the Planning Commission of the City.
1.49. "Planning Director" means the Planning Director of the City.
1.50 "Pointe Anaheim Overlay" means those regulations and guidelines established by
Aniectc~ment ~Fo. 4 and Arr~e~dme~t Aio. 5 to ~~~ D- isr~~yl~nd Resort Specific Plan to provide for
the development of the Project.
1.51. "Froccssing Fee~ anu ~harg~s" rrLeaas a:: Yrocessing fees and ~harges requ~red by
the City including, but not limited to, fees and charges for land use applications, Project permits,
building applications, building permits, grading permits, encroachment permits, tract or parcel
maps, lot line adjustments, air right lots, street vacations, certificates of occupancy and other
similar pertnits. Processing Fees and Charges shall not include Impact Fees.
1.52. "Project" means those uses identified and described in the Existing Approvals.
1.53. "Project Elements" means the specific land uses permitted by the Existing
Approvals and other accessory uses, infrastructure improvements and private or public facilities
contained in the Existing Approvals.
1.54. "Reserved Powers" means the rights and authority excepted from this
Agreement's restrictions on the City's police powers which are reserved to the City. The
Reserved Powers supersede the Applicable Rules to the extent of any inconsistency and include
the power to enact and implement rules, regulations, orciinances and policies after the Effective
Date that may be in conflict with the Applicable Rules, which either (1) prevent or remedy
conditions which the City has found to be injurious or detrimental to the public health or safety;
(2) are Uniform Codes; (3) are necessary. to comply with state and federal laws, rules and
regulations (whether enacted previous or subsequent to the Effective Date) or to comply with a
COIIIrt order or judgment of a state or federal court; (4) are agreed to or consented to by
Developer; (5) involve the formation of assessment districts, Mello-Roos Community Facilities
Districts, special districts, maintenance districts or other similar districts formed in accordance
with applicable laws provided, however, that Developer shall retain all its rights with respect to
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such districts pursuant to all applicable laws; or (6) are Processing Fees and Charges or City-
wide fees or charges of general applicability.
1.55. "Retail, Dining and Entertainment Uses" means those retail, dining and
entertainment uses built or caused ~ tb be built by Developer on the Excel Pointe Anaheim
Property in accordance with the Existing Approvals.
1.56. "Right(s)-of-Way" means any right(s)-of-way or other real property interest
necessary to access, construct, maintain, perform and/or operate any public improvements
required by the Mitigation Measures in accordance with the Existing Approvals excluding the
land required for the Parking Facility.
1.57. "Section" means the indicated section or subsection number of this Agreement.
1.58 "Site Map" means the Exhibit which depicts the approved Site Plan with
alternative phases and land uses approved by the City and which constitutes the Development
Plan which is the subject of this Agreement.
1.59. "Term" means the period of time during which this Agreement shall be in effect
and shaIl bind the City and DeveToper as pr~~ided in Section 7.2 of tlris Agreemen~
1.60. "The Disneyland Resort Specific Plan" or "Specific Plan" means the Disneyland
Resort Specific Plan No. 92-1 (including zoning and development standards) as approved by the
City and as amended on or before the Effective Date.
1.61. "Uniform Codes" means those building, electrical, mechanical, fire and other
similar regulations which are applicable throughout the City, including, but not limited to, the
California Building Standards Code incorporating or refening to the Unifortn Building Code, the
National Electrical Code, the Uniform Mechanical Code, and the Uniform Fire Code (including
those amendment to the promulgated uniform codes which reflect local modifications by the
City, which modifications are applicable City-wide).
2. PROPERTY, PURPOSE AND INTENT.
2.1 Property Description. The Excel Pointe Anaheim Property is particularly
described in E~chibit A hereto. To the extent permitted by the Development Agreement Act,
Developer shall have the right to annex additional property located within the Pointe Anaheim
Overlay into the existing Excel Pointe Anaheim Property and subject such property to the terms
of this Agreement, provided that Developer shall (i) provide to the City notice of the purchase,
Lease or other interest in such additional property by Developer or an Affiliate of Developer,
(ii) provide to the City evidence of Developer's or an Affiliate's ownership, Lease or other
interest in such additional property, and (iii) record in the Official Records of the County of
Orange a Declaration of Annexation which provides that the additional property, which is
described in such Declaration, is now subject to the Agreement, effective upon compliance with
the requirements of this Section 2.1.
22 City Objectives. The City desires that the Excel Pointe Anaheim Property be
developed as provided for in the Existing Approvals to: (i) create additional retail sales and
transient occupancy tax base for the City, (ii) provide additional quality Hotel Rooms and Retail,
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• •
Dining and Entertainment Uses that will expand on existing and planned tourist attractions and
theme park uses and will cause Anaheim visitors to extend the length of the stays in Anaheim;
(iii) provide a fully integrated and coordinated development based on comprehensive planning
principles; (iv) assure that the Project will be developed as described in the Existing Approvals;
and (v) maximize the opportunity for site assemblage in a key portion of the Resort Area.
2.3 Developer Objectives. This Agreement is necessary to assure Developer that the
Project will not be (i) reduced in density, intensity or use; and (ii) subjected to ne~v rules,
regulations, ordinances or official policies or delays which are not permitted by this Agreement.
2.4 Representation of Fee Simple or Equitable Ownership. Developer represents that
it owns, directly or through its Affiliates, the fee simple, equitable interest or Lease interest or
option to purchase or Lease the Excel Pointe Anaheim Property.
2.5 - Mutual Objectives. Development of the Project in accordance with this
Agreement will provide the assurances required for the subsequent private acquisition of
multiple parcels of land and the orderly, coordinated and phased development of the Project in
accordance with the goals and objectives set forth in the General Plan and the Specific Plan.
Moreover, this Agreement provides additional assurance to the City and Developer that the
installation of necessary improvements will occur in the manner set forth in the Existing
Approvals and otherwise achieve the goals and purposes for which the Development Agreement
Act was enacted. The ~ar~i~s ~~ii~ve that such an arcterty, coorc~inated and phased developmet~~
of the Project will provide many public benefits to the City, including without limitation:
development of under-utilized and legally non-conforming properties and uses, increased tax
revenues, land assemblagz, increas~u «ansient or.;,upancy tax, installation of on-site and off-site
improvements, public parking and job creation. Additionally, this Agreement provides the City
with Reserved Powers that will enable the City to comply with applicable state and federal laws,
to take action to prevent or remedy conditions found to be injurious or detrimental to the public
health or safety, and to take other actions in the public interest.
3. AGREEMENT AND ASSURANCES.
3.1 Agreement and Assurance on the Part of Developer. In consideration for the City
entering into this Agreement, and as an inducement for the City to obligate itself to carry out the
covenants and conditions set forth in this Agreement, and in order to effectuate the purposes and
intentions set forth in Section 2 of this Agreement, Developer hereby agrees as follows:
3.1.1 Development Assurances. Developer agrees to commence and complete
construction of the Project in accordance with the terms and conditions of this Agreement and as
provided for in the Existing Approvals. Developer agrees subject to Section 7.3 hereof to the
following:
(a) At a minimum, the Developer ~vill accomplish Commencement of
Construction of the Initial Phase of the Project prior to the Outside
Initial Phase Commencement Date.
(b) The Developer will complete the construction and open the
improvements comprising the Initial Phase within two (2) years after
Commencement of Construction of the Initial Phase.
(c) The Developer will not seek to change the entitlements for the 1,662
Hotel Rooms into any other use; provided, however that Developer may
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elect to construct up to 200 Vacation Ownership Interval Units in lieu of
200 Hotel Rooms located in either Area D or E of the Project, as set
forth in Table 2 and Exhibit ""; and provided further, and as a
condition of such election, the Parfies will enter into a subsequent
agreement thai provides the City with (an) "in lieu" payment(s) to be
made at a mutually acceptable time(s), and in an amount(s) not in excess
of the equivalent Transient Occupancy Taxes to which the City would be
entitled if such units were occupied as Hotel Rooms."
(d) The Project will be developed in up to five Phases pursuant to the
phasing schedule set forth in Table 2, in Exhibit , and Table 3A in
Exhibit and as set forth in the Existing Approvals and Mitigation
Measures.
(e) The design of the Project will incorporate the hotels as integral
components of the site plan, and the Project's construction will be
consistent with said plan.
( fl Following the Initial Phase, the Developer will use reasonable
commercial efforts to commence construction of subsequent
development Phases within approximately two (2) years, but in no event
tater t~ian ~'our (4} years, foitowing tt~~ opening of the previaus Phase,
provided that the timing of each subsequent phase will depend primarily
on market demand at the time, the availability of project financing, and
acquisiiion of iand ioi the proposzd uses, and will use reasonable
commercial efforts to overcome such adverse conditions through
redesign and land use revisions to be implemented in cooperation
beh~veen City and Developer.
3.1.2 Effect of Delayed Performance. If Developer, its Affiliates and/or
approved assignees shall fail to (i) timely commence Construction of the Initial Phase within the
timeframe of Section 3.1.1(a); (ii) timely complete the construction and open the improvements
comprising the Initial Phase within the timeframe of Section 3.1.1(b); and/or (iii) timely
commence construction of subsequent development Phases following the Initial Phase within
four (4) years of the opening of the previous Phase, the City may, in its sole discretion, after
having provided Developer with written notice and the opportunity to cure in the manner set
forth in Section 5.3, terminate this Agreement and the DDA with respect to those portions of the
Project, the construction of which was not commenced prior to the date of such termination.
3.1.3 Landscaping and Lighting District. Developer agrees to participate in
the Anaheim Resort Landscaping and Lighting Maintenance District
3.2 Agreement and Assurances on the Part of the City. In consideration for
Developer entering into this Agreement, and as an inducement for Developer to obligate itself to
carry out the covenants and conditions set forth in this Agreement, the City hereby agrees during
the term as follows:
32.1 Entitlement to Development. Developer has a vested right to develop
the Project in accordance with the Existing Approvals subject to the terms and conditions of this
Agreement, the Applicable Rules and the Reserved Powers.
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3.2.2 Changes in Applicable Rules.
3.22.1 Non-Application of Changes in Applicable Rules. Any change in,
or addition to, the Applicable Rules, including, without limitation, any change in any applicable
general or specific plan, zoning ordinance or building regulation adopted or becoming effective
after the Effective Date, including, without limitation, any such change by means or ordinance,
City Charter amendment, initiative, referendum, resolution, motion, policy, order or moratorium,
initiated or instituted for any reason whatsoever and adopted by the City Council, Planning
Commission or City Agency, or by the electorate, as the case may be, which would, absent this
Agreement, otherwise be applicable to the Project and which would conflict with the Applicable
Rules or this Agreement, shall not be applied to the Project unless such changes represent an
exercise of the City's Reserved Powers or are otherwise expressly allowed by this Agreement or
consented to in writing by Developer.
- 3.2.2.2 Changes in Uniform Code. Notwithstanding any provision of this
Agreement to the contrary, construction of the Project shall comply with changes occurring from
time to time in the Uniform Codes pursuant to the Reserved Powers.
3.2.2.3 Changes Mandated by Federal or State Law. This Agreement
shall not preclude the application to the Project of changes in, or additions to, the Applicable
Rules. In the event state or federal laws or regulations prevent or preclude compliance with one
oe more provisions of this Agreement, sucn provisions sha~l be rtlodified or st~spen~e~ as ~ay be
necessary to comply with such state or federal laws or regulations.
32.2.4 Specia! Ta:ces a.nd Assessments. Except with regard to the
Landscaping and Lighting District for the Anaheim Resort as provided for in Section 3.1.3,
Developer shall have the right, to the extent permitted by law, to protest, oppose and vote against
any and all special taxes, assessments, levies, charges and/or fees imposed with respect to any
assessment districts, Mello-Roos Community Facilities Districts, maintenance districts or other
similar districts.
3.2.3 Agreed Changes and Other Reserved Powers. This Agreement shall not
preclude application to the Project of rules, regulations, ordinances and officially adopted plans
and policies otherwise in conflict with the Applicable Rules if (i) agreed to in writing by
Developer, or (ii) result from the Reserved Powers.
3.2.4 Subsequent Development. The City shall not require Developer to
obtain any approvals or permits for the development of the Project other than those permits or
approvals which are required by the Applicable Rules or the Reserved Powers.
3.2.5 Effective Development Standards. The City agrees that with respect to
the Project it is bound to permit development of the Project in accordance with the Specific Plan
including without limitation, the uses, intensity and density as provided for in the Specific Plan,
subject to the Applicable Rules, Reserved Powers and this Agreement. Moreover, the City
hereby agrees that it will not unreasonably withhold any Discretionary Action which must be
issued by the City in order for the Project to proceed, provided that Developer reasonably and
satisfactorily complies with all City-wide standard procedures and policies of the City for
processing any such Discretionary Action and pays any applicable Processing Fees and Charges.
3.2.6 Timing, Sequencing and Phasing of Development. In the event an
ordinance, resolution or other measure, referendum, or initiative is enacted, whether by action of
the City or otherwise, which relates to the rate, amount, timing, sequencing, or phasing of the
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• •
development or construction of the Project on all or any part of the Excel Pointe Anaheim
Property or the implementation or construction of the Mitigation Measures, City agrees that such
ordinances, resolution or other measure shall not apply to the Project, the Excel Pointe Anaheim
Property or this Agreement, unless such changes are adopted pursuant to the City's exercise of its
Reserved Powers or other applicable provision of this Agreement.
32.7 Impact Fees; Credit for Developer Installed Facilities. All Project
Elements shall be subject to the Impact Fees and crediting provisions related thereto in force at
time of application and as may be amended from time to time and are not restricted or limited in
any way by this Agreement.
3.2.8 Right(s)-of-Way. In the event Developer cannot acquire
Right(s)-of-Way necessary to perform a Mitigation Measure or complete a Condition of
Approval, City shall use its best efforts to acquire such Right(s)-of-Way, the cost of which shall
be reimbursed to the City by the Developer.
In the event City is unable to acquire such Right(s)-of-Way, City shall institute
proceedings to consider acquisition of such Right(s)-of-Way by eminent domain. Nothing
contained herein shall constitute a commitment or determination by the City Council of the City
to exercise the power of eminent domain.
3.3 Processing ~~es, Extraardinary Processing Cansuttant, Etrarges arrd
Environmental Review.
3.3. ~ Process~ng ~ees an~ ~harges. Dev~loper shall pay all P:ocessing Fees
and Charges for Ministerial Permits and Approvals and Inspections at the rate in effect at the
time they are sought.
3.3.2 Extraordinary Processing Consultant. Developer may request that the
City engage an Extraordinary Processing Consultant to coordinate and expedite the processing of
actions required through the Ministerial Permits and Approvals and all Discretionary Actions
applicable to the Project. The City agrees, if so requested, to engage such Extraordinary
Processing Consultant. Developer shall reimburse the City for the costs of such Extraordinary
Processing Consultant in accordance with the terms of Section 7.22 hereof.
3.3.3 Environmental Review. The City has conducted extensive
environmental review of the Project and has adopted the Mitigation Measures. The City intends
that iVlinisterial Permits and Approvals are not actions subject to requirements for further
environmental review pursuant to CEQA.
4. DEVELOPMENT PLAN.
4.1 Right to Develop Property. Subject to the terms of this Agreement, Developer
shall have a vested right to develop the Excel Pointe Anaheim Property in accordance with the
E;cisting Approvals.
4.2 Phased Development. The Excel Pointe Anaheim Project will be developed in up
to five phases, with two altematives for Area A and Area B as set forth in the Existing Approvals
and Mitigation Measures and as shown on Exhibit and the alternatives for the Initial Phase
as set forth in the Existing Approvals and as shown on E;chibit _
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5. ANNUAL REVIEW; REIMBURSEMENT; DEFAULT; TERMINATION,
AMENDMENT OR MODIFICATION; MANDAMUS; SPECIFIC PERFORMANCE.
5.1 Annual Review. During the Term, Developer shall initiate and the City shall
conduct an Annual Review of Developer's compliance with this Agreement and the Procedures
Resolution. Such Annual Review shall be limited in scope to determining good faith compliance
with the provisions of this Agreement. The Annual Review shall be initiated and conducted in
accordance with the Procedures Resolution.
5.2 Reimbursement of Costs. Developer shall reimburse the City for its actual costs,
reasonably and necessarily incuned to accomplish the required Annual Review of this
Agreement or any legal or financing consultant cost necessary to accomplish review of
amendments pursuant to Section 7.5 of this Agreement. Such reimbursement shall be due within
thirty (30) days after receipt of invoice from the City. These costs include, but are not limited to,
the Application Fee for Annual Review required by the City's Procedures Resolution.
5.3 Default by Developer.
5.3.1 Default. In the event the City reasonably determines that Developer has
failed to perform any of its obligations under this Agreement, or that any such obligations are not
perfonned in a timely manner, the City may pursue only those remedies expressly provided for
ii~ this Agr~~ment; prav'rcted, however, that the Cit~'s ftg~it to compel specific pe~~ar~ance of th~
obligations of Developer under this Agreement shall be subject to the limitations set forth in
Section 5.3.4. Further, the City shall have no right to monetary damages except as set forth in
Sectians 3.1.2 urd 5.2.
5.3.2 Notice of Default. In the event the City reasonably determines that
Developer is in default of any of its obligations under this Agreement, the City shall send a
notice of such alleged default(s) to Developer in which the allegations of default shall be set
forth in sufficient detail to enable Developer to ascertain the specific actions necessary to cure
the alleged default(s). Upon receipt of a notice of default, Developer shall promptly commence
to cure the identified default(s) at the earliest reasonable time after receipt of such notice but in
no event more than thirty (30) days after receipt of notice and shall complete the cure of (i) any
monetary default(s) not later than thirty (30) days thereafter, and (ii) any non-monetary default(s)
not later than ninety (90) days thereafter or such longer period as necessary to cure default as
agreed to by City in its sole discretion.
5.3.3 Termination for Failure to Cure Default. If after the cure period
provided for in Section 5.3.2 has lapsed, and the Planning Director reasonably finds and
deternlines that Developer remains in default, the Planning Director shall make a report to the
City Council concerning such default and City Council may thereafter proceed to modify or
terminate this Agreement in accordance with the Procedures set forth in Sections 72 and 7.3 of
the Procedures Resolution.
5.3.4 Specific Performance. Except as provided in this Section 5.3.4, the City
shall have no right under this Agreement to seek a remedy of specific performance with respect
to the Project in the event of an abandonment of the Project (including the failure to complete the
Project or a portion of the Project by any required completion date) or with respect to any Project
Element in the event of the abandonment of any such Project Element (regardless of whether the
Project Element is or is not part of the Project). The City's right to seek specific performance to
compel completion of the Project (including portions of the Project) or applicable Project
Elements in the event of such abandonment shall be specifically limited to (i) compelling
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Developer, at the election of the City in its sole discretion, to complete or demolish any
uncompleted improvements located on public property initiated in connection with the Project
with the choice of whether to demolish or complete such improvements and the method of such
demolition or completion of such improvements to be selected by the City in its sole discretion,
and (ii) compelling Developer, at the ,election of Developer in its sole discretion, to complete,
demolish or make safe and secure any uncompleted improvements located on the Excel Pointe
Anaheim Property with the choice of whether to demolish, complete or secure such
improvements and the method of such demolition, completion and securing of such
improvements to be selected by Developer in its sole discretion. Prior to Commencement of
Construction, Developer shall post a performance bond or other security in an amount and form
reasonably satisfactory to the City Attorney to guarantee demolition or securing of such
uncompleted improvements. The Developer's contractors performance bond from a creditworthy
bonding company assigned to the City is a performance bond that will be acceptable to City.
Nothing in this Section 5.3.4 shall limit the City's enforcement of all applicable provisions of the
Applicable Rules, Existing Approvals, Mitigation Measures, and Uniform Code for any portion
of the Project then or thereafter constructed (e.g., requiring Developer to build sewer laterals
required under Applicable Rules to serve a hotel actually completed), termination of this
Agreement in accordance with the provisions hereof notwithstanding. In addition, nothing in
this Section shall limit or restrict in any way the City's monetary remedies as provided for in
Section 3.1.2 hereof.
5.4 Defau~t b~ C'rt~.
5.4.1 Notice of Default. Upon receipt of ~;rritten notice of default from
Deve:cpe:, the ~ity shall ~romp±ly comm~nce ±o c~are the identified default(s~ at the earliest
reasonable time after receipt of the notice of default and shall complete the cure of such
default(s) not later than sixty (60) days after receipt of the notice of default.
5.42 Specific Performance and Mandamus. It is acknowledged by the Parties
that the City would not have entered into this Agreement if it were to be liable in damages under
or with respect to this Agreement or the application thereo£ In addition, the Parties agree that
monetary damages are not an adequate remedy for Developer if the City should be determined to
be in default under this Agreement. The Parties further agree that specific performance and
mandamus shall be Developer's only remedies under this Agreement and Developer may not
seek monetary damages in the event of a default by the City under this Agreement. Developer
covenants not to sue for or claim any monetary damages in the event of a default by the City
under this Agreement. Developer may seek specific performance of City's obligations under this
Agreement or a writ of mandate pursuant to Code of Civil Procedure sections 1085 or 1094.5, as
applicable, to compel the City to take or refrain from taking any action, or to modify any action
taken, that is necessary to effectuate the terms of this Agreement only after serving written notice
of the alleged default(s) on City and lapse of the period given for City to cure such default(s), all
in accordance with Section 5.4.1, and for so long as City remains in default of its obligations
under this Agreement.
6. PUBLIC BENEFITS.
6.1 Assemblage of Properties. The Project will involve the assemblage of a number
of separate land parcels and assure the development thereon of coordinated, orderly, phased, high
quality hotel, Retail, Dining and Entertainment Uses and associated Parking Facilities.
Development of the Project will result in use of a number of currentiy under-utilized and
non-conforming properties in a manner that is consistent with goals of the General Plan and
Specific Plan.
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•
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62 Net Increase in Transient Occupancy Tax. The Project will provide substantial
City benefits from the net increase in transient occupancy tax derived from the construction of
the Project.
6.3 Increase in Retail Sales Taxes. The Project will provide significant additional net
retail sales tax benefits upon Project completion beyond those generated by the existing uses in
the Pointe Anaheim Overlay area.
6.4 Increase in Property Taxes. The Project will result in placing several historically
tax-exempt properties onto the property tax rolls, and re-appraising to fair market value a number
of other properties with assessed valuations that have been artificially depressed by Proposition
13 limits or under-utilization of the area. These changes will generate significant additional
property taxes.
6.5 - Resort Area Traffic Improvements. The Project will provide additional Anaheim
Resort area traffic benefits as described in the Mitigation Measures and Existing Approvals.
6.6 Police Substation. Prior to issuance of building permit(s) for uses comprising
Area C of the Project, Developer shall submit plans for a"storefront" police substation within
the Project to the satisfaction of the City Police Department, together with dedicated City Police
Department employees' parking spaces. Prior to the first final building and zoning inspection for
tlie uses in Area C, the sp~c~ fo~ said substatian shalt be conveyec~ ~o-~Yre City in aecordatice wi~h
the terms set forth in the Mitigation Measures. These terms and all other relevant provisions
governing this occupancy shall be set forth in the DDA.
7. GENER.AL PROVISIONS.
7.1 Date Agreement Becomes Effective. This Agreement shall become effective on
the Effective Date.
7.2 Term.
72.1 Basic Term. The Term of this Agreement shall commence on the
Effective Date of this Agreement and shall extend for a period of ten (10) years after the
Effective Date.
7.22 Early Termination of Agreement. This Agreement is terminable: (i) by
mutual written agreement of the Parties; (ii) by either Party following an uncured default by the
other Party under this Agreement or the DDA, subject to the procedures and limitations set forth
in this Agreement and the DDA; or (iii) by the Developer, in its sole discretion, prior to the
Commencement of Construction Date, in which event the City may, in its sole discretion, rescind
the Existing Approvals.
7.3 Force Majeure; Extension of Time of Performance. In addition to specific
provisions of this Agreement, whenever a period of time is designated within which either Party
hereto is required to do or complete any act, matter or thing, both the time for the doing or
completion thereof and the Term of this Agreement shall be extended by a period of time equal
to the number of days which such Party is prevented from, or is unreasonably interfered with the
doing or completion of such act, matter or thing because of the following causes, which causes
are beyond the reasonable control of the Party to be excused including: war, terrorist acts,
insurrection; strikes; walk-outs; riots; floods; earthquakes; fires; unavoidable casualties; acts of
God; third party litigation and administrative proceedings which are brought against the Project
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• •
by a third party (not including any administrative proceedings contemplated by this Agreement
in the normal course of affairs such as the Annual Review); any approval required by the City
(not including any period of time normally expected for the processing of such approvals in the
ordinary course of affairs); restrictions imposed or mandated by other governmental entities
("Governmental Restrictions"); enactanent of conflicting state or federal laws or regu(ations
("Conflicting Laws"); judicial decisions ("Judicial Decisions"); or similar bases for excused
performance which is not within the reasonable control of the party to be excused (financial
inability excepted); provided that with regard to Governmental Restrictions, Conflicting Laws
and Judicial Decisions, such causes shall excuse performing only if the cause for delay is not
removed within 24 months after its commencement. This Section shall not be applicable to, and
the required time of performance shall not be extended by, any proceedings with respect to
bankruptcy or receivership initiated by or on behalf of Developer or, if not dismissed within
ninety (90) days, by any third Parties against Developer. If written notice of such delay is given
to either Party within thirty (30) days of commencement of such delay, an extension of time for
such cause will be granted in writing for the period of the enforced delay, or longer as may be
mutually agreed upon; provided, however, in the event no such notice is given, such claim or
delay from that cause shall be deemed waived and no extension shall be granted on that basis.
7.4 Applicable Law. This Agreement shall be construed and enforced in accordance
with the la~vs of the State of California, and the venue for any legal actions brought by any Party
with respect to this Agreement shall be the County of Orange, State of California, for state
acfions, and the Orange Count~ Divisiori of the Centrat District af Ca~ifornia for any federal
actions.
7.5 Ameni mzrits. This Agreer~ent may be amended from time to time in writing in
accordance with Government Code section 65868 and the Procedures Resolution.
7.6 Assignment. The Parties acknowledge and agree that one of the principal
inducements to the City in entering into this Agreement is the assurance that the Project
Elements will be developed in accordance with the quality standards set forth in the Existing
Approvals and this Agreement, and in particular that the Hotel Rooms will be opened in
accordance with the time set forth herein. In furtherance of these objectives, the Parties agree
that except as other~vise provided in this Section 7.6, Developer shall not be entitled to transfer
any of the Excel Pointe Anaheim Property together with its rights or obligations hereunder
without the written consent of the City, which consent shall not be unreasonably withheld,
conditioned or delayed. The City shall consent to each transfer if evidence reasonably
satisfactory to the City is presented that the entity to which the assignment is proposed (i) has
adequate net worth to construct and operate the Project or applicable Project Element(s); (ii) has
a demonstrated track record of having developed and operated first-class commercial facilities of
a similar nature to the Project or applicable Project Element(s); (iii) has a demonstrated track
record of arranging financing (through debt and/or equity) on terms and in amounts similar to the
amounts necessary to complete the Project or applicable. Project Element(s); and (iv) has
expressly assumed all of Developer's obligations hereunder and such assignment is being
undertaken in accordance ~vith this Section 7.6. Notwithstanding the foregoing, Developer shall
have the right to lease space to Retail, Dining and Entertainment Use tenants, and assign, lease,
transfer, convey or hypothecate all or any partial interest in all or any portion of the Excel Pointe
Anaheim Property to any Affiliate without the consent of the City. Any such assignment, lease,
transfer, conveyance, or hypothecation may include all of Developer's rights, duties and
obligations under this Agreement. Notwithstanding the foregoing, no assignment shall be
effective regardless of whether or not the City's consent is otherwise required, unless and until
the proposed assignee accepts and agrees in writing to assume and be bound by the obligations
-~~-
20990~v12
. •
set forth in this Agreement which apply to the Excel Pointe Anaheim Property, the Project, the
Project Elements or interest therein being assigned.
7.7 Mortgage Rights.
7.7.1 Encumbrances on the Excel Pointe Anaheim Property and this
Agreement. The Parties hereto agree that this Agreement shall not prevent or limit Developer, in
any manner, at Developer's sole and absolute discretion, from encumbering the Excel Pointe
Anaheim Property or any portion thereof or any improvements thereon with any Mortgage.
Developer is hereby given the express right, in addition to any other rights herein granted, to
grant a Mortgage on its interests in this Agreement or any part or parts thereof, under one or
more Mortgages and to assign this Agreement as collateral security for any such Mortgage.
7.7.2 Mortgagee Protection. This Agreement shall be superior and senior to
the lien of any Mortgage. Notwithstanding the foregoing, no breach of this Agreement shall
defeat, render invalid, diminish, or impair the lien of any Mortgage made in good faith and for
value, and any acquisition or acceptance of title or any right or interest in or with respect to the
Excel Pointe Anaheim Property or any portion thereof, or to this Agreement, by a Mortgagee
(whether pursuant to foreclosure, lease termination or otherwise) shall upon written election by
the Mortgagee ~vithin sixty (60) days after receipt of such right, title or interest, be subject to all
of the terms and conditions of this Agreement and any such Mortgagee ~vho takes title to the
~xcet Pointe ~a~~irn Praperty or any port'ron thereQf, or to this Agreemertt, shall also be
entitled to the benefits arising under this Agreement.
', .?.3 M:,rtgagee :~T~t Obligated. :tiTOtwithstanding the provisions of ihis
Section 7.7, a Mortgagee will not have any obligation or duty pursuant to the terms set forth in
this Agreement to perform the obligations of Developer or other affirmative covenants of
Developer hereunder or to guarantee such performance, except that (i) the Mortgagee shall upon
written election by the Mortgagee within sixty (60) days after receipt of such right, title or
interest, have no right to develop the Project without fully complying with the terms of this
Agreement, and (ii) to the extent that any covenant to be performed by Developer is a condition
to the performance of any covenant by the City, the performance thereof shall continue to be a
condition precedent to the City's performance hereunder. Although not obligated to do so, upon
written election by the Mortgagee within sixty (60) days after receipt of such right, title or
interest, any Mortgagee may do any act or thing required by Developer hereunder, and do any act
or thing which may be necessary and properly done in the performance and observance of the
agreements, covenants and conditions hereof to prevent termination of this Agreement in
accordance with Section 7.7.4. Any Mortgagee and its agents and contractors shall have full
access to the Excel Pointe Anaheim Property for purposes of accomplishing any of the
foregoing. Any of the foregoing done by any Mortgagee shall be as effective to prevent a
termination of this Agreement as if the same would have been done by the Developer.
7.7.4 Notice of Default to Mortgagee; Right of Mortgagee to Cure. Each
Mortgagee shall, upon written request to City be entitled to receive written notice from the City
of the result of the Annual review and of any default by Developer of its obligations set forth in
this Agreement simultaneously with the deliver of such notices to the Developer. Each
Mortgagee shall have a further right, but not an obligation, to cure such default within ninety
(90) days after receipt of such notice or, if such default can only be remedied or cured by such
Mortgagee upon obtaining possession of the Excel Pointe Anaheim Property, such Mortgagee
shall have the right to seek or obtain possession with diligence and continuity through a receiver
or otherwise, and to remedy or cure such default within ninety (90) days after obtaining
possession, and, except in case of emergency or to protect the public health or safety as
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20990~v12
• ~
determined by the City in its reasonable discretion, City may not exercise any of its remedies set
forth in this Agreement until expiration of such ninety (90) day period whether commencing
upon receipt of notice or upon obtaining possession of the interests covered by a Mortgage, as
applicable; provided, however, that in the case of a default which cannot with diligence be
remedied or cured or the remedy or cure of which cannot be commenced within such ninety (90)
day period, the Mortgagee shall have such additional time as is reasonably necessary to remedy
or cure such default. Any notice of termination delivered in violation of this Section 7.7.4 shall
be rendered void.
7.7.5 Bankruptcy. Notwithstanding the foregoing provisions of this Section
7.7, if any Mortgagee is prohibited from commencing or prosecuting foreclosure or other
appropriate proceedings in the nature thereof by any injunction issued by any court or by reason
of any action by any court having jurisdiction of any bankruptcy or insolvency proceeding
involving Developer, the times specified in Section 7.7.4 for commencing or prosecuting
foreclosure ar other proceedings shall be extended for the period of the prohibition. In addition,
if this Agreement is rejected or otherwise terminated in connection with any such proceeding,
then upon the request of any mortgagee, a new development agreement upon the same terms and
conditions set forth in this Agreement shall be entered into between such Mortgagee and City.
7.7.6 Termination Subject to Mortgagee Rights. All rights of the City to
terminate this Agreement as a result of the occurrence of any default shall be subject to, and
c~n~iitianed upon, the City have first given to each Mortgagee ~vritten notiee of the ~efault as
required under 7.7.4 above, and all Mortgagees having failed to remedy such default or acquire
Developer's interests hereunder, or having failed to commence foreclosure or other appropriate
pracee~ings in the nature thereof as set fort?: in Sectien 7.7.4 above.
7.7.7 No Cancellation. There shall be no cancellation, surrender or
modification of this Agreement by joint action of the Parties ~vithout a minimum of ninety (90)
days prior ~vritten notice to each Mortgagee who has requested such notice.
7.7.8 New Agreement Upon Default by Developer. City agrees that in the
event of termination of this Agreement by reason of a default by Developer, the City ~vill enter
into a new development agreement with the most senior Mortgagee whose Mortgage encumbers
this Agreement requesting a new development agreement for the remainder of the term of this
Agreement, such new agreement being effective as of the date of such termination, and
containing such terms, provisions, covenants and agreements as herein contained, provided:
(a) The senior Mortgagee shall make written request upon City for such new
development agreement within thirty (30) days after the date of
termination;
(b) The senior Mortgagee shall pay to the City at the time of the execution
and delivery of such new development agreement any and all sums
which would, at the time of the execution and delivery thereof, be due
and unpaid pursuant to this Agreement but for its termination; including
any expenses, attorneys' fees and costs, to ~vhich the City was subjected
by reason of such default;
(c) The senior Mortgagee shall perform and observe all covenants herein
contained on Developer's part to be performed, and shall further remedy
any other conditions which Developer was obligated to perform under
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20990~v12
•
•
the terms of this Agreement, and to the extent that same are curable or
may be performed by the senior Mortgagee; and
(d) Notwithstanding anything to the contrary expressed or implied
elsewhere in this Agreement, any new development agreement made
pursuant to this Section shall be superior to any Mortgage to the same
extent as this Agreement.
7.7.9 Separate Agreement. The City shall, upon request, execute,
acknowledge and deliver to each Mortgagee an agreement prepared at the sole cost and expense
of the Developer (including related legal fees incurred by the City), in form satisfactory to each
Mortgagee, between City, Developer and the Mortgagee(s), confirming all of the provisions
hereof and/or such other documents containing terms and provisions customarily required by
Institutional Lenders in connection with such financing, provided, however, the City shall not be
obligated to approve any terms that would impair or adversely affect the rights and obligations of
the City, or otherwise amend this Agreement and/or the obligations of the Developer as set forth
in this Agreement ~
7.7.10 Material Notices. The Developer shall give all Mortgagees notice of
any litigation relating to this Agreement, and any Mortgagee shall have the right to seek
intervention therein. The parties do hereby consent to such intervention. In the event any
Ivfortgage~ ~~~lt ~~t ~t~~t ta int~rvene or become a party to the proceedings, sueh IVfor~gagee
shall be provided notice and a copy of any award or decision made in connection therewith.
7.7.11 M~~gagee :~:ght t~ ~ssigr.. Fcreclosure of any Mortgage, or ar~y sale
tliereunder, whether by judicial proceedings or by virtue of any power contained in the
Mortgage, or any conveyance of the interest of Developer hereunder to any Mortgagee or its
designee through, or in lieu of, foreclosure or other appropriate proceedings in the nature thereof,
shall not require the consent of the City or constitute a breach of any provision of or a default
under this Agreement; and upon such foreclosure, sale or conveyance, the City will recognize the
purchaser or other transferee in connection therewith as the Developer hereunder provided that
such purchaser, assignee or other transferee has a net worth, relevant experience, and evidence of
financing sufficient to enable such entity to carry out tliis function, and otherwise conforms to
the requirements of Section 7.6 hereof.
7.8 Covenants. The provisions of this Agreement shall constitute covenants which
run with the land comprising the Excel Pointe Anaheim Property for the benefit thereof and as a
burden thereon, and, subject to the restrictions on transfer as set forth in Section 7.6, the burdens
and benefits hereof shall bind arid inure to the benefit of all assignees, transferees and successors
to the parties. . ~
7.9 Implementation. Upon satisfactory completion by Developer of all required
applications and payment of applicable Processing Fees and Charges, including the fee for
processing this Agreement, the City and Developer shall commence and diligently process all
required steps necessary for the implementation of this Agreement and development of the
Project in accordance with the terms of this Agreement. Developer shall, in a timely manner,
provide the City with all documents, plans and other information necessary for the City to carry
out its processing obligations hereunder.
7.10 Relationship of the Parties. It is understood and agreed by the Parties that the
contractual relationship created between the Parties hereunder is that Developer is an
independent party and not an agent of the City. Further, the City and Developer hereby renounce
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20990~v12
• •
the existence of any form of joint venture or partnerst~ip between them and agree that nothing
herein or in any document executed in connection herewith shall be construed as making the City
and Developer joint venturers or partners.
7.11 Cooperation in the Event of Third Party Litigation. In the event legal action is
instituted by a third party, including any other governmental entity or official challenging the
validity or enforceability of any provision of this Agreement, or the Existing Approvals vested
pursuant to this Agreement, or any other action by either Party in performing hereunder, the
Parties hereby agree to affircnatively cooperate in defending said action; provided, however, that
Developer agrees to and shall defend, indemnify, save and hold the City harmless from any and
all claims, costs and liability, including without limitation, court costs and attorneys' fees
awarded to any party, to the extent they result from any such Litigation. As the indemnifying
Party, Developer shall at all times retain final authority and control over all documents to be filed
in such Litigation and notwithstanding the provisions of this Section 7.11, the City shall be
deemed to have waived its rights to be indemnified hereunder if the City settles any Litigation, in
whole or in part, or files any documents in such Litigation without Developer's prior written
approval, which approval shall not be unreasonably withheld.
7.12 Notices. Any notice or communication required hereunder between the City and
Developer must be in writing, and may be given either personally, by registered or certified mail,
return receipt requested or by overnight courier. If given by registered or certified mail, the same
shatl be deemed to have been deiiverect and receiv~d on the first to occur of (i) actual reee'rpt b~
any of the addresses designated below as the Party to whom notices are to be sent, or (ii) five (5)
days after a registered or certified letter containing such notice, properly addressed, with postage
prepaid, is deposiied in the IJniied States mail. If personally delivered or delivered by courier, a
notice shall be deemed to have been delivered when received by the Party to whom it is
addressed. Any Party hereby may at any time, by giving ten (10) day's written notice to the
other Party hereto, designate any other address in substitution of the address, or any additional
address, to which such notice or communication shall be given. Such notices or communications
shall be given to the Parties at their addresses set forth belo~v:
If to City:
City Clerk
City of Anaheim
200 South Anaheim Blvd.
Anaheim, CA 92803
With Copies to:
City Attorney, City of Anaheim
City of Anaheim
200 South Anaheim Blvd., Suite 356
Anaheim, CA 92803
If to Developer:
William J. Stone, Senior Vice President
Excel Pointe Anaheim LLC
c/o Excel Legacy Corporation
17I40 Bernardo Center Dr., Suite 300
San Diego, CA 92128
20990~v12
With Copies to:
John P. Erskine, Esq.
Nossaman, Guthner, Knox & Elliott, LLP
18101 Von Karman Ave. #1800
Irvine, CA 92612
-21-
• •
Robert H. Shelton
Anaheim Center for Entertainment, LLC
11 Keats Court
Cota de Caza, CA 92679
7.13 Recordation. The City's Clerk shall record a copy of this Agreement with the
Registrar-Recorder of Orange County within two (2) business days following its execution by
both Parties. To the extent that Excel Pointe Anaheim Property consists of property under Lease
by Developer, this Agreement shall encumber only the leasehold interest and shall not constitute
an encumbrance upon the estate in fee.
7.14 Developer Hold Harmless. Developer hereby agrees to and shall indemnify, save,
hold harmless and defend the City, and its elected and appointed representatives, boards,
commissions; officers, agents, and employees (collectively, "the City" in this Section), from any
and all claims, costs, and liability of any kind which may arise, directly or indirectly, from
Developer or Developer's contractors, subcontractors, agents, or employees' operations, acts or
omissions in connection with the construction and operation of the Project, whether such
operations, acts or omissions are by Developer or any of Developer's contractors, subcontractors,
or by any one or more persons directly or indirectly employed by, or acting as agent for
Developer or any of Developer's contractors or subcontractors. Nothing in this Section shall be
construed to mean that I7eveIoper shaTt hold the City harmtess andlor d~fen~ it to the ~xt~nt that
such claims, costs or liability arise from, or are alleged to have arisen from, the negligent acts, or
negligent failure to act, on the part of the City. City agrees that it shall fully cooperate with
Ueveloper in the defense of any matter in which Deveio~er is deiending and/or holding the City
harmless and at no cost to City. The obligations set forth herein shall survive the Term,
termination or earlier expiration of this Agreement.
7.15 Insurance. Without limiting its obligation to hold the City harmless, Developer
shall provide and maintain at its own expense, at all times during the Term the following
program of insurance concerning its operations hereunder. The insurance shall be placed with
California-admitted insurers that carry a Best's rating equal to A VII or higher. The program of
insurance provided shall specifically identify this Agreement and shall contain express
conditions that the City is to be given written notice at least thirty (30) days prior to any
modification or termination of coverage. Such insurance shall be primary to and not contributing
with any insurance or self-insurance maintained by the City, shall name the City, its officers,
officials, employees, representatives and agents, as additional insureds, shall be written on a
comprehensive or commercial general liability insurance form, and shall include coverage for,
but not limited to, Completed Operations, Premises/Project Site Operations, Products/Completed
Operations, Contractual, Independent Contractors Broad Form Property Damage, and Personal
Injury, with a per occurrence limit of not less than two million dollars ($2,000,000) written on an
occurrence basis.
7.16 Successors and Assigns. Subject to the limitations on transfer set forth in this
Agreement, the provisions of this Agreement shall be binding upon and shall inure to the benefit
of the Parties, and their respective successors, assigns and transferees.
7.17 Severability. If any provisions, conditions, or covenants of this Agreement, or the
application thereof to any circumstances of either Party, shall be held invalid or unenforceable,
the remainder of this Agreement or the application of such provision, condition, or covenant to
persons or circumstances other than those as to whom or which it is held invalid or
-22-
209905v12
i •
unenforceable shall not be affected thereby and shall be valid and enforceable to the fullest
extent permitted by law.
7.18 Time of the Essence. Time is of the essence for each provision of this Agreement
of which time is an element.
7.19 Waiver. No waiver of any provision of this Agreement shall be effective unless
in writing and signed by the Party against whom enforcement of a waiver is sought and such
waiver refers expressly to the Section containing the waived provision. No waiver of any right
or remedy in respect of any occurrence or event shall be deemed a waiver of any right or remedy
in respect of any other occurrence or event.
7.20 No Third Party Beneficiaries. There are no third party beneficiaries to this
Agreement and this Agreement is not intended, and shall not be construed to benefit or be
enforceable by any other persons or entities other than the Parties.
7.21 Expedited Processing. Developer and City agree to cooperate in the expedited
processing of any legal action seeking mandamus, specific performance, declaratory relief or
injunctive relief, to set court dates at the earliest practicable date(s) and not cause delay in the
prosecution/defense of the action, provided such cooperation shall not require any Party to waive
any rights.
7.22 Requests for Payment. With respect to any requests by the City for payment of
amounts due under this Agreement, Developer retains its right to review any invoices or requests
for payments submitted by t~ e City pursuant to this Agreement. ~Develope: shall review and
reasonably approve such invoices or requests for payment or shall identify any disputed amounts
within twenty (20) days after receipt. At Developer's request, the City shall provide Developer
with reasonable information or back-up materials supporting such invoices or requests for
payment at City offices, with reasonable notice, during business hours. In the event of any
disputed invoices or requests for payment, Developer shall timely pay all amounts not disputed.
7.23 Entire Agreement. This Agreement and the documents, agreements and exhibits
referenced herein or attached hereto set forth and contain the entire understandings and
agreements of the parties, and there are no oral or written representations, understandings or
ancillary covenants, undertakings or agreements which are not contained or expressly referred to
herein and no testimony or evidence of any such representations, understandings, or covenants
shall be admissible in any proceedings of any kind or nature to interpret or determine the
provisions or conditions of this Agreement.
7.24 Conflict of Laws. With the exception of the Force Majeure provisions set forth in
Section 7.3 hereof, it is agreed by the Parties that the obligations and conditions contained in the
Existing Approvals and Mitigation Measures govern the development of the Excel Pointe
Anaheim Property. To the extent that any provisions of this Agreement may conflict with any of
the obligations, conditions or mitigations imposed on Developer pursuant to the Existing
Approvals and Mitigation Measures, the Existing Approvals and Mitigation Measures shall
govern.
7.25 Legal Advice; Neutral Interpretation; Headings and Table of Contents. Each
Party has received independent legal advice from its attorneys with respect to the advisability of
executing this Agreement and the meaning of the provisions hereo£ The provisions of this
Agreement shall be construed as to their fair meaning, and not for or against any Party based
upon any attribution to such Party as the source of the language in question. The headings and
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20990~v12
~
~~
~ table of contents used in this Agreement are for the convenience of reference only and shall not
be used in construing this Agreement.
7.26 Counterparts. This Agreement is executed in six duplicate originals, each of
which is deemed to be an original. This Agreement, not counting the Cover Page, Table of
Contents and notarial acknowledginents, consists of [~ pages and (~ Exhibits which
constitute the entire understanding and agreement of the Parties. The Exhibits are identified in
the List of Exhibits, which is contained in the Table of Contents of this Agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
date firs~ written below.
"City"
CITY OF ANAHEIM, a municipal corporation
of the State of California ATTEST:
By:
'~o~ Daly, Mayor By:
City Clerk
Date:
APPROVED AS TO FORM:
By:
Date:
"Developer"
EXCEL POINTE ANAHEIM LLC
a Delaware Iimited liability company
Jack White, City Attorney
APPROVED AS TO FORM:
By: EXCEL LEGACY CORPORATION,
a Delaware corporation
Its Managing Member
By:
Its:
Date:
20990~v12
Nossaman, Guthner, Knox & Elliott LLP
By:
John Erskine, Esq.
Date:
-24-
• •
STATE OF CALIFORNIA )
) ss.
COLJNTY OF - )
On before me, , a Notary Public,
personally appeared personally known to me or proved to me
on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature of Notary
[Seal]
STATE OF CALIFORNIA )
) ss.
COUNTY OF )
On before me, , a Notary Public,
personally appeared personally known to me or proved to rne
on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature of Notary
[Seal]
2o~sos~i2
~
STATE OF CALIFORNIA
COUNTY OF
On
)
) ss.
)
before me,
•
a Notary Public,
personally appeared personally known to me or proved to me
on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
[Seal]
Signature of Notary
STATE OF CALIFORNIA )
) ss.
COUNTY OF )
On before me, , a Notary Public,
personally appeazed personally known to me or proved to me
on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/shelthey executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
[Seal]
Signature of Notary
205505vt2
.
EXHIBIT "A"
PROPERTY DESCRIPTION
Melodyland Parcels:
PARCEL A
~
THE WEST 20 ACRES OF THE NORTHERLY 645.00 FEET OF THE SOUTHERLY
1320.00 FEET OF THE SOUTHEAST QUARTER OF SECTION 22, TOWNSHIP 4
SOUTH, RANGE 10 WEST, IN THE RANCHO SAN JUAN CAJON DE SANTA
ANA, CITY OF ANAHEIM, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS
PER MAP RECORDED IN BOOK 51, PAGE 10 OF MISCELLANEOUS MAPS, IN
THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT THE WEST 720.00 FEET.
ALS6 EXCEPT THENORTH b0.00 FEET.
PARCEL B
THAT PORTION OF THE SOUTHEAST QUARTER OF SECTION 22, TOWNSHIP 4
SOUTH, RANGE 10 WEST, IN THE RANCHO SAN JUAN CAJON DE SANTA
ANA, IN THE CITY OF ANAHEIM, COUNTY OF OR.ANGE, STATE OF
CALIFORNIA, AS PER MAP RECORDED IN BOOK 51, PAGE 10 OF
MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF SAID SOUTHEAST QUARTER;
THENCE NORTH 675.00 FEET ALONG THE WEST LINE OF SAID SOUTHEAST
QUARTER; THENCE EAST 833.51 FEET PARALLEL WITH THE SOUTH LINE OF
SAID SOUTHEAST QUARTER TO THE TRUE POINT OF BEGINNING; THENCE
SOUTH 0° 16'30" EAST 675.11 FEET TO A POINT, SAID POINT BEING ALSO THE
SOUTHEASTERLY CORNER OF THE LAND DESCRIBED IN DEED TO ALWYN
S. JEWELL AND LUCILLE G. JEWELL, RECORDED OCTOBER 5, 1979 IN BOOK
4912, PAGE 102, OFFICIAL RECORDS; THENCE EAST 486.49 FEET ALONG THE
SOUTH LINE OF SAID SOUTHEAST QUARTER TO THE SOUTHEAST CORNER
OF LAND CONVEYED TO DONALD F. REA BY DEED RECORDED DECEMBER
1, 1958 IN BOOK 4521, PAGE 453, OF OFFICIAL RECORDS; THENCE NORTH
675.00 FEET ALONG THE EAST LINE OF SAID LAND CONVEYED TO REA, TO
THE NORTHEAST CORNER THEREOF; THENCE WEST ALONG THE NORTH
LINE OF SAID LAND OF REA TO THE TRUE POINT OF BEGINNING.
EXCEPT THE WEST 292.00 FEET THEREOF.
2ossos~i2
• i
ALSO EXCEPT THE SOUTH 360.00 FEET THEREOF.
Hasenyager Parcel:
LOT 3 OF TRACT NO. 3330,~IN THE CITY OF ANAHEIM, COLJNTY OF OR.ANGE,
STATE OF CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 113,
PAGES 21 AND 22 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE
COLJNTY, CALIFORNIA.
Zaby's Parcel:
LOTS 1 AND 2 OF TRACT 3330, IN THE CITY OF ANAHEIM, COUNTY OR.ANGE,
STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 113, PAGES 21
AND 22 OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY.
EXCEPT THEREFROM THAT PORTION CONVEYED TO THE CITY OF
ANAHEIM BY DEED RECORDED JULY 30, 1997 AS INSTRUMENT NO. 97-
0359942, OFFICIAL RECORDS.
Berger Parcel:
LOTS 4 AND 5 OF TR~i;T '1V17. 3~.iO, iN THE CITY OF ANAHEiM, C~UNTY OF
ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 113,
PAGES 21 AND 22 OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY.
Rist Parcel:
PARCEL 1:
THE WEST 292 FEET OF THAT PORTION OF THE SOUTHEAST QUARTER OF
SECTION 22, IN TOWNSHIP 4 SOUTH, RANGE 10 WEST, IN THE RANCHO SAN
JUAN CAJON DE SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA,
AS SHOWN ON A MAP THEREOF RECORDED IN BOOK 51, PAGE l0,
MISCELLANEOUS MAPS, RECORDS OF SAID ORANGE COUNTY, DESCRIBED
AS FOLLOWS:
COMMENCING AT THE SOUTHWEST CORNER OF SAID SOUTHEAST
QUARTER; THENCE NORTH 675.00 FEET ALONG THE WEST LINE OF SAID
SOUTHEAST QUARTER; THENCE EAST 833.51 FEE PAR.ALLEL WITH THE
SOUTH LINE OF SAID SOUTHEAST QUARTER TO THE TRUE POINT OF
BEGINNING; THENCE SOUTH 0° 16'30" EAST 675.11 FEET TO A POINT, SAID
POINT BEING ALSO THE SOUTHEASTERLY CORNER OF THE LAND
DESCRIBED IN DEED TO ALWYN S. JEWELL AND LUCILLE G. JEWELL,
RECOR.DED OCTOBER 5, 1959 IN BOOK 4912, PAGE 102, OFFICIAL RECORDS;
THENCE EAST ALONG THE SOUTH LINE OF SAID SOUTHEAST QUARTER,
-2-
20990~v12
• •
486.49 FEET TO THE SOUTHEAST CORNER OF LAND CONVEYED TO DONALD
F. REA BY DEED RECORDED DECEMBER l, 1958 IN BOOK 4521, PAGE 543,
OFFICIAL RECORDS; THENCE NORTH ALONG THE EAST LINE OF SAID LAND
CONVEYED TO REA, 675.00 FEET TO THE NORTHEAST CORNER THEREOF;
THENCE WEST ALONG TI-~E NORTH LINE OF SAID LAND OF REA TO THE
TRUE POINT OF BEGINNING.
EXCEPT THEREFROM THE WEST 150 FEET OF THE SOUTH 360 FEET;
ALSO EXCEPT THEREFROM THE SOUTH 60 FEET INCLUDED WITHIN
KATELLA AVENUE, 120 FEET WIDE.
Parcel2:
THAT PORTION OF THE SOUTHEAST QUARTER OF SECTION 22, TOWNSHIP 4
SOUTH, RANGE 10 WEST, IN THE RANCHO SAN JUAN CAJON DE SANTA
ANA, IN THE CITY OF ANAHEIM, AS SHOWN ON A MAP THEREOF
RECORDED IN BOOK 51, PAGE 10, MISCELLANEOUS MAPS, RECORDS OF
SAID OR.ANGE COUNTY, DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHWEST CORNER OF SAID SOUTHEAST
QUARTER; THENCE NORTH 675.00 FEET ALONG THE WEST LINE OF SAID
SOUTHEAST QUARTER; THENCE EAST 833.51 FEET PARALLEL WITH THE
SOUTH LINE OF SAID SOUTHEAST QUARTER TO THE TRUE POINT OF
BEGINNING; THENCE SOUTH 0° 16'30" EAST 675.11 FEET TO A POINT, SAID
POINT BEING ALSO THE SOUTHEASTERLY CORNER OF THE LAND
DESCRIBED IN DEED TO ALWYN S. JEWEL AND LUCILLE G. JEWELL,
RECORDED OCTOBER 5, 1959 IN BOOK 4912, PAGE 102, OFFICIAL RECORDS;
THENCE EAST ALONG THE SOUTH LINE OF SAID SOUTHEAST QUARTER,
486.49 FEET TO THE SOUTHEAST CORNER OF LAND CONVEYED TO DONALD
F. REA, BY DEED RECORDED DECEMBER 1, 1958 IN BOOK 4521, PAGE 543,
OFFICIAL RECORDS; THENCE NORTH ALONG THE EAST LINE OF SAID LAND
CONVEYED TO REA, 675.00 FEET TO THE NORTHEAST CORNER THEREOF;
THENCE WEST ALONG THE NORTH LINE OF SAID LAND OF REA TO THE
TRUE POINT OF BEGINNING.
EXCEPT THEREFROM THE SOUTH 60.00 FEET INCLUDED WITHIN KATELLA
AVENUE, 120.00 FEET WIDE.
ALSO EXCEPT THEREFROM THE NORTH 315 FEET.
ALSO EXCEPT THEREFROM THE WEST 292 FEET.
Ursini Parcel:
THAT PORTION OF THE SOUTHEAST QUARTER OF SECTION 22, TOWNSHIP 4
SOUTH, R.ANGE 10 WEST, IN THE CITY OF ANAHEIM, COUNTY OF OR.ANGE,
-~-
20990~v12
. •
STATE OF CALIFORNIA, AS SHOWN ON A MAP THEREOF RECORDED IN
BOOK 51, PAGE 10, MISCELLANEOUS MAPS, RECORDS OF ORANGE COLJNTY,
CALIFORNIA, DESCRIBED AS FOLLOWS:
COMMENCING AT THE ' SOUTHWEST CORNER OF SAID SOUTHEAST
QUARTER; THENCE NORTH 675.00 FEET ALONG THE WEST LINE OF SAID
SOUTHEAST QUARTER; THENCE EAST 833.51 FEET PARALLEL WITH THE
SOUTH LINE OF SAID SOUTHEAST QUARTER; THENCE SOUTH 0° 16'30" EAST
675.11 FEET TO THE TRUE POINT OF BEGINNING, SAID POINT ALSO BEING
THE SOUTHEASTERLY CORNER OF THE LAND DESCRIBED IN DEED TO
ALWYN S. JEWELL AND LUCILLE G. JEWELL, RECORDED OCTOBER 5, 1959
IN BOOK 4912, PAGE 102, OFFICIAL RECORDS; THENCE NORTH 0° 16'30"
WEST, 360.00 FEET ALONG THE EASTERLY LINE OF SAID LAND; THENCE
EAST 150.00 FEET PARALLEL WITH THE SOUTHERLY LINE OF SAID
SOUTHEAST QUARTER; THENCE SOUTH 0° 16'30" EAST, 360.00 FEET
PARALLEL WITH SAID EASTERLY LINE OF THE LAND CONVEYED TO
JEWELL TO THE SOUTHERLY LINE OF SAID SECTION; THENCE WEST
ALONG THE SOUTHERLY LINE OF SAID SECTION 150.00 FEET TO THE TRUE
___ _ _ _ _ _ . P_O_INT QF BEC~INNING. _
EXCEPTING THEREFROM, THAT PORTION OF SAID PROPERTY LYING
SQUTHERLY ~F TNE NORTHERLY LINE OF THAT PORTION DESCIZIBED IN
THAT CERTAIN FINAL ORDER OF CONDEMNATION DATED JANUARY 30,
1998, CASE NO. 782833 OF THE SUPERIOR COURT OF THE STATE OF
CALIFORNIA, A CERTIFIED COPY OF WHICH WAS RECORDED FEBRUARY 9,
1998 AS INSTRUMENT NO. 19980071981 OF OFFICIAL RECORDS.
-4-
20990~v12
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