6023ORDINANCE NO. - 6023.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
ANAHEIM (i) APPROVING SECOND AMENDED AND
RESTATED DEVELOPMENT AGREEMENT NO. 99-01 BY
AND BETWEEN THE CITY OF ANAHEIM AND ANAHEIM
GW, LLC, (ii) MAKING CERTAIN FINDINGS RELATED
THERETO, AND (iii) AUTHORIZING THE MAYOR TO
EXECUTE SAID AGREEMENT FOR AND ON BEHALF OF
THE CITY.
WHEREAS, Article 2.5 of Chapter 4 of Division 1 of Title 7 of the Government
Code of the State of California (hereinafter "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 (the "City"), as a charter city, has heretofore
enacted Ordinance No. 4377 (hereinafter "Enabling Ordinance') making the City subject to the
Statute; and
WHEREAS, pursuant to Section 65865 of the Statute, the City heretofore enacted
Resolution No. 82R-565 (hereinafter "Procedures Resolution') establishing procedures and
requirements for the consideration of development agreements upon receipt of an application;
and
WHEREAS, pursuant to Section 65864, et seq. of the Statute, the City and Pointe
Anaheim, LLC heretofore entered into that certain Development Agreement No. 99-01 dated as
of July 29, 1999 to vest certain project entitlements and further address the implementation of the
Pointe Anaheim Lifestyle, Retail and Entertainment Complex (the "GardenWalk Project,"
formerly known as the "Pointe Anaheim Project'); and
WHEREAS, pursuant to Section 65864, et seq. of the Statute and Ordinance No.
5808 of the Anaheim City Council, the City and Excel Pointe Anaheim, LLC, as successor -in -
interest to Pointe Anaheim, LLC, heretofore entered into that certain First Amended and
Restated Development Agreement No. 99-01 dated as of February 26, 2002, to amend and
restate and further address the implementation of the Anaheim GardenWalk Project; and
WHEREAS, pursuant to Section 65864, et seq. of the Statute and Ordinance No.
5953 of the City Council, the City and Anaheim GW, LLC, as successor -in -interest to Excel
Pointe Anaheim, LLC, heretofore entered into that certain Amendment No. 1 to First Amended
and Restated Development Agreement No. 99-01 dated as of December 1, 2004, to amend
subsection 1.43 of Section 1 (Definitions) to define the "Outside Initial Phase Commencement
Date" to mean February 26, 2006; and
WHEREAS, pursuant to Section 65864, et seq. of the Statute and Ordinance No.
6015 of the City Council, the City and Anaheim GW, LLC, as successor -in -interest to Excel
Pointe Anaheim, LLC, heretofore entered into that certain Amendment No. 2 to First Amended
and Restated Development Agreement No. 99-01 dated January 31, 2006, to amend subsection
1.43 of Section 1 (Definitions) to define the "Outside Initial Phase Commencement Date" to
mean February 26, 2007 (hereinafter jointly with the First Amended and Restated Development
Agreement, the "Current Development Agreement'); and
WHEREAS, the Current Development Agreement addresses development of an
irregularly-shaped area within the Anaheim Resort Area and The Disneyland Resort Specific
Plan No. 92-1 Area, consisting of several parcels totaling approximately 29.1 acres with
frontages of approximately 585 feet on the east side of Harbor Boulevard, 1,500 feet on the south
side of Disney Way, 1,185 feet on the west side of Clementine Street and 728 feet on the north
side of Katella Avenue, all of which area is more particularly described in the "Legal
Descriptions" which is attached hereto as Attachment "A" and incorporated herein; and
WHEREAS, pursuant to the procedures set forth in Chapter 18.93 of the Anaheim
Municipal Code, the City Council for the City of Anaheim heretofore adopted Ordinance No.
5377 amending the zoning map to reclassify certain real property described therein into The
Disneyland Resort Specific Plan No. 92-1 Zone subject to certain conditions as specified therein,
and Ordinance No. 5378 relating to establishment of Zoning and Development Standards for
Specific Plan No. 92-1 by the addition of Chapter 18.78 to said Code, as said Ordinances have
been amended from time to time; and
WHEREAS, on December 12, 2005, the Anaheim City Planning Commission did,
by its motion, duly initiated General Plan Amendment No. 2005-00440, Amendment No. 6 to
The Disneyland Resort Specific Plan and an amendment to Conditional Use Permit No. 4078
(including a waiver of minimum number of parking spaces) for the area of land legally described
as Area B in Attachment "A" attached hereto; and
WHEREAS, William Stone, as authorized agent for Anaheim GW, LLC,
submitted requests on January 3, 2006 for General Plan Amendment No. 2005-00440,
Amendment No. 6 to The Disneyland Resort Specific Plan No. 92-1 (including amendments to
the Land Use Plan, Public Facilities Plan, Design Plan, General Plan Consistency, Zoning and
Development Standards and Conditions of Approval), Amendment to Conditional Use Permit
No. 4078 with waiver of code requirements, a request for the City of Anaheim to enter into the
Second Amended and Restated Development Agreement No. 99-01 by and between the City of
Anaheim and Anaheim GW, LLC, Tentative Parcel Map No. 2002-205, and Final Site Plan No.
2006-00002 for the area of land legally described as Area A in Attachment "A" attached hereto.
Anaheim GW, LLC has also submitted a request to amend the Disposition and Development
Agreement by and between the City of Anaheim and Anaheim GW, LLC which will be
considered by the City Council concurrently with the above-described actions (the city -initiated
actions and the actions requested by Anaheim GW, LLC are hereinafter referred to collectively
as the "Proposed Project Actions"); and
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WHEREAS, the proposed changes relate to the mix and allocation of land uses,
zoning standards, phasing, project layout and modifications to project conditions of approval and
mitigation measures to provide for the development of 569,750 square feet of specialty retail,
restaurants, and entertainment, including a multiplex movie theater; 1,628 hotel rooms/suites
(including up to 500 vacation ownership units) and 278,817 square feet of hotel accessory uses; a
transportation center; and 4,800 parking spaces and 15 bus spaces; and
WHEREAS, the Anaheim City Planning Commission, did hold a public hearing
at,the Anaheim Civic Center, Council Chambers, 200 South Anaheim Boulevard in the City of
Anaheim, on March 6, 2006, at 2:30 p.m., notice of said public hearing having been duly given
as required by law and in accordance with the provisions of Chapter 18.60 of the Anaheim
Municipal Code to hear and consider evidence for and against the Proposed Project Actions and
to investigate and make findings and recommendations in connection therewith; and
WHEREAS, the Anaheim City Planning Commission has reviewed the Proposed
Project Actions, and did find and determine, by its Resolution No. PC2006-21, that the City
Council, based upon its independent review and consideration of the Second Addendum to the
previously -approved Pointe Anaheim Initial Study and Mitigated Negative Declaration and
Mitigation Monitoring Program No. 004a prepared in connection with the Proposed Project
Actions, and the requirements of the California Environmental Quality Act ("CEQA"), including
Section 21166 of the California Public Resources Code and Section 15162 of the CEQA
Guidelines, and unless additional or contrary information is received during the public meeting,
find and determine that the Second Addendum to the previously -approved Pointe Anaheim
Initial Study and Mitigated Negative Declaration together with Mitigation Monitoring Program
No. 004a are adequate to serve as the required environmental documentation for the Proposed
Project Actions and satisfy all of the requirements of CEQA, and that no further environmental
documentation need be prepared for the Proposed Project Actions; and
WHEREAS, the Planning Commission, by its Resolution No. PC2006-25, which
is incorporated herein by this reference, made certain findings that the applicant has
demonstrated eligibility to enter into the Second Amended and Restated Development
Agreement No. 99-01 and that the Second Amended and Restated Agreement No. 99-01 meets
the criteria set forth in the Procedures Resolution; and
WHEREAS, upon receipt of Resolution No. PC2006-25 and the Planning
Commission's request for review of its actions, summary of evidence, reports of findings and
recommendations of the City Planning Commission, the City Council did fix the 11th day of
April, 2006, as the time, and the City Council Chamber in the Civic Center as the place for a
public hearing on the Proposed Project Actions and did give notice thereof in the manner and as
provided by law; and
WHEREAS, a copy of the Second Amended and Restated Development
Agreement No. 99-01 has been provided to the City Council and is available in the City Clerk's
Office and is attached hereto as Attachment "B" and incorporated herein; and
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WHEREAS, on April 11, 2006, the City Council did hold a public hearing upon
the Proposed Project Actions, notice of which hearing was given in the manner required by law;
and
WHEREAS, the City Council did hold and conduct said noticed public hearing on
April 11, 2006 and did give all persons interested therein an opportunity to be heard and did
receive evidence and reports to consider the Proposed Project Actions; and
WHEREAS, pursuant to the provisions of CEQA, the City Council, as lead
agency for the Proposed Project Actions, by its motion, did find and determine, based upon its
independent review and consideration of the Second Addendum to the previously -approved
Pointe Anaheim Initial Study and Mitigated Negative Declaration and Mitigation Monitoring
Program No. 004a conducted pursuant to CEQA for the Proposed Project Actions, and the
requirements of CEQA, including Section 21166 of the California Public Resources Code and
Section 15162 of the CEQA Guidelines, and the evidence received at the public hearing, that the
Second Addendum to the previously -approved Pointe Anaheim Initial Study and Mitigated
Negative Declaration together with Mitigation Monitoring Program No. 004a are adequate to
serve as the required environmental documentation for the Proposed Project Actions and satisfy
all of the requirements of CEQA, and that no further environmental documentation need be
prepared for the Proposed Project Actions; and
WHEREAS, the applicant has demonstrated that it meets the eligibility
requirements of Section 1.3 of the Procedures Resolution to enter into the Second Amended and
Restated Development Agreement No. 99-01; and
WHEREAS, the City Council of the City of Anaheim, after due inspection,
investigation and study made by itself and in its behalf, and after due consideration of and based
upon all evidence and reports offered at said hearing, including the evidence presented at the
Planning Commission meeting and Planning Commission Resolution No. PC2006-25, does find
upon review of the land use aspects of the Second Amended and Restated Development
Agreement No. 99-01 that:
1. The Second Amended and Restated Development Agreement No. 99-01 is
consistent with the General Plan of the City of Anaheim, as amended by General Plan
Amendment No. 2005-00440 and The Disneyland Resort Specific Plan No. 92-1, as
amended by Amendment No. 6.
2. The Second Amended and Restated Development Agreement No. 99-01 is
compatible with the uses authorized mi and the regulations prescribed for The Disneyland
Resort Specific Plan No. 92-1, as amended by Amendment No. 6.
3. The Second Amended and Restated Development Agreement No. 99-01 is
compatible with the orderly development of property in the Anaheim Resort area
surrounding The Disneyland Resort Specific Plan No. 92-1.
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4. The Second Amended and Restated Development Agreement No. 99-01 is
not otherwise detrimental to the health, safety and general welfare of the citizens of
Anaheim.
5. The Second Amended and Restated Development Agreement No. 99-01
will have an overall positive effect on the health, safety and welfare of the residents of
and visitors to the City.
6. The Second Amended and Restated Development Agreement No. 99-01
constitutes a lawful, present exercise of the City's police power and authority under the
Statute, the Enabling Ordinance and the Procedures Resolution.
7. The Second Amended and Restated Development Agreement No. 99-01 is
entered into pursuant to and in compliance with its charter powers and the requirements of
Section 65867 of the Statute, the Enabling Ordinance and the Procedures Resolution.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF ANAHEIM
DOES ORDAIN AS FOLLOWS:
SECTION 1.
That Second Amended and Restated Development Agreement No. 99-01 be, and
the same is hereby, approved.
SECTION 2.
That the Mayor be, and is hereby, authorized to execute said Second Amended and
Restated Development Agreement No. 99-01 for and on behalf of the City.
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THE FOREGOING ORDINANCE was introduced at a regular meeting of the
City Council of the City of Anaheim held on the.1Jth day of A=x{ 1 , 2006, and
thereafter passed and adopted at a regular meeting of said City Council held on the .25LL day of
aril , 2006, by the following roll call vote:
AYES: Mayor .Pringles Council Members•S:Ldhu..Hernandez, .Gallowayg .Chavez
NOES: None
ABSENT:None
ABSTAIN: None
ATTEST:
Cr
CLERIC OF THt CITY OF ANAHEIM
61220.1\MGordon
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Cr
LM
Attachment "A"
Legal Descriptions
AREA A:
Melodyland Parcels:
19-1 'ITA 1 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.
ALSO EXCEPT THE NORTH 60.00 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 ORANGE, STATE OF CALIFORNIA, AS PER
MAP RECORDED IN BOOK 51, PAGE 10 OF MISCELLANEOUS MAPS, IN THE OFFICE
OF THE COUNTY REORDER 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.
ALSO EXCEPT THE SOUTH 360.00 FEET THEREOF.
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Hasenyager Parcel:
LOT 3 OF TRACT NO. 3330, IN THE CITY OF ANAHEIM, COUNTY OF ORANGE, STATE
OF CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 113, PAGES 21 AND 22
OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA.
Zaby's Parcel:
LOTS 1 AND 2 OF TRACT 3330, IN THE CITY OF ANAHEIM, COUNTY 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.
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 TRACT NO. 3330, IN THE CITY OF ANAHEIM, COUNTY 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:
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 10, 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 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 WEST 150 FEET OF THE SOUTH 360 FEET; ALSO EXCEPT
THEREFROM THE SOUTH 60 FEET INCLUDED WITHIN KATELLA AVENUE, 120 FEET
-8-
WIDE.
PARCEL 2:
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 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 FEET PARALLEL WITH THE SOUTH LINE OF SAID
SOUTHEAST QUARTER TO THE TRUE POINT OF BEGINNING; THENCE SOUTH
OOL176\f'Synftl"\sl l 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, 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, RANGE 10 WEST, IN THE CITY OF ANAHEIM, COUNTY OF ORANGE, STATE
OF CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 51, PAGE 10 OF
MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, 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 OF OFFICIAL RECORDS;
THENCE NORTH 00 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
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SOUTHERLY LINE OF SAID SECTION; THENCE WEST ALONG THE SOUTHERLY LINE
OF SAID SECTION 150.00 FEET TO THE TRUE POINT OF BEGINNING.
EXCEPTING THEREFROM, THAT PORTION OF SAID PROPERTY LYING SOUTHERLY
OF THE NORTHERLY LINE OF 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.
City Parcel:
THE NORTHERLY 280.35 FEET OF PARCEL 1, IN THE CITY OF ANAHEIM, COUNTY
OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A PARCEL MAP FILED IN
BOOK 55, PAGE 46 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER
OF SAID COUNTY.
AREA B:
Pyrovest Parcels:
PARCEL 1:
THE EAST 660.00 FEET OF THE WEST 720.00 FEET OF THE NORTH 585.00 FEET OF
THE SOUTH 1260 FEET 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 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.
EXCEPTING THEREFROM, THE FOLLOWING DESCRIBED PROPERTY:
BEGINNING AT A POINT SOUTH 00 13'22" EAST 15.03 FEET FROM THE NORTHWEST
CORNER OF THE ABOVE DESCRIBED PROPERTY SAID POINT BEING ON THE
EASTERLY LINE OF HARBOR BOULEVARD 120 FEET WIDE; THENCE SOUTH 0° 13'
22" EAST ALONG SAID EASTERLY LINE 100.08 FEET; THENCE NORTH 89° 54' 30"
EAST PARALLEL TO THE NORTHERLY LINE OF ABOVE DESCRIBED PARCEL 111.34
FEET; THENCE NORTH 0° 13' 22" WEST, PARALLEL TO THE EASTERLY LINE OF
HARBOR BOULEVARD 30.75 FEET; THENCE NORTH 89° 54' 38" EAST 38.66 FEET;
THENCE NORTH 00 13'22" WEST 84.36 FEET TO A POINT ON THE SOUTHERLY LINE
OF FREEDMAN WAY, 60.00 FEET WIDE; THENCE ALONG THE SOUTH LINE OF SAID
FREEDMAN WAY, SOUTH 890 54' 30" WEST 134.97 FEET TO THE BEGINNING OF A
CURVE CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 15.00 FEET;
THENCE WESTERLY AND SOUTHERLY ALONG SAID CURVE THROUGH A CENTRAL
ANGLE OF 900 07' 52" A LENGTH OF 23.60 FEET TO THE TRUE POINT OF BEGINNING
OF THIS DESCRIPTION.
PARCEL 2:
BEGINNING AT A POINT SOUTH 00 13' 22" EAST 15.03 FEET FROM THE NORTHWEST
CORNER OF THE ABOVE DESCRIBED PROPERTY SAID POINT BEING ON THE
EASTERLY LINE OF HARBOR BOULEVARD 120 FEET WIDE; THENCE SOUTH 0° 13'
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22" EAST ALONG SAID EASTERLY LINE 100.08 FEET; THENCE NORTH 89° 54'30"
EAST PARALLEL TO THE NORTHERLY LINE OF ABOVE DESCRIBED PARCEL 111.34
FEET; THENCE NORTH 0° 13'22" WEST, PARALLEL TO THE EASTERLY LINE OF
HARBOR BOULEVARD 30.75 FEET; THENCE NORTH 89° 54'38" EAST 38.66 FEET;
THENCE NORTH 00 13'22" WEST 84.36 FEET TO A POINT ON THE SOUTHERLY LINE
OF FREEDMAN WAY, 60.00 FEET WIDE; THENCE ALONG THE SOUTH LINE OF SAID
FREEDMAN WAY, SOUTH 890 54'30" WEST 134.97 FEET TO THE BEGINNING OF A
CURVE CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 15.00 FEET;
THENCE WESTERLY AND SOUTHERLY ALONG SAID CURVE THROUGH A CENTRAL
ANGLE OF 900 07' 52" A LENGTH OF 23.60 FEET TO THE TRUE POINT OF BEGINNING
OF THIS DESCRIPTION.
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Attachment "B"
Second Amended and Restated Development Agreement No. 99-01
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WHEN RECORDED RETURN TO:
City Council
City of Anaheim
c/o City Clerk
200 S. Anaheim Blvd.
Anaheim. CA
SECOND AMENDED AND RESTATED DEVELOPMENT AGREEMENT NO. 99-1
(also known as "Amendment No. 3 to the First Amended and
Restated Development Agreement No. 99-01')
BETWEEN
THE CITY OF ANAHEIM
I-\ Nis
ANAHEIM GW, LLC
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TABLE OF CONTENTS
Page
1. DEFINITIONS..........................................................................................................................3
2.
PROPERTY, PURPOSE AND INTENT................................................................................10
2.1
Property Description..........................................................................................................10
2.2
City Objectives..................................................................................................................11
2.3
Developer Objectives........................................................................................................11
2.4
Representation of Fee Simple or Equitable Ownership....................................................11
2.5
Mutual Objectives.............................................................................................................11
3.
AGREEMENT AND ASSURANCES....................................................................................11
3.1
Agreement and Assurance on the Part of Developer.........................................................11
3.1.1 Development Assurances......................................................................................
11
3.1.2 Effect of Delayed Performance.............................................................................12
3.1.3 Landscaping and Lighting District........................................................................12
3.2
Agreement and Assurances on the Part of the City...........................................................12
3.2.1 Entitlement to Development.................................................................................12
3.2.2 Changes in Applicable Rules................................................................................12
3.2.3 Agreed Changes and Other Reserved Powers......................................................13
3.2.4 Subsequent Development......................................................................................13
3.2.5 Effective Development Standards.........................................................................13
3.2.6 Timing, Sequencing and Phasing of Development...............................................13
3.2.7 Impact Fees; Credit for Developer Installed Facilities.........................................14
3.2.8 Condominium Hotel........................................:....................................................14
3.3
Processing Fees, Extraordinary Processing Consultant, Charges and Environmental
Review...............................................................................................................................14
3.3.1 Processing Fees and Charges................................................................................14
3.3.2 Extraordinary Processing Consultant....................................................................14
3.3.3 Environmental Review..........................................................................................14
4. DEVELOPMENT PLAN........................................................................................................14
4.1 Right to Develop Property .................................................................................................14
4.2 Phased Development.........................................................................................................14
ANNUAL REVIEW; REIMBURSEMENT; DEFAULT; TERMINATION, AMENDMENT
OR MODIFICATION; MANDAMUS; SPECIFIC PERFORMANCE..................................14
5.1 Annual Review..................................................................................................................14
5.2 Reimbursement of Costs...................................................................................................15
5.3 Default by Developer........................................................................................................15
5.3.1 Default..................................................................................................................15
5.3.2 Notice of Default..................................................................................................15
5.3.3 Termination for Failure to Cure Default...............................................................15
5.3.4 Specific Performance............................................................................................15
5.4 Default by City..................................................................................................................16
5.4.1 Notice of Default..................................................................................................16
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5.4.2 Specific Performance and Mandamus..................................................................16
6. PUBLIC BENEFITS...............................................................................................................16
6.1 Removal of Blight.............................................................................................................16
6.2 Net Increase in Transient Occupancy Tax.........................................................................17
6.3 Increase in Retail Sales Taxes...........................................................................................17
6.4 Increase in Property Taxes................................................................................................17
6.5 Resort Area Traffic Improvements....................................................................................17
6.6 Police Substation...............................................................................................................17
7. GENERAL PROVISIONS......................................................................................................17
7.1 Date Agreement Becomes Effective.................................................................................17
7.2 Term..................................................................................................................................17
7.2.1 Basic Term............................................................................................................17
7.2.2 Early Termination of Agreement..........................................................................17
7.3 Force Majeure; Extension of Time of Performance..........................................................17
7.4 Applicable Law.................................................................................................................18
7.5 Amendments......................................................................................................................18
7.6 Assignment........................................................................................................................18
7.7 Mortgage Rights................................................................................................................19
7.7.1 Encumbrances on the Anaheim GardenWalk Property and this Agreement ........
19
7.7.2 Mortgagee Protection............................................................................................19
7.7.3 Mortgagee Not Obligated.....................................................................................19
7.7.4 Notice of Default to Mortgagee; Right of Mortgagee to Cure ..............................
20
7.7.5 Bankruptcy............................................................................................................20
7.7.6 Termination Subject to Mortgagee Rights............................................................20
7.7.7 No Cancellation....................................................................................................20
7.7.8 New Agreement Upon
Default............................................................20
7.7.9 Separate Agreement..............................................................................................21
7.7.10 Material Notices....................................................................................................21
7.7.11 Mortgagee Right to Assign...................................................................................22
7.7.12 Conflicts with Disposition and Development Agreement....................................22
7.8 Covenants..........................................................................................................................22
7.9 Implementation..................................................................................................................
22
7.10 Relationship of the Parties.................................................................................................22
7.11 Cooperation in the Event of Third Party Litigation...........................................................22
7.12 Notices...............................................................................................................................23
7.13 Recordation.......................................................................................................................23
7.14 Developer Hold Harmless.................................................................................................23
7.15 Insurance...........................................................................................................................24
7.16 Successors and Assigns.....................................................................................................24
7.17 Severability........................................................................................................................24
7.18 Time of the Essence..........................................................................................................24
7.19 Waiver...............................................................................................................................24
7.20 Third Party Beneficiaries...................................................................................................24
7.21 Expedited Processing........................................................................................................25
7.22 Requests for Payment........................................................................................................25
7.23 Entire Agreement..............................................................................................................25
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7.24 Conflict of Laws................................................................................................................25
7.25 Legal Advice; Neutral Interpretation; Headings and Table of Contents ........................... 25
7.26 Counterparts......................................................................................................................25
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SECOND AMENDED AND RESTATED
DEVELOPMENT AGREEMENT NO. 99-01
BY AND BETWEEN
THE CITY OF ANAHEIM AND
ANAHEIM GW, LLC
This Second Amended and Restated Development Agreement No. 99-01 ("Agreement") is
made and entered into as of this 11th day of April 2006, 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 Anaheim GW, a Delaware limited liability company
("Developer"), pursuant to the authority set forth in section 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 18.04.120 of the
Anaheim Municipal Code (the "Enabling Ordinance'), and the Development Agreement Act
implementing procedures adopted by the City in Resolution No. 82R-565 (the "Procedures
Resolution"). This Agreement amends and restates in its entirety Development Agreement
No. 99-01 by and between the City of Anaheim and Excel Pointe Anaheim, LLC, (the "Original
Developer") dated as of July 29, 1999, as amended and restated by the First Amended and Restated
Development Agreement No. 99-01 dated February 26, 2002, as amended by Amendment No. 1 to
First Amended and Restated Development Agreement dated December 1, 2004 and further amended
by Amendment No. 2 to First Amended and Restated Development Agreement dated December 1,
2005 (collectively the "Development Agreement, as Amended"). The City consented to the
assignment and assumption of the Development Agreement, as Amended from Original Developer to
Developer pursuant to Amendment No. 2. The definitions contained in Section 1 shall apply to the
entire Agreement, including the RECITALS.
RECITALS
A. Developer has proposed development of the Project in two (2) Phases on the
Anaheim GardenWalk Property depicted as Area A and Area B on the Site Map (Exhibit A to this
Agreement). Area A will include Retail No. 1, Parking Structure No. 1, Vacation Ownership Resort
No. 1, Hotel No. 1, Hotel No. 2, and Hotel No. 3, as shown on the Site Map. Area B will include
Hotel No. 4, Retail Uses No. 2, Vacation Ownership Resort No. 2 and Parking Structure No. 2, as
shown on the Site Map.
B. The City and Developer recognize that development of the Project will create
significant opportunities for economic growth in the City and the region; and
C. The Project will provide new hotels, retail and entertainment uses in The Disneyland
Resort Specific Plan Geographic Area which will provide new General Fund revenues intended to
offset incremental City costs associated with such uses; and
D. 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
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Plan, Anaheim Resort Specific Plan and Hotel Circle Specific Plan geographic areas, as well as
provide infrastructure, parking and other public facilities needed to support the Project; and
E. 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;
F. 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 or
burdened with fees, burdens and exactions not otherwise permitted by this Agreement; and
G. Developer also recognizes and agrees that in extending these benefits to Developer,
the City must retain the Reserved Powers; and
H. 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, in connection therewith, 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; On June 22, 1999, the City Council, following a noticed public hearing,
approved Mitigated Negative Declaration/Mitigation Monitoring Plan No. 004; On July 13, 1999, the
City Council, following a noticed public hearing, approved General Plan Amendment No. 359;
Amendment No.4 to the Disneyland Resort Specific Plan No. 92-1; Conditional Use Permit
No. 4078; Amendment to the Anaheim Resort Public Realm Landscape Program; and Development
Agreement No. 99-01; On February 26, 2002, the City Council, following a noticed public hearing,
approved the Addendum to the Pointe Anaheim Mitigated Negative Declaration/Modified Mitigation
Monitoring Plan No. 004; General Plan Amendment No. 393; Amendment No. 5 to The Disneyland
Resort Specific Plan No. 92-1; Amendment to Conditional Use Permit No. 4078; Amendment No. 3
to The Anaheim Resort Public Realm Landscape Program; and the First Amended and Restated
Development Agreement No. 99-1. The entitlements and environmental document described in this
RECITAL H are hereinafter referred to as the "Prior Approvals"; and
I. Developer has proposed to amend the Prior Approvals to reflect the revised land uses,
which uses are shown on the Second Addendum to the Pointe Anaheim Initial Study and Mitigated
Negative Declaration/Mitigation Monitoring Program No. 004a ("Second Addendum"), which uses
will be constructed in up to two (2) Phases on those portions of the Anaheim GardenWalk Property
designated as Area A and Area B; and
J. On April 11, 2006, following a noticed public hearing, the City Council took the
following actions to amend the above referenced Prior Approvals, which Prior Approvals, together
with the following entitlements and environmental documents, are hereinafter referred to as the
"Existing Approvals:
(1) Determined that the Second Addendum, together with prior environmental
documentation reviewed by the City Council, are adequate to serve as the required environmental
documentation for the Project;
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(2) Approved General Plan Amendment No. 2005-00440;
(3) Adopted Amendment No. 6 to the Disneyland Resort Specific Plan No. 92-1;
(4) Amended Conditional Permit No. 4078;
(5) Approved Tentative Parcel Map No. 2002-205; and
(6) Approved Final Site Plan No. 2006-00002.
K. City and Developer desire to enter into this Agreement in order to assure
development of the Anaheim GardenWalk Property in accordance with the Existing Approvals and
provide for vesting of same for the Terni of the Agreement, to assure the City of installation of the
public infrastructure, including public parking facilities, amenities and design features of the Project
in accordance herewith and as described in the Existing Approvals; and
L. On March 6, 2006, the Planning Commission, held a duly noticed public hearing
regarding this Agreement and environmental documentation related thereto, and at the conclusion of
such hearing, and after consideration of evidence and testimony submitted by City staff, the
Developer and all interested parties, adopted a Resolution recommending that the City Council
approve the Agreement; and
M. The City hereby finds that this Agreement and the Existing Approvals are consistent
with the City's General Plan and the Disneyland Resort Specific Plan as amended, and that the
Second Addendum to the Pointe Anaheim Initial Study and Mitigated Negative Declaration satisfies
all requirements of the California Environmental Quality Act and the State CEQA Guidelines with
respect to this Agreement and the Project; and
N. On April 11, 2006, the City Council held a duly noticed public 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, introduced Ordinance No. _ approving this Agreement on April 11, 2006
and adopted Ordinance No. _ on April 25, 2006; 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:
1. DEFINITIONS.
1.1 "Addendum" means the Addendum to the Pointe Anaheim Initial Study and
Mitigated Negative Declaration mitigation monitoring plan No. 004 dated October 29, 2001, as
revised February 21, 2002.
1.2 "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.
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1.3 "Agency" means the Anaheim Redevelopment Agency.
1.4 "AMC" means the Anaheim Municipal Code.
1.5 "Anaheim GW, LLC" is a Delaware limited liability company the members
of which are PCCP SG Anaheim, LLC, a Delaware limited liability company and Anaheim
Development, LLC, a Nevada limited liability company.
1.6 "Anaheim GardenWalk Overlay" means those regulations and guidelines
established by Amendment No. 4, Amendment No. 5 and Amendment No. 6 to The Disneyland
Resort Specific Plan which provide for the development of the Project.
1.7 "Anaheim GardenWalk Property' means that real property owned in fee,
equitably owned, under Lease or option by Developer, or an Affiliate of Developer, within the
geographic area encompassed by the Anaheim GardenWalk Overlay together with any additional
property acquired in fee or by Lease by Developer within the Anaheim GardenWalk Overlay
geographic area following the Effective Date and annexed to the Anaheim GardenWalk Property in
accordance with the provisions of Section 2.1.
1.8 "Anaheim Resort" means the area of approximately 1,078 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.
1.9 "Anaheim Resort Specific Plan" means the Anaheim Resort Specific Plan
No. 92-2, as amended from time to time by the City.
1.10 "Annual Review" means the annual review process as described in Section 5
of this Agreement.
1.11 "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 1.11 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.
1.12 "Approved Plans" means the preliminary conceptual design and configuration
of the Project, including elevations and renderings approved by the City Council on April 11, 2006
and contained in Exhibit Nos. 1 through 12, inclusive, of Conditional Use Permit No. 4078, as
amended. Where such plans conflict with referenced design documents required by the Disposition
and Development Agreement ("DDA"), the DDA shall control.
1.13 "Area A" or "Area A Property" means the property shown on the Site Map as
Area A.
1.14 "Area B" or "Area B Property" means the property shown on the Site Map as
Area B.
1.15 "CEQA" means the California 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.
1.16 "City Agency" means each and every agency, department, board,
Commission, authority, employee, and/or official acting under the authority of the City, including
without limitation, the City Council and the Planning Commission, but excluding the Agency.
1.17 "City Attorney" means the City Attorney of the City.
1.18 "City Council" means the City Council of the City.
1.19 "City Manager" means the City Manager of the City.
1.20 "Commencement of Construction" or "Commence(s) Construction" means
commencing vertical development after the completion of foundations. Commencement of
Construction shall not be deemed to have occurred unless such construction is diligently completed
within the .applicable Construction Period.
1.21 "Completion of Construction" or "Complete(s) Construction" means the date
on which the Project Architect certifies completion of the respective Project Element.
1.22 "Conditions of Approval" means those conditions of approval for the Project
adopted in connection with the granting of the Existing Approvals.
1.23 "Condominium Hotel" means a facility meeting the definition of a Hotel with
ownership structured as a condominium (nonresidential), cooperative or other ownership/financing
arrangement as determined by the Planning Director to be similar in function and operation to a
condominium or cooperative, but shall not include Vacation Ownership Resort Units; and shall be
deed restricted to limit owner occupancy to a maximum of two (2) weeks per year.
1.24 "DDA" means the Disposition and Development Agreement entered into by
and between the City and Original Developer dated January 2, 2002, and amended on December 14,
2004 and January 31, 2006 and as may be amended from time to time hereafter.
1.25 "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.
1.26 "Effective Date" means the date on which the City executes this Agreement.
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1.27 "Existing Approvals" means those approvals described in Recital J.
1.28 "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.
1.29 "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.
1.30 "General Plan" means the General Plan of the City.
1.31 "Hotel' means any structure or portion thereof, which is occupied by persons
for. lodging or sleeping purposes for periods of less than thirty consecutive days including, without
limitation, any hotel, bachelor hotel, motel, Condominium Hotel, lodging house, rooming house, bed
and breakfast inn, apartment house, dormitory, Vacation Ownership Resort, public or private club,
mobilehome or house trailer at a fixed location, or other similar structure or portion thereof, and any
space, lot, area or site in any trailer court, camp, park, or lot which is occupied or intended or
designed for occupancy by a tent, trailer, recreational vehicle, mobilehome, motorhome, or other
similar conveyance, where such structure, space, lot, area or site is occupied by persons for lodging
or sleeping purposes for periods of less than thirty consecutive days.
1.32 "Hotel No. 1" means that certain Hotel containing approximately 300 Hotel
Rooms to be constructed by the Developer in accordance with the Existing Approvals in the location
shown on the Site Map. Hotel No. 1 shall not be a Vacation Ownership Resort.
1.33 "Hotel No. 2" means that certain Hotel containing approximately 200 Hotel
Rooms to be constructed by the Developer in accordance with the Existing Approvals in the location
shown on the Site Map. Hotel No. 2 shall not be a Vacation Ownership Resort.
1.34 "Hotel No. 3" means that certain Hotel containing approximately 366 Hotel
Rooms to be constructed by the Developer in accordance with the Existing Approvals in the location
shown on the Site Map. Hotel No. 3 shall not be a Vacation Ownership Resort.
1.35 "Hotel No. 4" means that certain Hotel containing approximately 262 Hotel
Rooms, to be constructed by the Developer in accordance with the Existing Approvals in the location
shown on the Site Map.
1.36 "Hotel Room" means a Hotel guest room or suite as defined in
Section 18.114.030.0602 or 18.114.030.0603 of The Disneyland Resort Specific Plan as of the
Effective Date.
1.37 "Impact Fees" means impact fees, linkage fees, exactions, fair share charges
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.
1.38 "Initial Phase" means the development of Area A.
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1.39 "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).
1.40 "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 Insurance 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
branch 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, provided such trust is listed on either
the American Stock Exchange or the New York Stock Exchange.
1.41 "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.
1.42 "Lease" means a ground lease having a base term of thirty-five (35) years or
longer, not including optional terms or extensions.
1.43 "Legal Description" means the legal description of the Anaheim GardenWalk
Property attached hereto as Exhibit B and incorporated herein by reference, separately describing the
Area A Property and the Area B Property.
1.44 "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.
1.45 "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, develop and construct the Project and the
Mitigation Measures, including without limitation, building permits, and other similar permits and
approvals.
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1.46 "Mitigation Measures" means those Mitigation Measures set forth in the
Mitigated Negative Declaration and Mitigation Monitoring Plan No. 004a, as amended, adopted and
addended by the City on February 26, 2002 and April 11, 2006.
1.47 "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, the
Addendum thereto, approved by the City on February 26, 2002, by City Council minute order and the
Second Addendum thereto, approved by the City on April 11, 2006, by City Council Resolution
No.
1.48 "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.
1.49 "Mortgagee" means one or more Institutional Lenders holding a beneficial
interest and secured position under any Mortgage which have notified City, in writing, of its request
for notice under the provision of Section 7.7 hereof.
1.50 "Open(s) for Business" means the day on which the specific Project Element
opens for business to the general public or, in the case of Retail No. 1, means the day on which sixty
five percent of Retail No. 1 (based on square footage) opens for business to the general public.
1.51 "Outside Initial Phase Commencement Date" means February 26, 2007.
1.52 "Parking Structure No. 1" means approximately 3,050 parking spaces to be
constructed by the Developer in accordance with the Existing Approvals in the location shown on the
Site Map.
1.53 "Parking Structure No. 2" means approximately 1600 parking spaces to be
constructed by the Developer in accordance with the Existing Approvals in the location shown on the
Site Map.
1.54 "Parties" means collectively Developer and the City.
1.55 "Party" means any one of Developer or the City.
1.56 "Phases" or "Phasing" means the development of Area A as the Initial Phase
and the development of Area B as the second phase.
1.57 "Plaintiff' means any party seeking relief or compensation through
Litigation, whether as plaintiff, petitioner, cross-complainant or otherwise.
1.58 "Planning Commission" means the Planning Commission of the City.
1.59 ' "Planning Director" means the Planning Director of the City.
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1.60 "Processing Fees and Charges" means all processing fees and charges
required 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 permits. Processing Fees and Charges shall not include Impact Fees.
1.61 "Project" means the mixed use, multi -phased Project and those uses identified
and described in the Existing Approvals and as shown on the Site Map.
1.62 "Project Architect" means the architect designated by the Developer as
responsible for the design and construction supervision of each Project Element.
1.63 "Project Element(s)" 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 and as shown on the Site Map as Retail No. 1, Retail No. 2,
Parking Structure No. 1, Parking Structure No. 2, Vacation Ownership Resort No. 1, Hotel No. 1,
Hotel No. 2, Hotel No. 3 and Hotel No. 4.
1.64 "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, ordinances 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 court 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 such districts pursuant to all applicable laws; or (6) are Processing
Fees and Charges or City-wide fees or charges of general applicability.
1.65 "Retail No. 1" means those specialty retail, dining and entertainment uses
(including a cinema) comprising approximately 439,600 square feet of gross building area to be
constructed by the Developer pursuant to the Existing Approvals within Area A, as shown on the Site
Map.
1.66 "Retail No. 2" means those specialty retail, dining and entertainment uses
comprising approximately 130,150 square feet of gross building area to be constructed by the
Developer pursuant to the Existing Approvals within Area B as shown on the Site Map.
1.67 "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.
Agreement.
1.68 "Section" means the indicated section or subsection number of this
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1.69 "Second Addendum" means the Second Addendum W the Pointe Anaheim
Initial Study and Mitigated Negative Declaration/Mitigation Monitoring Program No. 004a.
1.70 "Site Map" means the map of the Anaheim GardenWalk Property depicting
Area A, Area B and the Project Elements which is attached thereto as Exhibit A and incorporated
herein by reference.
1.71 "Term" means the period of time during which this Agreement shall be in
effect and shall bind the City and Developer as provided in Section 7.2 of this Agreement.
1.72 "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.
1.73 "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 referring to the Uniform 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).
1.74 "Vacation Ownership Resort" means timeshare facility in which a person or
entity receives the right in perpetuity, for life or for a specific period of time, to the recurrent,
exclusive use or occupancy of a lot, parcel, unit, space, or portion of real property for a period of
time which has been or will be allocated from the use or occupancy periods into which the facility
has been divided. A Vacation Ownership Resort interest may be coupled with an estate in real
property, or it may entail a license, contract, membership, or other right of occupancy not coupled
with an estate in the real property.
1.75 "Vacation Ownership Resort No. 1" means a Vacation Ownership Resort
with approximately 400 Vacation Ownership Resort Units to be constructed by the Developer in
accordance with the Existing Approvals within Area A as shown on the Site Map.
1.76 "Vacation Ownership Resort No. 2" means a Vacation Ownership Resort
with approximately 100 Vacation Ownership Resort Units to be constructed by the Developer in
accordance with the Existing Approvals within Area B as shown on the Site Map.
1.77 "Vacation Ownership Resort Unit" means a Hotel Room within a Vacation
Ownership Resort.
2. PROPERTY, PURPOSE AND INTENT.
2.1 Property Description. The Property comprising the Anaheim GardenWalk
Property is shown on the Site Map and described in the Legal Description. Developer does not
presently own Area B. To the extent permitted by the Development Agreement Act, Developer shall
have a right to include the Area B Property within the terms of this Agreement at such time as
Developer shall provide to the City (i) notice of the purchase, lease or other interest in Area B by
Developer or an Affiliate; (ii) evidence of Developer's or Affiliate's ownership, lease or other
interest in such additional property; and (iii) record in the Official Records of the County of Orange,
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Declaration of Annexation which provides that Area B is now subject to the Agreement effective
upon compliance with the requirements of this Section 2.1.
2.2 City Objectives. The City desires that the Anaheim GardenWalk 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, Dining and
Entertainment 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 Anaheim Resort.
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 new 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, Lease or option to
purchase or Lease the Area A 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 Parties believe that
such an orderly, coordinated and phased development 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 assemblage, increased transient
occupancy 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
Construction, Complete Construction and Open for Business each Project Element 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 sequencing for the
development of the Initial Phase:
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(a) The Developer will Commence Construction of Retail No. 1
and Parking Structure No. 1 prior to the Outside Initial Phase
Commencement Date.
(b) The Developer shall Complete Construction and Open for
Business Retail No. 1 and Parking Structure No. 1 within
two years after Commencement of Construction of the
Parking Structure No. 1 and Retail No. 1.
(c) The Developer shall Commence Construction of Hotel No. 1,
Hotel No. 2, or Hotel No. 3 within forty-eight (48) months
from the Effective Date of this Agreement and shall Complete
Construction and Open for Business no later than twenty-four
(24) months after Commencement of Construction of that
Hotel.
(d) The Developer shall Commence Construction of each of the
remaining Project Elements within Area A (i.e. the two
remaining Hotels and Vacation Ownership No. 1) at twenty-
four (24) month intervals after Commencement of
Construction of the immediately prior Project Element and
Complete Construction and Open for Business no later than
twenty-four (24) months after Commencement of
Construction of that Project Element.
3.1.2 Effect of Delayed Performance. If Developer shall fail to
timely Commence Construction and Open for Business or Complete Construction of the
applicable Project Element as described in 3.1.1, after having provided Developer with written
notice and an opportunity to cure in the manner set forth in Section 5.3, the City may terminate
this Agreement and the DDA with respect to the Project Element(s) for which construction has
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
cant' out the covenants and conditions set forth in this Agreement, the City hereby agrees during the
term as follows:
3.2.1 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.
3.2.2 Changes in Applicable Rules.
3.2.2.1 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
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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 or more provisions of this Agreement, such provisions shall be modified or suspended as
may be necessary to comply with such state or federal laws or regulations.
3.2.2.4 Special Taxes and 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 development or construction of the Project on all or any part of the Anaheim
GardenWalk Property or the implementation or construction of the Mitigation Measures, City
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agrees, to the extent permitted by law, that such ordinances, resolution or other measure shall
not apply to the Project, the Anaheim GardenWalk 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.
3.2.7 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 Condominium Hotel. The City hereby consents to allowing
any of the Hotels to be Condominium Hotels subject to the conditions of approach adopted by
the City Council for Conditional Use Permit No. 4078 as amended, per City Council
Resolution No.
3.3 Processing Fees, Extraordinary Processing Consultant, Charges and
Environmental Review.
3.3.1 Processing Fees and Charges. Developer -shall pay all
Processing 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.
environmental review of the Project and has adopted
intends that Ministerial Permits and Approvals are not
further environmental review pursuant to CEQA.
4. DEVELOPMENT PLAN.
The City has conducted extensive
the Mitigation Measures. The City
furactions subject to requirements for
4.1 Right to Develop Property. Subject to the terms of this Agreement,
Developer shall have a vested right to develop the Anaheim GardenWalk Property in accordance
with the Existing Approvals.
4.2 Phased Development. Area A, the Initial Phase, will be developed in the
sequence described in Section 3. 1.1 and as set forth in the Existing Approvals. If and when Area B
is developed will be determined in the sole and absolute discretion of Developer based on market
conditions and Developer's ability to acquire the Area B Property.
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
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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 pay to City in advance, the
Application Fee for Annual Review required by the City's Procedures Resolution on each occasion
that Developer submits its evidence for the Annual Review. Developer shall also reimburse the City
for its actual costs, reasonably and necessarily incurred 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.
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 performed in a timely manner, the City may pursue only those remedies
expressly provided for in this Agreement; provided, however, that the City's right to compel
specific performance of the 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 Sections 3.1.2 and 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
determines 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 7.2 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 Commence Construction or Complete Construction and Open For
Business any Project Element by any required completion date. 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 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
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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 or make safe and secure any uncompleted improvements located on the
Anaheim GardenWalk 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 Default by City.
5.4.1 Notice of Default. Upon receipt of written notice of default
from Developer, the City shall promptly commence to cure 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.
5.4.2 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 thereof. 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 Removal of Blight. Development of the Project will result in use of a number
of currently 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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6.2 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
within the Anaheim GardenWalk Property.
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 A 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 the
uses in Area A, the space for said substation shall be conveyed to the City in accordance with the
terms set forth in the Mitigation Measures. These terms and all other relevant provisions governing
this occupancy are set forth in the DDA.
7. GENERAL PROVISIONS.
7.1 Date Agreement Becomes Effective. This Agreement shall become effective
on the Effective Date.
7.2 Term.
7.2.1 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.
7.2.2 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; (iii) by City if Developer fails to
Commence Construction or, having Commenced Construction, has failed to Complete
Construction or Open for Business the applicable Project Element within the times described in
Section 3.1.1.; or (iv) by the Developer in its sole discretion, prior to the Outside Initial Phase
Commencement Date, in any such 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
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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 and the specific obligation hereunder 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 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"); enactment of conflicting state or federal laws
or regulations ("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 Governmental
Restrictions, Conflicting Laws and/or Judicial Decisions causing delay beyond 24 months after
commencement of same and 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 laws 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
actions, and the Orange County Division of the Central District of California for any federal actions.
7.5 Amendments. This Agreement 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 sequencing of the Initial Phase in accordance with the time
set forth in section 3.1.1. In furtherance of these objectives, the Parties agree that except as otherwise
provided in this Section 7.6, Developer shall not be entitled to transfer any of the Anaheim
GardenWalk 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);
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and (iv) has expressly assumed all of Developer's obligations hereunder and such assignment is
being undertaken in accordance with this Section 7.6. Notwithstanding the foregoing, Developer
shall have the right to lease space to specialty retail, dining and entertainment tenants, and assign,
lease, transfer, convey or hypothecate all or any partial interest in all or any portion of the Anaheim
GardenWalk Property to any Affiliate without the consent of the City. Any such assignment, lease,
transfer, conveyance, or hypothecation, except a lease to specialty retail, dinning and/or
entertainment tenants 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 set forth in this Agreement which apply
to the Anaheim GardenWalk Property, the Project, the Project Elements or interest therein being
assigned.
7.7 Mortgage Rights.
7.7.1 Encumbrances on the Anaheim GardenWalk 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 Anaheim
GardenWalk 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 Anaheim GardenWalk 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 within 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 who takes title to the Anaheim GardenWalk Property or any portion thereof, or to
this Agreement, shall also be entitled to the rights and obligations arising under this
Agreement.
7.7.3 Mortgagee Not Obligated. Notwithstanding the provisions of
this Section 7.7, a Mortgagee will not have any rights, obligations or duties 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, unless such Mortgagee
expressly assumes the rights and obligations of the Developer and 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
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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 Anaheim GardenWalk 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 the 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 Anaheim GardenWalk 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 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 or 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 may 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, vis a vis the Mortgagee, as a result of the occurrence of any
default shall be subject to, and conditioned upon, the City having first given to each Mortgagee
written notice of the default 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 proceedings in the nature thereof as set forth in Section 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 without a minimum of ninety (90)
days prior written notice to each Mortgagee who has requested such notice.
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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 will
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 which 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
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 and City, 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 and the parties hereby consent to intervention in such Litigation by the
Mortgagee. In the event any Mortgagee shall not elect to intervene or become a party to the
proceedings, such Mortgagee shall be provided notice and a copy of any award or decision
made in connection therewith.
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7.7.11 Mortgagee Right to Assign. Foreclosure of any Mortgage, or
any sale thereunder, 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 this function, and
otherwise conforms to the requirements of Section 7.6 hereof.
7.7.12 Conflicts with Disposition and Development Agreement. In
the event of a conflict between the terms of this Section 7.7 and the express terms of the DDA,
the DDA shall prevail.
7.8 Covenants. The provisions of this Agreement shall constitute covenants
which run with the land comprising the Anaheim GardenWalk 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 and 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 the existence of
any form of joint venture or partnership 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 properly performing hereunder, the
Parties hereby agree to affirmatively cooperate in defending said action; provided, however, that
Developer agrees to and shall defend, indemnify, save and hold the City and Agency and their
respective elected and appointed representatives, boards, commissions, offices, agents, employees,
consultants and attorney's (collectively, the "City" in this section 7.11) 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 and provided
that Developer demonstrates to City, to City's reasonable satisfaction, that Developer has the
financial wherewithal to indemnify the City hereunder at the time of any such Litigation, Developer
shall at all times retain final authority and control over all documents to be filed in such Litigation
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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
shall be deemed to have been delivered and received on the first to occur of (i) actual receipt by 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 deposited in the United 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 below:
If to City:
City Clerk
City of Anaheim
200 South Anaheim Blvd.
Anaheim, CA 92803
If to Developer:
William J. Stone, Senior Vice President
Excel Realty Holdings
17140 Bernardo Center Dr.
Suite 310
San Diego, CA 92128
With Copies to:
City Attorney, City of Anaheim
City of Anaheim
200 South Anaheim Blvd., Suite 356
Anaheim, CA 92803
With Copies to:
Barry Bell
Attorney at Law
4350 Executive Dr.
Suite 255
San Diego, Ca92121
Hal Pohl
Pacific Coast Capital Partners
222 N. Sepulveda
Suite 222
El Segundo, CA 90245
7.13 Recordation. The City's Clerk shall record a copy of this Agreement with the
Registrar -Recorder of Orange County within ten (10) business days following the later to occur of (i)
execution by both parties or (ii) Ordinance No. becoming effective. To the extent that Anaheim
GardenWalk 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 Agency, and their respective elected and appointed
representatives, boards, commissions, officers, agents, employees, consultants and attorneys
(collectively, the "City" in this Section 7.14), from any and all claims, costs, and liability of any kind
which may arise, directly or indirectly, from Developer or Developer's contractors, subcontractors,
-23-
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 Developer shall hold the City harmless and/or defend it to the
extent 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
Developer in the defense of any matter in which Developer is defending 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 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 Third Party Beneficiaries. The Agency is hereby made a third party
beneficiary to this Agreement. Except as to the Agency, there are no other 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 and the Agency.
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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 the City pursuant to this Agreement. Developer 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 Anaheim
GardenWalk 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 hereof. 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 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.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date
first written below.
Dated:
ATTEST:
CITY
CITY OF ANAHEIM,
a municipal corporation and charter city
BY:
CURT L. PRINGLE, Mayor
SHERYLL SCHROEDER, CITY CLERK
LM
SHERYLL SCHROEDER
APPROVED AS TO FORM:
JACK L. WHITE, CITY ATTORNEY
0
JOHN E. WOODHEAD IV
Assistant City Attorney
DEVELOPER:
ANAHEIM GW, LLC, a Delaware limited liability company
By: PCCP SG Anaheim, LLC, a Delaware limited liability
company, Managing Member of Anaheim GW, LLC
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By:
William J. Stone, Authorized
Signatory
STATE OF CALIFORNIA
ss.
COUNTY 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.
[Seal]
STATE OF CALIFORNIA
ss.
COUNTY OF
Signature of Notary
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 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]
STATE OF CALIFORNIA
ss.
COUNTY OF
Signature of Notary
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]
Error! Unknown document property name.
EXHIBIT A
SITE MAP
AFFIDAVIT OF PUBLICATION
STATE OF CALIFORNIA, )
) ss.
County of Orange )
I am a citizen of the United States and a resident
of the County aforesaid; I am over the age of
eighteen years, and not a party to or interested in
the above -entitled matter. I am the principal
clerk of the Anaheim Bulletin, a newspaper that
has been adjudged to be a newspaper of general
circulation by the Superior Court of the County
of Orange, State of California, on December 28,
1951, Case No. A-21021 in and for the City of
Anaheim, County of Orange, State of California;
that the notice, of which the annexed is a true
printed copy, has been published in each regular
and entire issue of said newspaper and not in any
supplement thereof on the following dates, to
wit:
May 4, 2006
"I certify (or declare) under the penalty of
perjury under the laws of the State of California
that the foregoing is true and correct":
Executed at Santa Ana, Orange County,
California, on
Date: May 4, 2006
_V Signature
Anaheim Bulletin
625 N. Grand Ave.
Santa Ana, CA 92701
(714)796-2209
PROOF OF PUBLICATION
This space is for the County Clerk's Filing Stamp
Proof of Publication of
SUMMARY PUBLICATION
CITY OF ANAHEIM
ORDINANCE NO. BD23
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF ANAHEIM 0) APPROVING SECOND
AMENDED AND RESTATED DEVELOPMENT
AGREEMENT NO. 90-M BY AND BETWEEN THE
CITY OF ANAHEIM AND ANAHEIM GWLLC, t
MAIONG CERTAIN FINDINGS RELATED 1cHERET
AND (li AUTHORIZING THE MAYOR TO EXECUTE
SAID AEEMENT FOR AND ON BEHALF OF THE
CITY
This ordinance approves the Second Amended and Resist -
ad Development Agreement No. 99.01by and belrveen the
City of Anaheim and Anaheim GW, LLC, perishing to the
r -i— AmdenWerk asset. The orocosed chances to
modifications tD project Conditions or aappprovai ano mm
th
tion measures to provide for e devalopmem of 660,
square feal of specialty retail, restaurants, and entertain-
nant inquding ■ res ax movie theater 1,628 Iw1N
roomalaultsa (Including up to 50D vacation ownership units)
ppordt��on center;817 eare aandfeet
,800 parking spate and 1s�
spaces. The basic term of the Agreement Is ten 00) years.
I, Shbeeyrryll Schroeder, City Cleric at the City of Ansheim, do
hereNo. 6083 which ors nice + Mat that � redrooducIs a ced at a of regular
eggul r
meeting of the =oil of the City of. Anaheim on the
lith day a April, 2006 and was duty passed and adopted at
e special meeting of sold Councd on the 25th day of AAAI,
2008 by the following rail can vote of the members tlxreof.
AYES: Mayor Pringle, Connell Members Sldhu,
Hemand, Galloway, Chavez
NOES: None
The. above summary Is a brief description of the eup)ect
matter contained In the turd of Ordinance No. 6023, whlch
hasbeen prepared pursuant So Section 512 of the Charter of
the Ctiy of Anaheim. TfAa summary dose not include or de
scribe every provision of the ordinance and should not be
relied on as a substltde for the full text of the ordinance.
TL=n a copy of the fun tend of the ordinance, please
corrlact the Ol6ca of the City Clerk, (714) 765.6166, between
8:00 AM and 5:00 PM, Monday through Fuld There Is no
charge for the copy.
Publish: Anaheim Bulletin
� y 4, 2008 80208