20033899
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
City Council
City of Anaheim
c/o City Clerk
P.O. Box 3222
Anaheim, California 92805
______________________________________________________________________________ (Space Above Line For Recorder’s Use)
AMENDED AND RESTATED DEVELOPMENT AGREEMENT NO. 2020-00004
BETWEEN
THE CITY OF ANAHEIM
AND
ANAHEIM REAL ESTATE PARTNERS, LLC, TS ANAHEIM, LLC AND FCD, LLC
Date: ___________________________
AMENDED AND RESTATED DEVELOPMENT AGREEMENT NO. 2020-00004
BETWEEN
THE CITY OF ANAHEIM
AND
ANAHEIM REAL ESTATE PARTNERS, LLC
TABLE OF CONTENTS
Page
(i)
Section 1. DEFINITIONS .................................................................................................... 11
1.1 Administrative Fees ............................................................................................ 11
1.2 Affiliate ............................................................................................................... 11
1.3 2024 Project Approvals ....................................................................................... 11
1.4 ACC Residential Units ....................................................................................... 11
1.5 Original Annexation Parcels ............................................................................... 11
1.6 ACC Annexation Parcels .................................................................................... 11
1.7 Annexation Parcels ............................................................................................. 11
1.8 Owner's Share of CFD 08-1 Bond Capacity ....................................................... 11
1.8A Owner’s Share of ACC Annexation Capacity. ………………………………..11
1.9 Annexati on Public Facilities Capacity ................................................................ 11
1.10 Arena Signs ......................................................................................................... 12
1.11 Arena Special Sign District ................................................................................. 12
1.12 Arena Sign Revenue ........................................................................................... 12
1.13 ARTIC Expansion ............................................................................................... 12
1.14 ARTIC FMA ....................................................................................................... 12
1.15 ARTIC FMA Amendment .................................................................................. 12
1.16 ARTIC Garage .................................................................................................... 12
1.17 A RTIC Improvements ........................................................................................ 13
1.18 ARTIC Signs ....................................................................................................... 13
1.19 ARTIC Sign Revenue ......................................................................................... 13
1.20 Assessment District ............................................................................................. 13
1.21 Authoring Ordinance .......................................................................................... 13
1.22 Backbone Infrastructure Cost Study ................................................................... 13
1.23 CFD 08-1 ............................................................................................................ 13
1.24 CFD 08-1 RMA .................................................................................................. 13
1.25 CFD Improvements ............................................................................................. 13
1.26 CFD 08-1 Core Parcels ....................................................................................... 13
1.27 City ...................................................................................................................... 13
1.28 City's Share of ACC Annexation Capacity ......................................................... 14
1.29 City Support ........................................................................................................ 14
1.30 DA
Ordinance ..................................................................................................... 14
1.31 Development ....................................................................................................... 14
1.32 Development Agreement .................................................................................... 14
1.33 Development Agreement Date ............................................................................ 14
1.34 Development Agreement Statute ........................................................................ 14
(ii)
1.35 Development Approvals ..................................................................................... 14
1.36 Development Impact Fees................................................................................... 15
1.37 Enabling Ordinance ............................................................................................ 15
1.38 Encroachment License ....................................................................................... 15
1.39 Existing Honda Center FMA .............................................................................. 15
1.40 Existing Land Use Right Regulations ................................................................. 15
1.41 Expanded ARTIC Garage Funding ..................................................................... 15
1.42 Expanded ARTIC Garage ................................................................................... 15
1.43 Final Site Plan ..................................................................................................... 16
1.44 First Operating Memorandum............................................................................. 16
1.45 Gross Floor Area/GFA ........................................................................................ 16
1.46 Honda Center Expansion .................................................................................... 16
1.47 Honda Center FMA Amendment ........................................................................ 16
1.48 Honda Center Improvements .............................................................................. 16
1.49 Lot B ................................................................................................................... 16
1.50 Lot B Building .................................................................................................... 16
1.51 Master and Final Site Plans................................................................................. 16
1.52 Master Site Plan .................................................................................................. 16
1.53 M eadow Park ...................................................................................................... 16
1.54 Merchant Builder ................................................................................................ 16
1.55 M inor Land Exchanges ....................................................................................... 17
1.56 Mortgage ............................................................................................................. 17
1.57 Mortgagee ........................................................................................................... 17
1.58 New CFD ............................................................................................................ 17
1.59 New CFD Improvements .................................................................................... 17
1.60 Operating Memoranda ........................................................................................ 17
1.61 Owner .................................................................................................................. 17
1.62 Parking Areas ...................................................................................................... 17
1.63 Parking Utilization Study .................................................................................... 17
1.64 Permitted Development ...................................................................................... 17
1.65 P latinum Triangle................................ ................................................................ 18
1.66 Previous CEQA Analysis .................................................................................... 18
1.67 Private Maintenance............................................................................................ 18
1.68 Proposed Fees ..................................................................................................... 18
1.69 Procedures Resolution…………. …..……………………………………….....18
1.70 Project… ……………………...…………………………………………..........18
1.71 Property…………….…………………………………………………………...18
1.72 Reserved………………………. ……………………….………………………18
1.73 Lease Revenue Bonds ............…………………………………………….…….18
1.74 Spring-Up Maintenance District………………………………………....……..18
1.75 Support Commercial Uses .....…………………………………………….…….19
1.76 Reserved ...............................................................................................….……...19
1.77 Term……………………….……………………………………………………19
1.78 Third Party Challenge.……………………………………………….…………19
1.79 Transit Special Sign District.…………..……………………………………….19
1.80 Neighborhood Park .............................................................................. ………...19
(iii)
1.81 Zoning Code........................................................................................ ………...19 Section 2. CONDITIONS PRECEDENT TO EFFECTIVENESS OF DEVELOPMENT AGREEMENT AND PROVISION OF PUBLIC BENEFITS ........................... 19 Section 3. TERM ................................................................................................................. 20 Section 4. BINDING COVENANTS .................................................................................. 21 Section 5. EFFECT OF AGREEMENT .............................................................................. 21 Section 6. PROJECT LAND USES ..................................................................................... 21 Section 7. PERMITTED DEVELOPMENT........................................................................ 21
7.1 Description of Permitted Development .............................................................. 21
7.2 Pardee Finding .................................................................................................... 22
7.3 Parking Areas ...................................................................................................... 22
7.4 ARTIC Garage .................................................................................................... 24
7.5 Life of Subdivision Maps and Other Development Approvals .......................... 25
7.6 Written Verification of Sufficient Water Supply ................................................ 25
7.7 Minor Land Exchanges ....................................................................................... 25
7.8 Dedications/Abandonments Related to River Road, Katella Avenue and Douglass Road .................................................................................................... 26
7.9 Encroachment License ........................................................................ ………...27
7.10 Potential Development of Lot B ..........................................................………..27
Section 8. DENSITY OF PERMITTED BUILDINGS ....................................................... 27 Section 9. ENFORCEMENT ............................................................................................... 27 Section 10. PUBLIC IMPROVEMENTS AND SERVICES ................................................ 28
10.1 Construction Parking and Access, Construction Schedule ................................. 29
10.2 Utilities (Water, Electrical, Gas, Sewer, Drainage and Telecommunications) .......................................................................................... 29
10.3 Water Service ...................................................................................................... 29
10.4 Sanitary Sewer and Storm Drains ....................................................................... 30
10.5 Conveyance of Utility Easements ....................................................................... 30
10.6 Timing, Phasing and Sequence of Public Improvements and Facilities ............. 30
10.7 Traffic Circulation Improvements ...................................................................... 30
10.8 Public and Fire Access Easements ...................................................................... 31
10.9 Prevailing Wage .................................................................................................. 31
10.10 Reserved .............................................................................................................. 31
10.11 Construction of Public Improvements ................................................................ 31
10.12 Maintenance of Public and Private Infrastructure Improvements ...................... 33
(iv)
Section 11. PUBLIC IMPROVEMENTS AND SERVICES - PARKS, AMPHITHEATER AND BIKE TRAIL LANDSCAPED AREA ..................................................... 34
11.1 Public Parks……………………………………………………………………..34
11.2 Design and Construction Timeline for Neighborhood Park…………………….34
11.3 Design, Construction, and Maintenance of Meadow Park, modified ARTIC drop-off and the Katella Bridge………………………………………...35
11.4 Spring Up Maintenance District………………………………………………...37
11.5 Meadow Park Joint Use, Operation and Maintenance Plan…………………….37
11.6 Private Events at Meadow Park…………………………………………………38
11.7 City Events at Owner Facilities…………………………………………………38
11.8 Costs and Services for City Events at Owner Facilities………………………...39
11.9 Compliance with Naming Policy……………………………………………….40 Section 12. REIMBURSEMENT PROVISION ................................................................... 40 Section 13. DEDICATIONS AND EXACTIONS
........................ ………………………………………………………………….40
Section 14. FEES, TAXES, AND ASSESSMENTS………………..…................................41
14.1 Fees, Taxes and Assessments ............................................................................. 41
14.2 Reserved .............................................................................................................. 41
14.3 Excluded Development Fees............................................................................... 41
14.4 Platinum Triangle Infrastructure Assessment District ........................................ 42
14.5 CFD 08-1 ............................................................................................................ 42
14.6 New CFD ............................................................................................................ 43
14.7 Accounting of Funds ........................................................................................... 43
14.8 Imposition of Increased Fees, Taxes or Assessments ......................................... 43
Section 15. COVENANTS, CONDITIONS AND RESTRICTIONS ………………………44 Section 16. NEXUS/REASONABLE RELATIONSHIP CHALLENGES ........................... 44 Section 17. TIMING OF DEVELOPMENT ......................................................................... 44 Section 18. EXISTING USES ............................................................................................... 45 Section 19. FUTURE APPROVALS ..................................................................................... 45
19.1 Basis for Denying or Conditional Granting Future Approvals ........................... 45
19.2 Standard of Review ............................................................................................. 45
19.3 Future Amendments to Master and Final Site Plans ........................................... 45
(v)
Section 20. AMENDMENT................................................................................................... 46
20.1 Initiation of Amendment ..................................................................................... 46
20.2 Procedure ............................................................................................................ 46
20.3 Consent ............................................................................................................... 46
20.4 Amendments ....................................................................................................... 46
20.5 Effect of Amendment to Development Agreement ............................................ 46
20.6 Operating Memoranda ........................................................................................ 46 Section 21. NON-CANCELLATION OF RIGHTS .............................................................. 47 Section 22. BENEFITS TO CITY ......................................................................................... 47 Section 23. BENEFITS TO OWNER .................................................................................... 51 Section 24. UNDERTAKINGS AND ASSURANCES CONTEMPLATED AND PROMOTED BY DEVELOPMENT AGREEMENT STATUTE ..................... 52 Section 25. RESERVED AUTHORITY................................................................................ 53
25.1 State and Federal Laws and Regulations ............................................................ 53
25.2 Model Codes ....................................................................................................... 53
25.3 Public Health and Safety ..................................................................................... 53
Section 26. CANCELLATION .............................................................................................. 53
26.1 Initiation of Cancellation .................................................................................... 53
26.2 Procedure ............................................................................................................ 53
26.3 Consent of Owner and City................................................................................. 53 Section 27. PERIODIC REVIEW.......................................................................................... 53
27.1 Time for Review ................................................................................................. 53
27.2 Owner’s Submission ........................................................................................... 54
27.3 Findings............................................................................................................... 54
27.4 Initiation of Review by City Council .................................................................. 54 Section 28. EVENTS OF DEFAULT .................................................................................... 54
28.1 Defaults by Owner .............................................................................................. 54
28.2 Specific Performance Remedy ............................................................................ 55
28.3 Liquidated Damages and other City Remedy ..................................................... 55
(vi)
Section 29 MODIFICATION OR TERMINATION ............................................................ 56
29.1 Notice to Owner .................................................................................................. 56
29.2 Public Hearing .................................................................................................... 56
29.3 Decision .............................................................................................................. 56
29.4 Standard of Review ............................................................................................. 56
29.5 Implementation ................................................................................................... 56
29.6 Schedule for Compliance .................................................................................... 56 Section 30. ASSIGNMENT ................................................................................................... 57
30.1 Right to Assign ................................................................................................... 57
30.2 Release Upon Transfer ........................................................................................ 57 Section 31. NO CONFLICTING ENACTMENTS ............................................................... 58 Section 32. GENERAL .......................................................................................................... 58
32.1 Force Majeure ..................................................................................................... 58
32.2 Construction of Development Agreement .......................................................... 58
32.3 Severability ......................................................................................................... 59
32.4 Cumulative Remedies ......................................................................................... 59
32.5 Hold Harmless Agreement .................................................................................. 59
32.6 Cooperation in the Event of Legal Challenge ..................................................... 59
32.7 Continued Processing .......................................................................................... 60
32.8 Tolling of Agreement and Project Approvals ..................................................... 60
32.9 Public Agency Coordination ............................................................................... 60
32.10 Initiative Measures .............................................................................................. 60
32.11 Attorneys’ Fees ................................................................................................... 61
32.12 No Waiver ........................................................................................................... 61
32.13 Authority to Execute ........................................................................................... 61
32.14 Notice .................................................................................................................. 61
32.15 Captions .............................................................................................................. 62
32.16 Consent ............................................................................................................... 62
32.17 Further Actions and Instruments ......................................................................... 62
32.18 Subsequent Amendment to Authorizing Statute ................................................. 63
32.19 Governing Law ................................................................................................... 63
32.20 Effect on Title
..................................................................................................... 63
32.21 Mortgagee Protection .......................................................................................... 63
32.22 Notice of Default to Mortgagee, Right of Mortgagee to Cure ............................ 63
32.23 Bankruptcy .......................................................................................................... 63
32.24 Disaffirmance ...................................................................................................... 64
32.25 No Third Party Beneficiaries .............................................................................. 64
32.26 Project as a Private Undertaking ......................................................................... 64
32.27 Restrictions ......................................................................................................... 64
(vii)
32.28 Recitals ................................................................................................................ 65
32.29 Recording ............................................................................................................ 65
32.30 Title Report ......................................................................................................... 65
32.31 Entire Agreement ................................................................................................ 65
32.32 Successors and Assigns ....................................................................................... 65
32.33 Owner’s Title of Property ................................................................................... 65
32.34 Exhibits ............................................................................................................... 65
32.35 Delegation………………………………………………………………………65
(viii)
LIST OF EXHIBITS
Exhibit A Legal Description of the Property
Exhibit “A-1” Lot B Legal Description
Exhibit “B” Master Site Plan No. MIS2020-00751
Exhibit “B-1” Phasing Plan
Exhibit “B-2” Affordable Housing Phasing
Exhibit “C” Final Site Plans for Phase 1
Exhibit “D” Arena Signs and Arena Special Sign District Exhibit “E” ARTIC Signs and Transit Special Sign District Exhibit “F” Honda Center Improvements and Honda Center Expansion Exhibit “G” ARTIC Improvements and ARTIC Expansion
Exhibit “H” CFD Improvements
Exhibit “I” Minor Land Exchanges
Exhibit “I-1” Airspace Rights Encroachment License Areas Exhibit “J” New CFD Improvements
Exhibit “K” Maintenance Standards for Spring-Up Maintenance District Exhibit “K-1” Maintenance Obligations for Meadow Park, Neighborhood Park and Landscaping Area Adjacent to Santa Ana River Bike Trail
Exhibit “K-2” Form of Cooperation and Contribution Agreement for Energy and Maintenance of Traffic Signal and Safety Lighting
Exhibit “L” Conditions of Approval/APPROVED Tentative Tract Maps Exhibit “M” Meadow Park, Joint Use, Operations and Maintenance Plan Exhibit “M-2” Meadow Park Phasing
Exhibit “M-3” Scheduling Procedures for City Events at Owner Facilities Exhibit “N” Transit District Signage Plan
Exhibit “O” Traffic Circulation Improvements/Smart Infrastructure Exhibit “P” Development Impact Fees
Exhibit “P-1” Proposed Fees
Exhibit “Q” Platinum Triangle Acquisition Agreement
Exhibit “R” Housing Incentives Memorandum
Exhibit “S” Reserved.
Exhibit “T” CFD 08-1 Boundary Annexation
Exhibit “T-1” ACC Residential Units – Additional CFD Annexation Exhibit “U” Depiction of Maximum Event Perimeter and Property Line Exhibit “V” Reserved.
(ix)
Exhibit “W” Right of Way Dedication and Abandonment
-1-
AMENDED AND RESTATED DEVELOPMENT AGREEMENT NO. 2020-00004
BETWEEN
THE CITY OF ANAHEIM
AND ANAHEIM REAL ESTATE PARTNERS, LLC
____________________________________
This Amended and Restated Development Agreement is entered into this _____ day of __________, 2024 (“Development Agreement Date”), by and between the City of Anaheim, a charter city and municipal corporation, duly organized and existing under the Constitution and laws of the State of California (“City”) and Anaheim Real Estate Partners, LLC, TS Anaheim, LLC and FCD, LLC (collectively, “Owner”), pursuant to the authority set forth in Article 2.5 of Chapter 4 of Division 1 of Title 7, Sections 65864 through 65869.5 of the California Government Code (the “Development Agreement Statute”).
RECITALS
This Development Agreement is predicated upon the following facts:
A. To strengthen the public planning process, encourage private participation in comprehensive planning, and reduce the economic risk of development, the Legislature of the State of California adopted the Development Agreement Statute, Sections 65864, et seq., of the Government Code. The Development Agreement Statute authorizes CITY to enter into binding development agreements with persons having legal or equitable interests in real property for the development of such property in order to, among other things: encourage and provide for the development of public facilities in order to support development projects; provide certainty in the approval of development projects in order to avoid the waste of resources and the escalation in project costs and encourage investment in and commitment to comprehensive planning which will make maximum efficient utilization of resources at the least economic cost to the public; provide assurance to the applicants of development projects (1) that they may proceed with their projects in accordance with existing policies, rules and regulations, subject to the conditions of approval of such projects and provisions of such development agreements, and (2) encourage private participation in comprehensive planning and reduce the private and public economic costs of development.
B. These Recitals refer to and utilize certain capitalized terms which are defined in this Development Agreement. The parties intend to refer to those definitions in conjunction with the use thereof in these Recitals.
C. Since 1996, the Anaheim City Council has approved actions and California Environmental Quality Act environmental documents relating to the approximately 820-acre area generally bounded by the Santa Ana River on the east, the Anaheim City limits on the south, the Santa Ana Freeway (Interstate 5) on the west, and the Southern California Edison Company Easement on the north (“Platinum Triangle”). For the purposes of this Development Agreement, “Previous CEQA Analysis” includes all of the CEQA environmental documents described in these Recitals.
-2-
D. On May 30, 1996, the Anaheim Planning Commission certified Final EIR (State Clearinghouse No. 95041029) and adopted Mitigation Monitoring Program No. 92 (“FEIR No. 320”) and Area Development Plan No. 120 for the portion of the Anaheim Stadium property associated with the Sportstown Development.
E. On March 2, 1999, the Anaheim City Council adopted the Anaheim Stadium Area Master Land Use Plan (“Stadium Area MLUP”). The boundaries for the Stadium Area MLUP were generally the same as those for the Platinum Triangle, with the exception that the Stadium Area MLUP included 15 acres adjacent to I-5 that are not a part of the current Platinum Triangle boundaries. As part of the approval process for the Anaheim Stadium Area MLUP, the City Council certified Final EIR (State Clearinghouse Number 9611041) and adopted Mitigation Monitoring Program No. 106 (“FEIR No. 321”).
F. On May 25, 2004, the Anaheim City Council approved General Plan Amendment No. 2004-00419 setting forth the City’s vision for development of the City of Anaheim (the “General Plan Amendment”), and certified Final Environmental Impact Report No. 330, adopting Findings of Fact and a Statement of Overriding Considerations, and associated Mitigation Monitoring Plans (“FEIR No. 330”), in conjunction with its consideration and approval of the General Plan Amendment, amendment of City’s zoning code, and a series of related actions.
G. City desires that the Platinum Triangle be developed as a combination of high quality industrial, office, commercial and residential uses, as envisioned in the General Plan Amendment.
H. In order to carry out the goals and policies of the General Plan for the Platinum Triangle, on May 25, 2004, the City Council approved the Platinum Triangle Master Land Use Plan, setting forth the new vision for the Platinum Triangle.
I. To further implement the goals and policies of the General Plan for the Platinum Triangle, the City Council has established the Platinum Triangle Mixed-Use Overlay Zone (“PTMU Overlay Zone”) consisting of approximately three hundred and eighty-three (383) acres within the Platinum Triangle as depicted in the Platinum Triangle Master Land Use Plan to provide opportunities for high quality well-designed development projects that could be stand- alone projects or combine residential with non-residential uses including office, retail, business services, personal services, public spaces and uses, and other community amenities within the area.
J. On October 25, 2005, the Anaheim City Council certified Final Subsequent Environmental Impact Report No. 332, adopting a Statement of Findings of Fact, a Statement of Overriding Considerations and the updated and modified Mitigation Monitoring Program No. 106A (“FSEIR No. 332”) to provide for the implementation of the Platinum Triangle Master Land Use Plan, and in conjunction with its consideration and approval of General Plan Amendment No. 2004-00420, Miscellaneous Case No. 2005-00089, Zoning Code Amendment No. 2004-00036 and a series of related actions. Since certification of FSEIR No. 332, two addendums to the FSEIR have been adopted for the following projects: (1) Addendum No. 2. (June 2007); and (2) Addendum No. 3. Platinum Tower Project (August 2007).
-3-
K. On August 21, 2007, the Anaheim City Council certified Final EIR (State Clearinghouse Number 2006111120) and adopted Mitigation Monitoring Program No. 143 (“FEIR No. 2006-00335”) (2007 Certified FEIR) in conjunction with the approval of the Gene Autry Experience mixed-use project.
L. In 2007, the City embarked upon a process to adopt a General Plan Amendment; amendments to the PTMLUP, PTMU Overlay Zone, and the Platinum Triangle Standardized Development, and related zoning reclassifications to increase the development intensities within the Platinum Triangle (“Platinum Triangle Expansion Project”). In December 2007, the Anaheim City Council approved the recirculated FSEIR No. 334 and in April 2008, reapproved FSEIR NO. 334 in connection with the Platinum Triangle Expansion Project. However, following the approval of FSEIR No. 334, a lawsuit was filed challenging the adequacy of FSEIR No. 334. In consideration of the City’s exemplary historical record in avoiding CEQA litigation and its commitment to proper environmental review, the City Council repealed the approval of the Platinum Triangle Expansion Project FSEIR No. 334 and various related actions and directed staff to prepare a new subsequent EIR for the project.
M. On September 28, 2010, the Anaheim City Council certified the Anaheim Regional Transportation Intermodal Center (ARTIC) Final EIR No. 2010-00343 (State Clearinghouse No. 2009071071) and adopted a Mitigation Monitoring Plan in support of the ARTIC project (“FEIR No. 343”). Since certification of FEIR No. 343, two addenda have been adopted for the following projects: (1) Addendum No. 1. ARTIC Conditional Use Permit No. 2010-05492 (May 2012); and (2) Addendum No. 2. ARTIC Special Sign District (February 2015).
N. On October 26, 2010, the Anaheim City Council adopted General Plan A
mendment No. 2008-00471 and approved an amendment to the Platinum Triangle Master Land Use Plan (Miscellaneous Case No. 2007-00188) and certified EIR No. 2008-00339 (State Clearinghouse No. 2004121045) and adopted the Updated and Modified Mitigation Monitoring Plan No. 106C (MMP 106C) (“FSEIR No. 339), to increase the maximum number of dwelling units permitted in the PTMU Overlay Zone to 18,909 dwelling units, increase the maximum number of commercial square footage to 4,909,682, increase the maximum number of office square footage to 14,340,522 and add 1,500,000 of square footage of institutional land uses.
SEIR No. 339 tiered off of FSEIR No. 332. On February 7, 2017, the City Council adopted Resolution 2017-018 amending the General Plan and Resolution 2017-019 amending the PTMULP which, among other actions, included a reduction of the Office High and Low total square footage from 4,478,356 to 4,309,486 square feet. On February 28,2017, the City Council adopted Ordinance No. 6397 amending the PTMU Overlay Zone which reflected this reduced Office High and Low square footage. On February 9, 2021, the City Council adopted Ordinance No. 6506 as part of an annual zoning code update, which inadvertently reflected the 4,478,356 Office High and Low square footage in place prior to the adoption of Ordinance No. 6397. For clarification, references to the “Approved Project” in Addendum No. 11 for the Project reflect the reduced office square footage adopted by the City Council in 2017. Since certification of FSEIR No. 339, ten addenda have been adopted for the following projects: (1) Addendum No. 1, Katella Avenue/Interstate 5 (April 2012); (2) Addendum No. 2. Platinum Gateway Project (December 2012); (3) Addendum 3. Platinum Vista Apartments Project (August 2014); (4) Addendum 4. Amended A-Town Metro Project (August 2015); (5) Addendum No. 5. Jefferson
-4-
Stadium Park Project (June 2016); (6) Addendum No. 6. LT Platinum Center (August 2016); (7) Addendum No. 7. Gene Autry Way and State College Boulevard Improvements Project (March 2017); (8) Addendum No. 8. Orangewood Avenue Improvement Project (State College Boulevard to the Santa Ana River) (March 2018); (9) Addendum 9 – Orangewood Avenue Improvements from the Santa Ana River to the East of SR-57 (April 2022); (10) Addendum 10 – 710 E Katella proposed project application was withdrawn December 2021; and (12) Addendum 12 – Anaheim Fire Station No. 12 (August 2022) All ten adopted addenda concluded that these projects presented no changes or new information requiring preparation of a subsequent or supplemental EIR pursuant to Section 15162 of the CEQA Guidelines.
O. On April 3, 2012, the Anaheim City Council certified Final EIR No. 2011-00344 (State Clearinghouse No. 2011091007) and adopted Mitigation Monitoring Plan No. 303 (MMP 303) (“FEIR No. 344”) in conjunction with the Honda Center Enhancement Project and associated actions.
P. On February 7, 2017, the City Council approved a Negative Declaration and Mitigation Monitoring Plan No. 339 (“2017 ND”) in conjunction with adoption of amendments to the General Plan and the PTMLUP and other project actions to permit 153 single-family, attached condominium units.
Q. On September 29 and October 6, 2020, the City Council approved certain actions pertaining to the Stadium District Sub-Area A Project. This included adoption of a resolution approving and adopting a Sustainable Communities Environmental Assessment (SCEA) for the Stadium District Sub-Area A Project, prepared based on a CEQA Guidelines Appendix N: Infill Environmental Checklist Form, pursuant to the Public Resources Code (PRC) Section 21155.2(b) and Infill Project Checklist PRC 21094.5 and CEQA Guidelines Section 15183.3.
The City Council also adopted an Updated and Modified Mitigation Monitoring Plan (MMP) No. 106D applicable to projects in Stadium District Sub-Area A. Together, the above actions constitute the “2020 SCEA.”
R. Owner represents that it owns in fee or has an equitable interest in approximately 100 a
cres of real property and has development rights over portions of property owned by City, as created in this Development Agreement, the Development Approvals and the ARTIC and Honda Center FMA Amendments (as defined herein), located in the City of Anaheim, County of Orange (“County”), State of California, (collectively the “Property”) in the Platinum Triangle and zoned PTMU Overlay and more particularly shown and described on Exhibit ”A” attached.
S. Owner desires to develop the Property in accordance with the provisions of this Development Agreement by developing a multi-phased, mixed use project, and is to consist of the Master Site Plan and Final Site Plans (collectively the “Project”). The Master Site Plan (MIS 2020-00751) is attached as Exhibit ”B”, and the Final Site Plans for Phase 1 (FSP 2020-00004, FSP 2020-00005, FSP 2020-00006, FSP 2020-00007 and FSP 2020-00008 ) are attached as Exhibit ”C”. The Master Site Plan and these five Final Site Plans are hereby approved due to the City’s approval of this Development Agreement. Future Final Site Plans, as needed, will be filed, consistent with the Master Site Plan. The various phases of the Project as contemplated by Owner are specified in the attached Exhibit “B-1”.
-5-
T. Owner and City agree and acknowledge that (i) development and operation of the Project is interrelated with the operations and maintenance of the Honda Center and ARTIC; (ii) development and operation of the Project relies upon amendments to the Honda Center Facilities Management Agreement (as amended and restated, the “Honda Center FMA”) and the ARTIC Facilities Management Agreement (as amended and restated, the “ARTIC FMA”) and (iii) these amendments and restatements must be effective in order for the Project to be developed and operated and in order for Owner to provide City with various public benefits and amenities, as set out in this Development Agreement.
U. Pursuant to the Honda Center FMA Amendment, (i) revenues (the “Arena Sign R
evenue”) derived from the operation of certain of the Project signs depicted on Exhibit “D”, and located north of Katella Avenue (the “Arena Signs”) and parking related revenues received by the Honda Center shall be applied to, among other uses, the cost of the maintenance and operations of and further capital improvements to the Honda Center including the Honda Center Improvements, and (ii) City shall (again, pursuant to the Honda Center FMA) receive a portion of the Arena Sign Revenue. Pursuant to the ARTIC FMA Amendment, revenues (the “ARTIC Sign Revenue”) derived from the operation of certain of the Project signs depicted on Exhibit “E” and located south of Katella Avenue (the “ARTIC Signs”) shall be applied, among other uses, to the cost of the Private Maintenance of and further capital improvements to ARTIC including the ARTIC Improvements. “Honda Center Improvements” and “ARTIC Improvements” are defined below in Sections 1.48 and 1.17, respectively. In order to facilitate the generation of the Arena Sign Revenue and the ARTIC Sign Revenue respectively, the Arena/Stadium Special Sign District and the ARTIC Special Sign District have been amended to create three sign districts: the Stadium Special District for Angel Stadium, the Arena Special Sign District for the Honda Center (“Arena Special Sign District”) and the Transit Special Sign District for the multimodal public transit facility south of Katella Avenue (Transit Special Sign District”). The Arena Signs shall be authorized pursuant to the provisions of the Arena Special Sign District, and the ARTIC Signs shall be authorized pursuant to the provisions of the Transit Special Sign District. Owner and City agree that neither the Arena Special Sign District or the Transit Special Sign District include any digital advertising sign authorized by Anaheim Municipal Code Chapter 4.04.401 (Arena/Stadium Special Sign District) or any successor ordinance and located more than 1,000 feet from the Arena or any structure physically connected to the Arena.
V. As specified in more detail in Section 22 of this Development Agreement, Owner shall provide City and its citizens extensive public benefits in connection with the development of the Project. These public benefits include the following traditional public benefits: (i) parks improvements estimated to cost approximately $30 million; (ii) affordable housing, at a value estimated to be $55 million; (iii) public infrastructure improvements estimated to cost approximately $80 million; (iv) Owner’s agreement to perform ongoing Private Maintenance (as defined below in Section 1.67) obligations of public facilities estimated to cost approximately $30 million; (v) a $6.75 million dollar Offsite Park Contribution Fee with the proceeds of this fee to be used to pay for park improvements in the City’s sole discretion; (vi) construction and maintenance of an approximately 4.85-acre park, Meadow Park and approximately 4.7-acre Neighborhood Park; (vii) Owner’s payment of approximately $100 million in Development Impact Fees; (viii) generation of millions of dollars in economic impact due to the development, construction and operation of the Project; and (ix) production of both affordable and market rate
-6-
housing, to assist City in its efforts to comply with its Regional Housing Needs Assessment allocation. These traditional public benefits are estimated to provide benefits in excess of $300 million.
W. As specified in S ection 22, Owner is obligated to provide City, its citizens and customers of the CITY-owned facility various Honda Center related improvements, including:
(i) reinvestment into the Honda Center through an extension of “front door” improvements, i.e., Honda Center customer plazas at the North, South, East and West entries, a paseo and Urban Park, including a Media Wall, valued approximately $55 million; (ii) improvements to the Honda Center itself , at a cost estimated to be $25 million; and (iii) construction of parking structure decks B, C and D, totaling approximately $185 million; ((i) through (iii) collectively, the “Honda Center Expansion”); as well as (vi) ongoing reinvestment into the Honda Center over the term of this Development Agreement, totaling approximately $125 million. The Honda Center Expansion is also specified and depicted in the attached Exhibit “F” to this Development Agreement. These Honda Center improvements, which the Owner estimates will cost approximately $390 million, enhance the customer experience at the Honda Center.
X. As specified in Sections 7, 10, 11, and 22, Owner is obligated to provide City, its citizens and customers of the City-owned facility various ARTIC related improvements: (i) through payment of park impact fees, the funding of construction and maintenance during the period of Private Maintenance of Meadow Park, estimated to cost $14,771,015, subject to escalation, as specified below in Section 14.1; (ii) surface parking for ARTIC relocated to a privately built and maintained, publicly accessible parking garage and pedestrian bridge on the site of the Douglass Commerce Center owned by Owner but planned to be conveyed to the City (“ARTIC Garage”) (Owner’s construction of the ARTIC Garage is limited to construction of a garage consisting of 480 parking spaces), estimated to cost $20 million; (iii) Owner’s commitment to provide a match of land, equity or cash if City and Owner are able to procure third-party funding to fund the Expanded ARTIC Garage; (iv) a relocated ARTIC passenger drop-off and bus/shuttle turn around access required for the development of Meadow Park; (v) dedicated public pedestrian enhanced walkway/bridge leading from ARTIC to the Honda Center, crossing over Katella Avenue with a pedestrian bridge (public benefits (iii) and (iv) are estimated to cost approximately $20 million) ((i) through (v) are, collectively, the “ARTIC Expansion” or “ARTIC Improvements”); as well as (vi) the Private Maintenance of ARTIC and Meadow Park estimated to cost approximately $20 million. The ARTIC Expansion is also specified and depicted in the attached Exhibit “G” to this Development Agreement. These ARTIC related public benefits are estimated to cost approximately $60 million.
Y. City desires to accomplish the goals and objectives set forth in the City’s General P
lan and the objectives for the PTMU Overlay Zone as set forth in subsection 18.20.010.020 of the Anaheim Municipal Code and finds that the Project will accomplish said goals and objectives.
Z. Pursuant to the Master Site Plan and all Final Site Plans consistent with the Master Site Plan, Owner will submit tentative maps and/or vesting tentative maps, if required.
Owner further anticipates the submission of detailed construction plans and other documentation required by City in order for the Owner to obtain its building, grading or construction right-of- way permit.
-7-
AA. As consideration for the benefits gained from the vested rights acquired pursuant to the Development Agreement Statute, to conform with the requirements of the PTMU Overlay Zone, and to comply with the applicable mitigation measures imposed by Updated and Modified Mitigation Monitoring Program No. 106 C for the Project, City is requiring that Owner construct and install certain public improvements, including off-site traffic circulation improvements, and provide other public benefits.
BB. In order to avoid any misunderstandings or disputes which may arise from time to time between Owner and City concerning the proposed development of the Project and to assure each party of the intention of the other as to the processing of any land use entitlements which now or hereafter may be required for such development, the parties believe it is desirable to set forth their intentions and understandings in this Development Agreement. In order for both City and Owner to achieve their respective objectives, it is imperative that each be as certain as possible that Owner will develop, and that City will permit Owner to develop the Project and public improvements as approved by City within the time periods provided in this Development Agreement.
CC. City, as a charter city, has enacted Ordinance No. 4377 on November 23, 1982, which makes City subject to the Development Agreement Statute. Pursuant to Section 65865 of the Development Agreement Statute, City adopted Resolution No. 82R-565 (the “Procedures Resolution”) on November 23, 1982. The Procedures Resolution establishes procedures and requirements for the consideration of development agreements upon receipt of an application.
DD. On April 6, 2022, as required by Section 1.0 of the Procedures Resolution, Owner submitted to the Planning Department an application for approval of a development agreement (the “Application”). The Application included a proposed development agreement.
EE. On April 18, 2022, as required by Section 65867 of the Development Agreement Statute and Section 2.1 of the Procedures Resolution, the Planning Director gave public notice of the City Planning Commission’s intention to consider a recommendation to the City Council regarding adoption of a development agreement.
FF. On August 29, 2022, as required by Section 65867 of the Development Agreement Statute and Section 2.2 of the Procedures Resolution, the City Planning Commission held a public hearing on the Application.
GG. On that date, the City Planning Commission, after considering the requirements of CEQA, including Section 21166 of the California Public Resources Code and Section 15162 of the CEQA Guidelines, found and determined and recommended that the City Council find that the Previous CEQA Analysis, including the previously-certified FSEIR No. 339, together with the Updated and Modified Mitigation Monitoring Program No. 106C for the Platinum Triangle, and Addendum No. 11 are adequate to serve as the required environmental documentation for this Development Agreement, and related Project Actions, and satisfy all of the requirements of CEQA, and that no further environmental documentation need be prepared for this Development Agreement.
-8-
HH. The Planning Commission further found that this Development Agreement meets the following standards set forth in Section 2.3 of the Procedures Resolution, to wit, that the Proposed Project: (a) is consistent with the City’s existing General Plan (as amended pursuant to Resolution No. PC2022-80, (b) is compatible with the uses authorized in and the regulations prescribed for the applicable zoning district including specifically the PTMU Overlay Zone (as amended pursuant to Ordinance No. 6538), (c) is compatible with the orderly development of property in the surrounding area and (d) is not otherwise detrimental to the health, safety and general welfare of the citizens of City. Based upon the aforesaid findings, the City Planning Commission recommended that the City Council approve the Application and this Development Agreement pursuant to Resolution Nos. PC2024-028, PC2024-029 and PC 2024-030.
II. On September 15, 2022, as required by Section 65867 of the Development Agreement Statute and Section 3.1 of the Procedures Resolution, the City Clerk caused public notice to be given of the City Council’s intention to consider adoption of a development agreement.
JJ. On September 27, 2022, as required by Section 65867 of the Development Agreement Statute and Section 3.2 of the Procedures Resolution, the City Council held a public hearing on the Application.
KK. On that date, the City Council, after considering the requirements of CEQA, including Section 21166 of the California Public Resources Code and Section 15162 of the CEQA Guidelines, did find and determined that previously-certified FSEIR No. 339, together with the Updated and Modified Mitigation Monitoring Program No. 106C for the Platinum Triangle, and Addendum No. 11 are adequate to serve as the required environmental documentation for this Development Agreement, and related Project Actions, and satisfies all of the requirements of CEQA, and that no further environmental documentation need be prepared for this Development Agreement.
LL. On September 27 and October 4, 2022, the City Council found and determined that this Development Agreement: (i) is consistent with the City’s existing General Plan; (ii) is not otherwise detrimental to the health, safety and general welfare of the citizens of City; (iii) is entered into pursuant to and constitutes a present exercise of the City’s police power; and (iv) is entered into pursuant to and in compliance with the requirements of Section 65867 of the Development Agreement Statute and the Procedures Resolution.
MM. In preparing and adopting the General Plan and in granting the Development Approvals, City considered the health, safety and general welfare of the residents of City and prepared in this regard an extensive environmental impact report and other studies. Without limiting the generality of the foregoing, in preparing and adopting the General Plan and in granting the Development Approvals, the City Council carefully considered and determined the projected needs (taking into consideration the planned development of the Project and all other areas within the City) for water service, sewer service, storm drains, electrical facilities, traffic/circulation infrastructure, police and fire services, paramedic and similar improvements, facilities and services within the Platinum Triangle, and the appropriateness of the density and intensity of the development comprising the Project and the needs of the City and surrounding areas for other infrastructure.
-9-
NN. On October 4, 2022, the City Council adopted the Authorizing Ordinance authorizing the execution of this Development Agreement.
OO. On October 23, 2023, Anaheim Real Estate Partners, LLC submitted applications to allow for the demolition of the existing Arena Corporate Center, construction of proposed new residential and office development, modifications to Meadow Park including dedication of additional public park space and removal of the Amphitheater and re-naming of the Wellness Park to Neighborhood Park; These applications specifically include: General Plan amendment, Platinum Triangle Master Land Use Plan amendment, Anaheim Municipal Code amendments, Master Site Plan amendment, Conditional Use Permit amendment, Minor Conditional Use Permit and Deviation from Engineering Standard Details (“2024 Project Approvals”).
PP. On April 3, 2024, the Parties entered into that certain Operating Memorandum R
elated to a Modification to Exhibit “I”, Minor Land Exchanges and Exchange of Easements (“First Operating Memorandum”) to clarify the sequence of land exchanges; the clarifications of the First Operating Memorandum have been incorporated herein.
QQ. On S
eptember 12, 2024, as required by Section 65867 of the Development Agreement Statute and Section 2.1 of the Procedures Resolution, the Planning Director gave public notice of the City Planning Commission’s intention to consider a recommendation to the City Council regarding adoption of the amended and restated development agreement.
RR. On September 23, 2024, as required by Section 65867 of the Development Agreement Statute and Section 2.2 of the Procedures Resolution, the City Planning Commission held a public hearing on the Application for the Amended and Restated Development Agreement and the related land use approvals.
SS. On that date, the City Planning Commission, after considering the requirements of CEQA, including Section 21166 of the California Public Resources Code and Section 15162 of the CEQA Guidelines, found and determined and recommended that the City Council find that the Previous CEQA Analysis, including the previously-certified FSEIR No. 339, together with the Updated and Modified Mitigation Monitoring Program No. 106C for the Platinum Triangle, and Mitigation Monitoring Plan No. 383 (MMP No. 383), other previously-approved environmental documents for development in the Platinum Triangle area, and Addendum Nos. 11- 13 are adequate to serve as the required environmental documentation for this Amended and Restated Development Agreement, and related 2024 Project Approvals, and satisfy all of the requirements of CEQA, and that no further environmental documentation need be prepared for this Development Agreement and thereby recommend approval of the 2024 Project Approvals and Amended and Restated Development Agreement.
TT. On October 17, 2024, as required by Section 65867 of the Development Agreement Statute and Section 3.1 of the Procedures Resolution, the City Clerk caused public notice to be given of the City Council’s intention to consider adoption of the Amended and Restated Development Agreement.
-10-
UU. On October 29, 2024, as required by Section 65867 of the Development Agreement Statute and Section 3.2 of the Procedures Resolution, the City Council held a public hearing on the 2024 Project Approvals and the Amended and Restated Development Agreement.
VV. On that date, the City Council, after considering the requirements of CEQA, including Section 21166 of the California Public Resources Code and Section 15162 of the CEQA Guidelines, did find and determined that previously-certified FSEIR No. 339, together with the Updated and Modified Mitigation Monitoring Program No. 106C for the Platinum Triangle and Mitigation Monitoring and Reporting Plan No. 383 (MMP No. 383), other previously-approved environmental documents for development in the Platinum Triangle area, and Addendum Nos. 11- 13 are adequate to serve as the required environmental documentation for this Amended and Restated Development Agreement, and related 2024 Project Approvals, and satisfies all of the requirements of CEQA, and that no further environmental documentation need be prepared for this Development Agreement.
WW. On October ____ 2024, the City Council approved the General Plan amendment, Platinum Triangle Master Land Use Plan amendment, Conditional Use Permit amendment, Minor Conditional Use Permit and Deviation from Engineering Standard Details by Resolution No. ______. On October __ and _______ __, 2024, the City Council approved the Anaheim Municipal Code amendments and Master Site Plan amendment by Ordinance No.___ XX. On October __ and _______ __, 2024, the City Council found and determined that this Amended and Restated Development Agreement: (i) is consistent with the City’s existing General Plan as amended through the 2024 Project Approvals; (ii) is not otherwise detrimental to the health, safety and general welfare of the citizens of City; (iii) is entered into pursuant to and constitutes a present exercise of the City’s police power; and (iv) is entered into pursuant to and in compliance with the requirements of Section 65867 of the Development Agreement Statute and the Procedures Resolution.
YY. In preparing and adopting the amendment to the development agreement, the amendment to the General Plan and in granting the 2024 Project Approvals, City considered the health, safety and general welfare of the residents of City and prepared in this regard an extensive environmental impact report and other studies and addendums. Without limiting the generality of the foregoing, in preparing and adopting the amendment to the General Plan and in granting the 2024 Project Approvals, the City Council carefully considered and determined the projected needs (taking into consideration the planned development of the Project and all other areas within the City) for water service, sewer service, storm drains, electrical facilities, traffic/circulation infrastructure, police and fire services, paramedic and similar improvements, facilities and services within the Platinum Triangle, and the appropriateness of the density and intensity of the development comprising the 2024 Project Approvals and the needs of the City and surrounding areas for other infrastructure.
ZZ. On ________ __, 2024, the City Council adopted the Authorizing Ordinance authorizing the execution of this Amended and Restated Development Agreement.
NOW, THEREFORE, pursuant to the authority contained in the Development Agreement Statute, as it applies to City, and pursuant to the Enabling Ordinance, the Procedures Resolution
-11-
and the City’s inherent powers as a charter city, and pursuant to the mutual promises and covenants herein contained, the parties agree as follows:
Section 1. DEF INITIONS.
The following words and phrases are used as defined terms throughout this Development Agreement, and each defined term shall have the meaning set forth below.
1.1 Administrative Fees. “Administrative Fees” means fees charged by the City on a City-wide basis in effect at the time to cover the costs of City review of applications for any permit or other approval or review or inspection by City departments.
1.2 Affiliate. “Affiliate” means an entity or person that is directly or indirectly controlling, controlled by, or under common control with Owner. For the purposes of this definition, “control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity or a person, whether through the ownership of voting securities, by contract, or otherwise.
1.3 2024 Proj
ect Approvals. “2024 Project Approvals” means approvals, as specified in Recital OO.
1.4 ACC Residential Units. “ ACC Residential Units” means a combination of one or more structures depicted as buildings 4 and 5, on Exhibit T-1, yielding a minimum of 750 residential units and a maximum of 905 residential units, which Owner will identify with a proposed legal parcel(s) at the time it submits its final site plan for Phase 4 of the Project.
1.5 Original Annexation Parcels. “Ori
ginal Annexation Parcels” means the
property identified in blue on Exhibit “T” titled CFD 08-1 Boundary Annexation. For the avoidance of doubt, Original Annexation Parcels does not include the ACC Annexation Parcels.
1.6 ACC Annexation Parcels. “ACC Annexation Parcels” means the parcels to be created that will contain the ACC Residential Units and as referred as part of the Operating Memoranda required as part of Section 10.11.
1.7 Annexation Parcels.
“Annexation Parcels” means the property identified
in blue and white on Exhibit “T” titled CFD 08-01 Boundary Annexation. For avoidance of doubt, Annexation Parcels includes the ACC Residential Units.
1.8 Owner’s Share of CFD 08-1 B ond Capacity. “Owner’s Share of CFD 08- 1 Bond Capacity” has the meaning ascribed to it in Section 10.11.
1.8A Owner’s Share of ACC Annexation Capacity. “Owner’s Share of ACC Annexation Capacity” shall have the meaning ascribed in Section 10.11.
1.9 Annexation Public Facilities Capacity. “A nnexation Public Facilities Capacity” has the meaning ascribed to it in Section 10.11. In connection with the calculation, for any residential building structure where the building footprint is both (a) partially within the "Existing CFD 08-1 Boundary Within the Master Plan" (depicted on Exhibit “T”), and (b)
-12-
partially within the "Proposed CFD 08-1 Boundary Annexation Within the Master Plan" (also depicted on Exhibit “T”); the Annexation Public Facilities Capacity shall exclude the construction proceeds generated or special taxes revenues collected for any residential unit where more than fifty percent of the square footage of the residential unit lies within the “Existing CFD 08-1 Boundary Within the Master Plan”. In connection with the submission of a site plan for any affected residential building, Owner shall include its calculation and support documentation for the number of residential units that lie within the “Existing CFD 08-1 Boundary Within the Master Plan.” The determination of whether a residential unit is within the "Existing CFD 08-1 Boundary Within the Master Plan" shall be made by the City Engineer after review of Owner’s documentation, consultation with CFD Administrator, respective advisors, and Owner, if necessary,
1.10 Arena Signs.
“Arena Signs” means signs located north of Katella Avenue which generate Arena Sign Revenue, as depicted in Exhibit “D”. Any spectacular digital Arena Sign shall include the static banner “ocV!BE”. Any spectacular digital Area Sign shall include a static banner with the logo and the City name “Anaheim”. The Anaheim banner shall be of equivalent size to the ocV!BE static banner, and shall be situated below the ocV!BE banner, with both banners visible to State Route 57 for signs that are viewable from State Route 57.
Developer may modify the static banner branding name “ocV!BE” to another branding name during the term of the Agreement provided that the size of the letters are characters of the new branding name remain the same size as the ocV!BE static banner and the Anaheim static banner is not modified in a manner inconsistent with this section.
1.11 Arena Special Sign District. “Arena Special Sign District” means the sign district for the area surrounding the Honda Center as depicted in Exhibit “D” and as set forth in Anaheim Municipal Code section 4.04.
1.12 Arena Sign Revenue. “Arena Sign Revenue” means revenues derived from the operation of the Arena Signs, as specified in the Honda Center FMA Amendment.
1.13 ARTIC Expansion. “A RTIC Expansion” means public improvements made to properties south of Katella Avenue, as specified in Recital X and Exhibit “G” to this Development Agreement.
1.14 ARTIC FMA. The “ARTIC FMA” is the ARTIC Facilities Management Agreement entered into between ATCM, LLC and City.
1.15 ARTIC FMA Amendment. The “ARTIC FMA Amendment” is the amended and restated ARTIC FMA.
1.16 ARTIC Garage. The “ARTIC Garage” means a parking structure to be constructed by Owner, consisting of approximately 480 parking spaces, to replace the presently existing 456 spaces that will be removed in connection with development of the Project, 15 spaces for Meadow Park, and a pedestrian bridge, connecting the ARTIC Garage with ARTIC as specified in Section 7.4 of this Development Agreement.
-13-
1.17 ARTIC Improvements. “ARTIC Improvements” means public improvements made to ARTIC, as specified in Recital X and Exhibit “G” to this Development Agreement.
1.18 ARTIC Signs. “ARTIC Signs” means signs located south of Katella Avenue which generate ARTIC Sign Revenue, as depicted in Exhibit “E”. Any spectacular digital ARTIC Sign shall include the static banner “ocV!BE”. Any spectacular digital ARTIC Sign shall also include a static banner with the logo and the City name “Anaheim”. The Anaheim banner shall be of equivalent size to the ocV!BE static banner, and shall be situated below the ocV!BE banner, with both banners visible to State Route 57 for signs that are viewable from State Route 57. Developer may modify the static banner branding name “ocV!BE” to another branding name during the term of the Agreement provided that the size of the letters and characters of the new branding name remain the same size as the ocV!BE static banner and the Anaheim static banner is not modified in a manner inconsistent with this section.
1.19 ARTIC Sign Revenue.
“ARTIC Sign Revenue” means revenues derived
from the operation of the ARTIC Signs, as specified in the ARTIC FMA Amendment.
1.20 Assessment District. “Assessment District” means a special district, assessment district or benefit area existing pursuant to State law or the charter powers of the City for purposes of financing the cost of public improvements, facilities, services and/or public facilities fees within a distinct geographic area of the City.
1.21 Authorizing Ordinance. “
Authorizing Ordinance” means Ordinance
No. 6539 approving this Development Agreement.
1.22 Backbone Infrastructure Cost Study. “Backbone Infrastructure Cost Study” means the cost study prepared as part of the Platinum Triangle Expansion Implementation Plan Backbone Infrastructure Cost Summary dated __________.
1.23 CFD 08-1
. “CFD 08-1” the City of Anaheim Community Facilities
District No. 08-1 (Platinum Triangle) established pursuant Resolution No. 2008-053 encompassing certain of the land parcels in and around Angel Stadium and the Honda Center.
1.24 CFD 08-1 R MA. “CFD 08-1 RMA” means the Rate and Method of Apportionment [of Special Taxes] for City of Anaheim Community Facilities District No. 08-1 (Platinum Triangle) authorized pursuant to Resolution No. 2008-053 governing the special taxes for CFD 08-1.
1.25 CFD Improvements. “CFD Improvements” means those improvements specified in Exhibit “H” to this Development Agreement.
1.26 CFD 08-1 Core Parcels. “CFD 08-1 Core Parcels” means the property identified in pink on Exhibit “T” titled CFD 08-1 Boundary Annexation.
1.27 City. “City” means the City of Anaheim, a charter city and municipal corporation, duly organized and existing under its charter and the Constitution and laws of the State of California.
-14-
1.28 City’s Share of ACC Annexation Capacity. “City’s Share of ACC Annexation Capacity” means eighty percent (80%) of (i) the additional construction proceeds from CFD 08-1 Bonds that are generated by the special tax revenues levied on ACC Residential Units, and (ii) the special tax revenues collected in connection with the levying of special taxes on the ACC Residential Units and is not used to pay debt service on outstanding CFD 08-1 Bonds or administrative costs necessary to administer CFD 08-1.
1.29 City Support. “City Support” means City pledges to support, as set forth in Section 23(b), the allocation of the Project ATID Transportation Funds during the Term (as defined below in Section 1.77), which are collected from the Owner’s Project hotels by City for reimbursement to Owner to partially fund the construction of the ARTIC Garage, including ARTIC Garage and the access bridge for Parking Deck A, as designed and constructed to allow for a possible future transit project connecting ARTIC to the Anaheim Resort.
1.30 DA Or
dinance. “DA Ordinance” is the ordinance approving this Development Agreement.
1.31 Development. “Development” means the improvement of the Property for purposes of effecting the structures, improvements and facilities comprising the Project, including, without limitation: grading, the construction of infrastructure and public facilities related to the Project whether located within or outside the Property; the construction of structures and buildings and the installation of landscaping.
1.32 Development Agreement. “Development Agreement” means this Development Agreement and any subsequent amendments to this Development Agreement which have been made in compliance with the provisions of this Development Agreement, the Development Agreement Statute, the Enabling Ordinance, and the Procedures Resolution.
1.33 Development Agreement Date. “Development Agreement Date” means July 27, 2023, the date on which Development Agreement 2020-00004 was recorded.
1.34 Development Agreement Statute. “Development Agreement Statute” means Sections 65864 through 65869.5 of the California Government Code as it exists on the Development Agreement Date.
1.35 Development Approvals.
“Development Approvals” means the Master
and Final Site Plans and all site specific plans, maps, permits and other entitlements to use of every kind and nature contemplated by the Master and Final Site Plans including the 2024 Project Approvals which are approved or granted by City in connection with development of the Property, including, but not limited to: master plans, Platinum Triangle Implementation plans, mitigation measures, site plans, tentative and final subdivision maps, variances, conditional use permits and demolition, grading, building and other similar permits. To the extent any of such site specific plans, maps, permits and other entitlements to use are amended from time to time, “Development Approvals” shall include, if Owner and City agree in writing, such matters as so amended. If this Development Agreement is required by law to be amended in order for “Development Approvals” to include any such amendments, “Development Approvals” shall not include such amendments unless and until this Development Agreement is so amended.
-15-
1.36 Development Impact Fees. “Development Impact Fees” means all fees, including Proposed Fees as defined below in Section 1.68 contributions, exactions, dedications, reservations, or impositions, other than taxes or assessments, whether established for or imposed upon the Project individually or as part of a class of projects, that are imposed by City on the Project in connection with any Project Approval for any purpose, including, without limitation, defraying all or a portion of the cost of public services and/or facilities construction, improvement, operation and maintenance attributable to the burden created by the Project.
Development Impact Fees do not include: (i) any City processing fees, specified in Section
14.3.3; (ii) any mitigation measure (unless the mitigation measure consists of payment of a Development Impact Fee); (iii) taxes or special assessments; (iv) any utility connection fees in effect from time to time generally applicable on a City-wide basis to similar land uses as the Project; or (v) any fees, taxes, assessments, or impositions imposed by other entities that the City collects on behalf of such other entities, including without limitation school fees, all of which shall be due and payable by Developer as and when due in accordance with this Development Agreement and applicable law.
1.37 Enabling Ordinance. “Enabling Ordinance” means Ordinance No. 4377 enacted by the City on November 23, 1982.
1.38 Encroachment License. “Encroachment License” is a license granted by the City, and approved by the Public Works Director, providing air space and access rights to Owner for the bridge structures over public streets associated with the Project, including the bridges over Katella Avenue and Douglass Road.
1.39 Existing Honda Center FMA.
“Existing Honda Center FMA” is the
agreement entered into between Anaheim Arena Management, LLC and City, as amended by the First Amendment, Second Amendment and the Amended and Restated Third Amendment.
1.40 Existing La
nd Use Regulations. “Existing Land Use Regulations” mean the ordinances and regulations adopted by the City of Anaheim in effect on the Development Agreement Date, including the adopting ordinances and regulations that govern the permitted uses of land, the density and intensity of use, and the design, improvement, construction standards and specifications applicable to the development of the Property, including, but not limited to, the General Plan, the Zoning Code, the Platinum Triangle Master Land Use Plan, Updated and Modified Mitigation Monitoring Program No. 106C, and all other ordinances of the City establishing subdivision standards, park regulations, impact or development fees and building and improvement standards, but only to the extent the Zoning Ordinance and such other regulations are not inconsistent with this Development Agreement. Existing Land Use Regulations do not include non-land use regulations, which include taxes.
1.41 Expanded ARTIC Garage Funding. “Expanded ARTIC Garage Funding” means grants or funds secured by City to be used to construct the Expanded ARTIC Garage, as provided in Section 7.4 of this Development Agreement.
1.42 Expanded ARTIC Garage. “Expanded ARTIC Garage” means a parking structure which shall contain greater than 480 parking spaces, as determined in Section 7.3.2 and as provided in Section 7.4 of this Development Agreement.
-16-
1.43 Final Site Plan. “Final Site Plan” means various components of the Project as described in this Development Agreement and conditions with respect thereto, as set forth as Exhibit “C” attached. The Final Site Plans included in Exhibit “C” are for Phase 1 only.
The parties acknowledge that there will be multiple Final Site Plans processed for the Project including for Phases 2, 3, 4 and 5 which have not been submitted as of the Development Agreement Date
1.44 First Operating Memorandum. “First Operating Memorandum” mea ns the
Operating Memorandum Related to a Modification to Exhibit “I”, Minor Land Exchanges and Exchange of Easements (“First Operating Memorandum”) to clarify the sequence of land exchanges dated April 3, 2024.
1.45 Gross Floor Area/GFA.
“Gross Floor Area” or “GFA” means the gross
floor area of any buildings which are part of the Permitted Development.
1.46 Honda Center Expansion. “Honda Center Expansion” are improvements made in the vicinity of the Honda Center, as specified in Recital W and Exhibit “F” to this Development Agreement.
1.47 Honda Center FMA Amendment. “Honda Center FMA Amendment” is the amended and restated Honda Center FMA.
1.48 Honda Center Improvements. “Honda Center Improvements” are improvements made to the Honda Center, as specified in Recital W and Exhibit “F” to this Development Agreement.
1.49 Lot B. “Lot B” is the approximately 2.4 acre property owned by City, more particularly shown and described in attached Exhibit “A-1”.
1.50 Lot B Building. “Lot B Building” is a possible building to be built by Owner, consisting of a maximum of 170,000 square feet of institutional uses.
1.51 Master and Final Site Plans. “Master and Final Site Plans” means, collectively, the Master Site Plan and all Final Site Plans.
1.52 Master Site Plan. “Master Site Plan” means various components of the Project and 2024 Project Approvals as described in this Development Agreement and conditions with respect thereto, as set forth as Exhibit “B” attached.
1.53 Meadow Park. “Meadow Park” means a minimum 4.85-acre public park to be designed by Owner and City, and constructed, operated, and managed by Owner in compliance with the terms set forth in Exhibit “M” and maintained during the period of Private Maintenance by Owner as set forth in Sections 11.3, 11.4, and 11.5 and Exhibit “M” and Exhibit K-1.
1.54 Merchant Builder. “Merchant Builder” means any entity purchasing or ground leasing a portion of the Project from Owner for the purpose of constructing various components of the Project, e.g., hotels, residential units or mixed-use buildings.
-17-
1.55 Minor Land Exchanges. “Minor Land Exchanges” pertains to land City is exchanging for property necessary for City’s use and means the exchanges of approximately equal amounts of land between City and Owner to adjust boundaries or convey land (i) around the Honda Center apron identified in the Honda Center FMA; (ii) around the proposed hotel site south of Katella Avenue; (iii) underlying proposed Parking Deck D; and (iv) to allow for Owner and City to further consider and subsequently take all required action to exchange land including the Owner’s land at the site of the former proposed amphitheater and the City owned land at the northwest corner of Cerritos Ave and River Road (APN No.253-631-29). Exhibit “I” to this Development Agreement conceptually depicts the Minor Land Exchanges already implemented and the planned future minor land exchange.
1.56 Mortgage. “Mortgage” means a mortgage, deed of trust or sale and leaseback arrangement or other transaction in which the Property, or a portion thereof or an interest therein, is pledged as security.
1.57 Mortgagee. “Mortgagee” means the holder of the beneficial interest under a Mortgage, or the owner of the Property, or interest therein, under a Mortgage.
1.58 New CFD. “New CFD” means a new community facilities district which will acquire/fund the New CFD Improvements as described in Section 14.6 hereof.
1.59 New CFD Improvements. “New CFD Improvements” means those public facilities authorized under the Mello Roos Act of 1982 which may be funded and maintained through the New CFD, as specified in attached Exhibit “J”.
1.60 Operating Memoranda. “Operating Memoranda” means clarifications to this Development Agreement approved in writing by City and Owner.
1.61 Owner. “Owner” is Anaheim Real Estate Partners, LLC, TS Anaheim, LLC, FCD, LLC and any person or entity with which or into which Anaheim Real Estate Partners, LLC, TS Anaheim, LLC or FCD, LLC may merge, and any person or entity who may acquire substantially all of the assets of Anaheim Real Estate Partners, LLC, TS Anaheim, LLC, or FCD, LLC and any person or entity who receives any of the rights or obligations under this Development Agreement in accordance with the provisions of Section 30 of this Development Agreement.
1.62 Parking Areas. “Parking Areas” means all parking structure(s), and/or all surface parking servicing the Project.
1.63 Parking Utilization Study. “Parking Utilization Study” means a study prepared to determine whether the number of provided parking spaces for the Project may be reduced, as specified in Section 7.3.2 of this Development Agreement.
1.64 Permitted Development. “Permitted Development” includes all buildings and the Parking Areas as identified in Section 7 and as further set forth in the Master and all Final Site Plans. This Development Agreement establishes maximum and minimum characteristics for all Permitted Development as set forth in the Master and Final Site Plans.
-18-
1.65 Platinum Triangle. “Platinum Triangle” means that portion of the City of Anaheim generally bounded on the east by the Santa Ana River, on the south by the Anaheim city limits, on the west by the Santa Ana Freeway, and on the north by the Southern California Edison Easement as shown in Platinum Triangle Master Land Use Plan approved by initial City Council Resolution No. 2004-178 and as amended by Resolution No. 2022-099.
1.66 Previous CEQA Analysis.
“Previous CEQA Analysis” means all of the
CEQA environmental documents described in the Recitals.
1.67 Private Maintenance. “Private Maintenance” means Owner’s or its assignee’s or designee’s obligation to maintain during the respective terms of the Honda Center FMA Amendment or the ARTIC FMA Amendment as set forth in each FMA various public or private facilities, including but not limited to Meadow Park, Katella Avenue, and the ARTIC Garage bridges, access bridge to Lot D, private streets (including roadway, lighting, landscape/irrigation medians and parkways, drainage, traffic signals and signs, pavement markings, curbs, gutters and sidewalks), plazas, smart infrastructure, and streetlights as set forth herein in Section 11.3.5 and to maintain the Honda Center and ARTIC.
1.68 Proposed Fees. “Proposed Fees” means the Development Impact Fees specified in Section 14.1 of this Development Agreement.
1.69 Procedures Resolution. “Procedures Resolution” is Resolution No. 82R-565 adopted by City pursuant to Section 65865 of the Development Agreement Statute.
1.70 Project. “Project” means the development project contemplated by the Master and Final Site Plans with respect to the Property, including but not limited to on-site and off-site improvements, as such development project is further defined, enhanced or modified pursuant to the provisions of this Development Agreement and the Development Approvals.
1.71 Property. “P
roperty” means that certain real property shown and
described on Exhibit “A” to this Development Agreement.
1.72 Reserved.
1.73 Lease Revenue Bonds. “Lease Revenue Bonds” means Anaheim Public Financing Authority Taxable Lease Revenue Bonds (Anaheim Arena Improvement Project) authorized to be issued in one or more series in an aggregate principal amount not to exceed $400,000,000.
1.74 Spring-Up
Maintenance District. “Spring-Up Maintenance District” means a maintenance district that would automatically, subject to approval by the City, come into existence if Owner transfers any portion of the Property except Lot B as shown in Exhibit “A-1” to cover all ongoing maintenance obligations of Owner in effect during the period of Private Maintenance over public or public use improvements, including Meadow Park, bridges, smart infrastructure, streetlights and private streets and plazas. These maintenance costs shall burden the Property, excluding Meadow Park, ARTIC and Honda Center properties and related parking structures. The maintenance standards for the Spring-Up Maintenance District are specified in Exhibit “K”, and the schedule of payment for each parcel or lot of the Property shall
-19-
be determined one hundred twenty (120) days prior to Owner’s provision of written notice to City that Owner is contemplating a transfer of any portion of the Property.
1.75 Support Commercial Uses. “Support Commercial Uses” are commercial/retail uses which may include retail uses, banking or financial offices, food service, restaurants, service establishments and other similar uses in keeping with the nature of the Project and the required uses needed to support the occupants of office buildings, other office development, sports and entertainment venues and residential development in the Platinum Triangle as permitted in Chapter 18.20 (PTMU) Overlay Zone of the Anaheim Municipal Code.
1.76 Reserved.
1.77 Term. “Term” is defined in Section 3, and is a twenty (20) year period, subject to modification or extensions, as specified in Section 3.
1.78 Third Party Challenge. “Third Party Challenge” means legal action instituted by a third party challenging the validity of any provision of this Development Agreement and/or the Development Approvals.
1.79 Transit Special Sign District. “Transit Special Sign District” means the sign district surrounding the multimodal public transit facility south of Katella Avenue as depicted in Exhibit “E”.
1.80 Neighborhood Park. “Neighborhood Park” means an approximately 4.7- acre private park to be constructed and maintained in perpetuity by Owner in accordance with the standards outlined in Exhibit “K-1”, with a recorded public use easement to authorize perpetual public use of and access to the Neighborhood Park.
1.81 Zoning Code. “Zoning Code” refers to Title 18 of the Anaheim Municipal Code.
Section 2. CON DITIONS PRECEDENT TO EFFECTIVENESS OF DEVELOPMENT AGREEMENT AND PROVISION OF PUBLIC BENEFITS.
2.1 Owner and City agree and acknowledge that this Development Agreement shall not be effective and shall be null and void unless the following conditions precedent occur on or before the City holds the second reading of the DA Ordinance: (i) Anaheim Arena Management, LLC and City enter into the Honda Center FMA Amendment; (ii) ATCM, LLC and City enter into the ARTIC FMA Amendment; (iii) City’s compliance with California law in order to allow the Minor Land Exchanges specified in Section 7.7 of this Development Agreement to be consummated; and (iv) City’s approval of the Lease Revenue Bonds. These conditions precedent are solely for the benefit of Owner, and can be waived, if at all, in the sole and absolute discretion of Owner.
2.2 Owner and City agree and acknowledge that as a condition precedent to Ow
ner’s obligation to provide Private Maintenance and the Honda Center Improvements, (i) City shall consider at a noticed public hearing, adopt and issue all necessary ordinances, approvals and clearances to allow the development, construction and operation of the Arena
-20-
Signs; and (ii) Caltrans does issue all necessary certifications, approvals and clearances to allow the development, construction and operation of the Arena Signs. Owner acknowledges and agrees that Caltrans has independent authority to approve and issue all necessary certifications, approvals and clearances and that City’s only obligation, in relation to this subpart (ii), is to support Owner’s application to Caltrans. These conditions precedent are solely for the benefit of Owner, and can be waived, if at all, in the sole and absolute discretion of Owner.
2.3 Owner and City agree and acknowledge that as conditions precedent to Owner’s obligation to provide Private Maintenance and the ARTIC Expansion, (i) City shall consider at a noticed public hearing, adopt and issue all necessary ordinances, approvals and clearances to allow the development, construction and operation of the ARTIC Signs; and (ii) the California High Speed Rail Authority does issue all necessary certifications, approvals and clearances to allow the development, construction and operation of the ARTIC Signs. Owner acknowledges and agrees that the California High Speed Rail Authority has independent authority to approve and issue all necessary certifications, approvals and clearances and that City’s only obligation, in relation to this subpart (ii), is to support Owner’s application to California High Speed Rail Authority. These conditions precedent are solely for the benefit of Owner, and can be waived, if at all, in the sole and absolute discretion of Owner.
Section 3. TERM.
3.1 The term (“Term”) of this Development Agreement shall be that period of time during which this Development Agreement shall be in effect and bind the parties. The Term shall commence on the Development Agreement Date and shall extend for a period of twenty (20) years thereafter, terminating at the end of the day on the twentieth anniversary of the Development Agreement Date, subject to the periodic review and the modification or termination provisions defined in Section 27 and Section 29, respectively.
3.2 This Development Agreement may be terminated by Owner or City and be of no force and effect if the Orange County Transportation Authority (“OCTA”) fails to approve an amendment to the OCTA Master Plan of Arterial Highways prior to issuance of the first building permit for the Project allowing for abandonment of the portion of Douglass Road between Katella Avenue and Cerritos Road shown on Exhibit (“W”). The Parties may, through mutual consent, avoid termination of the Development Agreement pursuant to this subsection if the Parties formally amend the Project to make approval of the amendment to the Master Plan of Arterial Highways unnecessary. City and Owner agree that in the event the MPAH amendment is not approved the Parties will consult and use reasonable efforts regarding a potential amendment to the Project prior to either Party providing a notice of termination of the Development Agreement.
3.3 This Development Agreement shall terminate and be of no force and e
ffect upon the occurrence of the entry of a final judgment or issuance of a final order, after all appeals have been exhausted, directed to City as a result of any lawsuit filed against City to set aside, withdraw or abrogate the approval of the City Council of this Development Agreement or if termination occurs pursuant to the provisions of the Procedures Resolution and such termination is so intended thereby.
-21-
3.4 If not already terminated by reason of any other provision in this Development Agreement, or for any other reason, this Development Agreement shall automatically terminate and be of no further force and effect upon completion of the Project pursuant to the terms of this Development Agreement and any further amendments thereto and the issuance of all occupancy permits and acceptance by City of all dedications and improvements as required by the development of the Project.
Section 4. BINDI
NG COVENANTS.
The provisions of this Development Agreement to the extent permitted by law shall constitute covenants which shall run with the Property for the benefit thereof, and the benefits of this Development Agreement shall bind and inure to the benefit of the parties and all successors in interest to the parties.
Section 5. EFFECT
OF AGREEMENT.
As a material part of the consideration of this Development Agreement, unless otherwise provided herein, the parties agree that the Existing Land Use Regulations and Proposed Fees shall be applicable to development of the Project. Through its approval and execution of this Development Agreement, the City is approving the Master Site Plan and Final Site Plans for Phase 1 (FSP 2020-00004, FSP 2020-00005, FSP 2020-00006, FSP 2020-00007 and FSP 2020- 00008) of the Project. In connection with all subsequent discretionary actions by City required to implement the Master and Final Site Plans and any discretionary actions which City takes or has the right to take under this Development Agreement relating to the Project, including any review, approval, renewal, conditional approval or denial, City, shall exercise its discretion or take action in a manner which complies and is consistent with the Master and Final Site Plans and the 2024 Project Approvals, the Existing Land Use Regulations and such other standards, terms and conditions expressly contained in this Development Agreement. City shall accept and timely process, in the normal manner for processing such matters as may then be applicable, all applications for further approvals with respect to the Project called for or required under this Development Agreement, including, any necessary Final Site Plan, tentative map, vesting tentative map, final map and any grading, construction or other permits filed by Owner in accordance with the Development Approvals.
Section 6. PROJ
ECT LAND USES.
6.1 The Property shall be used for such uses as may be permitted by the Development Approvals and the Existing Land Use Regulations. The density and intensity of use, developable GFA, footprint square footage, the maximum height and size of proposed buildings and structures, lot sizes, set back requirements, zoning, public improvements, and the provisions for reservation or dedication of land for public purposes shall be those set forth in the Development Approvals, the Existing Land Use Regulations and this Development Agreement pursuant to Section 65865.2 of the Development Agreement Statute.
Section 7. PERM
ITTED DEVELOPMENT.
7.1 Description of Permitted Development. The Permitted Development shall be as set forth on the Master and Final Site Plans as modified by the 2024 Project Approvals.
-22-
The Project shall be constructed substantially in conformance with the Master and Final Site Plans as modified by the 2024 Project Approvals. The parties acknowledge that Final Site Plans for Phases 2-5 of the Project are subject to review and approval by the City Planning Commission, whose review is limited to reviewing and ensuring conformance with the provisions of the approved Master Plan as modified by the 2024 Project Approvals, PTMU Overlay Zone and the Platinum Triangle Master Land Use Plan. Owner agrees that City may withhold and not issue further Development Approvals to authorize development and construction of Phases 2 through 5 of the Project until such time as Owner or City have obtained approval or all necessary clearances from Caltrans for SR-57 off-ramp improvements proposed as part of the Project. Notwithstanding the foregoing, City, in its sole reasonable discretion, shall have the ability to issue further Development Approvals for development and construction of portions of Phases 2 through 5 of the Project if, based upon City review and approval of a sensitivity analysis, demonstrating that there is adequate capacity in all required public and private facilities to support development of portions of Phases 2 through 5 of the Project. Owner and City agree that neither the Arena Special Sign District or the Transit Special Sign District include any digital advertising sign authorized by Anaheim Municipal Code Section 4.04.401 (Stadium Special Sign District) or any successor ordinance and located more than 1,000 feet from the Arena or any structure physically connected to the Arena.
7.2 Pardee Finding. Development of the Project is permitted to occur in phases as described and contemplated in the Development Approvals, Exhibit “B-1” and the Master and Final Site Plans. The parties wish to avoid the result of Pardee Construction Co. v.
City of Camarillo, 37 Cal.3d 465 (1984), where the failure of the parties there to expressly provide for the timing of development resulted in the court’s determination that a later-adopted initiative restricting the timing of development prevailed over the parties’ agreement.
Accordingly, the parties acknowledge and agree that Owner shall have the right, subject to the provisions of the Development Agreement, the Development Approvals and the Master and Final Site Plans and the phasing plan specified in Exhibit “B-1”, to develop the Project at such time and in such phases as is set forth in this Development Agreement and in the manner Owner deems appropriate in the exercise of its subjective business judgment.
7.3 Parking Areas. The Parking Areas shall be constructed so that there will be sufficient parking spaces available within the Property to serve the Project, as depicted and substantially in conformance with the Master and Final Site Plans and the supporting Shared Use Parking Study. Owner shall provide a minimum total of 5,700 parking spaces plus an additional minimum of 1,100 off-site parking spaces for employees (“Employee Parking Lot”), for a total of 6800 parking spaces, which is sufficient to meet the 3900-space requirement specified in the Zoning Code for the Honda Center within the Arena District portion of the Project. On the Employee Parking Lot property owned by City and ground leased to Owner, Owner acknowledges and agrees that City shall reserve a 15’ wide bike trail easement along the southern boundary of the Employee Lot, as identified in Exhibit “B”, for the potential future use as a public bike trail (“Bike Trail Easement”). Owner shall be allowed to use the Bike Trail Easement for employee parking, unless and until (i) City provides written evidence to Owner that a bike trail will be able to connect to an existing bike trail to the west, and (ii) City determines to construct this bike trail. City shall provide written notice to Owner twelve (12) months in advance of such construction of the bike trail, and Owner shall be required to find off- site replacement parking for the area impacted by the Bike Trail Easement, estimated to be 100
-23-
spaces. If Owner acquires the Employee Parking Lot property, the parties agree that the Bike Trail Easement shall be recorded against the Employee Lot Property. Owner shall provide a minimum of 701 parking spaces (“Minimum Transit District Parking”), as potentially modified by a future Parking Utilization Study (defined below), plus the continued use of 405 spaces off- site in the Anaheim Stadium parking area (“Off-Site Stadium Transit Parking”) for a total of 1106 spaces, but up to a maximum of 1755 spaces (1,350 spaces in the ARTIC Garage plus the 405 Off-Site Stadium Transit Parking spaces), which is sufficient to meet the 1,082 parking spaces required by the prior-issued Conditional Use Permit for ARTIC (“ARTIC CUP”) transit customers. The City recognizes upon commencement of construction of the Meadow Park and before the opening of the ARTIC Garage (“Interim Parking Condition”), the total transit customer parking, inclusive of the 405 spaces off-site in the Anaheim Stadium parking area, may fall below 1,082 spaces but shall be greater than the minimum 900 spaces required by agreement with OCTA/Metrolink. City acknowledges and agrees that the Parking Areas, and the number of parking spaces provided in the Parking Areas, both on-and off-site, satisfies the current parking obligations specified in the Honda Center FMA Amendment, the ARTIC CUP in relation to parking exclusively south of East Katella Avenue, and the Shared Use Parking Study. The Parties agree that the Project will not include more parking than required by the City’s Municipal Code.
7.3.1 Owner shall take all actions necessary to obtain building permits, construct and complete Parking Decks B, C and D along with the Employee Parking Lot, totaling a minimum of 6,800 parking spaces, no later than the first final building and zoning inspection for a building in Phase 1 (“Minimum Phase 1 Parking”). Owner is considering installation of solar panels on the roofs of Parking Decks A, B, C and D. If Owner chooses to install solar panels, City acknowledges and agrees that approval of the solar panels shall be considered to be ministerial, with approval of the construction to be issued by the City Building Official. It is contemplated that City may ultimately acquire Parking Decks B, C and D. If City acquires Parking Decks B, C and D, City shall provide a perpetual parking easement in favor of Owner, for use by Owner and its subsequent owners, lessees and licensees of all facilities of the Project, north of Katella Avenue, except for the Project’s residential units and hotels. The Minimum Phase 1 Parking shall remain open and operating until the ARTIC Garage is complete and open for operation in Phase 4, as discussed below. Each subsequent Project phase after Phase 1 (“Subsequent Phase”) shall require an updated Parking Supply and Demand Study (“Parking Study”) with the submittal of the Final Site Plan(s) in that Phase. The Parking Study shall follow the methodology applied in the original Parking Study approved with the Project, but applied to each particular phase. In connection with each Subsequent Phase, Owner shall also prepare an interim construction parking and access plan (“Construction Access Plan”) with the submittal of the Final Site Plan in that phase. Both the Parking Study and Construction Access Plan for each Subsequent Phase shall be reviewed and approved by Public Works Director prior to the issuance of building permits for that Subsequent Phase.
7.3.2 Notwithstanding the foregoing, the parties agree that in the future, due to changes in technology or enhanced public transportation options, operation of the Project may require fewer parking spaces. The parties agree that during the term of this Development Agreement, Owner shall prepare or retain a consultant to prepare a parking utilization study (“Parking Utilization Study”) to determine whether the number of provided parking spaces for the Project may be reduced. Owner shall prepare the Parking Utilization Study prior to the
-24-
development of Phase 4 of the Project. Owner shall pay for the costs of preparation of the Parking Utilization Study. The Parking Utilization Study shall analyze the use of the actual parking in the Project after buildout and occupancy of Phases 1 through 3 of the Project and prior to Phase 4, and shall be applied to the Parking Study to determine the ultimate number of parking spaces for the ARTIC Garage. The Parking Utilization Study also may be used to determine whether a reduction in the number of parking spaces may be warranted for other Project parking areas. Any reduction in required parking spaces that may be approved by City, as an Operating Memoranda, based on the Parking Utilization Study, shall reduce the Minimum Transit District Parking, but in no event shall such reduction result: (1) in the provision of less than 480 parking spaces in the ARTIC Garage (“Minimum Reduced Parking”), based upon (i) 456 spaces which currently exist at lot A; (ii) the 15 spaces required for Meadow Park; (iii) the 9 spaces required for employee parking for the proposed future transit project connecting ARTIC to the Anaheim Resort or (2) result in any of the 1,082 ARTIC required parking spaces being satisfied in parking structures or surface parking constructed as part of the Project north of Katella Boulevard, or (3) reduce transit parking south of Katella to fewer than 900 parking spaces at any time during or after construction of the Project.
7.3.3 Prior to issuance of the first building permit for the Project, the Owner s
hall record a covenant against the Property in a form approved by the City Attorney’s Office that requires Owner, its assignees or transferees to provide traffic control on all private streets on the Property. No later than the first final building and zoning inspection for the Project, Owner shall record a covenant against the Property in a form approved by the City Attorney’s Office that requires Owner, its assignees or transferees to reimburse the City for the hourly rates (fully burdened) for costs associated with the use of Police Department employees including police officers, police sergeants, full-time traffic controllers, part-time traffic controllers, traffic control supervisor(s), traffic control assistants (TCA’s); and/or Public Works Traffic Management Center staff that may be needed on-site before, during and after an event for traffic control on or related to public streets, City-Owned shared intersections, and/or Developer operated intersections. City shall provide all appropriate information to document City’s actual costs. In connection with City approval of the Phase 1 Final Site Plans and any subsequent Final Site Plans, Owner shall submit for City approval, an Event Traffic Management Plan. No later than the first final building and zoning inspection for the Project, Owner shall also enter into an agreement with City, in a form substantially in the form of Exhibit “K-2”, wherein Owner shall be responsible to fund a proportionate share of ongoing operation and maintenance costs for shared (i.e. serve both the Project and the City) City-owned intersections that the City operates and that are adjacent to and serve the Project. As part of the such agreement, Owner shall not be subject to any liability or any indemnity obligation to City regarding any claims or losses arising from the City’s operation and maintenance costs associated with the City-owned intersections covered by the agreement.
7.4 ARTIC Garage.
The ARTIC Garage shall be completed and operational
no later than the first final building and zoning inspection for any non-residential building in Phase 4. If the ARTIC Garage is required for any phase earlier than Phase 4, it shall be completed and operational prior to issuance of the first final building and zoning inspection for any non-residential building in that phase. Owner is responsible for designing and constructing the ARTIC Garage. Owner shall prepare, submit to the City and obtain approval of the Final Site Plan that includes the ARTIC Garage or Expanded ARTIC garage and obtain a building permit
-25-
for the ARTIC Garage or Expanding Artic Garage, as applicable, no later than eighteen (18) months prior to commencement of construction of any non-residential building in Phase 4. The ARTIC Garage shall contain a minimum of the Minimum Reduced Parking as defined above.
The number of parking spaces of the ARTIC Garage may be increased if City or Owner are able to obtain grants or secure other funding sources (“Expanded ARTIC Garage Funding”) to fund the additional amount of the increased design and construction costs to expand the ARTIC Garage (“Expanded ARTIC Garage”). If the City acquires Expanded ARTIC Garage Funding allowing the Owner to construct the Expanded ARTIC Garage, Owner shall construct the Expanded ARTIC Garage, and shall receive prompt reimbursement from City upon completion of the Expanded ARTIC Garage. Approval by the Anaheim Transportation Committee of use of ATID Transportation Funds generated solely from hotels constructed as part of the Project and as further described in Section 23(b) does not constitute Expanded ARTIC Garage Funding.
Owner’s timeframe for completing the Expanded ARTIC Garage shall be extended for a period of one (1) year beyond the requirement for completion of the ARTIC Garage.
7.5 Life of Subdivision Maps and Other Development Approvals.
The terms
of all subdivision maps approved by the City for the Project shall automatically be extended such that all subdivision maps shall remain in effect for a period of time coterminous with the Term of this Development Agreement. Owner shall have the right to process vesting tentative and vesting parcel maps, with all such maps being able to be recorded in phases. The term of all other Development Approvals shall be automatically extended such that the Development Approvals shall remain in effect for a period of time coterminous with the Term of this Development Agreement provided that the term of such Development Approval may be further extended pursuant to applicable California law.
7.6 Written Verification of Sufficient Water Supply. A ny and all tentative
subdivision maps approved for the Project shall comply with Government Code Section 66473.7, if, and to the extent, required by Government Code Section 65867.5(c).
7.7 Minor Land Exchanges. S
ubject to compliance with California law,
including applicable procedures required pursuant to the Surplus Land Act (Gov. Code §54220 et. seq.), Owner and City agree to exchange an equal amount of land to adjust boundaries or convey in two stages: (i) City owned land to Owner around the Honda Center apron identified in the Existing Honda Center FMA with a grant of easements or fee from Owner to the City for the City to retain access to land beneath the surface, occupied by a portion of the basement of the Honda Center and necessary for City to access the exterior of the Honda Center for repair and maintenance activities and a separate easement from the City to Owner for the proposed Central Utility Plant located within the land on which Parking Deck D is located permitting access to and the construction, operation and maintenance of the Central Utility Plant proposed to be constructed within the helix portion of Parking Deck D as depicted on Attachment 2 to this Operating Memorandum in exchange for Owner’s land underlying the proposed Parking Deck D to City (“Stage 1”); and (ii) land around the proposed hotel site south of Katella Avenue and land identified as the Amphitheater Parcel (“Stage 2”) (collectively "Minor Land Exchanges").
Exhibit “I” conceptually depicts the Minor Land Exchanges as well as the anticipated stages of Minor Land Exchanges. Stage 1 of the Minor Land Exchanges was consummated on April 17, 2024. Stage 2 of the Minor Land Exchanges as depicted on Exhibit “I” shall be consummated not later than June 30, 2025. The Parties shall process all necessary approvals required under the
-26-
Subdivision Map Act to enable building permits to be issued on newly created lots which are created due to the completion of the Minor Land Exchanges. Owner and City agree that the property lines for the parcels included in Stage 2 of the Minor Land Exchanges will, prior to the consummation of the Stage 2 of the Minor Land Exchanges, be adjusted and memorialized through a subsequent Operating Memorandum to reflect: (1) the agreed upon parcel boundaries between the City and Owner of the Stage 2 properties; and (2) if applicable, the delineation of the identifiable areas of control, management and maintenance amongst the modified parcels for each of the Owner and the City. Owner and City will cooperate such that the final exchanges of land will result in property lines that consider and incorporate physical improvements that are or will be owned by each party on their respective properties. In addition, subject to compliance with California law, Owner and City agree to exchange land and to adjust boundaries such that the formerly proposed amphitheater property included within the Stage 2 Minor Land Exchange would thereafter be conveyed by the Owner to the City in exchange for City-owned land at the northwest corner of Cerritos Avenue and River Road (APN No. 253-631-29). This additional land exchange will, upon compliance with the applicable law, be completed within one year from the second reading and adoption of the Ordinance No._____ approving this Amended and Restated Development Agreement Development Agreement
7.8 Dedications/Abandonments Related to River Road, Katella Avenue and Douglass Road. In addition to any dedications contemplated in Section 13 below, in order to make the parcels compatible with the development boundaries of the Project, the Parties agree to take the following actions to effectuate roadway dedications and/or abandonments: (1) City agrees and shall process for abandonment a portion of Douglass Road (as shown on Exhibit “W”); such vacation shall occur no earlier than OCTA approval of an amendment to the OCTA Master Plan of Arterial Highways (“MPAH”) allowing for abandonment of the portion of Douglass Road between Katella Avenue and Cerritos Road shown on Exhibit (“W”); and (2) Owner agrees and shall irrevocably offer for dedication to the City a portion of River Road and Katella Avenue (as shown on Exhibit “W”); such dedication shall occur no earlier than approval of the MPAH amendment allowing for the addition of River Road. A public utilities and access easement in favor of the City shall be reserved for all existing public City-owned utilities as shown on Exhibit “W” that are located in the portion of Douglass Road that is proposed for abandonment by City. The process to abandon/dedicate the portions of the roads contemplated above shall be completed within thirty (30) days or as soon as reasonably possible thereafter of traffic being rerouted on River Road (between Katella Avenue and Stanley Cup Way, and Douglass Road north of Stanley Cup Way. In recognition of Owner’s dedication of the portion of River Road and Katella Avenue shown in Exhibit “W”, City shall not require compensation for its abandonment of the portion of Douglass Road. However, to the extent that the abandonments/dedications contemplated in this Section 7.8 result in the City losing eligibility for gas tax funding provided for projects consistent with the MPAH, Owner shall pay City for such lost gas tax revenue annually for the duration of the Development Agreement up to maximum amount of $10,000 per year. The Parties shall cooperate regarding compliance with and completion of any required statutory procedures and/or requirements necessary to effectuate the abandonments/dedications. Owner and City will cooperate and Owner shall, at its expense, prepare any exhibits or documents necessary to request and/or receive OCTA approval of an amendment to the MPAH to reflect the removal of the portion of Douglass Road and the addition of River Road. OCTA approval must be obtained prior to the abandonment of Douglass Road
-27-
and dedication of River Road. Prior to any temporary closure of the portion of Douglass Road shown in Exhibit “W” as part of construction of Phase 1 of the Project, Owner shall construct and provide temporary public vehicular access to River Road between Katella Avenue and Cerritos Avenue or other interim alternate routes from River Road to Stanley Cup Way to Douglass Road acceptable to the City. The temporary public vehicular access easement shall be in form that is subject to approval by the City Attorney.
7.9 Encroachment License. C
ity grants to Owner, upon approval of the Public
Works Director, an Encroachment License providing air space and access rights to Owner for the bridge structures that the Owner will construct over public streets associated with the Project, including the bridges over Katella Avenue and Douglass Road, as depicted on Exhibits “I-1”, if necessary and consistent with the conditions of approval, as shown on Exhibit “L”. Owner shall grant to City public access rights, in perpetuity, for use of any stairway or other form of access to bridge structures. City further grants to Owner, upon approval of the Public Works Director, an Encroachment License for the following: (i) infrastructure improvements between Stanley Cup Way and Cerritos Avenue within the existing Douglass Road right of way and (ii) construction of the Market Hall Building within the existing Douglass Road right of way and for construction of all/or portions of the Paseo needed prior to the Douglass Road abandonment being completed (provided vehicular access from Katella Avenue to Cerritos Avenue is maintained).
7.10 Potential Development of Lot B. Subject to compliance with California and Federal law, Owner and City agree to negotiate in good faith an option for Owner to either buy or ground lease from City Lot B, as shown in Exhibit “A-1”, to develop Lot B, with a maximum of 170,000 square feet of institutional use (“Lot B Building”) under the following terms: (i) Owner shall make available for perpetual use by the public the ARTIC Garage which shall include at Owner’s sole cost additional (beyond the Minimum Required Parking) necessary employee, guest and ADA accessible spaces in a minimum amount of 510 spaces assuming the building is greater than three stories in height (with spaces available for multiday parking similar to what is currently allowed on Lot B) to ensure there is adequate parking for the Lot B Building and Owner shall remain in compliance with the requirements of Section 7.3; (ii) City and Owner shall each have the right, in its sole discretion, to approve or deny any terms within the option or lease agreement and (iii) Owner shall be responsible at its sole cost to obtain City approval of a conditional use permit for the building, design and construct the improvements required for the Lot B Building. This Section 7.10 does not obligate the City in any way to convey the Property to Owner, and does not obligate Owner in any way to develop Lot B, but if City conveys an interest in Lot B to Owner, the provisions of this Development Agreement shall govern Development of Lot B.
Section 8. DENSI
TY OF PERMITTED BUILDINGS.
The Permitted Buildings shall be between the minimum and maximum sizes and shall not exceed the maximum heights and maximum footprints set forth on the Master and Final Site Plans and the Existing Land Use Regulations.
-28-
Section 9. ENFORCEMENT.
Unless this Development Agreement is terminated or cancelled pursuant to the provisions of this Development Agreement, this Development Agreement or any amendment hereto, shall be enforceable by any party notwithstanding any change hereafter in any applicable general plan, specific plan, zoning ordinance, subdivision ordinance or building ordinance adopted by City which alters or amends the rules, regulations or policies of Development of the Project as provided in this Development Agreement pursuant to Section 65865.4 of the Development Agreement Statute; provided, however, that the limitations of this Section 9 shall not apply to changes mandated by State or Federal laws or other permissible changes or new regulations as more particularly set forth in Section 25.
Section 10. PUBLIC IMPROVEMENTS AND SERVICES.
For all purposes under this Agreement, public improvements and facilities consist solely of work performed by Owner and/or its contractors or agents that (1) will be used by the public and (2) either (a) is paid for with public funds or (b) is paid for with private funds but only to the extent that such work is specifically designated as a public improvement in this Agreement. In addition to performing any other obligations heretofore imposed as conditions of approval set forth in Exhibit “L”, as material consideration for the City’s entering into this Development Agreement, Owner shall undertake the construction and installation of all forms of public improvements required to support the Project including smart infrastructure, public and private streets, sewer, storm drain, and water system improvements and to enhance area-wide traffic circulation and emergency police and fire protection service within the time periods as set forth below in this Development Agreement, the Development Approvals including the Conditions of Approval and the Project Traffic Study and in conformance with the Existing Land Use Regulations.
City shall cooperate with Owner for the purpose of coordinating design and construction of a
ll public improvements constructed under the Development Approvals or this Development Agreement to existing or newly constructed public improvements, whether located within or outside of the Property. For any public improvements that require separate approval by Caltrans, City will serve as applicant and shall participate in meetings with Caltrans staff and Owner coordinated by Owner, at Owner’s sole cost. City will also provide a letter authorizing Owner to represent the City in discussions with Caltrans when the City is not otherwise present. Owner shall be responsible for (i) the preparation of all design, engineering and construction plans for submission to City and Caltrans; (ii) obtaining any permits from Caltrans or any other regulatory agency and (iii) constructing such improvements and paying all costs. Owner shall reimburse City for its actual costs, including consultant and legal fees, for City actions to coordinate on the design and construction of public improvements.
Owner shall be responsible for and use good faith efforts to acquire any right(s)-of-way necessary to construct the public facility improvements required by, or otherwise necessary to comply with the conditions of, this Development Agreement or any Development Approvals.
Such good faith efforts shall include: (1) obtaining an independent appraisal of the value of the necessary right-of-way, (2) making an offer to purchase the necessary property interests, (3) and engaging in commercially reasonable efforts to acquire the property. Should it become
-29-
necessary due to Owner’s failure or inability to acquire said right(s)-of-way within six (6) months after Owner begins its efforts to so acquire said right(s)-of-way, City shall use reasonable efforts to negotiate the purchase of the necessary right(s)-of-way to construct the public improvements as required by, or otherwise necessary to comply with the conditions of this Development Agreement and, if necessary and in accordance with the procedures established by State law, and the limitations hereinafter set forth in this Section 10 and Section 11, City may, in its sole discretion, subject to engaging in a meet and confer process with Owner, use its powers of eminent domain to condemn said required right(s)-of way. Owner agrees to pay City for all City costs, including but not limited to appraisal, right-of-way consultant, legal fees and costs and property acquisition costs associated with said acquisition and condemnation proceedings. If the City cannot make the proper findings or if for some other reason under the condemnation laws City is prevented from acquiring the necessary right(s)-of-way to enable Owner to construct the public improvements required by, or otherwise necessary to comply with the conditions of, this Development Agreement, then the parties agree to amend this Development Agreement to modify Owner’s obligations accordingly and still be consistent with environmental review documents FSEIR 332, EIR No. 2008-00339 and Addendum 11. Any such required modification shall involve the substitution of other considerations or obligations by Owner (of similar value) as are negotiated in good faith between the parties. Nothing contained in this Section 10 nor in Section 11 shall be deemed to constitute a determination or resolution of necessity by City to initiate condemnation proceedings.
10.1 Construction Parking and Access, Construction Schedule.
10.1.1 Owner shall prepare, for each Subsequent Phase, an interim construction parking and access plan (“Construction Access Plan”) with the submittal of the Final Site Plan in that phase. Both the Parking Study and Construction Access Plan for each Subsequent Phase shall be subject to review and approval by the City prior to the issuance of building permits in that phase.
10.2 Utilities (Water, Electrical, Gas, Sewer, Drainage and Telecommunications). Owner shall construct the public improvements necessary for the provision of requisite water, electrical, gas, telecommunications, sewer and drainage requirements for Project as more fully set forth in the Development Approvals. Owner shall construct and relocate utilities as may be required to provide services to the Permitted Development on the Property or that are displaced by the construction of the Permitted Development. As Owner submits detailed construction plans in order to obtain building, grading or right of way permits for the Permitted Development and/or the size and nature of the Project varies, the utilities that Owner will construct or relocate may be revised by the City Engineer in compliance with the requirements of federal and California law and City and local agency standards and are reconstructed accordingly by the Owner as approved by and the satisfaction of the City Engineer. City shall cooperate with Owner on the leasing of conduit for private IT infrastructure in Douglass, Katella and River Roads, as such infrastructure may serve both private and public facilities in the Project.
10.3 Water Service. Owner will provide engineering studies to size the water mains for ultimate development within the Project. Said engineering studies will be conducted as required by the Development Approvals. The studies shall be subject to the approval of the
-30-
General Manager, Public Utilities Department or authorized designee. Alternatively, at Owner’s election, the water system may be constructed incrementally, provided that said incremental phasing is adequate to provide municipal demands and fire flow protection for the proposed development phasing. Owner will conform with Rule 15D of the Water Utility’s Rates, Rules and Regulations which provides for, in part, a fee based on GFA and the advancement of additional funds to construct the upgraded water facilities. Owner shall be entitled to reimbursement in accordance with the terms of Rule 15D for the advancement of additional funds to construct the upgraded water facilities.
10.4 Sanitary Sewer and Storm Drains. P
rior to final building and zoning
inspections for the first building within the Permitted Development, Owner will construct all sanitary sewers, and storm drains and appurtenant structures (including treatment control BMP’s as required by the WQMP serving areas being approved for occupancy) to serve the ultimate development of the Property as provided by area wide engineering studies to be conducted as required by the Development Approvals. On-site (i.e. not in the City right of way) sanitary sewer and storm drain systems shall be privately owned and maintained unless otherwise approved in writing by the City Engineer. All studies shall be subject to the approval of the City Engineer. Owner will construct improvements identified in said studies. The systems may be constructed incrementally subject to the approval of the City Engineer and where consistent with City Engineer approved studies, City master plans for installation of sanitary sewer and storm drains, Platinum Triangle utility installation plans and approved Final Site Plans, and provided that said incremental phasing is constructed to provide full capacity at the earliest time that full capacity may be necessary and that the incremental phasing is adequate to provide capacity for the proposed development phasing.
10.5 Conveyance of Utility Easements. Owner shall prepare and convey to City public utilities easements, in a form acceptable to the City Attorney’s office, for any water, electrical, gas, sewer, storm drain, drainage or telecommunications facilities constructed in private streets, including those that may be constructed in Douglass Road after the vacation contemplated in Section 7.8. Owner shall submit the draft easements for City review prior to approval of the final map and shall submit the final fully executed easements to City prior to recordation of the final map. OWNER agrees that CITY may either record the final fully executed easements or direct that Owner record such easements in which case Owner shall do so within seven (7) business days of receiving such request.
10.6 Timing, Phasing and Sequence of Public Improvements and Facilities.
The timing, phasing and sequence of the construction of public improvements and facilities or the payment of fees therefor shall be constructed or paid in accordance with the timing, phasing and sequence set forth in this Development Agreement, including specifically Exhibit “C”, Sections 10.1.1 and 11.3.1, and the Master and the approved Final Site Plans. City will cooperate with Owner for the purpose of coordinating all public improvements and facilities constructed under this Development Agreement or any Development Approvals, that are within the jurisdiction of the City.
10.7 Traffic Circulation Improvements. In or
der to assist City in providing for
area-wide traffic circulation and to mitigate traffic impacts from and as required by this Project, Owner shall cause to be made or constructed the traffic circulation improvements to public and
-31-
private streets identified for the Project including all applicable measures from the Updated and Modified Mitigation Monitoring Program 106C approved in conjunction with Subsequent EIR No. 339, the Traffic Study for The ocV!BE Mixed-Use Project, Anaheim, California prepared by Pirzadeh & Associates, Inc. and Gibson Transportation Consulting, Inc. and dated August, 2022 and the Mitigation Monitoring Plan No. 383, as shown on the Master and Final Site Plans. In addition, City will cooperate with Owner on the integration of “smart infrastructure” in the public rights of way at Owner’s expense pursuant to Section 7.3.3 to assist in the management of traffic and security on adjacent public roads at Katella Avenue, River Road and Ball Road upon mutual agreement of the final design. Such “smart infrastructure” is specified in Exhibit “O“ to this Development Agreement.
10.8 Public and Fire Access Easements. In addition to the public access easements related to public use of Neighborhood Park, Owner shall prepare and convey to City public access easements for public use, in perpetuity, of private streets within the Project, the plazas and gardens within the Project, access to the bridges that cross Katella Avenue and Douglass Road, access to the public restrooms at the Amphitheater, and fire access to the Amphitheater and Meadow Park in a form acceptable to the City, Attorney’s office. Owner shall submit the draft easements for City review prior to approval of the final map and shall submit the final easements to City prior to recordation of the final map. Owner agrees that City may either record the final fully executed easements or direct that Owner record such easements in which case Owner shall do so within seven (7) business days of receiving such request.
10.9 Prevailing Wage. To t
he full extent required by applicable federal and
state law, Owner and its contractors, subcontractors and agents shall comply with California Labor Code Section 1720 et seq. and the regulations adopted pursuant thereto (“Prevailing Wage Laws”), and shall be responsible for carrying out the requirements of such provisions. This requirement is applicable to: (1) design and construction of Meadow Park as required in Section
11.1, (2) design and construction of utilities within the public right of way as required in Section
10.2, (3) design and construction of traffic circulation improvements within the public right of way as set forth in Section 10.7, (4) design and construction of Parking Areas as set forth in Section 7.3, (5) design and construction of any additional public improvements constructed that are in whole or part paid for with public funds including the ARTIC Garage, and (6) design and construction of any public improvements constructed with CFD funding as required in Sections
14.5 and 14.6. Owner covenants to take no action which would cause City to violate any applicable Prevailing Wage Laws.
10.10 Reserved.
10.11 Construction of Public Improvements. Public improvements and facilities that are required to be constructed as part of this Development Agreement and the Development Approvals shall be designed and constructed in keeping with the then-current (i.e. at the time of actual design and construction of the public improvements) Platinum Triangle Acquisition and Funding Agreement, if, and as applicable, the acquisition and funding agreement for the New CFD, if, and as applicable, City-wide standards and requirements of the City agency which shall accept their dedication. In connection with all of the public improvements and facilities, Owner shall not permit any contractor it hires to start work unless and until it is duly licensed in California and qualified to complete the work (the “Contractor”) and Owner will require any
-32-
direct contractors to flow down this requirement to their subcontractors. The Contractor shall contract directly with Owner pursuant to an agreement to be entered into by Owner and Contractor (the “Construction Contract”), which shall: (i) be a guaranteed maximum price contract, GMP, lump sum, unit price or other type of contract mutually agreed upon by the parties; (ii) require the Contractor or Owner to obtain and maintain performance and payment bonds for 100% of the cost of construction for performance and payment for labor and materials (and include the City and Owner as dual obligees under the bonds) for the public improvements and facilities only (and not to include cost of construction of any private improvements and facilities in connection with the Project), or provide a letter of credit or other security satisfactory to the City, in accordance with the requirements of the Anaheim Municipal Code and the California Public Contract Code; (iii) require the Contractor to obtain and maintain customary insurance, including workers compensation in statutory amounts, employer’s liability, general liability, builders all-risk with the City named as additional insured; (iv) require, as condition of payment, that the Contractor release the City from any and all claims relating to the construction, including but not limited to mechanics liens and stop notices; (v) subject to the rights of any Mortgagee that forecloses on the Property, include the City as a third-party beneficiary, with all rights to rely on the work, receive the benefit of all warranties, and enforce the terms and conditions of the Construction Contract as if the City were an original party thereto; and (vi) require that the City be included as a third-party beneficiary, with all rights to rely on the work product, receive the benefit of all warranties and covenants, and prospectively assume Contractor’s rights in the event of any termination of the Construction Contract, relative to all work performed by the Project’s architect and engineer. For all public improvements and facilities that are to be constructed by Owner, and which Owner may receive reimbursement from City, the Construction Contract shall be a guaranteed maximum price contract, GMP, lump sum, unit price or other type of contract mutually agreed upon by the parties.
For all public improvement and facilities that are to be constructed by Owner, and which Ow
ner may receive reimbursement from CFD 08-1, the maximum amount paid out of CFD funds for CFD 08-1 Improvements (as defined in Section 14.5) will be as follows:
(x) Owner shall be entitled to receive through an acquisition agreement related to CFD Improvements approved in the Platinum Triangle Implementation Plan and as shown on Exhibit “H” up to twenty percent (20%) of (i) the additional construction proceeds from CFD 08-1 Bonds that are generated by the special tax revenues levied on CFD 08-1 Core Parcels, and (ii) the special tax revenues collected in connection with the levying of special taxes on CFD 08-1 Core Parcels and that is not used to pay debt service on outstanding CFD 08-1 Bonds or CFD 08- 1 administrative costs.
(y) Owner shall be entitled to receive through an acquisition agreement related to CFD Im
provements approved in the Platinum Triangle Implementation Plan and as shown on Exhibit “H” up to twenty percent (20%) of (i) the additional construction proceeds from CFD 08-1 Bonds that are generated by the special tax revenues levied on ACC Residential Units, and (ii) the special tax revenues collected in connection with the levying of special taxes on the ACC Residential Units and that is not used to pay debt service on outstanding CFD 08-1 Bonds or administrative costs necessary to administer CFD 08-1, (“Owner’s Share of ACC Annexation Capacity”) provided that the first one million dollars ($1,000,000) of such construction proceeds shall be credited towards the Owner’s development agreement obligation in Section 22(i) to
-33-
“consent to and support of an amendment to provide additional funding equal to one million dollars ($1,000,000) for the New Fire Station …” and any remaining portion of Owner’s Share of the ACC Annexation Capacity shall be for reimbursement of infrastructure costs for River Road.
(z) Owner shall be entitled to receive through an acquisition agreement related to CFD Im
provements approved in the Platinum Triangle Implementation Plan and as shown on Exhibit “H” up to one hundred percent (100%) of (i) the additional construction proceeds from CFD 08- 1 Bonds that are generated solely by the special tax revenues levied on the Annexation Parcels, and (ii) the special tax revenues collected in connection with the levying of special taxes on the Annexation Parcels that is not used to pay debt service on outstanding CFD 08-1 Bonds or CFD 08-1 administrative costs, less (iii) the amount of the City’s Share of ACC Annexation Capacity (“Annexation Public Facilities Capacity”).
The sum of (x), (y) and (z) CFD 08-1 Bond capacity amounts described in (x), (y), and (z)
above shall be referred to herein as “Owner’s Share of CFD 08-1 Bond Capacity.” For avoidance of doubt the City agrees that the words “up to” as used in subsections (x), (y) and (z) shall not be interpreted to allow the City to allocate less than the specified percentage amounts (i.e. 20%, 20% or 100%) for qualifying public improvement reimbursements as set forth in the acquisition agreement and the City agrees that all improvements set forth on Exhibit “H” will qualify as public improvements eligible for reimbursement under the acquisition agreement and the Platinum Triangle Implementation Plan in the lesser amount of (i) actual cost to construct, or (ii) Owner’s Share of CFD 08-1 Capacity. Owner shall not be entitled to any CFD 08-1 Bond Proceeds arising from the ACC Residential Units until the property on which the ACC Residential Units has been categorized as Developed Property (as defined under the Rate and Method of Apportionment of Special Tax for CFD No. 08-1). If there is remaining Owner’s Share of CFD 08-1 Bond Capacity after all of the CFD Improvements shown on Exhibit H have been constructed and Owner has received its maximum amount of Owner’s Share of CFD 08-1 Bond Capacity pursuant to the terms of an acquisition agreement, Owner and City agree that any remaining Owner’s Share of CFD 08-1 Bond Capacity can be reallocated by the City to other CFD 08-1 improvements.
Owner and City further agree at such time as Owner creates and City approves the parc
el(s) upon which the ACC Residential Units will be constructed that City and Owner will prepare and execute an Operating Memoranda that will identify the parcel or parcels as the ACC Annexation Parcels and the remaining portion of the Annexation Parcels as the Original Annexation Parcels. The Operating Memoranda will replace the current subsections (y) and (z) above and will memorialize: (1) that Owner shall be entitled to receive through an acquisition agreement related to CFD Improvements approved in the Platinum Triangle Implementation Plan and as shown on Exhibit “H” up to one hundred percent (100%) of (i) the additional construction proceeds from CFD 08-1 Bonds that are generated solely by the special tax revenues levied on the Original Annexation Parcels, and (ii) the special tax revenues collected in connection with the levying of special taxes on the Original Annexation Parcels that is not used to pay debt service on outstanding CFD 08-1 Bonds or CFD 08-1 administrative costs, and (2) that Owner shall be entitled to receive through an acquisition agreement related to CFD Improvements approved in the Platinum Triangle Implementation Plan and as shown on Exhibit “H” up to one twenty percent (20%) of (i) the additional construction proceeds from CFD 08-1 Bonds that are
-34-
generated solely by the special tax revenues levied on the ACC Annexation Parcels, and (ii) the special tax revenues collected in connection with the levying of special taxes on the ACC Annexation Parcels that is not used to pay debt service on outstanding CFD 08-1 Bonds or CFD 08-1 administrative costs.
Owner acknowledges and agrees it shall be responsible for complying with all City procurement laws applicable to Owner’s construction of public improvements and facilities, including Meadow Park, required to be constructed as part of this Development Agreement and Development Approvals. The parties agree that, to the extent that applicable City procurement laws require competitive bidding for Owner-Contractor agreements, Owner may prequalify bidders, and, to the extent that applicable City procurement laws require competitive bidding for Contractor-subcontractor agreements, Owner may allow its Contractor(s) to prequalify bidders.
10.12 Maintenance of P
ublic and Private Infrastructure Improvements. Except
for the public infrastructure set forth on Exhibits “H” and “J,” Owner is obligated to maintain, repair and replace the public and private infrastructure improvements. Owner’s maintenance obligation shall be to the satisfaction of the City, consistent with the design plans and standards to be followed by the City so that the improvements retain a first-class appearance and shall also be performed in a manner such that the infrastructure improvements shall not constitute a nuisance. All replacement parts, restoration and repairs shall be at least equal in quality to the original condition of the infrastructure improvements. Owner shall conduct maintenance inspection of the improvements at least once a year and shall retain proof of such inspection and make such inspection reports available to the City within thirty (30) days upon request. City, after 10 day written notice to Owner and if Owner fails to commence the repair within that 10- day period and complete the repair within a reasonable period of time, shall have the right, but not the obligation, to make the repair and obtain reimbursement from the Owner for the costs of such repair.
Section 11. PUBL
IC IMPROVEMENTS AND SERVICES—PARKS, AMPHITHEATER
AND BIKE TRAIL LANDSCAPED AREA
11.1 Public Parks. Because the Property is located within the Platinum Triangle Mixed Use Overlay Zone, and greater than eight (8) acres with residential development totaling up to 2,250 dwelling units, Owner is required to provide and construct an on-site park of a minimum size of 44 square feet for each residential unit, or up to 99,000 square feet of parkland. In addition, Owner must pay park in lieu fees pursuant to Anaheim Municipal Code Section 18.20.110. In order to satisfy these obligations, Owner shall, no later than the first final building and zoning inspection of occupancy in Phase 2, record a public use easement to authorize perpetual public use of Neighborhood Park and public access to five public parking spaces adjacent to the Neighborhood Park, which shall be subject to a three-hour parking limit, in a form acceptable to the City Attorney’s office, over the Neighborhood Park and the private street adjacent to Neighborhood Park, and Owner shall not receive any parkland dedication credits. Owner shall have the ability to close the private street adjacent to Neighborhood Park for limited periods of time not exceeding two (2) hours to prevent cut-through vehicular traffic exiting Honda Center events, subject to an event management plan. The Public Works Director shall have the authority to approve modifications to the public use easement location based on the final construction configuration. City acknowledges and agrees that Owner’s construction -35-
and maintenance of Neighborhood Park complies with the public park dedication requirements specified herein. Consistent with existing Code requirements and policies, no credit shall be given for Neighborhood Park improvements. Owner shall construct, own (subject to the public use easement described hereinabove), manage and maintain Neighborhood Park in perpetuity.
Neighborhood Park shall be operated in accordance with the City’s standard operating hours for City parks and shall be open and accessible to the general public during said operating hours, with the ability to deviate from standard operating hours for public access through issuance of a Special Event Permit pursuant to Anaheim Municipal Code Section 18.38.245 Special Event Regulations Within the Platinum Triangle. Not later than six months prior to opening of the first phase of Neighborhood Park, Owner shall propose for City review and approval by the Community Services Director an operations plan for Neighborhood Park. Owner is permitted to hold private, community-oriented events within Neighborhood Park, or a portion thereof, where general public access to the Park is restricted; however, such private, community-oriented events may not exceed six (6) events per year where the entire park is closed to the public. Owner shall pay the required park impact fees, in an amount currently estimated up to eighteen million two hundred seventy-one thousand fifteen dollars ($18,271,015), subject to escalation and dependent on the ultimate number of residential units constructed, as specified below in Section 14.1 of this Development Agreement, to City. Through the Owner’s design, construction, management and maintenance of Neighborhood Park, the use of a portion of City’s Property for the design, construction, management, and maintenance of Meadow Park by Owner, the payment of park impact fees, and the dedication of a public use easement for perpetual public use of Neighborhood Park, City acknowledges and agrees that Owner has satisfied all City requirements concerning the payment of park impact fees and construction of park improvements for the Project.
11.2 Design a nd Construction Timeline for Neighborhood Park. Owner shall provide the design and engineering plans for the Neighborhood Park with submission of the Final Site Plan for the first phase of residential development in Phase 2. Owner shall commence construction of the first minimum 2.5 acres of Neighborhood Park concurrently with issuance of the first building permit for the first residential unit in the first phase of residential development of Phase 2. Owner shall commence construction of an additional approximately 1.5 acres of Neighborhood Park concurrently with issuance of the first building permit for the first residential unit in the second phase of residential development of Phase 3. Owner shall commence construction of an additional approximately .3 acres of Neighborhood Park concurrently with issuance of the first building permit for the first residential unit in the third phase of residential development of Phase 4. Owner shall complete construction of the remaining improvements for the full minimum of 4.7 acres of Neighborhood Park not later than the first final building and zoning inspection for the first residential unit in the fourth phase of residential development of Phase 5. In designing and constructing Neighborhood Park, Developer shall include a .25 acre buffer within the 4.7 acres for the proposed residential buildings adjacent to Neighborhood Park.
11.3 Design, Construction, and Maintenance of Meadow Park, modified ARTIC drop-off and the Katella Bridge. Owner shall construct and thereafter maintain, during the Private Maintenance period, Meadow Park, and the modified ARTIC drop-off area in accordance with the provisions of this Development Agreement.
-36-
11.3.1 Owner shall commence design and engineering and initiate coordination meetings with the City staff for Meadow Park, modified ARTIC drop-off and Katella Bridge no later than first final building and zoning inspection for a non-parking building in Phase 1. The Owner shall submit design and preliminary engineering plans for the Meadow Park and the Katella Bridge with Final Site Plan submission for Project Phase 2. Owner shall commence construction of Meadow Park Phase 1 and Katella Bridge no later than the first final building and zoning inspection for the first phase of residential units in Project Phase 3. Owner shall complete Meadow Park Phase, a minimum of three (3) acres, and the Katella Bridge no later than the first final building and zoning inspection for the second phase of residential units in Project Phase 3. Owner shall include 15 surface-level parking spaces for Meadow Park Phase 1 adjacent to Meadow Park, which shall remain in use until the ARTIC Garage is operational.
Owner shall complete construction of an additional one (1) acre of Meadow Park no later than six (6) months after removal of the interim surface parking and completion of the ARTIC Garage. Owner shall complete construction of the final improvements for a total minimum of
4.85 acres of Meadow Park no later than six (6) months after final building and zoning inspection of occupancy for the Meadow Hotel in Project Phase 5. The Meadow Park phasing shall be as depicted in Exhibit “M-2”. The foregoing construction phasing for Meadow Park may be modified and expedited, at the direction of the City, if the City is awarded grant funding for the Katella Bridge or the ARTIC Garage. For any grant applications submitted after the November __, 2024, City and Owner agree that City will submit the grant application and any grant conditions to the Owner for review and consent by Owner prior to submission of the grant application or acceptance of the grant conditions, which consent shall not be unreasonably withheld provided that the grant requested or awarded provides a minimum funding equal to twenty-five (25) percent of the cost of the Katella Bridge or the ARTIC garage. If such a grant(s) are awarded, City may modify the construction phasing for Meadow Park to ensure that grant performance timelines and requirements can be satisfied and completion of Meadow Park Phase 1 or Phase 2, as referenced Exhibit “M-2”, may be expedited as appropriate given the earlier construction of the pedestrian bridge or ARTIC Garage. City and Owner further agree that if completion of Meadow Park Phase II is expedited the earliest date for commencement of construction of Meadow Park Phase 2 shall be no earlier than thirty (30) days after the Artic Garage is open for use. If grant(s) awarded are less than twenty-five (25) percent of the cost of the Katella Bridge or the ARTIC garage, Owner may but shall not be required to expedite Meadow Park phasing.
11.3.2 Ci
ty and Owner agree to collaborate in the preparation of a final design, engineering and construction plans for Meadow Park facilities to identify complementary space within or adjacent to Meadow Park for future improvements to the Santa Ana River for recreation purposes. Final design, engineering and construction plans are subject to City approval. Meadow Park shall, at minimum, contain the following improvements: (1) children’s nature-oriented active play area, (2) urban oriented natural landscape features, (3) a bandshell, (4)public restrooms and associated directional signage, (5) space that can accommodate placement of temporary bathroom structures, (6) a pathway system that is designed to accommodate delivery of a temporary stage system and an area with utility capability and where the temporary stage can be placed, (7) shade structures and shaded benches throughout the park (to the extent they do not interfere with the event staging areas), (8) walking paths throughout the park, (9) passive activity spaces with infrastructure for table games and outdoor classes, (10) picnic areas, (11) fitness zones/challenge course, (12) spaces for food
-37-
trucks, (13) facilities that provide an opportunity for photos and advertisement of Meadow Park through social media, (14) public art, and (15) pet stations and “pet friendly facilities.” During construction of Meadow Park, Owner and City shall cooperate on project management issues and Owner shall request and obtain City consent prior to approving or making any modifications to the approved construction plans and materials for Meadow Park.
11.3.3 Upon completion of the ARTIC Garage, 15 spaces of the ARTIC Garage shall be available for Meadow Park users. These spaces shall (1) be available at no charge; (2) include signage indicating that the spaces are for Meadow Park users; and (3) be ADA-compliant and be located on the ground floor of the ARTIC Garage.
11.3.4 Ci
ty acknowledges and agrees that a maximum of fourteen
million seven hundred seventy-one thousand fifteen dollars ($14,771,015) of park impact fees paid by Owner shall be used to reimburse Owner for costs actually and solely incurred in the design and construction of Meadow Park. City’s obligation to reimburse Owner for design and construction costs for Meadow Park from park impact fees paid by Owner shall be limited to the amount of park impact fees actually paid by Owner for the Project at the time of a request for reimbursement and shall never exceed a maximum of fourteen million seven hundred seventy- one thousand fifteen dollars ($14,771,015). City acknowledges and agrees that the 15 parking spaces for Meadow Park in the ARTIC Garage is subject to the reimbursement provisions of this Section 11.3.4, at a cost of $30,000 per parking space, totaling $450,000. This reimbursement shall not apply to Owner’s costs of design and construction of the bridge across Katella Boulevard or to access the ARTIC Garage. In the event that City or City and Owner apply for and receive a grant or grants to partially or fully fund the design and construction of Meadow Park inclusive of the fifteen (15) parking spaces in the ARTIC Garage, any such grant funds received shall reduce the amount of park impact fees that City is obligated to reimburse Owner as required herein.
11.3.5 Upon com
pletion of construction, during the Private
Maintenance period Owner shall maintain Meadow Park and the landscaped area adjacent to the Santa Ana River Bike Trail between River Road and the Santa Ana River (“Bike Trail Landscape”) at Owner’s sole expense in accordance with the maintenance standards and maintenance covenant set forth in Exhibit “K-1 including but not limited to: maintenance, repair and replacement (prior to the end of useful life) of lighting, signage, amenities, landscaping (including fertilizing, mowing, trimming, weed removal), subsurface and above-ground irrigation facilities, fencing, artificial turf, architectural elements of the park, and any and all other improvements or features; regular removal of debris; waste and graffiti abatement; and restoration of any and all landscaping, hardscape, concrete pavers, trees, and other park improvements or features that may become damaged during any excavations, repair or replacement of public facilities or utilities. Owner shall, at its sole cost and expense, perform or cause to be performed all work required herein in conformance with approved final as-built plans and with Exhibit “K-1”, and in accordance with all applicable federal, state and local laws and standards including the Anaheim Municipal Code and any right of way construction or encroachment permits required by City. All improvements shall be kept in clean, good, safe, working, and workmanlike condition as detailed in Exhibit “K-1”. Owner’s maintenance of Meadow Park and the Bike Trail Landscape area shall comply with the maintenance requirement
-38-
set forth in this Section 11.3.5 and the Meadow Park Joint Use, Operations and Maintenance Plan including replacement and repair of equipment and fixtures.
11.4 Spring Up Maintenance District. Prior to Owner’s conveyance of any portion of the Property other than Lot B to an entity unrelated to Owner, Owner shall prepare all documents for, vote in favor of and take any actions necessary to create a Spring-Up Maintenance District to fund and provide maintenance of Neighborhood Park as required herein in perpetuity, Meadow Park and Bike Trail Landscape area during the period of Private Maintenance, in accordance with the maintenance standards in this Development Agreement including Exhibit “K” and Exhibit “K-1”. The estimated amount of costs and schedule of payment for each parcel or lot of the Property upon establishment of the Spring-Up Maintenance District will be determined thirty (30) days prior to Owner’s provision of written notice to City that Owner is contemplating a transfer of any portion of the Property. The Spring-Up Maintenance District shall become effective immediately, after (i) Owner’s conveyance of a portion of the Property other than Lot B to an entity unrelated to Owner or (ii) upon Owner’s failure to maintain Meadow Park or the Bike Trail Landscape area as required herein including Exhibit “K” and Exhibit “K-1”. The parties agree that the parcels on which the Honda Center, Meadow Park, ARTIC and the ARTIC Garage occupy shall not be required to pay any assessment as part of the Spring-Up Maintenance District. Owner agrees that 15 parking spaces of ARTIC Garage shall, in perpetuity, be available for visitors to Meadow Park and shall have signage as required in Section 11.3.3.
11.5 Meadow Park Joint Use, Operation and Maintenance Plan. The Parties agree that notwithstanding Owner’s obligation to maintain and operate Meadow Park as set forth herein, City and Owner shall negotiate in good faith to prepare and execute, prior to first Final Site Plan for any development within Phase 2, a Meadow Park Joint Use, Operation and Maintenance Plan that addresses all issues set forth in Exhibit “M” attached hereto including Owner’s management of the calendar, scheduling of Private Event Days (as defined in Section
11.6 below) and public events and usage of Meadow Park consistent with the terms set forth in Sections 11.6, as well criteria and procedures for the sale of alcoholic beverages within Meadow Park consistent with all applicable regulations. Owner acknowledges the operational requirements include noise and time restrictions as required by the Development Approvals that are applicable to Private Event Days, as well as public events and programming at Meadow Park that are intended to ensure that use of Meadow Park is compatible with the use of adjacent and nearby properties. In addition, the operational requirements include provisions that obligate the Owner to include reference to Section 13.080.020 of the Anaheim Municipal Code in agreements with performers scheduled to perform at Meadow Park. In the event that City receives complaints regarding the content of or conduct prohibited by Section 13.08.020 at Private Event Days or public events at Meadow Park, then Owner’s representative will meet and confer with the City’s Community Services Director or designee to discuss procedures that would assist in achieving compliance with Section 13.08.020 and that would apply prospectively to Private Event Days and public events at Meadow Park. Owner shall make a good faith efforts to incorporate the procedures identified through the meet and confer process for future Private Event Days and public events at Meadow Park. The Parties agree that the Meadow Park Joint Use, Operation and Maintenance Plan will include a provision that states that Meadow Park is a public park available for public and City use. The Meadow Park Joint Use, Operation and Maintenance Plan may allow for limited private use of Meadow Park for events authorized by
-39-
the City pursuant to Section 11.6. The Director of Community Services is authorized to execute the Meadow Park Joint Use, Operation and Maintenance Plan on behalf of the City; provided, however, the Director of Community Services or the City Manager may, in their discretion, refer the proposed Meadow Park Joint Use, Operation and Maintenance Plan to the City Council for consideration and action to approve, approve with modifications or deny the Plan.
11.6 P
rivate Events at Meadow Park . Owner may schedule up to twelve (12) event days at the bandshell area of Meadow Park and up to twenty-four (24) event days at the terrace area of Meadow Park per year that include private use of that portion of Meadow Park as identified on Exhibit “U” (“Private Event Days”). Owner may schedule and host an unlimited number of events that are open to the public at Meadow Park per year; provided however, that the scheduling, size, scope, and nature of these public events must be coordinated with and approved by the City as part of the annual calendaring process contemplated in the Meadow Park Joint Use, Operation and Maintenance Plan. During Private Event Days, a portion of Meadow Park near the bandshell, bandshell seating area, and/or terraces may be closed off to the public and exclusively used by ticketed patrons and Private Event Days staff. Unless otherwise agreed to in writing between City and Owner, Owner will not close off a greater portion of Meadow Park to City and the public beyond the areas identified (on Exhibit “U” for Private Event Days.
Owner and City agree that the areas identified in Exhibit “U” depict the maximum portion of Meadow Park that may be closed off on Private Event Days. Owner agrees that Owner will only close off the portion of Meadow Park that is operationally necessary to run a particular Private Event Day in light of the size, scope, and nature of the event. Owner and City agree that the Meadow Park Joint Use, Operation and Maintenance Plan will include criteria and procedures for determining when the size, scope, and nature of a Private Event Day will justify closure of the full areas identified on Exhibit “U” and when the size, scope, and nature will necessitate a smaller perimeter.
11.7 City Events at Ow ner Facilities. City has the right to reserve and use for City events or City sponsored community group events the following Owner facilities or other Owner facilities of equivalent size, quality, and amenities as may be identified by Owner in the future: Urban Park banquet space, the Concert Hall, ARTIC, South Plaza concert venue, and designated event spaces in the North Plaza. City is entitled to reserve and use such Owner facilities five (5) times per calendar year. City events or City sponsored community group events scheduled on weekdays (Monday through Thursday) during the daytime (i.e. events that end no later than 3:00 pm with full exit by 5:00 p.m.) may be requested six (6) months in advance based on availability. If requested more than six (6) months in advance, Owner will guarantee City’s requested date/time a minimum of three (3) months before the event and will offer two (2) venue options between 2026 – 2029 and three (3) venue options beginning in 2030. Beginning in 2030, if requested more than six (6) months in advance, Owner will guarantee City’s requested date/time a minimum of six (6) months before the event. Once guaranteed, if City cancels an event, such event will count towards City’s five (5) events per calendar year. City may request a maximum of three (3) of its five (5) events during weekday evenings or weekend (Friday through Sunday) days or evenings. City may request weekday evenings/weekend event space six (6) months in advance based on availability. Owner will identify two venue options between 2026 – 2029 and will provide three venue options beginning in 2030. Owner will confirm the available location for the weekday evening/weekend event a minimum of seventy (70) days of the event. The preceding scheduling procedures are outlined in Exhibit M-3, attached hereto and
-40-
incorporated herein. Owner and City agree that the City events and City sponsored community group events shall be uses for events of the City or other community groups, and not events, such as concerts of a touring artist or the like, which would otherwise be in competition with Owner events. Each day of such City event or City sponsored community group event will be deemed to be one City event. Any two (2) days booked on one weekend would constitute two (2) of the City’s five (5) annual events. The Parties will use their best efforts to work cooperatively to find appropriate venues for City events pursuant to this Section 11.7. The Parties acknowledge that Owner facilities cannot be provided that would conflict with Olympic events in 2028 or National Hockey League playoff games.
11.8 Costs and Services for City Events at Owner Facilities. Owner agrees that Owner will provide use of the Owner facilities for the City events and City sponsored community group events contemplated in Section 11.7 for no rental or use fee. Owner shall provide free parking to attendees and staff of City events and City sponsored community group events at Owner facilities; however, Owner is not obligated to guarantee parking in any particular parking lot or facility. If City requires that parking be reserved in a particular parking lot or facility, then Owner may charge City its direct costs of labor incurred by Owner for such reserved parking. City shall be entitled to retain all revenues relating to City events or City sponsored community group events. The City or City sponsored group shall pay for all out-of- pocket costs (with no mark-up) associated with City events at Owner facilities, including but not limited to food, beverage, labor, equipment rental, production, security, clean-up, and additional vendors sourced by the City or City sponsored group. Costs incurred by Owner may include direct costs for set up and break down of facility, systems, and equipment, and other costs directly related to such City or City sponsored community group events (including costs for ushers, security personnel, facility and system operators, and custodial personnel). The Parties recognize that not all of the City events or City sponsored community events at the Owner Facilities will require all of the aforementioned services. City in consultation with Owner shall determine which services are necessary for City and City sponsored community group events.
City shall pay directly the costs of any municipal services such as police or emergency medical personnel incurred in connection with hosting a City or City sponsored community group event.
City shall have the right to market, promote, sell, and control the pricing of tickets for City or City sponsored community group events and to control the seating assignments. In connection therewith, City may use the Owner’s ticketing system in accordance with Owner’s written agreement with its ticketing vendor to make such tickets available to the attendees of City or City sponsored community group events and Owner shall be reimbursed for any fees or expenses incurred.
11.8.1 To t
he extent food and beverages (alcoholic and/or non-
alcoholic) are made available for purchase at City events or City sponsored community group events at the Owner Facilities, City may request that Owner provide such food and beverages in which case Owner shall retain all associated revenues. Notwithstanding the foregoing, City is not required to utilize Owner’s food and beverage services for City and City sponsored community events at Owner facilities that are either outdoors or at Owner Facilities that do not have kitchen facilities and, City and community groups may elect to provide these services directly or may utilize outside food and beverage vendors at City’s discretion. If City and/or community groups provide their own food and beverage services, then City and/or community groups will retain all associated revenue.
-41-
11.8.2 To the extent that City or community groups elect to provide alcoholic beverages at City events or City sponsored community group events, City and/or community groups will obtain all appropriate temporary licensing and regulatory approvals.
11.9 C ompliance with Naming Policy . City and Owner agree that the naming of the park as Meadow Park as agreed to in this Development Agreement satisfies Anaheim Parks, Recreation and Community Services Policy No. A-033 Policy related to the naming of public parks. Signage within Meadow Park shall comply with the signage requirements set forth in the Transit District Signage Plan as set forth in Exhibit “N”.
Section 12. REIMBURSEMENT PROVISION.
In the event Owner is required to construct public improvements which are supplemental to the requirements of the Project for the benefit of other properties, City will work with Owner to establish mechanisms for proportional reimbursement from owners of the benefited properties.
For public improvements that are within CFD 08-1, the proportional benefit shall be calculated based on the estimated improvement budget cap(s) set forth in CFD 08-1 or the New CFD. All costs associated with establishing said reimbursement mechanisms shall be paid by Owner.
Section 13. DEDI
CATIONS AND EXACTIONS.
Prior to issuance of the first building permit for the Project or recordation of the first Final Map for the Project, Owner shall irrevocably offer for dedication within each Phase of the Project, the rights-of-way, including the public connector streets, collector streets, public use easements for perpetual public park use or access (including use of the plazas and bridges) or private roadway access, public utility easements, parking easements and other dedications as more fully set forth in the Master and Final Site Plans for the uses set forth in the Master and Final Site Plans. These dedications shall be in fee or as an easement at the discretion of City, and upon completion and acceptance by City of the associated improvements in compliance with the specifications as approved by City, City shall accept Owner’s offer of dedication. Nothing contained in this Development Agreement, however, shall be deemed to preclude City from exercising the power of eminent domain with respect to the Property or the Project, or any part thereof.
Section 14. FEES,
TAXES, AND ASSESSMENTS.
14.1 Fees, Taxes and Assessments. Owner shall be responsible for the payment of Development Impact Fees shown in Exhibit “P” in the amount and at the times set forth in the Existing Land Use Regulations and for newly proposed fees currently under consideration by the City at the time of approval of this Development Agreement as set forth in Exhibit “P-1” (“Proposed Fees”), as said amounts and timing may be modified in accordance with this Development Agreement. Notwithstanding the foregoing, Owner shall not, under any circumstances, pay Platinum Triangle Supplemental Fees on property that currently resides within the Core boundaries of CFD 08-1 and the Annexation Parcels. The Development Impact Fees set forth in Exhibit “P” and the Proposed Fees set forth in Exhibit “P-1” shall be frozen for a period of five (5) years from the Development Agreement Date. After the expiration of this five-year period, Development Impact Fees shall be subject to increase during the terms of this
-42-
Development Agreement as set forth in the enabling statutes, ordinances and resolutions related to each Development Impact Fee. Proposed Fees shall be subject to increase during the terms of this Development Agreement as set forth in the enabling statutes, ordinances and resolutions related to each Proposed Fee. The rates of fees, taxes or assessments shall be the rates in existence at the time, said fees, taxes or assessments are normally required to paid to the City, except as otherwise provided in this Development Agreement. During the Term, City shall only impose the Development Impact Fees or Proposed Fees on the Project, specified in Exhibit “P” and Exhibit “P-1”. If Owner constructs any public facilities which otherwise would be funded through payments of Development Impact Fees, Owner shall be entitled to offsets, or credits, towards its payment of Development Impact Fees, as established in the Anaheim Municipal Code.
14.2 Reserved.
14.3 Excluded Development Fees. The following fees shall not be included among the fees which would otherwise fall within the definition of Existing Land Use Regulations:
14.3.1 Water
Utilities Fees. Owner will pay all applicable fees in
accordance with the Water Utilities Rates, Rules and Regulations in effect at the time of application for service including Rules 15D which provides for, in part, a fee based on GFA to construct the necessary water facility improvements within the Platinum Triangle and Rules 15A1, 16 and 23.
14.3.2 Elec
trical Utilities Fees. Owner will pay all fees in
accordance with the Electrical Utilities Rates, Rules and Regulations in effect at the time of application for service including Rules 13, 15, 16, 20.B, 22 and 24.
14.3.3 Cit
y Processing Fees. Owner shall pay all standard City-wide processing fees for building permits, zoning review, plan review and approval, encroachment and grading permits, inspection and technology usage and other similar fees associated with the Development of the Project which are in existence at the time of approval of this Development Agreement at the rate in existence at the time said fees are normally required to be paid to City.
14.4 Platinum Triangle Infrastructure Assessment District. Prior to the date a building or grading permit is issued relating to implementation of the Master or Final Site Plans, or within a period of ninety (90) days from the date of execution of this Development Agreement, whichever occurs first, Owner shall execute and record an unsubordinated covenant in a form approved by the City Attorney’s Office wherein Owner agrees not to contest the formation of any assessment district(s) which may be formed to finance Platinum Triangle infrastructure, which district(s) could include the Property. The covenant shall run with the land and bind Owner and its successors and assigns but shall not preclude Owner from contesting (i) the determination of benefit of such improvements to the Property, (ii) the properties included in said district or area, (iii) the manner in which said fee is determined or (iv) the manner in which said improvement costs are spread. The parties agree that the “_____________________ Covenant” recorded on _________, 2024, by Recording No. _____________ satisfies this requirement.
-43-
14.5 CFD 08-1. As specified in Exhibit “H”, Owner shall construct certain public roads, utility improvements, and other public infrastructure which qualify (i) as authorized facilities under CFD 08-1 (“CFD 08-1 Improvements”), and (ii) for acquisition by City/CFD 08- 1 with either (i) proceeds of newly issued bonds by CFD 08-1 (“CFD 08-1 Bonds”), (ii) through special taxes levied and collected in accordance with the CFD 08-1 RMA and not otherwise used to pay debt service on outstanding bonds issued by CFD 08-1, or (iii) through Owner’s prepayments of CFD 08-1 special taxes deposited into the Construction Fund (as defined in the CFD 08-1 RMA). City agrees to use good faith, diligent efforts to acquire such CFD 08-1 Improvements and reimburse Owner for such CFD 08-1 Improvements in a timely manner, including, without limitation, issuing CFD 08-1 Bonds when new development within CFD 08-1 generates special taxes sufficient to satisfy the debt service on any newly issued CFD 08-1 Bonds. City and Owner shall execute a Platinum Triangle Acquisition Agreement (“Acquisition Agreement”), in substantially the form of which is attached in Exhibit “Q”, with such modifications as are necessary to conform to the terms of the Development Agreement and which provides, in part, for the City’s acquisition of the CFD 08-1 Improvements, the Owner’s conveyance of the CFD Improvements to the City/CFD 08-1, and the reimbursement of the Owner for any such CFD 08-1 Improvements in an amount not to exceed the Owner’s Share of CFD 08-1 Bond Capacity. Owner shall have the option of pre-paying its CFD 08-1 special taxes as provided in CFD 08-1 RMA. In connection with one or more proceedings to annex the Annexation Parcels into CFD 08-1, Owner agrees that it will support and not contest, vote in favor of, and execute necessary documents for the City to modify the CFD 08-1 boundaries to include within CFD 08-1 all of Owner’s parcels identified as Annexation Parcels. In consideration thereof, City agrees that the Special Taxes (as defined in the CFD 08-1 RMA) collected in connection with levying Owner’s Annexation Parcels within the Platinum Triangle and/or the construction proceeds from CFD 08-1 Bonds supported by the special tax revenues generated from the Owner’s Annexation Parcels within the Platinum Triangle shall be allocated to CFD 08-1 Improvements and used first by the City to reimburse Owner for the construction of the CFD 08-1 Improvements pursuant to the terms of the Platinum Triangle Acquisition Agreement in an amount not to exceed Owner’s Share of CFD 08-1 Bond Capacity. City further agrees that it shall process and approve amendments to CFD 08-1 documents, including amendments to the Platinum Triangle Implementation Plan and the Backbone Infrastructure Cost Summary to revise and amend the projects identified therein that will be funded with CFD 08-1 funds and to reallocate and/or allocate funds in the amount of Owner’s Share of CFD 08-1 Bond Capacity from existing projects to Owner’s projects identified as CFD 08-1 Improvements described on Exhibit “H”, including, without limitation, to increase the amount of funds allocated in line 9 to New Fire Station by one million dollars ($1,000,000) and amend Line 7 related to Douglass Road and reallocate those funds from Douglass Road project to River Road Improvements as shown on Exhibit “H”, with the funding for these two additional cost allocations coming from Owner’s Share of ACC Annexation Capacity. Maximum amount to be reimbursed to the Owner from any CFD 08-1 proceeds shall not exceed the special tax bonding capacity generated by the Project or the pre-payment amount of the Owner’s CFD obligation subject to an overall cap not greater than the Owner’s Share of CFD 08-1 Bond Capacity.
14.6 New CFD. City agrees to assist the Owner in forming a new CFD (“New CFD”), the boundaries of which shall be coextensive with those of the Property, in order to fund, pursuant to the Mello-Roos Community Facilities Act of 1982, (i) the City/New CFD’s acquisition of authorized facilities, including CFD 08-1 Improvements not otherwise funded by
-44-
CFD 08-1 funds due to the cap established in Section 10.11; and (ii) impact fees which are not eligible for fee credits or fees paid through either the Development Impact Fee or Proposed Fee programs as each of (i) and (ii) are described in Exhibit “J” (collectively, “New CFD Improvements”) . Owner agrees that the property parcels on which the Honda Center, Meadow Park, ARTIC and Parking Decks A, B, C and D are located shall be exempt from the payment of special taxes under the New CFD or any alternative financing authority authorized in this Section
14.6. City agrees to use good faith, diligent efforts to establish and form the New CFD, including the scheduling of necessary public hearings in connection with the adoption of a resolutions of formation and intent to issue bonds. Owner agrees to cooperate in the formation of the New CFD and agrees that it will not contest and will, for and on behalf of all of Owner’s property within the boundaries of the New CFD, vote in favor of formation of the New CFD. In the alternative, City agrees that Owner may pursue other financing alternatives, including requesting The California Municipal Financing Authority (“CMFA”), to form the New CFD. In connection therewith, City agrees to use good faith efforts to consider issuance of consents to the formation of the New CFD by CMFA and agrees to use good faith efforts to take all necessary and appropriate actions to assist Owner and CMFA in its formation. Owner shall reimburse City for all City costs, including consultant costs and legal fees, incurred for actions taken to create the New CFD or create financing alternatives through CMFA or a similar authority or public agency acceptable to the City.
14.7 Accounting of Funds.
City will comply with applicable requirements of
Government Code Section 65865 relating to accounting of funds.
14.8 Imposition of Increased Fees, Taxes or Assessments. Except as expressly set forth or reserved in this Development Agreement, City shall not, without the prior written consent of Owner, impose any additional fee, tax or assessment on the Project or any portion thereof as a condition to the implementation of the Project or any portion thereof. Nothing contained herein shall be construed to prohibit City from imposing fees, taxes or assessments on the Property which are unrelated to the approval or implementation of the Project.
Notwithstanding the foregoing, this Development Agreement shall not limit City’s right and power to impose taxes on the Property or Project provided that any taxes imposed are adopted pursuant to all applicable laws and that said tax qualifies as a City-Wide Tax. For the purposes of this Section 14.8 a “City-Wide Tax” means a general or special tax generally applicable to a category of development or use of one or more kinds, wherever the same may be located in the City, including but not limited to, a general or special tax adopted in accordance with California Const, Art XIII C and D et seq. (otherwise known as Proposition 218); provided, however, that a general or special tax which only applies to or impacts the Project shall not be considered a City- Wide Tax.
Section 15. COVENAN
TS, CONDITIONS AND RESTRICTIONS.
If Owner conveys a portion of the Property to an unrelated party, Owner agrees to record unsubordinated covenants, conditions and restrictions (CC&Rs) applicable to the Property in a form and content satisfactory to the Planning and Building Director, City Engineer and the City Attorney incorporating the requirements and obligations set forth in this Development Agreement including Exhibit “K-1”.
-45-
Section 16. NEXUS/REASONABLE RELATIONSHIP CHALLENGES.
Owner consents to, and waives any right it may have now or in the future to challenge the legal validity of the conditions, requirements, policies or programs required by Existing Land Use Regulations or this Development Agreement including, without limitation, any claim that they constitute an abuse of the police power, violate substantive due process, deny equal protection of the laws, effect a taking of property without payment of just compensation, or impose an unlawful tax.
Section 17. TI
MING OF DEVELOPMENT.
Timing of Development shall be as set forth in the Master and Final Site Plans. Subject to the provisions of Section 7.2 of this Development Agreement, Owner agrees to use commercially reasonable efforts to apply for and obtain all required permits, to apply for and obtain financing for construction of the Project, and upon approval of financing for the Project or each phase thereof to commence and complete construction of the Project or phase thereof during the time period set forth in the Master Plan. In the event Owner is not able to complete construction of the Project within the time frame set forth in the Master Plan, Owner agrees to complete Phase 1 within five (5) years of the Development Agreement Date, complete Phase 2 within ten (10) years of the Development Agreement Date, Phase 3 within fifteen (15) years of the Development Agreement Date, and complete Phases 4 and 5 prior to expiration of this Development Agreement. For purposes of this Development Agreement, a completion of a phase means, at a minimum, that temporary certificates of occupancy have been issued for 90% of the square footage or number of dwelling units specified in the applicable Final Site Plan[s], subject to Owner’s abandonment of a portion of a Final Site Plan, as specified below in this Section 17. If Owner, in its sole and absolute discretion, chooses to not complete all of the square footage or dwelling units in a Final Site Plan, Owner shall provide written notice to City of this intention. In such a situation, Owner shall be deemed to have abandoned the right to construct the square footage and dwelling units which Owner chooses not to complete, and Owner shall not have the ability to complete the portions of the applicable Final Site Plan which was abandoned. Such an abandonment shall have no effect upon (i) the portions of the Master Site Plan and Final Site Plan which have been completed, (ii) any other Final Site Plan which has been approved by City.
Section 18. EXISTI
NG USES.
City and Owner agree that those existing legally established uses on the Property may be retained until the Project is implemented. When those existing uses are demolished, no credit for any such demolished square footage for which Interim Development Fees have not been paid will be given Owner against Interim Development Fees due on a square footage basis as provided for in this Development Agreement. Owner will pay the full Interim Development Fees for Permitted Development constructed pursuant to the Master and Final Site Plans.
Section 19. FUT
URE APPROVALS.
19.1 Basis for Denying or Conditional Granting Future Approvals. Before Owner can begin grading on the Property or other development of the Property, Owner must
-46-
secure several additional permits and/or approvals from City. The parties agree that to the extent said Development Approvals are ministerial in nature, City shall not, through the enactment or enforcement of any subsequent ordinances, rules, regulations, initiatives, policies, requirements, guidelines, or other constraints, withhold such approvals as a means of blocking construction or of imposing conditions on the Project which were not imposed during an earlier approval period unless City has been ordered to do so by a court of competent jurisdiction. Notwithstanding the previous sentence, City and Owner will use their best efforts to ensure each other that all applications for and approvals of grading permits, building permits or other developmental approvals necessary for Owner to develop the Project in accordance with the Master and Final Site Plans are sought and processed in a timely manner.
19.2 Standard of Review. T
he rules, regulations and policies that apply to any
additional Development Approvals which Owner must secure prior to the Development of the Property shall be the Existing Land Use Regulations, as defined in this Development Agreement.
19.3 Future Amendments to Master and Final Site Plans. Fut ure amendments
to all or a portion of the Master or Final Site Plans which increase the intensity or density of the Development of the Property, or change the permitted uses of the Property, and are not among those described in Section 20.4 may subject the portion or portions of the Project being amended or affected by the amendment to any change in the City’s General Plan, zoning designations and rules applicable to the Property and further environmental review and possible mitigation of adverse impacts under CEQA in effect at the time of such amendment. Any such amendment to the Master and Final Site Plans shall be processed concurrently with the processing of an amendment to this Development Agreement. It is the desire and intent of both parties, except as set forth herein, that any such future amendment of the Master and Final Site Plans will not alter, affect, impair or otherwise impact the rights, duties and obligations of the parties under this Development Agreement with respect to the unamended portions of the Master and Final Site Plans. Amendments to Master and Final Site Plans, which do not otherwise qualify as Operating Memoranda pursuant to Section 20.6, shall be subject to approval of the Planning Director.
Section 20. AMENDM
ENT.
20.1 Initiation of Amendment. Either party may propose an amendment to this Development Agreement.
20.2 Procedure. Except as set forth in Section 20.4 be low, the procedure for proposing and adopting an amendment to this Development Agreement shall be the same as the procedure required for entering into this Development Agreement in the first instance. Such procedures are set forth in Sections 2, 3 and 5 of the Procedures Resolution.
20.3 Consent.
Except as provided elsewhere within this Development
Agreement, any amendment to this Development Agreement shall require the consent of both parties. No amendment of this Development Agreement or any provision hereof shall be effective unless set forth in writing and signed by duly authorized representatives of each party.
20.4 Amendments. Subject to the foregoing provisions of this Section 20, the parties acknowledge that refinements and further development of the Project may demonstrate
-47-
that changes are appropriate with respect to the details and performance of the parties under this Development Agreement. The parties desire to retain a certain degree of flexibility with respect to the details of the Development of the Project and with respect to those items covered in general terms under this Development Agreement. If and when the parties find that changes or adjustments are necessary or appropriate to further the intended purposes of this Development Agreement, they may, unless otherwise required by law, effectuate such changes or adjustments as specified in the Development Approvals.
20.5 Effect of Amendment to Development Agreement.
The parties agree that
except as expressly set forth in any such amendment, an amendment to this Development Agreement will not alter, affect, impair, modify, waive or otherwise impact any other rights, duties or obligations of either party under this Development Agreement.
20.6 Operating Memoranda. T
he provisions of this Development Agreement
require a close degree of cooperation and flexibility between the City and Owner. The development of the Project may demonstrate that clarifications or modifications to this Development Agreement are appropriate with respect to the details of performance of the City and Owner, including changes necessitated due to financing considerations. If and when, from time to time during the Term of this Development Agreement, City and Owner agree that such clarifications are necessary or appropriate, City and Owner shall effectuate such clarifications through operating memoranda approved in writing by City and Owner (“Operating Memoranda”), which, after execution, shall be attached as addenda and become a part hereof, and may be further clarified from time to time as necessary with future approval by City and Owner. No such Operating Memoranda shall constitute an amendment to this Development Agreement requiring public notice or hearing and are considered ministerial clarifications.
Operating Memoranda may be used when the Operating Memorandum: (i) does not increase the density or intensity of the Project or such increases do not generate new significant environmental impacts under CEQA; (ii) does not change the permitted uses of the Project, unless such uses are consistent with the Existing Land Use Regulations; (iii) does not increase the maximum size of buildings of the Project unless these increases are consistent with the Existing Land Use Regulations and do not increase the total amount of development approved in the Master Plan; or (iv) does not reduce improvement and construction standards for the Project.
The City Manager shall have the authority and shall make the determination on behalf of City whether a requested clarification may be effectuated pursuant to this Section 20.6 or whether the requested clarification is of such a character to constitute an amendment hereof pursuant to Section 20.4 above. The City Manager shall, upon consultation with the City Attorney as to the form of the Operating Memorandum, be authorized to execute any Operating Memoranda hereunder on behalf of City. The City Manager may also refer any proposed Operating Memoranda to the City Council for consideration and action to approve or deny any proposed Operating Memorandum. The parties acknowledge and agree that in the future, Owner may be acquiring fee ownership of property which, although part of the Project, is not part of the Property. In such a case, the parties may choose to add this property to the definition of “Property” in this Development Agreement. Subject to compliance with this Section 20.6, such inclusion of property shall be included via Operating Memoranda.
-48-
Section 21. NON-CANCELLATION OF RIGHTS.
Subject to defeasance pursuant to Sections 27, 28 or 29, the Master and Final Site Plans and other Development Approvals as provided for in this Development Agreement shall be final and the rights once granted thereby shall be vested in the Property upon recordation of this Development Agreement.
Section 22. BENEFI
TS TO CITY.
The direct and indirect benefits to the City (including, without limitation, the existing and future anticipated residents of the City) pursuant to this Development Agreement include, but are not limited to, the following:
a. The participation of Owner in the accelerated, coordinated and more economic construction, funding and dedication to the public, as provided in this Development Agreement, of certain of the vitally needed on-site and area-wide public improvements and facilities, and assurances that the entire Project will be developed as set forth in the Master and Final Site Plans and this Development Agreement in order to encourage development of the Platinum Triangle.
b. The public benefits, totaling approximately $300,000,000 include the following traditional public benefits: (i) parks improvements ($30M); (ii) affordable housing ($55M) (ii) public infrastructure improvements ($80M); (iii) Owner’s agreement to perform ongoing Private Maintenance obligations of public facilities including Meadow Park and ARTIC ($30M) (iv) a six million seven hundred fifty thousand dollar ($6,750,000) Offsite Park Contribution Fee, with the proceeds of this Fee to be used in the City’s sole discretion to pay for park improvements; (v) Owner’s payment of approximately $100 million in Development Impact Fees; and (vi) the generation of millions of dollars in economic impact due to the development, construction and operation of the Project. c. The: (i) construction of the Honda Center Improvements and the Honda Center Expansion totaling approximately $390,000,000 (ii) pursuant to a maintenance easement encumbering Owner’s interest in the property underlying the Honda Center Expansion, Owner’s obligation to maintain the Honda Center Expansion (the “Honda Center Expansion Maintenance Easement”) and (iii) construction and perpetual maintenance of the Neighborhood Park. d. The: (i) construction of the ARTIC Improvements and the ARTIC Expansion and (ii) pursuant to a maintenance easement encumbering Owner’s interest in Project property located south of Katella Avenue, Owner’s obligation to maintain the ARTIC Expansion throughout the term of the ARTIC FMA (the “ARTIC Expansion Maintenance Easement”). e. Owner shall provide Affordable Units as defined in Chapter 18.52 of the Zoning Code and the California Health & Safety Code, as follows:
i. Affordable Housing in Project Phase 2: City and Owner agree to negotiate in good faith on a Housing Incentives Agreement for Project Phase 2 to provide for the development of 35 Moderate Income residential units onsite, as defined in Chapter 18.52 of the
-49-
Zoning Code and the California Health and Safety Code, as further identified in the Housing Incentives Memorandum Application (Exhibit “R”). The Housing Incentives Agreement for Phase 2 shall be completed/recorded prior to final map approval, or where a map is not being processed, prior to issuance of rough grading and building permits for residential units in Phase 2.
ii. Affordable Housing in P
roject Phase 3: City and Owner agree to
negotiate in good faith on a Housing Incentives Agreement for Project Phase 3 to provide for the development of a minimum of 215 affordable residential units, including 100 Very Low Income, 100 Low Income, and 15 Moderate Income units on the Property, as defined in Chapter 18.52 of the Zoning Code and the California Health and Safety Code, and as further identified in the Housing Incentives Memorandum (Exhibit “R”). The Housing Incentives Agreement for Project Phase 3 shall be completed/recorded prior to final map approval, or where a map is not being processed, prior to issuance of rough grading and building permits for residential units in Phase 3.
iii. Affordable Housing in Project Phase 4: City and Owner agree to ne
gotiate in good faith on a Housing Incentives Agreement for Project Phase 4 to provide for the development of 25 Moderate Income units on the Property, as defined in Chapter 18.52 of the Zoning Code and the California Health and Safety Code, and as further identified in the Housing Incentives Memorandum (Exhibit “R”). The Housing Incentives Agreement for Project Phase 4 shall be completed/recorded prior to final map approval, or where a map is not being processed, prior to issuance of rough grading and building permits for residential units in Phase 4.
iv. Affordable Housing in Project Phase 5: City and Owner agree to ne
gotiate in good faith on a Housing Incentives Agreement for Project Phase 5 to provide for the development of 25 Moderate Income units on the Property, as defined in Chapter 18.52 of the Zoning Code and the California Health and Safety Code, and as further identified in the Housing Incentives Memorandum (Exhibit “R”). The Housing Incentives Agreement for Project Phase 5 shall be completed/recorded prior to final map approval, or where a map is not being processed, prior to issuance of rough grading and building permits for residential units in Phase 5.
v. O
ption for Affordable Housing at Offsite Location: Owner may, pursuant to requirements of Government Code Section
65915(g)(2)(G) and consistent with Zoning Code chapters/sections
18.52.050 and 18.52.080.0208, request that City approve
-50-
relocation of all, or a portion of, the affordable housing obligation to a site within the City that is: (1) within ¼ mile of the Project boundary; and (2) within or adjacent to the Platinum Triangle (“Offsite Location”). The City may approve or deny such request as part of its consideration of the Housing Incentives Agreement for Phases 2 or Phase 3. In the event that necessary Development Approvals for an Offsite Location require City approval of a General Plan Amendment, Platinum Triangle Master Land Use Plan amendment, or Reclassification to a residential zone, in order to allow multi-family residential development, Owner shall increase the number of affordable housing units to be constructed from 300 units to 340 units, consisting of 100 Very Low Income units, 120 Low Income units and 120 Moderate Income units, equal to 15% of 2,250 total residential units. If the affordable housing is to be constructed on the Offsite Location, 290 affordable units are to be completed no later than completion of Project Phase 3, 25 affordable units are to be completed no later than completion of Project Phase 4 and 25 affordable units are to be completed no later than completion of Project Phase 5. The unit mix and bedroom types shall be provided at a similar mix of units and bedroom types as the market rate units in the project, and shall be subject to approval by the Housing & Community Development Director.
vi. Affordable Housing if Fewer Residential Units are Developed. If fewer than 2,250 residential units are developed, the number of affordable units will be determined by multiplying the affordable housing obligation by the number of proposed residential units.
Consistent with the affordable housing obligations in Sections 22(e)(i)-(iv) above, if units are provided on-site, 13.3% of units shall be affordable. Consistent with Section 22(e)(v) above, if units are provided at an Offsite Location, 15.1% of units shall be affordable. The number of Low and Very Low income units would remain fixed (100 Low and 100 Very Low units for an on-site option and 120 Low and 100 Very Low units for an Offsite Location) and the number of remaining units necessary to meet the affordable housing total would be Moderate income units. For the purposes of illustration only:
For the on-site option with 1,960 units, the maximum
number of affordable units would be calculated as
1,960 * 13.3% = 261 total units. The Low and Very
Low income units remain fixed at 200 (with 100 Low
and Very Low), and the remaining 61 units would be
Moderate.
-51-
For the off-site option with 1,960 units, the maximum number of affordable units would be calculated as 1,960 * 15.1% = 296 total units. The Low and Very Low income units remain fixed at 220 (with 120 Low and 100 Very Low), and the remaining 76 units would be Moderate.
In such a scenario, the Low and Very Low units shall be provided in Project Phase 3. The Moderate income units shall be provided in the same phases as described above in Sections 22(e)(i) -(iv) until Moderate income totals are reached.
vii. Minor Amendments to Housing Incentives Memorandum and Housing Incentive Agreements: City and Owner acknowledge that it may be beneficial to the public interest to allow minor amendments to approved Housing Incentive Memorandum and/or Housing Incentive Agreements. Minor amendments to the Housing Incentives Memorandum or Housing Incentive Agreements may be approved by the City Manager, or his/her designee, as long as the minor amendments do not reduce the total number of Affordable Units or the number of units provided at Very Low, Low, and Moderate Income levels as specified hereinabove.
f. Owner shall pay to City the Development Impact Fees and the Offsite Park Contribution Fee, in an amount of five million dollars ($5,000,000) prior to the issuance of the first certificate of occupancy for the Project. In addition, prior to the first certificate of occupancy for Residential Phase 4 as part of Project Phase 5, Owner shall pay the City an additional Offsite Park Contribution Fee of one million seven hundred fifty thousand dollars ($1,750,000). City shall use the proceeds of the Offsite Park Contribution Fee to fund park improvements with the location and timing of construction of such improvements to be determined in City’s sole discretion.
g. Owner shall be responsible for design, construction, operation and m
aintenance (including scheduling of events) within Meadow Park and shall comply with operational and security requirements set forth in Exhibits “K”, “K-1” and “M”. Owner acknowledges the operational requirements include noise and time restrictions as required by the Development Approvals that are applicable to use of Meadow Park to ensure that use of Meadow Park is compatible with the use of adjacent and nearby properties. In addition, the operational requirements include provisions that obligate the Owner to require that the content of performances at Meadow Park is appropriate for the general public. City or City’s designee has the right to use the Owner facilities as outlined in Sections 11.7 and 11.8. The Parties recognize that the use described in this Section 22 and Sections 11.7 and 11.8 are uses for events of the City or public events, and not events, such as concerts of a touring artist or the like, which would otherwise be in competition with Owner’s events.
h. Owner’s agreement to provide maintenance for the private streets (
including roadway, lighting, landscape/irrigation medians and parkways, drainage, traffic signals and signs, pavement markings, curbs, gutters and sidewalks), plazas, smart infrastructure,
-52-
the bridges that cross Katella Avenue and that provide access to ARTIC Garage as set forth herein and in the Spring-Up Maintenance District Plan.
i. Owner’s consent to and support of an amendment to CFD 08-1 to provide additional funding equal to one million dollars ($1,000,000) for the New Fire Station with funding from addition of Parcels 4 and 5 to be annexed into CFD 08-1. j. The considerations set forth in Sections 10, 11, and 13.
Section 23. BENEFITS TO OWNER.
a. Owner has expended and will continue to expend large amounts of time and money on the planning and infrastructure construction for the Project. Owner asserts that Owner would not make any additional expenditures, or the advanced expenditures required by this Development Agreement, without this Development Agreement and that any additional expenditures which Owner makes after the Development Agreement Date will be made in reliance upon this Development Agreement. Without limiting the generality of the foregoing, this Development Agreement provides for the completion of public improvements and facilities prior to the time when they would be justified economically in connection with the phasing of the Project, and of a size which would be justified only by the magnitude of the Project provided for by the Master and Final Site Plans and this Development Agreement. The benefit to Owner under this Development Agreement consists of the assurance that Owner will preserve the right to develop the Property as planned and as set forth in the Master and Final Site Plans and this Development Agreement. The parties acknowledge that the public benefits to be provided by Owner to City pursuant to this Development Agreement are in consideration for and reliance upon assurances that the Property can be developed in accordance with the Master and all Final Site Plans and this Development Agreement.
b. City shall support and recommend to the ATID Transportation Committee that d
uring the Term of the Development Agreement the ATID Transportation Committee approve appropriation of the transportation portion (i.e. 25 percent of the two percent assessment) of the Anaheim Tourism Improvement District funds (“ATID Transportation Funds”) generated by the payment of the ATID Assessment made by Owner through occupancies of the newly constructed Project hotels within the Project (“Project ATID Transportation Funds”) to a specified fund to be spent as set forth in this Section 23(b). If approved by the ATID Transportation Committee, the Project ATID Transportation Funds shall be payable to and be used solely by Owner to partially fund the construction of ARTIC Garage and the access bridge for ARTIC Garage, as designed and constructed to allow for the future transit project. If the ATID Transportation Committee approves appropriation of the ATID Transportation Funds to Owner, they shall be disbursed to Owner upon the commencement of operations of the first hotel of the Project and in a manner consistent with applicable ATID Transportation Committee and City policies related to expenditure of ATID Transportation Funds. The ATID Transportation Funds shall, if approved by the Anaheim Transportation Committee, continue to be disbursed to Owner until the twentieth (20
th) anniversary of City’s issuance of the last certificate of occupancy for the second hotel of the Project. The parties acknowledge and agree that this disbursement obligation shall extend beyond the Term of this Development Agreement. Owner acknowledges that approval of the use of the Project ATID Transportation Funds as specified herein is subject to approval of the ATID
-53-
Transportation Committee and that City’s obligation herein is limited to making the recommendation and supporting the recommendation as one member of the ATID Transportation Committee.
c. City and Owner shall collaborate and use best efforts to attempt to secure grants t
o offset or partially fund the costs of ARTIC Improvements and the Expanded ARTIC Garage.
If such grants are obtained, City shall expend such grant funds to reimburse or pay Owner for part of the costs of the ARTIC Improvements as defined in Sections 1.13 and 1.17 and Exhibit “G”, and for part or all of the costs of the Expanded ARTIC Garage. If any such grant funds obligate the City, as opposed to the Owner, to construct the Expanded ARTIC Garage, City’s financial obligation for construction of the Expanded ARTIC garage shall be limited to the amount of the grant funds and Owner shall be solely responsible for any excess costs for construction of the Expanded ARTIC Garage.
d. City agrees that if the Owner requests special inspection services during c
onstruction of the Project and assuming the City has sufficient staff/contract inspection capacity to provide such special inspection services, City and Owner will prepare and enter into an agreement whereby City will provide special inspection services at the then applicable costs charged by the City for such special inspection services. The City Manager is authorized to sign the special inspection services agreement on behalf of the City. e. City agrees that the requirement for the pedestrian bridge crossing Douglass Road will be eliminated if either there is no office use east of Douglass Road or, if Owner provides a traffic engineering justification to the City and the City approves the justification as set forth in the Condition of Approval No. 12.
Section 24. UNDERT
AKINGS AND ASSURANCES CONTEMPLATED AND
PROMOTED BY THE DEVELOPMENT AGREEMENT STATUTE.
The mutual undertakings and assurances described above and provided for in this Development Agreement are for the benefit of City and Owner and promote the comprehensive planning, private and public cooperation and participation in the provision of public facilities, and the effective and efficient development of infrastructure and facilities supporting development which was contemplated and promoted by the Development Agreement Statute.
City agrees that it will not take any actions which are intended to circumvent this Development Agreement; provided, however, that any action of the electorate shall not be deemed an action for purposes of this Section 24.
Section 25. RESERVED AUTHORITY.
25.1 State and Federal Laws and Regulations. In the event that the State or Federal laws or regulations enacted after this Development Agreement has been entered into, prevent or preclude compliance with one or more provisions of the Development Agreement, such provisions of the Development Agreement shall be modified or suspended as may be necessary to comply with such State or Federal laws or regulations, provided, however, that this Development Agreement shall remain in full force and effect to the extent it is not inconsistent with such laws or regulations and to the extent such laws or regulations do not render such
-54-
remaining provisions impractical to enforce. Notwithstanding the foregoing, City shall not adopt or undertake any rule, regulation or policy which is inconsistent with this Development Agreement until City makes a finding that such rule, regulation or policy is reasonably necessary to comply with such State and Federal laws or regulations.
25.2 Model Codes.
This Development Agreement shall not prevent City from
applying new rules, regulations and policies contained in model codes, including, but not limited to, the Anaheim Building Code as adopted in Title 15, Section 15.02.
25.3 Public Health and Safety. Thi
s Development Agreement shall not prevent
City from adopting new rules, regulations and policies, including amendments or modifications to model codes described in Section 25.2 which directly result from findings by City that failure to adopt such rules, regulations or policies would result in a condition injurious or detrimental to the public health and safety. Notwithstanding the foregoing, City shall not adopt any such rules, regulations or policies which prevent or preclude compliance with one or more provisions of this Development Agreement until City makes a finding that such rules, regulations or policies are reasonably necessary to correct or avoid such injurious or detrimental condition.
Section 26. CANCEL
LATION.
26.1 Initiation of Cancellation. Either party may propose cancellation of this Development Agreement.
26.2 Procedure. The procedure for proposing a cancellation of and canceling this Development Agreement shall be the same as the procedure required for entering into this Development Agreement in the first instance. Such procedures are set forth in Sections 2, 3 and 5 of the Procedures Resolution and Section 65868 of the Government Code.
26.3 Consent of Owner and City. Any cancellation of this Development Agreement shall require the mutual consent of Owner and City.
Section 27. PERI ODIC REVIEW.
27.1 Time for Review. City shall, at least every twelve (12) months after the Development Agreement Date, review the extent of good faith compliance by Owner with the terms of this Development Agreement. Owner’s failure to comply with the timing schedules set forth in the Final Master Site Plan and this Development Agreement shall constitute rebuttable evidence of Owner’s lack of good faith compliance with this Development Agreement. Such periodic review shall determine compliance with the terms of this Development Agreement pursuant to California Government Code Section 65865.1 and other successor laws and regulations.
27.2 Owner’s Submission.
Each year, not less than forty-five (45) days nor
more than sixty (60) days prior to the anniversary of the Development Agreement Date, Owner shall submit evidence to the City Council of its good faith compliance with the terms and conditions of this Development Agreement. Owner shall notify the City Council in writing that such evidence is being submitted to City pursuant to the requirements of Section 6.2 of the Procedures Resolution. Owner shall pay to City a reasonable processing fee in an amount as
-55-
City may reasonably establish from time to time on each occasion that Owner submits its evidence for a periodic review.
27.3 Findings. Within forty-five (45) days after the submission of Owner’s evidence, the City Council shall determine, on the basis of substantial evidence, whether or not Owner has, for the period under review, complied in good faith with the terms and conditions of this Development Agreement. If the City Council finds that Owner has complied, the review for that period shall be deemed concluded. If the City Council finds and determines, on the basis of substantial evidence, that Owner has not complied in good faith with the terms and conditions of this Development Agreement for the period under review, Owner shall be given at least sixty (60) days to cure such non-compliance and if the actions required to cure such non-compliance take more than sixty (60) days, then City shall give Owner additional time provided that Owner is making reasonable progress towards such end. If during the cure period, Owner fails to cure such noncompliance or is not making reasonable good faith progress towards such end, then the City Council may, at its discretion, proceed to modify or terminate this Development Agreement or establish a time schedule for compliance in accordance with the procedures set forth in Section 29.
27.4 Initiation of Review by City Council. In addition to the periodic review set forth in this Development Agreement, the City Council may at any time initiate a review of this Development Agreement upon the giving of written notice thereof to Owner. Within thirty (30) days following receipt of such notice, Owner shall submit evidence to the City Council of Owner’s good faith compliance with this Development Agreement and such review and determination shall proceed in the manner as otherwise provided in this Development Agreement.
Section 28. EVENT
S OF DEFAULT.
28.1 Defaults by Owner. Within forty-five (45) days after the submission of Owner’s evidence, the City Council shall determine on the basis of substantial evidence, whether or not Owner has, for the period under review, complied in good faith with the terms and conditions of this Development Agreement. If the City Council finds that Owner has so complied, the review for that period shall be deemed concluded. If the City Council finds and determines, on the basis of substantial evidence, that Owner has not complied in good faith with the terms and conditions of this Development Agreement for the period under review, Owner shall be given at least sixty (60) days to cure such non-compliance and if the actions required to cure such non-compliance take more than sixty (60) days, then City shall give Owner additional time provided that Owner is making reasonable progress towards such end. If during the cure period Owner fails to cure such non-compliance or is not making reasonable progress towards such end, then the City Council may, at its discretion, proceed to modify or terminate this Development Agreement or establish a time schedule for compliance in accordance with the procedures set forth in Section 29.
28.2 Specific Performance Remedy. Due to the size, nature and scope of the Project, it will not be practical or possible to restore the Property to its pre-existing condition once implementation of this Development Agreement begins. After such implementation, Owner may be foreclosed from other choices it may have had to utilize the Property and provide
-56-
for other benefits. Owner has invested significant time and resources and performed extensive planning and processing of the Project in agreeing to the terms of this Development Agreement and will be investing even more significant time in implementing the Project in reliance upon the terms of this Development Agreement, and it is not possible to determine the sum of the money which would adequately compensate Owner for such efforts. For the above reasons, City and Owner agree that damages would not be an adequate remedy if City fails to carry out its obligations under this Development Agreement. Therefore, specific performance of this Development Agreement is the only remedy which would compensate Owner if City fails to carry out its obligations under this Development Agreement, and City agrees that Owner shall be entitled to specific performance in the event of a default by City hereunder.
28.3 Liquidated Damages and other City Remedy. City and Owner acknowledge that, if Owner fails to carry out its obligations under this Development Agreement, to develop Phases 2 through 5 of the Project, City will not receive all of the benefits it has negotiated through the Owner’s obligations under this Development Agreement, and it would be impracticable or extremely difficult to fix, prior to signing this Development Agreement, the actual damages which would be suffered by City if Owner fails to perform its obligations under this Development Agreement to complete construction of Phases 2 through 5 of the Project as specified in Section 17 of this Development Agreement. Therefore, liquidated damages is an appropriate remedy which would compensate City if Owner fails to carry out its obligations under this Development Agreement to complete construction of Phases 2 through 5 of the Project, and Owner agrees that City shall be entitled to the following liquidated damages if Owner has commenced construction of Meadow Park or the Katella Bridge, and thereafter fails to commence and complete Development of: (i) any required Public Improvements as set forth in Sections 10 and Section 11 as part of the Phase in which they are required to be constructed or earlier, (ii) the affordable housing as set forth in Section 22(e), (iii) the private commercial development within Phases 2 through 4 of the Project or (iv) if the Owner fails to timely pay the Offsite Park Contribution Fee as required in Section 22(f). City’s liquidated damages shall solely consist of Owner’s conveying to City, through a grant deed, the entire parcel or parcels underlying the proposed Parking Deck A including the access ramps thereto and any improvements thereon. Also, if Owner is able to complete Phase 2, as specified in Section 17, even if Caltrans has not approved or provided the necessary clearances for SR 57 off-ramp improvements, City shall be entitled to liquidated damages specified herein if Owner does not timely complete construction of Phases 3 and 4. In addition, if Owner fails to comply with public improvement completion requirements set forth in Section 10 and Section 11 , provide the dedications or benefits to the City as set forth in Sections 13 and 22, City shall have the right to refuse to issue any Development Approvals which Owner would otherwise have been entitled to pursuant to this Development Agreement. If City issues a Development Approval pursuant to this Development Agreement in reliance upon a specified condition being satisfied by Owner in the future, and if Owner then fails to satisfy such condition, City shall be entitled to specific performance for the sole purpose of causing Owner to satisfy such condition.
Section 29. MODIF
ICATION OR TERMINATION.
If pursuant to Section 28.1, City elects to modify or terminate this Development Agreement or establish a revised time schedule for compliance as herein provided, then City shall proceed as set forth in this Section 29.
-57-
29.1 Notice to Owner. City shall give notice to Owner of City Council’s intention to proceed to modify or terminate this Development Agreement or establish a time schedule for compliance within ten (10) days of making the City’s findings.
29.2 Public Hearing. The City Council shall set and give notice of a public hearing on modification, termination or a time schedule for compliance to be held within forty (40)days after the City Council gives notice to Owner.
29.3 Decision. The
City Council shall announce its findings and decisions on whether this Development Agreement is to be terminated, how this Development Agreement is to be modified or the provisions of the Development Agreement with which Owner must comply and a time schedule therefor not more than ten (10) days following completion of the public hearing.
29.4 Standard of Review. Any de
termination by City to terminate this
Development Agreement because Owner has not complied in good faith with the terms of this Development Agreement must be based upon a finding by the City Council, based on the preponderance of evidence, that Owner is in default and has not cured that default in the timeframe permitted by Sections 27 and 28 above, as applicable.
29.5 Implementation. Amending or terminating this Development Agreement shall be accomplished by City enacting an ordinance. The ordinance shall recite the reasons which, in the opinion of the City, make the amendment or termination of this Development Agreement necessary. Not later than ten (10) days following the adoption of the ordinance, one copy thereof shall be forwarded to Owner. This Development Agreement shall be terminated or this Development Agreement as modified shall become effective on the effective date of the ordinance terminating or modifying this Development Agreement.
29.6 Schedule for Compliance.
Setting a reasonable time schedule for
compliance with this Development Agreement may be accomplished by City enacting a resolution. The resolution shall recite the reasons which, in the opinion of City, make it advisable to set a schedule for compliance and why the time schedule is reasonable. Not later than ten (10) days following adoption of the resolution, one copy thereof shall be forwarded to Owner. Compliance with any time schedule so established as an alternative to amendment or termination shall be subject to periodic review as provided in this Development Agreement and lack of good faith compliance by Owner with the time schedule shall be basis for termination or modification of this Development Agreement.
Section 30. ASSI
GNMENT.
30.1 Right to Assign. Owner shall have the right to sell, mortgage, hypothecate, assign or transfer this Development Agreement, and any and all of its rights, duties and obligations hereunder, to any person, partnership, joint venture, firm or corporation at any time during the term of this Development Agreement, provided that any such sale, mortgage, hypothecation, assignment or transfer must be pursuant to a sale, assignment or other transfer of the interest of Owner in the Property, or a portion thereof. In the event of any such sale, mortgage, hypothecation, assignment or transfer, (a) Owner shall notify City of such event and
-58-
the name of the transferee, together with the corresponding entitlements being transferred to such transferee and (b) the agreement between Owner and such transferee shall provide that either Owner or the transferee or both shall be liable for the performance of all obligations of Owner pursuant to this Development Agreement and the Development Approvals. Owner shall also provide to the City, for review and approval (which shall not be unreasonably withheld) by the City Manager, a summary of the development qualifications/experience and financial capability of the assignee or transferee to complete the portions of the Project and obligations assigned or transferred. Such transferee and/or Owner shall notify City in writing which entity shall be liable for the performance of such obligations, and upon the express written assumption of any or all of the obligations of Owner under this Development Agreement by such assignee, transferee or purchaser shall, without any act of or concurrence by City, relieve Owner of its legal duty to perform said obligations under this Development Agreement with respect to the Property or portion thereof, so transferred, provided that Owner is not in default under the terms of this Development Agreement at the time of assignment or transfer. If Owner transfers its interest to an Affiliate, such a transfer shall not require City’s consent. If Owner effectuates a partial transfer to a Merchant Builder, such partial transfer shall not require City’s consent. In such situations, Owner shall provide written notice of its transfer to an Affiliate or partial transfer to a Merchant Builder, within thirty (30) days after the consummation of this transfer.
30.2 Release Upon Transfer.
It is understood and agreed by the parties that the
Property may be subdivided following the Development Agreement Date. One or more of such subdivided parcels may be sold, mortgaged, hypothecated, assigned or transferred to persons for development by them in accordance with the provisions of this Development Agreement.
Effective upon such sale, mortgage, hypothecation, assignment or transfer, the obligations of Owner shall become several and not joint, except as to Owner’s obligations set forth in Section 10 and Section 11. Upon the sale, transfer, or assignment of Owner’s rights and interests under this Development Agreement as permitted pursuant to Section 30.1 above, Owner shall be released from its obligations under this Development Agreement with respect to the Property, or portion thereof so transferred, provided that (a) Owner is not then in default under this Development Agreement, (b) Owner has provided to City the notice of such transfer specified in Section 30.1 above, (c) the transferee executes and delivers to City a written agreement in which (i) the name and address of the transferee is set forth and (ii) the transferee expressly and unconditionally assumes all the obligations of Owner under this Development Agreement and the Development Approvals with respect to the property, or portion thereof, so transferred and (d) the transferee provides City with security equivalent to any security provided by Owner to secure performance of its obligations under this Development Agreement or the Development Approvals. Non-compliance by any such transferee with the terms and conditions of this Development Agreement shall not be deemed a default hereunder or grounds for termination hereof or constitute cause for City to initiate enforcement action against other persons then owning or holding interest in the Property or any portion thereof and not themselves in default hereunder. Upon completion of any phase of development of the Project as determined by City, City may release that completed phase from any further obligations under this Development Agreement. The provisions of this Section 30 shall be self-executing and shall not require the execution or recordation of any further document or instrument. Any and all successors, assigns and transferees of Owner shall have all of the same rights, benefits and obligations of Owner as used in this Development Agreement and the term “Owner” as used in this Development
-59-
Agreement shall refer to any such successors, assigns and transferees unless expressly provided herein to the contrary.
Section 31. NO CONF LICTING ENACTMENTS.
By entering into this Development Agreement and relying thereupon, Owner is obtaining vested rights to proceed with the Project in accordance with the terms and conditions of this Development Agreement, and in accordance with, and to the extent of, the Development Approvals. By entering into this Development Agreement and relying thereupon, City is securing certain public benefits which enhance the public health, safety and general welfare.
City therefore agrees that except as provided in Section 25, neither the City Council nor any other agency of City shall enact a rule, regulation, ordinance or other measure which relates to the rate, timing or sequencing of the Development or construction of all or any part of the Project and which is inconsistent or in conflict with this Development Agreement.
Section 32. GENERAL.
32.1 Force Majeure. The Term of this Development Agreement and the time within which Owner shall be required to perform any act under this Development Agreement shall be extended by a period of time equal to the number of days during which performance of such act is delayed unavoidably by strikes, lock-outs, Acts of God, epidemics and pandemics, including COVID 19-induced restrictions, failure or inability to secure materials or labor by reason of priority or similar regulations or order of any governmental or regulatory body, initiative or referenda, moratoria, enemy action, civil disturbances, fire, unavoidable casualties, or any other cause beyond the reasonable control of Owner.
32.2 Construction of Development Agreement. The language in all parts of this Development Agreement shall in all cases, be construed as a whole and in accordance with its fair meaning. The captions of the paragraphs and subparagraphs of this Development Agreement are for convenience only and shall not be considered or referred to in resolving questions of constructions. This Development Agreement shall be governed by the laws of the State of California. The parties understand and agree that this Development Agreement is not intended to constitute, nor shall be construed to constitute, an impermissible attempt to contract away the legislative and governmental functions of City, and in particular, the City’s police powers. In this regard, the parties understand and agree that this Development Agreement shall not be deemed to constitute the surrender or abnegation of the City’s governmental powers over the Property.
32.3 Severability. I
f any provision of this Development Agreement
shall be adjudged to be invalid, void or unenforceable, such provision shall in no way affect, impair or invalidate any other provision hereof, unless such judgment affects a material part of this Development Agreement, the parties agree that they would have entered into the remaining portions of this Development Agreement not adjudged to be invalid, void or illegal. In the event that all or any portion of this Development Agreement is found to be unenforceable, this Development Agreement or that portion which is found to be unenforceable shall be deemed to be a statement of intention by the parties; and the parties further agree that in such event they shall take all steps necessary to comply with such public hearings and/or notice requirements as
-60-
may be necessary in order to make valid this Development Agreement or that portion which is found to be unenforceable. Notwithstanding any other provisions of this Development Agreement, in the event that any material provision of this Development Agreement is found to be unenforceable, void or voidable, Owner or City may terminate this Development Agreement in accordance with the provisions of the Development Agreement Statute and the Procedures Resolution.
32.4 Cumulative Remedies. In addition to any other rights or remedies, either party may institute legal action to cure, correct or remedy any default, to enforce any covenant or agreement herein, or to enjoin any threatened or attempted violation, including suits for declaratory relief, specific performance (subject to the provisions of Section 28.2) and relief in the nature of mandamus. All of the remedies described above shall be cumulative and not exclusive of one another, and the exercise of any one or more of the remedies shall not constitute a waiver or election with respect to any other available remedy.
32.5 Hold Harmless Agreement. Ow
ner and City mutually agree to, and shall
hold each other, each other’s elective and appointive councils, boards, commissions, officers, partners, agents, representatives and employees harmless from any liability for damage or claims for damage for personal injury, including death, and from claims for property damage which may arise from the activities of the other’s or the other’s contractors’, subcontractors’, agents’, or employees’ which relate to the Project whether such activities be by Owner or City, or by any of the Owner’s or the City’s contractors, subcontractors, or by any one or more persons indirectly employed by, or acting as agent for Owner any of the Owner’s or the City’s contractors or subcontractors. Owner and City agree to and shall defend the other and the other’s elective and appointive councils, boards, commissioners, officers, partners, agents, representatives and employees from any suits or actions at law or in equity for damage caused or alleged to have been caused by reason of the aforementioned activities which relate to the Project.
32.6 Cooperation in the Event of Legal Challenge. In the event of any legal action instituted by a third party or other governmental entity or official challenging the validity of any provision of this Development Agreement and/or the Development Approvals (“Third Party Challenge”), the parties agree to cooperate fully with each other in defending said action and the validity of each provision of this Development Agreement, however, Owner shall be liable for all legal expenses and costs incurred in defending any such action. Owner shall be entitled to choose legal counsel to defend against any such legal action and shall pay any attorneys’ fees awarded against City or Owner, or both, resulting from any such legal action.
Owner shall be entitled to any award of attorneys’ fees arising out of any such legal action.
32.7 Continued Processing. The filing of any Third Party Challenge shall not delay or stop the development, processing or construction of the Project or approval of any Development Approvals, unless the third party obtains a court order preventing the activity. City shall not stipulate to or cooperate in the issuance of any such order without the prior written consent of Owner. In the event of a court order issued as a result of a successful Third Party Challenge, City shall, to the extent permitted by such court order and Applicable Law, in good faith seek to comply with the court order in such a manner as will maintain the integrity of the Development Approvals and avoid or minimize to the greatest extent possible (i) any impact to the development of the Project as provided for in, and contemplated by, the Development
-61-
Approvals, the Existing Land Use Regulations and this Development Agreement, or (ii) any conflict with the Development Approvals, the Existing Land Use Regulations and this Development Agreement, or frustration of the intent or purpose of the Development Approvals, the Existing Land Use Regulations and this Development Agreement.
32.8 Tolling of Agreement and Project Approvals. Any Third Party Challenge filed attacking City’s approval of this Development Agreement or any Development Approval, shall toll the expiration date of this Development Agreement and all Development Approvals for the length beginning with the day the litigation is filed until such time as the Third Party Challenge is finally resolved.
32.9 Public Agency Coordination. City and Owner shall cooperate and use their respective best efforts in coordinating the implementation of the Development Approvals with other public agencies, if any, having jurisdiction over the Property or the Project.
32.10 Initiative Measures. Both City and Owner intend that this Development Agreement is a legally binding contract which will supersede any initiative, measure, moratorium, referendum, statute, ordinance or other limitation (whether relating to the rate, timing or sequencing of the Development or construction of all or any part of the Project and whether enacted by initiative or otherwise) affecting parcel or subdivision maps (whether tentative, vesting tentative or final), building permits, occupancy certificates or other entitlements to use approved, issued or granted within the City, or portions of the City, and which Agreement shall apply to the Project to the extent such initiative, measure, moratorium, referendum, statute, ordinance or other limitation is inconsistent or in conflict with this Development Agreement. Should an initiative, measure, moratorium, referendum, statute, ordinance, or other limitation be enacted by the citizens of City which would preclude construction of all or any part of the Project, and to the extent such initiative, measure, moratorium, referendum, statute, ordinance or other limitation be determined by a court of competent jurisdiction to invalidate or prevail over all or any part of this Development Agreement, Owner shall have no recourse against City pursuant to the Development Agreement, but shall retain all other rights, claims and causes of action under this Development Agreement not so invalidated and any and all other rights, claims and causes of action as law or in equity which Owner may have independent of this Development Agreement with respect to the Project.
The foregoing shall not be deemed to limit Owner’s right to appeal any such determination that such initiative, measure, referendum, statute, ordinance or other limitation invalidates or prevails over all or any part of this Development Agreement. City agrees to cooperate with Owner in all reasonable manners in order to keep this Development Agreement in full force and effect, provided Owner shall reimburse City for its out-of-pocket expenses incurred directly in connection with such cooperation and City shall not be obligated to institute a lawsuit or other court proceedings in this connection.
32.11 Attorneys’ Fees. In t
he event of any dispute between the parties involving
the covenants or conditions contained in this Development Agreement, the prevailing party shall be entitled to recover reasonable expenses, attorney’s fees and costs.
32.12 No Waiver. N
o delay or omission by either party in exercising any right or power accruing upon non-compliance or failure to perform by the other party under any of the
-62-
provisions of this Development Agreement shall impair any such right or power or be construed to be a waiver thereof. A waiver by either party of any of the covenants or conditions to be performed by the other party shall not be construed as a waiver of any succeeding breach of non- performance of the same or other covenants and conditions hereof.
32.13 Authority to Execute. T
he person executing this Development Agreement
on behalf of Owner warrants and represents that he/she has the authority to execute this Development Agreement on behalf of his/her partnership and represents that he/she has the authority to bind Owner to the performance of Owner’s obligations hereunder.
32.14 Notice.
32.14.1 To Owner. Any notice required or permitted to be given by City to Owner under or pursuant to this Development Agreement shall be deemed sufficiently given if in writing and delivered personally to an officer of Owner or mailed with postage thereon fully prepaid, registered or certified mail, return receipt requested, addressed; to Owner as follows:
William Foltz
Pre
sident/COO of ocVIBE
2101 East Coast Highway, 3rd Floor
Corona del Mar, CA 92625
With copies to:
Bernard Schneider
2101 East Coast Highway, 3
rd Fl.
Corona del Mar, CA 92625
Chelsea Maclean
Holland & Knight LLP
560 Mission Street, Suite 1900
San Francisco, CA 94131
or such changed address as Owner shall designate in writing to City.
32.14.2 T
o City. Any notice required or permitted to be given to City under or pursuant to this Development Agreement shall be made and given in writing, if by mail addressed to:
City Council
Ci
ty of Anaheim
c/o City Clerk
P.O. Box 3222
Anaheim, California 92803
-63-
With copies to:
City Manager
City of Anaheim
P.O. Box 3222
Anaheim, California 92803
City Attorney
City of Anaheim
P.O. Box 3222
Anaheim, California 92803
or such changed address as City shall designate in writing to Owner.
Alternatively, notices to City may also be personally delivered to the City Clerk, at the Ana
heim Civic Center, 200 S. Anaheim Blvd., Anaheim, California, together with copies marked for the City Manager and the City Attorney or, if so addressed and mailed, with postage thereon fully prepaid, registered or certified mail, return receipt requested, to the City Council in care of the City Clerk at the above address with copies likewise so mailed to the City Manager and the City Attorney, respectively and also in care of the City Clerk at the same address. The provisions of this Section 32.14 shall be deemed permissive only and shall not detract from the validity of any notice given in a manner which would be legally effective in the absence of this Section 32.14.
32.15 Captions. The captions of the paragraphs and subparagraphs of this Development Agreement are for convenience and reference only and shall in no way define, explain, modify, construe, limit, amplify or aid in the interpretation, construction or meaning of any of the provisions of this Development Agreement.
32.16 Consent. Any consent required by the parties in carrying out the terms of this Development Agreement shall not unreasonably be withheld.
32.17 Further Actions and Instruments. Each of the parties shall cooperate with and provide reasonable to the other to the extent contemplated hereunder in the performance of all obligations under this Development Agreement and the satisfaction of the conditions of this Development Agreement. Upon the request of either party at any time, the other party shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this Development Agreement to carry out the intent and to fulfill the provisions of this Development Agreement or to evidence or consummate the transactions contemplated by this Development Agreement.
32.18 Subsequent Amendment to Authorizing Statute. This Development Agreement has been entered into in reliance upon the provisions of the Development Agreement Statute in effect as of the Development Agreement Date. Accordingly, subject to Section 25.1 above, to the extent that subsequent amendments to the Government Code would affect the provisions of this Development Agreement, such amendments shall not be applicable to this
-64-
Development Agreement unless necessary for this Development Agreement to be enforceable or unless this Development Agreement is modified pursuant to the provisions set forth in this Development Agreement and Government Code Section 65868 as in effect on the Development Agreement Date.
32.19 Governing La
w. This Development Agreement, including, without
limitation, its existence, validity, construction and operation, and the rights of each of the parties shall be determined in accordance with the laws of the State of California.
32.20 Effect on Title. Ow
ner and City agree that this Development Agreement
shall not continue as an encumbrance against any portion of the Property as to which this Development Agreement has terminated.
32.21 Mortgagee Protection. E
ntering into or a breach of this Development
Agreement shall not defeat, render invalid, diminish, or impair the lien of Mortgagees having a mortgage on any portion of the Property made in good faith and for value, unless otherwise required by law. No Mortgagee shall have an obligation or duty under this Development Agreement to perform Owner’s obligations, or to guarantee such performance prior to any foreclosure or deed in lieu thereof.
32.22 Notice of Default to Mortgagee, Right of Mortgagee to Cure.
If the City
Clerk timely receives notice from a Mortgagee requesting a copy of any notice of default given to Owner under the terms of this Development Agreement, City shall provide a copy of that notice to the Mortgagee within ten (10) days of sending the notice of default to Owner. The Mortgagee shall have the right, but not the obligation, for a period up to ninety (90) days after the receipt of such notice from City to cure or remedy, or to commence to cure or remedy the default unless a further extension of time to cure is granted in writing by City. If the default is of a nature which can only be remedied or cured by such Mortgagee upon obtaining possession, such Mortgagee shall seek to obtain possession with diligence and continually through foreclosure, a receiver or otherwise, and shall thereafter remedy or cure the default or non-compliance within thirty (30) days after obtaining possession. If any such default or non-compliance cannot, with diligence, be remedied or cured within such thirty (30) day period, then such Mortgagee shall have such additional time as may be reasonably necessary to remedy or cure such default or non-compliance if such Mortgagee commences cure during such thirty (30) day period, and thereafter diligently pursues and completes such cure.
32.23 Bankruptcy. Notwithstanding the foregoing provisions of Section 32.21, if any Mortgagee is prohibited from commencing or pursues and prosecuting foreclosure or other appropriate proceedings in the nature thereof by any process or injunction issued by any court or by reason of any action by any court having jurisdiction of any bankruptcy or insolvency proceeding involving City, the times specified in this Section 32.23 for commencing or prosecuting foreclosure or other proceedings shall be extended for the period of the prohibition.
32.24 Disaffirmance.
32.24.1 City agrees that in the event of termination of this Development Agreement by reason of any default by City, or by reason of the disaffirmance
-65-
hereof by a receiver, liquidator or trustee for Owner or its property, City, if requested by any Mortgagee, shall enter into a new Development Agreement for the Project with the most senior Mortgagee requesting such new agreement, for the remainder of the Term, effective as of the date of such termination, upon the terms, provisions, covenants and agreements as herein contained to the extent and subject to the law then in effect, and subject to the rights, if any, of any parties then in possession of any part of the Property, provided:
32.24.2 The Mortgagee shall make written request upon City for the new Development Agreement for the Project within thirty (30) days after the date of termination;
32.24.3 The Mortgagee shall pay to City at the time of the execution and delivery of the new Development Agreement for the Project expenses, including reasonable attorneys’ fees, to which City shall have been subjected by reason of Owner’s default; and
32.24.4 The Mortgagee shall perform and observe all covenants in this Development Agreement intended to be performed by Owner, and shall further remedy any other conditions which Owner under the terminated agreement was obligated to perform under its terms, to the extent the same are curable or may be performed by the Mortgagee.
32.24.5 Not
hing herein contained shall require any Mortgagee to enter into a new agreement pursuant to Section 32.24.1 above, nor to cure any default of Owner referred to above.
32.25 No Third Party Beneficiaries. This Development Agreement and all provisions hereof is made and entered into for the sole protection and benefit of City, Owner and their successors and assigns. No other person shall have right of action based upon any provision in this Development Agreement.
32.26 Project as a Private Undertaking. It
is specifically understood and agreed
by and between the parties that the Project is a private development, that neither party is acting as the agent of the other in any respect hereunder, and that each party is an independent contracting entity with respect to the terms, covenants and conditions contained in this Development Agreement. No partnership, joint venture or other association of any kind is formed by this Development Agreement. The only relationship between City and Owner is that of a government entity regulating the development of private property and the owner of such private property.
32.27 Restrictions. O
wner shall place in any agreements to sell or convey any interest in the Property or any portion thereof, provisions making the terms of this Development Agreement binding on any successors in interest of Owner and express provision for Owner or City, acting separately or jointly, to enforce the provisions of this Development Agreement and to recover attorneys’ fees and costs for such enforcement.
32.28 Recitals. The recitals in this Development Agreement constitute part of this Development Agreement and each party shall be entitled to rely on the truth and accuracy of each recital as an inducement to enter into this Development Agreement.
-66-
32.29 Recording. The City Clerk shall cause a copy of this Development Agreement to be executed by City and recorded in the Official Records of Orange County no later than ten (10) days after City approves this Development Agreement.
32.30 Title Report. City is required to sign this Development Agreement only after Owner has provided City with a satisfactory preliminary title report evidencing and showing Owner’s legal and equitable ownership interest in the Property, current within six (6) months, unencumbered except for the exceptions (hereinafter the “Permitted Exceptions”) set forth in the preliminary title report for the Property dated May 24, 2007 (the “Preliminary Title Report”). Any instrument of monetary encumbrance such as a deed of trust or a mortgage entered into subsequent to the date of the Preliminary Title Report and prior to the Development Agreement Date, shall contain language expressly subordinating such instruments of monetary encumbrance to the provisions of this Development Agreement. Owner shall present evidence, satisfactory to City, of Owner’s legal title to Property, subject only to the Permitted Exceptions and any such subordinated instruments of monetary encumbrance, at the time of recordation of this Development Agreement, or a memorandum thereof.
32.31 Entire Agreement. This Development Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Development Agreement, and this Development Agreement supersedes all previous negotiations, discussions and agreements between the parties, and no parol evidence of any prior or other agreement shall be permitted to contradict or vary the terms hereof.
32.32 Successors and Assigns. The burdens of the Development Agreement shall be binding upon, and the benefits of the Development Agreement inure to all successors in interest and assigns of the parties to the Development Agreement.
32.33 Owner’s Title of Property. Ne
ither party shall be bound by any provision
of this Development Agreement unless and until Owner shall record this Development Agreement or a memorandum thereof, in the office of the County Recorder of the County sufficient to cause this Development Agreement and the obligations contained herein to attach to and encumber Owner’s fee title to the Property.
32.34 Exhibits. All exhibits, including attachments thereto, are incorporated in this Development Agreement in their entirety by this reference.
32.35 Delegation. The City Manager shall have the authority to take ministerial actions to implement and enforce this Agreement on behalf of the City; provided, however, that (i) in no event shall the City Manager (or designee) have the authority, without City Council approval or express delegation of authority, to approve modifications or amendments to this Agreement that substantially change the uses or Development permitted on the site or add to the City’s obligations or materially impair or jeopardize its rights hereunder; (ii) in no event shall the City Manager (or designee) have the authority, without City Council approval or express delegation of authority, to approve waivers that materially impair or jeopardize the City’s rights hereunder; (iii) the City Manager (or designee) shall have the right, even if he or she has the authority to act hereunder without seeking City Council approval, to seek such approval, and in such event the City shall not be deemed to be in default hereunder; and (iv)any document
-67-
evidencing the City Manager’s (or designee’s) exercise of the authority hereunder shall be subject to review and approval as to form by the City Attorney. The delegation of authority set forth in this Section 32.35 is in addition to and does not modify the authority granted to the City Manager to approve Operating Memoranda pursuant to Section 20.6.
-68-
IN WITNESS WHEREOF, City and Owner have executed this Development Agreement as of the date and year first above written.
DATE OF EXECUTION:
CITY OF ANAHEIM
a municipal corporation
By:
Printed Name: Ashleigh Aitken
Its: Mayor
“CITY”
ATTEST:
By: ________________________
Theresa Bass, City Clerk of Anaheim
APPROVED AS TO FORM:
By:
Robert Fabela, City Attorney
DATE OF EXECUTION:
ANAHEIM REAL ESTATE PARTNERS,
LLC
By:
Printed Name: William Foltz
Its: Chief Executive Officer
“OWNER”
DATE OF EXECUTION:
TS ANAHEIM, LLC
By: _________________________________
Printed Name: _________________________
Its: __________________________________
“OWNER”
-69-
DATE OF EXECUTION:
_____________________________________
FCD, LLC
By: _________________________________
Printed Name: _________________________
Its: __________________________________
“OWNER”
20059904.1
EXHIBIT A
DEVELOPMENT AGREEMENT
LEGAL DESCRIPTION
PARCEL A: APN: 386-521-17
PARCEL 1 OF PARCEL MAP 98-105, IN THE CITY OF ANAHEIM, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP FILED IN BOOK 303, PAGES 34 THROUGH 38 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXHIBIT A
DEVELOPMENT AGREEMENT
LEGAL DESCRIPTION
PARCEL B: APN: 232-072-06
PARCEL 1 OF PARCEL MAP 98-106, IN THE CITY OF ANAHEIM, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP FILED IN BOOK 303, PAGES 39 THROUGH 44 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXHIBIT A
DEVELOPMENT AGREEMENT
LEGAL DESCRIPTION
PARCEL C: APN: 232-071-02 & 232-071-03
PARCEL 2, IN THE CITY OF ANAHEIM, AS SHOWN ON MAP FILED IN BOOK 106, PAGE(S) 12 AND 13, OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXHIBIT A
DEVELOPMENT AGREEMENT
LEGAL DESCRIPTION
PARCEL D: APN: 232-072-09
PARCEL 1 AS SHOWN ON LOT LINE ADJUSTMENT NO. 362 RECORDED NOVEMBER 19, 1996 AS INSTRUMENT NO. 19960582825 OF OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA, IN THE CITY OF ANAHEIM, COUNTY OF ORANGE, STATE OF CALIFORNIA. EXCEPTING THEREFROM THAT PORTION DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST SOUTHERLY CORNER OF SAID LOT 1; THENCE NORTH 06°28'23" EAST 278.04 FEET ALONG THE WESTERLY BOUNDARY OF SAID LOT 1 ALSO BEING THE EASTERLY LINE OF DOUGLASS ROAD (32.00 FEET HALF WIDTH) AS SHOWN ON SAID LOT LINE ADJUSTMENT; THENCE NORTH 48°49'36" EAST 26.41 FEET CONTINUING ALONG SAID BOUNDARY TO A POINT ON THE SOUTHERLY LINE OF KATELLA AVENUE (60.00 FEET HALF AS SHOWN ON SAID LOT LINE ADJUSTMENT; THENCE SOUTH 88°54'16" EAST 307.89 FEET CONTINUING ALONG SAID BOUNDARY AND SAID SOUTHERLY LINE TO THE EASTERLY CORNER OF SAID LOT 2, AND THE BEGINNING POINT OF A NON-TANGENT CURVE, CONCAVE NORTHWESTERLY, HAVING A RADIUS OF 429.99 FEET, A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 65°32'15" EAST; THENCE SOUTHERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 00°52'26" A DISTANCE OF 6.56 FEET; THENCE NORTH 88°54'16" WEST PARALLEL WITH AND 6.00 FEET SOUTHERLY OF SAID SOUTHERLY LINE, A DISTANCE OF 256.65 FEET; THENCE SOUTH 46°03'36" WEST, A DISTANCE OF 20.52 FEET TO THE BEGINNING POINT OF A NON-TANGENT CURVE, CONCAVE WESTERLY, HAVING A RADIUS OF 2064.00 FEET; A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 88°34'32" EAST; THENCE SOUTHERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 05°54'59" A DISTANCE OF 213.13 FEET; THENCE SOUTH 07°20'27" WEST 108.60 FEET TO A POINT ON THE SOUTHEASTERLY BOUNDARY OF SAID LOT 2; THENCE SOUTH 46°01'34" WEST 97.03 FEET ALONG SAID SOUTHEASTERLY BOUNDARY TO THE MOST SOUTHERLY CORNER OF SAID LOT 2; THENCE NORTH 06°28'23" EAST 110.78 FEET ALONG THE WESTERLY BOUNDARY OF SAID LOT 2, ALSO BEING THE EASTERLY LINE OF DOUGLASS ROAD (30.00 FEET HALF WIDTH) AS SHOWN ON SAID LOT LINE ADJUSTMENT; THENCE NORTH 27°32'50" EAST 5.56 FEET ALONG LAST SAID BOUNDARY TO THE POINT OF BEGINNING.
ALL BEARINGS AND DISTANCES IN THIS DESCRIPTION ARE GRID, BASED ON THE CALIFORNIA COORDINATE SYSTEM (NAD 83), ZONE 6. TO OBTAIN GROUND DISTANCES, DIVIDE THE GRID DISTANCE SHOWN HEREIN BY 0.99998553.
SAID PROPERTY BEING DESCRIBED AS PARCEL “A” IN CERTIFICATE OF COMPLIANCE COC2012 -00135 RECORDED FEBRUARY 13, 2013 AS INSTRUMENT NO. 2013000091553 OF OFFICIAL RECORDS OF SAID ORANGE COUNTY.
EXHIBIT A
DEVELOPMENT AGREEMENT
LEGAL DESCRIPTION
PARCEL E:
LOTS 1 THROUGH 14, INCLUSIVE, AND LOTS A THROUGH F, INCLUSIVE, AND KATELLA AVENUE AND
RIVER ROAD AS DEDICATED, IN THE CITY OF ANAHEIM, COUNTY OF ORANGE AS PER MAP FILED IN BOOK 1008, PAGES 29 THROUGH 44 OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXHIBIT A
DEVELOPMENT AGREEMENT
LEGAL DESCRIPTION
PARCEL F:
ALL OF PARCEL A AS SHOWN ON LOT LINE ADJUSTMENT NO. LLA 2023 -00849 IN THE CITY OF ANAHEIM, COUNTY OF ORANGE, STATE OF CALIFORNIA, RECORDED AUGUST 15, 2024 AS INSTRUMENT NO. 2024000210450 OF OFFICIAL RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXHIBIT A
DEVELOPMENT AGREEMENT
LEGAL DESCRIPTION
PARCEL G: APN: 253-631-27, 253-631-28 & 253-631-29
PARCELS 3, 4 AND 5 INCLUSIVE OF PARCEL MAP NO. 90 -179, IN THE CITY OF ANAHEIM, COUNTY OF ORANGE COUNTY, STATE OF CALIFORNIA AS PER MAP FILED IN BOOK 279, PAGES 45 TO 47 OF PARCEL MAPS IN THE COUNTY RECORDER OF SAID COUNTY.
EXHIBIT A
DEVELOPMENT AGREEMENT
LEGAL DESCRIPTION
THIS DESCRIPTION WAS PREPARED BY ME, OR UNDER MY DIRECTION, IN CONFORMANCE WITH THE PROFESSIONAL LAND SURVEYORS’ ACT.
KURT R. TROXELL, P.L.S. 7854
DATE PREPARED: 09/16/2024
57 949.474.1960
15535 Sand Canyon Ave, Suite 100
Irvine, California 92618
fuscoe.com
57 949.474.1960
15535 Sand Canyon Ave, Suite 100
Irvine, California 92618
fuscoe.com
57 949.474.1960
15535 Sand Canyon Ave, Suite 100
Irvine, California 92618
fuscoe.com
57 949.474.1960
15535 Sand Canyon Ave, Suite 100
Irvine, California 92618
fuscoe.com
EXHIBIT “B”
AMENDMENT NO. 1 TO THE OCVIBE SITE PLAN
Miscellaneous Case No. 2020-00751 dated August 2022, pages 1 through 326 as on file in the Planning and Building Department, and incorporated in its entirety by reference herein.
EXHIBIT “B-1”
AMENDMENT NO. 1 TO THE OCVIBE SITE PLAN
PHASING PLAN BY PHASE INCLUDING INFRASTRUCTURE AND
AFFORDABLE HOUSING
EXHIBIT “B-2”
AFFORDABLE HOUSING PHASING
EXHIBIT "E"
ARTIC SIGNS AND TRANSIT SPECIAL SIGN DISTRICT
EXHIBIT "E"
-1-
EXHIBIT I-1
-1-
EXHIBIT “I-1”
AIRSPACE RIGHTS ENCROACHM
ENT LICENSE AREAS
EXHIBIT "J"
NEW CFD IMPROVEMENTS
EXHIBIT "J"
-1-
EXHIBIT "K"
MAINTENANCE STANDARDS FOR SPRING-UP MAINTENANCE DISTRICT EXHIBIT "K"
-1-
a. Maintenance Areas . The Spring-Up Maintenance District shall maintain the two (2) Parks which will be known as (1) “Neighborhood Wellness Park” and (2) “Meadow Park” both described in Exhibit “A” and depicted in Exhibit “B", attached hereto and incorporated herein, and (3) the Bike Trail Landscape as depicted in Exhibit C, and all improvements related to the Parks thereon, including but not limited to: (i) lighting and signage; (ii) landscaping, both hardscape and softscape; (iii) bathroom facilities; (iv) seating and tables; (v) playground equipment; (vi) fencing; (vii) structures; (viii) water lines, recycled water facilities, and subsurface and above-ground irrigation systems; (ix) retaining walls, pavers, and walkways; (x) associated parking areas for the Parks; (xi) recreational and common amenities; (xii) architectural elements identifying the Park; (xiii) artificial turf; (xiv) electrical and communications equipment serving the park, (xv) event spaces, and (xvi) any other facilities, features, or improvements on or to the Parks as may be shown on Exhibit “B” (collectively, “Improvements”). b. Maintenance Activities. The Parks and Improvements shall be maintained and operated in a good, clean, and sanitary condition. As part of Spring-Up Maintenance District’s obligation to maintain the Parks in a good, clean, and sanitary condition, the Spring-Up Maintenance District shall maintain all Improvements in working order and shall perform all tasks necessary to maintain that condition, including but not limited to the following: (i) regular removal of debris, trash, waste, and graffiti; (ii) repair broken and/or missing pavers, hardscape, retaining walls, sidewalks, and walkways; (iii) regular weeding, planting, mowing, trimming, edging, replacement of mulch, and repair, replacement, and restoration of any other landscaping features as needed; (iv) repair and replacement of any water lines, recycled water facilities, and subsurface and above-ground irrigation systems that malfunction or are damaged during any excavations; (v) repair and replacement of lighting, electrical and telecommunications facilities as needed; (vi) regular cleaning and repainting of signage; (vii) regular cleaning of bathroom facilities; (viii) regular painting and upkeep of structures, facilities, amenities, and parking areas; (ix) removal and clean-up associated with camp sites; (x) repair and replacement of outdated playground and other recreational equipment; (xi) removal of graffiti, and (xii) any other tasks necessary to maintain the Parks and Improvements consistent with the Anaheim Municipal Code, Anaheim Park Department Maintenance Policies, the Meadow Park Joint Use and Operations Plan and industry standards for maintenance of park and recreation facilities among comparable, similarly-situated municipal parks located in the County of Orange.
c. Maintenance Personnel . To accomplish the maintenance obligations, the Spring-Up Maintenance District shall either staff or contract with and hire licensed and qualified personnel to perform the maintenance obligations, including but not limited to the provision of labor, equipment, materials, support facilities, and any and all other items necessary to comply with the requirements of this Declaration. d. Maintenance Schedules and Standards . The Spring-Up
Maintenance District shall perform the maintenance of the Parks and Improvements contemplated herein in accordance with the Maintenance Schedule and Standards outlined in Section 2 below.
e. Sole Cost and Expense. The Spring-Up Maintenance District shall, at the Spring-Up Maintenance District’s sole cost and expense, perform, or cause to be performed, all work, maintenance, repairs and replacements required by this Declaration. f. Compliance with Applicable Standards and Law . All work, maintenance, repairs and replacements required by this Declaration shall be performed in accordance with City’s standards and procedures, including but not limited to any right-of- way construction permits, if applicable, and subject to compliance with all applicable federal, state and local statutes and regulations.
2. Park Maintenance Schedule and Standards. The Spring-Up Maintenance District and its maintenance staff, contractors or subcontractors shall comply with the following standards as to the Park (collectively, the "Park Maintenance Schedule and Standards"):
a. Maintenance in accordance with As-Built Plans. The Parks and Improvements shall be maintained in conformance and in compliance with the approved final as-built plans. The Parks shall be maintained in good condition and in accordance with reasonable maintenance standards, which comply with the industry standards for comparable, similarly-situated municipal parks located in the County of Orange.
b. Landscape Maintenance. Landscape maintenance shall include, but not be limited to: watering/irrigation; fertilization; mowing; edging; trimming of grass; tree and shrub pruning; trimming and shaping of trees and shrubs to maintain a healthy, natural appearance, and irrigation coverage; replacement, as needed, of all plant materials; control of weeds in all planters, shrubs, lawns, ground covers, or other planted areas; and staking for support of trees. Regular maintenance of landscaping shall take place at least weekly. More intensive maintenance of landscaping (such as pruning, aerating, and fertilizing activities, etc.) shall take place at least as often as completed for comparable, similarly-situated municipal parks located in the County of Orange, but no less frequently than once per quarter.
c. Clean-Up Maintenance. Clean-up maintenance shall include, but not be limited to: maintenance of all sidewalks, paths and other paved areas in clean and weed-free condition; maintenance of all such areas clear of dirt, mud, trash, debris or other matter which is unsafe or unsightly; removal of all trash, litter and other debris from improvements and landscaping prior to mowing; clearance and cleaning of all areas maintained prior to the end of the day on which the maintenance operations are performed to ensure that all cuttings, weeds, leaves and other debris are properly disposed of by maintenance workers; and removal of uncontained litter from the ground and trash from trash and waste containers provided for that purpose. Uncontained litter and trash within containers shall be picked up and removed on at least a daily basis. Unless otherwise specified, other clean-up maintenance mentioned above shall take place at least weekly. d. Cleaning of Bathroom Facilities. Sweeping, scrubbing, and disinfecting of bathroom facilities, including toilets, sinks, walls, and floors and removal
of bathroom trash shall take place at least daily.
e. Graffiti Removal. Cleaning and removing of graffiti, including re- painting if necessary, shall take place at least weekly. f. Camp Site Removal and Cleanup. The Spring-Up Maintenance District shall implement procedures to prevent the establishment of camp sites in the Parks.
To the extent that any camp sites are established, the Spring-Up Maintenance District shall remove such camp sites and any associated trash and waste in coordination with the City and in accordance with the City of Anaheim’s Policy for Removal of Encampments. g. Painting and Striping. Painting and restriping of painted Improvements shall take place as needed, but no less frequently than once per year. h. Monthly Inspections and As-Needed Maintenance. The Spring-Up Maintenance District shall inspect the Parks and Improvements at least monthly to identify any as-needed maintenance or repairs. This maintenance may include ensuring that all lighting is in working order, identifying any damage to architectural elements or playground and recreational equipment, ensuring that all water lines, recycled water facilities, and subsurface and above-ground irrigation systems are in working order, identifying any cracking, worn or peeling paint. Any necessary repairs identified as part of the Monthly Inspections shall be made as quickly as reasonably feasible and in accordance with Section 3 below.
i. Emergency Maintenance. Emergency maintenance shall include any issue related to the Parks and/or Improvements that pose an immediate threat to the health, safety, and welfare of the public. Such emergency maintenance must be completed as soon as practicable, but no later than forty-eight (48) hours after the occurrence leading to the need for such maintenance, except where in the determination of the City, it is not feasible to conduct such emergency maintenance in the aforementioned timeframe. Under such circumstances, the City may specify a reasonable period of time for the Declarant to complete the emergency maintenance.
j.
Waiver and Recordkeeping. U pon the request of the Spring-Up Maintenance District, the City's Director of Community Services, in her or his sole and absolute discretion, may grant a waiver or deferral of the Park Maintenance Standards (or any portion thereof). The Spring-Up Maintenance District shall keep records of maintenance, repairs, and replacements as are necessary to prove performance of the Park Maintenance Standards.
3. Repair and Replacement Obligations for the Park. In addition to compliance with the Park Maintenance Standards, the Spring-Up Maintenance District shall perform all repairs and replacements to the Parks, at its sole cost and expense,
as needed to keep all Improvements in a clean, good, safe, working, and workmanlike condition in accordance with its obligations in the Development Agreement and this Declaration of Covenants. Required repairs and replacements pursuant to this Section 3 include, but are not limited to: (i) replacement of playground at the end of its useful life, but no less frequently than every twenty (20) years; (ii) replacement of restroom
fixtures as needed, but no less than every five (5) years; (iii) replacement of tables and seating as needed, but no less than every fifteen (15) years.
4. City's Consent and Acknowledgement; Notice of Deficiency. City agrees to notify the Spring-Up Maintenance District in writing if the condition of the Parks and Improvements does not meet the Park Maintenance Standards and/or the Repair and Replacement Obligations, and to specify the deficiencies and the actions required to be taken by the Spring-Up Maintenance District to cure the deficiencies. Upon notification of any maintenance/repair deficiency, the Spring-Up Maintenance District shall have fifteen (15) calendar days within which to correct, remedy or cure the deficiency, provided that if such deficiency is of a nature that more than fifteen (15) days is reasonably required to correct, remedy or cure the same, then such fifteen (15)-day period shall be extended for such additional reasonable periods of time upon prior written notice to City. Notwithstanding the foregoing, if the written notification states the problem is urgent relating to the public health, safety, and welfare, then the Spring-Up Maintenance District shall have forty-eight (48) hours from receipt of such written notification to correct, remedy or cure such problem. In the event the Spring-Up Maintenance District does not maintain the Parks in the manner set forth herein and in accordance with the Park Maintenance Standards and the Repair and Replacement Obligations, City shall have, in addition to any other rights and remedies hereunder, the right to maintain the Parks, or to contract for the correction of such deficiencies, after written notice to the Spring-Up Maintenance District, and the Spring-Up Maintenance District shall be responsible for the payment of all such reasonable documented out-of-pocket costs actually incurred by City to perform the obligations of the Spring-Up Maintenance District under this Declaration.
5. Satisfaction of Conditions. This Declaration is intended to satisfy those conditions described in in Sections 1. 4651, 1.6 07, 1. 7280, and 10. 122.6 of the Development Agreement, as well as Condition No. ____ in Exhibit “L” of the Development Agreement.
6. Severability. If any clause, sentence or other portion of this Declaration shall become illegal, null or void for any reason, or shall be held by any court of competent jurisdiction to be so, the remaining portion shall remain full force and effect.
7. Covenants Running With the Land. The covenants and restrictions set forth in this Declaration constitute a general scheme for the development, protection and maintenance of the Parks and Improvements. Said covenants and restrictions are for the benefit of the Parks. Such covenants shall be a burden upon, not only the Spring-Up Maintenance District but also its successors and assigns for the Property as defined in the Development Agreement with the exception of the Honda Center, the ARTIC, and Meadow Park.
8. Exhibits. All exhibits to this Declaration are incorporated by this
reference.
9. City's Enforcement Rights. The City is deemed to be an intended beneficiary of this Declaration, and has the right, but not the obligation, to enforce the provisions of this Declaration by any legal or equitable means (including injunctive relief) against such person or persons in actual possession of the Parks or anyone who directly or through any agent violate(s) the terms hereof. In the event any legal action is instituted by the City to enforce the terms of this Declaration, the prevailing party shall be entitled to reasonable attorneys’ fees and all fees, costs, and expenses incurred on any appeal or in collection or enforcement of any judgment. The rights of the City under this Declaration shall not be transferable in any manner to any person other than to a successor municipal corporation whose geographic boundaries include the Parks.
10. Insurance. The Spring-Up Maintenance District agrees to secure and maintain, or cause to be secured and maintained, for the duration of the Maintenance and Repair Obligations for the Parks and Improvements set forth in this Declaration, commercial general liability insurance (written on an occurrence form) in an amount not less than $2,000,000 per occurrence, $4,000,000 general aggregate and automobile liability insurance in an amount not less than $1,000,000 per occurrence. The Spring-Up Maintenance District agrees to (i) to have the City of Anaheim, its officials, officers, and employees, added, by endorsement, as a named insured on the general liability policy, and (ii) require, by endorsement, that the insurer endeavor to provide the City of Anaheim with thirty (30) days’ prior written notice prior to cancellation of the insurance required herein.
Prior to the City's acceptance of the Improvements under this Declaration, the Spring-Up Maintenance District shall provide certificate(s) of insurance evidencing the insurance coverage required herein.
EXHIBIT "A"
LEGAL DESCRIPTION OF THE PARKS
EXHIBIT "B"
SITE PLANS OF THE PARKS
EXHIBIT "C"
DESCRIPTION OF THE BIKE TRAIL LANDSCAPE AREA
[Attached on Following Page]
EXHIBIT "K-1"
MAINTENANCE OBLIGATIONS
FOR MEADOW PARK,
NEIGHBORHOOD PARK AND LANDSCAPED AREA
ADJACENT TO SANTA ANA RIVER BIKE TRAIL
EXHIBIT "K-1"
-2-
Exhibit K-1
Maintenance Obligations for Meadow Park, Wellness ParkNeighborhood Park and Landscaping Adjacent to Santa Ana River Trail
RECORDING REQUESTED BY )
AND WHEN RECORDED MAIL TO: )
)
City of Anaheim )
200 S. Anaheim Boulevard, 2nd Floor )
Anaheim, California 92805 )
Attention: City Engineer )
)
[SPACE ABOVE THIS LINE FOR RECORDER’S USE ONLY]
DECLARATION OF MAINTENANCE COVENANTS
THIS DECLARATION OF MAINTENANCE COVENANTS (“Declaration” or “Declaration of Covenants”) is made this _____ day of _________, 2022, by Anaheim Real Estate Partners, LLC (“Declarant”) with reference to the following facts:
RECITALS:
A. On _______________________, 2022, the City Council of the City of Anaheim (“City”) adopted Ordinance No. approving that certain Development Agreement No. 2020-00004, dated _______________________, 2022 and recorded in the Official Records of Orange County California (the “Official Records”) on _______________________, 2022 as Instrument No. _______________________, and, On ___________, 2024, , the City Council of the City of Anaheim (“City”) adopted Ordinance No. _______ approving that certain Amended and Restated Development Agreement No. 2020-00004, dated _______________________, 2024 and recorded in the Official Records of Orange County California (the “Official Records”) on , 2024 as Instrument No. , (the
“Development Agreement).
B. In connection with approval of the Development Agreement and entitlements for Declarant’s proposed multi-phased, mixed use project, which includes the development of Wellness ParkNeighborhood Park, an approximately 4.7-acre private park to be constructed and maintained in perpetuity by Declarant, Meadow Park, a minimum
4.085-acre public park to be designed by Declarant and City, and constructed, operated, and managed by Declarant and maintained by Declarant during the period of Private Maintenance, and a landscaped area adjacent to the Santa Ana River Bike Trail between the proposed River Road and Santa Ana River (“Bike Trail Landscape”) to be constructed and maintained during the period of Private Maintenance as that term is described in the Development Agreement (“Project”), the City required this Declaration of Covenants
2 imposing maintenance standards and obligations on Declarant.
D. After the completion of construction of Wellness ParkNeighborhood Park, Meadow Park and Bike Trail Landscape referenced herein (collectively “Parks”), the Declarant shall be responsible, at its sole cost and expense, for the ongoing maintenance and repair of Wellness ParkNeighborhood Park in perpetuity and Meadow Park and the Bike Trail Landscape during the period of Private Maintenance, in accordance with the terms of the Development Agreement and this Declaration.
NOW, THEREFORE, in consideration of the above-referenced facts, Declarant hereby declares as follows:
1. Maintenance Covenants.
a. Maintenance Areas . Declarant shall maintain the two (2) Parks which will be known as (1) “ Wellness ParkNeighborhood Park” and (2) “Meadow Park” both described in Exhibit “A” and depicted in Exhibit “B", attached hereto and incorporated herein, and (3) the Bike Trail Landscape as depicted in Exhibit C, and all improvements related to the Parks thereon, including but not limited to: (i) lighting and signage; (ii) landscaping, both hardscape and softscape; (iii) bathroom facilities; (iv) seating and tables; (v) playground equipment; (vi) fencing; (vii) structures; (viii) water lines, recycled water facilities, and subsurface and above-ground irrigation systems; (ix) retaining walls, pavers, and walkways; (x) associated parking areas for the Parks; (xi) recreational and common amenities; (xii) architectural elements identifying the Park; (xiii) artificial turf; (xiv) electrical and communications equipment serving the park, (xv) event spaces, and (xvi) any other facilities, features, or improvements on or to the Parks as may be shown on Exhibit “B” (collectively, “Improvements”). b. Maintenance Activities. The Parks and Improvements shall be maintained and operated in a good, clean, and sanitary condition. As part of Declarant’s obligation to maintain the Parks in a good, clean, and sanitary condition, Declarant shall maintain all Improvements in working order and shall perform all tasks necessary to maintain that condition, including but not limited to the following: (i) regular removal of debris, trash, waste, and graffiti; (ii) repair broken and/or missing pavers, hardscape, retaining walls, sidewalks, and walkways; (iii) regular weeding, planting, mowing, trimming, edging, replacement of mulch, and repair, replacement, and restoration of any other landscaping features as needed; (iv) repair and replacement of any water lines, recycled water facilities, and subsurface and above-ground irrigation systems that malfunction or are damaged during any excavations; (v) repair and replacement of lighting, electrical and telecommunications facilities as needed; (vi) regular cleaning and repainting of signage; (vii) regular cleaning of bathroom facilities; (viii) regular painting and upkeep of structures, facilities, amenities, and parking areas; (ix) removal and clean-up associated with camp sites; (x) repair and replacement of outdated playground and other recreational equipment; (xi) removal of graffiti, and (xii) any other tasks necessary to maintain the Parks and Improvements consistent with the Anaheim Municipal Code, Anaheim Park Department Maintenance Policies, the Meadow Park Joint Use and Operations Plan and
3 industry standards for maintenance of park and recreation facilities among comparable, similarly-situated municipal parks located in the County of Orange. c. Maintenance Personnel . To accomplish the maintenance obligations, Declarant shall either staff or contract with and hire licensed and qualified personnel to perform the maintenance obligations, including but not limited to the provision of labor, equipment, materials, support facilities, and any and all other items necessary to comply with the requirements of this Declaration. d. Maintenance Schedules and Standards. Declarant shall perform the maintenance of the Parks and Improvements contemplated herein in accordance with the Maintenance Schedule and Standards outlined in Section 2 below. e. Sole Cost and Expense. Declarant shall, at Declarant’s sole cost and expense, perform, or cause to be performed, all work, maintenance, repairs and replacements required by this Declaration.
f. Compliance with Applicable Standards and Law . All work, maintenance, repairs and replacements required by this Declaration shall be performed in accordance with City’s standards and procedures, including but not limited to any right-of- way construction permits, if applicable, and subject to compliance with all applicable federal, state and local statutes and regulations.
2. Park Maintenance Schedule and Standards. Declarant and its maintenance staff, contractors or subcontractors shall comply with the following standards as to the Park (collectively, the "Park Maintenance Schedule and Standards"):
a. Maintenance in accordance with As-Built Plans. The Parks and Improvements shall be maintained in conformance and in compliance with the approved final as-built plans. The Parks shall be maintained in good condition and in accordance with reasonable maintenance standards, which comply with the industry standards for comparable, similarly-situated municipal parks located in the County of Orange.
b. Landscape Maintenance. Landscape maintenance shall include, but not be limited to: watering/irrigation; fertilization; mowing; edging; trimming of grass; tree and shrub pruning; trimming and shaping of trees and shrubs to maintain a healthy, natural appearance, and irrigation coverage; replacement, as needed, of all plant materials; control of weeds in all planters, shrubs, lawns, ground covers, or other planted areas; and staking for support of trees. Regular maintenance of landscaping shall take place at least weekly. More intensive maintenance of landscaping (such as pruning, aerating, and fertilizing activities, etc.) shall take place at least as often as completed for comparable, similarly-situated municipal parks located in the County of Orange, but no less frequently than once per quarter.
c. Clean-Up Maintenance. Clean-up maintenance shall include, but not be limited to: maintenance of all sidewalks, paths and other paved areas in clean and weed-free condition; maintenance of all such areas clear of dirt, mud, trash, debris or other
4 matter which is unsafe or unsightly; removal of all trash, litter and other debris from improvements and landscaping prior to mowing; clearance and cleaning of all areas maintained prior to the end of the day on which the maintenance operations are performed to ensure that all cuttings, weeds, leaves and other debris are properly disposed of by maintenance workers; and removal of uncontained litter from the ground and trash from trash and waste containers provided for that purpose. Uncontained litter and trash within containers shall be picked up and removed on at least a daily basis. Unless otherwise specified, other clean-up maintenance mentioned above shall take place at least weekly. d. Cleaning of Bathroom Facilities. Sweeping, scrubbing, and disinfecting of bathroom facilities, including toilets, sinks, walls, and floors and removal of bathroom trash shall take place at least daily.
e. Graffiti Removal. Cleaning and removing of graffiti, including re- painting if necessary, shall take place at least weekly. f. Camp Site Removal and Cleanup. Declarant shall implement procedures to prevent the establishment of camp sites in the Parks. To the extent that any camp sites are established, Declarant shall remove such camp sites and any associated trash and waste in coordination with the City and in accordance with the City of Anaheim’s Policy for Removal of Encampments.
g. Painting and Striping. Painting and restriping of painted Improvements shall take place as needed, but no less frequently than once per year. h. Monthly Inspections and As-Needed Maintenance. Declarant shall inspect the Parks and Improvements at least monthly to identify any as-needed maintenance or repairs. This maintenance may include ensuring that all lighting is in working order, identifying any damage to architectural elements or playground and recreational equipment, ensuring that all water lines, recycled water facilities, and subsurface and above-ground irrigation systems are in working order, identifying any cracking, worn or peeling paint. Any necessary repairs identified as part of the Monthly Inspections shall be made as quickly as reasonably feasible and in accordance with Section 3 below.
i. Emergency Maintenance. Emergency maintenance shall include any issue related to the Parks and/or Improvements that pose an immediate threat to the health, safety, and welfare of the public. Such emergency maintenance must be completed as soon as practicable, but no later than forty-eight (48) hours after the occurrence leading to the need for such maintenance, except where in the determination of the City, it is not feasible to conduct such emergency maintenance in the aforementioned timeframe. Under such circumstances, the City may specify a reasonable period of time for the Declarant to complete the emergency maintenance.
j.
Waiver and Recordkeeping. U pon the request of Declarant, the City's Director of Community Services, in her or his sole and absolute discretion, may grant a waiver or deferral of the Park Maintenance Standards (or any portion thereof). Declarant shall keep records of maintenance, repairs, and replacements as are necessary to prove
5 performance of the Park Maintenance Standards.
3. Repair and Replacement Obligations for the Park. In addition to compliance with the Park Maintenance Standards, Declarant shall perform all repairs and replacements to the Parks, at its sole cost and expense, as needed to keep all Improvements in a clean, good, safe, working, and workmanlike condition in accordance with its obligations in the Development Agreement and this Declaration of Covenants. Required repairs and replacements pursuant to this Section 3 include, but are not limited to: (i) replacement of playground at the end of its useful life, but no less frequently than every twenty (20) years; (ii) replacement of restroom fixtures as needed, but no less than every five (5) years; (iii) replacement of tables and seating as needed, but no less than every fifteen (15) years.
4. City's Consent and Acknowledgement; Notice of Deficiency. City agrees to notify Declarant in writing if the condition of the Parks and Improvements does not meet the Park Maintenance Standards and/or the Repair and Replacement Obligations, and to specify the deficiencies and the actions required to be taken by Declarant to cure the deficiencies. Upon notification of any maintenance/repair deficiency, Declarant shall have fifteen (15) calendar days within which to correct, remedy or cure the deficiency, provided that if such deficiency is of a nature that more than fifteen (15) days is reasonably required to correct, remedy or cure the same, then such fifteen (15)-day period shall be extended for such additional reasonable periods of time upon prior written notice to City. Notwithstanding the foregoing, if the written notification states the problem is urgent relating to the public health, safety, and welfare, then Declarant shall have forty- eight (48) hours from receipt of such written notification to correct, remedy or cure such problem. In the event Declarant does not maintain the Parks in the manner set forth herein and in accordance with the Park Maintenance Standards and the Repair and Replacement Obligations, City shall have, in addition to any other rights and remedies hereunder, the right to maintain the Parks, or to contract for the correction of such deficiencies, after written notice to Declarant, and Declarant shall be responsible for the payment of all such reasonable documented out-of-pocket costs actually incurred by City to perform the obligations of Declarant under this Declaration.
5. Satisfaction of Conditions. This Declaration is intended to satisfy those conditions described in in Sections 1. 4651, 1.6 07, 1. 7280, and 10. 122.6 of the Development Agreement, as well as Condition No. ____ in Exhibit “L” of the Development Agreement.
6. Severability. If any clause, sentence or other portion of this Declaration shall become illegal, null or void for any reason, or shall be held by any court of competent jurisdiction to be so, the remaining portion shall remain full force and effect.
7. Covenants Running With the Land. The covenants and restrictions set forth in this Declaration constitute a general scheme for the development, protection and
6 maintenance of the Parks and Improvements. Said covenants and restrictions are for the benefit of the Parks. Such covenants shall be a burden upon, not only the Declarant but also its successors and assigns for the Property as defined in the Development Agreement with the exception of the Honda Center, the ARTIC, and Meadow Park. Declarant shall provide at least ten (10) days’ prior written notice to the City of any assignment by Declarant of the obligations contained in this Declaration of Covenants and shall provide a copy of the recorded instrument in the Official Records of such assignment by Declarant. Each covenant and restriction contained in this Declaration is a covenant running with the land or an equitable servitude upon the land, as the case may be, binding upon and inuring to the benefit of each heir, assignee and successor-in-interest of Declarant and City as the owners of all or any portion of the Park, and the term “Declarant,” as used herein, shall be deemed to include such heirs, assigns and successors-in-interest. Each deed, lease or conveyance of all or any portion of the Park (but expressly excluding residential apartment, live/work and/or retail space leases), or any interest therein, shall be subject to all the provisions of this Declaration.
8. Exhibits. All exhibits to this Declaration are incorporated by this reference.
9. Construction. This Declaration shall be construed in accordance with the laws of the State of California. The headings used in this Declaration are for convenience only and are not to be used to interpret the meaning of any of the provisions of this Declaration. If any term, provision or condition contained in this Declaration (or the application of any such term, provision or condition) shall to any extent be invalid or unenforceable, the remainder of this Declaration shall be valid and enforceable to the fullest extent permitted by law. In this Declaration, whenever the context requires, the singular number includes the plural and vice versa, and the masculine and neuter gender shall be mutually inclusive.
9. City's Enforcement Rights. The City is deemed to be an intended beneficiary of this Declaration, and has the right, but not the obligation, to enforce the provisions of this Declaration by any legal or equitable means (including injunctive relief) against such person or persons in actual possession of the Parks or anyone who directly or through any agent violate(s) the terms hereof. In the event any legal action is instituted by the City to enforce the terms of this Declaration, the prevailing party shall be entitled to reasonable attorneys’ fees and all fees, costs, and expenses incurred on any appeal or in collection or enforcement of any judgment. The rights of the City under this Declaration shall not be transferable in any manner to any person other than to a successor municipal corporation whose geographic boundaries include the Parks.
10. Insurance. Declarant agrees to secure and maintain, or cause to be secured and maintained, for the duration of the Maintenance and Repair Obligations for the Parks and Improvements set forth in this Declaration, commercial general liability insurance (written on an occurrence form) in an amount not less than $2,000,000 per
7 occurrence, $4,000,000 general aggregate and automobile liability insurance in an amount not less than $1,000,000 per occurrence. Declarant agrees to (i) to have the City of Anaheim, its officials, officers, and employees, added, by endorsement, as a named insured on the general liability policy, and (ii) require, by endorsement, that the insurer endeavor to provide the City of Anaheim with thirty (30) days’ prior written notice prior to cancellation of the insurance required herein. Prior to the City's acceptance of the Improvements under this Declaration, Declarant shall provide certificate(s) of insurance evidencing the insurance coverage required herein.
11. Counterparts. This Declaration may be executed and acknowledged in counterparts, each of which shall be an original and all of which when taken together shall constitute one and the same instrument.
[Remainder of page intentionally left bank; signatures on the following pages]
IN WITNESS WHEREOF, this Declaration has been executed by Declarant of the date first above written.
“ DECLARANT”
Anaheim Real Estate Partners, LLC
By:
Name: William Foltz
Title: Chief Executive Officer
9 CONSENT AND ACKNOWLEDGEMENT
The City of Anaheim is organized and existing under the laws of the State of California as a municipal corporation and charter city ("City"). The City expressly acknowledges and consents to the provisions, covenants, conditions and restrictions created by the foregoing DECLARATION OF COVENANTS ("Declaration") and this consent is made on the understanding that the City does not assume any of the obligations of Declarant or any Owner of the Property (as those terms are defined in the Development Agreement), or any portion thereof, or any successors or assigns under the Declaration.
The undersigned individual hereby certifies that he or she is duly authorized to sign, acknowledge and deliver this Consent and Acknowledgement.
“CITY”
CITY OF ANAHEIM, a municipal
corporation and charter city
By:
Rudy Emami
Director of Public Works
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
By:
City Attorney
10 ACKNOWLEDGEMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
STATE OF CALIFORNIA )
) ss.
COUNTY OF____________ )
On , 202___, before me,
__________________________, a Notary Public, personally appeared , who 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.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature _______________________________
(SEAL)
11 ACKNOWLEDGEMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
STATE OF CALIFORNIA )
) ss.
COUNTY OF____________ )
On , 202___, before me,
__________________________, a Notary Public, personally appeared , who 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.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature _______________________________
(SEAL)
EXHIBIT "A"
LEGAL DESCRIPTION OF THE PARKS
EXHIBIT "B"
SITE PLANS OF THE PARKS
EXHIBIT "C"
LEGAL DESCRIPTION OF THE BIKE TRAIL LANDSCAPE AREA
[Attached on Following Page]
5179174.1
EXHIBIT “L”
-1-
EXHIBIT “L”
CONDITIONS OF APPROVAL
NO. CONDITIONS OF APPROVAL RESPONSIBLE
DEPARTMENT
PRIOR TO APPROVAL OF FINAL SITE PLANS
1 Prior to approval of each Final Site Plan, the property owner/developer shall submit the anticipated construction schedule for each of the remaining project components by development phase; and that an updated schedule shall be submitted to the Planning Department every six (6) months until the project is completed, or as deemed necessary by the Planning Department.
Planning and
Building
Department,
Planning Services
Division
2 Prior to approval of each Final Site Plan, plans shall show how all on-site service and loading area operations shall be screened from the public rights -of-way to the satisfaction of the Planning Department.
Planning and
Building
Department,
Planning Services
Division
3 Where adjacent uses are deemed to be shadow sensitive (e.g., residential, recreational, and pedestrian areas), the property owner/developer for future development projects shall
demonstrate that the Proposed Project would not preclude shadow sensitive receptors’ exposure to natural sunlight for at least 50 percent of duration for the season, for at least 50 percent of the shade -sensitive area, to the satisfaction of the Planning Director.
Planning and
Building
Department,
Planning Services
Division
4 Prior to approval of the first building permit for any phase or final site plan, the following Alternate Means and Methods
requirements shall be demonstrated on the plans for Parking Deck B & C / FSP2020-00004:
1. Additional standpipes provided throughout at a
measurement of 150 feet to each standpipe. Some standpipes were relocated to address the land between the freeway and the parking structure.
2. Portion of wall facing the concert hall shall be a 1 hour rated fire barrier due to 10 foot separation.
3. Fire sprinkler density increase – ordinary hazard II Fire and Rescue
Department
5 Prior to approval of the first building permit for any phase or final site plan, the following Alternate Means and Methods
requirements shall be demonstrated on the plans for Parking Deck D / FSP2020-00005:
1. Fire access road will be extended to a portion of the parking structure to provide additional coverage.
2. Additional (exterior) standpipes will be located between the Honda Center and Parking Structure D.
3. Additional standpipes will be provided throughout at a Fire and Rescue
Department
measurement of 150 feet to each standpipe. Some standpipes will be relocated in order to provide coverage to the vehicle ramp.
4. Fire sprinkler density increase – ordinary hazard II
6 Prior to approval of the first building permit for any phase or final site plan, the following Alternate Means and Methods
requirements shall be demonstrated on the plans for Market Hall/ Restaurant Row/ Retail/ Club Buildings/ Concert Hall / FSP2020-00005:
1. Restaurant row - access to plaza from parking levels – provide fire suppression in stair/escalator/ elevator enclosure.
2. Restaurant row – additional standpipes or Wharf Hydrants at various levels in the plaza and on the backside between Parking Garage B/C and Market Hall/ Restaurant Row.
3. Market Hall – Back wall will be 2 hour rated with limited openings due to it being 15 feet from Parking Structure B/C
4. Market Hall/all structures – Upgraded fire sprinkler system at ordinary hazard 2
5. Market Hall- No Graphic, Signage, and Mural, shall be mounted on the east wall that can obstruct and/or be considered combustible.
6. Concert Hall – 1 hour fire rated wall facing Parking structure B/C
7. Concert Hall – additional standpipes (Wharf Hydrants) between Parking structure B/C and Concert Hall
8. Concert Hall-Roof access will be provided from the Paseo fire aerial access road.
9. Concert Hall-Enhanced Fire Riser/Fire Command Center Room.
10. Concert Hall -Fire sprinkler density increase – by one hazard category
11. Concert Hall-Smoke control system shall be provided for the structure
12. Concert Hall- No Graphic, Signage, and Mural, shall be mounted on the east wall that can obstruct and/or be considered combustible
Fire and Rescue
Department
7 Prior to approval of the first building permit for any phase or final site plan, the following Alternate Means and Methods
requirements shall be demonstrated on the plans for
Neighborhood Park/ACC:
Provide Fire Access and fire protection systems in compliance with the Conceptual Fire Access Plan, and as required by the Final Site Plans for the proposed building and adjacent Neighborhood Park.
Fire and Rescue
Department
8 Prior to approval of the first building permit for any phase or final site plan, the following Alternate Means and Methods
requirements shall be demonstrated on the plans for Residential Buildings:
Provide Fire Access and fire protection system in compliance with the Conceptual Fire Access Plan, and as required by the Final Site Plans for the proposed building and adjacent Neighborhood Park.
Fire and Rescue
Department
9 Prior to approval of the first building permit for any phase or final site plan, the following Alternate Means and Methods
requirements shall be demonstrated on the plans for Parking Deck A:
1. Additional standpipes will be provided throughout at a measurement of 150 feet to each standpipe. Some standpipes will be relocated in order to provide coverage to the backside of the structure between the freeway and the parking structure.
2. Fire sprinkler density increase – ordinary hazard II
Fire and Rescue
Department
10 Prior to approval of the first building permit for any phase or final site plan, the following Alternate Means and Methods
requirements shall be demonstrated on the plans for Meadow Hotel/South Plaza:
1. Meadow Hotel – revise fire access road to include hotel entry. This will provide additional hose pull access to non- combustible stair access to the “Porch level” which is the 3rd floor
2. Meadow Hotel – Provide additional standpipes at Porch level.
3. Meadow Hotel – Increase the fire protection/fire rating for the 2 open air exterior stairs leading to the Porch Level.
4. Meadow Hotel- Fire sprinkler density increase – ordinary hazard II: first 3 levels only – podium building with horizontal separation.
Fire and Rescue
Department
11 Prior to approval of the first building permit for any phase or final site plan, the following Alternate Means and Methods
requirements shall be demonstrated on the plans for Parking Deck B & C / FSP2020-00004:
1. Additional standpipes provided throughout at a
measurement of 150 feet to each standpipe. Some standpipes were relocated to address the land between the freeway and the parking structure.
2. Portion of wall facing the concert hall shall be a 1 hour rated fire barrier due to 10 foot separation.
Fire sprinkler density increase – ordinary hazard II
Fire and Rescue
Department
12 Prior to approval of a Final Site Plan that includes office uses on the east side of Douglass Road and parking for that office use on the west side of Douglass Road, the Property Owner/Developer shall meet with City Staff to discuss pedestrian crossings across Douglass Road. The Property Owner/Developer shall submit a letter of operations describing the quantity of parking provided across the street, the location of that parking, and measures to guide/encourage pedestrians to cross at the signalized intersection of Douglass Road/Stanley Cup Way and discourage mid-block crossings. Additionally, the Property Owner/Developer shall submit an operations analysis for the intersection of Douglass Road/Stanley Cup Way to evaluate the c urrent and projected vehicular and pedestrian level of service, in accordance with the Highway Capacity Manual Operational Methodology. The
analysis shall evaluate a potential additional pedestrian crossing, either at grade or raised as determined by the City, on Douglass Road between Stanley Cup Way and Cerritos Avenue. The
analysis and any potential proposed improvements shall be subject to review and approval by the City Traffic Engineer.
Public Works,
Traffic
Engineering
PRIOR TO ISSUANCE OF GRADING PERMITS
13 Prior to commencement of grading or demolition, the Planning Director shall verify that all project grading and construction plans include specific documentation regarding the requirements of the Migratory Bird Treaty Act (MBTA) (16 United States Code Section 703–712) and California Department of Fish and Wildlife Game Code 3503. To be in compliance with applicable nesting bird protections, if construction activities occur during the nesting bird season (February through August) prior to the commencement of tree removal, the site shall be surveyed for active nests by a qualified biologist. The purpose of the nesting bird survey is to ensure compliance with applicable aspects of the MBTA, that preconstruction surveys have been completed and the results reviewed by staff, and that the appropriate buffers (if needed) are established in the field with visible fencing. Should nesting birds be found, an exclusionary buffer shall be established by the qualified biologist, based on consideration of the bird species, the stage of nesting, and the nature of the adjacent construction activity. This buffer shall be clearly marked in the field with visible fencing by construction personnel under the guidance of the qualified biologist, and construction or clearing shall not be conducted within this zone until the qualified biologist determines that the young have fledged or the nest is no longer active.
Planning and
Building
Department,
Planning Services
Division
14 Prior to the issuance of any grading permit in which native soil, as identified by the geotechnical report prepared for the project, is disturbed, the property owner/developer or contractor as designee shall provide evidence in the form of an executed Agreement to the City of Anaheim Planning and Building
department that they have retained a qualified Native American tribal monitor to provide third -party monitoring during excavation and grading activities in native sediment and to recover and catalogue trib al resources as necessary. The tribal monitor shall be from or approved by the Gabrieleño Band of Mission Indians – Kizh Nation. The agreement shall include (i) professional qualifications of Native American monitor; (ii) detailed scope of services to be provided including but not limited to pre -construction education, observation, evaluation, protection, salvage, notification, and/or curation requirements, as applicable, with final documentation/report to Public Works Inspector; (iii) contact information; (iv) communication protocols between Contractor and Monitor for scheduling to facilitate timely performance; (v) acknowledgement that if tribal monitor is unavailable or unresponsive based on terms stipulated in the agreement, property owner/developer or contractor as designee may contract with another qualified tribal monitor acceptable to the City. The selection of the qualified professional(s) shall be subject to City acceptance based on generally accepted
professional qualifications and certifications, as applicable. The cover sheet of the grading plans shall include a note to identify that that third -party tribal monitoring is required during excavation and grading activities in accordance with City - approved Agreement. Contact information for approved tribal monitor shall be provided by contractor to City inspector at pre- construction meeting.
Planning and
Building
Department,
Planning Services
Division
15 Prepare and submit final grading plan(s) showing the building footprints, pad elevations, finished floors, finished grades, drainage routes, retaining walls, erosion control, slope easements and other pertinent information in accordance with Anaheim Municipal Code and the California Building Code, latest edition.
Public Works,
Development
Services Division
16 Prepare and submit a final drainage study, including supporting hydraulic and hydrological data to the City of Anaheim for review and approval. The study shall confirm or recommend changes to the City's adopted Master Drainage Plan by
identifying off -site and on- site storm water runoff impacts resulting from build-out of permitted General Plan land uses. In addition, the study shall identify the project's contribution and shall provide locations and sizes of catchments and system connection points and all downstream drainage-mitigating measures including but not limited to offsite storm drains and Public Works,
Development
Services Division
interim detention facilities.
17 The developer shall execute a Save Harmless Agreement with the City of Anaheim for any storm drain connections to a City storm drain system. The agreement shall be recorded by the applicant on the property prior to the issuance of any permits.
Public Works,
Development
Services Division
18 All required plans and studies shall be prepared by a Registered Professional Engineer.
Public Works,
Development
Services Division
19 The OWNER shall obtain the required coverage under
California’s General Permit for Stormwater Discharges
associated with Construction Activity by providing a copy of the Notice of Intent (NOI) submitted to the State Water Resources Control Board and a copy of the subsequent notification of the issuance of a Waste Discharge Identification (WDID) number.
Public Works,
Development
Services Division
20 Submit the Final Water Quality Management Plan (WQMP) to the City for review and approval. The WQMP shall be consistent with the requirements of Section 7 and Exhibit 7.II of the Orange County Drainage Area Management Plan (DAMP) for New
Development/ Significant Redevelopment projects; identify potential sources of pollutants during the long- term on -going maintenance and use of the proposed project that could affect the quality of the stormwater runoff from the project site; define Source Control, Site Design, and Treatment Control (if
applicable) best management practices (BMPs) to control or eliminate the discharge of pollutants into the surface water runoff; and provide a monitoring program to address the long- term implementation of and compliance with the defined BMPs.
Public Works,
Development
Services Division
21 Submit a Geotechnical Report prepared by a Registered Geotechnical Engineer to the Public Works Development
Services Division for review and approval. The report shall address any proposed infiltration features of the WQMP. In addition to the condition provided below:
1. Section 3.9 Infiltration Systems: Based on the boring data provided, the lithology varies considerably within the upper 15 to 20 feet across the site. Impeding layers were encountered in some borings but not others and the depth to such impeding layers varies. As such, the lithology appears to consist of occasional lenticular layers of silts and clays within a mostly granular zone.
Historical depth to ground water also varies from 10 to 30 feet within the boundaries of the site. Given the general site conditions, infiltration appears to be feasible in portions of the site. However, in the absence of a specific location and BMP type for infiltration, acceptance of preliminary infiltration parameters are not feasible. A more detail site investigation and analyses will be required for project design at the time that documents for a Public Works,
Development
Services Division
grading permit are submitted to the city. Until then, the recommendations for the depth and infiltration rate of BMP’s provided in the report are not accepted.
22 The Developer/Owner shall be responsible to obtain all the necessary authorization and permits from the appropriate agencies including, but not limited to, California Department of Transportation (CALTRANS), Orange County Flood Control
District (OCFCD), and Union Pacific Railroad (UPRR) that are impacted by the grading permit limits and pay all the costs associated with the application requests. Applicant shall submit to the City of Anaheim a copy of the approved permit and/or other form of authorization from the said agencies.
Public Works,
Development
Services Division
23 The Developer/Owner shall enter into an agreement with the City of Anaheim to preserve the existing public sewer system in Douglass Road as public System until such a time that an approved rerouting of the public sewer system into the new proposed sewer system in River Road to divert the flow has been constructed and accepted by the City.
Public Works,
Development
Services Division
24 The Developer/Owner shall enter into an acceptance agreement with the City for accepting certain amount of storm water flow from Cerritos Avenue (Public Street north of Douglass Road) onto private street and private facilities due to street design limitation to meet acceptable street grades and cross flows at the intersection of Cerritos Avenue and Douglass Road.
Public Works,
Development
Services Division
25 Fire Master Plan shall be submitted to Anaheim Fire Department based on the conceptual Fire Master Plan.
Fire and Rescue
Department
26 Prior to issuance of each grading permit, a hydraulic analysis shall be conducted to the satisfaction of Water Engineering which may determine if specific additional improvements are required.
The 2023 OCVIBE Project Hydraulic Build -
Out analysis
identified additional improvements necessary to ensure adequate supply into the project area. One or more of these improvements are required to be installed and accepted by APU prior to the demands which necessitate their construction. The improvements are briefly described below:
1. Extension of 16” water line in Douglass Road south and west of 57 freeway to connect to the existing waterline in the Angles Stadium.
2. Replacement of existing 12” waterline with 16” in Katella Avenue, from the western project boundary to
approximately 350 feet east of Stadium Crossing.
3. Replacement of existing 10” with 12” waterline in Cerritos Ave. between Douglass Ave and Sinclair Street.
4. Replacement of existing 8” waterline between E. Lark Ellen Lane and 57 freeway with 12” water line. An alternative Public Utilities,
Water
Engineering
solution may be proposed so long as it meets the hydraulic requirements of the project as coordinated with Water
Engineering.
5. The water main in River Road between Cerritos and Auto Center Drive shall be a 16-inch main.
6. Alternative Improvements in Ball Road and River Road from Auto Center to Ball Road may also be considered in lieu of items 3 and 4 above.
PRIOR TO ISSUANCE OF BUILDING PERMITS
27 Consistent with provisions of the Development Agreement, prior to issuance of the first building permit the Master Plan of Arterial Highways (MPAH) must be amended by the Orange County
Transportation Authority (OCTA) allowing for abandonment of the portion of Douglass Road between Katella Avenue and Cerritos Road shown on Exhibit W -1 in the Development
Agreement.
Planning and
Building
Department,
Planning Services
Division
Public Works,
Traffic Engineering
28 Prior to issuance of building permits, the property
owner/developer shall document on building plans, to the satisfaction of the Planning Department, Planning Services Division, that all air conditioning facilities and other roof and ground mounted equipment shall be shielded from public view as required by The Platinum Triangle Mixed Use Overlay Zone and the sound buffered to comply with the City of Anaheim noise ordinances from any adjacent residential or transient -occupied properties. That as part of final building and zoning inspections, compliance shall be verified. Additionally, all exterior appurtenances such as conduits shall be minimized and integrated into the structure; and that any rain gutters, downspouts, and vents shall be finished to match the building materials and/or colors.
Planning and
Building
Department,
Planning Services
Division
29 Prior to issuance of building permits, the property
owner/developer shall document on said plans, to the satisfaction of the Planning Department, Planning Services Division, that all plumbing or other similar pipes and fixtures located on building exteriors shall be fully screened from view of adjacent public rights-of-way and from adjacent properties by architectural devices and/or appropriate building materials. That as part of final building and zoning inspections, compliance shall be
verified.
Planning and
Building
Department,
Planning Services
Division
30 The conceptual location and configuration of all lighting fixtures including ground- mounted lighting fixtures shall be shown on each Final Site Plan. That prior to issuance of building permits, plans submitted for building permits shall document, to the satisfaction of the Planning Department, Planning Services and Building Divisions, the location and configuration of all lighting fixtures including ground- mounted lighting fixtures utilized to accent buildings and landscape elements, or to illuminate pedestrian areas. All lighting shall be shielded to direct lighting toward the area to be illuminated. That as part of final building and zoning inspections, compliance shall be verified.
Planning and
Building
Department,
Planning Services
Division
31 The conceptual location and configuration of all lighting fixtures including ground- mounted lighting fixtures shall be shown on each Final Site Plan. That prior to issuance of building permits, plans submitted for building permits shall document, to the satisfaction of the Planning Department, Planning Services and Building Divisions, the location and configuration of all lighting fixtures including ground- mounted lighting fixtures utilized to accent buildings and landscape elements, or to illuminate pedestrian areas. All lighting shall be shielded to direct lighting toward the area to be illuminated. That as part of final building and zoning inspections, compliance shall be verified
Planning and
Building
Department,
Planning Services
Division
32 Prior to approval of each Final Site Plan and prior to issuance of each building permit, the Anaheim Police Department shall review and approve plans for safety, accessibility, crime prevention, and security provisions during both the construction and operative phases.
Police Department
33 Prior to issuance of building permits for parking structures, plans submitted for building permits shall be approved by the Police Department to ensure that safety and security measures are incorporated, including the use of bidirectional antennae to insure performance of public safety radio communications equipment (800 Mhz) in eighty- five percent (85%) of any structure or developed area, or in compliance with public safety radio system coverage requirements in effect at the time of the issuance of building permits. Prior to final building and zoning inspections, installation of required antennae shall be verified.
Police Department
34 Proposed private improvements that will encroach onto the public right of way will require the applicant to enter into an Encroachment License Agreement with the City as approved by the City Engineer and Director of Public Works.
Public Works,
Development
Services Division
35 The developer/applicant shall be responsible to pay all fees associated with obtaining the necessary easements, permits and the construction of the required improvements.
Public Works,
Development
Services Division
36 The legal property owner shall irrevocably offer to dedicate to the City of Anaheim as an easement for road, public utility and other public purposes and meeting all requirements of the Platinum Triangle Implementation Plan, City Standards, approved Traffic Study, and approved Tentative Tract Map 19153 as described below:
1. A 15-foot wide dedication is required along the north side of Katella Avenue from west of Douglass Road to
Parking Deck B Private Drive to achieve the half width
ultimate right-of-way of 90 feet
2. A 1-foot wide dedication is required along the north side of Katella Avenue from east of Douglass Road to River
Road to achieve the half width ultimate right -of-way of 90 feet
3. A 90-foot dedication is required along the easterly side of the project property adjacent to the Santa Ana River to construct new public street River Rd from Katella Avenue to Cerritos Avenue
4. A variable width of dedication is required along River Road from Cerritos Avenue to Ball Road to achieve the full width ultimate right-of-way of 90 feet. In addition to the right-of-way along the Employee Parking Lot for a right- turn lane, as shown on the approved Master Site Plan and Final Site Plan.
5. Corner cutoff deductions are required at the following intersections: 57 freeway off ramp/Parking Deck B Private Drive and Katella Avenue, River Road and Katella
Avenue, River Road and Stanley Cup Way, River Road
and Cerritos Avenue, and Douglass Road and Stanley Cup
Way
6. Corner cutoff is required at the southeast corner of River Road and Ball Road
7. Corner cutoff deductions are required at the main
driveway entrances on Stanley Cup Way at Private Drive
‘A’ and River Road at Private Drive ‘B’
Public Works,
Development
Services Division
37 The Developer/Owner shall irrevocably offer to dedicate to the City of Anaheim a 5 -foot wide sidewalk easement behind the ultimate right-of-way line along the south side of Katella Avenue between east of Douglass Road and west of the Pedestrian Bridge for public pedestrian access, as shown on TTM19153 for the purpose of the Pedestrian Bridge landing.
Public Works,
Development
Services Division
38 The Developer/Owner shall irrevocably offer to dedicate to the City of Anaheim public access easements for emergency
services, solid waste/trash collection, vehicular and pedestrian for public use along the following interior private streets:
Douglass Road/Lots C&D, Stanley Cup Way/Lots C&E, Cerritos Avenue/Lot F, and Private Drive located on Lot 1 between Katella Avenue and Stanley Cup Way, from property line to property line, as shown on the TTM19153.
Public Works,
Development
Services Division
39 All Landscape plans shall comply with the City of Anaheim adopted Landscape Water Efficiency Guidelines. This ordinance complies with the State of California Model Water Efficient Landscape Ordinance (AV 1881).
Public Works,
Development
Services Division
40 Submit an interim soils report indicating pad compaction and site stability prepared by the project’s Geotechnical Engineer of Record. The pad compaction report shall include a site plan showing the compaction testing locations.
Public Works,
Development
Services Division
41 The developer shall submit street improvement, landscape, and irrigation plans for all work performed in the public right-of-way to the Public Works Department for review. The developer shall submit a cost estimate and post a security (Performance and Labor & Materials Bonds) in an amount approved by the City Engineer and in a form approved by the City Attorney for the construction of all required public improvements within the City street right of way. Street improvements shall be constructed in accordance with the City of Anaheim street improvements standards and requirements, the approved Tentative Tract Map 19153, and as determined by the approved Traffic Study and approved by the City Engineer. Such improvements may include, but not be limited to the following:
1. The developer shall construct new River Road from
Katella Avenue to Ball Road including curb & gutter, cycle track, sidewalk, parkway landscaping, and utilities.
2. Street improvements along Katella Avenue shall include raised medians, curb & gutter, sidewalk, parkway landscaping, and utilities.
3. The developer shall construct new Stanley Cup Way from Douglass Road to River Road including the construction of curb & gutter, sidewalk, parkway landscaping, and utilities.
4. The developer shall construct new Cerritos Avenue from Douglass Road to River Road including the construction of curb & gutter, cycle track, sidewalk, parkway landscaping, and utilities.
5. Street improvements along Douglass Road from Cerritos Avenue to Stanley Cup Way shall include the intersection and pork-chop island, curb & gutter, cycle track, sidewalk, parkway landscaping, and utilities.
Public Works,
Development
Services Division
42 A Right-of-Way Construction Permit shall be obtained from the Development Services Division for all work performed in the public right-of-way.
Public Works,
Development
Services Division
43 Provide a certificate, from the project’s Registered Civil Engineer, certifying that the rough grading for the building pad(s) has been completed in accordance with the City approved grading plan.
Public Works,
Development
Services Division
44 That curbs adjacent to the drive aisles shall be painted red to prohibit parallel parking in the drive aisles. Red curb locations shall be clearly labeled on building plans
Public Works,
Traffic Engineering
45 Prior to the issuance of a building permit, the applicant shall record a maintenance agreement against the property, prepared by an authorized professional for review and approval by the City Engineer, Planning Director, and City Attorney, which will Public Works,
Traffic Engineering
generally provide for the following:
• A requirement that residents shall use designated parking area, including garages, only for the parking of vehicles. • A provision that parking garages are subject to inspection by the Association or City of Anaheim staff.
• A provision requiring that proposed amendments to the maintenance agreement shall be submitted for review to the City Engineer, Planning and Building Director or designee, and shall be approved by the City Attorney prior to the amendment being valid.
A provision that the City is a third- party beneficiary to the maintenance agreement and has the right, but not the obligation, to enforce any of the provisions of the maintenance agreement relative to common area and utility maintenance, Water Quality Management Plan, and internal parking.
46 That prior to issuance of building permits, plans shall specifically indicate that all vehicular ramps and grades conform to all applicable Engineering Standards.
Public Works,
Traffic Engineering
47 The Developer/Owner shall submit improvement plans for all improvements identified/required in the approved Traffic Study for the OCVIBE Master Site Plan dated August 2022 in
accordance with City standards and specifications. Public and private street improvements shall meet all City standards and requirements including Platinum Triangle Implementation plan and the Traffic Study, unless otherwise approved through a deviation request.
Public Works,
Traffic Engineering
48 Prior to the issuance of building permits, the property owner/developer shall pay the fair share to improve the intersection of Phoenix Club Drive/Ball Road intersection as identified/required in the approved Traffic Study for the OCVIBE Master Site Plan dated August 2022. Owner/developer shall determine/estimate right-of-way cost and construction cost of improvements needed and shall submit to the City for review and approval. Owner/developer then shall pay fair share cost based on the percentage identified in the approved Traffic Study and the estimate approved by the City.
Public Works,
Traffic Engineering
49 Prior to the first final building and zoning inspection, the Property Owner/Developer shall enter into an agreement with the City of Anaheim for the ongoing operations and maintenance (O& M) of all shared traffic signals, subject to
approval by the City Attorney's office. Traffic Signal
Maintenance costs include preventative or extraordinary maintenance, unrecoverable damages and electrical costs. The City of Anaheim will bill for these costs on a regular basis. Said Public Works,
Traffic Engineering
maintenance cost shall be based on private vs. public access legs of the traffic signal and the total signal operations and maintenance (O& M) cost.
50 Prior to issuance of a building permit for any parking structure, plans shall demonstrate that at-grade ducts and
overhead pipes shall not encroach in the parking space areas or required vehicle clearance areas.
Public Works,
Traffic Engineering
51 At building permit submittal for the Market Hall Building:
Occupant egress requirements for the Market Hall shall comply with CBC/CFC requirements. Alternative designs shall be submitted for Request for Modification/Alternative Means & Method review through the building department.
Fire and Rescue
Department
52 Prior to approval of the first building permit for any phase or final site plan, the following Alternate Means and Methods
requirements shall be demonstrated on the plans for Parking Deck B & C / FSP2020-00004:
4. Additional standpipes provided throughout at a
measurement of 150 feet to each standpipe. Some standpipes were relocated to address the land between the freeway and the parking structure.
5. Portion of wall facing the concert hall shall be a 1 hour rated fire barrier due to 10 foot separation.
Fire sprinkler density increase – ordinary hazard II
Fire and Rescue
Department
53 Prior to approval of the first building permit for any phase or final site plan, the following Alternate Means and Methods
requirements shall be demonstrated on the plans for Parking Deck D / FSP2020-00005:
2. Fire access road will be extended to a portion of the parking structure to provide additional coverage.
5. Additional (exterior) standpipes will be located between the Honda Center and Parking Structure D.
6. Additional standpipes will be provided throughout at a measurement of 150 feet to each standpipe. Some standpipes will be relocated in order to provide coverage to the vehicle ramp.
7. Fire sprinkler density increase – ordinary hazard II
Fire and Rescue
Department
54 Prior to approval of the first building permit for any phase or final site plan, the following Alternate Means and Methods
requirements shall be demonstrated on the plans for Market Hall/ Restaurant Row/ Retail/ Club Buildings/ Concert Hall / FSP2020-00005:
1. Restaurant row - access to plaza from parking levels – provide fire suppression in stair/escalator/ elevator enclosure.
Fire and Rescue
Department
2. Restaurant row – additional standpipes or Wharf Hydrants at various levels in the plaza and on the backside between Parking Garage B/C and Market Hall/ Restaurant Row.
3. Market Hall – Back wall will be 2 hour rated with limited openings due to it being 15 feet from Parking Structure B/C
4. Market Hall/all structures – Upgraded fire sprinkler system at ordinary hazard 2
5. Market Hall- No Graphic, Signage, and Mural, shall be mounted on the east wall that can obstruct and/or be considered combustible.
6. Concert Hall – 1 hour fire rated wall facing Parking structure B/C
7. Concert Hall – additional standpipes (Wharf Hydrants) between Parking structure B/C and Concert Hall
8. Concert Hall-Roof access will be provided from the Paseo fire aerial access road.
9. Concert Hall-Enhanced Fire Riser/Fire Command Center Room.
10. Concert Hall -Fire sprinkler density increase – by one hazard category
11. Concert Hall-Smoke control system shall be provided for the structure
12. Concert Hall- No Graphic, Signage, and Mural, shall be mounted on the east wall that can obstruct and/or be considered combustible
55 Prior to approval of the first building permit for any phase or final site plan, the following Alternate Means and Methods
requirements shall be demonstrated on the plans for
Neighborhood Park/ACC:
Provide Fire Access and fire protection system in compliance with the Conceptual Fire Access Plan, and as required by the Final Site Plans for the proposed building and adjacent Neighborhood Park.
Fire and Rescue
Department
56 Prior to approval of the first building permit for any phase or final site plan, the following Alternate Means and Methods
requirements shall be demonstrated on the plans for Residential Buildings:
Provide Fire Access and fire protection system in compliance with the Conceptual Fire Access Plan, and as required by the Final Site Plans for the proposed building and adjacent Neighborhood Park.
Fire and Rescue
Department
57 Prior to approval of the first building permit for any phase or final site plan, the following Alternate Means and Methods
requirements shall be demonstrated on the plans for Parking Deck A:
Fire and Rescue
Department
1. Additional standpipes will be provided throughout at a measurement of 150 feet to each standpipe. Some standpipes will be relocated in order to provide coverage to the backside of the structure between the freeway and the parking structure.
2. Fire sprinkler density increase – ordinary hazard II
58 Prior to approval of the first building permit for any phase or final site plan, the following Alternate Means and Methods
requirements shall be demonstrated on the plans for Meadow Hotel/South Plaza:
4. Meadow Hotel – revise fire access road to include hotel entry. This will provide additional hose pull access to non- combustible stair access to the “Porch level” which is the 3rd floor
5. Meadow Hotel – Provide additional standpipes at Porch level.
6. Meadow Hotel – Increase the fire protection/fire rating for the 2 open air exterior stairs leading to the Porch Level.
5. Meadow Hotel- Fire sprinkler density increase – ordinary hazard II: first 3 levels only – podium building with horizontal separation.
Fire and Rescue
Department
59 Prior to issuance of building permits for residential buildings that meet the definition of a high- rise building, building and fire protection plans shall demonstrate compliance with the current California Fire Code for all provisions related to a “High- Rise Building.
Fire and Rescue
Department
PRIOR TO FINAL BUILDING AND ZONING INSPECTION
60 Provide a certificate, from the project Registered Civil Engineer of Record, certifying that the grading has been completed in accordance with the City approved grading plan and is in full compliance with the Anaheim Municipal Code.
Public Works,
Development
Services Division
61 All public improvements as shown in the approved TTM19153 and approved Traffic Study shall be constructed by the developer, inspected, and accepted by Construction Services prior to final building and zoning inspection.
Public Works,
Development
Services Division
62 All remaining fees/deposits required by Public Works Department must be paid in full.
Public Works,
Development
Services Division
63 Set all Monuments in accordance with the final map and submit all centerline ties to Public Works Department. Any monuments damaged as a result of construction shall be reset to the satisfaction of the City Engineer.
Public Works,
Development
Services Division
64 Record Drawing/As-Built plans and Final As -Graded Soils Report shall be submitted for review and approval to the Public Works Department.
Public Works,
Development
Services Division
65 All public improvements identified/required in the approved Traffic Study for the OCVIBE Master Site Plan dated August 2022 shall be constructed by the developer, inspected and accepted by Construction Services prior to final building and zoning inspection.
Public Works,
Traffic Engineering
66 That prior to final building and zoning inspection, fire lanes shall be posted with “No Parking Any Time.” Said information shall be specifically shown on plans submitted for building permits.
Public Works,
Traffic Engineering
67 Prior to final building and zoning inspections, a licensed landscape architect shall certify to the Planning Department, Planning Services Division that all landscaping has been installed in accordance with landscaping plans approved by the City and on file with the Building Division of the Planning Department.
Any deviation from the plant palette shown on the approved landscape plans shall be submitted for review and approval by the Planning Department, Planning Services Division. All irrigation equipment within the setback area shall be fully screened so that the equipment is not visible from the public right -of-way. Prior to final building and zoning inspections for the setback area, additional planting may be required for screening purposes to the satisfaction of the Planning and Building Department, Planning Services Division.
Planning and
Building
Department,
Planning Services
Division
GENERAL
68 Prior to any conveyance or sale of any parcel located within the Property, or portion of the Property, to an unrelated party, the property owner shall record unsubordinated covenants,
conditions and restrictions (CC&Rs) applicable to the Property in a form and content satisfactory to the Planning and Building Director, City Engineer and the City Attorney incorporating the requirements and obligations set forth in this Development Agreement, including Exhibit “K-1”.
Planning and
Building
Department,
Planning Services
Division
69 All CBC and CFC requirements shall be followed for permit issuance. Any fire permits which includes fire sprinklers, fire alarm, etc. shall be submitted directly to Anaheim Fire Prevention Department.
Fire and Rescue
Department
70 DAS/BDA system(s) shall be designed as a campus style system.
Campus system integrity will need to be assured throughout the course of development.
If the donor antenna or other elements
are impacted by future buildings , modifications will be required to the existing system.
Fire and Rescue
Department
71 Permanent, temporary, and phased emergency access roads shall be designed and maintained to support an imposed load of 78,000 lbs. and surfaced to provide all-weather driving capabilities.
Fire and Rescue
Department
72 All private underground fire lines shall be provided with a maintenance covenant stating who will be responsible for maintaining the line, private fire hydrants, PIV’s, all fire appurtenances.
Fire and Rescue
Department
73 All private underground fire lines shall be provided with a maintenance covenant stating who will be responsible for maintaining the line.
Fire and Rescue
Department
74 Fire lane signage and/or markings shall be provided for the fire access road serving the proposed residential buildings, the EVA through Meadow Park, as well as the EVA areas near the Honda Center/Paseo.
Fire and Rescue
Department
75 Underground Storage Tanks shall conform to Anaheim Fire & Rescue’s UST Installation and Modification Guidelines (Honda Center).
Fire and Rescue
Department
76 Lockable pedestrian and/or vehicular access gates shall be equipped with Knox devices as required and approved by
Anaheim Fire and Rescue Department.
Fire and Rescue
Department
77 FDC locations shall comply with AFD fire access for newly constructed residential, commercial, and industrial developments specification & requirements.
Fire and Rescue
Department
78 ARTIC (Anaheim Regional Transportation Intermodal Center’s) existing fire access road(s) shall remain in place or an alternative design shall be submitted for review and approval by the fire code official.
Fire and Rescue
Department
79 Looping of public water mains is required for the project. At a minimum, a water main loop shall be established along Katella Avenue, River Road, Stanley Cup Way, and Cerritos Ave.
Public Utilities,
Water Engineering
80 Existing water main in Stanley Cup Way, east of Douglass Road, shall be replaced with a new water main.
Public Utilities,
Water Engineering
81 The installation of services/meters/backflow prevention devices will only be allowed for active development phases. Future services/meters/ backflow prevention devices shall be installed in conjunction with subsequent development phases. Stub outs and/or inactive services will not be allowed.
Public Utilities,
Water Engineering
82 The irrigation system for the proposed Meadow Park shall be served by recycled water. The system shall connect to an existing 4-inch recycled water line (off OCSD’s existing Groundwater Replenishment System) currently serving ARTIC’s landscaped area. Developer/Owner shall install all required piping, meter, booster pump, and other appurtenances to serve the irrigation system. In addition, the irrigation system shall have a back-up potable water connection in case the recycled water supply is down for maintenance or repair.
Public Utilities,
Water Engineering
83 Applicant shall coordinate proposed water mains with Ball Basin development such that all proposed water mains are sized to serve both the build-out condition of the project and Ball Basin development.
Public Utilities,
Water Engineering
84 If a single water service connection from Public Water System via master water meter for domestic or master DCDA for fire service will supply more than one building, the maintenance covenant of a legal association of those properties shall contain provisions defining the perpetual responsibility for the payment of all Utility services provided in accordance with Rule No. 18 of the Water Utility Rates, Rules, and Regulations.
Public Utilities,
Water Engineering
85 The existing 16” water main on Douglas Road ends at SR-57 and currently is not looped. If the hydraulic analysis for the project shows the existing 16” water main is required to be connected to the public water system on Angels Stadium, the developer/owner shall coordinate with the Angels development the installation of the connection and the water improvements for the project will not be approved without the connection. If the Angels
development is delayed or canceled, the owner/developer of OC Vibe shall be responsible for installing the connection.
Public Utilities,
Water Engineering
86 Separate aerial easements shall be provided above water mains at pedestrian walkways on Douglass Road and Katella Ave.
Public Utilities,
Water Engineering
87 The proposed water main crossing the existing railroad track on River Road shall be installed in a casing pipe per standards and requirements of the railroad track operating entities and the City.
In addition, a license agreement will be required with the railroad track operating entities prior to final approval of the water main design plans. The owner/developer shall coordinate with the City and other entities involved and provide documents, drawings, and other required information to assist in execution of the agreement.
Public Utilities,
Water Engineering
88 Any separate UWM permits per COA 438 and additional-COA 1 must be plan checked and approved together. Staff will allow the seven (7) Phase 1 UWM packages to be plan checked together on the same cycle. Construction of select packages may be deferred (as approved by PUWE staff) so long as interim phases do not create dead ends. All other packages must be constructed concurrently to allow final connection. A single bond may be required for each interim phase of construction of multiple packages. All future phases, including Phase 1(b), will need to meet similar requirements for looping, hydraulic analyses, and review.
Public Utilities,
Water Engineering
89 Prior to approval of UWM permits, hydraulic analyses of each interim phase (referenced above) of the project is required. The results of the hydraulic analyses may dictate additional modeling or that certain packages that may need to be constructed concurrently.
Public Utilities,
Water Engineering
90 The mainline in the Paseo (currently Douglass Road between Katella Avenue and Stanley Cup Way), shall become a private line per a separate transfer of ownership agreement. The transfer of ownership must be executed prior to surface improvements over the Paseo or issuance of Phase 1 UWM Permits, whichever comes first.
Public Utilities,
Water Engineering
91 Prior to issuance of UWM permits for each phase, construction sequencing for all future phases must be described in detail. This shall include details of which facilities will be constructed in what phase, which facilities shall be in operation during construction, and all shutdown requirements.
Public Utilities,
Water Engineering
92 The segment of River Road north of Cerritos Avenue is listed as Phase 1(b), but it is not included in the above referenced UWM plans. This will require reviews in future planning reviews of subsequent project phases.
Public Utilities,
Water Engineering
93 Prior to issuance of a UWM a water easement shall be provided over proposed water service laterals, and proposed water meters.
The easement shall be submitted and approved by Water
Engineering.
The Owner shall irrevocably offer to dedicate to the City of Anaheim:
1. an easement for all large domestic above- ground water meters and fire hydrants, including a five (5) -foot wide easement around the fire hydrant and/or water meter pad.
2. a twenty (20) foot wide easement for all water service mains and service laterals all to the satisfaction of the Water Engineering Division.
3. The easement deeds shall include language that requires the Owner to be responsible for restoring any special surface improvements, other than asphalt paving, including but not limited to colored concrete, bricks, pavers, stamped
concrete, decorative hards cape, walls or landscaping that becomes damaged during any excavation, repair or
replacement of City owned water facilities.
The developer/owner is responsible for the following:
1. The easements shall be granted on the Water Engineering Division of the Public Utilities Department’s standard
water easement deed.
2. No special pavers shall be installed within easement limits.
3. Provisions for the repair, replacement and maintenance of all surface improvements other than asphalt paving shall be the responsibility of the Owner and included and recorded in the Master CC&Rs for the project.
4. No structures shall encroach into the water easement.
Public Utilities,
Water Engineering
5. Minimum clearances shall be provided per City of Anaheim water service standards and specifications and Anaheim
procedures and design guidelines.
Prior to UWM acceptance, the approved easement must be
recorded.
94 Prior to issuance of Phase 2 -5 UWM permits north of Cerritos Avenue, the proposed water main crossing the UPRR railroad track on River Road shall be installed in a casing pipe per UPRR standards and requirements. In addition, the city intends to enter into a license agreement with the UPRR prior to final approval of the water main design plans. The owner/developer shall
coordinate with the City and other entities involved and provide documents, drawings, and other required information to assist in execution of the agreement.
Public Utilities,
Water Engineering
95 The developer shall distribute the written disclaimer required by MM 5 -3 to all buyers/lessees indicating that they are
purchasing/leasing property that is within close proximity to Angel Stadium of Anaheim, the City National Grove of Anaheim, Honda Center and OC Vibe developments and that the nature of these venues includes potentially elevated noise levels (such as late night operations, entertainment events, crowd noise, vehicular traffic noise, fireworks, and amplified sound) during events, and traffic delays during event times. In addition, the developer shall distribute the written disclaimer required by MM 5-4 to buyers/lessees of development facing an at grade crossing of the Orange County Line and/or Union Pacific Railroad indicating that they are purchasing/leasing property that is within close proximity to a railroad and there is a potential for elevated noise levels during freight pass-by and the sounding of train horns.
Planning and
Building
Department,
Planning Services
Division
96 For any Day Care Facilities within the project, the loading and unloading areas, if provided, shall be reviewed and approved by the Traffic Engineering Division. Any outdoor play areas need to be identified and reviewed to prevent adverse noise impacts to residential uses.
Planning and
Building
Department,
Planning Services
Division
Public Works,
Traffic Engineering
Division
97 A detailed operation plan for the Farmers Market including location and hours of operation shall be submitted prior to commencement of the Farmers Market.
Planning and
Building
Department,
Planning Services
Division
98 The property shall be permanently maintained in an orderly fashion through the provision of regular landscaping
maintenance, removal of trash or debris, and removal of graffiti within twenty four (24) hours from time of occurrence.
Planning and
Building
Department,
Planning Services
Division
99 That ongoing during project operation, no required parking areas shall be fenced or otherwise enclosed for outdoor storage uses.
Planning and
Building
Department,
Planning Services
Division
100 Any Graffiti painted or marked upon the premises or on any adjacent area under the control of the licensee shall be removed or painted over within 24 hours of being applied.
Planning and
Building
Department,
Planning Services
Division
101 No exterior-mounted air conditioning facilities for individual hotel rooms or vacation ownership rooms shall be permitted.
Planning and
Building
Department,
Planning Services
Division
102 No required parking area shall be fenced-off or otherwise enclosed for outdoor storage uses.
Planning and
Building
Department,
Planning Services
Division
103 Adequate lighting of parking lots, driveway, circulation areas, aisles, passageways, recesses and grounds contiguous to buildings shall be provided with lighting of sufficient wattage to provide adequate illumination to make clearly visible the presence of any person on or about the premises during the hours of darkness and provide a safe, secure environment for all persons, property, and vehicles on-site.
Police Department
104 Rear entrance doors shall be numbered in the same address numbers or suite number of the business. Minimum height of 4 inches is recommended.
Police Department
105 All truck maneuvers shall be performed on-site. Trucks shall not back in from or back up into adjacent streets.
Public Works,
Traffic Engineering
Division
106 That ongoing during project operations, vehicle deliveries including loading and unloading shall be performed on site.
Delivery vehicles shall not block any part of the public right of way.
Public Works,
Traffic Engineering
Division
107 For all future development phases, the Developer/Owner shall submit the required entitlement applications and packages, including but not limited to, a Tentative Tract Map, Final Site Plan, and all required Preliminary Technical Studies to the City of Anaheim for review by City Staff and approval by the
Planning Commission.
Public Works,
Development
Services Division
108 Prior to the abandonment of Douglass Road, River Road, between Katella Avenue and Ball Road, shall be dedicated to the City of Anaheim, constructed, operational, and accepted. Additionally, Cerritos Avenue and Stanley Cup Way shall be
constructed and accepted by the City Engineer.
Public Works,
Development
Services Division
109 The Developer/Owner shall maintain the parkway landscaping improvements on both sides of River Road between Katella Avenue and Ball Road including, but not limited to, the landscaped buffer and Cycle Track along the east side of River
Road.
Public Works,
Development
Services Division
110 Prior to the abandonment of any sewer system, new public sewer mains in Stanley Cup Way and River Road shall be constructed and operational per the approved Sewer Study and as approved the City Engineer. The Developer/Owner shall dedicate a public sewer easement for the above-mentioned
public sewer mains in Stanley Cup Way and Douglass Road.
Public Works,
Development
Services Division
111 The public sewer main segments in Stanley Cup Way and Douglass Road shall remain public until the new sewer system as approved by the Sewer Study has been installed in River Road and the sewer flow has been rerouted. Upon completion of the new sewer system in River Road, the sewer system in Stanley Cup Way and Douglas Road shall become privately owned and maintained an d all associated public easements shall be abandoned.
Public Works,
Development
Services Division
112 On the Employee Parking Lot (FSP2020-00008) property owned by City and ground leased to Owner, Owner acknowledges and agrees that City shall reserve a 15’ wide bike trail easement along the southern boundary of the Employee Lot, as identified in Exhibit “B”, for the potential future use as a public bike trail (“Bike Trail Easement”). Owner shall be allowed to use the Bike Trail Easement for employee parking, unless and until (i) City provides written evidence to Owner that a bike trail will be able to connect to an existing bike trail to the west, and (ii) City determines to construct this bike trail. City shall provide written notice to Owner t welve (12) months in advance of such
construction of the bike trail, and Owner shall be required to find off-site replacement parking for the area impacted by the Bike Trail Easement, estimated to be 100 spaces. If Owner acquires the Employee Parking Lot property, the parties agree that the Bike Trail Easement shall be recorded against the Employee Lot Public Works,
Traffic
Engineering
Planning and
Building
Department,
Planning Services
Division
Property.
113 It is the responsibility of the OWNER to replace, remove, and/or relocate any traffic signal poles and equipment at any signalized intersection adjacent to the project if necessary at the OWNERS expense.
Public Works,
Traffic Engineering
114 That approval of the General Plan Amendment, specifically the Circulation Element, is contingent upon the Orange County Transportation Authority Board of Director’s approval of an amendment to the Master Plan of Arterial Highway to remove Douglass Road bet ween Katella Avenue and Cerritos Avenue, remove Cerritos Avenue between Sunkist Avenue and Douglass Road, and add River Road between Katella Avenue and Ball Road.
Public Works,
Traffic Engineering
115 In connection with City approval of the Phase 1 Final Site Plans and any subsequent Final Site Plans, Owner shall submit for City review and approval, an Event Traffic Management Plan.
Public Works,
Traffic Engineering
116 The property owner/developer shall be responsible for compliance with and any direct costs associated with the monitoring and reporting of all mitigation measures set forth in Mitigation Monitoring Plan (MMP) No. 383 adopted for the OCVIBE Project – DEV 2020-00125, established by the City of Anaheim as required by Section 21081.6 of the Public Resources Code to ensure implementation of those identified mitigation measures within the timeframes identified in the measure. MMP No. 383 is made a part of these conditions of approval by reference.
Planning and
Building
Department,
Planning Services
Division
117 The Applicant shall defend, indemnify, and hold harmless the City and its officials, officers, employees and agents (collectively referred to individually and collectively as “Indemnitees”) from any and all claims, actions or proceedings brought against Indemnitees to attack, review, set aside, void, or annul the decision of the Indemnitees concerning this permit or any of the proceedings, acts or determinations taken, done, or made prior to the decision, or to determine the reasonableness, legality or validity of any condition attached thereto. The Applicant’s indemnification is intended to include, but not be limited to, damages, fees and/or costs awarded against or incurred by Indemnitees and costs of suit, claim or litigation, including without limitation attorneys’ fees and other costs, liabilities and expenses incurred by Indemnitees in connection with such proceeding.
Planning and Building
Department,
Planning Services
Division
118 The applicant is responsible for paying all charges related to the processing of this discretionary case application within 30 days of the issuance of the final invoice or prior to the issuance of building permits for this project, whichever occurs first. Failure to pay all charges shall result in delays in the issuance of required permits or may result in the revocation of the approval of this application.
Planning and
Building
Department,
Planning Services
Division
119 The subject Property shall be developed substantially in accordance with plans and specifications submitted to the City of Anaheim by the applicant and which plans are on file with the Planning and Building Department, and as conditioned herein.
Planning and
Building
Department,
Planning Services
Division
120 Prior to approval of street improvement plans for River Road, a traffic signal warrant analysis for the intersections of Auto Center Drive/Phoenix Club Drive and Sanderson Avenue/Phoenix Club Drive shall be submitted to the Department of Public Works, Traffic Engineering Section for review and approval. Should a traffic signal be warranted at either or both intersections, Owner shall design and construct the traffic signal(s) to the satisfaction of the City Engineer at Owners expense prior to first building and zoning inspection of Phase 1.
Public Works,
Traffic Engineering
Exhibit M
Meadow Park Joint Use, Operation, and Maintenance Plan
by and between
Anaheim Real Estate Partners, LLC and
the City of Anaheim
dated
[INSERT EFFECTIVE DA TE]
TABLE OF CONTENTS
RECITALS
A. Development Agreement
B. Facilities Management Agreements
C. Meadow Park
D. Amphitheater
E. Joint Use Amongst City and Developer
F. Developer Operation and Management
G. Purpose
ARTICLE 1-DEFINITIONS AND INTERPRETATION
1.1 Definitions
1.2 Interpretation Favors Meadow Park Status as Public Park
ARTICLE 2 - JOINT USE OF MEADOW PARK AND AMPHITHEA TER
2.1 Developer Use of Meadow Park
2.l(a) 3625 Guaranteed Private Event Days Per Year
(i) 12 Private Event Days at Bandshell
(ii) 24 Private Event Days at Meadow Park Terraces
2.2 City Use of Amphitheater
2.2(a) Six Guaranteed Event Days Per Year
2.2(b) Additional City Events Based on Availability
2.3 City/Public Use of Meadow Park-Default Use Outside of Developer's 25 36 Guaranteed Private Event Days per year
2.3(a) Developer May Schedule Unlimited Number of Public Events Per Year in Coordination with City
2.4 Private Event Use (Unaffiliated with Developer Use as described in Section 2.1)
2.4(a) Community Services Director or Designee Approval Required
2.4(b) Developer Management and Scheduling
ARTICLE 3 - SCHEDULING OF EVENTS A T MEADOW PARK AND AMPHITHEATER
3.1 Developer Manages Master Calendar
3.l(a) Developer Authority to Schedule Developer's 25 Guaranteed36 Private Event Days and Public Events City's 6 Guaranteed Event Days (and City overflow event days);
3.l(b) Private Events Beyond Developer Guaranteed Private Event Days Require City Approval to Schedule.
3.2 Cooperation in Scheduling
3.3 City Events Priority Ranking
5.2 City and Community Group Provision of Concessions for Public Events, City Events, and Community Groups Events at Meadow Park
5.3 Food Trucks and Food Vendor Site Plans
5.4 Requirements for Sale of Alcohol in Meadow Park
ARTICLE 6- EVENT DAY COORDINATION AND CLEAN-UP
6.1 Coordination and Clean up for City Events at Amphitheater
6.2 Coordination and Clean-up for Developer Private Event Dayss at Meadow Park
6.3 Identifying Meadow Park Event Perimeter for Developer Private Event Dayss at Meadow Park
(a) Criteria for Determining Appropriate Event Perimeter for Event Based on Size, Scope, and Nature of Event.
(b) Procedures for Determining and Approving Event Perimeter for Private Event Dayss
6.4 Identifying Access Areas for Developer Private Event Dayss at Meadow Park Amphitheater
6.5 Temporary Structures and Event-Supporting Infrastructure Site Plan (e.g. temporary restrooms, mobile stages, food trucks, portable lighting and generators).
6.6 Amplified Sound Standards
6.7 Portable Restroom Standards
ARTICLE 7 - MEADOW PARK OPERATIONS GENERAL REGULATIONS
7.1 Developer Management Responsibility
7.l(a) Term of Management
7.2(b) Meadow Park Managed as Public Park
7.2 Appropriate Programming for Park by Facility Type
7.3 Hours of Operation
7.4 Operational Costs
7.5 Emergency Procedures
7.6 Enforcement of Park User Rules
7.7 Enforcement of Fire Regulations
7.8 Enforcement of Traffic/Parking Standards
7.9 Security
7.8(a) Security Standards
7.8(b) Security Plan Requirements 7.8(c) Security Patrols
7.10 Signs, Advertising, and Sponsorship
7.11 Procurement and Contracting Rules
7.12 Event Operations Plans
7.13 Utilities
7.14 Operations Standards
7.15 Remedies for Addressing Inadequacies in Management of Operations
7.16 Operations Budget
7.15(a) Annual Revenue and Expense Reporting 7.15(b) Revenue Controls
7.17 City Inspections/Management Document Audit Rights
7.18 Property Truces and Possessory Fees
7.19 Permits
7.19(a) Permitting Procedures 7.19(b) Permit Rates
7.10 Hotline for Public to Report Maintenance/Operations Issue$
ARTICLE 8 -MEADOW PARK MAINTENANCE
8.1 Maintenance Term
8.2 Maintenance Standards
8.3 Maintenance Costs
8.4 Remedies for Addressing Inadequate Maintenance
8.5 Repairs and Replacement
8.5(a) Timeline and Costs for Repairs 8.5(b) Timeline and Costs for Replacement
8.5(c) Remedies for Failure to Repair and Replace
8.6 Procurement and Contracting Rules
8.7 Maintenance Budget
8.7(a) Financial Documentation 8.7(b) Anticipated Maintenance Costs
8.8 Condition of Improvements and Park at End of Term
8.9 City Inspections/Maintenance Document Audit Rights
ARTICLE 9 - GENERAL PROVISIONS
9.1 Effective Date, Term, Termination, and Default
9.2 Insurance and Indemnification
9.3 Compliance with Laws
9.4 Governing Law and Venue
9.5 Severability
9:6 Notice·
9.7 No Joint V enture
9.8 No Waiver
9.10 Assignment
9.11 Successors and Assigns
9.12 Entire Agreement
9.13 Attorney's Fees
9.14 Counterparts
5177077.3
EXHIBIT “M-2”
MEADOW PARK PHASING
1. Phase 1 Park (3 AC Min.)
1.1.Bus turnaround (completed with Phase 0)
1.2.Provide interim surface parking for ARTIC / Maintain crosswalk across Katella at Douglass
1.3.Riverwalk Edge (with or without completed Riverwalk), including Pedestrian / Interim Fire Access access from Katella to ARTIC
1.4.Modified ARTIC Drop Off and Douglass Access
1.5.Park Area between Porch and Riverwalk
2. Phase 2 Park (4 AC Min) Parking Deck A Complete
2.1.Remove Surface Parking / Katella Cross Walk
2.2.Katella Pedestrian Bridge
2.3.Reconstructed ARTIC Drop Off and Douglass
2.4.Porch connecting ARTIC to the Katella Bridge
3. Phase 3 (4.85 AC Min) Hotel Complete
3.1.Complete park – fill in area between the Porch and Hotel.
3.2.Complete Drive Access between drop off and hotel entrance.
Meadow Park Features by Phase
EXHIBIT M-2: MEADOW PARK PHASING
EXHIBIT “M-3”
SCHEDULING TIMELINES FOR CITY EVENTS AT OWNER FACILITIES
EXHIBIT P
CITY FEES TO BE PAID BY THE DEVELOPMENT
This exhibit describes the fees applicable to the Project and to be paid by the Owner pursuant to this Development Agreement.
• The fees listed in this exhibit (including those contained in external links contained herein) are subject to escalation and increases as set forth in their respective enabling statutes, ordinances and resolutions, with such escalation and increases subject to Section 14.1 of this Development Agreement. In addition, some of the City fees are based on the actual cost of services provided, which such cost of services are updated from time-to-time by resolution following a cost of service study.
The actual amount to be paid by OWNER for all fees set forth in this exhibit are to be calculated based on the fee schedules and fee rates, as provided in this Development Agreement and as may be adjusted by the respective escalation factor applicable to a particular fee, that are most currently in effect at the time of building permit issuance or a different payment due date prescribed by the applicable enabling statute, ordinance and resolution, whichever date is later. The fee amounts payable may also be adjusted from time-to-time based on the cost of service study referenced above.
• Certain fees to be paid by OWNER under this Development Agreement are “Proposed Fees”, which are new fees or fee adjustments currently under consideration by the City at an amount to be determined. The Proposed Fees are set forth in Exhibit P-1. • Subject to compliance with Development Agreement section 14.1, unless specifically provided for in an enabling statute, ordinance or resolution, all escalations and increases occur automatically at the time increment prescribed, without notice. Fees will be adjusted accordingly in this manner.
I. City Development Impact Fees..
1. Development Impact Fees as set forth in Schedule B802 effective as of July 2022 https://www.anaheim.net/DocumentCenter/View/39711/Developer-Impact-Fees---B802?bidId=
2. NPDES Fees (Resolution 2018-074, Exhibit F)
https://www.anaheim.net/DocumentCenter/View/532/NPDES-Fees
3. Platinum Triangle Public Safety Impact Fees (Policy Z791) https://ca-anaheim.civicplus.com/DocumentCenter/View/1376/Platinum-Triangle-Public-Safety- Impact-Fees?bidId=
4. Supplemental Platinum Triangle Fees - Applicable only to properties not within the Platinum Triangle CFD (inclusive of the Annexation Parcels as defined in Section 1.5 and as shown in Exhibit T 08-1 provided that such Annexation Parcels are part of CFD 08-1 as of date the Supplemental Impact Fee is due) Resolution No. _____. https://www.anaheim.net/DocumentCenter/View/202/Fee-Schedule?bidId=
a. Traffic Impact Fees
b. Storm Drain Impact Fees
c. Sewer Impact Fees (All Land Uses)
d. Arterial Highway Beautification
5. Construction Fees for Commercial and Industrial Construction (Policy 8802 dated July 2021.
6. Fire Department Life Safety Inspection and Permit Fees (Resolution 2019-066) http://records.anaheim.net/CityClerk/DocView.aspx?id=2045402&dbid=0&repo=CITYOFANAHEIM
7. Fire Department Hazardous Materials Fees (Resolution 2019-068) http://records.anaheim.net/CityClerk/DocView.aspx?id=2045404&dbid=0&repo=CITYOFANAHEIM
8. Public Works Fee Schedules (Resolution 2019-073) and https://www.anaheim.net/DocumentCenter/View/202/Fee-Schedule?bidId
9. Transportation Impact and Improvement Fees, Anaheim Municipal Code Chapter 17.32 (Current until Proposed TIIF Fee Update, identified in Exhibit P-1 as a Proposed Fee, is adopted). https://codelibrary.amlegal.com/codes/anaheim/latest/anaheim ca/0-0-0-65273
1. Single Family $2,029/unit
2. Multi Family $1,297/unit
3. Hotel/Motel Room $1,474/unit
4. Office $3.67/ Gross Square Feet (“GSF”)
5. Retail/Commercial $5.50/GSF
6. Industrial $1.42/GSF
7. Peak Hour Trip End $1,285/trip
5186742.1
F:\Docs\AFFORDABLE HOUSING DEVELOPMENT\Development OCvibe\Housing Incentives MOU
HOUSING INCENTIVES MEMORANDUM WITH HOUSING & COMMUNITY DEVELOPMENT
AFFORDABLE RENTAL HOUSINGGENERAL DENSITY BONUS DEVELOPMENT
Date of Memorandum: August 19September 6, 20222024
Developer Name: Anaheim Real Estate Partners, LLC.
Developer Address: 2101 E. Coast Highway, Suite 230, Corona Del mar, CA 92625 Project Address: 2695 E. Katella Avenue
Name of Development: ocV!BE Mixed Use Development Project Number of Units: Total Units up to 2,250195
Affordable Units 195300-340, subject to Section vi below if fewer than 2,250 units are developed
Type of Development: Apartments XX Low-Income Housing Tax Credit Affordable Program: Density Bonus XX Affordable Rental Housing Option The City of Anaheim may grant a density bonus and/or other incentives (collectively referred to as “Housing Incentives”) for the development of an General Density Bonus Affordable Rental Housing dDevelopment (utilizing the provisions of the “Affordable Rental Housing Option” as notated above), pursuant to Chapter 4, Section 65915 of the California Government Code and Title 18, Chapter 18.52 of the Anaheim Municipal Code, as may be amended from time to time.
The term “ General Density BonusAffordable Rental Housing Development ” development also refers to the specific project being developed by Anaheim Real Estate Partners, LLC. Upon approval of this Housing Incentives Memorandum, the City of Anaheim shall enter into a Housing Incentives Agreement with the developer and/or owner (hereinafter referred to as “Developer”) of the Affordable Rental Housing DevelopmentGeneral Density Bonus development pursuant to the requirements of Chapter 18.52. The parties to this Housing Incentives Memorandum may mutually agree to enter into separate Housing Incentives Agreements for Phase 2 , and Phase 3 (as discussed below) , Phase 4 and Phase 5 or an amended Housing Incentives Agreement for any if all of the Affordable Rental Housing DevelopmentGeneral Density Bonus affordable units that are scited at an offsite location, as discussed below.
This Housing Incentives Memorandum with Housing & Community Development, executed by the Developer and the Anaheim Housing & Community Development Department, shall serve as a memorandum acknowledging the basic terms that will be included in the Housing Incentives Agreement(s) that shall be submitted to the Planning Department by the Developer at the same time the Developer applies for incentives and/or a density bonus per the Housing Incentives Ordinance.
Pursuant to the Amended and Restated Development Agreement No. 2020-00004 between the City of Anaheim and Anaheim Real Estate Partners, LLC, Section 212(e) Owner shall provide Affordable Units as defined in Chapter 18.52 of the Zoning Code and the California Health & Safety Code and as described below in subsections (i) through (vi) (hereinafter “Affordable Units”), as follows:
i. Affordable Housing in Project Phase 2: City and Owner agree to negotiate in good faith on a Housing Incentives Agreement for Project Phase 2 to provide for the development of 35 Moderate Income residential units onsite, as defined in Chapter 18.52 of the Zoning Code and the California Health and Safety Code.
The Housing Incentives Agreement for Phase 2 shall be completed/recorded prior to final map approval, or where a map is not being processed, prior to Formatted: Indent: Left: 0", Hanging: 1.8"
Formatted: Not Highlight
Housing Incentives Memorandum with Housing & Community Development 2695 E. Katella Avenue