RECORDING REQUESTED BY AND,
WHEN RECORDED, RETURN TO:
City Clerk
City of Anaheim
200 S. Anaheim Blvd., Suite 217
Anaheim, California 92805
C1
AGR - 10188. I
Recorded in Official Records, Orange County
Hugh Nguyen, Clerk - Recorder
111111111111111111111111111111111111111IIIJ1111Ijjj1111IIIIII108. 00 R 0 0 0 8 6 4 2 5 2 4$*
201600040994912: 31 pm 08/29116
9 416 Al2 F13 34
0.00 0.00 0.00 0.00 99.00 0.00 0.00 0.00
SPACE ABOVE FOR RECORDER' S USE)
DEVELOPMENT AGREEMENT NO. 2016- 00001
BETWEEN
CITY OF ANAHEIM
AND
GOOD HOPE INTERNATIONAL
TABLE OF CONTENTS
Page
DEFINITIONS.................................................................................................................. 3
2. PROPERTY, PURPOSE AND INTENT......................................................................... 8
2. 1 Property Description............................................................................................. 8
2. 2 City Objectives...................................................................................................... 8
2. 3 Developer Objectives............................................................................................ 9
2. 4 Mutual Objectives................................................................................................. 9
3. AGREEMENT AND ASSURANCES............................................................................. 9
3. 1 Agreement and Assurance on the Part of Developer ............................................ 9
3. 2 Agreement and Assurances on the Part of the City.............................................. 9
5. 1 Annual Review.................................................................................................... 12
3. 2. 1 Entitlement to Development..................................................................... 9
3. 2. 2 Changes in Applicable Rules.................................................................... 9
3. 2. 3 Agreed Changes and Other Reserved Powers........................................ 10
3. 2. 4 Subsequent Development........................................................................ 10
5. 3. 4 Specific Performance.............................................................................. 13
3. 2. 5 Effective Development Standards........................................................... 10
3. 2. 6 Timing, Sequencingand Phasingof Development ................................. 11
3. 2. 7 Impact Fees; Credit for Developer Installed Facilities ........................... 11
3. 3 Processing Fees................................................................................................... 11
3. 3. 1 Processing Fees and Charges.................................................................. 11
3. 3. 2 Extraordinary Processing Consultant...................................................... 11
3. 3. 3 Environmental Review............................................................................ 12
4. DEVELOPMENT PLAN................................................................................................ 12
4. 1 Vested Right to Develop Property...................................................................... 12
5. ANNUAL REVIEW; REIMBURSEMENT; DEFAULT; TERMINATION,
AMENDMENT OR MODIFICATION; MANDAMUS; SPECIFIC
PERFORMANCE........................................................................................................... 12
5. 1 Annual Review.................................................................................................... 12
5. 2 Reimbursement of Costs..................................................................................... 12
5. 3 Default by Developer..........................................................................................12
5. 3. 1 Default..................................................................................................... 12
5. 3. 2 Notice of Default..................................................................................... 13
5. 3. 3 Termination for Failure to Cure Default................................................. 13
5. 3. 4 Specific Performance.............................................................................. 13
5. 4 Default by City....................................................................................................13
5. 4. 1 Notice of Default..................................................................................... 13
5. 4. 2 Specific Performance and Mandamus.................................................... 14
6. PUBLIC BENEFITS....................................................................................................... 14
6. 1 Development of AAA Four Diamond Hotel....................................................... 14
6. 2 Net Increase in Transient Occupancy Tax.......................................................... 14
6. 3 Increase in Retail Sales Taxes............................................................................. 15
6. 4 Increasein Property Taxes..................................................................................15
6. 5 Resort Area Traffic Improvements..................................................................... 15
6. 6 Public Improvements Commitment.................................................................... 15
7. GENERAL PROVISIONS............................................................................................. 15
7. 1 Date Agreement Becomes Effective................................................................... 15
7. 2 Term.................................................................................................................... 15
7. 2. 1 Basic Term.............................................................................................. 15
7. 2. 2 Early Termination of Agreement............................................................ 15
7. 3 Force Majeure..................................................................................................... 16
7. 4 Applicable Law................................................................................................... 16
7. 5 Amendments....................................................................................................... 16
7. 6 Assignment......................................................................................................... 16
7. 7 Mortgage Rights.................................................................................................. 17
7. 7. 1 Encumbrances on the Property and this Agreement............................... 17
7. 7. 2 Mortgagee Protection.............................................................................. 17
7. 7. 3 Mortgagee Not Obligated....................................................................... 17
7. 7. 4 Notice of Default to Mortgagee.............................................................. 18
7. 7. 5 Bankruptcy.............................................................................................. 18
7. 7. 6 Termination Subject to Mortgagee Rights.............................................. 19
7. 7. 7 No Cancellation...................................................................................... 19
7. 7. 8 New Agreement Upon Default by Developer.........................................19
7. 7. 9 Separate Agreement................................................................................ 19
7. 7. 10 Material Notices...................................................................................... 20
7. 7. 11 Mortgagee Right to Assign..................................................................... 20
7. 8 Covenants............................................................................................................ 20
7. 9 Implementation................................................................................................... 20
7. 10 Relationship of the Parties.................................................................................. 20
7. 11 Cooperation in the Event of Third Party Litigation ............................................ 20
7. 12 Notices................................................................................................................ 21
7. 13 Recordation......................................................................................................... 22
7. 14 Developer Hold Harmless................................................................................... 22
7. 15 Insurance............................................................................................................. 22
7. 16 Successors and Assigns....................................................................................... 22
7. 17 Severability......................................................................................................... 23
7. 18 Waiver................................................................................................................. 23
7. 19 Third Party Beneficiaries.................................................................................... 23
7. 20 Expedited Processing.......................................................................................... 23
7. 21 Requests for Payment......................................................................................... 23
7. 22 Entire Agreement................................................................................................ 23
7. 23 Conflict of Laws................................................................................................. 24
7. 24 Legal Advice; Neutral Interpretation; Headings and Table of Contents ............ 24
7. 25 Counterparts........................................................................................................ 24
7. 26 Organization and Standing of Developer............................................................ 24
7. 27 Authorization and Consents................................................................................ 24 11 DEVELOPMENT AGREEMENT NO. 2016- 00001
BY AND BETWEEN THE CITY OF ANAHEIM
AND GOOD HOPE INTERNATIONAL
THIS DEVELOPMENT AGREEMENT NO. 2016- 00001 (" Agreement") is made and entered into as of this day of 2016, by and between the CITY OF ANAHEIM, a charter city and a municipal corporation duly organized and existing under the Constitution and the laws of the State of California (" City"), and GOOD HOPE INTERNATIONAL, a California Corporation (" Developer"), pursuant to the authority set forth in Section 65867 of the California Government Code, and the general authority setforth in section 65864 et seq. of the Government Code ( the " Development Agreement Act"), the City' s inherent power as a charter city, and the Development Agreement Act implementing procedures adopted by the City in Resolution No. 82R- 565 ( the " Procedures Resolution"). The definitions contained in Section 1 shall apply to the entire Agreement, including the RECITALS.
RECITALS
A. Developer represents that it owns the Property in fee. Developer has proposed re- development of the Project, as defined below and depicted on the Site Map ( Exhibit A to this Agreement).
B. The City and Developer recognize that development of the Project will create significant opportunities for economic growth in the City andthe region; and C. The development of the Project by the Developer will provide a new AAA Four Diamond Hotel and associated retail uses in The Disneyland Resort and Anaheim Resort Specific Plan Geographic Area, which will provide new general fund revenues in excess of the incremental City costs associatedwith such uses and shall, in addition, result in the delivery by the Developer to the City of the " Public Improvements Commitment" ( as defined below); and D. The Project will provide development fees and a financing vehicle for improvements to the public infrastructure which will provide area -wide benefits for that area subject to The Disneyland Resort Specific Plan, Anaheim Resort Specific Plan and Hotel Circle Specific Plan, as well as provide infrastructure, parking and other public facilities needed to support the Project; and
E. Developer, in consideration of the benefits and opportunities provided to Developer by the Existing Approvals and the cooperation and assistance of the City in connection therewith, will provide assurances to the City that the public infrastructure, amenities and design features of the Project are implemented in a timely manner as set forth in the Existing Approvals; and
F. In order to provide certainty and render development of the Project more feasible in light of the large capital investment and time necessary to coordinate and implement the Project, Developer requires assurance from the City that the governmental entitlements to use contained in the Existing Approvals shall, to the extent specified herein, not be amended or supplemented or burdened with fees, burdens and exactions not otherwise permitted by this Agreement; and
1 G. Developer also recognizes and agrees that in extending these benefits to Developer, the City must retain the Reserved Powers; and H. The development of the Property is governed by The Disneyland Resort Specific Plan ( SP92- 1). The potential environmental impacts of SP92- 1 were analyzed in previously certified Final Environmental Impact Report No. 311 (" FEIR No. 311 "). The City has evaluated FEIR No. 311 and Final Supplemental Environmental Impact Report No. 2008- 00340 (" SEIR No. 340") and the addendathereto, including the Project Addendum (the " Addendum"), which was prepared to evaluate the impacts of the Project. The Addendum concluded that the Project will not result in any new significant environmental impacts or any increase in the severity of previously identified impacts. The entitlements and environmental documents described in this Recital are hereinafter referred to as the " Prior Approvals"; and I. Concurrently with or prior to approval of this Agreement, the City has approved the following other Project Approvals applicable to the Project, which together with the above - referenced Prior Approvals, are hereinafter referred to as the " Existing Approvals:
1) Final Site Plan No. 2016- 00001 ( FSP2016- 00001);
2) Conditional Use Permit No. 2016- 05858 ( CUP2016- 05858); 3) Variance No. 2016- 05060 ( VAR2016- 05060);
4) The Conditions of Approval associated with the Existing Approvals; and
5) The Disneyland Resort Specific Plan, Anaheim Resort Specific Plan and Hotel Circle Specific Plan.
J. City and Developer desire to enter into this Agreement in order to assure development of the Property in accordancewith the Existing Approvals and provide for vesting of same for the Term of the Agreement, to assure the City of installation of the public infrastructure, including parking facilities, amenities and design features of the Project in accordance herewith and as described in the Existing Approvals; and K. On April 18, 2016, the Planning Commission, held a duly noticed public hearing regarding this Agreement and environmental documentation related thereto, and at the conclusion of such hearing, and after consideration of evidence and testimony submitted by City staff, the Developer and all interested parties, adopted a Resolution recommending that the City Council approve the Agreement; and
L. The City hereby finds that this Agreement and the Existing Approvals are consistent with the City' s General Plan and The Disneyland Resort Specific Plan as amended, and that the Addendum satisfies all requirements of the California Environmental Quality Act and the State CEQA Guidelines with respect to this Agreement and the Project; and M. On July 12, 2016, the City Council held a duly noticed public hearing regarding this Agreement and, at the conclusion of the hearing, and after considering the recommendation of the Planning Commission, the evidence and testimony submitted by City staff, the Developer and all other interested parties, introduced Ordinance No. 6376 approving this Agreement on July 12, 2016, and adopted Ordinance No. 6376 on July 26, 2016 ( herein referred to as the Authorizing Ordinance"); and
WHEREAS, for the foregoing reasons, the Parties desireto enter into this Agreement.
NOW, THEREFORE, in consideration of the promises and mutual promises and covenants herein contained and other valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Partieshereto agreeasfollows:
1. DEFINITIONS.
1. 1 " AAA Four Diamond Hotel" means a Hotel which provides physical features and operational services which meet or exceed, as determined by the City Manager acting in his/ her sole and absolute discretion, the rating criteria established for AAA Four Diamond Hotels or higher by the American Automobile Association.
1.2 " Addendum" means the Addendum to FEIR No. 311 and SEIR No. 340, dated April, 2016.
1. 3 " Affiliate of Developer" or "Affiliate" meansa sole proprietorship, limited liability company, partnership, limited partnership, joint venture, trust, unincorporated organization, association, corporation, institution, or any other entity owned and controlled by the Developer.
1.4 " AMC" means the Anaheim Municipal Code.
1. 5 " Anaheim Resort Specific Plan" means the Anaheim Resort Specific Plan No. 92- 2, as amended from time to time by the City.
1. 6 " Annual Review" means the annual review process as described in Section 5 of this Agreement.
1. 7 " Applicable Rules" means ( subject only to the qualifications set forth herein with respect to Fees and excluding the Reserved Powers) the rules, regulations, ordinances and officially adopted plans and policies of the City in force as of the Effective Date, including without limitation, The Disneyland Rescrt Specific Plan and the remainder of the Existing Approvals. Notwithstanding this Section 1.7 or any other provision of this Agreement i) all duly adopted codes, regulations, specifications and standards regarding the design and construction of public works facilities, if any, shall be those that are in effect at the time the plans for such public works facilities are being processed for approval and/or under construction, and ii) except as expressly set forth in this Agreement with respect to Impact Fees and Processing Fees and Charges applicable to the Project, Applicable Rules shall mean and include only those Fees in effect as of the Effective Date.
3 1. 8 " CEQA" means the California Environmental Quality Act ( Cal. Public Resources Code sections 21000 et seq.), the State CEQA Guidelines ( Cal. Code of Regs., Title 14, section 15000 et seq.) and City CEQA Guidelines.
1. 9 " City Agency" means each and every agency, department, board.
Commission, authority, employee, and/or official acting under the authority of the City that have permit, entitlement or approval authority or jurisdiction over the Project, including, without limitation, the City Council and the Planning Commission.
1. 10 " City Attorney" means the City Attorney of the City.
1. 11 " City Council" meansthe City Council of the City.
1. 12 " City Manager" meansthe City Manager of the City.
1. 13 " Commencement of Construction" or " Commence( s) Construction" means commencing vertical development after the completion of foundations.
1. 14 " Completion of Construction" or " Complete( s) Construction" means the date on which the Project Architect certifies completion of the respective Project Element.
1. 15 " Conditions of Approval" means those conditions of approval for the Project adopted in connection with the granting of the Existing Approvals.
1. 16 " Discretionary Action" means an action which requires the exercise of judgment, deliberation or a decision on the part of the City and/or any City Agency in the process of approving or disapproving a particular activity, as distinguished from an activity which merely requires the City and/or any City Agency to determine whether there has been compliance with statutes, ordinances or regulations. Discretionary Actions shall not include any Ministerial Permits and Approvals.
1. 17 " Effective Date" means the effective date of the Authorizing Ordinance.
1. 18 " Existing Approvals" meansthose approvals describedin Recital I.
1. 19 " Extraordinary ProcessingConsultant" means a consultant selectedby the City to coordinate and expedite processing of applications for all or any Ministerial Permits and Approvals and all or any Discretionary Actions applicable to the Project at the expense of Developer.
1. 20 " Fees" means any fees or charges imposed or collected by the City as of the Effective Date other than (i) Impact Fees, ProcessingFeesand Chargesand (ii) fees collected and/or imposed by the City for the benefit of public agenciesother than the City.
1. 21 " General Plan" means the General Plan of the City.
1. 22 " Hotel" means any structure or portion thereof, which is occupied by personsfor lodging or sleepingpurposesfor periods of lessthan thirty consecutive days. 4 1. 23 " Hotel Circle Specific Plan" means Hotel Circle Specific Plan No. 93- 1, as approved by the City Council and asamendedon or before the Effective Date.
1. 24 " Hotel Room" means a Hotel guest room or suite as defined in Section 18. 114. 030. 0602 or Section 18. 114. 030. 0603 of Chapter 18. 114 ( Disneyland Resort Specific Plan No. 92- 1 ( SP 92-1) Zoning and Development Standards) of Title 18 (Zoning) of the AMC as of the Effective Date and meeting the minimum standardsof a AAA Four Diamond Hotel.
1. 25 " Impact Fees" means impact fees, linkage fees, exactions, fair share charges or other similar impact fees or charges imposed on and in connection with new development on a city- wide basis by the City pursuant to rules, regulations, ordinances and policies of the City. Impact Fees shall not include Processing Fees and Charges, taxes or special assessments.
1. 26 " Inspections" means all field inspections and reviews by City officials during the course of construction of the Project and the processing of certificates of occupancy permanent or temporary).
1. 27 " Institutional Lender" means any of the following institutions having assets or deposits in the aggregate of not less than One Hundred Million Dollars ($ 100, 000, 000):
a California chartered bank; a bank created and operated under and pursuant to the laws of the United States of America; and " incorporated admitted insurer" ( as that term is used in Section 1100. 1 of the California Insurance Code); a " foreign ( other state) bank" ( as that term is defined in Section 1700( 1) of the California Financial Code); a federal savings and loan association ( Cal. Fin. Code Section 8600); a commercial finance lender ( within the meaning of Sections2600 et seq. of the California Financial Code); a " foreign ( other nation) bank" provided it is licensed to maintain an office in California, is licensed or otherwise authorized by another stateto maintain an agency or branch office in that state, or maintains a federal agencyor federal branch in any state ( Section 1716 of the California Financial Code); a bank holding company or a subsidiary of a bank holding company which is not a bank ( Section 3707 of the California Financial Code); a trust company, savings and loan association, insurance company, investment banker; college or university; pension or retirement fund or system, either governmental or private, or any pension or retirement fund or system of which any of the foregoing shall be trustee, provided the same be organized under the laws of the United States or of any state thereof; and a Real Estate Investment Trust, as defined in Section 856 of the Internal Revenue Code of 1986, as amended, provided such trust is listed on either the American Stock Exchange or the New York Stock Exchange.
1. 28 " Landscaping and Lighting District" means that Anaheim Resort Landscape and Lighting Maintenance District established by the City pursuant to the provisions of the California Streets and Highways Code, for the purpose of funding maintenance costs, above the City' s standard level, for entry monumentation, decorative lighting, bus shelters, enhanced landscaping, benches, kiosks and other street features in public rights-of-way within the Anaheim Resort.
5 1. 29 " Lease" meansa ground leasehaving a baseterm of thirty- five ( 35) years or longer, not including optional terms or extensions.
1. 30 " Legal Description" means the legal description of the Property attached hereto asExhibit B and incorporated herein by reference.
1. 31 " Litigation" means any lawsuit ( including a cross -action) filed against the City and/or Developer which challengesthe validity, implementation or enforcement of, or seeks any other remedy directly relating to, all or any party of the Existing Approvals or this Agreement.
1. 32 " Ministerial Permits and Approvals" means the nondiscretionary permits, approvals, plans, inspections, certificates, documents and licenses required to be taken, issued or approved by the City in order for Developer to implement, develop and construct the Project and the Mitigation Measures, including without limitation, building permits, and other similar permits and approvals.
1. 33 " Mitigation Measures" means those Mitigation Measures set forth in Mitigation Monitoring Plan No. 329 for the Project.
1. 34 " Mortgage" means an instrument or instruments securing one or more financings by the Developer with respect to the construction, development, use or operation of the Project, and includes whatever security instruments are used in the locale of the Project, including, without limitation, mortgages, deedsof trust, security deeds, and conditional deeds, as well as financing statements, security agreements and other documents required pursuant to the Uniform Commercial Code.
1.35 " Mortgagee" meansone or more Institutional Lenders holding a beneficial interest and secured position under any Mortgage which have notified City, in writing, of its request for notice under the provision of Section 7. 7 hereof.
1. 36 " Parties" means collectively Developer and the City.
1. 37 " Party" meansany one of Developer or the City.
1. 38 " Plaintiff means any party seeking relief or compensation through Litigation, whether as plaintiff, petitioner, cross- complainant or otherwise.
1.39 " Planning Commission" means the Planning Commission of the City.
1. 40 " Planning Director" means the Planning Director of the City.
1.41 " Processing Fees and Charges" means all processing fees and charges required by the City including, but not limited to, fees and charges for land use applications, Project permits, building applications, building permits, grading permits, encroachmentpermits, tract or parcel maps, lot line adjustments, air right lots, street vacations, certificates of occupancy and other similar permits. Processing Fees and Charges shall not include Impact Fees. 3 1.42 " Project" means the demolition of the existing buildings at the Property and the development of an eight -story AAA Four Diamond Hotel containing 580 hotel rooms and an additional 75, 600 square feet of supporting retail, conference/ meeting rooms event space, and restaurants, as more specifically described in the Existing Approvals and as shown on the Site Map.
1.43 " Project Architect" means the architect designated by the Developer as responsible for the design and construction supervision of each Project Element.
1.44 " Property" means that real property owned by Developer and legally described in Exhibit B hereto.
1.45 " Public Improvements Commitment" has the meaning set forth in Section
1.46 " Public Improvements" means the facilities, both on- and off- site, to be improved, constructed and dedicated to ( and, upon completion in accordance with this Agreement, accepted by) the City by the Developer. Public Improvements include sidewalks, bio- swales and other Storm -water Management Improvements in the public right- of- way, all public utilities within the streets (such as gas, electricity, water, storm drains and sewerlines, but excluding any non - municipal utilities), bicycle lanes and paths in the public right- of- way, off- site intersection improvements ( including but not limited to curbs, medians, signaling, traffic controls devices, signage, and striping), transit system improvements, and all other improvements delineated on street improvement plans approved by the City Engineer for the Project during the pendency of the Project.
1. 47 " Reserved Powers" means the rights and authority excepted from this Agreement' s restrictions on the City' s police powers which are reserved to the City. The ReservedPowers supersedethe Applicable Rules to the extent of any inconsistency and include the power to enact and implement rules, regulations, ordinances and policies after the Effective Date that may be in conflict with the Applicable Rules, which either ( 1) prevent or remedy conditions which the City has found to be injurious or detrimental to the public health or safety; 2) are Uniform Codes; ( 3) are necessary to comply with state and federal laws, rules and regulations ( whether enacted previous or subsequent to the Effective Date) or to comply with a court order or judgment of a state or federal court; ( 4) are agreed to or consented to by Developer; ( 5) involve the formation of assessment districts, Mello - Roos Community Facilities Districts, special districts, maintenance districts or other similar districts formed in accordance with applicable laws provided, however, that Developer shall retain all its rights with respect to such districts pursuant to all applicable laws; or ( 6) are Processing Fees and Charges or City- wide fees or charges of general applicability.
1.48 " Right( s)-of- Way" means any right( s)- of- way or other real property interest necessary to access, construct, maintain, perform and/ or operate any Public Improvements required by the Mitigation Measures in accordancewith the Existing Approvals excluding the land required for the Parking Facility.
7 1. 49 " Section" means the indicated section or subsection number of this Agreement.
1. 50 " Site Map" means the map of the Property which is attached thereto as Exhibit A and incorporated herein by reference.
1. 51 " Storm - water Management Improvements" means the facilities, both those to remain privately -owned and those to be dedicatedto the City, that comprise the infrastructure and landscape system that is intended to manage the storm - water runoff associated with the Project. Storm - water Management Improvements include but are not limited to: ( i) swales and bioswales (including plants and soils), (ii) bio -gutters and grates (including plants and soils), (iii) tree wells, ( iv) ponds, wetlands, and constructed streams, ( v) storm - water cisterns, ( vi) permeable paving systems, ( vii) storm - water culverts, ( viii) trench drains and grates, ( ix) storm - water piping, ( x) storm -water collection system, and (xi) other facilities performing a storm - water control function.
1. 52 " Term" means the period of time during which this Agreement shall be in effect and shall bind the City and Developer as provided in Section 7.2 of this Agreement.
1. 53 " The Anaheim Resort" means the area of approximately 1,078 acres in the City which is designated in the General Plan for Commercial Recreation land uses. The Anaheim Resort encompassesthat territory subject to The Disneyland Resort Specific Plan No. 92- 1, the Anaheim Resort Specific Plan No. 92- 2, and Hotel Circle Specific Plan No. 93- 1.
1. 54 " The Disneyland Resort Specific Plan" or " Specific Plan" means the Disneyland Resort Specific Plan No. 92-1 (including the zoning and development standardsset forth in Chapter 18. 114 ( Disneyland Resort Specific Plan No. 92- 1 ( SP 92- 1) Zoning and Development Standards) of Title 18 (Zoning) of the AMC) as approved by the City and as amended on or before the Effective Date.
1. 55 " Uniform Codes" means those building, electrical, mechanical, fire and other similar regulations which are applicable throughout the City, including, but not limited to, the California Building StandardsCodes, as adopted by the City Council and codified in Chapter
15. 03 ( Building Standards Codes and Administrative Provisions Pertaining to Building and Construction) of Title 15 ( Buildings and Housing) of the AMC, and the California Fire Code, as adopted by the City Council and codified in Chapter 16.08 ( California Fire Code) of Title 16 Fire) of the AMC, asthe samemay be amendedfrom time to time by the City.
2. PROPERTY, PURPOSE AND INTENT.
2. 1 Property Description. The Property is shown on the Site Map and described in the Legal Description.
2. 2 City Objectives. The City desires that the Property be developed as provided for in the Existing Approvals to: ( i) create new general fund revenues in excess of the incremental City costsassociatedwith the Project, (ii) provide AAA Four Diamond Hotel Rooms that will expand on existing and planned tourist attractions and theme park uses and will cause Anaheim visitors to extend the length of stays in Anaheim; ( iii) provide a fully integrated and coordinated development based on comprehensive planning principles; and ( iv) to the extent Developer proceeds with the Project, to assure that the Project will be developed as described in the Existing Approvals.
2. 3 Developer Objectives. This Agreement is necessaryto assureDeveloper that the Project will not be (i) reducedin density, intensity or use; and (ii) subjectedto new rules, regulations, ordinances or official policies or delays which are not permitted by this Agreement so long as the Developer performs hereunder, including without limitation the delivery by the Developer to the City of the Public Improvements Commitment.
2. 4 Mutual Objectives. Development of the Project in accordance with this Agreement will provide the assurances required for the development of the Project in accordance with the goals and objectives set forth in the General Plan and the Specific Plan. Moreover, this Agreement provides additional assuranceto the City and Developer that, should Developer proceed with the Project, the installation of necessaryimprovements will occur in the manner set forth in the Existing Approvals and otherwise achieve the goals and purposes for which the Development Agreement Act was enacted. The Parties believe that such an orderly, coordinated development of the Project will provide many public benefits to the City, including without limitation: delivery by the Developer to the City of the Public Improvements Commitment, development of under- utilized properties and uses, increased tax revenues, increased transient occupancy tax, and job creation.
3. AGREEMENT AND ASSURANCES.
3. 1 Agreement and Assurance on the Part of Developer. In consideration for the City entering into this Agreement, and asan inducement for the City to obligate itself to carry out the covenants and conditions set forth in this Agreement, and in order to effectuate the purposes and intentions set forth in Section 2 of this Agreement, should Developer proceed with the Project, Developer hereby agrees to develop the Project, consistent with the Existing Approvals and to deliver to the City the Public Improvements Commitment by the respective times set forth therefor in Section 6. 6 of this Agreement.
3. 2 Agreement and Assurances on the Part of the City. In consideration for Developer entering into this Agreement and delivery of the Public Improvements Commitment, and as an inducement for Developer to obligate itself to carry out the covenants and conditions setforth in this Agreement, the City hereby agreesduring the term as follows:
3. 2. 1 Entitlement to Development. Developer has a vested right to develop the Project in accordance with the Existing Approvals subject to the terms and conditions of this Agreement, the Applicable Rules and the Reserved Powers. City shall not revoke or modify the Existing Approvals.
3. 2. 2 Changes in Applicable Rules.
3. 2. 2. 1 Non - Application of Changes in Applicable Rules.
Any change in, or addition to, the Applicable Rules, including, without limitation, any changein any applicable general or specific plan, zoning ordinance or building regulation adopted or becoming effective after the Effective Date, including, without limitation, any such change by means or ordinance, City Charter amendment, initiative, referendum, resolution, motion, policy, order or moratorium, initiated or instituted for any reason whatsoever and adopted by the City Council, Planning Commission or City Agency, or by the electorate, as the casemay be, which would, absentthis Agreement, otherwise be applicable to the Project and which would conflict with the Applicable Rules or this Agreement, shall not be applied to the Project unless such changes represent an exercise of the City' s Reserved Powers or are otherwise expressly allowed by this Agreement or consentedto in writing by Developer.
3. 2. 2. 2 Changes in Uniform Code. Notwithstanding any provision of this Agreement to the contrary, construction of the Project shall comply with changes occurring from time to time in the Uniform Codes pursuant to the Reserved Powers.
3. 2. 2. 3 Changes Mandated by Federal or State Law. This Agreement shall not preclude the application to the Project of changes in, or additions to, the Applicable Rules. In the event state or federal laws or regulations prevent or preclude compliance with one or more provisions of this Agreement, such provisions shall be modified or suspended as may be necessary to comply with such state or federal laws or regulations.
3. 2. 2. 4 Special Taxes and Assessments. Developer shall have the right, to the extent permitted by law, to protest, opposeand vote against any and all special taxes, assessments, levies, charges and/or fees imposed with respect to any assessment districts, Mello - Roos Community Facilities Districts, maintenance districts or other similar districts.
3. 2. 3 Agreed Changes and Other Reserved Powers. This Agreement shall not preclude application to the Project of rules, regulations, ordinances and officially adopted plans and policies otherwise in conflict with the Applicable Rules if ( i) agreed to in writing by Developer, or (ii) result from the ReservedPowers.
3. 2. 4 Subsequent Development. The City shall not require Developer to obtain any approvals or permits for the development of the Project other than those permits or approvals which are required by the Applicable Rules or the ReservedPowers.
3. 2. 5 Effective Development Standards. The City agrees that with respect to the Project it is bound to permit development of the Project in accordance with the Specific Plan and Existing Approvals including without limitation, the uses, intensity and density as provided for in the Specific Plan, subject to the Applicable Rules, Reserved Powers and this Agreement. Moreover, the City hereby agrees that it will not unreasonably withhold any Discretionary Action which must be issued by the City in order for the Project to proceed, provided that Developer reasonably and satisfactorily complies with all City- wide standard procedures and policies of the City for processing any such Discretionary Action and pays any applicable Processing Fees and Charges. The 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 Agreement. 10 3. 2. 6 Timing and Sequencing of Development. The Project shall be completed in one construction phase, including all general grading, site preparation, utility lines and infrastructure. The Parties acknowledge that Developer cannot at this time predict when or the rate at which the Property will be developed. Such decisions depend upon numerous factors which are not within the control of Developer, such as market demand, interest rates, competition and other similar factors. Because the California Supreme Court held in Pardee Construction Co. v. City of Camarillo ( 1984) 37 Cal. 3d 455, that the failure of the parties therein to provide for the timing of development resulted in a later adopted initiative restricting the timing of development to prevail over suchparties' agreement, it is the Parties' intent to cure that deficiency by expressly acknowledging and providing that Developer shall have the right to develop the Property, or to not develop the Property, in suchorder and such rate and at suchtime as Developer deems appropriate within the exercise of its subjective business judgment in its sole and absolute discretion; provided, however, that upon commencementof any work related to the development or construction of the Project, or any portion thereof, the Developer shall diligently prosecute the same to completion without substantial interruption in accordance with applicable permits and requirements under this Agreement, subject to Force Majeure. In the event an ordinance, resolution or other measure, referendum, or initiative is enacted, whether by action of the City or otherwise, which relates to the rate, amount, timing, or sequencing of the development or construction of the Project on all or any part of the Property or the implementation or construction of the Mitigation Measures, City agrees, to the maximum extent permitted by law, that such ordinance, resolution or other measureshall not apply to the Project, the Property or this Agreement, unless such changesare adoptedpursuant to the City' s exercise of its Reserved Powers or other applicable provisions of this Agreement.
3. 2. 7 Impact Fees; Credit for Developer Installed Facilities. The Project shall be subject to the Impact Fees and crediting provisions related thereto in force at the time of application and as may be amended from time to time and are not restricted or limited in any way by this Agreement. Nothing contained herein shall be construed to prohibit the City from imposing fees, taxes or assessments on the Property which are unrelated to the approval or implementation of the Project.
3. 3 Processing Fees; Extraordinary Processing_ Consultant Charges and Environmental Review.
3. 3. 1 Processing Fees and Charges. Developer shall pay all Processing Fees and Charges for Ministerial Permits and Approvals and Inspections at the rate in effect at the time they are sought.
3. 3. 2 Extraordinary Processing Consultant. Developer may request that the City engage an Extraordinary Processing Consultant to coordinate and expedite the processing of actions required through the Ministerial Permits and Approvals and all Discretionary Actions applicable to the Project. If so requestedand the City deemsit necessary, in its sole discretion, it will engage such Extraordinary Processing Consultant and the Developer shall reimburse the City for the costs of such Extraordinary Processing Consultant in accordance with the terms of Section 7. 22 hereof.
11 3. 3. 3 Environmental Review. The City has conducted extensive environmental review of the Project and has adopted the Mitigation Measures. The City intends that Ministerial Permits and Approvals are not actions subject to requirements for further environmental review pursuant to CEQA.
4. DEVELOPMENT PLAN.
4. 1 Vested Right to Develop Property. Subject to the terms of this Agreement, Developer shall have a vested right to develop the Property in accordancewith, and to receive the benefits set forth and provided in, the Existing Approvals. In the absence of a default by Developer, City shall not revoke, rescind, impede or thwart any of Existing Approvals.
5. ANNUAL REVIEW• REIMBURSEMENT• DEFAULT; TERMINATION
AMENDMENT OR MODIFICATION• MANDAMUS,• SPECIFIC PERFORMANCE.
5. 1 Annual Review. During the Term and so long as this Agreement is in effect, Developer shall initiate and the City shall conduct an Annual Review of Developer' s compliance with this Agreement and the Procedures Resolution. Such Annual Review shall be limited in scope to determining good faith compliance with the provisions of this Agreement.
The Annual Review shall be initiated and conducted in accordance with the Procedures Resolution.
5. 2 Reimbursement of Costs. Developer shall pay to City in advance, the Application Fee for Annual Review required by the City' s Procedures Resolution on each occasion that Developer submits its evidence for the Annual Review. Developer shall also reimburse the City for its actual costs, reasonably and necessarily incurred or any legal or financing consultant cost necessaryto accomplish review of amendmentspursuant to Section 7.5 of this Agreement. Such reimbursement shall be due within thirty ( 30) days after receipt of invoice from the City.
5. 3 Default by Developer.
5. 3. 1 Default. In the event the City reasonably determines that Developer has failed to perform any of its obligations under this Agreement, or that any such obligations are not performed in a timely manner, the City may pursue only those remedies expressly provided for in this Agreement; provided, however, that the City' s right to compel specific performance of the obligations of Developer under this Agreement shall be subject to the limitations set forth in Section 5. 3. 4. Further, the City shall have no right to monetary damages except as set forth in Section 5. 4. 2.
5. 3. 2 Notice of Default. In the event the City reasonably determinesthat Developer is in default of any of its obligations under this Agreement, the City shall send a notice of such alleged default( s) to Developer in which the allegations of default shall be set forth in sufficient detail to enable Developer to ascertain the specific actions necessary to cure the alleged default( s). Upon receipt of a notice of default, Developer shall promptly commence to cure the identified default( s) at the earliest reasonable time after receipt of such notice but in no event more than thirty ( 30) days after receipt of notice and shall complete the cure of ( i) any 12 monetary default( s) not later than thirty ( 30) days after the receipt of such notice of default, and ii) any non -monetary default(s) not later than ninety ( 90) days after the receipt of such notice of default or such longer period as necessaryto cure default as agreedto by City in its sole discretion. The Parties may mutually agreein writing to extend the time periods setforth in this Section.
5. 3. 3 Termination for Failure to Cure Default. If after the cure period provided for in Section 5.3.2 has lapsed and the Planning Director reasonably finds and determines that Developer remains in default, the Planning Director shall make a report to the City Council concerning such default and the City Council may thereafter proceed to modify or terminate this Agreement in accordance with the Procedures set forth in Sections 7. 2 and 7. 3 of the Procedures Resolution.
5. 3. 4 Specific Performance. Except as provided in this Section 5. 3. 4, the City shall have no right under this Agreement to seek a remedy of specific performance with respect to the Project in the event of an abandonment of the Project after construction has commenced. The City' s right to seek specific performance to compel completion of the Project including portions of the Project) in the event of such abandonment after construction has commenced shall be specifically limited to ( i) compelling Developer, at the election of the City in its sole discretion, to complete or demolish any uncompleted improvements located on public property initiated in connection with the Project with the choice of whether to demolish or complete such improvements and the method of such demolition or completion of such improvements to be selectedby the City in its sole discretion, and (ii) compelling Developer, at the election of the City in its sole discretion, to complete or make safe and secure any uncompleted improvements located on the Property with the choice of whether to demolish, complete or secure such improvements and the method of such demolition, completion and securing of such improvements to be selected by Developer in its sole discretion. The City' s specific performance remedy shall include the right to require dedication to the City of the improvements located on public property upon completion together with conveyance of real property as contemplated by this Agreement. Prior to Commencement of Construction, Developer shall post a performance bond or other security in an amount and form reasonably satisfactory to the City Attorney to guarantee demolition or securing of such uncompleted improvements located on public property and/or located on the Property. The Developer' s contractor's performance bond from a creditworthy bonding company assigned to the City is a performance bond that will be acceptableto City. Nothing in this Section 5.3.4 shall limit the City' s enforcement of all applicable provisions of the Applicable Rules, Existing Approvals, Mitigation Measures, and Uniform Code for any portion of the Project then or thereafter constructed (e.g., requiring Developer to build sewer laterals required under Applicable Rules to serve the Project actually completed), termination of this Agreement in accordance with the provisions hereof notwithstanding. In addition, nothing in this Section shall limit or restrict in any way the City' s monetary remedies asprovided for in Section 5.4.2 hereof.
5. 4 Default by City.
5. 4. 1 Notice of Default. In the event the Developer reasonably determines that the City is in default of any of its obligations under this Agreement, the Developer shall send a notice of such alleged default(s) to the City in which the allegations of 13 default shall be set forth in sufficient detail to enable the City to ascertain the specific actions necessary to cure the alleged default(s). Upon receipt of written notice of default from Developer, the City shall promptly commence to cure the identified default(s) at the earliest reasonable time after receipt of the notice of default and shall complete the cure of such default(s) not later than sixty ( 60) days after receipt of the notice of default or such longer period as necessaryto cure default as agreedto by the Developer in its sole discretion. The Partiesmay mutually agreein writing to extend the time periods set forth in this Section.
5. 4. 2 Specific Performance and Mandamus. It is acknowledged by the Parties that the City would not have entered into this Agreement if it were to be liable in damages under or with respect to this Agreement or the application thereof. In addition, the Parties agreethat monetary damagesare not an adequateremedy for Developer if the City should be determined to be in default under this Agreement. The Parties further agree that specific performance and mandamus shall be Developer' s only remedies under this Agreement and Developer may not seek monetary damages in the event of a default by the City under this Agreement. Developer covenants not to sue for or claim any monetary damages in the event of a default by the City under this Agreement ( including without limitation special, incidental or consequential damages) and expressly waives its right to recover damages under this Agreement.
The City shall have the right to recover ( 1) actual damages only ( and not consequential, punitive or special damages, each of which is hereby expressly waived) for ( a) the Developer' s failure to pay sums to the City as and when due under this Agreement, but subject to any express conditions for such payment set forth in this Agreement, and ( b) the Developer' s failure to make payment due under any indemnity in this Agreement, ( 2) any and all damages relating to the Developer' s failure to construct Public Improvements in accordance with City - approved plans and specifications and in accordance with all applicable laws ( but only to the extent that the City first collects against any security, including but not limited to bonds, for such Public Improvements), and (3) attorney's fees and costs when awarded by an arbitrator or a court with jurisdiction. For purposes of the foregoing, " actual damages" shall mean the actual amount of the sum due and owing under this Agreement, with interest as provided by law, together with suchjudgment collection activities as may be ordered by the judgment and no additional sums.
Developer may seekspecific performance of City' s obligations under this Agreement or a writ of mandate pursuant to Code of Civil Procedure sections 1085 or 1094. 5, as applicable, to compel the City to take or refrain from taking any action, or to modify any action taken, that is necessary to effectuate the terms of this Agreement only after serving written notice of the alleged default(s) on City and lapse of the period given for City to cure suchdefault(s), all in accordance with Section 5. 4. 1, and for so long as City remains in default of its obligations under this Agreement.
6. PUBLIC BENEFITS.
6. 1 Development of AAA Four Diamond Hotel. Development of the Project will further the goals of the City' s Hotel Incentive Program by providing a new AAA Four Diamond Hotel, in a manner that is consistent with goals of the General Plan and Specific Plan.
6. 2 Net Increase in Transient Occupancy Tax. The Project will provide substantial City benefits from the net increase in transient occupancy tax derived from the construction of the Project.
14 6. 3 Increase in Retail Sales Taxes. The Project will provide significant additional net retail sales tax benefits upon Project completion.
6. 4 Increase in Property Taxes. The Project will generate significant additional property taxes.
6. 5 Resort Area Traffic Improvements. The Project will provide additional Anaheim Resort Area traffic benefits as described in the Mitigation Measures and Existing Approvals.
6. 6 Public Improvements Commitment. The Developer shall deliver to the City a cash payment in the amount of One Hundred Thousand and No/ 100 Dollars 100, 000. 00), which payment shall be paid to the City upon the earlier to occur of ( a) the issuanceof a demolition or grading permit for the Project, whichever occurs first, or (b) the first anniversary of the Effective Date of the Authorizing Ordinance, provided that, with respect to subparagraph "( b)", the Developer has not elected p.ior to said first anniversary to abandonthe Project and terminate this Agreement. Said amount shall be used by the City, in its sole discretion, to fund certain public improvements which may be constructed by the City near the Project.
7. GENERAL PROVISIONS.
7. 1 Date Agreement Becomes Effective. This Agreement shall become effective on the Effective Date.
7. 2 Term.
7. 2. 1 Basic Term. The Term of this Agreement shall commence on the Effective Date of this Agreement and shall extend for a period of five ( 5) years after the Effective Date, unless extended or earlier terminated as provided herein.
7. 2. 2 Early Termination of Agreement. This Agreement is terminable:
i) by mutual written agreement of the Parties; or ( ii) by either Party following an uncured default by the other Party under this Agreement, subject to the procedures and limitations set forth in this Agreement; or (iii) upon the occurrence of the entry of a final judgment or issuance of a final order, after all appeals have been exhausted, directed to the City as a result of any lawsuit filed against the City to set aside, withdraw or abrogatethe approval of the City Council of this Agreement; or ( iv) if termination occurs pursuant to the provisions of the Procedures Resolution and such termination is so intended thereby.
7. 2. 3 Following expiration of the Term, this Agreement shall be deemed terminated and of no further force and effect, except for any provisions which, by their express terms, survive the expiration or termination of this Agreement.
7. 2. 4 If not already terminated by reason of any other provision in this Agreement, or for any other reason, this Agreement shall automatically terminate and be of no further force and effect upon completion of the Project pursuant to the terms of this Agreement 15 and any further amendmentsthereto and the issuanceof all occupancy permits and acceptanceby the City of all dedications and improvements asrequired by the development of the Project.
7. 3 Force Majeure: Extension of Time of Performance. In addition to specific provisions of this Agreement, whenever a period of time is designated within which either Party hereto is required to do or complete any act, matter or thing, both the time for the doing or completion thereof and the Term of this Agreement and the specific obligation hereunder shall be extended by a period of time equal to the number of days which such Party is prevented from, or is unreasonably interfered with the doing or completion of such act, matter or thing becauseof the following causes, which causesare beyond the reasonable control of the Party to be excused including: war, terrorist acts, insurrection; strikes; walk -outs; riots; floods; earthquakes; fires; unavoidable casualties; acts of God; Litigation and administrative proceedings which are brought against the Project by a third party ( not including any administrative proceedings contemplated by this Agreement in the normal course of affairs such as the Annual Review); restrictions imposed or mandated by other governmental entities (" Governmental Restrictions"); enactmentof conflicting stateor federal laws or regulations (" Conflicting Laws"); judicial decisions (" Judicial Decisions"); or similar bases for excused performance which is not within the reasonable control of the Party to be excused (financial inability excepted). This Section shall not be applicable to, bankruptcy or receivership initiated by or on behalf of Developer or, if not dismissed within ninety (90) days, by any third parties against Developer. A Party wishing to invoke this Section shall notify in writing the other Party of that intention within thirty ( 30) days of the commencement of any such causefor delay and shall, at that time, specify the reasons therefor, the provisions of this Agreement that will be delayed as a result, and the period of such extension, if known, or, if not known, the party' s best estimate thereof. The failure to so notify the other Party within that period as to the causefor delay shall constitute a waiver of any right to later rely upon this Section with respect to that cause. In the event any such extension continues for more than one hundred eighty ( 180) days, any Party not then in Default of its obligations hereunder, shall be entitled to terminate this Agreement upon written notice to the other and, in that event, the Parties shall have no further obligations hereunder.
7. 4 Applicable Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California, and the venue for any legal actions brought by any Party with respect to this Agreement shall be the County of Orange, State of California, for state actions, and the Orange County Division of the Central District of California for any federal actions.
7. 5 Amendments. This Agreement may be amended from time to time in writing in accordancewith Government Code section 65868 and the ProceduresResolution.
7. 6 Assigning . The Parties acknowledge and agree that one of the principal inducements to the City in entering into this Agreement is the assurancethat, if the Developer proceedswith the Project, the Project will be developed in accordancewith the quality standards set forth in the Existing Approvals. In furtherance of these objectives, the Parties agree that except as otherwise provided in this Section 7. 6, Developer shall not be entitled to transfer all or any part of its interest in or rights under this Agreement and/or any part of its interest in or rights to the Property, or any part thereof, and or ownership and/or control of Developer, without the prior written consent of the City, which consent shall not be unreasonablywithheld, conditioned 16 or delayed. The City shall consentto eachtransfer if evidence reasonably satisfactory to the City is presentedthat the entity to which the assignment is proposed (i) is able to demonstratethat it has adequate net worth to construct and operate the Project; ( ii) has a demonstrated track record of having developed and operatedone or more AAA Four Diamond Hotels of a similar nature to the Project; ( iii) has a demonstrated track record of arranging financing ( through debt and/or equity) on terms and in amounts similar to the amounts necessaryto complete the Project; (iv) is able to demonstrate the capability and experience to successfully manage developments of the size and character of the Project; and (v) has expressly assumedall of Developer' s obligations hereunder and such assignment is being undertaken in accordance with this Section 7.6.
Notwithstanding the foregoing, Developer shall have the right to lease spaceto specialty retail and restaurant tenants, and assign, lease, transfer, convey or hypothecate all or any partial interest in all or any portion of the Property to any Affiliate without the consent of the City; provided, however, that any entitlements or permits required for such uses shall be processedin accordance with the City' s ordinances, rules and regulations. Any such assignment, lease, transfer, conveyance, or hypothecation, except a lease to specialty retail and/or restaurant tenants may include all of Developer' s rights, duties and obligations under this Agreement.
Notwithstanding the foregoing, no assignmentshall be effective regardlessof whether or not the City' s consentis otherwiserequired, unlessanduntil theproposedassigneeacceptsandagreesin writing to assumeand be bound by the obligations setforth in this Agreement which apply to the Property, the Project, the Project Elements or interest therein being assigned.
7. 7 Mortgage Rights.
7. 7. 1 Encumbrances on the Property and this Agreement. The Parties hereto agree that this Agreement shall not prevent or limit Developer, in any manner, at Developer' s sole and absolute discretion, from encumbering the Property or any portion thereof or any improvements thereon with any Mortgage. Developer is hereby given the expressright, in addition to any other rights herein granted, to grant a Mortgage on its interests in this Agreement or any part or parts thereof, under one or more Mortgages and to assign this Agreement ascollateral security for any suchMortgage.
7. 7. 2 Mortgagee Protection. This Agreement shall be superior and senior to the lien of any Mortgage. Notwithstanding the foregoing, no breach of this Agreement shall defeat, render invalid, diminish, or impair the lien of any Mortgage made in good faith and for value, and any acquisition or acceptanceof title or any right or interest in or with respect to the Property or any portion thereof, or to this Agreement, by a Mortgagee (whether pursuant to foreclosure, leasetermination or otherwise) shall upon written election by the Mortgagee within sixty ( 60) days after receipt of such right, title or interest, be subject to all of the terms and conditions of this Agreement and any such Mortgagee who takes title to the Property or any portion thereof, or to this Agreement, shall also be entitled to the rights and obligations arising under this Agreement.
7. 7. 3 Mortgagee Not Obligated. Notwithstanding the provisions of this Section 7.7, a Mortgagee will not have any rights, obligations or duties pursuant to the terms set forth in this Agreement to perform the obligations of Developer or other affirmative covenants of Developer hereunder or to guarantee such performance, unless such Mortgagee expressly assumes the rights and obligations of the Developer and except that ( i) the Mortgagee shall upon 17 written election by the Mortgagee within sixty ( 60) days after receipt of such right, title or interest, have no right to develop the Project without fully complying with the terms of this Agreement, and ( ii) to the extent that any covenant to be performed by Developer is a condition to the performance of any covenant by the City, the performance thereof shall continue to be a condition precedent to the City' s performance hereunder. Although not obligated to do so, upon written election by the Mortgagee within sixty ( 60) days after receipt of such right, title or interest, any Mortgagee may do any act or thing required by Developer hereunder, and do any act or thing which may be necessaryand properly done in the performance and observanceof the agreements, covenants and conditions hereof to prevent termination of this Agreement in accordance with Section 7. 7. 4. Any Mortgagee and its agents and contractors shall have full accessto the Property for purposesof accomplishing any of the foregoing. Any of the foregoing done by any Mortgagee shall be as effective to prevent a termination of this Agreement as if the samewould have been done by the Developer.
7. 7. 4 Notice of Default to Mortgagee: Right of Mortgagee to Cure.
Each Mortgagee shall, upon written requestto City be entitled to receive written notice from the City of the result of the Annual review and of any default by Developer of its obligations set forth in this Agreement simultaneously with the delivery of such notices to the Developer. Each Mortgagee shall have the right, but not an obligation, to cure such default within ninety (90) days after receipt of such notice or, if such default can only be remedied or cured by such Mortgagee upon obtaining possessionof the Property, such Mortgagee shall have the right to seek or obtain possession with diligence and continuity through a receiver or otherwise, and to remedy or cure suchdefault within ninety ( 90) days after obtaining possession, and, except in caseof emergency or to protect the public health or safety as determined by the City in its reasonablediscretion, City may not exercise any of its remedies set forth in this Agreement until expiration of such ninety ( 90) day period whether commencing upon receipt of notice or upon obtaining possession of the interests covered by a Mortgage, as applicable; provided, however, that in the case of a default which cannot with diligence be remedied or cured or the remedy or cure of which cannot be commenced within such ninety ( 90) day period, the Mortgagee shall have such additional time as is reasonably necessary to remedy or cure such default. Any notice of termination delivered in violation of this Section 7. 7. 4 shall be rendered void. In any casewhere, sixty ( 60) days after receipt by the Mortgagee of the notice of the Developer' s default, the holder of any Mortgage creating a lien or encumbrance upon the Property, or any part thereof, has not exercised the option to cure, or, if it has exercised the option, is not proceeding diligently with the cure, the City may proceed with termination of this Agreement and any further obligations of City hereunder.
7. 7. 5 Bankruptcy. Notwithstanding the foregoing provisions of this Section 7.7, if any Mortgagee is prohibited from commencing or prosecuting foreclosure or other appropriate proceedings in the nature thereof by any injunction issued by any court or by reason of any action by any court having jurisdiction of any bankruptcy or insolvency proceeding involving Developer, the times specified in Section 7.7.4 for commencing or prosecuting foreclosure or other proceedings shall be extended for the period of the prohibition. In addition, if this Agreement is rejected or otherwise terminated in connection with any such proceeding, then upon the request of any mortgagee, a new development agreementupon the sameterms and conditions setforth in this Agreement may be enteredinto between such Mortgagee and City. 18 7. 7. 6 Termination Subject to Mortgaizee Rights. All rights of the City to terminate this Agreement, vis- a-vis the Mortgagee, as a result of the occurrence of any default shall be subject to, and conditioned upon, the City having first given to each Mortgagee written notice of the default as required under 7.7.4 above, and all Mortgagees having failed to remedy such default or acquire Developer' s interests hereunder, or having failed to commence foreclosure or other appropriate proceedings in the nature thereof as set forth in Section 7. 7.4 above.
7. 7. 7 No Cancellation. There shall be no cancellation, surrender or modification of this Agreement by joint action of the Parties without a minimum of ninety 90) days prior written notice to each Mortgagee who has requested such notice.
7. 7. 8 New Agreement Upon Default by Developer. City agreesthat in the event of termination of this Agreement by reason of a default by Developer, the City will enter into a new development agreement with the most senior Mortgagee whose Mortgage encumbers this Agreement requesting a new development agreement for the remainder of the term of this Agreement, such new agreementbeing effective as of the date of such termination, and containing suchterms, provisions, covenantsand agreementsasherein contained, provided:
a) The senior Mortgagee shall make written request upon City for such new development agreement within thirty ( 30) days after the date of termination; b) The senior Mortgagee shall pay to the City at the time of the execution and delivery of such new development agreementany and all sums which would, at the time of the execution and delivery thereof, be due and unpaid pursuant to this Agreement but for its termination; including any expenses, attorneys' fees and costs, to which the City was subjected by reason of such default;
c) The senior Mortgagee shall perform and observe all
covenants herein contained on Developer' s part to be performed, and shall further remedy any other conditions which Developer was obligated to perform under the terms of this Agreement, and to the extent that sameare curable or may be performed by the senior Mortgagee; and d) Notwithstanding anything to the contrary expressed or implied elsewhere in this Agreement, any new development agreement made pursuant to this Section shall be superior to any Mortgage to the sameextent asthis Agreement.
7. 7. 9 Separate Agreement. The City shall, upon request, execute, acknowledge and deliver to each Mortgagee an agreement prepared at the sole cost and expense of the Developer, ( including related legal fees incurred by the City) in form satisfactory to each Mortgagee and City, between City, Developer and the Mortgagee(s), confirming all of the provisions hereof and/ or such other documents containing terms and provisions customarily required by Institutional Lenders in connection with such financing, provided, however, the City shall not be obligated to approve any terms that would impair or adversely affect the rights and obligations of the City, or otherwise amend this Agreement and/ or the obligations of the Developer as set forth in this Agreement
IL•:
7. 7. 10 Material Notices. The Developer shall give all Mortgagees notice of any Litigation and the parties hereby consent to intervention in such Litigation by the Mortgagee. In the event any Mortgagee shall not elect to intervene or become a party to the proceedings, such Mortgagee shall be provided notice and a copy of any award or decision made in connection therewith.
7. 7. 11 Mortga eight to Assign. Foreclosure of any Mortgage, or any sale thereunder, whether by judicial proceedings or by virtue of any power contained in the Mortgage, or any conveyance of the interest of Developer hereunder to any Mortgagee or its designee through, or in lieu of, foreclosure or other appropriate proceedings in the nature thereof, shall not require the consent of the City or constitute a breach of any provision of or a default under this Agreement; and upon such foreclosure, sale or conveyance, the City will recognize the purchaser or other transferee in connection therewith as the Developer hereunder provided that such purchaser, assignee or other transferee has a net worth, relevant experience, and evidence of financing sufficient to enable such entity to carry out this function, and otherwise conforms to the requirements of Section 7. 6 hereof.
7. 8 Covenants. The provisions of this Agreement shall constitute covenants which run with the land comprising the Property for the benefit thereof and as a burden thereon, and, subject to the restrictions on transfer as set forth in Section 7. 6, the burdens and benefits hereof shall bind and inure to the benefit of all assignees, transferees and successors to the parties.
7. 9 Implementation. Upon satisfactory completion by Developer of all required applications and payment of applicable Processing Fees and Charges, including the fee for processing this Agreement, if Developer proceeds with the Project, the City and Developer shall commenceand diligently processall required stepsnecessaryfor the implementation of this Agreement and development of the Project in accordance with the terms of this Agreement.
Developer shall, in a timely manner, provide the City with all documents, plans and other information necessaryfor the City to carry out its processing obligations hereunder.
7. 10 Relationship of the Parties. It is specifically understood and agreedby and between the Partieshereto that the Project is a private development, that neither Party is acting as the agent of the other in any respecthereunder, and that eachParty is an independentcontracting entity with respectto the terms, covenantsand conditions contained in this Agreement. The only relationship between the City and the Developer is that of a government entity regulating the development of private property and the owner of such private property. Further, the City and Developer hereby renounce the existence of any form of joint venture or partnership between them and agreethat nothing herein or in any document executed in connection herewith shall be construedasmaking the City and Developer joint venturers or partners.
7. 11 Cooperation in the Event of Third Party Litigation. In the event legal action is instituted by a third party, including any other governmental entity or official challenging the validity or enforceability of any provision of this Agreement, or the Existing Approvals vested pursuant to this Agreement, other actions taken pursuant to CEQA, or any other action by either Party in properly performing hereunder, the Parties hereby agree to affirmatively cooperate with each other in defending said action and the validity of each 20 provision of this Agreement; provided, however, that Developer agrees to and shall defend, indemnify, save and hold the City and its elected and appointed representatives, boards, commissions, offices, agents, employees, consultants and attorney' s ( collectively, the " City" in this section 7. 11) harmless from any and all claims, costs and liability, including without limitation, court costs and attorneys' fees awardedto any party, to the extent they result from any such Litigation, and shall reimburse the City for its actual costs in defense of the action or proceeding, including, but not limited to thetime andexpensesof the City Attorney's Office and anyconsultants. As theindemnifyingPartyandprovidedthatDeveloperdemonstratesto City, to City' s reasonablesatisfaction, that Developerhas the financial wherewithalto indemnify the City hereunderat the time of any such Litigation, Developer shall at all times retain final authority andcontrol over all documentsto be filed in suchLitigation andnotwithstandingthe provisions of this Section 7. 11, the City shall be deemedto have waived its rights to be indemnified hereunderif the City settlesany Litigation, in whole or in part, or files any documents in such Litigation without Developer' s prior written approval, which approval shall not be unreasonably withheld. This section shall survive any judgment invalidating all or any part of this Agreement. The Developer shall be entitled to choose legal counsel to defend against anysuchlegalactionandshallpayanyattorneys' feesawardedagainsttheCity or theDeveloper, or both, resulting from any such legal action. The Developer shall be entitled to any award of attorneys' fees arising out of any such legal action.
7. 12 Notices. Any notice or communicationrequiredhereunderbetweenthe City andDevelopermustbe in writing, andmaybe giveneitherpersonally, by registeredor certified mail, return receipt requestedor by overnight courier. If given by registered or certified mail, the same shall be deemed to have been delivered and received on the first to occur of i) actualreceiptby anyof theaddressesdesignatedbelowasthePartyto whomnoticesaretobe sent, or ( ii) five ( 5) days after a registered or certified letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail. If personally delivered or deliveredby courier, a noticeshallbedeemedto havebeendeliveredwhenreceivedby the Party to whom it is addressed. Any Party hereby may at any time, by giving ten ( 10) day' s written notice to the other Party hereto, designateany other addressin substitution of the address, or any additionaladdress, to which suchnoticeor communicationshall be given. Such notices or communications shall be given to the Parties at their addresses set forth below:
If to City:
City Clerk
City of Anaheim
200 South Anaheim Blvd., Suite 217
Anaheim, CA 92803
If to Developer:
Jeffery Anglada
Good Hope International
3350 Avenue of the Arts
Costa Mesa, CA 92626
21 With Copies to:
City Attorney, City of Anaheim
City of Anaheim
200 South Anaheim Blvd., Suite 356
Anaheim, CA 92803
With Copies to:
John A. Ramirez, Esq.
Rutan & Tucker, LLP
611 Anton Blvd, 14th Floor
Costa Mesa, CA 92626
7. 13 Recordation. The City' s Clerk shall record a copy of this Agreement with the Registrar -Recorder of Orange County within ten ( 10) business days following the later to occur of ( i) execution by both parties, or ( ii) the Effective Date of the Authorizing Ordinance.
To the extent that the Property consists of property under Lease by Developer, this Agreement shall encumber only the leasehold interest and shall not constitute an encumbrance upon the estate in fee.
7. 14 Developer Hold Harmless. Developer hereby agrees to and shall indemnify, save, hold harmless and defend the City, and its elected and appointed representatives, boards, commissions, officers, agents, employees, consultants and attorneys collectively, the " City" in this Section 7. 14), from any and all claims, costs, and liability of any kind which may arise, directly or indirectly, from ( i) any of Developer's acts or omissions under, related to, or in any respect connected with this Agreement and/or the development, ownership or possession), and operation of the Property and/ or the Project, and/or Developer' s activities on the Property ( or the activities of the Developer' s employees, contractors, subcontractors, agents, representatives, lessees, licensees, guests, invitees, successors, assigns or independent contractors on the Property), including without limitation the construction of the Project or the use or condition of the Project; ( ii) any claim arising from the ownership ( or possession), operation or use of the Property and/or the Project, including any claim relating to or arising from the presence on or under, or the escape, seepage, leakage, spillage, discharge, emission, or release on or from the Property and/or the Project of any Hazardous Materials, and any losses and liabilities arising from or related to any governmental requirements applicable to Hazardous Materials located on the Property. Nothing in this Section shall be construed to mean that Developer shall hold the City harmless and/or defend it to the extent that such claims, costs or liability arise from the negligent acts, or negligent failure to act, on the part of the City. City agrees that it shall fully cooperate with Developer in the defense of any matter in which Developer is defending and/or holding the City harmless and at no cost to City. Notwithstanding anything in this Agreement which is or appearsto be to the contrary, the obligations set forth herein shall survive the Term, termination or earlier expiration of this Agreement.
7. 15 Insurance. Without limiting its obligation to hold the City harmless, Developer shall provide and maintain at its own expense, at all times during the Term the following program of insurance concerning its operations hereunder. The insurance shall be placed with California -admitted insurers that carry a Best's rating equal to A VII or higher. The program of insurance provided shall specifically identify this Agreement and shall contain expressconditions that the City is to be given written notice at least thirty ( 30) days prior to any modification or termination of coverage. Such insurance shall be primary to and not contributing with any insurance or self-insurance maintained by the City, shall name the City, its officers, officials, employees, representatives and agents, as additional insureds, shall be written on a comprehensive or commercial general liability insurance form, and shall include coverage for, but not limited to. Completed Operations, Premises/ Project Site Operations, Products/ Completed Operations, Contractual, Independent Contractors Broad Form Property Damage, and Personal Injury, with a per occurrence limit of not less than two million dollars 2, 000, 000) written on an occurrence basis.
7. 16 Successors and Assigns. Subject to the limitations on transfer set forth in this Agreement, all of the provisions, agreements, rights, powers, standards, terms, covenants 22 and obligations contained in this Agreement shall be binding upon and shall inure to the benefit of the Parties, and their respective successors (by merger, consolidation or otherwise), assigns and transferees, and all persons or entities acquiring the Property or any portion thereof or any interest therein, whether by sale, operation of law, or in any manner whatsoever.
7. 17 Severability. If any provisions, conditions, or covenants of this Agreement, or the application thereof to any circumstances of either Party, shall be held invalid or unenforceable, the remainder of this Agreement or the application of such provision, condition, or covenant to persons or circumstances other than those as to whom or which it is held invalid or unenforceable shall not be affected thereby and shall be valid and enforceable to the fullest extent permitted by law.
7. 18 Waiver. No waiver of any provision of this Agreement shall be effective unless in writing and signed by the Party against whom enforcement of a waiver is sought and such waiver refers expressly to the Section containing the waived provision. No waiver of any right or remedy in respect of any occurrence or event shall be deemed a waiver of any right or remedy in respectof any other occurrenceor event.
7. 19 Third Party Beneficiaries. There are no other third party beneficiaries to this Agreement and this Agreement is not intended, and shall not be construed to benefit or be enforceable by any other personsor entities other than the Parties.
7. 20 Expedited Processing. Developer and City agree to cooperate in the expedited processing of any legal action seeking mandamus, specific performance, declaratory relief or injunctive relief, to set court dates at the earliest practicable date( s) and not cause delay in the prosecution/ defense of the action, provided such cooperation shall not require any Party to waive any rights.
7. 21 Requests for Payment. With respect to any requests by the City for payment of amounts due under this Agreement, Developer retains its right to review any invoices or requests for payments submitted by the City pursuant to this Agreement. Developer shall review and reasonably approve such invoices or requests for payment or shall identify any disputed amounts within twenty ( 20) days after receipt. At Developer' s request, the City shall provide Developer with reasonableinformation or back-up materials supporting such invoices or requestsfor payment at City offices, with reasonablenotice, during businesshours. In the event of any disputed invoices or requests for payment, Developer shall timely pay all amounts not disputed.
7. 22 Entire Agreement. This Agreement and the documents, agreements and exhibits referenced herein or attached hereto set forth and contain the entire understandings and agreements of the parties, and there are no oral or written representations, understandings or ancillary covenants, undertakings or agreements which are not contained or expressly referred to herein and no testimony or evidence of any such representations, understandings, or covenants shall be admissible in any proceedings of any kind or nature to interpret or determine the provisions or conditions of this Agreement.
23 7. 23 Conflict of Laws. With the exception of the Force Majeure provisions set forth in Section 7.3 hereof, it is agreed by the Parties that the obligations and conditions contained in the Existing Approvals and Mitigation Measures govern the development of the Property. To the extent that any provisions of this Agreement may conflict with any of the obligations, conditions or mitigations imposed on Developer pursuant to the Existing Approvals and Mitigation Measures, the Existing Approvals and Mitigation Measures shall govern.
7. 24 Legal Advice; Neutral Interpretation; Headings and Table of Contents.
Each Party has received independent legal advice from its attorneys with respect to the advisability of executing this Agreement and the meaning of the provisions hereof. The provisions of this Agreement shall be construed as to their fair meaning, and not for or against any Party basedupon any attribution to such Party asthe sourceof the languagein question. The headings and table of contents used in this Agreement are for the convenience of reference only and shall not be usedin construing this Agreement.
7. 25 Counterparts. This Agreement is executed in six duplicate originals, each of which is deemed to be an original.
7. 26 Organization and Standing of Developer. Developer is a corporation duly organized, qualified and validly existing and in good standing under the laws of the State of California, and has all requisite power and authority to enter into and perform its obligations under this Agreement. The Developer has provided to the City true and complete copies of all of its governing documents, and the percentageownership interests reflected therein are accurateas of the date of this Agreement.
7. 27 Authorization and Consents. The execution, delivery and performance of this Agreement is consistent with the Developer' s articles of incorporation and bylaws and has been duly authorized by all necessaryaction of the Developer' s Board of Directors.
Remainder of page intentionally left blank. Signatures appear on next page.] 24 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first written below.
Dated: I / I n Zi c " CITY"
ATTEST:
LINDA N. ANDAL, CITY CLERK
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
By: j; U
Theodoref. teynolds
AssistantkUy Attorney
116203- v7/ TJR
25 CITY OF ANAHEIM,
a municipal corporation and charter city
By.
11'c' --ii - 1e- Kring, Maypr{ Pro Tem
DEVELOPER"
GOOD HOPE INTERNATIONAL,
a California Corporation
By: 015
Printed Name: N* yzlt Ch"
Title: D ire t}'. lr,
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 ORANGE
On 08/ 18/ 2016 before me, Jennifer L. Hall, Notary Public, personally appeared Lucille Kring
who proved to me on the basis of satisfactory evidence to be the personw whose namek&) is/ am subscribed to the within instrument and acknowledged to me that lie/ she/they executed the same in his/ her/taaeirauthorized capacity0es), and that by hWherft * e signature( s-)' on the instrument the person*,, or\the entity upon behalf of which the person(, 9Tacted, 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
JENNIFER 1. HAIL
Commission # 2044930
Notary Public - California
Orange County
M Comm. Ez ires Oct 11, 2017
Seal ]
CALIFORNIA ALL- PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 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 Orange )
On August 10, 2016 before me, Mia R. Slobodien, Notary Public , personally appeared MARK CHAN ,
who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person 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 MIA 11. iLOWDOEN
correct.
Cann * Ow * 2102814
NohryPabk- CoNfoF h
6MvCa=.Ex* nMW12. 2019
WITNESS my hand and official seal. orsop Cooney
Signature: OW43- L,*_tom ,
Mia R. Slobodien, Notary Public
Place Notary Seal Above OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document: DEVELOPMENT AGREEMENT Document Date: August 10, 2016 Number of Pages: Signer( s) Other Than Named Above:
Capacity( ies) claimed by Signer( s)
Signer' s Name: MARK CHAN
0 Corporate Officer — Title( s): DIRECTOR
Partner — Limited General
Individual Attorney in Fact
Trustee Guardian or Conservator
Other:
Signer Is Representing: GOOD HOPE INTERNATIONAL, a California corporation 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
County of
On , before me,
insert name and title of the officer)
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, executedthe instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraphis true and correct.
WITNESS my hand and official seal.
Signature ( Seal)
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
County of
On , before me,
insert name and title of the officer)
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, executedthe instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraphis true and correct.
WITNESS my hand and official seal.
Signature ( Seal)
APN: 082- 271- 10
082- 271- 09
0 J
0 m
Q
N
EXHIBIT " A"
DEV NO. 2015- 00120
W DISNEY WAY
EXHIBIT " B"
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL 1:
THE EAST 660. 00 FEET OF THE WEST 720. 00 FEET OF THE NORTH 585. 00 FEET OF THE SOUTH 1260 FEET OF THE SOUTHEAST QUARTER OF SECTION 22, TOWNSHIP 4 SOUTH, RANGE 10 WEST, IN THE RANCHO SAN JUAN CAJON DE SANTA ANA, IN
THE CITY OF ANAHEIM, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 51, PAGE 10 OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT THAT PORTION THEREOF DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT SOUTH 00 13' 22" EAST 15. 03 FEET FROM THE NORTHWEST
CORNER OF THE ABOVE DESCRIBED PROPERTY SAID POINT BEING ON THE EASTERLY LINE OF HARBOR BOULEVARD 120 FEET WIDE; THENCE SOUTH 0° 13' 22" EAST ALONG SAID EASTERLY LINE 100. 08 FEET; THENCE NORTH 89° 54' 30" EAST PARALLEL TO THE NORTHERLY LINE OF ABOVE DESCRIBED PARCEL 111. 34 FEET; THENCE NORTH 0° 13' 22" WEST, PARALLEL TO THE EASTERLY LINE OF HARBOR BOULEVARD 30. 75 FEET; THENCE NORTH 89° 54' 38" EAST 38. 66 FEET; THENCE NORTH 00 13' 22" WEST 84. 36 FEET TO A POINT ON THE SOUTHERLY LINE OF FREEDMAN WAY, 60. 00 FEET WIDE; THENCE ALONG THE SOUTH LINE OF SAID FREEDMAN WAY, SOUTH 89° 54' 30" WEST 134. 97 FEET TO THE BEGINNING OF A CURVE CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 15. 00 FEET;
THENCE WESTERLY AND SOUTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 900 07' 52" A LENGTH OF 23. 60 FEET TO THE TRUE POINT OF BEGINNING OF THIS DESCRIPTION.
ALSO EXCEPTING THEREFROM THAT PORTION OF SAID LAND DESCRIBED IN THAT GRANT DEED TO THE CITY OF ANAHEIM RECORDED FEBRUARY 11, 1999 AS INSTRUMENT NO. 19990101952, OFFICIAL RECORDS OF SAID COUNTY. 1032/ 032420- 0001
29509292. 1 a07/ 28/ 16
PARCEL 2:
BEGINNING AT A POINT ON THE EASTERLY LINE OF HARBOR BOULEVARD 120. 00 FEET WIDE AND 60. 00 FEET SOUTH OF THE NORTHERLY LINE OF THE FOLLOWING DESCRIBED PARCEL:
BEGINNING AT A POINT ON THE EAST LINE OF SECTION 22, TOWNSHIP 4 SOUTH, RANGE 10 WEST, SAN BERNARDINO MERIDIAN, DESIGNATED BY A STAKE MARKED " A", 675 FEET NORTH OF THE SOUTHEAST CORNER OF SAID SECTION 22; THENCE NORTH 645 FEET ALONG THE EAST LINE OF SAID SECTION 22, TO A POINT DESIGNATED BY A STAKE MARKED " B" AT THE JUNCTION OF THE EAST LINE OF SAID SECTION 22, WITH THE SOUTH LINE OF LAND FORMERLY OWNED BY H. D. PELHEMUS; THENCE WEST 2640 FEET PARALLEL WITH THE SOUTH LINE OF SAID SECTION 22, AND AT A UNIFORM DISTANCE THEREFROM OF 1320 FEET TO A POINT DESIGNATED BY A STAKE MARKED " C"; THENCE SOUTH 645 FEET PARALLEL WITH THE EAST LINE OF SAID SECTION 22 AND AT A UNIFORM DISTANCE THEREFROM OF 2640 FEET TO A POINT DESIGNATED BY A STAKE MARKED " D", 675 FEET DISTANT FROM AND NORTH OF THE SOUTHWEST CORNER OF THE SOUTHEAST QUARTER OF SAID SECTION 22; THENCE EAST 2640 FEET PARALLEL WITH THE SOUTH LINE OF SAID SECTION 22 AND AT A UNIFORM DISTANCE THEREFROM OF 675 FEET TO THE POINT OF BEGINNING. CONTINUING SAID DESCRIPTION SOUTH 00 13' 22" EAST 15. 03 FEET ALONG THE EASTERLY LINE OF HARBOR BOULEVARD TO THE TRUE POINT OF BEGINNING; THENCE SOUTH 0° 13' 22" EAST ALONG SAID EASTERLY LINE 100.08 FEET; THENCE NORTH 89° 54' 30" EAST PARALLEL TO THE NORTHERLY LINE OF ABOVE DESCRIBED PARCEL 111.34 FEET; THENCE NORTH 0° 13' 22" WEST, PARALLEL TO THE EASTERLY LINE OF HARBOR BOULEVARD 30. 75 FEET; THENCE NORTH 89° 54' 38" EAST 38. 66 FEET; THENCE NORTH 00 13' 22" WEST 84. 36 FEET TO A POINT ON THE SOUTHERLY LINE OF THE NORTHERLY 60. 00 FEET OF THE ABOVE DESCRIBED PARCEL; THENCE ALONG THE SOUTH LINE OF SAID NORTHERLY 60. 00 FEET SOUTH 890 54' 30" WEST 134. 97 FEET TO THE BEGINNING OF A CURVE CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 15.00 FEET; THENCE WESTERLY AND SOUTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 900 07' 52" A LENGTH OF 23. 60 FEET TO THE TRUE POINT OF BEGINNING OF THIS DESCRIPTION.
EXCEPTING THEREFROM THAT PORTION OF SAID LAND DESCRIBED IN THAT GRANT DEED TO THE CITY OF ANAHEIM RECORDED FEBRUARY 11, 1999 AS INSTRUMENT NO. 19990101952, OFFICIAL RECORDS OF SAID COUNTY. 1032/ 032420- 0001
39509292. 1 a07/ 28/ 16
RECORDING REQUESTED BY
AND, WHEN RECORDED,
MAIL TO:
City of Anaheim
P. O. Box 3222
200 S. Anaheim Boulevard, Second Floor
Anaheim, California 92805
Attn: City Clerk
Recorded in Official Records, Orange County
Hugh Nguyen, Clerk - Recorder
1111111II11111111 1 N0 FEE
R 0 0 1 1 4 8 6 2 6 1$*
2020000064947 2: 36 pm 02114120
227 NCR2 A17 7
0. 00 0. 00 0. 00 0. 00 18. 00 0. 00 0. 000. 000. 00 0. 00 SPACE ABOVE THIS LINE FOR RECORDER' S USE ONLY.]
EXEMPT FROM FEES PURSUANT TO
CALIFORNIA GOVERNMENT CODE § 272383
AMENDMENT NO. 1
TO
DEVELOPMENT AGREEMENT NO. 2016- 00001
by and between
CITY OF ANAHEIM
and
GOOD HOPE INTERNATIONAL
RECORDING REQUESTED BY
AND, WHEN RECORDED,
MAIL TO:
City of Anaheim
P. O. Box 3222
200 S. Anaheim Boulevard, Second Floor
Anaheim, California 92805
Attn: City Clerk
C [
SPACE ABOVE THIS LINE FOR RECORDER' S USE ONLY.]
EXEMPT FROM FEES PURSUANT TO
CALIFORNIA GOVERNMENT CODE § 272383
AMENDMENT NO. I
TO
DEVELOPMENT AGREEMENT NO. 2016- 00001
by and between
CITY OF ANAHEIM
and
GOOD HOPE INTERNATIONAL
AMENDMENT NO. 1 TO
DEVELOPMENT AGREEMENT
NO. 2016- 00001
This AMENDMENT NO. 1 TO DEVELOPMENT AGREEMENT NO. 2016- 00001 ( this Amendment No. I") datedfor purposesof identificationonlyasof J^ i t9 , 2v LO(
the" Date of this
Amendment No. 1"), is made and entered into between the CITY OF ANAHEIM, a municipal corporation and charter city (" City"), on one hand and GOOD HOPE INTERNATIONAL, a California corporation (" Developer"), on the other hand.
RECITALS
A. The City and Developer entered into Development Agreement No. 2016-00001, dated as of August 18, 2016 and recorded in the Official Records of Orange County, California on August 29, 2016 as Instrument No. 2016000409949 ( the " Development Agreement") with respect to the real property (" Property") described in the " Legal Descriptions" which are attached as Exhibit A and incorporated by this reference.
B. In addition to the Property, the parentcompanyof Developeris the owner of the Westin Anaheim Resort located at 1030 W. Katella Ave. Both properties were slated for redevelopment under Anaheim' s AAA Four Diamond Hotel Incentive Program, which was established to encourage the development of AAA rated 4- and 5 -Diamond hotels within the City' s Resort District.
C. Subsequent to City Council approval, both the Development Agreement and the development agreement for the Westin Anaheim Resort were the subject of separate referenda. Although Developer originally intended to redevelop the Property prior to the developmentof the Westin Anaheim Resort, as a result of the referenda, Developer determined to postpone the Project and to first move forward with the Westin Anaheim Resort project, due to its greater priority and benefit to the City. That project is well underwayandscheduledto be completedin 2020.
D. On November 8, 2018, the City' s voters voted in favor of City MeasureJ, reaffirming the City Council' s approval of the Development Agreement. The Development Agreement thereafter went into effect on December 14, 2018.
E. At the November 8, 2018 election, the voters also approved Measure L, which substantially changed the economic model on which the proposed hotel redevelopments were based, by significantly increasinglabor costsat hotelsbuilt under public-private partnershipswith the City.
F. Developer has requested an extension of the Development Agreement to allow the Westin Anaheim Resort to open, reach stabilization, and allow ownership to evaluatethe impact of the new economic model imposed by the passage of Measure L, prior to proceeding with the Project.
Developer has thus requested the City amend the Basic Term of the Development Agreement, set forth in Section 7.2. 1 of the Development Agreement, to extend the existing term of the Development Agreement by 5 years.
G. The City and Developer ( each, a " Party" and collectively, the " Parties") intend, in this Amendment No. 1, to amend the Development Agreement as stated in Recital F.
H. Unless otherwise defined in this Amendment No. 1, all capitalized terms shall have the meanings ascribed to such terms in the Development Agreement. Copies of the Development Agreement are available as a public record in the office of the City Clerk located at 200 South Anaheim Boulevard, Anaheim, California.
NOW, THEREFORE, FOR AND IN CONSIDERATION OF THE MUTUAL PROMISES,
COVENANTS AND CONDITIONS CONTAINED HEREIN, THE PARTIES AGREE AS FOLLOWS:
SECTION 1. AMENDMENT OF DEVELOPMENT AGREEMENT. The Basic Term set forth Section 7.2.1 of the Development Agreement is deleted and replaced with the following:
7. 2. 1 Basic Term. The Term of this Agreement shall commence on the Effective Date of this Agreement and shall extend for a period of ten ( 10) years after the Effective Date, unless extended or earlier terminated as provided herein.
SECTION 2. INTEGRATION. Except as expresslyprovided to the contrary herein, all provisions of the Development Agreement, as amended, remain in full force and effect. The Development Agreement and this Amendment No. 1 are collectively referred to as the " Agreement'. The Agreement integrates all of the terms and conditions of agreement between the Parties and supersedes all negotiations or previous agreements between the Parties with respect to the subject matter hereof.
SECTION 3. EFFECTIVE DATE. This Amendment No. 1 shall take effect upon the date the ordinance of the City Council of the City approving this Amendment No. 1 takes effect.
Signatures shown onfollowing page)
IN WITNESS WHEREOF, THE PARTIES HAVE EXECUTED THIS AMENDMENT NO. 1 AS OF THE RESPECTIVE DATES STATED BELOW.
Dated: i/ / 17 A O 4 0 -
ATTEST
CITY ITY OF ANAHEIM
By:
Name: Theresa Bass
APPROVED AS TO FORM:
ROBERT FABELA, CITY ATTORNEY
By: 7NA41--"
Name: Leonie Mulvihill
CITY"
CITY OF ANAHEIM
a municipal rporation and charter
By:
jay* of the ityZXnahfM
yor Harry S. Si
Signatures continue onfollowing page)
DEVELOPER"
GOOD HOPE INTERNATIONAL
a Califarnia Corporation
Dated: By: W,.al.
Mark Chan, Director
A NotaryPublicorotherofficercompletingthiscertificateverifiesonlytheidentityof 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
County of Orange
On e . 1 . q, 019 , beforeme, 3 w m4 t -t•` ., Cwr t;, injert name and title of the officer
Notary Public, personally appeared LNOJ`-- ,
who provedto me on thebasisof satisfactoryevidenceto betheperson(g) whosenamew isAftre subscribed to the within instrument and acknowledged to me that he/ o executed the same in his4erk4teir authorized capacity(•ies , and that by hiAer- 4keir signature(.&) on the instrument the person(), or the entity uponbehalf of which thepersons) acted, executedthe instrument.
I certify under PENALTY OF PERJURYunderthe laws of the Stateof California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature ( Seal)
SHELBYM. DEAN
Commission No. 2M742
NOTARY PUBLIC - CALIFORNIA
ORANGE COUNTY
6MIC-- E JULY 2e, 2023
A Notary Public or otherofficer completingthis certificateverifies 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
County of Orange
On \ x J , before me,
3 ( insert name and title of the officer)
Notary Public, personally appeared ,
who provedto meon thebasisof satisfactoryevidenceto b theperson(s) whosename(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorizedcapacity(ies), andthat by his/her/their signature(s) on the instrument theperson(s), or the entity uponbehalf of which theperson(s) acted, executedthe instrument.
I certify underPENALTY OF PERJURY underthe laws of the Stateof California that the foregoing paragraph is true and correct.
JENNIFER L. HALL
y Notary Public - California
WITNESS my hand and official seal. Orange County >
Commission # 2213903
My Comm. Expires Oct 11, 2021
Signature ( Seal)