Recorded in Official Records, Orange County
Hugh Nguyen, Clerk-Recorder
Recording Requeb-iiia
NO American lite Company
slao
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
City Council
City of Anaheim
c/o City Clerk
P.O. Box 3222
Anaheim, California 92805
III I 11 111 111 OHM 11 NII II 438.00 $ R 0 0 0 7 9 6 2 4 4 3 $ *
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0.00 0.00 0.00 0.00 429.00 0.00 0.00 0.00
<- 2- (SPACE ABOVE LINE FOR RECORDER'S USE ONLY.)
AMENDED AND RESTATED
DEVELOPMENT AGREEMENT NO. 2005-00008
BETWEEN
TM CITY OF ANAHEIM
AND
PT METRO, LLC
Recording Requested By
NOrth AMeriCan Title Company
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
City Council
City of Anaheim
do City Clerk
P.O. Box 3222
Anaheim, California 92805
- 375 C>
(SPACE ABOVE LINE FOR RECORDER'S USE ONLY.)
AMENDED AND RESTATED
DEVELOPMENT AGREEMENT NO. 2005-00008
BETWEEN
THE CITY OF ANAHEIM
AND
PT METRO, LLC
AMENDED AND RESTATED
DEVELOPMENT AGREEMENT NO. 2005-00008
BETWEEN
THE CITY OF ANAHEIM
AND
PT METRO, LLC.
TABLE OF CONTENTS
RECITALS
PAGE
1 Section 1. DEFINITIONS 9
1.1 Assessment District 9
1.2 Authorizing Ordinance 9
1.3 Builder Tentative Map 9
1.4 City 9
1.5 City Agency or City Agencies 9
1.6 Community Improvements 10
1.7 Development 10
1.8 Development Agreement 10
1.9 Development Agreement Date 10
1.10 Development Agreement Statute 10
1.11 Development Approvals 10
1.12 Development Area 10
1.13 Enabling Ordinance 10
1.14 Existing Land Use Regulations 11
1.15 Final Site Plan 11
1.16 First Certificate of Occupancy 11
1.17 Gross Floor Area/GFA 11
1.18 Interim Development Fees 11
1.19 Impact Fees 11
1.20 Master Final Tract Map 11
1.21 Master Site Plan 12
1.22 Master Tentative Map 12
1.23 Mortgage 12
1.24 Mortgagee 12
1.25 Owner 12
1.26 Parking Areas 12
1.27 Permitted Development 12
1.28 Platinum Triangle 12
1.29 Procedures Resolution 12
1.30 Project 12
1.31 Property 12
1.32 Public Improvements 13
i
1.33 Storm-water Management Improvements 13
1.34 Support Commercial Uses 13
1.35 Tel in 13
1.36 Tract No. 16859 13
1.37 Zoning Code 13
Section 2. TERM 13
Section 3. BINDING COVENANTS 14
Section 4. EFFECT OF AGREEMENT 14
Section 5. PROJECT LAND USES 15
Section 6. PERMIT1ED DEVELOPMENT 15
6.1 Description of Permitted Buildings 15
6.2 Final Site Plans 15
6.3 Parking Areas 15
Section 7. DENSITY OF PERMITTED BUILDINGS 16
Section 8. ENFORCEMENT 16
Section 9. PUBLIC IMPROVEMENTS AND SERVICES 16
9.1 Public Park 17
9.2 Utilities (Water, Electrical, Gas, Sewer, & Drainage) 18
9.2.1 Water Service 18
9.2.2 Sanitary Sewer and Storni Drains 18
9.3 Timing, Phasing and Sequence of Public Improvements and Facilities 19
9.4 Traffic Circulation Improvements 20
9.5 Permits to Enter City Property 20
9.6 Library/Community Center 20
Section 10. TRANSFER OF DEVELOPMENT RIGHTS 23
Section 11. REIMBURSEMENT PROVISION 24
Section 12. DEDICATIONS AND EXACTIONS 24
Section 13. FEES, TAXES AND ASSESSMENT 25
13.1 Fees, Taxes and Assessments 25
13.2 Platinum Triangle Interim Development Fees 25
13.2.1 Electrical Utilities Undergrounding Fee 26
13.2.2 General Plan and Environmental Processing Fee 26 ii
13.2.3 Library Facilities Fee 26
13.2.4 Park Fee 26
13.3 Excluded Development Fees 26
13.3.1 Water Utilities Fees 26
13.3.2 Electrical Utilities Fees 26
13.3.3 City Processing Fees 26
13.4 Platinum Triangle Infrastructure and/or Maintenance Assessment District 26
13.5 Accounting of Funds 27
13.6. Imposition of Increased Fees, Taxes or Assessments 27 Section 14. fiNIENTIONALLY OMII 1ED1 27
Section 15. NEXUS/REASONABLE RELATIONSHIP CHALLENGES 27 Section 16. TIMING OF DEVELOPMENT 27
Section 17. EXISTING USES 28
Section 18. FUTURE APPROVALS 28
18.1 Basis for Denying or Conditionally Granting Future Approvals 28
18.2 Standard of Review 28
18.3 Future Amendments to Master Site Plan 28
Section 19. AMENDMENT 29
19.1 Initiation of Amendment 29
19.2 Procedure 29
19.3 Consent 29
19.4 Amendments 29
19.5 Effect of Amendment to Development Agreement 29
Section 20. NON-CANCELLATION OF RIGHTS 29
Section 21. BENEFITS TO CITY 30
Section 22. BENEFITS TO OWNER 30
Section 23. UNDERTAKINGS AND ASSURANCES CONTEMPLATED AND PROMO l'ED BY DEVELOPMENT AGREEMENT STATUTE 30
Section 24. RESERVED AUTHORITY 31
24.1 State and Federal Laws and Regulations 31
24.2 Applicability of Unifonit Codes to All Permit Activity within the Project 31
24.3 Public Health and Safety 31
Ill
Section 25. CANCELLATION 32
25.1 Initiation of Cancellation 32
25.2 Procedure 32
25.3 Consent of OWNER and CITY 32
Section 26. PERIODIC REVIEW 32
26.1 Time for Review 32
26.2 OWNER's Submission 32
26.3 Findings; Non-Compliance; Right to Cure 32
26.4 Initiation of Review by City Council 33
Section 27. DEFAULTS, REMEDIES AND TERMINATION 33
27.1 Defaults 33
27.2 Notice of Default 33
27.3 Remedies 34
27.4 No Waiver 35
27.5 Joint and Several Liability 35
27.6 Specific Performance 36
27.7 Legal Actions; Jurisdiction and Venue 36
Section 28. MODIFICATION OR TERMINATION 36
28.1 Notice to OWNER 36
28.2 Public Hearing 36
28.3 Decision 36
28.4 Standard of Review 37
28.5 Implementation 37
28.6 Schedule for Compliance 37
Section 29. ASSIGNMENT 37
29.1 Right to Assign 37
29.2 Release upon Transfer 38
Section 30, NO CONFLICTING ENACTMENTS 38
Section 31. GENERAL 39
31.1 Force Maj eure 39
31.2 Construction of Development Agreement 39
31.3 Severability 39
31.4 Hold Harmless Agreement; Indemnity 40
31.5 Cooperation in the Event of Legal Challenge 40
31.6 Public Agency Coordination 41
31.7 Initiative Measures 41
31.8 Attorneys' Fees 42
31.9 No Waiver 42
iv
31.10 Authority to Execute 42
31.11 Notice 42
31.11.1 To Owner 42
31.11.2 To City 43
31.12 Captions 44
31.13 Consent 44
31.14 Further Actions and Instruments 44
31.15 Subsequent Amendment to Authorizing Statute 44
31.16 Governing Law 44
31.17 Effect on Title 44
31.18 Mortgagee Protection 44
31.19 Notice of Default to Mortgagee, Right of Mortgagee to Cure 45
31.20 Bankruptcy 45
31.21 Disaffirmance 45
31.22 No Third Party Beneficiaries 46
31.23 Project as a Private Undertaking 46
31.24 Restrictions 46
31.25 Recitals 46
31.26 Recording 46
31.27 Title Report 46
31.28 Entire Agreement 47
31.29 Successors and Assigns 47
31.30 OWNER' s Title of Property 47
31.31 Exhibits 47
31.32 Prevailing Wages 47
31.33 Organization and Standing of Owner 48
31.34 Authorization and Consents. 48
31.35 Time of the Essence 48
31.36 No Third Party Beneficiaries 48
LIST OF EXHIBITS
Exhibit "A" Legal Description of the Property
Exhibit "B" Master Site Plan
Exhibit "C" Conditions of Approval
Exhibit "D" Platinum Triangle Interim Development Fees Exhibit "D-1" Electrical Utilities Undergrounding Fee Exhibit "D-2" General Plan and Environmental Processing Fee Exhibit "D-3" Library Facilities Fee
Exhibit "D-4" Platinum Triangle Park Fees
Exhibit "E" [INTENTIONALLY OMITTED]
Exhibit "F" Preliminary Title Report
Exhibit "G" Term Extension Milestones
Exhibit "H" Infrastructure Phasing
Exhibit "I" Development Summary Table
AMENDED AND RESTATED
DEVELOPMENT AGREEMENT NO, 2005-00008
BETWEEN
THE CITY OF ANAHEIM
AND
PT METRO, LLC.
THIS AMENDED AND RESTATED DEVELOPMENT AGREEMENT ("Development --,_ Agreement" or "Agreement") is entered into this " 7- day of ,3 2015, by and between the CITY OF ANAHEIM, a charter city and municipal corporation, duly organized and existing under the Constitution and laws of the State of Cali fornia (hereinafter "CITY"), and PT METRO, LLC, a Delaware limited liability company (referred to herein as "OWNER"), pursuant to the authority set forth in Article 2.5 of Chapter 4 of Division I of Title 7, Sections 65864 through 65869.5 of the California Government Code (the "Development Agreement Statute").
RECITALS
This Development Agreement is predicated upon the following facts:
A. To strengthen the public planning process, encourage private participation in comprehensive planning, and reduce the economic risk of development, the Legislature of the State of California adopted the Development Agreement Statute. The Development Agreement Statute authorizes CITY to enter into binding development agreements with persons having legal or equitable interests in real property for the development of such property in order to, among other things: encourage and provide for the development of public facilities in order to support development projects; provide certainty in the approval of development projects in order to avoid the waste of resources and the escalation in project costs and encourage investment in and commitment to comprehensive planning which will make maximum efficient utilization of resources at the least economic cost to the public; provide assurance to the applicants of development projects (1) that they may proceed with their projects in accordance with existing policies, rules and regulations, subject to the conditions of approval or such projects and provisions of such development agreements, and (2) encourage private participation in comprehensive planning and reduce the private and public economic costs of development B. These Recitals refer to and utilize certain capitalized terms which are defined in this Development Agreement. The parties intend to refer to those definitions in conjunction with the use thereof in these Recitals.
C. CITY, as a charter city, has enacted Ordinance No. 4377 on November 23, 1982, which makes CITY subject to the Development Agreement Statute. Pursuant to Section 65865 of the Development Agreement Statute, CITY adopted Resolution No. 82R-565 (the "Procedures Resolution") on November 23, 1982. The Procedures Resolution establishes procedures and requirements for the consideration of development agreements upon receipt of an application.
D. On May 25, 2004, the Anaheim City Council approved General Plan Amendment No. 2004-00419, setting forth the CITY's vision for development of the City of Anaheim (the "General Plan Amendment"), and certified Final Environmental Impact Report No. 330, adopting Findings of Fact and a Statement of Overriding Considerations, and associated Mitigation Monitoring Plans (collectively, "FEIR No. 330"), in conjunction with its consideration and approval of the General Plan Amendment, an amendment of CITY' s Zoning Code, and a series of related actions.
E. C11 Y desires that the approximately 820-acre area generally bounded by the Santa Ana River on the east, the Anaheim City limits on the south, the Santa Ana Freeway (Interstate 5) on the west, and the Southern California Edison Company Easement on the north (hereinafter called "Platinum Triangle") be developed as a combination of high quality industrial, office, commercial and residential uses, as envisioned in the General Plan Amendment.
F. In order to carry out the goals and policies of the General Plan for the Platinum Triangle, on August 17, 2004, the City Council approved the Platinum Triangle Master Land Use Plan, setting forth the new vision for the Platinum Triangle.
G. To further implement the goals and policies of the General Plan for the Platinum Triangle, the City Council has established the Platinum Triangle Mixed-Use (PTMU) Overlay Zone (hereinafter the "PTMU Overlay Zone") consisting of approximately three hundred and eighty-three acres within the Platinum Triangle as depicted in the Platinum Triangle Master Land Use Plan to provide opportunities for high quality well-designed development projects that could be stand-alone projects or combine residential with non-residential uses including office, retail, business services, personal services, public spaces and uses, and other community amenities within the area.
H. On October 25, 2005, the Anaheim City Council certified Final Subsequent Environmental Impact Report No. 332, adopting a Statement of Findings of Fact, a Statement of Overriding Considerations and the Updated and Modified Mitigation Monitoring Program No. 106A (collectively, "FSER No. 332") to provide for the implementation of the Platinum Triangle Master Land Use Plan, and in conjunction with its consideration and approval of General Plan Amendment No. 2004-00420, Miscellaneous Case No. 2005-00089, Zoning Code Amendment No. 2004-00036 and a series of related actions.
I. On October 25, 2005, the Anaheim City Council found and determined that FSE1R No. 332, a revision to the Updated and Modified Mitigation Monitoring Program No. 106A to add new mitigation measure MM 5.10-7 thereto, and an Addendum to FSEIR No. 332, together with Mitigation Monitoring Plan No. 138, were, collectively, adequate to serve as the required environmental documentation for the "Original Development Approvals" (as defined below) and that no further environmental documentation needed to be prepared for said Original Development Approvals.
2 J. On or about November 8, 2005, the CITY and Lennar Platinum Triangle, LLC ("Developer") and Don H. Watson, Trustee of the Don H. Watson Family Trust; Julius Realty Corporation; Traffic Control Services, Inc.; Joselito D. Ong and Renee Dee Ong; Roger C.
Treichler and Vicki Treichler as Co-Trustees of the Treichler Family Trust; Robert Stovall Family Partnership, L.P., and Jennifer Leonard and Linda Gaffney, as Tenants in Common (collectively, the "Sellers") entered into that certain Development Agreement No. 2005-0008 as the Owner, which Development Agreement was recorded in the Official Records of Orange County, California ("Official Records") on December 13, 2005 as Instrument No. 2005000992876 (the "Original Development Agreement") with respect to that certain real property as legally described in Exhibit A, which is attached hereto and incorporated by this reference (herein referred to as the "Property"). Copies of the Original Development Agreement are available as a public record in the office of the City Clerk located at 200 South Anaheim Boulevard, Anaheim, California. The Original Development Agreement provided for the development of a Master Site Plan for the Property consisting of up to 2,681 residences with a mix of housing types, including high rise residential towers, street townhomes, podium townhomes and lofts, with 150,000 square feet of street-related retail commercial development, public park space and associated infrastructure to be developed in four phases (collectively, the "Original Project"). The Original Development Agreement provided for an initial Term of five (5) years, subject to extension thereof for up to three (3) additional five-year periods provided that certain development milestones were achieved, which were defined in Exhibit G thereto as "Term Extension Milestones".
K. Subsequent to the recordation of the Original Development Agreement, the fee title interest in and to the Property was transferred from, and the Original Development Agreement was assigned by, the Sellers to the Developer, making Developer the sole owner of the Property and the "Developer" and "Owner" under the ternis of the Original Development Agreement.
L. Prior to entering into the Original Development Agreement, certain development approvals and permits were approved by the CITY for the Property to provide for the orderly development of the Original Project. The Development Approvals for the Original Project consisted of (1) General Plan Amendment No. 2005-00434, to amend Figure LU-4 of the Land Use Element of the General Plan to re-designate an approximately 10.4-acre site from the Office- High land use designation to the Mixed-Use land use designation; (2) Miscellaneous Case No. 2005-00111 to amend the Platinum Triangle Master Land Use Plan to incorporate an approximately 10.4-acre site into the Platinum Triangle Mixed Use (PTMU) Overlay Zone, Katella District; (3) Miscellaneous Case No. 2005-00116 to rescind, in part, City Council Resolution No. 2004-00008 pertaining to Reclassification No. 2004-00127; (4) Reclassification No. 2005-00164, to reclassify an approximately 10.4-acre site from the I (Industrial) Zone to the I (PTMU Overlay) (Industrial-Platinum Triangle Mixed Use Overlay) Zone; (5) Zoning Code Amendment No. 2005-00042, to incorporate an approximately 10.4-acre site into the Platinum Triangle; (5) Conditional Use Permit No. 2005-04999, permitting residential tower structures up to 400 feet in height on a portion of the Property; (6) the Original Development Agreement; and (7) Tentative Tract Map No. 16859 for condominium purposes (collectively, the "Original 3 Development Approvals"). Additionally, in reliance on the Original Development Approvals, Owner constructed certain improvements on and about the Property.
M. Pursuant to Section 19 of the Original Development Agreement and Chapter 18.60 of the Anaheim Municipal Code, the Developer submitted a request to extend the term, as described in Section 2 of the Original Development Agreement, from an initial period of five (5) years to an initial period of ten (10) years and for revisions to the "Term Extension Milestones" as described in Exhibit G thereto, and also to clarify the proper name for the Owner in the Original Development Agreement.
N. The Developer's request for an amendment of the Original Development Agreement was approved by the City Council on December 16, 2008. Accordingly, on or about January 21, 2009, the CITY and Developer entered into that certain Amendment No. 1 to the Original Development Agreement, which was recorded in the Official Records on February 23, 2009 as Instrument No. 2009000081175 ("Amendment No. 1"). The Original Development Agreement and Amendment No. 1 shall be referred to herein as the "Existing Development Agreement".
The "Owner" under Amendment No. 1 was mistakenly defined to be Platinum Triangle Partners, LLC; however, Platinum Triangle Partners, LLC was not a signatory to Amendment No. 1. The Owner represents and warrants that the Developer changed its name to Platinum Triangle Partners, LLC by filing an amended and restated certificate of formation with the Secretary of State of the State of Delaware on May 22, 2006, and that, as such, Platinum Triangle Partners, LLC should have been the signatory to Amendment No. 1 and should have expressly assumed and agreed to perform all of the obligations of Developer, as the "Owner" and "Developer" under the Existing Development Agreement, to the extent accruing from and after the effective date of Amendment No. 1.
0. Subsequent to the recordation of Amendment No. 1, the fee title interest in the Property was transferred from, and the Existing Development Agreement was assigned by, Platinum Triangle Partners, LLC to Lennar Homes of California, Inc., a California corporation ("Lennar"), which Property and Existing Development Agreement was, in turn, conveyed and transferred to PT Metro, LLC, a Delaware limited liability company, which for all purposes under this Development Agreement is and shall be referred to interchangeably as the "Owner" and "Developer". By its signature herein below, PT Metro, LLC hereby represents and warrants to CITY that (i) Lennar has heretofore unconditionally assigned to PT Metro, LLC all of its rights, title and interest and its obligations and liabilities under the Existing Development Agreement and the Original Development Approvals, together with any and all of its respective rights and obligations under any and all other documents and entitlements related to the Existing Development Agreement and the Original Development Approvals; (ii) PT Metro, LLC accepted such assignment and assumed and agreed to perform all of Lennar's liabilities, obligations, covenants, agreements, terms, provisions and conditions under the Existing Development Agreement and the Original Development Approvals and liabilities, obligations, covenants, agreements, terms, provisions and conditions under any and all other documents related to the Development Agreement and the Original Development Approvals; and (iii) only PT Metro, LLC (i.e., not either Platinum Triangle Partners, LLC or Lennar) shall be liable for the perforniance of 4 all obligations of "OWNER" (as defined in the Development Agreement) pursuant to the Development Agreement and the Original Development Approvals.
P. On October 26, 2010, the Anaheim City Council adopted General Plan Amendment No. 2008-00471 and approved an amendment to the Platinum Triangle Master Land Use Plan (Miscellaneous Case No. 2007-00188) and certified Final Supplemental Environmental Impact Report No. 2008-00339 ("FSEIR No. 339"), to increase the allowable intensities within the PTMU Overlay Zone to 18,909 dwelling units, 4,909,682 square feet of commercial uses, 14,340,522 square feet of office uses, and 1,500,000 square feet of institutional land uses.
Q. On December 18, 2012, the City Council adopted General Plan Amendment No. 2012-00486 and approved an amendment to the Platinum Triangle Master Land Use Plan ("Miscellaneous Case No. 2012-00559") and the PTMU Overlay Zone ("Zoning Code Amendment No. 2012-00107") to increase the number of dwelling units and reduce the amount of office and commercial development allowed within the "Mixed-Use" land use designation of the Platinum Triangle and to amend various Elements of the General Plan to include the addition of a public park; and
R. On October 21, 2014, the Anaheim City Council adopted General Plan Amendment No. 2014-00495 to peimit an increase in the allowable number of residential dwelling units from 350 to 389 for a master planned mixed use project on a 4.13 acre (approximate) parcel commonly known as 1005-11105 East Katella Avenue. Thereafter, to be consistent with General Plan Amendment No. 2014-00495, the Anaheim City Council adopted its Ordinance No. 6309 on November 18, 2014, which had the effect of increasing the maximum square footage for commercial uses within the Katella District of the PTMU Overlay Zone to 634,643 square feet, resulting in an aggregate increase in the square footage for commercial uses within the PTMU Overlay Zone to 4,795,111. Ordinance No. 6309 also had the effect of increasing the maximum number of housing units within the PTMU Overlay Zone to 18,999. However, to correct clerical errors subsequently discovered in the tabulation of those density numbers in Ordinance No. 6309, the Anaheim City Council adopted its Ordinance No. 6319 on April 7, 2015. Ordinance No. 6319 had the effect of establishing (1) the maximum square footage for commercial uses within the Katella District as 658,043 square feet, (2) the maximum square footage for commercial uses within the PTMU Overlay Zone, as a whole, as 4,735,111, and (3) the maximum number of housing units within the PTMU Overlay Zone as 19,027; and S. OWNER represents that it owns the Property in fee, which consists of approximately
43.1 acres of real property located west of State College Boulevard, between Katella Avenue and Gene Autry Way, in the City of Anaheim, County of Orange, State of California within portions of the Katella and Gene Autry Way Districts of the Platinum Triangle and zoned PTMU Overlay.
T. OWNER desires to develop the Property in accordance with the provisions of this Development Agreement by developing a minimum of 1,400 and a maximum of 1,746 residential dwelling units, a Public Park and Public Linear Park, consisting of approximately 1.8 5 acres, and a minimum of 38,000 GFA of commercial/retail development, all as more particularly set forth in the Master Site Plan (hereinafter collectively referred to as the "Project").
U. CITY desires to acquire an option to lease or acquire up to 20,000 square feet of commercial GFA, which space shall be in excess of the minimum of 38,000 GFA of commercial/retail development that OWNER will develop on the Property.
V. Pursuant to Section 19 of the Existing Development Agreement and Chapter 18.60 of the Anaheim Municipal Code, Owner has requested a series of actions to replace the Original Development Approvals (collectively, the "Project Actions"), including:
1. General Plan Amendment No. 2013-00490 to reflect the relocation of the Public Park;
2. Miscellaneous Case No. 2015-00598 to amend the Platinum Triangle Master Land Use Plan to, among other things, reconfigure the Property's circulation system, street types and street-section design based on the Master Site Plan (Exhibit B hereto), to reflect modified ground floor commercial/retail use locations (Development Areas B and C) of the Master Site Plan, and to delete Appendix F (A-Town Public Realm Landscape and Identity Program);
3. This Amended and Restated Development Agreement No. 2005-00008C to amend and restate the Existing Development Agreement in its entirety in order to provide for the development of the Project and certain vested development rights in connection therewith;
4. Tentative Tract Map No. 17703 for condominium purposes to re- subdivide approximately 36.7 acres of the Property (excludes a portion of Westside Drive and Development Area A of the Master Site Plan (Exhibit B hereto), formerly Development Areas J and 0 of the approved Master Site Plan or Lots 1 and 11 of Tract 16859) into lots which correspond with the Development Areas and recreation areas (Public Park and Public Linear Park) established by the Master Site Plan (Exhibit B hereto);
5. Zoning Code Amendment No. 2013-00112 to amend the Platinum Triangle Mixed Use Overlay Zone to modify the requirement for ground floor commercial uses on Market Street and to clarify that ground floor commercial uses are required on Gene Autry Way east of Union Street;
6. The Master Site Plan, attached hereto as Exhibit B and incorporated herein by this reference, to reconfigure the Original Project's land use and circulation plan to provide flexible Development Areas, modification of the size and location of the public park from that which was depicted in the Master Site Plan for the Original Project, and to revise the approved circulation system in order to provide an east-west/north-south grid street system to be compatible with existing market demands and economic conditions while still providing an 6 urban development consistent with the goals, principles and design guidelines of the Platinum Triangle Master Land Use Plan; and
7. Addendum No. 4 to FSEIR No. 339.
W. CITY desires to accomplish the goals and objectives set forth in the CITY's General Plan and the objectives for the PTMU Overlay Zone, as set forth in subsection 18.20.010.020 of the Anaheim Municipal Code, and finds that the Project will accomplish said goals and objectives.
X. Pursuant to the Master Site Plan, OWNER will submit Final Site Plans, tentative maps and/or vesting tentative maps, if required. OWNER further anticipates the submission of detailed construction plans and other documentation required by CITY in order for the OWNER to obtain its building permits.
Y. As consideration for the benefits gained from the vested rights acquired pursuant to the Development Agreement Statute, to conform with the requirements of the PTMU Overlay Zone, and to comply with the applicable mitigation measures imposed by Updated and Modified Mitigation Monitoring Program No. 106C and Mitigation Monitoring Plan No. 321 for the Project, together with Addendum No. 4 to FSE1R No. 339, CITY is requiring that OWNER construct and install certain public improvements, including off-site traffic circulation improvements, and provide other public benefits.
Z. In order to avoid any misunderstandings or disputes which may arise from time to time between OWNER and CITY concerning the proposed development of the Project and to assure each party of the intention of the other as to the processing of any land use entitlements which now or hereafter may be required for such development, the parties believe it is desirable to set forth their intentions and understandings in this Development Agreement. In order for both CITY and OWNER to achieve their respective objectives, it is imperative that each be as certain as possible that OWNER will develop and that CITY will permit OWNER to develop the Project and public improvements as approved by CITY within the time periods provided in this Development Agreement.
AA, On December 19, 2013, as required by Section 1.0 of the Procedures Resolution, OWNER submitted to the Planning and Building Department an application for approval of a development agreement (hereinafter called the "Application"). The Application included a proposed development agreement (the "Proposed Development Agreement").
BB. On August 27, 2015, as required by Section 65867 of the Development Agreement Statute and Section 2.1 of the Procedures Resolution, the Planning Director gave public notice of the City Planning Commission's intention to consider a recommendation to the City Council regarding adoption of a development agreement.
7 CC. On September 9, 2015, as required by Section 65867 of the Development Agreement Statute and Section 2.2 of the Procedures Resolution, the City Planning Commission held a public hearing on the Application.
DD. On that date, the City Planning Commission of the City of Anaheim ("Planning Commission"), after considering the requirements of CEQA, including Section 21166 of the California Public Resources Code and Section 15162 of the CEQA Guidelines, found and determined and recommended that the City Council find that previously-certified FSEIR No. 339, together with the Updated and Modified Mitigation Monitoring Program No. 106C, Mitigation Monitoring Plan No. 321 for the Project, together with Addendum No. 4 to FSEIR No. 339, are, collectively, adequate to serve as the required environmental documentation for this Development Agreement, and related Project Actions, and satisfy all of the requirements of CEQA, and that no further environmental documentation need be prepared for this Development Agreement.
EE. The Planning Commission further found that the Development Agreement meets the following standards set forth in Section 2.3 of the Procedures Resolution, to wit, that the Proposed Project, together with the Project Actions: (a) is consistent with the CITY's existing General Plan, (b) is compatible with the uses authorized in and the regulations prescribed for the applicable zoning district, (c) is compatible with the orderly development of property in the surrounding area, and (d) is not otherwise detrimental to the health, safety and general welfare of the citizens of the City of Anaheim. Based upon the aforesaid findings, the Planning Commission recommended that the City Council approve the Application and this Development Agreement pursuant to its Resolution No. PC2015-069.
FF. On September 24, 2015, as required by Section 65867 of the Development Agreement Statute and Section 3.1 of the Procedures Resolution, the City Clerk caused public notice to be given of the City Council's intention to consider adoption of a development agreement.
GG. On October 6, 2015, as required by Section 65867 of the Development Agreement Statute and Section 3.2 of the Procedures Resolution, the City Council held a public hearing on the Application.
HE. On that date, the City Council, after considering the requirements of CEQA, including Section 21166 of the California Public Resources Code and Section 15162 of the CEQA Guidelines, did find and deteimined that previously-certified FSEIR No. 339, together with the Updated and Modified Mitigation Monitoring Program No. 106C, Mitigation Monitoring Plan No. 321, together with Addendum No. 4 to FSEIR No. 339, are, collectively, adequate to serve as the required environmental documentation for this Development Agreement, and related Project Actions, and satisfies all of the requirements of CEQA, and that no further environmental documentation need be prepared for this Development Agreement. 8 II. On October 6, 2015, the City Council found and determined that this Development Agreement, together with the Project Actions: (i) is consistent with the CITY's existing General Plan; (ii) is not otherwise detrimental to the health, safety and general welfare of the citizens of CITY; (iii) is entered into pursuant to and constitutes a present exercise of the CITY's police power; and (iv) is entered into pursuant to and in compliance with the requirements of Section 65867 of the Development Agreement Statute and the Procedures Resolution.
JJ. On October 20, 2015, the City Council adopted the Authorizing Ordinance, authorizing the execution of this Development Agreement.
NOW, THEREFORE, pursuant to the authority contained in the Development Agreement Statute, as it applies to CITY, and pursuant to the Enabling Ordinance, the Procedures Resolution and the CITY's inherent powers as a charter city, and pursuant to the mutual promises and covenants herein contained, the parties hereto agree as follows:
Section 1. DEFINITIONS.
The following words and phrases are used as defined terms throughout this Development Agreement, and each defined term shall have the meaning set forth below.
1.1 Assessment District. "Assessment District" for purposes of this Development Agreement means a special district, assessment district or benefit area existing pursuant to State law or the charter powers of the CITY for purposes of financing the cost of public improvements, facilities, services and/or public facilities fees within a distinct geographic area of the CITY.
1.2 Authorizing Ordinance. The "Authorizing Ordinance" means Ordinance No. 6345 approving this Development Agreement.
1.3 Builder Tentative Map. A map subdividing a Development Area pursuant to the Subdivision Map Act, including a tentative map, parcel map and/or condominium map.
1.4 CITY. The "CITY" means the City of Anaheim, a charter city and municipal corporation, duly organized and existing under its charter and the Constitution and laws of the State of California.
1.5 CITY Agency or CITY Agencies. "CITY Agency" or "CITY Agencies" mean, where appropriate, all CITY departments, agencies, boards, and commissions that execute or consent to this Agreement and that have subdivision or other permit, entitlement or approval authority or jurisdiction over any Development Area on the Property, or any Community Improvement or Public Improvement located on or off the Property.
1.6 Community Improvements. "Community Improvements" means any capital improvement or facility located within the Project that is not a Public Improvement or the privately-owned residential and commercial buildings constructed on the Property. 9 1.7 Development. "Development" means the improvement of the Property for purposes of effecting the structures, improvements and facilities comprising the Project, including, without limitation: grading, the construction of infrastructure and public facilities related to the Project whether located within or outside the Property; the construction of structures and buildings and the installation of landscaping.
1.8 Development Agreement. "Development Agreement" means this Development Agreement and any subsequent amendments to this Development Agreement which have been made in compliance with the provisions of this Development Agreement, the Development Agreement Statute, the Enabling Ordinance, and the Procedures Resolution. This Development Agreement is intended to replace in its entirety the Existing Development Agreement and to reflect the agreement of the parties to the amendment and restatement of the Existing Development Agreement.
1.9 Development Agreement Date. The "Development Agreement Date" means the effective date of the Authorizing Ordinance.
1.10 Development Agreement Statute. The "Development Agreement Statute" means Sections 65864 through 65869.5 of the California Government Code, as those sections exist on the Development Agreement Date.
1.11 Development Approvals. "Development Approvals" means the Master Site Plan and all site specific plans, maps, permits and other entitlements to use of every kind and nature contemplated by the Master Site Plan which are approved or granted by CITY in connection with development of the Property, including, but not limited to: Final Site Plans, tentative and final subdivision maps, vesting tentative maps, variances, conditional use permits and grading, building and other similar permits. To the extent any of such site specific plans, maps, permits and other entitlements to use are amended from time to time, "Development Approvals" shall include, if OWNER and CITY agree in writing, such matters as so amended. If this Development Agreement is required by law to be amended in order for "Development Approvals" to include any such amendments, "Development Approvals" shall not include such amendments unless and until this Development Agreement is so amended.
1.12 Development Area. "Development Area" means a lettered residential Development Area, as shown on the Master Site Plan.
1.13 Enabling Ordinance. The "Enabling Ordinance" means Ordinance No. 4377 enacted by the CITY on November 23, 1982.
1.14 Existing Land Use Regulations. "Existing Land Use Regulations" mean the ordinances and regulations adopted by the CITY of Anaheim that were in place on the date that the Authorizing Ordinance approving this Development Agreement became effective, including the adopting ordinances and regulations that govern the permitted uses of land, the density and 10 intensity of use, and the design, improvement, construction standards and specifications applicable to the development of the Property, as so amended, including, but not limited to, the General Plan, the Zoning Code, the Platinum Triangle Master Land Use Plan, previously- certified FSEIR No. 339, Updated and Modified Mitigation Monitoring Program No. 106C, Mitigation Monitoring Plan No. 321, together with Addendum No. 4 to FSEIR No. 339, and all other ordinances of the CITY establishing subdivision standards, park regulations, impact or development fees and building and improvement standards, but only to the extent the Zoning Code and such other regulations are not inconsistent with this Development Agreement. "Existing Land Use Regulations" do not include non-land use regulations, which includes taxes.
1.15 Final Site Plan. The "Final Site Plan" means the detailed plans for a Development Area implementing the Master Site Plan, as approved by the Planning Commission.
1.16 First Certificate of Occupancy. "First Certificate of Occupancy" means the first certificate of occupancy (such as a temporary certificate of occupancy) issued by the CITY Building Department for a portion of the building that contains residential units or leasable commercial space. A First Certificate of Occupancy shall not mean a certificate of occupancy issued for a portion of the residential or commercial building dedicated to a sales office or other marketing office for residential units or leasable commercial space.
1.17 Gross Floor Area/GFA. "Gross Floor Area" or "GFA" means the gross floor area of any buildings which are part of the Permitted Development.
1.18 Interim Development Fees. "Interim Development Fees" are the fees imposed within the Platinum Triangle pending adoption of permanent fee programs by the CITY as set forth in Paragraph 13.2 of this Development Agreement.
1.19 Impact Fees. "Impact Fees" shall mean the fees, exactions and impositions charged by CITY in connection with the development of the Project under the Existing Land Use Regulations as of the Development Agreement Date, including but not limited to Storm Drain Impact and Improvement Fees, traffic signal fees, Transportation Impact and Improvement Fees, Public Safety Facilities and Vehicle Equipment Impact Fees. Impact Fees shall not include processing fees, permit and application fees, taxes or special assessments.
1.20 Master Final Tract Map. "Master Final Tract Map" means the final tract map to be recorded in the Office of the County Recorder of the County of Orange for Tentative Tract Map No. 17703.
1.21 Master Site Plan. The "Master Site Plan" means the Project as described in this Development Agreement and conditions with respect thereto, as generally depicted on Exhibit B attached hereto and incorporated herein by this reference.
1.22 Master Tentative Map. A tentative map processed and recorded to establish the boundaries of a Development Area.
11 1.23 Mortgage. "Mortgage" means a mortgage, deed of trust or sale and leaseback arrangement or other transaction in which the Property, or a portion thereof or an interest therein, is pledged as security.
1.24 Mortgagee. "Mortgagee" means the holder of the beneficial interest under a Mortgage, or the owner of the Property, or interest therein, under a Mortgage.
1.25 Owner. "OWNER" is PT Metro, LLC, and any person or entity who receives any of the rights or obligations of PT Metro, LLC under this Development Agreement in accordance with the provisions of Section 30 (Assignment) of this Development Agreement.
1.26 Parking Areas. The "Parking Areas" means all parking structure(s) and/or all surface parking servicing the Project.
1.27 Permitted Development. "Permitted Development" includes all buildings and the Parking Areas as identified in Section 6 of this Development Agreement and as further set forth in the Master Site Plan. This Development Agreement establishes maximum and minimum characteristics for all Permitted Development as set forth in the Master Site Plan.
1.28 Platinum Triangle. "Platinum Triangle" means that portion of the City of Anaheim generally bounded on the east by the Santa Ana River, on the south by the Anaheim city limits, on the west by the Santa Ana Freeway, and on the north by the Southern California Edison Easement.
1.29 Procedures Resolution. The "Procedures Resolution" is Resolution No. 82R-565 adopted by the City Council of the CITY pursuant to Section 65865 of the Development Agreement Statute.
1.30 Project. The "Project" means the development project contemplated by the Master Site Plan with respect to the Property, including but not limited to on-site and off-site improvements, as such development project is further defined, enhanced or modified pursuant to the provisions of this Development Agreement and the Development Approvals.
1.31 Property. The "Property" means that certain real property shown and described on Exhibit A to this Development Agreement.
1.32 Public Improvements. "Public Improvements" means the facilities, both on- and offsite, to be improved, constructed and dedicated to (and, upon completion in accordance with this Agreement, accepted by) the CITY by OWNER. Public Improvements include the Public Park and the Public Linear Park, streets within the Property, 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 sewer lines, but excluding any non- municipal utilities), bicycle lanes and paths in the public right of way, off-site intersection 12 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. The Public Improvements do not include paseos, pedestrian paths within the Property, parks and open spaces, and community or recreation facilities to be built on land owned and retained by OWNER.
1.33 Storm-water Management Improvements. "Storm-water Management Improvements" means the facilities, both those to remain privately-owned and those to be dedicated to 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 perforniing a storm-water control function.
1.34 Support Commercial Uses. "Support Commercial Uses" are commercial\retail uses which may include retail uses, banking or financial offices, food service, restaurants, service establishments and other similar uses in keeping with the nature of the Project.
1.35 Term. "Term" is defined in Section 2 of this Development Agreement.
1.36 Tract No. 16859. "Tract No. 16859" was established for the Property by recordation of Final Tract Map No. 16859 in Book 892, Pages 1 through 10, inclusive, of Miscellaneous Maps in the Office of the County Recorder of the County of Orange.
1.37 Zoning Code. "Zoning Code" refers to Title 18 of the Anaheim Municipal Code.
Section 2. TERM.
2.1 The Existing Development Agreement is hereby replaced and superseded in its entirety by this Development Agreement.
2.2 The term (hereinafter called "Term") of this Development Agreement shall be that period of time during which this Development Agreement shall be in effect and bind the parties hereto. The Term shall commence on the Development Agreement Date and shall extend for a period of five (5) years thereafter, unless extended or earlier terminated as provided herein.
Thereafter, the Term of this Development Agreement shall be automatically extended for up to three (3) additional five (5) year periods provided that the development milestones described in Exhibit G are timely achieved. Owner shall submit proof of compliance with the project milestones shown in Exhibit G prior to the expiration of each period set forth therein. The Planning Director shall detelinine if the project milestones have been met, and will inform the City Council of the extension of the Development Agreement. 13 2.3 This Development Agreement shall terminate and be of no force and effect upon the occurrence of the entry of a final judgment or issuance of a final order, after all appeals have been exhausted, directed to CITY as a result of any lawsuit filed against CITY to set aside, withdraw or abrogate the approval of the City Council of this Development Agreement or if termination occurs pursuant to the provisions of the Procedures Resolution and such termination is so intended thereby.
2.4 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.
2.5 If not already terminated by reason of any other provision in this Development Agreement, or for any other reason, this Development Agreement shall automatically terminate and be of no further force and effect upon completion of the Project pursuant to the terms of this Development Agreement and any further amendments thereto and the issuance of all occupancy permits and acceptance by CITY of all dedications and improvements as required by the development of the Project.
Section 3. BINDING COVENANTS.
Pursuant to Section 65868 of the Development Agreement Statute, from and after recordation of this Agreement in the Official Records, all of the provisions, agreements, rights, powers, standards, terms, covenants and obligations contained in this Development Agreement shall be binding upon the Parties and their respective heirs, successors (by merger, consolidation, or otherwise) and assigns, and all persons or entities acquiring the Property, any lot, parcel or any portion thereof, or any interest therein, whether by sale, operation of law, or in any manner whatsoever, and shall inure to the benefit of the Parties and their respective heirs, successors (by merger, consolidation or otherwise) and assigns. All provisions of this Agreement shall be enforceable during the Term hereof as equitable servitudes and shall constitute covenants and benefits running with the land pursuant to applicable law, including but not limited to California Civil Code Section 1468.
Section 4. EFFECT OF AGREEMENT.
As a material part of the consideration of this Development Agreement, unless otherwise provided herein, the parties agree that the Existing Land Use Regulations shall be applicable to development of the Project. In connection with all subsequent discretionary actions by CITY required to implement the Master Site Plan and any discretionary actions which CITY takes or has the right to take under this Development Agreement relating to the Project, including any review, approval, renewal, conditional approval or denial, CITY shall exercise its discretion or take action in a manner which complies and is consistent with the Master Site Plan, the Existing Land Use Regulations and such other standards, terms and conditions expressly contained in this Development Agreement. CITY shall accept and timely process, in the normal manner for 14 processing such matters as may then be applicable, all applications for further approvals with respect to the Project called for or required under this Development Agreement, including, any necessary site plan, tentative map, vesting tentative map, final map and any grading, construction or other permits filed by OWNER in accordance with the Development Approvals.
Section 5. PROJECT LAND USES.
5.1 The Property shall be used for such uses as may be permitted by the Development Approvals and the Existing Land Use Regulations. The Term, the density and intensity of use, developable GFA, footprint square footage, the maximum height and size of proposed buildings and structures, lot sizes, set back requirements, zoning, Public Improvements, and the provisions for reservation or dedication of land for public purposes shall be those set forth in the Development Approvals, the Existing Land Use Regulations and this Development Agreement pursuant to Section 65865.2 of the Development Agreement Statute.
5.2 The OWNER shall comply with all applicable conditions of the Existing Land Use Regulations and Development Approvals, and shall comply with all mitigation measures imposed upon the Project pursuant to CEQA.
Section 6. PERMITTED DEVELOPMENT.
6.1 Description of Permitted Development. The Permitted Development shall be as set forth on the Master Site Plan. The Project shall be constructed substantially in conformance with the Master Site Plan.
6.2 Final Site Plans. A Final Site Plan shall be processed for each Development Area in the same manner as a conditional use permit at a noticed public hearing.
6.3 Parking Areas. The Parking Areas shall be constructed so that there will be sufficient parking spaces available within the Property to serve the Project and each Development Area, as depicted and substantially in conformance with the Master Site Plan, each Final Site Plan for a Development Area, and the minimum parking requirements set forth in the Zoning Code. Prior to issuance of a building permit for a Development Area, the Owner shall record a covenant against the property within the Development Area in a form approved by the City Attorney's Office stating that the use of the Parking Areas shall be limited to tenants, visitors, patrons, invitees and other users of the permitted Development within the Development Area in question.
Said covenant shall also provide that the Parking Areas shall not be used to provide public parking for patrons of Angel Stadium, the Honda Center, or the Grove of Anaheim or any other off-site public or private facilities without a prior written agreement between OWNER and CITY setting forth CITY' s ability to seek reimbursement for the full cost associated with the use of any Police Department and/or Traffic Management Center staff that may be needed for traffic control purposes relating to such public parking and subject to such other and further conditions as may be required by CITY.
15 Section 7. DENSITY OF PERMII1ED BUILDINGS.
Except as set forth in Section 10, the Permitted Development shall be between the minimum and maximum sizes including the minimum and maximum dwelling unit range established and the density range proposed on the Development Summary table attached hereto and incorporated herein as Exhibit I, and shall not exceed the maximum heights and maximum footprints set forth on the Master Site Plan. Any transfers of density between Development Areas shall be governed by Section 10.
Section 8. ENFORCEMENT.
Unless this Development Agreement is terminated or cancelled pursuant to the provisions of this Development Agreement, this Development Agreement or any amendment hereto, shall be enforceable by any party hereto notwithstanding any change hereafter in any applicable general plan, specific plan, zoning ordinance, subdivision ordinance or building ordinance adopted by CITY which alters or amends the rules, regulations or policies of Development of the Project as provided in this Development Agreement pursuant to Section 65865.4 of the Development Agreement Statute; provided, however, that the limitations of this Section shall not apply to changes mandated by State or Federal laws or other permissible changes or new regulations as more particularly set forth in Section 25 of this Development Agreement.
Section 9. PUBLIC IMPROVEMENTS AND SERVICES.
In addition to performing any other obligations heretofore imposed as conditions of approval, as set forth in Exhibit C, as material consideration for the CITY's entering into this Development Agreement, OWNER shall undertake the construction and installation of the following Public Improvements required to support the Project and to enhance area-wide traffic circulation and emergency police and fire protection service within the time periods as set forth below and in conformance with the Existing Land Use Regulations. CITY shall cooperate with OWNER for the purpose of coordinating all Public Improvements constructed under the Development Approvals or this Development Agreement to existing or newly constructed public improvements, whether located within or outside of the Property. OWNER shall be responsible for and use good faith efforts to acquire any right(s)-of-way necessary to construct the Public Improvements required by, or otherwise necessary to comply with the conditions of, this Development Agreement or any Development Approvals. Should it become necessary due to OWNER's failure or inability to acquire said right(s)-of-way within four months after OWNER begins its efforts to so acquire said right(s)-of-way, CITY shall negotiate the purchase of the necessary right(s)-of-way to construct the Public Improvements as required by, or otherwise necessary to comply with the conditions of, this Development Agreement and, if necessary in accordance with the procedures established by State law, and the limitations hereinafter set forth in this Section, CITY may use its powers of eminent domain to condemn said required right(s)-of-way. OWNER agrees to pay for all costs associated with said acquisition and condemnation proceedings. If the CITY cannot make the proper findings or, if for some other reason under the condemnation laws, CITY is prevented from acquiring the necessary 16 right(s)-of-way to enable OWNER to construct the Public Improvements required by, or otherwise necessary to comply with the conditions of, this Development Agreement, then the parties agree to amend this Development Agreement to modify OWNER's obligations accordingly. Any such required modification shall involve the substitution of other considerations or obligations by OWNER (of similar value) as are negotiated in good faith between the Parties hereto. Nothing contained in this Section shall be deemed to constitute a determination or resolution of necessity by CITY to initiate condemnation proceedings, it being expressly understood that the CITY has reserved its discretion to approve or disapprove a resolution of necessity (pursuant to Article 2 [commencing with Section 1245.210] of Chapter 4 of Title 7 of the California Code of Civil Procedure).
Public Improvements that are required to be constructed as part of the Development Approvals shall be designed and constructed, and shall contain those improvements and facilities, as reasonably required by the applicable CITY Agency that is to accept, and in some cases operate and maintain, the Public Improvements in keeping with the then-current CITY- wide standards and requirements of the CITY Agency as if it were to design and construct the Public Improvement on its own at that time.
In connection with all of the Public Improvements, OWNER shall engage a contractor that is duly licensed in California and qualified to complete the work (the "Contractor"). The Contractor shall contract directly with OWNER pursuant to an agreement to be entered into by OWNER and Contractor (the "Construction Contract"), which shall: (i) be a guaranteed maximum price contract; (ii) require the Contractor or OWNER to obtain and maintain bonds for one-hundred (100) percent of the cost of construction for performance and fifty (50) percent of payment for labor and materials (and include the CITY and OWNER as dual obligees under the bonds), or provide a letter of credit or other security satisfactory to CITY, in accordance with the requirements of the Subdivision Code; (iii) require the Contractor to obtain and maintain customary insurance, including workers compensation in statutory amounts, employer's liability, general liability, builders all-risk; (iv) release the CITY from any and all claims relating to the construction, including but not limited to mechanics liens and stop notices; (v) subject to the rights of any Mortgagee that forecloses on the Property, include the CITY as a third party beneficiary, with all rights to rely on the work, receive the benefit of all warranties, and prospectively assume OWNER's obligations and enforce the terms and conditions of the Construction Contract as if CITY were an original party thereto; and (vi) require that the CITY be included as a third party beneficiary, with all rights to rely on the work product, receive the benefit of all warranties and covenants, and prospectively assume Contractor's rights in the event of any termination of the Construction Contract, relative to all work performed by the Project's architect and engineer.
9.1 Public Park. The PTMU Overlay Zone requires on-site public parks to be dedicated and improved by a developer of property 8.0 acres or more in size with residential development totaling more than 325 units at a minimum size of 44 square feet for each residential unit. Notwithstanding that requirement, OWNER will dedicate, develop and maintain the Public Park and Public Linear Park as identified on the Master Site Plan. The value for the 17 parkland dedication for the Public Park and Public Linear Park, as determined pursuant to the formula set forth in Exhibit D-4 and the Conditions of Approval in Exhibit C, will be credited against the overall Platinum Triangle Park Fees paid for the Project as set forth in Section 13.2.4.
Consistent with existing Code requirements and policies, no credit will be given for improvements.
9.2 Utilities (Water, Electrical, Gas, Sewer, and Drainage). OWNER shall construct the Public Improvements necessary for the provision of requisite water, electrical, gas, sewer and drainage requirements for Project as more fully set forth in the Development Approvals.
OWNER shall construct and relocate utilities as may be required to provide services to the Permitted Development on the Property or that are displaced by the construction of the Permitted Development, including, but not limited to, materials for water, storm drain and sewer. As OWNER submits detailed construction plans in order to obtain building permits for the Permitted Development and/or the size and nature of the Project varies, the utilities that OWNER will construct or relocate may be revised accordingly by the CITY.
9.2.1 Water Service. OWNER will provide engineering studies to size the water mains for ultimate development within the Project. Said engineering studies will be conducted prior to rendering of water service or signature approval of the final water improvement plans, whichever occurs first. The studies shall be subject to the approval of the General Manager of the CITY's Public Utilities Department or his authorized designee. Alternatively, at OWNER'S election, the water system may be constructed incrementally, provided that said incremental phasing is adequate to provide municipal demands and fire flow protection for the proposed development phasing and the water facilities installed under said incremental phasing are sized to provide the future municipal demands and fire protection for the Project. OWNER shall conform with Rule 15A of the Water Utility's Rates, Rules and Regulations. OWNER shall conform with Rule 15D of the CITY's Water Utility's Rates, Rules and Regulations All public water facilities shall be designed and constructed in accordance with the CITY's Water Engineering Division's standards and specifications.
9.2.2 Sanitary Sewer and Storm Drains. Prior to final building and zoning inspections for the first building within the Permitted Development, OWNER will construct all sanitary sewers and storm drains and appurtenant structures (including treatment control BMP's as required by the WQMP) to serve the ultimate development of the Property as provided by area wide engineering studies to be conducted prior to issuance of any building permits for the first building within the Permitted Development and updated prior to the issuance of any building permits for each subsequent building within the Permitted Development. All studies shall be subject to the approval of the City Engineer. OWNER will construct improvements identified in said studies. The systems may be constructed incrementally subject to the approval of the City Engineer, provided that said incremental phasing is adequate to provide capacity for the proposed development phasing.
18 9.3 Timing, Phasing and Sequence of Public Improvements; Dedication; Maintenance.
9.3.1 Timing, Phasing and Sequencing. The timing, phasing and sequence of the construction of Public Improvements and facilities shall be constructed in accordance with the phasing and sequence set forth in the Infrastructure Phasing Plan attached hereto as Exhibit H of Development Agreement. The Infrastructure Phasing Plan reflects the Parties' mutual acknowledgement that the need for certain Public Improvements is related to the amount and location of new residential units and commercial GFA proposed for each Development Area.
Prior to recordation of the Master Tract Map, OWNER shall be required to provide a detailed Infrastructure Phasing Plan satisfactory to the Planning Director, the Community Services Director, the Public Works Director and the Public Utilities General Manager with a detailed phasing plan relating to phasing and sequence of the Public Improvements. CITY may request OWNER to revise the Infrastructure Phasing Plan, subject to the Planning Director's approval and continuation that the revised Infrastructure Phasing Plan is not anticipated to result in any new environmental impacts or infrastructure requirements. The Patties understand and agree that any Public Improvement identified in this Agreement may become part of a larger CITY system and that the proposed Public Improvements must be constructed so as to integrate and work with the existing CITY systems in every material respect. The Public Improvements will be constructed in accordance with the CITY-approved Infrastructure Phasing Plan.
9.3.2 Maintenance and Operation of Community and Public Improvements by OWNER and Successors. The Parties agree that OWNER shall own and maintain in good and workmanlike condition, and otherwise in accordance with all applicable laws and any applicable permits, all Public Improvements until such time that CITY accepts dedication of such Public Improvements pursuant to section 1.32 above. The provisions of this Section 9.3.2 shall survive the expiration of this Agreement. In order to ensure that the Community Improvements owned by OWNER and the Public Improvements not yet accepted by the CITY for maintenance are maintained in a clean, good and workmanlike condition, OWNER shall record in the Official Records of the County of Orange at such time as the Planning Director with the advice of the City Attorney deems necessary and appropriate a declaration of covenants, conditions, and restrictions ("CC&Rs") imposing against each owner of a lot in the Master Final Tract Map and in that portion of Tract No. 16859 not re-subdivided by Tentative Tract Map No. 17703 the obligation to maintain the Community Improvements and the Public Improvements. The CC&Rs shall include a requirement that a master owner's association ("Master Owners' Association") provide all necessary and ongoing maintenance and repairs to the Community Improvements and the Public Improvements, at no cost to the CITY, with appropriate owners' dues to provide for such maintenance. Any failure of the Master Owners' Association to perform its obligations to provide all necessary and ongoing maintenance and repairs shall not be considered an Event of Default or otherwise be held against the OWNER under this Agreement and the CITY's remedy shall be its enforcement rights under the CC&Rs. The CC&Rs identified herein shall be subject to reasonable review and approval by the City Attorney, the City Engineer, and the Planning Director and shall expressly provide the CITY with a third party right to enforce the maintenance and repair provisions of the CC&Rs.
19 The CC&Rs shall also include a covenant that the Parking Areas shall not be used to provide public parking for patrons of Angel Stadium, the Honda Center, or the Grove of Anaheim or any other off-site public or private facilities without a prior written agreement between the Master Owners' Association and CITY setting forth CITY's ability to seek reimbursement for the full cost associated with the use of any Police Department and/or Traffic Management Center staff that may be needed for traffic control purposes relating to such public parking and subject to such other and further conditions as may be required by the CITY.
Until such time as the Master Owners' Association is formed, the CC&Rs are recorded, and the Master Owners' Association has assumed responsibility to maintain the Community Improvements and the Public Improvements, the OWNER shall be responsible to keep, service and maintain the Community Improvements and the Public Improvements in good, clean and presentable appearance, condition and repair, free of debris, waste and graffiti, and in compliance with all applicable provisions of the Anaheim Municipal Code.
9.4 Traffic Circulation Improvements. In order to assist CITY in providing for area-wide traffic circulation as required by this Project, OWNER shall cause to be made the traffic circulation improvements identified for the Project including all applicable measures from the Updated and Modified Mitigation Monitoring Program 106C approved in conjunction with Subsequent EIR No. 339, and Mitigation Monitoring Plan No. 321, as shown on the Master Site Plan.
9.5 Permits to Enter CITY Property. Subject to the rights of any third party and the CITY's reasonable agreement on the scope of the proposed work and insurance or security requirements, and provided OWNER is not then in Default under this Agreement (excluding any cure periods), the CITY will grant permits to enter CITY-owned property on the CITY' s standard form permit and otherwise on commercially reasonable terms in order to pel mit OWNER to enter CITY-owned property as needed to perform investigatory work, construct Public Improvements, and complete the Mitigation Measures. Permits will include release, indemnification and security provisions in keeping with the CITY's standard practices.
9.6 Library/Community Center. CITY desires to acquire an option to either lease or acquire in fee up to 20,000 square feet of commercial GFA within the Project for use as a Library/Community Center in accordance with terms and conditions to be set forth in a future agreement between the Parties (the "Option Agreement"). The Parties agree to negotiate diligently and in good faith the terms and provisions of an Option Agreement prior to submittal of a Final Site Plan for Development Area B or Development Area C, whichever OWNER determines it desires to submit first. "Good faith negotiations" shall mean that the Parties shall use their best efforts to communicate frequently throughout the process and follow reasonable negotiation procedures to develop an Option Agreement that is mutually acceptable to the Parties. If the CITY exercises its option to acquire or lease space within the Project for use as a Library/Community Center, the OWNER will receive no credit against its obligation under this Agreement to pay the Library Facilities Fee, as set forth in Exhibit D-3. 20 The Parties intend the Option Agreement to include, but not be limited to, the following material terms:
(a) The CITY shall have the option, at its election, to either acquire in fee or lease space within either Development Area B or Development Area C, as described on the Master Site Plan. OWNER will deliver notice to the CITY prior to submittal of a Final Site Plan for the first of those two Development Areas proposed for development, advising the CITY that it may exercise its option to acquire or lease space within the commercial GFA to be included within that Development Area.
The CITY may elect to exercise its option to either acquire in fee or lease the space within that Development Area, or it may elect not to do so and await notice from the OWNER prior to the submittal of a Final Site Plan for the second Development Area. If the CITY elects not to exercise its option to acquire or lease space pursuant to OWNER's notice for the first Development Area, the CITY will retain an option to acquire or lease space within the second Development Area. If the CITY does not timely exercise its option to acquire or lease space within either Development Area B or Development Area C, the Parties understand and agree that it shall be deemed that CITY has elected to not acquire or lease such space in the Project, and OWNER may proceed with processing final site plans with no further obligation to sell or lease space for a Library/Community Center to the CITY. (b) If the City wishes to exercise its option to acquire or lease the Library/Community Center space, the CITY must notify OWNER in writing within sixty (60) calendar days of the receipt of OWNER's notice that the CITY will exercise its option to acquire or lease space. If the CITY elects to exercise its option to acquire or lease space, the Parties shall meet to discuss the OWNER's preliminary estimated range for the rental value for the space or the sale price for the CITY's acquisition of the space, as the case may be, within sixty (60) calendar days following the CITY's delivery of notice to OWNER of CITY's election to exercise its option. The Parties understand and agree that OWNER will not be able to estimate the exact sales price or rental value at this stage since the design(s) for the Development Area in question will only be conceptual at the time that CITY submits its notice to OWNER of CITY's election to acquire or lease the space. (c) If the CITY properly exercises its option and chooses to lease or acquire the space, the amount of the purchase price (if CITY elects to acquire the space in fee) or the rent payable by the CITY to OWNER (if CITY elects to lease the space) will ultimately be determined by an appraisal method using the "cost plus" method of appraisal, and shall consider and include, at a minimum, the following: (1) design and engineering costs for the Library/Community Center space; (2) proportionate share of site development costs for the Library/Community Center Space; (3) fees and permits costs in connection with the Library/Community Center space; (4) construction costs in connection with the Library/Community Center space; (5) allocated land costs for the Library/Community Center space; and (6) three percent 21 (3.0%) overhead/management allowance in connection with the Library/Community Center space (collectively, the "City Space Construction Costs"). The amount of the sales price or rent will be based on the "cost plus" appraisal approach, and the allocated land value will be based upon the unimproved land value (i.e., the land without the building in which the Library/Community Center is to be located) at the time the City acquires or leases the space (as established by an appraiser using the "cost plus" methodology above), but at a minimum shall cover all of the OWNER's costs in connection with City Space Construction Costs for the space acquired or leased by the CITY. In the event the City acquires or leases the space, the Parties agree that in no event will the sum total of the overall purchase price under the purchase and sale contract, or lease payments under the lease agreement, be less than the total costs of the City Space Construction Costs plus six percent (6%).
Therefore, if CITY acquires the Library/Community Center space in fee, the CITY's cost to acquire the space will be one hundred six percent (106%) of the City Space Construction Costs. If the City leases the Library/Community Center space, the annual lease payment shall be six percent (6%) of the City Space Construction Costs, which will be fixed for the entire term of the lease. Also, to the extent the CITY elects to lease the Library/Community Center space, such lease shall be a "triple net lease," under which CITY shall be responsible for, among other things, all real estate taxes (to the extent applicable based on CITY's status as a public agency), building insurance, operating costs and maintenance for the space. The lease term shall be not less than twenty (20) years, but may be longer if CITY and OWNER agree to a longer term in the Option Agreement.
(d) OWNER agrees to share all backup and supporting information and documentation to show the City Space Construction Costs. Once the Library/Community Center space has been fully engineered and designed, but before OWNER seeks final approval of its Final Site Plan for the Development Area containing the Library/Community Center space, OWNER will provide to CITY the final design and engineering costs, and OWNER's updated sales price or lease amount (depending on the CITY's election) for the Library/Community Center. The Parties shall then meet to determine the amount of the sales price or rent for the Library/Community Center space pursuant to the appraisal method identified in 9.6(c) above. Additional detail on the timing for this transaction, estimation of the sales price or lease value, finalizing the amount of the purchase price or rent to be paid by CITY, and the term of a lease shall be contained within the Option Agreement. The Option Agreement shall be finalized and executed by the Parties prior to the submittal of a Final Site Plan for Development Area B or Development Area C, whichever OWNER determines it desires to submit first. (e) The OWNER will furnish all labor and materials to construct and complete in a good, expeditious, workmanlike and substantial manner the improvements to the space designated for sale or rental to CITY as a Library/Community Center in accordance with a design to be agreed upon by the Parties. All such work shall be 22 at OWNER's sole cost and expense (although such costs and expenses are to ultimately be recovered by OWNER as part of the purchase or leasing price for the space), and shall include all building improvements for the building shell to meet the CITY's Building Standards Codes; gas, water and sewer lines stubbed to mutually agreed areas within the space sufficient to meet the CITY's reasonable needs, and shall be designed to be ADA compliant.
(f) All items of work necessary to conduct the CITY's business at the premises of the Library/Community Center shall be provided by the CITY at the CITY's expense, including, but not limited to, any work related to the interior build-out for its use of operation, any special custom features, HVAC panel/distribution, and electrical panel/distribution.
Section 10. TRANSFER OF DEVELOPMENT RIGHTS
10.1 Maximum Number of Units and Transfer. The maximum number of dwelling units for the Project, as permitted by the Master Site Plan, is 1,746. The target range of dwelling units within each of the Development Areas is shown on the Development Summary Table attached hereto as Exhibit I, which is incorporated by reference herein. OWNER may transfer dwelling units between the Development Areas that do not already have approved Final Site Plans. Once a Final Site Plan is approved by the CITY for a particular Development Area, the unit count for that Development Area becomes fixed and cannot be altered without CITY approval. To the extent the full target range of dwelling units for a particular Development Area is not used after approval of a Final Site Plan for that Development Area, the unused units can be transferred to other Development Areas on the Master Site Plan, with the approval of the Planning Director, in accordance with the following:
10.1.1 Consistency With General Plan and Master Land Use Plan. Transfers of dwelling units between Development Areas shall be deemed consistent with the General Plan and the Platinum Triangle Master Land Use Plan, provided all of the following requirements are met:
1. The general location of Development Areas is shown on the Master Site Plan; and
2. The cumulative number of dwelling units resulting from the transfer from one Development Area to another will not exceed one hundred twenty percent (120% ) of the maximum density of the receiving Development Area shown on the Development Summary Table (Exhibit I hereto); and provided the overall mix and character of housing units in the Project is maintained; and
3. The resulting built form on the receiving Development Area does not exceed the established height limit; or if it does, a conditional use permit is first obtained; and 23 4. No transfer of dwelling units shall be approved until the CITY determines that such transfer was adequately covered in FSE1R No. 339 and Addendum No. 4 thereto. In the event that the CITY determines that the transfer of dwelling units could result in new or more severe environmental impacts, the proposed transfer of dwelling units shall be subject to environmental review by the CITY to determine whether previously identified significant impacts would be substantially more severe, calling for the preparation of a subsequent or supplemental environmental impact report, negative declaration or another Addendum to FSEIR No. 339; and
5. A transfer of dwelling units from Development Area E shall not result in a reduction in the height limit established therefor in the Master Site Plan, which is four stories; and
6. A transfer of dwelling units will not result in a reduction in the minimum density range in the Development Area from which the units are proposed to be transferred.
10.2 Remaining Units. If the total number of units on the Property following completion of the last Final Site Plan is less than the total permitted pursuant to this Development Agreement, OWNER relinquishes the right to develop the unbuilt units.
10.3 Processing Density Transfers. Requests to transfer density after approval of a Final Site Plan for a Development Area shall be processed in the same manner as a conditional use peimit at a noticed public hearing and shall not require an amendment to this Development Agreement.
Section 11. REIMBURSEMENT PROVISION.
In the event OWNER is required to construct Public Improvements which are supplemental to the requirements of the Project for the benefit of other properties, CITY will work with OWNER to establish mechanisms for proportional reimbursement from owners of the benefited properties, reserving final discretion and approval by the CITY, including the City Council or any commission, committee or department thereof, as to the establishment of any definitive mechanism and all proceedings and decisions in connection therewith. All costs associated with establishing said mechanisms shall be paid by OWNER.
Section 12. DEDICATIONS AND EXACTIONS.
Prior to issuance of the first building permit for the Project, or, at the discretion of the CITY Agencies having jurisdiction, for a Development Area, OWNER shall irrevocably offer for dedication the rights-of-way, including the public connector streets, collector streets and any other streets required by the Development Approvals, if applicable, and other areas as more fully set forth in the Master Site Plan for the uses set forth in the Master Site Plan. These dedications shall be in fee or as an easement at the discretion of CITY, and upon completion and acceptance by CITY of the associated improvements in compliance with the specifications as approved by 24 CITY, CITY shall accept OWNER's offer of dedication. Nothing contained in this Development Agreement, however, shall be deemed to preclude CITY from exercising the power of eminent domain with respect to the Property or the Project, or any part thereof.
Prior to approval of water improvement plans for the Project, or, at the discretion of the CITY's Water Engineering Division, for a Development Area, OWNER shall irrevocably offer to dedicate to the CITY (i) an easement (or easements) for all large domestic above-ground water meters and fire hydrants, including a five (5) foot wide easement around each fire hydrant and/or water meter pad, and (ii) a twenty (20) foot wide easement for all water service mains and service laterals, all to the satisfaction of the CITY's Water Engineering Division. The dimensions and locations of said easements shall be subject to approval by the CITY's Water Engineering Division. OWNER shall execute and deliver easement deeds to the CITY using the CITY's standard form and at such time as determined necessary by the CITY's Water Engineering Division. The easement deeds shall include language that requires OWNER to be responsible for restoring any special surface improvements, other than asphalt paving, including but not limited to colored concrete, bricks, pavers, stamped concrete, decorative hardscape, walls or landscaping that becomes damaged during any excavation, repair or replacement of CITY-owned water facilities during the duration of the easements. Provisions for the repair, replacement and maintenance of all surface improvements other than asphalt paving shall be the responsibility of OWNER, which obligation shall be expressly included and recorded in the "CC&Rs" (as defined below) for the Project.
Section 13. FEES, TAXES, AND ASSESSMENTS.
13.1 Fees, Taxes and Assessments. OWNER shall be responsible for the payment of fees in the amount and at the times set forth in the Existing Land Use Regulations, as said amounts and timing may be modified in accordance with this Development Agreement.
13.2 Platinum Triangle Interim Development Fees. CITY anticipates that a number of fees will be adopted to pay the costs attributable to new development in the Platinum Triangle.
The Interim Development Fees constitute amounts estimated by the applicable CITY Agencies to be the approximate fair share of costs attributable to the Project. If an identified fee has been adopted prior to the time that OWNER applies for issuance of a building permit for the Project, the OWNER shall pay the fee. If an identified fee has not been adopted prior to the issuance of a building permit, the OWNER shall pay the applicable Platinum Triangle Interim Development Fees set forth in attached Exhibit D at the time that OWNER applies for a building permit or approval in connection with the Project, unless otherwise provided in this Agreement. If the OWNER has paid a Platinum Triangle Interim Development Fee, and upon subsequent adoption of a corresponding fee it is determined that the OWNER has paid an amount greater than the amount payable pursuant to the adopted fee, the excess amount paid as an Interim Development Fee shall be refunded to the OWNER. CITY shall not be obligated to adopt any of the identified fees. If any such identified fee is not adopted prior to the date the fee becomes due and payable, the parties agree that the Interim Development Fee is adequate to address the impacts of the 25 Project and will fully satisfy OWNER's fee obligation for that particular Interim Development Fee.
13.2.1 Electrical Utilities Undergrounding Fee. OWNER will pay an Electrical Utilities Undergrounding Fee as set forth in Exhibit D-1.
13.2.2 General Plan and Environmental Processing Fee. OWNER will pay a processing FEE attributable to the cost of creating and establishing the Master Land Use Plan and the P'TMU Overlay Zone for the Platinum Triangle, as well as the costs of associated environmental documentation, as said additional costs are set forth in Exhibit D-2.
13.2.3 Library Facilities Fee. OWNER will pay a Library Facilities Fee as set forth in Exhibit D-3.
13.2.4 Park Fee. Prior and as a condition precedent to the issuance of building permits for residential units in a Development Area, OWNER will pay the Park Fees associated with the number of residential units for which a building permit is sought in the amount per unit set forth on Exhibit D-4 OWNER will be entitled to a credit against the Park Fees payable on the basis of $2,940,300 per acre, as set forth in Exhibit D-4; provided, however, that the OWNER shall not be entitled to the receipt of a credit for Park Fees payable or reimbursement for any portion of the Park Fees paid (as the case may be) until the Public Park and Public Linear Park have been completed to the satisfaction of the Director of Community Services. The amount of the Park Fees payable for each residential unit for the term that this Development Agreement is in effect shall be the amount of CITY's Park Fee as it exists on the Development Agreement Date regardless of when such Park Fees become due and payable.
13.3 Excluded Development Fees. The following fees shall not be included among the fees which would otherwise fall within the definition of Existing Land Use Regulations:
13.3.1 Water Utilities Fees. OWNER will pay all applicable fees in accordance with the Water Utilities Rates, Rules and Regulations in effect at the time of application for service including Rule 15D which provides for, in part, a fee based on GFA to construct the necessary water facility improvements within the Platinum Triangle.
13.3.2 Electrical Utilities Fees. OWNER will pay all fees in accordance with the Electrical Utilities Rates, Rules and Regulations in effect at the time of application for service.
13.3.3 CITY Processing Fees. OWNER shall pay all standard CITY-wide processing fees for building permits, zoning review, and other similar fees associated with the Development of the Project which are in existence at the time of approval of this Development Agreement at the rate in existence at the time said fees are notmally required to be paid to CITY.
13.4 Platinum Triangle Infrastructure and/or Maintenance Assessment District. Prior to the date a building or grading permit is issued relating to implementation of the Master Site Plan, 26 or within a period of ninety (90) days from the date of execution of this Development Agreement, whichever occurs first, OWNER shall execute and record an unsubordinated covenant in a form approved by the City Attorney's Office wherein OWNER agrees not to contest the formation of any assessment district(s) which may be formed to finance Platinum Triangle infrastructure and/or maintenance, which district(s) could include the Property. The covenant shall not preclude OWNER from contesting (i) the determination of benefit of such improvements to the Property, (ii) the properties included in said district or area, (iii) the manner in which said fee is determined or (iv) the manner in which said improvement costs are spread.
13.5 Accounting of Funds. CITY will comply with applicable requirements of Government Code Section 65865 relating to accounting of funds.
13.6 Imposition of Increased Fees, Taxes or Assessments. Except as expressly set forth or reserved in this Development Agreement, CITY shall not, without the prior written consent of OWNER, impose any additional fee, tax or assessment on the Project or any portion thereof as a condition to the implementation of the Project or any portion thereof, except such fees, taxes and assessments as are described in or required by this Development Agreement, including the Existing Land Use Regulations or the Development Approvals. The rates of such fees, taxes and assessments shall be the rates in existence at the time said fees, taxes and assessments are normally required to be paid to CITY, except as otherwise provided in this Development Agreement. Accordingly, with the exception of park fees as discussed in Section 13.2.4 above, OWNER shall be subject to all increases in Impact Fees as established by CITY from time to time during the Term. Nothing contained herein shall be construed to prohibit CITY from imposing fees, taxes or assessments on the Property which are unrelated to the approval or implementation of the Project.
Section 14. [lN 1 ENTIONALLY OMITTED]
Section 15. NEXUS/REASONABLE RELATIONSHIP CHALLENGES.
OWNER consents to, and waives any right it may have now or in the future to challenge the legal validity of the conditions, requirements, policies or programs required by Existing Land Use Regulations or this Development Agreement including, without limitation, any claim that they constitute an abuse of the police power, violate substantive due process, deny equal protection of the laws, effect a taking of property without payment of just compensation, or impose an unlawful tax.
Section 16. TIMING OF DEVELOPMENT.
The Parties acknowledge that OWNER cannot guarantee the exact timing in which Development Areas will be constructed, whether certain development will be constructed at all, including the number of units constructed in each Development Area. Such decisions depend on numerous factors that are not within the control of OWNER, such as market absorption and demand, interest rates, availability of project financing, competition, and other similar factors. 27 To the extent permitted by this Agreement, OWNER shall have the right to develop the Project in such order and time as determined by OWNER in the exercise of its subjective business judgment, but subject to the CITY's approval of a Final Site Plan for each Development Area and subject to the Term Extension Milestones set forth in Exhibit G attached hereto.
Upon commencement of any work in a Development Area, OWNER shall continue the work at a commercially reasonable pace in light of market conditions to completion of that Development Area (including all Community Improvements and Public Improvements within or serving the Development Area) in accordance with applicable permits and requirements under this Agreement to ensure that there are no material gaps between the start and completion of all work within that Development Area, subject to Force Majeure.
Section 17. EXISTING USES.
CITY and OWNER agree that those existing legally established uses on the Property may be retained until the Project is implemented. When those existing uses are demolished, no credit for any such demolished square footage for which Interim Development Fees have not been paid will be given OWNER against Interim Development Fees due on a square footage basis as provided for in this Development Agreement. OWNER will pay the full Interim Development Fees for Permitted Development constructed pursuant to the Master Site Plan.
Section 18. FUTURE APPROVALS.
18.1 Basis for Denying or Conditional Granting Future Approvals. Before OWNER can begin grading on the Property or other development of the Property, OWNER must secure several additional pennits and/or approvals from CITY. The parties agree that to the extent said Development Approvals are ministerial in nature, CITY shall not, through the enactment or enforcement of any subsequent ordinances, rules, regulations, initiatives, policies, requirements, guidelines, or other constraints, withhold such approvals as a means of blocking construction or of imposing conditions on the Project which were not imposed during an earlier approval period unless CITY has been ordered to do so by a court of competent jurisdiction. Notwithstanding the previous sentence, CITY and OWNER will use their best efforts to ensure each other that all applications for and approvals of grading permits, building permits or other developmental approvals necessary for OWNER to develop the Project in accordance with the Master Site Plan are sought and processed in a timely manner.
18.2 Standard of Review. The rules, regulations and policies that apply to any additional Development Approvals which OWNER must secure prior to the Development of the Property shall be the Existing Land Use Regulations, as defined in this Development Agreement.
18.3 Future Amendments to Master Site Plan. Future amendments to all or a portion of the Master Site Plan which increase the intensity or density of the Development of the Property beyond the maximum range set forth on the Development Summary Table, or change the pennitted uses of the Property and are not among those described in Section 10 of this 28 Development Agreement, may subject the portion or portions of the Project being amended or affected by the amendment to any change in the CITY's General Plan, zoning designations and rules applicable to the Property and further environmental review and possible mitigation of adverse impacts under CEQA in effect at the time of such amendment. Any such amendment to the Master Site Plan shall be processed concurrently with the processing of an amendment to this Development Agreement. It is the desire and intent of both parties, except as set forth herein, that any such future amendment of the Master Site Plan will not alter, affect, impair or otherwise impact the rights, duties and obligations of the parties under this Development Agreement with respect to the un-amended portions of the Master Site Plan.
Section 19. AMENDMENT.
19.1 Initiation of Amendment. Either party may propose an amendment to this Development Agreement.
19.2 Procedure. The procedure for proposing and adopting an amendment to this Development Agreement shall be the same as the procedure required for entering into this Development Agreement in the first instance. Such procedures are set forth in Sections 2, 3 and 5 of the Procedures Resolution.
19.3 Consent. Except as provided elsewhere within this Development Agreement, any amendment to this Development Agreement shall require the consent of both parties. No amendment of this Development Agreement or any provision hereof shall be effective unless set forth in writing and signed by duly authorized representatives of each party hereto.
19.4 Amendments. Subject to the foregoing provisions of this Section, the parties acknowledge that refinements and further development of the Project may demonstrate that changes are appropriate with respect to the details and performance of the parties under this Development Agreement. The parties desire to retain a certain degree of flexibility with respect to the details of the Development of the Project and with respect to those items covered in general terms under this Development Agreement. If and when the parties find that changes or adjustments are necessary or appropriate to further the intended purposes of this Development Agreement, they may, unless otherwise required by law, effectuate such changes or adjustments as specified in the Development Approvals.
19.5 Effect of Amendment to Development Agreement. The parties agree that except as expressly set forth in any such amendment, an amendment to this Development Agreement will not alter, affect, impair, modify, waive or otherwise impact any other rights, duties or obligations of either party under this Development Agreement.
Section 20. NON-CANCELLATION OF RIGHTS.
Subject to defeasance pursuant to Sections26, 27 or 28 of this Development Agreement, the Master Site Plan and other Development Approvals as provided for in this Development 29 Agreement shall be final and the rights once granted thereby shall be vested in the Property upon recordation of this Development Agreement.
Section 21. BENEFITS TO CITY.
The direct and indirect benefits CITY (including, without limitation, the existing and future anticipated residents of CITY) expects to receive pursuant to this Development Agreement include, but are not limited to, the following:
a. The participation of OWNER in the accelerated, coordinated and more economic construction, funding and dedication to the public, as provided in this Development Agreement, of certain of the vitally needed on-site and area-wide public improvements and facilities, and assurances that the entire Project will be developed as set forth in the Master Site Plan and this Development Agreement in order to encourage development of the Platinum Triangle; and b. The considerations set forth in Sections 9 and 12 of this Development Agreement.
Section 22. BENEFITS TO OWNER.
OWNER has expended and will continue to expend large amounts of time and money on the planning and infrastructure construction for the Project. OWNER asserts that OWNER would not make any additional expenditures, or the advanced expenditures required by this Development Agreement, without this Development Agreement and that any additional expenditures which OWNER makes after the Development Agreement Date will be made in reliance upon this Development Agreement. Without limiting the generality of the foregoing, this Development Agreement provides for the completion of public improvements and facilities prior to the time when they would be justified economically in connection with the phasing of the Project, and of a size which would be justified only by the magnitude of the Project provided for by the Master Site Plan and this Development Agreement. The benefit to OWNER under this Development Agreement consists of the assurance that OWNER will preserve the right to develop the Property as planned and as set forth in the Master Site Plan and this Development Agreement. The parties acknowledge that the public benefits to be provided by OWNER to CITY pursuant to this Development Agreement are in consideration for and reliance upon assurances that the Property can be developed in accordance with the Master Site Plan and this Development Agreement.
Section 23. UNDERTAKINGS AND ASSURANCES CONTEMPLATED AND PROMOTED BY DEVELOPMENT AGREEMENT STATU IL.
The mutual undertakings and assurances described above and provided for in this Development Agreement are for the benefit of CITY and OWNER and promote the comprehensive planning, private and public cooperation and participation in the provision of public facilities, and the effective and efficient development of infrastructure and facilities supporting development which was contemplated and promoted by the Development Agreement 30 Statute. CITY agrees that it will not take any actions which are intended to circumvent this Development Agreement; provided, however, that any action of the electorate shall not be deemed an action for purposes of this section.
Section 24. RESERVED AUTHORITY.
24.1 State and Federal Laws and Regulations. In the event that the State or Federal laws or regulations enacted after this Development Agreement has been entered into, prevent or preclude compliance with one or more provisions of the Development Agreement, such provisions of the Development Agreement shall be modified or suspended as may be necessary to comply with such State or Federal laws or regulations, provided, however, that this Development Agreement shall remain in full force and effect to the extent it is not inconsistent with such laws or regulations and to the extent such laws or regulations do not render such remaining provisions impractical to enforce. Notwithstanding the foregoing, CITY shall not adopt or undertake any rule, regulation or policy which is inconsistent with this Development Agreement until CITY makes a finding that such rule, regulation or policy is reasonably necessary to comply with such State and Federal laws or regulations. OWNER shall comply, at no cost to the CITY, with all applicable Federal or State laws or regulations relating to the Project or the use, occupancy or development of the Property under this Agreement. OWNER shall indemnify the CITY against any and all losses resulting from OWNER's failure to comply with any applicable State or Federal law or regulation.
24.2. Applicability of Uniform Codes to All Permit Activity within the Project. The Parties acknowledge that, in addition to submitting a Final Site Plan for each Development Area, OWNER must submit a variety of applications prior to commencement of construction of the Project or any portion thereof, including without limitation grading and building permit applications for the construction of residential and commercial buildings, street improvement permits, and encroachment permits, and sewer and water connection permits. The Parties acknowledge that OWNER submitted certain plans for a portion of the Project on June 24, 2014, and the CITY accepted such plans and has applied the provisions, requirements, rules and/or regulations contained in the Building Standards Codes and California Fire Code then in effect for, and applicable to, such plans. OWNER shall be responsible for obtaining all land use approvals, entitlements and permits required under applicable law before commencement of construction. When considering subsequent applications for approval of plans for the remainder of the Project, the CITY shall apply the provisions, requirements, rules and/or regulations then in effect that are contained in the Building Standards Codes, as adopted in Title 15, Chapter 15.03 of the Anaheim Municipal Code, and the California Fire Code, as adopted in Title 16, Chapter
16.08 of the Anaheim Municipal Code, as the same may be amended from time to time by the CITY.
24.3 Public Health and Safety. This Development Agreement shall not prevent CITY from adopting new rules, regulations and policies, including amendments or modifications to model codes described in Section 24.2 of this Development Agreement which directly result from findings by CITY that failure to adopt such rules, regulations or policies would result in a 31 condition injurious or detrimental to the public health and safety. Notwithstanding the foregoing, CITY shall not adopt any such rules, regulations or policies which prevent or preclude compliance with one or more provisions of this Development Agreement until CITY makes a finding that such rules, regulations or policies are reasonably necessary to correct or avoid such injurious or detrimental condition.
Section 25. CANCELLATION.
25.1 Initiation of Cancellation. Either party may propose cancellation of this Development Agreement.
25.2 Procedure. The procedure for proposing a cancellation of and canceling this Development Agreement shall be the same as the procedure required for entering into this Development Agreement in the first instance. Such procedures are set forth in Sections 2, 3 and 5 of the Procedures Resolution and Section 65868 of the Government Code.
25.3 Consent of OWNER and CITY. Any cancellation of this Development Agreement shall require the mutual consent of OWNER and CITY.
Section 26. PERIODIC REVIEW.
26.1 Time for Review. CITY shall, at least every twelve (12) months after the Development Agreement Date and so long as this Agreement is in effect, review the extent of good faith compliance by OWNER with the terms of this Development Agreement. OWNER's failure to comply with the timing schedules set forth in the Term Extension Milestones shall constitute rebuttable evidence of OWNER's lack of good faith compliance with this Development Agreement. Such periodic review shall determine compliance with the terms of this Development Agreement pursuant to California Government Code Section 65865.1 and other successor laws and regulations.
26.2 OWNER's Submission. Each year, not less than forty-five (45) days nor more than sixty (60) days prior to each anniversary of the Development Agreement Date, OWNER shall provide a letter to the Planning Director containing evidence to show its good faith compliance with the terms and conditions of this Development Agreement. OWNER shall notify the Planning Director in writing that such evidence is being submitted to CITY pursuant to the requirements of Section 6.2 of the Procedures Resolution. OWNER shall pay to CITY a reasonable processing fee in such amount as CITY may reasonably establish from time to time on each occasion that OWNER submits its evidence for a periodic review. The burden of proof of compliance is upon OWNER by substantial evidence.
26.3 Findings; Non-Compliance; Right to Cure. Within forty-five (45) days after the submission of OWNER's evidence, the City Council shall review the information submitted by OWNER and all other available evidence regarding OWNER's compliance with this Agreement and shall determine, on the basis of substantial evidence, whether or not OWNER has, for the 32 period under review, complied in good faith with the terms and conditions of this Development Agreement. If the City Council finds that OWNER has so complied, the review for that period shall be deemed concluded. The Planning Director shall notify OWNER in writing whether OWNER has complied with the terms of this Agreement. If the City Council finds and determines, on the basis of substantial evidence, that OWNER has not complied in good faith with the terms and conditions of this Development Agreement for the period under review, the Planning Director shall notify OWNER in writing and OWNER shall be given sixty (60) days to cure such non-compliance and if OWNER diligently and continuously pursues curing such non- compliance and the actions required to cure such non-compliance cannot reasonably be cured within sixty (60) days, then OWNER shall be entitled to cure, correct or remedy such non- compliance within such additional time as is reasonably necessary, but in no event more than one hundred twenty (120) days. If during the cure period, OWNER fails to cure such noncompliance or is not making reasonable good faith progress towards such end, then the City Council may, at its discretion, proceed to modify or terminate this Development Agreement or establish a time schedule for compliance in accordance with the procedures set forth in Section 28 of this Development Agreement. If such non-compliance is not cured within the applicable period provided above, it shall thereafter constitute a "Default". The CITY's failure to timely complete the annual review is not deemed to be a waiver of the right to do so at a later date.
26.4 Initiation of Review by City Council. In addition to the periodic review set forth in this Development Agreement, the City Council may at any time initiate a review of this Development Agreement upon the giving of written notice thereof to OWNER. Within thirty (30) days following receipt of such notice, OWNER shall submit evidence to the City Council of OWNER's good faith compliance with this Development Agreement and such review and determination shall proceed in the manner as otherwise provided in this Development Agreement.
Section 27. DEFAULTS, REMEDIES AND TERMINATION.
27.1 Default. For purposes of this Agreement and except as otherwise specifically provided elsewhere in this Agreement, the following shall constitute a default under this Agreement: (i) the failure to make any payment within ninety (90) days of when due; and (ii) the failure to perform or fulfill any other material term, provision, obligation, or covenant hereunder and the continuation of such failure for a period of sixty (60) calendar days following a written notice of default and demand for compliance; provided, however, if a cure cannot reasonably be completed within thirty (30) days, then it shall not be considered a default if a cure is commenced within said thirty (30) day period and diligently prosecuted to completion thereafter.
Notwithstanding the foregoing, if OWNER fails to strictly comply with the Term Extension Milestones described in Exhibit G, such failure shall be considered a failure of a condition and not a default. Any such failure of condition shall entitle the CITY to teiminate this Agreement without further notice or opportunity to satisfy the failed condition.
27.2 Notice of Default. Prior to the initiation of any action for relief specified in Section 27.3 below, the Party claiming default shall deliver to the other Party a written notice of 33 default (a "Notice of Default"). The Notice of Default shall specify the reasons for the allegation of default with reasonable specificity. If the alleged defaulting Party disputes the allegations in the Notice of Default, then that Party, within twenty (20) calendar days of receipt of the Notice of Default, shall deliver to the other Party a notice of non-default which sets forth with specificity the reasons that a default has not occurred. The Parties shall meet to discuss resolution of the alleged default. If, after good faith negotiation, the Parties fail to resolve the alleged default within thirty (30) calendar days, then the Party alleging a default may (i) institute legal proceedings pursuant to Section 27.3 to enforce the terms of this Agreement or (ii) send a written notice to terminate this Agreement pursuant to Section 27.3. The Parties may mutually agree in writing to extend the time periods set forth in this Section.
27.3 Remedies.
27.3.1 Specific Performance; Termination. In the event of a default under this Agreement, the remedies available to a Party shall include specific performance of the Agreement in addition to any other remedy available at law or in equity (subject to the prohibition on damages set forth in Section 27.4.2 below). The CITY's specific performance remedy shall include the right to require that OWNER complete any Public Improvements that OWNER has commenced, and to require dedication of the Public Improvements to the CITY upon completion together with the conveyance of real property as contemplated by this Agreement. In addition, in the event of a default under this Agreement, and following a public hearing of the City Council regarding such default and proposed termination, the non-defaulting Party may terminate this Agreement by sending a notice of termination to the other Party setting forth the basis for the termination. The Agreement will be considered terminated effective upon the date set forth in the notice of termination, which shall in no event be earlier than ninety (90) days following delivery of the notice. The Party receiving the notice of termination may take legal action available at law or in equity if it believes the other Party's decision to terminate was not legally supportable.
27.3.2 Prohibition on Monetary Damages. The Parties have determined that, except as set forth in this Section 27.4.2, (i) monetary damages are inappropriate and in no event shall the CITY be liable for any monetary damages whatsoever for any breach of this Agreement, (ii) it would be extremely difficult and impractical to fix or determine the actual damages suffered by a Party as a result of a breach hereunder, and (iii) equitable remedies and remedies at law not including damages but including termination are particularly appropriate remedies for enforcement of this Agreement. Consequently, OWNER agrees that CITY shall not be liable to OWNER for monetary damages under this Agreement, and CITY agrees that OWNER shall not be liable to CITY for monetary damages under this Agreement, and each covenants not to sue the other for or claim any damages under this Agreement (including without limitation special, incidental or consequential damages) and expressly waives its right to recover damages under this Agreement, except as follows: (1) the CITY shall have the right to recover actual damages only (and not consequential, punitive or special damages, each of which is 34 hereby expressly waived) for (a) OWNER's failure to pay sums to CITY as and when due under this Agreement, but subject to any express conditions for such payment set forth in this Agreement, and (b) OWNER's failure to make payment due under any Indemnity in this Agreement, (2) the CITY shall have the right to recover any and all damages relating to OWNER'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) either Party shall have the right to recover attorneys' fees and costs, as set forth in Section 31.9, 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 such judgment collection activities as may be ordered by the judgment, and no additional sums.
In addition: (1) CITY neither undertakes nor assumes any responsibility pursuant to this Agreement to review, inspect, supervise, approve, or inform OWNER of any matter in connection with the design, engineering, permitting, construction, operation, maintenance, repair, or replacement of the Permitted Development or any of the Community Improvements or Public Improvements and OWNER shall rely entirely on its own judgment with respect to such matters; provided, that nothing herein is intended to release CITY from whatever obligations it may have pursuant to applicable laws independent of this Agreement; and (2) by virtue of this Agreement, CITY shall not be directly or indirectly liable or responsible for any loss or injury of any kind to any person or property resulting from any construction on, or occupancy or use of (with the exception of occupancy or use of the Library/Community Room space discussed in Section 9.6 above, which shall be the CITY's responsibility), the Property in general or the portions of the Property on which any Community Improvements or Public Improvements are situated, whether arising from: (a) any defect in any building, grading, landscaping, or other on-site or off-site improvement constructed by or on behalf of OWNER, (b) any act or omission of OWNER or any of its agents, employees, independent contractors, licensees, lessees, or invitees, or (c) any accident on the Property or any fire or other casualty or hazard thereon.
27.4 No Waiver. Failure or delay in giving notice of default shall not constitute a waiver of default, nor shall it change the time of default. Except as otherwise expressly provided in this Agreement, any failure or delay by a Party in asserting any of its rights or remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies, nor shall it deprive any such Party of its right to institute and maintain any actions or proceedings that it may deem necessary to protect, assert, or enforce any such rights or remedies.
27.5 Joint and Several Liability. If OWNER consists of more than one person or entity with respect to any real property within the Property or any obligation under this Agreement, then the obligations of each person and/or entity shall be joint and several. 35 27.6 Specific Performance. CITY and OWNER acknowledge that, if OWNER fails to carry out its obligations under this Development Agreement, CITY shall have the right to refuse to issue any permits or other approvals which OWNER would otherwise have been entitled to pursuant to this Development Agreement. If CITY issues a permit or other approval pursuant to this Development Agreement in reliance upon a specified condition being satisfied by OWNER in the future, and if OWNER then fails to satisfy such condition, CITY shall be entitled to specific performance for the sole purpose of causing OWNER to satisfy such condition. The CITY's right to specific performance shall be limited to those circumstances set forth above, and CITY shall have no right to seek specific performance to cause OWNER to otherwise proceed with the development of the Project in any manner.
27.7 Legal Actions; Jurisdiction and Venue. Subject to the limitations on rights and remedies expressly set forth herein, either Party may institute legal action to cure, correct, or remedy any Default, enforce any covenant or agreement herein, enjoin any threatened or attempted violation, enforce by specific performance the obligations and rights of the Parties hereto or seek declaratory relief with respect to its rights, obligations or interpretations of this Agreement or pursue other remedies under applicable law. Notwithstanding any other provision or limitations on rights and remedies set forth in this Agreement, either Party may institute legal action to resolve any dispute regarding interpretation of the teirus of this Agreement. Any action at law or in equity arising under this Agreement or brought by either Party hereto for the purpose of enforcing, construing, or determining the validity of any provision of this Agreement shall be filed and tried in the Superior Court of the County of Orange, State of California, and to the maximum extent permitted by law the Parties hereto waive all provisions of law providing for the filing, removal, or change of venue to any other court.
Section 28. MODIFICATION OR TERMINATION.
If pursuant to Section 28.1 of this Development Agreement, CITY elects to modify or terminate this Development Agreement or establish a revised time schedule for compliance as herein provided, then CITY shall proceed as set forth in this Section.
28.1 Notice to OWNER. CITY shall give notice to OWNER of City Council's intention to proceed to modify or terminate this Development Agreement or establish a time schedule for compliance within ten (10) days of making the CITY's findings.
28.2 Public Hearing. The City Council shall set and give notice of a public hearing on modification, termination or a time schedule for compliance to be held within forty-days after the City Council gives notice to OWNER.
28.3 Decision. The City Council shall announce its findings and decisions on whether this Development Agreement is to be terminated, how this Development Agreement is to be modified or the provisions of the Development Agreement with which OWNER must comply and a time schedule therefor not more than ten (10) days following completion of the public hearing.
36 28.4 Standard of Review. Any determination by CITY to terminate this Development Agreement because OWNER has not complied in good faith with the terms of this Development Agreement must be based upon a finding by the City Council, based on the preponderance of evidence, that OWNER is in default and has not cured that default in the time frame permitted by Sections 26 and 27 above, as applicable.
28.5 Implementation. Amending or terminating this Development Agreement shall be accomplished by CITY enacting an ordinance. The ordinance shall recite the reasons which, in the opinion of the CITY, make the amendment or termination of this Development Agreement necessary. Not later than ten (10) days following the adoption of the ordinance, one copy thereof shall be forwarded to OWNER. This Development Agreement shall be terminated or this Development Agreement as modified shall become effective on the effective date of the ordinance terminating or modifying this Development Agreement.
28.6 Schedule for Compliance. Setting a reasonable time schedule for compliance with this Development Agreement may be accomplished by CITY enacting a resolution. The resolution shall recite the reasons which, in the opinion of CITY, make it advisable to set a schedule for compliance and why the time schedule is reasonable. Not later than ten (10) days following adoption of the resolution, one copy thereof shall be forwarded to OWNER.
Compliance with any time schedule so established as an alternative to amendment or termination shall be subject to periodic review as provided in this Development Agreement and lack of good faith compliance by OWNER with the time schedule shall be basis for termination or modification of this Development Agreement.
Section 29. ASSIGNMENT.
29.1 Right to Assign. OWNER shall have the right to sell, mortgage, hypothecate, assign or transfer this Development Agreement, and any and all of its rights, duties and obligations hereunder, to any person, partnership, joint venture, firm or corporation at any time during the term of this Development Agreement, provided that any such sale, mortgage, hypothecation, assignment or transfer must be pursuant to a sale, assignment or other transfer of the interest of OWNER in the Property, or a portion thereof. In the event of any such sale, mortgage, hypothecation, assignment or transfer, (a) OWNER shall notify CITY of such event and the name of the transferee, together with the corresponding entitlements being transferred to such transferee and (b) the agreement between OWNER and such transferee shall provide that either OWNER or the transferee or both shall be liable for the performance of all obligations of OWNER pursuant to this Development Agreement and the Development Approvals. Such transferee and/or OWNER shall notify CITY in writing which entity shall be liable for the performance of such obligations, and upon the express written assumption of any or all of the obligations of OWNER under this Development Agreement by such assignee, transferee or purchaser shall, without any act of or concurrence by CITY, relieve OWNER of its legal duty to perform said obligations under this Development Agreement with respect to the Property or 37 portion thereof, so transferred, except to the extent OWNER is not in default under the temis of this Development Agreement.
29.2 Release Upon Transfer. It is understood and agreed by the parties that the Property may be subdivided following the Development Agreement Date. One or more of such subdivided parcels may be sold, mortgaged, hypothecated, assigned or transferred to persons for development by them in accordance with the provisions of this Development Agreement.
Effective upon such sale, mortgage, hypothecation, assignment or transfer, the obligations of OWNER shall become several and not joint, except as to OWNER's obligations set forth in Section 9 of this Development Agreement. Upon the sale, transfer, or assignment of OWNER's rights and interests under this Development Agreement as permitted pursuant to Section 30.1 above, OWNER shall be released from its obligations under this Development Agreement with respect to the Property, or portion thereof so transferred, provided that (a) OWNER is not then in default under this Development Agreement, (b) OWNER has provided to CITY the notice of such transfer specified in Section 30.1 above, (c) the transferee executes and delivers to CITY a written agreement in which (i) the name and address of the transferee is set forth and (ii) the transferee expressly and unconditionally assumes all the obligations of OWNER under this Development Agreement and the Development Approvals with respect to the property, or portion thereof, so transferred and (d) the transferee provides CITY with security equivalent to any security provided by OWNER to secure performance of its obligations under this Development Agreement or the Development Approvals. Non-compliance by any such transferee with the terms and conditions of this Development Agreement shall not be deemed a default hereunder or grounds for termination hereof or constitute cause for CITY to initiate enforcement action against other persons then owning or holding interest in the Property or any portion thereof and not themselves in default hereunder. Upon completion of any phase of development of the Project as determined by CITY, CITY may release that completed phase from any further obligations under this Development Agreement. The provisions of this Section shall be self-executing and shall not require the execution or recordation of any further document or instrument. Any and all successors, assigns and transferees of OWNER shall have all of the same rights, benefits and obligations of OWNER as used in this Development Agreement and the term "OWNER" as used in this Development Agreement shall refer to any such successors, assigns and transferees unless expressly provided herein to the contrary.
Section 30. NO CONFLICTING ENACTMENTS.
By entering into this Development Agreement and relying thereupon, OWNER is obtaining vested rights to develop the Project in accordance with and subject to the terms and conditions of this Development Agreement, and in accordance with, and to the extent of, the Development Approvals. OWNER agrees that all improvements it constructs on the Property shall be done in accordance with this Agreement, the Development Approvals, the Existing Land Use Regulations, and in accordance with all applicable laws. By entering into this Development Agreement and relying thereupon, CITY is securing certain public benefits which promote the public health, safety and general welfare. CITY therefore agrees that, except as provided in Section 25 of this Development Agreement, neither the City Council nor any other agency of 38 CITY shall enact a rule, regulation, ordinance or other measure which relates to the rate, timing or sequencing of the Development or construction of all or any part of the Project and which is inconsistent or in conflict with this Development Agreement.
Section 31. GENERAL.
31.1 Force Majeure. The Term of this Development Agreement and the time within which OWNER shall be required to perform any act under this Development Agreement shall be extended by a period of time equal to the number of days during which performance of such act is delayed unavoidably by strikes, lock-outs, acts of God, failure or inability to secure materials or labor by reason of priority or similar regulations or order of any governmental or regulatory body, initiative or referenda, moratoria, enemy action, civil disturbances, fire, unavoidable casualties, or any other cause beyond the reasonable control of OWNER. A Party wishing to invoke this Section shall notify in writing the other Party to this Development Agreement of that intention within thirty (30) days of the commencement of any such cause for delay and shall, at that time, specify the reasons therefor, the provisions of this Development 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 cause for delay shall constitute a waiver of any right to later rely upon this Section with respect to that cause.
31.2 Construction of Development Agreement. The language in all parts of this Development Agreement shall in all cases, be construed as a whole and in accordance with its fair meaning to achieve the objectives and purposes of the Parties hereto, and the rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in interpreting this Agreement, both Parties having been represented by counsel in the negotiation and preparation hereof. The captions of the paragraphs and subparagraphs of this Development Agreement are for convenience only and shall not be considered or referred to in resolving questions of constructions. The parties understand and agree that this Development Agreement is not intended to constitute, nor shall it be construed to constitute, an impermissible attempt to contract away the legislative and governmental functions of CITY, and in particular, the CITY' s police powers. In this regard, the parties understand and agree that this Development Agreement shall not be deemed to constitute the surrender or abnegation of the CITY's governmental powers over the Property.
31.3 Severability. If any provision of this Development Agreement shall be adjudged to be invalid, void or unenforceable, such provision shall in no way affect, impair or invalidate any other provision hereof, unless such judgment affects a material part of this Development Agreement, the parties hereby agree that they would have entered into the remaining portions of this Development Agreement not adjudged to be invalid, void or illegal. In the event that all or any portion of this Development Agreement is found to be unenforceable, this Development Agreement or that portion which is found to be unenforceable shall be deemed to be a statement of intention by the parties; and the parties further agree that in such event they shall take all steps necessary to comply with such public hearings and/or notice requirements as may be necessary in 39 order to make valid this Development Agreement or that portion which is found to be unenforceable. Notwithstanding any other provisions of this Development Agreement, in the event that any material provision of this Development Agreement is found to be unenforceable, void or voidable, OWNER or CITY may terminate this Development Agreement in accordance with the provisions of the Development Agreement Statute and the Procedures Resolution.
31.4 Hold Hatmless Agreement; Indemnity.
31.4.1 OWNER and CITY hereby mutually agree to, and shall hold each other, each other's elective and appointive councils, boards, commissions, officers, partners, agents, representatives and employees harmless from any liability for damage or claims for damage for personal injury, including death, and from claims for property damage which may arise from the activities of the other's or the other's contractors', subcontractors', agents', or employees' which relate to the Project whether such activities be by OWNER or CITY, or by any of the OWNER's or the CITY' s contractors, subcontractors, or by any one or more persons indirectly employed by, or acting as agent for OWNER or any of the OWNER's or the CITY's contractors or subcontractors. OWNER and CITY agree to and shall defend the other and the other's elective and appointive councils, boards, commissioners, officers, partners, agents, representatives and employees from any suits or actions at law or in equity for damage caused or alleged to have been caused by reason of the aforementioned activities which relate to the Project.
31.4.2 From and after the execution of this Agreement, OWNER hereby agrees to indemnify, defend and hold harmless the CITY and its employees, officers, City Council members, Planning Commissioners, representatives, heirs, successors and assigns of all such persons, and each of them, from and against all losses and liabilities related directly or indirectly to, or arising out of or in connection with (i) any of OWNER'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 OWNER's activities on the Property (or the activities of OWNER's agents, employees, lessees, representatives, licensees, guests, invitees, successors, assigns, contractors, subcontractors 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. Notwithstanding anything in this Agreement which is or appears to be to the contrary, this indemnity shall survive any termination or cancellation of this Agreement, regardless of how caused.
31.5 Cooperation in the Event of Legal Challenge. In the event of any legal action or proceeding instituted by a third party or other governmental entity or official challenging the validity of any provision of this Development Agreement and/or the Development Approvals, other actions taken pursuant to CEQA, or other approvals under State or CITY codes, statutes, 40 regulations or requirements, and any combination thereof relating to the Project or any portion thereof ("Third Party Challenge"), the Parties hereby agree to cooperate fully with each other in defending said action and the validity of each provision of this Development Agreement; however, OWNER shall be liable for all legal expenses and costs incurred in defending any such action and shall reimburse the CITY for its actual costs in defense of the action or proceeding, including, but not limited to the time and expenses of the City Attorney's Office and any consultants; provided, however, (i) OWNER shall have the right to monthly invoices for all such costs, and (ii) OWNER may elect to teiminate this Agreement, and upon any such termination, OWNER' s and CITY' s obligations to defend the Third Party Challenge shall cease and OWNER shall have no responsibility to reimburse any CITY defense costs incurred after such termination date. OWNER shall Indemnify the CITY from any other liability incurred by the CITY, its officers, and its employees as the result of any Third Party Challenge, including any award to opposing counsel of attorneys' fees or costs, except where such award is the result of the willful misconduct of CITY or its officers or employees. This section shall survive any judgment invalidating all or any part of this Agreement.. OWNER shall be entitled to choose legal counsel to defend against any such legal action and shall pay any attorneys' fees awarded against CITY or OWNER, or both, resulting from any such legal action. OWNER shall be entitled to any award of attorneys' fees arising out of any such legal action.
31.6 Public Agency Coordination. CITY and OWNER shall cooperate and use their respective best efforts in coordinating the implementation of the Development Approvals with other public agencies, if any, having jurisdiction over the Property or the Project.
31.7 Initiative Measures. Both CITY and OWNER intend that this Development Agreement is a legally binding contract which will supersede any initiative, measure, moratorium, referendum, statute, ordinance or other limitation (whether relating to the rate, timing or sequencing of the Development or construction of all or any part of the Project and whether enacted by initiative or otherwise) affecting parcel or subdivision maps (whether tentative, vesting tentative or final), building permits, occupancy certificates or other entitlements to use approved, issued or granted within the CITY, or portions of the CITY, and which Agreement shall apply to the Project to the extent such initiative, measure, moratorium, referendum, statute, ordinance or other limitation is inconsistent or in conflict with this Development Agreement. Should an initiative, measure, moratorium, referendum, statute, ordinance, or other limitation be enacted by the citizens of CITY which would preclude construction of all or any part of the Project, and to the extent such initiative, measure, moratorium, referendum, statute, ordinance or other limitation be determined by a court of competent jurisdiction to invalidate or prevail over all or any part of this Development Agreement, OWNER shall have no recourse against CITY pursuant to the Development Agreement, but shall retain all other rights, claims and causes of action under this Development Agreement not so invalidated and any and all other rights, claims and causes of action as law or in equity which OWNER may have independent of this Development Agreement with respect to the project. The foregoing shall not be deemed to limit OWNER's right to appeal any such determination that such initiative, measure, referendum, statute, ordinance or other limitation invalidates or prevails over all or any part of this Development Agreement. CITY agrees to 41 cooperate with OWNER in all reasonable manners in order to keep this Development Agreement in full force and effect, provided OWNER shall reimburse CITY for its out-of-pocket expenses incurred directly in connection with such cooperation and CITY shall not be obligated to institute a lawsuit or other court proceedings in this connection.
31.8 Attorneys Fees. In the event that either Party hereto brings any action or files any proceeding against the other for default under this Agreement or to enforce any provision in this Development Agreement, the prevailing Party in such action or proceeding shall be entitled to recover its reasonable expenses, attorneys' fees and costs from the losing Party. For purposes of this Agreement, "reasonable attorneys' fees and costs" shall mean the fees and expenses of counsel to the Party, which may include printing, duplicating and other expenses, air freight charges, hiring of experts, and fees billed for paralegals. The attorneys' fees so recovered shall include fees for prosecuting or defending any appeal and shall be awarded for any supplemental proceedings until the final judgment is satisfied in full. In addition to the foregoing award of attorneys' fees to the prevailing Party, the prevailing Party in any lawsuit on this Development Agreement shall be entitled to its attorneys' fees incurred in any post judgment proceedings to collect or enforce the judgment. This provision is separate and several and shall survive the merger of this Development Agreement into any judgment on this Development Agreement.
31.9 No Waiver. No delay or omission by either party in exercising any right or power accruing upon non-compliance or failure to perform by the other party under any of the provisions of this Development Agreement shall impair any such right or power or be construed to be a waiver thereof A waiver by either party of any of the covenants or conditions to be performed by the other party shall not be construed as a waiver of any succeeding breach of non- performance of the same or other covenants and conditions hereof.
31.10 Authority to Execute. The person executing this Development Agreement on behalf of OWNER warrants and represents that he/she has the authority to execute this Development Agreement on behalf of his/her partnership and represents that he/she has the authority to bind OWNER to the performance of OWNER's obligations hereunder.
31.11 Notice.
31.11.1 To OWNER. Any notice required or permitted to be given by CITY to OWNER under or pursuant to this Development Agreement shall be deemed sufficiently given if in writing and delivered personally to an officer of OWNER or mailed with postage thereon fully prepaid, registered or certified mail, return receipt requested, addressed; to OWNER as follows:
PT Metro, LLC
c/o Lennar Homes of California, Inc.
25 Enterprise, Suite 310
Aliso Viejo, California 92656
Attention: Ryan Gatchalian
42 or such changed address as OWNER shall designate in writing to CITY.
With a copy to:
Jackson DeMarco Tidus Peckenpaugh
2030 Main Street, 12th Floor
Irvine, CA 92614
Attention: Gregory P. Powers, Esq.
31.11.2 To CITY. Any notice required or permitted to be given to CITY under or pursuant to this Development Agreement shall be made and given in writing, if by mail addressed to:
City Council
City of Anaheim
do City Clerk
P.O. Box 3222
Anaheim, California 92803
With copies to:
City Manager
City of Anaheim
P.O. Box 3222
Anaheim, California 92803
City Attorney
City of Anaheim
P.O. Box 3222
Anaheim, California 92803
or such changed address as CITY shall designate in writing to OWNER.
Alternatively, notices to CITY may also be personally delivered to the City Clerk, at the Anaheim Civic Center, 200 S. Anaheim Blvd., Second Floor, Anaheim, California, together with copies marked for the City Manager and the City Attorney or, if so addressed and mailed, with postage thereon fully prepaid, registered or certified mail, return receipt requested, to the City Council in care of the City Clerk at the above address with copies likewise so mailed to the City Manager and the City Attorney, respectively and also in care of the City Clerk at the same address. The provisions of this Section shall be deemed permissive only and shall not detract from the validity of any notice given in a manner which would be legally effective in the absence of this Section.
43 31.12 Captions. The captions of the paragraphs and subparagraphs of this Development Agreement are for convenience and reference only and shall in no way define, explain, modify, construe, limit, amplify or aid in the interpretation, construction or meaning of any of the provisions of this Development Agreement.
31.13 Consent. Any consent required by the parties in carrying out the terms of this Development Agreement shall not unreasonably be withheld.
31.14 Further Actions and Instruments. Each of the Parties shall cooperate with the other to the extent contemplated hereunder in the performance of all obligations under this Development Agreement and the satisfaction of the conditions of this Development Agreement.
Upon the request of either Party at any time, the other Party shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this Development Agreement to carry out the intent and to fulfill the provisions of this Development Agreement or to evidence or consummate the transactions contemplated by this Development Agreement.
31.15 Subsequent Amendment to Authorizing Statute. This Development Agreement has been entered into in reliance upon the provisions of the Development Agreement Statute in effect as of the Development Agreement Date. Accordingly, subject to Section 24.1 above, to the extent that subsequent amendments to the Government Code would affect the provisions of this Development Agreement, such amendments shall not be applicable to this Development Agreement unless necessary for this Development Agreement to be enforceable or unless this Development Agreement is modified pursuant to the provisions set forth in this Development Agreement and Government Code Section 65868 as in effect on the Development Agreement Date.
31.16 Governing Law. This Development Agreement, including, without limitation, its existence, validity, construction and operation, and the rights of each of the Parties shall be governed and interpreted in accordance with the laws of the State of California.
31.17 Effect on Title. OWNER and CITY agree that this Development Agreement shall not continue as an encumbrance against any portion of the Property as to which this Development Agreement has terminated.
31.18 Mortgagee Protection. Entering into or a breach of this Development Agreement shall not defeat, render invalid, diminish, or impair the lien of Mortgagees having a mortgage on any portion of the Property made in good faith and for value, unless otherwise required by law.
No Mortgagee shall have an obligation or duty under this Development Agreement to perform OWNER's obligations, or to guarantee such performance prior to any foreclosure or deed in lieu thereof. Any person, including a Mortgagee, who acquires title to all or any portion of the Property by foreclosure, trustee's sale, deed in lieu of foreclosure, or otherwise shall succeed to all of the rights and obligations of OWNER under this Agreement and shall take title subject to 44 all of the terms and conditions of this Agreement. Nothing in this Agreement shall be deemed or construed to permit or authorize any such holder to devote any portion of the Property to any uses, or to construct any improvements, other than the uses and improvements provided for or authorized by the Development Approvals and this Agreement.
31.19 Notice of Default to Mortgagee, Right of Mortgagee to Cure. If the City Clerk timely receives notice from a Mortgagee requesting a copy of any notice of default given to OWNER under the terms of this Development Agreement, CITY shall provide a copy of that notice to the Mortgagee within ten (10) days of sending the notice of default to OWNER. The Mortgagee shall have the right, but not the obligation, for a period up to ninety (90) days after the receipt of such notice from CITY to cure or remedy, or to commence to cure or remedy, the default unless a further extension of time to cure is granted in writing by CITY. If the default is of a nature which can only be remedied or cured by such Mortgagee upon obtaining possession, such Mortgagee shall seek to obtain possession with diligence and continually through foreclosure, a receiver or otherwise, and shall thereafter remedy or cure the default or non-compliance within thirty (30) days after obtaining possession. If any such default or non-compliance cannot, with diligence, be remedied or cured within such thirty (30) day period, then such Mortgagee shall have such additional time as may be reasonably necessary to remedy or cure such default or non-compliance if such Mortgagee commences cure during such thirty (30) day period, and thereafter diligently pursues and completes such cure.
31.20 Bankruptcy. Notwithstanding the foregoing provisions of Section 31.20 of this Development Agreement, if any Mortgagee is prohibited from commencing or pursuing and prosecuting foreclosure or other appropriate proceedings in the nature thereof by any process or injunction issued by any court or by reason of any action by any court having jurisdiction of any bankruptcy or insolvency proceeding involving CITY, the times specified in this Section for commencing or prosecuting foreclosure or other proceedings shall be extended for the period of the prohibition.
31.21 Disaffirmance.
31.21.1 CITY agrees that in the event of teirnination of this Development Agreement by reason of any default by CITY, or by reason of the disaffirmance hereof by a receiver, liquidator or trustee for OWNER or its property, CITY, if requested by any Mortgagee, shall enter into a new Development Agreement for the Project with the most senior Mortgagee requesting such new agreement, for the remainder of the Tenn, effective as of the date of such termination, upon the terms, provisions, covenants and agreements as herein contained to the extent and subject to the law then in effect, and subject to the rights, if any, of any parties then in possession of any part of the Property, provided:
31.21.2 The Mortgagee shall make written request upon CITY for the new Development Agreement for the Project within thirty (30) days after the date of termination; 45 31.21.3 The Mortgagee shall pay to CITY at the time of the execution and delivery of the new Development Agreement for the Project expenses, including reasonable attorneys' fees, to which CITY shall have been subjected by reason of OWNER' s default; and
31.21.4 The Mortgagee shall perform and observe all covenants herein contained on OWNER's part to be performed, and shall further remedy any other conditions which OWNER under the terminated agreement was obligated to perform under its terms, to the extent the same are curable or may be performed by the Mortgagee.
31.21.5 Nothing herein contained shall require any Mortgagee to enter into a new agreement pursuant to Section 32.22.1 above, nor to cure any default of OWNER referred to above.
31.22 No Third Party Beneficiaries. This Development Agreement and all provisions hereof is made and entered into for the sole protection and benefit of CITY, OWNER and their successors and assigns. No other person shall have right of action based upon any provision in this Development Agreement.
31.23 Project as a Private Undertaking. It is specifically understood and agreed by and between the parties hereto that the Project is a private development, that neither party is acting as the agent of the other in any respect hereunder, and that each party is an independent contracting entity with respect to the terms, covenants and conditions contained in this Development Agreement. No partnership, joint venture or other association of any kind is formed by this Development Agreement. The only relationship between CITY and OWNER is that of a government entity regulating the development of private property and the owner of such private property.
31.24 Restrictions. Property OWNER shall place in any agreements to sell or convey any interest in the Property or any portion thereof, provisions making the terms of this Development Agreement binding on any successors in interest of OWNER and express provision for OWNER or CITY, acting separately or jointly, to enforce the provisions of this Development Agreement and to recover attorneys' fees and costs for such enforcement.
31.25 Recitals. The recitals in this Development Agreement constitute part of this Development Agreement and each party shall be entitled to rely on the truth and accuracy of each recital as an inducement to enter into this Development Agreement.
31.26 Recording. The City Clerk shall cause a copy of this Development Agreement to be executed by CITY and recorded in the Official Records no later than ten (10) days after CITY approves this Development Agreement with costs to be borne by OWNER.
31.27 Title Report. CITY is required to sign this Development Agreement only after OWNER has provided CITY with a satisfactory preliminary title report evidencing and current within six (6) months, unencumbered except for the Approved Exceptions (hereinafter the 46 "Permitted Exceptions") set in the preliminary title report for the Property, attached hereto as Exhibit F (the "Preliminary Title Report"). Any instrument of monetary encumbrance such as a deed of trust or a mortgage entered into subsequent to the date of the Preliminary Title Report and prior to the Development Agreement Date, shall contain language expressly subordinating such instruments of monetary encumbrance to the provisions of this Development Agreement.
OWNER shall present evidence, satisfactory to CITY, of OWNER's legal title to Property, subject only to the Permitted Exceptions and any such subordinated instruments of monetary encumbrance, at the time of recordation of this Agreement, or a memorandum thereof
31.28 Entire Agreement. This Development Agreement, constitutes the entire agreement between the parties with respect to the subject matter of this Development Agreement, and this Development Agreement supersedes all previous negotiations, discussions and agreements between the parties, and no parol evidence of any prior or other agreement shall be permitted to contradict or vary the terms hereof.
31.29 Successors and Assigns. The burdens of the Development Agreement shall be binding upon, and the benefits of the Development Agreement inure to all successors in interest and assigns of the parties to the Development Agreement.
31.30 OWNER's Title of Property. Neither party hereto shall be bound by any provision of this Development Agreement unless and until OWNER shall record this Development Agreement or a memorandum thereof, in the office of the County Recorder of the County sufficient to cause this Development Agreement and the obligations contained herein to attach to and encumber OWNER's fee title to Property.
31.31 Exhibits. All exhibits, including attachments thereto, are incorporated in this Development Agreement in their entirety by this reference.
31.32 Prevailing Wages. The OWNER shall comply with and shall require all contractors and subcontractors with respect to any contracts or subcontracts for the construction of the Public Improvements to comply with any applicable law or regulation for the payment of prevailing wages. The OWNER shall pay, or cause its contractors and subcontractors to pay, the prevailing rate of wages in the construction of the Public Improvements in accordance with the provisions of Labor Code Section 1720 et seq. and its implementing regulations (the "Prevailing Wage Law"). The OWNER hereby releases the CITY from liability, and hereby agrees to indemnify, assume all responsibility for, and hold the CITY and its officers, employees, agents, and representatives, hamiless from any and all claims, demands, actions, suits, proceedings, fines, penalties, damages, expenses resulting from, arising out of, or based upon the OWNER's acts or omissions pertaining to the compliance with the Prevailing Wage Law for the Public Improvements . Notwithstanding anything in this Agreement which is or appears to be to the contrary, this indemnity shall survive any termination or cancellation of this Agreement, regardless of how caused.
47 31.33 Organization and Standing of OWNER. OWNER is a limited liability company duly organized, qualified and validly existing and in good standing under the laws of the State of Delaware, and duly qualified to do business in the State of California, and has all requisite power and authority to enter into and perform its obligations under this Development Agreement.
OWNER has provided to the CITY true and complete copies of all of their governing documents, and the percentage ownership interests reflected therein are accurate as of the date of this Development Agreement.
31.34 Authorization and Consents. The execution, delivery and performance of this Development Agreement is consistent with OWNER's articles of organization and operating agreement and has been duly authorized by all necessary action of OWNER's managing members. All consents or approvals of OWNER's members required in connection with the execution and delivery by OWNER of this Development Agreement will have been obtained and delivered to CITY on or before the Development Agreement Date.
31.35 Time of the Essence. Time is of the essence in the performance of each and every covenant and obligation to be performed by the Parties under this Agreement.
31.36 No Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the Parties and their respective successors and assigns. No other person or entity shall have any right of action based upon any provision of this Agreement. [Remainder of page intentionally left blank; signatures on next page] 48 By:
Mayor Lucille Kring - Mayor 1Tem
IN WITNESS WHEREOF, CITY and OWNER have executed this Development Agreement as of the date and year first above written.
"CITY":
CITY OF ANAHEIM, a charter city and municipal corporation ATTEST:
APPROVED AS TO FORM:
MICHA_EL R.W. CITY ATTORNEY
By:
Theodore J. olds
Assistant C7 ttomey
[Signatures continued on next succeeding page.]
49 "OWNER":
PT METRO, LLC, a Delaware limited liability company
By: Lennar Homes of California, Inc.,
a California corporation,
Its sole member
By:
n Gatchalian
Vice President
112024-v4/11R
50 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.
STA I E OF CALIFORNIA
SS.
COUNTY OF ORANGE
On October 14, 2015, before me Sharon Lisa Temporal a Notary Public, personally appeared Ryan Gatchalian , who proved to me on the basis of satisfactory evidence, to be the person whose name(e'r is/are subscribed to the within instrument and acknowledged to me that he/sleith.6 executed the same in his/hertherr authorized capaeity(i.esl, and that by his/h.ef7thefr signature K on the instrument the personK or the entity upon behalf of which the personWacted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal
Signature
(SEAL)
SHARON LISA TEMPORAL
Commission # 2065016
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EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF ANAHEIM, COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
ALL OF LOTS 1 THROUGH 14, INCLUSIVE, LOTS A, B, MARKET STREET, BRYANT
STREET, GRANVILLE DRIVE, TRIAD STREET, UNION STREET, MERIDIAN LANE, METRO DRIVE, PARK LANE AND WESTSIDE DRIVE OF TRACT NO. 16859 AS SHOWN ON A MAP RECORDED IN BOOK 892, PAGES 1 THROUGH 10, INCLUSIVE, OF
MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXHIBIT "B"
MASTER SITE PLAN
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EXHIBIT "C"
CONDITIONS OF APPROVAL
NO. CONDITIONS OF APPROVAL REVIEW SIGNED OFF
BY BY
PRIOR TO APPROVAL OF MASTER TENTATIVE TRACT MAP
1 Prior to the approval of the Master Tentative Tract Map, information and plans shall be submitted to the Streets and Sanitation Division of the Public Works Department for review and approval of the following:
(a) Sewer and storm drain manhole Locations and Detour Plan Criteria (b) Trash truck turning radius
The approved information shall be shown on each Street Improvement Plan submitted to the Public Works Department.
Public Works
Department,
Development
Services
Division
2 Prior to the approval of the Master Tentative Tract Map, the boundaries of the numbered residential/mixed-use lots shall coincide with the boundaries of the development areas as identified in the Master Site Plan. These areas may be further subdivided in connection with the processing of subsequent builder tentative tract or parcel maps provided that a Final Site Plan showing the configuration of the subdivided lots and the proposed buildings is approved prior to or concurrently with the builder tentative tract or parcel map.
Planning and
Building
Department,
Planning
Services
Division
PRIOR TO OR WITH RECORDATION OF FINAL MASTER TRACT MAP
3 Prior to or with recordation of the Final Master Tract Map, the property owner/developer shall finalize the abandonment of any existing public roadways, public utilities and public utilities easements to the satisfaction of the Development Services Division of the Public Works Department.
Public Works
Department,
Development
Services
Division
4 Prior to the finalization and recordation of the Master Final Tract Map, Covenants, Conditions and Restrictions (CC&Rs) to run with the land shall be approved by the City of Anaheim, satisfactory to the Planning Director, Public Works Director and the City Attorney to address the maintenance responsibilities of the property owner for the project's parks (Public Park and Public Linear Park) and street parkway landscaping as shown on the Master Site Plan. Subsequent amendments shall be submitted to the City of Anaheim for review and approval.
Public Works
Department,
Development
Services
Division
PRIOR TO RECORDACTION OF APPLICABLE SUBDIVISION MAP
5 Prior to the recordation of the applicable subdivision map, as determined by the Fire Chief in consultation with City staff, the applicant shall enter into an agreement with the City for the installation of traffic signal preemption equipment for the surrounding controlled intersections.
Fire Department
PRIOR TO FINAL MAP APPROVAL
6 Prior to the approval of the Final Master Tract Map, the legal owner shall post an electrical performance bond as determined by Public Utilities per Rule 24 front foot fees.
Public Utilities
Department,
Electrical
Utilities
Exhibit "C"
NO. CONDITIONS OF APPROVAL REVIEW
BY
SIGNED OFF
BY
Division
7 Prior and as a condition precedent to the approval by the City of the Final Map for Tract No. 17703 and its recordation with the County Recorder, the Owner/Developer, will be required to execute, in recordable form, and deliver to the City an unsubordinated Declaration of Covenants in such form as may be acceptable to the City Engineer and City Attorney (or their duly authorized representatives) to ensure that the Community Improvements and those Public Improvements that are not accepted by the City for maintenance to be located within the boundaries of Tract No. 17703 and Tract No. 16859 will be maintained until such time as a Master Owners' Association has been formed, a declaration of covenants, conditions, and restrictions (CC&Rs) has been recorded against the lots in Tract No. 17703 and Tract No. 16859 imposing against each owner of a lot in Tract No. 17703 and Tract No. 16859 the obligation to maintain the Community Improvements and those Public Improvements that are not accepted by the City for maintenance, and the Master Owners' Association has assumed the responsibility to maintain the Community Improvements and those Public Improvements that are not accepted by the City for maintenance. Said Maintenance Covenant shall supersede and replace that certain "Covenant Regarding Interim Development Requirements and Maintenance Obligations", dated October 23, 2006 and recorded in the Official Records of the County of Orange on November 3, 2006 as Instrument No. 2006000746607.
Public Works
Department,
Development
Services
Division
8 Prior to approval of the Master Final Tract Map, the legal property owner shall furnish a Subdivision Agreement to the City of Anaheim, in a form to be approved by the City Attorney's office, agreeing to complete the public improvements required as conditions of the map at the legal property owner's expense. Said agreement shall be submitted to and approved by the City of Anaheim and shall be recorded concurrently with the Master Final Tract Map.
Public Works
Department,
Development
Services
Division
9 Prior to the approval of the Master Final Tract Map distinctive boundaries for all lots shall be extended to the street centerline. The City shall obtain right-of-way easements for public street purposes and does not retain fee ownership.
Public Works
Department,
Development
Services
Division
10 That prior to the approval of the Master Final Tract Map for condominium projects, the maps shall be labeled "for condominium purposes".
Public Works
Department,
Development
Services
Division
11 That prior to the approval of the Master Final Tract Map, the property owner/developer shall submit for City approval mass grading, street, sewer, storm drain and landscape (including/street tree) improvement plans for the public improvements along Gene Autry Way and the project's connector streets to the Public Works Department, Development Services Division. The street improvement plans shall be reviewed for City approval prior to the approval of the Public Works
Department,
Development
Services
Division
Exhibit "C"
NO. CONDITIONS OF APPROVAL
REVIEW SIGNED OFF
BY BY
Master Final Tract Map. Street tree selections for public streets shall be in conformance with The Platinum Triangle Master Land Use Plan and the approved Landscape Plans from the Master Site Plan exhibits. Improvement bonds shall be posted in amounts approved by the City Engineer and a form approved by the City Attorney prior to approval of the Final Master Tract Map or issuance of grading permit, whichever occurs first. A Right-of-Way Construction Permit shall be obtained from the Development Services Division for all work performed in the right-of-way. The improvements shall be constructed pursuant to Section 9.3 (Timing, Phasing and Sequence of Public Improvements and Facilities) and Exhibit "H" (Infrastructure Phasing Plan) of this Amended and Restated Development Agreement.
12 Prior to the approval of the Master Final Tract Map, final backbone Street Improvement Plans in conjunction with the approved Master Site Plan shall be submitted to the City Traffic and Transportation Manager for review and approval.
The plans shall include, but not be limited to, street revisions as required by the City Traffic and Transportation Manager, on-street parking spaces shall be posted, "No Overnight Parking, Except by Permission of the Management", the location of traffic signal box locations, alignment of the project's intersection of Market Street and Katella Avenue with the Auburn Way intersection on the north side of Katella Avenue. The plan shall indicate all construction staging areas with reserved space for construction parking and shall also designate truck routes to the satisfaction of the Traffic and Transportation Manager. The final backbone Street Improvement Plan shall provide details sufficient to ensure that all street improvements will occur during the initial street construction. Streets shall be constructed in accordance with Exhibit "H" (Infrastructure Phasing Plan) of the Amended and Restated Development Agreement and with the detailed phasing plan required by Section 9.3 (Timing, Phasing and Sequence of Public Improvements and Facilities) of this Amended and Restated Development Agreement.
Public Works
Department,
Traffic
Engineering
Division
13 Prior to the approval of the Final Master Tract Map, the property owner/developer shall post a bond for all traffic related street improvements, including, but not limited to, traffic signals, directional signage, striping, and median islands as required by Mitigation Monitoring Plan No.321 referenced herein in Condition No.
10. The traffic signal at the intersection of Gene Autry and Union Street shall be designed prior to issuance of the first residential building permit for Development Areas D, E, F or G, whichever is first, and be installed at the ultimate locations and be operational prior to certificate of occupancy for the first residential dwelling unit of Development Areas D, E, F or G, whichever comes first. The property owner/developer shall comply with the timeframes set forth in this condition, provided that modifications to these timeframes may be approved by the City as set forth in the detailed phasing plan required by Section 9.3 (Timing, Phasing and Sequence of Public Improvements and Facilities) of this Amended and Restated Development Agreement provided said modifications do not result in any environmental impacts.
Public Works
Department,
Traffic
Engineering
Division
PRIOR TO APPROVAL OF FIRST FINAL SIM PLAN
14 That prior to the approval of the first Final Site Plan, easements shall be provided by the property owner/developer for surface mounted switches that are integral to electrical circuits to the satisfaction of the Public Utilities Department. The Public Utilities
Department,
Electrical
Exhibit "C"
NO. CONDITIONS OF APPROVAL
REVIEW SIGNED OFF
BY BY
property owner/developer shall install the duct bank, substructures and provide switch easements as the new streets are installed. The Public Utilities Department will specify the duct bank and easement configurations when a load schedule is available. This information shall be specifically shown on the street improvement plans submitted by the property owner/developer. The backbone circuits will serve the electrical systems required for the individual residential commercial buildings.
Engineering
Division
15 Prior to the approval of the first final site plan, the developer/owner shall submit a comprehensive utility layout plan showing all utilities including, but not limited to Water, Sewer, Storm Drain, Electric, Gas, and etc. to Water Engineering for review and approval.
Public Utilities
Department,
Water
Engineering
Division
PRIOR TO APPROVAL P OF EACH FINAL EPLAN
16 A Master Final Tract Map (Final Tract Map No. 17703) to resubdivide approximately 37.0 acres (excluding Development Area "A" formerly Lots 1 and 11 of Tract No. 16859 and a portion of Westside Drive to be adjusted with Lot Line Adjustment No. LLA-0000720) of the project site shall be recorded prior to approval of a Final Site Plan or a builder tentative tract or parcel map for Development Areas B, C, D, E, F, G, and H subject to the following:
(a) The Master Final Tract Map shall contain a note that the approval of a Final Site Plan is required prior to issuance of the first building permit in each Development Area.
(b) Irrevocable offers of dedication, including necessary construction easements and easements for street, public utility and other public purposes, for the ultimate right-of-way improvements for the following Arterial Street, Connector Streets, Market Street and park sites listed below and identified in these conditions of approval, shall be made prior to recordation of the Master Final Tract Map:
1. Gene Autry Way (arterial street) corner cutouts at
Union Street and Westside Drive intersections.
2. Market Street and Connector Streets within the
Master Site Plan boundaries - Market Street, Metro Drive, Union Street, Park Street, Meridian Street and Westside Drive as shown on the Master Site Plan.
3. Public Park and Public Linear Park in the
locations shown on the Master Site Plan.
(e) Prior to approval of the Master Final Tract Map
1. The alignments and dimensions of the streets
listed in (b-2) above shall be shown on the Master Final Tract Map to the satisfaction of the Public Works Department;
2. The park acreage and boundaries listed in (b-3)
above shall be approved by the Community Services Department; (d) Prior to approval of the Final Master Tract Map, the park obligations of the property owner/developer shall be secured by performance bonds, letters of credit or another form of security, in an Public Works
Department,
Development
Services
Division / City
Attorney's
Office /
Community
Services
Department
Exhibit "C"
NO. CONDITIONS OF APPROVAL REVIEW
13Y
SIGNED OFF
BY
amount and form approved by the City Attorney's Office and the Community Services Department. The City will release any existing bonds which have been replaced or reduced within 10 days of approval of the replacement bonds.
(e) Prior to recordation of the Final Master Tract Map:
1. All dedicated park properties shall be free of encumbrances or easements unless otherwise acceptable to the Community Services Department.
2. Before the dedication of any park area is
accepted by the City, a Title Report for that park must be provided to and approved by the City Attorney's Office. 17 Prior to the approval of each Final Site Plan, plans shall show that all plumbing or other similar pipes and fixtures located on the exterior of the building shall be fully screened by architectural devices and/or appropriate building materials. Said information shall be specifically shown on plans submitted for building permits and implemented prior to the first final building and zoning inspection for each building.
Planning and
Building
Department,
Planning
Services
Division
18 Prior to the approval of each Final Site Plan, plans shall indicate that assigned parking spaces shall be provided for each residential unit. Said information shall be specifically shown on plans submitted for building permits and evidence in the form of a letter from the property owner/developer shall be provided to the Planning Services Division of the Planning and Building Department showing implementation of this requirement prior to the first final building and zoning inspection for the parking structure.
Planning and
Building
Department,
Planning
Services
Division
19 Prior to the approval of each Final Site Plan, architectural plans shall show all air conditioning facilities and other roof-and ground-mounted equipment shall be properly shielded from view with roof plans, elevations, and with line-of-sight plans. Said information shall be specifically shown on the plans submitted for building permits and implemented prior to the first final building and zoning inspection for each building.
Planning and
Building
Department,
Planning
Services
Division
20 Prior to the approval of each Final Site Plan, plans shall identify the location of a mail delivery parking stall and indicate that the stall shall be posted with a sign that indicates it is a reserved space for mail delivery. Said information shall be specifically shown on plans submitted for building permits and said parking space and sign shall be installed prior to the first final building and zoning inspection for each Final Site Plan.
Planning and
Building
Department,
Planning
Services
Division
21 Prior to the approval of each Final Site Plan, plans shall indicate that above-ground utility devices are located on private property and outside any required setback areas adjacent to arterial highways or connector streets. Prior to the issuance of the first building permit for the approved Final Site Plan, the above-ground utility devices shall be specifically shown on construction plans in locations substantially in accordance with the approved Final Site Plan.
Public Utilities
Department
22 Prior to the approval of each Final Site Plan including a podium structure, plans shall indicate that all transformers and switching equipment shall be located within Public Utilities
Department,
Exhibit "C"
NO. CONDITIONS OF APPROVAL REVIEW SIGNED OFF
BY BY
electric equipment rooms located within the podium structure. Said locations shall be reviewed and approved by the Public Utilities Department prior to the approval of the Final Site Plan.
Electrical
Engineering
Division
23 That prior to the approval of each Final Site Plan, plans shall show that 4-foot-high address numbers shall be displayed on the roof of each building in a contrasting color to the roof material. Said numbers shall not be visible from view of the street or adjacent properties. Said information shall be subject to the review and approval of the Police Department and the Planning Services Division of the Planning and Building Department. Said numbers shall be provided prior to the first final building and zoning inspection for each building.
Police
Department
24 That prior to the approval of each Final Site Plan, the property owner/developer shall identify on the Final Site Plan easements for emergency, public utility and other public purposes for fire access as required for each development area. Prior to the first final building and zoning inspection, the property owner/developer shall irrevocably offer to dedicate the approved easements to the City of Anaheim.
Public Works
Department,
Development
Services
Division
25 Prior to the approval of each Final Site Plan for each podium building, plans shall indicate that a minimum horizontal clearance of 18 feet or other clearance as determined acceptable by the Streets and Sanitation Division of the Public Works Department shall be provided and maintained on the ground floor parking structure to allow access for the trash bin retrieval vehicle. A "No Parking Between the Hours of 7 A.M. and 5 P.M." sign shall be posted to allow trash bin retrieval access.
Said information shall be specifically shown on plans submitted for building permits and the building constructed with the approved clearance and the signs posted prior to the first final building and zoning inspection for each podium building.
Public Works
Department /
Streets &
Sanitation
Division
26 Prior to the approval of each Final Site Plan, plans shall indicate that trash storage areas and trash chutes shall be provided and maintained in a location acceptable to the Public Works Department, Streets and Sanitation Division. Said information shall be specifically shown on plans submitted for building permits.
Public Works
Department /
Streets &
Sanitation
Division
27 Prior to approval of each Final Site Plan for residential buildings with podium or structured parking, plans shall indicate that a separate 8' x 10' enclosed and secured bulky item storage area, as shown on the approved Solid Waste Management Plan, shall be provided and maintained, as required by the Public Works Department, Streets and Sanitation Division. Said information shall be specifically shown on plans submitted for building permits.
Public Works
Department /
Streets &
Sanitation
Division
28 Prior to the approval of each Final Site Plan, an on-site trash truck turnaround area shall be provided per Engineering Standard Detail No. 476 and maintained to the satisfaction of the Public Works Department, Streets and Sanitation Division. Said turnaround area shall be specifically shown plans submitted for building permits.
Public Works
Department /
Streets &
Sanitation
Division
29 Prior to the approval of each Final Site Plan, plans shall show any proposed gates and shall demonstrate that gates shall not be installed across any driveway or private street in a manner which may adversely affect vehicular traffic on the adjacent public street. The location of any proposed gates shall be subject to the review and Public Works
Department,
Traffic
Engineering
Exhibit "C"
O. CONDITIONS OF APPROVAL REVIEW
BY
SIGNED OFF
BY
approval of the City Traffic and Transportation Manager. The approved gate locations shall be specifically shown on plans submitted for building permits and all gates shall be installed prior to the first final building and zoning inspection for the parking lot/parking structure.
Division
30 Prior to approval of each Final Site Plan with security gates and vehicle turn-around lanes, the location of said gates and lanes and how they will function shall be reviewed and approved by the City Traffic and Transportation Manager and the Fire Department.
Public Works
Department,
Traffic
Engineering
Division
31 Prior to the approval of each Final Site Plan, plans shall demonstrate that at-grade ducts and overhead pipes shall not encroach in the parking space area or required vehicle clearance area in parking structures. Said information shall be specifically shown on plans submitted for building permits.
Public Works
Department,
Traffic
Engineering
Division
32 That prior to the approval of the First Site Plan, the property owner/developer shall submit engineering studies to size the water mains for ultimate development within the Master Site Plan to the Water Engineering Division of the Public Utilities Department for review and approval by the General Manager, Public Utilities Department, or his authorized designee. The water system may be constructed incrementally, provided that said incremental phasing is adequate to provide municipal and fire flow protection for the proposed development phasing and the water facilities installed under said incremental phasing are sized to provide the future municipal demands and fire protection for any future phasing/development that will ultimately be served by those water facilities. The property owner/developer shall conform with Rule 15A of the Water Utility's Rates, Rules and Regulations for all parcels which have not yet paid the fee to provide the secondary distribution system to serve their project. The property owner/developer shall conform with Rule 15D of the Water Utility's Rates, Rules and Regulations, which requires a Gross Floor Building Area Fee be paid on a gross square foot basis for new residential, commercial and office developments within the Platinum Triangle. The property owner/developer shall abandon and remove the existing previously installed public water facilities and install new public water facilities per the direction and approval of the General Manager, Public Utilities Department, or his authorized designee. The cost for said removals and installations, including the cost of design review, inspection and supervision by the Utility, shall be paid directly by the property owner/developer. All public water facilities shall be designed and constructed in accordance with the Water Engineering Division's standards and specifications. A water improvement (UWM) plan showing said improvements must be submitted to the Water Engineering Division for review and approval.
Public Utilities
Department,
Water
Engineering
Division
33 That prior to approval of each Final Site Plan, the property owner/ developer shall submit plans demonstrating that all backflow equipment shall be located above ground outside of the street setback area in a manner fully screened from all public streets and alleys in locations approved by the Water Engineering Division of the Public Utilities Department or as otherwise approved by the Planning and Building Department. Any backflow assemblies currently installed in a vault shall be brought up to current standards. Any other large water system equipment shall be Public Utilities
Department,
Water
Engineering
Division
Exhibit "C"
NO. CONDITIONS OF APPROVAL REVIEW
BY
SIGNED OFF
BY
installed to the satisfaction of the Water Engineering Division above ground and outside of the street setback area in a manner fully screened from all public streets and alleys. Said information shall be specifically shown on plans submitted for approval by the Water Engineering Division of the Public Utilities Department. 34 That prior to approval of each Final Site Plan, the property owner shall identify easements for all large domestic above-ground water meters and fire hydrants, including a five (5)-foot wide easement around the fire hydrant and/or water meter pad; and twenty (20) foot wide easements for all water service mains and service laterals all to the satisfaction of the Water Engineering Division. The easements shall be granted on the Water Engineering Division of the Public Utilities Department's standard water easement deed. The easement deeds shall include language that requires the property owner to be responsible for restoring any special surface improvements, other than asphalt paving, including but not limited to colored concrete, bricks, pavers, stamped concrete, decorative hardscape, walls or landscaping that becomes damaged during any excavation, repair or replacement of City owned water facilities. Provisions for the repair, replacement and maintenance of all surface improvements other than asphalt paving shall be the responsibility of the property owner and included and recorded in the CC&Rs for the Development Area. Said easements shall be irrevocably offered for dedication to the City of Anaheim prior to issuance of the first building permit for the Final Site Plan, the first builder final tract or parcel map, or approval of the water improvement (UWM) plan.
Public Utilities
Department,
Water
Engineering
Division
PRIOR TO GRADING PLAN APPROVAL
35 Prior to grading plan approval, the water quality management plan shall address the following items:
• The WQMP shall include additional information such as soils analysis, prior contamination, depth to groundwater, etc. to determine the acceptability and capability of this site to use infiltration. • The criteria identified in the DAMP in order to allow infiltration to occur on a site must be evaluated and deemed adequate for the determination to be made to infiltrate onsite.
• The applicant shall obtain approval for infiltration from the City and from the Orange County Water District. The City will coordinate the review of this proposed infiltration system to obtain comments. • The WQMP and grading plans shall show that flows are conveyed to the infiltration areas.
• The WQMP shall show the required pretreatment for any focused infiltration. The pretreatment system may be landscape swales, filter strips or bio-retention areas (rain gardens), prior to reaching the infiltration system.
Public Works
Department,
Development
Services
Division
36 Prior to grading plan approval, the applicant shall submit a Drainage Study prepared by a registered professional Civil Engineer in the State of California. The Study shall be based upon and reference the latest edition of the Orange County Hydrology Manual and the applicable City of Anaheim Master Plan of Drainage for the project area. All drainage sub-area boundaries per the Master Plan for Drainage shall be maintained. The Study shall include: an analysis of 10-, 25- and 100-year Public Works
Department,
Development
Services
Division
Exhibit "C"
NO. CONDITIONS OF APPROVAL REVIEW
BY
SIGNED OFF
BY
storm frequencies; an analysis of all drainage impacts to the existing storm drain system based upon the ultimate project build-out condition; and address whether off-site and/ or on-site drainage improvements (such as detention/ retention basins or surface runoff reduction) will be required to prevent downstream properties from becoming flooded.
PRIOR TO ISSUANCE OF GRADING PERMITS
37 That prior to the issuance of the first grading permit for the Master Final Tract Map and for each Final Site Plan, the property owner/developer shall submit a Water Quality Management Plan to the Public Works Department Development Services Division for review and approval that:
(a) Addresses Site Design Best Management Practices (BMP's) such as minimizing impervious areas, maximizing permeability, minimizing directly connected impervious areas, creating reduced or "zero discharge" areas, and conserving natural areas;
(b) Incorporates the applicable Routine Source Control BMP's as defined in the Drainage Area Management Plan;
(c) Incorporates Treatment Control BMP's as defined in the DAMP; (d) Describes the long-term operation and maintenance requirements for the Treatment Control BMP's;
(e) Identifies the entity that will be responsible for long-term operation and maintenance of the Treatment Control BMP's, and describes the mechanism for funding the long-term operation and maintenance of the Treatment Control BMP's; and
(f) Ensures implementation of the Water Quality Management Plan during on- going grading operations.
Public Works
Department,
Development
Services
Division
38 Prior to issuance of a grading permit (except for Development Area A) or as approved by the City Engineer, existing previously installed public facilities under Final Tract Map No. 16859 including but not limited to sewer, storm drain, curb and gutter, pavement and etc. shall be removed per RCP2014-10542.
Public Works
Department,
Development
Services
Division
39 The developer shall improve the downstream storm drain as determined by the approved preliminary drainage report. The plans for all required storm drain improvements shall be approved prior issuance of grading permits. All required storm drain improvements shall be operational prior to final building and zoning inspections.
Public Works
Department,
Development
Services
Division
40 Prior to the approval of a mass or rough grading permit, portions of existing infrastructure to be replaced shall be demolished. The property owner/developer shall obtain a demolition permit from the Building Division of the Planning and Building Department. Plans submitted for the demolition permit shall include a demolition recycling plan which has been reviewed and approved by the Public Works Department, Streets and Sanitation Division. The demolition recycling plan shall indicate type of material to be demolished, anticipated tonnage diverted and anticipated tonnage landfilled. Inert demolition material (dirt, concrete, masonry, asphalt, etc.) shall be disposed of in an inert reclamation site, or diverted by other means rather than landfilled.
Streets &
Sanitation
Division /
Public Work
PRIOR TO ISSUANCE OF BUILDING PERMITS
Exhibit "C"
NO. CONDITIONS OF APPROVAL
REVIEW SIGNED OFF
BY BY
41 Prior to the issuance of a building permit for Development Area A, a Lot Line Adjustment shall be recorded to merge Lots 1 and 11 of Tract Map No. 16859 and the abandonment and rededication of Westside Drive shall be submitted to the City of Anaheim for approval and recorded.
Public Works
Department,
Development
Services
Division
42 Prior to the approval of each street improvement plan for the connector streets within the project boundary, the property owner/developer shall submit production landscape plans for the street parkways designed in conformance with the approved Landscape Plans of the Master Site Plan exhibits and Section 4 of the Platinum Triangle Master Land Use Plan (PTMLUP).
Planning and
Building
Department,
Planning
Services
Division
43 Prior to the issuance of the first building permit associated with the approved Final Site Plan for each Development Area, all units shall be assigned street addresses by the Building Division of the Planning and Building Department. Street names for any new public or private street (if requested by the property owner/developer or required by the City) shall be submitted to and approved by the Building Division.
Planning and
Building
Department,
Planning
Services
Division
44 That prior to the issuance of the first building permit for each Final Site Plan, plans shall show that visitor parking spaces shall be posted "No Overnight Parking, Except by Permission of the Management". Said signs shall be installed prior to the first final building and zoning inspection for the parking structure and/or parking lot.
Planning and
Building
Department,
Planning
Services
Division
45 Prior to the issuance of the first building permit for each Final Site Plan, plans shall show that satellite or other cable/transmission television wiring (concealed from outside the building) shall be provided to each unit and a note shall be added to the construction drawings stating that individual television service involving the installation of individual dish receivers/transmitters on the exterior of the building shall not be allowed. Said wiring shall be installed in conformance with the approved building plans prior to the first final building and zoning inspection for each building.
Planning and
Building
Department,
Planning
Services
Division
46 Prior to issuance of the first building permit for each Final Site Plan, the builder shall provide the Planning Services Division of the Planning and Building Department with a copy of a written disclaimer that will be distributed to prospective buyers/lessees indicating that they are purchasing/leasing property that is within close proximity to Angel Stadium of Anaheim, The City National Grove of Anaheim and Honda Center and that the nature of these venues includes potentially audible noise (such as crowd noise, vehicular traffic noise, fireworks, and amplified sound) during events, and traffic delays during event times. On-going during sales/lease of dwelling units and commercial units, the property owner/developer shall provide each buyer/lessee with this written information.
Planning and
Building
Department,
Planning
Services
Division
47 Prior to issuance of any residential building permit for each Development Area, park fees shall be paid subject to Section 13.2.4 and Exhibit "D-4" of the Amended and Restated Development Agreement.
Community
Services
Department
Exhibit "C"
NO. CONDITIONS OF APPROVAL
REVIEW SIGNED OFF
BY BY
48 That prior to the approval of each improvement plan for the Public Park and Public Linear Park, as shown on the Master Site Plan, the Community Services Department and, if deemed appropriate by the Director of Community Services, the Park and Recreation Commission shall have approval over the following:
(a) Approval of Landscape Architect and
other consultants used to design the park and prepare the construction documents;
(b) Approval of Master Park Plan,
schematic plans, preliminary plans and final plans, specifications, cost estimates and other construction documents;
(c) Approval of all project materials and
products used in constructing the Public Park and the Public Linear Park and the right of inspection by City staff at the property owner/developer's cost; and
(d) Public Park and Public Linear Park
areas shall have amenities including, but not limited to, water features, site furnishings, plantings, shade structures and play features consistent with the approved Landscape Plans for the Public Park and Public Linear Park; and
(e) The owner/developer shall comply with the Community Services Department Naming Policy A-033 for the Public Park and the Public Linear Park.
49 Prior to approval of permits for improvement plans, the property owner/developer shall coordinate with Electrical Engineering to establish electrical service requirements and submit electric system plans, electrical panel drawings, site plans, elevation plans, and related technical drawings and specifications. New underground electric utility facilities necessary to accommodate the project are typically required to be underground in the City of Anaheim. The underground electrical distribution systems will consist of substructures including vaults, duct banks, pull boxes, and other facilities necessary to meet the proposed power requirements of the development. The underground substructures will be installed by the applicant in accordance with electrical distribution plans and specifications prepared and approved by the Public Utilities Department - Electrical Engineering Division. Electrical facilities and equipment will be installed as required to meet the electrical demand of the development. In addition, all high voltage electrical lines, switches, and transformers installed on private property will require an easement as indicated on the approved plans. It is the developer's responsibility to coordinate survey activities and construct wet and dry utilities in a manner as to avoid conflicts, and to meet necessary clearance requirements for the on-site electrical distribution system required for service establishment.
Public Utilities
Department,
Electrical
Engineering
Division
50 Prior to connection of electrical service, the legal owner shall provide to the City of Anaheim a Public Utilities easement with dimensions as shown on the approved utility service plan.
Public Utilities
Department,
Electrical
Engineering
Division
51 Prior to connection of electrical service, the legal owner shall submit payment to the City of Anaheim for service connection fees.
Public Utilities
Department,
Exhibit "C"
NO. CONDITIONS OF APPROVAL
REVIEW SIGNED OFF
BY BY
Electrical
Engineering
Division
52 Prior to occupancy, the legal owner shall install street lights as determined and planned by Public Utilities.
Public Utilities
Department,
Electrical
Engineering
Division
53 Prior to the approval of street improvement plans for each street identified within the Master Site Plan area, or if the electrical improvements are to be located on private property, prior to the approval of the applicable Final Site Plan or builder tentative tract or parcel map, whichever occurs first, plans shall provide for the construction of the electrical facilities required pursuant to Condition No. 32 in the locations approved by the Public Utilities Department provided that:
(a) If an easement is to be provided on private property, the property owner/developer shall record an easement on the final map or by separate document satisfactory to the Public Works Department and the City Attorney's Office prior to the first final building and zoning inspection for the Final Site Plan;
(b) The property owner/developer shall be responsible for all costs associated with the installation of said facilities; and,
(c) The timing for installation of the facilities shall be set forth in the detailed phasing plan required by Section 9.3 (Timing, Phasing and Sequence of Public Improvements and Facilities) of this Amended and Restated Development Agreement.
Public Utilities
Department,
Electrical
Engineering
Division
54 Prior to the issuance of the first residential building permit for each Final Site Plan, the property shall be served with underground utilities per the Electrical Rates, Rules, and Regulations, and the City of Anaheim Underground Policy.
Public Utilities
Department,
Electrical
Engineering
Division
55 Prior to issuance of the first building permit for each Final Site Plan, the property owner/developer shall coordinate its service requirements and relocation issues with the City of Anaheim Public Utilities Department and the other utility companies involved.
Public Utilities
Department,
Electrical
Engineering
Division
56 Prior to the issuance of the first building permit for each Final Site Plan, or prior to the delivery of combustible materials for construction of buildings, whichever occurs first, the property owner/developer shall complete all necessary water facilities to provide the fire flows required by the Fire Department. Said information shall be specifically shown on plans submitted for building permits.
Fire Department
57 Prior to the issuance of the first building permit for each building and prior to structural framing, fire hydrants shall be installed and charged as required by the Fire Department and shall meet minimum Fire Department Specifications and Requirements for spacing, distance to structure and available fire flow. Said information shall be specifically shown on plans submitted for building permits.
Fire Department
Exhibit "C"
NO. CONDITIONS OF APPROVAL REVIEW
BY
SIGNED OFF
BY
58 Prior to the issuance of the first building permit for each Final Site Plan, emergency vehicular access shall be provided and maintained in accordance with Fire Department Specifications and Requirements. Said information shall be specifically shown on plans submitted for building permits.
Fire Department
59 Prior to the issuance of the first building permit for each building, the width of all exterior stairwells shall be as determined by the Fire Department in conformance with emergency evacuation standards. Said information shall be specifically shown on plans submitted for building permits.
Fire Department
60 That prior to the issuance of the first building permit for each Final Site Plan including a parking structure, plans shall show that closed circuit television (CCTV) security cameras shall be installed to monitor the parking structures and the mailrooms to the satisfaction of the Anaheim Police Department. CCTV cameras shall be strategically located throughout the parking structure, mailroom and lobby, covering all areas, especially all pedestrian and vehicular access points. Further, 2- way communication devices shall be placed in the parking structure as required by the Police Department. All cameras and communication devices shall be installed prior to the first final building and zoning inspection for each of said Final Site Plans.
Police
Department
61 That prior to issuance of the first building permit for each Final Site Plan, plans shall indicate that each individual building and unit shall be clearly marked with its appropriate building number and address. These numbers shall be positioned so they are easily viewed from vehicular and pedestrian pathways throughout the complex. Main building numbers shall be a minimum of 12 inches in height. Main building numbers and address numbers shall be illuminated during hours of darkness. Said numbers shall be installed prior to the first final building and zoning inspection for each building.
Police
Department
62 That prior to the issuance of the first building permit for each Final Site Plan, plans shall indicate that pedestrian and vehicular access control shall be provided to prevent unwanted entry and that a digital keypad entry system shall be provided to facilitate quick response by emergency personnel. Said items shall be installed and the system's entry code provided to the Anaheim Police Department Communications Bureau and the Anaheim Fire Department prior to the first final building and zoning inspection for each building.
Police
Department
63 That prior to the issuance of the first building permit for each Final Site Plan, plans shall indicate that adequate lighting shall be provided on all levels of the parking structures, including circulation areas, aisles, passageways, recesses, and grounds contiguous to buildings with lighting of sufficient wattage to provide adequate illumination to make clearly visible the presence of any person on or about the premises during the hours of darkness and provide a safe, secure environment for all persons, property, and vehicles on-site. Said lighting shall be installed prior to the first final building and zoning inspection for each parking structure.
Police
Department
64 That prior to the issuance of the first building permit for each Final Site Plan, plans shall show that common rooms, such as gym facilities, recreation areas, laundry rooms, conference rooms, etc., shall have transparent doors, view panels installed in solid doors, or a window installed next to the door for increased visibility into the Police
Department
Exhibit "C"
NO. CONDITIONS OF APPROVAL REVIEW SIGNED OFF
BY BY
room. Said features shall be installed prior to the first final building and zoning inspection for each recreation area.
65 That prior to the issuance of the first building permit for each parking structure, plans shall show that a minimum lighting level of one (1) foot-candle measured at the parking surface shall be maintained for the parking structure with a maximum to minimum ratio no greater than 10:1. Said lighting shall be installed prior to the first final building and zoning inspection for the parking structure.
Police
Department
66 Prior to issuance of Building permits, the building pads shall be certified for compaction by the soils engineer and for line and grade by the civil engineer. All pad grade changes shall be submitted to the City as part of a grading permit application for review and approval. Also, the compaction report needs to document all required soil fill and reconditioning procedures by the grading contractor, including compaction testing protocol and maintenance of records.
Areas that are not fully documented and certified by the geotechnical engineer and inspected by the City up to the final pad elevation may need to be over- excavated to the satisfaction of the site soils engineer, city Construction Services staff and Development Services Engineer Public Works.
Public Works
Department,
Development
Services
Division
67 Parkway landscaping and sidewalk shall be constructed with the parkway irrigation connected to the on-site irrigation system and maintained by the property owner. A bond shall be posted in an amount approved by the City Engineer and a form approved by the City Attorney prior to issuance of a building permit. A Right of Way Construction Permit shall be obtained from the Development Services Division for all work performed in the right-of-way. The landscape parkway improvements shall be constructed pursuant to Section 9.3 (Timing, Phasing and Sequence of Public Improvements and Facilities) and Exhibit "H" (Infrastructure Phasing Plan) of this Amended and Restated Development Agreement.
Public Works
Department,
Development
Services
Division
68 Prior to the issuance of the first building permit for each Final Site Plan, the property owner/developer shall provide the Public Works Department, Streets and Sanitation Division with a final demolition recycling report signed by the property owner/developer indicating actual tonnage of waste diverted and landfilled.
Public Works
Department /
Streets &
Sanitation
Division
69 Prior to the issuance of the first building permit for each building, plans shall be submitted providing a separate Knox box for the trash truck at each applicable gate entrance. Said information shall be specifically shown on plans submitted for building permits.
Public Works
Department /
Streets &
Sanitation
Division
70 Prior to the issuance of the first building permit for each Final Site Plan, the proposed development shall submit a final written Solid Waste Management Plan signed by the property owner to the Streets and Sanitation Division of the Public Works Department for review and approval. The property owner/developer shall then operate in accordance with the approved written Solid Waste Management Plan, as it may be modified from time to time subject to written approval by the Director of Public Works. Said Solid Waste Management Plan shall be referred to in the project's Covenants, Conditions and Restrictions (CC&Rs) which shall be recorded for the property pursuant to Condition No. 9.
Public Works
Department,
Traffic
Engineering
Division
Exhibit "C"
NO. CONDITIONS OF APPROVAL
REVIEW SIGNED OFF
BY BY
71 Prior to City acceptance of the public right-of-way improvements for all collector streets identified on the Master Site Plan and Gene Autry Way, said streets shall be posted with "No Stopping Any Time" signs except where designated turn-out areas are provided for loading and unloading and designated on-street parking areas.
Such signs shall be shown on street improvement plans submitted by the property owner/developer for the review and approval by the Public Works Department and the location of such signs shall be reviewed and approved by the City Traffic and Transportation Manager. The property owner/developer shall be responsible for all costs associated with the installation of such signs.
Public Works
Department,
Traffic
Engineering
Division
72 Prior to the issuance of the first residential building permit for Development Areas A, B, C, or H, whichever is first, the property owner/developer shall design and submit to the City of Anaheim for review and approval the traffic signal modification for the existing traffic signal at the intersection of Market Street and Katella Avenue. Construction of the traffic signal modification at the intersection of Market Street and KateIla Avenue shall be completed prior to certificate of occupancy for the first residential dwelling unit of Development Areas A, B, C, or H, whichever comes first. Modifications to the timeframe to complete the above- noted improvements may be approved by the City as set forth in the detailed phasing plan required by Section 9.3 (Timing, Phasing and Sequence of Public Improvements and Facilities) of this Amended and Restated Development Agreement provided said modifications do not result in any environmental impacts.
Bonds for these improvements shall be posted in accordance with timing set forth in said detailed phasing plan.
Public Works
Department,
Traffic
Engineering
Division
73 Prior to the issuance of the first residential building permit for Development Areas D, E, F, or G, whichever is first, the property owner/developer shall design and submit to the City of Anaheim for review and approval the following improvements per the Project Design Features listed in the Project's Traffic Impact Study, dated June 18, 2015 on file in the Planning and Building Department:
(a) The extension of the existing raised median on Gene Autty Way easterly to Union Street;
(b) An eastbound left-turn pocket at the intersection of Union Street/Gene Autry Way at a minimum of 150 feet plus transition and; (c) New traffic signal at the Union Street intersection with Gene Autry Way; Construction of items (a), (b) and (c) shall be completed prior to certificate of occupancy for the first residential dwelling unit of Development Areas D, E, F and G, whichever comes first. Modifications to the timeframe to complete the above- noted improvements may be approved by the City as set forth in the detailed phasing plan required by Section 9.3 (Timing, Phasing and Sequence of Public Improvements and Facilities) of this Amended and Restated Development Agreement provided said modifications do not result in any environmental impacts.
Bonds for these improvements shall be posted in accordance with timing set forth in said detailed phasing plan.
Public Works
Department,
Traffic
Engineering
Division
Exhibit "C"
NO. CONDITIONS OF APPROVAL
REVIEW SIGNED OFF
BY BY
74 Prior to applying for the first water meter or tire service or first submittal of the Water Improvement Plans, the developer/owner shall submit a set of improvement plans for Public Utilities Department Water Engineering Division review and approval in determining the conditions necessary for providing water service to the project.
Public Utilities
Department,
Water
Engineering
Division
75 Prior to the issuance of the first building permit for each Development Area, a private water system with separate water service for fire protection and domestic water shall be provided and shown on plans submitted to the Water Engineering Division of the Anaheim Public Utilities Department.
Public Utilities
Department,
Water
Engineering
Division
76 Prior to the issuance of the first building permit for each Development Area, all backflow equipment shall be located above ground outside of the street setback area in a manner fully screened from all public streets and alleys. Any backflow assemblies currently installed in a vault will have to be brought up to current standards. Any other large water system equipment shall be installed to the satisfaction of the Public Utilities Department Water Engineering Division outside of the street setback area in a manner fully screened from all public streets and alleys. Said information shall be specifically shown on plans and approved by Water Engineering and Cross Connection Control Inspector.
Public Utilities
Department,
Water
Engineering
Division
77 Prior to the issuance of the first building permit, all requests for new water services, backflow equipment, or fire lines, as well as any modifications, relocations, or abandonments of existing water services, backflow equipment, and tire lines, shall be coordinated and permitted through Water Engineering Division of the Anaheim Public Utilities Department.
Public Utilities
Department,
Water
Engineering
Division
78 Prior to the issuance of the first building permit, all existing water services and fire services shall conform to current Water Services Standard Specifications. Any water service and/or fire line that does not meet current standards shall be upgraded if continued use if necessary or abandoned if the existing service is no longer needed. The owner/developer shall be responsible for the costs to upgrade or to abandon any water service or fire line.
Public Utilities
Department,
Water
Engineering
Division
79 Prior to the issuance of the first building permit for each building, the owner/developer shall irrevocably offer to dedicate to the City of Anaheim (i) an easement for all large domestic above-ground water meters and fire hydrants, including a five (5)-foot wide easement around the fire hydrant and/or water meter pad. (ii) a twenty (20) foot wide easement for all water service mains and service laterals all to the satisfaction of the Water Engineering Division. The easements shall be granted on the Water Engineering Division of the Public Utilities Department's standard water easement deed. The easement deeds shall include language that requires the Owner to be responsible for restoring any special surface improvements, other than asphalt paving, including but not limited to colored concrete, bricks, pavers, stamped concrete, decorative hardscape, walls or landscaping that becomes damaged during any excavation, repair or replacement of City owned water facilities. Provisions for the repair, replacement and maintenance of all surface improvements other than asphalt paving shall be the responsibility of the Owner and included and recorded in the CC&Rs for the Development Area.
Such information shall be shown on plans submitted for building permits.
Public Utilities
Department,
Water
Engineering
Division
Exhibit "C"
NO. CONDITIONS OF APPROVAL REVIEW
BY
SIGNED OFF
BY
80 Prior to the first submittal of Water Improvement Plans, the developer/owner shall submit a water system master plan, including a hydraulic distribution network analysis, for Public Utilities Water Engineering Division review and approval. The master plan shall demonstrate the adequacy of the proposed on-site water system to meet the project's water demands and fire protection requirements.
Public Utilities
Department,
Water
Engineering
Division
81 Prior to applying for the first water meter or fire service or first submittal of the Water Improvement Plans, the developer/owner shall submit to the Public Utilities Department Water Engineering Division an estimate of the maximum fire flow rate and maximum day and peak hour water demands for the project. This information will be used to determine the adequacy of the existing water system to provide the estimated water demands. Any off-site water system improvements required to serve the project shall be done in accordance with Rule No. 15A.6 of the Water Utility Rates, Rules, and Regulations.
Public Utilities
Department,
Water
Engineering
Division
82 That prior to the issuance of the first building permit for each building, Platinum Triangle water facilities fee and/or advances to the Water Engineering Division shall be paid in accordance with Rule 15D of the Water Utility Rates, Rules and Regulations.
Public Utilities
Department,
Water
Engineering
Division
83 Prior to applying for the first water meter or fire service or first submittal of the Water Improvement Plans, water improvement plans shall be submitted to the Public Utilities Department Water Engineering Division for approval and a performance bond in the amount approved by the City Engineer and form approved by City Attorney shall be posted with the City of Anaheim. Further, water improvement bonds for the abandonment and removal of the previously install public water mains (UWM2014-00010) shall include bonds for the additional abandonments of existing public water facilities within Westside Dr. and Union street at the mains within Katella Ave and Gene Autry Way or at the last service on Westside Dr. and Union Street. If the developer/owner does not install the new Phase 1 water improvements (per the Infrastructure Phasing Plan and Water Improvement Plans (UWM plans) to the satisfaction of the Water Engineering Division within a time frame of one year from the abandonment of the previously install public water facilities for Tract No. 16859, the City may at its discretion, abandon the remaining existing public water facilities within Westside Dr. and Union St. at the intersection of Katella Avenue and Gene Autry Way. The developer/owner will be responsible for all required water improvements for future development of the site.
Public Utilities
Department,
Water
Engineering
Division
84 Prior to the issuance of the first building permit for each building, individual water service and/or fire line connections will be required for each parcel or residential, commercial, industrial unit per Rule 18 of the City of Anaheim's Water Rates, Rules and Regulations.
Public Utilities
Department,
Water
Engineering
Division
85 Prior to the issuance of the first building permit for each building, the owner/developer shall contact the Public Utilities Department Water Engineering Division for recycled water system requirements and specific water conservation measures to be incorporated into the building and landscape construction plans.
Public Utilities
Department,
Water
Engineering
Exhibit "C"
NO. CONDITIONS OF APPROVAL REVIEW
BY
SIGNED OFF
BY
Division
86 That water facilities shall be protected from runoff from adjacent properties. Said information shall be specifically shown on plans submitted for building permits.
Public Utilities
Department,
Water
Engineering
Division
PRIOR TO PEST FINAL BUILD-MG AND ZONING INSPECTION FOR EACH FINAL SITE PLAN 87 Prior to the first final building and zoning inspection for each Final Site Plan (Development Area) the property owner/developer shall execute and record with the Orange County Recorder an unsubordinated declaration of Covenants, Conditions and Restrictions (CC&Rs) to run with the land, satisfactory to the Planning Director, Public Works Director and the City Attorney, creating maintenance obligations to maintain private on-site common areas and facilities (collectively referred to hereinafter as the "Maintenance Areas and Facilities") within the Development Areas as indicated below:
• Private drives and parking (if applicable), including sidewalks, landscaping, street lighting, mounted lighting, signage, striping and parkways.
• Private sewer lines, grease interceptors, manholes and clean outs.
• Private storm drain lines, area drains, inlets, manholes and catch basins.
• Treatment Controls Best Management Practices for Water Quality Management Plan Best Management Practices, as required pursuant to Conditions Nos. 73 and 74.
• Demonstrate that the applicant is prepared to implement all non-structural BMP's described in the Project WQMP as required pursuant to Condition No. 75.
• Demonstrate that an adequate number of copies for (all responsible parties) of the approved Project WQMP are available on-site as required pursuant to Condition No. 75.
• Internal landscape areas, courtyards, common areas.
• Internal hardscape.
• On-site fountains and art elements.
• Enclosed parking structures with mail facilities, trash collection areas, and bicycle storage.
• Recreational amenities areas including pools & spas, barbecue areas, clubhouse meeting room(s) and workout room. • Public restrooms.
• Site lighting systems.
• Trash collection and facilities including the Solid Waste Management Plan for the project as approved by the City. • Squeal-free surface in parking structure.
• Maintenance of on-site signs and awnings.
• Outdoor seating and dining areas.
• Maintenance of all security equipment required by the Police Department including antennas providing radio communication.
Public Works
Department,
Development
Services
Division
Exhibit "C"
NO. CONDITIONS OF APPROVAL
REVIEW SIGNED OFF
BY BY
• Maintenance of private water meters.
• Removal of graffiti within 24 hours of occurrence.
• That a sign shall be posted in each trash collection area indicating "No Parking Between the Hours of 7 A.M. and 5 P.M." to allow sufficient access for the trash bin retrieval vehicle pursuant to Condition No. 90
• Maintenance of all special surface improvements within adjacent public street right-of-way if approved in conjunction with a Final Site Plan.
• Requirement for lease agreements or purchase and sales agreements for each commercial establishment to include a provision for hours of delivery to be limited to 7 a.m. to 10 p.m. daily. • Requirement for lease agreements or purchase and sales agreements for each commercial establishment to include a provision there shall be no public telephones located outside any building. . Provision for the maintenance of all associated private water line improvements.
• Ongoing during operation, provision for the property to be permanently maintained in an orderly fashion by providing regular landscape maintenance and removal trash or debris.
• Provision for the replacement of any tree planted on-site in accordance with project landscaping plans in a timely manner in the event that it is removed, damaged, diseased, and/or dead.
• Provision for written disclaimer pursuant to Condition No.
20. 88 Prior to the first final building and zoning inspection for each Final Site Plan, the relocation of existing facilities and/or installation of new systems shall be timed to coincide with the level of development that would require this improvement, to the satisfaction of the Anaheim Public Utilities Department and other utility companies.
Public Utilities
Department
89 Prior to the first final building and zoning inspection for each Final Site Plan, the property owner/developer shall provide the City of Anaheim with a public utilities easement (per final electrical design), along/across high voltage lines, low voltage lines crossing private property, and around all pad-mounted transformers, switches, capacitors, etc. Said easement shall be submitted to the City of Anaheim prior to connection of electrical service.
Public Utilities
Department,
Electrical
Engineering
Division
90 Prior to the first final building and zoning inspection for each Final Site Plan, any required relocation of City electrical facilities shall be completed at the property owner/developer's expense. Landscape and/or hardscape screening of all pad- mounted equipment shall be required outside the easement area of the equipment.
Said information shall be specifically shown on plans submitted for building permits.
Public Utilities
Department,
Electrical
Engineering
Division
91 Prior to the first final building and zoning inspection for each Final Site Plan, all electrical facilities that are located on the project boundary shall be relocated underground and all existing services that are fed from the overhead system shall be converted to underground at the expense of the property owner/developer. Said information shall be specifically shown on plans submitted for building permits.
Public Utilities
Department,
Electrical
Engineering
Division
Exhibit "C"
NO. CONDITIONS OF APPROVAL REVIEW
BY
SIGNED OFF
BY
92 Prior to the first final building and zoning inspection for each Final Site Plan or approval of on-site water plans, whichever occurs first, unless each commercial building is initially connected to separate fire services, an unsubordinated covenant satisfactory to the City Attorney's office shall be recorded prohibiting any individual sale of buildings until separate fire services are installed in the buildings(s) subject to the sale.
Public Utilities
Department,
Water
Engineering
Division
93 Prior to the first final building and zoning inspection for each building, an automatic fire sprinkler system shall be designed, installed and maintained as required by the Fire Department. Said information shall be specifically shown on plans submitted for building permits.
Fire Department
94 Prior to the first final building and zoning inspection for each building, a fire alarm system shall be designed, installed and maintained as required by the Fire Department. Said information shall be specifically shown on plans submitted for building permits.
Fire Department
95 Prior to the first final building and zoning inspection for each building, lockable pedestrian and/or vehicular access gates shall be equipped with Knox devices as required and approved by the Fire Department. Said information shall be specifically shown on plans submitted for building permits.
Fire Department
96 That prior to the final Public Works inspection for the public street improvements, and prior to the final building and zoning inspection for each Final Site Plan, the property owner/developer shall:
(a) Demonstrate that all structural BMP's described in the Project WQMP have been constructed and installed in conformance with approved plans and specifications;
(b) Demonstrate that the applicant is prepared to implement all non- structural BMP's described in the Project WQMP; and,
(c) Demonstrate that an adequate number of copies of the approved Project WQMP are available on-site.
Public Works
Department,
Development
Services
ivision D
97 Prior to final building and zoning inspections of each development phase, all required WQMP items for proper operation of the system shall be inspected and operational.
Public Works
Department,
Development
Services
Division
98 All required public street, landscaping, irrigation, sewer and drainage improvements shall be constructed prior to final building and zoning inspections and are subject to review and approval by the Construction Services inspector.
Public Works
Department,
Development
Services
Division
99 That prior to the first final building and zoning inspection for each building, the property owner/developer shall construct sewers and storm drains to serve the ultimate development of the property as provided by area-wide engineering studies to be conducted prior to issuance of any building permits for the first permitted Public Works
Department,
Development
Services
Exhibit "C"
NO. CONDITIONS OF APPROVAL REVIEW
13Y
SIGNED OFF
BY
building and updated prior to the issuance of any building permits for each subsequent permitted building. All studies shall be subject to the approval of the City Engineer. The property owner/developer shall construct improvements identified in such studies. The systems may be constructed incrementally subject to the approval of the City Engineer provided that said incremental phasing is adequate to provide capacity for the proposed development phasing and providing that the timing is in accordance with the detailed phasing plan required by Section
9.3 (Timing, Phasing and Sequence of Public Improvements and Facilities) of this Amended and Restated Development Agreement.
Division
ONGOING DURING PROJECT CONSTRUCTION
100 During construction of the Public Park and the Public Linear Park, the property owner/developer shall be responsible for all utility connections, fees, permits and charges, all consultant, project inspection and staff time costs for project plan and construction review and any incidental costs relating to the park improvement, as approved by the Community Services Department.
Community
Services
Department
101 An all-weather access road as approved by the Fire Department shall be provided during construction.
Fire Department
ONGOING DURING PROJECT OPERATION
102 That ongoing during operation of any restaurant, and at all times when the premises is open for business, the premises shall be maintained as a bona fide public eating place, as defined by Section 23038 of the State of California Business and Professions Code, and shall provide a menu containing an assortment of foods normally offered in such restaurant.
Police
Department
103 That ongoing during operation of each restaurant, there shall be no live entertainment, amplified music or dancing permitted on the premises at any time unless the proper permits have been obtained from the City of Anaheim.
Police
Department
104 That ongoing during business operations of each commercial establishment, all activities occurring in conjunction with the operation of said establishment shall not cause noise disturbance to surrounding uses.
Police
Department
105 Ongoing during business operations, the property owner shall be responsible for restoring any special surface improvements, other than asphalt paving, within any right-of-way, public utility easement or City easement area including but not limited to colored concrete, bricks, pavers, stamped concrete, walls, decorative hardscape or landscaping that becomes damaged during any excavation, repair or replacement of City owned water facilities. Provisions for maintenance of all said special surface improvements shall be included in the recorded CC&Rs for the Development Area and the City easement deeds.
Public Works
Department /
Development
Services
Division
PRIOR TO FINAL BUILDING AND ZOMNG INSPECTIONS
106 Prior to the park construction being deemed complete by the Community Services Department, the Public Park and Public Linear Park shall be developed in accordance with Community Services Department standards and will be subject to Community Services Department approval.
Community
Services
Department
107 Prior to the first final building and zoning inspection for Development Areas B, C, Community Exhibit "C"
NO. CONDITIONS OF APPROVAL
REVIEW SIGNED OFF
BY BY
F or G (including non-residential), as shown on the Master Site Plan, the property owner/developer shall be responsible for the completion of the Public Park to the satisfaction of the Director of Community Services.
Services
Department
108 Prior to the last final building and zoning inspection for Development Area G or H, whichever is later, as shown on the Master Site Plan, the property owner/developer shall be responsible for the completion of the Public Linear Park to the satisfaction of the Director of Community Services.
Community
Services
Department
109 Prior to the first final building and zoning inspection for each Final Site Plan, all electrical facilities that are located on the project boundary shall be relocated underground and all existing services that are fed from the overhead system shall be converted to underground at the expense of the property owner/developer. Said information shall be specifically shown on plans submitted for building permits.
Public Utilities
Department,
Electrical
Engineering
Division
PRIOR TO ISSUANCE OF FINAL RULDING AND ZONIVGPERMIT
110 Prior to certificate of occupancy of the first residential dwelling unit, the existing previously installed public water facilities under Tract No. 16859 shall be abandoned and removed per UWM2014-00010. All abandoned water meters shall be turned over to the City's Water Inspector for final read prior to being salvaged to the City yard. If the developer/owner wishes to abandon the public water facilities that were previously installed under Tract 16859 prior to the installation of the Phase 1 water improvements, the developer/owner shall as part of the public improvements bonds for the water abandonments of UWM2014-00010, include bonds for the additional abandonments of existing public water facilities within Westside Dr. and Union street at the mains within Katella Ave and Gene Autry Way or at the last service on Westside Dr. and Union Street. If the developer/owner does not install the new Phase 1 water improvements (per the Infrastructure Phasing Plan and Water Improvement Plans (UWM plans) to the satisfaction of the Water Engineering Division within a time frame of one year from the abandonment of the previously installed public water facilities for Tract No. 16859, the City may at its discretion, abandon the remaining existing public water facilities within Westside Dr. and Union St. at the intersection of Katella Avenue and Gene Autry Way. The developer/owner will be responsible for all required water improvements for future development of the site.
Public Utilities
Department,
Water
Engineering
Division
GENERAL
111 On an annual basis and as part of the Development Agreement Annual Review, the property owner/developer shall provide an updated Development Summary Table (Exhibit "I" of Development Agreement) to the Planning Services Division of the Planning and Building Department until project build out.
Planning and
Building
Department,
Planning
Services
Division
112 The property owner developer shall be responsible for compliance with and any direct costs associated with the monitoring and reporting of all mitigation measures set forth in the attached Mitigation Monitoring Plan (MMP) No. 321, established by the City of Anaheim as required by Section 21081.6 of the Public Resources Code to ensure implementation of those identified mitigation measures within the timeframes identified in the measure. MMP No. 321 is made a part of these Planning and
Building
Department,
Planning
Services
Division
Exhibit "C"
NO. CONDITIONS OF APPROVAL
REVIEW SIGNED OFF
BY BY
conditions of approval by reference.
113 During ongoing business operations, the property owner/developer shall not charge for "event parking" for Honda Center, The City National Grove of Anaheim or Angel Stadium of Anaheim unless approved by the City.
Planning and
Building
Department,
Planning
Services
Division
114 That modifications to the configuration and size of Development Area boundaries may be approved by the Planning Director provided the overall density in the Development Area does not decrease or increase from the minimum and maximum target residential dwelling units and target residential density ranges shown on the Development Summary Table (Exhibit "I" of the Amended and Restated Development Agreement), is consistent with the Overall Project Development Allocation shown on the Development Summary Table and the street system and alignment shown on the Master Site Plan. The property owner/developer shall submit a letter to the Planning Director requesting the boundary and acreage adjustment along with a revised Exhibit "I", Development Summary Table, of the Amended and Restated Development Agreement and corresponding Final Site Plan(s) to be submitted to the City of Anaheim for review and approval. Following approval of a boundary and acreage adjustment, all subsequent subdivision plans shall be in accordance with the revised Development Area boundaries.
Planning and
Building
Department,
Planning
Services
Division
115 Signage shall be consistent with Section 18.20.150 (Signs) of the Platinum Triangle Mixed Use (PTMU) Overlay Zone.
Planning and
Building
Department,
Planning
Services
Division
116 Park fee credit will be given for Public Park and Public Linear Park in the amount set forth in Section 9.1 and Exhibit "D-4" of the Amended and Restated Development Agreement, provided the parks comply with the following criteria:
(a) Park fee credit shall be granted, subject to the
Community Services Department approval, based upon the provision of a site(s) acceptable to the Community Services Department that meets a 2% to 5% gradient (excluding landscape play mounds in the Public Park as shown on the Park Area Enlargement Plan Sheet L-2 of the Master Site Plan exhibits), unless approved otherwise by the Community Services Department, with no easements and other obstructions, except as required for park development, being considered for credit;
(b) All plans for public park improvements are
subject to approval by the Community Services Department; (c) Park credit will not be given for portions of the
right-of-way, sidewalks to commercial encumbrance and residential areas, road easements or any other improvement that will lessen the actual amount of park space;
(d) Park credit against fees will only be provided for
Community
Services
Department
Exhibit "C"
NO. CONDITIONS OF APPROVAL REVIEW
BY
SIGNED OFF
BY
sites approved by the Community Services Department and only for the per acre value of the land, as established by the current City Council approved park in lieu fee ordinance and resolution; and, (e) No park fee credit shall be granted for any private park or recreational improvements provided with the A-Town development(s).
117 Lockable pedestrian and/or vehicular access gates shall be equipped with Knox devices as required and approved by the Fire Department.
Fire Department
118 All facilities in this project fall within the Platinum Triangle and are subject to Public Safety Impact Fees.
Police
Department
119 Compliance with AMC 6016, the Anaheim Public Safety Radio System Coverage Ordinance is required. To request a copy of the ordinance, contact Officer Budds at (714) 765-3859 or [email protected] . A copy of the ordinance can also be viewed/download online through the City of Anaheim web site under "City Records": http://www.anaheim.net/.
Police
Department
120 In order to facilitate the efficient and rapid access by emergency vehicles and personnel, all electrically operated gates providing emergency vehicle access to any residential facility/community development with more than 20 (twenty) residential units, or when otherwise required by the Chief of Police or his designated representative, shall include the installation of an electronic access system which allows for the use of a public safety radio frequency to open the gate.
Police
Department
121 All mitigation measures from MMP No. 321 apply to this project. Planning and Building
Department,
Planning
Services
Division
122 The required public improvements shall be installed pursuant to the Infrastructure Phasing Plan (Exhibit "H") of the Development Agreement.
Public Works
Department,
Development
Services
Division
123 A minimum of two connections to public water mains and water looping inside the project are required.
Public Utilities
Department,
Water
Engineering
Division
124 The following minimum horizontal clearances shall be maintained between proposed water main and other facilities:
• 10-feet minimum separation (outside wall-to-outside wall) from sanitary sewer mains and laterals
Public Utilities
Department,
Water
Engineering
Division
Exhibit "C"
NO. CONDITIONS OF APPROVAL
REVIEW SIGNED OFF
BY BY
• 5-feet minimum separation from all other utilities, including storm drains, gas, and electric
• 6-feet minimum separation from curb face
125 No public water main or public water facilities shall be installed in private alleys or paseo areas.
Public Utilities
Department,
Water
Engineering
Division
126 No public water mains or laterals allowed under parking stalls or parking lots. Public Utilities Department,
Water
Engineering
Division
127 All fire services 2-inch and smaller shall be metered with a UL listed meter, Hersey Residential Fire Meter with Translator Register, no equals.
Public Utilities
Department,
Water
Engineering
Division
128 The project is expressly conditioned upon the applicants' indemnifying and holding harmless the City, its agents, officers, council members, employees, boards, commissions and their members and the City Council from any claim, action or proceeding brought against any of the foregoing individuals or entities, the purpose of such litigation being to attack, set aside, void or annul any approval of the application or related decision, or the adoption of any environmental documents which relates to the approval of the Proposed Actions. This indemnification shall include, but is not limited to, all reasonable damages, costs, expenses, attorney fees or expert witness fees that may be awarded to the prevailing party, and costs of suit, attorneys' fees, and other costs, liabilities and expenses arising out of or in connection with the approval of the application or related decision, whether or not there is concurrent, or passive negligence on the part of the City, its agents, officers, council members, employees, boards, commissions and their members and the City Council. The property owner/developer shall have the right to select legal counsel.
The City shall have the right to approve, which approval will not be unreasonably withheld, the legal counsel providing the City's defense, and the applicant shall reimburse the City for any costs and expenses reasonably incurred by the City in the course of the defense. No later than 30 (thirty) days following the City Council's adoption of the Ordinance adopting Development Agreement No. 2005-00008, the legal property owner shall provide a letter to the City satisfactory to the City Attorney's Office memorializing the foregoing.
Planning and
Building
Department /
City Attorney's
Office
(END)
Exhibit "C"
EXHIBIT "D"
PLATINUM TRIANGLE INTERIM DEVELOPMENT FEES
EXHIBIT "D-1"
ELECTRIC UTILITIES UNDERGROUNDING FEE
Residential Uses $9.92 per unit
The Platinum Triangle Master Land Use Plan and the Underground Conversion Program envision that the public utilities along Katella Avenue, between the State College Boulevard and Anaheim Way will need to be undergrounded. The CITY-owned facilities will be undergrounded using CITY funds, pursuant to the Rule No. 20 of the City of Anaheim Rates, Rules & Regulations.
Some of the facilities along Katella Avenue are owned by Southern California Edison (SCE). Moneys available to underground CITY-owned facilities may not be used to underground SCE facilities. The interim fee will collect the funds necessary to underground the SCE lines, and thereby significantly improve the appearance of the Platinum Triangle.
The cost to underground the SCE lines is estimated at $187,505. These funds will be collected by imposing an interim fee on the residential units planned in the Platinum Triangle.
The formula for calculating the fee is the following:
Cost to Underground SCE lines = Per-Unit Fee
Number of residential units
The Per-Unit fee is calculated at:
$187,505 = $9.92 per Unit
18,909 Units
EXHIBIT "D-2"
GENERAL PLAN AND ENVIRONMENTAL PROCESSING FEE
Residential Uses: $24.00 per unit
Non-residential Uses: $0.03 per sq. ft.
These fees are intended to recover the costs associated with the Platinum Triangle including the designation of portions of the Platinum Triangle for mixed use and office development by the General Plan, the Platinum Triangle Master Land Use Plan, the Platinum Triangle Mixed Use Overlay, the Platinum Triangle Standardized Development Agreement Fonn, Zone Reclassifications, all other associated documents and amendments thereto, and all associated environmental documentation. The fees are based upon the following calculations:
Costs
Consultant Contract Costs: $670,623 (includes costs related to DSEIR No. 339) Planning and Building Department Costs: $456,765 (to be updated with costs related to DSEIR No. 339)
Public Works Costs: $41,325 (to be updated with costs related to DSEIR No. 339) $1,168,713 (to be updated with costs related to DSEIR No. 339) New Development Allowed in the Platinum Triangle
Non-Residential Uses
14,340,522
4,909,682
+ 1,500,000
square feet office development
square feet commercial development
square feet institutional
20,750,204 total square feet non-residential development Residential Uses
18,909 residential units
x 800 square feet (estimated average unit size)
15,127,200 total square feet of residential development Total Square Feet
20,750,204 total square feet non-residential development + 15,127,200 total square feet of residential development 35,877,404 total square feet of residential and non-residential uses Fees (to be updated with DSEIR Planning and Public Works Costs) $1,168,713 costs $0.03 per square foot
35,877,404 total square feet
Non Residential Uses: $0.03 per square foot
Residential Uses: $24.00 per unit ($0.03 x 800 square feet) EXHIBIT "D-3"
LIBRARY FACILITIES FEE
Residential Uses $486.77 per unit
The increase of density in the Platinum Triangle to an expected population over 27,000 residents requires the inclusion of a library facility in the Platinum Triangle. The library facilities fee includes the cost of the purchase of a 10,000 square foot commercial condominium shell space with 50 assigned parking spaces as well as FF&E and an opening day collection. The projected project cost for a 10,000 square foot library facility in the Platinum Triangle is $8,004,000. The individual unit library impact fee for the Platinum Triangle is now $486.77 per unit.
EXHIBIT "D-4"
PLATINUM TRIANGLE PARK FEES
Residential Uses $ 8,114.01 per unit
Park fees are established by implementing various values identified for The Platinum Triangle into the Park Dedication fee foimula, as established by Anaheim Municipal Code, Chapters 17.08 and 17.34, which is as follows:
(Land Acquisition Costs + Land Development Costs) x 2 x DU density proposed =fee 1,000
Land acquisition costs are estimated by Keyser-Marsten to be $67.50/sq. ft. of property purchased (for industrial properties, including goodwill and relocation costs*). This equals $2,940,300/ac.
Land Development costs have been established by the City Council at $635,000/ac.** City Park Acreage Standard of 2 acres/1,000 population was incorporated in the formula set forth in Chapters 17.08 and 17.34, as approved by City Council.
Estimated dwelling unit density of 1.5 persons/unit for both the single family attached and apartment complexes as estimated in Final Environmental Impact Report, No. 330, Table
4.3-1, for the City of Anaheim's General Plan and Zoning Code Update.
Using the above figures the park fee is $10,725.90 per unit. ($2,940,300 + $635,000) x 2 x 1.5 = $10,725.90 per unit 1,000
; provided, however, that by the adoption of Resolution No. 2011-085 on June 14, 2011, the current park fee is $8,114.01 per residential unit.
Parkland dedication will be required for each 8 acre or larger parcel proposed for residential development. The CITY's Platinum Triangle consultant, EDAW, has recommended that each dwelling unit for parcels of 8 acres or larger dedicate 44 sq. ft. of public parkland per each dwelling unit proposed.*** The value of the parkland dedication will be credited against overall park in lieu fees paid for the Project. Consistent with existing zoning and policies, no credit will be given for improvements.
As an example, if a subdivision were required to dedicate a .5 acre park, credit would be given against the Land Acquisition value, established above, of $2,940,300 per acre. Accordingly the OWNER would be entitled to a credit of $1,470,150 for the dedication under that example.
Notes:
* Memorandum by Keyser-Marsten dated March 3, 2010 by James Rabe of Keyser Marston, available in the Parks Division office.
** As approved by the City Council in Resolution No. 2011-85, dated June 4, 20011. *** The square foot figure for required recreational space per dwelling unit in The Platinum Triangle is lower than the figure used elsewhere in the CITY, as set forth in Section
17.08. The lower figure is recommended because of the type of residential projects anticipated for The Platinum Triangle. The mixed use type of neighborhoods proposed require smaller human scale parks within a walking distance of 2.5 to 5 minutes of each dwelling unit.
EXHIBIT "E"
[INTENTIONALLY 01VIITTED1
EXHIBIT "F"
PRELIMINARY TITLE REPORT
[Behind this sheet.1
NORTH
111EAMERICAN
diTITLE
ENCOMPANY
Like Clockwork 0
Lennar Homes Of California
25 Enterprise, Suite 310
Aliso Viejo, CA 92656
Attention: Donna Kelly
3090 Bristol Street, Suite 190
Costa Mesa, California 92626
Office Phone: (949)419-9481
Office Fax: (714)667-0338
Email: [email protected]
Updated 6/3/2015
Your Ref: A-Town Metro
Our Order No.: 928572
Property Address:
Dated as of May 20, 2015 at 7:30 A.M.
In response to the above referenced application for a Policy of Title Insurance, North American Title Company
Hereby reports that it is prepared to issue, or cause to be issued, as of the date hereof, a Policy or Policies of Title Insurance describing the land and the estate or interest therein hereinafter set forth, insuring against loss which may be sustained by reason of any defect, lien or encumbrance not shown or referred to as an Exception below or not excluded from coverage pursuant to the printed Schedules, Conditions and Stipulations of said Policy forms.
The printed Exceptions and Exclusions from the coverage and limitations on covered risks of said Policy or Policies are set forth in Exhibit A attached. The Policy to be issued may contain an Arbitration Clause. When the amount if insurance is less than that set forth in the Arbitration Clause, all arbitrable matters shall be arbitrated at the option of either the Company or the Insured as the exclusive remedy of the Parties. Limitations on covered risks applicable to the CLTA and ALTA Homeowner's Policies of Title Insurance which establish a deductible amount and a maximum dollar limit of liability for certain coverages are also set forth in Exhibit A. Copies of the Policy forms should be read. They are available from the office which issued this report.
Please read the exceptions shown or referred to below and the exceptions and exclusions set forth in Exhibit A of this report carefully. The exceptions and exclusions are meant to provide you with notice of matters which are not covered under the terms of the title insurance policy and should be carefully considered.
It is important to note that this preliminary report is not a written representation as to the condition of title and may not list all liens, defects, and encumbrances affecting title to the land.
This report (and any supplements or amendments hereto) is issued solely for the purpose of facilitating the issuance of a policy of title insurance and no liability is assumed hereby. If it is desired that liability be assumed prior to the issuance of a policy of titie insurance, a Binder or Commitment should be requested.
The form of Policy of title insurance contemplated by this report is:
ALTA Standard Owner Policy
Randy Dean, Title Officer
Order No.: 92002-928572-09
IMPORTANT NOTICE
California Assembly Bill 512 ("AB 512) is effective on January 1, 1990. Under AB 512, all title companies may only make funds available for monetary disbursal in accordance with the following rules:
1. Same Day Availability. Disbursement on the date of deposit is allowed only when funds are deposited to NATC in cash or by electronic transfer (wire). Bear in mind that cash will be accepted from customers only under special circumstances as individually approved by management.
2. Next Day Availability. If funds are deposited to NATC by cashier's checks, certified checks, or teller's checks, disbursement may be on the next business day following deposit. A "teller's check" is one drawn by an insured financial institution against another insured financial institution (e.g., a savings and loan funding with a check drawn against an FDIC insured bank).
3. 3-7 Banking Days Availability (Regulation CC). If the deposit is made by checks other than those described in Paragraphs 1 and 2 above, disbursement may occur on the day when funds must be made available to depositors under Federal Reserve Regulation CC. This requires a "hold" on some checks of 2- 7 banking days or longer in some instances. Personal checks, private corporation and company checks, and funding checks- 'Nun riiortgage Lompanies—that- are noteller ,s checks are—among -those checks subject to such holds.
(For further details, consult Chapter 598, statutes of 1989.) Note: The above guidelines are in conformity with those issued by the Department of Insurance for all California Title Insurers.
Order No.: 92002-928572-09 Page 2
SCHEDULE A
1. The estate or interest in the land hereinafter described or referred to covered by this report is:
A Fee.
2. Title to said estate or interest at the date hereof is vested in:
PT METRO, LLC, A Delaware limited liability company
3. The Land referred to in this report is situated in the State of California, County of Orange, and is described as follows:
SEE EXHIBIT "g ATTACHED HEREWITH AND MADE A PART HEREOF
Order No.: 92002-928572-09
LEGAL DESCRIPTION
Real property in the City of Anaheim, County of Orange, State of California, described as follows:
Lots 1 through 14 inclusive A and B in Tract 16859, in the City of Anahem, County of Orange, State of California, as per map filed in Book 892 Pages 1 through 10 inclusive of Miscellaneous Maps, in the office of the county recorder of said county.
Order No.: 92002-928572-09
SCHEDULE B
At the date hereof exceptions to coverage in addition to the printed exceptions and exclusions in the policy form designated on the face page of this report would be as follows:
General and special taxes and assessments for the fiscal year 2015-2016, a lien not yet due or payable.
2. General and special taxes and assessments for the fiscal year 2014-2015. $63,254.46, PAID
$0.00
$63,254.46, OPEN
$6,348.45
01007
232-121-01
Affects Lot 1.
3. General and special taxes and assessments for the fiscal year 2014-2015.
First Installment: $52,575.59, PAID
Penalty: $0.00
Second Installment: $52,575.59, OPEN
Penalty: $5,280.56
Tax Rate Area: 01007
A. P. No.: 232-121-02
Affects Lot 1
4. General and special taxes and assessments for the fiscal year 2014-2015.
First Installment: $49,932.25, PAID
Penalty: $0.00
Second Installment: $49,932.25, OPEN
Penalty: $4,916.23
Tax Rate Area: 01007
A. P. No.: 232-121-03
Affects Lot 3.
5. General and special taxes and assessments for the fiscal year 2014-2015.
First Installment: $21,863.78, PAID
Penalty: $0.00
Second Installment: $21,863.78, OPEN
Penalty: $2,209.38
Tax Rate Area: 01007
A. P. No.: 232-121-04
Affects Lot 4.
1. First Installment:
Penalty:
Second Installment:
Penalty:
Tax Rate Area:
A. P. No.:
Order No.: 92002-928572-09
6. General and special taxes
First Installment:
Penalty:
Second Installment:
Penalty:
Tax Rate Area:
A. P. No.:
and assessments for the fiscal year 2014-2015.
$20,640.75, PAID
$0.00
$20,640.75, OPEN
$2,087.08
01007
232-121-05
Affects Lot 5.
7. General and special taxes
First Installment:
Penalty:
Second Installment:
Penalty:
Tax Rate Area:
A. P. No.:
and assessments for the fiscal year 2014-2015.
$20,563.28, PAID
$0.00
$20,563.28, OPEN
$2,079.33
01007
232-121-06
Affects Lot 6.
8. General and special taxes and assessments for the fiscal year 2014-2015. $42,911.68, PAID
$0.00
$42,911.68, OPEN
$4,314.17
01007
232-121-07
Affects Lot 7.
9. General and special taxes and assessments for the fiscal year 2014-2015.
First Installment: $33,477.57, PAID
Penalty: $0.00
Second Installment: $33,477.57, OPEN
Penalty: $3,370.76
Tax Rate Area: 01007
A. P. No.: 232-121-08
Affects Lot 8.
10. General and special taxes
First Installment:
Penalty:
Second Installment:
Penalty:
Tax Rate Area:
A. P. No.:
Affects Lot 9.
and assessments for the fiscal year 2014-2015.
$47,098.12, PAID
$0.00
$47,098.12, OPEN
$4,732.81
01007
232-121-09
Order No.: 92002-928572-09
First Installment:
Penalty:
Second Installment:
Penalty:
Tax Rate Area:
A. P. No.:
11. General and special taxes and assessments for the fiscal year 2014-2015.
First Installment: $78,796.48, PAID
Penalty: $0.00
Second Installment: $78,796.48, OPEN
Penalty: $7,902.65
Tax Rate Area: 01007
A. P. No.: 232-121-10
Affects Lot 10.
12. General and special taxes and assessments for the fiscal year 2014-2015.
First Installment: $59,384.99, PAID
Penalty: $0.00
Second Installment: $59,384.99, OPEN
Penalty: $5,961.50
Tax Rate Area: 01007
A. P. No.: 232-121-11
Affects Lot 11.
13. General and special taxes and assessments for the fiscal year 2014-2015.
First Installment:
Penalty:
Second Installment:
Penalty:
Tax Rate Area:
A. P. No.:
Affects Lot 12.
14. General and special taxes and assessments for the fiscal year 2014-2015. $11,701.98, PAID
$0.00
$11,701.98, OPEN
$1,193.20
01007
232-121-13
Affects Lot 13.
15. General and special taxes and assessments for the fiscal year 2014-2015.
First Installment: $36,152.18, PAID
Penalty: $0.00
Second Installment: $36,152.18, OPEN
Penalty: $3,638.22
Tax Rate Area: 01007
A. P. No.: 232-121-14
Affects Lot 14.
Order No.: 92002-928572-09
$24,821.35, PAID
$0.00
$24,821.35, OPEN
$2,505.14
01007
232-121-12
First Installment:
Penalty:
Second Installment:
Penalty:
Tax Rate Area:
A. P. No.:
16. General and special taxes and assessments for the fiscal year 2014-2015.
First Installment: $No taxes due,
Penalty: $
Second Installment: $No taxes due,
Penalty: $
Tax Rate Area: 01007
A. P. No.: 232-121-15
Affects Lot B.
17. General and special taxes and assessments for the fiscal year 2014-2015.
First Installment: $No taxes due,
Penalty: $
Second Installment: $No taxes due,
Penalty: $
Tax Rate Area: 01007
A. P. No.: 232-121-16
Affects Lot A.
18. The lien of supplemental taxes, if any, assessed pursuant to Chapter 3.5 commencing with Section 75 of the California Revenue and Taxation Code.
19. The lien of special tax assessed pursuant to Chapter 2.5 commencing with Section 53311 of the California Government Code for City of Anaheim Community Facilities District No. 08-1 (Platinum Triangle), as disclosed by Notice of Special Tax Lien recorded August 12, 2008 as Instrument No. 2008000383751 of Official Records.
20. The lien of special tax assessed pursuant to Chapter 2.5 commencing with Section 53311 of the California Government Code for Community Facilities District No. R2, as disclosed on The Annual Tax Bill.
21. Water rights, claims or title to water, whether or not shown by the public records.
22. An easement for public utilites and incidental purposes, recorded April 26, 1978 as Instrument No. 33904 in Book 12649 Page 1849 of Official Records.
In Favor of: The City of Anaheim
Affects: That portion of Lot 4 as shown on said map
23. An easement for public utility overhang and incidental purposes, recorded February 14, 1958 as Book 4197 Page 380 of Official Records.
In Favor of: The City of Anaheim
Affects: Those portions of Lots 4, 7 and 8 as shown on said map
24. The terms and provisions contained in the document entitled Encrocahment License Agreement (ENC2003-00036), executed by and between City of Anaheim, a chartered city and municipal corporation and KateIla, LLC, a California Corporation, recorded March 26, 2003, in book No. as Instrument No. 2003000328358 of Official Records.
25. The terms and provisions contained in the document entitled Covenant and Agreement, executed by and between Platinum Triangle Partners, LLC, a California Limited Liability Company and City
Order No.: 92002-928572-09
of Anaheim, recorded September 28, 2006, in book No. as Instrument No. 2006000648032 of Official Records.
Which, among other things, provides for:
Owner hereby agrees not to contest the formation of any assessment district, including an assessment district that contains portions of the subject property, which may be formed to finance infrastructure and/or maintenance for the Plantinum Triangle.
26. The terms and provisions contained in the document entitled Development Agreement No. 2005- 00008, executed by and between City of Anaheim; Lennar Plantinum Triangle, LLC and Don H.
Watson, trustee of the Don H. Watson Family Trust; Julius Realty Corporation; Traffic Control Services, Inc.; Joselito D. Ong and Renee D. Ong; Roger C. Treichler nd Vicki Treichler, as co- trustees of the Treichler Family Trust; Robert Stovall Family Partnership, L.P.; and Jennifer Leonard and Linda Gaffney, as tenants in common, recorded December 13, 2005, in book No. as Instrument No. 2005000992876 of Official Records.
Document(s) declaring modifications thereof recorded February 23, 2009 as Instrument No. 2009-81175 of Official Records.
The terms and provisions contained in the document entitled "Collateral Assignment of Development Agreement" recorded February 28, 2012 as Instrument No. 2012-108954 of Official Records.
27. The terms and provisions contained in the document entitled Covenant Regarding Interim Development Requirements and Maintenance Obligations, executed by and between Lennar Platinum Triangle, LLC, a Delaware Limited Liability Company and City of Anaheim, recorded November 2, 2006, in book No. as Instrument No. 2006000746607 of Official Records.
28. An easement affecting the portion of said land and for the purposes stated herein, and incidental purposes, shown or dedicated by the map of:
Subdivision: Tract No. 16859
Book: 892
Page: 1-10
In favor of: The City of Anaheim For: Sewer, public utilities, other public purposes including ingress, egress and rights for maintenance purposes
Affects: That portion of Lot 7 as shown on said map
For: Public Parks, emergency ingress, egress and maintenance purposes Affects: Lots A and B
29. Provisions, herein recited, of the dedication statement on the map of the subdivison shown below:
Subdivision: Tract No. 16859
Book: 892
Page: 1-10 Provisions: Denotes an easement for private ingress and egress purposes reserved hereon for future grant.
Order No.: 92002-928572-09
30. A Deed of Trust to secure an original indebtedness of $25,000,000.00 recorded February 28, 2012 as Instrument No. 201200010895 3 of Official Records.
Dated: February 27, 2012
Trustor: PT METRO, LLC, A Delaware limited liability company Trustee: North America Title Company
Beneficiary: Comerica Bank
A document recorded February 27, 2015 as Instrument No. 2015-106062 of Official Records provides that the deed of trust or the obligation secured thereby has been modified.
31. The effect of a document entitled "A Resolution of the City Counsel of the City of Anaheim Accepting Irrevocable Offers of Dedication of Certain Real Property and/or Facilities", recorded March 14, 2014 as Instrument No. 2014-97105 of Official Records. ********** END OF REPORT **********
Order No.: 92002-928572-09
NOTES
1. Notice of change in ownership recording procedure
Effective July 1, 1985, pursuant to a new state law (Section 480.3 of the Revenue and Taxation Code), all Deeds and other Documents that reflect a change in ownership must be accompanied by a Preliminary Change of Ownership Report to be completed by the transferee.
If this special report is not presented at the time of recording, an additional recording fee of $20.00, as required by law, will be charged.
Preliminary Change in Ownership forms, instructions on how to complete them, and a non- exclusive list of documents that are affected by this change, are available from the County Recorder's Office or the Office of the County Assessor.
2. Pursuant to Section 12413.1 of the insurance code funds deposited in escrow must be held for the following time periods before they can be disbursed:
1. Cash or wired funds--available or immediate dispersal after deposit in bank or confirmation of receipt in account. Bear in mind that Cash will be accepted from customers only under special circumstances as individually approved by management.
2. Cashier checks, certified checks, tellers checks--next day available funds.
3. All other checks must be held in accordance with regulation CC adopted by the Federal Reserve Board of Governors before they must be disbursed.
4. Drafts must be collected before they may be disbursed.
North American Title Company will not be responsible for accruals of interest or other charges resulting from compliance with the disbursement restrictions imposed by state law.
For Your Information Our Wire Instructions Are:
Credit the Account of:
North American Title Company
Bank Account No.: 1893920700 ABA No.: 121137522
Escrow No. 92002-928572-09
ACH FUNDS - Automatic Clearing House
North American Title Company will not accept funds in the form of ACH transfers.
Be sure to reference our order number and Title Officer name.
Should this office be required to wire funds out at close of escrow, please be informed that wiring instructions should be received as soon as possible, but no later than the following times.
Wires outside the State of California:
11:00 A.M. ON DATE OF WIRE
Wires within the State of California:
12:00 P.M. ON DATE OF WIRE
Wire To:
Comerica Bank
2321 Rosecrans Ave, Ste 5000
El Segundo, CA 90245
Order No.: 92002-928572-09
Effective January 1, 1991
A service charge of $25.00 will be assessed for all funds disbursed by this Company by wire.
3. Payoff Requirement
If any of the deeds of trust shown in this Preliminary Report secures a revolving credit loan, this Company will require prior to closing that:
1. The Borrower provide authorization to the Lender to freeze the loan from further disbursements and that we be provided with proof that the account has been frozen and the effective date of the freeze.
2. All unused checks, voided checks and/or credit cards be submitted to this Company.
3. There are no outstanding checks unpaid.
4. Should the Company be unable to ascertain that one or more of the above have not been complied with, we will withhold from the proceeds the maximum amount of the loan obligation until such time as we may verify that the payoff was sufficient to obtain a full reconveyance.
4. This report is incomplete. We will require a statement of information from the parties indicated below, five (5) days prior to closing, in order to complete this report, based on the effect of Documents, Proceedings, Liens, Decrees, or other matters which do not specifically describe said Land, but which, if any do exist, may affect the title or impose Liens or Encumbrances thereon.
Borrower:
Seller:
All Parties:
NOTE: The statement of information is necessary to complete the search and examination of Title under this order. Any Title Search includes matters that are indexed by name only, and having a completed Statement of Information assists the Company in the elimination of certain matters which appear to involve the Parties, but in fact affect another Party with the same or similar name.
Be assured that the Statement of Information is essential and will be kept strictly confidential to this file.
5. North American Title Company, Inc.'s charges for recording the transaction documents include charges for services performed by North American Title Company, Inc., in addition to an estimate of payments to be made to governmental agencies.
6. If North American Title Company is asked to hold money for taxes at the close of escrow, written approval by the Borrower/Seller must be submitted prior to closing.
7. The map attached, if any, may or may not be a survey of the land depicted hereon. North American Title Company expressly disclaims any liability for loss or damage which may result from reliance on this map except to the extent coverage for such loss or damage is expressly provided by the terms and provisions of the title insurance policy, if any, to which this map is attached.
Order No.: 92002-928572-09
NORTH AMERICAN TITLE COMPANY
3090 Bristol Street, Suite 190, Costa Mesa, CA 92614
(800)464-628 2
Fax: Email:
Attention:
Your Ref:
Our Order No.: 92002-928572 -09
LENDERS SUPPLEMENTAL REPORT
Dated as of February 13, 2015 AT 7:30 A.M.
Title Officer: Randy Dean
The above numbered report (including any supplements or amendments thereto) is hereby modified and/or supplemented in order to reflect the following additional items relating to the issuance of an American Land Title Association loan form policy of Title Insurance:
Our ALTA Loan Policy, when issued, will contain Endorsement Nos. 100 and 116.
There is located on said land a
Known as:
City of Anaheim
County of
State of California.
Order No.: 92002-928572-09
Privacy Policy Notice
We at the North American Title Group family of companies take your privacy very seriously. This Notice is being given on behalf of each of the companies listed below1 (the "North American Title Companies"), as well as on behalf of North American Advantage Insurance Services, LLC. It explains our policy regarding the personal information of our customers and our former customers.
OUR PRIVACY POLICIES AND PRACTICES
The North American Title Companies
1. Information North American Title Companies collect, and the sources from which we collect it: On forms related to your real estate transaction, North American Title Companies collect personal information that you, our affiliates or third parties have provided to us, such as, for example, your name, address, and sale price of your home. All of the information that we collect is referred to in this notice as "NAT Collected Information".
2. What information North American Title Companies disclose to our affiliates: From time to time, as permitted by law, the North American Title Companies may share NAT Collected Information with each other and with North American Advantage Insurance Services, LLC ("NAAIS") about customers and former customers. You may ask us not to share NAT Collected Information among the North American Title Companies and NAAIS by writing to us and letting us know at: North American Title Group, Inc., Attention: Corporate Affairs, 700 NW 107th Avenue, Suite 300, Miami, FL 33172. Your request will not affect NAT Collected Information that the North American Title Companies are otherwise permitted by law to share, such as, in certain circumstances, NAT Collected Information related to our experiences and transactions with you.
3. What information North American Title Companies disclose to third parties:
If permitted by federal law and the law of your state, we may disclose some or all of the following information to companies that perform marketing services on our behalf and to certain unaffiliated insurance companies with whom we have joint marketing agreements: your name, current address, purchased property address, and closing date.
•
We also may share NAT Collected Information about customers and former customers with other unaffiliated third parties, as permitted by law. For example, NAT Collected Information may be shared in certain circumstances (A) with companies involved in servicing or processing your account (B) with insurance regulatory authorities, and (C) with law enforcement officials, to protect against fraud or other crimes.
4. Your right to access your personal information: You have the right to review your personal information that we have on record about you. If you wish to review that information, please contact the local North American Title Company office identified on the title insurance product to which this notice is attached or where you received this notice and give us a reasonable time to make that information available to you. If you believe any information is incorrect, notify us, and if we agree, we will correct it. If we disagree, we will advise you in writing why we disagree.
North American Advantage Insurance Services, LLC
1. Information North American Advantage Insurance Services, LLC ("NAAIS") collect and sources from which we collect it: NAAIS collects personal information about you from you, our affiliates, or third parties on forms related to your transaction with NAAIS or a North American Title Company, such as your name, address, or information about the property that is or will be insured. We also receive information from companies, which compile and distribute public records. All of the information that NAAIS collects, as described in this paragraph, is referred to in this notice as "NAAIS Collected Information."
2. Information NAAIS may disclose to its affiliates or third parties: NAAIS may disclose NAAIS Collected Information about you or others without your permission as permitted or required by law, including to the following types of institutions for the reasons described:
•
To a third party or an affiliate if the disclosure will enable that party to perform a business, professional or insurance function for us in connection with an insurance transaction involving you.
Order No.: 92002-928572-09
To an insurance institution, agent, or credit reporting agency in order to detect or prevent criminal activity, fraud or misrepresentation in connection with an insurance transaction. •
To an insurance institution, agent, or credit reporting agency for either this agency or the entity to whom we disclose the information to perform a function in connection with an insurance transaction involving you. •
To an insurance regulatory authority, law enforcement, or other governmental authority in order to protect our interests in preventing or prosecuting fraud, or if we believe that you have conducted illegal activities.
3. Your right to access and amend your personal information:
You have the right to request access to the
personal information that we record about you. Your right includes the right to know the source of the information and the identity of the persons, institutions or types of institutions to whom we have disclosed such information within two (2) years prior to your request. Your right includes the right to view such information and copy it in person, or request that a copy of it be sent to you by mail (for which we may charge you a reasonable fee to cover our costs). Your right also includes the right to request corrections, amendments or deletions of any information in our possession. The procedures that you must follow to request access to or an amendment of your information are as follows:
To obtain access to your information: You should submit a request in writing to: North American Title Group, Inc., Attention: Corporate Affairs, 700 NW 107th Avenue, Suite 300, Miami, FL 33172. The request should include your name, address, social security number, telephone number, and the recorded information to which you would like access. The request should state whether you would like access in person or a copy of the information sent to you by mail. Upon receipt of your request, we will contact you within 30 business days to arrange providing you with access in person or the copies that you have requested.
To correct amend or delete any,of your information: You should submit a request in writing to: North American Title Group, Inc., Attention: Corporate Affairs, 700 NW 107th Avenue, Suite 300, Miami, FL 33172. The request should include your name, address, social security number, telephone number, the specific information in dispute, and the identity of the document or record that contains the disputed information. Upon receipt of your request, we will contact you within 30 business days to notify you either that we have made the correction, amendment or deletion, or that we refuse to do so and the reasons for the refusal, which you will have an opportunity to challenge. ********
SECURITY PROCEDURES We restrict access to NAT Collected Information and NAAIS Collected Information about you to individuals who need to know such information in order to provide you with your product or service. We maintain physical, electronic and procedural safeguards to protect NAT Collected Information and NAAIS Collected Information about you. ********
CHANGES TO OUR PRIVACY POLICY This Notice reflects our privacy policy as of February 1, 2008. We reserve the right to change, modify or amend this policy at any time. Please check our Privacy Policy periodically for changes. 1The North American Title Group Family of Companies are: North American Title Company, North American Title Insurance CompanY, North American Title Alliance, LLC, North American Title Florida Alliance, LLC, North American Services, LLC, North American Exchange Company, North American Title Agency, North American Abstract Agency and North American Legal Services, L.L.C. ********
ACKNOWLEDGEMENT Your receipt of a copy of the preliminary report, commitment, your policy of insurance, or escrow documents accompanied by this Notice will constitute your acknowledgment of receipt of this Privacy Policy Notice.
Order No.: 92002-928572-09
Exhibit A (Revised 11-17-06)
CALIFORNIA LAND TITLE ASSOCIATION
STANDARD COVERAGE POLICY - 1990
Exclusions From Coverage
The following matters are expressly excluded from the coverage of this policy and the Company will not pay loss or damage, costs, attorneys' fees or expenses which arise by reason of:
1. (a) Any law, ordinance or governmental regulation (including but not limited to building or zoning laws, ordinances, or regulations) restricting, regulating, prohibiting or relating (i) the occupancy, use, or enjoyment of the land; (ii) the character, dimensions or location of any improvement now or hereafter erected on the land; (iii) a separation in ownership or a change in the dimensions or area of the land or any parcel of which the land is or was a part; or (iv) environmental protection, or the effect of any violation of these laws, ordinances or governmental regulations, except to the extent that a notice of the enforcement thereof or a notice of a defect, lien, or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy. (b)
Any governmental police power not excluded by (a) above, except to the extent that a notice of the exercise thereof or notice of a defect, lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy.
2. Rights of eminent domain unless notice of the exercise thereof has been recorded in the public records at Date of Policy, but not excluding from coverage any taking which has occurred prior to Date of Policy which would be binding on the rights of a purchaser for value without knowledge.
3. Defects, liens, encumbrances, adverse claims or other matters:
(a)
whether or not recorded in the public records at Date of Policy, but created, suffered, assumed or agreed to by the insured claimant; (b)
not known to the Company, not recorded in the public records at Date of Policy, but known to the insured claimant and not disclosed in writing to the Company by the insured claimant prior to the date the insured claimant became an insured under this policy; (c) resulting in no loss or damage to the insured claimant; (d) attaching or created subsequent to Date of Policy; or (e)
resulting in loss or damage which would not have been sustained if the insured claimant had paid value for the insured mortgage or for the estate or interest insured by this policy.
4. Unenforceability of the lien of the insured mortgage because of the inability or failure of the insured at Date of Policy, or the inability or failure of any subsequent owner of the indebtedness, to comply with the applicable doing business laws of the state in which the land is situated.
5. Invalidity or unenforceability of the lien of the insured mortgage, or claim thereof, which arises out of the transaction evidenced by the insured mortgage and is based upon usury or any consumer credit protection or truth in lending law.
6. Any claim, which arises out of the transaction vesting in the insured the estate of interest insured by this policy or the transaction creating the interest of the insured lender, by reason of the operation of federal bankruptcy, state insolvency or similar creditors' rights laws.
EXCEPTIONS FROM COVERAGE — SCHEDULE B, PART I
This policy does not insure against loss or damage (and the Company will not pay costs, attorneys' fees or expenses) which arise by reason of:
1 Taxes or assessments which are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real property or by the public records. Proceedings by a public agency which may result in taxes or assessments, or notices of such proceedings, whether or not shown by the records of such agency or by the public records.
2. Any facts, rights, interests, or claims which are not shown by the public records but which could be ascertained by an inspection of the land or which may be asserted by persons in possession thereof.
3. Easements, liens or encumbrances, or claims thereof, which are not shown by the public records.
4. Discrepancies, conflicts in boundary lines, shortage in area, encroachments, or any other facts which a correct survey would disclose, and which are not shown by the public records.
5. (a) Unpatented mining claims; (b) reservations or exceptions in patents or in Acts authorizing the issuance thereof; (c) water rights, claims or title to water, whether or not the matters excepted under (a), (b) or (c) are shown by the public records.
CLTA HOMEOWNER'S POLICY OF TITLE INSURANCE (10/22/03)
ALTA HOMEOWNER'S POLICY OF TITLE INSURANCE
EXCLUSIONS
In addition to the Exceptions in Schedule B, You are not insured against loss, costs, attorneys' fees, and expenses resulting from:
1. Governmental police power, and the existence or violation of any law or government regulation. This includes ordinances, laws and regulations concerning:
a. building
b. zoning
c. Land use
d. improvements on the Land
e. Land division
f. environmental protection This Exclusion does not apply to violations or the enforcement of these matters if notice of the violation or enforcement appears in the Public Records at the Policy Date. This Exclusion does not limit the coverage described in Covered Risk 14, 15, 16, 17 or 24.
2. The failure of Your existing structures, or any part of them, to be constructed in accordance with applicable building codes. This Exclusion does not apply to violations of building codes if notice of the violation appears in the Public Records at the Policy Date.
3. The right to take the Land by condemning it, unless:
a. a notice of exercising the right appears in the Public Records at the Policy Dale; or b.
the taking happened before the Policy Date and is binding on You if You bought the Land without Knowing of the taking.
4. Risks:
a.
that are created, allowed, or agreed to by You, whether or not they appear in the Public Records; b.
that are Known to You at the Policy Date, but not to Us, unless they appear in the Public Records at the Policy Date; c. that result in no loss to You; or
d.
that first occur after the Policy Date - this does not limit the coverage described in Covered Risk 7, 8.d, 22, 23, 24 or 25.
5. Failure to pay value for Your Title.
6. Lack of a right:
a.
to any Land outside the area specifically described and referred to in paragraph 3 of Schedule A; and b. in streets, alleys, or waterways that touch the Land.
This Exclusion does not limit the coverage described in Covered Risk 11 or 18.