This Chapter establishes procedures and requirements for the review and approval of development agreements, consistent with Government Code § 65864 et seq.

A.

Qualified applicant required. Only a qualified applicant may file an application in compliance with this Chapter. A qualified applicant is a person who (which) has legal or equitable interest in the real property which is the subject of the development agreement. Applicant includes authorized agent. The Director may require an applicant to submit proof of their interest in the real property and of the authority of the agent to act for the applicant. The Director may obtain the opinion of the City Attorney as to the sufficiency of the applicant's interest in the real property to enter into the agreement. The City Attorney may require an applicant or agent to submit a title report or other evidence to verify the applicant's legal or equitable interests in the subject property.

B.

Application filing and processing.

1.

An application for a development agreement shall be filed and processed in compliance with Chapter 106.60 (Permit Application Filing and Processing).

2.

The application shall be accompanied by the information identified in the Department handout for development agreement applications, and any fee required by the City Fee Schedule.

3.

An applicant may withdraw an application filed in compliance with this Chapter. No refund due to a disapproval shall be allowed. In the case of a withdrawal, the Director shall have the discretion to authorize a partial refund based upon the pro-rated costs to-date and the status of the application at the time of withdrawal.

4.

The Director shall review the application and shall prepare a staff report to the Commission with regard to the proposed agreement.

5.

The Director shall forward a copy of an agreement form proposed by an applicant to the City Attorney for review. The City Attorney shall prepare a report and recommendation to the appropriate Commission on the proposed agreement form.

After the Commission has held a public hearing, it shall render its decision in the form of a written recommendation to the Council. The report and recommendation shall include proposed findings on the matters stated in Section 106.71.040 (Council Action).

A.

The City Clerk shall set the matter for public hearing before the Council.

B.

After the Council completes the public hearing, it may approve, modify, or disapprove the development agreement. Matters not previously considered by the Commission during its hearing may be referred back to the Commission for report and recommendation. The Commission need not hold a public hearing on these referrals.

C.

The Council shall not approve the development agreement unless it first finds that the agreement:

1.

Is consistent with the objectives, policies, general land uses and programs specified in the General Plan and any applicable specific plan;

2.

Is in conformity with public convenience, general welfare, and good land use practices;

3.

Will not be detrimental to the health, safety, and general welfare of persons residing in the immediate area nor be detrimental or injurious to property or persons in the general neighborhood or to the general welfare of the residents of the City as a whole;

4.

Will not adversely affect the orderly development of property or the preservation of property values;

5.

Is consistent with the provisions of Government Code §§ 65864 through 65869.5.

D.

The agreement may provide that the rules, regulations, and official policies governing the permitted uses of land, density, design, improvement, construction standards and specifications, improvement and construction standards, or any one of these, shall be those rules, regulations and official policies in force at the date of execution of the agreement.

If the Council approves the development agreement, it shall adopt an ordinance approving the agreement and directing the Mayor to execute the agreement after the effective date of the ordinance.

A.

Notice of public hearings required by this Chapter shall be given in compliance with Government Code §§ 65090 and 65091.

B.

The failure of any person to receive notice required by law of any hearing as required by this Chapter, shall not affect the authority of the Council to enter into a development agreement.

No action, inaction, or recommendation regarding a proceeding related to approval or adoption of a proposed development agreement shall be held void or invalid or be set aside by a court by reason of any error or irregularity.

The City Attorney shall propose a form of development agreement which may be adopted by resolution of the Council as a standard form for development agreements. Each proposed agreement shall contain the elements required by Government Code § 65865.2 and may include any other provisions permitted by law.

A.

Either party may propose an amendment to or cancellation in whole or in part of any development agreement. Any amendment or cancellation shall be by mutual consent of the parties.

B.

Except as otherwise provided in this Section, the procedure proposing and adopting an amendment to or the canceling in whole or in part of the development agreement shall be the same as the procedure for entering into an agreement in the first instance. However, if the City initiates a proposed amendment to or a cancellation in whole or in part of the agreement, the City shall first give written notice to the party executing the agreement of its intention to initiate the proceedings not less than 30 days in advance of the giving of public notice of the hearing to consider an amendment or cancellation.

C.

Any amendment to the development agreement that does not relate to the duration of the agreement, permitted uses of the property, density or intensity of use, height or size of proposed buildings, provisions for reservation or dedication of land, or to any conditions, terms, restrictions and requirements relating to subsequent discretionary actions related to design, improvement, construction standards and specifications, improvement and construction standards or any other condition or covenant relating to the use of the property, shall not require a noticed public hearing before the parties may execute an amendment to the agreement.

Within 10 days after the effective date of a development agreement, or any modification or the cancellation thereof, the City Clerk shall have the agreement, the modification or cancellation notice recorded with the County Recorder.

The City Clerk shall be the official custodian of the agreement file. The file shall include an executed copy of the agreement and the originals of all exhibits, reports of periodic review, amendments and cancellations to the agreement.

A.

Responsibility for review.

1.

The Director, or designee by the terms of the development agreement, shall review the development agreement every 12 months from the date the agreement is entered into. The Director shall be responsible for setting the date for the review.

2.

The Council may refer the matter of the periodic review to the Commission.

B.

Procedure for periodic review.

1.

The Council shall review each development agreement in compliance with Government Code § 65865.1. The Council may delegate authority for the review to the City Manager or other staff person.

2.

The Council shall determine, upon the basis of substantial evidence, whether or not the property owner has, for the period under review, complied in good faith with the terms and conditions of the agreement.

3.

If the Council finds and determines, on the basis of substantial evidence, that the property owner has complied in good faith with the terms and conditions of the agreement during the period under review, no further action is required.

4.

If the Council determines, on the basis of substantial evidence, that the property owner has not complied in good faith with the terms and conditions of the agreement during the period under review, the Council, on its own motion, or upon the application of the party charged with the review, may initiate proceedings to modify or terminate the agreement.

A.

If, upon a finding in compliance with 106.71.120.B.4, the Council determines that modification of the agreement is appropriate or that the agreement should be terminated, the Council shall give notice to the other party of its intention to do so. The notice shall provide:

1.

The time and place of the public hearing;

2.

A statement as to whether the Council proposes to terminate or to modify the agreement;

3.

Other information which the Council considers appropriate to inform the other party of the nature of the proceeding;

B.

A public hearing for termination or for modification shall be conducted according to the provisions of this Code, except that any amendment or modification which does not relate to the duration of the agreement, permitted uses of the property, density or intensity of use, height or size of proposed buildings, provisions for reservation or dedication of land, or to any conditions, terms, restrictions and requirements relating to subsequent discretionary actions relating to design, improvement, construction standards and specifications, improvement and construction standards or any other condition or covenant relating to the use of the property shall not require a noticed public hearing before the Council.

C.

At the conclusion of the hearing, the Council may refer the matter to the Commission for further proceedings or for a report and recommendation. Upon receipt of any such report or recommendation, the Council will take final action on the modification or termination. As part of that final determination, the Council may impose conditions as necessary to protect the interest of the City. The decision of the Council shall be final and any court action or proceeding to attack, review, set aside, void or annul any decision of the determination by the Council shall be commenced within the time period specified in Government Code § 65009.