This chapter establishes procedures for the processing of Development Agreements in compliance with the Government Code Sections 65864 through 65869.5. Development agreements are intended to:

A.

Strengthen the public planning process, encourage private participation and comprehensive planning, and reduce the economic costs of development;

B.

Facilitate the development of large multi-phase developments, low income housing developments, and developments involving public service and facilities installations which may require several years to complete; and

C.

Promote orderly growth and development, economic welfare, and adequate circulation, utilities and services.

(Ord. No. 2277 N.S., § 5(Exh. A), 6-6-2018)

An applicant for a development project may request that the city review a development agreement application in accordance with the following procedures. As used in this chapter, "applicant" means a person who has a legal or equitable interest in real property, and who applies for a development agreement for a project on that property in accordance with this chapter, and who executes and is bound by the terms of the development agreement. "Applicant" also includes a successor in interest to the rights and duties of the original applicant for a development agreement.

A.

Forms and Information. The applicant shall submit a development agreement application on a form prescribed by the community development director. The director shall identify submittal requirements for development agreement applications, and may require an applicant to submit additional information and supporting data to process the application.

B.

Fees. At the time of initial filing of the application, the applicant shall pay fees and charges required to file and process the development agreement applications and to administer the approved development agreements, including annual reviews, in such amounts as established by resolution of the city council.

C.

Authority to File Application. An applicant shall have a legal or equitable interest in the real property which is the subject of the proposed development agreement. The community development director shall require an applicant to submit proof of his or her interest in the real property and/or of the authority of any agent to act for the applicant. Such proof may include a title report, policy or guarantee, issued by a title company licensed to do business in the state, which demonstrates the required interest of the applicant in the real property.

D.

Initial Review of Application.

1.

The community development director, or his or her designee, shall review each application to determine whether it is complete. If the application is found to be incomplete, the community development director shall reject the application and, within forty-five days after submittal of the application, shall inform the applicant of the items or steps necessary to complete the application.

2.

Following completion of the application, the community development director shall determine whether a project is consistent with the general plan and any applicable specific plan, including the precise development plan and guidelines of a planned unit development (PUD) district, or if the applicant has submitted an application for any necessary amendments to the general plan, PUD, or specific plan.

3.

In addition, the community development director shall determine whether the project meets one of the following criteria:

a.

The project is a residential development awarded a building allotment pursuant to Chapter 18.78 (Residential Development Control System) of Municipal Code Title 18 (Development Code); or

b.

The project is a commercial or industrial development and these three criteria are met:

(1)

The project site is three acres or more in area, and

(2)

The project proposes to construct or rehabilitate multiple structures on the site, and the total floor area to be constructed or rehabilitated is at least one hundred thousand square feet, and

(3)

The project envisions a long-term or phased build-out such that, at the time of application, designs of all buildings and improvements cannot be reasonably specified in the manner required of use permit applications; or the project is a commercial or industrial development and there are other unique or compelling reasons why the project or the potential benefits to the community would warrant consideration in the form of a development agreement.

4.

The community development director shall also determine whether the proposed project comports with regulations of the zoning district in which the property lies, including identification of any aspects of the project which would require a variance were the application subject to review and action under the zoning code.

(Ord. No. 2277 N.S., § 5(Exh. A), 6-6-2018)

Following completion of the application and determination by the community development director that the application meets the criteria described above, the city manager, or his or her designee, shall provide the applicant with the city's standard development agreement. The city manager, or his or her designee, shall negotiate specific components and provisions of the development agreement with the applicant. The negotiated development agreement shall comply with the following requirements:

A.

A development agreement shall specify its duration; the permitted uses of the subject property; the general location and density or intensity of uses; the general location, maximum height and size of proposed buildings; the relation of the project to adjacent properties; and provisions for reservation or dedication of land for public purposes. It shall contain provisions concerning its transferability to any successor owners of the property.

B.

A development agreement shall contain an indemnity clause requiring the applicant to indemnify, defend, and hold the city, its officers, officials, agents, and employees harmless against claims arising out of or related to the actions of applicant in connection with the application or the development process, including all legal fees and costs.

C.

A development agreement should clearly outline the benefits provided to the city from entering into the development agreement. Such benefits may include, but are not limited to:

1.

Construction of public facilities beyond those required as a condition of approval;

2.

Covenants to operate and maintain the private project at higher levels than would otherwise be required;

3.

Proposals to achieve general plan goals not directly associated with the private project; and

4.

Other proposals which, in the judgment of the planning commission and city council, provide public benefits sufficient to justify a development agreement.

D.

A development agreement should include requirements for construction and maintenance of onsite and off-site improvements or payment of fees in lieu of such dedications or improvements.

E.

A development agreement should include any conditions and restrictions imposed by the city with respect to the project, including conditions and restrictions proposed in the environmental review document prepared under the California Environmental Quality Act (CEQA), in order to eliminate or mitigate potential adverse environmental impacts of the project.

F.

A development agreement may provide that the project be constructed in specified phases, and may state construction shall commence within a specified time, and that the project or any phase thereof shall be completed within a specified time.

G.

A development agreement shall be a contract that is negotiated and voluntarily entered into by city and applicant and may contain any additional or modified conditions, terms or provisions agreed upon by the parties.

H.

A development agreement may also include conditions, terms, restrictions, and requirements for subsequent discretionary actions but does not eliminate the applicant's responsibility to obtain all required land use approvals.

I.

If a development agreement requires applicant financing of necessary public facilities, it may include terms relating to subsequent reimbursement over time for such financing.

J.

A development agreement may include any other provisions necessary to guarantee performance of obligations stated in the agreement.

K.

A developments agreement, or any part of a development agreement, may be subject to subsequent condemnation proceedings by the city.

(Ord. No. 2277 N.S., § 5(Exh. A), 6-6-2018)

A.

Negotiations. The city manager shall negotiate the specific components and provisions of the development agreement on behalf of the city.

B.

Planning Commission Consideration. Following negotiation of the development agreement, the planning commission shall consider the development agreement for recommendation to the city council. Prior to making a recommendation for City Council action on a proposed development agreement, the planning commission shall hold a noticed public hearing to consider comments on the development agreement from other advisory bodies and from members of the public. The planning commission public hearing may, but need not, be held concurrently with the public hearing(s) on other land use approvals for the project.

C.

Recommendation by Planning Commission. Within thirty days after closing its public hearing, the planning commission shall make its recommendation in writing to the city council. The recommendation shall include the planning commission's determination and supporting reasoning as to whether or not the proposed development agreement:

1.

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

2.

Is compatible with the uses authorized in the zoning district in which the property is located;

3.

Duly considers city mitigation programs in effect at the time of execution of the agreement;

4.

Will be non-detrimental to the public health, safety and general welfare of persons residing or working in the neighborhood and to property and improvements in the neighborhood;

5.

Complies with the provisions of the California Environmental Quality Act; and

6.

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

D.

City Council Public Hearing. The city council shall hold a noticed public hearing prior to adoption of a development agreement. The city council public hearing may, but need not, be held concurrently with the public hearing(s) on other land use approvals for the project.

E.

Decision by City Council.

1.

After the city council completes the public hearing, it may accept, reject or conditionally accept the recommendation of the planning commission, or in the event the planning commission has failed to make a recommendation, the city council shall approve, disapprove or conditionally approve the development agreement. The city council may, but need not, refer matters not previously considered by the planning commission during its hearing back to the planning commission for report and recommendation. The planning commission may, but need not, hold a public hearing on matters referred back to it by the city council.

2.

The city council shall not approve a proposed development agreement unless it finds that its provisions are consistent with the general plan and any applicable specific plan. This requirement may be satisfied by a finding that the provisions of a proposed development agreement are consistent with proposed general plan or specific plan amendments which are to be adopted concurrently with the approval of the proposed development agreement. A finding of consistency may be made if, considering the general plan and/or specific plan as a whole and balancing competing provisions as appropriate, the city determines that the proposed development agreement does not conflict with the provisions of the general plan and/or specific plan.

3.

A proposed development agreement shall be executed by the applicant before it is placed before the city council for consideration at a public hearing.

F.

Approval of Development Agreement. The city council has the exclusive authority to approve the development agreement. Approval of a development agreement shall be by ordinance.

G.

Failure to Receive Notice. The failure of any person to receive notice required by law or this chapter shall not affect the authority of the city to enter into, modify or terminate a development agreement, nor invalidate a development agreement entered into by the city under this chapter.

(Ord. No. 2277 N.S., § 5(Exh. A), 6-6-2018)

A.

Within ten days after the ordinance approving the development agreement takes effect, the city manager shall execute the development agreement on behalf of the city, and the city clerk shall record the development agreement with the Santa Clara County Recorder.

B.

If the parties to the agreement or their successors in interest amend or cancel the development agreement, or if the city terminates or modifies the development agreement for failure of the applicant to fully comply with the provisions of the development agreement, the city clerk shall record notice of such action with the Santa Clara County Recorder.

(Ord. No. 2277 N.S., § 5(Exh. A), 6-6-2018)

A.

Time for and Initiation of Review.

1.

The city manager shall review each approved development agreement at least once a year, at which time the applicant shall demonstrate compliance with the provisions of the development agreement.

2.

The applicant shall initiate the required annual review by submitting a written request at least sixty days prior to the review date specified in the development agreement. The applicant shall also provide evidence as determined necessary by the city manager to demonstrate compliance with the development agreement. The burden of proof by substantial evidence of compliance is upon the applicant.

B.

Finding of Compliance. If the city manager, on the basis of substantial evidence, finds compliance by the applicant with the development agreement, the city manager shall issue a finding of compliance, which shall be in recordable form and may be recorded with the county recorder after conclusion of the review.

C.

Finding of Noncompliance.

1.

If the city manager finds the applicant has not complied with the provisions of the development agreement, the city manager may issue a finding of noncompliance which may be recorded by the city with the county recorder after it becomes final. The city manager shall specify in writing to the applicant the respects in which applicant has failed to comply, and shall set forth terms of compliance and specify a reasonable time for the applicant to meet the terms of compliance.

2.

If applicant does not comply with any terms of compliance within the prescribed time limits, the development agreement shall be subject to termination or modification pursuant to Section 18.116.070.B of this chapter.

D.

Appeal of Determination. Within ten days after issuance of a finding of compliance or a finding of noncompliance, any interested person may file a written appeal of the finding with the city council. The appellant shall pay fees and charges for the filing and processing of the appeal in amounts established by the city council. The appellant shall specify the reasons for the appeal. The issuance of a finding of compliance or finding of noncompliance by the city manager and the expiration of the appeal period without appeal, or the confirmation by the city council of the issuance of the finding on such appeal, shall conclude the review for the applicable period and such determination shall be final.

(Ord. No. 2277 N.S., § 5(Exh. A), 6-6-2018)

A.

Cancellation or Modification by Mutual Consent. Any development agreement may be canceled or modified by mutual consent of the parties following compliance with the procedures specified in Section 18.116.040 of this chapter. A development agreement may also specify procedures for administrative approval of minor amendments by mutual consent of the applicant and the city manager.

B.

Termination or Modification after Finding of Noncompliance. If a finding of noncompliance does not include terms of compliance, or if applicant does not comply with the terms of compliance within the prescribed time limits, the city manager may refer the development agreement to the city council for termination or modification. The city council shall conduct a public hearing. The burden of proof shall be on the applicant to establish at the public hearing that the development agreement has been complied with. After the public hearing, the city council may terminate the development agreement, modify the finding of noncompliance, or rescind the finding of noncompliance, and issue a finding of compliance.

C.

Rights of the Parties after Cancellation or Termination. In the event that a development agreement is canceled or terminated, all rights of the applicant, property owner or successors in interest under the development agreement shall terminate. If a development agreement is terminated following a finding of noncompliance, the city may, in its sole discretion, determine to return any and all benefits, including reservations or dedications of land, and payments of fees, received by the city.

(Ord. No. 2277 N.S., § 5(Exh. A), 6-6-2018)

A.

Effect of Development Agreement.

1.

Unless otherwise specified in the development agreement, the city's rules, regulations and official policies governing permitted uses of the property, density and design, and improvement standards and specifications applicable to development of the property shall be those city rules, regulations and official policies in force on the effective date of the development agreement. The applicant shall not be exempt from otherwise applicable city ordinances or regulations pertaining to persons contracting with the city.

2.

A Development Agreement shall not prevent the city, in subsequent actions applicable to the property, from applying new rules, regulations and policies which do not conflict with those rules, regulations and policies applicable to the property as set forth in the development agreement. A development agreement shall not prevent the city from denying or conditionally approving any subsequent land use permit or authorization for the project on the basis of such existing or new rules, regulations, and policies.

3.

Unless otherwise specified in the development agreement, a development agreement shall not exempt the applicant from obtaining future discretionary land use approvals.

B.

Rules Affecting Development Agreement. In the event that any regulation or law of the state of California or the United States, enacted or interpreted after a development agreement has been entered into, prevents or precludes compliance with one or more provisions of the development agreement, then the development agreement may be modified or suspended in the manner and pursuant to the procedures specified in the development agreement as may be necessary to comply with such regulation or law.

C.

Enforcement of a Development Agreement. The procedures for enforcement, amendment, modification, cancellation or termination of a development agreement specified in this section and in California Government Code Section 65865.4 are non-exclusive. A development agreement may be enforced, amended, modified, canceled or terminated by any manner otherwise provided by law or by the provisions of the development agreement.

D.

Public Hearings — Generally. Any public hearing held pursuant to this chapter shall be conducted as nearly as possible in accordance with the procedural standards prescribed in Chapter 18.104 (Common Permit Procedures) and the Government Code. Each person interested in the matters shall be given an opportunity to be heard. The applicant has the burden of proof at the public hearing on the proposed development agreement. No action, inaction or recommendation regarding a development agreement shall be set aside due to any error, irregularity, informality, neglect or omission ("error") as to any matter pertaining to the development agreement unless the error is prejudicial and the complaining party sustained and suffered actual substantial injury, and that a different result would have been probable if the error had not occurred or existed. There is no presumption that an error is prejudicial or that injury was done if error is proven.

E.

Judicial Review — Time Limitation.

1.

Any judicial review of an ordinance approving or amending a development agreement shall be by writ of mandate pursuant to Section 1085 of the California Code of Civil Procedure. Judicial review of any city action taken pursuant to this chapter, other than approval or amendment of a development agreement, shall be by writ of mandate pursuant to Section 1094.5 of the California Code of Civil Procedure.

2.

Any action or proceeding to attack, review, set aside, void or annul any decision of the city taken pursuant to this chapter shall not be maintained by any person unless the action or proceeding is commenced within ninety days after the effective date of the decision.

F.

Irregularity in Proceedings. No action, inaction or recommendation regarding a proposed development agreement shall be held void or invalid or be set aside by a court by reason of any error, irregularity, informality, neglect or omission ("error") as to any matter pertaining to the petition, application, notice, finding, record, hearing, report, recommendation or any matter of procedure whatever, unless the error complained of was prejudicial and that by reason of the error, the complaining party sustained and suffered substantial injury, and that a different result would have been probable if the error had not occurred or existed. There is not a presumption that an error is prejudicial or that injury was done if an error is shown.

(Ord. No. 2277 N.S., § 5(Exh. A), 6-6-2018)