A.   This chapter is adopted pursuant to the authority of Government Code sections 65864 through 65869.5, inclusive.

   B.   The purpose of this chapter is to establish rules and regulations for the processing and review of development agreements. (Ord. 2073 § 1, 1989)

   A.   The director of community development shall prescribe the form of applications, notice and documents provided for or required under this chapter for the preparation and implementation of development agreements, consistent with the provisions of this chapter.

   B.   The director of community development may require an applicant for a development agreement to submit such information and supporting data as the planning commission, city council and other city departments to which the application is referred under this chapter consider necessary to process the application. (Ord. 2073 § 1, 1989)

The city council, by resolution, shall fix the schedule of fees and charges for the filing and processing of each application, review, and document required under this chapter. (Ord. 2073 § 1, 1989)

   A.   An applicant for a development agreement shall possess a legal or equitable interest in the real property which is to be the subject of the development agreement. The director of community development shall require an applicant to submit proof of the applicant's interest in the real property and of the authority of any agent representing the applicant. Such proof may include a preliminary report issued by a title company licensed to do business in the state of California. Before processing the application, the director of community development shall obtain the opinion of the city attorney as to the sufficiency of the applicant's interest in the real property to enter into the development agreement.

   B.   In addition to the city and the applicant, any federal, state or local governmental agency may be included as a party to a development agreement. Any such additional party may be made a party to a development agreement pursuant to the provisions of the joint exercise of powers act 1 providing for joint powers agreements, or provisions of other applicable federal, state or local law, in order to create a legally binding agreement among such parties. (Ord. 2073 § 1, 1989)

   A.   Each application shall be accompanied by the form of development agreement proposed by the applicant. This requirement may be met by designating the city's then standard form of development agreement, if any, and including specific proposals for changes in or additions to the language of the standard form, or by submitting a form of development agreement prepared by the applicant.

   B.   Any development agreement prepared by an applicant shall contain the provisions required under this chapter and shall also include the following:

      1.   The parties to the development agreement;

      2.   Written evidence of the nature of the applicant's interest in the real property, demonstrating to the satisfaction of the community development director and the city attorney, the applicant's legal or equitable interest in the property which is the subject of the development agreement;

      3.   A description of the development project sufficient to permit the development agreement to be reviewed under the applicable criteria of this chapter. Such description may include, but is not limited to, references to site and building plans, elevations, relationships to adjacent properties and operational data. Where appropriate, such description may distinguish between elements of the development project which are proposed to be fixed under the development agreement, those which may vary and the standards and criteria by which the same may be reviewed.

      4.   An identification of the approvals and permits for the development project issued or contemplated by the development agreement.

      5.   The proposed duration of the development agreement.

      6.   A program and standards for periodic review under this chapter.

      7.   Appropriate provisions, acceptable to the city attorney, providing security for the performance of the applicant under the development agreement.

      8.   Any other relevant provisions which may be deemed necessary by the director of community development. (Ord. 2073 § 1, 1989)

   A.   The director of planning and community development shall review the application and determine whether any additional information is necessary to complete the form of development agreement. After receiving all necessary information, he shall prepare a staff report and recommendation and shall state whether the development agreement as proposed, or in an amended form (specifying the nature of the amendments), would be consistent with the general plan, any applicable specific plan, and the provisions of this chapter.

   B.   The director of community development shall, as part of his review of the application, circulate copies of the proposed development agreement to those city departments having jurisdiction over the development project for review and comment. The city attorney shall also review the proposed development agreement for legal sufficiency. The staff report and recommendation of the director of community development shall include any appropriate recommendations received from other city departments and the proposed form of ordinance authorizing the city to enter into the development agreement. (Ord. 2073 § 1, 1989)

   A.   A development agreement shall specify its duration, the permitted uses of the property, the density or intensity of use, the maximum height and size of proposed buildings, and provisions for reservation or dedication of land for public purposes. A development agreement may also include conditions and requirements for subsequent discretionary actions, provided that such conditions and requirements for subsequent discretionary actions shall not prevent development of the land for the uses and to the density or intensity of development set forth in the development agreement.

   B.   A development agreement shall include all conditions imposed by the city with respect to the development project including those conditions required as a result of any environmental impact report prepared under the California environmental quality act and the city's environmental review process to eliminate or mitigate environmental impacts caused by or aggravated as a result of the development project.

   C.   All development agreements shall contain an indemnity and insurance clause, in form and substance acceptable to the city attorney, requiring the applicant to defend and indemnify the city against any claims arising out of the development agreement process.

   D.   All development agreements, or any part of a development agreement, may be subject to subsequent condemnation proceedings by the city. (Ord. 2073 § 1, 1989)

All development agreements shall be considered at a public hearing before the planning commission under the procedures described in sections 18.220.090 and 18.220.100 of this chapter. (Ord. 2073 § 1, 1989)

   A.   The planning commission may approve use of a development agreement as a method of implementing or providing standards and criteria for any approval of the planning commission or permits or approvals issued or made by any city department. (Ord. 2073 § 1, 1989)

   A.   After the hearing before the planning commission, the planning commission shall make its recommendation in writing to the city council. The recommendation shall include the planning commission's findings as to whether the proposed development agreement:

      1.   Is consistent with the objectives, policies, general land uses and programs specified in the city's general plan and any applicable specific plan;

      2.   Is compatible with the uses authorized in, and the regulations prescribed for, the zoning district in which the real property is located;

      3.   Is in conformity with and will promote public convenience, general welfare and good land use practice;

      4.   Will not be detrimental to the public health, safety and general welfare;

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

      6.   Will promote and encourage the development of the proposed project by providing a greater degree of requisite certainty. (Ord. 2073 § 1, 1989)

A development agreement is a legislative act and shall be enacted by ordinance only after a public hearing before the city council held pursuant to the procedures described in sections 18.220.120 and 18.220.130 of this chapter. The ordinance shall refer to and incorporate by reference the text of the development agreement. (Ord. 2073 § 1, 1989)

At the hearing, the city council shall consider the planning commission's recommendation together with any additional public testimony, and may approve, disapprove or modify any recommendation of the planning commission. If public testimony is presented on an issue which was not considered by the planning commission, then the city council may refer the issue back to the planning commission for further hearings and recommendations. The city council may also act on any such issue without reference back to the planning commission. (Ord. 2073 § 1, 1989)

Before the city council may approve a development agreement, it must find that its provisions are consistent with the city's general plan and any applicable specific plans. If the city council approves the development agreement in the form recommended by the planning commission, then the city council shall be deemed to have also adopted the findings of the planning commission. If a development agreement is modified or disapproved in whole or in part, the city council shall set forth the reasons therefor and its findings with respect thereto in accordance with the criteria specified in this chapter. (Ord. 2073 § 1, 1989)

The director of community development shall give all notices of the city's intention to consider adoption of a development agreement and of any other public hearing on a development agreement required by law or this chapter. (Ord. 2073 § 1, 1989)

   A.   The form of notice to consider adoption of a development agreement before the planning commission or city council shall contain:

      1.   The time and place of the hearing;

      2.   A general explanation of the matter to be considered including a general description of the area affected;

      3.   The location or locations where a copy of the proposed development agreement may be reviewed;

      4.   Other information required by specific provisions of this chapter or which the director of community development considers necessary or desirable.

   B.   The time and manner of giving notice is by:

      1.   Publication at least once and at least ten (10) days prior to the hearing in a newspaper of general circulation, circulated in the city.

      2.   Mailing of the notice at least ten (10) days prior to the hearing to the applicant, to the owner of the property subject to the development agreement, to each local agency expected to provide water, sewage, streets, roads, schools, or other essential facilities or services to the project whose ability to provide those facilities and services may be significantly affected, to any person who has filed a written request for notice with either the city clerk, and to all persons shown on the last equalized assessment roll as owning real property within three hundred feet (300') of the property which is the subject of the proposed development agreement; provided, the director of community development may direct that notice be given over a wider area to adequately inform interested persons. If the number of owners to whom notice is to be mailed is greater than one thousand (1,000), the director of community development may as an alternative provide notice in the manner set forth in section 65901 of the Government Code.

   C.   The planning commission or city council, as the case may be, may direct that notice of the public hearing to be held before it shall be given in a manner that exceeds the notice requirements prescribed by state law, but failure to comply with such procedure shall not invalidate a development agreement.

   D.   The notice requirements referred to in this chapter are declaratory of existing law (Government Code sections 65867, 65090 and 65091). If and when state law prescribes any different notice requirement, notice shall be given in that manner. (Ord. 2073 § 1, 1989)

The failure of any person entitled to receive any notice required by law or this chapter shall not affect the authority of the city to enter into, nor invalidate, any development agreement. (Ord. 2073 § 1, 1989)

Formal rules of evidence or procedure which must be followed in a court of law shall not apply to the consideration of a proposed development agreement. No action, inaction or recommendation regarding a development agreement shall be held void or invalid on the ground of the improper admission or rejection of evidence or by reason of any error or informality, as to any matter procedure whatsoever unless, after an examination of the entire case, including the evidence, a court of law finds that 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 no presumption that error is prejudicial or that injury resulted if error is shown. (Ord. 2073 § 1, 1989)

   A.   Annual Review: The city shall review development agreements at least once every twelve (12) months from the date of their approval. Pursuant to Government Code section 65865.1, the applicant for a development agreement shall have the duty to demonstrate its good faith compliance with the terms of the development agreement at the time of such periodic review. The city's cost for such periodic review shall be paid by the applicant to the city prior to the time of such review.

   B.   Applicant's Submission: Not less than thirty (30), nor more than sixty (60), days prior to the anniversary date of a development agreement, and each anniversary date thereafter, the applicant shall submit to the community development department a letter setting forth the applicant's good faith compliance with the terms and conditions of the development agreement. Such letter shall be accompanied by documents and other information as may be necessary and available to enable the city to undertake its annual review of applicant's good faith compliance under the terms of the development agreement, and shall also state that such letter is submitted to the city pursuant to the requirements of Government Code section 65865.1 and this chapter. Not less than thirty (30), nor more than sixty (60), days prior to the anniversary date of a development agreement, the city's community development department shall provide notice to the city council, at a regularly scheduled meeting of the city council, that a development agreement will be subject to annual review in accordance with this chapter.

   C.   Finding Of Compliance: The community development department shall review the applicant's submission to ascertain whether the applicant has complied in good faith with the terms of the development agreement. Upon request of the community development department, the applicant shall furnish such additional documents or information as may be reasonably required and available to the applicant to enable the community development department to make and complete its review hereunder. If the community development department finds good faith compliance by the applicant with the terms of the development agreement, it shall issue a certificate of compliance, certifying the applicant's good faith compliance with the terms of the agreement through the period of the applicable annual review. Such certificate of compliance shall be in recordable form and shall contain such information as may be necessary in order to impart constructive record notice of the finding of good faith compliance hereunder. The applicant shall have the right to record the certificate of compliance, at the applicant's sole cost, in the official records of the county of San Bernardino. At least ten (10) days prior to making its determination, the community development department shall provide to the applicant copies of all staff reports and other information concerning the applicant's compliance with the terms of the development agreement and the determination made by the community development department.

   D.   Finding Of Noncompliance: If the community development department finds that the applicant has not complied in good faith with the terms of the development agreement, it shall specify to the applicant in writing the respects in which the applicant has failed to comply. The community development department shall also specify a reasonable time for the applicant to comply with such terms for compliance, which shall not be less than thirty (30) days, and shall be reasonably related to the time necessary to adequately bring the applicant's performance into good faith compliance with the development agreement. If the areas of noncompliance specified by the community development department are not perfected within such reasonable time limits prescribed by the department, then the development agreement shall be subject to modification or cancellation pursuant to this chapter and the provisions of Government Code section 65865.1.

   E.   Referral To City Council: The community development department may refer any review to be conducted hereunder to the city council. Such referral shall be made by the community development department director, together with a staff report on the department's preliminary findings. Upon such referral, the city council shall conduct a noticed public hearing on the applicant's compliance with the terms of the development agreement in accordance with the provisions of this chapter and Government Code section 65865.1. If, after considering all the evidence at such public hearing, the city council finds and determines on the basis of substantial evidence that the applicant has not complied in good faith to the terms and conditions of the development agreement, then the city council shall specify to the applicant the respects in which the applicant has failed to comply and shall also specify a reasonable time for the applicant to comply with such terms which shall not be less than thirty (30) days, and shall be reasonably related to the time necessary to adequately bring the applicant's performance into good faith compliance with the terms of the development agreement. If the areas of noncompliance specified by the city council are not perfected within such reasonable time limits, then the city council, by noticed hearing, may terminate, modify or take such other action with regard to the development agreement.

   F.   Miscellaneous Requirements In Connection With Annual Review: The community development department's determination shall be made within thirty (30) days after the submission by the applicant of the required material hereunder, and, if the community development department refers the matter to the city council, then the determination by the city council shall be made within fifteen (15) days after such referral. The applicant shall be permitted an opportunity to be heard orally, or in writing, before the community development department regarding such performance and before the community development department makes its determination or referral. The issuance of the certificate of compliance by the community development department (or the city council on referral) shall conclude the review for the applicable period, and such determination shall be final and conclusive up to and including the date of the annual review hereunder. All costs incurred by city for the annual review conducted under this chapter shall be borne by the applicant, including, but not limited to, the city's retention of professionals. (Ord. 2385 § 2, 1998: Ord. 2385 § 2, 1998)

Any development agreement may be cancelled or modified by mutual consent of the parties, but only in the manner provided for by California Government Code section 65868. Any proposal to cancel or modify a development agreement shall be heard and determined in accordance with the same procedures specified by this chapter for approval of a development agreement. (Ord. 2385 § 3, 1998: Ord. 2073 § 1, 1989)

   A.   If, at any time during the term of a development agreement the director of community development determines that the applicant has not complied in good faith with the terms and conditions of the development agreement, the director of community development shall, pursuant to the notice provisions of this chapter, request that the planning commission conduct a public hearing at which the applicant must demonstrate good faith compliance with the terms of the development agreement. The burden of proof by substantial evidence of compliance by the applicant is upon the applicant. If such compliance cannot be shown, the planning commission shall recommend to the city council that the city council either commence proceedings to cancel the development agreement or recommend new terms and conditions intended to remedy the noncompliance.

   B.   The city council shall conduct a noticed hearing on the recommendations of the planning commission at which the applicant and any other interested person shall be entitled to submit such evidence and testimony as may be germane to the issue of the applicants good faith compliance with the terms of the development agreement. If the city council finds, based on substantial evidence, noncompliance with the terms and conditions of the development agreement, it may either cancel the development agreement upon giving sixty (60) days' notice to the applicant, or in its discretion, may allow the development agreement to be continued by imposition of new terms and conditions intended to remedy such noncompliance. The city council may impose such conditions to the action it takes as it considers necessary to protect the interests of the city. The decision of the city council shall be final.

   C.   Any cancellation or imposition of new terms and conditions pursuant to this section shall be noticed in accordance with the procedures specified in section 18.220.150 of this chapter. (Ord. 2385 § 3, 1998: Ord. 2073 § 1, 1989)

In the event a development agreement is cancelled, unless otherwise agreed, all rights of the applicant, or his successor in interest under the development agreement, shall terminate. Any and all benefits, including money or land, received by the city shall be retained by the city. Notwithstanding the above provision, the termination of a development agreement shall not prevent an applicant from completing a building or other improvements authorized pursuant to a valid building permit previously approved by the city or under construction at the time of termination, but the city may take any action permitted by law to prevent, stop, or correct any violation of law occurring during and after construction, and the applicant or any tenant shall not occupy any portion of the project or any building not authorized by a previously issued building permit. As used herein, "construction" shall mean work performed in good faith in reliance upon a valid building permit, and "completing" shall mean completion for beneficial occupancy for an applicant's use, or if a portion of the project is intended for use by a lessee or tenant, then for such portion "completing" shall mean completion except for interior improvements such as partitions, duct and electrical run outs, floor covering, wall coverings, lighting, furniture, trade fixtures, finished ceilings and other improvements typically constructed by or for tenants of similar buildings. All such uses shall, to the extent applicable, be deemed nonconforming uses and shall be subject to the nonconforming use provisions of this code. (Ord. 2385 § 3, 1998: Ord. 2073 § 1, 1989)

All development agreements shall be subject to the regulation and requirements of the laws of the state of California, the constitution of the United States and any codes, statutes and any court decisions, state or federal. In the event that any law, code, statute or decision made or enacted after a development agreement has been entered into prevents or precludes compliance with one or more provisions of the development agreement, then such provisions of the development agreement shall be modified or suspended in the manner and pursuant to the procedures specified in the development agreement, as may be necessary to comply with that law, code, statute or decision. (Ord. 2385 § 3, 1998: Ord. 2073 § 1, 1989)

Development agreements shall not take the place of zoning ordinances, the general plan, conditional use permits, subdivision approvals, building permits or any other city planning functions. To the extent practicable, public hearings on a proposed development agreement may be held concurrently with the public hearings on all related land use approvals and all such approvals shall be made concurrently with the approval of the development agreement. (Ord. 2385 § 3, 1998: Ord. 2073 § 1, 1989)

When approved, a development agreement and any development control maps and all notations, references and regulations which are a part of the development agreement shall be considered part of this code. Development control maps include, but are not limited to, regulations intended to carry out any plan respecting location or type of activities; height, bulk, siding or design of structures; location or design of open areas; and landscaping and other comparable regulations. In the case of any conflict with any other provisions of this code, such development agreement provisions shall take precedence. Unless otherwise provided by the development agreement, the city's rules, regulations and official policies governing permitted uses of the land, density and design, improvement and construction standards and specifications applicable to development of the property subject to a development agreement shall be those city rules, regulations and official policies in force at the time of the approval of the development agreement by the city council. (Ord. 2385 § 3, 1998: Ord. 2073 § 1, 1989)

This chapter and any subsequent development agreement shall be read together. With respect to any development agreement enacted under this chapter, any provision of a development agreement which is in conflict with this chapter shall be void. (Ord. 2385 § 3, 1998: Ord. 2073 § 1, 1989)

   A.   Within ten (10) days after the ordinance approving a development agreement takes effect, the mayor shall execute the development agreement, and the city clerk shall have the development agreement recorded in the official records of the county of San Bernardino.

   B.   If the parties to a development agreement, or their successors in interest, amend or cancel the development agreement as provided for in Government Code section 65868 and this chapter, or if the city council terminates or modifies a development agreement as provided for in Government Code section 65865.1 and this chapter for failure of the applicant to comply in good faith with the terms or conditions of the development agreement, the city clerk shall, after such action takes effect, have notice of such action recorded in the official records of the county of San Bernardino. (Ord. 2385 § 3, 1998: Ord. 2073 § 1, 1989)

Should any provision of this chapter be held by a court of competent jurisdiction to be either invalid, void, or unenforceable, the remaining provisions of this chapter shall remain in full force and effect, unimpaired by the holding, except as may otherwise be provided for in the development agreement. (Ord. 2385 § 3, 1998: Ord. 2073 § 1, 1989)