CHAPTER 3
DEVELOPMENT AGREEMENTS
9.3.002 General.
This chapter is adopted under the authority of Government Code Sections 65864 through 65869.5 for the purpose of adopting development agreement regulations.
9.3.004 Definitions.
For the purposes of these regulations, certain words and phrases shall be interpreted as set forth in this chapter unless it is apparent from the context that a different meaning is intended.
a. "Development Agreement." A development agreement entered into between the City and a developer (as defined in Section 4) pursuant to Government Code Section 65864 et seq. and this chapter.
b. "Person." An individual, group, partnership, firm association, corporation, trust, governmental agency, or any other form of business or legal entity.
c. "Project." The development project that is the subject of a development agreement.
9.3.006 Forms – Information and Fees.
a. The City Manager shall prescribe the form for each application, notice and documents provided for or required hereunder for the preparation and implementation of development agreements.
b. The City Manager may require an applicant to submit such information and supporting data as he/she reasonably considers necessary to process the application.
c. The development agreement shall be in the form prescribed by the City Manager.
d. The City Council shall establish by resolution the schedule of fees and charges imposed for the filing and processing of applications and documents provided for or required hereunder.
9.3.008 Qualification as an Applicant.
Only a qualified applicant may file an application to enter into a development agreement. A qualified applicant is a person, including any authorized agent, who has a legal or equitable interest in the real property that is the subject of the development agreement, provided that in all instances the owner(s) of fee title of the real property shall join in the application or the development agreement shall be conditional upon the close of escrow vesting fee title to the property in the developer. The City Manager may require an applicant to submit proof of his/her interest in the real property and of the authority of any agent to act for the applicant. The qualified applicant and any successors-in-interest shall be referred to as "developer".
9.3.010 Review of Application.
The City Manager shall endorse on the application the date it is received. He or she shall review the application and may reject it if it is incomplete or inaccurate for purposes of processing. A complete application must identify the applicant’s reasons for requesting the development, including an explanation of the aspects of the proposed project that justify such an agreement. If he/she finds that the application is complete, he/she shall accept it for filing. He/she shall prepare a staff report and recommendation and shall state whether or not the agreement proposed or in an amended form would be consistent with the General Plan and any applicable Specific Plans. He/she shall also indicate whether or not the staff recommends approval of the agreement as proposed or in an amended form.
9.3.012 Notice of Public Hearing.
a. Public Hearing. A public hearing shall be held on the proposed development agreement by both the Planning Commission and the City Council.
b. Notice. The City Manager shall give notice of intention to consider adoption of development agreements in the manner provided in this section and of any other concurrent public hearing required by law.
c. Form of Notice. The form of the notice of intention to consider adoption of a development agreement shall contain:
1) The date, time and place of the hearing.
2) A general explanation of the matter to be considered, including a general description of the property, in text or by diagram that is the subject of the hearing.
3) The identity of the hearing body.
4) Other information required by specific provision of this chapter or which the City Manager considers necessary or desirable.
d. Time and Manner of Notice. The time and manner of giving notice shall be by:
e. Posting or Publication. Publication at least once in a newspaper of general circulation, published and circulated in the City at least ten (10) days prior to the hearing, or if there is not such a newspaper, posting at least ten (10) days prior to the hearing in at least three (3) public places in the City.
f. Mailing. Mailing of the notice at least ten (10) days prior to the hearing to:
1) All persons shown on the last equalized assessment roll as owning real property within 300 feet of the property which is the subject of the proposed development agreement;
2) All persons shown on the last equalized assessment roll as owning the subject real property and to the developer for the proposed development agreement; and
3) Each local agency expected to provide water, fire, sewage, streets, roads, schools or other essential services or facilities to the subject property, whose ability to provide those facilities and services may be significantly affected.
g. Additional Notice. The Planning Commission or City Council, as the case may be, may direct that notice of the public hearing shall be given in a manner that exceeds the notice requirements required by this section.
h. Failure to Receive Notice. The failure of any person entitled to notice to actually receive any notice required by law or this chapter does not affect the authority of the City to enter into a development agreement.
9.3.014 Rules Governing Conduct of Hearing.
The public hearings shall be conducted as nearly as may be in accordance with such procedural standards as may be adopted for the conduct of hearings on amendments to the Zoning Ordinance. Each person interested in the matter shall be given an opportunity to be heard. The developer has the burden of proof at the public hearing on the proposed development agreement.
9.3.016 Determination By Planning Commission.
After the hearing by the Planning Commission, the Planning Commission shall make its recommendation in writing to the City Council. The recommendation shall include the Planning Commission’s determination whether the development agreement proposed:
a. Is consistent with the objective, policies, general land uses and programs specified in the General Plan and any applicable Specific Plans.
b. Is compatible with the uses authorized in, and the regulations prescribed for, the land use district in which the real property is located.
c. Is in conformity with public convenience, general welfare and good land use practice.
d. Will not be detrimental to the health, safety and general welfare.
e. Will not adversely affect the orderly development of property.
9.3.018 Decision By City Council.
a. After a public hearing, the City Council may accept, modify, or disapprove the recommendation of the Planning Commission. It may, but need not, refer back to the Planning Commission matters not previously considered by the Planning Commission during its hearing for report and recommendation.
b. The City Council may not approve the development agreement unless it makes all the determinations set forth in Section 9.3.016. The City Council may accept or reject the recommendation of the Planning Commission. Notwithstanding a Planning Commission recommendation to the contrary, the City Council, in its sole discretion may deny the development agreement on the grounds that, in its opinion, the proposed agreement is not in the best interest of the public.
c. If the property is located outside the City limits, the application for a development agreement shall be acted upon by the City only if the property is within the
City’s Sphere of Influence. If so, the agreement shall be conditional upon the property being annexed to the City and shall specify the time period for completion of annexation. If annexation does not occur within the specified time period, the agreement shall be null and void.
d. The City Council shall not approve the agreement unless it makes one of the findings in Section 6.12.154.
(Sec. 2, Ordinance No. 14-16, adopted July 12, 2016)
9.3.020 Approval By Ordinance.
If the City Council approves the development agreement, it shall do so by the adoption of an ordinance. No sooner than thirty (30) days after the ordinance approving the development agreement is adopted, the City may enter into the agreement. A development agreement that includes a subdivision, as defined in Section 66473.7 of the California Government Code, shall not be approved unless the agreement provides that any tentative map prepared for the subdivision will comply with the provisions of Section 66473.7.
9.3.022 Contents of Agreement.
a. A development agreement shall specify its duration, the permitted uses of the property hereunder, the density and/or intensity of use, the maximum height and size of proposed buildings, provisions for reservations or dedication of land for public purposes, and requirements for construction and maintenance of on-site and off-site improvements or payment of fees in lieu of such dedication or improvements. It shall also identify and provide adequate consideration to the City to create a legally binding agreement. The development agreement may incorporate by reference existing project approvals.
b. A development agreement may also include conditions, terms, restrictions and requirements for subsequent discretionary actions (provided such conditions, terms, restrictions and requirements do not prevent the development of the land subject to the development agreement for the uses and to the density or intensity of development set forth in the agreement) but does not affect the developer’s responsibility to obtain all land use approvals required by the City’s ordinances.
c. A development agreement may include conditions and restrictions imposed by the City with respect to the project, including those conditions and restrictions proposed in an Environmental Impact Report or Mitigated Negative Declaration applicable to the project prepared and certified or adopted under the California Environmental Quality Act, in order to eliminate or mitigate adverse environmental impacts of the project.
d. A development agreement may provide that the project be constructed in specified phases, that construction shall commence within a specified time, and that the project or any phase thereof be completed within a specified time.
e. A development agreement may include a requirement for the developer’s payment of ongoing operational costs of public services and for the developer’s agreement to be included within an assessment district for financing ongoing operational costs of public services of the project.
f. If the development agreement requires developer’s financing of necessary public facilities, it may include terms relating to subsequent reimbursements over time for such financing.
g. All development agreements shall contain an indemnity and insurance clause requiring the developers to indemnify and hold the City harmless against claims arising out of the development process, including all legal fees and costs.
h. A development agreement is a contract that is negotiated and voluntarily entered into by City and developer and may contain any additional or modified conditions, terms or provisions agreed upon by the parties, including sanctions for failure to meet requirements.
i. A development agreement may include conditions relating to financial guarantees for performance of obligations hereunder.
j. A development agreement shall include a provision that the City Council may impose reasonable conditions of approval on the transfer, sale, or assignment of the developer’s rights to all or a portion of the Project to a third party as the City Council deems are in the best interests of the City.
9.3.024 Initiation of Amendment or Cancellation.
a. Unless otherwise provided in a development agreement, either party may propose an amendment to or cancellation in whole or in part of a development agreement previously entered into.
b. The procedure for proposing and adopting an amendment to or for the cancellation in whole or in part of a development agreement shall be the same as the procedure for entering into an agreement as provided for in this chapter.
c. Where the City initiates the proposed amendment to or cancellation in whole or in part of the development agreement, it shall first give notice to the developer of the City’s intention to initiate such proceedings in the manner set forth in Section 9.3.012.
d. In the event that a development agreement should be canceled or terminated, all rights of the developer, and all obligations of the City, under the development agreement shall terminate. Except as otherwise provided in the development agreement, the City may, in its sole discretion, determine to retain any and all benefits, including reservation or dedications of land, improvements constructed and payments of fees, received by the City.
e. Notwithstanding the above subsection, any termination of the development agreement shall not prevent the developer from constructing or completing a building or other improvements authorized pursuant to other validly issued permits, approvals or entitlements, but the City may take any action permitted by law to prevent, stop, or correct any violation of law occurring after cancellation of the development agreement.
9.3.026 Recordation of Development Agreement, Amendment or Cancellation.
a. Within ten (10) days after the City enters into the development agreement, the City Clerk shall submit the agreement for recording with the County Recorder.
b. If the parties to the agreement or their successors-in-interest amend or cancel the agreement or if the City terminates or modifies the agreement for failure of the developer to comply in good faith with the terms or conditions of the agreement, the City Clerk shall submit the notice of such action for recording with the County Recorder.
9.3.028 Annual Review.
a. The City Council shall review the development agreement at least every twelve (12) months following the date of the agreement. The City Manager shall begin the review proceeding by giving thirty (30) days written notice to the developer that the City intends to undertake a periodic review of the development agreement.
b. The developer must demonstrate good faith compliance with the terms of the agreement. The burden of proof on this issue is upon the developer.
c. The City Council may determine that the developer has, for the period under review, complied in good faith with the terms and conditions of the agreement. Such determination may be made at a public meeting. If the City Council considers that the developer has demonstrated good faith compliance with the terms of the agreement, the Council shall make such determination by minute action or resolution. If the Council determines that the developer has not so complied, the Council shall make findings on the basis of substantial evidence.
d. If the City Council finds and determines on the basis of substantial evidence that the developer has not complied in good faith with the terms and conditions of the agreement during the period under review, the Council may modify or terminate the agreement.
9.3.030 Effect of Development Agreement.
a. Unless otherwise provided by the development agreement, the City’s rules, regulations and official policies governing permitted uses of the property, density and design, and improvement and construction 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.
b. 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.
c. 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 bases of such existing or new rules, regulations, and policies.
9.3.032 Severability.
Should any provision of this chapter or a subsequent development agreement be held by a court of competent jurisdiction to be either invalid, void or unenforceable, the remaining provisions of this chapter and development agreement shall remain in full force and effect unimpaired by the holding, except as may otherwise be provided in a development agreement.
9.3.034 Judicial Review – Time Limitation.
a. Any judicial review of an ordinance approving a development agreement shall be by writ of mandate pursuant to Code of Civil Procedure Section 1085; and judicial review of any City action taken by the City pursuant to this chapter, other than the initial approval of a development agreement, shall be writ of mandate pursuant to Code of Civil Procedure Section 1094.5.
b. 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 (90) days after the date of the decision.