Chapter 17.10 DEVELOPMENT AGREEMENTS

(a) The California Legislature in Section 65864 of the Government Code has found that the lack of certainty in the approval of development projects can result in a waste of resources, escalate the cost of housing and other development to the consumer, and discourage investment in and commitment to comprehensive planning which would make maximum efficient utilization of resources at the least economic cost to the public.

(b) The City Council finds and determines that under appropriate circumstances, development agreements will strengthen the public planning process, encourage private participation in comprehensive planning by providing a greater degree of certainty in the process, and through corresponding assurances by the developers, reduce the economic costs to government of development, allow for the orderly planning of public improvements and services and the allocation of costs therefor in order to achieve the maximum utilization of public and private resources in the development process, and assure, to the extent feasible, that appropriate measures to enhance and protect the environment of the City are achieved.

The City Council further finds and determines that the public safety, health, convenience, comfort, prosperity, and general welfare will be furthered by the adoption of this chapter in order to provide a mechanism for the enactment of development agreements with flexibility of adding supplementary regulations to development standards for particular projects and to provide a mechanism for allowing expenditures to respond selectively to development proposals, to encourage the achievement of growth management goals, including assurances of adequate public facilities at the time of development, proper timing and sequencing of development, effective capital improvement programming and appropriate development incentives to accomplish the foregoing purposes and aims and the realization of the benefits to be derived therefrom. (Ord. 1589 § 1, 7-5-88. Formerly § 8B-1).

17.10.020 Purpose of development agreement.

Development agreements enacted pursuant to this chapter are to ensure to the qualified applicant for a development project that upon approval of the project, the qualified applicant may proceed with the project in accordance with certain existing policies, rules and regulations, and subject to specified conditions of approval, in order to implement the intent of the City Council in enacting this chapter. Development agreements will also ensure that all conditions of approval, including the construction of off-site improvements made necessary by such land developments, will proceed in an orderly and economical fashion to the benefit of the City. (Ord. 1589 § 1, 7-5-88. Formerly § 8B-2).

Article II. Authority for Adoption

17.10.030 Authority for adoption.

This chapter pertaining to development agreements is adopted under the authority of Government Code Sections 65864 through 65869.5, as amended, under the City charter, and the self-rule powers granted to charter cities by the California Constitution. (Ord. 1589 § 1, 7-5-88. Formerly § 8B-3).

Article III. Definitions

17.10.040 Definitions.

The following terms when used in this chapter shall have the following respective meanings:

(a) “Developer” means a person who has a legal or equitable interest in the real property which is the subject of a development agreement.

(b) “Development agreement” means a development agreement enacted by legislation between the City and a qualified applicant pursuant to Government Code Sections 65864 through 65869.5.

(d) “Qualified applicant” is a person who has a legal or equitable interest in the real property which is the subject of a proposed development agreement, determined pursuant to SCCC 17.10.070. (Ord. 1589 § 1, 7-5-88. Formerly § 8B-4).

Article IV. Applications and Forms

17.10.050 Forms and information.

(a) The Planning Director shall prescribe the form of each application, 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 Planning Director may require an applicant for a development agreement to submit such information and supporting data as the Planning Director, City Council, and other agencies to which the applicant is referred under this chapter consider necessary to properly process the application. (Ord. 1589 § 1, 7-5-88. Formerly § 8B-5).

17.10.060 Fees.

The City Council shall, from time to time by separate resolution or resolutions, fix schedules of fees and charges to be imposed for the filing, processing, and recording of each application and document provided for or required under this chapter, which fees and charges as then currently prescribed shall accompany each application made under this chapter.

These fees and charges shall be in addition to, and not in substitution of, any other required fees and charges relative to development of the subject property and shall be for the purpose of defraying the costs associated with City review and action on an application. (Ord. 1589 § 1, 7-5-88. Formerly § 8B-6).

17.10.070 Qualification as an applicant.

(a) Except as provided in SCCC 17.10.080(a), only a qualified applicant may file an application to enter into a development agreement. A qualified applicant includes an authorized agent of a qualified applicant. The Planning Director may require an applicant to submit proof of his/her interest in the real property and of the authority of the agent to act for the qualified applicant. Such proof may include a title report, policy or guarantees issued by a title company licensed to do business in the State of California evidencing the requisite interest of the applicant in the real property. If the application is made by the holder of an equitable interest, the application shall be accompanied by a verified title report and by a notarized statement of consent to proceed with the proposed development agreement executed by the holder of the legal interest. Before processing the application, the Planning Director shall obtain the opinion of the City Attorney as to the sufficiency of the qualified applicant’s interest in the real property to enter into the development agreement as a qualified applicant hereunder.

(b) Other Parties. In addition to the City and qualified applicant, any Federal, State or local governmental agency or body may be included as a party to any development agreement. Any such additional party shall be made a party to the development agreement pursuant to the provisions of the Joint Exercise of Powers Act (Government Code Section 6500 et seq.) providing for joint powers agreements, or provisions of other applicable Federal, State or local law, in order to create a legally binding agreement between such parties. (Ord. 1589 § 1, 7-5-88. Formerly § 8B-7).

17.10.080 Procedure for development agreement.

(a) Initiation by Application. An application for a development agreement may be made to the Planning Director in accordance with the procedures set forth herein.

(1) Application may be made by any qualified applicant.

(2) Application may be made by the Planning Commission or the City Council. If an application is made for a development agreement by the Planning Commission or City Council, the City shall obtain and attach a notarized statement of consent to proceed with the proposed agreement executed by the owner of the subject property.

(b) Contents of the Application. The application shall be on a form prescribed by the City Planning Director and shall be accompanied by a proposed ordinance and development agreement. (Ord. 1589 § 1, 7-5-88. Formerly § 8B-8).

17.10.090 Proposed form of development agreement.

Each application shall be accompanied by the form of development agreement proposed by the qualified applicant or as authorized in SCCC 17.10.080. This requirement may be met by designating the City’s then standard form of development agreement and including specified proposals for changes in or additions to the language of the standard form or by submitting a form of development agreement prepared by the qualified applicant and proposed to be used under this chapter. Any such development agreement prepared by a qualified applicant shall contain the provisions required under SCCC 17.10.110, 17.10.340, and 17.10.360 and shall also include the following:

(a) The parties to the development agreement;

(b) The nature of the qualified applicant’s legal or equitable interest in the real property constituting such person as a qualified applicant hereunder;

(c) 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 sufficient to determine heights and areas, 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 pursuant to which the same may be reviewed;

(d) An identification of the approvals and permits for the development project enacted to the date of or contemplated by the development agreement;

(e) The proposed duration of the development agreement;

(f) The proposed phasing of the construction, and any public improvements to be required;

(g) A program and criteria for regular periodic review under this chapter;

(h) Proposed provisions providing security for the performance of the qualified applicant under the development agreement;

(i) Any other relevant provisions which may be deemed necessary by the Planning Director pursuant to this chapter. (Ord. 1589 § 1, 7-5-88. Formerly § 8B-9).

17.10.100 Review of application.

(a) Upon submission of an application for a development agreement, the Planning Director shall stamp on the application the date it is received. He shall within thirty (30) days after receipt of application review the application and accompanying documentation for legal sufficiency, compliance with technical requirements and may reject it if it is incomplete or inaccurate for processing. If he finds that the application is complete for processing he shall accept it for filing. The Planning Director shall cause a written notice of acceptance or rejection to be mailed or delivered to qualified applicant. If rejected, the notice must also give the reason for the rejection. If such notice is neither mailed nor delivered within thirty (30) days following receipt of application for the development agreement, the application shall be deemed filed on the thirtieth day following its receipt by the Planning Director.

(b) After the application is accepted for filing or deemed filed, the Planning Director shall then review the application and determine any additional requirements necessary to complete the form of development agreement. After receiving the required information, the Planning Director shall prepare a staff report and recommendation and shall state whether or not the development agreement as proposed, or in an amended form (specifying the nature of the amendments), would implement, be consistent with and in compliance with, the adopted general plan, applicable specific plans, relevant City policies and guidelines for development, and the provisions of this chapter. The Planning Director shall, as part of the review of the application, circulate copies of the proposed development agreement to those City departments and other agencies having jurisdiction over the development project to be undertaken pursuant to the development agreement for review and comment by such City departments and agencies. The City Attorney shall also review the proposed development agreement for legal form and sufficiency and shall approve and/or prepare a proposed ordinance authorizing the City to enter into the development agreement for action by the City Council upon hearing thereof as specified by this chapter. The staff report and recommendation of the Planning Director shall include any appropriate recommendations received, and the proposed form of ordinance prepared and/or approved by the City Attorney.

(c) Upon the completion of such review, the Planning Director shall set the matter for a public hearing before the Planning Commission. (Ord. 1589 § 1, 7-5-88. Formerly § 8B-10).

17.10.110 Contents of development agreement.

(a) A development agreement shall specify its duration, the permitted uses of the property thereunder, the density and/or intensity of use, the maximum height and size of proposed buildings and improvements, and provisions for reservation or dedication of land for public purposes. A development agreement may include conditions, terms, restrictions, and requirements for subsequent discretionary actions; provided, that such conditions, terms, restrictions, and requirements for subsequent discretionary actions shall not prevent development of the property for the uses and to the density or intensity, height, and size of development set forth in the development agreement and phasing if and to the extent the development agreement so provides. Without limitation as to types of conditions, terms, and restrictions, the development agreement may provide for the phasing of construction of development projects and any improvements with respect thereto, and the development agreement may also provide that the construction shall be commenced and completed within specified times and that the development project, public improvements, or any phase thereof be commenced and completed within specified times.

(b) A development agreement shall include all conditions imposed by the City, and may also include conditions imposed by other agencies, and all obligations agreed to by the City and other parties to the development agreement with respect to the development project thereunder including those conditions authorized by law and/or required pursuant to the California Environmental Quality Act, or the National Environmental Protection Act, and the City’s regulations with respect thereto in order to eliminate or mitigate environmental and traffic impacts caused by or aggravated as a result of the development project proposed under the development agreement.

(c) A development agreement shall contain an indemnity and insurance clause in form and substance acceptable to the City Attorney, requiring the qualified applicant to protect, defend, indemnify and hold harmless the City against claims arising out of the development process; provided, that such a provision does not violate applicable law or constitute a joint venture, partnership or other participation in the business affairs of qualified applicant by the City.

(d) A development agreement shall include appropriate provisions acceptable to the City Attorney providing security for the performance under the development agreement. (Ord. 1589 § 1, 7-5-88. Formerly § 8B-11).

Article V. Hearing Before
Planning Commission

17.10.120 Public hearing.

On the date set for hearing or on the date or dates to which the hearing is continued, a development agreement shall be considered at a public hearing before the Planning Commission pursuant to the procedures described in Article VII of this chapter. (Ord. 1589 § 1, 7-5-88. Formerly § 8B-12).

17.10.130 Review – Standard.

The Planning Commission may recommend adoption 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 other City agency, including but not limited to:

(a) Rezoning and/or conditions imposed upon approval of rezoning;

(b) Issuance of a conditional use permit;

(d) Conditions imposed in connection with the adoption of any general plan amendment or specific plan;

(e) Conditions imposed in any planned unit development district;

(f) Site-specific conditions imposed in any other district;

(g) Approval of and/or conditions imposed upon approval of a subdivision or parcel map or maps;

(h) The formation of any assessment district, benefit district, maintenance district or special benefit district or any other procedure, for the installation of required or necessary on-site or off-site improvements or infrastructure; and/or

(i) Mitigation measures imposed upon a development project pursuant to the California Environmental Quality Act or the National Environmental Protection Act. (Ord. 1589 § 1, 7-5-88. Formerly § 8B-13).

17.10.140 Recommendation by Planning Commission.

The Planning Commission shall make a report and recommendation in writing to the City Council as follows:

(a) That the development agreement be adopted as proposed;

(b) That the development agreement be adopted with modifications, as proposed by the Planning Commission; or

Any action taken by the Planning Commission shall include written findings specifying the facts and information relied upon by the Commission in rendering its decision and recommendation.

The Planning Commission shall make such report of its findings and recommendations to the City Council within thirty-five (35) days after the completion of said hearing. Failure of the Planning Commission to so report within said period shall be deemed to be a recommendation of denial by the Planning Commission of the development agreement. (Ord. 1589 § 1, 7-5-88. Formerly § 8B-14).

Article VI. Hearing Before City Council

17.10.150 Setting hearing date by City Council.

Upon the filing of such report and recommendations on a development agreement by the Planning Commission or upon the expiration of said thirty-five (35) days provided for in SCCC 17.10.140, the City Council shall, at its next regular meeting held at least three days thereafter on which the subject is agendized thereupon set the matter for public hearing before the City Council, and the City Clerk shall give required notice of the time, place and purpose of such hearing in the same manner and in the same terms as provided in Article VII of this chapter. (Ord. 1589 § 1, 7-5-88. Formerly § 8B-15).

17.10.160 Ordinance – Public hearing.

A development agreement is a legislative act and it shall be enacted or amended by ordinance only after a public hearing before the City Council. The ordinance shall be subject to referendum and refer to and incorporate by reference the text of the development agreement. The development agreement shall not be binding or enforceable prior to the effective date of the ordinance approving the development agreement and execution of the development agreement by all parties thereto.

Because a development agreement is also a contract which requires the consent of each party in order to become binding, the Council reserves the right to disapprove entering into any development agreement, regardless of the provisions hereof, and the ordinance shall be advisory only and shall not require the acceptance of any development agreement. (Ord. 1589 § 1, 7-5-88. Formerly § 8B-16).

17.10.170 Conduct of hearing.

The City Council shall consider the proposed development agreement and the Planning Commission’s recommendation together with any additional public testimony at the public hearing on the date set for said hearing or on the date or dates to which such hearing may be continued from time to time by the City Council.

The City Council may refer the issue back to the Planning Commission for further hearings and recommendations whereupon said Planning Commission shall file its report on reconsideration of the referral from the City Council within thirty (30) days thereafter. The City Council may also act on all or any such issue without reference back to the Planning Commission. The decision of the City Council shall be rendered within forty-five (45) days after the hearing before the City Council or within forty-five (45) days after the receipt of the final report from the Planning Commission, whichever is later, unless extended by mutual agreement of the qualified applicant and City Council. Failure of the City Council to act within the forty-five (45) days or extension shall be deemed a rejection of the development agreement. The City Council may:

(a) Approve the development agreement as recommended by the Planning Commission;

(b) Approve the development agreement with or without modifications; or

17.10.180 Consistency with general plan and specific plans.

Before the City Council may approve a development agreement with or without modifications, it must find that its provisions are consistent with the general plan and any applicable specific plans and relevant City policies and guidelines for development. (Ord. 1589 § 1, 7-5-88. Formerly § 8B-18).

Article VII. Notice Provisions and Procedure for Public Hearings Before Planning Commission or City Council

17.10.190 Notice.

The Planning Director shall give notices of all required public hearings held before the Planning Commission under this chapter. The City Clerk shall give notice of all required public hearings held before the City Council under this chapter. (Ord. 1589 § 1, 7-5-88. Formerly § 8B-19).

17.10.200 Form and time of notice.

(a) The notice shall contain:

(1) The date, time, and place of the hearing;

(2) The identity of the hearing body;

(3) A general explanation of the matter to be considered including a general description, in text or by diagram, of the location of the real property, if any, that is the subject of the hearing;

(4) The location or locations where a copy of the proposed development agreement may be viewed or had;

(5) Other information required by specific provisions of this chapter or which the Planning Director considers necessary or desirable.

(b) The time and manner of giving notice is by:

(1) Publication at least ten days prior to the hearing at least once in a newspaper of general circulation within the city or if there is none, posting at least ten days prior to the hearing in at least three public places in the City.

(2) Notice of the hearing shall be mailed or delivered at least ten days prior to the hearing to the owner of the subject real property or the owner’s duly authorized agent, and to the project applicant.

(3) Notice of the hearing shall be mailed or delivered at least ten days prior to the hearing 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.

(4) Mailing of the notice at least ten days prior to the hearing to all persons shown on the last equalized assessment roll as owning real property within three hundred (300) feet of the real property that is the subject of the hearing. If the number of owners to whom notice would be mailed or delivered pursuant to this subsection (b)(4) or subsection (b)(2) is greater than one thousand (1,000), the Planning Director, or City Clerk, as applicable, may, in lieu of mailed or written notice, provide notice by placing a display advertisement of at least one-eighth page in at least one newspaper of general circulation within the city at least ten days prior to the hearing.

(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 any excess notice procedure shall not invalidate a development agreement entered into by the City under this chapter. Pursuant to the excess notice requirements of this subsection (c), it is recommended that notice of each public hearing called under this chapter should be mailed to the chair of the citizens advisory committee at least ten days prior to the hearing.

(d) The notice requirements referred to in subsections (a) and (b) of this section are declaratory of existing law (Government Code Sections 65867, 65090, and 65091). If and when State law prescribes a different notice requirement, notice shall be given in that manner. (Ord. 1589 § 1, 7-5-88. Formerly § 8B-20).

17.10.210 Coordination of development agreement application with other discretionary approvals.

It is the intent of these regulations that the application for a development agreement will be made and considered simultaneously with the review of other necessary applications, including, but not limited to rezoning, planned commercial, residential or industrial development and conditional use permits. If combined with an application for rezoning, planned development or conditional use permit, the application for a development agreement shall be submitted with said application and shall be processed, to the maximum extent possible, jointly to avoid duplication of hearings and repetition of information. A development agreement is not a substitute for, nor an alternative to, any other required permit or approval, and the qualified applicant or developer must comply with all other required procedures for development approval. (Ord. 1589 § 1, 7-5-88. Formerly § 8B-21).

Article VIII. Review – Certificate of Compliance, Termination or Modification

17.10.220 Time for and initiation of review.

(a) Regular Periodic Review. The City shall review the performance of the developer under a development agreement periodically on a regular basis as determined in the development agreement or by this subsection at least once every twelve (12) months for the term of the development agreement. Ninety (90) days prior to the “established date or dates for regular periodic review” which shall be the anniversary of the effective date of the development agreement, or such other substitute date or dates, mutually agreed to by the qualified applicant or developer and City in writing for such regular periodic reviews, the developer shall submit to the Planning Director evidence of the good faith compliance with the development agreement. If the Planning Director determines that such evidence is insufficient for the Planning Director’s regular periodic review, or if the developer fails to submit any evidence, then prior to seventy-five (75) days of the established date or dates for regular periodic review the Planning Director shall deliver or mail written notice to the developer of the developer’s failure to submit any evidence or specifying the additional information reasonably required by the Planning Director in order to review the developer’s good faith compliance with the development agreement. The developer shall have thirty (30) days after mailing or delivery of such written notice by the Planning Director in which to respond to the Planning Director. If the developer fails to provide such information to the Planning Director within the thirty (30) day period, the Planning Director shall not find that the developer has complied in good faith with the terms of the development agreement.

(b) Special Review.

(1) Initiation of Review. Reviews which are other than the regular periodic reviews provided for in subsection (a) of this section are defined as special reviews and may be had either by agreement between the developer and City or by initiation of the City by the affirmative vote of the City Council, but in any event shall not be held more frequently than three times a year.

(2) Notice of Special Review. The Planning Director shall begin the special review proceeding by mailing or delivering written notice to the developer that the City intends to undertake a special review for the good faith compliance of developer with the development agreement. He shall mail or deliver to the developer a thirty (30) day notice of intent to undertake such a special review within which thirty (30) days developer shall provide to the Planning Director evidence of good faith compliance with the terms of the development agreement. If the Planning Director determines that such evidence is insufficient for the Planning Director’s review, or if the developer fails to submit any evidence within the thirty (30) day period, then within forty-five (45) days of giving the notice of intent to undertake a special review, the Planning Director shall deliver or mail written notice to the developer of the developer’s failure to submit any evidence or additional information reasonably required by the Planning Director in order to review the developer’s good faith compliance with the development agreement. As with the regular periodic review, the developer shall have thirty (30) days after mailing or delivering of such written notice by the Planning Director in which to respond to the Planning Director. If the developer fails to provide such information to the Planning Director within the thirty (30) day period, developer shall not be found by the Planning Director to have complied in good faith with the terms of the development agreement. (Ord. 1589 § 1, 7-5-88. Formerly § 8B-22).

17.10.230 Finding of compliance.

With respect to either a regular periodic review or a special review, if the Planning Director finds good faith compliance by the developer with the terms of the development agreement for the period reviewed, the Planning Director, upon request of developer, shall issue a certificate of compliance for such period reviewed, which shall be in recordable form and may be recorded by the developer in the official records of Santa Clara County. The issuance of a certificate of compliance by the Planning Director shall conclude the review for the applicable period for which the finding was made and such determination shall be final in the absence of fraud. (Ord. 1589 § 1, 7-5-88. Formerly § 8B-23).

17.10.240 Failure to find good faith compliance.

If the Planning Director does not find, on the basis of substantial evidence, that the developer has complied in good faith with the terms of the development agreement, he shall so notify the City Council and the developer. The Planning Director shall specify the reasons for the Planning Director’s determination, the information relied upon in making such decision and any findings made with respect thereto. At the next regularly scheduled meeting of the City Council on which the matter is agendized, or to which it is continued, the City Council shall take one of the following actions:

(a) Compliance. Determine on the basis of evidence presented that there has been good faith compliance by the developer with the terms of the development agreement, in which event the Planning Director, upon request of the developer, shall issue a certificate of compliance in accordance with SCCC 17.10.230.

(b) Failure to Find Good Faith Compliance. If the City Council is unable to determine on the basis of the evidence presented that there has been good faith compliance by the developer with the terms of the development agreement, the City Council shall do one or more of the following:

(1) Additional Time. Upon receipt of sufficient justification to City Council, grant the developer additional time in which to establish good faith compliance with the terms of the development agreement at a subsequent duly called Council meeting; or

(2) Hearing. Set a date for a public hearing on the issue of compliance by the developer with the terms of the development agreement and the possible conditioning and/or termination or modification of the development agreement in accordance with California Government Code Section 65865.1, which public hearing shall be conducted in accordance with SCCC 17.10.250. (Ord. 1589 § 1, 7-5-88. Formerly § 8B-24).

17.10.250 Public hearing.

The City Council shall, within ninety (90) days of the City Council’s setting a date for a public hearing in SCCC 17.10.240(b)(2), conduct a public hearing at which the developer shall have the opportunity to demonstrate good faith compliance with the terms of the development agreement on the basis of substantial evidence presented to the City Council. The burden of proof of this issue is upon the developer. (Ord. 1589 § 1, 7-5-88. Formerly § 8B-25).

17.10.260 Findings upon public hearing.

The City Council shall determine upon the basis of substantial evidence whether or not the developer has complied in good faith with the terms and conditions of the development agreement. (Ord. 1589 § 1, 7-5-88. Formerly § 8B-26).

17.10.270 Procedure upon findings.

(a) Compliance. If the City Council finds and determines on the basis of substantial evidence that the developer has complied in good faith with the terms and conditions of the development agreement during the period under review, the review for that period is concluded and such determination is final in absence of fraud.

(b) Noncompliance. 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 development agreement during the period under review, the City Council may allow the development agreement to be continued by imposition of new terms and conditions intended to remedy such noncompliance or to be otherwise modified, by the mutual consent of the developer and the City or the City Council may unilaterally terminate the development agreement or take other action authorized by Government Code Section 65865.1. The City Council may impose such terms and 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. The rights of the parties after termination shall be as set forth in SCCC 17.10.370.

(c) Ordinance. Any termination, modification or imposition of new terms and conditions pursuant to this section shall be by ordinance. The ordinance shall recite the facts, findings, information relied on and/or the lack thereof, and the reasons which, in the opinion of the City Council, make the termination or modifications or imposition of new terms and conditions of the development agreement necessary. The enactment of such an ordinance by the City Council shall be final and conclusive as to its effect on the subject development agreement. Not later than ten days following the adoption of the ordinance, one copy thereof shall be forwarded to the developer. The development agreement shall be terminated, or the amendments to the development agreement shall become effective, on the effective date of the ordinance or as otherwise provided in such ordinance. (Ord. 1589 § 1, 7-5-88. Formerly § 8B-27).

17.10.280 Certificate of compliance.

If the City Council finds good faith compliance by the developer with the terms of the development agreement, the Planning Director upon request of the developer shall issue a certificate of compliance, which shall be in recordable form and may be recorded by the developer in the official records of the County of Santa Clara. (Ord. 1589 § 1, 7-5-88. Formerly § 8B-28).

Article IX. Amendment or Cancellation of Agreement by Mutual Consent

17.10.290 Initiation of amendment or cancellation.

A development agreement may be amended or canceled, in whole or in part, by mutual consent of the parties to the agreement or their successors in interest. Any such person may propose an amendment to or cancellation in whole or in part of the development agreement previously entered into. (Ord. 1589 § 1, 7-5-88. Formerly § 8B-29).

17.10.300 Procedure.

The procedure for amendment or cancellation in whole or in part of a development agreement by mutual consent shall be as follows:

(a) Upon receipt by Planning Director of a proposal for an amendment to or cancellation in whole or in part of the development agreement, a public hearing thereon shall be set and conducted before the City Council within ninety (90) days of receipt of the proposal;

(b) As to prescribed notice of public hearing, where the City introduces the proposed amendment to or cancellation in whole or in part of the development agreement, it shall first give notice to the property owner of its intention to initiate such proceedings at least ten days in advance of the giving of notice of intention to consider the amendment or cancellation required by SCCC 17.10.200 (b)(4);

(c) Any amendment, cancellation or imposition of new terms and conditions pursuant to this section shall be by ordinance. The ordinance shall recite the facts, findings, information relied on, and reasons which, in the opinion of the City Council, make the amendments or cancellation of the development agreement necessary. Not later than ten days following the adoption of the ordinance, one copy thereof shall be forwarded to the developer. The development agreement shall become effective on the effective date of such ordinance unless otherwise indicated therein.

(d) Although approved by the City Council, an amendment to or cancellation of a development agreement shall not be binding or enforceable prior to the effective date of the ordinance approving the amendment or cancellation of the development agreement and the execution of such amendment or a written consent to such cancellation by all parties to the development agreement or by their successors in interest. (Ord. 1589 § 1, 7-5-88. Formerly § 8B-30).

Article X. Miscellaneous Provisions

17.10.310 Failure to receive notice.

The failure of any person entitled to notice required by law or this chapter to receive such notice shall not affect the authority of the City to enter into nor invalidate a development agreement entered into by the City or other action taken under this chapter. (Ord. 1589 § 1, 7-5-88. Formerly § 8B-31).

17.10.320 Rules governing conduct of hearing.

All the public hearings under this chapter shall be conducted in accordance with the procedures and the time limits specified for the conduct of such hearings in this chapter. A copy of any relevant proposed or existing development agreement shall be made available for public review at the City Clerk’s office prior to the date of each hearing thereon. (Ord. 1589 § 1, 7-5-88. Formerly § 8B-32).

17.10.330 Irregularity in proceeding.

Formal rules of evidence or procedure which must be followed in a court of law shall not be applied in the consideration of a proposed development agreement, its modification, cancellation, or termination under this chapter and the provisions of this chapter shall provide the procedure for such consideration. The qualified applicant or developer has the burden of presenting substantial evidence at each of the public hearings on the proposal and shall be given an opportunity to present evidence in support of the qualified applicant’s or developer’s position. No action, inaction, or recommendation regarding the proposed development agreement, its modification, cancellation, or termination shall be held void or invalid or be set aside by a court on the ground of the improper admission or rejection of evidence or by reason of any error, irregularity, informality, neglect, or omission (“error”) as to any matter pertaining to petition, application, notice, finding, record, hearing, report, recommendation, or any matters of procedure whatever unless after an examination of the entire case, including the evidence, the court 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. 1589 § 1, 7-5-88. Formerly § 8B-33).

17.10.340 Subsequently adopted State and Federal laws.

All development agreements shall be subject to the regulations and requirements of the laws of the State of California, the Constitution of the United States and any codes, statutes or executive mandates and any court decisions, State or Federal, thereunder. In the event that any such 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 as may be necessary to comply with such law, code, statute, mandate or decision, and every such development agreement shall so provide. (Ord. 1589 § 1, 7-5-88. Formerly § 8B-34).

17.10.350 Architectural review.

Unless otherwise provided in a development agreement, the implementation and execution of all phases of a development agreement shall be subject to architectural reviews pursuant to the applicable provisions of SCCC Title 18. (Ord. 1589 § 1, 7-5-88. Formerly § 8B-35).

17.10.360 Governing rules, regulations, development policies and effect of development agreement.

When approved, the development agreement and any development control maps and all notations, references and regulations which are a part of the development agreement shall be incorporated by reference into and be a part of SCCC Title 18. Development control maps include, but are not limited to, regulations intended to carry out any plan respecting location or type of activities; height, bulk, siting or design of buildings or improvements; location or design of open areas; and landscaping and other comparable regulations. In the case of any conflict with any other provisions of SCCC Title 18, such development agreement provisions shall take precedence. Unless otherwise provided by the development agreement, or imposed for reasons of health or safety during the term of the development agreement, rules, regulations and official policies of the City governing permitted uses of the land, governing density and governing design, improvement, and construction standards and specifications, applicable to development of the property subject to a development agreement, shall be those rules, regulations, and official policies in force at the time of execution of the agreement. A development agreement shall not prevent the City, in subsequent actions applicable to the property or to the City in general, from applying new rules, regulations, and policies which do not conflict with those rules, regulations, and policies applicable to the property at the time of execution of the development agreement, nor shall a development agreement prevent the City from denying or conditionally approving any subsequent development project application on the basis of such existing or new rules, regulations, and policies. Each development agreement shall provide, and it is provided in this section, that this section and the provisions thereof do not apply to taxes, imposts, assessments, fees, charges or other exactions imposed by or payable to City unless specifically and to the extent otherwise expressly agreed to by City in the development agreement, and that all of such shall be in amounts fixed at the time they are payable. (Ord. 1589 § 1, 7-5-88. Formerly § 8B-36).

17.10.370 Rights of the parties after cancellation or termination.

In the event that a development agreement is canceled, or otherwise terminated, unless otherwise agreed in writing by City, all rights of the developer, property owner or successors in interest under the development agreement shall terminate and any and all benefits, including money or land, received by the City shall be retained by the City. Notwithstanding the above provision, any termination of the development agreement shall not prevent the developer from completing a building or other improvements authorized to be constructed pursuant to a valid operative building permit previously approved by the City and 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 neither the developer nor any tenant shall occupy any portion of the project or any building not authorized by an occupancy permit. As used herein, “construction” shall mean work on site under a valid building permit and “completing” shall mean completion of construction for beneficial occupancy for developer’s use, or if a portion of the project is intended for use by a lessee or tenant, then for such portion “completion” shall mean completion of construction except for interior improvements such as partitions, duct and electrical run outs, floor coverings, 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 SCCC Title 18. (Ord. 1589 § 1, 7-5-88. Formerly § 8B-37).

17.10.380 Construction.

This chapter and any subsequent development agreement shall be read together. With respect to any development agreement enacted under this chapter, any provision of such a development agreement which is in conflict with this chapter shall be void. (Ord. 1589 § 1, 7-5-88. Formerly § 8B-38).

17.10.390 Recordation of development agreement, ordinances and notices.

(a) Within ten days following complete execution of a development agreement and following effective date of enacting ordinance, the City Clerk shall record with the County Recorder, a fully executed copy of the development agreement and ordinance approving development agreement, which shall describe the land subject thereto. The development agreement shall be binding upon, and the benefits of the development agreement shall inure to the parties and all successors in interest to the parties to the development agreement.

(b) If the parties to the development agreement or their successors in interest amend or cancel the development agreement as provided in Government Code Section 65868 or this chapter, or if the City Council terminates or modifies the development agreement as provided in Government Code Section 65865.1 or this chapter for failure of the developer 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 with the County Recorder of Santa Clara County. (Ord. 1589 § 1, 7-5-88. Formerly § 8B-39).

17.10.400 Enforcement of development agreements.

Except as provided hereinbelow, a development agreement shall be enforceable by any party thereto notwithstanding any change in any applicable general or specific plan, zoning, subdivision, or building regulation adopted by the City which alters or amends the rules, regulations, or policies specified in SCCC 17.10.360 or in the development agreement itself.

An exception to the certainty intended by execution of a development agreement [as expressed in SCCC 17.10.020] shall be when a change to the development agreement is imposed or required not by City initiated action, but rather by City response to (i) federal or state court or administrative agency determination or (ii) federal or state legislative or administrative agency regulation requirement. (Ord. 1589 § 1, 7-5-88. Formerly § 8B-40).

17.10.410 Severability clause.

Should any provision of this chapter or of 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. The City Council hereby declares that it would have adopted and enacted this chapter and each provision thereof irrespective of the fact that any one or more of the provisions, or the applications thereof to any person or place, be declared invalid or unconstitutional. For the purpose of this section, a “provision” is a section, subsection, paragraph, sentence, clause, phrase or portion of any thereof. (Ord. 1589 § 1, 7-5-88. Formerly § 8B-41).

17.10.420 Judicial review – Time limitation.

(a) Any judicial review of the initial approval by the City of a development agreement shall be by writ of mandate pursuant to Section 1085 of the Code of Civil Procedure; and judicial review of any City action taken pursuant to this chapter, other than the initial approval of a development agreement, shall be writ of mandate pursuant to Section 1094.5 of the Code of Civil Procedure.

(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. (Ord. 1589 § 1, 7-5-88. Formerly § 8B-42).

17.10.430 Condemnation.

All and every part of the development agreements are subject to condemnation proceedings and entering into such agreements are not intended to restrict the exercise of eminent domain. (Ord. 1589 § 1, 7-5-88. Formerly § 8B-43).