Article X — Miscellaneous Provisions

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, 7-5-1988; Formerly § 8B-31)

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, 7-5-1988; Formerly § 8B-32)

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, 7-5-1988; Formerly § 8B-33)

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, 7-5-1988; Formerly § 8B-34)

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, 7-5-1988; Formerly § 8B-35)

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, 7-5-1988; Formerly § 8B-36)

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, 7-5-1988; Formerly § 8B-37)

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, 7-5-1988; Formerly § 8B-38)

• (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, 7-5-1988; Formerly § 8B-39)

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, 7-5-1988; Formerly § 8B-40)

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, 7-5-1988; Formerly § 8B-41)

• (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, 7-5-1988; Formerly § 8B-42)

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, 7-5-1988; Formerly § 8B-43)