Article 11 — Development Agreements

This article establishes procedures and requirements for considering and entering into legally binding agreements with applicants for development projects pursuant to California Government Code Section 65864 et seq. The purpose of this article is to facilitate large, phased projects for which there is significant private participation in infrastructure, public facilities, open space and amenities, and other programs of benefit to the City and its residents. (Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

The City of Emeryville, at its sole discretion, may enter into a binding agreement with any qualified applicant for the development of qualified property within the City of Emeryville pursuant to and in accordance with these regulations. (Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

An application for a development agreement shall be filed and processed in accordance with the provisions of Article 2 of this chapter, Common Procedures. A development agreement shall be considered by the City Council with a recommendation from the Planning Commission. Its approval shall be by ordinance authorizing the City Manager or his or her designee to execute the development agreement, and is subject to referendum. After the ordinance approving the development agreement takes effect, the City Manager shall execute the development agreement on behalf of the City. The effective date of the development agreement shall be the later of the effective date of the ordinance or the date the City Manager executes the development agreement on behalf of the City. Within ten (10) days after the City Manager executes the development agreement on behalf of the City, the City Clerk shall have the development agreement and the ordinance approving it recorded with the County Recorder.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

The Planning Commission in recommending, and the City Council in approving, a development agreement, must make both of the following findings:

• (a) The development agreement is consistent with the General Plan and any applicable specific plan.

• (b) The development agreement is in the public interest.

• (Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

• (a) Applicants. Only a qualified applicant may file an application to enter into a development agreement. A "qualified applicant" is a person who has legal or equitable interest in the real property which is the subject of the development agreement. The City Manager or his or her designee may require an applicant to submit proof of his or her interest in the real

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City of Emeryville, CA

EMERYVILLE CODE

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property. The City Manager may also require that all persons having a legal or equitable interest in the real property be made parties to the application and signatories to the development agreement, or otherwise assure the City, in form approved by the City Attorney, that they will be legally bound to comply with the terms and conditions of the development agreement; provided, that this requirement shall not apply to owners or claimants of interests in easements, whether of record or otherwise, or other interests not deemed material by the City Manager, unless the City Attorney determines that their agreement or undertaking to be bound by the development agreement is necessary for the development agreement to be effective in achieving the City's objectives. The burdens of the development agreement shall be binding upon, and the benefits of the agreement shall inure to, all successors in interest to the parties to the development agreement. The qualified applicant and any successors in interest are referred to in this article as "developer," which shall include the plural in the case of an applicant consisting of more than one (1) party.

• (b) Property. The property to be the subject of the development agreement shall be situated within the City limits and shall represent an appropriate parcel or parcels, as to ownership and parcel configuration, size and location, as determined by the City Manager, to assure the development of the property consistent with the policies, goals, standards and objectives of the General Plan and applicable City ordinances, laws, rules, regulations and policies.

• (Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

• (a) Every development agreement shall be for a specified initial term. Such terms may be extended, from time to time, as provided in the development agreement.

• (b) The development agreement shall specify (in the development agreement itself or by reference to other project approvals) the permitted uses of the property which is subject to the development agreement, the density and intensity of use, the maximum height and size of proposed buildings, provisions for reservation and dedication of land for public purposes, the location of public improvements, and other applicable terms and conditions.

• (c) The development agreement may contain a requirement that construction be commenced within a specified period of time or that the project or any phase thereof be completed within a specified time. If the development agreement expressly does not specify the timing of the commencement or completion of the project, or any phase thereof, the development agreement may specify that it is deemed nevertheless to have dealt with the issue of timing; provided, however, that specific time requirements of any subsequent special permit, subdivision map or other land use entitlement shall govern.

• (d) The development agreement may contain a hold harmless agreement and an agreement to indemnify the City from suits and actions arising in connection with the development agreement, to the satisfaction of the City Attorney.

• (e) The 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 land for the uses and to the density or intensity of development set forth in the development agreement.

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City of Emeryville, CA

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• (f) A development agreement may provide that it constitutes a financing agreement within the meaning and scope of California Government Code Section 53511.

• (g) The development agreement may contain such other provisions as the City Council deems appropriate.

• (Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

• (a) The City Manager or designee shall, on an annual basis and at any other time that the City Manager determines to be appropriate, review the extent of good faith substantial compliance by the developer with the terms and conditions of the development agreement. Such periodic review shall be limited in scope to compliance with the terms and conditions of the development agreement pursuant to California Government Code Section 65865.1. The costs of notice and related costs incurred by the City for such annual review shall be borne by the developer.

• (b) Unless otherwise specified in a development agreement, the City Manager shall provide thirty (30) days' prior written notice of such periodic review to the developer. Such notice shall require the developer to demonstrate good faith compliance with the terms and conditions of the development agreement and to provide such other information as may be reasonably requested by the City Manager and deemed by him or her to be required in order to ascertain compliance with the development agreement. Such notice shall also include the statement that any review may result in amendment or termination of the development agreement.

• (c) If, following such review, the City Manager is not satisfied that the developer has demonstrated good faith compliance with all the terms and conditions of the development agreement, or for any other reason, the City Manager may refer the matter along with his or her recommendation to the City Council.

• (d) The City Council shall conduct a hearing on compliance at its first available agenda after referral by the City Manager. The City Council shall hear the matter de novo.

• (e) If the City Council finds and determines, on the basis of substantial evidence, that any developer has not complied in good faith with each and every term and condition of the development agreement, the City Council may terminate or modify the development agreement as to that developer and the property in which that developer holds an interest. Failure of any developer to accept a modification of the development agreement shall result in termination of the development agreement as to that developer and the property in which that developer holds an interest. Termination of the development agreement shall not affect any developer's obligations to comply with the terms and conditions of any applicable zoning, specific plans, special permit, subdivision map or other land use entitlement approved with respect to the property subject to the development agreement, nor shall it affect other covenants of any developer specified in the development agreement to continue after the termination of the development agreement.

• (f) A finding by the City Manager or the City Council of good faith compliance by a developer with the terms and conditions of the development agreement shall conclusively determine the issue up to and including the date of the review as to such developer.

• (g) Failure of the City to conduct a periodic review shall not constitute a waiver by the City of

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City of Emeryville, CA

EMERYVILLE CODE

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its rights to enforce the provisions of a development agreement, nor shall a developer have or assert any defense to such enforcement by reason of such failure to conduct a periodic review.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

A development agreement may be amended or canceled, in whole or in part, by the mutual consent of the parties to the development agreement or their successors in interest and as otherwise provided in the development agreement. The procedure for a substantive amendment or cancellation shall be the same as the procedures for approval. If the parties to the development agreement or their successors in interest cancel or terminate the development agreement, the City Clerk shall have notice of such action recorded with the County Recorder. (Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

In the event that State or Federal laws or regulations, enacted after a development agreement has been entered into, prevent or preclude compliance with one (1) or more provisions of the development agreement, such provisions of the development agreement shall be modified or suspended as may be necessary to comply with such State or Federal laws or regulations. The procedure for modification or suspension of a substantive provision of a development agreement shall be the same as the procedures for approval.

(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)

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City of Emeryville, CA