Chapter 10.118 — DEVELOPMENT AGREEMENTS

This Chapter and regulations are adopted under the authority of State Planning and Zoning Law, Government Code Sections 65864 through 65869.5 and is intended to provide the procedures for the application, approval, modification, or termination of development agreements, as authorized by State law. A development agreement is intended to provide assurance to the applicant that an approved project may proceed subject to the policies, rules, regulations, and conditions of approval applicable to the project at the time of execution of the agreement, regardless of any changes to City policies, rules, and regulations after project approval, unless otherwise provided by the agreement. In return, the City is provided assurance that the project will further important citywide goals and policies that have been officially recognized by the Council, and provide the City with significant, tangible benefits beyond those that may be required by the City through project conditions of approval. (Ord. 935 § 3 (part), 2015)

A. Qualified Applicant.

1. Only a qualified applicant may file an application to enter into a development agreement.

2. A qualified applicant is a person, including any authorized agent, who has a legal or equitable interest in the real property which 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 to the developer.

3. The Director may require an applicant to submit proof of the applicant’s interest in the real property and of the authority of any agent to act for the applicant.

4. The qualified applicant and any successor(s)-in-interest shall be referred to as “developer.”

• B. Fees.

1. The applicant for a development agreement shall pay the processing fee established by the Planning Fee Schedule.

2. Additionally, appropriate fees shall be established and collected for amendments to a development agreement and the annual review identified in Section 10.118.080 (Annual Review), below. (Ord. 935 § 3 (part), 2015)

• A. Application Form and Filing.

1. An application for a development agreement shall be filed with the Department in compliance with Chapter 10.82 (Permit Application Filing and Processing).

2. The Director shall prescribe the form for each application, notice and documents provided for or required by this Chapter for the preparation and implementation of development agreements.

3. The Director may require an applicant to submit information and supporting data as the Director considers necessary to process the application and comply with CEQA requirements.

4. The application shall be accompanied by a reimbursement agreement approved by the Director upon advice from the City Attorney.

• B. Director’s Review and Recommendations.

1. The Director shall be empowered to receive, review, process, and prepare, together with recommendations for Commission’s and then Council’s consideration, all applications for development agreements.

2. The Director shall endorse on the application the date it is received.

3. Upon receipt of an application for a development agreement, the Director shall review the application and may reject it if it is incomplete or inaccurate for purposes of processing.

• a. If the Director finds that the application is complete, the Director shall accept it for filing.

• b. If the Director finds that the application is incomplete, the Director shall promptly notify the applicant.

4. The Director shall prepare a staff report and recommendation and shall state whether or not the development agreement proposed or in an amended form is consistent with the General Plan and any applicable specific plans.

• C. Review Authority’s Action.

1. Upon determination by the Director that the application is complete and in compliance with the provisions of this Chapter, applicable State law, and the CEQA, the Director shall set the application, together with recommendations, for a public hearing before the Commission.

2. Following conclusion of the public hearing, the Commission shall make a written recommendation to the Council that it approve, conditionally approve, or deny the application based on the findings specified in Section 10.118.050 (Findings Required), below.

3. Upon receipt of the Commission's recommendations, the Director shall set the application and written report of the Commission for a public hearing before the Council.

4. Following conclusion of the public hearing, the Council shall approve, conditionally approve, or deny the application, based on the findings specified in Section 10.118.050 (Findings Required), below.

• D. Notice and Public Hearings.

1. Public Hearings. A public hearing shall be held on the proposed development agreement by both the Commission and the Council.

2. Notice. Notice of the public hearings specified in this Chapter shall be given in the form of a notice of intention to consider approval of a development agreement in compliance with Government Code Section 65867 and Chapter 10.116 (Public Notices and Hearings).

3. State Law.

• a. The notice requirements referred to in Subparagraphs 1 and 2, above, are declaratory of existing law under Government Code Section 65867 and Sections 65090 and 65091.

b. If State law under these sections prescribes a different notice requirement, notice shall be given in that manner.

4. Additional Notice. The Commission or 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 specified by State law.

5. Failure to Receive Notice. The failure of any person entitled to notice required by law or this Chapter to receive notice does not affect the authority of the City to enter into a development agreement. (Ord. 935 § 3 (part), 2015)

A. As authorized by Government Code Section 65865.2, or as that section may be amended from time to time, a development agreement shall include the following provisions:

1. A development agreement shall provide that the applicant or developer is the legal or equitable owner of the subject property.

2. A development agreement shall specify the location of the subject property, and that the property is located within the City or the City’s sphere of influence, if applicable.

3. A development agreement shall specify its duration, the allowed uses of the subject property, the density and/or intensity of use, the maximum height and size of proposed structures, provisions for reservation 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 dedication or improvements.

4. All development agreements shall contain an indemnity and insurance clause requiring the developer to indemnify and hold the City harmless against claims arising out of the development process, including all legal fees and costs.

B. A development agreement may include the following provisions:

1. A development agreement may include conditions, requirements, restrictions, and terms for subsequent discretionary actions (provided the conditions, requirements, restrictions, and terms do not prevent the development of the land subject to the development agreement for the uses and to the density or intensity of development specified in the agreement) but does not affect the developer’s responsibility to obtain all land use approvals required by this Zoning Code or Municipal Code.

2. 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 applicable to the project prepared and certified under the CEQA, in order to eliminate or mitigate adverse environmental impacts of the project.

3. 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 of the project be completed within a specified time.

4. 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 a Mello-Roos District or other comparable district for financing ongoing operational costs of public services for the project.

5. If the development agreement requires developer’s financing of necessary public facilities, it may include terms relating to subsequent reimbursements over time for the financing.

6. A development agreement may include conditions relating to financial guarantees for performance of obligations specified in the agreement.

7. 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, provisions, or terms agreed upon by the parties, including sanctions for failure to meet requirements. (Ord. 935 § 3 (part), 2015)

A. Findings Required for Commission and Council Action on Development Agreements. The Commission may recommend approval and the Council may approve the development agreement only after the Commission and Council first make all of the following findings:

1. The development agreement provides clear and substantial benefit to the residents of the City;

2. The development agreement is consistent with the purpose, intent, goals, policies, programs, and land use designations of the General Plan, any applicable specific plan, and this Zoning Code;

3. The development agreement complies with the requirements of Government Code Sections 65865 through 65869.5, or as these sections may be modified from time to time;

4. The development agreement will promote the public convenience, health, interest, safety, and general welfare of the City and will not be detrimental to or cause adverse effects to adjacent property owners, residents, or the general public;

5. The development agreement is compatible with the uses authorized in, and the regulations prescribed for, the zone in which the real property is located;

6. The development agreement will not adversely affect the orderly development of property or the preservation of property values;

7. The development agreement will further important citywide goals and policies that have been officially recognized by the Council;

8. The development agreement will provide the City with important, tangible benefits beyond those that may be required by the City through project conditions of approval;

9. The development agreement will not be detrimental to the health, safety and general welfare; and

10. If the development agreement includes a subdivision, as defined in Government Code Section 66473.7 that the development agreement provides that any tentative map prepared for the subdivision will comply with the provisions of Government Code Sections 66473.7 through 66474.10.

• B. Denial of Development Agreement.

1. The Commission, in its sole discretion, may recommend denial of the development agreement on the grounds that, in its opinion, the proposed agreement is not in the best interest of the public.

2. The 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 Property is Located Outside of the City.

1. 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 located within the City’s sphere of influence.

2. If the property is located within the City’s sphere of influence, the agreement shall be conditional upon the property being annexed to the City and shall specify the time period for completion of annexation.

3. If annexation does not occur within the specified time period, the agreement shall be null and void. (Ord. 935 § 3 (part), 2015)

A. Adoption of an Ordinance.

1. If the Council approves the development agreement, it shall do so by the adoption of an ordinance.

2. The City shall not execute the development agreement until 30 days after the ordinance approving the development agreement is adopted.

• B. Recordation of Agreement.

1. Within 10 days after the City executes the development agreement, the City Clerk shall submit the agreement for recording with the Office of the County Recorder.

2. If the parties to the agreement or their successor(s)-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 record the notice of the action with the Office of the County Recorder. (Ord. 935 § 3 (part), 2015)

A. Proposed Amendment or Cancellation. 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. Procedures. The procedure, for proposing and adoption of an amendment to or cancellation, in whole or in part, of a development agreement shall be the same as the procedure for entering into an agreement in the first instance,

including but not limited to the notice of and the public hearings as specified in this Chapter.

C. City Initiated Amendment or Cancellation. Where the City initiates the amendment 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 the proceedings in the manner specified in Chapter 10.116 (Public Notices and Hearings).

• D. In the Event of Cancellation.

1. In the event that a development agreement is canceled or terminated, all rights of the developer under the development agreement shall terminate.

2. Except as otherwise provided in the development agreement, the City may, at its sole discretion, retain any and all benefits, including reservation or dedications of land, improvements constructed, and payments of fees, received by the City.

E. Effect of Termination on Entitlements. Notwithstanding Subsection D., above, any termination of the development agreement shall not prevent the developer from constructing or completing a structure or other improvements authorized in compliance with other validly issued permits or approvals, 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. (Ord. 935 § 3 (part), 2015)

A. Annual Review.

1. Every development agreement approved and executed in compliance with this Chapter, shall be subject to City review, as specified in the development agreement, during the full term of the agreement, but in no case less than every 12 months from the date of execution of the agreement.

2. The time for review may be amended either by agreement between the parties or by initiation of the Council.

• B. Purpose of Annual Review.

1. The purpose of the annual reviews shall be for the applicant, developer/contracting party, or its successor(s)-ininterest to demonstrate good faith compliance with the conditions and terms of the development agreement.

2. The burden of proof shall be on the applicant, developer/contracting party, or its successor(s) to demonstrate compliance, to the full satisfaction of, and in a manner prescribed by, the City.

• C. Notice of Annual Review.

1. The Director shall initiate the review proceeding by giving a 30-day written notice to the applicant, developer/contracting party, or successor(s)-in-interest that the City intends to undertake an annual review of the development agreement.

2. The Director shall give the notice in compliance with Subsection 10.118.030 D. (Notice and hearings), above.

• D. Review by the Council. Review shall be conducted by the Council.

1. The Council shall conduct a hearing at which the applicant, developer/contracting party, or its successor(s)-ininterest shall demonstrate good faith compliance with the conditions and terms of the development agreement.

2. The burden of proof of this issue is on the applicant, developer/contracting party, or its successor(s)- ininterest.

E. Findings upon Hearing. The Council shall determine, upon the basis of substantial evidence, whether or not the applicant, developer/contracting party, or its successor(s)-in-interest has, for the period under review, complied in good faith with the conditions and terms of the development agreement.

• F. Procedure upon Findings.

1. Has Complied. If the Council finds and determines, on the basis of substantial evidence, that the applicant, developer/contracting, party or its successor(s)-in-interest has complied in good faith with the conditions and terms of

the development agreement during the period under review, the review for that period is concluded, and a notice of that determination shall be sent to the applicant, developer/contracting party, or its successor(s)-in-interest.

2. Has not Complied. If the Council finds and determines, on the basis of substantial evidence, that the applicant, developer/contracting party, or its successor(s)-in-interest has not complied in good faith with the conditions and terms of the development agreement during the period under review, the Council may initiate modification or termination of the development agreement in compliance with Subsection G., below.

• G. Modification or Termination of Development Agreement.

1. Proceedings upon Modification or Termination

If, upon a finding under Subsection F. (Procedure Upon Findings), above, the Council determines to proceed with modification or termination of the development agreement, the City shall provide public notice in compliance with Chapter 10.116 (Public Notices and Hearings) of its intention to do so. The notice shall contain all of the following:

• a. The date, time, and place of the hearing, which shall be conducted by the Council;

• b. A statement as to whether or not the City proposes to modify or terminate the development agreement; and

• c. Other information that the City considers necessary to inform the applicant, developer/contracting party, its successor(s)-in-interest, and the general public of the nature of the proceedings.

2. Hearing on Modification or Termination of Development Agreement.

• a. At the date, time, and place set for the hearing on modification or termination, the applicant,

developer/contracting party, its successor(s)-in-interest, and the general public shall be given an opportunity to be heard.

b. At the hearing, the Council may modify or terminate the development agreement, may continue the hearing for further consideration, and may impose conditions to the action it takes as it considers reasonable and necessary to protect the interests of the City.

• c. The decision of the Council on the modification or termination shall be final. (Ord. 935 § 3 (part), 2015)

A. Rules in Force at the Time of Execution. Unless otherwise provided by the development agreement, the City's official policies, regulations, and rules governing allowed uses of the land or property, density, design, improvement, and construction standards and specifications, applicable to development of the property subject to a development agreement shall be those City official policies, regulations, and rules in force at the time of execution of the agreement.

• B. Application of New Rules.

1. In compliance with Government Code Section 65866, a development agreement shall not prevent the City, in subsequent actions applicable to the property, from applying new policies, regulations, and rules that do not conflict with those policies, regulations, and rules applicable to the property as specified in the agreement.

2. Additionally, a development agreement shall not prevent the City from conditionally approving or denying any subsequent permit or approval, development project application, or authorization for the project on the basis of existing or new policies, regulations, and rules. (Ord. 935 § 3 (part), 2015)

Development agreements approved by the Council shall be on file with the City Clerk. (Ord. 935 § 3 (part), 2015)

10.118.110 Judicial Review - Time Limitation.

A. Judicial Review. Any judicial review of an ordinance approving a development agreement shall be by writ of mandate in compliance with Code of Civil Procedure Section 1085; and judicial review of any City action taken by the City in compliance with this Chapter, other than the initial approval of a development agreement, shall be by writ of mandate in compliance with Code of Civil Procedure Section 1094.5.

B. Time Limitation. Any action or proceeding to annual, attack, review, set aside, or void any decision of the City made in compliance with this Chapter shall not be maintained by any person unless the action or proceeding is commenced within 90 days after the date of the decision. (Ord. 935 § 3 (part), 2015)