Division 14 — DEVELOPMENT AGREEMENTS

SEC. 36.54. - Development agreements. SEC. 36.54.05. - Purpose.

a.

This section outlines the procedures and requirements for the review and approval of development agreements pursuant to the California Government Code. A development agreement is a contract between the city and an applicant for a development project provided for in the California Government Code. A development agreement provides 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 approval, regardless of any changes to city policies, rules and regulations after such approval. In return, the city is assured that the applicant will provide infrastructure and/or pay fees required by a new project that is constructed over a period of time.

b.

In defining the provisions of any development agreement executed in compliance with this section, each provision shall be consistent with the language of this section, state law and the agreement itself. Should any discrepancies between the meaning of these documents arise, reference shall be made to the following documents, and in the following order of precedence:

1.

The provisions of federal or state law;

2.

The plain terms of the development agreement itself; and

3.

The provisions of this section.

(Ord. No. 18.13, § 1, 12/10/13.)

SEC. 36.54.10. - Special application requirement.

In addition to the application requirements of this article, the application shall include:

a.

Documentation, data and analysis to show that the agreement provides unique benefits to the city for entering into the agreement;

b.

Proposed term of the agreement;

c.

Project phasing;

d.

Applicable development standards, including uses and densities;

e.

Applicant's arrangement for any public improvements to be constructed in consideration for the development agreement; and

f.

Any special provisions or clauses the applicant requests to be in the Agreement.

An application for a development agreement may be filed only by a person, or authorized agent of a person, who has legal and equitable interest in the real property which is the subject of the proposed development agreement. The community development director may require an applicant to submit written proof of their interest in the real property or the authority of any agent to act for the applicant.

(Ord. No. 18.13, § 1, 12/10/13.)

SEC. 36.54.15. - Hearings and findings.

a.

Upon receipt of a complete application for a development agreement, the zoning administrator shall hold a duly noticed public hearing in accordance with Section 36.56 (Applications, Hearings and Appeals). Following conclusion of the public hearing, the zoning administrator shall make a written recommendation to the council. This recommendation shall include a statement that the proposed agreement has been reviewed by the city attorney. The zoning administrator's recommendation shall be based upon the following findings that the development agreement:

1.

Is consistent with the objectives, policies, general land uses and programs specified in the general plan and any specific plan or precise plan;

2.

Is compatible with the uses authorized in, and the regulations prescribed for the land use district in which the real property is located;

3.

Is in conformity with public convenience, general welfare and good land use practice;

4.

Will not be detrimental to the health, safety and general welfare of the community;

5.

Will not adversely affect the orderly development of property or the preservation of property values;

6.

Is needed by the applicant due to the complexity, cost or infrastructure requirements for development; and

7.

Is advantageous to and benefits the city.

b.

Upon receipt of the zoning administrator's recommendation, the city council shall hold the duly noticed public hearing in accordance with Section 36.56 (Applications, Hearings and Appeals). Council shall approve, conditionally approve or disapprove the application or may refer the item back to the zoning administrator for additional consideration and recommendation.

c.

Should the council approve or conditionally approve the application, it shall, as a part of its action of approval, direct the preparation of a development agreement embodying the terms and conditions of the application as approved or conditionally approved, and authorize execution by the city manager of the development agreement consistent with that approval.

d.

The ordinance shall contain findings that the development agreement is consistent with this chapter, the general plan, California Environmental Quality Act (CEQA) and any applicable precise plans.

(Ord. No. 18.13, § 1, 12/10/13.)

SEC. 36.54.20. - Content of development agreement.

a.

Mandatory contents. All development agreements shall contain the following provisions:

1.

Duration of the agreement;

2.

Permitted uses for the subject property;

3.

Density or intensity of the permitted uses;

4.

Approved site plans, elevations, floor plans and sections showing the maximum height and size of the proposed building;

5.

Provisions, if any, for reservation or dedication of land for public purposes;

6.

A tiered amendment review procedure that may incorporate the following:

(a)

Zoning administrator sign-off for minor modifications to the development project; and

(b)

Approval of major modifications to the development project by the Council.

Procedures for city review of specific project proposals to ensure through conditions of approval or denial of the proposed project that such proposals would not place project occupants or the immediate community, or both, in a condition dangerous to their health or safety, or both. Project proposals covered by this provision include, but are not limited to, new buildings, changes in land or building use, and/or changes in the amount, type or location of storage or use of hazardous materials.

b.

Permissive contents. A development agreement may include the following:

1.

Conditions, terms, restrictions and requirements for subsequent discretionary actions, provided that these provisions shall not prevent development of the land for the uses and to the density/intensity of development specified in the Agreement;

2.

Provisions which require that construction shall be commenced within a specified time and that the project or any single phase be completed within a specified time;

3.

Terms and conditions relating to applicant financing of necessary public improvements and facilities, including, but not limited to, applicant participation in benefit assessment proceedings; and

4.

Any other terms, conditions and requirements as the council may deem necessary and proper, including, but not limited to, a requirement for ensuring, to the satisfaction of the city, performance of all provisions of

the agreement in a timely fashion by the applicant/contracting party.

(Ord. No. 18.13, § 1, 12/10/13.)

SEC. 36.54.25. - Execution and recordation.

a.

The city shall execute development agreements on or after the date upon which the ordinance approving the agreement is enacted.

b.

The city clerk shall have a development agreement or, if permitted, a memorandum of agreement, recorded in the office of the Santa Clara County Recorder no later than ten (10) days after it is executed.

(Ord. No. 18.13, § 1, 12/10/13.)

SEC. 36.54.30. - Periodic review.

a.

Every development agreement approved and executed in compliance with this section shall be subject to periodic city review during the full term of the agreement. Unless a shorter time is specified by the city council, the community development director shall review each development agreement every twelve (12)

months from the date the agreement was entered into for compliance with the provisions of the agreement. Appropriate fees to cover the city's costs to conduct the periodic reviews shall be collected from the applicant/contracting party in compliance with Section 36.56.15 (Fees).

b.

The purpose of the periodic review shall be to determine whether the applicant or its successor-in-interest has complied in good faith with the terms of the development agreement. The burden of proof shall be on the applicant or its successor to demonstrate compliance to the full satisfaction of, and in a manner prescribed by, the city.

c.

If, as a result of periodic review, the council finds and determines on the basis of substantial evidence that the applicant or its successor-in-interest has not complied in good faith with the terms or conditions of the agreement, the council may order, after a noticed public hearing, that the agreement be terminated or modified.

(Ord. No. 18.13, § 1, 12/10/13.)

SEC. 36.54.35. - Effect of development agreement.

Unless otherwise provided by the development agreement, the rules, regulations and official policies governing permitted uses of the land, density, and design, improvement and construction standards and specifications, applicable to development of the property subject to a development agreement, are the

rules, regulations, and official policies in force at the time of execution of the agreement. A development agreement does not prevent the city, in subsequent actions, from applying new rules, regulations and policies that do not conflict with those applicable to the property, nor does a development agreement prevent the city from conditionally approving or disapproving any subsequent development project application on the basis of existing or new rules, regulations and policies.

(Ord. No. 18.13, § 1, 12/10/13.)

SEC. 36.54.40. - Amendment, modification or termination.

a.

Amendment or mutual cancellation. Either party may propose an amendment to, or cancellation in whole or in part, of a development agreement. The procedure for considering an amendment to, or canceling of, the development agreement is the same as for entering into an agreement as set forth in this chapter. When the city initiates the proposed amendment or cancellation, it shall first file written, mailed notice of such intention to the other party to the agreement at least thirty (30) days in advance of the posted notice.

b.

Noncompliance or termination. If, upon a finding under Section 36.54.30.c, the city council determines to proceed with modifications or termination of the agreement, the city council shall hold a duly noticed public hearing. At the hearing, the other party to the agreement shall be given an opportunity to be heard. The city council may refer the matter to the zoning administrator for further proceeding or for report and recommendation. The city council may impose such conditions to its action as it considers necessary to protect the health, safety and welfare of the community and the interests of the city.

(Ord. No. 18.13, § 1, 12/10/13.)