Article 15.04.811 — DEVELOPMENT AGREEMENTS

This article establishes procedures and requirements for considering and entering into legally binding agreements with applicants for development projects, as provided for in State law. Such agreements may provide a greater degree of certainty than the normal permit approval process by granting assurance that an applicant may proceed with development in accord with policies, rules, and regulations in effect at the time of approval subject to conditions to promote the orderly planning of public improvements and services, allocate costs to achieve maximum utilization of public and private resources in the development process, and ensure that appropriate measures to enhance and protect the environment are achieved.

A.

Large, Multi-Phase Development Project. A development agreement may be considered for a large, multi-phase development project that will require a developer to make a substantial investment at the early stages of the project for planning and engineering for the entire project and for public facilities and services. In order to be considered for a development agreement, a project must be consistent with the General Plan and any applicable specific plan, unless the applicant has submitted an application for any necessary amendments to the General Plan or specific plan.

B.

Property Subject to Annexation. An applicant whose property is located within the City's sphere of influence, or whose property is the subject of a pending application for inclusion into the sphere of influence, may file an application to enter into a development agreement.

1.

The agreement will not become operative unless annexation proceedings annexing property to the City are completed within the period of time specified by the agreement.

2.

If the annexation is not completed within the time specified in the agreement or any extension of the agreement, the agreement is null and void.

A.

The Director, in consultation with the City Manager, will negotiate the specific components and provisions of the development agreement on behalf of the City for recommendation to the City Council.

B.

The City Council has the exclusive authority to approve a development agreement.

An applicant for a development project may request that the City review the application as a development agreement application in accordance with the following procedures. The City incorporates by reference the provisions of Government Code Sections 65864-65869.5. In the event of any conflict between these statutory provisions and this section, State law controls.

A.

Application Requirements. An applicant must submit an application for a development agreement on a form prescribed by the Director, accompanied by the required fees. The Director must identify submittal requirements for applications for development agreements and may require an applicant to submit such additional information and supporting data as considered necessary for environmental review and to process the application. In addition to any other information that the Director requires, each application for a development agreement must be accompanied by the general terms and conditions of the agreement proposed by the applicant and must include the contents required in subsection B below.

B.

Contents of Development Agreements.

1.

Required Contents. A development agreement must specify its duration; the permitted uses of the subject property; the general location and density or intensity of uses; the general location, maximum height and size of proposed buildings; and provisions for reservation or dedication of land for public purposes. It must contain provisions concerning its transferability.

2.

Improvements and Fees. A development agreement may include requirements for construction and maintenance of on-site and off-site improvements or payment of fees in lieu of such dedications or improvements.

3.

Conditions. A development agreement may also include conditions, terms, restrictions, and requirements for subsequent discretionary actions but does not eliminate the applicant's responsibility to obtain all required land use approvals.

Environmental Mitigation. A development agreement may include, without limitation, conditions and restrictions imposed by the City with respect to the project, including those conditions, restrictions and mitigation measures proposed in any Mitigated Negative Declaration or Final Environmental Impact Report applicable to the project that eliminate or mitigate adverse environmental impacts of the project.

5.

Phasing. A development agreement may provide that the project be constructed in specified phases, that construction be commenced within a specified time, and that the project or any phase thereof be completed within a specified time.

6.

Financing. If the development agreement requires applicant financing of necessary public facilities, it may include terms relating to subsequent reimbursement over time for such financing.

7.

Indemnity. A development agreement must contain an indemnity clause requiring the applicant to indemnify and hold the City harmless against claims arising out of or in any way related to the actions of applicant in connection with the application or the development process, including all legal fees and costs.

8.

Performance Obligation Fees. A development agreement may include provisions to guarantee performance of obligations stated in the agreement.

C.

Initial Review of Application. The Director will review each application to determine whether it is complete. If the application is found to be incomplete, the Director will reject the application and will inform the applicant of the items necessary to properly complete the application. If the application is complete, the Director will determine whether an environmental review is required for the project, in compliance with applicable State and local requirements.

D.

Negotiations. The Director must negotiate the specific components and provisions of the development agreement on behalf of the City for recommendation to the City Council.

E.

Recommendation by Director. The Director must make his/her recommendation in writing to the City Council. The recommendation must include the Director's determination and supporting reasoning whether or not the proposed development agreement satisfies the findings specified in Section 15.04.811.060 (Findings and Decision).

A.

Notice of Intent. The Director must publish a notice of intent to consider adoption of a development agreement as provided in Section 65090 and 65091 of the Government Code.

B.

City Council. The Applicant must execute a proposed development agreement before it is placed before the City Council for consideration at a public hearing. The City Council must hold a duly noticed public hearing prior to adoption of any development agreement. Notice of the public hearing to consider adoption of a development agreement must be given in accordance with the requirements of Section 15.04.803.070 (Public Notice). The City Council public hearing may, but need not, be held concurrently with the public hearing(s) on other land use approvals for the project.

15.04.811.060 - Findings and Decision.

A.

Findings. The City Council may not approve a proposed development agreement unless it finds that its provisions are consistent with the General Plan and any applicable specific plan. This requirement may be satisfied by a finding that the provisions of a proposed development agreement are consistent with the proposed General Plan, a General Plan amendment, or specific plan provisions to be adopted concurrently with the approval of the proposed development agreement.

B.

Decision. After the City Council completes the public hearing, the City Council must approve, modify, or disapprove the development agreement. Approval of a development agreement must be by ordinance.

Within 10 days after the ordinance approving the development agreement takes effect, the Director must execute the development agreement on behalf of the City, and the City Clerk must record the development agreement with the County Recorder.

The applicant will be required to demonstrate compliance with the provisions of the development agreement at least once a year, at which time the Director will review each approved development agreement.

A.

Finding of Compliance. If the Director, on the basis of substantial evidence, finds compliance by the applicant with the provisions of the development agreement, the Director will issue a finding of compliance, which will be in recordable form and may be recorded with the Contra Costa County Clerk-Recorder's Office, County Recorder Division after the conclusion of the review.

B.

Finding of Non-compliance. If the Director finds the applicant has not complied with the provisions of the development agreement, the Director may issue a finding of noncompliance that may be recorded by the City with the Contra Costa County Clerk-Recorder's Office, County Recorder Division after it becomes final. The Director must specify in writing to the applicant the respects in which the applicant has failed to comply, and must set forth terms of compliance and specify a reasonable time for the applicant to meet the terms of compliance. If applicant does not comply with any terms of compliance within the prescribed time limits, the development agreement will be subject to termination or modification pursuant to this article.

C.

Appeal of Determination. Within seven days after issuance of a finding of compliance or a finding of noncompliance, any interested person may file a written appeal of the finding with the City Council. The appellant must pay fees and charges for the filing and processing of the appeal in amounts established by resolution of the City Council. The appellant shall specify the reasons for the appeal. The issuance of a finding of compliance or finding of noncompliance by the Director and the expiration of the appeal period without appeal, or the confirmation by the City Council of the issuance of the finding on such appeal, will conclude the review for the applicable period and such determination will be final.

A.

After Finding of Noncompliance. If a finding of noncompliance does not include terms of compliance, or if applicant does not comply with the terms of compliance within the prescribed time limits, the Director may refer the development agreement to the City Council for termination or modification. The City Council will conduct a public hearing. After the public hearing, the City Council may terminate the development agreement and modify the finding of noncompliance, or rescind the finding of noncompliance, and issue a finding of compliance.

B.

Mutual Agreement. Any development may be canceled or amended by mutual consent of the parties following compliance with the procedures specified in this section. A development agreement may also specify procedures for administrative approval of minor amendments by mutual consent of the applicant and Director.

C.

Recordation. If the parties to the agreement or their successors in interest amend or cancel the development agreement, or if the City terminates or modifies the development agreement for failure of the applicant to fully comply with the provisions of the development agreement, the City Clerk will record notice of such action with the Contra Costa County Clerk-Recorder's Office, County Recorder Division.

D.

Rights of the Parties after Cancellation or Termination. In the event that a development agreement is cancelled or terminated, all rights of the applicant, property owner or successors in interest under the development agreement will be terminated. If a development agreement is terminated following a finding of noncompliance, the City may, in its sole discretion, determine to return any and all benefits, including reservations or dedications of land, and payments of fees, received by the City.

A.

Existing Rules and Regulations. Unless otherwise specified in the development agreement, the City's rules, regulations and official policies governing permitted uses of the property, density and design, and improvement standards and specifications applicable to development of the property shall be those City rules, regulations and official policies in force on the effective date of the development agreement. The applicant will not be exempt from otherwise applicable City ordinances or regulations pertaining to persons contracting with the City.

B.

Future Rules and Regulations. A development agreement must not prevent the City, in subsequent actions applicable to the property, from applying new rules, regulations and policies that do not conflict with those rules, regulations and policies applicable to the property as set forth in the development agreement. A development agreement will not prevent the City from denying or conditionally approving any subsequent land use permit or authorization for the project on the basis of such existing or new rules, regulations, and policies. Unless otherwise specified in the development agreement, a development agreement will not exempt the applicant from obtaining future discretionary land use approvals.

C.

State and Federal Rules and Regulations. In the event that any regulation or law of the State of California or the United States, enacted or interpreted after a development agreement has been entered into prevents or precludes compliance with one or more provisions of the development agreement, then the development agreement may be modified or suspended in the manner and pursuant to the procedures specified in the development agreement, as may be necessary to comply with such regulation or law.

The procedures for enforcement, amendment, modification, cancellation or termination of a development agreement specified in this section and in Government Code Section 65865.4 or any successor statute, are non-exclusive. A development agreement may be enforced, amended, modified, cancelled or terminated by any manner otherwise provided by law or by the provisions of the development agreement.