Part 2 — HEARING

A.

Notice of the intention to consider the adoption of a development agreement shall be given in accordance with this section.

B.

The notice shall contain, at least, all of the following information:

The time and place of the hearing before the planning commission and the city council;

The real property location; and

A brief description of the project proposed to be subject to the development agreement.

C.

The notice shall be:

Published at least once in a newspaper of general circulation in the city; and

Mailed to all persons shown on the last equalized assessment roll as owning real property within three hundred feet of the real property which is the subject of the proposed development agreement.

D.

Such notice shall contain such additional information as the director, in the director's discretion, may determine to be appropriate.

E.

Notice of hearings shall be mailed, postage prepaid, at least ten calendar days before the date set for the hearing by the planning commission.

F.

The failure of notice upon any person entitled to notice required by law or these regulations does not affect the authority of the city to enter into a development agreement.

(Ord. 28986.)

No action, inaction or recommendation regarding the proposed development agreement shall be held void or invalid or be set aside by a court 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 is of the opinion 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 not a presumption that error is prejudicial or that injury was done if error was shown.

(Ord. 28986.)

After its hearing, the planning commission shall make its recommendation on the proposed development agreement to the city council.

(Ord. 28986.)

A.

After its public hearing, the city council shall determine whether or not to approve and authorize the proposed development agreement. The city council shall not approve the development agreement unless it makes all of the following findings:

The proposed development is consistent with the general plan and all applicable specific or area plans; and

The proposed development should be encouraged in order to meet important economic, social, environmental or planning goals of the city; and

The development agreement would facilitate the development of the subject property in the manner proposed; and

The proposed development meets all of the findings listed for criteria a. or b. or c. below.

a.

i.

The developer will incur unusually substantial costs in order to provide public improvements, facilities or services from which the public will benefit; and

ii.

The developer has made commitments to a very high standard of quality and agreed to development limitations beyond that required by existing city zoning code; or

b.

The development will make a substantial contribution to the economic development of the city in that it:

i.

Will create new, net permanent jobs located within the city, will create substantial new, net revenues for the city, or will retain a substantial number of existing permanent jobs within the city; and

ii.

Is located on a legal parcel of at least five acres; or

c.

i.

The development houses a point of sales office that will generate sales tax revenue for the city or will be used as a corporate headquarters by the primary user of the development; and

ii.

Is located on a legal parcel of at least five acres or will consist of at least two hundred thousand square feet of new development; and

The subject development agreement is consistent with this chapter.

B.

Even if all of the findings set forth in Subsection A. can be made, the city 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.

The city council may add, modify or delete any provision of the proposed development agreement as a condition of approval.

(Ord. 28986.)

A.

If the city council approves the development agreement, it shall do so by the adoption of an ordinance authorizing the city clerk to execute the development agreement.

B.

After the ordinance approving the development agreement takes effect, the city clerk shall execute the agreement on behalf of the city. The effective date of the agreement shall be the effective date of the ordinance unless a later date or the occurrence of an event is specified in the agreement as the effective date.

C.

If the property is located outside of the city, the application for a development agreement shall be acted upon by the city only if the property is in the urban service area as designated on the general plan. The agreement shall be conditioned upon the annexation of the property becoming effective. If such annexation does not become effective within one year of the ordinance approving the development agreement, the development agreement shall terminate.

(Ord. 28986.)

A.

Any development agreement may be amended or cancelled in whole or in part, by the mutual consent of the parties to the agreement or their successors in interest. The procedure for an amendment or cancellation shall be the same as the procedures for approval, except for the findings required to be made pursuant to Section 18.02.240A. above. An amendment may be granted upon a finding by the city council that an amendment is consistent either with the general plan and zoning codes in effect at the time the ordinance authorizing the agreement was adopted or at the time of any amendment. Review of an amendment shall be limited to consideration of those elements proposed to be added or changed.

B.

The issuance of any land use approval or permit which approves a change in the term, permitted uses, density or intensity of use, height or size of buildings, provisions for reservation and dedication of land, conditions, terms, restrictions and requirements relating to subsequent discretionary actions, monetary contributions by a developer or in any other vested element set forth in the development agreement, shall require an amendment to the development agreement from such change to be vested.

C.

Any change in the design elements not specified in the development agreement shall not require an amendment of the development agreement. The director of planning shall make the determination as to whether an amendment is necessary.

(Ord. 28986.)

A.

Failure or unreasonable delay by the developer to perform any term or provision of the development agreement shall constitute a default. Except in cases where the developer's breach of this agreement presents a threat of imminent harm to the public, the city manager shall give the developer not less than thirty days' notice in writing specifying the nature of the alleged default and the manner in which said default may be satisfactorily cured.

After notice and expiration of the thirty-day period, the city, at its option, may institute legal proceedings for specific performance or other injunctive or declaratory relief to enforce the agreement.

As an alternative to this default procedure, the city may hold a compliance review pursuant to Part 3 of this chapter.

B.

In the event city does not accept application for, review, approve or issue necessary development permits or entitlements for use to a developer, as required by and in accordance with the terms of a development agreement or the city otherwise defaults under the terms of the development agreement as to such developer, such developer shall not be obligated to proceed with or complete the improvements required under the development agreement, or any phase thereof, nor shall resulting delays in such developer's performance constitute grounds for termination or cancellation of the development agreement. In addition, such developer may, at developer's option, institute legal proceedings for specific performance or other injunctive or declaratory relief to enforce the agreement.

C.

Nothing herein shall limit any legal right under a cooperative agreement underlying an assessment district or similar agreement entered into between the city and the developer for the project.

(Ord. 28986.)

A.

Within ten days after the effective date of the development agreement, the city clerk shall have the agreement recorded with the county recorder.

B.

If the parties to the agreement or their successors in interest amend or cancel the agreement as hereinabove provided, or if the city terminates or modifies the agreement for failure of the applicant to comply in good faith with the terms or conditions of the agreement, the city clerk shall have notice of such action recorded with the county recorder.

(Ord. 28986.)