Article VIII — Review – Certificate of Compliance, Termination or Modification

• (a) Regular Periodic Review. The City shall review the performance of the developer under a development agreement periodically on a regular basis as determined in the development agreement or by this subsection at least once every twelve (12) months for the term of the development agreement. Ninety (90) days prior to the "established date or dates for regular periodic review" which shall be the anniversary of the effective date of the development agreement, or such other substitute date or dates, mutually agreed to by the qualified applicant or developer and City in writing for such regular periodic reviews, the developer shall submit to the Planning Director evidence of the good faith compliance with the development agreement. If the Planning Director determines that such evidence is insufficient for the Planning Director's regular periodic review, or if the developer fails to submit any evidence, then prior to seventyfive (75) days of the established date or dates for regular periodic review the Planning Director shall deliver or mail written notice to the developer of the developer's failure to submit any evidence or specifying the additional information reasonably required by the Planning Director in order to review the developer's good faith compliance with the development agreement. The developer shall have thirty (30) days after mailing or delivery of such written notice by the Planning Director in which to respond to the Planning Director. If the developer fails to provide such information to the Planning Director within the thirty (30) day period, the Planning Director shall not find that the developer has complied in good faith with the terms of the development agreement.

• (b) Special Review.

  • (1) Initiation of Review. Reviews which are other than the regular periodic reviews provided for in subsection (a) of this section are defined as special reviews and may be had either by agreement between the developer and City or by initiation of the City by the affirmative vote of the City Council, but in any event shall not be held more frequently than three times a year.

• (2) Notice of Special Review. The Planning Director shall begin the special review proceeding by mailing or delivering written notice to the developer that the City intends to undertake a special review for the good faith compliance of developer with the development agreement. He shall mail or deliver to the developer a thirty (30) day notice of intent to undertake such a special review within which thirty (30) days developer shall provide to the Planning Director evidence of good faith compliance with the terms of the development agreement. If the Planning Director determines that such evidence is insufficient for the Planning Director's review, or if the developer fails to submit any evidence within the thirty (30) day period, then within forty-five (45) days of giving the notice of intent to undertake a special review, the Planning Director shall deliver or mail written notice to the developer of the developer's failure to submit any evidence or additional information reasonably required by the Planning Director in order to review the developer's good faith compliance with the development agreement. As with the regular periodic review, the developer shall have thirty (30) days after mailing or delivering of such written notice by the Planning Director in which

to respond to the Planning Director. If the developer fails to provide such information to the Planning Director within the thirty (30) day period, developer shall not be found by the Planning Director to have complied in good faith with the terms of the development agreement.

(Ord. 1589 § 1, 7-5-1988; Formerly § 8B-22)

With respect to either a regular periodic review or a special review, if the Planning Director finds good faith compliance by the developer with the terms of the development agreement for the period reviewed, the Planning Director, upon request of developer, shall issue a certificate of compliance for such period reviewed, which shall be in recordable form and may be recorded by the developer in the official records of Santa Clara County. The issuance of a certificate of compliance by the Planning Director shall conclude the review for the applicable period for which the finding was made and such determination shall be final in the absence of fraud. (Ord. 1589 § 1, 7-5-1988; Formerly § 8B-23)

If the Planning Director does not find, on the basis of substantial evidence, that the developer has complied in good faith with the terms of the development agreement, he shall so notify the City Council and the developer. The Planning Director shall specify the reasons for the Planning Director's determination, the information relied upon in making such decision and any findings made with respect thereto. At the next regularly scheduled meeting of the City Council on which the matter is agendized, or to which it is continued, the City Council shall take one of the following actions:

• (a) Compliance. Determine on the basis of evidence presented that there has been good faith compliance by the developer with the terms of the development agreement, in which event the Planning Director, upon request of the developer, shall issue a certificate of compliance in accordance with SCCC § 17.10.230 .

• (b) Failure to Find Good Faith Compliance. If the City Council is unable to determine on the basis of the evidence presented that there has been good faith compliance by the developer with the terms of the development agreement, the City Council shall do one or more of the following:

  • (1) Additional Time. Upon receipt of sufficient justification to City Council, grant the developer additional time in which to establish good faith compliance with the terms of the development agreement at a subsequent duly called Council meeting; or

  • (2) Hearing. Set a date for a public hearing on the issue of compliance by the developer with the terms of the development agreement and the possible conditioning and/or termination or modification of the development agreement in accordance with California Government Code Section 65865.1 , which public hearing shall be conducted in accordance with SCCC § 17.10.250 .

• (Ord. 1589 § 1, 7-5-1988; Formerly § 8B-24)

The City Council shall, within ninety (90) days of the City Council's setting a date for a public hearing in SCCC § 17.10.240(b)(2) , conduct a public hearing at which the developer shall have the opportunity to demonstrate good faith compliance with the terms of the development agreement on the basis of substantial evidence presented to the City Council. The burden of proof of this issue is upon the developer.

(Ord. 1589 § 1, 7-5-1988; Formerly § 8B-25)

The City Council shall determine upon the basis of substantial evidence whether or not the developer has complied in good faith with the terms and conditions of the development agreement. (Ord. 1589 § 1, 7-5-1988; Formerly § 8B-26)

• (a) Compliance. If the City Council finds and determines on the basis of substantial evidence that the developer has complied in good faith with the terms and conditions of the development agreement during the period under review, the review for that period is concluded and such determination is final in absence of fraud.

• (b) Noncompliance. If the City Council finds and determines on the basis of substantial evidence that the developer has not complied in good faith with the terms and conditions of the development agreement during the period under review, the City Council may allow the development agreement to be continued by imposition of new terms and conditions intended to remedy such noncompliance or to be otherwise modified, by the mutual consent of the developer and the City or the City Council may unilaterally terminate the development agreement or take other action authorized by Government Code Section 65865.1 . The City Council may impose such terms and conditions to the action it takes as it considers necessary to protect the interests of the City. The decision of the City Council shall be final. The rights of the parties after termination shall be as set forth in SCCC § 17.10.370 .

• (c) Ordinance. Any termination, modification or imposition of new terms and conditions pursuant to this section shall be by ordinance. The ordinance shall recite the facts, findings, information relied on and/or the lack thereof, and the reasons which, in the opinion of the City Council, make the termination or modifications or imposition of new terms and conditions of the development agreement necessary. The enactment of such an ordinance by the City Council shall be final and conclusive as to its effect on the subject development agreement. Not later than ten days following the adoption of the ordinance, one copy thereof shall be forwarded to the developer. The development agreement shall be terminated, or the amendments to the development agreement shall become effective, on the effective date of the ordinance or as otherwise provided in such ordinance.

• (Ord. 1589 § 1, 7-5-1988; Formerly § 8B-27)

If the City Council finds good faith compliance by the developer with the terms of the development agreement, the Planning Director upon request of the developer shall issue a certificate of compliance, which shall be in recordable form and may be recorded by the developer in the official records of the County of Santa Clara.

(Ord. 1589 § 1, 7-5-1988; Formerly § 8B-28)