Windsor Municipal Code Art. 2 Agreement

a. A development agreement shall specify its duration, the permitted uses of the property thereunder, the density and/or intensity of use, the maximum height and size of proposed buildings, 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 such dedication or improvements.

b. A development agreement may also include conditions, terms, restrictions and requirements for subsequent discretionary actions (provided such conditions, terms, restrictions and requirements do not prevent the development of the land subject to the development agreement for the uses and to the density or intensity of development set forth in the agreement) but does not affect the developer's responsibility to obtain land use approvals required by the Town's ordinances.

c. A development agreement may include conditions and restrictions imposed by the Town 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 California Environmental Quality Act, in order to eliminate or mitigate adverse environmental impacts of the project.

d. 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 of any phase thereof be completed within a specified time.

e. A development agreement may include a requirement for the developer's payment of on-going 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.

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

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

h. A development agreement is a contract that is negotiated and voluntarily entered into by Town and developer and may contain any additional or modified conditions, terms of provisions agreed upon by the parties, including sanctions for failure to meet requirements.

i. A development agreement may include conditions relating to financial guarantees for performance of obligations thereunder.

(Ord. No. 92-23 § 11)

a. 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. 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.

c. Where the Town initiates the proposed amendment to or cancellation in whole or in part of the development agreement, it shall first give notice to the developer of the Town's intention to initiate such proceedings in the manner set forth in Section 16-1-125.

d. In the event that a development agreement is cancelled or terminated, all rights of the developer under the development agreement shall terminate. Except as otherwise provided in the development agreement, the Town may, in its sole discretion, determine to retain any and all benefits, including reservations or dedications of land, improvements constructed and payments of fees, received by the Town.

e. Notwithstanding the above paragraph, any termination of the development agreement shall not prevent the developer from constructing or completing a building or other improvements authorized pursuant to other validly issued permits, approvals or entitlements, but the Town may take any action permitted by law to prevent, stop, or correct any violation of law occurring after cancellation of the development agreement.

(Ord. No. 92-23 § 12)

a. Within ten (10) days after the Town enters into the development agreement, the Town Clerk shall submit for recording the agreement with the County Recorder.

b. If the parties to the agreement or their successors-in-interest amend or cancel the agreement or if the Town terminates or modifies the agreement for failure of the developer to comply in good faith with the terms of conditions of the agreement, the Town Clerk shall submit for recording the notice of such action with the County Recorder.

(Ord. No. 92-23 § 13)

The Town Council shall review all development agreements annually.

a. Applicant's Submission. Upon request of the Planning Director, the applicant shall submit evidence of the applicant's good faith compliance with the development agreement and notify the Planning Director in writing that such evidence is being submitted to the Town pursuant to the annual review requirements of this section. Said notification shall be forwarded within thirty (30) days of receipt of the Planning Director's request, and shall be accompanied by a processing fee in an amount set by resolution of the Town Council. Developer shall have burden of proof on the issue of compliance.

b. Finding of Compliance.

1. If the Planning Director finds good faith compliance by the developer with the terms of the development agreement, a certificate of compliance shall be issued, which shall be in recordable form and may be recorded by the developer in the official records. The issuance of a certificate of compliance by the Planning Director, the expiration of the appeal period without the filing of an appeal, or, if appealed, confirmation by the Town Council of the issuance of the certificate, shall conclude the review process.

2. A summary report of the annual review shall be prepared by the Planning Director and placed on the Town Council agenda for acceptance.

c. Finding of Noncompliance.

1. If the Planning Director on the basis of substantial evidence, finds the developer has not complied in good faith with the terms of the development agreement, the Planning Director shall specify in writing to the developer the terms with which the developer has failed to comply. The Planning Director shall also specify a reasonable time for the developer to meet the terms of compliance.

2. If such areas of noncompliance are not addressed within the reasonable time limits as prescribed by the Planning Director such that the Planning Director determines that the developer is not in compliance, the matter should be referred to the Town Council to conduct a public hearing at which the developer must demonstrate good faith compliance with the terms of the agreement. The burden of proof is upon the developer. The Town Council shall determine upon the basis of substantial evidence whether or not the developer has, for the period of the review, complied in good faith with the terms of the agreement.

3. If the Town 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 agreement during the period under review, the review of that period shall be concluded. If the Town 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 agreement during the period under view, the Town Council may modify or terminate the agreement.

d. Appeal of Director's Determination. Any interested person may file an appeal of the issuance of a certificate of compliance by the Planning Director to the Town Council within ten (10) days after such issuance.

(Ord. No. 92-23 § 14: Ord. No. 2003-165 § 1)

a. Unless otherwise provided by the development agreement, the Town's rules, regulations and official policies governing permitted uses of the property, density and design, and improvement and construction standards and specifications applicable to development of the property shall be those Town rules, regulations and official policies in force on the effective date of the development agreement.

b. A development agreement shall not prevent the Town, in subsequent actions applicable to the property, from applying new rules, regulations and policies which do not conflict with those rules, regulations and policies applicable to the property set forth in the development agreement.

c. A development agreement shall not prevent the Town 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.

(Ord. No. 92-23 § 15)

a. Any judicial review of an ordinance approving a development agreement shall be by writ of mandate pursuant to Code of Civil Procedure Section 1085; and judicial review of any Town action taken by the Town pursuant to this ordinance, other than the initial approval of a development agreement, shall be writ of mandate pursuant to Code of Civil Procedure Section 1094.5.

b. Any action or proceeding to attack, review, set aside, void or annul any decision of the Town taken pursuant to this ordinance shall not be maintained by any person unless the action or proceeding is commenced within ninety (90) days after the date of the decision.

(Ord. No. 92-23 § 17)