Ordinance 1256
ORDINANCE N0. 1256
AN ORDINANCE OF THE CITY OF CUPERTIt10 ADDING
CHAPTER 20.04 TO THE CUPERTINO MUNICIPAL
CODE, DEVELOPMENT AGREEMENTS
THE CITY COUNCIL OF THE CITY OF CUPERTINJ DOES t1ERE0Y ORDAIN that
Section 20.04. entitled "Development Agreements." shall be added to
the Cupertino Plunicipal Code to read as per the attached.
INTRODUCED at a regular meeting of the Clty Council of the ClLy
of Cupertino this 21st day of February, 1984 and ENACTED at a regular
meeting of the City Council of the City of Cupertino this 13th day
of ~r~cih . 1984 by the folloxing vote: Y
Vote tfembers of the City Council
AYES: Gatto, Johnson. Plungy
NOES: None
ABSENT: Rogers. Sparks
AUSTAIN: None
APPROYEDs
t y r. y of Cuper
ATTEST:.
Ci lerk
~,
Title 20 ,
r . ~... Develo~ent Aaraementa - ' , ~'
... ,.. :, .. Chapter 20.04 . -:. ~ :~~~:;~ ~~~
PORPOSE
:.....
Sectionsz
;.;
. ~ _.. _ _. _ .-. a,~~..
20.04.010 Pindings and Declaration of Intent
.....
20.04.020 Purpose of Development Agreement
20.04.010 Findings and Declaration of intent.
ta) The California Legislature in Section 65864
of the Government Code has found that the lack of
certainty in the approval of development projects can
result in a waste of resources, escalate the coat of
housing and other development to the consumer, and
discourage investment in and commitment to comprehensive
planning which would make maximum efficient utilisation
of resources at the least economic cost to the public.
The City Council finds and determines that under
appropriate circumstances, Development Agreements will
strengthen the public planning process, encourage
private participation in comprehensive planning by
providing a greater degree of certainty in that process,
reduce the economic costa of development, allow for the
orderly planning of public improvements and services and
1
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the allocation of coats therefor in order to achieve the.
maximum utilization. of public snd private resources in
the development process, and assure, to the extent
feasible, that appropriate measures to enchance and
protect the environment of the City are achieved.
(b1 The City Council further finds and determines
that the public safety, health, convenience, comfort,
prosperity and general welfare will be furthered by the
adoption of this Title in order to provide a mechanism
for the enactment of Development Agreements to
accomplish the foregoing purposes and aims and the
realization of the benefits to be derived therefrom.
20.04.020 Purpose of Development Agreement.
Development agreements enacted pursuant to this
Title are to ensure to the applicant for a development
project that upon approval of the project, the applicant
may proceed with the project in accordance with existing
policies, rules and regulations, and subject to
specified conditions of approval, in order to implement
the intent of the City Council in enacting this Title.
Development Agreements will also ensure that all
conditions of approval, including the construction of
offsite improvements made necessary by such land
developments, will proceed in an orderly and economical
fashion to the benefit of the City.
2
~ e
t:° ~ ._.... Chanter 20.08, .,. ~, _
AUTHORITY-=FOR ADOPTION - ~:~ ~~;-~r~,«~~~~
Seat ones.- ~aw~-t~ r. ,~3:~;
r _>.20, 08.010. . Authority. for Adoption _ , r ~,~,~
20.08.010 Authority for Adoption. -;;.This Title is
adopted ,under ,the authority. of Government. Code
SS 65864-65869.5- ,,,
Chanter 20.12 ,; .,
r ,;_: r°< ~ DBFIDIITIONB . <?„ ("~ j
Sections: ~ ;. nor I., x;'
20.12.010 Definitions - -•
20.12.010 Definitions. The following terms when.
used. nthis Title shall have. the following respective
meanings:...
ta) "City' means the City of Cupertino, a _.
municipal corporation organized and existing under the ,
Constitution and laws of the-State of California=
tb) "City Council" means the City Council of the
Cityj
3
(c) "Developer" means a Qualified Applicant who
has entered into a Development Agreement pursuant to the
procedures specified in'.this.Titles -
(d) "Development Agreement• manna a development
agreement enacted by legislation bat»aen the City-and-a
Qualified Applicant pursuant to Goverment Code Sections
65864-65869.5=
`"(e) "Person" weans an individual, group,•'-
partnership, firm, association, corporation; trust,'' °•
governmental agency, governmental official, --
administrative body, or tribunal or any other form of
business or legal entity...
(f) "Planainq Cammisa?.on"-means the Planning
Commission of the City established pursuant to the
ordinances of City. ---
(q) "Planning Director" means the Planning
Director of the City duly appointed pursuant to the
City's ordinances.
"'(h) "Qualified Applicant" is a Person who has a
legal or equitable interest in the real property which"
is the subject of the Development Agreement, determined.
pursuant to Section 20.20.030 of this Title. Qualified
Applicant includes an authorized'agent.
Chapter 20.20
4
APPLICATION8 AND PORMB ~~;-:
sections:
:,,20.20.010 Porms and.Information ,
20...20.020 ...Fees
20.20..030 Qualification as an Applicant.- .,- ~,-,.
.20.20.040. Proposed Form of Development Agreementr!
20.20_.050 Review of Application
20.20.Ob0 Contents of Development Agreement
• 20.20.010 Forms and information.. ta) The ~.
Planning Director shall prescribe the form of each
application, notice and documents provided for oz -
required under this Title for the preparation and
implementation of Development Agreements consistent rith
the provisions of this Title.
(b) The Planning Directoz may require an
applicant for a Development Agreement to submit such
information and supporting data as the Planning
Director, City Council and other City agencies to which
the application is referred under this Title consider
necessary properly to process the application.
20.20.020 Fees. The City Council shall by
separate resolution £ix the schedule of fees and charges
imposed for the filing and processing of each app11- >.
5
cation and document:; provided.:iror_:or required under this
Title.
20.20.030 Qualification as an Applicant.`"(a)
Only a Qualified Applicant may file an application to
enter into a Development Agreement. The Planning
Director may require an applicant to submit proof of his
interest in the real property and of the authority of
the agent to act for the applicant. Such proof may
include a title report, policy or guarantee, issued by a
title company licensed to do business in the State of
California evidencing the requisite interest of the
applicant in the real property. Before processing the'
application, the Planning Director shall obtain the
opinion of the City Attorney as to tie sufficiency-o>=`
the applicant's interest in the real property to anter-
into the Development Agreement as a Qualified Applicant
hereunder.
(b) other Parties. in addition to the City and
Developer, any federal, state or local governmental
agency or body may be included sa a party to any
Development Agreement. Any such additional party shall
be made a party to the Development Agreement pursuant to
the provisions of the Joint Exercise of Powers Act
tGovernment Co3e 56500, et seq.) providing for joint
powers agreements, or provisions of other applicable
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federal',-"state or local law, in order to"create a
legally binding'agreement between such parties.
'-20:20.040- Proposed Form of Development Agreement.
Eaah application shall be accompanied by the form of
Development Agreement proposed by applicant.- This
requirement may be met by designating the City's then
standard form of Development Agreement and including
specific proposals for changes in or additions to the
language of the standard form or by submitting a form of
Development Agreement prepared by the applicant and
proposed to be used under this Title. Any such
Development Agreement prepared by an applicant shall
"contain the provisions required under this Title and
shall also include the following:
l) The parties to the Development Agreement=
-2) The nature of the applicant's legal or
equitable interest in the real property
_. __ conistituting such applicant as a Qualified
Applicant hereunder]
• .. 3) A'description of the development project
sufficient to permit the Development Agreement
to be reviewed under the applicable criteria
of this Title. Such description may include,
`but ds not limite8 to, references to site and
building plans, elevations, relationships to
7
.adjacent properties and operational data.
;Whera appropriate, sash description may
distinguish between elements of the
,-development project which are proposed-to be
., ~. fixed under..the:Development Agreement, hose,:
.~= which may vary and the standards and criteria
,, _ ,, ~ pursuant to which the same: may be- reviewedr
._, ,4) An identificatioa of the approvals and:.:
,;.;;r :;; permits for the development project. enacted-to
,_ _ he date of or contemplated by the Development
._.,, Agreements
5) The proposed duration of the. Development ,
•- Agreement;
;;,, .. ; 6) A program and criteria:, for periodic review
under this Title;
-:.,7).,Appropriate:.provisions guaranteeing or
~, ;;,:,securiag performance of the Development
Agreement on the part of the Developers
8) Proposed specific standards for periodic
review of a Development Agreement;
-•-:; 9) Proposed specific standards to insure
~..-.=. - compliance by the parties to a Development
Agreement)
10) Any other relevant information which may
_; be deemed necessary by the Planning Director
-; ;.-pursuant to this Title.
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`` 20x20:050 `Review of Application. "
~` ~'~~~'~(a) '' The Plsnninq DiYecCOr~ shall." endorse" on the '`"
appYi`chtion the date it is received. Be shall review "`
the application and may reject it if it is incomplete or
inaccurate for processing. If he finds that the
application is complete he shall accept it for filing.
The Planning-Director shall review the application and
detezmine any additional requirements necessary to
complete the form of Development Agreement. After
receiving tha required information, he shall prepare a
staff report and recommendation and shall state whether
or not the Development Agreement as proposed, or in"an '
amended'fornt (specifying the nature of the amendments),'
would be consistent-with the general plan and-hay ' '"
applicable specific plan, under the provisions of this'
Title,... -
(b) The Planning Director shall, as part of'his
review of the application, circulate copies of thee
proposed'Development Agreement to those City departments
having jurisdiction over the development project'to be
undertaken pursuant to the Development Agreement for "
review and comment by such City agencies. The City
Attorney shall also review the proposed Development
Agreement for legal sufficiency and shall prepare a
proposed ordinance authorizing the City to enter Ynto~
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the Development Agreement for action by the City Council
upon hearing thereof as specified by this Title,. The
atagf, report and recommendation of the Planning Director
shall include any, appropriate recommendations received;.
by other City agencies and the proposed form of
ordinance prepared by. the City Attorney.
20.20.060 Contents of Development Agreement.
(a) A Development Agreement shall specify ita~
duration, the permitted uses of the property thereunder,
the density and/or intensity of use, the maximum height
and siae of proposed buildings, and. provisions .for
reservation or dedication of land for public purposes.,..
A Development Agreement may also include conditions,,,,.
terms,,.restrictions, and requirements for subsequent
discretionary actions, provided that such conditions. _
terms, restrictions and requirements for subsequent
discretionary actions shall not prevent development of
the land. for the uses and to the density or intensity of
development set forth in the.Devalopment Agreement. ..
(b) A Oevelopment Agreement shall include all .. ,._
conditions imposed by the City with respect to the
development project.
(c) All Development Agreements sha1L contain._
anindemnity and insurance clause in form and substance
acceptable to the City Attorney, requiring the Developer
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to indemnify the City against claims arising out of the
development process, provided that, such a provision
does_gok violate applicable law or constitute a joint
venture, partnership or other participation in business
affairs of Developer by the City.
,(d) All Development Agreements, or any part of
such;Developsaent Agreements, may be subject-to
subsequent condemnation proceedings by the City.
Chapter 20.T4
,, ;. HEARING HEFORH PLANNING COM!lISSION"
-Sectioaes_ _
-.; 10.-24-.010 Public Hearing ~,
20.24.020 Reviewt Standard
,,..,_20.24.030. Recommendation by Planning Commission
20.24.010 Public Heazina. All Development
Agreements shall be considered at a public hearing
before the Planning Commission pursuant to the
procedures described in Chapter 20.32 of this Title.
20.24.020 Reviewt Standard. The Planning
Commission may recommend use of a Development Agreement
as a method of implementing or providing standards and
criteria for any approval of the Planning Commission or
permits or approvals issued or made by any other City
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agency, including: ',
-. 1) Rezoning=.
,.. 2): Issuance of~a conditional use permit; --
-• 3) Conditions imposed upon"approval of a"
permit after discretionary review; --
., ,. _, 4) Conditions imposed in connection with the
adoption of any general plan amendment or ''`
.,.specific plans
5) Conditions imposed in any planned unit
development district;
6) Site-specific conditions imposed in any
other district;
7) Approval of and/or conditions imposed upon
approval of a subdivision or parcel map or
mope=
-.,.-- 9) The formation of any aeaeeament district,
benefit district, maintenance district or
special benefit district or any other
"procedure, for the installation of required'ot
necessary on- or off-site improvements or`
. ~ infrastructure; and/or
9) Mitigation measures imposed upon a
development project"after approval of an
environmental impact report is which such
-mitigation measures have bean proposed ae a
mechanism for eliminating or reducing
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eavironcaental impacts, or the criteria for
::development of the project without ouch
mitigation measures where specific economic,
:- social or other considerations make ouch
„ : ;mitigation measures infeasible or the benefits
of the project outweigh the unavoidable
adverse environmental effects.
20.24.030 Recommendation by Planning Commission.
After the hearing by the Planning Commission, the
Planning Commission shall make its recommendation in
writing to the City Council. The recommendation ahalL
include the Planning Commission's determination whether
oz not the Development Agreement.proposed:'.
1) Is consistent xith the objectives,
policies, general land uses and programs
specified in the general plan and any.
~,:~:_ applicable specific plans
>,.~+ 2) Is compatible xith.the uses authorized-in,
,, and the requlatioas prescribed foz, the land -
- - use-district in which the real property is .=
or will be located;
3) Is in conformity with and will promote
.;;-,_,public convenience, general welfare and good
-landuae practice;
,_ -:4) Will be detrimental to the-health,'aafety
_ and general welfarei
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5) Will adversely affect the orderly
;c development of property or the preservation of
.. ; ~ property, values= and
... 6). Will promote and encourage the development
r of the .proposed project by-providing a greater
<.degree :of requisite certainty.
Chanter- :20:28
~,.;, SEARING BEFORE CITY CODNCIL ..,
,. , _ _ ... z,; ., _ e
sectionea , .,.
.:.,;20..28010::.Ordinances Public Hearing: _ ~.;ra;
20.28.020 Conduct of Hearing ~ ...~ ..
20.28.030 Consistency tirith General and
Specific Plans
20.28.010 Ordinances Public Hearing. A
Development Agreement is a legtalative-act and shall be
enactad.by ordinance only after a public hearing before
the City Council. .The. ordinance shall zefer to and
incoiporate;bp reference the text of the`Development
Agreement.
. ;; 20:28.020 Conduct of Hearing. At the hearing,
the City Council shall consider the Planning Com-
mission's recommendation together with any additional
public testimony, and may approve, disapprove or modify
14
any recommendation of the Planning Commission. `If
publid testimony is presented on an issue which was not
considered by the Planning Commission, then the City
Council may refer the issue back to the Planning.
Commission for further hearings and recommendatipns.
20.28.030 ConaiatencY with General and Specific
Plana. Before the City Council may approve the
Development Agreement, it must find that its provisions
are consistent with the general plan and any applicable
specific plans of the City. If the Citf Council
approves the Development Agreement in the form
recommended by the Planning Commission, without further
findinaa, than it shall be deemed to have also adopted
.. _.
the findings of the Planning Commission
.4.x.7
~ ~
i~ ... ~ ". ~. Xis-Pi
.,..~ fii' :. F.
Chapter 20.32
_~. NOTICE PROVISIONS AND
. _ PROCEDURE POR
_. _. PUBLIC BEARINGS BEFORE
PLANNING COMMISSION OR CITY COUNCIL
Sections: .
15
20.32.010 Notice -.
. :,:20.32..020.. Form and.Time•of Notice of Intention ao
' Consider Adoption of Development
_,~~ ~_~ .~ Agreement ..; ,. ,:~
20.32.030 Failure to Receive Notice
,,_...
20.32.040 Rules Governing Conduct of Hearing
20.32.050 Irregularity in Proceeding
"~ 20.32.010 Notice. The Planning Director shall
give all notices of the City's intention to consider
adoption of a Development Agreement and of any other
public hearing required by law or this Title.
20'.32.020 Porm and Time of Notice of intention to
`Consider Adoption of Development Aareement.
(a) Form of Notice. The form of notice of
intention to consider adoption of a Development
Agreement before the Planning Commission or City Council
shall contain:
1) The time and place of this hearing;
2) A general explanation of the matter to be
considered including a general description of
the area affected;
3) The location or locations where a copy of
the proposed Development Agreement may be hads
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,,,, ;4) Other information required by specific
provisions of this Title or which the Planning
_;,;.,Director considers necessary or desirable.
,. „;(b) Time and Manner of Notice.. The time sad ;
manner,: of;giviaq,notice is bys
1) Publication or Dostina. Publication+at
least: once is a newspaper. of general _ .
,, ,, - circulation, published and circulated in the'
City or if there is none, posting in at
least 3 public places in the City..
..; 2) Mailing. Mailing of the notice to all
„,. ,_-;Persons shown on the last equalised assessment
„-, -_roll as owning real property within 300 feet
of the property,arhich is the subject of the -'
proposed Development Agreement. If the number
-~-of owners to whom notice is to be mailed is
__ .;greater than 1,000, the Planning Director-may.
as an alternative provide notice is the manner
;,eet forth in 565854.5(b) of the Government
-.Code, or applicable successor Code pzovision.:
fc3 Additional Notice. The Planning Commission
or City Council, as the case may be, may direct that
notice of the public hearing to be held before it-shall"-
be given in a manner that exceeds the notice
requirements prescribed by state lew, but failure to
provide such additional notice shall not invalidate a
17
Development Agreement antere into by the City under
20.32.030 Pailure t ceive Notice, the failure
of any Person to actuall re eive notice required by law
or this Title shall not ff ct the authority of the City
to enter..intoa Devel en Agreement'.
20.32.040 R ea Go ruin Cohduct of Hearin s.
A1L the-public he rings unde?r this Chapter shell be
conducted in acc rdance with~the procedure and the time
limits apecifi for the conduct of zoning hearings in
accordance wi Ordinance 6~2 of the Planning Code. A
copy. of any oposed Development Agreement shall be made
available f r public review ~ the Department of City
Planning.p for to any hearing hereon.
-. 20 32.050 Irre ularit In Proceedin Formal'"
rules of evidence or procedurq which must be folloaed'iA
i
this Title.
. :ld): Declaration of ~zistina Law." Th notice
requirements referred to ,in subaections_( and-tb) are
declaratory of existing law (Govt. Code,~565867'and
SS65854, 65854.5 and: 65856 as incorpcuated by
reference.) If and whe 3tatelaw~prescribes a
different notice requir nt~`no~~ce shall be given in
i
that manner.
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Development Agreement entered Into by the Clty under this Title.
td) Declaration of Existing [aw. The notice requirements
referred to in subsections (a) and (b) are declaratory of existing
law (Govt. Code Section 65867 and Subseotiona 65854. 65854.5 and
65856 as incorporated by reference.) If and when State law
prescribes a different notioe requirement. notice shall be given in
that manner.
20.32.030 Failure Lo Reoeive Notice).. The failure of any Person
to actually receive notioe required by law or this Title shell not
affect the authority of the City to enter into a Development
Agreement nor invalidate a Development Agreement entered into by the
City under this Title.
20.32.040 Rules Governing Conduct of Hearings. All the public
hearings under this Chapter shall be conducted in accordance with the
procedure and the Lime limits specified for the conduct of inning
hearings in accordance with Ordinance 652 of the Planning Code. A
copy of any proposed Development Agreement shall be made available
for public review at the Departrent of Clty Planning prior to any
hearing thereon.
20.32.050 Irregularity in Proaeedin~. Formal rules of evidence
or procedure which must be followed in
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•
a court of law shall not be applied in the consideration
of a proposed Development Agreement under this Title and
the prQVisions of-this Chapter shall provide the
procedure for such consideration. No-action, inection
or recommendation regarding the proposed Development
Agreement shall be held void or invalid or be set aside
by a court on the ground of the improper admission or
rejection of evidence or by reason of any error,
irregularity, informality, neglect or omission l"error")
as to any matter pertaining to the application, notice.
finding, record, hearing, report, recommendation, or any
matters. of procedure whatever unless after an
exam#aation of the entire. case, including the evidences--
the-:court finds 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 no presumption that error is prejudicial or
that .injury resulted if error is shown. " -•~"
Chapter 20.36 _:., ,
PSRZODIC AEVIBW ,~.. ,~~, ~~
Sections s - _ ~ r.r. i ° f ° -:
19
.20.36.010 Tims for and Initiation of Review-
20.36..020 Finding of Complianca~ Appeal
20.36.030 Finding. of Non-compliancs~-Appsal<
_-2Q.36.040- Appealof Determination
20.36.050 Reference. to Planning Ccmmieaion -
20.36.010 Time for-and Initiation of Review. The
Plannninq Director shall review the Development
Agreement annually in order to ascertain the good faith
compliance by the Developer with its terms. The time
for review may be modified by the City Council at any "
time upon reasonable notice to the Developer, and the
Development Agreement may prescribe a procedure and
standards and different times for review of compliance
with its terms= provided, however,'that a Development-
Agreement shall in any event be reviewed for compliance
at least once every twelve (12I months.
20.36.020 Findina of Compliances-Appeal. If =
the'Planning Director finds good faith compliance by the
Developer with the terms of the Development Agreement,
he shall issue a certificate o! compliance, which shall.
be in recordable form and may be recorded by the
Developer in the Official Records. The iseuanca of a
certificate of compliance by the Planning Director and:
the expiration of the appeal period hereinafter
20
specified-without appeal, or the confirmation by the
City; Council. of the issuance of the certificate on such
appeal, shall conclude the review foz the applicable.,-•::
period: and suchdetermiaation shall be fiaal.
20.36.030 Finding of Non-compliance. if the
Planning Director, on basis of substantial evideace,
ffada:tha Developer has not complied in good faith .~:•::~
withthe terms of the Development Agreement, ha shall •;-
specify is writing to the Developer the respects, in
which Developer has failed to comply. The Planning.:.
Director shall also specify a reasonable time for the.'
Developer. to meat the terms of compliance. xE:auch . ;
areas ofnon-compliance are not perfected within the,<
reasonable time limits as prescribed by. the Planning -_
Director, the Development Agreement shall be subject to
cancellation pursuant to Chapter 20.40 of this
Title..: • ,
_.20.36.040 Appeal of Determination. Any inter-..._
sated Person may file an appeal of the iasuance,of a.:.,:
certificate of compliance to the City: Council within ten
(10) days after the certificate's issuance. The
Developer may also file an appeal to the City Council of
the finding of the Planning Director of non-compliance
within ten (10) days after the giving of notice of such
21
•
determination. All appeals before the City Council""=
shall be conducted pursuant to a noticed hearing in the
same manner as any other appeal before the-City Connol,
ac which evidence shall be taken and-findings thereon
made.
=20.36:050 Raf.rence to Planning Commi~sion.c:~The
Planniag:Dizector may-refer any review to be conducEed'
hereunder:to the Planning Commission.' Such referral'°"
shall be made by the Planning Director together with"
a staff report of the Planning Director's preliminary "`
findings. Dpon such referral, the Planning Commission
shall'aonduct a noticed public hearing to determine-the
good:faith compliance by the Developer with 'the terma'Of
the •Development`Agreement in accordance with the
provisions of this Chapter"and aha1L direct the issuance
of a certificate of compliance pursuant to Sectfon
20.36.020 upon a finding of good faith compliance; or -
make the determination of non-compliance on the basis of
substantial evidence pursuant to Section 20:36.030. Any
such decision by the Planning Camnmission shall be'
snbjeot to appeal to the City Council in the same manner
as any such decision by the Planning Director hereunder.
'Chapter 20.'40
22
•
., CANCBLLATION OR MODIFICATION -
;Sgationas _ .. ., .. .. ,. .._ ~;~~
20.40.010 Cancellation or Modification by;Mntuarb
Consent
20.40.020 Cancellation by the City
20.40.030 Rights of the Parties After
Cancellation or Termination
20.40.010 Cancellation or Modification by Mutual
Consent. Any Development Agreement may be cancelled or
modified by mutual consent of tha parties, but only in
the manner provided in California Government Code
Section 65868. Any proposal to cancel or modify a
Development Agreement shall be heard and determined in
accordance with the same procedures specified by this
._
Title for approval of a Development Agreement.
20.40.020 Cancellation by the City.
(a) If at any time during the term of a
Development Agreement, the Planning Director finds,
on the basis of substantial evidence, that the Developer
has not complied in good faith with the terms and
conditions of the Development Agreement, and such
non-compliance has not been cured under Section
20.36.030, the Planning Director shall pursuant to-the
notice provisions of this Title request that the
23
Planning Commission conduct a public hearing at which
the Developer must demonstrate good faith compliance
with the terms of the Development Agreement. The burden
of :proof by substantial avidence of compliance by the
Developer is upon the Developer. If such compliance
cannot be shown, the Planning Commission shall recommend
to the City Council-that the City Council either
commence proceedings to cancel the Development Agreement
or recommend new terms and conditions intended to remedy
the non-compliance.
tb) The City Council shall conduct~a noticed
hearing on the recommendations of the Planning
Commission at which the Developer and any other
interested Person shall be entitled to submit such
evidence and testimony as may be germane to the issue of
the Developer's good faith compliance with the terms of
the Development Agreement. If the City Council finds,
based on substantial evidence, non-compliance with the
terms and conditions of the Development Agreement, it
may either cancel the Development Agreement upon giving
60 days notice to the Developer, or in its discretion,
may allow the Development Agreement to be continued by
imposition of new terms and conditions intended to
remedy such non-compliance. The City Council may impose
such 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.
24
•
Ica) Any cancellation or imposition of new terms
and cogditions;pursuant to this Section shall be noticed
in accordance,with the procedures,apaciEied in Chapter.:..
20,32 of this Title.
20.40.030 Riahta of the Parties After ._
Canc411ation or Termination. In ths_event:that,a
Development Agraement,ahould bs cancelled, or otherwise
tarmigatsd, unless otherwise agreed, all rights of ,the
Developer, property owner or successors in 3ntarast'
under.,tho- Development Agreement shall termiaate. Any:-
and all benefits, including money or land, received by
the City shall ba retained by the City. Notwith-
standing the above provision, any termination of the
Development Agreement-shall not-prevent the Developer
from completing and occuayina a building or other
improvements authorised pursuant to a valid building
permit previously approved by the City or under
construction at the time of Germination, but the City
may take qny action permitted by law to prevent, stop,
or correct any violation of law occurring during and
after construction, and the Developer or any. tenant
shall not occupy any portion of the project or any
building not authorized by a previously issued building
permit. As used herein, "construction" shall mean work
under a valid building permit, and "completing" shall
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mean completion for beneficial occupancy for Developer's
use, or>if a portion o! the project is intended'-for ude
by~:a~ ess~a or tenant, then !or sach portion- -
"completion" shall mean completion except for interior
improvements such as partitions, duct and elactrical run
outs, floor coverings, wall"coverings, lighting,
Eurnitura, trade fixtures, finished ceilings, and other
improvements typically constructed by or for tenanEs'of
similar buildings. All such aces shall, to the 'extent-'
applicable, be deemed non-conforminq`uees and shall be'=
subject to the non-conforming use provisions of the=''
Planning Code.•
,:~_,
_.. Chanter 20.44 asap
~ :u ,+:MISCSLLANEOIIS PROVISIONS' ' ,r;; ... .,
Secttoas:
20.48:010 Rules Affecting Development Agreement=
!20.48.020 Separate Procedure
X20.48.030 Effect of Development Agreement `"~ -
`-X20:48:040 Construction
':20.46:050 Execution and Recordation of ~-
Development Agreement, Amendment or
Cancellation rs,;
20.48.060 Severability Clause
„ .,. _ .., Nth
,,
a .;;..
26
• a
as20.48.070 Judicial.Aeviewr Tima Limitation
20.48.010 Rules Affectinc Develo~nt Agreement.
All Development Agreements shall be subject to the
;equlatioa and requirements of the laws of the State of
California, the Coastitutioa of the United States and
any codes, statutes or executive mandates and any court
decisions, state or federal, thereunder. In the event
that any such law, code, statute, mandate or decision
made o; enacted after a Development Agreement has been
entered into prevents or precludes compliance with one
or moss provisions of the Development Agreement,,then:
such provisions of the Development Agreement shall-be
modified or suspended in the manner and pursuant to she
procedures specified in the Development Agreement, as-
may.be necessary to comply with such law, code, statute,
mandate or decision.
.20.48.020 Separate Procedure. All Development,.
Agreements entail and consist of a separate procedure
from other land use planning procedures and. shall not-
take,-the. place of the zoning ordinances, the general
plan, conditional use permits, subdivision approvals,:.
building permits, or any other City planning functions.
If so specified in the Development Agreement, it shall
27
constitute an approval pursuant to such planning
procedures as f separately enacted under other':City
planning ordinances. To the extent practicable, public
hearings_on a proposed..Development Agreemant_ahall be
held counurrsaitly with the public hearings on all
related land use approvals and all such approvals ahh1l
be `!made concurrently with the approval of the
Development Agreement.
-20.48.030 $ffect of Development Aareement.
'when approved, the Development Agreement .and any '°
development control maps and alI notations, references
and requlationa which are a part of the Development''
Agreement shall be part of the Development Agreement''
ordinance. Development control maps include, but are'''`
not limited to, regulations intended to carry out any "-
plan reepeetinq location or type of activities; height,
bulk, aiding or design of structures; location or design
of open areas] and landscaping and other comparable
regulations. --
20.48.040 Construction. This Title and any
subsequent Development Agreement shall be read together.
with respect to any Development Agreement enacted under'
this Title, any provision of such a Development
Agreement which is in conflict with this Title shall be
void. Unless otherwise provided by the Development
28
Agreement, the City's rules, regulations and .official
policies, governing permitted uses of the land, governing
density. and goyarning design, improvement. and
construction standards and specifiaationa applicable to~
development. of .:the property subject to a Development
Agreement shall be those City rules, regulations and r
official policies in force at the time of the approval
of the .Development Agreement. by the_City Couacilt
provided, however, that the Developer is subject to all
increases in City imposed fees and charges with respect
to subsequent applications for development. and
construction within the property subject to a .._
Development Agreement.
20.48.050 Execution and Recordation of-Develop-.::
ment__Agreement, Amendment or Cancellation.
(a) .within 10 days after the ordinanceapprovinq
the Development Agreement takes effect,:..the City-Council
shall execute the Development Agreement, and the City <,
Council Clerk shall have.the Development Agreement
recorded with the County Recorder.
(b) If the parties to the Development Agreement;.,
or their successors in interest amend or cancel the.
Development Agreement as provided in Government Code
565868, and this Title, or if the City Council
terminates or modifies the Development Agreement as
29
• •
provided in Government Code $65865.1 and this Title"for
failure of the Developer to comply in good faith with
the terms or''cogdltiona''of the Development' "Agreement; ``
the City Council Clerk ahall,'after such action takes"'
effect'have notice of such action recorded with'the"""'
County Recorder.'
m" :ar.;
20.48'.060 Severability Clause. Should'any`' '
provision of~thie Title or n aubsegnent Development
Agreement be held by a court of competent jurisdiction"
to ba either invalid, void, or unenforceable,-the ""`` `'
remaining provisions of this Title and Development= °""-
Agreement shall remain in full force and effect ~""'
unimpaired by the holding, except as may otherwise be
provided in'a Development Agreemant.
20:48:070 Judicial Revienf Time Limitation.
actioe or-eroceedina to attack, renie~r, set, or'review,'
aet`aaide, void oz annul, anv decision of the Citv
pursuant to this Title shall not br maintained by'any '
~raon unless the action or eroceedina is commenced
within`ninety (901 days after the date of decision as
erovided in Section 1094.6 of the Code of Cinil
Procedure, State of California.
30