Development Agreements: Contracting for Vested Rights from Public and Private Perspectives
Course Details
- smart_display Format
On-Demand
- signal_cellular_alt Difficulty Level
Intermediate
- work Practice Area
Government
- event Date
Tuesday, December 12, 2023
- schedule Time
1:00 p.m. ET./10:00 a.m. PT
- timer Program Length
90 minutes
-
This 90-minute webinar is eligible in most states for 1.5 CLE credits.
This CLE webinar will offer recommendations structuring and drafting the most important and heavily negotiated terms in Development Agreements between land owners and developers, on the one hand, and local governments, on the other. The panel will cover contracting for vested rights, including key provisions such as term duration and “applicable law” definition, and how to tailor remedies and damages provisions to avoid and minimize the potential for litigation or dispute. The program will also identify common types of breaches, litigation prerequisites, common defenses, typical limited damages, and strategies to avoid litigation.
Mr. Ramiza’s practice emphasizes real estate transactional, land use, and public/private partnership development matters. He represents private clients and public agencies throughout California in connection with complex real estate and land use matters and transactions. Mr. Ramiza's work includes forward planning, assisting with development, land use, entitlement, design review, and permitting processes, environmental review, and CEQA/NEPA compliance. He routinely handles negotiation and documentation of purchase, sale, easement, lease and financing transactions; asset management (including loan administration, property management and landlord/tenant matters); negotiation and drafting of complex development agreements; foreclosures; public trust and tidelands transactions; surplus lands dispositions; workouts and secured transactions; and ancillary matters such as title insurance review, due diligence, environmental risk allocation and hazardous materials/ Brownfields matters. With over 15 years of experience in the redevelopment arena, Mr. Ramiza is assisting successor agencies throughout the state in the implementation of the redevelopment dissolution act, ABx1 26. He also advises public agency clients in connection with the ferry-system transactions, affordable housing, federal contracting/BRAC process, utilization of federal grants, lease and parking revenue financing and assessment districts.
Ms. Plume is the executive partner of Holland & Knight's San Francisco office, with more than 23 years of experience in complex land use and environmental law. She represents project proponents in land use and environmental permitting, compliance and due diligence matters for complex land use, development and redevelopment projects, including acquisition of public property. Ms. Plume's practice includes all aspects of land use entitlements, including development agreements and other specialty land use contracts, California Environmental Quality Act (CEQA), Planning Law, Subdivision Map Act, State Density Bonus Law and Housing Accountability Act.
A landowner or developer’s—or their lenders’-- worst nightmare is learning part-way through a multi-year or multi-decade project that the local jurisdiction has changed land use or other regulations that will impair the project. To prevent these kinds of surprises, the parties enter into development agreements that offer developers a measure of certainty, aka vested rights, in exchange for negotiated community and public benefits.
When creating development agreements, counsel must pay careful attention to the clarity of the terms, whether the obligations of either party are conditional, and if and how defaults and remedies have been specified in the agreement. Certain provisions may be required in those states which have statutes authorizing local governments to enter into development agreements, such as California and Hawaii.
Even the best drafting cannot avoid all disputes, so counsel must be prepared to deal with potential defaults by either party.
Listen as the speakers, who have negotiated multiple development agreements over 25 years on behalf of the private and public sectors, provide their perspectives and recommendations on negotiating, drafting, and enforcing development agreements.
- Introduction & Overview Development Agreements
- Development Agreement Statute & local ordinances
- Primary Purposes
- Mandatory Provisions
- Optional Provisions
- Approval and Amendment Process and Requirements
- Typical Developer Benefits
- Typical Public Agency Benefits
- Negotiating Key Provisions including Scope of Vested Rights, Length of Term (including extensions), Applicable Law Definition, Force Majeure
- Defaults and Remedies
- Standard or Typical Provisions
- Recommendations for Tailored Remedies for Defaults
- Recommendations for Drafting Terms to Avoid Ambiguity
- Process for Notices of Violation and Prerequisites to Legal Action
- Typical Claims and Defenses
- Review of Development Agreement Published Cases
- Case Studies & Q&A [time allowing]
The panel will review these and other key issues:
- Tips for drafting to avoid disputes and litigation
- What is the role of force majeure?
- How to balance developer’s desire to maximize scope of vesting protection with public agency’s desire to retain flexibility to address changing community needs and desires?
- What types of changes in land use would not breach a typical development agreement?
- What remedies are common?
