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of proof on this issue shall be on OWNER, at OWNER's sole expense. <br />(b) Upon completion of a periodic review or a special review, the City Manager, or <br />his or her designee, shall submit a report to the Planning Commission setting forth <br />the evidence concerning good faith compliance by OWNER with the terms of this <br />Agreement and his or her recommended finding on that issue. <br />(c) If the Planning Commission finds and determines on the basis of substantial <br />evidence that OWNER has complied in good faith with the terms and conditions <br />of this Agreement, the review shall be concluded. <br />(d) If the Planning Commission finds and determines on the basis of substantial <br />evidence that OWNER has not complied in good faith with the terms and <br />conditions of this Agreement, the Comrission shall provide written notice to <br />OWNER of such findings setting forth the nature of the problem and the actions, <br />if any, required by OWNER to cure such problem and, where the problem can be <br />cured, OWNER has failed to take such actions and cure such problem within thirty <br />(30) days after the effective date of such notice or, in the event that such problem <br />cannot be cured within such thirty (30) day period but can be cured within a longer <br />time, has failed to commence the actions necessary to cure such problem within <br />such thirty (30) day period and to diligently proceed to complete such actions and <br />cure such problem. If OWNER fails to take the necessary actions, the Commission <br />may recommend to the City Council modification or termination of this <br />Agreement. OWNER may appeal a Planning Commission determination pursuant <br />to this Section 6.3(d) pursuant to CITY's rules for consideration of appeals in <br />zoning matters then in effect. Notice of default as provided under Section 7.3 of <br />this Agreement shall be given to OWNER prior to or concurrent with proceedings <br />under Section 6.4 and Section 6.5. <br />6.4 Proceedings Upon Modification or Tennination. If, upon a finding under Section 6.3, CITY <br />determines to proceed with modification or termination of this Agreement, CITY shall give <br />written notice to OWNER of its intention so to do. The notice shall be given at least ten <br />(10) calendar days prior to the scheduled hearing and shall contain: <br />(a) The time and place of the hearing; <br />(b) A statement as to whether or not CITY proposes to terminate or to modify the <br />Agreement; and, <br />(c) Such other information that the CITY considers necessary to inform OWNER of <br />the nature of the proceeding. <br />6.5 Hearing on Modification or Temrination. At the time and place set for the hearing on <br />modification or temunation, OWNER shall be given an opportunity to be heard. OWNER <br />shall be required to demonstrate good faith compliance with the terms and conditions of <br />this Agreement. The burden of proof on this issue shall be on OWNER. If the City Council <br />finds, based upon substantial evidence, that OWNER has not complied in good faith with <br />the terms or conditions of the Agreement, the City Council may terminate this Agreement <br />or modify this Agreement and impose such conditions as are reasonably necessary to <br />protect the interests of the CITY. The decision of the City Council shall be final. <br />55394.00002\3 1553187.13 <br />#21124v3 11 A-34 <br />