Loading...
HomeMy WebLinkAbout17-034 - Resolutions - DENSITY BONUS AGREEMENT RESOLUTION NO. 17-034 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, APPROVING DENSITY BONUS AGREEMENT DRC2017-00156, A REQUEST FOR A DENSITY BONUS AGREEMENT BETWEEN THE CITY OF RANCHO CUCAMONGA AND NATIONAL COMMUNITY RENAISSANCE OF CALIFORNIA, FOR THE PURPOSE OF PROVIDING A SENIOR HOUSING PROJECT IN ACCORDANCE WITH THE VICTORIA COMMUNITY PLAN AND THE DEVELOPMENT CODE, INCLUDING DEVIATING FROM CERTAIN DEVELOPMENT STANDARDS, FOR THE DEVELOPMENT OF A 140- UNIT AFFORDABLE SENIOR HOUSING DEVELOPMENT ON 4 ACRES OF LAND WITHIN THE LOW-MEDIUM (LM) DISTRICT(4—8 DWELLING UNITS PER ACRE) OF THE VICTORIA PLANNED COMMUNITY, LOCATED AT THE TERMINUS OF FIREHOUSE COURT AND WEST OF DAY CREEK BOULEVARD; AND MAKING FINDINGS IN SUPPORT THEREOF — APN: 1089-031-36. A. Recitals. 1. National Community Renaissance of California filed an application for the approval of Density Bonus Agreement DRC2017-00156, as described in the title of this Resolution. Hereinafter in this Resolution, the subject Density Bonus Agreement request is referred to as "the application." 2. On the 24th day of May, 2017, the Planning Commission of the City of Rancho Cucamonga conducted a duly noticed public hearing on the application and concluded said hearing on that date by recommending approval of the application to the City Council for final action by adoption of their Resolution No. 17-30. 3. On the 7th day of June, 2017, the City Council conducted a duly noticed public hearing on the application and concluded the hearing on that date. 4. All legal prerequisites prior to the adoption of this Resolution have occurred. B. Resolution. NOW, THEREFORE, it is hereby found, determined, and resolved by the City Council of the City of Rancho Cucamonga as follows: NOW, THEREFORE, it is hereby found, determined, and resolved by the City Council of the City of Rancho Cucamonga as follows: SECTION 1: This City Council hereby specifically finds that all of the facts set forth in the Recitals, Part A, of this Resolution are true and correct. SECTION 2: Based upon substantial evidence presented to the City Council during the above-referenced public hearing on June 7, 2017, including written and oral staff reports, together with public testimony, the City Council hereby specifically finds as follows: CITY COUNCIL RESOLUTION NO. 17-034 DENSITY BONUS AGREEMENT DRC2017-00156 NATIONAL COMMUNITY RENAISANCE OF CALIFORNIA. June 7, 2017 Page 2 a. The application applies to a property located at the terminus of Fire House Court and west of Day Creek Boulevard in the Low Medium (LM) District of the Victoria Community Plan; and b. To the west of the project site is a maintenance yard operated by the San Bernardino County Flood Control District within the Low Medium (LM) District and Flood Control/Utility Corridor(FC/UC) District of the Victoria Community Plan;to the east is Day Creek Fire Station#173,within the Low Medium (LM) District of the Victoria Community Plan;to the north is the Pacific Electric trail and single-family residences within the Low Medium (LM) District of the Victoria Community Plan; and, to the south is land that is under construction with a new commercial center (Day Creek Village)within the Village Commercial (VC) District of the Victoria Community Plan;and c. The land use and zoning designation of the project site is Low-Medium(LM) District of the Victoria Community Plan, which permits 4 to 8 dwelling units per acre. The Victoria Community Plan includes a provision permitting the zoning designation to be increased by up to 2 density ranges in order to provide plan flexibility. The project site can thus be increased in density from Low-Medium (LM) District to either Medium (M) District (8 — 14 dwelling units per acre) or Medium-High (MH) District (14 — 24 dwelling units per acre). The Victoria Community Plan also provides an incentive to build affordable housing, which awards property owners one bonus unit in density for every affordable dwelling unit provided.The project will be 100 percent affordable and is thus eligible for a 100 percent increase in the permitted density level, or between 24 to 48 dwelling units per acre; and d. The applicant is requesting to develop a 140-unit affordable rental senior housing project on 4 acres of land. The proposed density is 35 dwelling units per acre. e. Development Code Chapter 17.46(Density Bonuses, Incentives and Concessions) provides incentives for the production of affordable housing, including the opportunity to provide reductions in the related development standards. The applicant can request up to 3 concessions based on the affordability factor of the project. In this case, the applicant is requesting 2 concessions,a reduction in the required number of parking spaces and a reduction in the size of the private recreation areas (decks). Density bonuses and concessions are considered in conjunction with any necessary development entitlements for the project and approved by a Density Bonus Agreement. The designated approving authority for the Density Bonus Agreement is the City Council. SECTION 3: Based upon the substantial evidence presented to this Commission during the above-referenced public hearing and upon the specific findings of facts set forth in Paragraphs 1 and 2 above, this Commission hereby finds and concludes as follows: a. The proposed Density Bonus Agreement is consistent with the objectives,policies, and general land uses specified in the General Plan and any applicable Specific Plans. The proposed Density Bonus Agreement furthers General Plan Goal HE-2, to provide housing opportunities that meet the needs of all economic segments of the community including very low, low and moderate income households.The proposed affordable senior housing rental units further this goal by providing seniors with affordable housing. Additionally, the Victoria Community Plan includes provisions to permit the project at the proposed residential density; and b. The proposed Density Bonus Agreement is compatible and in conformity with public convenience, general welfare, and good land use and zoning practice.The project site is well suited CITY COUNCIL RESOLUTION NO. 17-034 DENSITY BONUS AGREEMENT DRC2017-00156 NATIONAL COMMUNITY RENAISANCE OF CALIFORNIA. June 7, 2017 Page 3 for the proposed affordable senior housing rental development. It is located in close proximity to public transportation, a multi-use recreational trail and multiple commercial developments, reducing the need for a personal vehicle and increasing the mobility of the senior population targeted by the development; and c. The proposed Density Bonus Agreement will not be detrimental to the health, safety, and general welfare of the City.The proposed affordable senior housing rental units related to the Density Bonus Agreement will not negatively impact the City as is in keeping with the surrounding development and will become an integral part of the community. d. The proposed Density Bonus Agreement will not adversely affect the orderly development of property or the preservation of property values. The proposed affordable senior housing rental development is well suited for the proposed location and complies with the zoning designation and the permitted density of the project site. SECTION 4: Based upon the facts and information contained in the proposed Mitigated Negative Declaration, together with all written and oral reports included for the environmental assessment for the application, the City Council finds that there is no substantial evidence that the project will have a significant effect upon the environment and adopts a Mitigated Negative Declaration and Monitoring Program attached hereto, and incorporated herein by this reference, based upon the findings as follows: a. Pursuant to the California Environmental Quality Act("CEQA")and the City's local CEQA Guidelines, the City staff prepared an Initial Study of the potential environmental effects of the project. Based on the findings contained in that Initial Study, City staff determined that,with the imposition of mitigation measures, there would be no substantial evidence that the project would have a significant effect on the environment. Based on that determination, a Mitigated Negative Declaration was prepared. Thereafter, the City staff provided public notice of the public comment period and of the intent to adopt the Mitigated Negative Declaration; and b. The City Council has reviewed the Mitigated Negative Declaration and all comments received regarding the Mitigated Negative Declaration and, based on the whole record before it, finds: (i)that the Mitigated Negative Declaration was prepared in compliance with CEQA; and (ii) that, based on the imposition of mitigation measures, there is no substantial evidence that the project will have a significant effect on the environment. The City Council further finds that the Mitigated Negative Declaration reflects the independent judgment and analysis of the City Council. Based on these findings, the City Council hereby adopts the Mitigated Negative Declaration; and c. The City Council has also reviewed and considered the Mitigation Monitoring Program for the project that has been prepared pursuant to the requirements of Public Resources Code Section 21081.6 and finds that such Program is designed to ensure compliance with the mitigation measures during project implementation. The City Council therefore adopts the Mitigation Monitoring Program for the project; and d. The custodian of records for the Initial Study, Mitigated Negative Declaration, Mitigation Monitoring Program and all other materials which constitute the record of proceedings upon which the City Council's decision is the City Planner of the City of Rancho Cucamonga. Those documents are available for public review in the Planning Department of the City of Rancho Cucamonga located at 10500 Civic Center Drive, Rancho Cucamonga,California 91730,telephone (909) 477-2750. CITY COUNCIL RESOLUTION NO. 17-034 DENSITY BONUS AGREEMENT DRC2017-00156 NATIONAL COMMUNITY RENAISANCE OF CALIFORNIA. June 7, 2017 Page 4 SECTION 5: The Density Bonus Agreement is hereby amended to read, in words and figures, as shown in Exhibit 1. SECTION 6: If any section, subsection, sentence, clause, phrase, or word of this Resolution is, for any reason, deemed or held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, or preempted by legislative enactment, such decision or legislation shall not affect the validity of the remaining portions of this Resolution. The City Council of the City of Rancho Cucamonga hereby declares that it would have adopted this Resolution and each section, subsection, sentence, clause, phrase, or words thereof, regardless of the fact that any one or more sections, subsections, clauses, phrases, or words might subsequently be declared invalid or unconstitutional or preempted by subsequent legislation. SECTION 7: The City Clerk shall certify to the adoption of this Resolution and shall cause the same to be published within 15 days after its passage at least once in the Inland Valley Daily Bulletin, a newspaper of general circulation published in the City of Ontario, California, and circulated in the City of Rancho Cucamonga, California. CITY COUNCIL RESOLUTION NO. 17-034 DENSITY BONUS AGREEMENT DRC2017-00156 NATIONAL COMMUNITY RENAISANCE OF CALIFORNIA. June 7, 2017 Page 5 PASSED, APPROVED, AND ADOPTED this 7th day of June, 2017. L. Dennis Michael, Ma r ATTEST: Qtw€ ( ice C. Reynolds, CI rk STATE OF CALIFORNIA ) COUNTY OF SAN BERNARDINO ) ss CITY OF RANCHO CUCAMONGA ) I, Janice C. Reynolds, City Clerk of the City of Rancho Cucamonga, do hereby certify that the foregoing Resolution was duly passed, approved, and adopted by the City Council of the City of Rancho Cucamonga, at a Regular Meeting of said Council held on the 7th day of June 2017. AYES: Alexander, Kennedy, Michael, Spagnolo, Williams NOES: None ABSENT: None ABSTAINED: None Executed this 8th day of June 2017 at Rancho Cucamonga, California. • • 1-.4-yttLeale) J a' ce C. Reynolds, Clerk RECORDING REQUESTED BY, AND WHEN RECORDED MAIL TO: City of Rancho Cucamonga 10500 Civic Center Drive Rancho Cucamonga, CA 91730 Attn: City Clerk With a copy to: Day Creek Senior Housing Partners LP c'o National Community Renaissance 9421 Haven Avenue Rancho Cucamonga, CA 91730 Attn: Chief Financial Officer APNs: 1089-031-36 SPACE ABOVE THIS LINE FOR RECORDER'S USE Exempt from Recording Fees Pursuant to Government Code Section 27383 DENSITY BONUS AGREEMENT DRC2017-00156 (SENIOR CITIZENS AFFORDABLE HOUSING) THIS DENSITY BONUS AGREEMENT("Agreement") is dated as of June 7, 2017 and is entered into by and between DAY CREEK SENIOR HOUSING PARTNERS LI', a California nonprofit public benefit corporation(the"Developer"),and the CITY OF RANCHO CUCAMONGA, a California municipal corporation (the"City"). RECITALS A. California Government Code Section 65915(d) provides that in addition to a density bonus(not applicable here),a city may, by agreement with a developer, grant up to three incentives or concessions that the applicant requests when a developer agrees to construct housing for low income households. B. The City has implemented California Government Code Section 65915(d) by enacting Municipal Code Section 17.46.040B, which subject to certain limitations, contemplate such incentives to encourage development of affordable housing for low income households. C. Developer has requested City to consider the approval of a density bonus agreement which will grant concessions for Developer's development of the real property in City on Exhibit"A" ("Site"). The Site is located within the Victoria Planned Community. D. The Developer proposes to construct a senior housing residential project,consisting of low income units,on the Site. Said project contemplated by Developer will require two incentives/concessions from the residential development standards in the Victoria Planned Community. The Developer is not requesting a density bonus for this project. EXHIBIT 1 -1- E. It is the desire of City to encourage developments designed to provide affordable rental units for senior residents of the City. In furtherance of that desire, the City is hereby willing to grant concessions to Developer as provided by the terms of this Agreement,which is a so-called"density bonus agreement"contemplated and required by Municipal Code Chapter 17.46.040. F. City and Developer have entered into a Disposition, Development and Loan Agreement dated in 2016 which obligates the City to sell the Site to Developer subject to certain conditions, including the condition that a"Development Agreement"be approved by City and executed; however, Developer and City have determined that the only purpose of such condition was to provide for the affordable housing incentives described herein, and that Municipal Code Chapter 17.46 requires a so- called"density bonus agreement" under that Chapter, not a statutory development agreement. AGREEMENT NOW, THEREFORE, the parties hereto agree as follows: 1. Definitions. In this Agreement, the following terms shall have the following meaning: a. "Affordable Rents" shall mean the total charges for rent, utilities, and related services in an amount not to exceed the amount of rent permitted under California Health and Safety Code Section 50053 and Sections 6910 - 6932 of Title 25 of the California Code of Regulations. b. "Area Median Income"shall mean the median income for households in San Bernardino County,California, as published from time to time by the United States Department of Housing and Urban Development (1-IUD") in a manner consistent with the determination of median gross income under Section 8 of the United States Housing Act of 1937, as amended,and as defined in Title 25, California Code of Regulations, Section 6932. In the event that such income determinations are no longer published by HUD, or are not updated for a period of at least 18 months, the City shall either use the income determinations used by the California Tax Credit Allocation Committee or may use income determinations that are reasonably similar with respect to methods of calculation to those previously published by HUD. c. "City" is the City of Rancho Cucamonga, California. d. "Project" is the development approved by City comprised of one hundred and forty(140)apartment units, recreational and common area facilities, parking spaces and other amenities on the Site, all as set forth more fully in the site plan for Environmental Assessment and Design Review DRC2016-00814 submitted by Developer and approved by City. The Project is subject to the conditions of approval which are not changed,altered or modified by this Agreement. e. "Qualified Tenants"shall mean households consisting of a person who is sixty- two (62) years of age or older and any qualified permanent residents under the applicable provisions of California Civil Code Section 51.3 and the federal Fair Housing Act(except to the extent the Project utilizes federal funds whose programs have differing definitions for senior projects in which case those definitions will apply), and whose annual household income does not exceed eighty percent (80°•0)of the Area Median Income. 2 Bindinu Effect of Agreement. The Developer hereby subjects the Site and development thereon to the covenants, reservations and restrictions as set forth in this Agreement in perpetuity.The City and the Developer hereby declare their specific intent that the covenants, reservations and restrictions as set forth herein shall be deemed covenants running with the land and shall pass to and be _1. 11231-0001 2050037%4 doc binding upon the Developer's successors and assigns and successor to any interest in the Project. Each and every contract, deed or other instrument hereinafter executed, covering or conveying the development or any portion thereof shall conclusively be held to have been executed, delivered and accepted subject to the covenants, reservations and restrictions expressed in this Agreement, regardless of whether such covenants, reservations and restrictions are set forth in such contract, deed or other instrument. 3. Relationship of Parties. It is understood that the contractual relationship between City and Developer is such that Developer is an independent party and is not the agent of City for any purpose whatsoever. 4. Restrictions on Rental Units; Qualified Tenants. It is expressly understood by the parties hereto that the Project has been specifically designed to meet the unique needs of senior tenants. Except for one(1) manager's unit, the apartment units in the Project shall be rented,occupied, leased or subleased to households which include at least one Qualified Tenant. 5. Rental Requirements; Affordable Rent. One hundred and thirty-nine(139)of the units in the Project, not including the one unit for a resident manager, shall be rented, leased or held available for Qualified Tenants at Affordable Rents. 6. No Conversion. During the term hereof, all residential units in the Project shall remain rental units. During the term hereof, no apartment unit in the Project shall be eligible for conversion from rental units to condominiums, townhomes or any other common interest subdivision without consent of the City Council. 7. On-site Manager. A full-time manager shall be provided on the Project site in the manager's unit. S. Submission of Materials and Annual Review. Prior to occupancy, Developer shall submit to City tenant selection procedures which shall detail the methods which Developer shall use to advertise the availability of apartments in the Project and screening mechanisms which Developer intends to use to limit the occupancy of the apartments to Qualified Tenants, including the income restrictions on some of the units as set forth in this Agreement On or before April 15 of each year following the first leasing of any apartment (other than the manager's unit), the Developer,or its representative, shall file a certificate of continuing program compliance with the City. Each such report shall contain such information as City may require including, but not limited to, the following: a. Rent schedules then in effect, including utility charges(if any); b. A project occupancy profile; c. A description of the physical condition and maintenance procedures for the Project, including apartment units, landscaping, walkways and recreational areas. d. The number of persons per unit; e. Tenant name; 1. Initial occupancy date; -3- 11231-0001 2O500371,4 do: • g. Rent paid per month; h. Gross income per year; i. Percent of rent paid in relation to income;and j. Copies of all documents used by Developer to certify the tenant as a Qualified Tenant. City shall be allowed to conduct physical inspections of the Project as it shall deem necessary, provided that said inspections do not unreasonably interfere with the normal operations of the Project and reasonable notice is provided. City shall repair any damage and shall defend, indemnify and hold Developer harmless from and against any claims, liabilities, damages,costs, expenses incurred by Developer relating in any way to City's inspections and investigations. 9. Tenant Selection, Contracts and Rules and Regulations. After receipt of applications for income restricted units, Developer shall determine the eligibility of the occupancy under the terms of this Agreement. Verification of tenant income eligibility shall be based on the following information and other information if permitted by the California Tax Allocation Committee for the low income housing tax credit program: a. Income verification form from the Social Security Administration and/or the California Department of Social Services, if the applicant receives income from either or both agencies; b. Income tax return for the most recent tax year; c. TRW or similar financial search; d. Income verification from all current employers; and e. lithe applicant is unemployed and has no tax return, another form of independent verification. Developer shall deliver copies thereof to City upon written request. All agreements for rental of all apartment units in the Project shall be in writing. The form of proposed rent or lease agreement shall be reviewed and approved by City prior to use. Such agreement shall include all rules and regulations governing tenancy within the Project. 10. Termination and Eviction of Tenants. A tenancy may be terminated without the termination being deemed an unlawful eviction under the following circumstances: a. The death of the sole tenant of the unit; b. By the tenant at the expiration of the term of occupancy or otherwise upon thirty (30)days' written notice; c. By abandonment of the premises by the tenant; or d. By failure of a tenant to execute or renew a lease. -4- 11231-0001 2050037‘4 doe An affordable unit initially occupied by a Qualified Tenant shall be deemed occupied by a Qualified Tenant until such affordable unit is vacated, even lithe tenant's household income subsequently increases to an amount that exceeds the maximum allowable income level for its initial income category so long as satisfactory actions are taken to ensure that all vacancies are filled in accordance with this Agreement until the noncompliance is corrected. Upon termination of occupancy of an affordable unit by a tenant, such affordable unit shall be deemed to be continuously occupied by a household of the same income level as the initial income level of the vacating tenant, until such affordable unit is reoccupied, at which time the income character of the affordable unit shall be determined by the income of the incoming tenant. The income of all persons residing in the affordable unit shall be considered for purposes of calculating the applicable income. Except as otherwise required by applicable law, no less than one person per bedroom shall be allowed; no more than two persons shall be permitted to occupy a one bedroom affordable unit; and no more than three persons shall be permitted to occupy a two bedroom affordable unit. Any termination of a tenancy other than those listed above in this Section shall constitute a lawful eviction only if: (i) Developer conduct it in compliance with the provisions of California law and (ii) the lease is terminated then only for material noncompliance with the terms of the applicable rental agreement after written notice and the expiration of a reasonable cure period. 11. Insurance. Developer shall keep the Project and all improvements thereon insured at all times against loss or damage endorsement and such other risks,perils or coverage as Developer may determine. During the term hereof, the Project shall be insured to its full insurance replacement value. 12. Maintenance Guarantee. Developer shall comply with all City maintenance standards for the Project enacted from time to time. 13. Standards and Restriction Pertainina to Development of the Site. The following specific restrictions shall apply to the use of the Site during the term of this Agreement: a. Developer is required to obtain all necessary land use entitlements, approvals and permits for the Project. b. Only residential uses of the real property shall be permitted in the Project. 14. Development Incentives. Pursuant to Government Code Section 65915(d)and Rancho Cucamonga Municipal Code Section 17.46.040.B.,the City grants Developer the following development incentives for development of the Project: a. The amount of required private open space per dwelling unit is decreased from 150 square feet for ground floor dwelling units and 100 square feet for upper floor dwelling units to 107 square feet for ground floor dwelling units and 80 square feet for upper floor dwelling units; and b. The required number of on-site parking spaces is decreased to a minimum ratio of 0.85 parking spaces per unit,with 82 carport stalls and 37 uncovered spaces. -5- 11231.0001 2050037%4 dog:• 15. Project Design Amenities for Senior Citizens. The Project open space, buildings and individual apartments shall be designed with physical amenities catering to the needs and desires of the senior citizen residents.The following physical amenities shall be substantially included in the Project: a. Unit sizes shall be an average of 600 square feet for 1-bedroom residential units and 890 square feet for 2-bedroom residential units; b. Elevator service shall be provided to all upper story apartments; c. All common access areas in the Project such as entryways, walkways,and hallways will be wide enough to accommodate wheelchairs; d. The Project will meet all applicable current requirements for access and design imposed by law as administered by the City building and safety department, including, but not limited to, the Fair Housing Act (42 U.S.C. Sec. 3601 et seq.),the Americans with Disabilities Act (42 U.S.C. Sec. 12101 et seq.), and the regulations promulgated at Title 24 of the California Code of Regulations that relate to access for persons with disabilities or handicaps; c. All units shall possess secured entryways off a common enclosed hallway; and f. The Project is designed to encourage social contact by providing at least one common room(the Project community room)and at least some common open space(the Project's fitness room, pool, outdoor fire pit lounge,courtyard and garden areas). 16. Indemnification. Developer shall defend, indemnify and hold City and its elected officials, officers, agents and employees harmless from claims, liabilities, losses, damages and costs and expenses arising from or relating to personal injuries, including death, and property damage which may arise from the activities of Developer or those of its contractor,subcontractor,agent, employee or other person acting on its behalf which relate to the Project. Notwithstanding the foregoing, this provision shall not apply to any such claims which arise out of, or by reason of, the sole negligence or willful misconduct of the City. 17. Amendments. This Agreement may be amended or canceled, in whole or in part,only by mutual written consent of the parties. 18. Event of Default. Developer is in default under this Agreement upon the happening of one or more of the following events or conditions: a. If a warranty, representation or statement is made or furnished by Developer to City and is inaccurate in any material respect when it was made; b. A breach by Developer of any of the provisions or terms of this Agreement, after notice and opportunity to cure as provided in Section 19. 19. Enforcement_ In the event of a default under the provisions of this Agreement by Developer,City shall give written notice to Developer, and if such violation is not corrected to the reasonable satisfaction of City within thirty(30)days after such notice is given, then City may, without further notice, declare a default under this Agreement and City may then enforce as any normal violation of the standards and provisions of the Rancho Cucamonga Municipal Code applicable to this Agreement. However, notwithstanding the foregoing, City may at any time apply to any court, state or federal, for injunctive relief against any violation by Developer of any provision of this Agreement. -6- 11_231.0001 2050037%4 doe 20. Developer Representation Re: Priority; No Waiver of Remedies. Developer represents and warrants that this Agreement, when recorded, is senior and prior to all deeds of trust and other liens, except for liens for property taxes and assessments not yet due. City does not waive any claim of defect in performance by Developer if on periodic review City does not enforce or terminate this Agreement. Nonperformance by Developer shall not be excused because performance by Developer of the obligations herein contained would be unprofitable, difficult or expensive or because of a failure of any third party or entity, other than City. All other remedies at law or in equity which arc not otherwise provided for in this Agreement are available to the parties to pursue in the event that there is a breach of this Agreement. No waiver by City of any breach or default under this Agreement shall be deemed to be a waiver of any other subsequent breach thereof or default hereunder. ?1. Rights of Lenders Under this Agreement. Should Developer place or cause to be placed any encumbrance or lien on the Project,or any part thereof, the beneficiary("Lender")of said encumbrance or lien, including, but not limited to, deeds of trust, shall have the right at any time during the term of this Agreement and the existence of said encumbrance or lien to: a. Do any act or thing required of Developer under this Agreement, and any such act or thing done or performed by Lender shall be as effective as if done by Developer itself; b. Realize on the security afforded by the encumbrance or lien by exercising foreclosure proceedings or power of sale or other remedy afforded in law or in equity or by the security document evidencing the encumbrance or lien; c. Transfer, convey or assign the title of Developer to the Project to any purchaser at any foreclosure sale, whether the foreclosure sale be conducted pursuant to court order or pursuant to a power of sale contained in a trust deed; and d. Acquire and succeed to the interest of Developer by virtue of any foreclosure sale, whether the foreclosure sale is conducted pursuant to a court order or pursuant to a power of sale contained in a trust deed. 22. Notice to Lender. If Developer shall have provided City in writing with the name of the Lender and a copy of its recorded deed of trust, then City shall give written notice of any default or breach under this Agreement by Developer to such Lender and if the default can be cured by the payment of money,City shall give Lender the opportunity after service of the notice to cure the breach or default within sixty(60)days after delivery of said notice. 23. Notices. Any notice required to be given by the terms of this Agreement shall be provided by certified mail, return receipt requested, at the address of the respective parties as specified below or at any other such address as may be later specified by the parties hereto in a notice given pursuant to this Section. Developer: Day Creek Senior Housing Partners LP cio National Community Renaissance 9421 Haven Avenue Rancho Cucamonga,CA 91730 Attn: Chief Financial Officer City: City of Rancho Cucamonga 10500 Civic Center Drive -7- 11231-004)1 2050037%4 doe • Rancho Cucamonga, CA 91730 Attn: City Manager 24. AttornLs'Fees. In any proceedings arising from the enforcement of this Agreement or because of an alleged breach or default hereunder, the prevailing party shall be entitled to recover its costs and its reasonable attorneys' fees incurred during the proceeding as may be fixed within the discretion of the court. 25. Applicable Law. This Agreement shall be construed in accordance with and governed by the laws of the State of California. 26. Partial Invalidity. If any provisions of this Agreement shall be deemed to be invalid, illegal or unenforceable,the validity, legality or enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby. 2'. Recordation,. This Agreement shall be recorded in the Official Records of the County Recorder of the County of San Bernardino. 23. Time of Essence. Time is of the essence of every provision hereof in which time is a factor. IN WITNESS WHEREOF, this Agreement has been executed by the parties and shall be effective on the Effective Date set forth herein. DEVELOPER: CITY: DAY CREEK SENIOR IIOUSING PARTNERS LP, CITY OF RANCHO CUCAMONGA, a a California nonprofit public benefit corporation municipal corporation By: Day Creek Senior Housing Partners MGP, By: LLC, a California limited liability company, L. Dennis Michael, Mayor its general partner By: National Community Renaissance of California,a California nonprofit corporation, its sole member manager By: Steve PonTell Chief Executive Officer ATTEST: Janice C. Reynolds, City Clerk APPROVED AS TO FORM: By: James Markman City Attorney -8- 11231-0001 2050037%4 doc A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached,and not the truthfulness, accuracy,or validity of that document. State of California ) County of ) On , before me, (insert name and title of the officer) Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to he the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) .g, 11231-0001 _2050037%4 doe • A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy,or validity of that document. STATE OF CALIFORNIA ) COUNTY OF ) On , before me, t insert name and title oldie officer) Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature _ (Seal) -10- 11231.0001 20500371.4 doc EXHIBIT"A" LEGAL DESCRIPTION OF THE SITE THE FOLLOWING REAL PROPERTY IN THE CITY OF RANCHO CUCAMONGA,COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA: PARCEL "A" BEING PORTIONS OF LOTS 21 AND 22 OF ORANGE EMPIRE ACRES, AS PER MAP RECORDED IN BOOK 20, PAGE 1 OF MAPS, IN SAID OFFICE OF THE COUNTY RECORDER, TOGETHER WITH THAT PORTION OF RAILROAD AVENUE SOUTH, VACATED PER INSTRUMENT No.92-447926, RECORDED OCTOBER 28, 1992 OFFICIAL RECORDS OF SAID COUNTY,TOGETHER WITI-I PARCEL 2 OF CERTIFICATE OF COMPLIANCE FOR LOT LINE ADJUSTMENT No. 619 RECORDED JUNE 14, 2006 AS INSTRUMENT No. 2006-0406609, OFFICIAL RECORDS OF SAID COUNTY, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT A POINT ON THE WEST LINE OF SAID LOT 21, SAID POINT BEING SOUTH 00'12'36" WEST 575.70 FEET FROM THE NORTHWEST CORNER OF SAID LOT 21; THENCE, ALONG SAID WEST LINE AND TTS NORTHERLY PROLONGATION, NORTH 00'12'36" EAST 615.70 FEET TO TI IE NORTHWEST CORNER OF SAID INSTRUMENT No. 92- 447926; THENCE, ALONG THE NORTH LINE OF SAID INSTRUMENT No. 92-447926, SOUTH 89'11'41" EAST 342.01 FEET TO THE NORTHEAST CORNER OF SAID INSTRUMENT No. 92-447926, SAID CORNER ALSO BEING THE NORTHWEST CORNER OF PARCEL 1 OF CERTIFICATE OF COMPLIANCE FOR LOT LINE ADJUSTMENT No. 619 RECORDED JUNE 14, 2006 AS INSTRUMENT No. 2006-0406609,OFFICIAL RECORDS OF SAID COUNTY; THENCE, ALONG THE EAST LINE OF SAID INSTRUMENT No. 92-447926 AND THE EAST LINE OF SAID LOT 22, SOUTH 00:12'48" WEST 418.19 FEET TO A POINT ON THE WESTERLY RIGHT-OF-WAY LINE OF FIREHOUSE COURT, SAID POINT BEING THE NORTHWEST CORNER OF SAID PARCEL 2 AND THE BEGINNING OF A NON-TANGENT CURVE,CONCAVE EASTERLY HAVING A RADIUS OF 61.04 FEET, A RADIAL BEARING TO SAID POINT BEARS NORTH 89°50'34" WEST; THENCE, LEAVING SAID EAST LINE AND ALONG SAID RIGI IT-OF-WAY,TI[ROUGH A CENTRAL ANGLE OF 28°23'25" AN ARC LENGTH OF 30.25 FEET; THENCE, LEAVING SAID RIGHT-OF-WAY, SOUTH 42'24'52" WEST 51.92 FEET;THENCE SOUTH 89°17'07" WEST 195.07 FEET, THENCE SOUTH 44'17'06" WEST 171.66 FEET TO THE POINT OF BEGINNING. SAID LAND [S DESCRIBED AS PARCEL A OF LL.1A 2005-00002 RECORDED 12.04'2015 AS INSTRUMENT NO. 2005 - 531707 OF OFFICIAL RECORDS. -11- I1231-0001 2050037%4 dot: