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HomeMy WebLinkAbout625 - Ordinances ORDINANCE NO. 625 AN ORDINANCE OF THE CITY OF RANCHO CUCAMONGA CALIFORNIA, APPROVING DEVELOPMENT AGREEMENT NO. 00-01, A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF RANCHO CUCAMONGA AND NORTHTOWN HOUSING DEVELOPMENT CORPORATION FOR THE PURPOSE OF PROVIDING A SENIOR HOUSING PROJECT IN ACCORDANCE WITH THE SENIOR HOUSING OVERLAY DISTRICT (SHOD), INCLUDING DEVIATING FROM CERTAIN DEVELOPMENT STANDARDS FOR 80 TO 96 SENIOR APARTMENT UNITS AND ONE MANAGER UNIT LOCATED ON THE EAST SIDE OF AMETHYST STREET, SOUTH OF THE INTERSECTION WITH LA GRANDE STREET AND NORTH OF THE INTERSECTION WITH LOMITA DRIVE - APN: 202-151-12. A. RECITALS. (i)Cafifornia Government Code Section 65864 now provides, in pertinent part, as follows: "The Legislature finds and declares that: a) The lack of certainty in the approval of development projects can result in a waste of resources, escalate the cost of housing and other developments to the consumer, and discourage investment in and commitment to comprehensive planning which would make maximum efficient utilization of resources at the least economic cost to the public. b) Assurance 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 conditions of approval, will strengthen the public planning process, encourage private participation in comprehensive planning, and reduce the economic costs of devetopment." (ii) California Government Code Section 65865 provides, in pertinent part, as follows: "Any city...may enter into a Development Agreement with any person having a legal or equitable interest in real property for the development of such property as provided in this article..." (iii) California Government Code Section 65865.2 provides, in part, as follows: Ordinance No. 625 Page 2 of 19 "A Development Agreement shall specify the duration of the Agreement, the permitted uses of the property, the density of intensity of use, the maximum height and size of proposed buildings, and provisions for reservation or dedication of land for public purposes. The Development Agreement may include conditions, terms, restrictions, and requirements for subsequent discretionary actions, provided that such conditions, terms, restrictions, and requirements for discretionary actions shall not prevent development of the land for the uses and to the density of intensity of development set fodh in the Agreement..." (iv) "Attached to this Ordinance, marked as Exhibit "A" and incorporated herein by this reference is proposed Development Agreement 00-01, concerning that property located on the east side of Amethyst Street, south of the intersection with La Grande Street, and as legally described in the attached Development Agreement. Hereina~er in this Ordinance, the Development Agreement attached hereto as Exhibit "A" is referred to as the "Development Agreement." (v) On May 24, and continued to June 14, 2000, the Planning Commission of the City of Rancho Cucamonga held a duly noticed hearing concerning the Development Agreement and concluded said hearing on that date and recommended approval through adoption of its Resolution. (vi) On June 21, 2000, the City Council of the City of Rancho Cucamonga conducted a duly noticed public hearing concerning the Development Agreement. (vii) All legal prerequisites prior to the adoption of this Ordinance have occurred. A. ORDINANCE. NOW, THEREFORE, the City Council of the City of Rancho Cucamonga does hereby find, determine, and ordain as follows: SECTION 1: This Council hereby specifically finds that all of the facts set forth in the Recitals, Part A, of this Ordinance are true and correct. SECTION 2: Prior to the adoption of this Ordinance, this Council has reviewed the Initial Study, Parts I and II, and the Development Agreement, and certified the Negative Declaration, in compliance with the California Environmental Quality Act of 1970, as amended, and the Guidelines promulgated thereunder. Ordinance No. 625 Page 3 of 19 SECTION 3: Based upon substantial evidence presented during the above- reference public hearings on May 24, and June 14 and June 21, 2000, including written and oral staff reports, together with public testimony, this Council hereby specifically finds as follows: a) The location, design, and proposes uses set forth in this Development Agreement are compatible with the character of existing development in the vicinity. b) The Development Agreement conforms to the General Plan of the City of Rancho Cucamonga. SECTION 4: It is expressly found that the public necessity, general welfare, and good zoning practice require the approval of the Development Agreement. SECTION 5: This Council hereby approves Development Agreement 00-01, attached hereto as Exhibit "A". SECTION 6: The Mayor shall sign this Ordinance and the City Clerk shall cause the same to be published with 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. PASSED, APPROVED, AND ADOPTED this 5th day of July. AYES: Alexander, Curatalo, Dutton NOES: None ABSENT: Biane ABSTAINED: Williams William ~7~,xander, Mayor Ordinance No. 625 Page 4 of 19 ATTEST: I, DEBRA J. ADAMS, CITY CLERK of the City of Rancho Cucamonga, California, do hereby cedify that the foregoing Ordinance was introduced at a regular meeting of the Council of the City of Rancho Cucamonga held on the 21't day of June 2000, and was passed at a regular meeting of the City Council of the City of Rancho Cucamonga held on the 5th day of July 2000. Executed this 6th day of July 2000, at Rancho Cucamonga, California. 'Dle'B'Fa J. Adams(/OfvlC, City Clerk Ordinance No. 625 Page 5 of 19 DEVELOPMENT AGREEMENT NO. 00-01 SENIOR CITIZENS' HOUSING THIS AGREEMENT is entered into as of the "Effective Date" set forth herein by and between NORTHTOWN HOUSING DEVELOPMENT CORPORATION, a California NON PROFIT PUBLIC BENEFIT CORPORATION ("Developer") and the CITY OF RANCHO CUCAMONGA, a municipal corporation organized and existing under the laws of the State of California ("City"). WITNESSETH: A, Recitals. 1. California Government Code Sections 65864 et seq. Authorizes cities to enter into Binding development agreements with persons having legal or equitable interests in real property for the development of such property. 2. California Government Code Section 65915 provides that a City may, by agreement with a developer, grant a density bonus over that allowed by the maximum density established in the Development Code and Land Use Element of the General Plan when a developer agrees to construct housing for low income senior households. 3. The Developer has requested City to consider the approval of a development agreement, with a density bonus, pertaining to that real property located entirely within City, the common and legal description of which is set forth in Exhibit "A," attached hereto and incorporated herein by this reference. 4. The site is now zoned Mixed Use with a Senior Housing Overlay District pursuant to the provisions of City's Development Code, as amended to date hereof. Developer and City desire to provide through this Development Agreement more specific development controls on the site which, will provide for maximum efficient utilization of the site in accordance with sound planning principles. 5. The Developer proposes to construct a senior housing residential project, including low- income units, within the City. Said project contemplated by Developer will require an increase in the maximum density as currently provided in the Mixed Use District with a Senior Housing Overlay District. Ordinance No. 625 Page 6 of 19 6. 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 a density bonus to Developer as provided by the terms of this Agreement. 7. That any housing project developed pursuant to this agreement, and any subsequent land use approvals required by City ordinances, shall comply with all appropriate provisions of the California Environmental Quality Act. 8. On July 5, 2000, City adopted its Ordinance No. , thereby approving this Development Agreement with Developer and said action was effective on August 5, 2000. B. Aqreement. NOW, THEREFORE, the parties hereto agree as follows: 1. Definitions. In this Agreement, unless the context otherwise requires, the following terms shall have the following meaning: a. "City' is the City of Rancho Cucamonga, b. "Project" is the development approved by City comprised of approximately eighty (80) to ninety-six (96) senior apartment units, one manager unit, recreational and common area facilities, parking spaces, and other amenities on the Site. c. "Qualified Project Period" means the first day on which the residential units in the development are first available for occupancy by Qualified Tenants and continuing for thirty years, except that the limitation that all tenants, occupants and residents by Qualified Tenants shall continue in perpetuity. d. "Qualified Tenants" shall mean persons or households who are at least fifty-five years or older and are senior citizens as defined in Section 51.3 of the California Civil Code as amended from time to time. (i) "Very Low Income Qualified Tenants" shall mean Qualified Tenants who possess an income equal to or less than the amounts as specified in California Health and Safety Code Section 50105, as amended. Ordinance No. 625 Page 7 of 19 (ii) "Ninety Percent Income Qualified Tenants" means a household whose annual income does not exceed ninety percent (90%) of the Area Median Income. (iii) "Area Median Income" as may be used in determining income status or rent rate herein, shall mean that determined median for the County of San Bernardino, as set forth in Califomia Health and Safety Code Section 50093, as amended. e. "Affordable Rents" shall mean the total charges for rent, and utilities, to a Very Low Income Qualified Tenant shall not exceed one*twelfth of thirty percent (30%) of Very Low Income, adjusted for household size. The total charges for rent, and utilities to a Ninety Percent Income Qualified Tenant shall not exceed one*twelfth of thirty percent (30%) of ninety percent (90%) of the Area Median Income, adjusted for household size. Initial rents for each unit shall be set by the Developer at the time of initial occupancy of the Development. Rents may be adjusted annually by the same percentage that income has increased, if any, for a Very Low Income Qualified Tenant or a Ninety Percent Income Qualified Tenant, based on changes in the Area Median Income. At least sixty calendar days prior to increasing rents on any unit restricted by this Agreement, the Developer shall submit to the City the Developer's calculation of such increase. Tenants occupying units restricted by this Agreement shall be given at least thirty days written notice prior to any rent increase. f. "Effective Date" shall mean the 31 st calendar day following adoption of the ordinance approving this Agreement by City's City Council. 2. Recitals. The recitals are part of the agreement between the parties and shall be enforced and enforceable as any other provision of this Agreement. 3. Interest of Property Owner. Developer warrants and represents that it has entered into an escrow or an agreement by which it is to acquire full legal title to the real property of the site and that it has full legal right to enter into this Agreement. 4. Bindin~ Effect of Aqreement. The Developer hereby subjects the development and the land described in Exhibit "A" hereto to the covenants, reservations and restrictions as set forth in this Agreement. 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 binding upon the Developer's successors and Ordinance No. 625 Page 8 of 19 assigns in title or interest to the Development. Each and every contract, deed, Regulatory Agreements with the Rancho Cucamonga Redevelopment Agency or other instrument hereinafier 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. City and Developer hereby declare their understanding and intent that the burden of the covenants, reservations and restrictions set forth herein touch and concern the land in that the Developer's legal interest in the development is rendered less valuable thereby. The City and Developer hereby further declare their understanding and intent that the benefit of such covenants touch and concern the land by enhancing and increasing the enjoyment and use of the Development by Qualified Tenants, the intended beneficiaries of such covenants, reservations and restrictions, and by furthering the public purposes for which this Agreement is adopted. Further, the parties hereto agree that such covenants, reservations and restrictions benefit all other real property located in the City of Rancho Cucamonga. 5. 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 and shall not be considered to be the agent of City for any purpose whatsoever. 6. Re.qulatory Aqreement: In addition to the requirements of this Agreement, the Developer shall comply with all the terms and conditions of the Regularcry Agreement with the Redevelopment Agency. 7. Term of Aqreement. The term of the Agreement shall commence on the effective date and shall expire thirty years after the commencement of the Qualified Project Period, so long as Developer remains in material compliance with this Agreement, as from time to time amended. This Agreement shall be deemed to be terminated automatically if Developer does not obtain a Certificate of Occupancy for the entirety of the Project within five (5) years of the effective date. 8. Restrictions on Rental Units. During the term of this Agreement, all tenants, occupants and residents shall be Qualified Tenants except for one resident manager. However, it is expressly understood by the parties hereto that the Project has been specifically designed to meet the unique needs of senior tenants. Accordingly, even after the expiration of the Ordinance No. 625 Page 9 of 19 to meet the unique needs of senior tenants. Accordingly, even after the expiration of the term, the limitation that all tenants, occupants and residents of apadment units in the Project shall be Qualified Tenants shall remain in perpetuity, unless the Project is made to conform with all then applicable Development Code provisions pertaining to multi-family dwellings. Said apartment units shall not be rented, occupied, leased or subleased to occupants who are not Qualified Tenants except as provided as follows: a. A person or persons who is not a Qualified Tenant, but is a "Qualified Permanent Resident as defined in Civil Code Section 51.3; b. A person or persons under fifty-five years of age may occupy apartment units as temporary tenants for a period of time not to exceed three months during any calendar year. 9. Rental Requirements. During the Qualified Project Period at least forty percent (40%) of the units in the Project, shall be rented, leased or held available for Very Low Income Qualified Tenants at affordable rents. All remaining units shall be rented, leased or held available for Ninety Percent Income Qualified Tenants at affordable rents. 10. Maintenance of Apartments as Rentals. During the term hereof, all apartment units in the Project shall remain rental units. 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. 11. On-site Manaqer. A full-time resident manager shall be provided on the Project site. 12. Tenant Committee. Residents shall have the right to establish a committee composed of tenants for the purpose of organizing social activities and providing comments and suggestions to the Developer regarding the operation and facilities of the Project. Nothing in this section shall be deemed to restrict the rights of individuals to organize activities and provide comments to the Developer. 13. Submission of Materials and Annual Review. Prior to occupancy, the 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 and Low Income Qualified Tenants. Ordinance No. 625 Page 10 of 19 On or before March 15 of each year following the commencement of the Qualified Project Period, 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. The report may be combined with, or form a part of, the Annual Report required by the Redevelopment Agency's Regulatory Agreement as long as it contains the above listed items. 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. The City shall further be allowed to conduct an annual survey of residents in the Project in order to assess senior needs. 14. Tenant Selection, Contracts and Rules and Refiulations On receipt of an application for low- income occupancy, Developer shall determine the eligibility of the occupancy under the terms of this Development Agreement. Verification of tenant eligibility shall include one or more of the following factors: a. Obtain an 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. Obtain an income tax return for the most recent tax year; c. Conduct a TRW or similar financial search; d. Obtain an income verification from all current employers; and e. If the applicant is unemployed and has no tax return, obtain another form of independent verification. Ordinance No. 625 Page 11 of 19 Developer shall be entitled to rely on the information contained in the application sworn to by the applicant. 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 the commencement of the Qualified Project Period. Such agreement shall include all rules and regulations governing tenancy within the Project. The rules and regulations shall include regulations which specifically authorize the keeping of small pets within all apartment units. 15. Termination and Eviction of Tenants. A tenancy may be terminated without the termination being deemed an 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 other wise upon thirty 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. Any termination of a tenancy other than those listed above in this paragraph 14 shall constitute an eviction. Developer shall only evict in compliance with the provision of California law and then only for material noncompliance with the terms of the rental agreement. 16. Local Residency. Residency preference shall be given where possible and to the extent permitted by law to applicants to the Project who have been residents of the City of Rancho Cucamonga. However, that factor shall not be given priority over the other elements of Qualified Tenant selection as stated herein. 17. Hazard 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 as provided in the Disposition and Development Agreement of the City's Redevelopmerit Agency. 18. Maintenance Guarantee. Developer shall comply with all City maintenance standards enacted from time to time. Ordinance No. 625 Page 12of19 19. Standards and Restriction Pedaininq to Development of the Real Property. The following specific restrictions shall apply to the use of the Site pursuant to this Development Agreement: a. Only residential uses of the real property, including provisions of services needed or desired by the residents, shall be permitted in the Project; and b. The final Site Plan and development design shall be subject to a City approved development review procedure, to be applied for by the owner; and c. The maximum density of residential dwelling units in the Project shall never be greater than 30 dwelling units per acre; and d. The maximum height for the highest proposed building in the Project shall be forty- two (42) feet; and e. The maximum size for all the buildings and the proposed square footage for each of the apartment types located in the Project shall be as set forth in a City approved development review application; and f. The provisions for reservation or dedication of land for public purposes shall be established through the development review process. g. The maximum number of required parking off-street parking spaces shall be subject to the Development Review process. but shall be no less than .7 parking space per unit and no less that 1 space for the manager's unit, and h. The minimum private open space requirement for ground floor units shall be subject to the Development Review process, and i. The minimum private open space requirement for upper floor units shall be subject to the Development Review process; and j. The minimum number of washeddryer facilities shall be modified from the Development Cede and subject to the Development Review process, but not less than one washer/dryer for every 14 units; and Ordinance No. 625 Page 13 of 19 k. The minimum building setback from the drive aisle shall be reduced to an amount not less than 9 feet; and I. Recreational amenities may be duplicated in order to fulfill the total number of recreational amenities required for the project; and m. A perimeter wall, if any, shall be subject to the Development Review process. 20. Project Design Amenities for Senior Citizens. The Project open space, buildings and individual apadments shall be designed with physical amenities catering to the needs and desires of the senior citizen residents. In addition to those conditions set forth in the development review process, following physical amenities shall be substantially included in the Project, but may be modified by the City during the Development Review process: a. Elevator service shall be provided to all upper story apartments; b. Units shall be designed to comply with the State requirements for disabled access for multiple family housing; c, Handrails shall be provided in all hallways; d. Building space shall be devoted for tenant group meetings; and e. Recreational amenities shall be oriented towards senior needs and may include, but not limited to, lawn bowling, gazebos, and barbecue areas and be subject to the Development Review process. 21. Indemnification. Developer agrees to indemnify, defend and hold City and its elected officials, officers, agents, and employees free and harmless from liability for damage or claims for damage for personal injuries, including death, and claims for property damage which may arise from the direct or indirect operations of Developer or those of its contractor, subcontractor. agent, employee or other person acting on its behalf which relate to the Project. Developer agrees to indemnify and shall defend City and it s elected officials, officers, agents, and employees with respect to actions for damages caused or alleged to have been caused by reason of Developer's activities in connection with the Project with a counsel reasonably satisfactory to the City. This indemnification provision applies to all damages and claims the operations referred to in this Development Agreement regardless of whether or not the City prepared, supplied or approved the plans, specifications or other Ordinance No. 625 Page 14 of 19 documents for the Project. Notwithstanding the foregoing, this provision shall not apply to any such claims which arise out of, or by reason of, the gross negligence or willful misconduct of the City, its elected officials, agents and employees. 22. Non-Liability of Afiency Officials, Employees, and A.qents. No member, official, employee, or agent of the City shall be personally liable to the Developer or any permitted successor-in- interest of the Developer in the event of default or breach by the City or the Rancho Cucamonga Redevelopment Agency under this agreement or for any amount which may become due to the Developer. its successors or under any obligation under the terms of this Agreement. 23. Amendments. This Agreement may be amended or canceled, in whole or in part, only by mutual written consent of the parties and then in the manner provided for in California Government Code Section 65868 et seq. 24. Federal, State Preemption: As provided in State Govemment Code Section 65869.5, where state or federal laws or regulations enacted after this Development Agreement has been entered into prevent or preclude compliance with the provisions of the Development Agreement, such provisions shall be modified or suspended as may be necessary to comply with such State or federal laws or regulations. 25. Administrative Modifications: Minor conflicts resulting from the strict interpretation of this Agreement with the application of the City's development regulations may be modified administratively by the City Planner. 26. Enforcement. In the event of a default under the provisions of this Agreement by Developer, City shall give written notice to Developer (or its successor) at the address of the Project, and by registered or certified mail addressed to the address stated in this Agreement, and if such violation is not corrected to the reasonable satisfaction of City within thirty days after such notice is given, or if not corrected within such reasonable time as may be required to cure the breach or default if said breach or default cannot be cured within thirty days (provided that acts to cure the breach or default must be commenced within said thirty days and must thereafter be diligently pursued by Developer), then City may. without further notice, declare a default under this Agreement and, upon any such declaration of default, City may bring any action necessary to specifically enforce the obligations of Developer growing out of the operation of this Development Agreement, apply to any court, state or federal, for injunctive relief against any violation by Developer of any provision of this Agreement or apply for such other relief as may be appropriate. Ordinance No. 625 Page 15 of 19 After completion of the Project pursuant to the terms of this Agreement, any default may alternatively be enforced as any normal violation of the standards and provisions of the Rancho Cucamonga Municipal Code. Accordingly, the following penalty is specifically included as part of this Agreement: "It shall be unlawful for any person, firm, partnership, or corporation to violate any provision or to fail to comply with any of the requirements of this Agreement. Any person, firm, partnership, or corporation violating any provision of this Agreement by failing to comply with any of its requirements shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished by a fine not exceeding One Thousand Dollars or by imprisonment not exceeding six months, or by both such fine and imprisonment. Each such person, firm, partnership or corporation shall be deemed guilty of a separate offense for each and every day or any portion thereof during which any violation of any of the provisions of this Agreement is committed, continued or permitted by such person, firm, partnership or corporation. and shall be punishable therefore as herein." 27. 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 material warranty, representation or statement is made or fumished by Developer to City and is false or proved to have been knowingly false in any material respect when it was made; b. If a finding and determination is made by City following an annual review pursuant to paragraph 13 herein above, upon the basis of substantial evidence that Developer has not complied in good faith with any material terms and conditions of this Agreement, after notice and opportunity to cure as described in paragraph 34 herein above; or c. A breach by Developer of any of the provisions or terms of this Agreement, after notice and opportunity to cure as provided in paragraph 34 herein above. 28. No Waiver of Remedies. 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 Ordinance No. 625 Page 16 of 19 a failure of any third party or entity, other than City. All other remedies at law or in equity which are not otherwise provided for in this Agreement or in City's regulations governing development agreements are available to the parties to pursue in the event that there is a breach of this Development Agreement. No waiver by City of any breach or default under this Development Agreement shall be deemed to be a waiver of any other subsequent breach thereof or default hereunder. 29. Rights of Lenders Under this Aqreement. 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, mortgages, 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 exemising 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 (hereinafter referred to as "the trust deed"); 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 vidue of any foreclosure sale, whether the foreclosure sale be conducted pursuant to a court order or pursuant to a power of sale contained in a trust deed. The City agrees that the terms of this Agreement are subordinate to any such financing instrument and shall execute from time to time any and all documentation reasonably requested by Developer or Lender to effect such subordination. 30. Notice to Lender. City shall give written notice of any default or breach under this Agreement by Developer to Lender and afford Lender the opportunity after service of the notice to: a. Cure the breach or default within sixty days after service of said notice, where the default can be cured by the payment of money; Ordinance No. 625 Page 17 of 19 b. Cure the breach or default within sixty days after service of said notice, where the breach or default can be cured by something other than the payment of money and can be cured within that time; or c. Cure the breach or default in such reasonable time as may be required where something other than payment of money is required to cure the breach or default and cannot be performed within sixty days after said notice, provided that acts to cure the breach or default are commenced within a sixty day period after service of said notice of default on Lender by City and are thereafter diligently continued by Lender. 31. Action by Lender. Notwithstanding any other provision of this Agreement, a Lender may forestall any action by City for a breach or default under the terms of this Agreement by Developer by commencing proceedings to foreclose its encumbrance or lien on the Project. The proceedings so commenced may be for foreclosure of the encumbrance by order of court or for foreclosure of the encumbrance under a power of sale contained in the instrument creating the encumbrance or lien. The proceedings shall not, however, forestall any such action by the City for the default or breach by Developer unless: a. They are commenced within sixty days after service on Lender of the notice described herein above; b. They are, after having been commenced, diligently pursued in the manner required by law to completion; and c. Lender keeps and performs all of the terms, covenants and conditions of this Agreement requiring the payment or expenditure of money by Developer until the foreclosure proceedings are complete or are discharged by redemption, satisfaction or payment. 32. Rent Control. In consideration for the limitations herein provided, City agrees that it shall not, during the term of this Agreement, take any action, the effect of which will be to control, determine or affect the rents for those low income rental units located in the Project, except as otherwise provided in this Agreement. 33. Notice. Any notice required to be given by the terms of this Agreement shall be provided by certified mai~, 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. Ordinance No. 625 Page 18 of 19 Developer: Nacho Gracia, Executive Director Northtown Housing Development Corporation 9999 Feron Boulevard #A Rancho Cucamonga, CA 91730 City: City of Rancho Cucamonga 10500 Civic Center Drive P.O. Box 807 Rancho Cucamonga, CA 91730 34. Attorney's Fees. In any proceedings arising from the enforcement of this Development 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. 35. Bindin~ Effect. This agreement shall bind, and the benefits and burdens hereof shall inure to. the respective parties hereto and their legal representatives, executors, administrators, successors, and assigns, wherever the context requires or admits. 36. Applicable Law. This Agreement shall be construed in accordance with and governed by the laws of the Sta~:e of California. 37. Padial 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. 38. Recordation. This Agreement shall, at the expense of Developer, be recorded in the Official Records of the County Recorder of the County of San Bernardino. Ordinance No. 625 Page 19 of 19 IN WITNESS WHEREOF, this Agreement has been executed by the padies and shall be effective on the effective date set forth herein above. CITY Of RANCHO CUCAMONGA Dated: By William J. Alexander, Mayor NORTHTOWN HOUSING DEVELOPMENT CORP. Dated: By Nacho Gracia, Executive Director