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HomeMy WebLinkAbout876 - Ordinances - DEVELOPMENT AGREEMENT DRC2014-00610 - SENIOR HOUSING ORDINANCE NO. 876 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA APPROVING DEVELOPMENT AGREEMENT DRC2014-00610 FOR THE PURPOSE OF PROVIDING A SENIOR HOUSING PROJECT IN ACCORDANCE WITH THE SENIOR HOUSING OVERLAY ZONING DISTRICT (SHOZD) INCLUDING A DEVIATION FROM CERTAIN DEVELOPMENT STANDARDS FOR THE DEVELOPMENT OF A 24,641 SQUARE FOOT, 60-UNIT SENIOR APARTMENT COMPLEX ON 2.25 ACRES OF LAND LOCATED ON THE WEST SIDE OF ARCHIBALD AVENUE, SOUTH OF BASE LINE ROAD; APN: 0208-031-58 AND 0208-031-59. A. Recitals. 1. California Government Code Section 65864 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 development 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 development. 2. California Government Code Section 65865 provides, in pertinent part, as follows: a. Any city, county, or city and county, may enter into a development agreement with any person having a legal or equitable interest in real property for the development of the property as provided in this article. 3. California Government Code Section 65865.2 provides, in pertinent part, as follows: a. A development agreement shall specify the duration of the agreement, the permitted uses of the property, the density or 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 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 agreement." 4. Attached to this Ordinance, marked as Exhibit A and incorporated herein by this reference is proposed Development Agreement DRC2014-00610, concerning that property located on the west side of Archibald Avenue, south of Base Line Road, and as described in the title of this Ordinance. Hereinafter in this Ordinance, the Development Agreement attached hereto as Exhibit A is referred to as the "Development Agreement" as "the application." ORDINANCE NO. 876 - Page 1 of 4 5. On the 13th of May 2015, the Planning Commission of the City of Rancho Cucamonga conducted a duly noticed public hearing with respect to the above referenced Development Agreement and, following the conclusion thereof, adopted its Resolution No. 15-35, recommending that the City Council of the City of Rancho Cucamonga adopt said Development Agreement. 6. On the 3rd of June 2015, the City Council of the City of Rancho Cucamonga conducted a duly noticed public hearing on the Development Agreement and concluded said meeting on that date. 7. All legal prerequisites prior to the adoption of this Ordinance have occurred. B. Ordinance. The City Council of the City of Rancho Cucamonga does ordain as follows: SECTION 1: This City 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: Based upon substantial evidence presented to the City Council during the above-referenced public hearing on June 3, 2015, including written and oral staff reports, together with public testimony, the City Council hereby specifically finds as follows: a. The proposed Development Agreement and each and every term and provision contained therein conforms to the General Plan of the City of Rancho Cucamonga as amended by DRC2014-00546, a request to amend the General Plan land use designation for the subject property from Low to High Residential, and conforms to the Zoning Map of the City of Rancho Cucamonga as amended by DRC2014-00547, a request to amend the Zoning Map land use district from the Low (L) Residential District to the High (H) Residential District and Senior Housing Overlay Zoning District (SHOD); and b. The proposed Development Agreement is consistent with the objectives, policies, and general land uses specified in the General Plan and any applicable Specific Plans; and c. The proposed Development Agreement is compatible and in conformity with public convenience, general welfare, and good land use and zoning practice; and d. The proposed Development Agreement will not be detrimental to the health, safety, and general welfare of the City; and e. The proposed Development Agreement will not adversely affect the orderly development of property or the preservation of property values; and f. The location, design, and purposes set forth in this proposed Development Agreement are compatible with the character of existing development in the vicinity; and SECTION 3: 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: ORDINANCE NO. 876 - Page 2 of 4 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 Planning Director 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. 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 DRC2014-00610, attached hereto as Exhibit A. SECTION 6: If any section, subsection, sentence, clause, phrase, or word of this Ordinance 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 Ordinance. The City Council of the City of Rancho Cucamonga hereby declares that it would have adopted this Ordinance 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 Ordinance 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. ORDINANCE NO. 876 - Page 3 of 4 PASSED, APPROVED, AND ADOPTED this 17th day of June 2015. AYES: Alexander, Kennedy, Michael, Spagnolo, Williams NOES: None ABSENT: None ABSTAINED: None / w■ 2 / L: nni Micha-I, Mayor ATTEST: -1 Janic- ' . F eynolds, City Clerk / I, JANICE C. REYNOLDS, CITY CLERK of the City of Rancho Cucamonga, California, do hereby certify that the foregoing Ordinance was introduced at a Regular Meeting of the Council of the City of Rancho Cucamonga held on the 3th day of June 2015, and was passed at a Regular Meeting of the City Council of the City of Rancho Cucamonga held on the 17th day of June 2015. Executed this 18th day of June 2015, at Rancho Cucamonga, California. A , . • c- . Reynolds, City Clerk / ORDINANCE NO. 876 - Page 4 of 4 Recorded in Official Records, County of San Bernardino 7/21/2016 ' BOB DUTTON 2:58 PM SG ': n` wa;.q ASSESSOR - RECORDER - CLERK SAN fern' Criahn P Counter RECORDING REQUESTED BY: Doc#: 2016—0292138 Titles: 1 Pages: 23 CITY OF RANCHO CUCAMONGA Fees 0.00 Taxes 0.00 and 11111,1 I I I II IIIIIIII PAIDr 0.00 80.00 WHEN RECORDED MAIL TO: City Clerk City of Rancho Cucamonga P.O. Box 807 1V�rt. w J - `O. V1 Rancho Cucamonga, CA, 91729 ,1, .1\V' DEVELOPMENT AGREEMENT DRC 2014-00610 SENIOR CITIZENS' HOUSING BY AND BETWEEN THE CITY OF RANCHO CUCAMONGA AND 7418 ARCHIBALD LLC (CO 15-122) Title of Document • • CCWMAcr No. DEVELOPMENT AGREEMENT DRC2014-00610 CO :-. /90) SENIOR CITIZENS' HOUSING THIS DEVELOPMENT AGREEMENT ("Agreement") is entered into as of the Effective Date by and between 7418 ARCHIBALD LLC, a California limited liability company ("Developer"), and the CITY OF RANCHO CUCAMONGA, a municipal corporation organized and existing under the laws of the State of California("City"). RECITALS A. California Government Code Sections 65864 et sec. authorizes cities to enter into binding development agreements with persons having legal or equitable interests in real property for the development of such property. B. 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 households. C. 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 and hereinafter is referred to as the Site." D. 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 Senior Housing Overlay District. 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 a density bonus to Developer as provided by the terms of this Agreement. F. On £ €.. 17 , 2015, City adopted its Ordinance No.X7 approving this Development Agreement with Developer and said action was effective on Svl Y 17 , 2015. 1 1076\55\1639142.5 icA • • AGREEMENT 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. "40% Income Qualified Tenants" shall mean Qualified Tenants whose annual income does not exceed forty percent(40%) of the Area Median Income. b. "Affordable Rents" shall mean the total charges for rent, utilities, and related services to an Extremely Low Income Qualified Tenant shall not exceed one-twelfth of thirty percent (30%) of Extremely Low Income, adjusted for household size; to a 40% Income Qualified Tenant shall not exceed one-twelfth of thirty percent(30%) of 40% of Area Median, adjusted for household size; and to a Very Low Income Qualified Tenant shall not exceed one-twelfth of thirty percent(30%) of Very Low 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 an Extremely Low Income Qualified Tenant, a 40% Income Qualified Tenant and a Very Low Income Qualified Tenant, based on changes in the Area Median Income. Rents may be set at the California Tax Credit Allocation Committee allowable rents for a specific year for the comparable income categories of Qualified Tenants as specified in this Agreement. Tenants occupying units restricted by this Agreement shall be given at least thirty(30) days written notice prior to any rent increase. Examples of these affordable rent calculations are attached on Exhibit C. c. "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 ("HUD") 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 use the income determinations used by the California Tax Credit Allocation Committee or alternatively the Owner shall establish income determinations that are reasonably similar with respect to methods of calculation to those previously published by HUD. d. "City" is the City of Rancho Cucamonga, California. e. "Effective Date" shall mean the 31 t calendar day following adoption of the ordinance approving this Agreement by City's City Council. f. "Extremely Low Income Qualified Tenants" shall mean Qualified Tenants whose annual income does not exceed the qualifying limits as specified in California Health and Safety Code Section 50106, as amended. g. "Lower Income Qualified Tenants" shall mean Qualified Tenants whose annual income does not exceed the qualifying limits as specified in California Health and Safety Code Section 50079.5, as amended. 2 1076\55\1639142.5 • • h. "Project" is the development approved by City comprised of sixty(60) apartment units, recreational and common area facilities, sixty(60) parking spaces and other amenities on the Site, all as set forth more fully in the site plan for Environmental Assessment and Design Review DRC2014-00545 submitted by Developer and approved by City, a copy of which is attached hereto, marked as Exhibit "B" and is incorporated herein by this reference. The Project is subject to the conditions of approval which are not changed, altered or modified by this Development Agreement unless specifically set forth herein. i. "Qualified Project Period" means the time period beginning with the date the certificate of occupancy is issued for the Project and continuing for fifty-five (55) years thereafter. j. "Qualified Tenants" shall mean households consisting of a person who is 55 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 programshave differing definitions for senior projects in which case those definitions will apply). k. "Very Low Income Qualified Tenants" shall mean Qualified Tenants whose annual income does not exceed the qualifying limits as specified in California Health and Safety Code Section 50105, as amended. 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 other 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. Binding Effect of Agreement. 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 assigns in title or interest to the Development. 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. 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. 6. Term of Agreement. The term of the Agreement shall commence on the Effective Date and shall expire fifty-five (55) 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 3 1076\55\1639142.5 • • obtain a Certificate of Occupancy for the entirety of the Project within five (5) years after the Effective Date, except to the extent this time frame is extended by the City Manager, or designee, in writing in his or her reasonable discretion. 7. Restrictions on Rental Units. During the term of this Agreement, all tenants, occupants and residents shall be Qualified Tenants. However, it is expressly understood by the parties hereto that the Project has been specifically designed to meet the unique needs of senior tenants. The apartment units in the Project shall not be rented, occupied, leased or subleased to occupants who are not Qualified Tenants. 8. Rental Requirements. During the Qualified Project Period, at least six (6) of the units in the Project shall be rented, leased or held available for Extremely Low Income Qualified Tenants at affordable rents; at least twelve (12) of the units in the Project shall be rented, leased or held available for 40% Income Qualified Tenants at affordable rents; and at least eleven (1 1) of the units in Project shall be rented, leased or held available for Very Low Income Qualified Tenants at affordable rents. All other units in the Project shall be rented, leased or held available for Lower Income Qualified Tenants. 9. No Conversion. During the term hereof, all apartment 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. 10. On-site Manager. A full-time manager shall be provided on the Project site. 11. 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 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. 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 4 1076\55\1639142.5 • • Developer harmless from and against any claims, liabilities, damages, costs, expenses incurred by Developer relating in any way to City's inspections and investigations. 12. Tenant Selection, Contracts and Rules and Regulations. On 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 include one or more of the following factors, or any other factors permitted by the California Tax Allocation Committee for the low income housing tax credit program: 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. 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. 13. 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 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. Any termination of a tenancy other than those listed above in this paragraph 13 shall constitute an eviction. Developer shall only evict in compliance with the provisions of California law and then only for material noncompliance with the terms of the rental agreement. 14. 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 5 1076\55\1639142.5 • • Developer may determine. During the term hereof, the Project shall be insured to its full insurance replacement value. 15. Maintenance Guarantee. Developer shall comply with all City maintenance standards enacted from time to time. 16. Standards and Restriction Pertaining to Development of the Real Property. 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; and c. The maximum density of residential dwelling units in the Project shall never greater than 30 dwelling units per acre. 17. Development Incentives. The City will grant Developer the following development incentives for development of the Project: a. Increase the maximum density on the site from 24 dwelling units per acre to 26.6 dwelling units per acre; and b. Decrease the required number of on-site parking spaces to a minimum ratio of 0.7 non-covered parking spaces per unit, however, the Developer will provide a minimum ratio of 1 non-covered parking spaces per unit. 18. 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 693 square feet for 1-bedroom residential units and 945 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; e. All units shall possess secured entryways off a common enclosed hallway; and 6 1076\55\1639142.5 • • 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 garden meeting spaces). 19. Indemnification. Developer agrees to and shall hold City and its elected officials, officers, agents and employees 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 and shall defend City and its elected officials, officers, agents and employees with respect to actions for damages caused or alleged to have caused by reason of Developer's activities in connection with 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. 20. 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 Sections 65868 et seq. 21. Event of Default. Developer is in default under this Agreement upon the happening of one or more of tthe following events or conditions: a. If a material warranty, representation or statement is made or furnished by Developer to City and is false or proved to have been false 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 paragraph 22. 22. 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(30) 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(30) days (provided that acts to cure the breach or default must be commenced within said thirty (30) 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. 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. 23. No Wavier 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 7 1076\55\1639142.5 • • 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 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 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. 24. 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, 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 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 (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 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. 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. 25. Notice to Lender. City shall give written notice of any default or breach under this Agreement by property owner to Lender and afford Lender the opportunity after service of the notice to: a. Cure the breach or default within sixty(60) days after service of said notice, where the default can be cured by the payment of money; b. Cure the breach or default within sixty(60) 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(60) days after said notice, provided that acts to cure the breach or default are 8 1076\55\1639142.5 • • commenced within a sixty (60) day period after service of said notice of default on Lender by City and are thereafter diligently continued by Lender. 26. 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. 27. Notice. 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. Developer: 7418 Archibald LLC c/o Orange Housing Development Corporation 414 E. Chapman Avenue Orange, California 92866 with a copy to: C & C Development Co., LLC 14211 Yorba St., Ste. 200 Tustin, CA 92780 Attn: Todd Cottle City: City of Rancho Cucamonga 10500 Civic Center Drive P.O. Box 807 Rancho Cucamonga, CA 91730 Attn: City Manager 28. Attorneys' 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. 29. Binding 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. 30. Applicable Law. This Agreement shall be construed in accordance with and governed by the laws of the State of California. 31. 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. 9 1076\55\1639142.5 • • 32. Recordation. This Agreement shall be recorded in the Official Records of the County Recorder of the County of San Bernardino. SIGNATURES ON FOLLOWING PAGE 10 1076\55\1639142.5 IN WITNESS WHEREOF, this Agreement has been executed by the parties and shall be effective on the Effective Date set forth herein. DEVELOPER: CITY: 7418 ARCHIBALD LLC, a California CITY OF RANCHO CUCAMONGA, a limited liability company municipal corporation By: Orange Housing Development / / Corporation, a California nonprofit i corporation, its member By: il. i,✓� r ennis Michael Mayor By: Eunice Bobert Chief Executive Officer ATTEST: By: C&C Development Co., LLC, a California limited liability company, i ani C. Reynolds, City Clerk member APPROVED AS TO FORM: By: RICHARDS, WATSON & GERSHON Todd R. Cottle, its member By: The Cottle Family Trust Dated 3/8/1987, its member BY: -- City Attorney By: �� �� B�(ry A. attI"e, Trustee 11 1076\55\1639142.5 CALIFORNIA ALL- PURPOSE CERTIFICATE OF ACKNOWLEDGMENT 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 San Bernardino Melissa Miller, Notary Public On 7/20/201.(0 before me, (Here inert name and Ode or the officer) personally appeared L L P)'q A be-in r 15 Inn(1116-el 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. MELISSA MILLER WITNESS my hand and official seal. ' sir::. commission u 2141479 it-HC-I• Notary Public-California z San Bernardino County • / M Comm. Ex ires Feb!,!0_29.1 Notary •u ilic Signature (Notary Public Seal) • o ADDITIONAL OPTIONAL INFORMATION INSTRUCTIONS FOR COMPLETING THIS FORM This form complies with current Ca!fomia statutes regarding notary wording and. DESCRIPTION OF THE ATTACHED DOCUMENT if needed,should be completed and attached to the document Aclmowledgments from other states may be completed for documents being sent to that stale so long as the wording does not require the Cal fornta notary to violate Cal forma notary (me. (Title or description of attached document) • State and County information must be the State and County where the document signer(s)personally appeared before the notary public for acknowledgment. • Dale of notarization must be the date that the signer(s)personally appeared which (Title or description of attached document continued) must also be the same date the acknowledgment is completed. • The notary public must print his or her name as it appears within his or her Number of Pages Document Date commission followed by a comma and then your title(notary public). • Print the name(s) of document signer(s) who personally appear at the time of notarization. CAPACITY CLAIMED BY THE SIGNER • Indicate the correct singular or plural forms by crossing off incorrect forms(i.e. ❑ Individual (s) he/she/tey,-his lure)or circling the correct forms.Failure to correctly indicate this information may lead to rejection of document recording. O Corporate Officer • The notary seal impression must be clear and photographically reproducible. Impression must not cover text or lines. If seal impression smudges,re-seal if a (0 itle) sufficient area permits,otherwise complete a different acknowledgment form. ❑ Partner(s) • Signature of the notary public must match the signature on file with the office of the county clerk. 0 Attorney-in-Fact a Additional information is not required but could help to ensure this ❑ Trustee(s) acknowledgment is not misused or attached to a different document. Other i Indicate title or type of attached document,number of pages and date. ❑ C. Indicate the capacity claimed by the signer. If the claimed capacity is a corporate officer,indicate the title(i.e.CEO,CFO,Secretary). 2015 Version www.NotaryClasses.com 500-873-9865 • Securely attach this document to the signed document with a staple. 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 Oran" On n., 24i , 24,1r , before me, . EJw. Js , Notary Public, personally appeared 1:1AR.la464. ,6.,,, A. 'CAL f n.r« 1.3,{k,,4. , who proved to me on the basis of satisfactory evidence to be the pers6n(s)whose name(s)i tare subscribed to the within instrument and acknowledged to me that he/aahe/they executed the same in hi641er/their authorized capacity(ies), and that by hioAaer/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. _ 24 81EPNfl1 JET E�1U108 t ..': Commission 1105!013 a $ •L., . Cho djJ • n [rotary Public•California z y•% Orange County Notary Public 3_ _ Nlr Comm.Expires Feb 23.2018 • 1076\55\1639142.5 • • EXHIBIT "A" SITE LEGAL DESCRIPTION THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: The North 160 feet of the South 1/2 of Lot 1, Section 3, Township 1 South, Range 7 West, San Bernardino Base and Meridian according to the Map of Cucamonga Lands, in the City of Rancho Cucamonga, County of San Bernardino, State of California, as per Map recorded in Book 4 Page 9 of Maps, in the office of the County Recorder of said County. EXCEPT the East 45 feet thereof conveyed to the County of San Bernardino, a body corporate in the Deed recorded March 19, 1965, in Book 6352, Page 952, of Official Records. APN: 0208-031-58-0-000, 0208-031-59-0-000 A-1 1076\55\1639142.5 • 0 • ,,< „ � Fj 1NONIOJ T - SE➢ NOI1tlHOdYOJ 1N3WdOl3A3O ONIS1511OH 0H 30NtlJ9L0 _ ° '' u;;;;;;;4iA NVId 3LS e • /I I\ �., � I �rcr WANrWiJ . �����1A d law a ii1IMM >3Z3YZZs%%%'r: 1 fa Li p Ilitird :dS of I 1 44 I V 41 a�� well65112 i a 8 l _ 1�I • r £{[{[ w law_.. �//I�� 19 u 1 s a s w f i9 ° i J1N z ;y1. 8 W 3 Nai I w a r t I !Lq _ye "-�'Ep �. � fYy+Y"a4 ° ? = s ,`, � ���j 11m1 h i " a 'Emm is' € eg: 'i us w o©oa0000�o 410 - ii \�§ -s =,e@sass css@caca.`sae www a tal =i1 jil 2 ' r-a Am, ••r ream! 7/zi II` er i Mir " i ' e m -. m 4 Si Ii 0 1 - vL la L/�inn 16 o .1.s %. a s 6 e �+1 R ii .Ca a °93i "^.P a P p a E =_« Y y� g 44. Eiil ei 1 N 3 a g MOY£ w S In rS 11 i I 4 G S 51fl l 8 m 1 iligal 'mil, 3 ^ 2 2 S5g. 2a r iYW' c__, k I(pl �. r i 3 O tf .% , 1 4I F p 1 _ g o € 8 �Ir�- Laj m . x ✓g�� o �1M \ / b v' Yn .,„t. ,-.0'Z �q4 II I � .. !WI R 6 3 n. & ..^..^. �� II • e ' - Ji aQe 1 .- HA g 0. $ .Ci i_. f C 1 1�/�"�:Y, '',8 g ''2 ww e ___ _ p£ 2 { a .2 1 I.. . `,'/ + Y 21,olii= E € 8 2i " a3A`N3 F =M Ida ® 4 ll e 9221 F"0004 2 21 a g 5 41"4 - g2-21 \ - 9 2 f ��a_ s 3 O il 77W177I I I I II • • • EXHIBIT "C" EXAMPLE INCOME AND AFFORDABLE RENT CALCULATIONS Examples of the maximum incomes and Affordable Rents for different income levels as restricted under this Agreement are shown on the following charts which are the maximum income levels and rents published by the California Tax Credit Allocation Committee for 2015 for projects placed in service after March 6, 2015. These charts are for illustrative purposes only and the actual maximum incomes and Affordable Rents will be based on the charts published by the California Tax Credit Allocation Committee for each year after the Project is placed in service. MAXIMUM INCOMES Revised per HUD Notice CALIFORNIA TAX CREDIT ALLOCATION COMMITTEE Effective:Mardi 6,2015 2015 Maximum Income Levels For Projects Placed in Service on or after 3/6/20/5 One Two Three Four Five Six Seven Eight County Person Person Person Person Person Person Person Person SAN BERNARDINO 100%Income Level $43,500 $49,700 $55,900 $62,100 $67,100 $72,100 $77,100 $82,000 60%Income Level $26,100 $29,820 $33,540 $37,260 $40,260 $43,260 $46,260 $49,200 55% Income Level $23,925 $27,335 $30,745 $34,155 $36,905 $39,655 $42,405 $45,100 50% Income Level $21,750 $24,850 $27,950 $31,050 $33,550 $36,050 $38,550 $41,000 45% Income Level $19,575 $22,365 $25,155 $27,945 $30,195 $32,445 $34,695 $36,900 40% Income Level $17,400 $19,880 $22,360 $24,840 $26,840 $28,840 $30,840 $32,800 35% Income Level $15,225 $17,395 $19,565 $21,735 $23,485 $25,235 $26,985 $28,700 30%Income Level $13,050 $14,910 $16,770 $18,630 $20,130 $21,630 $23,130 $24,600 • • C-1 1076\55\l639142.5 AFFORDABLE RENTS Revised per HUD Notice CALIFORNIA TAX CREDIT ALLOCATION COMMITTEE Effective:March 6,2015 2015 Maximum Rents for Projects From Ceilings Post-1989 and Those from the Pre-1990 Ceilings That Elected with the Secretary of the Treasury to use the Post-1989 Rents ?See IRC Section 42-Section 13142(c)of the Omnibus Budget Reconciliation Act of 1993) • For Projects Placed in Service on or after 3/6/2015 • County Efficiency 1 BR 2 BR 3 BR 4 BR 5 BR SAN BERNARDINO 100%Income Level $1,086 $1,164 $1,396 $1,614 $1,802 $1,988 60%Income Level $652 $699 $838 $969 $1,081 $1,193 55%Income Level $598 $640 $768 $888 $991 $1,093 50%Income Level $543 $582 $698 $807 $901 $994 45%Income Level $489 $524 $628 $726 $811 $894 40%Income Level $435 $466 $559 $646 $721 $795 35%Income Level $380 - $407 $489 $565 $630 $696 30%Income Level $326 ' $349 $419 $484 $540 $596 C-2 1076\55\1639142.5 • • EXHIBIT "B" SITE PLAN [attached B-1 1076\55U 639142.5 • • Bank of America e Merrill Lynch TERM SHEET (Soft Pay Subordinate Loan) May 28, 2015 VIA EMAIL Todd Cottle ' C&C Development 14211 Yorba Street,Suite 200 Tustin,CA 92780 Re: Soft Pay Subordinate Loan for 815 N. Harbor, located in Santa Ana, California(the "Project") Dear Todd: This letter will serve as a preliminary outline of the terms under which Bank of America, N.A. (the "Bank") would consider a loan request on the above referenced project. This letter does not represent an offer or commitment by the Bank for the proposed financing,nor does it define all the terms and conditions of a loan commitment, but is a framework upon which a loan request may be submitted. Issuance of a commitment by the Bank is subject to, among other things, the completion of the following items,and approval of the loan request under the Bank's internal approval process. The Bank may decline to approve the loan request. Upon your response to this letter and after providing any additional information which may be necessary, the Bank will proceed with the necessary due diligence to submit the loan request. The proposed terms and conditions are as follows: Project: To be constructed 70-unit apartment complex located on 2.26+/-acres in Santa Ana, California on the above referenced property. Borrower: Form and substance of Borrower must be acceptable to the Bank. Reporting Requirements: Borrower and Guarantors' financial statements, covenant compliance certificates, property operating statements, leasing summaries shall and any other reports required by Bank shall be provided in detail and frequency as determined by the Bank in its sole discretion. Know Your Customer: Within five (5) business days of opening an account with Bank, Borrower shall have delivered to Bank all due diligence materials necessary and relevant to verifying Borrower's identity and background information, as deemed necessary by Bank in its sole and absolute discretion. Other Requirements: All of the following to be acceptable to the Bank: documentation and submissions that are standard for loans of this type including, but not limited to, appraisal, ESA, legal documentation, title/survey, condition of markets/submarkets, revenue/expense pro-formas, financial review of Borrower, • • Guarantor; and (as applicable), proof of tax credit award, equity investor and pay-in schedule, and other terms and conditions as may be required. Confidentiality: This term sheet is strictly confidential and may not be shared by the Borrower with anyone else other than the owners of Borrower. SUBORDINATE LOAN: Loan Amount: $1,400,000.00 Loan Limits: Funding will be limited to no more than $100,000 per affordable unit. Use: Loan Proceeds shall be available for development in connection with LIHTC, multifamily transactions. Subordinate Loan Interest Rate: Note rate will be zero percent(0%). Subordinate Loan Maturity: Shall be coterminous with the first mortgage loan, and in the event of no first mortgage loan, shall not be longer than eighteen(I8) years from loan closing. Repayment Terms: Principal will be due the earlier of maturity, sale or refinance and may be forgiven based on certain performance criteria. Collateral: Collateral shall include the following: 1) Non-Recourse Junior Lien Deed of Trust on land and improvements constructed thereon. 2) UCC filing on furniture, fixtures and equipment. 3) Collateral Assignment of Contracts, Management Agreements, Permits and other Project related documents. Marketing: Development must meet the same affirmative marketing standards as are set forth in 24 C.F.R. § 200.620. Other Terms: Availability of the Loan under this term sheet is expressly conditioned upon the Borrower and Project receiving approval for construction financing from Bank. Special Conditions: Project must utilize federal Low Income Housing Tax Credits or equivalent and must meet all of the following conditions: I) At least 20% of the residential units are affordable at or below 50% Area Median Income (AMI) or at least 40%of the units are affordable at or below 60% AMI. 2) Utilize a Land Use Restriction Agreement (LURA) with at least a 30 year term in a form acceptable to the Bank. 3) Borrower must agree to accept Housing Choice Vouchers. 4) Project must close and fund no later than August 31, 2015. Additional Special Conditions: Project must meet the following additional conditions: I) Project is located at 815 N. Harbor Blvd, Santa Ana, CA 92703 and is located within a Small Area DDA. 2 • 0 2) At least 1% of the total number of affordable housing units include two(2) bedrooms and at least 98% include three (3) or more bedrooms. 3) Project occupancy is not age restricted. GENERAL PROVISIONS: Fees and Expenses: Borrower will pay all reasonable costs incurred by the Bank in connection with the loans including, but not limited to, legal, and third party report. Borrower acknowledges that Bank may receive a benefit, including, without limitation, a discount, credit or other accommodation, from outside counsel based on the fees such counsel may receive on account of their relationship with Bank including, without limitation, fees paid pursuant hereto. Material Adverse Change: Bank of America's obligations hereunder shall terminate if, prior to closing, Bank of America determines, in its sole judgment, that there shall exist any conditions regarding the property, or the operations, business, assets, liabilities or condition (financial or otherwise, including credit rating) of Borrower or Guarantor, or there shall have occurred a material adverse change in, or there shall exist any material adverse conditions in, the market for syndicated bank credit facilities or the financial, banking, credit or debt capital markets generally, that could be expected to cause the loan to become delinquent or prevent any guarantor from performing its obligations under any guaranty or to materially and adversely affect the value or marketability of the loan or the property or Bank of America's ability to syndicate the loan or the viability of obtaining permanent financing for the Project. Assumptions made: The terms discussed herein are presented, based on the credit conditions in the potential transaction as known by Bank of America. Should additional facts come to light that positively or negatively impact the situation, prices or other requirements quoted here may be adjusted. Tax treatment: Bank of America may be required to report the amount of the forgiven debt to the Internal Revenue Service. Current federal law provides for certain exceptions to tax liability when debt is forgiven for some customers under certain facts and circumstances; however, debt elimination may trigger state and federal income tax liabilities for customers. To understand whether they qualify for one of these exceptions and what other tax implications this transaction may have, we urge customers to contact a tax professional.Additional information on debt forgiveness can be found at www.irs.gov. Expiration: This term sheet will expire at 5:00 p.m. on June 4, 2015, five (5) business days from the date hereof unless you execute this term sheet and return it to us prior to that time. Upon receipt of the signed letter, the Bank will proceed with the necessary due diligence to prepare and submit your loan request, provided, however that in any event, this term sheet will finally expire at 5:00 p.m. on July 29, 2015,the date which is sixty(60)days from the date hereof. Please understand that this term sheet does not represent an offer or commitment by Bank of America, or any of its affiliated entities, for the proposed new financing, nor does it define all of the terms and conditions of a loan commitment, but is a framework upon which a loan request may be submitted. Issuance of a commitment by Bank of America is subject to, among other things, the approval of your loan request under the Bank's approval process. If Bank of America issues a financing commitment in this transaction, it will in all respects supersede this letter. The undersigned acknowledges and agrees that: (i) the transaction contemplated by this Term Sheet is an arm's length, commercial transaction between you and Bank in which Bank is acting solely as a principal and for its own interest; (ii) Bank is not acting as a municipal advisor or financial advisor to you; (iii) 3 • • Bank has no fiduciary duty pursuant to Section 15B of the Securities Exchange Act of 1934 to you with respect to the transaction contemplated hereby and the discussions, undertakings and procedures leading thereto (irrespective of whether Bank has provided other services or is currently providing other services to you on other matters); (iv) the only obligations Bank has to you with respect to the transaction contemplated hereby expressly are set forth in this Term Sheet; and (v) Bank is not recommending that you take an action with respect to the transaction contemplated by this Term Sheet, and before taking any action with respect to the contemplated transaction, you should discuss the information contained herein with its own legal, accounting, tax, financial and other advisors, as it deems appropriate. If you would like a municipal advisor in this transaction that has legal fiduciary duties to you, you are free to engage a municipal advisor to serve in that capacity. This Term Sheet is provided to you pursuant to and in reliance upon the "bank exemption" provided under the municipal advisor rules of the Securities and Exchange Commission, Rule 15Bal-1 et seq. Sincerely, Bank of America, N.A. fr(41,4",t.tp-Cil(0 U Maria Joyce Maynard Senior Vice President, Community Development • 333 S.Hope Street,20th Floor Los Angeles, CA 90071 213-621-7590; 213-621-4820(fax) mariajoyce@baml.com Please submit a loan application as outlined above: Name: Title: • Date: 4