RECORDING REQUESTED BY
AND WHEN RECORDED
MAIL TO
City of San Clemente
City Hall, 100 Avenida Presidio
San Clemente, CA 92672
Attn: City Clerk
Space Above This Line for Recorder’s Use
(Exempt from Recording Fee per Gov’t Code § 27383)
AMENDMENT NO. 2 TO REGULATORY AGREEMENT
AND DECLARATION OF COVENANTS AND RESTRICTIONS
THIS AMENDMENT NO. 2 TO REGULATORY AGREEMENT AND DECLARATION OF COVENANTS AND RESTRICTIONS (“Amendment No. 2”) is made and entered into as of ____________, 2024 by and between THE CITY OF SAN CLEMENTE, a California municipal corporation (“City”), and AMISTAD HOUSING PARTNERS I LP, a California limited partnership (“Developer”).
R E C I T A L S:
Developer is the fee owner of record of that certain real property located in the County of Orange, State of California, legally described in Exhibit “A” attached hereto and incorporated herein by reference (the “Property”).
Pursuant to the terms of that certain unrecorded Affordable Housing Project Agreement dated June 6, 2001 (the “Project Agreement”), entered into between City and Jamboree Housing Corporation, a California nonprofit public benefit corporation (“JHC”), JHC’s successor JAMBOREE-TAL HOUSING I, L.P., a California limited partnership (the “Original JHC Partnership”), entered into with City that certain Regulatory Agreement and Declaration of Covenants and Restrictions dated July 31, 2001, which was recorded against the Property in the Official Records of the County of Orange (“Official Records”) on August 1, 2001, as Instrument No. 20010525827, and amended by that certain Amendment to Regulatory Agreement and Declaration of Covenants and Restrictions dated February 1, 2006, which was recorded against the Property in the Official Records on April 11, 2006, as Instrument No. 2006000239626 (as amended, the “Regulatory Agreement”).
Pursuant to the Project Agreement and Regulatory Agreement, the Original JHC Partnership developed an affordable rental housing development on the Property (the “Housing Project”). The Housing Project was developed with financing from various sources, including an award of low income housing tax credits.
In order to perform needed rehabilitation of the Housing Project (the “Rehabilitation”), the Developer applied for and received commitments for new financing, including a resyndication of tax credits.
In connection with such resyndication and to facilitate the Rehabilitation, on or about the same date hereof, the Original JHC Partnership transferred the Property and assigned all of its rights under the Project Agreement and Regulatory Agreement to Developer, and Developer assumed all of the Original JHC Partnership’s obligations under the Project Agreement and Regulatory Agreement.
To ensure the financial feasibility of the Housing Project and to conform certain provisions in the Regulatory Agreement to certain regulations and requirements applicable to projects financed with low income housing tax credits, Developer and City now wish to amend the Regulatory Agreement to (i) provide that the income and rent limits applicable to the one hundred twenty-three (123) affordable units are to be determined in accordance with Section 42(g)(2) of the United States Internal Revenue Code of 1986, as amended, (ii) clarify the unit composition, and (iii) make certain other conforming changes, all as set forth herein.
A G R E E M E N T:
NOW, THEREFORE, in consideration of the foregoing Recitals, which are incorporated herein by this reference, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
Changes to Definitions. The Regulatory Agreement is hereby amended to replace, in their entirety, all of the definitions in Section 1 thereof with the following definitions:
The term “Affordable Rent” shall mean annual rentals whose amount does not exceed the maximum amount that can be devoted to rent by, respectively, Low Income Tenants, Very Low Income Tenants, and Special Very Low Income Tenants, as determined in accordance with Section 42(g)(2) of the United States Internal Revenue Code of 1986, as amended (the “IRC”), and as published from time to time by the California Tax Credit Allocation Committee (“TCAC”).
The term “Eligible Tenant” shall refer to a Low Income Tenant, Very Low Income Tenant, or Special Very Low Income Tenant.
The term “Low Income Tenant” shall mean those tenants whose household income does not exceed sixty percent (60%) of the Orange County Median Income, as determined in accordance with Section 42(g) of the IRC, as published from time to time by TCAC.
The term “Orange County Median Income” shall mean the median household income for the County of Orange, adjusted for family size, to be determined in accordance with Section 42(g) of the IRC, as published from time to time by TCAC.
The term “Special Very Low Income Tenant” shall mean those tenants whose household income does not exceed forty percent (40%) of the Orange County Median Income, as determined in accordance with Section 42(g) of the IRC, as published from time to time by TCAC.
The term “Very Low Income Tenant” shall mean those tenants whose household income does not exceed fifty percent (50%) of the Orange County Median Income, as determined in accordance with Section 42(g) of the IRC, as published from time to time by TCAC.
Unit Composition. The Regulatory Agreement is hereby amended to replace, in its entirety, Section 3(a) thereof with the following:
Operation of Project. Developer shall operate on the Property a one hundred twenty-four (124) unit affordable housing rental project, comprised of sixty (60) two-bedroom affordable units, sixty-three (63) three-bedroom affordable units, and one (1) three-bedroom unrestricted manager’s unit, in accordance with the plans and permits approved by the Talega Joint Planning Authority and City in accordance with the Project Agreement.
Affordability Mix. The Regulatory Agreement is hereby amended to replace, in its entirety, Section 3(b) thereof with the following Income Eligibility; Affordable Rent. The one hundred twenty-three (123) affordable units are to be rented to and occupied only by Eligible Tenants, at Affordable Rent, in accordance with the following affordability mix:
Fifty-two (52) units (25 two-Bedroom and 27 3-Bedroom) shall be rented to Special Very Low Income Tenants; Twenty-three (23) units (11 two-Bedroom and 12 3-Bedroom) shall be rented to Very Low Income Tenants; and Forty-eight (48) (24 two-Bedroom and 24 3-Bedroom) units shall be rented to Low Income Tenants.
Recertification. The Regulatory Agreement is hereby amended to replace, in its entirety, the second to last sentence in Section 3(d) thereof with the following:
If, upon recertification, the occupants do not qualify as an Eligible Tenant, then subject to the applicable requirements and provisions of, and changes to, Section 42 of the IRC, and applicable regulations, such occupants may be permitted to continue to occupy the affordable unit at an Affordable Rent until the occupants choose to vacate the affordable unit. After the affordable unit is vacated, the affordable unit shall be re-rented to an Eligible Tenant pursuant to the terms, covenants and conditions of this Agreement.
Omnibus Amendment to Project Agreement. If any terms in the Project Agreement are inconsistent with any terms in this Amendment No. 2, the Project Agreement shall be automatically amended to conform any such inconsistent terms with the terms in this Amendment No. 2.
Effect of Amendment. Except as otherwise expressly provided in this Amendment No. 2, all of the terms and conditions of the Regulatory Agreement shall remain in full force and effect.
Attorney’s Fees. In the event of any action between or amongst the parties hereto seeking enforcement of any of the terms and conditions to this Amendment No. 2, the prevailing party in such action shall be awarded its reasonable costs and expenses, including without limitation its expert witness fees and reasonable attorney’s fees.
Interpretation. This Amendment No. 2 shall be construed according to its fair meaning and as if prepared by all of the parties hereto.
Governing Law; Jurisdiction. This Amendment No. 2 shall be governed by the internal laws of the State of California and any question arising hereunder shall be construed or determined according to such law. The Superior Court of the State of California in and for the County of Orange, or such other appropriate court in such county, shall have exclusive jurisdiction of any litigation between the parties concerning this Amendment No. 2.
Counterparts. This Amendment No. 2 may be executed in counterparts, each of which, when this Amendment No. 2 has been signed by all the parties hereto, shall be deemed an original, and such counterparts shall constitute one and the same instrument. [End of document – Signature page follows]
IN WITNESS WHEREOF, City and Developer each hereby represents that it has read this Amendment No. 2, understands it, and hereby executes this Amendment No. 2 to be effective as of the day and year first written above.
DATED: ________________, 2024
“City”
CITY OF SAN CLEMENTE, a California municipal corporation By:
Andy Hall, City Manager
ATTEST:
______________________________
Laura Campagnolo, City Clerk
APPROVED AS TO FORM
BURKE, WILLIAMS, SORENSON LLP
_________________________
Elizabeth Mitchell
DATED: ________________, 2024
“Developer”
AMISTAD HOUSING PARTNERS I LP, a California limited partnership By: JHC-Amistad LLC, a California limited liability company, its managing general partner
By: Jamboree Housing Corporation, a California nonprofit public benefit corporation, its manager
By: ___________________________
Michael Massie
Chief Development Officer
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 Orange )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
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 Orange )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
EXHIBIT 1
LEGAL DESCRIPTION OF PROPERTY
That certain located in the County of Orange, State of California, described as follows:
LOT 1 OF TRACT NO. 13898, AS SHOWN ON A MAP FILED IN BOOK 817, PAGES 36 TO 40 INCLUSIVE OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA.
EXCEPTING THEREFROM ALL WATER AND WATER RIGHTS, IF ANY, INCLUDED WITHIN AND UNDERLYING THE DISTINCTIVE BORDER OF THIS TRACT MAP AS DEDICATED TO THE SANTA MARGARITA WATER DISTRICT ON THE MAP OF SAID TRACT. 882/020587-0151
20464487.4 a06/13/24
-1-
882/020587-0151
20464487.4 a06/13/24
-1-
882/020587-0151
20464487.4 a06/13/24
-1-
882/011706-0079
19957715.2 a06/13/24
Attachment 2