Loading...
06-0413_MILLENNIUM HOUSING CORPORATION_Transmittal_PublicationFOR OFFICE USE ONLY: STATE OF CALIFORNIA COUNTY OF ORANGE CITY OF SAN JUAN CAPISTRANO ) ss. AFFIDAVIT OF POSTING AND PUBLICATION I, MARGARET R. MONAHAN, declare that I am the duly appointed and qualified City Clerk of the City of San Juan Capistrano; that on April 13, 2006, 1 caused the above Notice to be posted in three (3) public places in the City of San Juan Capistrano, to wit: City Hall; Community Center Reception Area; Orange County Public Library AND, that on April 13, 2006, the above Notice was published in the Capistrano Valley News newspaper. I declare under penalty City of San is true and correct. MONAHAN, CITY CLERK Capistrano, California NOTICE OF PUBLIC HEARING CITY OF SAN JUAN CAPISTRANO NOTICE IS HEREBY GIVEN, that on the 2nd day of May, 2006, at 7:00 P.M. in the City Council Chamber, 32400 Paseo Adelanto, San Juan Capistrano, California, the City Council will hold a public hearing on the following: CONSIDERATION OF THE ISSUANCE OF MOBILEHOME PARK REVENUE BONDS BY THE INDEPENDENT CITIES LEASE FINANCE AUTHORITY TO FINANCE THE SAN JUAN MOBILE ESTATES PROJECT (MILLENNIUM HOUSING CORPORATION) Pursuant to Section 147(f) of the Internal Revenue Code of 1986, as amended the City Council will hear and consider information concerning the proposed issuance by the Independent Cities Lease Finance Authority (the "Authority") of its mobilehome park revenue bonds in one or more series in the aggregate principal amount of approximately $43,000,000 (the "Authority Bonds") pursuant to Chapter 8 of Part 5 of Division 31 of the California Health and Safety Code. The proceeds from the sale of such Authority Bonds, if any are issued, are intended to be used to finance the acquisition and renovation of a 312 -unit mobilehome park known as San Juan Mobile Estates located at 32302 Alipaz Street, San Juan Capistrano, California 92675 (the "Project'). The project will be owned and operated by Millennium Housing Corporation, a California non-profit corporation. Proceeds of the Authority Bonds are expected to be used to make a loan to Millennium Housing Corporation, or a successor, assign or affiliate thereof, to finance the Project. In order to facilitate the issuance of these bonds the City of San Juan Capistrano will join the Authority as an associate member prior to the issuance of the Authority Bonds. Those desiring to be heard in favor of, or opposition to, this item will be given an opportunity to do so during such hearing. Written information pertaining to this item must be submitted to the City Clerk by 5:00 p.m., on Monday, May 1, 2006 at 32400 Paseo Adelanto, San Juan Capistrano, CA 92675. Individuals desiring to submit late written information at the meeting must orally request such action. For further information you may contact Cindy Russell, Admjnistrative Services Director at (949) 443-6301. / , „ R. MONAHAN, NOTICE OF TRANSMITTAL CAPISTRANO VALLEY NEWS Legal Publications CHARGE TO ACCOUNT NO. FOR PUBLICATION ON: DOCUMENT TO BE PUBLISHED: PROOF OF PUBLICATION AUTHORIZED BY: DATE: April 5, 0041125000 THURSDAY, April 13, 2006 NOTICE OF PUBLIC HEARING - Consideration of Issuance of Mobilehome Park Revenue Bonds by the Independent Cities Lease Finance Authority to Finance the Independent Cities Lease Finance Authority to Finance the San Juan Mobile estates Project (Millennium Housing Corporation) Please send to: City Clerk's Division, City Hall 32400 Paseo Adelanto San Juan Capistrano, CA 92675 (W) 493-1171 Date of Public Hearing -05/02/06 Date notice published -04/13/06 Date affidavit received Date notice posted in designated posting places (3) - 04/13/06 Date notice posted on property - n/a Date of mailing notice to interested parties - n/a Date notice transmitted to City Manager's Office -4/5/06 AFFIDAVIT OF PUBLICATION STATE OF CALIFORNIA, ) ) ss. County of Orange ) I am a citizen of the United States and a resident of the County aforesaid; I am over the age of eighteen years, and not a party to or interested in the above entitled matter. I am the principal clerk of the Capistrano Valley News, a newspaper that has been adjudged to be a newspaper of general circulation by the Superior Court of the County of Orange, State of California, on June 7, 1984, Case No. A-122949 in and for the City of San Juan Capistrano, County of Orange, State of California; that the notice, of which the annexed is a true printed copy, has been published in each regular and entire issue of said newspaper and not in any supplement thereof on the following dates, to wit: April 13, 2006 "I certify (or declare) under the penalty of perjury under the laws of the State of California that the foregoing is true and correct": Executed at Santa Ana, Orange County, California, on Date: April 13, 2006 Signature Capistrano Valley News 625 N. Grand Ave. Santa Ana, CA 92701 (714) 796-2209 PRQ(Iji 81E IVTE' ATION 700h MAY I I P 2: 24 CITY U]_Ekly SAN JUAN CAPISTRANO Proof of Publication of NOTICE OF 1 PUBLIC HEARING CITY OF SAN JUAN CAPISTRANO NOTICE 15 HEREBY OMEN, that on the 2nd day of Mg, 2006, at 7:00 P.M. in the City Council Cham- ber, 32400 Paseo Addenda, San Juan Capistrano, Cal- fomia, me City Council will hold a public hearing an the following: CONSIDERATION OF THE ISSUANCE OF MOSILENOME PARK REVENUE BONDS BY THE INDEPENDENT CITIES LEASE FINANCE AUTHORITY TO FINANCE THE SAN JUAN MO- BILE ESTATES PROJECT (MILLENNIUM MOUSING CORPORATION) Pursuant to Section 147(q of the Internal Revenue Code of 1966, as amended me City Council will hear and consider information concerning the proposed Is- suance by the Independent Cities Lease Finance Au- thority (the "Auihoray") of hs mobilehome park reve- nue bonds in one or mare series in the aggregate Frm- crpel amount of) app oidmwa $43,000,000 /f Pan5the Drvius on 31 of the Calffomia Healthursuant to and Safety Code. Code. of The proceeds from the sale of such Authority Bonds, if any are issueq are intended a be used to finance the acquisition and renovation of a 312 -unit mobilehome park known as San Juan Mobile Estates masted at 32302 Alipaz Street, San Juan Capistrano, California 926/5 (the "Project"). The project will be owned and operated by Millennium Housing Corpora- tion, a California non -prom corporation. Proceeds of the Authorlfy Bonds are expected to be used to make a loan to M timinlum Houwng Corporation, or a suc- cessor, assign or affiliate thereof, to finance the Project. In order to acilliate the issuance of these bonds the City of San Juan Capistrano will join the Authority as an associate member prior to the issuance of me Au- thonty Bonds. Those desiri to be heard in favor of, or opposition to, thio Nem will be given an opportunity to do so dur- ing such hearing. Written inbnna9onCleoalmnq a the item mus! ba 1. to the Cpy rk by s p.m., on Monday,, May May t, 2006 et 32400 Paseo us a sirsto, San Juan submit it atereno, n i 9ontu In at the desiring to SAY re late written kon. elion at the meeting mus! oraNy request such action. Forfurther information you may correct Cindy Rus- sell, Administrative S.Mces Director M (949) 443 - awl. /s/ Marggaret R. Monahan MARGAHEr R. MONAHAN, CITY CLERK Publish: Capistrano Valley News April 13,2006 3-070 7026463 IN WITNESS WHEREOF, the parties hereto have caused this Administration Agreement to be executed on their behalf by their duly authorized representatives, all as of the date hereinabove written. INDEPENDENT CITIES LEASE FINANCE AUTHORITY M President CITY OF SAN JUAN CAPISTRANO MILLENNIUM HOUSING CORPORATION, a California nonprofit public benefit corporation IC President WOLF & COMPANY INC., as Oversight Agent IM Authorized Signatory RVPUB\FBAUM\709452.1 7 4.3. Resignation of Oversight Agent. With the written consent of the Authority, the Oversight Agent may resign from its position and terminate this Administration Agreement by giving the other parties hereto thirty (30) days written notice of its intention to do so. 4.4 Termination With Respect to Supplemental Regulatory Agreement. At its sole discretion, the City may terminate this Administration Agreement with respect to the Supplemental Regulatory Agreement upon giving the Oversight Agent and the Borrower thirty (30) days written notice of its intention to do so. ARTICLE V MISCELLANEOUS PROVISIONS 5.1. Execution in Counterparts. This Administration Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, and such counterparts shall constitute but one and the same instrument. 5.2. Business Days. If any action is required to be taken hereunder on a date which falls on other than a Business Day, such action shall be taken on the next succeeding Business Day. 5.3. Governing Law. This Administration Agreement shall be construed in accordance with the laws of the State of California and the obligations, rights and remedies of the parties hereunder shall be determined in accordance with such laws. 5.4. Notices. All notices, certificates or other communications hereunder shall be sufficiently given and shall be deemed given when delivered or mailed by registered mail, postage prepaid, addressed to the appropriate Notice Address set forth in the Regulatory Agreement and the Supplemental Regulatory Agreement. The Notice Address of the Oversight Agent is: Wolf & Company Inc., 5 Pembroke Lane, Laguna Niguel, California 92677, Attention: Wesley R. Wolf. RVPUB\FBAUM\709452.1 6 Agreement within the time set forth in the Supplemental Regulatory Agreement, as applicable, the Oversight Agent shall immediately give written notice of that fact to the City and the Borrower. (f) On behalf of the Authority and the City, the Oversight Agent shall, at least -annually and whenever requested by the Authority, audit the survey of the tenants of the Qualified Spaces with respect to income levels, household sizes and such other information as the Authority may specify, and all as further required under Section 4 of the Regulatory Agreement and Section 4 of the Supplemental Regulatory Agreement. Based on such information, the Authority shall determine compliance with the affordability requirements under the Act and the Code. In the event of any noncompliance the Oversight Agent shall notify the Authority and the City as to the nature and extent of the noncompliance and the Oversight Agent shall suggest alternatives for bringing the Qualified Spaces into compliance. (g) The Oversight Agent will perform on a timely basis all duties ascribed to the Oversight Agent in the Indenture, the Loan Agreement, the Regulatory Agreement and the Supplemental Regulatory Agreement, including without limitation the following: (i) annual review of the Borrower's financial statements, (ii) review the coverage calculation for release of surplus cashflow and report comments to the Borrower, the Authority and the City, (iii) review the final budget and forward comments to the Borrower, the Authority, (iv) physical inspection of the Project on a quarterly basis, including examination of the infrastructure, the clubhouse, and any other common areas, and (v) monthly confirmation report to the Authority, the City and any Bondholder requesting such information that the Trustee has received the monthly deposit in accordance with the approved budget and, in the event that the Trustee has not, to take such further steps as required by the Loan Agreement. 3.3. Compensation. For its services as the Oversight Agent, Wolf & Company, hic. shall be paid $ at Bond Closing, and thereafter an annual fee of $ payable by the Borrower in equal quarterly installments commencing 15, 2007, as set forth in the Indenture. The fee of the Oversight Agent shall be paid to the Oversight Agent by the Trustee upon receipt by the Trustee of an invoice from the Oversight Agent. If the Oversight Agent provides services outside the scope of this Agreement, as requested in writing by the Authority, the compensation shall be paid at the then prevailing fee schedule of the Oversight Agent. ARTICLE IV TERM 4.1. Term of Agreement. Unless sooner terminated pursuant to the provisions of Sections 4.2 and 4.3 hereof, this Administration Agreement shall remain in full force and effect for the term of the Regulatory Agreement. 4.2. Termination. At its sole discretion, the Authority may terminate this Administration Agreement upon giving the Oversight Agent and the Borrower thirty (30) days written notice of its intention to do so. This Administration Agreement may be terminated in whole or in part only as to the services described in Section 3.1, whereupon a partial fee for the services not terminated will be agreed upon by the parties and memorialized in an amendment hereto. RVPUB\FBAUM\709452.1 5 Residents, under the terms of the Regulatory Agreement and the Supplemental Regulatory Agreement. (b) Promptly following its receipt thereof, it will review the Income Certifications, Certificates of Continuing Program Compliance, and all other reports and certificates f imished to it pursuant to the Regulatory Agreement and the Supplemental Regulatory Agreement in order to determine that each such document is complete and to verify the internal accuracy of the calculations, and conclusions with respect to such calculations, set forth therein, including the conclusion that the Qualified Spaces have been rented as specified by the terms of the Regulatory Agreement and the Supplemental Regulatory Agreement; and it will maintain such documents on file and open to the inspection by the Authority, the City, the Trustee and the Borrower during the term of the Regulatory Agreement and the Supplemental Regulatory Agreement. (c) Promptly upon receipt, it will review the form of application and lease with respect to the Qualified Spaces to verify compliance with the provisions of the Regulatory Agreement and the Supplemental Regulatory Agreement. (d) Promptly upon determining that any report or certificate submitted to it pursuant to the Regulatory Agreement and the Supplemental Regulatory Agreement is inaccurate or incomplete the Oversight Agent shall: (i) If the inaccuracy or lack of completeness does not cause the Project to cease to meet the qualifications set forth in Section 3 or 4 of the Regulatory Agreement, give notice of such inaccuracy or lack of completeness to the Borrower and direct the Borrower to correct or complete the same, as the case may be, within a 30 -day period, subject to extension in the sole discretion of the Oversight Agent; (ii) If the inaccuracy or lack of completeness is not corrected within thirty (30) days or if the inaccuracy or lack of completeness causes the Project to cease to meet the qualification set forth in Section 3 or 4 of the Regulatory Agreement immediately give written notice of said fact to the Authority, the Trustee and the Borrower; and (iii) If the inaccuracy or lack of completeness does not cause the Project to meet the requirements of Section 4 of the Supplemental Regulatory Agreement, give notice of such inaccuracy or lack of completeness to the Borrower and the City and direct the Borrower to correct and complete the same, as the case may be, within a 30 -day period, subject to extension in the sole discretion of the Oversight Agent. (e) (i) In the event that the Borrower fails to file with the Oversight Agent any report, certification (including, in particular, the certification to the Secretary of the Treasury required by Section 4(e) of the Regulatory Agreement) or other document required pursuant to the Regulatory Agreement within the time set forth in the Regulatory Agreement as applicable, the Oversight Agent shall immediately give written notice of that fact to the Authority, the Trustee, the City and the Borrower. (ii) In the event that the Borrower fails to file with the Oversight Agent any report, certification or other document required pursuant to the Supplemental Regulatory RVPUB\FBAUM\709452.1 4 (c) The Oversight Agent is independent from and not under the control of the Borrower, does not have any substantial interest, direct or indirect, in the Borrower, and is not an officer or employee of the Borrower. 2.3. Representations and Warranties of the Oversight Agent. The Oversight Agent makes the following representations and warranties: (a) It is a corporation duly organized, validly existing and in good standing under the laws of the State of California and has the power and authority to carry on its business as now being conducted. (b) It has the power to execute and deliver this Administration Agreement and to carry out the transactions on its part contemplated hereby; and it has duly authorized the execution, delivery and performance of this Administration Agreement. (c) It is independent from and not under the control of the Borrower, does not have any substantial interest, direct or indirect, in the Borrower, and is not an officer or employee of the Borrower. (d) It has received copies of the Indenture, the Loan Agreement, the Regulatory Agreement and the Supplemental Regulatory Agreement, and it is familiar with the terms and conditions thereof as the same relate to the Code and the Act. ARTICLE III DUTIES AND COMPENSATION OF THE OVERSIGHT AGENT 3.1. Duties of Oversight Agent. Wolf & Company, Inc, is the initial Oversight Agent hereunder. This Section 3.1 applies to Wolf & Company, Inc., as Oversight Agent and to any successor Oversight Agent. In its capacity as Oversight Agent hereunder, for and on behalf of the Authority, the Oversight Agent will perform the following duties in a careful and timely manner, to the highest standards of its profession: (a) It will be familiar with and will give written notice to the Authority, the City, the Trustee and the Borrower within ten days of the publication by the Department of Housing and Urban Development of any change in: (i) The Median Income for the Area; and (ii) The maximum income at which households consisting of various numbers of persons may be determined to be Qualified Residents under the terms of the Regulatory Agreement and the Supplemental Regulatory Agreement; and (iii) The maximum allowable rents under each applicable provision of Section 4 of the Regulatory Agreement and Section 4 of the Supplemental Regulatory Agreement; and (iv) The maximum income at which households consisting of various numbers 1 of persons may be determined to be Very Low Income Residents or Lower Income RVPUBTBAUM\709452.1 3 WHEREAS, Wolf & Company, Inc., represents that it has the necessary experience and expertise required to evaluate whether the Project complies with the requirements set forth in the Loan Agreement, the Regulatory Agreement and the Supplemental Regulatory Agreement. NOW, THEREFORE, in consideration of the premises and respective representations and covenants herein contained, the parties hereto agree as follows: ARTICLE I DEFINITIONS AND INTERPRETATION 1.1. Definitions of Terms. All capitalized terms used in this Administration Agreement and not otherwise defined herein shall have the respective meanings given to them in the Indenture and/or the Regulatory Agreement and/or the Supplemental Regulatory Agreement. 1.2. Article and Section Headings. The heading or titles of the several articles and sections hereof shall be solely for the convenience of reference and shall not affect the meaning, construction or effect of the provisions hereof. 1.3. Interpretation. The singular form of any word used herein, including terms defined in the Indenture and/or the Regulatory Agreement, shall include the plural and vice versa, if applicable. The use of a word of any gender shall include all genders, if applicable. ARTICLE II REPRESENTATIONS AND WARRANTIES 2.1. Representations of the Authority. The Authority makes the following representations: (a) It is a joint powers authority, duly organized and existing under the Constitution and laws of the State of California. (b) It has the power to enter into the transactions contemplated by this Administration Agreement and to carry out its obligations hereunder and to consummate all other transactions on its part contemplated herein; and it has duly authorized the execution and delivery of this Administration Agreement. (c) The City of San Juan Capistrano is an associate member of the Authority. 2.2. Representations and Warranties of the Borrower. The Borrower makes the following representations and warranties: (a) It has power and authority to own its properties and carry on its business as now being conducted, and is duly qualified to do such business wherever such qualification is required, including the State of California. (b) It has the power to execute and deliver this Administration Agreement and to carry out the transactions on its part contemplated hereby; and it has duly authorized the execution, delivery and performance of this Administration Agreement. RVPUB\FBAUM\709452.1 2 ADMINISTRATION AND OVERSIGHT AGREEMENT THIS ADMINISTRATION AND OVERSIGHT AGREEMENT (the "Administration Agreement') is made and entered into as of 1, 2006, by and among the INDEPENDENT CITIES LEASE FINANCE AUTHORITY a joint powers authority duly organized and existing under the laws of the State of California (the "Authority"), the CITY OF SAN JUAN CAPISTRANO, a public body corporate and politic duly organized and existing under the laws of the State of California (the "City"), MILLENNIUM HOUSING CORPORATION, a California nonprofit public benefit corporation (the `Borrower"), and WOLF & COMPANY INC. (the "Oversight Agent'). RECITALS: WHEREAS, to assist the Borrower in its acquisition of the San Juan Mobile Estates mobile home park located in the City of San Juan Capistrano (which is an associate member of the Authority) (the "Project'), the Authority has issued its Mobile Home Park Revenue Bonds (San Juan Mobile Estates) Series 2006A and its Mobile Home Park Subordinate Revenue Bonds (San Juan Mobile Estates) Series 2006B and its Mobile Home Park Subordinate Revenue Bonds (San Juan Mobile Estates) Taxable Series 2006C (collectively, the "Bonds") pursuant to an Indenture of Trust, dated as of 1, 2006 (the "Indenture"), by and between the Authority and Union Bank of California, N.A., as Trustee thereunder (the "Trustee"); and WHEREAS, the Authority has made a loan (the "Loan") of the proceeds of the Bonds to the Borrower, as provided in the Loan Agreement, dated as of 1, 2006 (the "Loan Agreement'), by and among the Authority, the Borrower and the Trustee, which agreement provides for certain oversight provisions relating to the management of the Project; and WHEREAS, the Authority has entered into a Regulatory Agreement and Declaration of Restrictive Covenants, dated as of 1, 2006 (the "Regulatory Agreement') with the Trustee and the Borrower, which agreement, among other things, sets forth certain restrictions applicable to the property being financed with the proceeds of the Loan, which restrictions are intended to assure continued compliance with the provisions of the hiternal Revenue Code of 1986, as amended (the "Code"); and WHEREAS, the Authority desires to appoint Wolf & Company, Inc., as Oversight Agent under the Regulatory Agreement to monitor the income levels of the residents of the Qualified Spaces (as defined in the Regulatory Agreement) and as Oversight Agent under the Loan Agreement to carry out the duties of the Oversight Agent set forth in the Loan Agreement; and WHEREAS, the City and the Borrower have entered into a Supplemental Regulatory Agreement and Declaration of Restrictive Covenants dated as of 1, 2006 (the "Supplemental Regulatory Agreement") which provides, among other things, for certain additional affordability restrictions on the Project applicable to Qualified Residents and Qualified Spaces; and WHEREAS, the City desires that the Oversight Agent monitor the income levels of the residents of the Qualified Spaces for purposes of the Supplemental Regulatory Agreement; and RVPUB\FBAUM\709452.1 I ADMINISTRATION AND OVERSIGHT AGREEMENT by and among INDEPENDENT CITIES LEASE FINANCE AUTHORITY and WOLF & COMPANY INC., as Oversight Agent and MILLENNIUM HOUSING OF CALIFORNIA, as Borrower and CITY OF SAN JUAN CAPISTRANO Dated as of 1, 2006 Relating to: Independent Cities Lease Finance Authority Mobile Home Park Revenue Bonds (San Juan Mobile Estates) Series 2006A and Independent Cities Lease Finance Authority Mobile Home Park Subordinate Revenue Bonds (San Juan Mobile Estates) Series 2006B and Independent Cities Lease Finance Authority Mobile Home Park Subordinate Revenue Bonds (San Juan Mobile Estates) Taxable Series 2006C RVPUBTBAUM\709a52.1 EXHIBIT C TABLE OF CONTENTS Page Section 1. Definitions and Interpretation.................................................................... 1 Section 2. Membership in Authority; Rental Assistance Fund ................................... 3 Section 3. Project Requirements................................................................................. 4 Section 3A. Property Management and Maintenance................................................... 5 Section 4. Qualified Residents.................................................................................... 6 Section 5. Repair and Replacement Fund................................................................... 9 Section 6. Other Covenants......................................................................................... 9 Section 7. Indemnification.......................................................................................... 9 Section 8. Consideration........................................................................................... 10 Section9. Reliance.................................................................................................... 10 Section 10. Sale or Transfer of the Project; Option to Purchase ................................ 10 Section11. Term......................................................................................................... 11 Section 12. Covenants to Run With the Land............................................................. 12 Section 13. Burden and Benefit.................................................................................. 12 Section 14. Uniformity; Common Plan ...................................................................... 12 Section 15. Enforcement............................................................................................. 12 Section 16. Recording and Filing................................................................................ 13 Section 17. Payment of Fees....................................................................................... 13 Section 18. Governing Law........................................................................................ 13 Section19. Amendments............................................................................................ 13 Section20. Notice....................................................................................................... 13 Section 21. Severability.............................................................................................. 14 Section 22. Multiple Counterparts.............................................................................. 14 Section 23. Subordination........................................................................................... 14 EXHIBITA - Legal Description................................................................................................. A-1 EXHIBIT B — Rental Control Ordinance.....................................................................................B-1 RVPUB\FBAUM\708986.1 -i- STATE OF CALIFORNIA ) ss. COUNTY OF On 2006, before me, , personally appeared personally known to me OR ❑ 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 bis/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature of Notary [SEAL] RVPLJuTBAUMV08986.1 STATE OF CALIFORNIA ) . ss. COUNTY OF ) On 2006, before me, , personally appeared ❑ personally known to me OR ❑ 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. WITNESS my hand and official seal. Signature of Notary [SEAL] RV PUB\FBAUM\708986.1 IN WITNESS WHEREOF, the City and the Owner have executed this Supplemental Regulatory Agreement by duly authorized representatives, all as of the date first written hereinabove. CITY OF SAN JUAN CAPISTRANO By: _ Title: MILLENNIUM HOUSING CORPORATION, a California non-profit public benefit corporation an President RVPUB\FBAUM\708986.1 15 Section 21. Severability. If any provision of this Supplemental Regulatory Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining portions hereof shall not in any way be affected or impaired thereby. Section 22. Multiple Counterparts. This Supplemental Regulatory Agreement may be executed in multiple counterparts, all of which shall constitute one and the same instrument, and each of which shall be deemed to be an original. Section 23. Subordination. This Supplemental Regulatory Agreement and any amendments, modifications, renewals and extensions hereof shall at all times be a lien and charge on the Project and the real property described on Exhibit A hereto expressly and unconditionally subordinate to the lien and charge thereon of the Authority Regulatory Agreement and the Deed of Trust. RVPUB\FBAUM\708986.1 14 (c) take such other action at law or in equity as may appear necessary or desirable to enforce the obligations, covenants and agreements of the Owner hereunder. All fees, costs and expenses of the City and the Oversight Agent (including, without limitation, reasonable attorneys' fees) reasonably incurred in taking any action pursuant to this Section 15 shall be the sole responsibility of the Owner. Section 16. Recording and Filing. The Owner shall cause this Supplemental Regulatory Agreement and all amendments and supplements hereto, to be recorded and filed, after the recording of the Authority Regulatory Agreement and the Deed of Trust in the real property records of the County and in such other places as the may reasonably request. The Owner shall pay all fees and charges incurred in connection with any such recording. Section 17. Payment of Fees. In the event of a default hereunder by the Owner, the Owner shall pay to the City reasonable compensation for any services rendered by it hereunder and reimbursement for all expenses reasonably incurred by in connection with such default. Section 18. Governing Law. This Supplemental Regulatory Agreement shall be governed by the laws of the State of California. Section 19. Amendments. This Supplemental Regulatory Agreement shall be amended only by a written instrument executed by the parties hereto or their successors in title, and duly recorded in the real property records of the County. 4 f Section 20. Notice. All notices, certificates or other communications shall be sufficiently given and shall be deemed given on the date personally delivered or on the second day following the date on which the same have been mailed by certified mail, return receipt requested, postage prepaid, addressed as follows: City: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: City Manager Oversight Wolf & Company Inc. Agent: 5 Pembroke Lane Laguna Niguel, CA 92677 Attn: Wesley R. Wolf Owner: Millennium Housing Corporation 660 Newport Center Drive, Suite 1020 Newport Beach, CA 92660 Attn: George Turk Any of the foregoing parties may, by notice given hereunder, designate any further or different addresses to which subsequent notices, certificates, documents or other communications shall be sent. S RVPU9\FBAUM\708986.1 13 condemnation or a similar event and the payment in full and retirement of the Authority Bonds theretofore or within a reasonable period thereafter. Upon the termination of the terms of this Supplemental Regulatory Agreement, the parties hereto agree to execute, deliver and record appropriate instruments of release and discharge of the terms hereof; provided, however, that the execution and delivery of such instruments shall not be necessary or a prerequisite to the termination of this Supplemental Regulatory Agreement in accordance with its terms. Section 12. Covenants to Run With the Land. The Owner hereby subjects the Project (including the Project site) to the covenants, reservations and restrictions set forth in this Supplemental Regulatory Agreement. The City and the Owner hereby declare their express intent that the covenants, reservations and restrictions set forth herein shall be deemed covenants running with the land and shall pass to and be binding upon the Owner's successors in title to the Project; provided, however, that upon the termination of this Supplemental Regulatory Agreement said covenants, reservations and restrictions shall expire with the exception of the non-discrimination covenant of Section 3(e) which shall continue in perpetuity. Each and every contract, deed or other instrument hereafter executed covering or conveying the Project or any portion thereof shall conclusively be held to have been executed, delivered and accepted subject to such covenants, reservations and restrictions, regardless of whether such covenants, reservations and restrictions are set forth in such contract, deed or other instrument. Section 13. Burden and Benefit. The City and the Owner hereby declare their understanding and intent that the burden of the covenants set forth herein touch and concern the land in that the Owner's legal interest in the Project is rendered less valuable thereby. The City and the Owner 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 Project by Qualified Residents, the intended beneficiaries of such covenants, reservations and restrictions. Section 14. Uniformity; Common Plan. The covenants, reservations and restrictions hereof shall apply uniformly to the entire Project in order to establish and carry out a common plan for the use, development and improvement of the Project. Section 15. Enforcement. If the Owner defaults in the performance or observance of any covenant, agreement or obligation of the Owner set forth in this Supplemental Regulatory Agreement, and if such default remains uncured for a period of 60 days after notice thereof shall have been given by the City to the Owner (provided, however, that the City may at its sole option extend such period and provided further, in the event any default relates to Section 4 hereof and the Owner is exercising best efforts to comply with such restrictions as determined by the City in its reasonable discretion, then the cure period described above shall be 6 months and shall be subject to the extension of the Project Restriction Period under Section 4(h) hereof), then the City shall declare an "Event of Default" to have occurred hereunder, and the City, at its option, may take any one or more of the following steps: (a) by mandamus or other suit, action or proceeding at law or in equity, require the Owner to perform its obligations and covenants hereunder or enjoin any acts or things which may be unlawful or in violation of the rights of the City hereunder; (b) have access to and inspect, examine and make copies of all of the books and records of the Owner pertaining to the Project; and RVPUB\FBAUM\708986.1 12 (b) Notwithstanding the provisions of Section 10(a) above, the Owner shall grant to the San Juan Capistrano Residents Association (the "Residents Association") an option to purchase the Project from the Owner under a written option agreement on the following general terms: (i) During the first 10 years following the Closing Date, the purchase price of the Project under said option shall be equal to $ plus the costs of any financing undertaken by the Residents Association to accomplish such purchase; (ii) After the first 10 years following the Closing Date, the purchase price of the Project shall be equal to $ plus the increase in the Consumer Price Index for the preceding year (beginning with year 11), together with the costs of any financing undertaken by the Residents Association to accomplish said purchase; (iii) The Residents Association shall pay, in addition to the purchase price set forth in (a) or (b) above, all costs, fees and expenses, including, but not limited to, title, escrow and all other closing costs, necessary to defease, prepay and redeem the Outstanding Bonds of the Authority and the transfer of ownership of the Project from the Owner to the Residents Association; and (iv) The Residents Association shall provide to the City, the Authority and the Owner an opinion of Bond Counsel to the effect that the exercise of said option and the purchase of the Project by the Residents Association and the defeasance of the Outstanding Authority Bonds will not in and of itself, cause interest on said Authority Bonds to be included in gross income for federal income tax purposes. (c) It is hereby expressly stipulated and agreed that any sale, transfer or other disposition of the Project in violation of this Section 10 shall be null, void and without effect, shall cause a reversion of title to the Owner, and shall be ineffective to relieve the Owner of its obligations under this Supplemental Regulatory Agreement. Not less than 30 days prior to consummating any sale, transfer or disposition of any interest in the Project, the Owner shall deliver to the City and the Oversight Agent a notice in writing explaining the nature of the proposed transfer. Section 11. Term. This Regulatory Agreement and all and several of the terms hereof shall become effective upon its execution and delivery and shall remain in full force and effect during the Project Restriction Period, it being expressly agreed and understood that the provisions hereof are intended to survive the retirement of the Authority Bonds. Notwithstanding any other provisions of this Regulatory Agreement to the contrary, this entire Supplemental Regulatory Agreement, or any of the provisions or sections hereof, may be terminated upon agreement by the City and the Owner. The terms of this Supplemental Regulatory Agreement to the contrary notwithstanding, this Supplemental Regulatory Agreement, and all and several of the terms hereof, shall terminate and be of no further force and effect in the event of (i) a foreclosure or delivery of a deed in lieu of foreclosure whereby the Authority Bondowners or a third party shall take possession of the Project, or (ii) involuntary non-compliance with the provisions of this Supplemental Regulatory Agreement caused by fire, seizure, requisition, change in a federal law or an action of a federal agency after the date hereof which prevents the City from enforcing the provisions hereof, or (iii) RVPUB\FHAUW708986.1 11 impositions or other charges, are sought to be imposed, the City shall give prompt notice to the Owner, and the Owner shall have the sole right and duty to assume, and will assume, the defense thereof, including the employment of counsel selected by the indemnified party and the payment of all reasonable expenses related thereto, with full power to litigate, compromise or settle the same in its sole discretion; provided, however, that the Owner shall have the right to review and approve or disapprove any such compromise or settlement, and provided further that any such approval shall not be unreasonably withheld. Section H. Consideration. The City has agreed to become an Associate Member of the Authority for the purpose, among others, of inducing the Owner to own and operate the Project such that the Project shall contribute to the City's efforts to provide affordable housing to Qualified Residents in the City and to the satisfaction of the City's ongoing housing burden. In consideration of the City joining the Authority as an Associate Member in order to allow the Authority to provide financing to the Owner for the Project, the Owner has entered into this Supplemental Regulatory Agreement and has agreed to restrict the uses to which the Project can be put on the terms and conditions set forth herein. Section 9. Reliance. In performing its duties and obligations hereunder, the City may rely upon statements and certificates of the Owner and Qualified Residents, and upon audits of the books and records of the Owner pertaining to the Project. In addition, the City may consult with counsel, and the opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or suffered by the City hereunder in good faith and in conformity with such opinion. Section 10. Sale or Transfer of the Project; Option to Purchase. (a) The Owner intends to hold the Project for its own account, has no current plans to sell, transfer or otherwise dispose of the Project, and hereby covenants and agrees not to sell, transfer or otherwise dispose of the Project, or any portion thereof (other than for individual tenant use as contemplated hereunder), without obtaining the prior written consent of the City and upon receipt by the City of (i) reasonable evidence satisfactory to the City that the Owner's purchaser or transferee has assumed in writing and in full, the Owner's duties and obligations under this Supplemental Regulatory Agreement, (ii) an opinion of counsel for the transferee that the transferee has duly assumed the obligations of the Owner under this Supplemental Regulatory Agreement, and that such obligations and this Supplemental Regulatory Agreement are binding on the transferee, (iii) the City receives evidence acceptable to the City that either (A) the transferee has experience in the ownership, operation and management of comparable projects without any record of material violations of discrimination restrictions or other state or federal laws or regulations applicable to such projects, or (B) the transferee agrees to retain a property management firm with the experience and record described in subparagraph (A) above and in either case, at its option, the City may cause the Oversight Agent to provide on-site training in program compliance if the City determines such training is necessary and (iv) the City receives evidence that the purchaser is a not for-profit organization. It is hereby expressly stipulated and agreed that any sale, transfer or other disposition of the Project in violation of this Section 10 shall be null, void and without effect, shall cause a reversion of title to the Owner, and shall be ineffective to relieve the Owner of its obligations under this Supplemental Regulatory Agreement. Not less than 30 days prior to consummating any sale, transfer or disposition of any interest in the Project, the Owner shall deliver to the City and the Oversight Agent a notice in writing explaining the nature of the proposed transfer. 2VPUB\FBAU W 08986.1 10 (g) In the event, despite the Owner's exercise of best efforts to comply with the provisions of Section 4 of this Regulatory Agreement, the Owner shall have been out of compliance with any of the restrictions of Section 4 hereof relative to Qualified Residents, for a n period in excess of six months, then at the sole option of the City the term of the Regulatory Agreement shall be automatically extended for the period of non-compliance upon written notice to the Owner and the Oversight Agent from the City, such extension to relate to the Qualified Spaces and Qualified Residents as to which such noncompliance relate. Section 5. Repair and Replacement Fund. The Owner agrees and covenants to cause to be established and maintained the Repair and Replacement Fund created by Section 5.3(7) of the Indenture and to be used and replenished as provided in Sections 5.13 and 5.7(h) of the Indenture and Section 6.22 of the Loan Agreement. Section 6. Other Covenants. (a) The Owner further covenants and agrees as follows: The Owner will comply with the provisions of Title 2, Chapter 2, Article 9 of the City Municipal Code relating to mobile home rent control (the "Rent Control Ordinance"), a copy of which Rent Control Ordinance is attached hereto as Exhibit B notwithstanding any legal challenges to the Rent Control Ordinance, and further agrees that it shall at all times abide by and follow the terms and provisions of the Rent Control Ordinance, and shall not in any manner challenge said provisions. (b) In the event the Owner requests any discretionary rental increases under the Rent Control ordinance, the Owner agrees not to appeal any decision of the City with respect to such request. (c) In the event the Rent Control Ordinance is determined in any legal proceeding to be invalid for any reason, the Owners agrees to continue to comply with the provisions of the Rent Control Ordinance as if it were still in effect. Section 7. Indemnification. The Owner shall indemnify, hold harmless and defend the City, the Oversight Agent and the Authority Bond Trustee and the respective officers, members, directors, officials and employees of each of them (the "indemnified party") against all loss, costs, damages, expenses, suits, judgments, actions and liabilities of whatever nature, joint and several (including, without limitation, attorneys' fees, litigation and court costs, amounts paid in settlement, and amounts paid to discharge judgments), directly or indirectly resulting from or arising out of or related to (a) the operation, use, occupancy, maintenance, or ownership of the Project (including compliance with laws, ordinances and rules and regulations of public authorities relating thereto); or (b) any written statements or representations with respect to the Owner the Project or the Authority Bonds made or given to the City, the Oversight Agent or the Authority Bond Trustee, by the Owner, or any of its agents or employees, including, but not limited to, statements or representations of facts or financial information; provided, however, the Owner shall not be obligated to indemnify the City, the Authority Bond Trustee or the Oversight Agent for damages caused by the gross negligence or willful misconduct of the City, the Authority Bond Trustee or the Oversight Agent. The Owner also shall pay and discharge and shall indemnify and hold harmless the City, the Oversight Agent and the Authority Bond Trustee from (x) any lien or charge upon payments by the Owner to the City and the Authority Bond Trustee hereunder and (y) any taxes (including, without limitation, all ad valorem taxes and sales taxes), assessments, impositions and other charges in respect of any portion of the Project. If any such claim is asserted, or any such lien or charge upon payments, or any such taxes, assessments, RVPUB\FBAUM\708986.1 9 or the Oversight Agent. The Owner shall verify that the income provided by an applicant with respect to a Space to be occupied after the Closing Date is accurate by taking one or more of the following steps as a part of the verification process: (1) obtain a federal income tax return for the most recent tax year, (2) obtain a written verification of income and employment from applicant's current employer such as a current pay stub or W-2 form, (3) if an applicant is unemployed or did not file a tax return for the previous calendar year, obtain other verification of such applicant's income reasonably satisfactory to the Oversight Agent or (4) such other information as may be reasonably requested by the Oversight Agent. Within ten days of the last day of each calendar quarter during the term of this Regulatory Agreement commencing with the quarter ending 2006, the Owner shall advise the Oversight Agent or in the absence of a Oversight Agent, the City, of the status of the occupancy of the Project by delivering to the Oversight Agent a Certificate of Continuing Program Compliance; provided, however, with the prior written approval of the Oversight Agent or the City, as the case may be, such Certificate need be filed only semi-annually. Copies of the most recent Income Certifications for Qualified Residents commencing or continuing occupancy of a Qualified Space shall be made available to the City or Oversight Agent upon request. (d) Annually, the Owner shall recertify the income of the occupants of such Very Low Income Spaces and Lower Income Spaces, as applicable, by obtaining a completed Income Certification based upon the current income of each occupant of the unit. In the event the recertification demonstrates that such household's income exceeds 140% of the income at which such household would qualify as Very Low Income Residents or Lower Income Residents, as applicable, such household will no longer qualify as a Very Low Income Resident or a Lower Income Resident, as applicable, and the Owner either (i) will designate another qualifying Tenant and Space in the Project as a Very Low Income Resident or a Lower Income Resident, as applicable and a Very Low Income Space or a Lower Income Space, as applicable, respectively, or (ii) will rent the next available vacant Space to one or more Very Low Income Residents or Lower Income Residents, as applicable. (e) The Owner will maintain complete and accurate records pertaining to the Qualified Spaces, and will permit any duly authorized representative of the City or the Oversight Agent to inspect during normal business hours and with prior notice the books and records of the Owner pertaining to the Project, including those records pertaining to the occupancy of the Qualified Spaces. (f) Each lease or rental agreement pertaining to a Qualified Space occupied after the Closing Date shall contain a provision to the effect that the Owner has relied on the Income Certification and supporting information supplied by the Qualified Resident in determining qualification for occupancy of the Qualified Space, and that any material misstatement in such certification (whether or not intentional) may be cause for immediate termination of such lease. Each lease or rental agreement will also contain a provision that failure to cooperate with the annual recertification process reasonably instituted by the Owner pursuant to Section 4(d) above will disqualify the Space as a Qualified Space and provide grounds for termination of the lease. The Owner agrees to provide to the Oversight Agent and the City, a copy of the form of application and lease or rental agreement to be provided to prospective Qualified Residents and any amendments thereto. RVPUBTBAUM\708966.1 8 Project by the Owner and excluding any supplemental rental assistance from the State, the federal government, or any other public agency to the Very Low Income Resident, on behalf of the Space and the mobile home) shall not exceed one -twelfth of 30 percent of 50 percent of Median Income for the Area, adjusted for household size in the manner set forth below. (B) where a Very Low Income Resident is the registered owner of the mobile home and is making mortgage payments for the purchase of that mobile home, the total rental charge for occupancy of the Space (excluding any charges for utilities and storage and excluding any supplemental rental assistance from the State, the federal government, or any other public agency to the Very Low Income Resident, or on behalf of the Space and mobile home), shall not exceed one -twelfth of 15 percent of 50 percent, of Median Income for the Area, as adjusted for household size in the manner set forth below. (C) where a Very Low Income Resident rents both the mobile home and the Space occupied by the mobile home, the total rental payments paid by the Very Low Income Resident on the mobile home and the Space occupied by the mobile home (excluding any supplemental rental assistance from the State, the federal government, or any other public agency to that Very Low Resident or on behalf of that Space and mobile home) shall not exceed one -twelfth of 30 percent of 50 percent, of Median Income as established by the U.S. Department of Housing and Urban Development for the Area adjusted for household size in the manner set forth below. In adjusting rent for household size, it shall be assumed that two persons will occupy a single -wide mobilehome and three persons will occupy a multisectional mobilehome; provided that if the multisectional mobilehome has three or more bedrooms, then it shall be assumed that four persons shall occupy a three-bedroom unit and five persons will occupy a four-bedroom unit. (b) In the event a recertification of the income of a Very Low Income Resident or a Lower Income Resident, as applicable, in accordance with Section 4(d) below demonstrates that such tenant no longer qualifies as a Very Low Income Resident or a Lower Income Resident, as applicable, the Space occupied by such tenant shall continue to be treated as a Very Low Income Space or a Lower Income Space, as applicable, unless and until any Space in the Project thereafter is occupied by a new tenant other than a Very Low Income Resident or a Lower Income Resident, as applicable. Moreover, a Space previously occupied by a Very Low Income Resident, a Lower Income Resident or a Moderate Income Resident, as applicable, and then vacated shall be considered occupied by a Qualified Resident until reoccupied, other than for a temporary period, at which time the character of the Space shall be redetermined. In no event shall such temporary period exceed thirty-one (3 1) days. Notwithstanding anything herein to the contrary, if at any time the number of Qualified Residents falls below the number required by subparagraph (a) (i) of this Section, the next available vacant Space shall be rented to a Qualified Resident. (c) Annually, the Owner will obtain and maintain on file an Income Certification form from each Qualified Resident occupying a Qualified Space, dated immediately prior to the initial occupancy of such Qualified Resident in the Project (or prior to the Closing Date in the s case of existing Very Low Income Residents). In addition, the Owner will provide such further information as may be required in the future by the State of California, as requested by the City RVPUB\FBAUM\708986.1 7 (b) Management and Operation of Project. The Owner acknowledges that there exists a Residents Association for the Project and a governing board thereof (the "Resident Association Board"). The Owner agrees that the Resident Association Board may provide tenant comment and input to the Owner in the management and operation of the Project. The Owner or its representative or agent agrees to meet with any such Resident Association Board at least twice a year, or at such other frequency as agreed by the Resident Association Board and the Owner, to receive comments and recommendations with respect to Project operation and management. The Owner further agrees to provide regular reports (at least quarterly, or at such other intervals as agreed to by the Owner and the Resident Association Board) relating to the operation of the Project to the Resident Association Board. While the Resident Association Board shall have no decision-making authority with respect to the management and operation of the Project, the Owner agrees to use its best efforts to implement recommendations of the Resident Association Board that can reasonably be implemented by the Owner and that will not cause the Owner, in its reasonable judgment, to be unable to perform its obligations under this Agreement, the Authority Regulatory Agreement, the Loan Agreement and the Deed of Trust. The Owner further agrees that it shall not refuse any good -faith request by the Resident Association Board for the addition, deletion or amendment of a Project rule or regulation absent a good -faith, business reason for doing so. The Owner may request all residents of the Project to vote on any such addition, deletion or amendment. The Owner further agrees to review and take such action as it determines to be appropriate with respect to any documented complaints about Project management presented to it by the Resident Association Board. (c) Property Maintenance. The Owner agrees, for the entire Term of this Supplemental Regulatory Agreement, to maintain all common area interior and exterior improvements and common buildings on the Project (exclusive of the mobile homes and tenant spaces), including landscaping and common buildings on the Project in good condition and repair (and, as to landscaping, in a healthy condition) and in accordance with all applicable laws, rules, ordinances, orders and regulations of all federal, state, county, municipal, and other governmental agencies and bodies having or claiming jurisdiction and all their respective departments, bureaus, and officials. The City places prime importance on quality maintenance to ensure that all City -assisted affordable housing projects within the City are not allowed to deteriorate due to below-average maintenance. - Section 4. Qualified Residents. The Owner hereby represents, as of the date hereof, and warrants, covenants and agrees as follows: (a) During the Project Requirement Period (a) not less than twenty percent (20%) of the Spaces in the Project shall be designated as Very Low Income Spaces and shall be continuously occupied by Very Low Income; and (b) not less than thirty percent (30%) of the Spaces in the Project shall be designated as Lower Income Spaces and shall be continuously occupied by Lower Income Residents. The monthly rent charged for one-half of the Very Low Income Spaces (i.e., 10% of the Spaces in the Project) shall be not greater than as follows: (A) where a Very Low Income Resident is both the registered and legal owner of the mobile home and is not making mortgage payments for the purchase of that mobile home, the total rental charge for occupancy of the Space (excluding a reasonable allowance for other related housing costs determined at the time of acquisition of the RVPUB\FBAUM\708986.1 6 (c) All of the Spaces will be available for rental on a continuous basis to members of the general public, and the Owner will not give preference to any particular class or group in renting the Spaces in the Project, except to the extent that Spaces are required to be leased or rented to Qualified Residents. (d) The Project comprises a single geographically and functionally integrated project for residential rental property, as evidenced by the ownership, management, accounting and operation of the Project. (e) There shall be no discrimination against or segregation of any person or group of persons on account of race, color, religion, age, sex, marital status, ancestry, national origin, source of income (e.g. AFDC or SSI) or disability in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Project nor shall the transferee or any person claiming under or through the transferee, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Project. (f) The Very Low Income Spaces and the Lower Income Spaces shall be intermingled with, and shall be of comparable quality to, all other Spaces in the Project. Tenants in all Spaces shall have equal access to and enjoyment of all common facilities of the Project. (g) In the aggregate, no more than two persons per bedroom, plus one person shall occupy any Space in the Project. For example, with respect to a two bedroom mobilehome, maximum occupancy shall be 5 persons. (h) The Owner will accept as tenants, on the same basis as all other prospective tenants, persons who are recipients of federal certificates for rent subsidies pursuant to the existing housing program under Section 8 of the United Stated Housing Act, or its successor. The Owner shall not apply selection criteria to Section 8 certificate or voucher holders that is more burdensome than criteria applied to all other prospective tenants, nor shall the Owner apply or permit the application of management policies or lease provisions with respect to the Project which have the effect of precluding occupancy of Spaces by such prospective tenants. (i) The Owner agrees to honor all existing lease agreements in effect on the date of the Agreement, including any provisions contained therein with respect to rent adjustments, or if requested by a tenant who is a party to such a lease agreement, to replace such lease agreement with a month-to-month lease arrangement, subject to the Rent Control Ordinance. Section 3A. Property Management and Maintenance. The following provisions shall apply during the term of this Supplemental Regulatory Agreement. (a) Management Responsibilities. The Owner is responsible for all management functions with respect to the Project including without limitation the selection of tenants, certification and recertification of household size and income, evictions, collection of rents and deposits, maintenance, landscaping, routine and extraordinary repairs, replacement of capital items, and security. The City shall not have responsibility over management of the Project. The Owner may delegate its duties under this Section 3A to a property management company. A resident manager shall also be required. In no instance shall the Owner delegate or forego its responsibility to manage and operate the Project in the manner set forth in this Supplemental Regulatory Agreement and the Loan Agreement. RVPUB\FBAUM\708986.1 5 (a) Upon close of escrow ("Close of Escrow"), initial space rent for each mobilehome space in the Project occupied by a resident at that time will be $805 per month (the "Rent Cap"). The Rent Cap for residents that do not currently rent space in the Project will be adjusted annually after the Close of Escrow to the rent permitted under the Rent Control Ordinance of the City of San Juan Capistrano (the "Rent Control Ordinance"). The Rent Cap for residents that currently rent space in the Project or rent space in the Project within seven days of the Close of Escrow (`Current Residents") shall remain at $805 per month until the second anniversary of the Close of Escrow, and shall thereafter be adjusted annually to the rent permitted under the Rent Control Ordinance (said amount, as adjusted from time to time, being referred to herein as the "Space Rent"). (b) Notwithstanding the Space Rent set forth in (a) above, every Current Resident will pay only that amount permitted as rent under the Rent Control Ordinance and any difference will be provided as assistance from the Rental Assistance Fund such that the total of the rent actually paid by such Current Resident, and the amount paid as rental assistance will equal the Space Rent. This rental subsidy for Current Residents will continue to be paid from the Rental Assistance Fund as long as the Current Resident resides in the Project. (c) All rental assistance will be contingent upon the Current Resident applicant's compliance with park rules, including the requirement to provide.the Annual Income Certification needed for the Owner's compliance with the bond documents; failure to comply with park rules or the annual certification requirement, after written notice and the expiration of a reasonable cure period, may result in a suspension of the rental assistance, such suspension to continue until the Current Resident is again in compliance. (d) The Owner shall not seek to evict Current Residents who, while otherwise complying with park rules, cannot pay the subsidized rents; in such cases, the Owner shall use park surplus funds or the Rental Assistance Fund to reasonably further subsidize or defer a portion of the rent, depending upon individual circumstances, but the Owner shall not be obligated to subsidize or defer sums in excess of the amount that would reduce the rent payable by a Current Resident below the rent that would be payable by that Current Resident under the Rent Control Ordinance had the Owner never purchased the Project. Owner shall also assist any Current Resident brought to the Owner's attention by the City, to the extent such assistance will not prevent the Owner from meeting its other obligations under its various bond agreements. Section 3. Project Requirements. The Owner hereby represents, as of the date hereof, and covenants, warrants and agrees as follows: (a) The Project is being owned and operated for the purpose of providing residential rental housing, consisting of one mobile home Space for each household, together with related facilities. (b) All of the mobile homes in the Project will contain separate facilities for living, sleeping, eating, cooking and sanitation, including a sleeping area, bathing and sanitation facilities and cooking facilities equipped with a cooking range, refrigerator and sink. RVPUB\PBAUM\708986.1 4 "Rental Assistance Fund" - The fund by that name established pursuant to the Indenture and to be administered pursuant to Section 2(b) hereof. "Space" - A mobile home space within the Project upon which a mobile home may be placed. "Very Low Income Residents" - Individuals or families with an Adjusted Income which does not exceed the qualifying limits for very low income households, adjusted for actual household size, as established and amended from time to time pursuant to Section 8 of the United States Housing Act of 1937, and as published by the State of California Department of Housing and Community Development. "Very Low Income Spaces" - The Spaces in the Project designated for occupancy by Very Low Income Residents pursuant to Section 4(a) of this Supplemental Regulatory Agreement. Such terms as are not defined herein shall have the meanings assigned to them in the Indenture. Unless the context clearly requires otherwise, as used in this Supplemental Regulatory Agreement, words of the masculine, feminine or neuter gender shall be construed to include each other gender when appropriate and words of the singular number shall be construed to include the plural number, and vice versa, when appropriate. This Supplemental Regulatory Agreement and all the terms and provisions hereof shall be construed to effectuate the purposes set forth herein and to sustain the validity hereof. The defined terms used in the preamble and recitals of this Supplemental Regulatory Agreement have been included for convenience of reference only, and the meaning, construction and interpretation of all defined terms shall be determined by reference to this Section 1 notwithstanding any contrary definition in the preamble or recitals hereof. The titles and headings of the sections of this Supplemental Regulatory Agreement have been inserted for convenience of reference only, and are not to be considered a part hereof and shall not in any way modify or restrict any of the terms or provisions hereof or be considered or given any effect in construing this Supplemental Regulatory Agreement or any provisions hereof or in ascertaining intent, if any question of intent shall arise. Section 2. Membership in Authority; Rental Assistance Fund. (a) City Membership in AuthoritV. In consideration of the Borrower entering into this Supplemental Regulatory Agreement, the City has agreed to become an Associate Member of the Authority in order to enable the Authority to provide financing to the Owner for the Proj ect. (b) Rental Assistance Fund. (i) The Owner shall establish with the Authority Bond Trustee the Rental Assistance Fund, which shall be held by the Authority Bond Trustee pursuant to Section 5.18 of the Indenture. After initial funding of the Rental Assistance Fund, the Owner shall thereafter fund additional deposits to the Rental Assistance Fund from moneys in the Surplus fund under the Indenture so as to maintain sufficient moneys in the Rental Assistance Fund to meet the Owner's obligations under this Section 2(b). d (ii) The Owner is authorized to make monthly withdrawals and utilize moneys in the Rental Assistance Fund to provide a subsidy for rental payments to be made by tenants in the Project in the manner and in the amounts set forth as follows: RVPUBTBAUM\708986.1 3 "Authority Bonds" - Collectively, the Authority's Mobile Home Park Revenue Bonds (San Juan Mobile Estates) Series 2006A, Mobile Home Park Subordinate Revenue Bonds (San Juan Mobile Estates) Series 2006B and Mobile Home Park Subordinate Revenue Bonds (San Juan Mobile Estates) Taxable Series 2006C issued pursuant to an Indenture of Trust between the Authority and the Authority Bond Trustee and dated as of 1, 2006. "Authority Bond Trustee" - Union Bank of California, N.A., as trustee for the Authority Bonds. "Certificate of Continuing Program Compliance" - The certificate with respect to the Project to be filed by the Owner with the Authority, the City, the Oversight Agent and the Authority Bond Trustee which shall be substantially in the form attached to the Authority Regulatory Agreement as Exhibit C. "City" - The City of San Juan Capistrano. "County" - The County of Orange. "Deed of Trust" - The Deed of Trust defined in the Indenture. "Income Certification" - The Income Computation and Certification attached to the Authority Regulatory Agreement as Exhibit B. "Lower Income Residents" - An individual or family household that, on the later o£ (i) the date of this Agreement, or (ii) the date of the Lower Income Resident's initial occupancy of the Park, has an Adjusted Income that does not exceed the qualifying limits for lower income households, adjusted for actual household size, as established and amended from time to time pursuant to Section 8 for the United States Housing Act of 1937, and as published by the State of California Department of Housing and Community Development. "Lower Income Spaces" - The spaces in the Project designated for occupancy by Lower Income Residents pursuant to Section 4(a) of this Supplemental Regulatory Agreement. "Median Income for the Area" - The median gross yearly income adjusted for household size for the Area, as published from time to time by the State. In the event that such income determinations are no longer published, or are not updated for a period of at least eighteen (18) months, the City shall provide the Owner with other income determinations which are reasonably similar with respect to methods of calculation to those previously published by the State. "Oversight Agent" - the Oversight Agent appointed under the Administration Agreement, which initially shall be Wolf & Company Inc. "Project Restriction Period" - The period ending 35 years from the execution date of this Supplemental Regulatory Agreement. "Qualified Residents" - means Very Low Income Residents and Lower Income Residents. "Qualified Space" - a Very Low Income Space or a Lower Income Space. RVPLB\FBAUM1708986.1 2 THIS SUPPLEMENTAL REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS (the "Regulatory Agreement"), made and entered into as of r 1, 2006, by and between the City of San Juan Capistrano, a public body, corporate and politic (the "City"), and Millennium Housing Corporation, a California nonprofit z_ corporation, as the owner of the property described in Exhibit A attached hereto (the "Owner"): WITNESSETH: WHEREAS, the Owner is acquiring the property described on Exhibit A attached hereto and the improvements located thereon, consisting of a 312 -space mobile home park known as "San Juan Mobile Estates" (the "Project"), with a loan to it from the Independent Cities Lease Finance Authority (the "Authority") from the proceeds of the Authority's Mobile Home Park Revenue Bonds, Series A, Series B and Taxable Series C (collectively, the "Authority Bonds"); and WHEREAS, in connection with the issuance of the Authority Bonds, the Owner, the Authority and Union Bank of California, N.A., as trustee for the Authority Bonds (the "Authority Bond Trustee") have entered into a Regulatory Agreement and Declaration of Restrictive Covenants dated as of 1, 2006 (the "Authority Regulatory Agreement") which is being recorded in the real estate records of Orange County as a covenant running with the real property described in Exhibit A (the "Property"); and WHEREAS, in consideration of the City joining the Authority as an Associate Member in order to enable the Authority to provide financing to the Owner for the Project, the Owner and the City are entering into this Supplemental Regulatory Agreement and wish it to be recorded as a covenant running with the Property on a subordinate basis to the Authority Regulatory Agreement and the Deed of Trust referred to herein; NOW, THEREFORE, in consideration of the mutual covenants and undertakings set forth herein, and other good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, the City and the Owner hereby agree as follows: Section 1. Definitions and Interpretation. The following terms shall have the respective meandngs.assigned to them in this Section 1 unless the context in which they are used clearly requires otherwise: "Adjusted Income" — The total anticipated annual income of all persons in a household, as calculated in accordance with 25 California Code of Regulations Section 6914 or pursuant to a successor State housing program that utilizes a reasonably similar method of calculation of adjusted income. In the event that no such program exists, the City shall provide the Owner with a reasonably similar method of calculation of adjusted income as provided in said Section 6914. "Administration Agreement" - The Administration and Oversight Agreement, dated as of 1, 2006, by and among the Authority, the City, the Owner and the Oversight Agent. "Area" - The Primary Metropolitan Statistical Area in which the Project is located. "Authority" - The Independent Cities Lease Finance Authority. ° RVPUB\FBAUM\708986.1 1 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: BEST BEST & KRIEGER LLP ) 3750 University Avenue, 3'a Floor ) Riverside, CA 92501 ) Attention: Francis J. Baum, Esq. ) [Space above for Recorder's use] SUPPLEMENTAL REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS By and Between the CITY OF SAN JUAN CAPISTRANO MILLENNIUM HOUSING CORPORATION, as Owner Dated as of 1, 2006 RVPU13\FBAUM\708986.1 EXHIBIT B IN WITNESS WHEREOF, the parties hereto have caused this Associate Membership Agreement to be executed and attested by their proper officers thereunto duly authorized, on the day and year first set forth above. Attest: Attest: Secretary City Clerk INDEPENDENT CITIES LEASE FINANCE AUTHORITY President CITY OF SAN JUAN CAPISTRANO IC Mayor RVPUBTBAUW710435.1 3 EXHIBIT A of which are hereby incorporated herein by reference. From and after the date of execution and delivery of this Associate Membership Agreement by the City and the Authority, the City shall be and remain an Associate Member of the Authority. Section 2, Restrictions and Rights of the City. The City shall not have the right, as an Associate Member of the Authority, to vote on any action taken by the Board of Directors or by the Authority. In addition, no officer, employee or representative of the City shall have any right to become an officer or director of the Authority. Section 3. No Obligations of the City. The debts, liabilities and obligations of the Authority shall not be the debts, liabilities and obligations of the City. Section 4. Indemnification by Owner. The Authority shall ensure that the legal documents relating to any bonds issued to finance projects within the jurisdiction of the City shall provide that the owner of any such project shall indemnify, hold harmless and defend the City and each of its officers, officials, employees and agents from any and all loss, liability, fines, penalties, forfeitures, costs, expenses and damages (whether imposed by statute, in contract, tort or strict liability) incurred by the City and from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses) arising or alleged to have,arisen directly or indirectly out of performance by the City of this Agreement. Section 5. Execution of the Agreement. Execution of this Associate Membership Agreement shall satisfy the requirements of Article 27 of the Agreement and Article XI of the Bylaws of the Authority for participation by the City in all programs and other undertakings of the Authority, including, without limitation, any Home Mortgage Financing Program (as defined in the Agreement), any financing under the Nonprofit Financing Law, any undertaking to finance the acquisition, construction, installation and/or equipping of public capital improvements, and any other financing program. RVPUBTRAUM\710435.1 2 EXHIBIT A ASSOCIATE MEMBERSHIP AGREEMENT by and between the INDEPENDENT CITIES LEASE FINANCE AUTHORITY and the CITY OF SAN JUAN CAPISTRANO THIS ASSOCIATE MEMBERSHIP AGREEMENT, dated as of May 1, 2006, by and between THE INDEPENDENT CITIES LEASE FINANCE AUTHORITY (the "Authority") and the CITY OF SAN JUAN CAPISTRANO, duly organized and existing under the laws of the State of California (the "City"); WITNESSETH: WHEREAS, certain cities of the State of California (collectively, the "Members") have entered into a Joint Powers Agreement Creating the Independent Cities Lease Finance Authority (the "Agreement"), establishing the Authority and prescribing its purposes and powers, and providing, among other things, for associate members of the Authority (an "Associate Member"); WHEREAS, the Authority has been formed for the purpose, among others, of assisting its Members and Associate Members in the raising of capital to finance the capital improvement needs of Local Agencies (as defined in the Joint Powers Agreement), to provide for home mortgage financing with respect to those Members or Associate Members that are either a city or a county of the State of California, to provide financing in connection with the improvement, construction, acquisition, creation, rehabilitation and preservation of affordable housing within the boundaries of the Members and Associate Members, and to provide financing in accordance with the provisions of applicable law in connection with other projects and programs that are in the public interest and which benefit Members and Associate Members including making loans to tax-exempt _organizations from the proceeds of mortgage revenue bonds to finance the acquisition of multi -family rental housing, including mobilehome parks, under the provisions of Chapter 8 of Part 5 of Division 31 (commencing with Section 52100) of the Health and Safety Code (the "Nonprofit Financing Law"); WHEREAS, the City desires to become an Associate Member of the Authority; WHEREAS, the Board of Directors of the Authority has determined that the City should become an Associate Member of the Authority; NOW, THEREFORE, in consideration of the above premises and of the mutual promises herein contained, the Authority and the City do hereby agree as follows: Section 1. Associate Member Status. The City is hereby made an Associate Member of the Authority for all purposes of the Agreement and the Bylaws of the Authority, the provisions RVPue\FBAUMV 10435.1 I EXHIBIT A I_1 PASSED, APPROVED, AND ADOPTED this 2nd day of May 2006. l II ri VID M. SW RDL , MAYOR CLERK STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF SAN JUAN CAPISTRANO ) I, MARGARET R. MONAHAN, appointed City Clerk of the City of San Juan Capistrano, do hereby certify that the foregoing Resolution No. 06-05-02-04 was duly adopted by the City Council of the City of San Juan Capistrano at a Regular meeting thereof, held the 2nd day of May 2006, by the following vote: AYES: COU CIL MBERS: Hart, Bathgate, Soto, Allevato, and Mayor Swerdlin NOES: O MBER: None AB$�0 EMBER: None Page 3 of 3 05-02-2006 WHEREAS, inconsideration of the City joining the Authority, the Owner has agreed to enter into a Supplemental Regulatory Agreement and Declaration of Restrictive Covenants with the City (the "Supplemental Regulatory Agreement") providing for certain additional affordable housing requirements for the Project, which shall be administered pursuant to an Administration and Oversight Agreement, said Agreements being in the forms on file with the City Clerk; NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of San Juan Capistrano does hereby: Section 1. Approval of an Associate Membership Agreement (Exhibit. This City Council hereby approves the City's membership in the Authority as an Associate Member and authorizes the Mayor or the Mayor Pro Tem to execute and the City Clerk to attest the Associate Membership Agreement, in substantially the form on file with the City Clerk, pursuant to which the City shall become an Associate Member of the Authority. The Mayor, Mayor Pro Tem, City Manager, City Clerk and any other officers of the City, are hereby authorized and directed to take all actions and do all things necessary or desirable hereunder with respect to the Associate Membership Agreement, including but not limited to, the execution and delivery of any an all agreements, certificates, instruments and other documents which they, or any of them, may deem necessary or desirable and not inconsistent with the purposes of this Resolution. Section 2. Approval of the Supplemental Regulatory Agreement (Exhibit B) and Administration and Oversight Agreement (Exhibit C). The form of the Supplemental Regulatory Agreement and Declaration of Restrictive Covenants (the "Supplemental Regulatory Agreement") by and between the City and the Owner presented to this meeting and imposing certain restrictions in the Project is hereby approved and any of the Mayor, Mayor Pro Tem or City Manager (each an "Authorized Officer") are, and each of them is, hereby authorized and directed, for and in the name and on behalf of the City, to execute the Supplemental Regulatory Agreement in substantially the form hereby approved, with such additions or changes therein as the Authorized Officer executing the same may approve, such approval to be conclusively evidenced by the execution and delivery thereof. Any of the Authorized Officers are hereby authorized and directed to cause the Supplemental -Regulatory Agreement to be recorded in the real estate records of the County of Orange on a subordinate basis to the Regulatory Agreement and Deed of Trust relating to the Bonds. Any of the Authorized Officers are further authorized to and directed, for and in the name and on behalf of the City, to execute the Administration and Oversight Agreement by and among the City, the Authority, the Owner and the Oversight Agent named therein and relating to the administration of the Supplemental Regulatory Agreement and the Regulatory Agreement. Section 3. Effective Date. This Resolution shall take effect from and after the date of its passage and adoption. l Page 2 of 3 05-02-2006 RESOLUTION NO. 06-05-02-04 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, APPROVING AN ASSOCIATE MEMBERSHIP AGREEMENT WITH THE INDEPENDENT CITIES LEASE FINANCE AUTHORITY, A SUPPLEMENTAL REGULATORY AGREEMENT AND AN ADMINISTRATION AND OVERSIGHT AGREEMENT WITH RESPECT TO THE SAN JUAN MOBILE ESTATES WHEREAS, certain cities of the State of California (collectively, the "Members") have entered into a Joint Powers Agreement Creating the Independent Cities Lease Finance Authority (the "Joint Powers Agreement"), establishing the Independent Cities Lease Finance Authority (the "Authority") and prescribing its purposes and powers, and providing, among other things, for associate members of the Authority (an "Associate Member"); WHEREAS, the Authority has beF ed for the purpose, among others, of assisting its Members and Associate M- raising of capital to finance the capital improvement needs of Local Ager n the Joint Powers Agreement), to provide for home mortgage f `o those Members or Associate Members that are either a c'' alifornia, to provide financing in connection with the it in, creation, rehabilitation and reservation of affordable t, as of the Members and Associate Members, and to provide fina. `� / vith the provisions of applicable law in connection with other projects mat are in the public interest and which benefit Members and Associa, . rs including making loans to tax-exempt organizations from the proceeds of gage revenue bonds to finance the acquisition of multi -family rental housing, including mobile home parks, under the provisions of Chapter 8 of Part 5 of Division 31 (commencing with Section 52100) of the Health and Safety Code; WHEREAS, the City of San Juan Capistrano (the "City") desires to become an Associate Member of the Authority as provided in the Associate Membership Agreement, in the form on file with the City Clerk; and WHEREAS, the Authority proposes to issue its Mobile Home Park Revenue Bonds 2006 Series A, 2006 Series B and 2006 Taxable Series C (the 'Bonds"); and WHEREAS, the proceeds of the Bonds, if any are issued, will be loaned to Millennium Housing Corporation, a California nonprofit corporation (the "Owner") for the purpose of financing the acquisition and improvement of a 312 -space mobile home park known as the San Juan Mobile Estates located at 32302 Alipaz Street in the City (the "Project"); and Page 1 of 3 05-02-2006 32400 PASEO ADELANTO Y o .lel" �� I � {� MEMBERS OF THE CITY COUNCIL SAN JUAN CAPISTRANO, CA 92675 i 4i SLP-.�1 � SAM ALLEVATO (949) 493-1171 mmXXXAAIEX DIANE BATHGATE (949) 493-1053 PAX [S1ABu3Xm )9s) WyATT HART W. WWsunpianCatlLSlranO.org' v )]]( JOE SOTO • • DAVID M. SWERDLIN May 3, 2006 NOTIFICATION OF ACTION BY THE CITY COUNCIL OF SAN JUAN CAPISTRANO On May 2, 2006 the City Council of San Juan Capistrano met regarding: "Consideration of an Associate Membership Agreement with the Independent Cities Lease Finance Authority (ICLFA) and the Issuance of Mobile Home Park Revenue Bonds by ICLFA to Finance the San Juan Mobile Estates Project (Millennium Housing Corporation)" Item No. E3. The following action was taken at the meeting: Resolution No. 06-05-02-04 adopted approving an Associate Membership Agreement with Independent Cities Lease Finance Authority, a supplemental Regulatory Agreement; and an Administrantion and Oversight Agreement with respect to the San Juan Mobile Estate acquistion by Millennium Housing Corporation; and Resolution no. 06-05- 02-05 adopted approving issuance of Mobile Home Park Revenue Bonds by the Independent Cities Lease finance Authority for the San Juan Mobile Estates acquistion: Hart/Soto, 5-0 The following documents are in the process of being executed: . If you have any questions regarding this action, please contact Cindy Russell, Administrative Services Director at 443-6301 for more detailed information. Thank you, Meg Monahan, CMC City Clerk Enclosed: Cc: Millennium Housing Corporation*; San Juan Mobile Estates Resident Association*; Independent Cities Lease Financing Authority*; Cindy Russell, Administrative Service Director San Juan Capistrano: Presei-i ing the Past to Enhance the Future 32400 EASED ADELANTO SAN JUAN CAPISTRANO, CA 92675 (949) 493-1171 (949) 493-1053 FAX wwwsanjuancal islrano.org MEMBERS OF THE CITY COUNCIL NOTIFICATION OF MEETIWOF POTENTIAL INTEREST OF THE SAN JUAN CAPISTRANO CITY COUNCIL SAM ALLEVATO DIANE BATHGATE WYATT HART JOE SOTO DAVID M. SWERDLIN The City Council of San Juan Capistrano will meet at 7:00 p.m. on May 2, 2006 in the City Council Chamber in City Hall, to consider: "Consideration of an Associate Membership Agreement with the independent Cities Lease Finance Authority (ICLFA) and the Issuance of Mobile Home Park Revenue Bonds by ICLFA to Finance the San Juan Mobile Estates Project (Millennium Housing Corporation)" — Item No. E3. If you have specific thoughts or concerns regarding this item, you are encouraged to participate in this decision making process. You can communicate with the City Council through correspondence addressed to the Council and/or by attending the meeting and speaking to the Council during the public meeting. Correspondence related to this item must be received at the City Clerk's office by 5:00 p.m. on Monday, May 1, 2006 to allow time for the Council to consider its content. If you would like to speak at the meeting, please complete a yellow "Request to Speak" form found inside the entrance to the Council Chamber. This form is turned in at the staff table, just in front of the Council dais. You will be called to speak by the Mayor when the item is considered. You have received this notice at the request of the City staff member Cindy Russell, Administrative Services Director. You may contact that staff member at (949) 443-6301 with any questions. The agenda, including agenda reports, is available to you on our web site: www.sanivancapistrano.org. If you would like to subscribe to receive a notice when agendas are posted to the web site, please make that request by sending an e-mail to: council-agendas(c)sanivancaoistrano.org. Meg Monahan, CMC City Clerk cc: Millennium Housing Corporation*; San Juan Mobile Estates Resident Association% Independent Cities Lease Financing Authority*; Cindy Russell, Administrative Service Director; Cindy Russell, Administrative Services Director * Received staff report San Juan Capistrano: Preserving the Past to Enhance the Future San Juan Mobile Estates Residents Association 32302 Alipaz Street, San Juan Capistrano, CA 92675 Cindy Russell Administrative Services Director City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA, 92675 RE: San Juan Mobile Estates Dear Ms. Russell: Apr'k\ tq,2,aa6 The undersigned are the boardmembers of the San Juan Mobile Estates Residents Association. This letter shall confirm that we have reviewed the proposed acquisition of our community by Millennium Housing and that we are requesting that the City take the necessary steps to facilitate Millennium's purchase. Specifically, we ask the City to conduct the TEFRA Hearing, join the Independent Cities Lease Financing Authority, approve the resolutions needed for the bond issuance, and approve the Regulatory Agreement, Supplemental Regulatory Agreement, Oversight and Administrative Agreement, the Association Membership Agreement and any other items as discussed at our meeting with the bond underwriter and bond counsel last Thursday. We have reviewed these agreements and are very supportive of this transaction and the City's role as a facilitator. We appreciate the care and time taken by the City Staff and feel that the various agreements, as modified to reflect your suggested revisions, will lead to a strong transaction that will significantly benefit the park residents. Thanks again to the City Staff for helping make this exciting transaction happen. Very Truly yours, San Juan Mobile Estates Residents Association Board B an Bolton Chairman D Mil OF Vice Chairman DIP r san Welltn^ n Secretary Dennis Funaro Treasurer Deborah Shuler tQj�t Bwalw bebdrah erenh D ATTACHMENT 3 WHEREAS, such public hearing was conducted on said date by this City Council, at which time an opportunity was provided to interested parties to be heard with respect to the proposed issuance of the Authority Bonds and financing of the Project; and WHEREAS, it is intended that this resolution shall constitute the approval of the proposed issuance of the Authority Bonds required by Section 147(f) of the Code; NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of San Juan Capistrano does hereby: Section 1, Approval of Issuance of Authority Bonds. This City Council hereby approves the issuance of the Authority Bonds by the Authority. It is the purpose and intent of this City Council that this resolution constitutes approval of the Authority Bonds for the purposes of Section 147(f) of the Code. This City Council further finds that, based on information provided by the Owner, the financing of the Project by the Authority will result in savings in the costs of the Bond financing. Effective Date, STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF SAN JUAN CAPISTRANO ) I I, MARGARET R. MONAHAN, appointed City Clerk of the City of San Juan Capistrano, do hereby certify that the foregoing Resolution No. 06-05-02-05 was duly adopted by the City Council of the City of San Juan Capistrano at a Regular meeting thereof, held the 2"d day of May 2006, by the following vote: AYES: COUNCIL MEMBERS: Hart, Bathgate, Soto, Allevato, and Mayor Swerdlin NOE�S C�fJUIL EMBER: None AB$EN I h(�b II/A1/ EMBER: None Clerk Page 2 of 2 05-02-2006 sic RESOLUTION NO. 06-05-02-05 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, APPROVING THE ISSUANCE OF MOBILE HOME PARK REVENUE BONDS BY THE INDEPENDENT CITIES LEASE FINANCE AUTHORITY FOR THE SAN JUAN MOBILE ESTATES WHEREAS, the Independent Cities Lease Finance Authority (the "Authority") is authorized pursuant to the provisions of California Health and Safety Code Section 52100 and the terms of the Joint Powers Agreement Creating the Independent Cities Lease Finance Authority (the "Authority'), to issue revenue bonds in accordance with Chapter 8 of Part 5 of Division 31 of the California Health and Safety Code for the purpose of financing multifamily rental housing projects, including mobile home parks; and WHEREAS, the City of San Juan Capistrano is joining the Authority as an associate member; and WHEREAS, Millennium Housing Corporation, a California nonprofit corporation ("Millennium") has requested that the Authority issue mobile home park revenue bonds in one or more series in an aggregate principal amount not to exceed $43,000,000 (the "Authority Bonds") for the purpose of providing financing for the acquisition of a 312 -unit mobile home park located at 32302 Alipaz Street, San Juan Capistrano, California, and known as San Juan Mobile Estates (the "Project'); and WHEREAS, the Project will be owned by Millennium, or a successor, assign or affiliate thereof (the "Owner"); and WHEREAS, the Authority Bonds will be qualified "private activity bonds" for purposes of the Internal Revenue Code of 1986 (the "Code"); and WHEREAS, pursuant to Section 147(f) of the Code, the proposed issuance of private activity bonds is required to be approved by the "applicable elected representative" of the governmental unit having jurisdiction over the area in which the facility financed by such bonds is to be located, after a public hearing held following reasonable public notice; and WHEREAS, the Project is located in the City of San Juan Capistrano (the "City") and the members of the City Council (this "City Council") are the applicable elected representatives of the City; and WHEREAS, there has been published, at least 14 days prior to the date hereof, in a newspaper of general circulation within the City, a notice that a public hearing regarding the proposed issuance of the Authority Bonds would be held on the date hereof: and f; Page 9 of 2 05-02-2006 IN WITNESS WHEREOF, the parties hereto have caused this Administration Agreement to be executed on their behalf by their duly authorized representatives, all as of the date hereinabove written. INDEPENDENT CITIES LEASE FINANCE AUTHORITY By: President CITY OF SAN JUAN CAPISTRANO 10 MILLENNIUM HOUSING CORPORATION, a California nonprofit public benefit corporation In President WOLF & COMPANY INC., as Oversight Agent 0 RVPUB\FBAUM\709452. ] Authorized Signatory 4.3. Resignation of Oversight Ate. ent. With the written consent of the Authority, the Oversight Agent may resign from its position and terminate this Administration Agreement by giving the other parties hereto thirty (30) days written notice of its intention to do so. 4.4 Termination With Respect to Supplemental Regulatory Agreement. At its sole discretion, the City may terminate this Administration Agreement with respect to the Supplemental Regulatory Agreement upon giving the Oversight Agent and the Borrower thirty (30) days written notice of its intention to do so. ARTICLE V MISCELLANEOUS PROVISIONS 5.1. Execution in Cogg=arts. This Administration Agreement may be executed in any number of counterparts, each of which shall be deemed to he an original, and such counterparts shall constitute but one and the same instrument. 5.2. Business Days. If any action is required to be taken hereunder on a date which falls on other than a Business Day, such action shall be taken on the next succeeding Business Day. 5.3. Governing Law. This Administration Agreement shall be construed in accordance with the laws of the State of California and the obligations, rights and remedies of the parties hereunder shall be determined in accordance with such laws. 5.4. Notices. All notices, certificates or other communications hereunder shall be sufficiently given and shall be deemed given when delivered or mailed by registered mail, postage prepaid, addressed to the appropriate Notice Address set forth in the Regulatory Agreement and the Supplemental Regulatory Agreement. The Notice Address of the Oversight Agent is: Wolf & Company Inc., 5 Pembroke Lane, Laguna Niguel, California 92677, Attention: Wesley R. Wolf. RVPUB\FBALM709452.1 Agreement within the time set forth in the Supplemental Regulatory Agreement, as applicable, the Oversight Agent shall immediately give written notice of that fact to the City and the Borrower. (f) On behalf of the Authority and the City, the Oversight Agent shall, at least annually and whenever requested by the Authority, audit the survey of the tenants of the Qualified Spaces with respect to income levels, household sizes and such other information as the Authority may specify, and all as further required under Section 4 of the Regulatory Agreement and Section 4 of the Supplemental Regulatory Agreement. Based on such information, the Authority shall determine compliance with the affordability requirements under the Act and the Code. In the event of any noncompliance the Oversight Agent shall notify the Authority and the City as to the nature and extent of the noncompliance and the Oversight Agent shall suggest alternatives for bringing the Qualified Spaces into compliance. (g) The Oversight Agent will perform on a timely basis all duties ascribed to the Oversight Agent in the Indenture, the Loan Agreement, the Regulatory Agreement and the Supplemental Regulatory Agreement, including without limitation the following: (i) annual review of the Borrower's financial statements, (ii) review the coverage calculation for release of surplus cashllow and report comments to the Borrower, the Authority and the City, (iii) review the final budget and forward comments to the Borrower, the Authority, (iv) physical inspection of the Project on a quarterly basis, including examination of the infrastructure, the clubhouse, and any other common areas, and (v) monthly confirmation report to the Authority, the City and any Bondholder requesting such information that the Trustee has received the monthly deposit in accordance with the approved budget and, in the event that the Trustee has not, to take such further steps as required by the Loan Agreement. 3.3. Compensation. For its services as the Oversight Agent, Wolf & Company, Inc. shall be paid $ at Bond Closing, and thereafter an annual fee of $ payable by the Borrower in equal quarterly installments commencing 15, 2007, as set forth in the Indenture. The fee of the Oversight Agent shall be paid to the Oversight Agent by the Trustee upon receipt by the Trustee of an invoice from the Oversight Agent. If the Oversight Agent provides services outside the scope of this Agreement, as requested in writing by the Authority, the compensation shall be paid at the then prevailing fee schedule of the Oversight Agent. ARTICLE IV TERM 4.1. Term of Agreement. Unless sooner terminated pursuant to the provisions of Sections 4.2 and 4.3 hereof, this Administration Agreement shall remain in full force and effect for the term of the Regulatory Agreement. 4.2. Termination. At its sole discretion, the Authority may terminate this Administration Agreement upon giving the Oversight Agent and the Borrower thirty (30) days written notice of its intention to do so. This Administration Agreement may be terminated in whole or in part only as to the services described in Section 3.I, whereupon a partial fee for the services not terminated will be agreed upon by the parties and memorialized in an amendment hereto. RVPUBTBAUNh709452.1 5 Residents, under the terms of the Regulatory Agreement and the Supplemental Regulatory Agreement. (b) Promptly following its receipt thereof, it will review the Income Certifications, Certificates of Continuing Program Compliance, and all other reports and certificates furnished to it pursuant to the Regulatory Agreement and the Supplemental Regulatory Agreement in order to determine that each such document is complete and to verify the internal accuracy of the calculations, and conclusions with respect to such calculations, set forth therein, including the conclusion that the Qualified Spaces have been rented as specified by the terms of the Regulatory Agreement and the Supplemental Regulatory Agreement; and it will maintain such documents on file and open to the inspection by the Authority, the City, the Trustee and the Borrower during the term of the Regulatory Agreement and the Supplemental Regulatory Agreement. (c) Promptly upon receipt, it will review the form of application and lease with respect to the Qualified Spaces to verify compliance with the provisions of the Regulatory Agreement and the Supplemental Regulatory Agreement. (d) Promptly upon determining that any report or certificate submitted to it pursuant to the Regulatory Agreement and the Supplemental Regulatory Agreement is inaccurate or incomplete the Oversight Agent shall: (i) If the inaccuracy or lack of completeness does not cause the Project to cease to meet the qualifications set forth in Section 3 or 4 of the Regulatory Agreement, give notice of such inaccuracy or lack of completeness to the Borrower and direct the Borrower to correct or complete the same, as the case may be, within a 30 -day period, subject to extension in the sole discretion of the Oversight Agent; (ii) If the inaccuracy or lack of completeness is not corrected within thirty (30) days or if the inaccuracy or lack of completeness causes the Project to cease to meet the qualification set forth in Section 3 or 4 of the Regulatory Agreement immediately give written notice of said fact to the Authority, the Trustee and the Borrower; and (iii) If the inaccuracy or lack of completeness does not cause the Project to meet the requirements of Section 4 of the Supplemental Regulatory Agreement, give notice of such inaccuracy or lack of completeness to the Borrower and the City and direct the Borrower to correct and complete the same, as the case may be, within a 30 -day period, subject to extension in the sole discretion of the Oversight Agent. (e) (i) In the event that the Borrower fails to file with the Oversight Agent any report, certification (including, in particular, the certification to the Secretary of the Treasury required by Section 4(e) of the Regulatory Agreement) or other document required pursuant to the Regulatory Agreement within the time set forth in the Regulatory Agreement as applicable, the Oversight Agent shall immediately give written notice of that fact to the Authority, the Trustee, the City and the Borrower. (ii) In the event that the Borrower fails to file with the Oversight Agent any report, certification or other document required pursuant to the Supplemental Regulatory RVPUB\FBAUW709452.1 4 (c) The Oversight Agent is independent from and not under the control of the Borrower, does not have any substantial interest, direct or indirect, in the Borrower, and is not an officer or employee of the Borrower. 2.3. Representations and Warranties of the Oversight Agent. The Oversight Agent makes the following representations and warranties: (a) It is a corporation duly organized, validly existing and in good standing under the laws of the State of California and has the power and authority to carry on its business as now being conducted. (b) It has the power to execute and deliver this Administration Agreement and to carry out the transactions on its part contemplated hereby; and it has duly authorized the execution, delivery and performance of this Administration Agreement. (c) It is independent from and not under the control of the Borrower, does not have any substantial interest, direct or indirect, in the Borrower, and is not an officer or employee of the Borrower. (d) It has received copies of the Indenture, the Loan Agreement, the Regulatory Agreement and the Supplemental Regulatory Agreement, and it is familiar with the terms and conditions thereof as the same relate to the Code and the Act. ARTICLE III DUTIES AND COMPENSATION OF THE OVERSIGHT AGENT 3.1. Duties of Oversight Agent. Wolf & Company, Inc., is the initial Oversight Agent hereunder. This Section 3.1 applies to Wolf & Company, Inc., as Oversight Agent and to any successor Oversight Agent. In its capacity as Oversight Agent hereunder, for and on behalf of the Authority, the Oversight Agent will perform the following duties in a careful and timely manner, to the highest standards of its profession: (a) It will be familiar with and will give written notice to the Authority, the City, the Trustee and the Borrower within ten days of the publication by the Department of Housing and Urban Development of any change in: (i) The Median Income for the Area; and (ii) The maximum income at which households consisting of various numbers of persons may be determined to be Qualified Residents under the terms of the Regulatory Agreement and the Supplemental Regulatory Agreement; and (iii) The maximum allowable rents under each applicable provision of Section 4 of the Regulatory Agreement and Section 4 of the Supplemental Regulatory Agreement; and (iv) The maximum income at which households consisting of various numbers of persons may be determined to be Very Low Income Residents or Lower Income RVPUB"AUM\709452.1 3 WHEREAS, Wolf & Company, Inc., represents that it has the necessary experience and expertise required to evaluate whether the Project complies with the requirements set forth in the Loan Agreement, the Regulatory Agreement and the Supplemental Regulatory Agreement. NOW, THEREFORE, in consideration of the premises and respective representations and covenants herein contained, the parties hereto agree as follows: ARTICLE I DEFINITIONS AND INTERPRETATION 1.1. Definitions of Terms. All capitalized terms used in this Administration Agreement and not otherwise defined herein shall have the respective meanings given to them in the Indenture and/or the Regulatory Agreement and/or the Supplemental Regulatory Agreement. 1.2. Article and Section Headines. The heading or titles of the several articles and sections hereof shall be solely for the convenience of reference and shall not affect the meaning, construction or effect of the provisions hereof. 1.3. Interpretation. The singular form of any word used herein, including terms defined in the Indenture and/or the Regulatory Agreement, shall include the plural and vice versa, if applicable. The use of a word of any gender shall include all genders, if applicable. ARTICLE II REPRESENTATIONS AND WARRANTIES 2.1. Representations of the Authority. The Authority makes the following representations: (a) It is a joint powers authority, duly organized and existing under the Constitution and laws of the State of California. (b) It has the power to enter into the transactions contemplated by this Administration Agreement and to carry out its obligations hereunder and to consummate all other transactions on its part contemplated herein; and it has duly authorized the execution and delivery of this Administration Agreement. (c) The City of San Juan Capistrano is an associate member of the Authority. 2.2. Representations and Warranties of the Borrower. The Borrower makes the following representations and warranties: (a) It has power and authority to own its properties and carry on its business as now being conducted, and is duly qualified to do such business wherever such qualification is required, including the State of California. (b) It has the power to execute and deliver this Administration Agreement and to carry out the transactions on its part contemplated hereby; and it has duly authorized the execution, delivery and performance of this Administration Agreement. R VPUB\FBAUMI 709452.1 ADMINISTRATION AND OVERSIGHT AGREEMENT THIS ADMINISTRATION AND OVERSIGHT AGREEMENT (the "Administration Agreement") is made and entered into as of 1, 2006, by and among the INDEPENDENT CITIES LEASE FINANCE AUTHORITY a joint powers authority duly organized and existing under the laws of the State of California (the "Authority"), the CITY OF SAN JUAN CAPISTRANO, a public body corporate and politic duly organized and existing under the laws of the State of California (the "City"), MILLENNIUM HOUSING CORPORATION, a California nonprofit public benefit corporation (the `Borrower"), and WOLF & COMPANY INC. (the "Oversight Agent"). RECITALS: WHEREAS, to assist the Borrower in its acquisition of the San Juan Mobile Estates mobile home park located in the City of San Juan Capistrano (which is an associate member of the Authority) (the "Project"), the Authority has issued its Mobile Home Park Revenue Bonds (San Juan Mobile Estates) Series 2006A and its Mobile Home Park Subordinate Revenue Bonds (San Juan Mobile Estates) Series 2006B and its Mobile Home Park Subordinate Revenue Bonds (San Juan Mobile Estates) Taxable Series 2006C (collectively, the "Bonds") pursuant to an Indenture of Trust, dated as of 1, 2006 (the "Indenture"), by and between the Authority and Union Bank of California, N.A., as Trustee thereunder (the "Trustee"); and WHEREAS, the Authority has made a loan (the "Loan") of the proceeds of the Bonds to the Borrower, as provided in the Loan Agreement, dated as of 1, 2006 (the "Loan Agreement"), by and among the Authority, the Borrower and the Trustee, which agreement provides for certain oversight provisions relating to the management of the Project; and WHEREAS, the Authority has entered into a Regulatory Agreement and Declaration of Restrictive Covenants, dated as of 1, 2006 (the "Regulatory Agreement") with the Trustee and the Borrower, which agreement, among other things, sets forth certain restrictions applicable to the property being financed with the proceeds of the Loan, which restrictions are intended to assure continued compliance with the provisions of the Internal Revenue Code of 1986, as amended (the "Code"); and WHEREAS, the Authority desires to appoint Wolf & Company, Inc., as Oversight Agent under the Regulatory Agreement to monitor the income levels of the residents of the Qualified Spaces (as defined in the Regulatory Agreement) and as Oversight Agent under the Loan Agreement to carry out the duties of the Oversight Agent set forth in the Loan Agreement; and WHEREAS, the City and the Borrower have entered into a Supplemental Regulatory Agreement and Declaration of Restrictive Covenants dated as of 1, 2006 (the "Supplemental Regulatory Agreemenf� which provides, among other things, for certain additional affordability restrictions on the Project applicable to Qualified Residents and Qualified Spaces; and WHEREAS, the City desires that the Oversight Agent monitor the income levels of the residents of the Qualified Spaces for purposes of the Supplemental Regulatory Agreement; and RVPUBTBAUMV09452.1 I ADMINISTRATION AND OVERSIGHT AGREEMENT by and among INDEPENDENT CITIES LEASE FINANCE AUTHORITY and WOLF & COMPANY INC., as Oversight Agent and MILLENNIUM HOUSING OF CALIFORNIA, as Borrower and CITY OF SAN JUAN CAPISTRANO Dated as of 1, 2006 Relating to: Independent Cities Lease Finance Authority Mobile Home Park Revenue Bonds (San Juan Mobile Estates) Series 2006A and Independent Cities Lease Finance Authority Mobile Home Park Subordinate Revenue Bonds (San Juan Mobile Estates) Series 2006B and Independent Cities Lease Finance Authority Mobile Home Park Subordinate Revenue Bonds (San Juan Mobile Estates) Taxable Series 2006C RVPUBTBAUK709452.1 EXHIBIT C Sec. 2-2.904. Hearing Officer costs: Pee reimbursement. TITLE 2.ADMINISTRATION CHAPTER 2., COMMISSIONS AND BOARDS Sec. 2-2.904. Hearing Officer costs: Fee reimbursement. (a) Administrative fee. There is hereby instituted a One Thousand and no/100ths ($1,000.00) Dollar fee to be paid to the City for costs incurred in invoking the Hearing Officer procedure set forth in Section 2- 2.903. Page 1 of 1 (b) Five Hundred and no/100ths ($500.00) Dollar deposit. At the time the park residents file a petition in protest of a proposed increase, the petitioners shall simultaneously post a Five Hundred and no/100ths ($500.00) Dollar deposit with the Secretary to the Housing Advisory Committee. The Secretary shall find that the petition is incomplete if the Five Hundred and no/100ths ($500.00) Dollar deposit is not posted. Further, the statute of limitation period of thirty (30) days from the effective date of a rent increase shall continue to run in the event that the petition has been found to be incomplete. If the petition is in order and the deposit has been posted, the City shall promptly notify the park owner that the hearing procedure will be invoked and that the park owner shall, within ten (10) days of receipt of notice, post a Five Hundred and no/100ths ($500.00) Dollar deposit equal to the petitioners' deposit. Should the park owner not post the Five Hundred and no/100ths ($500.00) Dollar deposit within the ten (10) day time limit, the residents shall be under no legal obligation to pay the proposed rent increase. (c) Responsibility for payment of administrative fee. At the conclusion of the administrative hearing, the Hearing Officer, as a part of his responsibility to make findings, shall make a recommendation as to the percentage that each party is to pay in satisfying the One Thousand and no/100ths ($1,000.00) Dollar administrative fee. The City Council shall make a final decision regarding the Hearing Officer's determination based upon the final rent award. (d) Remedies for nonpayment of administrative fee. Should any party refuse to pay his portion of the required administrative fee, the City may pursue any civil remedy available, or in the alternative, refuse to process a future petition by the same petitioners. In the case of park owner nonpayment, park tenants shall not be obligated to pay proposed rent increases until the administrative fee debt has been satisfied. (§ 1, Ord. 795) http://municipalcodes.lexisnexis.com/codes/sanivaneaD/ DATA/TITLE02/CHAPTER 2 COM... 4/17/2006 Sec. 2-2.903. Petition and hearing process regarding rent increases. from the more stringent current day Building Code requirements before the exception set forth in this subsection may be utilized by the park owner. (i) Leasehold agreement exemptions. Notwithstanding any provision of this article to the contrary, leasehold agreements (that is, leases other than tenancies at will or month-to-month) entered into between mobile home park owners and their residents shall be exempted from the operation of the petition and hearing review process. (ii) Forms. The City Manager is authorized and directed to develop and require the completion of forms by interested parties at the time a petition is received by the secretary. Until such forms are completed to the satisfaction of the City Manager, or his designated representative, the petition and hearing process shall proceed no further. (§ 1, Ord. 795, as amended by § 1, Ord. 902) Page 3 of 3 http://municipalcodes.lexisnexis.com/codes/sanjuancap/ DATA/TITLE02/CHAPTER 2 COM... 4/17/2006 Sec. 2-2.903. Petition and hearing process regarding rent increases. Page 2 of 3 (1) Purpose of reviews. The Hearing Officer, the Housing Advisory Committee, and the Council shall review the rent increase to determine whether the increase is, or is not, fair and reasonable. Such review shall be conducted by applying the nonexclusive criteria set forth in subsection (g)(2) of this section to the facts submitted to the Hearing Officer. (2) Nonexclusive criteria. The Hearing Officer, the Committee, and the Council shall consider all relevant factors, including, but not limited to, increased or decreased costs to the mobile home park owner attributable to utility rates, property taxes, insurance, advertising, governmental assessments, cost -of - living increases attributable to incidental services, normal repairs and maintenance, capital improvements, except those defined in subsection (h) of this section, the upgrading and addition of amenities for services, except as defined in subsection (h) of this section, and a fair rate of return on the property. (3) Fair rate of return on property criteria. The Council finds and declares that the following principles shall be applied in utilizing the fair rate of return on property standard as a criterion in the review process: (i) All the provisions of this article shall be applied with the overall purpose of eliminating the imposition of excessive rents while at the same time providing park owners with a just and reasonable return on property. (ii) The reasonableness of rent increases is not to be determined solely by the application of a fixed or mechanical accounting formula, such as "return on investment" or "return on market value' of the property; in particular, recent court decisions have discouraged the use of a "return on market value" test. (iii) The fair rate of return on property is but one of a number of nonexclusive factors to be taken into account in reviewing the fairness of rent incfeases; it is to be given weight, but not to dominate other relevant criteria in arriving at a final determination. (iv) The Hearing Officer, the Committee, and the Council shall impartially consider all relevant evidence in relation to the application of the nonexclusive criteria. The extent to which the criteria are considered in the review process, that is, the amount of weight given to any one of the several criteria, ultimately falls within the wisdom and best judgment of said three (3) bodies. (v) In conducting the entire process, guidance should be taken from leading California case law decisions dealing with rent control issues and in particular, rent control in mobile home parks. Such cases include: Birkenfeld v. City of Berkeley (1976), 17 C.3d 165; Gregory v. City of San Juan Capistrano (1983), 142 C.A.3d 8; Cotati Alliance for Better Housing v. Cotati (1983), 143 C.A.3d 296; Palisades Shores v. City of Los Angeles (1983), 143 C.A.3d 369, Oceanside Mobile Home Park Owners Association v. City of Oceanside (1984), 157 C.A.3d 887, and Carson Mobile Home Park Owners Association v. City of Carson (1983), 35 C.3d 184. (h) Rent increases and capital improvement upgrade costs. (1) Capital improvement upgrade costs. Only those capital improvement costs incurred to upgrade through additions, alterations or replacements, park facilities, assets, or amenities, shall not be recouped from residents through rent increases, or any other special assessment, unless the following procedure is first followed: (i) The park owner shall first inform by first-class mail all park residents of the exact nature, approximate cost, billing method, and billing duration of the proposed capital improvement upgrade by written notice. (ii) After allowing the residents a reasonable period of time (of not less than thirty (30) days) to consider whether the capital improvement cost is one the residents believe is necessary and desirable, the park owner shall then obtain formal written consent on a form approved by the City from a simple majority of the total number of residents in the park. The simple majority shall be calculated on the basis of one vote per coach space. (iii) The costs of the capital improvement upgrade shall be prorated and billed in a method mutually acceptable to the park owner and the residents. For the purposes of this subsection, "to upgrade' shall mean to raise to a substantially higher quality, or to substantially improve, the existing level of service, Examples of capital improvement upgrades include, but are not limited to, swimming pools, spas, tennis courts, clubhouses, clubhouse additions, fencing, children's play equipment, and other similar improvements. (2) Exceptions for governmentally mandated costs. Capital improvement upgrade costs incurred because of the application of current day Building Codes, such as, but not limited to, City Building Codes, Health and Safety Codes, and State, Federal, and Fire Codes, shall be exempted from the resident consent provision set forth in subsection (h)(1) of this section. The park owner shall obtain a written statement from the Building Official verifying that the subject capital improvement upgrade arose httrr//municinalcodes.Iexisnexis.com/codes/sanivancan/ DATA/TITLE02/CHAPTER 2 COM... 4/17/2006 Sec. 2-2.903. Petition and hearing process regarding rent increases. Page 1 of 3 TITLE 2._ ADMINISTRATION CHAPTER 2_COMMISSIONS AND BOARDS Sec. 2-2.903. Petition and hearing process regarding rent increases. (a) Petition and hearing procedure. Upon the filing with the secretary of a written petition concerning a proposed or actual increase in rent filed by an owner or by residents who reside in and represent more than fifty (50) percent of the inhabited spaces within a park, excluding management, a hearing thereon shall be conducted by a Hearing Officer within sixty (60) calendar days, or as soon thereafter as is reasonably practicable, after the filing of the petition. In the event that the park owner has proposed a rent increase for one or more residents (e.g., based upon one year anniversary dates) but less than the total number of residents in the park, then only one hearing process shall be conducted by the same hearing officer where the rent increases proposed for all residents in the park for that year is based upon the same factual justification. Any such rent increase shall be subject to a protest petition when filed by a majority of total park residents. The filing of one petition protest shall be sufficient to place all similar rent increases for that year at issue under the hearing review process. The hearing shall be conducted only in the event the petition is filed with the secretary thirty (30) calendar days following the effective date of the rent increase which is the subject of the petition. The Hearing Officer shall be chosen and a hearing conducted in accordance with the Hearing Officer procedure established by the Council. (b) Purpose of hearings. At the hearing on such petition, the Hearing Officer shall conduct an investigation to determine if the rent increase in question exceeds the maximum allowable increase as defined in subsection (d) of Section 2-2.902 of this article. If the Hearing Officer concludes that the rent increase exceeds the maximum allowable increase, the Hearing Officer shall then continue the hearing by receiving all relevant evidence for the purpose of rendering findings and conclusions as to the propriety of the rent increase in accordance with the criteria set forth in subsection (g) of this section. The Hearing Officer may require either party to a hearing on the petition to provide any books, records, and papers deemed pertinent, in addition to that information previously set forth by the parties. (c) Hearing Officer recommendations. Within thirty (30) days after concluding the hearing, the Hearing Officer shall render written findings and conclusions as to the propriety of the rent increase to the Housing Advisory Committee. The Hearing Officer recommendations shall not be binding. (d) Committee reviews of Hearing Officer findings. The Housing Advisory Committee shall review the findings and conclusions of the Hearing Officer at its next available meeting. Its scope of review shall be limited to the written record consisting of the evidence received by the Hearing Officer, written arguments of the parties, findings of the Hearing Officer, other relevant matters as compiled by the secretary of the Committee, and additional oral or written arguments the parties may wish to make. However, the Committee shall not receive or consider any additional evidence. The Housing Advisory Committee shall give ten (10) days prior written notice of its meeting to the parties. (e) Council reviews. The Council shall review the findings of the Hearing Officer and the recommendations of the Housing Advisory Committee as soon as reasonably practicable. The Council shall not reopen the hearing held by the Hearing Officer for the purpose of receiving new evidence unless, in the discretion of the Council, it is necessary to do so. The Council may affirm, modify, or reverse the rent increase in question, but in no case require a reduction lower than the maximum allowable increase. The Council shall render written findings in support of its conclusions within thirty (30) days after its meeting, and the decision of the Council shall be final. (f) Return of excess rents collected. Any rent increases which are collected by an owner pursuant to an increase which is the subject of a petition for hearing, and which later is determined by the Council to exceed the maximum allowable increase, or such greater increase as the Council approves, shall be either returned to the residents or credited to future space rents, provided, however, no increase collected prior to December 5, 1980, shall be returned. (g) Criteria to be utilized in rent increase reviews. httn://inunicii)alcodes.lexisnexis.com/codes/sanivancai)/ DATA/TITLE02/CHAPTER 2 COM... 4/17/2006 Sec. 2-2.902. Definitions. TI TL_E_2_ ._ADMINISTRATION CHAPTER_2, COMMISSIONS AND BOARDS Sec. 2-2.902. Definitions. For the purposes of this article, unless otherwise apparent from the context, certain words and phrases used in this article are defined as follows: (a) "Assessment" shall mean the entire allocation of the cost of installing, improving, repairing, or maintaining any capital improvement benefiting the resident. (b) "Committee" shall mean the Housing Advisory Committee established under Title 2, Chapter 2, Article 2 of this Code. Page 1 of 1 (c) "Consumer Price Index" shall mean the Consumer Price Index for all urban consumers (CPI -U) published for the Los Angeles -Long Beach -Anaheim area. (d) "Maximum allowable increase" shall mean the maximum allowable increase in mobile home space rent an owner may charge, unless a higher increase is approved by the City after a petition and hearing as provided in this article. The maximum allowable increase shall be provided in this subsection (d) and shall be determined by either of the following formulae an owner may choose to apply: (1) Take the operating expenses of the park for the twelve (12) month period immediately preceding the date upon which notification of any rent increase is to be made; multiply that sum by the percentage of increase in the CPI -U appearing in the latest published Consumer Price Index to arrive at the maximum allowable annual increase in rent for the entire park; and divide the number of units in the park to compute the maximum allowable annual rent increase (in dollars) for each space; or (2) Secure the percentage of annual increase in the CPI -U for the calendar year immediately preceding the one in which the rental adjustment is being made; multiply that figure by the rent to be adjusted to arrive at the maximum allowable rent increase percentage per year; and apply that product to each space rent. (3) Effective April 1, 1988, the maximum allowable increase for rental adjustments occurring under this subsection shall be based upon the percentage of annual rise in the CPI -U for the previous calendar year, Any rental increase occurring between October 1, 1987 and March 31, 1988 shall be subject to the maximum allowable increase computed with the annual rise of the CPI -U for the 1986 calendar year. (4) The percentage increase computed by either of the methods set forth in this subsection shall be applied to each space and shall not be applied to the park's mean rent. Moreover, there shall be no more than one increase in space rents within a park during any twelve (12) month period without the prior approval of the City. (5) The occurrence of a vacancy in either a space within a park or a mobile home unit on a space within a park shall not result in a space rental increase in excess of the percentage increase allowed once during any twelve (12) month period by this subsection, unless it results from a petition duly heard and approved pursuant to Section 2-2.903. (e) "Owner" shall mean the owner, lessor, or designated agent of a park. (f) "Park" shall mean a mobile home park which rents spaces for mobile home dwelling units. (g) "Rent" shall mean the consideration charged solely for the use and occupancy of a mobile home space in a park and shall not include any amount paid for the use of the mobile home dwelling unit or for facilities or amenities in a park, other than a mobile home space, or any other fees or charges regulated by a governmental agency and charged to residents on an actual usage and/or cost basis. (h) "Resident" shall mean any person entitled to occupy a mobile home dwelling unit pursuant to the ownership thereof or a rental or lease arrangement with the owner of the subject dwelling unit. (§ 1, Ord. 795) http://municii)alcodes.lexisnexis.com/codes/sanjuancai)/ DATA/TITLE02/CHAPTER 2 COM... 4/17/2006 Sec. 2-2.901. Findings. Page I of 1 TITLE 2. ADMINISTRATION CHAPTER 2. COMMISSIONS AND BOARDS Sec. 2-2.901. Findings. The Council finds and determines that: (a) There is presently, within the City and the surrounding areas, a shortage of spaces for the location of mobile homes, resulting in a low vacancy rate and rising space rents. (b) Mobile home owners have invested substantial sums in their mobile homes and appurtenances. (c) Alternative sites for the relocation of mobile homes are difficult to find, and the moving and installation of mobile homes are expensive, with possibilities of damage to the units. The Council, accordingly, does find and declare that it is necessary to protect the residents of mobile homes from unreasonable space rent increases, recognizing the need of mobile home park owners to receive a fair, just, and reasonable return. (§ 1, Ord. 795) httD://municiDalcodes.lexisnexis.com/codes/sanivancan/ DATA/T1TT.F.02/CHAPTFR 2 COM 4/17/200(, *Note to Article 9. Page 1 of 1 TITLE 2._ ADMINISTRATION CHAPTER 2. COMMISSIONS_ AND BOARDS "Note to Article 9. "Article 9 entitled "Mobile Home Park Review Board", consisting of Sections 2-2.901 through 2-2.911, codified from Ordinance No. 380, as amended by Ordinance Nos. 386, 393, and 405, effective April 16, 1980, amended in its entirety by Ordinance No. 412, effective December 5, 1980. Article 9 entitled "Mobile Home Park Review Committee", consisting of Sections 2-2.901 through 2-2.909, as added by said Ordinance No. 412, as amended by Ordinance Nos. 423, effective May 5, 1981, 425, effective August 6, 1981, 427, effective July 21, 1981, and 430, effective October 1, 1981, repealed by Ordinance No. 439, effective November 3, 1961. Article 9 entitled "Mobile Home Park Review Committee", consisting of Sections 2-2.901 through 2- 2.906, as added by Ordinance No. 439, as amended by Ordinance Nos. 456, effective June 3, 1982, 492, effective September 6, 1983, 507, effective May 3, 1984, 526, effective January 3, 1985, 545, effective July 18, 1985, 602, 613, and 715, amended in its entirety by Ordinance No. 795, effective June 6, 1997. httID://municipalcodes.lexisnexis.com/codes/sanivancap/ DATA/TITLE02/CHAPTER 2 COM... 4/17/2006 STATE OF CALIFORNIA ) ) ss. COUNTY OF ) On 2006, before me, , personally appeared ❑ personally known to me OR ❑ 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. WITNESS my hand and official seal. Signature of Notary [SEAL] RVPU13TBAUN 708986.1 STATE OF CALIFORNIA ) ss. COUNTY OF On 2006, before me, , personally appeared ❑ personally known to me OR ❑ 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. WITNESS my hand and official seal. Signature of Notary [SEAL] R V PUB\FBAUM\708986.1 IN WITNESS WHEREOF, the City and the Owner have executed this Supplemental Regulatory Agreement by duly authorized representatives, all as of the date first written hereinabove. CITY OF SAN JUAN CAPISTRANO By: _ Title: MILLENNIUM HOUSING CORPORATION, a California non-profit public benefit corporation 0 President RVPUB\FBAUNV08986.1 15 Section 21. Severability. If any provision of this Supplemental Regulatory Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining portions hereof shall not in any way be affected or impaired thereby. Section 22. Multiple Counterparts. This Supplemental Regulatory Agreement may be executed in multiple counterparts, all of which shall constitute one and the same instrument, and each of which shall be deemed to be an original. Section 23. Subordination. This Supplemental Regulatory Agreement and any amendments, modifications, renewals and extensions hereof shall at all times be a lien and charge on the Project and the real property described on Exhibit A hereto expressly and unconditionally subordinate to the lien and charge thereon of the Authority Regulatory Agreement and the Deed of Trust. RVPUBWBAU B708986.1 14 (c) take such other action at law or in equity as may appear necessary or desirable to enforce the obligations, covenants and agreements of the Owner hereunder. All fees, costs and expenses of the City and the Oversight Agent (including, without limitation, reasonable attorneys' fees) reasonably incurred in taking any action pursuant to this Section 15 shall be the sole responsibility of the Owner. Section 16. Recording and Filing. The Owner shall cause this Supplemental Regulatory Agreement and all amendments and supplements hereto, to be recorded and filed, after the recording of the Authority Regulatory Agreement and the Deed of Trust in the real property records of the County and in such other places as the may reasonably request. The Owner shall pay all fees and charges incurred in connection with any such recording. Section 17. Payment of Fees. In the event of a default hereunder by the Owner, the Owner shall pay to the City reasonable compensation for any services rendered by it hereunder and reimbursement for all expenses reasonably incurred by in connection with such default. Section 18. Governing Law. This Supplemental Regulatory Agreement shall be governed by the laws of the State of California. Section 19. Amendments. This Supplemental Regulatory Agreement shall be amended only by a written instrument executed by the parties hereto or their successors in title, and duly recorded in the real property records of the County. Section 20. Notice. All notices, certificates or other communications shall be sufficiently given and shall be deemed given on the date personally delivered or on the second day following the date on which the same have been mailed by certified mail, return receipt requested, postage prepaid, addressed as follows: City: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: City Manager Oversight Wolf & Company Inc. Agent: 5 Pembroke Lane Laguna Niguel, CA 92677 Attn: Wesley R. Wolf Owner: Millennium Housing Corporation 660 Newport Center Drive, Suite 1020 Newport Beach, CA 92660 Attn: George Turk Any of the foregoing parties may, by notice given hereunder, designate any further or different addresses to which subsequent notices, certificates, documents or other communications shall be sent. RVPUDTBAUM1708986.2 13 condemnation or a similar event and the payment in full and retirement of the Authority Bonds theretofore or within a reasonable period thereafter. Upon the termination of the terms of this Supplemental Regulatory Agreement, the parties hereto agree to execute, deliver and record appropriate instruments of release and discharge of the terms hereof; provided, however, that the execution and delivery of such instruments shall not be necessary or a prerequisite to the termination of this Supplemental Regulatory Agreement in accordance with its terms. Section 12. Covenants to Run With the Land. The Owner hereby subjects the Project (including the Project site) to the covenants, reservations and restrictions set forth in this Supplemental Regulatory Agreement. The City and the Owner hereby declare their express intent that the covenants, reservations and restrictions set forth herein shall be deemed covenants running with the land and shall pass to and be binding upon the Owner's successors in title to the Project; provided, however, that upon the termination of this Supplemental Regulatory Agreement said covenants, reservations and restrictions shall expire with the exception of the non-discrimination covenant of Section 3(e) which shall continue in perpetuity. Each and every contract, deed or other instrument hereafter executed covering or conveying the Project or any portion thereof shall conclusively be held to have been executed, delivered and accepted subject to such covenants, reservations and restrictions, regardless of whether such covenants, reservations and restrictions are set forth in such contract, deed or other instrument. Section 13. Burden and Benefit. The City and the Owner hereby declare their understanding and intent that the burden of the covenants set forth herein touch and concern the land in that the Owner's legal interest in the Project is rendered less valuable thereby. The City and the Owner 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 Project by Qualified Residents, the intended beneficiaries of such covenants, reservations and restrictions. Section 14. Uniformity; Common Plan. The covenants, reservations and restrictions hereof shall apply uniformly to the entire Project in order to establish and carry out a common plan for the use, development and improvement of the Project. Section 15. Enforcement. If the Owner defaults in the performance or observance of any covenant, agreement or obligation of the Owner set forth in this Supplemental Regulatory Agreement, and if such default remains uncured for a period of 60 days after notice thereof shall have been given by the City to the Owner (provided, however, that the City may at its sole option extend such period and provided further, in the event any default relates to Section 4 hereof and the Owner is exercising best efforts to comply with such restrictions as determined by the City in its reasonable discretion, then the cure period described above shall be 6 months and shall be subject to the extension of the Project Restriction Period under Section 4(h) hereof), then the City shall declare an "Event of Default" to have occurred hereunder, and the City, at its option, may take any one or more of the following steps: (a) by mandamus or other suit, action or proceeding at law or in equity, require the Owner to perform its obligations and covenants hereunder or enjoin any acts or things which may be unlawful or in violation of the rights of the City hereunder; (b) have access to and inspect, examine and make copies of all of the books and records of the Owner pertaining to the Project; and RVPUBTBAUM\708986.1 12 (b) Notwithstanding the provisions of Section 10(a) above, the Owner shall grant to the San Juan Capistrano Residents Association (the "Residents Association") an option to purchase the Project from the Owner under a written option agreement on the following general terms: (i) During the first 10 years following the Closing Date, the purchase price of the Project under said option shall be equal to $ plus the costs of any financing undertaken by the Residents Association to accomplish such purchase; (ii) After the first 10 years following the Closing Date, the purchase price of the Project shall be equal to $ plus the increase in the Consumer Price Index for the preceding year (beginning with year 11), together with the costs of any financing undertaken by the Residents Association to accomplish said purchase; (iii) The Residents Association shall pay, in addition to the purchase price set forth in (a) or (b) above, all costs, fees and expenses, including, but not limited to, title, escrow and all other closing costs, necessary to defease, prepay and redeem the Outstanding Bonds of the Authority and the transfer of ownership of the Project from the Owner to the Residents Association; and (iv) The Residents Association shall provide to the City, the Authority and the Owner an opinion of Bond Counsel to the effect that the exercise of said option and the purchase of the Project by the Residents Association and the defeasance of the Outstanding Authority Bonds will not in and of itself, cause interest on said Authority Bonds to be included in gross income for federal income tax purposes. (c) It is hereby expressly stipulated and agreed that any sale, transfer or other disposition of the Project in violation of this Section 10 shall be null, void and without effect, shall cause a reversion of title to the Owner, and shall be ineffective to relieve the Owner of its obligations under this Supplemental Regulatory Agreement. Not less than 30 days prior to consummating any sale, transfer or disposition of any interest in the Project, the Owner shall deliver to the City and the Oversight Agent a notice in writing explaining the nature of the proposed transfer. Section 11. Term. This Regulatory Agreement and all and several of the terms hereof shall become effective upon its execution and delivery and shall remain in full force and effect during the Project Restriction Period, it being expressly agreed and understood that the provisions hereof are intended to survive the retirement of the Authority Bonds. Notwithstanding any other provisions of this Regulatory Agreement to the contrary, this entire Supplemental Regulatory Agreement, or any of the provisions or sections hereof, may be terminated upon agreement by the City and the Owner. The terms of this Supplemental Regulatory Agreement to the contrary notwithstanding, this Supplemental Regulatory Agreement, and all and several of the terms hereof, shall terminate and be of no further force and effect in the event of (i) a foreclosure or delivery of a deed in lieu of foreclosure whereby the Authority Bondowners or a third party shall take possession of the Project, or (ii) involuntary non-compliance with the provisions of this Supplemental Regulatory Agreement caused by fire, seizure, requisition, change in a federal law or an action of a federal agency after the date hereof which prevents the City from enforcing the provisions hereof, or (iii) RVPUB\FBAUK708986.1 I I impositions or other charges, are sought to be imposed, the City shall give prompt notice to the Owner, and the Owner shall have the sole right and duty to assume, and will assume, the defense thereof, including the employment of counsel selected by the indemnified party and the payment of all reasonable expenses related thereto, with full power to litigate, compromise or settle the same in its sole discretion; provided, however, that the Owner shall have the right to review and approve or disapprove any such compromise or settlement, and provided further that any such approval shall not be unreasonably withheld. Section 8. Consideration. The City has agreed to become an Associate Member of the Authority for the purpose, among others, of inducing the Owner to own and operate the Project such that the Project shall contribute to the City's efforts to provide affordable housing to Qualified Residents in the City and to the satisfaction of the City's ongoing housing burden. In consideration of the City joining the Authority as an Associate Member in order to allow the Authority to provide financing to the Owner for the Project, the Owner has entered into this Supplemental Regulatory Agreement and has agreed to restrict the uses to which the Project can be put on the terms and conditions set forth herein. Section 9. Reliance. In performing its duties and obligations hereunder, the City may rely upon statements and certificates of the Owner and Qualified Residents, and upon audits of the books and records of the Owner pertaining to the Project. In addition, the City may consult with counsel, and the opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or suffered by the City hereunder in good faith and in Conformity with such opinion. Section 10. Sale or Transfer of the Project; Option to Purchase. (a) The Owner intends to hold the Project for its own account, has no current plans to sell, transfer or otherwise dispose of the Project, and hereby covenants and agrees not to sell, transfer or otherwise dispose of the Project, or any portion thereof (other than for individual tenant use as contemplated hereunder), without obtaining the prior written consent of the City and upon receipt by the City of (i) reasonable evidence satisfactory to the City that the Owner's purchaser or transferee has assumed in writing and in full, the Owner's duties and obligations under this Supplemental Regulatory Agreement, (ii) an opinion of counsel for the transferee that the transferee has duly assumed the obligations of the Owner under this Supplemental Regulatory Agreement, and that such obligations and this Supplemental Regulatory Agreement are binding on the transferee, (iii) the City receives evidence acceptable to the City that either (A) the transferee has experience in the ownership, operation and management of comparable projects without any record of material violations of discrimination restrictions or other state or federal laws or regulations applicable to such projects, or (B) the transferee agrees to retain a property management firm with the experience and record described in subparagraph (A) above and in either case, at its option, the City may cause the Oversight Agent to provide on-site training in program compliance if the City determines such training is necessary and (iv) the City receives evidence that the purchaser is a not for-profit organization. It is hereby expressly stipulated and agreed that any sale, transfer or other disposition of the Project in violation of this Section 10 shall be null, void and without effect, shall cause a reversion of title to the Owner, and shall be ineffective to relieve the Owner of its obligations under this Supplemental Regulatory Agreement. Not less than 30 days prior to consummating any sale, transfer or disposition of any interest in the Project, the Owner shall deliver to the City and the Oversight Agent a notice in writing explaining the nature of the proposed transfer. RVI U MBAUM\708986.1 10 (g) In the event, despite the Owner's exercise of best efforts to comply with the provisions of Section 4 of this Regulatory Agreement, the Owner shall have been out of compliance with any of the restrictions of Section 4 hereof relative to Qualified Residents, for a period in excess of six months, then at the sole option of the City the term of the Regulatory Agreement shall be automatically extended for the period of non-compliance upon written notice to the Owner and the Oversight Agent from the City, such extension to relate to the Qualified Spaces and Qualified Residents as to which such noncompliance relate. Section 5. Repair and Replacement Fund. The Owner agrees and covenants to cause to be established and maintained the Repair and Replacement Fund created by Section 5.3(7) of the Indenture and to be used and replenished as provided in Sections 5.13 and 5.7(h) of the Indenture and Section 6.22 of the Loan Agreement. Section 6. Other Covenants. (a) The Owner further covenants and agrees as follows: The Owner will comply with the provisions of Title 2, Chapter 2, Article 9 of the City Municipal Code relating to mobile home rent control (the "Rent Control Ordinance"), a copy of which Rent Control Ordinance is attached hereto as Exhibit B notwithstanding any legal challenges to the Rent Control Ordinance, and further agrees that it shall at all times abide by and follow the terms and provisions of the Rent Control Ordinance, and shall not in any manner challenge said provisions. (b) In the event the Owner requests any discretionary rental increases under the Rent Control ordinance, the Owner agrees not to appeal any decision of the City with respect to such request. (c) In the event the Rent Control Ordinance is determined in any legal proceeding to be invalid for any reason, the Owners agrees to continue to comply with the provisions of the Rent Control Ordinance as if it were still in effect. Section 7. Indemnification. The Owner shall indemnify, hold harmless and defend the City, the Oversight Agent and the Authority Bond Trustee and the respective officers, members, directors, officials and employees of each of them (the "indemnified party") against all loss, costs, damages, expenses, suits, judgments, actions and liabilities of whatever nature, joint and several (including, without limitation, attorneys' fees, Iitigation and court costs, amounts paid in settlement, and amounts paid to discharge judgments), directly or indirectly resulting from or arising out of or related to (a) the operation, use, occupancy, maintenance, or ownership of the Project (including compliance with laws, ordinances and rules and regulations of public authorities relating thereto); or (b) any written statements or representations with respect to the Owner the Project or the Authority Bonds made or given to the City, the Oversight Agent or the Authority Bond Trustee, by the Owner, or any of its agents or employees, including, but not limited to, statements or representations of facts or financial information; provided, however, the Owner shall not be obligated to indemnify the City, the Authority Bond Trustee or the Oversight Agent for damages caused by the gross negligence or willful misconduct of the City, the Authority Bond Trustee or the Oversight Agent. The Owner also shall pay and discharge and shall indemnify and hold harmless the City, the Oversight Agent and the Authority Bond Trustee from (x) any lien or charge upon payments by the Owner to the City and the Authority Bond Trustee hereunder and (y) any taxes (including, without limitation, all ad valorem taxes and sales taxes), assessments, impositions and other charges in respect of any portion of the Project. If any such claim is asserted, or any such lien or charge upon payments, or any such taxes, assessments, RVPUBIFBAUM1708986J 9 or the Oversight Agent. The Owner shall verify that the income provided by an applicant with respect to a Space to be occupied after the Closing Date is accurate by taking one or more of the following steps as a part of the verification process: (1) obtain a federal income tax return for the most recent tax year, (2) obtain a written verification of income and employment from applicant's current employer such as a current pay stub or W-2 form, (3) if an applicant is unemployed or did not file a tax return for the previous calendar year, obtain other verification of such applicant's income reasonably satisfactory to the Oversight Agent or (4) such other information as may be reasonably requested by the Oversight Agent. Within ten days of the last day of each calendar quarter during the term of this Regulatory Agreement commencing with the quarter ending 2006, the Owner shall advise the Oversight Agent or in the absence of a Oversight Agent, the City, of the status of the occupancy of the Project by delivering to the Oversight Agent a Certificate of Continuing Program Compliance; provided, however, with the prior written approval of the Oversight Agent or the City, as the case may be, such Certificate need be filed only semi-annually. Copies of the most recent Income Certifications for Qualified Residents commencing or continuing occupancy of a Qualified Space shall be made available to the City or Oversight Agent upon request. (d) Annually, the Owner shall recertify the income of the occupants of such Very Low Income Spaces and Lower Income Spaces, as applicable, by obtaining a completed Income Certification based upon the current income of each occupant of the unit. In the event the recertification demonstrates that such household's income exceeds 140% of the income at which such household would qualify as Very Low Income Residents or Lower Income Residents, as applicable, such household will no longer qualify as a Very Low Income Resident or a Lower Income Resident, as applicable, and the Owner either (i) will designate another qualifying Tenant and Space in the Project as a Very Low Income Resident or a Lower Income Resident, as applicable and a Very Low Income Space or a Lower Income Space, as applicable, respectively, or (ii) will rent the next available vacant Space to one or more Very Low Income Residents or Lower Income Residents, as applicable. (e) The Owner will maintain complete and accurate records pertaining to the Qualified Spaces, and will permit any duly authorized representative of the City or the Oversight Agent to inspect during normal business hours and with prior notice the books and records of the Owner pertaining to the Project, including those records pertaining to the occupancy of the Qualified Spaces. (f) Each lease or rental agreement pertaining to a Qualified Space occupied after the Closing Date shall contain a provision to the effect that the Owner has relied on the Income Certification and supporting information supplied by the Qualified Resident in determining qualification for occupancy of the Qualified Space, and that any material misstatement in such certification (whether or not intentional) may be cause for immediate termination of such lease. Each lease or rental agreement will also contain a provision that failure to cooperate with the annual recertification process reasonably instituted by the Owner pursuant to Section 4(d) above will disqualify the Space as a Qualified Space and provide grounds for termination of the lease. The Owner agrees to provide to the Oversight Agent and the City, a copy of the form of application and lease or rental agreement to be provided to prospective Qualified Residents and any amendments thereto. RVPUBTBAUMl708986A 8 Project by the Owner and excluding any supplemental rental assistance from the State, the federal government, or any other public agency to the Very Low Income Resident, on behalf of the Space and the mobile home) shall not exceed one -twelfth of 30 percent of 50 percent of Median Income for the Area, adjusted for household size in the manner set forth below. (B) where a Very Low Income Resident is the registered owner of the mobile home and is making mortgage payments for the purchase of that mobile home, the total rental charge for occupancy of the Space (excluding any charges for utilities and storage and excluding any supplemental rental assistance from the State, the federal government, or any other public agency to the Very Low Income Resident, or on behalf of the Space and mobile home), shall not exceed one -twelfth of 15 percent of 50 percent, of Median Income for the Area, as adjusted for household size in the manner set forth below. (C) where a Very Low Income Resident rents both the mobile home arfd the Space occupied by the mobile home, the total rental payments paid by the Very Low Income Resident on the mobile home and the Space occupied by the mobile home (excluding any supplemental rental assistance from the State, the federal government, or any other public agency to that Very Low Resident or on behalf of that Space and mobile home) shall not exceed one -twelfth of 30 percent of 50 percent, of Median Income as established by the U.S. Department of Housing and Urban Development for the Area adjusted for household size in the manner set forth below. In adjusting rent for household size, it shall be assumed that two persons will occupy a single -wide mobilehome and three persons will occupy a multisectional mobilehome; provided that if the multisectional mobilehome has three or more bedrooms, then it shall be assumed that four persons shall occupy a three-bedroom unit and five persons will occupy a four-bedroom unit. (b) In the event a recertification of the income of a Very Low Income Resident or a Lower Income Resident, as applicable, in accordance with Section 4(d) below demonstrates that such tenant no longer qualifies as a Very Low Income Resident or a Lower Income Resident, as applicable, the Space occupied by such tenant shall continue to be treated as a Very Low Income Space or a Lower Income Space, as applicable, unless and until any Space in the Project thereafter is occupied by a new tenant other than a Very Low Income Resident or a Lower Income Resident, as applicable. Moreover, a Space previously occupied by a Very Low Income Resident, a Lower Income Resident or a Moderate Income Resident, as applicable, and then vacated shall be considered occupied by a Qualified Resident until reoccupied, other than for a temporary period, at which time the character of the Space shall be redetermined. In no event shall such temporary period exceed thirty-one (3 1) days. Notwithstanding anything herein to the contrary, if at any time the number of Qualified Residents falls below the number required by subparagraph (a) (i) of this Section, the next available vacant Space shall be rented to a Qualified Resident. (c) Annually, the Owner will obtain and maintain on file an Income Certification form from each Qualified Resident occupying a Qualified Space, dated immediately prior to the initial occupancy of such Qualified Resident in the Project (or prior to the Closing Date in the case of existing Very Low Income Residents). In addition, the Owner will provide such further information as may be required in the future by the State of California, as requested by the City RVPUBTBAUMC708986.1 7 (b) Management and Operation of Project. The Owner acknowledges that there exists a Residents Association for the Project and a governing board thereof (the "Resident Association Board"). The Owner agrees that the Resident Association Board may provide tenant comment and input to the Owner in the management and operation of the Project. The Owner or its representative or agent agrees to meet with any such Resident Association Board at least twice a year, or at such other frequency as agreed by the Resident Association Board and the Owner, to receive comments and recommendations with respect to Project operation and management. The Owner further agrees to provide regular reports (at least quarterly, or at such other intervals as agreed to by the Owner and the Resident Association Board) relating to the operation of the Project to the Resident Association Board. While the Resident Association Board shall have no decision-making authority with respect to the management and operation of the Project, the Owner agrees to use its best efforts to implement recommendations of the Resident Association Board that can reasonably be implemented by the Owner and that will not cause the Owner, in its reasonable judgment, to be unable to perform its obligations under this Agreement, the Authority Regulatory Agreement, the Loan Agreement and the Deed of Trust. The Owner further agrees that it shall not refuse any good -faith request by the Resident Association Board for the addition, deletion or amendment of a Project rule or regulation absent a good -faith, business reason for doing so. The Owner may request all residents of the Project to vote on any such addition, deletion or amendment. The Owner further agrees to review and take such action as it determines to be appropriate with respect to any documented complaints about Project management presented to it by the Resident Association Board. (c) Property Maintenance. The Owner agrees, for the entire Term of this Supplemental Regulatory Agreement, to maintain all common area interior and exterior improvements and common buildings on the Project (exclusive of the mobile homes and tenant spaces), including landscaping and common buildings on the Project in good condition and repair (and, as to landscaping, in a healthy condition) and in accordance with all applicable laws, rules, ordinances, orders and regulations of all federal, state, county, municipal, and other governmental agencies and bodies having or claiming jurisdiction and all their respective departments, bureaus, and officials. The City places prime importance on quality maintenance to ensure that all City -assisted affordable housing projects within the City are not allowed to deteriorate due to below-average maintenance. Section 4. Qualified Residents. The Owner hereby represents, as of the date hereof, and warrants, covenants and agrees as follows: (a) During the Project Requirement Period (a) not less than twenty percent (20%) of the Spaces in the Project shall be designated as Very Low Income Spaces and shall be continuously occupied by Very Low Income; and (b) not less than thirty percent (30%) of the Spaces in the Project shall be designated as Lower Income Spaces and shall be continuously occupied by Lower Income Residents. The monthly rent charged for one-half of the Very Low Income Spaces (i.e., 10% of the Spaces in the Project) shall be not greater than as follows: (A) where a Very Low Income Resident is both the registered and legal owner of the mobile home and is not making mortgage payments for the purchase of that mobile home, the total rental charge for occupancy of the Space (excluding a reasonable allowance for other related housing costs determined at the time of acquisition of the RVPUB\FBAUM\708986.1 6 (c) All of the Spaces will be available for rental on a continuous basis to members of the general public, and the Owner will not give preference to any particular class or group in renting the Spaces in the Project, except to the extent that Spaces are required to be leased or rented to Qualified Residents. (d) The Project comprises a single geographically and functionally integrated project for residential rental property, as evidenced by the ownership, management, accounting and operation of the Project. (e) There shall be no discrimination against or segregation of any person or group of persons on account of race, color, religion, age, sex, marital status, ancestry, national origin, source of income (e.g. AFDC or SSI) or disability in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Project nor shall the transferee or any person claiming under or through the transferee, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Project. (f) The Very Low Income Spaces and the Lower Income Spaces shall be intermingled with, and shall be of comparable quality to, all other Spaces in the Project. Tenants in all Spaces shall have equal access to and enjoyment of all common facilities of the Project. (g) In the aggregate, no more than two persons per bedroom, plus one person shall occupy any Space in the Project. For example, with respect to a two bedroom mobilehome, maximum occupancy shall be 5 persons. (h) The Owner will accept as tenants, on the same basis as all other prospective tenants, persons who are recipients of federal certificates for rent subsidies pursuant to the existing housing program under Section 8 of the United Stated Housing Act, or its successor. The Owner shall not apply selection criteria to Section 8 certificate or voucher holders that is more burdensome than criteria applied to all other prospective tenants, nor shall the Owner apply or permit the application of management policies or lease provisions with respect to the Project which have the effect of precluding occupancy of Spaces by such prospective tenants. (i) The Owner agrees to honor all existing lease agreements in effect on the date of the Agreement, including any provisions contained therein with respect to rent adjustments, or if requested by a tenant who is a parry to such a lease agreement, to replace such lease agreement with a month-to-month lease arrangement, subject to the Rent Control Ordinance. Section 3A. Property Management and Maintenance. The following provisions shall apply during the term of this Supplemental Regulatory Agreement. (a) Management Responsibilities. The Owner is responsible for all management functions with respect to the Project including without limitation the selection of tenants, certification and recertification of household size and income, evictions, collection of rents and deposits, maintenance, landscaping, routine and extraordinary repairs, replacement of capital items, and security. The City shall not have responsibility over management of the Project. The Owner may delegate its duties under this Section 3A to a property management company. A resident manager shall also be required. In no instance shall the Owner delegate or forego its responsibility to manage and operate the Project in the manner set forth in this Supplemental Regulatory Agreement and the Loan Agreement. RVPUB\FBAUM\708986.1 5 (a) Upon close of escrow ("Close of Escrow"), initial space rent for each mobilehome space in the Project occupied by a resident at that time will be $805 per month (the "Rent Cap"). The Rent Cap for residents that do not currently rent space in the Project will be adjusted annually after the Close of Escrow to the rent permitted under the Rent Control Ordinance of the City of San Juan Capistrano (the "Rent Control Ordinance"). The Rent Cap for residents that currently rent space in the Project or rent space in the Project within seven days of the Close of Escrow ("Current Residents") shall remain at $805 per month until the second anniversary of the Close of Escrow, and shall thereafter be adjusted annually to the rent permitted under the Rent Control Ordinance (said amount, as adjusted from time to time, being referred to herein as the "Space Rent"). (b) Notwithstanding the Space Rent set forth in (a) above, every Current Resident will pay only that amount permitted as rent under the Rent Control Ordinance and any difference will be provided as assistance from the Rental Assistance Fund such that the total of the rent actually paid by such Current Resident, and the amount paid as rental assistance will equal the Space Rent. This rental subsidy for Current Residents will continue to be paid from the Rental Assistance Fund as long as the Current Resident resides in the Project. (c) All rental assistance will be contingent upon the Current Resident applicant's compliance with park rules, including the requirement to provide the Annual Income Certification needed for the Owner's compliance with the bond documents; failure to comply with park rules or the annual certification requirement, after written notice and the expiration of a reasonable cure period, may result in a suspension of the rental assistance, such suspension to continue until the Current Resident is again in compliance. (d) The Owner shall not seek to evict Current Residents who, while otherwise complying with park rules, cannot pay the subsidized rents; in such cases, the Owner shall use park surplus funds or the Rental Assistance Fund to reasonably fixrther subsidize or defer a portion of the rent, depending upon individual circumstances, but the Owner shall not be obligated to subsidize or defer sums in excess of the amount that would reduce the rent payable by a Current Resident below the rent that would be payable by that Current Resident under the Rent Control Ordinance had the Owner never purchased the Project. Owner shall also assist any Current Resident brought to the Owner's attention by the City, to the extent such assistance will not prevent the Owner from meeting its other obligations under its various bond agreements. Section 3. Project Requirements. The Owner hereby represents, as of the date hereof, and covenants, warrants and agrees as follows: (a) The Project is being owned and operated for the purpose of providing residential rental housing, consisting of one mobile home Space for each household, together with related facilities. (b) All of the mobile homes in the Project will contain separate facilities for living, sleeping, eating, cooking and sanitation, including a sleeping area, bathing and sanitation facilities and cooking facilities equipped with a cooking range, refrigerator and sink. RVPUBTBAUM1708986.1 4 "Rental Assistance Fund" - The fund by that name established pursuant to the Indenture and to be administered pursuant to Section 2(b) hereof "Space" - A mobile home space within the Project upon which a mobile home may be placed "Very Low Income Residents" - Individuals or families with an Adjusted Income which does not exceed the qualifying limits for very low income households, adjusted for actual household size, as established and amended from time to time pursuant to Section 8 of the United States Housing Act of 1937, and as published by the State of California Department of Housing and Community Development. "Very Low Income Spaces" - The Spaces in the Project designated for occupancy by Very Low Income Residents pursuant to Section 4(a) of this Supplemental Regulatory Agreement. Such terms as are not defined herein shall have the meanings assigned to them in the Indenture. Unless the context clearly requires otherwise, as used in this Supplemental Regulatory Agreement, words of the masculine, feminine or neuter gender shall be construed to include each other gender when appropriate and words of the singular number shall be construed to include the plural number, and vice versa, when appropriate. This Supplemental Regulatory Agreement and all the terms and provisions hereof shall be construed to effectuate the purposes set forth herein and to sustain the validity hereof. The defined terms used in the preamble and recitals of this Supplemental Regulatory Agreement have been included for convenience of reference only, and the meaning, construction and interpretation of all defined terms shall be determined by reference to this Section 1 notwithstanding any contrary definition in the preamble or recitals hereof. The titles and headings of the sections of this Supplemental Regulatory Agreement have been inserted for convenience of reference only, and are not to be considered a part hereof and shall not in any way modify or restrict any of the terms or provisions hereof or be considered or given any effect in construing this Supplemental Regulatory Agreement or any provisions hereof or in ascertaining intent, if any question of intent shall arise. Section 2. Membership in Authority; Rental Assistance Fund. (a) City Membership in Authority. In consideration of the Borrower entering into this Supplemental Regulatory Agreement, the City has agreed to become an Associate Member of the Authority in order to enable the Authority to provide financing to the Owner for the Project. (b) Rental Assistance Fund. (i) The Owner shall establish with the Authority Bond Trustee the Rental Assistance Fund, which shall be held by the Authority Bond Trustee pursuant to Section 5.18 of the Indenture. After initial funding of the Rental Assistance Fund, the Owner shall thereafter fund additional deposits to the Rental Assistance Fund from moneys in the Surplus fund under the Indenture so as to maintain sufficient moneys in the Rental Assistance Fund to meet the Owner's obligations under this Section 2(b). (ii) The Owner is authorized to make monthly withdrawals and utilize moneys in the Rental Assistance Fund to provide a subsidy for rental payments to be made by tenants in the Project in the manner and in the amounts set forth as follows: RVPUBTBAUM\708986.1 3 "Authority Bonds" - Collectively, the Authority's Mobile Home Park Revenue Bonds (San Juan Mobile Estates) Series 2006A, Mobile Home Park Subordinate Revenue Bonds (San Juan Mobile Estates) Series 2006B and Mobile Home Park Subordinate Revenue Bonds (San Juan Mobile Estates) Taxable Series 2006C issued pursuant to an Indenture of Trust between the Authority and the Authority Bond Trustee and dated as of 1, 2006. "Authority Bond Trustee" - Union Bank of California, N.A., as trustee for the Authority Bonds. "Certificate of Continuing Program Compliance" - The certificate with respect to the Project to be filed by the Owner with the Authority, the City, the Oversight Agent and the Authority Bond Trustee which shall be substantially in the form attached to the Authority Regulatory Agreement as Exhibit C. "City" - The City of San Juan Capistrano. "County" - The County of Orange. "Deed of Trust" - The Deed of Trust defined in the Indenture. "Income Certification" - The Income Computation and Certification attached to the Authority Regulatory Agreement as Exhibit B. "Lower Income Residents" - An individual or family household that, on the later of: (i) the date of this Agreement, or (ii) the date of the Lower Income Resident's initial occupancy of the Park, has an Adjusted Income that does not exceed the qualifying limits for lower income households, adjusted for actual household size, as established and amended from time to time pursuant to Section 8 for the United States Housing Act of 1937, and as published by the State of California Department of Housing and Community Development. "Lower Income Spaces" - The spaces in the Project designated for occupancy by Lower Income Residents pursuant to Section 4(a) of this Supplemental Regulatory Agreement. "Median Income for the Area" - The median gross yearly income adjusted for household size for the Area, as published from time to time by the State. In the event that such income determinations are no longer published, or are not updated for a period of at least eighteen (18) months, the City shall provide the Owner with other income determinations which are reasonably similar with respect to methods of calculation to those previously published by the State. "Oversight Agent" - the Oversight Agent appointed under the Administration Agreement, which initially shall be Wolf & Company Inc. "Project Restriction Period" - The period ending 35 years from the execution date of this Supplemental Regulatory Agreement. "Qualified Residents" - means Very Low Income Residents and Lower Income Residents. "Qualified Space" - a Very Low Income Space or a Lower Income Space. RVPUB\F13AUNV08986.1 THIS SUPPLEMENTAL REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS (the "Regulatory Agreement"), made and entered into as of 1, 2006, by and between the City of San Juan Capistrano, a public body, corporate and politic (the "City"), and Millennium Housing Corporation, a California nonprofit corporation, as the owner of the property described in Exhibit A attached hereto (the "Owner"): WITNESSETH: WHEREAS, the Owner is acquiring the property described on Exhibit A attached hereto and the improvements located thereon, consisting of a 312 -space mobile home park known as "San Juan Mobile Estates" (the "Project"), with a loan to it from the Independent Cities Lease Finance Authority (the "Authority") from the proceeds of the Authority's Mobile Home Park Revenue Bonds, Series A, Series B and Taxable Series C (collectively, the "Authority Bonds"); and WHEREAS, in connection with the issuance of the Authority Bonds, the Owner, the Authority and Union Bank of California, N.A., as trustee for the Authority Bonds (the "Authority Bond Trustee") have entered into a Regulatory Agreement and Declaration of Restrictive Covenants dated as of 1, 2006 (the "Authority Regulatory Agreement") which is being recorded in the real estate records of Orange County as a covenant running with the real property described in Exhibit A (the "Property"); and WHEREAS, in consideration of the City joining the Authority as an Associate Member in order to enable the Authority to provide financing to the Owner for the Project, the Owner and the City are entering into this Supplemental Regulatory Agreement and wish it to be recorded as a covenant running with the Property on a subordinate basis to the Authority Regulatory Agreement and the Deed of Trust referred to herein; NOW, THEREFORE, in consideration of the mutual covenants and undertakings set forth herein, and other good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, the City and the Owner hereby agree as follows: Section 1. Definitions and Interpretation. The following terms shall have the respective meanings assigned to them in this Section 1 unless the context in which they are used clearly requires otherwise: "Adjusted Income" — The total anticipated annual income of all persons in a household, as calculated in accordance with 25 California Code of Regulations Section 6914 or pursuant to a successor State housing program that utilizes a reasonably similar method of calculation of adjusted income. In the event that no such program exists, the City shall provide the Owner with a reasonably similar method of calculation of adjusted income as provided in said Section 6914. "Administration Agreement" - The Administration and Oversight Agreement, dated as of 1, 2006, by and among the Authority, the City, the Owner and the Oversight Agent. "Area" - The Primary Metropolitan Statistical Area in which the Project is located. "Authority" - The Independent Cities Lease Finance Authority. RVPUBIFBAUM\708986.1 TABLE OF CONTENTS Page Section 1. Definitions and Interpretation.................................................................... 1 Section 2. Membership in Authority; Rental Assistance Fund ................................... 3 Section 3. Project Requirements................................................................................. 4 Section 3A. Property Management and Maintenance................................................... 5 Section 4. Qualified Residents.................................................................................... 6 Section S. Repair and Replacement Fund................................................................... 9 Section 6. Other Covenants......................................................................................... 9 Section 7. Indemnification.......................................................................................... 9 Section 8. Consideration........................................................................................... 10 Section9. Reliance.................................................................................................... 10 Section 10. Sale or Transfer of the Project; Option to Purchase ................................ 10 Section11. Term......................................................................................................... 11 Section 12. Covenants to Run With the Land............................................................. 12 Section 13. Burden and Benefit.................................................................................. 12 Section 14. Uniformity; Common Plan ...................................................................... 12 Section 15. Enforcement............................................................................................. 12 Section 16. Recording and Filing................................................................................ 13 Section 17. Payment of Fees....................................................................................... 13 Section 18. Governing Law........................................................................................13 Section 19. Amendments............................................................................................ 13 Section20. Notice.......................................................................................................13 Section21. Severability.............................................................................................. 14 Section 22. Multiple Counterparts.............................................................................. 14 Section 23. Subordination...........................................................................................14 EXHIBIT A - Legal Description................................................................................................. A-1 EXHIBIT B — Rental Control Ordinance.......................................................... ........................... B -I RVPUB\FBAUM\708986.1 -i_ RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: BEST BEST & KRIEGER LLP ) 3750 University Avenue, P Floor ) Riverside, CA 92501 ) Attention: Francis J. Baum, Esq. ) [Space above for Recorder's use] SUPPLEMENTAL REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS By and Between the CITY OF SAN JUAN CAPISTRANO MT14l MILLENNIUM HOUSING CORPORATION, as Owner Dated as of 1, 2006 EXHIBIT B RVPUffTBAUM\708986. ] IN WITNESS WHEREOF, the parties hereto have caused this Associate Membership Agreement to be executed and attested by their proper officers thereunto duly authorized, on the day and year first set forth above. INDEPENDENT CITIES LEASE FINANCE AUTHORITY President Attest: Secretary CITY OF SAN JUAN CAPISTRANO Mayor Attest: City Clerk RVPUBTBAUK710435.1 of which are hereby incorporated herein by reference. From and after the date of execution and delivery of this Associate Membership Agreement by the City and the Authority, the City shall be and remain an Associate Member of the Authority. Section 2. Restrictions and Rights of the City. The City shall not have the right, as an Associate Member of the Authority, to vote on any action taken by the Board of Directors or by the Authority. In addition, no officer, employee or representative of the City shall have any right to become an officer or director of the Authority. Section 3. No Obligations of the City. The debts, liabilities and obligations of the Authority shall not be the debts, liabilities and obligations of the City. Section 4. Indemnification by Owner. The Authority shall ensure that the legal documents relating to any bonds issued to finance projects within the jurisdiction of the City shall provide that the owner of any such project shall indemnify, hold harmless and defend the City and each of its officers, officials, employees and agents from any and all loss, liability, fines, penalties, forfeitures, costs, expenses and damages (whether imposed by statute, in contract, tort or strict liability) incurred by the City and from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses) arising or alleged to have arisen directly or indirectly out of performance by the City of this Agreement. Section S. Execution of the Agreement. Execution of this Associate Membership Agreement shall satisfy the requirements of Article 27 of the Agreement and Article XI of the Bylaws of the Authority for participation by the City in all programs and other undertakings of the Authority, including, without limitation, any Home Mortgage Financing Program (as defined in the Agreement), any financing under the Nonprofit Financing Law, any undertaking to finance the acquisition, construction, installation and/or equipping of public capital improvements, and any other financing program. RVPU13TBAUNI\710435.1 2 ASSOCIATE MEMBERSHIP AGREEMENT by and between the INDEPENDENT CITIES LEASE FINANCE AUTHORITY and the CITY OF SAN JUAN CAPISTRANO THIS ASSOCIATE MEMBERSHIP AGREEMENT, dated as of May 1, 2006, by and between THE INDEPENDENT CITIES LEASE FINANCE AUTHORITY (the "Authority") and the CITY OF SAN JUAN CAPISTRANO, duly organized and existing under the laws of the State of California (the "City"); WITNESSETH: WHEREAS, certain cities of the State of California (collectively, the "Members") have entered into a Joint Powers Agreement Creating the Independent Cities Lease Finance Authority (the "Agreement'), establishing the Authority and prescribing its purposes and powers, and providing, among other things, for associate members of the Authority (an "Associate Member"); WHEREAS, the Authority has been formed for the purpose, among others, of assisting its Members and Associate Members in the raising of capital to finance the capital improvement needs of Local Agencies (as defined in the Joint Powers Agreement), to provide for home mortgage financing with respect to those Members or Associate Members that are either a city or a county of the State of California, to provide financing in connection with the improvement, construction, acquisition, creation, rehabilitation and preservation of affordable housing within the boundapes of the Members and Associate Members, and to provide financing in accordance with the provisions of applicable law in connection with other projects and programs that are in the public interest and which benefit Members and Associate Members including making loans to tax-exempt organizations from the proceeds of mortgage revenue bonds to finance the acquisition of multi -family rental housing, including mobilehome parks, under the provisions of Chapter 8 of Part 5 of Division 31 (commencing with Section 52100) of the Health and Safety Code (the "Nonprofit Financing Law"); WHEREAS, the City desires to become an Associate Member of the Authority; WHEREAS, the Board of Directors of the Authority has determined that the City should become an Associate Member of the Authority; NOW, THEREFORE, in consideration of the above premises and of the mutual promises herein contained, the Authority and the City do hereby agree as follows: Section 1. Associate Member Status. The City is hereby made an Associate Member of the Authority for all purposes of the Agreement and the Bylaws of the Authority, the provisions RVPUBTBAUMV 10435.1 1 EXHIBIT A Section 3. Effective Date. This Resolution shall take effect from and afterthe date of its passage and adoption. PASSED, APPROVED, AND ADOPTED this 2nd day of May 2006. DAVID M. SWERDLIN, MAYOR ATTEST: MARGARET R. MONAHAN, CITY CLERK WHEREAS, inconsideration of the City joining the Authority, the Owner has agreed to enter into a Supplemental Regulatory Agreement and Declaration of Restrictive Covenants with the City (the "Supplemental Regulatory Agreement") providing for certain additional affordable housing requirements for the Project, which shall be administered pursuant to an Administration and Oversight Agreement, said Agreements being in the forms on file with the City Clerk; NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of San Juan Capistrano does hereby: Section 1, Approval of an Associate Membership Agreement (Exhibit A). This City Council hereby approves the City's membership in the Authority as an Associate Member and authorizes the Mayor or the Mayor Pro Tem to execute and the City Clerk to attest the Associate Membership Agreement, in substantially the form on file with the City Clerk, pursuant to which the City shall become an Associate Member of the Authority. The Mayor, Mayor Pro Tem, City Manager, City Clerk and any other officers of the City, are hereby authorized and directed to take all actions and do all things necessary or desirable hereunder with respect to the Associate Membership Agreement, including but not limited to, the execution and delivery of any an all agreements, certificates, instruments and other documents which they, or any of them, may deem necessary or desirable and not inconsistent with the purposes of this Resolution. Section 2. Approval of the Supplemental Reaulatory Agreement (Exhibit B) and Administration and Oversight Agreement (Exhibit C). The form of the Supplemental Regulatory Agreement and Declaration of Restrictive Covenants (the "Supplemental Regulatory Agreement") by and between the City and the Owner presented to this meeting and imposing certain restrictions in the Project is hereby approved and any of the Mayor, Mayor Pro Tem or City Manager (each an "Authorized Officer") are, and each of them is, hereby authorized and directed, for and in the name and on behalf of the City, to execute the Supplemental Regulatory Agreement in substantially the form hereby approved, with such additions or changes therein as the Authorized Officer executing the same may approve, such approval to be conclusively evidenced by the execution and delivery thereof. Any of the Authorized Officers are hereby authorized and directed to cause the Supplemental Regulatory Agreement to be recorded in the real estate records of the County of Orange on a subordinate basis to the Regulatory Agreement and Deed of Trust relating to the Bonds. Any of the Authorized Officers are further authorized to and directed, for and in the name and on behalf of the City, to execute the Administration and Oversight Agreement by and among the City, the Authority, the Owner and the Oversight Agent named therein and relating to the administration of the Supplemental Regulatory Agreement and the Regulatory Agreement. RESOLUTION NO. 06- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, APPROVING AN ASSOCIATE MEMBERSHIP AGREEMENT WITH THE INDEPENDENT CITIES LEASE FINANCE AUTHORITY, A SUPPLEMENTAL REGULATORY AGREEMENT AND AN ADMINISTRATION AND OVERSIGHT AGREEMENT WITH RESPECT TO THE SAN JUAN MOBILE ESTATES WHEREAS, certain cities of the State of California (collectively, the "Members") have entered into a Joint Powers Agreement Creating the Independent Cities Lease Finance Authority (the "Joint Powers Agreement"), establishing the Independent Cities Lease Finance Authority (the "Authority") and prescribing its purposes and powers, and providing, among other things, for associate members of the Authority (an "Associate Member"); WHEREAS, the Authority has been formed for the purpose, among others, of assisting its Members and Associate Members in the raising of capital to finance the capital improvement needs of Local Agencies (as defined in the Joint Powers Agreement), to provide for home mortgage financing with respect to those Members or Associate Members that are either a city or a county of the State of California, to provide financing in connection with the improvement, construction, acquisition, creation, rehabilitation and preservation of affordable housing within the boundaries of the Members and Associate Members, and to provide financing in accordance with the provisions of applicable law in connection with other projects and programs that are in the public interest and which benefit Members and Associate Members including making loans to tax-exempt organizations from the proceeds of mortgage revenue bonds to finance the acquisition of multi -family rental housing, including mobile home parks, under the provisions of Chapter 8 of Part 5 of Division 31 (commencing with Section 52100) of the Health and Safety Code; WHEREAS, the City of San Juan Capistrano (the "City") desires to become an Associate Member of the Authority as provided in the Associate Membership Agreement, in the form on file with the City Clerk; and WHEREAS, the Authority proposes to issue its Mobile Home Park Revenue Bonds 2006 Series A, 2006 Series B and 2006 Taxable Series C (the "Bonds"); and WHEREAS, the proceeds of the Bonds, if any are issued, will be loaned to Millennium Housing Corporation, a California nonprofit corporation (the "Owner") for the purpose of financing the acquisition and improvement of a 312 -space mobile home park known as the San Juan Mobile Estates located at 32302 Alipaz Street in the City (the "Project"); and ATTACHMENT Agenda Report Page 2 May 2, 2006 arrangement approved for the construction of the Seasons Apartment Complex by Kaufman & Broad in 1995. Staff recommends the City Council adopt a resolution approving an Associate Membership Agreement with the ICLFA, a Supplemental Regulatory Agreement and an Administration and Oversight Agreement with respect to the San Juan Mobile Estates acquisition and adopt a resolution approving the Issuance of Mobile Home Park Revenue Bonds by the ICLFA for the San Juan Mobile Estates acquisition. Background: In March 2005, George Turk of Millennium and his associate Pam Newcomb of Kinsell, Newcomb & deDios, Inc. (KN&D) submitted a proposal to City staff regarding the acquisition of San Juan Mobile Estates Mobile Home Park (SJME) by Millennium. Staff met with Millennium on May 10, 2005 to review their proposal. Their proposal is to acquire the park from the private property owner and manage the park through the non- profit corporation through the issuance of tax-exempt bonds. The initial proposal requested financial participation (up to $2 million of housing set-aside funds) by the Community Redevelopment Agency (the "Agency") along with the City facilitating a tax- exempt financing and providing a letter of condemnation to the property owner for tax purposes. Since the project did not provide any new affordable housing stock in our community, it did not provide any benefit to the community as a whole. Therefore, staff told Millennium that the neither the City nor the Agency were interested in participating financially in the project. Even though the Agency would not be participating financially, Millennium still requested that the City facilitate a tax-exempt financing and provide the letter of condemnation. In order to consider this request, City staff wanted to assure that the project was financially sound and that a majority of the Park Residents supported the acquisition. In November 2005, the City was contacted the Park Residents representative board (the "Board") requesting a meeting to discuss the acquisition. At that meeting, Millennium and the Board indicated that with the use of tax-exempt financing and a letter of condemnation to the property owner they would be able to put the project together. They requested the City take the necessary steps of joining ICLFA and authorizing the issuance of tax-exempt financing through ICLFA to facilitate their project. Although the City would have no financial obligation, it was agreed that a pro forma of the proposed project would be prepared and reviewed by the City's Financial Advisor, Fieldman, Rolapp & Associates (FRA) to determine if the project was financially viable over the long-term. FRA completed its evaluation and found the project to be financially viable, however City staff and FRA wanted to be sure that the Park Residents had sufficient information regarding the deal points prior to making their final decision. City staff and FRA met with the Board and Millennium to flush out a number of questions and issues concerning the project. Upon completion of these meetings, the City notified 5/2/2006 E3 AGENDA REPORT TO: Dave Adams, City Manager 9* FROM: Cindy Russell, Administrative Services Director SUBJECT: Consideration of an Associate Membership Agreement with the Independent Cities Lease Finance Authority (ICLFA) and the Issuance of Mobile Home Park Revenue Bonds by ICLFA to Finance the San Juan Mobile Estates Project (Millennium Housing Corporation) By Motion, Adopt a resolution approving an Associate Membership Agreement with the Independent Cities Lease Finance Authority, a Supplemental Regulatory Agreement and an Administration and Oversight Agreement with respect to the San Juan Mobile Estates acquisition, and 2. Adopt a resolution approving the Issuance of Mobile Home Park Revenue Bonds by the Independent Cities Lease Finance Authority for the San Juan Mobile Estates acquisition. C3�i4,� 11Ls1: Summary and Recommendation: The residents of the San Juan Mobile Home Estates Mobile Home Park (the "Park Residents") have been working with Millennium Housing Corporation (Millennium), a California non-profit public benefit corporation to acquire the park from the current private owner. The Park Residents have determined that ownership by Millennium as opposed to a private owner will allow them among other things to have more control over the operations and management of their park. Additionally, Millennium has agreed that the City's Rent Control Ordinance would be the governing guideline for rent increases in this park for the term of the regulatory agreement which is 35 years. The Park Residents and Millennium have requested the City of San Juan Capistrano join a state-wide joint powers agency, the Independent Cities Lease Finance Authority (ICLFA) so that financing through the use of tax-exempt revenue bonds can be accomplished. These bonds would be issued by the ICLFA and the City would have no financial obligations or risk relating to the financing. Also, this financing would not have any affect on the City's future financings or ratings. This arrangement is similar to the BEST BEST & KRIEGER LLP A CALIFORNIA LIMBED LIABILITY PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS INDIAN WELLS LAWYERS SACRAMENTO (760) 568-261 1 3750 UNIVERSITY AVENUE (916) 325-4000 - POST OFFICE BOX 1028 - IRVINE RIVERSIDE, CALIFORNIA 92502-1028 SAN DIEGO (949) 263-2600 (951) 688-1450 (519) 525-1300 - (95 1) 6B6-3083 FAX - ONTARIO BSKLAW.COM WALNUT CREEK (909) 969-8584 (925) 977-3300 August 8, 2006 City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attention: Cindy Russell Administrative Services Director Re: $29,660,000 Independent Cities Lease Finance Authority Mobile Home Park Revenue Bonds (San Juan Mobile Estates) Series 2006A and $9,765,000 Independent Cities Lease Finance Authority Mobile Home Park Subordinate Revenue Bonds (San Juan Mobile Estates) Series 2006B and $485,000 Independent Cities Lease Finance Authority Mobile Home Park Subordinate Revenue Bonds (San Juan Mobile Estates) Taxable Series 2006C Dear Cindy: Enclosed for your files please find originals of the following documents signed by the City of San Juan Capistrano: Associate Membership Agreement between Independent Cities Lease Finance Authority and the City of San Juan Capistrano Supplemental Regulatory Agreement and Declaration of Restrictive Covenants Administration and Oversight Agreement. Also enclosed are copies of following documents: - Indenture of Trust - Loan Agreement - Regulatory Agreement. - Deed of Trust Very truly yours, Francis J. Baum of Best Best & Krieger LLP encls. RV PUB\FBAUM\77 8253.1 ASSOCIATE MEMBERSHIP AGREEMENT by and between the INDEPENDENT CITIES LEASE FINANCE AUTHORITY and the CITY OF SAN JUAN CAPISTRANO THIS ASSOCIATE MEMBERSHIP AGREEMENT, dated as of May 1, 2006, by and between THE INDEPENDENT CITIES LEASE FINANCE AUTHORITY (the "Authority") and the CITY OF SAN JUAN CAPISTRANO, duly organized and existing under the laws of the State of California (the "City"); WITNESSETH: WHEREAS, certain cities of the State of California (collectively, the "Members") have entered into a Joint Powers Agreement Creating the Independent Cities Lease Finance Authority (the "Agreement'), establishing the Authority and prescribing its purposes and powers, and providing, among other things, for associate members of the Authority (an "Associate Member"); WHEREAS, the Authority has been formed for the purpose, among others, of assisting its Members and Associate Members in the raising of capital to finance the capital improvement needs of Local Agencies (as defined in the Joint Powers Agreement), to provide for home mortgage financing with respect to those Members or Associate Members that are either a city or a county of the State of California, to provide financing in connection with the improvement, construction, acquisition, creation, rehabilitation and preservation of affordable housing within the boundaries of the Members and Associate Members, and to provide financing in accordance with the provisions of applicable law in connection with other projects and programs that are in the public interest and which benefit Members and Associate Members including making loans to tax-exempt organizations from the proceeds of mortgage revenue bonds to finance the acquisition of multi -family rental housing, including mobilehome parks, under the provisions of Chapter 8 of Part 5 of Division 31 (commencing with Section 52100) of the Health and Safety Code (the "Nonprofit Financing Law"); WHEREAS, the City desires to become an Associate Member of the Authority; WHEREAS, the Board of Directors of the Authority has determined that the City should become an Associate Member of the Authority; NOW, THEREFORE, in consideration of the above premises and of the mutual promises herein contained, the Authority and the City do hereby agree as follows: Section 1. Associate Member Status. The City is hereby made an Associate Member of the Authority for all purposes of the Agreement and the Bylaws of the Authority, the provisions RVPUBTBAUM\710435.1 1 �� of which are hereby incorporated herein by reference. From and after the date of execution and delivery of this Associate Membership Agreement by the City and the Authority, the City shall be and remain an Associate Member of the Authority. Section 2. Restrictions and Rights of the City. The City shall not have the right, as an Associate Member of the Authority, to vote on any action taken by the Board of Directors or by the Authority. In addition, no officer, employee or representative of the City shall have any right to become an officer or director of the Authority. Section 3. No Obligations of the City. The debts, liabilities and obligations of the Authority shall not be the debts, liabilities and obligations of the City. Section 4. Indemnification by Owner. The Authority shall ensure that the legal documents relating to any bonds issued to finance projects within the jurisdiction of the City shall provide that the owner of any such project shall indemnify, hold harmless and defend the City and each of its officers, officials, employees and agents from any and all loss, liability, fines, penalties, forfeitures, costs, expenses and damages (whether imposed by statute, in contract, tort or strict liability) incurred by the City and from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses) arising or alleged to have arisen directly or indirectly out of performance by the City of this Agreement. Section S. Execution of the Agreement. Execution of this Associate Membership Agreement shall satisfy the requirements of Article 27 of the Agreement and Article XI of the Bylaws of the Authority for participation by the City in all programs and other undertakings of the Authority, including, without limitation, any Home Mortgage Financing Program (as defined in the Agreement), any financing under the Nonprofit Financing Law, any undertaking to finance the acquisition, construction, installation and/or equipping of public capital improvements, and any other financing program. RVPUB\FBAUM\710435.1 2 IN WITNESS WHEREOF, the parties hereto have caused this Associate Membership Agreement to be executed and attested by their proper officers thereunto duly authorized, on the day and year first set forth above. INDEPENDENT CITIES LEASE FINANCE AUTHORITY BY I 11 President Attest: N` L Secretary CITY OF SAN JUAN CAPISTRANO an Attest: City Clerk RVPUBIFBAUMV 10435.1 Mayor IN WITNESS WHEREOF, the parties hereto have caused this Associate Membership Agreement to be executed and attested by their proper officers thereunto duty authorized, on the day and year first set forth above. Attest: Secretary R V PUB\FBAUM\710435.1 INDEPENDENT CITIES LEASE FINANCE AUTHORITY 0 President CITY OF SAN JUAN CAPISTRANO �c By: Mayor PUBLIC AGENCY FORM OF ACKNOWLEDGEMENT State of California ) County of Orange ) ss. City of San Juan Capistrano ) (Gov't Code 40814 & Civil Code 118 1) On May 25, 2006, before me, Margaret R. Monahan, City Clerk, personally appeared David M. Swerdlin personally known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. (SEAL) Capacity Claimed by Signers Mayor Title Signers are Representing City of San Juan Capistrano WITNESS my hand and official seal. R. Monahan, City Clerk OPTIONAL Description of Attached Document Associate Membership Agreement Date: May 1, 2006