Resolution Number 06-05-02-04RESOLUTION 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 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, underthe 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
I
'Project'); and
Page 1 of 3 05-02-2006
Seg
WHEREAS, in consideration of the Cityjoining 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 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 bythe 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.
Page 2 of 3 05-02-2006
PASSED, APPROVED, AND ADOPTED this 2nd day of May 2006.
1
/VID M. SWKRDLrF4, MAYOR
Q
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:
NOES:
RS: Hart, Bathgate, Soto, Allevato, and Mayor Swerdlin
R: None
:I Z�111111111111111 0e M12
SP Page 3 of 3 05-02-2006
' 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
SPRVPUB\FBAUM\710435.1 I 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.
RVPUB\FBAUW10435.I 2 EXHIBIT A SP
' 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:
Secretary
INDEPENDENT CITIES LEASE FINANCE
AUTHORITY
DO
President
CITY OF SAN JUAN CAPISTRANO
By:
Mayor
Attest:
City Clerk
SPRVPUB\FBAUM\710435.1 3 EXHIBIT A
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. )
1 _
[Space above for Recorder's use]
SUPPLEMENTAL
REGULATORY AGREEMENT
AND DECLARATION OF RESTRICTIVE COVENANTS
By and Between the
CITY OF SAN JUAN CAPISTRANO
and
I
MILLENNIUM HOUSING CORPORATION,
as Owner
Dated as of 1, 2006
S►'
RVPUB\FBAUM\708986.1 EXHIBIT B
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.
t
RV PUB\FBAUM\708986.1
"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.
SIP RVPUB\FBAUM\708986.1 2
"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:
SP
RVPUB\FBAUM\708986.1 3
(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.
SO
RVPUB\FBAUM\708986.1 4
(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. S
RVPUB\FBAUMV08986.1 5
(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
S� RVPUB\FBAUM\708986.1 6
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
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
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.
SP
RVPUB\FBAUM\708986.1 8
(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, 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,
Sty
RVPUB\FBAUM\708986.1 9
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 terns 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.
SPRVPUB\FBAUM\708986.1 10
(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\FBAUM\708986.1 I I
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
p-� records of the Owner pertaining to the Project; and
s� RVPUB\FBAUM\708986.1 12
(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.
Sig
RVPUB\FBAUW708986.1 13
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.
S� RVPUB\FBAUM\708986.1 14
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
M
President
so
RVPUB\PBAUM\708986.1 15 1
STATE OF CALIFORNIA )
1 ) ss.
COUNTY OF )
S►'
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.
[SEAL]
RV PUB\FBAUM\708986.1
Signature of Notary
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
SF
EXHIBIT "A"
' LEGAL DESCRIPTION
Sp
RVPUB\FBAUM\708986.1 A -I
EXHIBIT A - Legal Description................................................................................................. A-1
EXHIBIT B — Rental Control Ordinance.....................................................................................B-1
RVPUB\FBAUM\708986.1
S,'
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
Section6.
Other Covenants.........................................................................................
9
Section7.
Indemnification..........................................................................................
9
Section8.
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
Section15.
Enforcement.............................................................................................
12
Section 16.
Recording and Filing................................................................................
13
Section17.
Payment of Fees.......................................................................................
13
Section 18.
Governing Law........................................................................................
13
Section19.
Amendments............................................................................................
13
Section20.
Notice.......................................................................................................
13
Section 21.
Severability..............................................................................................
14
'
Section 22.
Multiple Counterparts..............................................................................
14
Section23.
Subordination...........................................................................................
14
EXHIBIT A - Legal Description................................................................................................. A-1
EXHIBIT B — Rental Control Ordinance.....................................................................................B-1
RVPUB\FBAUM\708986.1
S,'
n
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
S? RVPUB\FBAUM\709452.1 EXHIBIT C
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 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
RVPUBTBAUM\709452.1 1 S.0
I
WHEREAS, Wolf & Company, hic., 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
cant' out the transactions on its part contemplated hereby; and it has duly authorized the
execution, delivery and performance of this Administration Agreement.
S•' RVPUB\FBAUM\709452.1 2
(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
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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) hi 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
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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, 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 3.1, whereupon a partial fee for the
services not terminated will be agreed upon by the parties and memorialized in an amendment
hereto.
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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.
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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
By:
Title:
MILLENNIUM HOUSING CORPORATION,
a California nonprofit public benefit corporation
By: _
President
WOLF & COMPANY INC., as Oversight Agent
By:
Authorized Signatory
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