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HomeMy WebLinkAboutPD Hovley LP - Hovley Gardens - TransferSTAFF REPORT JOINT CONSIDERATION CITY OF PALM DESERT AND THE PALM DESERT HOUSING AUTHORITY MEETING DATE: June 13, 2019 PREPARED BY: Janet M. Moore, Director of Finance Ryan Stendell, Director of Community Development REQUEST: Authorize amendments that may be necessary to the agreements with PD Hovley LP, for the project known as Hovley Gardens, to accomplish for a transfer of ownership, refinance, rehabilitation and an extension of the affordability period. Recommendation By Minute Motion that the City Council and Housing Authority authorize the following: 1. Consent to the transfer of the property commonly known as Hovley Gardens, located at 74501 Avenue 42, Palm Desert, from PD Hovley LP to Palm Communities (formerly known as Palm Desert Development Company) or a new limited partnership; and 2. Authorize staff to proceed with the drafting of amendments to the existing agreements with PD Hovley LP and the Palm Desert Housing Authority, allowing for a transfer of ownership, refinance rehabilitation and extension of the affordability period; and 3. Authorize Palm Communities to submit an application to the Tax Credit Allocation Committee (TCAC) on or before July 1, 2019, for the rehabilitation of Hovley Gardens; and 4. Authorize the following related to the Authority Loan: A. The assumption of the Authority loan in the event of a transfer of property by the new owner; B. The subordination of the Authority's loan to a construction loan if tax credits are allocated to the project; C. The extension of the term of the loan for a period of 41 years (for a total of 55 years) from the close of any purchase; D. A suspension of payments to the Authority on the loan for the 12- 24 month construction timeframe, once established; and 5. Authorize the City Manager, Executive Director, Mayor, Chairman, and legal counsel to finalize the selected option and execute any documents necessary consistent with the actions contemplated herewith. June 13, 2019 — Staff Report Hovley Gardens: Property Transfer & Rehabilitation Page 2 of 4 Strategic Plan Obiective Land Use, Housing & Open Space Priority 2 — Facilitate development of high -quality housing for people of all income levels. Executive Summary Approval of staff's request would authorize Palm Communities, the owner and original developer ("Developer' formerly known as Palm Desert Development Company), of Hovley Gardens to re -syndicate the project with new tax credits and rehabilitate the property. In order to accomplish this, the Developer will need to amend existing agreements with the Palm Desert Housing Authority ("Authority" as successor in interest to the housing assets of the former redevelopment agency). In general, the amendments will include: 1. Modification/subordination of the loan from the Authority. 2. Approval of a transfer of ownership to another Limited Partnership owned and controlled by the original developer (Palm Communities). 3. Extension of the affordability and loan periods. 4. Suspension of the loan payments during the rehabilitation. Background Analvsis Hovley Gardens Apartments is a 100% affordable, 162-unit multi -family apartment complex located off 42nd Avenue constructed and occupied in 2003. The project provides apartments for households with incomes between 45% and 60% of the area median income. The current rents range from $388 to $871 per month and the vacancy rate is low. However, the property, at sixteen years of age, could benefit from some rehabilitation although remains in good condition. In 2001, the former redevelopment agency ("Agency") entered into several agreements with Palm Desert Development Company (now known as Palm Communities) to assist the Developer with building the project. The project was originally funded and developed by leveraging multiple funding sources including 9% tax credits and a low -interest loan from the Agency in the approximate amount of $7.65M. The Authority was assigned the loan during the redevelopment agency dissolution process. The project included an affordability covenant recorded against the property that restricted, among other things, the affordability of the units for at least 55 years, the incomes of the households that would continually occupy the property, and the occupancies. The project has been complimentary to the City's affordable housing goals, June 13, 2019 — Staff Report Hovley Gardens: Property Transfer & Rehabilitation Page 3 of 4 and the Developer has continued to take an active role in the project. The current owner is a partnership that includes the Developer and several other limited partners. The Developer desires to acquire the current limited partners' interest, apply for tax credits to fund a rehabilitation of the property, and create a new limited partnership to complete the rehabilitation. The renovations will include upgrades to current ADA standards, energy efficiencies, a refresh of the exterior and common areas (repainting, landscaping, new playground equipment, laundry rooms), and upgrades to the interiors of the units (flooring, cabinets, countertops, appliances, and fixtures). By agreeing to amend the Disposition and Development Agreement ("DDA"), the Promissory Note (the "Note"), and the Regulatory Agreement, as well as allowing the assumption of the Authority loan by the Developer (or a new limited partnership), the Authority will benefit from a new 55-year affordability period and a refreshed property in its portfolio. The loan would also be extended for a new 30-year term, with annual payments based on a similar formula to the current calculation with the exception of a possible suspension for the 18-24 month construction timeframe. The current agreements allow for a payment in lieu of property taxes (PILOT). In the event the DDA is amended, and the property is transferred, the PILOT would no longer be allowed under current law. The Authority will instead require the new owner to pay an annual compliance fee similar in magnitude to ensure continued affordability during the new affordability period. In order to accomplish this, the Developer is requesting several amendments to the existing agreements. Because there are multiple partners involved in this transaction, the Developer is not able to finalize the actual amendment documents until he finalizes the details with the existing partners. Attached are drafts of the proposed amendments. There are two options contemplated. However, they are the subject of a negotiation between the Developer and the existing partners and until the Council agrees to the transfer and loan amendments, they cannot be finalized. Once the negotiations are finalized with the current partners, the option selected will require the amendments to be finalized and executed. Staff would request that the City Council authorize the City Manager and legal counsel to take any necessary actions to accomplish the goals outlined herein. Therefore, staff requests approval of the actions herein in order to allow the Developer to meet the deadlines to submit a tax credit application by July 1, 2019. Staff will bring back the finalized versions of the agreements for the Council to receive and file at a future City Council meeting. June 13, 2019 — Staff Report Hovley Gardens: Property Transfer & Rehabilitation Page 4 of 4 Fiscal Analvsis Staff does not see a substantial long-term fiscal impact from these actions, with the exception of the actions related to the amended loan terms and payment structure. If, after the finalization of the amendments, there is a fiscal impact that is not already noted in this report, staff will provide that information to the City Council when the documents are presented in their final form. LEGAL REVIEW alk Robert W. Hargreaves City Attorney DEPT. REVIEW Ryan Stendell Director of Community Development FINANCIAL REVI Jane . Moore r''J Dire o of Finance CITY MANAGER L uh Aylaian City Manager ATTACHMENTS: 1) Draft/Sample Documents: A. Disposition & Development Agreement B. First Amendment to Regulatory Agreement & Option C. Assignment & Assumption of Loan D. First Amendment to Promissory Note RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City Clerk's Office City of Palm Desert 73-510 Fred Waring Drive Palm Desert, CA 92260-2578 FOR THE BENEFIT OF THE CITY OF PALM DESERT -NOFEE - 6103 OF THE GOVT. CODE THIRD AMENDMENT TO DISPOSITION AND DEVELOPMENT AGREEMENT THIS THIRD AMENDMENT TO DISPOSITION AND DEVELOPMENT AGREEMENT {this "Amendment"} is made and entered into on , 2019, by and between , a municipal entity and successor to the former Palm Desert Redevelopment Agency ("Agency"), and a California limited partnership ("Developer") with reference to the following facts: WHEREAS, Palm Desert Development Company and Palm Desert Redevelopment Agency entered into the Disposition and Development Agreement, dated as of June 14, 2001, recorded on , 2001, as Document No. 2001- in the Official Records of Riverside County, California, as amended by that certain Amendment to Disposition and Development Agreement dated as of May 13, 2004, recorded on August 30, 2004, as Document No. 2004- 0687473 in the Official Records of Riverside County and a Second Amendment to Disposition and Development Agreement dated as of May 26, 2005, re -recorded on September 26, 2005, as Document No. 2005-079321 in the Official Records of Riverside County (as so amended, the "DDA"). The DDA has been assigned by Palm Desert Development Company to PD Hovley Limited Partnership, a California limited partnership ("Hovley"), and has been assumed by Hovley; WHEREAS, as part of the transfer of the property subject to the DDA to Developer, Hovley has assigned the DDA to Developer and Developer has assumed the DDA; and WHEREAS, Agency and Developer desire to amend the DDA on the terms and conditions hereof. NOW, THEREFORE, in consideration of the foregoing, and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. The parties acknowledge that the Developer is now , a California limited partnership, with an address of 100 Pacifica, Suite 203, Irvine, CA 92618. 1190147i 1 2. "Palm Desert Development Company" has changed its name to "Palm Communities". 3. The transfer or pledge of any partnership interests in Developer shall not require the consent of Agency. The withdrawal of any partner of Developer shall not require the consent of Agency. 4. Hovley has assigned the Agency Loan to Developer, and Developer has assumed the obligations of Hovley under the Agency Loan. The Agency Loan is being modified pursuant to the First Amendment to Promissory Note Secured By Deed Of Trust, of even date herewith, between Agency and Developer. The terms of such modification, which include an extension of the Maturity Date and modifications to the definitions of positive net cash flow and Developer's fees, are incorporated herein by this reference and shall be deemed to be the same modifications to the DDA. 5. Agency hereby irrevocably waives any right under the DDA to receive any of the proceeds of the loan to Developer in the amount of $ pursuant to the [describe loan agreement] (the "Rehabilitation Loan"). 5. Agency hereby irrevocably waives any right under the DDA to receive any payments of Positive Cash Flow attributable to the years ending December 31, 2020 and 2021. 7. All references to the PILOT and the PILOT Payment are deleted. 8. Section 4.9.5 is deleted in its entirety and replaced with the following: "In addition to the Annual Payment, commencing on , 2019, Developer or Developer Affiliate shall pay a fee to the City in the initial amount of $ [current PILOT amount] per year (the "City Monitoring Fee") for the City to monitor compliance under the DDA. The City Monitoring Fee shall increase on January I of each year at the rate of two percent (2%) annually. Developer shall pay the City Monitoring Fee to the City annually, prior to payment of the Annual Payment to Agency. The obligation of Developer to pay the City Monitoring Fee shall be in effect every year during the term of the Agency Loan and shall terminate upon payment of the Agency Loan. In the event Developer transfers the Site, the obligation to pay the City Monitoring Fee runs with the land to the benefit of the City if the purchaser assumes the Agency Loan." 9. Agency hereby consents to the assignment of the DDA to Developer by Hovley and the assumption of the obligations of Hovley under the DDA by Developer. 10. Agency hereby consents to the Rehabilitation Loan and a lien on the Development granted by Developer in connection with the Rehabilitation Loan which will be senior to the lien securing the Agency Loan pursuant to a subordination agreement being executed by the Agency. 11. The Agency hereby consents to the rehabilitation of the Improvements by Developer contemplated by the Rehabilitation Loan. 12. The address for notices to the Limited Partner is changed to: itgow,i 2 13. Section 8.1 is modified to change the address for notices to Developer to the following: c/o Palm Communities 100 Pacifica, Suite 203, Irvine, CA 92618 with a copy to: [insert address for limited partner] [does city want to modify its address?] 14. Any option in favor of Agency to repurchase the Development under the DDA or the Regulatory Agreement (as defined in the DDA) hereby is terminated because the conditions to such option being exercisable no longer apply. 15. Except as otherwise modified herein, the terms and provisions of the DDA shall remain unchanged and are hereby ratified and confirmed. 16. This Amendment shall be governed by, and construed in accordance with, the laws of the State of California. 17. This Amendment may be executed in counterparts, each of which shall be deemed an original, but all of which, together, shall constitute one and the same instrument. A .pdf or facsimile signature shall constitute an original signature. [SIGNATURES ON FOLLOWING PAGE] i ieowo 3 IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first written above. [insert name of buyer] By: Palm Communities, a California corporation, Administrative General Partner Danavon L. Horn, President [insert signature block for agency] Approved as to form: AGENCY GENERAL COUNSEL, Richards Watson Gershon, a professional corporation A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of On , before me, . a Notary Public, personally appeared _ _ , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature i goia7,i 4 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City Clerk's Office City of Palm Desert 73-510 Fred Waring Drive Palm Desert, CA 92260-2578 FOR THE BENEFIT OF THE CITY OF PALM DESERT - NO FEE - 6103 OF THE GOVT. CODE FIRST AMENDMENT TO REGULATORY AGREEMENT AND OPTION THIS FIRST AMENDMENT TO REGULATORY AGREEMENT AND OPTION (this "Amendment") is made and entered into on , 2019, by and between . a municipal entity and successor to the former Palm Desert Redevelopment Agency ("Agency"), and , a California limited partnership ("Developer"), with reference to the following facts: WHEREAS, Palm Desert Development Company and Palm Desert Redevelopment Agency entered into a Regulatory Agreement, dated on October 5, 2001, recorded on October 25, 2001, as Document No. 2001-523500 in the Official Records of Riverside County, California (the "Regulatory Agreement"). The Regulatory Agreement has been assigned by Palm Desert Development Company to PD Hovley Limited Partnership, a California limited partnership ("Hovley"), and has been assumed by Hovley; WHEREAS, as part of the transfer of the property subject to the Regulatory Agreement to Developer, Hovley has assigned the Regulatory Agreement to Developer and Developer has assumed the Regulatory Agreement; and WHEREAS, Agency and Developer desire to amend the Regulatory Agreement on the terms and conditions hereof. NOW, THEREFORE, in consideration of the foregoing, and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. The Term is modified to end on , 2074, unless the Term ends earlier in accordance with the Regulatory Agreement. 2. Any option in favor of Agency to repurchase the Development under the Regulatory Agreement hereby is terminated because the conditions to such option being exercisable no longer apply. 1190143,1 1 3. Section 20 is modified to change the address for notices to Developer to the following: c/o Palm Communities 100 Pacifica, Suite 203, Irvine, CA 92618 with a copy to: [insert address for limited partner] [does city want to modify its address?] 4. Except as otherwise modified herein, the terms and provisions of the Regulatory Agreement shall remain unchanged and are hereby ratified and confirmed. 5. This Amendment shall be governed by, and construed in accordance with, the laws of the State of California. 6. This Amendment may be executed in counterparts, each of which shall be deemed an original, but all of which, together, shall constitute one and the same instrument. A .pdf or facsimile signature shall constitute an original signature. [SIGNATURES ON FOLLOWING PAGE] n9om,,i 2 IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first written above. [insert name of buyer] By: Palm Communities, a California corporation, Administrative General Partner M. Danavon L. Horn, President [insert signature block for agency] Approved as to form: AGENCY GENERAL COUNSEL, Richards Watson Gershon, a professional corporation A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of On , before me, , a Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that helshelthey executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature 1190143,1 3 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Frederick W. Gartside, Esq. c/o Elkins Kalt Weintraub Reuben Gartside LLP 10345 W. Olympic Boulevard Los Angeles, California 90064 ASSIGNMENT AND ASSUMPTION OF LOAN DOCUMENT'S This Assignment and Assumption of Loan Documents ("Agreement") is made on 2019, by and between PD Hovley Limited Partnership, a California limited partnership ("Assignor") and , a limited partnership ("Assignee"). A. The following documents are referred to herein as the "Loan Documents": I. Disposition and Development Agreement, dated as of June 14, 2001, between Palm Desert Development Company and Palm Desert Redevelopment Agency recorded on , 2001, as Document No. 2001- in the Official Records of Riverside County, California, as amended by that certain Amendment to Disposition and Development Agreement dated as of May 13, 2004, recorded on August 30, 2004, as Document No. 2004-0687473 in the Official Records of Riverside County and a Second Amendment to Disposition and Development Agreement dated as of May 25, 2005, re -recorded on September 26, 2005, as Document No. 2005-079321 in the Official Records of Riverside County (as so amended, the "DDA"). The DDA has been assigned by Palm Desert Development Company to Assignor, and has been assumed by Assignor. 2. Promissory Note Secured By Deed Of Trust, dated as of , 2001, executed by Palm Desert Development Company to the order of Palm Desert Redevelopment Agency in the original principal amount of $7,659,437.00 (the "Note"). The Note has been assigned by Palm Desert Development Company to Assignor and has been assumed by Assignor. 3. Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing executed by Assignor for the benefit of Palm Desert Redevelopment Agency Lender recorded as Document No. 2001-523499 in the Official Records of Riverside County, California, (the "Deed of Trust"). The Deed of Trust has been assigned by Palm Desert Development Company to Assignor and has been assumed by Assignor. 4. Regulatory Agreement, dated on October 5, 2001, between Palm Desert Development Company and Palm Desert Redevelopment Agency recorded on October 25, 2001, as Document No. 2001-523500 in the Official Records of Riverside County, California (the "Regulatory Agreement"). The Regulatory Agreement has been assigned by Palm Desert Development Company to Assignor and has been assumed by Assignor. 119D152r1 I 5. Environmental Indemnity Agreement, dated on October 5, 2001, between Palm Desert Development Company and Palm Desert Redevelopment Agency (the "Environmental Agreement"). The Environmental Agreement has been assigned by Palm Desert Development Company to Assignor and has been assumed by Assignor. b. Any and all other documents in any way pertaining to the loan evidenced by the Note or any of the foregoing documents. B. Assignor desires to assign its rights under the Loan Documents to Assignee, and Assignee desires to assume all of Assignor's rights and obligations under the Loan Documents on the terms and conditions hereof. In consideration of the foregoing, and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Assignee and Assignor hereby agree: I. Assignment and Delegation. Effective as of the date hereof, Assignor hereby grants, assigns and transfers to Assignee all of Assignor's right, title and interest in and to the Loan Documents, and transfers and delegates to Assignee all of Assignor's duties, liabilities and obligations under the Loan Documents of every kind and nature whatsoever, subject to all of the terms and provisions of the Loan Documents. 2. Accevtance and Assumntion. Effective as of the date hereof, Assignee hereby accepts the foregoing grant, assignment, transfer and delegation and assumes and agrees to fully and completely perform all of Assignor's duties, liabilities and obligations under the Loan Documents of every kind and nature whatsoever, subject to all of the terms and provisions of the Loan Documents. 3. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of California. 4. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which, together, shall constitute one and the same instrument. [SIGNATURES ON FOLLOWING PAGE] i t9OMA 2 IN WITNESS WHEREOF, Assignee and Assignor have caused this Assignment and Assumption of Loan Documents to be duly executed as of the date first written above. ASSIGNOR: PD HOVLEY LIMITED PARTNERSHIP By: Palm Communities, a California corporation, Administrative General Partner Danavon L. Horn, President [insert name of buyer] By: Palm Communities, a California corporation, Administrative General Partner M Danavon L. Horn, President A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of On , before me, , a Notary Public, personally appeared 'who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature ii9Di52vi 3 FIRST AMENDMENT TO PROMISSORY NOTE SECURED BY DEED OF TRUST THIS FIRST AMENDMENT TO PROMISSORY NOTE SECURED BY DEED OF TRUST (this "Amendment") is made and entered into on , 2019, by and between , a municipal entity and successor to the former Palm Desert Redevelopment Agency ("Lender"), and , a California limited partnership ("Borrower"), with reference to the following facts: WHEREAS, Palm Desert Development Company executed that certain Promissory Note Secured By Deed Of Trust, dated as of , 2001, to the order of Lender in the original principal amount of $7,659,437.00 (the "Note"). The Note has been assigned by Palm Desert Development Company to PD Hovley Limited Partnership, a California limited partnership ("Hovley"), and has been assumed by Hovley; WHEREAS, as part of the transfer of the property which secures repayment of the Note, Hovley has assigned the Note to Borrower and Borrower has assumed the Note; and WHEREAS, Lender and Borrower desire to amend the Note on the terms and conditions hereof. NOW, THEREFORE, in consideration of the foregoing, and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. The period over which the Loan shall be amortized shall be the period commencing on the date of the Note and ending on 2074. The Maturity Date is changed to , 2074. 2. Lender hereby irrevocably waives any right under the Note to receive any of the proceeds of the loan to Borrower from in the amount of $ pursuant to the [describe loan agreement]. 3. Lender hereby irrevocably waives any right under the Note to receive any payments of Positive Cash Flow attributable to the years ending December 31, 2020 and 2021. 4. The parties hereby agree that the outstanding principal balance of the Note as of ,2019,is$ 5. The first sentence of clause j) of the Note which reads "'Developer's fees' shall mean fees payable to the Borrower in the maximum amount of $1,200,000.00." is deleted and replaced with the following: "Developer's fees" shall mean fees payable by the Borrower to Palm Communities, a California corporation [confirm], or its successors or assigns, in the maximum amount of $ " 6. Clause (v) in the definition of Positive Cash Flow is deleted and replaced with the following: "(v) the amounts deposited into a replacement reserve account, in the sum not to exceed the amount required by the investor limited partner of borrower or any secured lender to Borrower," ii9oiarni 1 7. Except as otherwise modified herein, the terms and pro of the Note shall remain unchanged and are hereby ratified and confirmed. 8. This Amendment shall be governed by, and in accordL.r,,;, �i.ai, the laws of the State of California. 9. This Ai —el 0 LI may be executed in counterparts, each of which shall be deemed an original, but all of which, together, shall constitute one and the same t. A .pdf or facsimile signature shall constitute an original signature. (Signatures on following page.] i i9omovi 2 IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first written above. [insert name of buyer] By: Palm Communities, a California corporation, Administrative General Partner Dan*6n L. Horn, President [insert signature block of lender] i igmovi 3