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HomeMy WebLinkAbout2012-07-24 OB Agenda Item No. 3OVERSIGHT BOARD TO THE SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF LAKE ELSINORE TO: OVERSIGHT BOARD MEMBERS FROM: BARBARA LEIBOLD, SUCCESSOR AGENCY COUNSEL DATE: JULY 24, 2012 SUBJECT: CHANGES TO DISSOLUTION ACT (AB 1484) Background On June 27, 2012, AB 1484 was signed by Governor Brown and took immediate effect. AB 1484 makes technical and substantive amendments to ABx1 26, the bill enacted in late June 2011 that directed the dissolution and unwinding of the affairs of California's redevelopment agencies. AB 1484 adds many new or modified actions and deadlines, with major compliance consequences, that must be implemented in the very near future and throughout 2012. Discussion The following summary highlights the provisions of AB 1484 and is intended to assist Successor Agency and Oversight Board Members in understanding the dissolution process, as amended. It does not include detailed analysis of the statutory provisions and should not be relied upon without careful review of the statutes. Affordable Housing AB 1484 adds Section 34176(a)(2), which requires that by August 1, 2012, the Successor Housing Agency submit to the Department of Finance ( "DOF ") a list of all housing assets that contains an explanation of how the asset meets the criteria set forth in Section 34176(e). DOF has 30 days to object to any item on the list. The Successor Housing Agency may request a meet and confer with DOF within 5 business days of receiving any objection from DOF. AB 1484 provides more specific guidance as to what constitutes a housing asset, including real property, personal property, encumbered funds, loans or grants receivable, rents and operational income, loan repayments, mixed use assets, and housing bond proceeds. Amounts previously borrowed from the Low and Moderate Income Housing Fund ( "LMIHF "), such as SERAF repayments, can only be repaid AGENDA ITEM 3 Page 1 AB 1484 July 24, 2012 pursuant to a schedule approved by the Oversight Board, cannot start before 2013- 2014, and are subject to a maximum annual repayment determined by a formula. New Low and Moderate Income Housing Asset Fund The housing successor must set up a new fund called the Low and Moderate Income Housing Asset Fund ( "Housing Asset Fund ") in its accounting records. The Housing Asset Fund may be set up by project area. All receipts of income or repayment of debt to the LMIHF shall be placed in the Housing Asset Fund, and proceeds of the fund shall be used in accordance with the housing provisions of the Community Development Law. AB 1484 does not clarify whether there are any continuing obligations with respect to redevelopment housing production and replacement housing obligations. Successor Agency Status AB 1484 clarifies that the Successor Agency is a separate legal entity that succeeds to the organizational status of the former redevelopment agency but lacks authority to perform redevelopment activities except to complete enforceable obligations. Section 34173(h) permits a city to loan funds to a successor agency for administrative costs, enforceable obligations or project- related expenses, but the receipt and use of the funds shall be reflected on the ROPS and are subject " -to approval of the oversight board. An enforceable obligation shall be deemed created for repayment of the loans. AB 1484 requires an annual audit of the Successor Agency, but does not clarify whether the cost is required to be an administrative or project cost. Oversight Board; Oversight Board Actions AB 1484 permits an oversight board to direct a successor agency to provide additional legal or financial advice independent from successor agency staff and authorizes the oversight board to contract with the county or other public or private agency for administrative support. Oversight board members have the same immunities applicable to public entities and public employees when acting as an oversight board member. Section 34179(e) states that all actions taken by an oversight board must be adopted by resolution. The Successor Agency must submit actions for approval to the Oversight Board simultaneously with submission of such documents to DOF, county administrative officer ( "CAO "), and county auditor controller ( "CAC ") (Section 341800)). AB 1484 extends the time for review by DOF from 3 to 5 business days. Actions of the Oversight Board are deemed effective if DOF does not request a review within 5 business days. If DOF requests a review, it has 40 calendar days to approve or AGENDA ITEM 3 Page 2 AB 1484 July 24, 2012 disapprove an action (or up to 60 days for disposition of real property and housing assets). Submission of ROPS for January-June 2013 The January 1 — June 30, 2013 ROPS must be submitted to DOF and the State Controller's office, after approval by the oversight board, no later than September 1, 2012. If the ROPS is not submitted in the required timeframe, the host city is subject to a $10,000 fine for every day the ROPS is late and the administrative cost allowance for the successor agency is reduced by 25 %. Recognized Obligation Payment Schedules (ROPS) Successor Agency staff must now submit an electronic copy of a ROPS to the CAO, the CAC and the DOF at the same time it is submitted to the Oversight Board (Section 34177(1)(2)(13)). AB 1484 amends the definition of "Enforceable Obligation" to include predisposition asset carrying costs incurred by the Successor Agency and contracts for the administration or operation of the Successor Agency. Beginning with the ROPS for the period ending December 31, 2013, an Oversight Board approved ROPS is required to be submitted to the CAC and DOF by October 4 for the January distribution of RPTTF and by March 3 for the June 1 distribution. Financial and other penalties apply to the sponsoring city if the deadlines are not met. DOF will have 5 business days to request review of an item on the ROPS, and 45 days to determine whether an item constitutes an enforceable obligation, its funding source and the amount that constitutes the enforceable obligation. DOF now has legislative authority to eliminate or modify an item on a ROPS prior to DOF approval. A Successor Agency may request additional review by DOF on a disputed item, or request a meet and confer, but such a request must be made within 5 business days of the receipt of the DOF determination (Section 34177(m)). DOF must notify the Successor Agency and CAC of its review at least 15 days prior to the distribution of RPTTF (e.g. by December 18 for the January distribution and May 17 for the June distribution). Unpaid Pass - Through Payments FY 2011 -12 Pursuant to Section 34183.5, if a taxing entity did not receive its full pass - through payment for the 2011 -12 fiscal year, amounts in the amount of such payments will be deducted by the county from future allocations of property taxes to the Successor AGENDA ITEM 3 Page 3 AB 1484 July 24, 2012 Agency unless the Successor Agency opts to make such payments from reserve funds. As a result, unpaid pass - throughs become enforceable obligations to be paid ahead of other enforceable obligations unless the pass- through payments were subordinated to bond debt payments by the former redevelopment agency prior to dissolution. If the CAC made the unpaid pass- through payments on the Successor Agency's behalf, the CAC can deduct one half of the amount paid by the CAC from future distributions of RPTTF until CAC is repaid. Residual Property Tax Distributions from FY 2011 -12 AB 1484 also includes a mechanism for recovering residual property taxes that were allocated to the Successor Agency for the January 1, 2012 — June 30, 2012 period, but should have been distributed to the other taxing entities. In each county, the county auditor - controller is required to determine the amount, if any, that each successor agency owes to the taxing entities, and send a demand for payment by July 9, 2012. Successor agencies must make that payment by July 12, 2012. If the successor agency does not make the required payment, it is subject to a penalty of 10% of the amount owed, plus 1.5% for each additional month that the payment is late. The host city will not receive its scheduled July 18, 2012 distribution of sales taxes, or any subsequent distribution, until the required payment is made. Additional Review by Accountants AB 1484 adds Section 34179.5, which requires that a licensed accountant conduct a review to determine the unobligated cash balances held by the successor agencies including redevelopment agency funds and LMIHF funds. The review must be reviewed by both the Oversight Board and Department of Finance (DOF). Once the review is completed those unobligated funds must be distributed to the other taxing entities. Pursuant to Section 34179.6, the review of the LMIHF must be completed by October 1, 2012. The review for other funds must be completed by December 15, 2012. No source of payment of the accountant's fees is specified in AB 1484. The selection of the accountant must be approved by CAC and the accountant must be licensed and have expertise in local government. An audit provided by the CAC that provides the information required by the statute may be used with the permission of the Oversight Board. Standards for the review are set forth in the statute. The results of the review are submitted to the Oversight Board for review and approval, with a concurrent submittal to the CAO, CAO and DOF. Upon receipt of the review, the Oversight Board must convene a public comment session to take place at least 5 business days before the Oversight Board votes on approval of the review. The AGENDA ITEM 3 Page 4 AB 1484 July 24, 2012 Oversight Board is to review, approve and transmit the review by October 15, 2012 for the LMIHF and January 15, 2013 for all other funds. The Oversight Board can adjust amounts in the review and authorize the Successor Agency to retain restricted assets. DOF also may adjust amounts in the review. DOF is to complete its review by November 9, 2012 for the LMIHF and April 1, 2013 for the remaining funds. DOF must provide a basis for any changes, and the Successor Agency can request a meet and confer with DOF to address any issues within 5 business days of DOF's determination, but in no event later than November 16, 2012 for the LMIHF portion of the review. DOF is required to meet and confer and make a decision within 30 days of the request to meet and confer. Successor Agencies must transmit funds determined due by DOF within 5 business days of the notice from DOF. If the unobligated funds are not transferred in the required timeframes, DOF and the county auditor can offset sales and property tax distributions to the successor agency's host city or county to recover those outstanding funds. These "offset" remedies potentially violate Proposition 1A, which limits the Legislature's authority to modify the manner in which property taxes are allocated or change the method of distribution of sales taxes. Finding of Completion Upon payment of the following amounts, the DOF will issue a finding of completion to a successor agency: • The amount determined as a result of the audit of the LMIHF; • The amount determined as a result of the audit of all the other funds; and • The amount, if any, owing to the taxing entities from the December 2011 property tax payment or for the period ended June 30, 2012. Once the Successor Agency pays the full amount of unobligated funds, the former redevelopment agency may receive a "finding of completion" which entitles the Successor Agency to certain "safe harbor" provisions, including: • The ability to retain real property owned by the former redevelopment agency, after approval by DOF of a long range property management plan. • The right to repayment of loans made by the city to its former redevelopment agency. However, no repayments can commence until the 2013 -14 fiscal year and the amounts that can be repaid in each year are significantly limited. AGENDA ITEM 3 Page 5 AB 1484 July 24, 2012 Further, 20% of any repayment amount has to be set aside for affordable housing development. • Unencumbered bond proceeds from pre -2011 bonds can be used for the purposes for which they were sold. The fate of bond proceeds from issuances after January 1, 2011 is still unknown. Changes to County Auditor Controller Responsibilities The initial ROPS is no longer subject to certification by the CAC based upon the agreed -upon procedures audit. The agreed -upon procedures deadline is now October 1, 2012. CAC may object to items on the ROPS, so long as it provides notice at least 60 days prior to distribution of RPTTF. CAC must provide estimates of RPTTF distributions on October 1 and April 1 of each year. Distributions are to be made on June 1 and January 2 of each year. If there is a confirmed insufficiency of funds to pay approved debt service, contract pass- through payment obligations entered into prior to 1994 that were expressly subordinated to bonded indebtedness are also subordinated for purposes of distribution of RPTTF by the CAC. Once a Successor Agency pays off all enforceable obligations, it must dispose of all remaining assets and terminate its existence within one year of the final debt payment. The SCO is directed to review the activities of each successor agency and determine if it transferred any asset after February 1, 2012 to a sponsoring community other than pursuant to an enforceable obligation on an approved and valid ROPS. Refunding Bonds; Bond Proceeds AB 1484 adds the ability to refund bonds to lower long -term financing costs, or pursuant to enforceable obligations under certain circumstances. Oversight Board and DOF approval are required. AB 1484 also authorizes a Successor Agency to spend, after receipt of a finding of completion, excess bond proceeds in a manner consistent with the bond issuance documents for bonds issued prior to 2011. Long -Range Property Management Plan AB 1484 appears to suspend the requirement of ABx1 26 to expeditiously dispose of the assets of the Successor Agency. Instead, within 6 months of receipt of a finding of completion, AB 1484 requires the successor agency to develop a long -range property AGENDA ITEM 3 Page 6 AB 1484 July 24, 2012 management plan that governs the disposition and use of the former redevelopment agency property for approval by the Oversight Board and DOF. Permitted uses under a property management plan include retention of property for governmental use, retention of property for future development, sale of the property and use of the property to fulfill an enforceable obligation. Upon approval of the property management program, the properties are to be placed in a Community Redevelopment Property Trust Fund and, in some cases, transferred to the sponsoring community for the purpose designated in the management plan. Sponsoring Community Loans Upon application by the successor agency and approval by the Oversight Board, and ultimate approval by DOF, loan agreements between the sponsoring community and dissolved redevelopment agency that were previously deemed not to be enforceable obligations as of February 1, 2012 can once again be deemed to be enforceable obligations if the oversight board finds the loan was for legitimate redevelopment purposes (Section 34191.4(b)). For any such reinstated loan, interest is retroactively and prospectively recalculated at Local Agency Investment Fund rates, loan repayments cannot begin until FY 2013 -2014 subject to a reasonable term of years and maximum payment limitations, payments must first be applied to retire any amounts due to the LMIHF, and 20% of any remaining payments must be placed in the Housing Asset Fund. Other Provisions AB 1484 authorizes the transfer of land use plans and land use functions of the dissolved redevelopment agency to the sponsoring community at the request of the sponsoring community. The DOF and SCO must be provided with notice for any validation action with respect to an action of a dissolved redevelopment agency or successor agency with respect to an enforceable obligation or title to an asset owned by either of the foregoing. AB 1484 states that any action taken by a former redevelopment agency after June 27, 2011 does not create an enforceable obligation, even if done after the former agency had opted -in to the voluntary alternative redevelopment program under ABx1 27. It is questionable as to whether or not such provisions of AB 1484 are constitutional. AGENDA ITEM 3 Page 7 AB 1484 July 24, 2012 AB 1484 Milestone Actions Attached as Exhibit A is a Schedule of AB 1484 Milestone Actions prepared by Goldfarb and Lipman LLP. The Schedule includes important dates through 2013 under AB 1484. Recommendation That the Oversight Board receive and file the Report. AGENDA ITEM 3 Page 8 EXHIBIT A AB 1484 MILESTONE ACTIONS Following is a checklist of upcoming key milestone actions under the Dissolution Act as amended by AB 1484. Date Action July 9, 2012 Successor Agency to receive from the CAC determination of amount owed, if any, for distributions pursuant to the Section 34183(a)(4) for the initial ROPS period (Section 34183.5(b)(2)(A)). July 12, 2012 Successor Agency to pay to the CAC any amounts identified as owed to the taxing entities (Section 34183.5(b)(2)(A)). July 16, 2012 The CAC distributes to the taxing entities amounts received from the Successor Agency on July 12, 2012 (Section 34183.5(b)(2)(A)). July 18, 2012 The DOF can order offset of sales and use tax due to Sponsoring Community if the Successor Agency has failed to make payments due on July 12, 2012 (Section 34183.5(b)(2)(A)). August 1, 2012 Housing Successor must submit to DOF list of all housing assets transferred to it by the Dissolved RDA, with explanation of how assets meet criteria set forth in law. DOF to prescribe format for list (Section 34176(a)(2)). August 10, 2012 Housing Successor provides notice to the Successor Agency of any designations of use or commitments of funds specified in 34176(g)(1)(A) that the Housing Successor empowers the Successor Agency to retain Section 34179.6(c)). September 1, 2012 The Successor Agency submits the ROPS for January 1, 2013 through June 30, 2013 to the DOF after Oversight Board approval (Section 34177(m)). Note, the Successor Agency will be assessed a $10,000 per day penalty for failure to timely submit the ROPS (Section 34177(m)(2)). Date Action September 11, 2012 If the Successor Agency has not submitted a ROPS, the maximum administrative cost allowance for the fiscal year covered by the ROPS will be reduced 25% (Section 34177(m)). October 1, 2012 The Successor Agency to provide to the Oversight Board, the CAC, the DOF, and the SCO results of the 34179.5 review for the LMIHF balances of a Dissolved RDA conducted by a licensed accountant. Accountant must be approved by the CAC (Section 34179.6(a)). October 1, 2012 The CAC to complete agreed -upon procedures audit of each Dissolved RDA (Section 34182(a)(1)). October 1, 2012 The CAC to provide notice to the Successor Agency of any objections to items included on the Third ROPS (Section 34182.5). October 1, 2012 The CAC to prepare and provide estimates to the DOF and fund recipients of amounts to be allocated and distributed from RPTTF on January 2, 20) 3 for Third ROPS period (Section 34182(c)(3)). October 1, 2012 The CAC to report to the SCO and the DOF specified information about property tax distributions (Section 34182(d)). October 5, 2012 The CAC to provide to the SCO and the DOF results of agreed - upon procedures audit of each Dissolved RDA (Section 34182(b)). October 15, 2012 The Oversight Board to review, approve and transmit the results of the 34179.5 Review for the LMIHF account balances of the Dissolved RDA and notify the CAC and the DOF (Section 34179.6(c)). Note, that the Oversight Board must hold a public session at least five business days in advance of the meeting to consider approval of the Review (Section 34) 79.6(b)). No later than The DOF completes review of 34179.5 Review of LMIHF balances November 9, 2012 and reports findings, determinations, and decisions to overtum Oversight Board decision to allow retention of Successor Agency assets (Section 34179.6(d)). Date Action Within 5 days of receipt of Successor Agency /Sponsoring Community deadline to request meet initial determination from and confer with DOF over any dispute regarding amount of the the DOF LMIHF to be distributed to Taxing Entities under the 34179.5 Review process (Section 34179.6(e)). The DOF must meet and confer with the Successor Agency and confirm or modify findings within 30 days of request (Section 34179.6(c)). Within 5 days of receipt of The Successor Agency to transfer to the CAC the LMIHF balances final determination from determined to be available pursuant to Section 34179.5 Review of the DOF the LMIHF. Sponsoring Community sales and use tax may be offset if funds are not transferred (Section 34179.6(f)). December 1, 2012 The Successor Agency reports to the CAC if total amount of available revenues (including RPTTF, other revenues, proceeds from sale of assets) will be insufficient to fund enforceable obligations (Section 34183(6)). December 1, 2012 The CAC provides the DOF report specifying amount remitted by the Successor Agency pursuant to the 34179.5 Review of LMIHF balances (Section 34179.6(g)). December 15, 2012 The Successor Agency submits to the Oversight Board, the CAC, the DOF, and the SCO results of review required under 34179.5 with respect to all other fund and account balances of a Dissolved RDA (Section 34179.6(a)). January 2, 2013 The CAC to make distributions from the RPTTF for the Third ROPS period (January-June 2012) (Section 34183(a)(2)). January 12, 2013 The CAC to provide a report to the DOF regarding most recent distributions from the RPTTF (Section 34283(e)). January 15, 2013 The Oversight Board to review, approve and transmit the results of the 34179.5 Review for all other fund and account balances of a Dissolved RDA and notify the CAC and the DOF of determination (Section 34179.6(c)). Note, that the Oversight Board must hold a public session at least five business days in advance of the meeting to consider approval of the Review (Section 34179.6(b). March 3, 2013 Successor Agency submits ROPS for July 1, 2013 through December 31, 2013 to DOF after Oversight Board approval (Section 34177(m)) Date Action No later than April 1, The DOF completes reviews of 34179.5 Review of other fund 2013 balances and reports findings, determinations and decisions to overturn Oversight Board decision to allow retention of Successor Agency assets. (Section 34179.6(a)). April 1, 2013 The CAC provides estimates to the DOF and all fund recipients of amounts to be allocated and distributed from the RPTTF on June 1 for the July 1, 2013 through December 31, 2013 ROPS period (Section 34182(c)(3)). Within 5 days of receipt of Successor Agency /Sponsoring Community deadline to request meet initial determination from and confer with the DOF over any dispute regarding amount of the DOF other fund balances to be distributed to the taxing entities under 34179.5 Review process. The DOF must meet and confer with Successor Agency and confirm or modify findings within 30 days of request (Section 34179.6(e)). Within 5 days of receipt of The Successor Agency to transfer to the CAC cash and other assets final determination from determined to be available pursuant to Section 34179.5 Review of the DOF other funds (if meet and confer process is complete). Sponsoring Community sales and use tax may be offset for unfunded amounts (Section 34179.6(f)). April 20, 2013 The CAC provides the DOF a report specifying the amount remitted by Successor Agencies pursuant to the Section 34179.5 Review of other balances (Section 341796(8)). May 1, 2013 The Successor Agency reports to the CAC if total amount of available revenues (including RPTTF, other revenues, proceeds from sale of assets) will be insufficient to fund enforceable obligations (Section 34183(b)). June 1, 2013 The CAC to make distributions from the RPTTF for the ROPS period July- December 2013 (Section 34284(c)).