HomeMy WebLinkAboutCC RES 11-71RESOLUTION NO. 11-71
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
TUSTIN, CALIFORNIA, ELECTING TO SERVE AS THE
SUCCESSOR AGENCY TO THE TUSIN COMMUNITY
REDEVELOPMENT AGENCY; ACCEPTING
TRANSMITTAL OF AN INITIAL RECOGNIZED
OBLIGATION PAYMENT SCHEDULE; APPROVING AN
AGREEMENT TO TRANSFER TAX INCREMENT
BETWEEN THE AGENCY AND THE CITY; AND MAKING
CERTAIN FINDINGS IN CONNECTION THEREWITH
The City Council of the City of Tustin does hereby resolve as follows:
The City Council finds and determines as follows:
A. The Tustin Community Redevelopment Agency ("Agency") is a community
redevelopment agency organized and existing under the California Community
Redevelopment Law, Health and Safety Code Sections 33000, et seq. ("CRL") and has
been authorized to transact business and exercise the powers of a redevelopment
agency pursuant to action of the City Council ("City Council") of the City of Tustin
("City"); and
B. The City Council adopted the Redevelopment Plans for the Town Center
Redevelopment Project, the South Central Redevelopment Project and the MCAS
Tustin Redevelopment Project (collectively, and as amended from time to time, the
"Project Areas"), all in compliance with all requirements of the CRL; and
C. AB X1 26 and AB X1 27 are trailer bills to the 2011-12 budget bills and
were approved by both houses of the Legislature on June 15, 2011, signed by the
Governor on June 28, 2011, and chaptered on June 29, 2011 (together, "2011
Redevelopmen# Legislation"); and
D. Parts 1.8, 1.85 and 1.9 of Division 24 of the Health and Safety Code were
added to the CRL by the 2011 Redevelopment Legislation and such measures
purported to become effective immediately; and
E. Part 1.8 of the CRL ("Part 1.8") provides for the restriction of activities and
authority of the Agency in the interim period prior to dissolution to certain "enforceable
obligations" and to actions required for the general winding up of affairs, preservation of
assets, and certain other goals delineated in Part 1.8; and
F. Part 1.85 of the CRL ("Part 1.85") provides for the statewide dissolution of
all redevelopment agencies, including the Agency, as of October 1, 2011, and provides
that, thereafter, a successor agency will administer the enforceable obligations of the
Resolution 11-71
Page 1 of 5
Agency and otherwise wind up the Agency's affairs, all subject to the review and
approval by an oversight committee; and
G. Part 1.9 of the CRL ("Part 1.9") provides that a redevelopment agency
may continue in operation if a city or county that includes a redevelopment agency
adopts an ordinance agreeing to comply with and participate in the Voluntary Alternative
Redevelopment Program established in Part 1.9 ("Program"); and
H. The Agency is aware that the validity, passage, and applicability of the
2011 Redevelopment Legislation are the subject of judicial challenge(s), including the
action: California Redevelopment Association, et al v. Ana Matosantos, et al; and
I. The Supreme Court accepted original jurisdiction of the CRA Action on
August 11, 2011, notified the parties of the briefing schedule, and, importantly, issued a
stay order affecting Part 1.85 and Part 1.9, but the court did not stay Sections 34161 to
34167 of Part 1.8, then on August 17, 2011, the Supreme Court modified its stay order,
which released the stay on Sections 34167.5 to 34169.5 of Part 1.8 and on Section
34194(b)(2) of Part 1.9, making those laws now effective ("Supreme Court Stay"); and
J. Section 34169(h) of the CRL, which was added to the CRL by AB X1 26
and is set forth in Part 1.8 of the CRL, requires the Agency to prepare an Initial
Recognized Obligation Payment Schedule, no later than September 30, 2011, and
provide it to the successor agency, if a successor agency is established pursuant to
Part 1.$5 (commencing with Section 34170}; and
K. While Part 1.85 (that provides for the dissolution of redevelopment
agencies and the creation of successor agencies) and Part 1.9, except Section
34194(b)(2}, (that authorizes the City to opt into the Program) are both stayed by order
of the California Supreme Court, Part 1.8, specifically including Section 34169 of the
CRL, currently remains in full force and effect; and
L. The City desires to confirm and make its election to become the successor
agency in the event the Agency is dissolved; and
M. Of even date herewith and at the same regular meeting hereof, the
Agency has adopted an Initial Recognized Obligation Payment Schedule ("IROPS") and
has directed the Agency Executive Director to transmit the IROPS to the City, as
required by Section 34169(h) of the CRL; and
N. The City, as successor agency, desires to accept the transmittal of the
IROPS; and
O. Each city and county electing to participate in the Program, as a condition
of its redevelopment agency's continued existence and operation, is required to make
certain annual remittances (°'Program Remittances") to the county auditor-controller
Resolution 11-71
Page 2 of 5
("CAC") pursuant to Chapter 3 of Part 1.9, beginning with a larger upfront remittance for
FY 2011-12 ("First Remittance"), to be paid in two equal installments on January 15,
2012 and May 15, 2012; and
P. The City expects it will have sufficient moneys and revenues to fund an
amount equal to the City's payment of the First Remittance and further expects to have
sufficient moneys and revenues to fund the subsequent annual remittances as may be
required by Part 1.9 (collectively "Subsequent Remittances"); and
Q. The City has adopted Ordinance Nos. 1404 and 1405 pursuant to Part 1.9
to opt-in so that the Agency would continue in operation and perform its functions; and
R. The City and Agency desire to enter into an agreement pursuant to CRL
Section 34194.2 whereby the Agency shall make an initial transfer of a portion of its tax
increment to the City in an amount equal the First Remittance, and thereafter transfer
amounts of tax increment equal to any Subsequent Remittances which the City is
required to make to the CAC pursuant to the City's participation in the Program
("Agreement to Transfer Tax Increment"), all of which shall collectively be considered an
existing debt of the Agency and not new debt; and
S. The City, by the adoption of this Resolution, does not represent, disclaim,
or take any position whatsoever on the issue of the validity of AB X1 26 or AB X1 27,
but rather the City seeks to comply with the Constitution and laws of the Sta#e of
California, in order to presence the ability of the Agency to continue to operate and
thereby benefit the community; and
T. The dissolution of the Agency would be detrimental to the health, safety,
and economic well-being of the residents of the City and cause irreparable harm to the
community, because, among other reasons, the redevelopment activities and projects
made possible, implemented, and funded by the Agency are highly significant and of
enduring benefit to the community and the City, and are a critical component of its
future; and
U. The City has duly considered all other related matters and has determined
tha# the City's election to serve as successor agency to the Agency, acceptance of the
IROPS, and approval and execution of the Agreement to Transfer Tax Increment is in
the best interests of the Gity and Agency and the health, safety, and welfare of its
residents, and in accord with the public purposes and provisions of applicable state and
local laws and requirements.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF TUSTIN:
1. The foregoing recitals are incorporated into this Resolution by this reference,
and constitute a material part of this Resolution.
Resolution 11-71
Page 3 of 5
2. The City Council hereby elects to serve as the successor agency to the
Agency in the event the Agency is dissolved for any reason, including due to Part 1.85
of the CRL being upheld and determined to be valid and Part 1.9 of the CRL being
declared and determined to be invalid by final and binding decision of a competent court
with jurisdiction, including the California Supreme Court.
3. The City Council hereby accepts transmittal of the IROPS by the Agency
pursuant to Section 34169(h) of the CRL.
4. The City Council hereby approves that certain Agreement to Transfer Tax
Increment in substantially the form attached hereto as Attachment No.1 and
incorporated herein, with such changes mutually agreed upon by the City Manager, the
Agency Executive Director, the City Attorney and Special Counsel, respectively, as are
minor and in substantial conformance with the form of the Agreement to Transfer Tax
Increment submitted herewith. The Mayor and the City Clerk are hereby authorized to
execute and attest the Agreement to Transfer Tax Increment on behalf of the City. In
such regard, the Mayor is authorized to sign the final version of the Agreement to
Transfer Tax Increment after completion of any such non-substantive, minor revisions.
Copies of the final form of the Agreement to Transfer Tax Increment, when duly
executed and attested, shall be placed on file in the office of the City Clerk. Further, the
City Manager (or his duly authorized representative) is authorized to implement the
Agreement to Transfer Tax Increment and take all further actions and execute all
documents referenced. therein andlor necessary and appropriate to implement the
purposes of the Agreement to Transfer Tax Increment. The City Manager (or his duly
authorized representative) is hereby authorized to the extent necessary during the
implementation of the Agreement to Transfer Tax Increment to make technical or minor
changes, modifications, amendments and interpretations thereto after execution, as
necessary to properly implement and carry out the Agreement to Transfer Tax
Increment; provided any and all such changes shall not in any manner materially affect
the rights and obligations of the City thereunder.
5. The City Attorney is hereby authorized, to the greatest extent permitted by law,
to bring an action or appear in an action brought in the Superior Court pursuant to
Sections 33500 and 33501 of the CRL to determine the validity of the Agreement to
Transfer Tax Increment, or the validity of any bonds contemplated to be issued by the
Agency or other material contracts of the Agency, or any findings of the City Council
related thereto, upon the determination of the City Manager that such action is
reasonably necessary ar appropriate to facilitate the consummation of any Agency
transaction for which City Council approval has been given.
6. This Resolution shall in no way be construed as requiring the City (or the
Agency) to abide by the 2011 Redevelopment Legislation in the event either, or both,
bills are found unconstitutional or otherwise legally invalid in whole or in part, nor shall
this Resolution effect or give rise to any waiver of rights or remedies the City (andlor the
Agency) may have, whether in law or in equity, to challenge 2011 Redevelopment
Legislation. This Resolution shall not be construed as the City's (andlor the Agency's)
Resolution 11-71
Page 4 of 5
willing acceptance of, or concurrence with the 2011 Redevelopment Legislation, either
AB X1 26 or AB X1 27; nor does this Resolution evidence any assertion or belief
whatsoever on the part of the City (and/or Agency) the 2011 Redevelopment Legislation
is constitutional or lawful.
7. This Resolution shall be effective immediately upon adoption.
$. The City Clerk shall certify to the adoption of this Resolution.
PASSED AND ADOPTED by the City Council of the City of Tustin, at a regular
meeting on the 20t" day of September, 2011.
~~~ y-- ~
ATTEST:
PAMELA STOKER,
City Clerk
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) SS
CITY OF TUSTIN )
~~_~__~ERRY AMAIVT'E,
Mayor
f
I, Pamela Stoker, City Clerk and ex-officio Clerk of the City Council of the City of Tustin,
California, do hereby certify that the whole number of the members of the City Council
of the City of Tustin is five; that the above and foregoing Resolution No. 11-71 was duly
passed and adapted at a regular meeting of the Tustin City Council, held an the 20t" day
of September, 2011, by the following vote:
COUNCILMEMBER AYES:
COUNCILMEMBER NOES:
COUNCILMEMBER ABSTAINED
COUNCILMEMBER ABSENT:
PAMELA STOKER,
City Clerk
Amante, Nielsen, Gavello, Gomez, Murray (5)
None (0)
None (0)
None (G
Resolution 11-71
Page 5 of 5
AGREEMENT TO TRANSFER TAX INCREMENT
This AGREEMENT TO TRANSFER TAX INCREMENT ("Agreement") is entered
into as of September , 2011 ("Date of Agreement"), by and between the CITY OF
TUSTIN, a Califomia municipal corporation ("City'), and the TUSTIN COMMUNITY
REDEVELOPMENT AGENCY, a public body, corporate and politic ("Agency").
RECITALS
A. The Agency is a community redevelopment agency organized and existing
under the California Community Redevelopment Law, Health and Safety Code Sections
33000, et seq. ("CRL") and has been authorized to transact business and exercise the
powers of a redevelopment agency pursuant to action of the City Council ("City
Council") of the City.
B. The City Council adopted the Redevelopment Plans for the Town Center
Redevelopment Project, the South Central Redevelopment Project and the MCAS
Tustin Redevelopment Project (collectively, and as amended from time to time, the
"Project Areas").
C. The Agency receives and has available to it tax increment revenues from
the Project Areas in accordance with and pursuant to the Redevelopment Plans, CRL
Section 33670(b) and Article XVI Section 16 of the Califomia Constitution.
D. Assembly Bills X1 26 and X1 27, which are trailer bills to the 2011-12
budget bills, were approved by both houses of the Legislature on June 15, 2011, signed
by the Governor on June 28, 2011, and chaptered on June 29, 2011 (together, "2011
Redevelopment Legislation").
E. Parts 1.8, 1.85 and 1.9 of Division 24 of the Health and Safety Code were
added to the CRL by the 2011 Redevelopment Legislation and such measures
purported to become effective immediately.
F. Part 1.8 of the CRL ("Part 1.8") provides for the restriction of activities and
authority of the Agency in the interim period prior to dissolution to certain "enforceable
obligations" and to actions required for the general winding up of affairs, preservation of
assets, and certain other goals delineated in Part 1.8.
G. Part 1.85 of the CRL ("Part 1.85") provides for the statewide dissolution of
all redevelopment agencies, including the Agency, as of October 1, 2011, and provides
that, thereafter, a successor agency will administer the enforceable obligations of the
Agency and otherwise wind up the Agency's affairs, all subject to the review and
approval by an oversight committee.
H. Part 1.9 of the CRL ("Part 1.9") provides that a redevelopment agency
may continue in operation if a city or county that includes a redevelopment agency
DOCSOC/ 151330 I v2/200350-0000
adopts an ordinance agreeing to comply with and participate in the Voluntary Altemative
Redevelopment Program established in Part 1.9 ("Program").
I. The Agency is aware that the validity, passage, and applicability of the
2011 Redevelopment Legislation are the subject of judicial challenge(s), including the
action: California Redevelopment Association, et al v. Ana Matosantos, et al.
J. The City adopted Urgency Ordinance No. 1404 on July 19, 2011 and
Ordinance No. 1404 on August 2, 2011 pursuant to Health and Safety Code Section
34193 to elect to implement participation by the City and Agency in the Alternative
Voluntary Redevelopment Program pursuant to Part 1.9 of the California Community
Redevelopment Act
K. The Supreme Court accepted original jurisdiction of the CRA Action on
August 11, 2011, notified the parties of the briefing schedule, and, importantly, issued a
stay order affecting Part 1.85 and Part 1.9, but the court did not stay Sections 34161 to
34167 of Part 1.8, then on August 17, 2011, the Supreme Court modified its stay order,
which released the stay on Sections 34167.5 to 34169.5 of Part 1.8 and on Section
34194(b)(2) of Part 1.9, making those laws now effective ("Supreme Court Staff'). The
City and Agency recognize that this Agreement is subject to the Supreme Court Stay.
L. Each city and county electing to participate in the Program, as a condition
of its redevelopment agency's continued existence and operation, is required to make
certain annual remittances ("Program Remittances") to the county auditor-controller
("CAC") pursuant to Chapter 3 of Part 1.9, beginning with a larger upfront remittance for
FY 2011-12 ("First Remittance"), to be paid in two equal installments on January 15,
2012 and May 15, 2012, and additional annual remittance payments subsequently.
M. The City is expected to have sufficient funds and revenues exclusively
from tax increment transfers (the annual portions of its tax increment equal to annual
Remittance Payments to fund an amount equal to the City's payment of the First
Remittance and expects to have tax Increment transfers and, or other funds that
become available sufficient to fund amounts equal to the subsequent fiscal years'
remittances required by Part 1.9 ("Subsequent Remittances"). The City did not intend
by enactment of Ordinance No. 1404 or 1405 to pledge any of its general fund revenues
or other assets to make the annual Remittance Payments, it being understood that any
remittance payments will be funded solely from agency tax increment transfers and/or
other assets transferred to the City in accordance with AB x 1 27.
N. The City and Agency desire to enter into this Agreement pursuant to CRL
Section 34194.2 whereby the Agency shall transfer tax increment to the City in an
amount equal to the First Remittance, and thereafter shall transfer amounts of tax
increment equal to each and all subsequent fiscal years' remittances that the City is
required to make to the CAC as a condition of the City's participation in the Program.
The First Remittance and any and all Subsequent Remittances shall be not be
considered "new debt" of the Agency.
2
DOCSOC/ 151330 I v2/200350-0000
AGREEMENT
NOW, THEREFORE, for and in consideration of the mutual promises, covenants,
and conditions herein contained, the parties hereto agree as follows:
Section 1. The Agency shall be liable to City for the payment of the Program
Remittances in connection with the City's participation in the Program. The Agency
agrees that no later than fifteen (15) days prior to the date upon which the City shall be
statutorily required to make any full or partial payment of a Program Remittance in any
fiscal year, the Agency shall transfer funds to the City in an amount equal to such
payment; each such payment by the Agency shall be referred to herein as a "Required
Agency Payment" and, as such payments are combined, "Required Agency Payments."
Interest shall accrue on any unpaid balance of the Required Agency Payments at an
annual interest rate equal to the maximum rate permitted by Section 53531 of the
Government Code. Interest on amounts paid as Required Agency Payments shall be
deemed to begin accruing on the date upon which the City makes any required Program
Remittance to the CAC.
Section 2. The Agency hereby pledges Tax Increment (defined below) to repayment
of its indebtedness to the City hereunder; provided that such pledge is junior and
subordinate to all outstanding bonds of the Agency, any refunding bonds issued by or
through the Agency, and any additional bonds issued hereafter by or through the
Agency. The City and Agency agree that such obligation by Agency to City may be
further subordinated by agreement of the City and the Agency.
(a) As used in this Section 2, "Tax Increment" means all taxes annually
allocated to the Agency with respect to the Project Areas in each year following the
Date of Agreement, pursuant to Article 6 of Chapter 6 (commencing with Section 33670)
of the CRL and Section 16 of Article XVI of the Constitution of the State of Califomia
and as provided in the Redevelopment Plans for the Project Areas, including all
payments, subventions and reimbursements (if any) to the Agency specifically
attributable to ad valorem taxes lost by reason of tax exemptions and tax rate
limitations; but excluding (i) all amounts of such taxes required to be deposited into the
Low and Moderate Income Housing Fund of the Agency in any Fiscal Year pursuant to
Sections 33334.2 or 33334.6 of the CRL, (ii) all amounts of such taxes required to be
paid to taxing entities under Sections 33607.5 and 33607.7 of the CRL to the extent
such required payments create a prior lien on such taxes, (iii) amounts, if any, payable
by the State of California to the Agency under and pursuant to the provisions of Chapter
1.5 of Part 1 of Division 4 of Title 2 (commencing with Section 16110) of the
Government Code of the State of California, (iv) amounts retained by the County of
Orange as costs of collection pursuant to Chapter 466, Statutes of 1990, and (v) such
taxes, to the extent subject to a prior express pledge by the Agency.
Section 3. The obligations of the Agency under this Agreement shall constitute an
indebtedness of the Agency within the meaning of Section 33670, et seq. of the CRL.
DOCSOC/ 15 13301 v2/200350-0000
Section 4. The City agrees to spend those funds received from the Agency under this
Agreement `Yor the purpose of financing activities within the redevelopment area that
are related to accomplishing the redevelopment agency project goals" pursuant to CRL
Section 34194.2 (or as otherwise determined by the courts or subsequent law) and in
accordance with the laws of the United States and the State of Califomia, all as
applicable.
Section 5. This Agreement shall become effective upon a final order of a court of
competent jurisdiction and/or a decision or order from the Califomia Supreme Court, or
other court of competent jurisdiction, that the provisions of AB X1 27 (including Sections
34194.2 and 34194.3) are valid and enforceable.
Section 6. If any provision of this Agreement or the application thereof to any person
or circumstance is held invalid, such invalidity shall not affect other provisions or
applications of this Agreement which can be given effect without the invalid provision or
application, and to this end the provisions of this Agreement are severable. The City
Council and Agency each hereby declares that it would have approved this Agreement
irrespective of the invalidity of any particular portion hereof as long as and subject to
Part 1.9 being declared valid and enforceable.
Section 7. An event of default occurs under this Agreement when: (a) there is a
breach of any condition, covenant or promise set forth herein; (b) written notice thereof
has been given to the defaulting party; and (c) such breach has not been cured within
thirty (30) days after such notice was given to the defaulting party or, if such breach
cannot reasonably be cured within such thirty (30) day period, the defaulting party fails
to commence to cure the breach and/or fails thereafter to diligently proceed to complete
such cure. A waiver, if any, by a party must be in writing; and, such waiver by a party of
a breach shall not be construed as a waiver of any succeeding breach of the same or
other condition, covenantor promise.
Section 8. The occurrence of an event of default hereunder shall give the non-
defaulting party the right to proceed with any and all remedies available at law or equity,
including without limitation an action for damages, an action or proceeding for specific
performance, and/or an action or proceeding for injunctive relief.
Section 9. City shall maintain authority of this Agreement and the authority to
implement this Agreement through City Manager and Finance Director (or duly
authorized representative(s)) and Agency shall maintain authority of this Agreement and
the authority to implement this Agreement through the Executive Director and Treasurer
(or duly authorized representative(s)); each shall have the authority to make approvals,
issue interpretations, waive provisions hereof.
Section l0. This Agreement shall be binding
successors and assigns. Whenever the terms
Agreement, such terms shall include any other
provided.
4
DOCSOC/ 151330 I v2/200350-0000
upon City and Agency and their
"City" or "Agency' are used in this
successors and assigns as herein
Section 11. This Agreement shall be governed by and construed in accordance with
the laws of the State of California.
Section 12. If any term, provision, condition or covenant of this Agreement or its
application to any party or circumstances shall be held, to any extent, invalid or
unenforceable, the remainder of this Agreement, or the application of the term,
provision, condition or covenant to persons or circumstances other than those as to
whom or which it is held invalid or unenforceable, shall not be affected, and shall be
valid and enforceable to the fullest extent permitted by law.
Section 13. Any amendment, alteration, change or modification of or to this
Agreement, in order to become effective, shall be made in writing and in each instance
signed by a duly authorized representative on behalf of each party. Each party agrees
to consider in good faith and exercise reasonable discretion in its consideration of a
request by another party to amend this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement to Transfer
Tax Increment as of the Date of Agreement.
CITY:
CITY OF TUSTIN,
a California municipal corporation
By:
William Huston, Interim City Manager
ATTEST:
Pamela Stoker, City Clerk
APPROVED AS TO FORM:
WOODRUFF, SPRADLIN & SMART
David E. Kendig, Esq., City Attorney
[ Additional Signature blocks appear on following page.]
DOCSOC/ 151330 I v2/200350-0000
AGENCY:
TUSTIN COMMUNITY REDEVELOPMENT
AGENCY, a public body, corporate and politic
By:
William Huston, Interim Executive
Director
ATTEST:
Pamela Stoker, Recording Secretary
APPROVED AS TO FORM:
STRADLING YOCCA CARLSON & RAUTH
Celeste Stahl Brady, Special Counsel
DOCSOC/ 1513301 v2/200350-0000
Administrative Expenses Payment/Reimbursement Agreement
ADMINISTRATIVE EXPENSES PAYMENT/REIMBURSEMENT AGREEMENT
This ADMINISTRATIVE EXPENSES PAYMENT/REIMBURSEMENT
AGREEMENT ("Agreement") is entered into as of September 20, 2011 ("Date of
Agreement"), by and between the CITY OF TUSTIN, a California municipal corporation
("City"), and the TUSTIN COMMUNITY REDEVELOPMENT AGENCY, a public body,
corporate and politic ("Agency').
RECITALS
A. The Agency is a community redevelopment agency organized and existing
under the Califomia Community Redevelopment Law, Health and Safety Code Sections
33000, et seq. ("CRL") and has been authorized to transact business and exercise the
powers of a redevelopment agency pursuant to action of the City Council ("City
Council") of the City.
B. The City Council adopted the Redevelopment Plans for the Town Center
Redevelopment Project, the South Central Redevelopment Project and the MCAS
Tustin Redevelopment Project (collectively, and as amended from time to time, the
"Redevelopment Plans").
C. Chapter 6, Article 2 of the CRL allows the Agency to use tax increment to
pay administrative expenses.
D. It has been the practice of the City and Agency for employees of the City
to administer the activities and programs of the Agency and for the City to provide
supplies and services to the Agency, to enable the Agency to perform redevelopment
activities in accordance with the CRL and the Redevelopment Plans ("Administrative
Expenses"). Each year, the City Council has included these Administrative Expenses in
the Agency's budget and the Agency has paid such Administrative Expenses incurred
by the City, all in accordance with the CRL and the annual budgets adopted by the City
Council.
E. The City and Agency now desire to memorialize the practice of payment
for the Agency's Administrative Expense and by this Agreement affirm and document
formally such ongoing practice by which the City provides the staff, supplies and
services necessary to administer the activities and programs of the Agency and the
Agency pays such Administrative Expenses incurred by the City, to confirm and itemize
this Agency obligation for such necessary and proper Administrative Expenses in the
Agency's Statements of Indebtedness, Enforceable Obligation Payment Schedules, and
Recognized Obligation Payment Schedules required by the CRL including the
2011 Redevelopment Legislation (defined below), to ensure sufficient tax increment will
be available to the Agency to pay such Administrative Expenses.
DOCSOC/ 1513336v2/200350-0000
F. Assembly Bills X1 26 and X1 27, which are trailer bills to the 2011-12
budget bills, were approved by both houses of the Legislature on June 15, 2011, signed
by the Governor on June 28, 2011, and chaptered on June 29, 2011 (together, "2011
Redevelopment Legislation").
G. Parts 1.8, 1.85 and 1.9 of Division 24 of the Health and Safety Code were
added to the CRL by the 2011 Redevelopment Legislation and such measures
purported to become effective immediately.
H. Part 1.8 of the CRL ("Part 1.8") provides for the restriction of activities and
authority of the Agency in the interim period prior to dissolution to certain "enforceable
obligations" and to actions required for the general winding up of affairs, preservation of
assets, and certain other goals delineated in Part 1.8.
I. Part 1.85 of the CRL ("Part 1.85") provides for the statewide dissolution of
all redevelopment agencies, including the Agency, as of October 1, 2011, and provides
that, thereafter, a successor agency will administer the enforceable obligations of the
Agency and otherwise wind up the Agency's affairs, all subject to review and approval
by an oversight committee.
J. Part 1.9 of the CRL ("Part 1.9") provides that a redevelopment agency
may continue in operation if a city or county that includes a redevelopment agency
adopts an ordinance agreeing to comply with and participate in the Voluntary Alternative
Redevelopment Program established in Part 1.9 ("Program").
K. The City and Agency are aware that the validity, passage, and applicability
of the 2011 Redevelopment Legislation are the subject of judicial challenge(s), including
the action: California Redevelopment Association, et al v. Ana Matosantos, et al. ("CRA
Action").
L. The Supreme Court accepted original jurisdiction of the CRA Action on
August 11, 2011, notified the parties of the briefing schedule, and, importantly, issued a
stay order affecting Part 1.85 and Part 1.9, but the court did not stay Sections 34161 to
34167 of Part 1.8, then on August 17, 2011, the Supreme Court modified its stay order,
which released the stay on Sections 34167.5 to 34169.5 of Part 1.8 and on Section
34194(b)(2) of Part 1.9, making those laws now effective ("Supreme Court Stay").
M. The City and Agency recognize that this Agreement is subject to the
Supreme Court Stay.
N. The City and Agency desire by this Agreement to affirm and document
formally the existing, long term, ongoing practice and agreement between the City and
Agency, pursuant to Chapter 6, Article 2 of the CRL, pursuant to which the Agency pays
tax increment to the City in an amount equal to the Agency Administrative Expenses
budgeted by the City Council in each fiscal year.
AGREEMENT
DOCSOC/ 1513336v2/200350-0000
NOW, THEREFORE, for and in consideration of the mutual promises, covenants,
and conditions herein contained, the parties hereto agree as follows:
Section 1. The Agency shall be liable to City for the payment of the Administrative
Expenses as set forth in the Agency and City budgets adopted by the City Council each
fiscal year, as such annual budgets may be amended, revised or reconciled from time to
time. For fiscal year 2011-2012 the estimated Administrative Expenses are set forth in
the City's and Agency's budgets adopted pursuant to legal requirements as set forth
and described in the attached Exhibit A and fully incorporated by this reference.
Section 2. The Agency hereby pledges Tax Increment (defined below) to payment of
the Administrative Expenses budgeted by the City Council each fiscal year; provided
that such pledge is junior and subordinate to all outstanding bonded indebtedness of the
Agency, any refunding of such bonds issued by or through the Agency, or through a
joint powers agency of which the Agency is a member, and any additional bonds issued
hereafter by or through the Agency. The City and Agency agree that such obligation by
Agency to City may be further subordinated by agreement of the City and the Agency.
(a) As used in this Section 2, 'Tax Increment" means all taxes annually
allocated to the Agency with respect to the Project Areas in each year following the
Date of Agreement, pursuant to Article 6 of Chapter 6 (commencing with Section 33670)
of the CRL and Section 16 of Article XVI of the Constitution of the State of Califomia
and as provided in the Redevelopment Plans, including all payments, subventions and
reimbursements (if any) to the Agency specifically attributable to ad valorem taxes lost
by reason of tax exemptions and tax rate limitations; but excluding (i) all amounts of
such taxes required to be deposited into the Low and Moderate Income Housing Fund
of the Agency in any Fiscal Year pursuant to Sections 33334.2 or 33334.6 of the CRL,
(ii) all amounts of such taxes required to be paid to taxing entities under Sections
33607.5 and 33607.7 of the CRL to the extent such required payments create a prior
lien on such taxes, (iii) amounts, if any, payable by the State of California to the Agency
under and pursuant to the provisions of Chapter 1.5 of Part 1 of Division 4 of Title 2
(commencing with Section 16110) of the Government Code of the State of Califomia,
(iv) amounts retained by the County of Orange as costs of collection pursuant to
Chapter 466, Statutes of 1990, and (v) such taxes, to the extent subject to a prior
express pledge by the Agency.
Section 3. The obligations of the Agency under this Agreement shall constitute an
indebtedness of the Agency within the meaning of Section 33670, et seq. of the CRL.
Section 4. This Agreement reflects the long established, and ongoing, practice of the
City and Agency with respect to the payment of Administrative Expenses and is
intended to be valid and enforceable notwithstanding any final order of a court of
competent jurisdiction and/or a decision or order from the Califomia Supreme Court, or
other court of competent jurisdiction, validating or invalidating the 2011 Redevelopment
Legislation, or any portion or portions thereof.
DOCSOC/ 15 13336v2/200350-0000
Section 5. If any provision of this Agreement or the application thereof to any person
or circumstance is held invalid, such invalidity shall not affect other provisions or
applications of this Agreement which can be given effect without the invalid provision or
application, and to this end the provisions of this Agreement are severable. The City
Council and Agency each hereby declares that it would have approved this Agreement
irrespective of the invalidity of any particular portion hereof.
Section 6. An event of default occurs under this Agreement when: (a) there is a
breach of any condition, covenant or promise set forth herein; (b) written notice thereof
has been given to the defaulting party; and (c) such breach has not been cured within
thirty (30) days after such notice was given to the defaulting party or, if such breach
cannot reasonably be cured within such thirty (30) day period, the defaulting party fails
to commence to cure the breach and/or fails thereafter to diligently proceed to complete
such cure. A waiver, if any, by a party must be in writing; and, such waiver by a party of
a breach shall not be construed as a waiver of any succeeding breach of the same or
other condition, covenantor promise.
Section 7. The occurrence of an event of default hereunder shall give the non-
defaulting party the right to proceed with any and all remedies available at law or equity,
including without limitation an action for damages, an action or proceeding for specific
performance, and/or an action or proceeding for injunctive relief.
Section 8. City shall maintain authority of this Agreement and the authority to
implement this Agreement through the City Manager and Finance Director (or their duly
authorized representative(s)) and Agency shall maintain authority of this Agreement and
the authority to implement this Agreement through the Executive Director and Treasurer
(or their duly authorized representative(s)); the City Manager, on behalf of the City, and
the Executive Director, on behalf of the Agency, shall each have the authority to make
approvals, issue interpretations, and waive provisions hereof.
Section 9. This Agreement shall be binding upon City and Agency and their
successors and assigns. Whenever the terms "City' or "Agency' are used in this
Agreement, such terms shall include any other successors and assigns as herein
provided.
Section 10. This Agreement shall be governed by and construed in accordance with
the Constitution and laws of the State of California.
Section 11. If any term, provision, condition or covenant of this Agreement or its
application to any party or circumstances shall be held, to any extent, invalid or
unenforceable, the remainder of this Agreement, or the application of the term,
provision, condition or covenant to persons or circumstances other than those as to
whom or which it is held invalid or unenforceable, shall not be affected, and shall be
valid and enforceable to the fullest extent permitted by law.
Section 12. Any amendment, alteration, change or modification of or to this
Agreement, in order to become effective, shall be made in writing and in each instance
DOCSOC/ 1513336v2/200350-0000
signed by a duly authorized representative on behalf of each party. Each party agrees
to consider in good faith and exercise reasonable discretion in its consideration of a
request by another party to amend this Agreement.
IN WITNESS WHEREOF, the parties have executed this Administrative
Expenses Payment/Reimbursement Agreement as of the Date of Agreement.
CITY:
CITY OF TUSTIN,
a California municipal corporation
By:
William Huston, Interim City Manager
ATTEST:
Pamela Stoker, City Clerk
APPROVED AS TO FORM:
WOODRUFF, SPRADLIN & SMART
David E. Kendig, Esq., City Attorney
[Additional Signature blocks appear on following page.]
DOCSOC/ 1513336v2/200350-0000
AGENCY:
TUSTIN COMMUNITY REDEVELOPMENT
AGENCY, a public body, corporate and politic
By:
William Huston, Interim Executive
Director
ATTEST:
Pamela Stoker, Agency Secretary
APPROVED AS TO FORM:
STRADLING YOCCA CARLSON & RAUTH
Celeste Stahl Brady, Special Counsel
DOCSOC/ 1513336v2/200350-0000
Exhibit A
Redevelopment Administrative Costs
Descriation of Methodology
The indirect administrative costs allocation method, in its current form, has been used since
Fiscal Yeaz 1999-2000. This costs allocation method has been presented to the City's
independent auditors as a justification for the indirect administrative costs chazged to the various
departments/funds; including Redevelopment Agency, Water Enterprise, and special revenue
funds. The indirect administrative cost allocation allows the City's General Fund to recover
overhead costs associated with providing general administrative functions to the various
department or special revenue funds. The calculation of the indirect administrative costs looks at
the various internal services provided by various departments (City Council, City Clerk, City
Manager, Finance, Human Resources, Information Technology, facilities related costs, and non-
departmental) that aze difficult or infeasible to quantify, in terms of direct charge, and calculates
these departments' percentage of the total General Fund, which is the overhead percentage.
The estimated overhead percentage for Fiscal Yeaz 2011-2012 is 15.975% ($8,490,400 /
$53,146,921); see attachment 1 of this Exhibit A entitled "Indirect Administrative Cost
Allocation" for detailed calculation. The indirect administrative costs aze calculated by applying
the overhead percentage against the total expenditures of the Redevelopment Agency, Water
Enterprise, and special revenue funds. The estimated indirect administrative costs for the
Redevelopment Agency for Fiscal Year 2011-2012 is calculated to be $3,600,908 ($22,540,417 x
15.975%), however, it's currently capped at the Fiscal Yeaz 2010-2011 level of $2,711,500.
During Fiscal Year 2011-2012, the Finance department will contract with a consultant to perform
a comprehensive overhead/indirect administrative costs allocation study for all City services,
therefore this amount would be adjusted to reflect the consultant's findings.
Attachment 1
Of Exhibit A
Calculation of Labor Distribution and Annual Redevelopment Administrative Expenses
Annual Lnbor Distribution
For the Year Ending 06/30/12
Calculation of Indirect Administrntive Cost
*2011/2011 @ Projected YE 06/30/12 for:
101 City Council ~ 125,800
102 City Clerk ~ 387,300
103 City Att ~ -
201 City Mgr ~ 768,400
202 Finance ~ 1,156,100
203 Personnel ~ 770,200
204 MI5 ~ 1,553,800
407 Facility Expense ~ 2,543,000
801 Non-Dept ~ 592,900
* From YTD 06/30/12 Report
~ 7,897,500
Indirect Admin Cost Fa~
Admin Expenses ~ 8,490,400 -'s 15.975%
Total 6F Expense ~ 53,146,921
Calculation of Amount due to GF~
RDA
SC:
551 x7,939,545
552 x1,319,100
553 Due To 6F:
41.0767° x9,258,645 x1,479,100
Admin Fee: x1,479,100
Balance: x0
TC:
557 x2,194,666
558 x375,170
559 Due To GF:
11.401% x2,569,836 x410,500
Admin Fee: x410,500
Balance: x0
MCAS:
554 x6,167,751
555 x4,544,184
556 Due To 6F:
47.523 % x10,711,935 x 1,711,300
Admin Fee: x1,711,300
Balance: x -
RDA
G Total: x22,540,417
Total RDA Expense:
x22,540,417
x 15.975%
x3,600,908
x0 C. Council
x0 C.Clerk
x0 C. Mgr
x0 Finance
x0 Personnel
x0 MI5
x0 Com Dev
x0 Building
x0 Engineering
x3,600,908
Total Non-Dept Expense @ YTp 06/30/12:
Dept Total: ~ 3,702,018
Accts Not Used In Admin Cost Allocation:
6026 Fiscal Agent Exp. ~ -
6146 Shopping Cnrt Program x -
6647 Weed Abatement ~ -
6908 Parking Citations x 5,000
6920 Animal Control Contract ~ 181,000
6915 Senior Programs ~ -
6919 USDA Lunch Prog. ~ -
6974 Marine Base Close ~ -
8330 Memberships/Subs ~ -
8xxx Transfers ~ 2,892,018
8444 Lease Payment-Park
8464 Landscape Light Dist. Exp. ~ 9,000
8494 Discount Chg-Credit Cords ~ 5,000
8495 Bnd Debt Write Off ~ 17,100
~ 3,109,118
Net Non-Dept: x 592,900
Total Admin Fee: x2,711,500 The total indirect charge was capped at x2.7 million, which is the
same level as Fiscal Yeor 2010-2011. During Fiscal Year 2011-2012
Finance will contract with a firm to perform a comprehensive
overhead/indirect charge allocation for all City services, therefore
this amount would be adjusted to reflect the consultant's findings.
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