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HomeMy WebLinkAboutItem 2b: Resolution 6797/ARA 248 & ARA 249: Transfer of Tax Increment Revenue and Reducing Allocation for Low /Moderate Income Housing Fund 111 0,1 STAFF REPORT Arcadia Redevelopment Agency DATE: September 20, 2011 TO: Mayor and City Council Members Chair and Agency Board 115 FROM: t„ vGJason Kruckeberg, Assistant City Manager/Development Services Director SUBJECT: RESOLUTION NO. 6797 OF THE CITY COUNCIL AND RESOLUTION NO. ARA 248 OF THE REDEVELOPMENT AGENCY CONDITIONALLY APPROVING AND AUTHORIZING THE EXECUTION OF A COMMUNITY REMITTANCE FUNDING AGREEMENT BY AND BETWEEN THE CITY • AND THE AGENCY SETTING FORTH THE TERMS OF THE AGENCY'S ANNUAL TRANSFER OF TAX INCREMENT REVENUE TO THE CITY UNDER AB 1X 27; AND RESOLUTION NO. ARA 249 CONDITIONALLY REDUCING THE AGENCY'S ALLOCATION TO THE LOW AND MODERATE INCOME HOUSING FUND FOR FISCAL YEAR 2011-12 AND MAKING CERTAIN RELATED FINDINGS AND DETERMINATIONS. Recommendation: Adopt SUMMARY Assembly Bills 1X 26 and 1X 27, which were effective on June 29, 2011, are part of the State budget package which have the combined effect of abolishing every redevelopment agency unless the community that created the agency elects to participate in the "Alternative Voluntary Redevelopment Program” ("Program") by ordinance. Participation in the Program includes an agreement to pay a "community remittance" by the community that created the agency. AB 1X 27 provides that in order to fund the community remittance payment to be made by the City of Arcadia ("City"), the City and the Arcadia Redevelopment Agency ("Agency") may enter into an agreement whereby the Agency annually transfers tax increment revenues to the City in an amount not to exceed the amount of the community remittance due for such fiscal year ("Remittance Agreement"). A Petition for Writ of Mandate challenging the constitutionality of AB 1X 26 and AB 1X 27 was filed on July 18, 2011 in the Supreme Court of the State of California. The Supreme Court agreed to take the case and issued an order for the partial stay of enforcement of AB 1X 26 and AB 1X 27, including a stay of the provisions of AB 1X 27 requiring the adoption of the ordinance to participate in the Program, the payment of the Community Remittance Agreement September 20, 2011 Page 2 of 4 community remittance, and the authorization for cities and agencies to enter into the Remittance Agreement. Resolution No. 6797 of the City Council and Agency Resolution No. ARA 248 attached hereto, approve the Community Remittance Funding Agreement, also attached hereto, which is effective on the condition that the Supreme Court's stay of AB 1X 27 is lifted or modified in a manner that permits the Agency and the City to enter into the Agreement, on the condition that the Agency's transfer of tax increment revenues to the City and the City's payment of the community remittance will be made only if there is a final determination that AB 1X 26 and AB 1X 27 are constitutional. AB 1X 27 also provides that for Fiscal Year 2011-12 only, the Agency may reduce its allocation of tax increment revenue to its Low and Moderate Income Housing Fund ("Housing Fund") to transfer tax increment revenues to the City for the City to make the community remittance payment. This was discussed when the Council introduced Ordinance No. 2286 agreeing to make the remittance payments. In order to do so, the Agency must find that there are insufficient other moneys to meet this obligation. Resolution No. ARA 249 attached hereto, sets forth the Agency's reduction of allocation and the required finding. Because Health and Safety Code Section 34194.3 is currently stayed by the Court's Stay, the Agency is being asked to adopt this resolution which sets forth the facts supporting a finding so that the Agency may reduce its allocation to the Low and Moderate Income Housing Fund for Fiscal Year 2011-12 on the condition that the Court's stay will be lifted or modified in a manner that permits the Agency to act under Health and Safety Code Section 34194.3, or upon resolution of the litigation in such a way that AB 1X 27 is upheld and the City chooses to make the community remittance payment and the City and the Agency enter into the Remittance Agreement. DISCUSSION Under AB 1X 27, every City Council has the option to make payments to keep their Redevelopment Agency operating. For 2011-2012 the amount of the payment is provided by the State Director of Finance. On August 1st the City was notified that its Fiscal Year 2011-12 community remittance is $1,471,053. The Agency has filed an appeal to have the amount reduced based on the debt service obligation of the 2010 tax allocation bonds. The constitutionality of AB 1X 26 and AB 1X 27 was challenged on behalf of cities, counties and redevelopment agencies in a Petition for Writ of Mandate, filed in the Supreme Court of the State of California on July 18, 2011 (California Redevelopment Association, et al. v. Ana Matosantos, et al., Case No. 5194861). On August 11, 2011, the Supreme Court agreed to take the case and issued an order for the immediate stay of enforcement of AB 1X 26 in part and AB 1X 27 in its entirety. On August 17, 2011, the Supreme Court modified its stay to clarify that Health and 'Safety Code Sections 34161 through 34169.5, enacted by AB 1X 26, and Health and Safety Code Section 34194(b)(2), enacted by AB 1X 27, are the only provisions of the two bills that are not stayed ("Court's Stay"). Community Remittance Agreement September 20, 2011 Page 3 of 4 Health and Safety Code Section 34194.2, enacted by AB 1X 27, authorizes the City and Agency to enter into the Community Remittance Funding Agreement whereby the Agency pledges tax increment revenues to the City to fund the annual community remittance payments so that the general fund is not at risk. The Agency's pledge of tax increment revenues for this purpose for Fiscal Year 2011-12 is an obligation of the Agency, and if approved prior to October 1, 2011, it would appear as a debt on the Agency's Statement of Indebtedness ("S01"), which must be filed on or before October 1, 2011. Under AB 1X 27, if any new debt is issued after October 1, 2011, the City's community remittance payment, and thus the amount to be funded by the Agency, will be increased by a certain percentage of additional tax increment revenues paid to school districts as a result of all such new debt. To not be considered "new debt" an obligation must be displayed on the SOI filed by the Agency on or before October 1, 2011. Because Health and Safety Code Section 34194.2 is currently stayed by the Court's Stay, the City and Agency are being asked to conditionally approve the Remittance Agreement, so that the Agency may include its transfer of tax increment revenues in the amount of the community remittance as a debt on the October 1, 2011 SOL The Community Remittance Funding Agreement provides that it will be effective on the lifting or modification of the Court's Stay in a manner that permits the Agency to enter into this Remittance Agreement, or upon resolution of the litigation in such a way that AB 1X 27 is upheld and the City chooses to make the community remittance payment. The City and Agency resolutions approve the Community Remittance Funding Agreement to establish a yearly obligation of the Agency, beginning Fiscal Year 2011- 12, to transfer tax increment revenues to the City in an amount not to exceed the Community Remittance, on the condition that the Agency's transfer of tax increment revenues to the City and the City's payment of the community remittance will be made only if there is a final determination that AB 1X 26 and AB 1X 27 are constitutional. The Remittance Agreement also provides that it will be effective on the condition that the State Supreme Court orders that the Court's Stay of AB 1X 27 be lifted or modified in a manner that permits the Agency to enter into this Agreement. Health and Safety Code Section 34194.3, enacted by AB 1X 27, provides that the Agency may reduce its allocation to its Housing Fund only for Fiscal Year 2011-12 if it finds that it has insufficient other moneys to meet its debt and other obligations, current priority program needs, or its obligations under the Community Remittance Funding Agreement. Redevelopment funds are committed during FY 2011-2012 to debt service on ARA bonds, operations of the Agency, existing contracts, priority redevelopment and public improvement projects. This limits the amount available to make the community remittance payment. Without using low/mod housing funds to make the large payment that is required, some of the Agency's priorities would not be realized. Although Health and Safety Code Section 34194.3 is currently stayed by the Court the Agency is being asked to adopt Agency Resolution No. 249, attached hereto, which sets forth the facts supporting a finding so that the Agency may reduce its allocation to Community Remittance Agreement September 20, 2011 Page 4 of 4 the Low and Moderate Income Housing Fund for Fiscal Year 2011-12 on the condition that the Court's Stay will be lifted or modified in a manner that permits the Agency to act under Health and Safety Code Section 34194.3, or upon resolution of the litigation in such a way that AB 1X 27 is upheld and the City chooses to make the community remittance payment and the City and the Agency enter into the Community Remittance Funding Agreement. CALIFORNIA ENVIRONMENTAL QUALITY ACT ("CEQA") Staff has determined that the Resolutions and Agreement are exempt from CEQA, pursuant to CEQA Guidelines Section 15378 (b)(4), because such authorizations are not considered a project subject to CEQA review. The community remittance is a government funding mechanism and fiscal activity, which does not involve any commitment to any specific project which may result in a potentially significant environmental impact. FISCAL IMPACT The Fiscal Year 2011-12 community remittance to be paid by the City is $1,471,053, as determined by the State Director of Finance. This is the initial amount that the Agency will have to pay to the City under the Community Remittance Funding Agreement. The Agency will also have to reduce its allocation of tax increment revenues to its Housing Fund for Fiscal Year 2011-12 by $1,014,960., or 100% in order to fund the City's payment of the community remittance and meet the Agency's debt and other obligations and current priority program needs. These amounts, as well as subsequent annual community remittances, to be determined based upon a formula set forth in AB 1X 27, will be due on the condition that the Court's Stay is lifted or modified in a manner that permits the Agency to act under Health and Safety Code Sections 34194.2 or 34194.3, or upon resolution of the litigation in such a way that AB 1X is upheld and the City chooses to make the community remittance payment. RECOMMENDATION Adopt City Resolution No. 6797 and Agency Resolution No. ARA 248 approving the Community Remittance Funding Agreement. Adopt Agency Resolution No. ARA 249 approving the use of low/mod funds to make the 2011-2012 remittance payment. By: �t-r-..4Q -P Donald Penman City Manager/Executive Director Attachments: City Council Resolution No. 6797 Agency Resolution No. ARA 248 Conditional Community Remittance Funding Agreement Agency Resolution No. ARA 249 City Council Resolution No. 6797 and Exhibit "A" Community Remittance Funding Agreement RESOLUTION NO. 6797 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA, APPROVING AND AUTHORIZING THE EXECUTION OF A CONDITIONAL COMMUNITY REMITTANCE FUNDING AGREEMENT BY AND BETWEEN THE CITY OF ARCADIA AND THE ARCADIA REDEVELOPMENT AGENCY PROVIDING FOR THE TRANSFER OF TAX INCREMENT REVENUE TO THE CITY IN AN AMOUNT NOT TO EXCEED THE AMOUNT OF THE COMMUNITY REMITTANCE REQUIRED UNDER AB 1X 27 WHEREAS, pursuant to the Community Redevelopment Law (Health and Safety Code sections 33000 et seq.), the City Council of the City of Arcadia ("City") created the Arcadia Redevelopment Agency("Agency")to serve as the redevelopment agency within the City; and WHEREAS,the Agency has been responsible for implementing the Redevelopment Plan for the Central Redevelopment Project covering certain properties within the City ("Project Area"); and WHEREAS, as part of the 2011-2012 State budget bill, the California Legislature enacted, and the Governor signed, companion bills AB 1X 26 and AB 1X 27, requiring that each redevelopment agency be dissolved unless the community that created it enacts an ordinance committing it to making certain payments; and WHEREAS, specifically,AB 1X 26 prohibits agencies from taking numerous actions, effective immediately and purportedly retroactively,and additionally provides that agencies are deemed to be dissolved as of October 1, 2011; and WHEREAS, AB 1X 27 provides that a community may participate in an "Alternative Voluntary Redevelopment Program,"in order to enable a redevelopment agency within that 1 community to remain in existence and carry out the provisions of the CRL, by enacting an ordinance agreeing to comply with Part 1.9 of Division 24 of the Health and Safety Code; and WHEREAS, participation in the Alternative Voluntary Redevelopment Program requires the City to remit specified annual amounts to the county auditor-controller ("Community Remittance"); and WHEREAS, the California Director of Finance has notified the City that its Community Remittance for Fiscal Year 2011-2012 is One Million Four Hundred Seventy- One Thousand Fifty-Three Dollars ($1,471,053); and WHEREAS, California Health and Safety Code Section 34194.2 provides that the City may enter into an agreement with the Agency, whereby the Agency will annually transfer tax increment revenue to the City, in an amount not to exceed the amount of the Community Remittance for such fiscal year,for the purpose of financing activities within the Project Area related to the Agency's goals ("Agreement"); and WHEREAS, a Petition for Writ of Mandate was filed in the Supreme Court of the State of California on July 18, 2011 (California Redevelopment Association, et al. v. Ana Matosantos, et al., Case No. 5194861), challenging the constitutionality of AB 1X 26 and AB 1X 27 on behalf of cities, counties and redevelopment agencies and requesting a stay of enforcement; and WHEREAS, on August 11, 2011, the Supreme Court agreed to take the case and issued an order for the immediate stay of enforcement of AB 1X 26 in part and AB 1X 27 in its entirety; and 2 WHEREAS, on August 17, 2011,the Supreme Court modified its order to clarify that Health and Safety Code Sections 34161 through 34169.5, enacted by AB 1 X 26, and Health and Safety Code Section 34194(b)(2), enacted by AB 1X 27, are not stayed ("Court's Stay"); and WHEREAS, the Agency and the City desire to enter into this Agreement, effective on the condition that the Supreme Court orders that the Court's Stay be lifted or modified in a manner that permits the Agency to enter this Agreement,to establish a yearly obligation of the Agency, beginning Fiscal Year 2011-2012,to transfer tax increment revenues to the City in an amount not to exceed the Community Remittance, on the condition that the Agency's transfer of tax increment revenues to the City and the City's payment of the Community Remittance will be made only if there is a final determination that AB 1X 26 and AB 1X 27 are constitutional and with the City adopting Ordinance No. 2286 electing to participate in the Alternative Voluntary Redevelopment Program; and WHEREAS, the City reserves the right, whether any Community Remittance has been paid, to challenge the legality of AB 1X 26 and AB 1X 27; and WHEREAS, all other legal prerequisites to the adoption of this Resolution have occurred. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA, DOES HEREBY FIND, DETERMINE AND RESOLVE AS FOLLOWS: SECTION 1. The facts set forth in the recitals above are true and correct and are hereby incorporated into the City Council's findings and determinations. 3 SECTION 2. Upon consideration of the facts set forth in the staff report accompanying this Resolution and other written and oral evidence presented to the City Council, the City Council finds that the transfer of tax increment revenue from the Agency to the City for the funding of the Community Remittance payment by the City will: (1)allow the Agency to remain in existence and continue to act to accomplish the Agency's goals in the Project Area and is in the best interests of the health, safety and welfare of the City's residents; and (2)free the City from committing general fund revenues or other City assets to pay the Community Remittance for any fiscal year. SECTION 3. The City Council hereby conditionally approves the Agreement, in substantially the form attached hereto as Exhibit"A"and incorporated herein by reference. The Agreement shall be effective upon the Court's Stay being lifted or modified in a manner that permits the Agency to enter into the Agreement, on the condition that the Agency's transfer of tax increment revenues to the City and the City's payment of the Community Remittance will be effective only if there is a final determination that AB 1X 26 and AB 1X 27 are constitutional and with the City adopting Ordinance No. 2286 electing to participate in the Alternative Voluntary Redevelopment Program. The City Council authorizes and directs the City Manager to execute the Agreement on behalf of the City, subject to any minor clarifying, conforming and technical changes as may be approved by the City Attorney. The City Manager is further authorized and directed to take such actions and execute such documents as may be necessary to carry out the obligations of the City under the Agreement. 4 SECTION 4. The City Council finds, under Title 14 of the California Code of Regulations, Section 15378(b)(4), that this Resolution is exempt from the requirements of the California Environmental Quality Act ("CEQA") in that it is not a "project," but instead consists of the creation and continuation of a governmental funding mechanism for potential future projects and programs, and does not commit funds to any specific project or program. The City Council,therefore,directs that a Notice of Exemption be filed with the County Clerk of the County of Los Angeles in accordance with CEQA Guidelines. SECTION 5. If any provision of this Resolution or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this Resolution which can be given effect without the invalid provision or application, and to this end the provisions of this Resolution are severable. The City Council hereby declares that it would have adopted this Resolution irrespective of the invalidity of any particular portion thereof. SECTION 6. This Resolution shall take effect immediately upon its adoption. SECTION 7. The City Clerk shall certify to the adoption of this Resolution. [SIGNATURES ON NEXT PAGE] 5 Passed, approved and adopted this 20th day of September, 2011. Mayor of the City of Arcadia ATTEST: City Clerk APPROVED AS TO FORM: gete46,,, n A-bajc-e' Stephen P. Deitsch City Attorney 6 Exhibit "A" Community Remittance Funding Agreement 7 EXHIBIT "A" COMMUNITY REMITTANCE FUNDING AGREEMENT This COMMUNITY REMITTANCE FUNDING AGREEMENT ("Agreement"), is entered into as of , 2011, for reference purposes only and shall be effective only as provided for below, by and between the CITY OF ARCADIA, a California charter city and municipal corporation ("City"), and the ARCADIA REDEVELOPMENT AGENCY, a public body, corporate and politic ("Agency"). The City and the Agency are sometimes, individually, referred to in this Agreement as a "Party" or are sometimes, collectively, referred to in this Agreement as the "Parties." The Parties enter into this Agreement with reference to the following recited facts: RECITALS A. Pursuant to the Community Redevelopment Law (Health and Safety Code Sections 33000, et seq.) ("CRL"), the City Council of the City created the Agency to serve as the redevelopment agency within the City; and B. The Agency has been responsible for implementing the Redevelopment Plan for the Central Redevelopment Project covering certain properties within the City ("Project Area"); and C. As part of the 2011-2012 State budget bill, the California Legislature enacted, and the Governor signed, companion bills AB 1X 26 and AB 1X 27, requiring that each redevelopment agency be dissolved unless the community that created it enacts an ordinance committing it to making certain payments; and D. Specifically, AB 1X 26 prohibits agencies from taking numerous actions, effective immediately and purportedly retroactively, and additionally provides that agencies are deemed to be dissolved as of October 1, 2011; and E. AB 1X 27 provides that a community may participate in an "Alternative Voluntary Redevelopment Program," in order to enable a redevelopment agency within that community to remain in existence and carry out the provisions of the CRL, by enacting an ordinance agreeing to comply with Part 1.9 of Division 24 of the Health and Safety Code; and F. Participation in the Alternative Voluntary Redevelopment Program requires the City to remit specified annual amounts to the county auditor-controller ("Community Remittance"); and G. On July 19, the City Council introduced Ordinance No. 2286 agreeing to the Alternative Voluntary Redevelopment Program, on August 2nd the Council approved the Ordinance on second reading, and it became effective on September 2, 2011, although AB 1X 27 is under a temporary stay; and H. The California Director of Finance has notified the City that its Community Remittance for Fiscal Year 2011-2012 is One Million Four Hundred Seventy-One Thousand Fifty-Three Dollars ($1,471,053); and I. California Health and Safety Code Section 34194.2, enacted by AB 1X 27, provides that the City may enter into an agreement with the Agency, whereby the Agency will transfer a portion of the taxes allocated to it pursuant to Health and Safety Code Section 33670 ("Tax Increment") to the City in a particular fiscal year, in an amount not to exceed the amount of the Community Remittance for such fiscal year, for the purpose of financing activities within the Project Area related to the Agency's goals; and J. A Petition for Writ of Mandate was filed in the Supreme Court of the State of California on July 18, 2011 (California Redevelopment Association, et al. v. Ana Matosantos, et al., Case No. 5194861), challenging the constitutionality of AB 1X 26 and AB 1X 27 on behalf of cities, counties and redevelopment agencies and requesting a stay of enforcement; and K. On August 11, 2011, the Supreme Court agreed to take the case and issued an order for the immediate stay of enforcement of AB 1X 26 in part and AB 1X 27 in its entirety; and L. On August 17, 2011, the Supreme Court modified its stay to clarify that Health and Safety Code Sections 34161 through 34169.5, enacted by AB 1X 26, and Health and Safety Code Section 34194(b)(2), enacted by AB 1X 27, are not stayed ("Court's Stay"); and M. The Parties desire to enter into this Agreement, with the effectiveness of this Agreement conditioned on the Supreme Court ordering that the Court's Stay be lifted or modified in a manner that permits the Agency and the City to enter into this Agreement, the purpose of which is to establish a yearly obligation of the Agency to transfer Tax Increment to the City and the City to pay the Community Remittance only if there is a final determination that AB 1X 26 and AB 1X 27 are constitutional; and N. The City reserves the right, whether any Community Remittance has been paid, to challenge the legality of AB 1X 26 and AB 1X 27. AGREEMENT NOW, THEREFORE, in consideration of the promises of the City and the Agency contained in this Agreement and other good and valuable consideration, the City and the Agency agree as follows: 1. Incorporation of Recitals. The Recitals of fact set forth preceding this Agreement are true and correct and are incorporated into this Agreement in their entirety by this reference. 2 2. Conditional Transfer of Tax Increment to City. On the condition that a final determination is made that AB 1X 26 and AB 1X 27 are constitutional, Agency hereby agrees to transfer to City, throughout the term of this Agreement, out of Tax Increment or any other available funds, an amount equal to the amount of the Community Remittance for each fiscal year, as determined under Health and Safety Code Section • 34194, beginning with Fiscal Year 2011-2012. No later than January 10 and May 10 of each fiscal year, Agency shall transfer to City one-half of the Community Remittance payment specified for such fiscal year, as determined pursuant to Health and Safety Code Section 34194 in order that City may timely make the Community Remittance payments. However, for Fiscal Year 2011-2012, the Agency shall transfer to the City the amount(s) of the Community Remittance payment(s) required for that fiscal year prior to the date(s) on which the City is required to make such payment(s), if a final determination is made that AB 1X 26 and AB 1X 27 are constitutional. The City and Agency agree that if Agency does not have sufficient Tax Increment available to make the full Community Remittance payment in any fiscal year, City shall have no obligation to use City funds for such purpose, in which case the Agency may be deemed to be dissolved under Health and Safety Code Section 34195. 3. City Payment of Community Remittance Each Fiscal Year. Subject to the timely receipt of Tax Increment or other funds from the Agency in an amount equal to the amount of the Community Remittance, the City shall pay to the Los Angeles County Auditor-Controller, no later than January 15 and May 15 of each year, one-half of the Community Remittance amount due for such fiscal year while this Agreement is in effect, except for Fiscal Year 2011-2012, when the City shall make the required payment(s) no later than the date(s) required for the Community Remittance to be made. The City's obligation to make such Community Remittance payments shall be a special limited fund obligation of the City payable solely from Tax Increment or other funds paid to the City by the Agency pursuant to this Agreement. Nothing contained in this Agreement is intended to nor shall be deemed to be a pledge of the City's general fund revenues or other City assets to pay the Community Remittance for any fiscal year. Notwithstanding the foregoing, City shall have no obligation to make the Community Remittance payment until a final determination is made that AB 1X 26 and AB 1X 27 are constitutional and the City has adopted an ordinance electing to participate in the Alternative Voluntary Redevelopment Program. 4. Effectiveness. This Agreement shall not be effective unless and until the California Supreme Court orders that the Court's Stay be lifted or modified in a manner that permits the Agency to enter into this Agreement. This Agreement shall be deemed null and void if AB 1X 26 and AB 1X 27 are determined by a court of competent jurisdiction to be unconstitutional, illegal, invalid or otherwise unenforceable or inapplicable, for any reason or in any manner. Notwithstanding the foregoing or any other provision of this Agreement, either the City or the Agency may terminate this Agreement at any time, for any reason or no reason. 3 5. General Provisions. 5.1 Notices, Demands and Communications Between the Parties. Any and all notices submitted by either Party to the other Party pursuant to or as required by this Agreement shall be proper, if in writing and transmitted to the address of the City or the Agency, as applicable, set forth below in this Section 5.1, by one or more of the following methods: (1) messenger for immediate personal delivery; (2) a nationally recognized overnight (one business day) delivery service (i.e., Federal Express, United Parcel Service, etc.); or (3) registered or certified United States mail, postage prepaid, return receipt requested. Such notices may be sent in the same manner to such other addresses as either Party may designate, from time to time, by notice. Any notice shall be deemed to be received by the addressee, regardless of whether or when any return receipt is received by the sender or the date set forth on such return receipt, on the day that the notice is delivered by personal delivery, on the date of delivery by a nationally recognized overnight courier service (or when delivery has been attempted twice, as evidenced by the written report of the courier service) or four (4) calendar days after the notice is deposited with the United States Postal Service for delivery, as provided in this Section 5.1. Rejection, other than refusal to accept or the inability to deliver a notice because of a changed address of which no notice was given or other action by a person to whom notice is sent, shall be deemed receipt of the notice. The following are the authorized addresses for the submission of notices to the Parties, as of the date of this Agreement: To City: City of Arcadia 240 W. Huntington Drive P.O. Box 60021 Arcadia, CA 91066 Attn: City Manager To Agency: Arcadia Redevelopment Agency 240 W. Huntington Drive P.O. Box 60021 Arcadia, CA 91066 Attn: Executive Director 5.2 Calculation of Time Periods. Unless otherwise specified, all references to time periods in this Agreement measured in days shall be to consecutive calendar days, all references to time periods in this Agreement measured in months shall be to consecutive calendar months and all references to time periods in this Agreement measured in years shall be to consecutive calendar years. 5.3 Principles of Interpretation. No inference in favor of or against any Party shall be drawn from the fact that such Party has drafted any part of this Agreement. The Parties have both participated substantially in the negotiation, drafting, and revision of this Agreement, with advice from legal and other counsel and advisers of their own selection. A word, term or phrase defined in the singular in this Agreement may be used in the plural, and vice versa, all in accordance with ordinary principles of English 4 grammar, which shall govern all language in this Agreement. The words "include" and "including" in this Agreement shall be construed to be followed by the words: "without limitation." Each collective noun in this Agreement shall be interpreted as if followed by the words "(or any part of it)," except where the context clearly requires otherwise. Every reference to any document, including this Agreement, refers to such document, as modified from time to time (excepting any modification that violates this Agreement), and includes all exhibits, schedules, addenda and riders to such document. The word "or" in this Agreement includes the word "and." Every reference to a law, statute, regulation, order, form or similar governmental requirement refers to each such requirement as amended, modified, renumbered, superseded or succeeded, from time to time. 5.4 Governing Law. The substantive and procedural laws of the State of California shall govern the interpretation and enforcement of this Agreement, without application of conflicts or choice of laws principles. 5.5 Binding on Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective legal representatives, successors and assigns. 5.6 No Third-Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to confer any rights or remedies under or by reason of this Agreement on any person other than the Parties and their respective permitted successors and assigns, nor is anything in this Agreement intended to relieve or discharge any obligation of any third person to any Party or give any third person any right of subrogation or action over or against any Party. 5.7 Signature in Counterparts. This Agreement may be signed by the authorized representatives of the Parties in multiple counterpart originals, each of which shall be deemed to be an original, but all of which together shall constitute one and the same document. 5.8 Entire Agreement. This Agreement constitutes the entire understanding and Agreement of the Parties regarding the subjects addressed in this Agreement. This Agreement integrates all of the terms and conditions mentioned in this Agreement or incidental to this Agreement, and supersedes all negotiations or previous agreements between the Parties with respect to the subjects addressed in this Agreement. 5.9 Time Declared to be of the Essence. As to the performance of any obligation under this Agreement of which time is a component, the performance of such obligation within the time specified is of the essence. [Signatures on the following page] 5 SIGNATURE PAGE TO COMMUNITY REMITTANCE FUNDING AGREEMENT CITY OF ARCADIA, a California charter ARCADIA REDEVELOPMENT AGENCY, city and municipal corporation a public body, corporate and politic By: By: Donald Penman, City Manager Donald Penman, Executive Director ATTEST: ATTEST: By: By: City Clerk Agency Secretary APPROVED AS TO FORM: APPROVED AS TO FORM: By: By: Stephen P. Deitsch Stephen P. Deitsch City Attorney Agency Counsel 6 Agency Resolution No. ARA 248 and Exhibit "A" Community Remittance Funding Agreement RESOLUTION NO. ARA-248 A RESOLUTION OF THE ARCADIA REDEVELOPMENT AGENCY CONDITIONALLY APPROVING AND AUTHORIZING THE EXECUTION OF A COMMUNITY REMITTANCE FUNDING AGREEMENT BY AND BETWEEN THE CITY OF ARCADIA AND THE REDEVELOPMENT AGENCY PROVIDING FOR THE TRANSFER OF TAX INCREMENT REVENUE TO THE CITY IN AN AMOUNT NOT TO EXCEED THE AMOUNT OF THE COMMUNITY REMITTANCE REQUIRED UNDER AB 1X 27 WHEREAS, pursuant to the Community Redevelopment Law (Health and Safety Code sections 33000 et seq.), the City Council of the City of Arcadia ("City") created the Arcadia Redevelopment Agency("Agency")to serve as the redevelopment agency within the City; and WHEREAS,the Agency has been responsible for implementing the Redevelopment Plan for the Central Redevelopment Project covering certain properties within the City ("Project Area"); and WHEREAS, as part of the 2011-2012 State budget bill, the California Legislature enacted, and the Governor signed,companion bills AB 1X 26 and AB 1X 27, requiring that each redevelopment agency be dissolved unless the community that created it enacts an ordinance committing it to making certain payments; and WHEREAS, specifically,AB 1X 26 prohibits agencies from taking numerous actions, effective immediately and purportedly retroactively,and additionally provides that agencies are deemed to be dissolved as of October 1, 2011; and WHEREAS,AB 1X 27 provides that a community may participate in an "Alternative Voluntary Redevelopment Program,"in order to enable a redevelopment agency within that 1 community to remain in existence and carry out the provisions of the CRL, by enacting an ordinance agreeing to comply with Part 1.9 of Division 24 of the Health and Safety Code; and WHEREAS, participation in the Alternative Voluntary Redevelopment Program requires the City to remit specified annual amounts to the county auditor-controller ("Community Remittance"); and WHEREAS, the California Director of Finance has notified the City that its Community Remittance for Fiscal Year 2011-2012 is One Million Four Hundred Seventy- One Thousand Fifty-Three Dollars ($1,471,053); and WHEREAS, California Health and Safety Code Section 34194.2 provides that the City may enter into an agreement with the Agency, whereby the Agency will annually transfer tax increment revenue to the City, in an amount not to exceed the amount of the Community Remittance for such fiscal year,for the purpose of financing activities within the Project Area related to the Agency's goals ("Agreement"); and WHEREAS, a Petition for Writ of Mandate was filed in the Supreme Court of the State of California on July 18, 2011 (California Redevelopment Association, et al. v. Ana Matosantos, et al., Case No. 5194861), challenging the constitutionality of AB 1X 26 and AB 1X 27 on behalf of cities, counties and redevelopment agencies and requesting a stay of enforcement; and WHEREAS, on August 11, 2011, the Supreme Court agreed to take the case and issued an order for the immediate stay of enforcement of AB 1X 26 in part and AB 1X 27 in its entirety; and 2 WHEREAS, on August 17, 2011,the Supreme Court modified its order to clarify that Health and Safety Code Sections 34161 through 34169.5, enacted by AB 1X 26, and Health and Safety Code Section 34194(b)(2), enacted by AB 1X 27, are not stayed ("Court's Stay"); and WHEREAS, the Agency and the City desire to enter into this Agreement, effective on the condition that the Supreme Court orders that the Court's Stay be lifted or modified in a manner that permits the Agency to enter this Agreement,to establish a yearly obligation of the Agency, beginning Fiscal Year 2011-2012,to transfer tax increment revenues to the City in an amount not to exceed the Community Remittance, on the condition that the Agency's transfer of tax increment revenues to the City and the City's payment of the Community Remittance will be made only if there is a final determination that AB 1X 26 and AB 1X 27 are constitutional and with the City adopting Ordinance No. 2286 electing to participate in the Alternative Voluntary Redevelopment Program; and WHEREAS, the City reserves the right, whether any Community Remittance has been paid, to challenge the legality of AB 1X 26 and AB 1X 27; and WHEREAS, all other legal prerequisites to the adoption of this Resolution have occurred. NOW, THEREFORE, THE ARCADIA REDEVELOPMENT AGENCY DOES HEREBY FIND, DETERMINE AND RESOLVE AS FOLLOWS: SECTION 1. The facts set forth in the recitals above are true and correct and are hereby incorporated into the Governing Board of the Agency's findings and determinations. 3 SECTION 2. Upon consideration of the facts set forth in the staff report accompanying this Resolution and other written and oral evidence presented to the Governing Board of the Agency ("Governing Board"), the Governing Board finds that the transfer of tax increment revenue from the Agency to the City for the funding of the Community Remittance payment by the City will: (1) allow the Agency to remain in existence and continue to act to accomplish the Agency's goals in the Project Area and is in the best interests of the health, safety and welfare of the City's residents; and (2) free the City from committing general fund revenues or other City assets to pay the Community Remittance for any fiscal year. SECTION 3. The Governing Board hereby conditionally approves the Agreement, in substantially the form attached hereto as Exhibit"A"and incorporated herein by reference. The Agreement shall be effective upon the Court's Stay being lifted or modified in a manner that permits the Agency to enter into the Agreement, on the condition that the Agency's transfer of tax increment revenues to the City and the City's payment of the Community Remittance will be effective only if there is a final determination that AB 1X 26 and AB 1X 27 are constitutional and with the City adopting Ordinance No. 2286 electing to participate in the Alternative Voluntary Redevelopment Program. The Governing Board authorizes and directs the Executive Director to execute the Agreement on behalf of the Agency, subject to any minor clarifying, conforming and technical changes as may be approved by the Agency Attorney. The Executive Director is further authorized and directed to take such actions and execute such documents as may be necessary to carry out the obligations of the Agency under the Agreement. 4 SECTION 4. The Governing Board finds, under Title 14 of the California Code of Regulations, Section 15378(b)(4),that this Resolution is exempt from the requirements of the California Environmental Quality Act ("CEQA") in that it is not a "project," but instead consists of the creation and continuation of a governmental funding mechanism for potential future projects and programs, and does not commit funds to any specific project or program. The Governing Board, therefore, directs that a Notice of Exemption be filed with the County Clerk of the County of Los Angeles in accordance with CEQA Guidelines. SECTION 5. If any provision of this Resolution or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this Resolution which can be given effect without the invalid provision or application, and to this end the provisions of this Resolution are severable. The Agency hereby declares that it would have adopted this Resolution irrespective of the invalidity of any particular portion thereof. SECTION 6. This Resolution shall take effect immediately upon its adoption. SECTION 7. The Agency Secretary shall certify to the adoption of this Resolution. [SIGNATURES ON NEXT PAGE] 5 Passed, approved and adopted this 20t day of September, 2011. Agency Chairman ATTEST: Agency Secretary APPROVED AS TO FORM: Stephen P. Deitsch Agency Attorney 6 Exhibit "A" Community Remittance Funding Agreement 7 EXHIBIT "A" COMMUNITY REMITTANCE FUNDING AGREEMENT This COMMUNITY REMITTANCE FUNDING AGREEMENT ("Agreement"), is entered into as of , 2011, for reference purposes only and shall be effective only as provided for below, by and between the CITY OF ARCADIA, a California charter city and municipal corporation ("City"), and the ARCADIA REDEVELOPMENT AGENCY, a public body, corporate and politic ("Agency"). The City and the Agency are sometimes, individually, referred to in this Agreement as a "Party" or are sometimes, collectively, referred to in this Agreement as the "Parties." The Parties enter into this Agreement with reference to the following recited facts: RECITALS A. Pursuant to the Community Redevelopment Law (Health and Safety Code Sections 33000, et seq.) ("CRL"), the City Council of the City created the Agency to serve as the redevelopment agency within the City; and B. The Agency has been responsible for implementing the Redevelopment Plan for the Central Redevelopment Project covering certain properties within the City ("Project Area"); and C. As part of the 2011-2012 State budget bill, the California Legislature enacted, and the Governor signed, companion bills AB 1X 26 and AB 1X 27, requiring that each redevelopment agency be dissolved unless the community that created it enacts an ordinance committing it to making certain payments; and D. Specifically, AB 1X 26 prohibits agencies from taking numerous actions, effective immediately and purportedly retroactively, and additionally provides that agencies are deemed to be dissolved as of October 1, 2011; and E. AB 1X 27 provides that a community may participate in an "Alternative Voluntary Redevelopment Program," in order to enable a redevelopment agency within that community to remain in existence and carry out the provisions of the CRL, by enacting an ordinance agreeing to comply with Part 1.9 of Division 24 of the Health and Safety Code; and F. Participation in the Alternative Voluntary Redevelopment Program requires the City to remit specified annual amounts to the county auditor-controller ("Community Remittance"); and G. On July 19, the City Council introduced Ordinance No. 2286 agreeing to the Alternative Voluntary Redevelopment Program, on August 2nd the Council approved the Ordinance on second reading, and it became effective on September 2, 2011, although AB 1X 27 is under a temporary stay; and H. The California Director of Finance has notified the City that its Community Remittance for Fiscal Year 2011-2012 is One Million Four Hundred Seventy-One Thousand Fifty-Three Dollars ($1,471,053); and I. California Health and Safety Code Section 34194.2, enacted by AB 1X 27, provides that the City may enter into an agreement with the Agency, whereby the Agency will transfer a portion of the taxes allocated to it pursuant to Health and Safety Code Section 33670 ("Tax Increment") to the City in a particular fiscal year, in an amount not to exceed the amount of the Community Remittance for such fiscal year, for the purpose of financing activities within the Project Area related to the Agency's goals; and J. A Petition for Writ of Mandate was filed in the Supreme Court of the State of California on July 18, 2011 (California Redevelopment Association, et al. v. Ana Matosantos, et al., Case No. 5194861), challenging the constitutionality of AB 1X 26 and AB 1X 27 on behalf of cities, counties and redevelopment agencies and requesting a stay of enforcement; and K. On August 11, 2011, the Supreme Court agreed to take the case and issued an order for the immediate stay of enforcement of AB 1X 26 in part and AB 1X 27 in its entirety; and L. On August 17, 2011, the Supreme Court modified its stay to clarify that Health and Safety Code Sections 34161 through 34169.5, enacted by AB 1X 26, and Health and Safety Code Section 34194(b)(2), enacted by AB 1X 27, are not stayed ("Court's Stay"); and M. The Parties desire to enter into this Agreement, with the effectiveness of this Agreement conditioned on the Supreme Court ordering that the Court's Stay be lifted or modified in a manner that permits the Agency and the City to enter into this Agreement, the purpose of which is to establish a yearly obligation of the Agency to transfer Tax Increment to the City and the City to pay the Community Remittance only if there is a final determination that AB 1X 26 and AB 1X 27 are constitutional; and N. The City reserves the right, whether any Community Remittance has been paid, to challenge the legality of AB 1X 26 and AB 1X 27. AGREEMENT NOW, THEREFORE, in consideration of the promises of the City and the Agency contained in this Agreement and other good and valuable consideration, the City and the Agency agree as follows: 1. Incorporation of Recitals. The Recitals of fact set forth preceding this Agreement are true and correct and are incorporated into this Agreement in their entirety by this reference. 2 2. Conditional Transfer of Tax Increment to City. On the condition that a final determination is made that AB 1X 26 and AB 1X 27 are constitutional, Agency hereby agrees to transfer to City, throughout the term of this Agreement, out of Tax Increment or any other available funds, an amount equal to the amount of the Community Remittance for each fiscal year, as determined under Health and Safety Code Section 34194, beginning with Fiscal Year 2011-2012. No later than January 10 and May 10 of each fiscal year, Agency shall transfer to City one-half of the Community Remittance payment specified for such fiscal year, as determined pursuant to Health and Safety Code Section 34194 in order that City may timely make the Community Remittance payments. However, for Fiscal Year 2011-2012, the Agency shall transfer to the City the amount(s) of the Community Remittance payment(s) required for that fiscal year prior to the date(s) on which the City is required to make such payment(s), if a final determination is made that AB 1X 26 and AB 1X 27 are constitutional. The City and Agency agree that if Agency does not have sufficient Tax Increment available to make the full Community Remittance payment in any fiscal year, City shall have no obligation to use City funds for such purpose, in which case the Agency may be deemed to be dissolved under Health and Safety Code Section 34195. 3. City Payment of Community Remittance Each Fiscal Year. Subject to the timely receipt of Tax Increment or other funds from the Agency in an amount equal to the amount of the Community Remittance, the City shall pay to the Los Angeles County Auditor-Controller, no later than January 15 and May 15 of each year, one-half of the Community Remittance amount due for such fiscal year while this Agreement is in effect, except for Fiscal Year 2011-2012, when the City shall make the required payment(s) no later than the date(s) required for the Community Remittance to be made. The City's obligation to make such Community Remittance payments shall be a special limited fund obligation of the City payable solely from Tax Increment or other funds paid to the City by the Agency pursuant to this Agreement. Nothing contained in this Agreement is intended to nor shall be deemed to be a pledge of the City's general fund revenues or other City assets to pay the Community Remittance for any fiscal year. Notwithstanding the foregoing, City shall have no obligation to make the Community Remittance payment until a final determination is made that AB 1X 26 and AB 1X 27 are constitutional and the City has adopted an ordinance electing to participate in the Alternative Voluntary Redevelopment Program. 4. Effectiveness. This Agreement shall not be effective unless and until the California Supreme Court orders that the Court's Stay be lifted or modified in a manner that permits the Agency to enter into this Agreement. This Agreement shall be deemed null and void if AB 1X 26 and AB 1X 27 are determined by a court of competent jurisdiction to be unconstitutional, illegal, invalid or otherwise unenforceable or inapplicable, for any reason or in any manner. Notwithstanding the foregoing or any other provision of this Agreement, either the City or the Agency may terminate this Agreement at any time, for any reason or no reason. 3 5. General Provisions. 5.1 Notices, Demands and Communications Between the Parties. Any and all notices submitted by either Party to the other Party pursuant to or as required by this Agreement shall be proper, if in writing and transmitted to the address of the City or the Agency, as applicable, set forth below in this Section 5.1, by one or more of the following methods: (1) messenger for immediate personal delivery; (2) a nationally recognized overnight (one business day) delivery service (i.e., Federal Express, United Parcel Service, etc.); or (3) registered or certified United States mail, postage prepaid, return receipt requested. Such notices may be sent in the same manner to such other addresses as either Party may designate, from time to time, by notice. Any notice shall be deemed to be received by the addressee, regardless of whether or when any return receipt is received by the sender or the date set forth on such return receipt, on the day that the notice is delivered by personal delivery, on the date of delivery by a nationally recognized overnight courier service (or when delivery has been attempted twice, as evidenced by the written report of the courier service) or four (4) calendar days after the notice is deposited with the United States Postal Service for delivery, as provided in this Section 5.1. Rejection, other than refusal to accept or the inability to deliver a notice because of a changed address of which no notice was given or other action by a person to whom notice is sent, shall be deemed receipt of the notice. The following are the authorized addresses for the submission of notices to the Parties, as of the date of this Agreement: To City: City of Arcadia 240 W. Huntington Drive P.O. Box 60021 Arcadia, CA 91066 Attn: City Manager To Agency: Arcadia Redevelopment Agency 240 W. Huntington Drive P.O. Box 60021 Arcadia, CA 91066 Attn: Executive Director 5.2 Calculation of Time Periods. Unless otherwise specified, all references to time periods in this Agreement measured in days shall be to consecutive calendar days, all references to time periods in this Agreement measured in months shall be to consecutive calendar months and all references to time periods in this Agreement measured in years shall be to consecutive calendar years. 5.3 Principles of Interpretation. No inference in favor of or against any Party shall be drawn from the fact that such Party has drafted any part of this Agreement. The Parties have both participated substantially in the negotiation, drafting, and revision of this Agreement, with advice from legal and other counsel and advisers of their own selection. A word, term or phrase defined in the singular in this Agreement may be used in the plural, and vice versa, all in accordance with ordinary principles of English 4 grammar, which shall govern all language in this Agreement. The words "include" and "including" in this Agreement shall be construed to be followed by the words: "without limitation." Each collective noun in this Agreement shall be interpreted as if followed by the words "(or any part of it)," except where the context clearly requires otherwise. Every reference to any document, including this Agreement, refers to such document, as modified from time to time (excepting any modification that violates this Agreement), and includes all exhibits, schedules, addenda and riders to such document. The word "or" in this Agreement includes the word "and." Every reference to a law, statute, regulation, order, form or similar governmental requirement refers to each such requirement as amended, modified, renumbered, superseded or succeeded, from time to time. 5.4 Governing Law. The substantive and procedural laws of the State of California shall govern the interpretation and enforcement of this Agreement, without application of conflicts or choice of laws principles. 5.5 Binding on Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective legal representatives, successors and assigns. 5.6 No Third-Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to confer any rights or remedies under or by reason of this Agreement on any person other than the Parties and their respective permitted successors and assigns, nor is anything in this Agreement intended to relieve or discharge any obligation of any third person to any Party or give any third person any right of subrogation or action over or against any Party. 5.7 Signature in Counterparts. This Agreement may be signed by the authorized representatives of the Parties in multiple counterpart originals, each of which shall be deemed to be an original, but all of which together shall constitute one and the same document. 5.8 Entire Agreement. This Agreement constitutes the entire understanding and Agreement of the Parties regarding the subjects addressed in this Agreement. This Agreement integrates all of the terms and conditions mentioned in this Agreement or incidental to this Agreement, and supersedes all negotiations or previous agreements between the Parties with respect to the subjects addressed in this Agreement. 5.9 Time Declared to be of the Essence. As to the performance of any obligation under this Agreement of which time is a component, the performance of such obligation within the time specified is of the essence. [Signatures on the following page] 5 SIGNATURE PAGE TO COMMUNITY REMITTANCE FUNDING AGREEMENT CITY OF ARCADIA, a California charter ARCADIA REDEVELOPMENT AGENCY, city and municipal corporation a public body, corporate and politic By: By: Donald Penman, City Manager Donald Penman, Executive Director ATTEST: ATTEST: By: By: City Clerk Agency Secretary APPROVED AS TO FORM: APPROVED AS TO FORM: By: By: Stephen P. Deitsch Stephen P. Deitsch City Attorney Agency Counsel 6 Conditional Community Remittance Funding Agreement COMMUNITY REMITTANCE FUNDING AGREEMENT This COMMUNITY REMITTANCE FUNDING AGREEMENT ("Agreement"), is entered into as of , 2011, for reference purposes only and shall be effective only as provided for below, by and between the CITY OF ARCADIA, a California charter city and municipal corporation ("City"), and the ARCADIA REDEVELOPMENT AGENCY, a public body, corporate and politic ("Agency"). The City and the Agency are sometimes, individually, referred to in this Agreement as a "Party" or are sometimes, collectively, referred to in this Agreement as the "Parties." The Parties enter into this Agreement with reference to the following recited facts: RECITALS A. Pursuant to the Community Redevelopment Law (Health and Safety Code Sections 33000, et seq.) ("CRL"), the City Council of the City created the Agency to serve as the redevelopment agency within the City; and B. The Agency has been responsible for implementing the Redevelopment Plan for the Central Redevelopment Project covering certain properties within the City ("Project Area"); and C. As part of the 2011-2012 State budget bill, the California Legislature enacted, and the Governor signed, companion bills AB 1X 26 and AB 1X 27, requiring that each redevelopment agency be dissolved unless the community that created it enacts an ordinance committing it to making certain payments; and D. Specifically, AB 1X 26 prohibits agencies from taking numerous actions, effective immediately and purportedly retroactively, and additionally provides that agencies are deemed to be dissolved as of October 1, 2011; and E. AB 1X 27 provides that a community may participate in an "Alternative Voluntary Redevelopment Program," in order to enable a redevelopment agency within that community to remain in existence and carry out the provisions of the CRL, by enacting an ordinance agreeing to comply with Part 1.9 of Division 24 of the Health and Safety Code; and F. Participation in the Alternative Voluntary Redevelopment Program requires the City to remit specified annual amounts to the county auditor-controller ("Community Remittance"); and G. On July 19, the City Council introduced Ordinance No. 2286 agreeing to the Alternative Voluntary Redevelopment Program, on August 2"d the Council approved the Ordinance on second reading, and it became effective on September 2, 2011, although AB 1X 27 is under a temporary stay; and H. The California Director of Finance has notified the City that its Community Remittance for Fiscal Year 2011-2012 is One Million Four Hundred Seventy-One Thousand Fifty-Three Dollars ($1,471,053); and 17705.00000\6875039.1 f I. California Health and Safety Code Section 34194.2, enacted by AB 1 X 27, provides that the City may enter into an agreement with the Agency, whereby the Agency will transfer a portion of the taxes allocated to it pursuant to Health and Safety Code Section 33670 ("Tax Increment") to the City in a particular fiscal year, in an amount not to exceed the amount of the Community Remittance for such fiscal year, for the purpose of financing activities within the Project Area related to the Agency's goals; and J. A Petition for Writ of Mandate was filed in the Supreme Court of the State of California on July 18, 2011 (California Redevelopment Association, et al. v. Ana Matosantos, et al., Case No. 5194861), challenging the constitutionality of AB 1X 26 and AB 1 X 27 on behalf of cities, counties and redevelopment agencies and requesting a stay of enforcement; and K. On August 11, 2011, the Supreme Court agreed to take the case and issued an order for the immediate stay of enforcement of AB 1X 26 in part and AB 1 X 27 in its entirety; and L. On August 17, 2011, the Supreme Court modified its stay to clarify that Health and Safety Code Sections 34161 through 34169.5, enacted by AB 1 X 26, and Health and Safety Code Section 34194(b)(2), enacted by AB 1X 27, are not stayed ("Court's Stay"); and M. The Parties desire to enter into this Agreement, with the effectiveness of this Agreement conditioned on the Supreme Court ordering that the Court's Stay be lifted or modified in a manner that permits the Agency and the City to enter into this Agreement, the purpose of which is to establish a yearly obligation of the Agency to transfer Tax Increment to the City and the City to pay the Community Remittance only if there is a final determination that AB 1X 26 and AB 1X 27 are constitutional; and N. The City reserves the right, whether any Community Remittance has been paid, to challenge the legality of AB 1X 26 and AB 1X 27. AGREEMENT NOW, THEREFORE, in consideration of the promises of the City and the Agency contained in this Agreement and other good and valuable consideration, the City and the Agency agree as follows: 1. Incorporation of Recitals. The Recitals of fact set forth preceding this Agreement are true and correct and are incorporated into this Agreement in their entirety by this reference. 2. Conditional Transfer of Tax Increment to City. On the condition that a final determination is made that AB 1X 26 and AB 1X 27 are constitutional, Agency hereby agrees to transfer to City, throughout the term of this Agreement, out of Tax Increment or any other available funds, an amount equal to the amount of the Community Remittance for each fiscal year, as determined under Health and Safety Code Section 34194, beginning with Fiscal Year 2011-2012. No later than January 10 and May 10 of each fiscal year, Agency shall transfer to City one-half of the Community Remittance payment specified for such fiscal year, as determined pursuant to Health and Safety Code Section 34194 in order that City may timely make the Community Remittance payments. However, for Fiscal Year 2011-2012, the Agency 17705.00000\6875039.1 2 shall transfer to the City the amount(s) of the Community Remittance payment(s) required for that fiscal year prior to the date(s) on which the City is required to make such payment(s), if a final determination is made that AB 1X 26 and AB I X 27 are constitutional. The City and Agency agree that if Agency does not have sufficient Tax Increment available to make the full Community Remittance payment in any fiscal year, City shall have no obligation to use City funds for such purpose, in which case the Agency may be deemed to be dissolved under Health and Safety Code Section 34195. 3. City Payment of Community Remittance Each Fiscal Year. Subject to the timely receipt of Tax Increment or other funds from the Agency in an amount equal to the amount of the Community Remittance, the City shall pay to the Los Angeles County Auditor-Controller, no later than January 15 and May 15 of each year, one-half of the Community Remittance amount due for such fiscal year while this Agreement is in effect, except for Fiscal Year 2011-2012, when the City shall make the required payment(s) no later than the date(s) required for the Community Remittance to be made. The City's obligation to make such Community Remittance payments shall be a special limited fund obligation of the City payable solely from Tax Increment or other funds paid to the City by the Agency pursuant to this Agreement. Nothing contained in this Agreement is intended to nor shall be deemed to be a pledge of the City's general fund revenues or other City assets to pay the Community Remittance for any fiscal year. Notwithstanding the foregoing, City shall have no obligation to make the Community Remittance payment until a final determination is made that AB 1X 26 and AB 1X 27 are constitutional and the City has adopted an ordinance electing to participate in the Alternative Voluntary Redevelopment Program. 4. Effectiveness. This Agreement shall not be effective unless and until the California Supreme Court orders that the Court's Stay be lifted or modified in a manner that permits the Agency to enter into this Agreement. This Agreement shall be deemed null and void if AB 1X 26 and AB 1X 27 are determined by a court of competent jurisdiction to be unconstitutional, illegal, invalid or otherwise unenforceable or inapplicable, for any reason or in any manner. Notwithstanding the foregoing or any other provision of this Agreement, either the City or the Agency may terminate this Agreement at any time, for any reason or no reason. 5. General Provisions. 5.1 Notices, Demands and Communications Between the Parties. Any and all notices submitted by either Party to the other Party pursuant to or as required by this Agreement shall be proper, if in writing and transmitted to the address of the City or the Agency, as applicable, set forth below in this Section 5.1, by one or more of the following methods: (1) messenger for immediate personal delivery; (2) a nationally recognized overnight (one business day) delivery service (i.e., Federal Express, United Parcel Service, etc.); or (3) registered or certified United States mail, postage prepaid, return receipt requested. Such notices may be sent in the same manner to such other addresses as either Party may designate, from time to time, by notice. Any notice shall be deemed to be received by the addressee, regardless of whether or when any return receipt is received by the sender or the date set forth on such return receipt, on the day that the notice is delivered by personal delivery, on the date of delivery by a nationally recognized overnight courier service (or when delivery has been attempted twice, as evidenced by the written report of the courier service) or four (4) calendar days after the notice is deposited with 17705.00000\6875039.1 3 the United States Postal Service for delivery, as provided in this Section 5.1. Rejection, other than refusal to accept or the inability to deliver a notice because of a changed address of which no notice was given or other action by a person to whom notice is sent, shall be deemed receipt of the notice. The following are the authorized addresses for the submission of notices to the Parties, as of the date of this Agreement: To City: City of Arcadia 240 W. Huntington Drive P.O. Box 60021 Arcadia, CA 91066 Attn: City Manager To Agency: Arcadia Redevelopment Agency 240 W. Huntington Drive P.O. Box 60021 Arcadia, CA 91066 Attn: Executive Director 5.2 Calculation of Time Periods. Unless otherwise specified, all references to time periods in this Agreement measured in days shall be to consecutive calendar days, all references to time periods in this Agreement measured in months shall be to consecutive calendar months and all references to time periods in this Agreement measured in years shall be to consecutive calendar years. 5.3 Principles of Interpretation. No inference in favor of or against any Party shall be drawn from the fact that such Party has drafted any part of this Agreement. The Parties have both participated substantially in the negotiation, drafting, and revision of this Agreement, with advice from legal and other counsel and advisers of their own selection. A word, term or phrase defined in the singular in this Agreement may be used in the plural, and vice versa, all in accordance with ordinary principles of English grammar, which shall govern all language in this Agreement. The words "include" and "including" in this Agreement shall be construed to be followed by the words: "without limitation." Each collective noun in this Agreement shall be interpreted as if followed by the words "(or any part of it)," except where the context clearly requires otherwise. Every reference to any document, including this Agreement, refers to such document, as modified from time to time (excepting any modification that violates this Agreement), and includes all exhibits, schedules, addenda and riders to such document. The word "or" in this Agreement includes the word "and." Every reference to a law, statute, regulation, order, form or similar governmental requirement refers to each such requirement as amended, modified, renumbered, superseded or succeeded, from time to time. 5.4 Governing Law. The substantive and procedural laws of the State of California shall govern the interpretation and enforcement of this Agreement, without application of conflicts or choice of laws principles. 17705.00000\6875039.1 4 5.5 Binding on Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective legal representatives, successors and assigns. 5.6 No Third-Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to confer any rights or remedies under or by reason of this Agreement on any person other than the Parties and their respective permitted successors and assigns, nor is anything in this Agreement intended to relieve or discharge any obligation of any third person to any Party or give any third person any right of subrogation or action over or against any Party. 5.7 Signature in Counterparts. This Agreement may be signed by the authorized representatives of the Parties in multiple counterpart originals, each of which shall be deemed to be an original, but all of which together shall constitute one and the same document. 5.8 Entire Agreement. This Agreement constitutes the entire understanding and Agreement of the Parties regarding the subjects addressed in this Agreement. This Agreement integrates all of the terms and conditions mentioned in this Agreement or incidental to this Agreement, and supersedes all negotiations or previous agreements between the Parties with respect to the subjects addressed in this Agreement. 5.9 Time Declared to be of the Essence. As to the performance of any obligation under this Agreement of which time is a component, the performance of such obligation within the time specified is of the essence. [Signatures on the following page] • 17705.00000\6875039.1 5 SIGNATURE PAGE TO COMMUNITY REMITTANCE FUNDING AGREEMENT CITY OF ARCADIA, a California charter ARCADIA REDEVELOPMENT AGENCY, city and municipal corporation a public body, corporate and politic By: By: Don Penman, City Manager Don Penman, Executive Director ATTEST: ATTEST: By: By: City Clerk Agency Secretary APPROVED AS TO FORM: APPROVED AS TO FORM: By: By: City Attorney Agency Counsel 17705.00000\6875039.1 6 Agency Resolution No. ARA 249 RESOLUTION NO. ARA-249 A RESOLUTION OF THE ARCADIA REDEVELOPMENT AGENCY CONDITIONALLY REDUCING ITS ALLOCATION TO THE LOW AND MODERATE INCOME HOUSING FUND FOR FISCAL YEAR 2011-12 AND MAKING CERTAIN FINDINGS AND DETERMINATIONS WHEREAS, pursuant to the Community Redevelopment Law (Health and Safety Code sections 33000 et seq.), the City Council of the City of Arcadia ("City") created the Arcadia Redevelopment Agency ("Agency")to serve as the redevelopment agency within the City; and WHEREAS,the Agency has been responsible for implementing the Redevelopment Plan for the Central Redevelopment Project covering certain properties within the City ("Project Area"); and WHEREAS, Health and Safety Code Sections 33334.2 and 33334.3 require every redevelopment agency to deposit 20 percent of taxes allocated to the agency pursuant to Health and Safety Code Section 33670 ("Tax Increment") in a Low and Moderate Income Housing Fund ("Housing Fund") for the purpose of increasing, improving and preserving the community's supply of low and moderate income housing; and WHEREAS, as part of the 2011-2012 State budget bill, the California Legislature enacted, and the Governor signed, companion bills AB 1X 26 and AB 1X 27, requiring that each redevelopment agency be dissolved unless the community that created it enacts an ordinance committing it to making certain payments; and 1 WHEREAS, specifically,AB 1X 26 prohibits agencies from taking numerous actions, effective immediately and purportedly retroactively,and additionally provides that agencies are deemed to be dissolved as of October 1, 2011; and WHEREAS, AB 1X 27 provides that a community may participate in an "Alternative Voluntary Redevelopment Program,"in order to enable a redevelopment agency within that community to remain in existence and carry out the provisions of the CRL, by enacting an ordinance agreeing to comply with Part 1.9 of Division 24 of the Health and Safety Code; and WHEREAS, participation in the Alternative Voluntary Redevelopment Program requires the City to remit specified annual amounts to the county auditor-controller ("Community Remittance"); and WHEREAS, the California Director of Finance has notified the City that its Community Remittance for Fiscal Year 2011-2012 is One Million Four Hundred Seventy- One Thousand Fifty-Three Dollars ($1,471,053); and WHEREAS, a Petition for Writ of Mandate was filed in the Supreme Court of the State of California on July 18, 2011 (California Redevelopment Association, et al. v. Ana Matosantos, et al., Case No. 5194861), challenging the constitutionality of AB 1X 26 and AB 1X 27 on behalf of cities, counties and redevelopment agencies and requesting a stay of enforcement; and WHEREAS, on August 11, 2011, the Supreme Court agreed to take the case and issued an order for the immediate stay of enforcement of AB 1X 26 in part and AB 1X 27 in its entirety; and 2 WHEREAS, on August 17, 2011,the Supreme Court modified its order to clarify that Health and Safety Code Sections 34161 through 34169.5, enacted by AB 1X 26, and Health and Safety Code Section 34194(b)(2), enacted by AB 1X 27, are not stayed ("Court's Stay"); and WHEREAS, the City and the Agency conditionally entered into that certain Community Remittance Funding Agreement, dated as of September 20, 2011 ("Funding Agreement"), pursuant to Health and Safety Code Section 34194.2, as enacted by AB 1X 27, whereby the Agency agreed to transfer a portion of its annual Tax Increment each fiscal year to the City, in an amount not to exceed the amount of the City's Community Remittance payable for such fiscal year, beginning with Fiscal Year 2011-12; and WHEREAS, because Health and Safety Code Section 34194.2 is stayed by the Court's Stay, the Funding Agreement is only effective on the condition that the Supreme Court orders that the Court's Stay be lifted or modified in a manner that permits the Agency to enter into the Funding Agreement to establish a yearly obligation of the Agency to transfer Tax Increment to the City on the condition that the Agency's transfer of Tax Increment and the City's payment of the Community Remittance will be made only if there is a final determination that AB 1X 26 and AB 1X 27 are constitutional and with the City adopting Ordinance No. 2286 electing to participate in the Alternative Voluntary Redevelopment Program; and WHEREAS, for Fiscal Year 2011-12, Health and Safety Code Section 34194.3, as enacted by AB 1X 27, authorizes a redevelopment agency to be exempt from making the full allocation required to be made to the agency's Housing Fund, if the agency finds that 3 there are insufficient other moneys to meet the agency's debt and other obligations,current priority program needs,or the agency's obligations under Health and Safety Code Section 34194.2; and WHEREAS, because Health and Safety Code Section 34914.3 is also stayed by the Court's Stay, the Agency desires to make the findings required in Health and Safety Code Section 34194.3 and reduce its allocation of Tax Increment to the Housing Fund for Fiscal Year 2011-12 on the following conditions: (1) the Court's Stay is lifted or modified in a manner that permits the City and the Agency to enter into the Funding Agreement; (2) a final determination is made that AB 1X 26 and AB 1X 27 are constitutional so that the Agency's transfer of Tax Increment to the City and the City's payment of the Community Remittance can be made; and (3) with the City adopting Ordinance No. 2286 electing to participate in the Alternative Voluntary Redevelopment Program; and WHEREAS, all other legal prerequisites to the adoption of this Resolution have occurred. NOW, THEREFORE, THE ARCADIA REDEVELOPMENT AGENCY DOES HEREBY FIND, DETERMINE AND RESOLVE AS FOLLOWS: SECTION 1. The facts set forth in the recitals above are true and correct and are incorporated into the Governing Board of the Agency's findings and determinations. SECTION 2. Upon consideration of the facts set forth in the staff report accompanying this Resolution and other written and oral evidence presented to the Agency's Governing Board ("Governing Board"), the Governing Board finds that there are insufficient other moneys to meet the Agency's debt and other obligations, current priority 4 program needs, and the Agency's obligations under the Funding Agreement, unless it is able to use the Tax Increment that would otherwise be allocated to the Agency's Housing Fund for Fiscal Year 2011-2012. The Governing Board hereby determines that it is necessary to reduce its allocation of Tax Increment to the Housing Fund for Fiscal Year 2011-12 by One Million Fourteen Thousand Nine Hundred Sixty Dollars($1,014,960)] [one hundred percent (100%)] (the "Housing Allocation Reduction"). SECTION 3. The Governing Board hereby authorizes the Agency Executive Director, or designee,to take such actions as are necessary and appropriate to implement the Housing Allocation Reduction for Fiscal Year 2011-12. SECTION 4. This Resolution shall become effective only upon the occurrence of the following conditions: (1)the Court's Stay is lifted or modified in a manner that permits the Agency and the City to enter into the Funding Agreement; (2)a final determination is made that AB 1X 26 and AB 1X 27 are constitutional so that the Agency's transfer of Tax Increment to the City and the City's payment of the Community Remittance can be made; and (3)with the City adopting Ordinance No. 2286 electing to participate in the Alternative Voluntary Redevelopment Program. SECTION 5. If any provision of this Resolution or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this Resolution which can be given effect without the invalid provision or application, and to this end the provisions of this Resolution are severable. The Agency hereby declares that it would have adopted this Resolution irrespective of the invalidity of any particular portion thereof. 5 SECTION 6. This Resolution shall take effect immediately upon its adoption. SECTION 7. The Agency Secretary shall certify to the adoption of this Resolution. Passed, approved and adopted this 20Th day of September, 2011. Agency Chairman ATTEST: Agency Secretary APPROVED AS TO FORM: Stephen P. Deitsch Agency Attorney 6