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CIC Resolution 91-52COMMUNITY IMPROVEMENT COMMISSION OF THE CITY OF ALAMEDA RESOLUTION NO. 91-52 APPROVING AN AGREEMENT BETWEEN THE COMMUNITY IMPROVEMENT COMMISSION AND EAST BAY REGIONAL PARK DISTRICT PURSUANT TO HEALTH AND SAFETY CODE SECTION 33401 WHEREAS, the Community Improvement Commission of the City of Alameda (the "CIC") is in the process of preparing a Community Improvement Plan (the "Plan") for the Business and Waterfront Improvement Project (the "Project"); and WHEREAS, East Bay Regional Park District (the "District") is a taxing agency with territory located within the boundaries of the Project (the "Project Area"); and WHEREAS, pursuant to Article XVI, Section 16, of the California Constitution, Section 33670 et sea. of the Health and j Safety Code and the Plan for the-PrOj'ect, increases in the assessed -o 0 values of the property within the Project Area above the sum of the - < assessed values as shown on the 1990-91 assessment roll (the "Base Year Roll") will result in that portion of property taxes levied >" — . al each year on such increases in assessed values being paid to the vi CIC as tax increments (and not including any amounts paid to -c- -+ affected taxing entities pursuant to Section 33676 of the Health 0 and Safety Codes ("tax increments") to pay the principal of and ,- < interest on loans, monies advanced to or indebtedness incurred by , ‘ the CIC to finance or refinance, in whole or in part, redevelopment in accordance with the Plan; and - ro r. WHEREAS, Section 33401 of the Health and Safety Code authorizes the CIC to pay affected taxing entities any amounts of money which the CIC has found are necessary and appropriate to alleviate any financial burden or detriment caused to any affected taxing entity by a redevelopment project; and WHEREAS, the CIC and the District desire to enter into an agreement to authorize certain payments by the CIC to the District of a portion in the CIC's tax increments which is necessary and appropriate in order to alleviate the financial burden or detriment that is caused to the District by the Project; NOW, THEREFORE, THE COMMUNITY IMPROVEMENT COMMISSION OF THE CITY OF ALAMEDA DOES HEREBY RESOLVE AS FOLLOWS: Section 1. The CIC hereby finds and determines that adoption of the Plan will cause a financial burden or detriment to the District. This finding is based on the face that the District will incur a loss in property taxes as a result of the Plan. Section 2. The CIC hereby finds and determines that the payments to the District, as set forth in the Agreement between the CIC and the District pursuant to Health and Safety Code Section 33401 (the "Agreement"), a copy of which is attached hereto as Exhibit A, are necessary to alleviate such financial burden or detriment. Section 3. The CIC hereby approves the Agreement in substantially the form attached hereto as Exhibit A, and authorizes the Chairman and the Secretary of the CIC to make any necessary technical modifications that do not change the essential substance in the Agreement, and execute such Agreement on behalf of the CIC. AGREEMENT BETWEEN THE COMMUNITY IMPROVEMENT COMIviISSION OF THE CITY OF ALAMEDA AND THE EAST BAY REGIONAL PARK DISTRICT PURSUANT TO HEALTH AND SAFETY CODE SECTION 33401 THIS AGREEMENT (the "Agreement") is made and entered into this day of , 1991, by and between the COMMUNITY IMPROVEMENT COMMISSION OF THE CITY OF ALAMEDA (the "Commission ") and the EAST BAY REGIONAL PARK DISTRICT (the "District"). Recitals A. The Commission is in the process of preparing a proposed Community Improvement Plan (the "Plan ") for the Business and Waterfront Improvement Project (the `Project ") pursuant to the Community Redevelopment Law of the State of California (Health and Safety Code Section 33000 et.). B. The District is a taxing agency with territory located within the boundaries of the Project (the `Project Area "). C. If the Plan is adopted, then pursuant to Article XVI, Section 16, of the California Constitution, Section 33670 gt sec . of the Health and Safety Code and the Plan, increases in the assessed values of the property within the Project Area above the sum of the assessed values as shown on the 1990 -91 assessment roll (the `Base Year Roll ") will result in that portion of property taxes levied each year on such increases in assessed values being paid to the Commission as tax increments (but not including any amounts paid to affected taxing entities pursuant to Section 33676 of the Health and Safety Code) ( "tax increments ") to pay the principal of and interest on loans, monies advanced to or indebtedness incurred by the Commission to finance or refinance, in whole or in part, redevelopment in accordance with the Plan. D. Section 33401 of the Health and Safety Code allows the Commission to make any payments necessary to alleviate any financial burden or detriment caused to any affected taxing agency by a redevelopment project. E. A fiscal review committee was convened pursuant to Health and Safety Code Section 33353 and meetings were held that were attended by the Commission, District and other taxing agencies. EXHIBIT A ALA /33101A047ESRPD 5/23/91 F. The Commission has determined that because of the loss in property taxes the District could incur due to the Project, certain actions as set forth below are necessary to alleviate the burden and detriment or potential burden and detriment to the District. G. In consideration of this Agreement determining the obligations of the Commission, the District is foregoing the right to contest the establishment of the Plan for the Project, including, but not limited to, filing a suit, and the Commission recognizes this as good and legal consideration. tel reements THE COMMISSION AND THE DISTRICT HEREBY AGREE AS FOLLOWS: Section) For the purposes of this Agreement, the following terms shall have the following meanings: a. "Ballena Bay Point /McKay Avenue Improvements" means Phase 3 of the renovation of McKay Avenue and the development of facilities at Ballena Bay for recreational purposes, including but not limited to, street rehabilitation, utilities relocation, landscaping, cul-du -sac construction, lighting and parking improvements, and natural resource restoration. These improvements will assist in mitigating the detrimental effect of the Project upon the District by providing the improvements needed to accommodate the increased need in services. b. "District's Share" means the proportionate share of tax increments that the District would have received as property taxes from the Project Area at the time of the effective date of this Agreement, if there were no provision in the Plan for the allocation of tax increments to the Commission. c. "Net tax increments" means all tax increments the Commission receives from the Project Area less any monies required to be set aside for expenditure for low- and moderate - income housing under Section 33334.2 of the Community Redevelopment Law. Section 2. Subject to the conditions and limitations contained in Sections 3 and 5 hereof, the Commission agrees to annually pass through to the District ten percent {10 %a) of the amount of the District's Share of the Commission's net tax increments-which are payable to the Commission during each year of the Project. SectiorU. Until such time that the District's Board of Directors awards a construction contract for the Ballena Bay Point /McKay Avenue Improvements, the Commission shall retain the monies to be passed through to the District pursuant to ALA /33401ACMTEB I'D 2 3/Z191 Section 2. hereof in a special fund for the Ballene Bay Point /McKay Avenue Improvements (the "Improvement Fund "). Upon the District's Board of Directors award of the construction contract for the Ballene Bay Point / McKay Avenue Improvements, the Commission shall pay the District all the monies held in the Improvement Fund, the Commission shall close out the Improvement Fund, and the Commission shall commence passing through the monies annually to the District pursuant to Section 2 hereof. Section 4. The Commission agrees to annually pass through to the District the tax increments it receives from the increase in the rate of tax imposed for the benefit of the District to repay bonded indebtedness as a result of approval of Measure AA in the November 1988 election. Section 5. In no event shall payments under this Agreement be made to the District by the Commission which would exceed the amount, annually, that the District would have otherwise received from property taxes from the Project Area had the Plan not provided for the division of taxes pursuant to Health and Safety Code Section 33670. Section 6. The Commission agrees to make the payments due the District under Sections 2 and 4 of this Agreement within forty -five (45) days of the Commission's receipt of the tax increments. Section 7. The Commission acknowledges that in addition to the payments made by the Commission to the District under this Agreement, the District has adopted, pursuant to Health & Safety Code sections 33676(a) (1) and (2), a resolution electing to receive taxes derived from increases in the rate of tax imposed for the benefit of the District, which levy occurs after the tax year in which the ordinance adopting the Plan becomes effective, and increases in the assessed value of the taxable property in the Project Area, as the assessed value is established by the Base Year Roll, which are, or otherwise would be, calculated annually pursuant to subdivision (f) of Section 110.1 of the Revenue and Taxation Code. The District and the Commission agree that amounts received by the District pursuant to sections 33676(a)(1) and (2) are not tax increments for the purpose of this Agreement or any provision of the Community Redevelopment Law. Section 8. This Agreement shall constitute an indebtedness of the Commission incurred in carrying out the Project and a pledging of tax increments from the Project to repay such indebtedness under the provisions of Article XVI, ALA l334O1 ACM'► EBRI'D 3 5124/91 Section 16, of the California Constitution and Sections 33670 -33677 of the Health and Safety Code. Section,. The District agrees to authorize the Commission to subordinate its interest herein and to allow the Commission to pledge all or arty portion of the tax increments otherwise payable to the District under this Agreement in order to secure the repayment of Commission indebtedness incurred for the Project; provided the Commission demonstrates, to the reasonable satisfaction of the District, its ability to make payments due to the District under the terms of this Agreement. Nothing in this Agreement shall give the District the right to approve Commission indebtedness, except as the Commission may request the District to subordinate its rights to payments under this Agreement. Section 10. This Agreement shall be effective as of the date that the Ordinance enacted by the City Council of the City of Alameda adopting the Plan for the Project becomes. effective. Section 11. The District agrees not to file or engage in any litigation to directly or indirectly test or challenge the validity of the Project, the Plan, the Final Environmental Impact Report on the Plan (the "Final EIR "), the Ordinance or this Agreement; however, this Section shall not preclude the Commission from initiating a bond validation suit if it is deemed necessary by the Commission to assure adequate financing for the Project. Section 12. In the event litigation is initiated attacking the validity of the Plan, the Environmental Impact Report on the Plan, the Project or the Ordinance, the effect of this Agreement shall be suspended and the Commission shall have no obligation to make any payments to the District until a judgment becomes final upholding the validity of the Plan, the Environmental Impact Report on the Plan, the Project and the Ordinance. If a judgment becomes final which declares the Plan, the Project or the Ordinance invalid, this Agreement shall become null and void. Section 13. This Agreement shall terminate upon the earlier of the expiration or termination of the Plan or of the provisions of the Plan authorizing the allocation to the Commission of tax increments for the Project. Upon termination of this Agreement, all obligations of the Commission to make payments to the District shall cease. ALAI33:O1ACMTEBRPD 4 5/24/91. IN WITNESS WHEREOF, the Commission and the District have executed this Agreement as of the date first above written. EAST BAY REGIONAL PARK DISTRICT COMMUNITY IMPROVEMENT COMMISSION OF THE CITY OP ALAMEDA By: R ' ® =— Title: Tide: APPROVED AS TO FORM: APPROVED AS TO FORM: By Y B a By: Ate► /33401AC.MTEIIRPD 5 5/24/91 I, the undersigned, hereby certify that the foregoing Resolution was duly and regularly adopted and passed by the Community Improvement Commission of the City of Alameda in adjourned regular meeting assembled on the fourth day of June, 1991, by the following vote to wit: AYES: Commissioners Arnerich, Camicia, Roth and Chairman Withrow - 4. NOES: None. ABSENT: None. ABSTENTIONS: Commissioner Lucas - 1. IN WITNESS, WHEREOF, I have hereunto set my hand and affixed the official seal of said Commission this fifth day of June, 1991. Dian Felsch, Secretary Community Improvement Commission E. William Withrow, Jr /, Chairman Community Improvement Commission