Ordinance No. 11-2080 Redevelopment Agency "Opt In" Voluntary Alternative Redevelopment Program ORDINANCE NO. 11 -2080
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
ENACTED PURSUANT TO HEALTH AND SAFETY CODE SECTION 34193 TO
ELECT AND IMPLEMENT PARTICIPATION BY THE CITY OF CUPERTINO
AND THE CITY OF CUPERTINO REDEVELOPMENT AGENCY IN THE
VOLUNTARY ALTERNATIVE REDEVELOPMENT PROGRAM PURSUANT
TO PART 1.9 OF THE CALIFORNIA COMMUNITY REDEVELOPMENT LAW
THE CITY COUNCIL OF THE CITY OF CUPERTINO DOES ORDAIN AS
FOLLOWS:
SECTION 1. RECITALS AND BACKGROUND INFORMATION
a. Pursuant to the California Community Redevelopment Law (Health and Safety
Code Section 33000 et seg.; the "Redevelopment Law "), the City Council (the "City Council ") of
the City of Cupertino (the "City ") adopted Ordinance No. 1421 declaring the need for the City of
Cupertino Redevelopment Agency (the "Agency ") to function in the City.
b. Also in accordance with the Redevelopment Law, the City Council adopted
Ordinance No. 1850, on August 21, 2000, adopting the Redevelopment Plan For the Cupertino
Vallco Redevelopment Project Area (the "Redevelopment Plan "), and the Agency is responsible
for implementing the Redevelopment Plan pursuant to the Redevelopment Law.
c. ABx1 26 (the "Dissolution Act ") and ABx1 27 (the "Voluntary Program Act ";
and together with the Dissolution Act, the "Redevelopment Restructuring Acts ") have been
enacted to significantly modify the Redevelopment Law generally as follows:
1. The Dissolution Act immediately suspends all new redevelopment
activities and incurrence of indebtedness, and dissolves redevelopment agencies effective
October 1, 2011; and
2. The Voluntary Program Act, through the addition of Part 1.9 to the
Redevelopment Law (the "Voluntary Alternative Redevelopment Program "), allows a
redevelopment agency to avoid dissolution under the Dissolution Act by opting into an
alternative voluntary redevelopment program requiring specified annual contributions to local
school and special districts.
d. Specifically, Section 34193(a) of the Redevelopment Law (as added to the
Redevelopment Law by the Voluntary Program Act) authorizes the City Council to enact an
ordinance to comply with Part 1.9 of the Redevelopment Law, thereby exempting the Agency
from the provisions of the Dissolution Act, and enabling the Agency to continue to exist and
function under the Redevelopment Law, so long as the City and the Agency comply with the
Voluntary Alternative Redevelopment Program set forth in Part 1.9 of the Redevelopment Law.
Ordinance No. 11 -2080
e. Through the adoption and enactment of this Ordinance, it is the intent of the City
Council to enact the ordinance described in Section 34193(a) of the Redevelopment Law and to
participate for itself and on behalf of the Agency in the Voluntary Alternative Redevelopment
Program set forth in Part 1.9 of the Redevelopment Law.
f. Pursuant to Section 34193.2(b) of the Redevelopment Law, the City Council
understands that participation in the Voluntary Alternative Redevelopment Program requires
remittance of certain payments as set forth in the Voluntary Program Act (as further described
below), and also constitutes an agreement on the part of the City, in the event the City fails to
make such remittance payments, to assign its rights to any payments owed by the Agency,
including, but not limited to, payments from loan agreements, to the State of California.
g. The City Council does not intend, by enactment of this Ordinance, to waive any
rights of appeal regarding the amount of any remittance payments established by the California
Department of Finance, as provided in the Voluntary Program Act.
h. On August 11, 2011, the California Supreme Court agreed to review the
California Redevelopment Association and League of California Cities' petition challenging the
constitutionality of the Redevelopment Restructuring Acts and issued an order granting a partial
stay on specified portions of the Redevelopment Restructuring Acts, as modified on August 17,
2011 (the "Stay "), including a stay of the provisions of the Voluntary Program Act.
i. Accordingly, the City Council intends to adopt this Ordinance understanding that
it will be effective only upon the lifting of the Stay and the Court's determination that the
Voluntary Program Act is constitutional.
SECTION 2. ENACTMENT OF ORDINANCE PURSUANT TO REDEVELOPMENT LAW
SECTION 34193(a)
To the extent required by law to maintain the existence and powers of the Agency under the
Redevelopment Law (including the Redevelopment Restructuring Acts), the City Council hereby
enacts the ordinance authorized by Section 34193(a) of the Redevelopment Law, whereby the
City, on behalf of itself and the Agency, elects to and will comply with the provisions of Part 1.9
of the Redevelopment Law, including the making of the community remittance payments called
for in Section 34194 of the Redevelopment Law (the "Remittance Payments "), and whereby the
Agency will no longer be subject to dissolution or the other prohibitions and limitations of Parts
1.8 and 1.85 of the Redevelopment Law as added by the Dissolution Act.
SECTION 3. EFFECT OF STAY OR DETERMINATION OF INVALIDITY
The City shall not make any community remittance in the event a court of competent jurisdiction
either grants a stay on the enforcement of AB X1 26 and AB X1 27 or determines that AB X1 26
or AB X1 27 are unconstitutional and therefore invalid, and all appeals therefrom are exhausted
or unsuccessful, or time for filing an appeal therefrom are exhausted or unsuccessful, or time for
filing an appeal therefrom has lapsed. Any community remittance shall be made under protest
and without prejudice to the City's right to recover such amount and interest thereon in the event
that there is a final determination that AB X1 26 or AB X1 27 are unconstitutional.
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Ordinance No. 11 -2080
SECTION 4. ADDITIONAL UNDERSTANDINGS AND INTENT
It is the understanding and intent of the City Council that the City will enter into an agreement
with the Agency as authorized pursuant to Section 34194.2 of the Redevelopment Law, whereby
the Agency will transfer annual portions of its tax increment to the City in amounts not to exceed
the annual Remittance Payments (the "Agency Transfer Payments ") to enable the City, directly
or indirectly, to make the annual Remittance Payments. Unless otherwise specified by resolution
of the City Council, it is the City Council's intent that the City's annual Remittance Payments
shall be made exclusively from the Agency Transfer Payments or from other funds that become
available as a result of the City's receipt of the Agency Transfer Payments. The City Council
does not intend, by enactment of this Ordinance, to pledge any of its general fund revenues or
other assets to make the Remittance Payments, it being understood by the City Council that any
Remittance Payments will be funded solely from the Agency Transfer Payments and/or other
assets transferred to the City in accordance with the Voluntary Program Act.
SECTION 5. AUTHORIZATION OF IMPLEMENTING ACTIONS
The City Manager or the City Manager's designee is hereby authorized, on behalf of the City, to
take any actions necessary to implement this Ordinance and comply with the Voluntary Program
Act, including, without limitation, providing required notices to the County Auditor - Controller,
the State Controller, and the Department of Finance, entering into any agreements with the
Agency to obtain the Agency Transfer Payments, and making the Remittance Payments.
SECTION 6. CEQA
The City Council finds, under Title 14 of the California Code of Regulations, Section
15378(b)(4), that this ordinance 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 appropriate
environmental review shall be completed in accordance with CEQA prior to the commencement
of any future Agency- supported project or program. The City Council therefore directs that a
Notice of Exemption be filed with the County Clerk of the County of Santa Clara in accordance
with the CEQA guidelines.
SECTION 7. SEVERABILITY
If any section, subsection, sentence, clause or phrase of this ordinance is for any reason held to
be unconstitutional and invalid, such decision shall not affect the validity of the remaining
portion of this Ordinance. The City Council hereby declares that it would have passed this
Ordinance and every section, subsection, sentence, clause or phrase thereof, irrespective of the
fact that any one or more sections, subsections, clauses or phrases be declared unconstitutional or
invalid.
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Ordinance No. 11 -2080
SECTION 8. ENACTMENT AND EFFECTIVE DATES
This Ordinance is deemed enacted as of September 20, 2011 for purposes of Section 34193(a) of
the Redevelopment Law, and shall take effect and will be enforced thirty (30) days after its
adoption, conditioned upon the lifting of the Stay and the Court's determination that the
Voluntary Program Act is constitutional.
SECTION 9. PUBLICATION AND POSTING
The City Clerk shall certify to the passage and adoption of this Ordinance and shall give notice
of its adoption as required by law. Pursuant to Government Code Section 36933, a summary of
this Ordinance may be published and posted in lieu of publication and posting of the entire text.
INTRODUCED at a regular meeting of the Cupertino City Council the 6th day of
September 2011 and ENACTED at a regular meeting of the Cupertino City Council on the 20th
day of September 2011 by the following vote:
AYES: Wong, Santoro, Chang, Mahoney, Wang
NOES: None
ABSENT: None
ABSTAIN: None
ATTEST: APPROVED:
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Kimberly Smith Gilbert Wong �'�
City Clerk Mayor, City of Cupertino)
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STATE OF CALIFORNIA )
COUNTY OF SANTA CLARA )
CITY OF CUPERTINO )
I, KIMBERLY SMITH, City Clerk and ex- officio Clerk of the City
Council of the City of Cupertino, California, do hereby certify the attached
to be a true and correct copy of Ordinance No. 11 -2080, which was enacted
on September 20th, 2011, and that it has been published or posted pursuant
to law (G.C. 40806).
IN WITNESS WHEREOF, I have hereunto set my hand and seal this
21st day of September 2011.
KIMBERLY S H, City Clerk and Ex- officio Clerk
of the City Council of the City of Cupertino, California
ordinance certificate