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2011 02-15 CC CDC AGENDA PKT
Agenda Of The Regular Meeting — National City City Council / Community Development Commission of the City of National City Council Chambers Civic Center 1243 National City Boulevard National City, California Regular Meeting — Tuesday — February 15, 2011 — 6:00 P.M. Open To The Public Please complete a request to speak form prior to the commencement of the meeting and submit it to the City Clerk. It is the intention of your City Council and Community Development Commission (CDC) to be receptive to your concerns in this community. Your participation in local government will assure a responsible and efficient City of National City. We invite you to bring to the attention of the City Manager/Executive Director any matter that you desire the City Council or Community Development Commission Board to consider. We thank you for your presence and wish you to know that we appreciate your involvement. ROLL CALL Pledge of Allegiance to the Flag by Mayor Ron Morrison Public Oral Communications (Three -Minute Time Limit) NOTE: Pursuant to state law, items requiring Council or Community Development Commission action must be brought back on a subsequent Council or Community Development Commission Agenda unless they are of a demonstrated emergency or urgent nature. Upon request, this agenda can be made available in appropriate alternative formats to persons with a disability in compliance with the Americans with Disabilities Act. Please contact the City Clerk's Office at (619) 336-4228 to request a disability -related modification or accommodation. Notification 24-hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting. Spanish audio interpretation is provided during Council and Community Development Commission Meetings. Audio headphones are available in the lobby at the beginning of the meetings. Audio interpretacion en espanol se proporciona durante sesiones del Consejo Municipal. Los audiofonos estan disponibles en el pasillo al principio de la junta. Council Requests That All Cell Phones And Pagers Be Turned Off During City Council Meetings COPIES OF THE CITY COUNCIL OR COMMUNITY DEVELOPMENT COMMISSION MEETING AGENDAS AND MINUTES MAY BE OBTAINED THROUGH OUR WEBSITE AT www.nationalcityca.gov CITY COUNCIL/COMMUNITY DEVELOPMENT COMMISSION AGENDA 2/15/2011- Page 2 PRESENTATIONS 1. Fiscal Year 2011-2012 Community Development Block Grant (CDBG) applicant presentations. (Community Development, Housing and Grants) CITY COUNCIL CONSENT CALENDAR Consent Calendar: Consent calendar items involve matters, which are of a routine or noncontroversial nature. All consent calendar items are adopted by approval of a single motion by the City Council. Prior to such approval, any item may be removed from the consent portion of the agenda and separately considered, upon request of a Councilmember, a staff member, or a member of the public. 2. Approval of the Minutes of the Adjourned Regular City Council/Community Development Commission Meeting of January 25, 2011. (City Clerk) 3. Approval of a motion to waive reading of the text of the Ordinances considered at this meeting and provides that such Ordinances shall be introduced and/or adopted after a reading of the title only. (City Clerk) 4. Resolution of the City Council of the City of National City adopting the National City Bicycle Master Plan and authorizing submittal of the Plan to the San Diego Association of Governments for processing with the State of California. (Development Services/Engineering) 5. Resolution of the City Council of the City of National City accepting the work performed by Koch -Armstrong General Engineering, Inc. with the final amount of $1,967,988.85, ratifying the filing of the Notice of Completion with the County Recorder for the National City Marina Gateway Streetscape Project, and authorizing the release of the retention in the amount of $157,420.82. (Funded through Sewer and Tax Increment Funds) (Development Services/Engineering) CONSENT CALENDAR (Cont.) CITY COUNCIUCOMMUNITY DEVELOPMENT COMMISSION AGENDA 2/15/2011- Page 3 6. Resolution of the City Council of the City of National City approving and ratifying a Memorandum of Understanding authorizing the Police Department to participate in the San Diego County Regional Auto Theft Task Force. (Police) 7. Resolution of the City Council of the City of National City waiving the bid process and authorizing the award of $102,996 to Villa Ford for the purchase of four (4) 2011 Ford Crown Victoria police interceptors using funds from Operation Stone Garden and 2011 Citizen Option for Public Safety Program (COPS). (Police) 8. Resolution of the City Council of the City of National City authorizing the Mayor to execute a 20-year lease between the City and the Boys' and Girls' Club of Greater San Diego, Inc. for the land and building located at 1430 D Avenue. (City Attorney) 9. Resolution of the City Council of the City of National City authorizing the Mayor to execute an Amendment to the Agreement with Harris & Associates, Inc. for a not -to -exceed amount of $211,446 to provide civil engineering services for the 8th Street Safe Routes to School Project (funded by Tax Increment Fund — local grant match; facilitated by a $450,000 State Safe Routes to School Grant. (Development Services/ Engineering) **Companion Item #21** 10. Resolution of the City Council of the City of National City authorizing the City to enter into a Cooperation Agreement by and between the Community Development Commission and the City of National City for payment of certain Capital Improvement costs until June 30, 2016 and an Option Agreement regarding properties owned by the CDC and pledging security interests of the CDC and making certain findings and determinations thereto. (Tax Increment Fund and Low -Mod Housing) (Redevelopment Division) **Companion Item #22* 11. Resolution of the City Council of the City of National City authorizing the Mayor to execute a Property Management Agreement by and between the Community Development Commission and the City of National City. (Tax Increment Fund, Low -Mod Set Aside Fund). (Redevelopment Division) **Companion Item #23** CITY COUNCIUCOMMUNITY DEVELOPMENT COMMISSION AGENDA 2/15/2011- Page 4 CONSENT CALENDAR (Cont.) 12. Resolution of the City Council of the City of National City approving a Cooperation Agreement for the Westside Infill Transit Oriented Development (WI-TOD) between the Community Development Commission of the City of National City and the City of National City and making certain determinations and findings related thereto. (Low Mod Set Aside Fund). (Redevelopment Division) **Companion Item #24** 13. Resolution of the City Council of the City of National City authorizing a Cooperation Agreement (SR 54 and National City Boulevard infrastructure improvement) with the Community Development Commission of the City of National City and making certain determinations and findings related thereto. (Tax Increment Fund) (Redevelopment Division) **Companion Item #25** 14. Resolution of the City Council of the City of National City authorizing the Mayor to execute a Reimbursement Agreement by and between the City of National City and the Community Development Commission of the City of National City. (Tax Increment Fund and Low -Mod Housing Fund) (Redevelopment Division) **Companion Item #26** 15. Resolution of the City Council of the City of National City approving and adopting the FY 2010-2011 Mid Year Budget changes. (Finance) 16_ WARRANT REGISTER #28 Warrant Register #28 for the period of 01/05/11 through 01/11/11 in the amount of $2,161,020.39. (Finance) 17. WARRANT REGISTER #29 Warrant Register #29 for the period of 01/12/11 through 01/18/11 in the amount of $193,220.32. (Finance) CITY COUNCIUCOMMUNITY DEVELOPMENT COMMISSION AGENDA 2/15/2011- Page 5 ORDINANCE FOR ADOPTION 18. Ordinance of the City Council of the City of National City to approve an Amendment to the Contract between the Board of Administration California Public Employees' Retirement System and the City Council of the City of National City to provide for a 2% © 60 Full Time Benefit for Miscellaneous members. (Human Resources) NON CONSENT RESOLUTION 19. Resolution of the City Council of the City of National City approving a Conditional Use Permit for the expansion of an existing restaurant (Tita's II) and the modification of nonconforming alcohol sales at 3421 East Plaza Blvd. (Applicant: Roger Speir) (Case File 2010-29 CUP) (Development Services/Planning) NEW BUSINESS 20.. Request by Pazzo Sports to partner with the City of National City for their March 2, 2011 Soccer Match -- Xolos vs. Galaxy (with Landon Donovan and David. Beckham) at USD Torero Stadium in San Diego with no waiver of fees. The promoters are requesting the approval of sign/ad space, including electronic freeway signage, throughout National City in exchange for promoting National City during the soccer match. (Neighborhood Services). COMMUNITY DEVELOPMENT COMMISSION CONSENT CALENDAR 21.. Resolution of the Community Development Commission of the City of National City (CDC) authorizing the Chairman to approve the appropriation of $250,000 for the 8th Street (from D,to Highland Avenue) project, as a partial grant match for a $450,000 Safe Routes to School Grant. (Tax Increment Fund) (Development Services/Engineering Division) **Companion Item #9** CITY COUNCIUCOMMUNITY DEVELOPMENT COMMISSION AGENDA 2/15/2011- Page 6 CONSENT CALENDAR (Cont.) 22. Resolution of the Community Development Commission of the City of National City (CDC) authorizing the CDC to enter into a Cooperation Agreement by and between the CDC and the City of. National City for payment of certain Capital Improvement costs s until June 30, 2016 and an Option Agreementregarding properties owned by the CDC andpledging security interests of the CDC and making certain findings and determinations thereto. (Tax Increment Fund and Low -Mod Housing Fund) (Redevelopment Division) **Companion Item.#1'0** 23. Resolution of the Community Development Commission of the City of National City (CDC) authorizing the Chairman to execute a Property Management Agreement by and between the CDC and the City of National City. (Tax Increment Fund, Low -Mod Set Aside Fund) (Redevelopment Division) **Companion Item #11** 24. Resolution of the Community Development Commission of. the City of National City (CDC) approving a Cooperation Agreement .for the Westside Infili Transit Oriented Development (WI-TOD) between the Community Development Commission and the City of National City and making certain determinations and findings related thereto. (Low Mod Set Aside Fund) (Redevelopment Division) **Companion Item #12** 25. Resolution of the Community Development Commission of the City of National City (CDC) authorizing the CDC to enter into a Cooperation Agreement (SR 54 and National City Boulevard infrastructure improvement) with the City of National City and making certain determinations and findings .related thereto_ (Tax Increment Fund) (Redevelopment Division) **Companion Item #13** 26. Resolution of the Community Development Commission of the City of National City (CDC) authorizing the Chairman to execute a Reimbursement Agreement by and between the City of National City and the Community Development Commission of the City of National City. (Tax Increment Fund and, Low -Mod Housing Fund) (Redevelopment Division) **Companion Item #14** 27. Resolution of the Community Development Commission of the City of National City (CDC) approving and adopting the FY 2010-2011 Mid -Year Budget changes. (Finance) CITY COUNCIL/COMMUNITY DEVELOPMENT COMMISSION AGENDA 2/15/2011- Page 7 CONSENT CALENDAR (Cont.) 28. Authorize the reimbursement of Community Development Commission expenditures in the amount of $92,975.78 to the City of National City for the period of 01/05/11 through 01/11/11. (Finance) 29. Authorize the reimbursement of Community Development Commission expenditures in the amount of $54,373.02 to the City of National City for the period of 01/12/11 through 01/18/11. (Finance) NON CONSENT RESOLUTION 30. Resolution of the Community Development Commission of the City of National City (CDC) approving the Preliminary Report for the Amendment to the Redevelopment Plan for the National City Redevelopment Project Area and authorizing transmittal of the Preliminary Report pursuant to Health and Safety Code Sections 33333.11 (e) and 33344.5. (Redevelopment Division) STAFF REPORTS 31. CDBG Clearance of Findings from HUD. (Housing & Grants) 32. Verbal update on Blood Drive results. (Community Services) 33. Closed Session Report. (City Attorney) MAYOR AND CITY COUNCIL ADJOURNMENT Regular City Council and Community Development Commission Meeting — Tuesday — March 1, 2011 — 6:00 p.m. - Council Chambers — National City, California. CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: February 15, 2011 AGENDA ITEM NO. 1 EM TITLE: Fiscal Year 2011-2012 Community Development Block Grant (CDBG) Applicant Presentations (Community Development, Housing and Grants) PREPARED BY: Carlos Aguirre DEPARTMENTment PHONE: (619) 336-4391 APPROVED BY: EXPLANATION: The City's Housing and Grants Division received 37 applications for Fiscal Year (FY) 2011-12 Community Development Block Grant funding. Organizations and City Departments will have up to 3 minutes per application to present their proposal(s) to the City Council. The City Council will make funding recommendations immediately after the first public hearing on March 15th. The City will then hold a 30-day public review of the activities proposed for the FY 2011-12 Annual Action Plan. A second public hearing will be held on May 3rd. After consideration of public comment, the City Council will make a final determination of activities to be funded and incorporated into the City's FY 2011-12 Annual Action Plan that is submitted by May 12th to the U.S. Dept. of Housing and Urban Development for acceptance. The City has not received applications for the HOME Partnership Investments (HOME) Program to date. Applications for HOME funding are accepted by the City throughout the year. The t^mmunity Development Department is proposing a Housing Development Fund to carry the balance uncommitted HOME funds available for potential affordable housing development applications. FINANCIAL STATEMENT: ACCOUNT NO. There is no financial impact. ENVIRONMENTAL REVIEW: Not applicable to this report. ORDINANCE: INTRODUCTION: FINAL ADOPTION: APPR ED: APPROVED: Finance MIS STAFF RECOMMENDATION: Not applicable to this report. BOARD / COMMISSION RECOMMENDATION: Not applicable to this report. ATTACHMENTS: 1. FY2011-12 Annual Action Plan timeline 2. FY2011-12 Community Development Block Grant funding applications Attachment No. 1 City of National City CDBG and HOME FY 2011-2012 Action Plan Timeline November 23, 2010 (Tuesday): City Council Presentation on the HUD Consolidated Plan Priorities and Annual Action Plan Process 6:00 pm November 30, 2010 (Tuesday): FY 2011-12 CDBG/HOME Grant Funding Applications Available for Distribution City Hall Clerks Office, Finance Department Counter, and City of National City Website December 7, 2010 (Tuesday): CDBG/HOME Technical Assistance Workshop for Grant Applicants 10:00 a.m. - 12:00 p.m. MLK Center - South Mt.. Room January - March 2011 Drafting of FY 2011-12 Action Plan January 11, 2011 (Tuesday): CDBG/ HOME Application Submission Deadline Due by 2:00 p.m. at the City Clerks Office or at the Finance Department Counter February 8, 2011 (Tuesday): Distribution of CDBG/HOME Grant Application Binders to the City Council February 15, 2011 (Tuesday): CDBG/HOME Program Applicant Presentations 6:00 p.m. City Hall Council Chambers March 15, 2011 (Tuesday): City Council Public Hearing No. 1- Applicant Grant Funding Recommendations (Decision Making Meeting) 6:00 p.m. City Hall Council Chambers March 28, 2011 to April 27, 2011 Mandatory 30-Day Public Review FY 2011-12 Action Plan May 3, 2011 (Tuesday): City Council Final Public Hearing No. 2 - Approval of the FY 2011-12 Action Plan 6:00 p.m. City Hall Council Chambers May 12, 2011 (Thursday): Submission of the FY 2011-12 Action Plan to HUD 2/2/2011 Attachment #2 FY 2011-2012 National City CDBG and HOME Applications omr. ,, e� ] i45� ���.".i`..w� -�.3h #k� �Yw NHYgKt9 SRia�, "sue m ..S..L.rv.� ssi 1E> F `k.-.','5 .t 33Ev. .sW ���`� f $ 20,000.00 %�33 3 �P �� _ $ 20,000.00 1 City of National City Community Services Department At Risk Youth Afterschool Teen Program "Supreme Teens" 2 Community Youth Athletic Center Champs For Life Youth Diversion Program $ 62,000.00 $ 21,000.00 3 City of National City Community Services Department/Nutrition George H. Waters Senior Nutrition Program, The $ 167,000.00 none provided 4 Junior Achievement of San Diego County, Inc. Junior Achievement - Financial Education programs "Preparing Students for a Financially Stable Future" $ 26,000.00 $ 26,000.00 5 City of National City Community Services Department Learn to Swim $ 32,856.00 $ 32,856.00 6 Meals -on -Wheels Greater San Diego, Inc. Meals -on -Wheels National City $ 10,000.00 $ 10,000.D0 7 South Bay Community Services National City Police Department Support Services: Juvenile Diversion $ 20,000.00 $ 20,000.00 8 City of National City Public Library National City Public Library Literacy Services $ 52,000.00 $ 52,000.00 9 City of National City Neighborhood Services Department National City Tool Lending Program $ 12,000.00 $ 12,000.00 10 PASACAT, Inc. Phillippines Through Music and Dance, The $ 15,000.00 $ 15,000.00 11 Community Food Bank of National City Project Hunger/ Independence $ 35,000.00 $ 25,000.00 12 City of National City Fire Department Public Access Defibrillator (PAD) Program $ 47,365.45 $ 47,365.45 13 Burn Institute Senior Fire & Burn Prevention Education / Senior Smoke Alarm Program $ 13,973.00 $ 13,973.00 14 City of National City Community Services Department Tiny Tots $ 29,337.00 $ 29,337.00 15 Trauma Intervention Programs of San Diego County, Inc. Trauma Intervention Program $ 8,000.00 $ 8,000.00 - tlequests , $' 550,531.45 $ ' 332,531°j4,5 ot�f,Pubhc,'Servlce Ag- Code Enforcement $ 205,010.00 $ 160,070.00 16 City of National City- Community Development Department National City Housing Inspection Program $ 151,570.00 $ 151,570.00 17 City of National City Neighborhood Neighborhood Preservation $ 53,440.00 $ 8,500.00 Economic Development $ 35,000.00 $ 35,000.00 18 Southwestern Community College District (SCCD) Small Business Development & International Trade Center (SBDITC) National City Economic Development Funds Program $ 35,000.00 none provided Housing Rehabilitation $ 210,027.00 $ 105,027.00 19 Environmental Health Coalition Making National City's "Healthy Homes" Energy Efficient Round II $ 180,027.00 $ 80,027.00 20 Christmas in July * National City Minor Home Repair Program $ 30,000.00 $ 25,000.00 Interim Assistance $ 100,000.00 $ 45,000.00 21 Christmas in July * National City City Wide Clean Up $ 30,000.00 $ 25,000.00 22 City of National City Neighborhood Services Department "D" Avenue Clean Up $ 70,000.00 $ 20,000.00 Attiithmunt`:#2 -. Public Facility Improvements $ 503,142.75 $ 454,003.75 23 24 25 City of National City- Community Services Department Episcopal Community Services City of National City - Public Works Department Camacho Recreation Center Revitalization ECS Head Start - Plaza Center Exercise Stations at Kimball Park for a Healthier National City $ 109,800.00 $ 250,327.00 $ 36,000.00 $ 92,400.00 $ 250,327.00 $ 36,000.00 26 La Maestra Family Clinic, Inc. La Maestra Dental Clinic, National City $ 24,458.75 $ 24,458.75 27 Boys & Girls Clubs of Greater San Diego National City Boys & Girls Club Remodel $ 50,000.00 $ 35,000.00 28 Olivewood Gardens and Learning Center Signage for Olivewood Gardens $ 32,557.00 $ 15,818.00 Public Infrastructure Improvements $ 1,350,000.00 $ 750,000.00 29 City of National City -Development Services Department ADA Park Improvements $ 250,000.00 none provided 30 City of National City -Development Services Department Pedestrian Safety and Accessibility Enhancements on E. 8`" Street near Seventh-Day Aventists Church and Paradise Valley Hospital $ 150,000.00 $ 150,000.00 31 City of National City -Development Services Department Pedestrian Safety and Accessibility Enhancements for National City Public Library- National City Blvd. and E. 15th St. $ 200,000.00 $ 200,000.00 32 City of National City -Development Services Department Pedestrian Safety and Accessibility Enhancements at Sweetwater High School - F Ave & E. 30th St $ 150,000.00 $ 150,000.00 33 City of National City -Development Services Department Pedestrian Safety and Accessibility Enhancements on T Avenue between E. 4th St and E. 8th St $ 250,000.00 $ ' 250,000.00 34 City of National City -Development Services Department Storm Drain Improvements $ 100,000.00 none provided 35 City of National City -Development Services Department Tot`al:Non-Public`.S;ervice Requests, Upgrade Substandard Pedestrian Ramps, Sidewalk, Curb, and Gutter Concrete Improvements $ 250,000.00 none provided 2,403,179.75'. ` $ 1."14. °OQ,7'5t Planning $ 72,000.00 $ 15,000.00 36 City of National City- Community Services Department Neighborhood Councils Program $ 72,000.00 $ 15,000.00 Administration $ 178,299.00 $ 178,299.00 n/a City of National City - Community Development Department CDBG Program Administration $ 140,299.00 $ 140,299.00 37 Fair Housing Council of San Diego Fair Housing and Tenant -Landlord Education Services $ 38,000.00 $ 38,000.00 Total kilanrlirig. and Adrmimstratiori Repuesfs $_; 250;39.0 90 $; i99.6.6. City of National City - Community nla Development Department City of National City - Community Development Department Housing Development Fund CHDO Set -Aside n/a n/a City of National City - Community Development Department Administration n/a ITEM #2 2/15/11 APPROVAL OF THE MINUTES OF THE ADJOURNED REGULAR CITY COUNCIL/COMMUNITY DEVELOPMENT COMMISSION MEETING OF JANUARY 25, 2011. (CITY CLERK) >.,. City of National City n Office of the City Clerk 1243 National City Boulevard, National City, CA 91950-4397 Michael R. Della, CMC - City Clerk (619) 336-4228 Fax: (619) 336-4229 To: Honorable Mayor and Council From: Michael R. Dalla, City Clerk Subject: Ordinance Introduction and Adoption 2/15/11 It is recommended that the City Council approve the following motion as part of the Consent Calendar: "That the City Council waive reading of the text of all Ordinances considered at this meeting and provide that such Ordinances shall be introduced and/or adopted after a reading of only the title." ® Recycled Paper CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: February 15, 2011 AGENDA ITEM NO. 4 EM TITLE: Resolution of the City Council of the City of National City adopting the National City Bicycle Master Plan and authorizing submittal of the Plan to the San Diego Association of Governments for processing with the State of California PREPARED BY: Stephen Manganiello, Traffic Engineer DEPARTMENT: Develoervices/Eng. PHONE: 619-336-4382 APPROVED BY:'' EXPLANATION: See attached. FINANCIAL STATEMENT: ACCOUNT NO. N/A ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: APPROVED: APPROVED: Finance MIS STAFF RECOMMENDATION: Adopt the Resolution. BOARD / COMMISSION RECOMMENDATION: N/A ATTACHMENTS: xplanation z. resolution 3. Bicycle Master Plan — available in City Clerk's Office Explanation On May 19, 2009, per Resolution No. 2009-103, City Council authorized the filing of a TDA/TransNet Bicycle, Pedestrian and Neighborhood Safety Program (BPNSP) grant for completion of the National City Bicycle Master Plan. On March 16, 2010, per Resolution No. 2010-34, City Council executed an agreement with the San Diego Association of Governments (SANDAG) accepting a TDA/TransNet BPNSP grant in the amount of $35,000 for completion of the National City Bicycle Master Plan, and committing $15,000 in local matching funds for a total project cost of $50,000. Also on March 16, 2010, per Resolution No. 2010-35, City Council executed an agreement with Alta Planning + Design to assist staff in preparation of the Bicycle Master Plan, including public outreach and education. The Bicycle Master Plan was prepared concurrently with the National City General Plan Update to ensure consistency between the two documents. Public outreach efforts included a series of joint public workshops with the General Plan Update in May 2010, a bike tour event in June 2010, creation of a project website, online and hardcopy public user surveys, and event notifications through the website, City email subscriber list, flyers, fact sheets and local papers. The "Draft" Plan was presented to the public on October 21, 2010, to City Council on November 23, 2010, and to SANDAG's Bicycle -Pedestrian Working Group on December 15, 2010. Comments were addressed in preparation of the "Final" Plan document. Adoption of the National City Bicycle Master Plan will allow staff to pursue grants and other funding opportunities to construct new bicycle facilities Citywide, as well as implement educational and encouragement programs. Upon adoption by City Council, staff will submit a copy of the "Final" Plan and Council Resolution to SANDAG for review and processing with the State of California. Staff recommendation is for City Council to adopt the National City Bicycle Master Plan and authorize submittal of the Plan to SANDAG for processing with the State of California. RESOLUTION 2011 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY ADOPTING THE NATIONAL CITY BICYCLE MASTER PLAN, AND AUTHORIZING SUBMITTAL OF THE PLAN TO THE SAN DIEGO ASSOCIATION OF GOVERNMENTS FOR PROCESSING WITH THE STATE OF CALIFORNIA WHEREAS, on May 19, 2009, the City Council adopted Resolution No. 2009-103 authorizing the filing of a Transportation Development Act (TDA)/TransNet Bicycle, Pedestrian and Neighborhood Safety Program ("BPNSP") grant for completion of the National City Bicycle Master Plan (the "Plan"); and WHEREAS, Resolution No. 2010-34 was adopted by the City Council on March 16, 2010, authorizing the Mayor to execute a Grant Agreement with the San Diego Association of Governments ("SANDAG") accepting a TDA/TransNet BPNSP grant in the amount of $35,000 for completion of the Plan and committing $15,000 in local matching funds for a total project cost of $50,000; and WHEREAS, on March 16, 2010, the City Council executed an agreement with Alta Planning + Design, Inc., to provide planning and design services, including public outreach and education for completion of the Plan; and WHEREAS, the Plan was prepared concurrently with the National City General Plan Update to ensure consistency between the two documents; and WHEREAS, a draft Plan was presented to the public on October 21, 2010, to the City Council on November 23, 2010, and to SANDAG's Bicycle -Pedestrian Working Group on December 15, 2010, and comments were addressed in preparation of the final Plan document; and WHEREAS, adoption of the National City Bicycle Master Plan will allow staff to pursue grants and other funding opportunities to construct new bicycle facilities citywide, as well as implement educational and encouragement programs; and WHEREAS, upon City Council approval, staff will submit a copy of the final Plan and this Resolution to SANDAG for review and processing with the State of California. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of National City hereby adopts the National City Bicycle Master Plan. BE IT FURTHER RESOLVED that the final National City Bicycle Master Plan shall be submitted to SANDAG for processing with the State of California. --- Signature Page to Follow --- Resolution No. 2011 — Page 2 PASSED and ADOPTED this 15th day of February, 2011. Ron Morrison, Mayor ATTEST: Michael R. Dalla, City Clerk APPROVED AS TO FORM: Claudia G. Silva City Attorney CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: February 15, 2011 AGENDA ITEM NO. 5 ;M TITLE: A Resolution of the City Council of the City of National City accepting the work performed by Koch -Armstrong General Engineering, Inc. with the final amount of $1,967,988.85, ratifying the filing of the Notice of Completion with the County Recorder for the National City Marina Gateway Streetscape Project, and authorizing the release of the retention in the amount of $157,420.82. (Funded through Sewer and Tax Increment Funds) PREPARED BY: Kenneth Fernandez ,ri) PHONE: 336-4388 DEPARTMENT: Development Services/ EXPLANATION: APPROVED Br. - Please see attached explanation. Engineering Division FINANCIAL STATEMENT: APPROVED: Finance ACCOUNT NO. 511-409-500-598-3842 & 125-409-500-598-3842 APPROVED: MIS Funds are held in an escrow account with Torrey Pines Bank care of Purchase Order No. 73360 and shall be released to the prime contractor after issuance of resolution. ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: STAFF RECOMMENDATION: Staff requests and recommends the adoption of the resolution to formally close said project and release retention. BOARD / COMMISSION RECOMMENDATION: N/A ATTACHMENTS: 1. Explanation 2. Final Contract Balance Sheet 3. Notice of Completion 4. Resolution Spec 08-16 NOC EXPLANATION Per Resolution No. 2009-226, the City Council awarded a contract to Koch -Armstrong General Engineering, Inc. in the amount of $1,916,282.35 for the National City Marina Gateway Streetscape Project, Specification No. 08-16. During the course of construction, City -initiated change orders were approved and added to the project via two bid alternatives and the twenty-seven additive and deductive change orders (Please see attachment for abbreviated line item description and pricing.) Therefore, the construction bid price of $1,916,282.35 was increased by $51,706.50 due to the summation of Change Orders Numbers One through Twenty -Seven, two bid alternatives, and several line item increases/deductions for a final construction cost of $1,967,988.85. Overall, the project's scope of work complied with its contract and specifications as reflected in the final balance change order. A final inspection was completed and after obtaining required final documents from the contractor, the project was eligible for a notice of completion. Please refer to attached "Final Contract Balance" document for a breakdown of line items, change orders, and contracted work days. The project's scope of work complied and was found to be in accordance with the approved contract and specifications as reflected in the attached final contract balance sheet. Therefore, Engineering Staff recommends the acceptance of the work and the filing of a Notice of Completion for the National City Marina Gateway Streetscape Project, Specification No. 08-16. As a result of the satisfactory completion of said project, a retention amount of $157,420.82 is programmed for processing and payment upon the receipt of required signatures, City Council's approval of this item via resolution, and the ratification of an already filed Notice of Completion with the County of San Diego. In summary, the purpose of this resolution is to approve the final amount of the project at $1,967,988.85, accept the work performed, ratify the filing of a Notice of Completion, and release the retention amount of $157,420.82. RESOLUTION 2011 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY ACCEPTING THE WORK PERFORMED BY KOCH-ARMSTRONG GENERAL ENGINEERING, INC., FOR THE TOTAL FINAL AMOUNT OF $1,967,988.85, AUTHORIZING THE CITY MANAGER TO EXECUTE THE FINAL BALANCE CHANGE ORDER, RATIFYING THE NOTICE OF COMPLETION FILED WITH THE COUNTY RECORDER ON NOVEMBER 19, 2010 FOR THE NATIONAL CITY MARINA GATEWAY STREETSCAPE PROJECT, AND AUTHORIZING THE RELEASE OF THE RETENTION IN THE AMOUNT OF $157,420.82 BE IT RESOLVED by the City Council of the City of National City as follows: It appearing to the satisfaction of the Engineering Division that all work required to be done by Koch -Armstrong General Engineering, Inc., for the total final amount of $1,967,988.85, for the National City Marina Gateway Streetscape Project has been completed, the City Council of National City hereby accepts said work, ratifies the Notice of Completion filed with the County Recorder on November 19, 2010, and orders that payment for said work be made in accordance with said contract, including release of the retention in the amount of $157,420.82. PASSED and ADOPTED this 15th day of February, 2011. Ron Morrison, Mayor ATTEST: Michael R. Della, City Clerk APPROVED AS TO FORM: Claudia G. Silva City Attorney FINAL CONTRACT BALANCE DATE: February 15, 2011 PROJECT: National City Marina Gateway Streetscape Project, Specification No. 08-16 TO: Koch -Armstrong General Engineering, Inc Mr. Chris Armstrong, President P.O. Box 1190. Lakeside, CA 92040-0906 ORIGINAL CONTRACh AMOUNT: START DATE: COMPLETION DATE: ORIGINAL CONTRACT" LENGTH: EXTENTION OF FORK DAYS: TOTAL CONTRACT TIME: S1,916,282.35 December 9, 2009 November 10, 2010 (includes downtime due to multiple change orders, correctional work, clean-up, inspection, and document delays) 120 working days 68 working days 188 working days DESCRIPTION OF CHANGE: This change order is written to balance and finalize the amounts for said project. Please see attached Final Clean-up Change Order No. 27. CONTRACT ADJUSTMENT: As a result of these change orders, the contract price is adjusted as follows: 1. The final contract price to date is adjusted to S1,967,988.85. 2. As a result of the satisfactory completion of said project, a retention amount of $157,420.82 shall be initiated for invoice processing and payment upon the receipt of required signatures and City Council's ratification of this agreement and the Notice of Completion. This document and its purpose to balance payment shall be considered full compensation for furnishing and installing the materials, labor, tools and equipment, profit, overhead, and all incidentals for performing the work described above. Koch -Armstrong General Engineering, Inc. will not be entitled to damages or additional payment for delays as described in the 2009 edition of the Standard Specifications for Public Works Construction, Section 6-6.3, for performing the work as described above. 'Submitted by 1/� CALIFORNIA: NAT ONIK;1 grey ;CITY 31cJV U� r+�couaroaetno MARINA GATEWAY STREETSCAPE Specification #08-16 Contractor Koch -Armstrong General Engineering, Inc. FINAL CLEAN-UP CHANGE ORDER ft 27 January 7, 2011 'Reason/Purpose for this Change Order- - ]This change order summarizes all line item extensions and change order modifications for this project. The City of National City and Contractor agree to the following change to the original Contract: IThe Contractor and City agree that the quantities listed on Attachment "A" are the final field -confirmed quantities 'for this project. The Contractor and City agree that Attachment "B" provides accurate calculations for the modified lump sum dollar totals for Change Orders 3, 8, and 10 Original Contract Amount----.-.-----_.......---.- ---- _ -----._..._.................. $ 1,916,28235 Net change by previously authorized Change Orders 51,706.50 Subtotal 1,967,988.85 Amount of this change order New contract amount .. $ 1,967,988 85 Working days added: 0 Working days subtracted. 0 Percent change in Contract to date 2-70% 1-)q-'t Pr jij t fvlan`ager Date (City E1iigineer Date City Manager, required lw Change Orders >$24 999 Date By signing this Change Order the Contractor confirms that he/she is completely familiar with its terms and conditions and has fairly negotiated its price, terms and conditions- If this Change Order is approved, Contractor will provide all of the equipment, materials and labor necessary to provide a complete work as described above at that the price stated herein. Additionally, Contractor confirms that The price is fair and complete and represents all costs associated with the work, including but not limited to all equipment, materials, labor, supervision, overhead, fees, bonds, insurance, profit, etc. and that there will be no further compensation All of the terms and conditions of the original contract documents are incorporated herein. ('Accepted and agreed to by Koch -Armstrong General Engineering, Inc.: ).. Date i r rafik Herrera, Project Manager Date Note to Contractor If you do not agree with this Change Order you may be directed to proceed with this work under the terms of the contract and you may proceed under protest. You must comply with the contract iequirements of submitting a written protest to proted your claim. Originals: City Clerk, Contractor cc: Engineering project file, Project Manager 1243 National City Boulevard, National City, CA 9190 Telephone (619) 336-4380 CITY OF NATIONAL CITY MARINA GATEWAY STREE ISCAPE Specification 08-16 FINAL CLEAN-UP CHANGE ORDER, Attachment "A" 1/15/11 Ori final Contract FINAL OUANTITIES No. Item Units @L:C11iS1S' Unit Price Amount Onardi Amount Delta 1 Mobilization LS 1 16 900.00 16 900-00 1.00 16 900.00 Tem•ora Erosion Control LS 1 5 700.00 5 700.00 1.00 5 70000 3 Demolition 1 154 300.00 154 300.00 1.09 168,336_90 14.036 4 Remove Stri lir 600 2.00 1 200.00 600.00 1 200 00 90 5 Tree Removal LA 29 200.00 5 800.00 29.00 5.800.00 6 Remove and Dispose of Railroad Hastier Si.n EA I 1 200.00 1 200.00 1.00 1 20000 Removal of Railroad includinrail ties and IF 1000 28_00 28 000.00 1,062 00 29.736.00 8 Railroad Switch Removal and Modification EA _ 1 1 200.00 1 200_00 1.00 1,200.00 1 736.00 9 Base Subrade for Ballast Removal 2' De th ® 664 35.00 23 240.00 689.60 24.13600 896.00 10 rill Soil for Batlast Removal (3' Depth) YD"3 324 26.00 11 474. 00 324.00 8 424.00 11 6" Curb & Gutter r G-2 T .e G LF 950 77.00 20 900.00 1 00100 22 022.00 1 12 6" Curb & Gutter •er Mod. G-2 T •e G LF 1160 27.00 3I 320-00 117500 31,725.00 122.00 405.00 6" Curb . -r 6-1 LF 210 16.00 3 360.00 238 00 3 80800 448.00 14 4" Sidewalk .er SDRSD G-7 SF 26792 4.00 107 168.00 26.772 00 107 088.00 15 Curb Ramps per Mod SDRSO G-27 EA 6 1 200-00 7 200.00 6.00 7,200 00 80_00 16 Curb Ramps per SURSD G-29 EA 1 1 700.00 1 700.00 2 00 3400.00 1 70000 17 Cross -Gutter .er National Ci Std Ow. Mod r® 3391 5.50 1.8 650.50 2699.00 14,844 50 3.806.00 18 AC Overla SF 4602 2.50 11 505.00 3,293.00 8232.50 3272.50 4-5" AC on 6" CTB 12657 3.60 45 565.20 8,410.00 30,27600 15.289.261 6.0" AC on 6' CUB 16279 4.35 70 813.65 24472.00 106453.20 3563955 21 4" Concrete Plaza 51' 4544 4.00 18 176.00 4 360.00 17.440 00 22 Seat Coat SF 14250 0.20 2 850.00 48 582.00 9,716.40 (730001 6 86640 23 Cleveland & 23rd Intersection Pavement 6" 'SF 6890 4.60 31 694.00 6848.00 3150080 7.5" Porous Concrete NW Corner of Harrison SF 967 15.00 14 505.00 88200 1323000 (193.201 1.27500 25 Turf Cell Pavers SF 8814 16.00 141 024.00 - - 141 26 Structural Soil Sections C,Ft 1000 5.00 5 000.00 1.000.00 5.00000 024.00 27 ABe A. roil - SF 445 5.00 2 225.00 451.00 225500 28 Driveway LF 3769 6.00 74 830.00 4,903.00 29 342.00 34.00 29 Metal Beam Guard Rail 70 6200 4 830.00 78 00 5 382.00 6 552.00 552.00 30 Street Li.hts includes Conduit Win • Mete 27 5 600.00 151 200.00 27.00 151,20000 3) Street Name Sign, per SDM-102 7 320-00 2 240.00 - - 2,24000 32 8" CL 235 PVC Water Main LF 674 63.00 42 462.00 674.00 42 462.00 33 8" CL 200 PVC Fire Service w Valve 1-27' EA 3 4 080.00 12 240-00 3 00 12.240 00 34 6" Fire Service w Valve 32' EA 1 2 700.00 2 700.00 1 00 2 700.00 2" Co er Water Laterals EA 5 3 200.00 16 000.0{l 5.00 18 00000 1" Copper Service Water FA 2 2 400.(0 4 800.00 2 00 4 80000 6" PVC Sewer Laterals 130 47.00 6 110.00 130.00 6,110.00 38 3 4" Gas Pi e I4 116.00 1 624.00 - ' 1 391" Gas Pipe LF 65 50.00 3250.00 - - 624.00 (325000 40 18" Steel Casin. LF 41 106.00 4 346.00 4100 4 346.00 4) 8" Steel Casing 100 32.00 3 200.00 _ - (3 20000 8" Valves 6 2 100.00 12 600.00 6.00 12600.00 43 Fire Hydrant Assembly EA 6 000.00 6 000.00 1 00 6 00000 Relocate Fire H drant Assembl EA 1 5 000.00 5 000.00 1 00 5000.00 45 Remove & Relocate Street Sic 11 EA 11 160.00 1 760.00 11.00 1 760.00 46 R- ove & Relocate se.m.1". ..uu• ' .u_ EA 1 200.00 200.00 1 00 20000 47 Traffic -Sign EA 8 200.00 1 600.00 10.00 2 000.00 400.00 48 Remove & Salva.e Street Sins EA 14 30.00 420.00 800 24000 49 tree trl.i . 1- 2057 1.50 -1085.50 2057.00 3085.50 (180.00 © Pavement Markers 76 7.00 532.00 76.00 53200 ® Thermo•lastic with Glass Beads SF 260 4.00 I. 040.00 260.00 1,040.00 - 52 Blue Pavement Marker CA 2 100.00 200.00 2_00 20000 53 Detot Feature U-U.htin, & All A• .wtenan - LS © 15 800.00 15 800.00 1.00 1580000 54 Vehicular Sliding Gate & All Ap• enances In LS 1 21 000.00 11 000.00 1.00 21 000.00 55 Concrete Mowcurb (SDRSD x L-4 LF 300 15.00 4 500.00 250.00 3 750 00 50.00 56 Stone Pilasters EA 3 2 500.00 7 500.00 3.00 7,500 00 57 Mailbox w/ Post EA 1 800.00 800.00 1.00 80000 58 Steel Fencin e LF 320 66-00 21 120.00 317.00 20,922.00 198 001 59 Single Swing Access Gate EA 1 2,000.00 2,000.00 100 2,000.00 60 Double Swinq .Access Gate FA 3 4 000.00 12 000.00 3.00 12 000 00 - 61 Boardwalk SF 3922 24.00 94,128.00 - _ - 62 Boardwalk Cross Over LS 1 5,500.00 5,500_00 1.00 5.50000 63 DG Paving at Tree Pits SF 2700 1.50 4,050.00 2,391 00 3,586.50 (463.50) 64 DG Paving at Depot Display Yard SF 21890 3.40 74,392.00 20.532.00 69808-80 (4.583.20) 65 Cast Iron Tree Grates EA 9 5,000.00 45 000.00 9.00 45,000 00 66 Tree Uplighting (including Conduit Wiring &F EA 97 513.00 49,761.00 96.00 4924800 (51300) 67 Barrier Protection Per SDG&E Std. 3481.1 LS 1 5,240.00 5,240.00 I00 524000 68 Water Quality Planter Box (Cleveland Avenue LS 1 2,01)0.00 2,000.00 - _ 69 Gravel Water Quality Feature LS 1 3,000.00 3,010.00 1.00 30000D - 70 Misc. Utility Removal & Abandonment LS 1 6,000-00 6,000.00 1 00 6,000.00 71 Adjust Existing Underground Dry Utility Facdit 1S 1 30.00 30.00 1.00 30.00 72 Landscape & Irrigation LS 1 312,000.00 312 000.00 091 284,925.10 /3 Temporary Traffic Control LS 1 17,000.00 17 000.00 1.00 77,000.00 74 Conduit & Winng for Existing Pylon Depot Lig LS 1 2,000.00 2,000.00 100 2,000.00 75 Install Bench Mark per SORSD M-11 EA 2 1 000.00 2,000.00 2.00 2,000.00 _ 76 Remove Existing 10" VCP Sewer Main and Re LF 1225 60.00 73,5011-00 865-00 51 90000 (21,600 00) 77 Remove 10' VCP Sewer Main and Replace wit LF 1.00 63.00 6,300.00 10000 6.300.00 78 Remove & Replace Fxisiing MH #898 EA 1 5,000.00 5,000-00 1.00 5.000_00 _ 79 Remove & Replace Existing MH #897 EA 1 5,000-00 5,000.00 100 5,000.00 80 Remove & Replace Existing MH #896 FA 1 5,000.00 5,000.00 1-00 5,000.00 81 Remove & Replace Existing MH #895 EA 1 5,000.00 5 000.00 1.00 5000.60 82 Remove & Replace Existing MH #927 EA 1 5,000.00 5,000.00 1.00 5,000.00 83 Cut in 12" x 12" x 8" fie Cormection on Bay 1 EA 1 5,000.00 5,000.00 1.00 5,000 00 84 12" Butterfly Valve EA 2 3,925-00 7,850.00 200 7,850.00 85 Wet Tap at State 13+63.60 23rd Street EA 1 1,000.00 1 000-00 1.00 1,000.00 _ 06 Steel Casing LF 35 3250 1,137.50 11 50 373.75 (763 75) Bid Alternatives 25A Pourous Concrete SF 8814 18M0 158,651.00 8,62300 155 214 00 (3,438-00) 48A Additional Striping LS 1 1,000.00 1,000.00 1.00 1,000.00 Change Ord 1 Relocate Chain Link Fence LS 1 3,785-67 3,785.67 100 3.785.67 2 Wet Tap - Night Work LS 1 4,740.75 4,740-75 1.00 4,74075 3 Concrete Header LS 1 37,737.00 37 737.00 100 4621285 8475-85 4 Remove/Dispose of RCP Pipe LS 1 6,545.57 6,545.57 1 00 6.545.57 5 Harzardous materials/remove concrete 1.5 1 7,980.0/ 7,980.07 1-00 7,980.07 6 Abandon Septic Tank LS 1 934-95 934 95 1.00 9.34 95 7 Delete Boardwalk, Replace Sidewalk LS 1 (78,440.00) (78,4-40.00) - 8 Delete Acrd Ftch LS 1 (11 978.46) (11 978.46) 101 (12 141.48) (16302) 9 SDGE Conduit Repair LS 1 6,106.56 6,10656 100 6,106.56 10 Replace CT8 with CM6 LS 1 (13,248.46) (13,248.46) 0.8I (10,747 44) 2,50102 11 Concrete Boardwalk Crossover LS 1 - - 12 AC Railroad Tracks L5 1 9,237.80 9,237-80 7.00 9,237.80 - 13 R&R AC @ East Side of Cleveland` LS 1 23,653.40 23,653-40 _ 14 Delay - Sewer Pump Turn Ons LS 1 14,919.98 14,919.98 1.00 14,919 98 15 Water/Fire Services Re-route LS 1 14 169.94 14,169-94 106 14 169 94 16 Delay - Sewer Main Delay for Gas LS 1 18 249.99 18,249.99 1 00 18 249.99 17 R&R Permeable w/ 6" PCC LS 1 2 940.60 2 940-60 100 2,040.60 18 Credits: Landscaping' LS 1 (30,778.90) (30,778.90) 19 Replace Unsuitable Material w/ CM8 LS I 2 /16.94 2,716.94 100 2.716.94 20 Demo and dispose of wall L5 I 1 592.43 1,592.43 1.00 1,592.43 21 Demn and dispose of CMU wall LS 1 1,206_89 1,206.89 1.00 1,206.89 22 Induction Lights LS 1 2,467-79 2,462.79 1 00 2,462.79 23 Water Quality Planter Box LS 1 15,946.55 15,946.55 1 00 15,946.55 24 Delete Line item #68' LS 1 (2,000.00) (2 000.00) 25 Asphalt improvements (MSI) L5 1 14,516-69 14,516.69 1.00 14.516.119 26 ' Wheelstops Paid as line item aduuxls ,stn LS 1 1,692_79 1,692.79 1 00 1692.79 l't -L ,F ti Y-ft d. 9I6-3.18Z3-1i 10 DATE_ ' 1,967,988.85 I (126,999.65)1 4 a- CA[IFORNIA -, NATIONAL CIT 13Jyl �. IbCOAPOHIT ED _. MARINA GATEWAY STREETSCAPE FINAL CLEAN-UP CHANGE ORDER, Attachment "B" Specification #08-16 Change Order 3 Unit Estimated Quantity Actual Quantity 7.5"x 12" reinforced concrete header LF 1260 Difference 1543 Unit Price Price Difference 1 283 29.95 $ 8,475.85 Original Total- $ Difference: $ Modified Total: $ Explanation: Pursuant to Change Order #3, the Contractor was to install a 7 5" x 12" concrete header abutting porous concrete sections found in the original contract to ensure the stability of these sections_ The City and Contractor negotiated a lump sum price of $37,730.00 based on an estimated 1260 LF at $29.95/LF. 1 he contractor actually installed 1543 LF of concrete header, resulting in an additional $8,475.85 due the contractor for work performed. Change Order 8 Acid Etch 37, 737.00 8,475.85 46,212.85 Unit lEstimated Quantity Actual Quantity Difference 1 Unit Price C Price Difference 31132 418 0 39 $ 163.02 SF 30714 Original Total_ $ Difference: $ Modified Total: $ Explanation: Pursuant to Change Order #8, the Contractor was to provide a credit to the City for the removal of acid etch for all 4" sections of concrete (Line Items 14 and 21). The credit was based on the estimated square feet of 4" concrete (30,714) at a rate of 39/sq ft, resulting in an estimated credit of $11,978 46 The actual number of square feet of 4" concrete installed was 31,112 which increased the credit to the City by $163_02, resulting in a total credit of $12,141.48 Change Order 10 Unit Estimated Quantity Actual Quantity Replace CTB with CMB TON 1247 5 Difference 11, 978.46 163.02 12,141.48 Unit Price Price Difference 1012 -235.5 10.62 $ (2,501.02) Original Total- $ Difference: $ Modified Total: $ Explanation: Pursuant to Change Order #10, the Contractor was to replace the installation of CTB in Line Items 19, 20, and 23 with CMB for each of those line items. The credit was based on the estimated tonnage of CTB required (1,247.5) at unit price of $10.62 per ton. This resulted in an estimated $13,248.46 credit to the City. The actual number of tons placed was 1,012 which decreased the credit owed to the City by $2,501.02, resulting in a total credit of $10,747 44. 13,248.46 (2,501.02) 10.74 7.44 5 RECORDING REQUES FED BY WHEN RECORDED MAIL TO CITY OF NATIONAL CITY 1243 NATIONAL CITY BOULEVARD NATIONAL CITY, CA 91950-4301 15498 NOTICE OF COMPLETION CALIFORNIA CIVIL, CODE SECTION 3091 NOTICE IS fIEREBY GIVEN of the completion on November 10, 2010, of: Marina Gateway Streetscape Project, Specification No_ 08-16 Work of improvement or portion of work of improvement under construction or alteration W. 23rd Street and Cleveland Avenue_ National Cite. CA 91950 Street address City State Zip Code The undersigned owns the following interest or estate in said property: Owner -in -Fee Nanne of the interest or estate of owner (mortgagor, lessee, etc.) Said work of improvement was performed on the property pursuant to a contract with Koch -Armstrong General Engineering, Inc Nance of Original Contractor The following work and material were supplied: Laborer Groups_ Bob Cat, Trucks. Temporary Pumps_ Concrete Masons, Operators.. Paving Equipment, Traffic Control Equipment, Sweeper, Loaders, etc. General statement of kind of labor, sera. ices, equipmenn or materials The names and addresses of co -owners are: N/A Joint tenants tenants in common, or other owners Dated: November l0, 2010. on Morrison, Mayor City of National City, ! 243 N ationa! City Blvd., Natio;:a! City, CA 91950 i, the undersigned. say: I have read the foregoing Notice of Completion, and know the contents thereof; the same is true of my own knowledge. I declare wider penalty of perjury that the forgoing is true and correct. Executed on Nove ber 10, 2010, at National City, California. Signatur RON MORRISON. MAYOR 6 PLEASE COMPLETE THIS INFORMATION RECORDING REQUESTED BY: CITY CLERK OF NATIONAL CITY 1243 National City Blvd_ National City, CA 91950 ND WHEN RECORDED FLAIL TO: CITY CLERK OF NATIONAL CITY 1243 National City Blvd_ National City, CA 91950 D O C # 2010-0641006 111111111111111111111111111 f uphill 111111111111111111111111111111111 NOV 19, 2010 3:59 PM It 1 OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE DAVID L_ BUTLER, COUNTY RECORDER FEES: 0 00 15497 PAGES• 2 1111111111111111111 iiiftlliilIiu1a11111111«ii111i (Note: This document is recorded on behalf of the City of National City, a municipal corporation, and is exempt from Recorder's fees pursuant to Government Code Section 27383) NOTICE OF COMPLETION: Marina Gateway Streetscape Project, Specification No. 08-16 (Please fill in document title(s) on this line) THIS PAGE ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION (Additional recording fee applies) 7 CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: February 15, 2011 AGENDA ITEM NO. 6 EM TITLE: Resolution of the City of National City approving and ratifying a Memorandum of Understanding authorizing the Police Department to participate in the San Diego County Regional Auto Theft Task Force. PREPARED BY: Craig Boegler, Lieutenant DEPARTMENT: Police PHONE: 619-336-4433'ZQ APPROVED BY: EXPLANATION: The Regional Auto Theft Task Force (RATT) is an inter -agency task force response to the County -wide problem of vehicle and cargo theft by professional thieves. The RATT Team uses regional, proactive and complex investigative methods rather than focusing on targets of opportunity. The RATT Team is comprised of law enforcement officers from local police departments, the County Sheriffs Department, California Highway Patrol, Federal Bureau of Investigation, Department of Insurance, Department of Motor Vehicles, the District Attorneys Office, prosecutors from the District Attorneys Office and the United States Attorneys Office. The RATT Team identifies organizations that use vehicle thefts to commit Federal crimes, import and export vehicles in and out of Mexico, and prosecutes the persons who falsely report vehicles stolen in order to defraud insurance companies. The RATT Team was formed in 1992 and is funded by a one ($1) dollar vehicle registration fee collected by the DMV. The District Attorneys Office agrees to reimburse the City of National City $80,000 per year (total) for signing personnel. FINANCIAL STATEMENT: APPROVED \, .yi/ . 'IFinance ACCOUNT NO. 290-411-626-100 through 199 APPROVED: 1 MIS Establish appropriations in Fund 290-411-626-100 through 199 in an amount not to exceed $80,000 and reduce Fund 001-411-000-100 through 199 ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: STAFF RECOMMENDATION: Approve Resolution BOARD / COMMISSION RECOMMENDATION: ATTACHMENTS: Diego County Regional Auto Theft Task Force MOU RESOLUTION 2011 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY APPROVING AND RATIFYING A MEMORANDUM OF UNDERSTANDING AUTHORIZING THE POLICE DEPARTMENT TO PARTICIPATE IN THE SAN DIEGO COUNTY REGIONAL AUTO THEFT TASK FORCE, AND APPROPRIATING AN AMOUNT NOT TO EXCEED $80,000 FROM ACCOUNT NOS. 290-411-626-100 THROUGH 199 TO ACCOUNTS NO. 001-411-000-100 THROUGH 199 TO FUND ONE POLICE OFFICER TO BE ASSIGNED TO THE TASK FORCE; SAID FUNDS WILL BE REIMBURSED BY THE DISTRICT ATTORNEY'S OFFICE WHEREAS, in 1992, the Regional Auto Theft Task Force ("RATT Team") was formed as an inter -agency task force response to the County -wide problem of vehicle and cargo theft by professional thieves by identifying organizations that use vehicle thefts to commit Federal crimes, import and export vehicles in and out of Mexico, and prosecuting the person who falsely report vehicles stolen in order to defraud insurance companies; and WHEREAS, the RATT Team is comprised of law enforcement officers from local police departments, County Sheriff's Department, California Highway Patrol, Federal Bureau of Investigation, Department of Insurance, Department of Motor Vehicles; District Attorney's Office, prosecutors from the District (the "Parties"); and WHEREAS, in 2010, the Parties executed a Memorandum of Understanding ("MOU") outlining the current duties and obligations of members of the RATT Team; and WHEREAS, as a condition of the MOU, the San Diego District Attorney's Office will reimburse the City of National City an amount not to exceed $80,000 for the salary of one National City Police Officer to be assigned to the RATT Team; and WHEREAS, appropriation of funds in an amount not to exceed $80,000 is necessary for the initial funding of the police officer to the RATT Team. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of National City hereby approves and ratifies the Memorandum of Understanding authorizing the National City Police Department to participate in the San Diego County Regional Auto Theft Task Force. A copy of said Memorandum of Understanding is on file in the office of the City Clerk. BE IT FURTHER RESOLVED that the City Council hereby authorizes the appropriation of an amount not to exceed $80,000 from Account Nos. 290-411-626-100 through 199 to Accounts No. 001-411-000-100 through 199 to fund the salary of one police officer to be assigned to the task force. Said funds will be reimbursed by the district attorney's office. --- Signature Page to Follow --- Resolution No. 2011 — Page 2 PASSED and ADOPTED this 15th day of February, 2011. Ron Morrison, Mayor ATTEST: Michael R. Dalla, City Clerk APPROVED AS TO FORM: Claudia G. Silva City Attorney MEMORANDUM OF UNDERSTANDING San Diego County Regional Auto Theft Task Force This Memorandum of Understanding (MOU) is being executed by the below listed agencies in connection with the San Diego County Regional Auto Theft Task Force (RATT) which was initiated on or about July 1, 1992. The agencies listed below jointly and severally agree to abide by the terms and provisions of this MOU throughout the duration of this joint operation. This supersedes the MOU dated November 12, 1998. 1. California Highway Patrol, Border Division (CHP) 2. Carlsbad Police Department 3. Chula Vista Police Department 4. Coronado Police Department 5. Department of Insurance, California 6. Department of Motor Vehicles, California 7. District Attorney, County of San Diego 8. El Cajon Police Department 9. Escondido Police Department 10. Federal Bureau of Investigation (FBI) 11. La Mesa 'Police Department 12. National City Police Department 13. Oceanside Police Department 14. Probation Department, San Diego County 15. San Diego Police Department 16. San Diego County Sheriff's Department 17. United States Attorney 1 Amended 2/16/10 The activities of the state and local participants in the joint effort described in this Memorandum are funded by a $1 vehicle registration fee authorized by Vehicle Code Section 9250.14 until January 1, 2018. San Diego County Board of Supervisors Resolution 9242, dated February 4, 1992, approved its implementation. The moneys collected by the Department of Motor Vehicles would be allocated to the County of San Diego to be expended under the guidelines set forth in the legislation. All references in the Memorandum to "payment(s) by the County of San Diego," or similar wording are related to and dependent on the moneys allocated to the County of San Diego. The County of San Diego General Fund shall not be used for any reimbursements, payments, et cetera, related to the Auto Theft Task Force. PURPOSE AND MISSION To effectively communicate with stakeholders to reduce the incidence of vehicle and cargo theft and increase the apprehension and prosecution of professional thieves using regional, proactive investigative methods and public education programs. 1. TASK FORCE OBJECTIVES A. Incorporate regional resources to reduce vehicle and cargo thefts by concentrating on complex investigations rather than targets of opportunity. B. Identify organizations that use vehicle theft to commit federal crimes, i.e., transporting undocumented aliens and import / exporting stolen vehicles in and out of Mexico. C. Use contemporary technology to develop investigation and prosecution strategies to reduce vehicle theft, cargo theft, and to increase recovery rates. D. Develop investigation and prosecution strategies that will have significant and measurable impact on targeted areas. E. Investigate and arrest those persons who report vehicles stolen in an attempt to defraud insurance companies. 2. TASK FORCE DESCRIPTION The Regional Auto Theft Task Force was formed in 1992, and is funded by a one dollar ($1) vehicle registration fee authorized by Vehicle Code Section 9250.14. The San Diego County Board of Supervisors Resolution 9242, dated February 4, 1992, approved implementation of the legislation and requested the Department of Motor Vehicles to collect the funds for allocation to the county to enhance the 2 Amended 2/16/10 RATT program to deter, investigate and prosecute vehicle theft crimes. Vehicle Code Section 9250.14 was to be repealed on January 1, 2010. However, Assembly Bill 286 extended the repeal date until January 1, 2018. The annual funding provided to RATT is approximately $2,600,000 which is used to pay salaries and benefits of supervisors and detectives, the purchase of supplies and equipment, provide necessary training and lease office space. Currently, the San Diego County Regional Auto Theft Task Force is comprised of 18 detectives and 3 supervisors from 14 federal, state, and local police agencies in San Diego County, the San Diego County District Attorney's Office, the San Diego County Probation Department and the United States Attorney's Office. Investigators from the Department of Insurance and the National Insurance Crime Bureau also participate on the task force. GENERAL AGREEMENTS It is agreed between participants: 1. PARTICIPANTS The San Diego County RATT will be comprised of Police Officers, Sheriff's Deputies, California Highway Patrol Investigators (CHP), a Probation Officer, Special Agents from the Federal Bureau of Investigation (FBI), Department of Insurance, National Insurance Crime Bureau, and the Department of Motor Vehicles, a District Attorney Investigator, Deputy District Attorneys and Assistant United States Attorneys. 2. EXECUTIVE COMMITTEE The Regional Auto Theft Task Force shall be headed by an Executive Committee. The Executive Committee Chairman shall be appointed by the Chairman of the San Diego Sheriff and Police Chief's Association. In addition, other members of the Executive Committee will include a member from the San Diego County Board of Supervisors, the Chief of the San Diego Police Department, the San Diego County District Attorney, the San Diego County Sheriff's Department, the Special Agent in Charge of the FBI, the Chief of the California Highway Patrol, and three of the representatives from the San Diego Sheriff and Police Chief's Association. The latter three representatives are to be appointed by the Chairman of the Sheriff and Police Chiefs Association. Members of the Executive Committee shall meet as needed together with the Task Force Commander, in conjunction with the monthly Sheriff's and Police Chiefs Association meeting, but not less than once a year, to discuss Task Force operations and to provide oversight and guidance to the Investigative Operations Committee (IOC) and the Task Force Commander. 3. INVESTIGATIVE OPERATION COMMITTEE (IOC) 3 Amended 2/16/10 a representative from the San Diego County District Attorney's Office and the CHP; and a Captain from each of the three police departments; to be chosen and appointed by the Chairman of the Executive Committee. The IOC will assist the Task Force Commander in obtaining resources, including funds, personnel, equipment, vehicles, and other items required to support the mission of the Task Force. The IOC will assist the Task Force Commander in the development of administrative procedures, investigative objectives, and strategies. The IOC will also assist the Task Force Commander in the preparation of reports for presentation to the Executive Committee. The IOC will meet as needed, but not less than quarterly, to discuss Task Force operations. 4. TASK FORCE COMMANDER The Task Force Commander will be selected by and be directly accountable to the Executive Committee. The Task Force Commander may call upon the IOC for support and guidance as listed in the above section. The Task Force Commander shall prepare a quarterly written report of on -going and completed investigations for each team, the number of hours (including overtime), and any funds expended on each case. This report shall be provided to the members of the Executive Committee and the Investigative Operations Committee. 5. ISSUE RESOLUTION As operational .issues arise, they will be mutually addressed and resolved by team leaders and the Task Force Commander. If these problems cannot be resolved, they will be presented to the IOC for resolution. It is agreed, however, that resolution of operational problems at the lowest possible level is in the best interest of the RATT. 6. CLERICAL Clerical personnel shall be provided to the Task Force to facilitate normal clerical duties associated with an investigative unit. Positions will be staffed through the County and all salaries, overtime, and benefits will be paid by the County of San Diego, except for any clerical personnel provided by the FBI. All clerical personnel will operate at the RATT facility. 7. PERSONNEL The Task Force shall be designed to bring from the various agencies the highest level of experience and expertise to jointly combat vehicle theft. To that end, the Task Force will be staffed as follows: 4 Amended 2/16/10 A. INVESTIGATIONS The teams will be staffed by personnel recommended for assignment to the Task Force from participating departments. Final selection shall be the responsibility of the Task Force Commander with the approval of the IOC. Assignment to the Task Force shall normally be for a period of three years. Extensions may be granted with the consent of the Task Force Commander and the employee's department. Extensions will be reviewed semi-annually and granted based on employee performance. If the Task Force Commander has cause to replace a member, the issue will first be discussed with the contributing agency. The Task Force Commander and/or the contributing agency will have the authority to remove and/or replace personnel. If the participating agency does not concur with the decision of the Task Force Commander to remove and/or replace a Task Force member, the issue shall be forwarded to the IOC for final decision. Personnel performance and progress for each Task Force member will be provided 'to the contributing agency as needed, but not less than semi- annually. 8. INVESTIGATIVE STRATEGY The routine investigative strategy regarding case development and direction will be the responsibility of the Task Force Commander. The offices of the District Attorney and the United States Attorney should be contacted on a regular basis for legal opinions and guidance. It is intended that full use be made of the vertical prosecution process. This is interpreted to mean that team supervisors communicate with the assigned attorney at the earliest logical moment of the investigation, and work together to build a case from inception through final adjudication. 9. INFORMANTS The use of informants will be consistent with the United States Attorney's General and San Diego County District Attorney's Office guidelines. 10. CROSS-DEPUTIZATION It is agreed that all local and state investigators participating in the San Diego RATT will be sworn as Deputy US Marshals. The Deputy US Marshal status and Peace Officer status of officers and agents, respectively, will apply only so long as they are active members of the San Diego RATT. 5 Amended 2/16/10 11. PROSECUTION Criminal cases, which present only violations of California state law, shall be presented to the Task Force Deputy District Attorney. Criminal cases, which present only violations of federal law, shall be presented to an Assistant United States Attorney. Cases which, present violations of both state and federal law, shall be presented to a Deputy District Attorney and an Assistant United States Attorney to determine the appropriate forum in which to prosecute the case. 12. LIABILITY Each party to this Agreement agrees to defend, indemnify, and hold harmless the other parties to this Agreement to the extent that any liability is imposed on those parties due to the acts or omissions of the party's employees. In addition, the parent agency shall also be liable for any workers compensation or similar benefits due to its employee. 13. HOUSING A centrally located office space has been leased to house the entire Task Force. Payment of the lease is the responsibility of the County of San Diego. 13. EQUIPMENT Each participating department shall provide one vehicle, including gas and maintenance, for each of their investigators or supervisors assigned to the Task Force. The procurement and allocation of resources is the responsibility of the Task Force Commander. The IOC will provide support as required. 14. UNDERCOVER DOCUMENTS The use of covert identities to support or enhance undercover operations is essential. This will require the issuance of undercover California Driver's Licenses and credit cards; the procurement, utilization, and control of these documents will be such as to assure they are properly accounted for at all times and are used only for authorized purposes. 15. ASSET SHARING To support and continue joint participation of local law enforcement in the San Diego County RATT, it is the intent that assets seized by the RATT will be used to enhance future RATT operations. Both state and federal seizure procedures shall be used consistent with the applicable federal and state forfeiture laws and regulation. (This issue, however, is to be addressed in detail by separate agreement.) 6 Amended 2/16/10 17. FISCAL PROCEDURES A. PAYROLL All personnel assigned to the RATT will be paid by their respective departments. It will be the responsibility of the Task Force Commander to accurately report the number of hours expended by RATT personnel. B. SPECIAL FUND The San Diego RATT shall maintain $10,000 to be used for the purpose of furthering investigations related to the Task Force's mission of combating professional vehicle theft. The Special Funds shall be kept in a place of security within the Task Force office. Only the Task Force Commander or his/her designated alternate is authorized access to the Special Fund. C. CLAIM FOR REIMBURSEMENT Agencies seeking reimbursement for Task Force activities shall submit a detailed statement of expenses in prescribed format to the Task Force Commander within 30 days following the end of each quarter. Only basic salary and related benefit costs, including overtime paid at time and one- half up to 240 hours, will be reimbursed by the County of San Diego. Such reimbursement shall not be applicable to FBI participants on the Task Force. Upon approval of the Task Force Commander, a claim for reimbursement will be forwarded to the County of San Diego for payment within 30 days. Reimbursement to participating agencies may fluctuate due to shortages in revenue. In no event will general revenues of the County be used to offset any such shortage. Requisitions for all materials and services related to Task Force activities must have the prior approval of the Task Force Commander. The approved expenses will be forwarded to the San Diego District Attorney's Office for final approval and payment. D. RIGHT TO AUDIT Each party to the Agreement shall, subject to any pertinent legal and/or policy reasons, make available to the County at all reasonable times its payroll and other records relating to this agreement. The County may audit such records, and, if the County determines that ineligible costs have been reimbursed, the agency shall immediately repay the amount determined to be ineligible to the County. The County may also withhold the amount determined to be ineligible from future reimbursement. The parties shall maintain the required records for a period of three years after the date the expense is reimbursed. 7 Amended 2/16/10 E. FISCAL ACCOUNTING The office of the District Attorney receives all source funds for the Regional Auto Theft Task Force. The District Attorney is the financial administrator for the Regional Auto Theft Task Force. The District Attorney shall provide quarterly reports to the Executive Committee and the Task Force Commander. 19. STANDARD OPERATING PROCEDURES (SOP) All Task Force members shall review and abide by the Standard Operating Procedures Manual which shall be prepared by the Task Force Commander. The SOP shall specify policies and procedures for the Task Force. 20. TERM OF AGREEMENT This Agreement, contingent upon available funding, became available commencing on June 1, 1993, and will terminate when funding, pursuant to Vehicle Code Section 9250.14, becomes unavailable. Participating agencies may elect to terminate the Agreement prior to its designated termination date. Any agency desiring to terminate its participation in this Agreement shall indicate such intent in writing to the Executive Committee. The termination shall be deemed to take effect not less than 30 days after receipt of the written communication or upon a date established by mutual agreement. 21. SIGNATURES The undersigned represent that they have the authority to execute this Agreement on behalf of their respective agencies/departments and, in signing this Agreement, represent a concurrence with and support of the San Diego County Regional Auto Theft Task Force as set forth in this Agreement and for the period and purposes as stated herein. 8 Amended 2/16/10 CHIEF GARY DOMINGUEZ California Highway Patrol Border Division Date •29- 2-cst� CHIEF T -{ Ln.m512-2.it., Date Carlsbad Police Department CHIEF DAVI - ARANO Date Chula Vista Police Department IEF LOUIS SCANLON Coronado Police Department d Date 7--16o-ib ISION CHIEF JOHN STANDISH Date California Department of Insurance // / //O !!! IEF KAIHRYN DOOR ate California Department of Motor Vehicles DISTRICT ATTORNEY BONNIE DUMANIS County of San Diego Date 9 Amended 2/16/10 CHIEF PA El Cajo ce RECCO Department •la Date CI-IIEF'JIM MAHER Date Escondido Police Department SPECIAL AGENT IN CHARGE KEITH SLOTTER Date Federal Bureau of Investigation, San Diego Office CHIEF ALAN LANNING ,i- Date La Mesa Police Departure GONZALESCHI� National City Police Department CHIEF FRANK MCCOY Oceanside Police Department Date c11oz/tom Date (6 CHIEF PROB TION o FFIER MACK JENKINS Date San Diego County Pro i ation 10 Amended 2/16/10 CHIE W ' �M LANSDOWNE San Diego ' . lice Department ?‘,// Date / 2-/3 /I v SHERIFF WILLIAM GORE Date San Diego County Sheriff's Department v HONORABLE LAURA E. United States Attorney Southern District of California 7/? Date Amended 2/16/10 CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: February 15, 2011 AGENDA ITEM NO.7. :M TITLE: Resolution of the City Council of the City of National City waiving the bid process and authorizing the award of $102,996 to Villa Ford for the purchase of four (4) 2011 Ford Crown Victoria Police Interceptors using funds from Operation Stone Garden and 2011 Citizen Option for Public Safety Program (COPS). PREPARED BY: Ronni Zengota, Operations Assistant PHONE: 336-4516 EXPLANATION: /4EPARTMENT: Police 4 APPROVED BY: As allowed by Purchasing Ordinance #1480, Section 16, this award will be made as a result of competitive bids solicited by the City of National City, where Villa Ford was determined to be the lowest responsive, responsible bidder, and was awarded their bid for $51,447.65, Bid #GS1011-2, Council Resolution #2010-255. It is requested that the City Council waive the formal bidding requirements as allowed in Section 12 of Purchasing Ordinance 1480, and Chapter 2.60.220(d) and 2.60.260 of the Municipal Code and authorize the Purchasing Agent to piggyback on the bid obtained on November 3, 2010. Ford will be stopping production of the Crown Victoria Police Interceptor models as of February 28, 2011, and all orders are due by March 1, 2011, and as authorized by Purchasing Ordinance #1480, Section 12a4, it is requested that the City Council declare that special circumstances exist and it is in the City's best interest to buy the four (4) 2011 Ford Crown Victoria Police Interceptors, without compliance with the formal bid process. FINANCIAL STATEMENT: ACCOUNT NO. 290-411-624-511-0000 - $51,447.65 (Stone Garden) 208-411-913-511-0000 - $51,447.65 (COPS) ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: APPROVED. APPROVED: Finance MIS STAFF RECOMMENDATION: In conjunction with the Purchasing Agent, it is recommended that award be made to Villa Ford and that authority be given to the Purchasing Agent to issue the resulting purchase order BOARD / COMMISSION RECOMMENDATION: ATTACHMENTS: Abstract Analysis dated 11/3/2010 RESOLUTION 2011 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY WAIVING THE BID PROCESS AND AUTHORIZING THE AWARD OF $102,996 TO VILLA FORD FOR THE PURCHASE OF FOUR 2011 CROWN VICTORIA POLICE INTERCEPTORS USING GRANT FUNDS FROM OPERATION STONE GARDEN AND THE 2011 CITIZEN OPTION FOR PUBLIC SAFETY PROGRAM (COPS) WHEREAS, Ford will be stopping production of the Crown Victoria Police Interceptor models as of February 28, 2011, and all orders to the dealers are due by March 1, 2011; and WHEREAS, the City desires to purchase four 2011 Crown Victoria Police Interceptors before March 1, using grant funds in the amount of $51,447.65 from Operation Stone Garden and $51,447.65 from the 2011 Citizen Option for Public Safety Program (COPS); and WHEREAS, this purchase will be as a result of competitive bids solicited by the City of National City, where Villa Ford was determined to the be the lowest, responsive, responsible bidder, and was awarded their bid for $51,447.65, Bid No. GS10112-2, Council Resolution No. 2010-255; and WHEREAS, National City Municipal Code 2.60.220(D) authorizes dispensing with the bidding procedure when the City Council determines by best business judgment that due to special circumstances it is to the city's best interest to purchase a commodity directly or enter into a contract without compliance with the bidding procedure. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of National City hereby determines that special circumstance exist, in that the proposed purchase will allow the City to purchase four 2011 Crown Victoria Police Interceptors before the end of production set for February 28, 2011. BE IT FURTHER RESOLVED that the City Council awards $102,996 to Villa Ford for the purchase of four 2011 Crown Victoria Police Interceptors using grant funds in the amount of $51,447.65 from Operation Stone Garden and $51,447.65 from the 2011 Citizen Option for Public Safety Program (COPS). PASSED and ADOPTED this 15th day of February, 2011. Ron Morrison, Mayor ATTEST: APPROVED AS TO FORM: Michael R. Della, City Clerk Claudia G. Silva City Attorney BID ABST T/ANALYSIS ,J312010 BIDDER: 9.75% TIRE EXT. SUB PYMT TERMS TOTAL BID TAX FEE WARRANTY DELIVERY TOTAL BID-% AWARD NOTES Villa Ford Orange, CA $42,521.78 $4,145.87 $0.00 $4,780.00 $0.00 $51,447.65 $0.00 $51,447.65 AWARD Net 30 Raceway Ford Riverside, CA $42,822.00 $4,175.15 $17.50 $4,980.00 $0.00 $51,994.65 $0.00 $51,994.65 Net 30 Theodore Robins Ford $46,979,76 Costa Mesa, CA $4,580.53 $17.50 $5,311.12 $0.00 $56,888.91 ($4,697.9 $52,190.93 10% 20 Net 30 Kearny Pearson Ford San Diego, CA $49,224.00 $4,799.34 $17.50 $0.00 $0.00 $54,040.84 $0.00 $54,040.84 Net 30 Wondries Ford Alhambra, CA $45,684.00 $4,454.19 $17.50 $4,370.00 $0.00 $54,525.69 $0.00 $54,525.69 Net 30 Bob Baker Ford No Response San Diego, CA Don Knott Ford Lincoln No Carson, CA Response Downey Ford Downey, CA No Response Drew Ford No Response La Mesa, CA El Cajon Ford No El Cajon, CA Response Fuller Ford Chula Vista, CA No Response Ken Grody Ford Carlsbad, CA No Response Miramar Ford Trucks No Response San Diego, CA Mossy Ford No Response San Diego, CA Perry Ford No Response National City, CA CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: February 15, 2011 AGENDA ITEM NO. 8 EM TITLE: Resolution of the City Council of the City of National City authorizing the Mayor to execute a 20-year Lease between the City and the Boys' and Girls' Club of Greater San Diego, Inc., for the land and building located at 1430 D Avenue PREPARED BY: George H. Eiser, Ill / �i 4 DEPARTMENT: City Attorney PHONE: Ext. 4221 EXPLANATION: Please see attached memorandum. APPROVED BY: FINANCIAL STATEMENT: APPROVED: ACCOUNT NO. ; APPROVED: N/A ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: Finance MIS STAFF RECOMMENDATION: Adopt resolution. BOARD / COMMISSION RECOMMENDATION: N/A ATTACHMENTS: norandum ��use Resolution Mayor Ron Morrison Council Members Alejandra Sotelo-Solis Louis Natividad Mona Rios Rosalie Zarate N Office of the City Attorney City Attomey Claudia Gacitua Silva Legal Counsel George H. Eiser, 111 Senior Assistant City Attomey Jodi L. Doucette TO: Mayor and City Council DATE: January 25, 2011 FROM: George H. Eiser, III, Legal Counsel SUBJECT: Lease with Boys' and Girls' Club of Greater San Diego, Inc. In December, 2008, shortly after the Boys' and Girls' Club of National City ("BGCNC") merged with the Boys' and Girls' Club of Greater San Diego, Inc. ("BGCGSD"), the City entered into a month -to -month lease of its land and building at 1430 D Avenue (the "Leased Premises") with BGCGSD. In entering into the month -to -month lease, it was the understanding of the parties that along -term lease would eventually be entered into. At the December 7, 2010 City Council meeting, after some discussion the Council approved a version of the Lease with a provision giving the City the rightto terminate the Lease if the Leased Premises were needed for a municipal purpose. The City was subsequently informed by the attorney for BGCGSD that BGCGSD could not accept the Lease with such a provision, because it caused the term of the Lease to be too uncertain, especially for purposes of BGCGSD receiving public and private funding. As a compromise, the attorney indicated that BGCGSD would be willing to accept language permitting early termination by the City upon one year's notice in the event the Leased Premises must be reclaimed for public use due to the requirements of a governmental agency, such as the U.S. Army Corps of Engineers. This proposed language has been incorporated into the Lease. In addition to the early termination provision, the Lease contains the following main points: • The term of the Lease is 20 years. • Rent is $1.00 per year. • Use of the Leased Premises is for a Boys' and Girls' Club only. • A provision for performance standards is included, which requires the Lessee to adhere to the Requirements for Membership as a Member Organization of the Boys and Girls Club of America. • Any assignment or subletting of the Lease requires the prior written consent of the City of National City. • The Lessee is responsible for routine maintenance and payment of utilities. • The Lessee is responsible for repairs, but the City must consent to all repairs or alterations costing over $5,000. 1243 National City Boulevard; National City, California 91950-4301 Tel.: (619) 336.4220 Fax: (619) 336.4327 Boys' and Girls' Club Lease October 26, 2010 Page Two • Typical insurance and indemnification requirements are included. • All signage shall be pre -approved by the City of National City. • The Lessee is responsible for all possessory interest taxes, if any. It is recommended that this Lease be approved as drafted. GEORGE H. EISER, III Legal Counsel GHE/gmo RESOLUTION 2011 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE A 20-YEAR LEASE BETWEEN THE CITY AND THE BOYS' AND GIRLS' CLUB OF GREATER SAN DIEGO, INC., FOR THE CITY -OWNED LAND AND BUILDING LOCATED AT 1430 D AVENUE WHEREAS, in December, 2008, shortly after the Boys' and Girls' Club of National City merged with the Boys' and Girls' Club of Greater San Diego, Inc., ("BGCGSD"), the City entered into a month -to -month lease with BGCGSD of its land and building at 1430 D Avenue (the "Property") with the understanding that a long-term lease would eventually be entered into; and WHEREAS, BGCGSD and the City are now desirous of entering into a long-term lease for the Property for the purpose of maintaining a clubhouse thereon, and for promoting the physical, mental, and moral well-being of the boys and girls of the City of National City, and for boys and girls in the immediate vicinity; and WHEREAS, the term of the Lease will be for a period of 20 years with an annual payment to the City of $1.00; and WHEREAS, the use of the Property for the purpose of a Boys' and Girls' Club will promote the general welfare of all the inhabitants of the City of National City. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of National City hereby authorizes the Mayor to execute a Lease with the Boys' and Girls' Club of Greater San Diego, Inc., for the land and building located at 1430 D Avenue. Said Agreement is on file in the office of the City Clerk. BE IT FURTHER RESOLVED that Resolution No. 2010-273 is hereby rescinded. PASSED and ADOPTED this 15th day of February, 2011. Ron Morrison, Mayor ATTEST: Michael R. Dalla, City Clerk APPROVED AS TO FORM: Claudia G. Silva City Attorney LEASE ' BY AND BETWEEN THE CITY OF NATIONAL CITY AND THE BOYS & GIRLS CLUBS OF GREATER SAN DIEGO, INC. This Lease is made and entered into this 15th day of February, 2011, (the "Commencement Date"), by and between the City of National City, a municipal corporation, hereinafter designated as "Lessor", and the Boys & Girls Clubs of Greater San Diego, Inc., hereinafter designated as "Lessee." RECITALS A. Lessee is desirous of leasing from Lessor certain real property for the purpose of maintaining a clubhouse thereon, and for promoting the physical, mental, and moral well- being of the boys and girls of the City of National City, and for boys and girls in the immediate vicinity thereof. B. The use of said property for the purpose aforementioned will promote the general welfare of all the inhabitants of the City of National City. NOW, THEREFORE, the parties hereto agree as follows: I . Leased Premises. Lessor does hereby lease, demise and let to Lessee the real property and improvements situated in the City of National City, County of San Diego, State of California, commonly known as 1430 "D" Avenue, as more specifically described in the attached Exhibit "A",and shown on the attached Exhibit "B", which are incorporated herein by reference (the "Leased Premises"). 2. Term. The Term of the Lease shall be for a period of twenty (20) years from the date first written above. 3. Use. The above described premises are leased to Lessee by Lessor for the purpose of maintaining a Boys and Girls Club, and to be used exclusively and for no other purpose than to maintain said Boys & Girls Club, and to promote the physical, mental, and moral well-being of the boys and girls of the City of National City and territory adjacent thereto, and to provide such means of education, wholesome recreation, and proper guidance as may seem most likely and desirable for the accomplishment of the purposes herein set forth. 4. Legal Status of Lease. Lessee warrants that it is a California nonprofit corporation. 5. Rent. Lessor and Lessee acknowledge that the consideration for this Lease and any option period shall be the annual sum of One Dollar ($1.00) and the mutual benefit to be derived from Lessee's uses of the Leased Premises, as specified herein. 6. Assignment and Subletting. This Lease shall not be assigned, sublet, hypothecated, leveraged, or transferred without the prior written consent of Lessor. 1 2011 Lease Between City of National City and Boys and Girls Clubs of Greater San Diego 7. Repairs by Lessor. Lessor shall be required to make such repairs or replacements to the Leased Premises as may be required for normal maintenance and operation, which shall include the repairs and/or replacements to all structural portions of the building located on the Leased Premises, and all walls, floors, corridors, windows, HVAC, mechanical electrical, plumbing, paving and parking, exterior windows, and other structures and equipment within and serving the Leased Premises, and such additional maintenance as may be necessary because of damages by persons other than Lessee, its agents, employees, invitees, or visitors, all in accordance with standard practices for similar commercial buildings in the San Diego, California area. Lessor shall be responsible for extermination/pest control for the Leased Premises. Without limiting the foregoing, notwithstanding anything to the contrary set forth herein, if Lessor is required to make repairs to take other corrective action in the Leased Premises by reason of Lessee's negligent acts or negligent failure to act reasonably, Lessor shall have the right to recover from Lessee the reasonable cost of the repairs or other work. 8. Repairs by Lessee. Lessee agrees to repair or replace any damage or injury done to the Leased Premises, or any part thereof, caused by Lessee or Lessee's agents, employees, invitees, or visitors, at Lessee's own cost and expense within a reasonable time after written notice from Lessor. If Lessee fails to make such repairs or replacements within a reasonable time after written notice, Lessor may, at its option, make such repairs or replacements, and Lessee shall repay the cost thereof to the Lessor as additional rent within ten (10) days of written demand. However, for any repair work, other than repair work in emergency situations, costing over Five Thousand and no/100 Dollars ($5,000.00) to be performed by Lessee or Lessee's agents, Lessee shall not perform such repair work without the prior written consent of Lessor's City Manager or designee. Any repairs or replacements in or to the Leased Premises, other than repair work in emergency situations, which would require an expenditure exceeding Five Thousand and no/100 Dollars ($5,000.00) and which constitute a "public project" under Section 20161 of the California Public Contract Code, shall be contracted for/by Lessor and let to the lowest responsible bidder after notice. 9. Routine Maintenance by Lessee. From and after the Commencement Date and during the Term, Lessee shall, at its own cost and expense, make all repairs and replacements required by this Lease, reasonable wear and use excepted, and excepting those repairs to be made by Lessor as set forth in Section 7 above. 10. Waste. Lessee shall not commit waste (property abuse, destruction, or damage) beyond normal wear and tear of the Leased Premises. 11. Improvements, Alterations, and Additions. Lessee shall not make or allow to be made any major alterations or physical additions in or to the Leased Premises which affect the structure or any other improvements and costing more than Five Thousand and no/100 Dollars ($5,000.00) without first obtaining the prior written consent of Lessor's City Manager or designee, which consent shall not be unreasonably withheld. All work shall be done by contractors approved by 2 - 201 I Lease Between City of National City and Boys and Girls Clubs of -Greater San Diego Lessor. Any alterations or physical additions in or to the Leased Premise that would require an expenditure exceeding Five Thousand and no/100 Dollars ($5,000.00), and which constitute a "public project" under Section 20161 of the California Public Contract Code, shall be contracted for/by Lessor and let to the lowest responsible bidder after notice. Any and all such alterations, physical additions, or improvements, when made to the Leased Premises by Lessee, shall at once become the property of Lessor and shall be surrendered to Lessor upon the termination of this Lease by lapse of time or otherwise; provided, however, this clause shall not apply to trade fixtures, equipment, or furniture owned by Lessee. Any Lessee improvements, alterations or additions shall comply with all government, local building code, permitting, and competitive bidding requirements. Lessee shall give Lessor written notice five (5) days prior to employing any laborer or contractor to perform major work on the Leased Premises so that Lessor may post a notice of non -responsibility, if allowed by law. Lessee shall not be required to remove alterations, physical additions, or improvements upon termination of this Lease 12. Utilities. Lessee will be. responsible for payment of utilities, including but not limited to electric, gas, telephone, security, fire alarm, sewer, trash, and water. Lessee understands that it is responsible for the proper disposal of debris in the designated trash receptacles provided by the Lessor. No trash is to be placed in front of or on the sides of the container nor should any trash be placed on top of the lids. Lessee further understands that it will be billed accordingly for not disposing of trash in the proper manner, which includes breaking down all boxes and containers prior to being placed in the trash bins. 13. Indemnity and Insurance. a. Disclaimer of Liability. Lessor shall not at any time be liable for injury or damage occurring to any person or property from any cause whatsoever arising out of Lessee's construction, maintenance, repair, use, operation, or dismantling of the leased Premises except to the extent caused by Lessor's negligence or willful misconduct. b. Indemnification. Lessee shall, at its sole cost and expense, defend, indemnify, and hold harmless Lessor and its officials, boards, commissions, employees, agents, attorneys, and contractors (hereinafter referred to as "indemnitees"), from and against: i. Any and all liability, obligation, damages, penalties, claims, liens, costs, charges, losses and expenses, including without limitation, reasonable fees and expenses of attorneys, expert witnesses and consultants, which may arise out of or be in any way connected with Lessee's construction, maintenance, repair, use, operation, or dismantling of the Leased Premises or Lessee's failure to comply with any federal, state, or local statute, ordinance or regulation. 3 2011 Lease Between City of National City and Boys and Girls Clubs of Greater San Diego ii. Lessee's obligations to indemnify indemnitees under this Lease shall not extend to claims, losses, and other matters covered hereunder to the extent such claims arise out of the negligence or willful misconduct of one or more indemnitees. c. Assumption of Risk. Lessor warrants that it does not have knowledge that a dangerous condition exists at the Premises except as may be specifically set forth in this Lease. Lessee undertakes and assumes for its officers, agents, affiliates, contractors and subcontractors, and employees (collectively for the purpose of this section), all risks of unknown dangerous conditions, if any, on or about the Leased Premises, and Lessee hereby agrees to indemnify and hold harmless Lessor against and from any claim asserted or liability imposed upon the Indemnitiees for personal injury or property damage to any person (other than from Indemnitee's negligence orwillful misconduct) arising out of Lessee's construction, maintenance, repair, use, operation or dismantling of the Leased Premises or Lessee's failure to comply with any federal, state, or local statute, ordinance or regulation. d. Defense of Lessor. In the event any action or proceeding shall be brought against Lessor by reason of any matter for which Lessor is indemnified hereunder, Lessee shall, upon notice from Lessor at Lessee's sole cost and expense, resist and defend the same with legal counsel mutually selected by Lessor and Lessee, provided however, that Lessee shall not admit liability in any such matter on behalf of Lessor without prior written consent of Lessor's City Manager or designee, which consent shall not be unreasonably withheld, and provided further that Lessee shall not admit liability for, nor enter into any compromise or settlement of, any claim for which it is indemnified hereunder, without the prior written consent of Lessor, which consent shall not be unreasonably withheld. e. Notice, Cooperation and Expenses. Lessee shall give Lessor prompt notice of the making of any claim or the conunencement of any action, suit, or other proceeding covered by the provisions of this paragraph. Nothing herein shall be deemed to prevent Lessor from cooperating with Lessee and participating in the defense of any litigation by Lessor's own counsel. f. Insurance. During the term of the Lease, Lessee shall maintain, or cause to be maintained, in full force and effect and at its sole cost and expense, the following types and limits of insurance: Worker's compensation insurance meeting applicable statutory requirements. ii. Commercial general liability insurance with minimum limits of Two Million and no/100 Dollars ($2,000,000.00) as the combined single limit for each occurrence of bodily injury, personal injury, and property damage. 4 2011 Lease Between City of National City and Boys and Girls Clubs of Greater San Diego iii. At the start of and during the period of any construction by Lessee, builders all-risk insurance, together with an installation floater or equivalent property coverage covering cables, materials, machinery, and supplies of any nature whatsoever which are to be used in or incidental to the installation of improvements. iv. All policies other than for Worker's Compensation shall be written on an occurrence and not on claims made basis. v. The coverage amounts set forth above may be met by a combination of underlying and umbrella policies so long as in combination the limits equal or exceed those stated. vi. Lessee shall furnish certificates of insurance to Lessor before commencement of the Lease term. Named Insureds. All policies, except for worker's compensation policies, shall name Lessor and its officials, boards, commissions, employees, agents, and contractors, as their respective interests may appear, as additional insureds (herein referred to as the "Additional Insureds"), and a separate additional insured endorsement shall be provided. Evidence of Insurance. Certificates of Insurance of each insurance policy required to be obtained by Lessee in compliance with this paragraph, along with written evidence of payment of required premiums shall be filled and maintained with Lessor annually during the term of the Lease. Lessee shall immediately advise Lessor of any claim or litigation that may result in liability to Lessor. Cancellation of Policies of Insurance. All insurance policies maintained pursuant to this Lease shall contain the following endorsement: At least thirty (30) days' prior written notice shall be given to Lessor by the insurer of any intention not to renew such policy or to cancel, replace, or materially alter same. Insurance Companies. All insurance shall be affected under.valid and enforceable policies, insured by insurers licensed to do business by the State of California or surplus carriers on the State of California lnsurance Commissioner's approval list of companies qualified to do business in the State of California. All insurance carriers and surplus line carriers shall be rated A+ or better by A.M. Best Company, or as otherwise approved by Lessor's Risk Manager. k. Deductibles. All insurance policies may be written with deductibles not to exceed $50,000 unless approved in advance by Lessor's Risk Manager. Lessee agrees to indemnify and save harmless Lessor, the indemnitees, 5 2011 Lease Between City ofNational City and Boys and Girls Clubs of Greater San Diego and Additional Insureds from and against the payment deductible and from the payment of any premium on any insurance policy required to be furnished by the Lease. 1. Contractors. Lessee shall require that each and every one of its contractors and their subcontractors who perform work on the Leased Premises on behalf of Lessee to carry in full force and effect, workers' compensation, comprehensive commercial general liability, and automobile liability insurance coverages of the type which Lessee is required to obtain under the terms of this paragraph with appropriate limits of insurance. m. Responsibility after Termination. Upon termination of the Lease, each party shall remain responsible to the other for any and all liabilities, obligations, damages, penalties, claims, liens, costs, charges, losses, and expenses arising under the Lease which arose out of the Lease and occurred prior to such date of termination. n. Review of Limits. Once during each calendar year during the term of the Lease, Lessor may review the insurance coverages to be carried by Lessee. If Lessor determines that higher limits of coverage are necessary to protect the interests of Lessor or the Additional Insureds, Lessee shall be so notified, and shall obtain the additional limits of insurance, at its sole cost and expense. 14. Inspection. Lessor, by and through its proper officers, reserves and shall always have the right, upon reasonable notice and at a reasonable time, to enter the Leased Premises for the purpose of viewing and ascertaining the conditions of the same and the operation and maintenance thereof. 15. Removal of Personal Property. At the termination or expiration of this Lease or any renewal thereof, Lessee shall, within ninety (90) days of written request by Lessor, remove any and all personal property not owned by Lessor, placed or erected on the premises during the term thereof, or any renewal thereof, and that all expense connected with such removal shall be borne by Lessee. Lessor shall have the right to sell, destroy, remove, or otherwise dispose of any such personal property left on the premises longer than ninety (90) days after termination of this Agreement. The premises shall be left by Lessee in a clean, neat, and safe condition, and the exclusive possession and use of the property shall revert to Lessor. 16. Non -Discrimination. Lessee agrees that there shall be no discrimination against or segregation of any person or group of persons because of race, color, creed, national origin, sex, sexual orientation, ancestry, marital status, physical handicap, or medical condition in the use occupancy or enjoyment of the property, nor shall Lessee, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy of users of the property. 6 2011 Lease Between City ofNational City and Boys and Girls Clubs of Greater San Diego 17. Waiver. The failure or omission of Lessor to terminate this Lease for any violations of any of its terms, conditions, or covenants shall in no way be deemed to be a consent by Lessor to such violation, and shall in no way bar, stop, or prevent Lessor from terminating this Lease thereafter, either for such or for any subsequent violation of any such term, condition, or covenant. 18. Signs. Lessee agrees that no sign, advertisement, or notices shall be inscribed, painted or affixed on or to any part or portion of the outside of the Leased Premises except to be of such type and color, size and style, and in such place as may be approved by Lessor. Any additional signage or changes to existing signage after the Commencement Date will require Lessee to pay for and obtain all regulatory approvals (permits) for the Leased Premises. 19. Waiver of Relocation Assistance. In consideration for the execution of this Lease by Lessor, Lessee hereby waives any claim for relocation assistance benefits to which it may otherwise be entitled under federal, state, or local law or regulations, upon vacation of the Leased Premises. 20. Americans with Disabilities Act. Upon commencement of this Lease, Lessee shall comply, at its sole cost, with requirements of ADA which provides for the removal of architectural barriers that prevent equal access to disabled persons on the interior of the Leased Premises. Through the duration of the Lease, Lessor shall comply, at its sole cost, with requirements of the ADA which provides for the removal of architectural barriers that prevent equal access to disabled persons on the exterior of the Leased Premises. Lessor warrants that the Premises will be ADA compliant at the time possession is delivered to Lessee. 21. Compliance with Environmental and Other Laws. Lessee shall not engage in activities upon the Leased Premises, or any portion thereof, for the purpose of or anyway involving the handling, manufacturing, treatment, storage, use, transportation, spillage, leakage, dumping, discharge or disposal (whether legal or illegal, accidental or intentional), or any hazardous or toxic substances, materials or wastes, or any wastes regulated under any local, state, or federal law; provided, however, normal quantities and use of those hazardous or toxic substances or materials customarily used in the conduct of Lessee's permitted uses, such as paints, stains, solvents, and similar materials, may be used and stored by Lessee at the Leased Premises. Lessee shall be, and remain for the term of this Lease, in full compliance with all applicable laws governing the use and occupancy of the Leased Premises including, without limitation, the handling; manufacturing, treatment, storage, disposal, discharge, use, and transportation of hazardous or toxic substances, materials or wastes, and any wastes regulated under any local, state, or federal law. Lessee has been advised that no digging or excavation at the site will be authorized without appropriate environmental oversight. 7 2011 Lease Between City of National City and Boys and Girls Clubs of Greater San Diego 22. Obstruction. Except as permitted by this Lease, and except for those materials customarily used in the conduct of Lessee's permitted uses, Lessee shall not place, install, maintain, or allow any combustible materials in buildings, structures, or other improvements upon the Leased Premises, and shall not cause or allow the surface elevation therein to be changed in any way whatsoever, without prior written approval of Lessor's City Manager or designee. 23. Lessee's Obligation to Quit. Lessee shall, upon termination of this Lease, leave and peaceably and quietly surrender and deliver to Lessor the Leased Premises and all improvements, buildings, and fixtures hereon or constituting a part thereof, and any replacements or renewals thereof in a good condition, order, and repair as the same were at the Commencement Date or thereafter may have been put, reasonable wear and use excepted. Notwithstanding the foregoing or anything in this Lease to the contrary, Lessee shall have the right at any time during this Lease to remove from the Leased Premises Lessee's trade fixtures, furniture, equipment, and personal property, provided that Lessee repairs any damage caused by such removal. 24. Termination. This Lease may be terminated as follows: a. In the event that during the term of this Lease, funding to operate the Club is either eliminated or reduced to a point so as to render continued operation of the Club impractical or impossible, Lessee may terminate the Lease upon ninety (90) days' written notice to Lessor. By Lessor, in the event the Leased Premises must be reclaimed for public use due to the requirements of a governmental agency, such as the U.S. Army Corps of Engineers, upon one year's notice. c. By Lessor upon the occurrence of one or more of the following defaults ("Defaults"), and the failure of Lessee to cure any such Default within any applicable grace period. i. The failure of Lessee to provide reasonable evidence of insurance within thirty (30) days of the renewal of any policy required herein; ii. The failure of Lessee to fulfill any obligation of Lessee under this Lease which endangers or threatens life or property, where such failure continues for a period of five (5) business days following written notice from Lessor. iii. A failure by Lessee to perform any material obligation of Lessee (other than those describedabove), where such failure continues for a period of thirty (30) days after written notice from Lessor; provided, however, that if the nature of Lessee's failure to perform is such that more than thirty (30) daysare reasonably required for its cure, then it shall not be deemed to be a Default if Lessee 8 2011 Lease Between City ofNationat City and Boys and Girls Clubs of Greater San Diego commences such cure within said thirty (30) day period, and thereafter diligently prosecutes such cure to completion. iv. The failure by Lessee in conducting its activities to adhere to the provisions of the Requirements for Membership as a Member Organization of the Boys and Girls Club of America, as amended from time to time, the current version of which is attached hereto as Exhibit "C" and incorporated herein by reference d. By Lessee, for Lessor's breach of any covenant, obligation, or condition contained in this Lease which is not cured within thirty (30) days immediately following written notice from the Lessee of such alleged breach, provided, however, that if the nature of Lessor's failure to perform is such that more than thirty (30) days are reasonably required for its cure, then it shall not be deemed to be a Default if Lessor commences such cure within said thirty (30) day period, and thereafter diligently prosecutes such cure to completion. e. By mutual agreement of the Parties hereto. f. By expiration of the Term. g. Notwithstanding anything in this Lease to the contrary, upon termination of the Lease, neither Lessor nor Lessee shall have any further obligations or responsibilities under the Lease or relating to the Leased Premises, and each party shall be deemed to have released the other from any such further obligations or responsibilities without the need for further action. Notwithstanding the foregoing, each party shall remain responsible to the other for any obligations arising under the Lease which occurred prior to such date of termination. 25. Lessor Remedies upon a Lessee Default. If Lessee is in Default and has failed to cure such Default within any applicable grace period, Lessor may, at its option, perform such duty or obligation giving rise to the Default on behalf or Lessee, including but no limited to the obtaining of reasonably required insurance policies, or government licenses, permits, or approvals. The costs and expenses of any such performance by Lessor shall be due and payable by Lessee within ten (10) days of receipt of invoice therefore. If any check given to Lessee shall not be honored by the bank upon which it is drawn, Lessor, at its option, may require all future payments to be made by Lessee to be by cashier's check. In the event of a Default which Lessee has failed to cure within any applicable grace period, or undertaken reasonable action to cure within any applicable grace period, Lessor may, with or without future notice or demand, and without limiting Lessor in the exercise of any right or remedy which Lessor may have by reason of such Default, terminate the Lessee's right to possession of the Leased Premises by any lawful means; continue the Lease; and /or pursue any other remedy now or hereafter available under the laws or judicial decision of the State of California. 9 2011 Lease Between City of National City and Boys and Girls Clubs of Greater San Diego 26. Lessee's Remedies Upon a Lessor Default. Lessor shall be in default under this Lease ("Lessor Default") if Lessor fails to perform any of the obligations of Lessor under this Lease, and such failure continues for a period of thirty (30) a days after written notice from Lessee; provided, however, that if the nature of Lessor's failure to perform is such that more than (30) days are reasonably required for its cure, then it shall not be deemed to be a Lessor Default if Lessor commences such cure within said thirty (30) day period and thereafter diligently prosecutes such cure to completion. The rights and remedies of Lessee upon a Lessor Default shall be cumulative, and upon a Lessor Default Lessee may pursue any and all rights and remedies at law or in equity, whether at the same time or otherwise. 27. Hazardous Substances. Lessee shall indemnify, protect, and hold harmless Lessor and each of its respective subsidiaries from and against all costs and damages incurred by Lessor in connection with the presence, emanation, migration, disposal, release, or threatened release of any oil or other petroleum products or hazardous materials or substances on, within, or to or from the Leased Premises as a result of (i) the operations of Lessee after the Commencement Date, and (ii) the activities of third parties affiliated with Lessee or invited on the Leased Premises by Lessee after the Commencement Date and during the term of this Lease. Each party agrees that such party will promptly give written notice to the other party of any investigation, claim, demand, lawsuit, or other action by any governmental or regulatory agency or private party involving the Leased Premises and any hazardous substance or environmental law of which such party has actual notice. 28. Taxes. Lessee recognizes and understands that this Lease may create a possessory interest subject to property taxation, and that Lessee may be subject to the payment of property taxes levied on such interest. Lessee further agrees to pay any and all property taxes, if any, assessedduring the term of this Lease, pursuant to Section 107 and 107.1 of the Revenue and Taxation Code, against Lessee's possessory interest in the Leased Premises. 29. Representations and Warranties. The parties represent and warrant that they have powers adequate for the execution, delivery, and performance of their obligations under this Lease; they have taken all necessary actions required to make this Lease the valid and enforceable obligation it purports to be, and this Lease has been duly executed and delivered. 30. Severability; Choice of Law. If any provision of this Lease shall be declared to be void or unenforceable either by law or by a court of competent jurisdiction, the validity or enforceability of remaining provisions shall not thereby be affected. 31. Brokers. Each party hereto represents and warrants to the other that it has not dealt with any broker in connection with the Leased Premises or this Lease. Each party hereto hereby indemnifies and holds the other harmless from and against any liability for commissions due any broker of finder with whom such party has dealt in connection with this Lease. 10 2011 Lease Between City ofNational City and Boys and Girls Chubs of Greater San Diego 32. Mailings and Noticing. All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered or sent by overnight mail (Federal Express or the like); or sent by registered or certified mail, postage prepaid, return receipt requested; or sent by ordinary mail, postage prepaid; or telegraphed or cabled; or delivered or sent by telex, telecopy, facsimile, fax or email; and shall be deemed received upon the earlier of (i) if personally delivered, the date of delivery to the address of the person to receive such notice; (ii) if sent by ovemight mail, the business day following its deposit in such overnight mail facility; (iii) if mailed by registered, certified, or ordinary mail, three (3) days (five (5) days if the address is outside the State of California) after the date of deposit in a post office, mailbox, mail chute, or other like facility regularly maintained by the United States Postal Service; (iv) if given by telegraph or cable, when delivered to the telegraph company with charges prepaid; or (v) if given by telex, telecopy, facsimile, fax, or email, when sent. Any payment, notice, request, demand, direction, or other communication delivered or sent as specified above shall be directed to the following persons: To the Lessor: Chris Zapata City Manager City of National City 1243 National City Boulevard National City, California 91950-4301 Email: czapata@nationalcityca.gov Phone: 619-336-4240 Fax: 619-336-4327 To the Lessee: Danny Sherlock President Boys and Girls Clubs of Greater San Diego, Inc. 115 West Woodward Escondido, CA 92025 Email: dsherlock@sdyouth.org Phone: 760-746-3315 Fax: 760-740-0240 With a copy to: Claudia G. Silva City Attorney City of National City 1243 National City Boulevard National City, California 91950-4301 Email: csilva@nationalcityca.gov Phone: 619-336-4220 Fax: 619-336-4327 With a copy to: Laura Bright, Esq. White and Bright, LLP 970 Canterbury Place Escondido, CA 92025 Email: Ibright@whiteandbright.com Phone: 760-747-3200 Fax: 760-747-5574 33. Entire Agreement. This Lease supersedes any prior agreements, negotiations, and communications, oral or written, and contains the entire agreement between the parties as to the subject matter hereof. No subsequent agreement, representation, or promise made by either party hereto, or by or to an employee, officer, agent, or representative of any party hereto shall be of any effect unless it is in writing and executed by the party to be bound thereby. 11 2011 Lease Between City of National City and Boys and Girls Clubs of Greater San Diego 34. Construction. The parties acknowledge and agree that (i) each party is of equal bargaining strength; (ii) each party has actively participated in the drafting, preparation and negotiation of this Lease; (iii) each such party has consulted with or has had the opportunity to consult with its own, independent counsel and such other professional advisors as such party has deemed appropriate, relative to any and all matters contemplated under this Lease; (iv) each party and such party's counsel and advisors have reviewed this Lease; (v) each party has agreed to enter into this Lease following such review and the rendering of such advice; and (vi) any rule or construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Lease, or any portions hereof, or any amendments hereto. 35. No Agency. Nothing in this Lease Agreement shall cause or imply any agency relationship or duty between Lessor and Lessee. 36. Counterparts. This Lease may be signed in counterparts. 37. Recordation. This Lease may be recorded by either party hereto. IN WITNESS WHEREOF, the parties hereto have caused this Lease Agreement to be executed by their duly authorized officers or representatives as of the day and year first above written. CITY OF NATIONAL CITY By: Ron Morrison, Mayor APPROVED AS TO FORM: Claudia G. Silva City Attorney THE BOYS & GIRLS CLUBS OF GREATER SAN DIEGO, INC. (Corporation— signatures of two corporate officers) By: Danny Sherlock President and CEO By: Robert Burson Board Chairman 12 2011 Lease Between City ofNational City and Boys and Girls Clubs of Greater San Diego EXHIBIT "A" That portion of Blocks 3 and 4 per Map No. 552, Records of San Diego County, California, November 4, 1914, together with closed and vacated to public use portions of 14th Street, 15tt' Street and C Avenue, described as follows: COMMENCING at the Southeast corner of said Block 4; Thence along the Southerly prolongation of the Easterly line of said Block 4, South 17°47'04" East, 4.24 feet to the POINT OF BEGINNING; 1. Thence leaving said line, South 71 ° 56' 15" West, 249.51 feet; 2. Thence South 28° 47' 57" West, 16.17 feet; 3. Thence North 79° 32' 30" West, 9.76 feet; 4. Thence North 88° 10' 29" West, 10.10 feet; 5. Thence South 81° 39' 55" West, 10.18 feet; 6. Thence South 68° 32' 00" West, 48.87 feet; 7. Thence North 71 20' 52" West, 29.69 feet; 8. Thence North 67° 43' 17" West, 19.80 feet; 9. Thence North 61 ° 15' 54" West, 39.52 feet; 10. Thence North 30° 13' 16" West, 15.13 feet; 11. Thence North 23° 22' 20" East, 37.88 feet; 12. Thence North 37° 26' 19" East, 69.13 feet; 13. Thence North 43° 43' 42" East, 79.18 feet; 14. Thence North 51° 18' 19" East, 19.29 feet; 15. Thence North 60° 34' 10" East, 128.19 feet; 16. Thence North 16° 40' 03" West, 41.65 feet; 17. Thence North 34° 52' 24" East, 27.92 feet; 18. Thence North 71 ° 34' 26" East, 89.80 feet to the Northerly prolongation of Easterly line of said Block 4; 19. Thence along said line, South 17° 47' 04" East, 266.11 feet to the POINT OF BEGINNING. Said land contains 75, 760 S.F., more or Tess. This legal description has been prepared by me, or undermy direction, in conformance with the Professional l.andt$urveyors Act. Signature: Jon R. Berggren, L.S. 6000 Lic nse Expires 12/31/2010 Date: January 4, 2009 LINE TABLE LINE BEARING DISTANCE LINE BEARING DISTANCE L1 S71'56'15"W 249.51' L11 S23'22'20'W 37.88' L2 S28'47'57"W 16.17' L12 N37'26'19"E 69.13' l3 S79'32'30'E 9.76' L13 N43'43'42"E 79.18' L4 S88'10'29"E 10.10' L14 N51'18'191 19.28' L5 N81'39'55"E 10.18' L15 S60'34'10'W 128.19' L6 N68'32'001 48.87' L16 S16.40'031 41.65' L7 S71'20'52'E 29.69' L17 S34'52'24"W 27.92' L8 N67'43'17"W 19.80' L18 S71'34'26"W 89.80' L9 N61'15'54"W 39.52' L19 S17'47'04'E 266.11' L10 S30'13'16'E 15.13' MAP 552 BLOCK 3 L10 (9 1 Q J ' J BLOCK 4 , X POINT OF / , iCOMMENCEMENT 0 \ CURRENT SOUTHEAST ,2 y \ LEASE CORNER OF (, v0 1 . AREA BLOCK 4 4.24'1 `3L ... l\ 1 C. , \\ t, C.\ ' • L4 �J J J J 1 5 L3 L2 \-\ POINT OF BEGINNING NEW LEASE AREA = 75,670 SF Exhibit B SCALE 1"= 100' IN ASSOCIATION WITH: TETRA TECH BERGGREN & ASSOCIATES LAND SURVEYING AND RIGHT OF WAY MAPPING 6046 CORNERSTONE COURT WEST #116 SAN DIEGO, CALIFORNIA 92121 (858) 824-0034 / (858) 824-0036 REQUIREMENTS FOR MEMBERSHIP RIGHTS AND RESPONSIBILITIES When an organization is accepted as a Member Organization of Boys & Girls Clubs of America the following rights and privileges of membership are conferred: • The right to be identified with the Boys & Girls Club Movement. • The right to receive services from Boys & Girls Clubs of America. • The right to participate in and vote at annual meetings of the National Council. Member Organizations assume the following obligations: • To fully comply with all requirements for membership and operating standards adopted by the National Council. • To act in accordance with the Constitution of Boys & Girls Clubs of America and any policies or procedures adopted by the National Council. Boys & Girls Clubs of America, the national organization, assumes the following responsibilities to its Member Organizations: • To uphold the articles and provisions of the Constitution. • To assist with the establishment of new Boys & Girls Clubs. • To provide services to further the purposes of the Boys & Girls Club Movement. Article I — Eligibility Requirements* * (The National Council passed a resolution at the August 25, 2010 meeting to allow organizations under the auspices of an umbrella organization to apply for an exemption from certain membership requirements.) Any corporation, association, or administrative committee or otherwise named governing body of responsible citizens, selected irrespective of race, color, creed, sex, age, religion, disability, or national origin may be elected to membership by the Board of Governors or Executive Committee of Boys & Girls Clubs of America if it meets the following requirements: Section 1 — Definitions A. "Member Organization" shall mean a corporation, association, administrative committee or otherwise named governing body which operates one or more Clubs in accordance with requirements and operating standards herein, and which has been admitted to membership in the Boys & Girls Clubs of America. B. "Club" shall mean a Club or Unit which meets the requirements and operating standards established herein and has been chartered by Boys & Girls Clubs of America. EXHIBIT "C" C. "Extension Club" shall mean a Club meeting the requirements and operating standards set forth in Article III below and operated as an extension of a parent Club and whose members are also members of the parent Club, and are eligible to participate in its activities. Section 2 — Name It shall have as the first words in its title "Boys & Girls Club(s) of..." Section 3 - Purpose It shall include in its purpose the health, social, educational, vocational, character development and guidance of the members of the Clubs it operates. Section 4 — Organization A. It shall have a board of directors. executive committee. administrative committee, or otherwise named governing body of responsible citizens and shall designate one member of such a governing body who is not an employee of such Member Organization or of the Clubs it operates as the Chief Volunteer Officer. Such governing body shall have complete authority and control over all aspects of the Member Organization's operations, programs. finances, facilities and personnel. Boys & Girls Clubs of America shall have no authority whatsoever with respect to any such control or authority of any such governing body. B. No more than two of the members of such governing body may be employees of such Member Organization or of the Club(s) it operates. C. It shall operate one or more Clubs which meet the requirements for membership and operating standards. Section 5 — Constitution, By-laws, Rules It shall be governed by a Constitution, by-laws or rules which are not inconsistent with the requirements for membership. Section 6 — Chief Professional Officer It shall employ a full time paid professional (the "Chief Professional Officer") who shall be responsible directly to the aforesaid governing body and shall have executive and administrative control of the activities and personnel of the Member Organization in accordance with policies and procedures established by said governing body. Each newly appointed Chief Professional Officer who has not been a Chief Professional Officer of another Member Organization shall attend a new Chief Professional Officer orientation sponsored by Boys & Girls Clubs of America within the first eight (8) months of such appointment. Section 7 — Funding It shall have funds in hand or pledged for the first year of operation, and there shall be a financial plan of funds for operation in future years. Section 8 — Service Mark It shall display the current service mark of Boys & Girls Clubs of America on the outside of its buildings and on all appropriate printed matter and comply with approved graphic standards. Article II — Operating Standards for Member Organizations Each Member Organization shall: Section 1 — Audit Cause an audit of its financial accounts to be made and reported upon annually by an independent certified public accountant and cause a copy of such audit and SAS 112 letter, if issued, thereof to be sent to Boys & Girls Clubs of America within nine (9) months of the close of its fiscal year and shall maintain its financial records in accordance with generally accepted accounting principles for non- profit organizations. Member Organizations with annual revenues totaling less than $250,000 may submit a review of financial statements by an independent certified public accountant in lieu of such audit. Section 2 — Compliance Comply with all applicable federal, state and local laws and reporting requirements and conduct its business with high ethical standards. Section 3 — Records Keep satisfactory records of the youth served by the Clubs it operates, their activities, programs and attendance. Section 4 — Dues Pay to Boys & Girls Clubs of America annual membership dues as determined by the National Council. Section 5 — Benefits A. Make the following benefits available to its full time employees and pay at least 50 percent of the cost of such benefits: I. Comprehensive major medical coverage. II. Group life insurance. III. A retirement program which is qualified under applicable Internal Revenue Service regulations. IV. A long term disability plan. B. Maintain a salary structure that is competitive with other local organizations and agencies seeking similarly trained and experienced people. C. Review, at least annually, its employment policies and procedures and take requisite steps to achieve or maintain compliance with equal employment opportunity regulations based on applicable federal, state and local laws and regulations as are in effect from time to time. Section 6 — Liability Insurance Maintain comprehensive, general liability coverage with a combined minimum single limit of coverage in the amount of at least $1 million which shall be extended to name Boys & Girls Clubs of America as an additional insured and file a certificate of insurance with Boys & Girls Clubs of America annually. Section 7 — Organizational Assessment * A. Conduct, every third year, an organizational assessment in consultation with Boys & Girls Clubs of America and utilizing its respective governing body, staff, and other appropriate entities based on "Standards of Operational Effectiveness" approved by the National Council and submit a report of this assessment to Boys & Girls Clubs of America. (* The National Council passed a resolution on May 17, 2007 exempting military organizations from this requirement.) B. Maintain a rating of 'operational" as defined by the "Standards of Operational Effectiveness". Such rating shall be determined and assigned by the governing body of each Member Organization. Section 8 -- Communication Maintain at least one computer capable of electronic communication with Boys & Girls Clubs of America. Section 9 — Background Checks Conduct criminal background checks of all employees and volunteers who have repetitive direct contact with children. Such checks should be of the type that would disclose, at minimum, sexual offenders and include a social security number trace and a national criminal file check. Such checks shall be conducted prior to employment and at reaular intervals not to exceed twenty-four (24) months. Section 10 — Code of Ethics Establish and maintain a Code of Ethics that addresses. at minimum, conflicts of interest. records retention and whistleblower protection in accordance with best practices for non-profit organizations. All staff and board members will sign the Code of Ethics each year. Section 11 — Annual Report Render to Boys & Girls Clubs of America an annual report of its oraanization membership, activities. attendance, finances and cause the Chief Professional Officer and Chief Volunteer Officer to attest to compliance with the requirements for membership and operating standards. Article III - Operating Standards for Clubs and Extension Clubs Each Club which meets the following operating standards may be chartered as a Club by the Board of Governors or Executive Committee of Boys & Girls Clubs of America. Section 1 — Facilities It shall have a Clubhouse or separate Club quarters which can be identified as a Club for its members. Use by any others shall not substantially limit the use of rooms, facilities and equipment by the members. It shall have sufficient floor area and room spaces, suitably equipped for carrying on a diversified and constructive program of activities. Section 2 - Unit Director Each Member Organization shall employ a Unit Director for each separate Club it operates for at least as many hours per week as such Club is in operation. The Chief Professional Officer of the Member Organization may, however, act as a Unit Director of one of such Clubs. Section 3 - Club Staff Each Club shall have and maintain sufficient paid and volunteer staff qualified in personality, character, experience, education and training for the leadership and guidance of its members. Each activity of each such Club shall be supervised by Club staff qualified to supervise such activity. Section 4 - Members Each Club shall have at least one hundred members enrolled in any twelve- month period, who shall be between the ages of 6 and 18. Each Extension Club shall have at least 50 members between the ages of 6 and 18 enrolled in any twelve-month period. Membership dues and fees shall be within the means of its members and shall not be so large as to exclude any individual from membership and participation. Section 5 — Extent of Operations Each Club shall be open and shall make activities available to its members at least ten months per year, five days per week and four hours per day. Each Extension Club shall be open and shall make activities available to its members at least eight months per year, three days per week and three hours per day. Section 6 — Activity Access Each Club shall be available for use by any and all members in all the days and hours such Club is open, to the extent feasible in light of the available facility and activity schedules which are subject to reasonable age and individual restrictions. Section 7 — Program Each Club shall maintain a high quality program of varied and diversified activities and shall conduct an annual program assessment using standards adopted by the National Council. There shall be no instruction in or promotion of any sectarian or political belief. Section 8 — Safety Each Club facility shall be maintained in a satisfactory state of cleanliness and sanitation and shall comply with all applicable federal, state and local laws for protection and safety. Membership Dues Each Member Organization shall pay dues annually to Boys & Girls Clubs of America based on its total operating expenses of the previous year. The amount of dues is determined by the following formula: CLUB OPERATING EXPENSES RATE OF DUES PAYABLE $99,999 or less 1.25 percent of the total amount. $100,000-$199,999 $1,500 plus 1 percent of the excess over $100,000 $200,000-$499,999 $2,500 plus .5 percent of the excess over $200,000 $500,000-$999,999 $1,000,000 — $4,999,999 Over $5,000,000 $4,000 plus .25 percent of the excess over $500,000 $6,000 plus .25 percent of the excess over $1,000,000 $15,000 plus .25 percent of the excess over $5,000,000 Dues are payable in full by October 1. Membership of a Member Organization may be terminated for non-payment of dues. - A system of fees for special services, which are unusual and over and above those normally expected to result from the payment of dues, shall be established by the President of Boys & Girls Clubs of America with the approval of the Board of Governors. BOYS & GIRLS CLUBS OF AMERICA STANDARDS OF ORGANIZATIONAL EFFECTIVENESS May 2006 As revised and approved by the National Council of Boys & Girls Clubs of America at its annual meeting in May 2006 Review of Compliance with Membership Requirements Is your organization in compliance with the following BGCA's Requirements for Membership? Yes No Membership Requirements Audit: Cause an audit of its financial accounts to be made and reported upon annually by an independent certified public accountant and cause a copy of such audit and management letter, if issued, thereof to be sent to Boys & Girls Clubs of America and shall maintain its financial records in accordance with generally accepted accounting principles for nonprofit organizations. Member organizations with annual revenues totaling less than $100,000 may submit a review of financial statements by an independent public accountant in lieu of such audit. Compliance: Comply with all applicable federal, state and local laws and reporting requirements and conduct its business with high ethical standards. Records: Keep satisfactory records of the youth served by the Clubs it operates, their activities, programs and attendance. Dues: Pay to Boys & Girls Clubs of America annual membership dues as determined by the National Council. Benefits: A. Make the following benefits available to its full-time employees and pay at least 50 percent of the cost of such benefits. * Comprehensive major medical coverage. * Group life insurance. ' * A retirement program which is qualified under applicable Internal Revenue Service regulations. * A long-term disability plan. B. Maintain a salary structure that is competitive with other local organizations and agencies. C. Review, at least annually, its employment policies and procedures and take requisite steps to achieve or maintain compliance with equal employment opportunity regulations based on applicable federal, state and local laws and regulations as are in effect from time to time. Liability Insurance: Maintain comprehensive, general liability coverage with a combined minimum single limit of coverage in the amount of at least SI million which shall be extended to name Boys & Girls Clubs of America as an additional insured and file a certificate of insurance with Boys & Girls Clubs of America annually, Organizational Assessment: A. Conduct, every third year, an organizational assessment in consultation with Boys & Girls Clubs of America and utilizing its respective governing body, staff, and other appropriate entities based on "Standards of Operational Effectiveness" approved by the National Council and submit a report of this assessment to Boys & Girls Clubs of America. ' B. Maintain a rating of "operational" as defined by the "Standards of Operational Effectiveness". Such rating shall be determined and assigned by the governing body of each Member Organization. Communication: Maintain at least one computer capable of electronic communication with Boys & Girls Clubs of America. Background Checks: Conduct criminal background checks of all employees and volunteers who have repetitive direct contact with children. Such checks should he of the type that would disclose, at minimum, sexual offenders and include a social security number trace and a national criminal file check. Such checks shall be conducted prior to employment and at regular intervals, not to exceed 24 months of employment. May 2006 Page 31 Does your organization have operating policies and practices that compirbUCCA's Core Promises? Yes No Core Promise Safety — All Boys & Girls Club organizations should develop a comprehensive safety program to make continued improvements in three key areas: • Safe daily operations • Crisis response preparedness • Strategic risk management planning Each Club should: • Review the organization's safety and facility policies, • Review the organization's insurance coverage, • Review existing and pending facility use agreements, • Establish an active Facilities and Property Committee which addresses safety policies and procedures, • Maintain reasonable staff ratios and provide regular staff training, • Consistently document procedures, accidents and incidents, • Establish a realistic safety budget, and • Take the long view on risk management. The organization meets above requirements regarding safety. Impact — Commitment to Quality process The organization completed the annual Commitment to Quality impact assessment. The results from the assessment are used to improve the quality of the programs offered. Hiring Staff them current. • Legally • Systematic • Match • Applied Essential steps • A • Clearly • Detailed • An • Thorough • Criminal • Provide and Selecting Volunteers of High Character — An organization's overall standard of care should combine practical policies and procedures with a strategy to keep A thorough screening process should be: compliant • the level of screening with position -specific risks uniformly to the selection criteria for al candidates for a specific position for thorough staff screening include: screening policy that is compliant with current employment laws and exercises a reasonable standard of care, written position descriptions and selection criteria, recruitment and application processes, interviewing process that consists of scripted, open-ended questions and the applicants should be encouraged to ask questions, reference checks, background checks, which must be conducted at regular intervals not to exceed 24 months, and an orientation for new employees or volunteers during an established provisional period. There are up-to-date, written policies and procedures reviewed by counsel that address: • the organization's intent to be fair, consistent and nondiscriminatory, and to meet all legal requirements: • background checks, the consequences of providing false or misleading information and criminal or civil records that will automatically bar a person from employment or volunteer service; and • confidentiality and security of all information. There are clearly written job descriptions for each position that define: • duties and responsibilities, • education and experience, and • professional and ethical conduct required for the position. May 2006 Page 3 of 31 Yes No Core Promise All staff and volunteer candidates are required to complete an application form that collects: • information about an applicant's work history, education and background. • waivers and statements about the Club's hiring practices. There is a defined process to gather information needed to make informed hiring and selection decisions for staff and volunteers including: • a fair and consistent process to screen resumes; • telephone interviews to pre-screen candidates; • interview questions and rating that utilize a "Behavior -Based Interview and Selection" method to assure skills, knowledge and character needed to be successful in the position; • use of more than one interviewer during in -person interviews; • selection based on meeting job requirements, core competencies and e periences which align to requirements of the job and work environment. Reference checks to gain insight into the candidate's experience, skills and character are conducted with: • past employers; • supervisors; • co-workers; • subordinates; and • others, depending on the position. Background checks on all staff and volunteers are conducted prior to hiring and at least every 24 months after hiring. Minimally, background checks should include: • a Social Security number trace; • a national criminal record search; • a national sex offender registry search; and • additional background checks as appropriate to specific positions. There is a defined system to evaluate findings about criminal records or other concerns uncovered during the hiring process that includes: • barrier crimes that automatically bar the person from consideration; • a process for creating a review committee to evaluate hiring recommendations of staff or volunteers with criminal records that take into account: o seriousness of the crime; o length of time since last offense; o pattern of criminal activity; and o activities in which the applicant has been involved since the offense occurred. A formal introductory period for staff and volunteers is established that includes: • an employment agreement, signed by the new staff or volunteer; ■ an organizational code of ethics signed by the new staff or volunteer; and • a formal appraisal of performance at the end of the introductory period. • Financial Oversight — Successful financial management is a result of a strong joint initiative of the CVO and board, CPO and other Club staff. As part of the financial management process, it is important for each person involved with the Club to understand his/her role in the process. In addition, the board should understand how the Club's financial system works, since nonprofit organizations are run differently than for -profit institutions. Each organization should establish: • Roles for the CVO and other board members, CPO and other staff, and Club volunteers, • A system for planning, developing and monitoring budgets and cash flow, • A conflict of interest policy and sign -off procedure for board and staff, • A policy for managing investments, • A risk management strategy for financial, physical and other threats, • Financial management policies and procedures, • Polices which ensure donor requirements and fmancial reporting guidelines are met, and • Policies for conducting financial reviews. May 2006 PagE 31 Yes No Core Promise There are clearly defined roles and responsibilities for how board and staff work together to assure that the organization's finances meet all legal, ethical and business requirements. • The board protects the organization's assets and provides oversight to financial systems, budget, policies, procedures, insurance, legal and donor requirements. • Staff develop and implement financial systems and budgets and oversee day-to-day implementation of financial policies, practices and standards. There is an active board finance committee that: • develops and monitors financial policies and practices, • reviews fmancial statements and reports, • develops an investment strategy, and • assures the organization has a risk management plan. The organization has policies, procedures and systems that are reviewed and monitored by the finance committee to assure sound financial practices. These include: • clear limits of authority • internal controls over expenditures • systems and procedures for: handling and processing income; collecting and reporting membership; participation and outreach data; and meeting donor, legal and financial spending and reporting requirements. • controls to ensure restricted finding and endowments are accurately monitored and appropriately spent • compliance with all local, state, federal, IRS and ERISA regulations Under the direction of the finance committee and/or audit committee, a complete financial audit is conducted by a board -appointed, independent auditor, annually. • A separate audit committee is recommended for organizations with budgets larger than $2,000,000. • The finance committee or treasurer reviews Form 990 prior to submission. • If a management letter is received, it is provided to BGCA and an appropriate response is prepared and implemented. An annual organizational budget is developed and approved by the board to assure resources are allocated to meet organizational goals and objectives. • Fundraising and administrative expenses fall between 15 to 20% of the total budget. The board develops and approves an investment management policy that assures: • investments are diversified and performance is closely monitored and • a spending rate policy provides guidelines on maximum percent of principle to be used for operating. There is an annual evaluation and update to the organization's overall risk management strategy. This includes: • a physical review of facilities and vehicles; • a review of insurance coverage; and • a review to ensure that the organization's building(s) are up to city, state and federal codes and have all required inspections and certifications, Ethics and Accountabi ity — Building an organization committed to the highest ethical standards demands more than just following the law. It also requires fostering practices that create an environment of transparency, accountability and integrity, including: • Defming roles for the board of directors, staff and volunteers. • Developing and providing a code of ethics for employees. • Requiring a signed code of ethics for the board of directors. • Requiring a signed code of ethics for vendors. • Maintaining a compliance, reporting, and investigation policy. May 2006 Page 5 of 31 Yes No Core Promise There is a board -approved ethics policy with a conflict of interest statement that is signed annually by all board and staff. The policy is supported by: • training for all staff and volunteers; r an appointed ethics officer; • whistle -blower protection; and • a compliance, reporting and investigation policy. Accurate membership and participation data — It is essential that information used to monitor performance and communicate the Club's reach, participation and impact be collected,. organized and presented with a high level of accuracy and credibility. Each Club must define a process for collecting, storing and organizing data and ensure the process is consistently implemented in every unit. Establish a system for collecting data by: • determining the needed information and clearly defining the terms, • developing a carefully thought-out system for collecting and recording data, • training staff to collect the information, • determining how information will be stored and how long it will be kept, and • tracking and counting youth served in membership and through community outreach. Standard Boys & Girls Club definitions are used consistently to count: • registered members, • youth served through community outreach, • attendance, and • average daily attendance. There is a tested, well thought-out system consistently applied throughout the organization for collecting and recording information about member participation on a daily basis. This system includes: • a current membership form with a parent or guardian signature on file for every Club member; • a defined policy and practice for entering and exiting the building that includes recording attendance; • a defined policy and practice for recording attendance at off -site activities; • a written record of all attendance and program participation; and • an organizational goal of at least 25% of members participating daily. There is a tested, well thought-out system for collecting and recording youth served through community outreach on a daily basis that is consistently applied at every Club. This system includes: • a defined policy and practice for collecting and recording youth served through community outreach; • collecting and recording information daily; and • a written record of all attendance and program participation including name of event, date, location and total number of non-member participants. All staff are trained in every aspect of the Club's polices and practices for tracking attendance and participation of registered members and youth served through community outreach. • Each unit has a designated staff person responsible for managing and implementing this system. • Roles for all staff are clearly defined and included in job descriptions and performance plans. • There is a board policy defining standards for accurate organizational data. There is a defined policy and procedures for how information is stored that assures: • all information can be easily retrieved by authorized staff; • there is a record retention policy of at least five years; • information about individual members is kept confidential; May 2006 Page 31 Yes No Core Promise • all information is backed up. All data is repeatedly checked for accuracy before it is presented to anyone outside the Club or used in any marketing material. This includes: • an ongoing system for monitoring procedures to assure they are followed consistently at all units; • two people reviewing the information; and • the CPO and CVO approving all reports before information is presented outside the organization. Has a plan been developed with your organization supported by your regional service director, to respond to any standards not met? Yes No May 2006 Page 7 of 31 STANDARDS OF ORGANIZATIONAL EFFECTIVENESS (SOEs) BOARD GOVERNANCE Topic Summary Developing Operational Advancing Excelling A. BOARD DEVELOPMENT PROCESS ■ ❑ 0 ■ 0 ■ 0 ■ 0 ❑ 0 ■ There is an informal process for identifying and recruiting board members, not necessarily based on the organization's goals and objectives. The organization has and utilizes a written, board driven process for the identification, selection, recruitment and orientation of board members based on its goals and objectives. Individual responsibilities, as well as collective roles of board volunteers are written and clearly defined. The organization utilizes a written, ongoing board development process, which includes identification, recruitment, selection, orientation, ongoing evaluation and recognition. 60% of eligible board volunteers are recognized utilizing Boys & Girls Clubs of America's National Service Recognition Awards or equivalent recognition program. The organization has one or more board members who are Movement leaders and who share models for a written board development process, which includes identification, recruitment, selection, orientation, ongoing evaluation and recognition. 80% of all eligible board volunteers are recognized utilizing Boys & Girls Clubs of America's National Service Recognition Awards or equivalent recognition program. B. BOARD MEMBERSHIP ❑ ■ ■ ■ ❑ ■ ■ 0 ■ ■ ■ ■ The board has few, if any, active community leaders who influence community decisions and resources. There is little board involvement that fulfills the organization's needs. The board has some recognized business and public leaders who influence community decisions and resources. The organization has a board -approved code of ethics and conflict of interest policy on which individual board members sign off on an annual basis. There is a moderate level of board involvement in the appropriate areas of the organization, and the board has begun to establish a good relationship with local, state and federal government officials. The board consists mainly of business and public leaders who influence decisions and resources and who are involved in meeting most of the organization's needs. The board has good relationships with local, state and federal government officials who understand the value of Boys & Girls Clubs. The board consists of business and public leaders who influence decisions and resources, provide effective governance, generate needed resources and are actively involved in meeting the organization's needs. The board has excellent relationships with local, state and federal officials. May 2006 Page 31 Topic Summary' Developing Operational Advancing Excelling C. GOVERNANCE LEADERSHIP AND COMMITTEE STRUCTURE ❑ ❑ • ❑ • • ❑ ❑ ■ ■ ❑ ❑ The board has no functioning committees and/or task groups. There is little structure and minimum officer involvement. No board governance is evident. The Chief Professional. Officer does not receive a formal annual performance review. There are appointed committee and/or task group teams with chairs that occasionally meet and act on responsibilities. Officers are elected and involved in assigned roles. The board is in compliance with organizational by-laws. The Chief Volunteer Officer has been provided a BGCA orientation on the Core Promises and has signed a statement of understanding. A written board- driven strategic plan addressing strategic initiatives (collaboration, merger, growth with impact, etc.) is in place. The Chief Professional Officer receives an annual written performance review. The board has organized, functioning committees and/or task groups with chairs that make written recommendations for board action. Officers are functioning in accordance with defined leadership roles and a written succession plan for board leadership is in place. A written board -driven strategic plan is integrated into board and committee/task group meetings. The Chief Professional Officer receives a formal annual written performance review based on measurable objectives linked to the strategic plan and agreed on by the hoard leadership and the Chief Professional Officer. Committees/task groups have defined written objectives consistent with the organization's written strategic plan. Officers lead board member involvement and are given new leadership opportunities to support the organization's written board succession plan. With input from external and community stakeholders, a written strategic plan is updated and reviewed annually that includes clear benchmarks and outcomes. An evaluation of effectiveness is completed annually. D. BOARD FINANCIAL GIVING ❑ ■ ❑ ❑ ❑ ■ ■ 0 0 0 0 ■ At least 50% of board members make a personal unrestricted gift to the annual campaign. At least 75% of board members make a personal unrestricted gift to the annual campaign. The Chief Volunteer Officer personally solicits those members who are not giving. The board has been informed about the purpose and goals of "It Just Takes One." 100% of board members make a personal unrestricted gift to the annual campaign. All board members have a written annual personal giving plan. 25% of the individual board members make a written commitment to the Club's endowment program. 90% of all board members achieve their personal giving plans. 50% of the individual board members make a written commitment to the Club's endowment program. E. BOARD DIVERSITY • • • • ❑ El • • 0 • 0 0 The board is not diverse in its makeup or in relation to its community. The board has some diversity in its makeup, is reflective of the community and has a plan to expand this diversity. The organization provides an annual diversity education opportunity for its board members. Diversity standards are considered in various committee functions. The organization conducts a formal assessment of the board's makeup and develops written plans based upon the assessment results. The board is diverse in its makeup, is reflective of its community and has a written plan underway to maintain diversity. One or more board members are Movement leaders sharing models and best practices in valuing diversity. May 2006 Page 9 of 31 Topic Summary Developing Operational Advancing Excelling F. CORPORATE DATA TRACKING ❑ ❑ D All units use standard BGCA definitions. Signed membership forms for the current year are available. There is a tested and well thought-out system for daily collecting and recording of membership and participation data. All data is checked and signed off by the CVO and CPO before being used for external audiences. There is a defined system and process for tracking and counting youth served • through community outreach. 0 0 The Club has a plan to measure outcomes of targeted programs and overall Club outcome using the Outcome Measurement Tool Kit. O D � � 0 � There is limited tracking of data, a lack of systems, and little, if any, board and staff accountabilities. There is a system for collecting and recording program participation data. The Club has a board -approved organizational measurement strategy which utilizes BGCA metrics for participation and daily attendance. • G. BOARD MEETINGS/ ATTENDANCE E D 0 The board has regular, duly constituted meetings with not less than 60% attendance and with a clear focus on policy issues and decisions. Utilization of technology (i.e., teleconferencing, online meetings, etc.) to support member participation in meetings is evident. At least one meeting per year has a BOARDROOM Training module or equivalent training. The board conducts an annual board retreat with at least 60% of board members in attendance. E 0 • • • • 0 Board meetings are not held on a regular basis. Attendance is less than 50%. Agenda is dominated by problems and crises, preventing board from dealing with substantive policy issues. There are regular, scheduled board meetings attended by not less than 50% of the members. The Chief Professional Officer develops the agenda and reviews it with the Chief Volunteer Officer. Board business packets are prepared and delivered to all board members at least 10 days prior to a meeting. The organization develops and distributes an annual board calendar at the beginning of each year. Committees and task groups provide reports and recommendations for board action, The board conducts an annual board retreat with at least 50% of board members in attendance. The board has regular, duly constituted meetings with not less than 65% attendance, active participation and a clear focus on policy issues and decisions. There is a written plan for utilizing technology in hoard member communication and business meetings. At least two board meetings a year are comprised of BOARDROOM Training modules or equivalent training. The board conducts an annual board retreat with at least 65% of board members in attendance. H. STATE ALLIANCE SUPPORT AND INVOLVEMENT D 0 D The board has no awareness of the state alliance and leadership has no contact with state officials to support alliance efforts. 0 D • D • • • 0 0 The organization is a contributing member of the state alliance; however, participation at state meetings is limited. Promotion of the alliance only happens to benefit the local organization. Board members and professional staff promote the alliance and actively contact state leaders to support the work of the alliance. The board and CPO assure Club involvement in statewide projects. The board works in conjunction with the alliance leadership to gain support from state leaders. Board members have an opportunity to serve on the alliance board or committees. Board members and the CPO actively support state initiatives to enhance statewide collaboration. May 2006 Page f 31 Topic Summary Developing Operational Advancing Excelling • 1. BOARD EDUCATION AND PARTICIPATION ❑ ❑ ❑ There is very little or no planned education or participation by board members in Boys & Girls Clubs of America events and training. There is little use of BGCA board development training tools or equivalent board training. The CVO is registered on bgca.net. ❑ ■ ■ There is board participation in Area Council events, state alliances, and board leadership conferences. All board members have attended a local board member orientation and received and reviewed the BOARDROOM new board member CD ROM. The CVO has received and reviewed the BOARDROOM CVO Guide and Toolkit CD ROM. Officers and committee chairs are registered on beca.net. ❑ ■ ■ The organization has strategic board representation/participation at key Boys & Girls Clubs of America and other events including Area Council meetings, state alliances, board leadership conferences and the National Conference. Board officers meet the Silver Level of the BOARDROOMBoard Education Skills Training (BEST) program (8 Modules) or equivalent training every three years. 50% of board members are registered on beca.net. 0 ■ ■ Board officers and committee chairs meet the Gold Level of the BOARDROOMBEST program (12 Modules) or equivalent training every three years. Board members are actively engaged; take initiative and plan continuous learning opportunities; share/seek best practices and are active in planned continuing education for hoard volunteers. J. LEADERSHIP: BOARD SUPPORT FOR TECHNOLOGY ■ ❑ 0 The organization does not have a TechnologyCommittee/Task GroupCommittee/Task to address technology in a formal plan. 0 ■ The board has a Technology Group;however, the organization lacks a formal technology plan that is integrated into the overall strategic plan. Resources for technology are allocated on an as -needed basis. technology -based process for tracking membership fees and participation data is monitored board. ■ A by the • ■ The organization has a written, board -approved technologyplan pp is integrated into the overall strategic plan. The plan includes a Web strategy, technology program members, Internet safety, and acceptable use policies. ■ that for 0 ❑ ■ The technology plan is fully funded, staffed andpart of the ongoing t g budget. Technology is integrated throughout all areas of the Club operation. Policies and procedures are in place to drive continuous system improvements and to support technology replacement cycles. May 2006 Page 11 of 31 STANDARDS OF ORGANIZATIONAL EFFECTIVENESS (SOE) HUMAN RESOURCES Top�arf Snnithity' ':Developing Qperational Adva Cilig, ExeeI rya A. CHIEF PROFESSIONAL OFFICER/ LEADERSHIP TEAM ❑ ❑ ❑ ❑ ❑ ❑ ❑ Mi The Chief Professional Officer (CPO)/leadership team needs basic management training. The CPO/leadership team possesses basic executive competencies and leadership attributes as outlined in the Professional Development System "Executive" Profile and the Chief Professional Officer Leadership Model. The CPO/leadership team demonstrates effective leadership as outlined in the Professional Development System "Executive" Profile and the Chief Professional Officer Leadership Model, The organization has a staff succession plan and deploys career development accordingly. Turnover is analyzed for human resource planning. The CPO has a written performance evaluation based on the strategic plan that is conducted annually by designated board leadership. The CPO/leadership team demonstrates a high level of' executive competency in providing leadership to the organization as outlined in the Professional Development System "Executive" profile and the Chief Professional Officer Leadership Model. The organization develops a written plan and scorecard based upon the key human resource factors. The CPO is actively engaged in support of Movement -wide initiatives. B. JOB CLASSIFICATION AND COMPENSATION MANAGEMENT PROGRAM ■ 0 ■ ■ 0 0 0 ■ 0 0 ■ The organization has an informal g salary administration program and is committed to improving salaries. Salaries and wages are not within established ranges. No formal performance management system in place. All salaries and wages are in range g g of the recommended Job Classification and Compensation Management Program or equivalent salary administration model. There is a performance plan in place. The organization has utilized g QUEST to create a written Job Classification and Compensation Management Program that is revised every two years, which includes up- to -date job descriptions, performance profiles and reviews, and an organizational chart, The board has approved the salary plan with appropriate funding for merit increases and equity adjustments. A performance management plan is in place for all full-time and part-time employees. The organization provides monetary and non -monetary pay for performance. Reward systems are based upon hoard -approved strategic performance standards goals and ethics that are acceptable for not -for - profit industry business practices. May 2006 Page f 31 T ple$ nntnary - .1/o:eloping Operational _ Advancing ExceUtng-, C. PROFESSIONAL DEVELOPMENT PROCESS D ❑ ❑ A "Professional Orientation Program" is in place for all staff as well as a staff development plan. The organization assures a budget allocation to support the staff development plan. When appropriate, the chief professional officer has completed the New Executive Orientation Program eight months after the date of employment and attends the Executive Leadership Program within two years of employment, The CPO has been provided a BGCA orientation on the Core Promises and has signed a statement of understanding. A written, annual staff development plan is in place. All eligible staff is active members of The Academy,/ Boys & Girls Club University at the member professional level. ■ ■ ❑ ■ ❑ ❑ ■ ■ ■ There is no identifiable, consistent orientation or training for staff. Job profile and job descriptions are utilized for developing a basic plan of action to support job related competencies. CPO completed the New Executive Orientation training within the first year of employment. The organization utilizes a formal, written professional orientation and training program and a written, two year, professional development career plan. Training opportunities are identified that address the gap in staff development. Part-time staff participates in a minimum of eight hours of training, and full-time staff participates in a minimum of 24 hours of training annually. The organization ensures that the appropriate tools, resources and professional memberships to support and train staff are in place (Professional Development System). Policies include a written, board - adopted succession -planning strategy. The organization utilizes BGCA's Training Management System to manage and maintains records maintain records for all staff attending training. Part-time staff participates in a minimum of 16 hours of training, and full-time staff participates in a minimum of 48 hours of training annually. Training plans are tied to the written compensation plan, career tracking and succession plan. D. HUMAN RESOURCE POLICIES ■ ■ ❑ ■ ■ ■ ■ ■ ❑ ■ ❑ ■ The organization has limited written human resource policies, Background checks are not consistent with BGCA membership requirements. The organization maintains compliance with Equal Employment Opportunity regulations. The regulations are consistently applied throughout the organization. Background checks are performed on all staff and volunteers including board members at intervals not less than every 24 months. Records of arrests (not just convictions) are obtained for new employees prior to hiring. The organization provides ongoing training and legal updates for supervisors. The organization has comprehensive, written human resource policies that are reviewed and revised annually by internal human resource professionals and internal legal counsel. Background checks, which include inquiry into credit, driving and sexual offender databases, are performed on all staff and volunteers including board members at intervals not less than every 12 months. The organization provides ongoing training and legal updates for all staff. There is a written succession plan for the CPO and other key staff. The organization has comprehensive, written human resource policies that are reviewed and revised by extemal legal counsel not less than every two years. Background checks (including finger printing/screening) are performed on all staff and volunteers including board volunteers within 12 months of initial service and re -checks are performed on an annual basis. The organization has access to an online HR advisor or service. Records of arrests (not just convictions) are obtained for new employees prior to hiring. May 2006 Page 13 of 31 Topic"Summary Developing Operational- • M.v incing Excelling E. ETHICS • D • • D D D • D D D • The organization does not have a code of ethics for staff. The organization has a board- approved code of ethics statement for staff and board which addresses conflicts of interest, financial reporting, professional conduct, confidential and proprietary information, political activities, government relations and fundraising. The organization has a board- approved code of ethics statement for staff, board and vendors which addresses conflicts of interest, financial reporting, professional conduct, confidential and proprietary information, political activities, government relations and fundraising. The Club has defined organizational values and has developed policies and training to carry them out, F. HIRING PRACTICES 0 0 0 The organization utilizes QUEST to create an up-to-date human resource package for full-time and selected part-time employees who include: a job based Behavior Based Interview and Selection guide. External counsel reviews and provides recommendations on hiring practice procedures. D • D 0 • D 0 • 0 The organization does not have current written job descriptions for all staff and does not use a set of board approved procedures for hiring and screening full, part-time staff, and volunteers. The organization has current written job descriptions for all staff and utilizes a board approved, written set of legally compliant procedures for listing, screening, hiring, selection, and orientation of all paid staff and volunteers. The organization performs a written assessment to insure a direct alignment with its strategic plan and mission outcomes, to job listings, screening process interview questions, job profiles, and performance/career planning. G. DEPLOYMENT OF TECHNOLOGY FOR STAFF D 0 D All staff computers throughout the organization are networked and have operational Internet access. The organization has a dedicated IT support professional to oversee technology. The written technology plan is updated every year and adopted by the board. A technology upgrade/replacement plan is in place. D • D 0 • D 0 ■ D The organization provides limited technology to staff. Most key staff has an email address and is registered on www.bgca.net. Most The organization's leadership and key staff have a computer workstation with high-speed Internet access and a full package of productivity software such as Microsoft Office. All full-time staff has an email address and is registered on www.bgca.net. Full- All full-time staff has daily access to a current generation computer workstation with high-speed Internet access and a full package of productivity software such as Microsoft Office in their work area. A written technology plan exists. All staff has an email address and is registered on www.bgca.net. All staff has and utilizes a personal locker and profile on QUEST. staff has basic Internet skills/ training. time staff has completed a written technology assessment and have access to BGCA's QUEST Knowledge Management System. H. STAFF DIVERSITY 0 0 0 The board is supportive and recognizes the importance of diversity: The organization has plans to address identifiable gaps regarding diversity and has an increased awareness about the value of a diverse staff. 0 0 D The organization conducts a formal assessment of staff composition, Club climate and develops written plans based upon assessment results. The board approves written strategies and action plans in support of the organization's diversity initiative, monitoring and managing progress and results. • 0 0 0 ■ ■ The organization's staff makeup does not reflect the community's diversity and there are no plans in place to change the situation. The diversity plan is monitored by the board and updated annually to reflect emerging trends, opinions and feedback from staff, volunteers and community. May 2006 Page f 31 _Operational Advancing Excelling Topic Summary Devdloping . I. COMPETITIVE BENEFITS � O El• The organization does not pay 50% of the cost of minimum and essential benefits. • O Theoorganization pays more than .50% of minimum and essential benefits. 0 • • The organization pays at least 80% of the costs for minimum and essential benefits. Part-time staff has access to a benefits package that includes health benefits. •❑ 0 The organization pays more than 80% of the costs for minimum and essential benefits for staff and dependents and offers other incentives such as a dental/vision plan and personal leave. The organization contributes to a benefit plan for part-time staff. J. STAFF PARTICIPATION IN BOYS & GIRLS CLUBS OF AMERICA EVENTS AND PROGRAMS There Boys training CPO members is limited participation in & Girls Clubs of Americas events and conferences. The and other key staff are of the Academy. • Staff participates in core training events as outlined in requirements for the Professional level of the Academy of Boys & Girls Club Professionals. The CPO attends either an Administrative Conference and/or the National Conference annually. All full and part-time youth development professionals have completed the 3 basic training sections of BGCA's Gear UP! CD ROM. CI ■ 0 100% of eligible staff participates in the Administrative/Leadership Conference, National Conference or Youth Development Conference annually. 75% of eligible staff is members of and active in the Academy of Boys & Girls Club Professionals at the Member lever 50% of eligible staff, including the chief professional officer, is members of the Academy at the Professional level. 0El • 90% of all eligible staff is members of the Academy of Boys & Girls Club Professionals and 75% of all eligible staff are members of the Academy at the Professional level. The CPO and other key staff have achieved the Distinguished level in the Academy of Boys & Girls Club Professionals. Staff is actively engaged in support of Movement - wide initiatives and serves on BGCA task forces and planning committees. Key staff is members of external and internal professional organizations. K. TECHNOLOGY SKILLS Appropriate Club staff has only a basic skill level for using technology. Appropriate Club staff have received training to use basic productivity software, the Internet and other applications (i.e.: membership management, donor management, financial management, etc.) important to their job function(s). ■ • 0 Appropriate Club staff utilizes technology to enhance their effectiveness and efficiency in all major components of their job. The Club has a technology training plan for staff and provides competency- based testing of skills. ■ ■ ■ The Club has a written technology training plan for staff that is budgeted and adopted by the board of directors. All full-time staff is regularly tested for IT skill competency. May 2006 Page 15 of 31 STANDARDS OF ORGANIZATIONAL EFFECTIVENESS (SOE) RESOURCE DEVELOPMENT 'l`o l tfm to =J it loping Operational Advancing Excelling A. RESOURCE DEVELOPMENT STRATEGY/ DIVERSIFIED FINANCIAL SUPPORT ■ • D ❑ ❑ • ❑ ■ ❑ ❑ ❑ ■ The organization does not have a Resource Development (RD) Committee. The organization's fundraising is erratic with experimentation, poor results and is overly dependant on a single source of funding. There is no written RD plan. Active cultivation of new donors and prospect identification and classification are non-existent. Funding meets the organization's needs for the current year but is highly dependant on one source of funding. There is a Resource Development Committee that coordinates an RD plan which includes a strategy on how to cultivate new donors. Board members are engaged in classifying prospects for their capacity, ability and propensity to invest in the Club. No more than 40% of funding comes from a single source. The board of directors has approved a written 3-year resource development plan that clearly illustrates no over -dependency on any one source of funding. Board members are actively engaged in cultivating new prospects. The Club regularly uses research to classify current donors and obtain new donors. No more than 30% of funding comes from a single source. The board of directors has a 3 to 5- year written resource development plan that is integrated into the organization's strategic plan and includes strategies for multi -year funding, individual and major gifts, endowment and planned giving. The organization regularly screens its donor database to identify the potential of increased giving. No more than 20% of funding comes from a single source. B. RESOURCE DEVELOPMENT INFRA -STRUCTURE • • • • ❑ • ■ • 0 • • • The Chief Professional Officer is the only person supporting the resource development effort. There is no database to collect and track donor information and gifts. Besides the Chief Professional Officer there is/are staff who has/have resource development accountabilities included in his/her job description. There is a written organizational case statement that documents the need for support. The organization maintains accurate personal and participation donor data electronically and tracks it over multiple years. The organization has specialized staff to support the resource development plan. Staff and board members receive ongoing training to support building their resource development knowledge. The organization has an electronic donor management software application that generates reports. The organization uses the database system to instantly generate reports on donors and campaigns for increased fundraising success. The organization has dedicated staff, such as a director of development, to support the resource development plan. The organization uses donor management analytical tools and reports to increase fundraising success through targeted solicitation. The donor management software is fully integrated with financial management software. C. INDIVIDUAL AND MAJOR GIVING (EXCLUDING SPECIAL EVENTS) • • • • ❑ • ❑ • • ■ ■ • The organization receives support from individuals including alumni, but does not have a comprehensive plan to ensure that requests to individuals are coordinated and strategic. Board members are not involved in personalized solicitations. At least 50% of Board members support events and some make personal unrestricted gifts to the annual campaign. A comprehensive plan for individual support includes an annual giving program that recognizes and celebrates individuals. At least 50% of board members are actively involved in personalized solicitations. Less than 75% of board members make personal unrestricted gifts to the annual campaign. A written comprehensive plan for individual support includes a multi- year, annual giving strategy that ensures strong individual support. A minimum of 15% of the budget comes from individuals as unrestricted gifts. A minimum of 75% of board members are actively involved in personalized solicitations. 100% of board members make personal unrestricted gifts to the annual campaign. The organization has a comprehensive strategy for cultivating support from individuals that includes an annual campaign, and other measures to increase giving from individuals. A minimum of 20% of the budget comes from individuals. 100% of board members are actively involved in personalized solicitations. May 2006 Pag )f 31 Advancing: Execlling i o c Summary Developing Operational D. SPECIAL EVENTS 0 0 � The organization conducts no special events. ❑ � � The organization conducts special events; but planning is limited, committee roles are not clearly defined and the events are staff- driven. 0 • 0 The organization conducts well planned special events generating 15% of the organization's annual operating budget. The visibility of the organization is enhanced by the events, and high -profile volunteers comprise the committee's membership. Attendees are regularly recruited for ongoing organizational participation. ❑ ❑ 0 The organization conducts well planned special events that maximize return on investment. The committee roles are well defined, and strategies regarding leadership recruitment, cultivation, and fundraising are written and well defined. There is an intentional plan to cultivate attendees to become annual donors. E. GOVERNMENT FUNDING • 0 0 organization does not receive govemment funds, nor does it have govemment the knowledge or contact base to pursue such funding. Members of the board have little if any access to key individuals with government resources at their disposal. ■ • ■ The organization has an understanding of the availability of government funding and has inquired about strategies to access such funding. It understands the need to improve in this area, but has had little success to date. Members of the hoard have some access to those controlling govemment resources. • ■ 0 The organization actively pursues local, state and federal funding opportunities. It has good knowledge of proposal writing and knows how to market services that the Club provides. The organization is using government funds to leverage additional private funding. The organization is a contributing member of its state alliance. Members of the board have developed relationships with those controlling government resources and have ongoing communications with Boys & Girls Clubs of America. The organization receives a minimum of 5%, but no more than 25% of its income from a single government source. The understanding government an excellent government from the board contacts offices to secure organization the Alliance government ■ ❑ 0 organization has a keen of the potential of funding. The Club does job of leveraging dollars to match income private sources. Members of have a wide range of within key government and have used such contacts govemment funding. The is actively involved in and supports national relations initiatives. May 2006 Page 17 of 31 Topic Summary •w� ;, Developing, Opt a>Vional Adva�nexnp Excelling F. PLANNED GIVING AND ENDOWMENT BUILDING A staff member spends 10 to 25% of time to market and solicit planned gifts. 25% of the board members have designated the Boys & Girls Club for a planned gift. There are comprehensive gift acceptance policies in place, which include real estate, gift annuities, and charitable trusts. 50% of the board participates in an organizationally sponsored planned giving program, such as in the Heritage Club. The Club markets planned giving in Club publications. The Club has a marketing plan that includes advanced gifts. The organization has no endowment or procedures in place. There There are no formal programs for the development or promotion of planned gifts or major gifts to the endowment. A staff member spends 5 to 10% of time to run a basic planned giving program. Gift acceptance policies for securities, bequests and beneficiary designations are in place. There is a formalized planned giving recognition program in place including a Heritage Club (or deferred giving society). 25% of the board participates in the Heritage Club. A planned giving prospect list has been identified and a solicitation plan is in place. A simple marketing plan has been established. A system for record keeping is established. A staff member spends 25 to 50% of time to market and solicit planned gifts. 75% of the board participates in the organization's planned giving program, such as the Heritage Club. The Club has an aggressive marketing plan, which includes direct mail and marketing to allied professionals. The organization has established named endowment funds and solicits outright gifts to the endowment. G. STEWARDSHIP AND RECOGNITION The organization has no written policies to support and implement recognition and stewardship. There is little communication with donors besides an acknowledgment letter. The organization has written acknowledgment policies. Donors receive an annual report, which at minimum documents sources of funds, uses of funds, giving levels, photos of youth, a summary of the year's highlights, and relevant activities of the organization. The organization has written gift acceptance and recognition policies. Donors receive 3 to 4 pieces of communication throughout the year demonstrating the Club's impact. Staff regularly visits with top donors. A written yearly plan for stewardship is in place to document how board and staff are to be involved in the stewardship process. Top donors receive personal stewardship visits from board members and top donors are engaged with the organization. IL FOUNDATIONS 0 � � � � � � � � � ■ � The organization does not have a strategic plan for writing proposals or for securing grants and is unable to consistently deliver program outcomes, The organization receives funding from various foundations. There is an informal effort to attract foundation funding. The organization has a written plan for attracting funding from foundations. The plan includes annual solicitations and is incorporated as part of the organization's resource development plan. The organization delivers the program outcomes defined in foundation proposals. 5% of the Club's annual operating income comes from foundations. The organization has securing grants fro,n corporate foundations excellent job of de program outcomes proposals. Board Members relationships with ley leaders and staff and leverage resources organization, resultjing 10% of Club annual income being generated foundations. a plan for private and and does an ivering the listed in its have foundation are able to for the in a minimum operating from May 2006 Pagt f 31 TopicSumma y ;; Developing Operational Advancing Excelling I. BUSINESS SUPPORT • • • 0 D • • • ■ ❑ • ■ The organization receives little or no support from businesses, including cause -related marketing income. The organization receives a minimum of 5% of its annual operating income from businesses (including income derived from cause -related marketing). The organization has a strategy as a part of its resource development plan through which it receives a minimum of 10% (includes in -kind gifts) of its annual operating income from businesses (including income derived from cause -related marketing. The organization receives a minimum of 15% (includes in -kind gifts) of its annual operating income from businesses (including income derived from cause -related marketing. May 2006 Page 19 of 31 STANDARDS OF ORGANIZATIONAL EFFECTIVENESS (SOE) FINANCIAL MANAGEMENT Topi U+m iary " D relopinp = i Qgerational Ad• vancing .,. Excelling- A. FINANCIAL CONTROLS AND • RECORD KEEPING • 0 0 0 The board has a standing Finance Committee which addresses the audit, investments and insurance matters related to the organization. The board monitors the compliance of all contracts or agreements on an ongoing basis. The organization has a separate functioning Audit Committee that manages contracts with accounting and/or CPA files for audit purposes. ❑ ■ ■ ❑ • ❑ ■ 0 0 There are no evident systems in place to ensure compliance with applicable local, state and federal financial regulations. The organization complies with all local, state and federal regulations. The hoard has an active Finance Committee in place. Key staff is trained in the organization's internal control standards and systems. There is an adequate system to specify and assure compliance with industry standards related to length of time for retention and maintenance of financial, inventory, personnel, and warranty records. The organization has sound financial policies and procedures with which all staff is familiar. Legal procedures are monitored and reviewed by staff and board leadership annually. Staff adheres to operational practices. The financial policies are updated and revised every 2 years utilizing external expert counsel. Staff receives ongoing training for implementation. The organization maintains an internal auditing system. The organization has a system adequate to maintain the compliance and precaution of all contracts of agreements. B. FINANCIAL ■ ■ ■ ■ ■ 0 • ■ ■ ■ ❑ ❑ ACCOUNTABILITY The financial planning and The organization receives an audit The organization receives an The organization receives a management program is limited and by an independent Certified Public unqualified audit report. The management letter from an not clearly understood. A written Accountant and provides a copy of organization has and utilizes independent CPA with no material financial management assessment is such to Boys & Girls Clubs of accounting software to record and findings. The board has a completed and the America. The organization has report income and expenses in freestanding Audit Committee staff/organizational needs are identified and aligned to an action taken corrective action on recommendation(s) from the accordance with generally accepted accounting principles. responsible for the appointment, compensation and oversight of an plan for correction. management letter. The organization files a 990 and/or A133 (if required). The organization puts their audit services out to bid at least every five years. A copy of the organization's 990 is sent to external auditor. The Audit Committee reviews the external auditor's reports and, where applicable, implements timely and appropriate corrective action. BGCA, posted on the organization's Web site, and copies are available to the public. May 2006 Pagt If 31 m oo a 'Developing; Operational Advancing Excelling C. FINANCIAL STABILITY ❑ ❑ ❑ The organization has experienced an operating deficit in the last 3 . consecutive years. The organization has Long-term debt and no written plan to address the debt. ❑ ❑ ❑ The organization has reserves equal to 6 months' operating budget. A board -approved budget is in place. ❑ • • ❑ ❑ • A board -approved budget is in place. If the organization has long-term, moderate debt, a written plan is in place to address it. The organization has reserves equal to its annual operating budget, excluding any restricted endowment funds. The organization has no operating deficit in the last 5 years. The organization has no long-term operational debt. D. BUDGET PROCESS ❑ ❑ ❑ The organization has a realistic annual budget sufficient to support organizational goals and objectives. Appropriate committees make income and expense projection recommendations that result in a budget which addresses priorities in the strategic plan. ❑ ❑ ■ ■ ■ • ■ • • Budget figures are unrealistic and continually revised. The board is not involved in the budget development process. Income and expense budget projections are based on historical data and strategic plan priorities, not on percentage increases. There is board participation in budget development with board approval at least 30 days before the start of the next fiscal year. The board is involved in developing a long-range (at least 3-year) budget to support the organization's strategic direction focusing on capacity, growth and program. E. EXPENDITURES ❑ ■ ■ 0 ■ 0 0 • • • El IIII There are no evident systems in place to control expenditures within budget. The organization has systems in place to control expenditures. The board provides ongoing oversight to assure organization's expenditures are within budget. A process exists to educate and inform the board of directors of organizational expenditures. No more than 20% of expenditures are for management/general and fundraising. The organization has adequate processes to allocate staff time to functional categories. Cash flow projections are developed and reviewed monthly utilizing accepted accounting practices. Prompt corrective action is taken in response to projected or significant variations from budgets. No more than 16 to 19% of expenditures are for management/general and fundraising. No more than 15% of expenditures are for management/general and fundraising. May 2006 Page 21 of 31 Topic Summary - Developing Operational •Advancing • Excelling F. FINANCIAL DATA TRACKING ❑ ❑ ❑ Fund accounting software is fully integrated with donor management software. The system is configured to accommodate staff in remote locations that need access to accounting information over a wide area network (WAN). Financial data is secured and backed up on a regular basis and is kept off site. ■ ❑ ❑ ❑ ❑ ■ ❑ ❑ ■ The organization does not track financial data electronically. The organization accurately tracks income and expenses electronically. Data is secured and backed up on a regular basis, The organization uses fund accounting software, and generates appropriate financial statements monthly to accurately track, manage and report on funds from multiple sources, across multiple budget periods. Monthly financial statements are reviewed by management and the board to help make decisions. Financial statements/reports are provided to BGCA on a regular basis as required. G. INSURANCE AND RISK MANAGEMENT ❑ ❑ ❑ Organization lacks adequate insurance coverage or reserve funds. ❑ ❑ ❑ The organization independently reviews and prices insurance coverage for adequacy at least every 2 years. ■ ■ ❑ ■ ■ ❑ The organization has adequate insurance coverage meeting all membership requirements and names Boys & Girls Clubs of America as an additional insured. The organization has a written risk management plan, which incorporates adequate insurance coverage. • H. INVESTMENT MANAGEMENT ❑ ■ ❑ ■ ■ ■ ■ ■ ■ ■ ■ ❑ Organization lacks policies guiding the management of their restricted funds/investments. The organization has restricted funds/investments and has written investment policies and objectives to guide their management. Investments are diversified and performance is monitored quarterly by the Investment Committee and reported to the Board. The organization uses income in accordance with board policies and donor requirements. The organization's written investment policies address well defined goals and objectives, risk tolerance, asset allocation, disposition of undesignated funds, spending rules, and gift acceptance guidelines. An independent review of strategy and performance is conducted on an annual basis by a noncommissioned professional. An independent investment manager is employed to manage the organization's portfolio in accordance with policy and objective statements. The investment manager has the ability to manage and administer charitable gift vehicles. May 2006 PagE f 31 STANDARDS OF ORGANIZAi ivi+1AL EFFECTIVENESS (SOE) IMPACT ASSESSMENT/PROGRAM Incite' Sumnt ' : Pevelop ii l` ,perational AdvancingExcelling A. SAFE AND POSITIVE ENVIRONMENT 0 ❑ 0 Some program areas are open without adult supervision. Updated bulletin boards and member pictures are not consistently displayed. Members have limited knowledge of the rules and are not engaged in helping to reinforce positive behavior. Staff, volunteers, and junior staff are not clearly identifiable and do not have training in emergency procedures. 0 0 0 All program areas are staffed continually by a responsible adult. Updated bulletin boards, posters, and member pictures are displayed. Members are knowledgeable of rules and are expected to promote and help reinforce positive behavior. All staff is clearly identifiable, is aware of the Club's atmosphere and safety, and is trained in emergency procedures. ■ ■ ❑ ■ ■ 0 The Club meets all statements in the operational category and consistently implements 75% of the practices in the area of safe and positive environment. The Club consistently meets all practices in the area of safe and positive environment and provides added value through local practices. B. SUPPORTIVE RELATIONSHIPS • 0 O • • • 0 • • 7 • Staff knows the names of regular Club members. There is no planned attempt to ensure every member develops relationships with at least one staff member. Limited attention is spent on the transition of new members and staff do not view themselves as role models for members. Limited time is spent developing peer -to -peer relationships at the Club and there are few spaces available for small groups or quiet pursuits. Staff knows names, interests, and family situations of regular members. Staff ensures that regular Club members have a relationship with at least one staff member. Staff members are trained in informal guidance techniques, conflict resolution, decision -making, and goal setting. All members go through a new member orientation. Staff discusses the progress of new members in weekly staff meetings. All staff is positive role models for members and friendships are encouraged and supported at the. Club. Several areas of the Club encourage small -group interactions and quiet conversations. The Club meets all statements in the operational category and consistently implements 75% of the practices in the area of supportive relationships. The Club consistently meets all practices in the area of supportive relationships and provides added value through local practices. May 2006 Page 23 of 31 Topjc,n4,'r Yeveloping An�eri Advancing cceIli a a C. OPPORTUNITIES AND EXPECTATIONS ❑ ❑ ❑ Staff meet regularly and work together to develop and implement a daily, weekly, monthly, and yearly program calendar that ensures a range of activities in all five -core program areas for all age groups. A technology center with quality equipment is available, staffed and well utilized throughout operating hours. A wide variety of strategies are used to express high expectations for all members' character, citizenship, leadership, health, wellness, avoidance of risk behaviors, academic success, graduation, post -secondary education, and career plans. Members are able to choose what activities they engage in while at the Club. • ❑ • ❑ • • ❑ • ❑ Little time is spent planning the overall • Club program. The Club provides limited opportunities in the five -core program areas. Few computers are available for member use and Internet access is not available, Members do not receive a consistent, strong message about the importance and expectation of character, citizenship, •leadership, health, and wellness, avoidance of risk behaviors, academic success, graduation, post -secondary education, and career plans. Members do not have a choice in how they spend their time at the Club. The Club meets all statements in the operational category and consistently implements 75% of the practices in the area of opportunities and expectations. The Club consistently meets all practices in the area of opportunities and expectations and provides added value through local practices. D. FUN 0 0 0 ' The Club consistently meets all practices in the area of fun and provides added value through local practices. ❑ ■ ❑ ■ ■ ❑ El ■ Fun, interest -based activities are restricted to the gymnasium and games room. The Club has adequate space for its program needs, but the building lacks attractive features for young people. Staff members implement activities and programs exactly as prescribed; there are no modifications to attract or retain the interest of young people. Fun, interest -based activities have been scheduled for all areas of the Club. Program areas of the Club are organized and designed to be attractive to all members. The infusion of fun, interest - based activities into all program areas is discussed in weekly staff meetings. All staff members have a ready supply of "on -the -spot" fun games. The Club meets all statements in the operational category and consistently implements 75% of the practices in the area of fun • E. RECOGNITION ❑ • 0 • • • • ❑ 0 • ❑ 0 Staff members acknowledge the presence of young people by speaking to as many young people as they can as they walk through the Club. Major awards and accomplishments are prominently displayed. The Club provides extrinsic rewards to encourage program participation and celebrate program completion. Staff members meet on a weekly basis to discuss successes and shortcomings in participation of youth. Staff members strategize on the best ways to reward or redirect young people's behavior. The staff has an established system for regularly displaying and updating members' work and achievement and of providing extrinsic rewards and assisting young people in developing intrinsic motivations to participate in program and attain outcomes. The Club meets all statements in the operational category and consistently implements 75% of the practices in the area of recognition. The Club consistently meets all practices in the area of recognition and provides added value through local practices. May 2006 Page 31 - . ,p:evelopin ' Operational Advancing Excelling F. OVERALL CLUB OPERATIONS AND SUPPORT ❑ ❑ ❑ The Club meets all statements in the operational category and consistently implements 75% of the practices in the area of overall Club operations and support. ❑ ■ ❑ The Club consistently meets all practices in the area of overall Club operations and support and provides added value through local practices. ■ ■ CI■ ❑ ❑ Club operates on average at less than 75% of optimal daily attendance, less than 30% of members participate two or more times per week throughout the year, and there are no membership recruitment or retention plans. The Club has minimum operating hours and some members are unable to participate because of fees. The Club collects membership information and daily attendance. There are few partners and limited community events take place at the Club. Parents seldom participate in Club activities. Club operates on average at 75% to 85% of optimal daily attendance, 31%to 45% of members participate two or more times per week throughout the year, and there are written membership recruitment and retention strategies. The Club operates six days per week and at least five hours per day and membership and program fees exclude some members, but scholarships are provided. The Club has an ongoing system for measuring and assessing the reach and impact of the Club. Club has outstanding community partnerships and hosts a number of ongoing community meetings and special events. Parents are encouraged to be involved in the Club. G. TEENS ❑ ❑ ❑ The Club has dedicated program hours or space as well as an annual budget for teen programs that reflects a commitment to serve significant numbers of teens. The Club provides a unique experience for all members. Teens are engaged in the development and implementation of programs and activities. There is an active, year-round junior staff program for teenagers. There is an ongoing process, via Club programs and activities, to develop new teen leaders in the Club. ■ ■ ❑ ❑ ■ ■ ■ ■ ■ The Club has dedicated hours and a modest budget for teen programming. The Club's teen program is a version of the core program experience for all members. There is little involvement of teens in the development and implementation of programs and activities. There are regular opportunities for teens to provide service to their Club. Teens with innate leadership abilities are provided ongoing opportunities to utilize and develop their leadership skills. The Club meets all statements in the operational category and consistently implements 75% of the practices in the area of teens. The Club consistently meets all practices in the area of teens and provides added value through local practices. H. TRANSITIONS ❑ ❑ • • ❑ • • ❑ ❑ 0 • • There are no policies for how members enter and exit the building. The front entry is not distinguished by check -in- desk staff. Members are not greeted as they enter the building and membership cards are not required. The Club does not conduct a new member orientation and there are few program schedules on display. The Club has defined policies on how members enter and exit the building. The entry area is clearly defined and staffed. Members are greeted by first name as they enter the building and must present a membership card to gain entry. The organization conducts an orientation for new members and daily, weekly, and monthly schedules are posted in a prominent location and at the entrance of eachprogram area. The Club meets all statements in the operational category and consistently implements 75% of the practices in the area of transition. The Club consistently meets all practices in the area of transitions and provides added value through local practices. May 2006 Page 25 of 31 STANDARDS OF ORGANIZATIONAL EFFECTIVENESS (SOE) MARKETING AND COMMUNICATIONS Topic Summary Developing Operational Advancing Excelling A. BOARD INFLUENCE AND INVOLVEMENT ❑ 0 ❑ • 0 0 No board or staff leaders of the organization are involved on other community boards or groups. There is limited involvement by Club board and staff leaders on other community boards and groups. The organization has (board and staff) representation on issues affecting youth through community boards, commissions and civic organizations. The organization has active board and staff representation on various community boards, commissions and civic organizations that affect decisions and influence/advocate for youth issues. B. IMAGE ❑ ❑ 0 Facilities, vehicles and other Club assets are poorly maintained and often used in a manner that does not reflect a positive image. 0 0 0 Facilities, vehicles and other Club assets are maintained and utilized in a manner that generally reflects a positive image. ■ ■ • 0 ■ ■ The organization's facilities, vehicles and other Club assets are maintained and utilized in a manner that reflects a positive image. The organization uses external market resources to support and develop its image. The organization's facilities, vehicles and other Club assets are maintained and utilized consistent with written guidelines and training and in a manner that always reflects a strong positive image. The Club measures external market research and implements plans for improvements. C. MEDIA RELATIONS 0 ❑ 0 There is little or no attempt to maintain contact with local media representatives. 0 • 0 0 ❑ • 0 • • The organization has periodic or occasional contact with local media representatives for publicity and advertising purposes. The organization has regular, planned contact with local media representatives for publicity and advertising purposes. The organization has a written plan for ongoing contact with local media representatives and maintains a local media list. The organization maintains and reviews a written plan for ongoing contact with all local media, both for publicity and advertising. The plan maximizes media exposure and results are published in a quarterly report to the hoard. D. BOYS & GIRLS CLUBS OF AMERICA MARKETING MATERIALS . 0 0 ❑ ❑ • ❑ 0 The organization does not use Boys Girls Clubs of America marketing materials materials or they are used with very poor adaptation. The organization uses Boys & Girls Clubs of America public service announcements sporadically. The organization does not coordinate media requests with other Boys & Girls Club organizations in the same media market. The organization regularly uses Boys & Girls Clubs of America public service announcements and marketing materials. The organization coordinates with other Boys & Girls Club organizations in the same media market, and localizes ads only as appropriate. The organization uses Boys & Girls Clubs of America public service announcements and marketing materials. Local campaigns are created and implemented to augment and complement Boys & Girls Clubs of America advertising materials. May 2006 Page f 31 Topic Summary. J eyelopbg' Operational Advancing Excelling E. MARKETING STRATEGY 0 00 The organization has a Marketing and Communications Committee which meets regularly and has developed and implemented a written strategy to gain recognition and support for its Club(s) as "The Positive Place for Kids," including a written plan for targeting appropriate publics. ❑ •• ••• 0•■ The organization has no Marketing and Communications Committee and little, if any, activity underway to promote awareness of and support for its Club(s). The organization has a Marketing and Communications Committee that meets occasionally to plan and implement efforts to gain recognition and support for its Club(s). The organization utilizes Boys & Girls Clubs of America's advertising, public service announcements and other marketing materials. The organization has an active Marketing and Communications Committee leveraging outside resources to assist in developing and implementing an aggressive written strategy and plan for positioning its Club(s) for community/brand recognition and support as "The Positive Place for Kids," with written outcome measures resulting in income streams for the organization. F. COMMUNICA- TIONS/PUBLIC RELATIONS CAMPAIGN • • 0 • ❑ • ❑ • • • ❑ ■ The organization has no public relations/communications program. There is a limited communications program, which includes utilization of appropriate media to reach the public. The organization implements a year- round written communications/ public relations program including utilization of appropriate media to reach each public; allocation of budget; and evaluation of total program. The organization implements a comprehensive written communications/public relations program including utilization of appropriate media to reach each public, allocation of at least 5% of budget and evaluation of the total program, G. PROMOTIONAL MATERIALS REFLECT POPULATION SERVED 0 0 0 Promotional materials occasionally reflect diversity of youth. • • � El • • • • 0 Promotional materials do not reflect diversity of the organization. Promotional materials usually reflect diversity of the youth and staff. Promotional materials always reflect diversity of the youth, staff and board. H. CRISIS MANAGEMENT PLAN 0 0 0 There is uncertainty as to who speaks for the organization and with what message. •• El ❑ ❑ ❑ ■ There is a written crisis management plan. The chief professional officer (CPO) usually speaks for the organization. The organization has a designated spokesperson with written guidelines for responding to crises that arc clearly understood by board and staff members. The organization has a written crisis management plan approved by the board that is clearly understood by board and staff members. Response to crises is reviewed and rehearsed at least annually. • I. BOYS & GIRLS CLUBS OF AMERICA'S GRAPHIC STANDARDS 0 00 Staff and board share best practices and adherence to graphic standards with the Movement. � • • ❑ • • 0 • • Adherence to graphic standards is limited. The current service mark of Boys & Girls Clubs of America is displayed on the outside of its building and on all appropriate printed matter and complies with approved graphic standards. Vendors, staff, and board members receive annual orientation and training on graphic standards. May 2006 Page 27 of 31 Topic'Sunniairy jjeveloping Operational Advancing Excelling J. INTERNET ❑ ❑ ❑ • CI CI■ ❑ ❑ ❑ ❑ ❑ UTILIZATION AND The organization lacks a functioning, professionally The organization maintains a basic Web site that is updated at least The organization's Web site contains essential, accurate The organization maintains a high - quality, regularly updated Web site. developed Web site. quarterly. There is little use of information about Club programs Email inquiries from the public are MANAGEMENT available marketing materials. The and events and is updated monthly. answered promptly. Resources are organization meets Boys & Girls There is a designated staff person or downloaded and used. A cost - Clubs of America's graphic volunteer to update and maintain the benefit analysis is conducted standards and the site contains a link to www.beca.org. organization's Web site. National marketing materials are regularly downloaded and used. annually. May 2006 Page f 31 STANDARDS OF ORGANIZATIONAL EFFECTIVENESS (SOE) FACILITIES mmDeveloping i Suary ;;D Operational < ..:. Advan ing Excelling A. SAFETY Entra contro walk- areas monit and eternally. provi training ❑ ❑ ■ ❑ CI■ ■ ❑ ■ ■ ■ Club personnel are not easily identified. Configuration of building makes it difficult to supervise youth. Building and grounds do not appear secure. There is no emergency plan in place. The facility has a basic security system in place. The board has established a committee to ensure Club safety and maintenance. Club staff is easily identified. There is controlled access to the building. Building(s) is/are regularly inspected by the fire marshal. There is good visibility into all activity spaces, A written crisis plan is available to all staff, Buildings and grounds are free of common hazards. Emergency exit doors are unblocked, clearly marked, alarmed, and operable. Clothing or ID easily identifies Club staff. There is controlled access to property and buildings. The organization has an electronic security system that is monitored externally. ce routes are observable and ]able at all times, There is y visibility into all program s well as video and/or staff ring capabilities internally The organization es documented crisis response for all staff. B. STRATEGICALLY The organization's strate and s youth perio locatirn • ❑ • 0 • • 0 ❑ • • • Facilities are located in an area that is clearly inappropriate for access by large numbers of youth. Facilities are located in a marginally effective area for reaching a large number of youth. The organization's facilities are located so as to reach and serve a large number of targeted youth. facilities are ically located so as to reach rve a large number of targeted The organization conducts a is review to assure continued appropriateness. LOCATED C. ADEQUACY OF FACILITIES ❑ • 0 • ❑ • • ❑ 0 • • • The organization operates poorly equipped, limited facilities only capable of housing a marginally varied and diversified program. The organization operates limited facilities that are adequately equipped and capable of housing a varied and diversified program. The organization operates facilities that are adequately equipped and capable of housing a varied, diversified program. The organization equipped housing progrtrm.. operates optimally facilities capable of a varied and diversified D. MAINTENANCE OF FACILITIES The organization multiyear plan • E • 0• 0 0 • 0 E • • Facilities are believed to be safe, but are not regularly cleaned or repaired to remain functional. All components of building, grounds, equipment and furnishings are cleaned regularly and operate properly in accordance with local codes, applicable laws and ordinances. The organization has a written maintenance schedule for cleaning, for repairing and replacing equipment and furnishings as needed. has a written, preventive maintenance and upgrade schedule. May 2006 Page 29 of 31 Topic summary• Developing Operational Advneing Excelling E. AGE APPROPRIATE - MESS Program areas are functional for both children and teens with shared space but distinct equipment. Games, toys, books and furniture for each age group are available and in good repair. Facilities attract children and teens, but there is no apparent effort to address different age groups' needs by providing age -appropriate equipment and furniture. Program areas are dedicated for two age groups (6 to 12 and 13 to 18). Games, toys and books for each age group are available and in good repair. Furniture is kid/teen friendly. Within each program area there are dedicated spaces for 3 main age groups (6 to 9, 10 to 13, and 14 to 18). Games and toys for each age group are available and in good repair. Furniture is available in 3 sizes to accommodate most members. Pertinent information is displayed at eye level of target audience. F. CLUB ENVIRONMENT . � 0 • ■ 0 Program spaces are inadequate in size/proportion for use. Decor is drab, outdated, mismatched or disorganized. Entire facility, is clean and well lit. Program spaces are of adequate size for function. Color scheme may be out of date but clean. Light levels and sound controls are adequate for tasks; temperature is appropriate. Program spaces are of adequate size and proportion and can be used for multiple functions Color scheme is fun and child -friendly, and there is a sense of order in the space without it being rigid. Light levels, sound control and temperature support the Club environment. Program spaces arc inviting, are of adequate size and proportion and support several different furniture arrangements for different learning styles. The color scheme is fun and child -friendly and planned to enhance environment. Light sources exceed recommended standards and include abundant natural light. Sound levels and temperature are conducive to fun and learning. G. FINANCIAL RESERVES FOR MAINTENANCE ■ • There is no plan or provision for major repairs and improvements to facilities and equipment. The organization usually finds funding for major repairs and improvements, sometimes at the cost of operating income or with costly delays. The organization has access to funds for major repairs and improvements to facilities and equipment. The organization has a designated facilities reserve fund. The organization has designated adequate financial reserves for the maintenance and replacement of facilities and equipment. H. PLANNED MAINTENANCE 0 0 0 The organization has a written planned maintenance program, complete with schedules and accountability assignments. • 0 0 • • • • • • The planned maintenance program, if any, is superficial and sporadic, responding primarily to urgent conditions. There is an informal planned maintenance program characterized by frequent inspections of major facilities and equipment. The organization has a systematized, ongoing planned maintenance program. May 2006 Page f 31 Topic S.umrt a ,i, l 'Ott1 •anal thancittg . . 1I , .... -n ts I. FACILITY/ EQUIPMENT USAGE POLICY ❑ ❑ ❑ There are no established.policies for the use of facilities by others during non -Club hours. ❑ 0 0 .The organization has formal, comprehensive policies for the use of its facilities and equipment by others that are reviewed annually by the board in line with budget considerations. ❑ ❑ ■ ■ ❑ ■ The organization has policies regarding the use of facilities by others during non -Club hours. The organization has established written policies for use of its facilities by others during non -Club hours. J. GENDER INCLUSION AND ACCESSIBILITY•Facilities 0 0 0 Facilities and equipment are reflective of gender needs, and a written plan is being implemented for needed changes. ■•❑ ■ ■ Li 0 ■ ■ 0 and equipment favor one gender. Facilities and equipment are generally reflective of gender needs in appropriate balance and are gradually improving. An effort is made to mainstream disabled children as needed. Facilities and equipment reflect full and equal consideration for girls and boys. A written plan is in place to make the building compliant with the Americans with Disabilities Act. May 2006 Page f 31 CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: February 15, 2011 AGENDA ITEM NO. 9 EM TITLE: Resolution of the City Council of the City of National City authorizing the Mayor to execute an amendment to the agreement with Harris & Associates, Inc. for a not to exceed amount of $211,446 to provide Civil Engineering Services for the 8th Street Safe Routes to School Project (funded by Tax Increment Fund — local grant match; facilitated by a $450,000 State Safe Routes to School Grant. PREPARED BY: Stephen Manganiello, Traffic Engineer DEPARTMENT: Develo s/Eng. PHONE: 619-336-4382 APPROVED By: EXPLANATION: See attached. FINANCIAL STATEMENT: ACCOUNT NO. APPROVED: APPROVED: Finance MIS Funds will be transferred from 511-409-500-598-3938 (Westside Implementation) to 511-409-500-598-6176 (8th — from D to Highland) ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: STAFF RECOMMENDATION: Adopt the Resolution. BOARD / COMMISSION RECOMMENDATION: N/A ATTACHMENTS: Explanation L. Amendment to Agreement 3. Resolution Harris211 Explanation On October 20, 2010 Caltrans awarded a $450,000 State Safe Routes to School Grant for construction of the 8th Street Safe Routes to School Project from D Avenue to Highland Avenue near Central Elementary School. A local match of $650,000 is required for a total project cost of $1.1 million. This project will serve as an expansion of the $4.5 million 8th Street Smart Growth Project, which collectively, will provide traffic calming and streetscape enhancements from Harbor Drive to Highland Avenue, including undergrounding of overhead utilities from National City Boulevard to Highland Avenue. Both projects will be bid together to save costs, minimize the duration of construction, and ensure continuity along the corridor. Through a comprehensive, competitive Request for Qualifications process for the 8th Street Smart Growth Project, Harris & Associates was selected as the "most qualified" firm and was awarded the 8th Street Smart Growth Project (Council Resolution 2010-28). Since the 8th Street Safe Routes to School Project is an expansion and continuation of the 8th Street Smart Growth Project, there is no competitive advantage for the City to solicit additional qualifications for professional services from other firms. Harris & Associates is qualified to provide Civil Engineering services for the 8th Street Safe Routes to School Project based on their experience and performance on the 8th Street Smart Growth Project. Staff estimates a significant time and cost savings (up to 8 months and $100,000) by adding this project to the current agreement with Harris & Associates to incorporate design of the 8th Street Safe Routes to School Project into the plan set and specifications for the 8th Street Smart Growth Project, to be bid and constructed as one project. The time and cost savings are based on Harris & Associates' familiarity with the project, completion of the streetscape concepts and themes, overlapping of the utility undergrounding design (National City Boulevard to Highland Avenue), progress on construction plans and specifications for the adjacent roadway segments, ability to award one construction contract for the streetscape improvements, and elimination of a second request for qualifications. Staff recommends approval of an Amendment to the current contract with Harris & Associates. Funds will be transferred from 001-409-500-598-3938 (Westside Implementation) to 511-409-500-598-6176 (8th — from D to Highland) in the amount of $250,000. RESOLUTION 2011 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE A FIRST AMENDMENT TO THE AGREEMENT WITH HARRIS & ASSOCIATES, INC., FOR A NOT -TO -EXCEED AMOUNT OF $211,446 TO PROVIDE CIVIL ENGINEERING SERVICES FOR THE NATIONAL CITY 8TH STREET SAVE ROUTES TO SCHOOL PROJECT WHEREAS, on March 2, 2010, the City Council adopted Resolution No. 2010-28 approving an agreement with Harris & Associates, Inc., in the not -to -exceed amount of $299,814 to provide Civil Engineering Services for the National City 8th Street Smart Growth Revitalization Project; and WHEREAS, because the 8th Street Safe Routes to School Project is an expansion and continuation of the 8th Street Smart Growth Revitalization Project, there is no competitive advantage for the City to solicit additional qualifications for professional services from other firms to perform the same work as Harris & Associates, Inc., has been providing for the N 8th Street Smart Growth Revitalization Project; and WHEREAS, it is estimated that there is a significant amount of time (up to eight months) and cost savings ($100,000) to the City by adding this project to the current agreement with Harris & Associates, Inc., to incorporate the design of the 8th Street Safe Routes to School Project into the plan set and specifications for the 8th Street Smart Growth Project for the not - to -exceed amount of $211,446. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of National City hereby authorizes the Mayor to execute a First Amendment to the Agreement with Harris & Associates, Inc., in the not -to -exceed amount of $211,446 to provide Civil Engineering Services for the National City 8th Street Save Routes to School Project. Said First Amendment to the Agreement in on file in the office of the City Clerk. PASSED and ADOPTED this 15th day of February, 2011. Ron Morrison, Mayor ATTEST: Michael R. Dalia, City Clerk APPROVED AS TO FORM: Claudia G. Silva City Attorney FIRST AMENDMENT TO AGREEMENT BY AND BETWEEN THE CITY OF NATIONAL CITY AND HARRIS & ASSOCIATES, INC This Amendment to Agreement is entered into this 15TH day of February, 2011 by and between the City of National City, a municipal corporation ("CITY"), and Harris & Associates, Inc. (the `CONSULTANT"). RECITALS A. The CITY and the CONSULTANT entered into an agreement on March 2, 2010 ("the Agreement"), wherein the CONSULTANT agreed to provide civil engineering services for the National City 8m Street Smart Growth Revitalization Project (City Council Resolution 2010-28). B. The parties desire to amend the Agreement. NOW; THEREFORE, the parties hereto agree that the Agreement is amended to include preparation of plans, specifications and estimates for 81h Street Safe Routes to School Project from D Avenue to Highland Avenue, for a total cost of $211,446, as outlined in attached scope of work (Exhibit "A") Each and every term of the Agreement shall remain in full force and effect, except for the amendment contained herein, unless otherwise previously amended. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first above written. CITY OF NATIONAL CITY By: Ron Morrison, Mayor APPROVED AS TO FORM: Claudia G. Silva City Attorney HARRIS & A ; •ty'AT)`S, INC. By: t`_7:7 ko cr, S (Print) (Title) me) LJ R.1 c am'— eaa (Print) ViCa 5( 4n 7 ' 5r) _.! 4OA- IxA-i / 4 �►L__-. (Title) 1 DZHIBIT "A" Harris & Associates. Shaping the Future, One Project ata Time January 24, 2011 Mr. Stephen Manganiello City Traffic Engineer City of National City 1243 National City Boulevard National City, CA 91950 Subject: Professional Engineering Services for Additional Engineering Services for the Sth Street Smart Growth Rehabilitation — Extension of existing project to Highland Avenue including Additional Underground Conversion Dear Steve, Harris & Associates appreciates the opportunity to present this proposal to provide additional professional engineering services for extending the themeing and roadway improvements associated with the subject project. The following will present the main project elements, scope of services and fees. PROJECT UNDERSTANDING The City of National City is transforming this street into a pedestrian friendly, visually attractive corridor which will draw residents and shoppers into the downtown area mainly around "A" Avenue_ Traffic speeds will be reduced through channelization of lanes from 4 lanes to 2 lanes and landscape improvements will be made along the corridor. Based on the City's request, they wish to extend the project limit from "D" Avenue to Highland Avenue. The additional work includes the following: • Restriping the roadway from "D" Avenue to just beyond Highland Avenue from 4 lanes to 2 lanes, and angled parking will be added along the south side of the street • Construct raised landscape medians • Street lighting, both along the parkway and within the street • Wider sidewalks and shorter crosswalks will enhance pedestrian traffic • Inclusion of additional pedestrian ramps or modification to existing rarnps to meet current ADA standards • Modification to the traffic signal at "D" Avenue to include additional turning movements • Areas of pavement rehabilitation will be identified 2 January 24, 2011 Steve Manganiello Page 2 of 8 Scope of Services Phase II — Preparation of Construction Documents (PS&E) Task 1.0 Project Management 1-1 Progress Review & Meetings The Harris and KTU t A design team will continue attending monthly project development (PDT) meetings with City staff to present and discuss our progress submittals and design parameters. We had 12 meetings in our original scope. We have attended II meetings to date, and we anticipate another ten meetings will be needed. It is worth noting that these meetings arc in addition to the meeting required with the various utility agencies for the Conversion District already included in the initial Conversion District task order. We will also continue to provide copies of meeting minutes for the City's review. 1.2 Topographic Survey Our sub -consultant, Right -of -Way Engineering Services, Inc. will establish record street right-of-way and a center line survey for the project as follows: 1. Tie in sufficient monuments to orient record right of way 2_ Establish Centerline Stationing and perform cross sections at 25' intervals from "D" Avenue to Highland Avenue 3. Identify surface utilities that show in aerial mapping and tie in all other surface utilities not shown, including rim and inverts of storm drain and sanitary sewer, visible sewer cleanouts, water main appurtenances, water meters, gas, electric, phone and cable. 4_ Add cross section data, additional utility information and street right of way to aerial base mapping, update existing DTM 1.3 Base Mapping Utilizing the atrial topographic survey and survey data obtained in the Task 1.2, we will prepare base maps for the additional proposed improvements. Base maps will be prepared in plan, and plan and profile formats. Base maps will include roadway center line, right-of-way, manholes, valves, water meters, all visible utility boxes, and above and underground utilities. All base maps will be prepared in AutoCAD. 1.4 Data Gathering and Site Visits The Harris and KTU+A Team will perform additional field work to identify landscape/urban design features to remain in area as well as assess existing trees, site furnishings, walkways, and other elements. 3 January 24, 2011 Steve Manganiello Page 3 of 8 1.5 Utility Coordination We will mail initial utility notifications to all utility companies that have facilities within the additional project limit making therm aware of the upcoming construction activities and requesting copies of their maps and plans of their existing facilities within the project limits. Utility coordination also includes all efforts required for the undergrounding of existing overhead lines with SDG&E and other utility companies by expanding the efforts already underway for the original project reach. 1.6 Geotechnical Investigation Our Subconsultant, Ninyo & Moore will obtain additional geotechnical information for the project area. The scope of work for geotechnical evaluation will include the following: 1. Reviewing the previous geotechnical reports for the site as well as other available information 2. Obtaining encroachment permits from the City of National City 3. A visual survey of the surface conditions of the asphalt concrete pavement throughout the roadways using a standard rating system during our marking of the borings/core locations for Underground Service Alert. 4. Obtain four (4) borings to a depth of approximately 5 feet in depth for the roadway is proposed. The borings will be placed at selected locations within the roadway. 5. Evaluate all data developed and fonnulate cost effective recommendations to rehabilitate or replace the subject roadways to meet the current traffic index requirement. 6. Update the existing report for the project site. 1.7 Water Quality Management Plan - WQMP/SUSMP Extend the limits of the originally proposed Water Quality Management Plan (WQMP) in accordance with Standard Urban Storm Water Mitigation Plan (SUSMP) for this project. The WQMP report will be prepared in accordance with the City of National City SUSMP. Task 2.0 Preliminary Design (75% Submittal) 2.1 Preliminary Landscape Architectural Plans Additional preliminary landscape architectural plan sheets consistent with the already selected theme for the expanded reach which will include the following as needed: 4 January 24, 2011 Steve Manganiello Page 4 of 8 • Irrigation Plans & Details. This plan will diagrammatically lay out landscape irrigation piping, valves, control equipment, sprinkler heads, fertilizer injectors, booster pumps and related irrigation equipment for the irrigation of planting areas • Planting Plans & Details. This plan will graphically locate and identify planting materials to be used, including specific quantities, sizes and varieties, and will include planting details and planting legend to install plant materials. • Prepare Finish grading plans. Coordinate civil site drainage adjustments with pipe inlet/outlet locations, sizes, type and details for specific areas where necessary. • Landscape Lighting. Select historic lighting fixtures with banners and specify Lighting locations for up -lights, including fixture types. 2.2 Preliminary Civil Improvement Plans Prepare Preliminary Civil Improvement Plan Sheets for proposed improvements within the project limits to include sidewalk replacement, curb and gutter replacement, pedestrian ramps, decorative crosswalks, raised medians, and pavement rehabilitation. 23 Preliminary Drainage Improvement Plans Based on the available construction funding, no new storm drain improvements will be included in the scope of this project. Proposed drainage improvements will be limited to modification of existing curb inlets impacted by the proposed curb and gutter and sidewalk improvements. 2.4 Preliminary Street Lighting Plans Our sub consultant Kanrad Engineering will prepare preliminary plans for street lights per approved conceptual design to enhance the pedestrian safety and connectivity. Including an additional site visit, their scope of services will include the following: • Coordination with SDG&E • Coordination with the design team and City • Complete working drawings • Attendance at an additional meeting 2.5 Preliminary Signing and Striping Plan Prepare preliminary signage and striping plans within the additional project limits. Signing and striping plans will also include all proposed loop modifications. 5 January 24, 2011 Steve Manganiello Page 5 of 8 2.6 Preliminary Traffic Signal Plan Prepare plans for the traffic signal modification at "D" Avenue which V. include new poles, signals and push buttons, as well as revising the turning movement from 8th Street to "D" Avenue for this intersection. 2.7 Preliminary Specifications Prepare preliminary Specifications in the City's format using a digital sample provided by the City. The specifications will be submitted to the City for review, 2.8 Preliminary Probable Construction Cost Estimate A preliminary probable construction cost estimate will be prepared from actual quantities shown on the plans and unit cost from recent bids received by the City for similar items of work and Harris extensive bid tabulation history. Task 3.0 Final Plans, Specifications and Estimate (90%-100%Submittal) 3.1 Final Landscape Architectural Plans The final landscape architecture plans will incorporate the 75% submittal and its reviews. The final plan set will include the following: • Landscape/Hardscape drawings that include streetscape and all other special design features at 1"=20' • Irrigation plans • Detailed sheets that include hardscape, planting, and irrigation • Plant list, materials, and notes • Irrigation materials 3.2 Final Civil improvement Plans Prepare final civil improvement plan sheets to reflect the City's comments. 3.3 Final Drainage Improvement Plans Prepare final drainage improvement plan sheets to reflect the City's comments. 6 January 24, 2011 Steve Manganiello Page 6 of 8 3.4 Final Street Lighting Plans Prepare final street lighting plans and park lighting plans to incorporate 75% submittal comments. 3.5 Final Signing and Striping Plans Prepare final signing and striping plans to incorporate 75% submittal comments. Traffic control plans will be prepared by the contractor and therefore is not included in the scope of this proposal. 3.6 Final Traffic Signal Plan Prepare final traffic signal plan to incorporate 75% submittal comments. 3.7 Final Specifications and Estimate Final Specifications and estimate will incorporate comments from the 75% design submittal. This table summarizes the anticipated number of additional sheets the team anticipates for this extension of project limit. Description Scale Number of Sheets Landscaping Architectural Plans II Civil Detail Sheets NIA I Civil Improvement Plans, Plan & Profile 1"=20' 4 Drainage Improvement Plan, Plan & Profile 1"=40' 1 Street Lighting Plans 1"=40' 2 Signing and Striping Plans 1 "-40' 2 Signal Modification Plan at "D" Avenue 1"=20' I Total Estimated Sheets 22 January 24, 201 t Steve Manganiello Page 7of8 Task 4.0 District 24 20A Conversion The City of National City is taking the lead in designing and constructing the joint trench associated with 8th Street District 24 20A conversion project (Project). The Project is limited to providing trenching, backfill, substructures, conduit and pertinent work (Trenching Items of Work). All cabling and equipment installation design and construction work will be performed by SDG&E and the respective utility companies. Our proposed scope of work for this phase of the project is to assist the City with reviewing SDG&E and utility companies' plans to verify conflicts with existing field conditions, and prepare a utility composite plan. The following scope of work items are in concert with our proposal submitted to the City for 8`h Street District Conversion, dated December 15, 2010. 4.1 Preliminary Probable Construction Estimate Working with our Subconsultant, Butsko Utility Designs, we will prepare one dry utility probable construction cost estimate taking into consideration trenching items of work, with the assumptions as determined or directed by project team. 4.2 Communications Reimbursement Coordination Coordinate with SDG&E, AT&T and Cox Communications and the City of National City to review reimbursement agreements for the value of the joint Trenching Items of Work. We will conduct meetings and discussions with each utility with the goal of achieving an acceptable reimbursement agreement and amount with each utility based upon our cost estimates and the proposals received from the bidding trenching contractor. 4.3 Construction Documents Utilizing the approved Utility Composite, final plans, specifications prepared by SDG&E, AT&T and Cox Communication, and City front end specifications, prepare project construction and bidding (Construction Documents). Construction Documents will include an itemized bid schedule for the Trenching Items of Work and SDG&E's General Conditions. All quantities in the bid schedule will be estimated as shown on the utility companies' plans, DBL material listing, utility composite plan, and specifications. Quantity take offs breakdown of linear footages and number of substructure items is also included in the scope of this proposal. Construction documents will be submitted to the City, SDG&E and utility companies for review and approval. We have included two (2) rounds of review in our proposal. 4.4 CATV Trench, Conduit and Substructure Design Our sub -consultant Butsko Utilities will perform final CATV trench, conduit and substructure design. 8 January 24, 2011 Steve Manganiello Page 8 of 8 4.5 Bidding Assistance The project team will remain available during bidding to assist the City by attending the pre -bid meeting, addressing contractors' RFI's and preparing Addendums. Our services are limited to the estimated fee for this task. Services provided during construction are not included in the scope of this proposal. FEES Harris & Associates proposes to provide the above services for the total "not -to -exceed" fee of $211,446_ A breakdown of the proposed fee is presented for your information and use in evaluating this proposal. Our services would continue to be invoiced monthly based on the actual hours of work completed. Our services would be accomplished per an agreement with the City and all terms and conditions would be stated therein. Sincerely, Harris & Associates Ehab Cerges, PE Cc: Bob Sutherlin, Harris & Associates Dan Lee, Harris & Associates 9 HARRIS & ASSOCIATES City of National 8th Street Salad Growth Fee Proposal Extension to Highland Avenue January 24, 2041 Sub- Conwhams Task/Suhtuk PD S190 PE 5169 DE 1125 TECH S90 KTU+A Butsko ROW Ilmyo Q Moore Konrad _Phase 1I Preparation of Construction Documents Subtotals Task 1.0 Project Management ° F t ; -t: LL,0 1.1 Progress & Review Meetings 12 30 0 r S2,013 $9,363 1.2 Topographic Sur-cy 4 SI4,630 3I5,131 13 Base Mapping 4 90 1.4 Data Gathering and Site Visits 4 8 12 S3,465 $4.270 $6.221 1_5 Utility Coordination 12 12 12 14,608 1.6 Q otecbnial Investigation 4 57,920 $8,596 1.7 WWI' 12 20 10 $5,426 Subtotal Hours = 12 66 44 74 196 Subtotal ($)- S2,280 $11,154 $5,500 $6,660 55,478 SO $14,630 57,920 50 S53.622 Task 2A Prelimialry Design (75% Submittal) 2.1.1 Preliminary land. Arch. Plans (KTU+A) S22,017 $22,017 2- 12 Preliminary Cord Places 4 24 24 60 i 513.21G 2.1.3 Preliminary Drainage Imp. Plans -- 2 16 - S 1,778 2.1.4 Preliuvnary Street Lighting Pans 8 $11,160 S12,512 2.1.5 Preliminary Signing and Sniping Pans 4 8 16 S3,116 2.1.6 PretimmaryTraduSAgial Plan 16 24 $5,704 22 Preliminary Specifications 4 16 23 Preliminary Probable Consauctioo Cost Estimate 4 12 52,176 Subtotal Hoots = 8 74 68 92 242 Subtotal (I) = S1,520 $12.506 18,500 S8280 S22,017 50 10 SO 511,160 $63,983 ... Task 3.0 Final Plant, Specifications, and Estimate s f.= ;;y ,.�,2„-' Cd ,-,--4._ ^c.y- r'i �s �,,j _ 3.1 Final Land ,Arch Plans (K(U+A) 115,497 515,49/ 32 Filial Civil Plans 6 12 24 24 S8,328 3.3 Final Drainage Imp. Piaos 1 2 2 4 SI,138 3.4 Final Street Lighting Plane 2 $5,340 $5,678 3.5 Final Signing and Striping Puns 2 4 8 11,555 3.6 Fan( Traffic Signal Plan 8 16 $3352 3-7 Fatal Specifications & Estimate 4 8 16 20 S5,912 Subtotal Hours-• 11 34 62 56 163 Subtotal (S)=- S2,090 $5,746 $7,750 S5,040 S15,497 S0 S0 58 55,340 S41,463 Task 4.0 District 24 20A Conversion 4.1 Preliminary Probably Coustrutiou Estiuutc 8 12 $6,050 58,902 4 2 Cmmmmkyti®s Reimbenscmeot Coordination 10 16 12 45,940 $11,624 43 Commandos Documents 30 80 _ 24 $21380 4.4 CATV Match, conduit and substructure design 56,700 $6,100 45 Bidding Assistance 8 $2,420 13,772 Subtotal Hours =- 40 112 12 36 200 Subtotal (S)= $7,600 $18,928 11,500 $3,240 SO _ S21,110 SO $O 50 452,378 Total Emus by Classification = 71 � : 258 801 Total(S) by Classification= S13,490 t $23,220 S42,992 S21,110 514,630 S7,920 S16,500 Percentage of Time Allocated (by hours) - 9% 365‘ 23% 32% $211,446 10 ACORD„ CERTIFICATE OF LIABILITY INSURANCE DATE (MMIDD/YY) 08/03/2010 PRODUCER 0757776 1-800-877-4560 HUH International Insurance Services Inc. Box 4047 concord, CA 94524 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. INSURED Harris & Associates Inc. Attn: Susan Mandilag 1401 Willow Pass Road, Suite 500 Concord, CA 94520 COVERAGES INSURERS AFFORDING COVERAGE INSURER A: OneBeaeon America Insurance GO. INSURERO: Wausau Underwriters Insurance Company INSURERCColony National Insurance Company INSURER D: Travelers Property Casualty Co of Amer INSURER E: Continental Casualty Company THE ANY MAY POLICIES. INSR POI. ICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICAIF MAY BE ISSUED OR PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS. EXCI ()SIGNS ,AND CONDITIONS OF SUCH AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATION DATE IMM1➢DJYYI DATE IMM/PDtYY! LIMITS A GENERAL X I— X X GENT LIABILITY COMMERCIAL GENERAL LIABILITY o CLAIMS MADE I X 1 OCCUR `X' "C' ^0' 7180046900004 08/01/10 08/O1/11 EACH OCCURRENCE $ 1,000,000 FIRE DAMAGE ‘Any one fuel �I 1, 000, 000 MEDEXP (Any one (,erson) $ 10,000 PERSONAL 8ADV INJURY $ 1,000,000 Separation of Insureds GENERAL AGGREGATE $ 2,000,000 AGGREGATE LIMIT APPLIES PER: POLICY X PRO- ■ IOC PRODUCTS - COMP/OP AGG $ 2, 000,000 B AUTOMOBILE --- X X X LIABILITY AEJZ91455034010 08/01/10 08/01/11 COMBINED SINGLE LIMIT (Fa ars:identl $ 1,000,000 BODILY INJURY (Per pers.( BODILY INJURY (Per acodent) PROPERTY OAMAGC $ (Per acci0ent) GARAGE LIABILITY ANY AUTO AUTO ONLY - EA ACCIDENT S OTHER THAN EA ACC $ AUTO ONLY AGO I $ C EXCESS 1I LIABILITY OCCUR I I CLAIMS MADE DEDUCTIBLE RETENTION $ AR6460401 08/01/10 08/01/11 EACH OCCURRENCE $ 10,000,000 AGGREGATE I $ 10, 000, 000 $ D WORKERS COMPENSATION AND EMPLOYERS' UABILITY PJ1108166N36A10 08/01/10 08/01/11 x: W('SIATU.( ,OTH- I TORV LIMITS I CR El EACH ACCIDENT $ 1, 000, 000 FI DISFASF - EA EMPLOYEE $ 1,000,000 EL DISEASE -POLICY LIMIT $ 1, 000, 000 E OTHER Professional Liability AEA113822501 013/01/10 08/01/11 Per Claim, s 10,000,000 Aggregate, s 15,000,000 Ded. Each Claim: 1150,000 DESCRIPTION OF OPERATIONS(LOCATIONSNEHICLES/EXCLUSIONS ADDED BY ENDORSEMENT/SPECIAL PROVISIONS •• Workers Compensation policy excludes monopolistic states ND, OH, WA, WY. General & Auto Liability Additional Insured status granted, if required by written contract/agreement, per attached forms ASC0010 0198 & CA2048 0299. RE: 8th Street Corridor Smart Growth Revitalization Project (HA *0820816) CERTIFICATE HOLDER { ADDITIONAL INSURED INSURER LETTER: 082-0816 City of National City c/o Maryam Babaki, PE neeriag Department National City Blvd. oval City, CA 91950 USA CANCELLATION Ten Day Notice for Non -Payment of Premium SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL EXI `ii'i(it$74 MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT. SUIDFJ6HUR6XCIII897610Y9RATAX XINCRUESIGL17OMENXXILMAXXOLBKNXIiFxAP7XIXIi6XIVICXXX6iXI( OZNXQIB 8bb1UC8L6PCX m;ataxicawnowcxxxxxxxxxxxxxxxxxxxxxxxxxxXXXXXXKXXXXXXXXXXXX AUTHORIZED REPRESENTATIVE 4 641L ACORD 25-S (7197) dgarcia 16914452 11 @ ACORD CORPORATION 1988 POLICY #: 7180096900004 EFFECTIVE: 08/01/2010 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY ADDITIONAL INSURED This endorsement modifies insurance provided under the following. COMMERCIAL GENERAL LIABILITY COVERAGE PART and GL CONTRACTORS EXTENDER FORM VCG 206 02 05 a. COMMERCIAL GENERAL LIABILITY COVERAGE FROM CG 00 01 12 01 is amended by the following wording. b_ GL CONTRACTORS EXTENDER paragraph I. ADDITIONAL INSURED — REQUIRED IN CONTRACT, AGREEMENT OR PERMIT is deleted and replaced by the following wording. I_ Wf1O IS AN INSURED — (Section 11) is amended to include as an additional insured any person or organization you are required to add as an additional insured under this policy in a written contract or written agreement in effect during this policy period and signed and executed by you prior to the loss for which coverage is sought. The person or organization does not quality as an additional insured with respect to the independent acts or omissions of such person or organization. The person or organization is only an additional insured with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused by "your work" performed under the written contract or written agreement_ 2. The insurance provided to the additional insured is limited as follows_ a) This endorsement shall not increase the limits stated in Section III — LIMITS OF INSURANCE. b) The insurance provided to the additional insured does not apply to "bodily injury", "property damage", or "personal and advertising injury" arising out of an architect's, engineer's or surveyor's rendering of or failure to render any professional services including: 1. The preparing, approving or failing to prepare or approve maps, shop drawings, opinions, reports, surveys, field orders, change orders, or drawings and specifications: and 11. Supervisory or inspection activities perforated as part of any related architectural or engineering activities- c) This insurance does not apply to "bodily injury: or "property damage" caused by "your work' included in the "products -completed operations hazard" unless you are required to provide such coverage for the additional insured by a written contract or written agreement in effect durins( this policy period and signed and executed by you prior so the Toss for which coverage is sought. 3_ Subpart (1)(a) of the Pollution exclusion (Section 1 — Coverages, part 2. f_ of the Commercial General liability Coverage form) does not apply to you if the "bodily injury" or "property damage" arises out of "your work" performed on premises which are owned or rented by the additional insured at the time "-your work" is performed. 4. Any coverage provided by this endorsement to an additional insured shall be excess over any other valid and collectible insurance available to the additional insured whether primary, excess, contingent or on any other basis unless a written contract or written agreement in effect during this policy period and signed and executed by you prior to the loss for which coverage is sought specifically requires that this insurance apply on a primary and/or non- contributory basis. 5. As a condition of coverage, each additional insured must a) Give us prompt written notice of any "occurrence" or offense which may result in a claim and prompt written notice of "suit". b) Immediately forward all legal papers to us, cooperate in the defense of any actions, and otherwise comply with policy conditions. ASC 00 10 01 98 Page 1 of 1 12 Excerpts from: OneBeacon Form VCG 206 02 05 @VANTAGE FOR GENERAL LIABILITY - CONTRACTORS COMMERCIAL GENERAL LIABILITY COVERAGE FORM Policy Number: 7180096900004 Insurer: OneBeacon America Insurance Company Policy Period: August 1, 2010 to August 1, 2011 5_ BLANKET WAIVER OF SUBROGATION Section IV - Transfer of Rights of Recovery Against Others to Us Condition is amended to add the following: We will waive any right of recovery we may have against any person or organization because of payments we make for injury or damage arising out of your ongoing operations done under a written contract or agreement with that person or organization and included in "your work" or the "products -completed operations hazard". This waiver applies only to persons or organizations with whom you have a written contract, executed prior to the "bodily injury" or "property damage", that requires you to waive your rights of recovery. Page 1 of 1 13 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. DESIGNATED INSURED This endorsement modifies insurance provided under the following: BUSINESS AUTO COVERAGE FORM GARAGE COVERAGE FORM MOTOR CARRIER COVERAGE FORM TRUCKERS COVERAGE FORM With respect to coverage provided by this endorsement, the provisions of the Coverage Form apply unless modified by this endorsement. This endorsement identifies person(s) or organization(s) who are "insureds" under the Who Is An Insured Provision of the Coverage Form. This endorsement does not alter coverage provided in the Coverage Form SCHEDULE Name of Person(s) or Organization(s): ANY PERSON OR ORGANIZATION WHERE THE NAMED INSURED HAS AGREED BY WRITTEN CONTRACT TO INCLUDE SUCH PERSON OR ORGANIZATION AS A DESIGNATED INSURED. Each person or organization shown in the Schedule is an "insured" for Liability Coverage, but only to the extent that person or organization qualifies as an "insured" under the Who Is An insured Provision contained in SECTION II of the Coverage Form. This endorsement ix executed by the Wausau Underwriters Insurance. Company Premium $ Effective Date 08/01 /2010 For attachment to Policy No. Audit Gads Issued To Expiration Dare 08,01 /201 I AS17.91455034010 Harris & Associates Inc. SriCR T:Alrt PIi1 ,IDpNT C ounlcrsigucd he Autlt riz,d Itgcscnnti.c CA 20480299 Copyright, Insurance Services Office. Inc.. 1996 14 Excerpts from: Liberty Mutual form AC 84 07 05 09 Liberty EXPRESS SM Auto Enhancement Endorsement BUSINESS AUTO COVERAGE FORM Policy Number: ASJZ91455034010 Insurer: Wausau Underwriters Insurance Company Policy Period: August 1, 2010 to August 1, 2011 XXIV - WAIVER OF SUBROGATION Paragraph A.5. in SECTION IV — BUSINESS AUTO CONDITIONS does not apply to any person or organization where the Named Insured has agreed, by written contract executed prior to the date of accident, to waive rights of recovery against such person or organization. Page 1 of 1 15 Excerpts from: Form CA0001 0306 BUSINESS AUTO COVERAGE FORM Policy Number: ASJZ91455034010 Insurer Wausau Underwriters Insurance Company Policy Period: August 1, 2010 to August 1, 2011 5. Other Insurance a. For any covered "auto" you own, this Coverage Form provides primary insurance. For any covered "auto" you don't own, the insurance provided by this Coverage Form is excess over any other collectible insurance- However, while a covered "auto" which is a "trader" is connected to another vehicle, the Liability Coverage this Coverage Form provides for the "trailer" is: (1) Excess while it is connected to a motor vehicle you do not own. (2) Primary while it is connected to a covered "auto" you own. b. For Hired Auto Physical Damage Coverage, any covered "auto" you lease, hire, rent or borrow is deemed to be a covered "auto" you own. However, any "auto" that is leased, hired, rented or borrowed with a driver is not a covered "auto". c. Regardless of the provision of Paragraph a_ above, this Coverage Forrn's Liability Coverage is primary for any liability assumed under an "insured contract". d. When this Coverage Form and any other Coverage Form or policy covers cm the same basis, either excess or primary, we will pay only our share. Our share is the proportion that the Limit of Insurance of our Coverage Form bears to the total of the limits of all the Coverage Forms and policies covering on the same basis. Paoe 1 of 1 16 TRAVELERS J WORKERS COMPENSATION AND EMPLOYERS LIABILITY POLICY ENDORSEMENT WC 00 03 13 (00)-o1 POLICY NUMBER: (PJ-UB-8166N36-A-t0) WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT We have the right to recover our payments from anyone liable for an injury covered by this policy- We will not enforce our right against the person or organization named In the Schedule. (This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us.) This agreement shall not operate directly or indirectly to benefit any one not named In the Schedule. DESIGNATED PERSON: o DESIGNATED ORGANIZATION: 0� RD 001362 SCHEDULE ANY PERSON OR ORGANIZATION FOR WHOM THE NAMED INSURED HAS AGREED BY WRITTEN CONTRACT EXECUTED PRIOR TO LOSS TO FURNISH THIS WAIVER. DATE OF ISSUE: OB-02-10 ST ASSIGN: 17 CITY OF NATIONAL CITY, CALIFORNIA CITY COUNCIL AGENDA STATEMENT MEETING DATE: February 15, 2011 AGENDA ITEM NO.110 EM TITLE: ,Pt resolution of the City Council of the City of National City authorizing the City to enter into a Cooperation Agreement by and between the Community Development Commission and the City of National City for payment of certain Capital Improvement costs until June 30, 2016 and an Option Agreement regarding properties owned by the CDC and pledging security interests of the CDC and making certain findings and determinations thereto . (Tax Increment Fund and Low -Mod Housing PREPARED BY: Patricia Beard PHONE: 4255 DEPARTMENT: Redevelo ment APPROVED BY: EXPLANATION: In order to ensure funding for the 2011-2016 Capital Improvement Program within the National City Redevelopment Project areas, staff proposes that the CDC and City consider the attached Cooperative Agreement. The Agreement would: 1. Provide funding for the Five Year Capital Improvement Program; 2. Provide a Option Agreement that could, if deemed prudent, be exercised by the City Manager and Executive Director to transfer title to any, some or all of the CDC -owned properties to the City; and 3. Assign, transfer and pledge the financial holdings of the CDC to the City. lease see attached Background Report which highlights the necessary findings to adopt this resolution FINANCIAL STATEMENT: ACCOUNT NO. APPROVED: Finance The City would accept the transfer of up to $55,226,623 of "net tax increment" as defined in the Agreement from the CDC to the City for Capital Projects, potentially transfer title to any, some or all of the CDC held properties to the City and pledge the financial holdings of the CDC to the City. Funding for property management of the CDC properties is provided in a Property Management Agreement on tonight's agenda. ENVIRONMENTAL REVIEW: Not applicable, ORDINANCE: INTRODUCTION: 1 FINAL ADOPTION: 1 STAFF RECOMMENDATION: Adopt the resolution. BOARD / COMMISSION RECOMMENDATION: 1 ATTACHMENTS: Background Report Proposed Agreement and Exhibits RESOLUTION NO. 2011 - RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE CITY TO ENTER INTO A COOPERATION AGREEMENT WITH THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY ("CDC") FOR PAYMENT OF CERTAIN CAPITAL IMPROVEMENT COSTS UNTIL JUNE 30, 2016, AND AN OPTION AGREEMENT REGARDING PROPERTIES OWNED BY THE CDC, PLEDGING SECURITY INTERESTS OF THE CDC, AND MAKING CERTAIN DETERMINATIONS AND FINDINGS RELATED THERETO WHEREAS, the City Council adopted the Redevelopment Plan for National City Redevelopment Project on July 17, 2007 by Ordinance No. 2007-2295 (the "Redevelopment Plan"), which results in the allocation of a portion of the property taxes generated from the National City Redevelopment Project (the "Project Area") to the Community Development Commission of the City of National City ("CDC") for purposes of redevelopment; and WHEREAS, the intent of the Redevelopment Plan is, in part, to provide for the construction and installation of necessary public infrastructure and facilities and to facilitate the repair, restoration and/or replacement of existing public facilities, and to perform specific actions necessary to promote the redevelopment and the economic revitalization of the Project Area; to increase, improve and preserve the community's supply of low and moderate income housing; to take all other necessary actions to implement the Redevelopment Plan; and to expend the CDC's share of property taxes (referred to as "tax increment") to accomplish the goals and objectives of the Redevelopment Plan; and WHEREAS, the CDC has adopted its Five -Year Implementation Plan for the Project Area, as amended from time to time (collectively, the "Implementation Plan") with established goals to support affordable housing, economic development, community revitalization, commercial revitalization, and institutional revitalization. To implement the programs and activities associated with each goal, the CDC has made redevelopment fund commitments and budget allocations based on estimated available tax increment revenue and debt financing structures; and WHEREAS, the City and CDC wish to cooperate with one another to bring about the redevelopment of the Project Area, and accomplish various tasks set forth in the Redevelopment Plan and the Implementation Plan; and WHEREAS, pursuant to Section 33220 of the California Community Redevelopment Law (Health and Safety Code Section 33000 et seq.) (the "CRL") certain public bodies, including the City, may aid and cooperate in the planning, undertaking, construction, or operation of redevelopment projects; and WHEREAS, the CDC and City desire to enter into a Cooperation Agreement (the "Agreement") to provide for implementation of certain public infrastructure projects (the "Projects"), under which payments will be made by the CDC to the City as otherwise necessary to reimburse the City for the cost to the City of installing and constructing the Projects; and WHEREAS, the programs and activities associated with the Projects include, but are not limited to, development of design criteria, design, planning, preparation of construction bid documents, financial analysis, financing, and new construction or rehabilitation; and Resolution No. 2011 — Page 2 WHEREAS, the obligations of the CDC under the Agreement shall constitute an indebtedness of the CDC for the purpose of carrying out the Redevelopment Plan for the Project Area; and WHEREAS, it is in the best interests of the City and for the common benefit of residents, employees, business tenants and property owners within the Project Area and the City as a whole for the Projects to be developed and constructed in accordance with the Agreement; and WHEREAS, the Agreement shall require the City to comply with Public Resources Code Sections 21000 et seq. ("CEQA") before undertaking each Project and, pursuant to CEQA Guideline Section 15378(b)(4), approval of the Agreement is not a project subject to the California Environmental Quality Act ("CEQA"), because the Agreement consists of the creation of a governmental funding mechanism for various public improvements, but does not commit funds to any specific public improvement, in that environmental review required by CEQA shall be completed prior to the commencement of any public improvement listed in the Agreement; and WHEREAS, all other legal prerequisites to the adoption of this Resolution have occurred. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of National City as follows: Section 1. The City Council has received and heard all oral and written objections to the Agreement, and to other matters pertaining to this transaction, and all such oral and written objections are hereby overruled. Section 2. The City Council hereby finds and determines that the foregoing recitals are true and correct. Section 3. Based on the evidence in the record, the City Council hereby finds and determines, with respect to the Projects that are publicly owned and are located in or contiguous to the Project Area as identified in the Agreement, that: (a) Said Projects and the programs and activities associated therewith are of benefit to the Project Area by helping to eliminate blight within the Project Area or providing housing for low or moderate income persons; and (b) No other reasonable means of financing said Projects and the programs and activities associated therewith are available to the community; and (c) The payment of funds by the CDC for the costs related to said Projects and the programs and activities associated therewith is consistent with the respective Implementation Plan adopted pursuant to Section 33490 of the CRL. Section 4. The Mayor is hereby authorized to execute the Agreement on behalf of the City, together with such non -substantive changes and amendments as may be approved by the Mayor and City Attorney. Resolution No. 2011 - Page 3 Section 5. The City Manager, or designee, is hereby authorized, on behalf of the City, to sign all documents necessary and appropriate to carry out and implement the Agreement, including, without limitation, any security instruments to be recorded against CDC assets to secure the CDC's obligations under the Agreement, and to administer the City's obligations, responsibilities and duties to be performed under the Agreement. Section 6. The City accepts the transfer of up to $55,226,623 of net tax increment funds from the CDC, as set forth in the Agreement. Section 7. Said Cooperation Agreement is on file in the office of the City Clerk. Section 8. This Resolution shall take effect immediately upon its adoption. PASSED and ADOPTED this 15th day of February, 2011. Ron Morrison, Mayor ATTEST: Michael R. Dalla, City Clerk APPROVED AS TO FORM: Claudia G. Silva City Attorney ATTACHMENT 1 BACKGROUND REPORT In order to ensure adequate funding to accomplish the Capital Improvement Program listed in this Agreement, allow the Option to transfer CDC properties to the City and pledge security interests of the CDC to the City, the CDC and City can agree to cooperatively work together. The City has inadequate funds available to accomplish the projects and "cooperation" as meant in this Agreement would allow the City to complete the projects while the CDC funds the projects through future property tax increment revenues. In order to cooperate on the projects, both the CDC and City must make the following findings, as listed in the resolution for this agenda item and its companion item: • The CDC has received and heard all oral and written objections to the Agreement, and to other matters pertaining to this transaction, and all such oral and written objections are hereby overruled; • The CDC hereby finds and determines that the recitals in the Agreement are true and correct; and • Based on the evidence in the record, the CDC hereby finds and determines, with respect to the Projects that are publicly owned and are located in or contiguous to the Project Area as identified in the Agreement, that: (a) Said Projects and the programs and activities associated therewith are of benefit to the Project Area by helping to eliminate blight within the Project Area or providing housing for low- or moderate income persons; and (b) No other reasonable means of financing said Projects and the programs and activities associated therewith are available to the community; and (c) The payment of funds by the CDC for the costs related to said Projects and the programs and activities associated therewith is consistent with the respective Implementation Plan adopted pursuant to Section 33490 of the CRL; The Agreement provides that the Mayor would be authorized to execute the Agreement on behalf of the City, together with such non -substantive changes and amendments as may be approved by the City Manager and City Attorney. The City Manager, or designee, would be authorized, on behalf of the City, to sign all subsequent documents necessary and appropriate to carry out and implement the Agreement, including, without limitation, any security instruments to be recorded against CDC assets to secure the CDC's obligations under the Agreement, and to administer the CDC's obligations, responsibilities and duties to be performed under the Agreement. COOPERATION AGREEMENT FOR COMMISSION'S PAYMENT OF CERTAIN COSTS THIS COOPERATION AGREEMENT (this "Agreement") is entered into this day of February, 2011, by and between the CITY OF NATIONAL CITY (the "City") and the COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY (the "Commission"), with reference to the following facts: A. The City Council of the City of National City (the "City Council") adopted the Redevelopment Plan for National City Redevelopment Project on July 17, 2007 by Ordinance No. 2007-2295 (the "Redevelopment Ilan"), which results in the allocation of a portion of the property taxes generated from the National City Redevelopment Project (the "Project Area") to the Commission for purposes of redevelopment. B. The intent of the Redevelopment Plan is, in part, to provide for the construction and installation of necessary public infrastructure and facilities and to facilitate the repair, restoration and/or replacement of existing public facilities and to perform specific actions necessary to promote the redevelopment and the economic revitalization of the Project Area; to increase, improve and preserve the community's supply of low and moderate income housing; and to take all other necessary actions to implement the Redevelopment Plan and to expend the Commission's share of property taxes (referred to as "tax increment") to accomplish the goals and objectives of the Redevelopment Plan. C. The Commission has adopted its Five -Year Implementation Plan for the Project Area, as amended from time to time (collectively, the "Implementation Plan") with established goals to support affordable housing, economic development, community revitalization, commercial revitalization, and institutional revitalization. To implement the programs and activities associated with each goal, the Commission has made redevelopment fund commitments and budget allocations based on estimated available tax increment revenue and debt financing structures. D. Pursuant to Section 33220 of the California Community,Redevelopment Law (Health and Safety Code Section 33000 et seq.) (the "CRL"), certain public bodies, including the City may aid and cooperate in the planning, undertaking, construction, or operation of redevelopment projects. Collectively, the projects associated with this Agreement are listed in the attached Exhibit 1, which are incorporated herein by this reference (the "Projects"). To carry out the Projects in accordance with the objectives and purposes of the Redevelopment Plan and the Implementation Plan, the Commission desires assistance and cooperation in the implementation and completion of the Projects. The City agrees to aid the Commission and cooperate with the Commission to expeditiously implement the Projects in accordance with the Redevelopment Plan and the Implementation Plan and undertake and complete all actions necessary or appropriate to ensure that the objectives of the Redevelopment Plan and the Implementation Plan are fulfilled within the time effectiveness of the Project Area. Cooperation Agreement Page 1 of 6 E. In considering the Commission's desire to ensure timely implementation and completion of the Projects, the Commission wishes to enter into this Agreement with the City for the pledge of net available tax increment ("Net Tax Increment"), as defined, below, to finance the Projects. The purpose of this Agreement is to facilitate the implementation of the Projects and to provide funding necessary to effectuate the completion of the Projects with Net Tax Increment in this current fiscal year and forthcoming fiscal years. F. "Net Tax Increment" is defined as any tax increment generated from the Project Area, net of any amount required by the CRL to be set aside for purposes of increasing, improving or preserving the City's supply of low and moderate housing, any amounts paid to affected taxing agencies whether by statute or agreement and any amounts paid to the State of California or the County of San Diego as required by statute or agreement, existing debt service payments, and existing contractual obligations received by the Commission or any lawful successor of the Commission and/or to any of the powers and rights of the Commission pursuant to any applicable constitutional provision, statute or other provision of Iaw now existing or adopted in the future. The pledge of Net Tax Increment shall constitute obligations to make payments authorized and incurred pursuant to Section 33445 and other applicable statutes. The obligations set forth in this Agreement will be contractual obligations that, if breached, will subject the Commission to damages and other liabilities or remedies. G. The City Council and the Commission by resolution have each found that the use of Commission redevelopment funding for the publicly owned improvements included in the Projects is in accordance with Section 33445 of the CRL and other applicable law. The said City Council and Commission resolutions are each based on the authority of the Commission, with the consent of the City Council, to pay all or part of the cost of the installation and construction of any building, facility, structure, or other improvements which is publicly owned within the Project Area, if the City Council makes certain determinations. H. By approving and entering into this Agreement, the Commission has approved certain obligations, including the pledge of Net Tax Increment to pay for the Projects. L The obligations of the Commission under this Agreement shall constitute an indebtedness of the Commission for the purpose of carrying out the Redevelopment Plan for the Project Area. NOW, THEREFORE, the parties hereto do mutually agree as follows: I. INTRODUCTORY PROVISIONS The recitals above are an integral part of this Agreement and set forth the intentions of the parties and the premises on which the parties have decided to enter into this Agreement. II. COMMISSION'S OBLIGATIONS 1. The Projects are those projects which are listed on the attached Exhibit 1. The Agency agrees to pay to the City an amount equal to the cost to the City to carry out the Projects ("Payment Obligation"), including without limitation all administrative costs incurred by the Cooperation Agreement Page 2 of 6 City for the planning, acquisition and disposition, financing, development, permitting, design, site testing, bidding, construction and construction management of the Projects. The Agency's Payment Obligation shall be evidenced by a Promissory Note substantially in form attached hereto as Exhibit 3, and secured by a Deed of Trust, substantially in form attached hereto as Exhibit 4, a Pledge Agreement, substantially in form attached hereto as Exhibit 5, and UCC-1 Financing Statement, substantially in form attached hereto as Exhibit 6. Concurrently herewith, Agency and City shall execute an Option Agreement (including Memorandum of Option Agreement) substantially in form attached hereto as Exhibit 7. The Deed of Trust and Memorandum of Option Agreement shall be recorded against those certain real properties owned by the Agency and identified in the list attached hereto as Exhibit 8 (collectively, the "Agency Properties"), within thirty (30) days of execution of this Agreement. The Option Agreement shall give City an option to purchase the Agency Properties ("Option"). In the event that City exercises said Option, Agency shall receive a credit against any amounts owed to City the Payment Obligation in the amount of the Purchase Price, as set forth in the Option Agreement. The Agency's obligations under this Agreement, including without limitation the Agency's obligation to make the payments to the City required by this Agreement, shall constitute an indebtedness of the Agency for the purpose of carrying out the redevelopment of the Project Area and are obligations to make payments authorized and incurred pursuant to Section 33445 of the CRL and other applicable statutes. The obligations of the Agency set forth in this Agreement are contractual obligations that, if breached, will subject the Agency to damages and other liabilities or remedies. 2. The obligations of Commission under this Agreement shall be payable out of Net Tax Increment, as defined in the above recitals and/or as defined or provided for in any applicable constitutional provision, statute or other provision of law now existing or adopted in the future, levied by or for the benefit of taxing agencies in the Project Area, and allocated to the Commission and/or any lawful successor entity of the Commission and/or any entity established by law to carry out any of the redevelopment plans for the Project Area and/or expend tax increment or pay indebtedness of the Commission to be repaid with tax increment, pursuant to Section 33670 of the CRL or any applicable constitutional provision, statute or other provision of law now existing or adopted in the future, in amounts not less than those set forth in the Payment Schedule attached hereto as Exhibit 2 and incorporated herein by this reference. 3. The indebtedness of Commission under this Agreement shall be subordinate to the rights of the holder or holders of any existing bonds, notes or other instruments of indebtedness (all referred to herein as "indebtedness") of the Commission incurred or issued to finance the Project Area, including without limitation any pledge of tax increment revenues from the Project Area to pay any portion of the principal (and otherwise comply with the obligations and covenants) of any bond or bonds issued or sold by Commission with respect to the Project Area. 4. Alt payments due to be made by the Commission to the City under this Agreement shall be made by the Commission in accordance with the schedule set forth in Exhibit 2 and as otherwise necessary to reimburse the City for the cost to the City of performing its obligations hereunder. City shall provide Commission with a quarterly report accompanied by evidence reasonably satisfactory to the Commission's Executive Director that the City has Cooperation Agreement Page 3 of 6 progressed in the development and construction of the Project for which payment is made by the Commission commensurate with such payments and has incurred costs or obligations to make payments equal to or greater than such amount. III. CITY'S OBLIGATIONS 1. The City shall accept any funds offered by the Commission pursuant to this Agreement and shall devote those funds to completion of the Projects by (i) reimbursing the City or using such funds to make City expenditures to perform the work required to carry out and complete the Projects; (ii) utilizing such funds to pay debt service on bonds or other indebtedness or obligations that the City has or will incur for such purposes; and/or (iii) paying such funds into a special fund of the City to be held and expended only for the purpose of satisfying the obligations of the City hereunder. In the event that City exercises the Option, the Commission Property may be used, leased or sold by the City for any municipal purposes, including affordable housing and public improvements, in conformance with the Redevelopment Plan. 2. It is the responsibility of City to pay all development and construction costs in connection with the Projects from funds paid to the City by the Commission under this Agreement. 3. The City shall perform its obligations hereunder in accordance with the applicable provisions of federal, state and local laws, including the obligation to comply with environmental laws such as CEQA before undertaking each Project, and shall timely complete the work required for each Project in accordance with the Schedule of Performance attached hereto as Exhibit 2 and incorporated herein by this reference. IV. LIABILITY AND INDEMNIFICATION In contemplation of the provisions of California Government Code section 895.2 imposing certain tort liability jointly upon public entities solely by reason of such entities being parties to an agreement as defined by Government Code section 895, the parties hereto, as between themselves, pursuant to the authorization contained in Government Code sections 895.4 and 895.6, shall each assume the full liability imposed upon it, or any of its officers, agents or employees, by law for injury caused by negligent or wrongful acts or omissions occurring in the performance of this Agreement to the same extent that such liability would be imposed in the absence of Government Code section 895.2. To achieve the above -stated purpose, each party indemnifies, defends and holds harmless the other party for any liability, losses, cost or expenses that may be incurred by such other party solely by reason of Government Code section 895.2. V. ENTIRE AGREEMENT; WAIVERS; AND AMENDMENTS 1. This Agreement shall be executed in triplicate originals, each of which is deemed to be an original. This Agreement consists of six (6) pages and two (2) Exhibits, which constitute the entire understanding and agreement of the parties. Cooperation Agreement Page 4 of 6 2. This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the parties with respect to the subject matter of this Agreement. 3. This Agreement is intended solely for the benefit of the City and the Commission. Notwithstanding any reference in this Agreement to persons or entities other than the City and the Commission, there shall be no third party beneficiaries under this Agreement; provided, however, that City may, with the consent of Commission, which shall not be unreasonably withheld, assign City's rights and obligations, in whole or part, under this Agreement to any third party. 4. All waivers of the provisions of this Agreement and all amendments to this Agreement must be in writing and signed by the authorized representatives of the parties. VI. SEVERABILITY If any term, provisions, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions shall continue in full force and effect unless the rights and obligations of the parties have been materially altered or abridged by such invalidation, voiding or unenforceability. VII. DEFAULT If either party fails to perform or adequately perform an obligation required by this Agreement within thirty (30) calendar days of receiving written notice from the non -defaulting party, the party failing to perform shall be in default hereunder. In the event of default, the non - defaulting party will have all the rights and remedies available to it at law or in equity to enforce the provisions of this contract, including without limitation the right to sue for damages for breach of contract. The rights and remedies of the non -defaulting party enumerated in this paragraph are cumulative and shall not limit the non -defaulting party's rights under any other provision of this Agreement, or otherwise waive or deny any right or remedy, at law or in equity, existing as of the date of the Agreement or hereinafter enacted or established, that may be available to the non -defaulting party against the defaulting party. All notices of defaults shall clearly indicate a notice of default under this Agreement. VIII. BINDING ON SUCCESSORS This Agreement shall be binding on and shall inure to the benefit of all successors and assigns of the parties, whether by agreement or operation of law. SIGNTURES ON NEXT PAGE SPACE I.FFr INTENTIONALLY BLANK Cooperation Agreement Page 5 of 6 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above. Attest: CITY OF NATIONAL CITY By: By: Attest: City Clerk Ron Morrison, Mayor COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY By: By: Secretary Ron Morrison, Chairman APPROVED AS TO FORM: By: City Attorney APPROVED AS TO FORM: Kane Ballmer & Berkman By: Commission Special Counsel Cooperation Agreement Page 6 of 6 EXHIBIT 1 PROJECTS SUBJECT TO THIS AGREEMENT Project name/description APN # or location Anticipated cost Anticipated Completion Granger Hall and property 554-050-11 $1,200,000 June 30, 2014 Old Library/Cultural Arts Center/Public Works 200 East 12`h St $398,323 June 30, 2014 Street Resurfacing Redevelopment Project Areas $6,500,000 June 30, 2016 Concrete improvements Redevelopment Project Areas $1,400,000 June 30, 2016 Roundabout D Avenue and 12`h St $625,000 June 30, 2016 Traffic Signal Timing, fiber optic interconnect Redevelopment Project Areas $150,000 June 30, 2016 Plaza Boulevard Widening Plaza Boulevard — I-5 to I-805 $4,709,300 June 30, 2016 Traffic Monitoring/Safety Enhancement Redevelopment Project Areas $150,000 June 30, 2016 Drainage Improvements Redevelopment Project Areas $2,200,000 June 30, 2016 Public Works Relocation 2200 Hoover Ave $100,000 June 30, 2016 Public Works Acquisition 2200 Hoover Avenue $4,700,000 June 30, 2016 Senior Village APNs # 561- 410-04, 05, 06 $13,000,000 June 30, 2016 Las Palma Park Facilities Plan APNs #563- 150-31, 561- 360-35 $50,000 June 30, 2016 Pacific Steel 1500 Cleveland $60,000 June 30, 2016 Kimball Way Creek Improvements Paradise Creek — National City Blvd to D Ave $100,000 June 30, 2016 B-1 Site Development 5 acre parcel — Port holdings immediately northeast of Pier 32 Marina - Harbor District Project $200,000 June 30, 2106 Area Storefront Renovation Program All project areas $250,000 June 30, 2016 Sudberry — RCP site APN # 562- 321-08 $830,000 June 30, 2016 Paradise Creek Enhancement Paradise Creek — 18th St — 24th St $2,300,000 June 30, 2016 Aquatic Center Pepper Park, Harbor District project area $3,300,000 June 30, 2016 WI-TOD 2200 Hoover Ave $13,000,000 June 30, 2016 TOTAL $55,226,623 EXHIBIT 2 PAYMENT SCHEDULE All projects will be completed by June 30, 2016 as noted in Exhibit 1 EXHIBIT 3 PROMISSORY NOTE [behind this page] PROMISSORY NOTE TO THE CITY OF NATIONAL CITY SECURED BY A DEED OF TRUST AND ASSIGNMENT OF RENTS 7.00% Interest National City, California Date: February , 2011 FOR VALUE RECEIVED, the REDEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY, a public body, corporate and politic (the "Agency" or "Borrower") hereby promises to pay to the CITY OF NATIONAL CITY, a California municipal corporation (the "City" or "Lender") the principal amount of (INSERT AMOUNT] DOLLARS and No/100 Cents ($ .00) (the "City Loan") together with interest on the unpaid principal balance from time to time outstanding at an annual rate of seven percent (7%). The Commission, acting to carry out its public purposes of executing and implementing the Redevelopment Plan for the National City Redevelopment Project Areas (the "Project Area") under the Community Redevelopment Law, borrowed from the City the City Loan on a long- term basis. This promissory note (the "Note") evidences the City Loan to the Agency, and is given by the Commission pursuant to the Community Redevelopment Law and that certain Cooperation Agreement, dated 2011, by and between the City and Commission (referred to herein as the "Cooperation Agreement"). The Cooperation Agreement is a public record on file in the offices of the Commission and the City, and the provisions of said document are incorporated herein by this reference. Any capitalized term not otherwise defined herein shall have the meaning ascribed to such term in the Cooperation Agreement. 1. Definitions. Any capitalized term not otherwise defined herein shall have the meaning ascribed to such term in the Cooperation Agreement. In addition, the following terms shall have the following meanings: "Affiliate" shall mean (1) any Person directly or indirectly controlling, controlled by, or under common control with another Person; (2) any Person owning or controlling ten percent (10%) or more of the outstanding voting securities of such other Person; or (3) if that other Person is an officer, director, member or partner, of any company for which such Person acts in any such capacity. The term "control" as used in the immediately preceding sentence, shall mean the power to direct the management or the power to control election of the board of directors. It shall be a presumption that control with respect to a corporation or limited liability company is the right to exercise or control, directly or indirectly, more than fifty percent (50%) of the voting rights attributable to the controlled corporation or limited liability company, and, with respect to any individual, partnership, trust, other entity or association, control is the possession, indirectly or directly, of the power to direct or cause the direction of the management or policies of the controlled entity. "City Loan" shall mean the Iong-term loan made by the City to the Commission pursuant to the Community Redevelopment Law and the Cooperation Agreement in the principal amount of [insert amount] ($ .00), which is evidenced by this Note. "Community Redevelopment Law" shall mean the Community Redevelopment Law of the State of California set forth at California Health and Safety Code Section 33000 et seq. "Net Available Tax Increment Revenue" shall mean any tax increment (defined as any tax increment generated from the Project Area), net of any amount required by the CRL to be set aside for purposes of increasing, improving or preserving the City's supply of low and moderate housing, any amounts paid to affected taxing agencies whether by statute or agreement and any amounts paid to the State of California or the County of San Diego as required by statute or agreement, existing debt service payments, and existing contractual obligations received by the Commission or any lawful successor of the Commission and/or to any of the powers and rights of the Commission pursuant to any applicable constitutional provision, statute or other provision of law now existing or adopted in the future. The pledge of net available tax increment will constitute obligations to make payments authorized and incurred pursuant to Section 33445 and other applicable statutes. The obligations set forth in this Agreement will be contractual obligations that, if breached, will subject the Commission to damages and other liabilities or remedies. "Person" means an individual, partnership, limited partnership, trust, estate, association, corporation, limited liability company or other entity, domestic or foreign. "Tax Increment Revenue" means the portion of property tax revenues from the increase in assessed value of real property within the Project Area that has occurred after adoption of the Redevelopment Plan for the Project Area received by the Commission to pay the principal of and interest on loans, moneys advanced to, or indebtedness (whether funded, refunded, assumed, or otherwise) incurred by the Commission to finance or refinance, in whole or in part, its activities in the Project Area. "Term" of this Note shall mean the period of time five (5) years following the execution of this Note by the Commission which execution date shall constitute the "Effective Date" of this Note. "Transfer" shall have the meaning set forth in Section 9 of this Note. 2. This Note evidences the obligation of the Commission to the City for the repayment of the City Loan. 3. This Note is payable at the principal office of the City, 1243 National City Boulevard, National City, California, 91950-4379, or at such other place as the holder hereof may inform the Commission, in writing, in lawful money of the United States. 4. This Note shall be secured by the Agency's pledge of Net Available Tax Increment Revenue as provided in the Cooperation Agreement, the Agency Deed of Trust -2- (Exhibit 4 to the Cooperation Agreement), Pledge Agreement (Exhibit 5 to the Cooperation Agreement), and UCC-I Financing Statement (Exhibit 6 to the Cooperation Agreement). 5. This Note shall bear interest at the rate of seven percent (7.00 %) per annum, simple interest, which shall begin to accrue upon disbursement of the City Loan. 6. The indebtedness of the Commission under this Note shall be subordinate to the rights of the holder or holders of any existing bonds, notes and other instruments of indebtedness, and existing contractual indebtedness (all referred to herein as "indebtedness") of the Commission incurred or issued to finance its activities in the Project Area, including without limitation any pledge of tax increment revenues from the Project Area to pay any portion of the principal (and otherwise comply with the obligations and covenants) of any existing bond or bonds issued or sold by the Commission with respect to the Project Area. 7. Prior to the expiration of the fifth (51h) anniversary following the Effective Date of this Note, the Commission shall be obligated to repay the City Loan from the Agency's Net Available Tax Increment Revenue, by making annual installment payments based on the Payment Schedule. In the event that additional funds are required in order to make the Commission payments to the City required by this Note, the Commission shall make such payments from income received by the Commission from its projects and programs or any other additional funds available to it. All payments to the City shall be applied first to interest, then to reduce the principal amount owed. 8. The entire unpaid principal balance of this Note and any accrued but unpaid interest shall be due and payable immediately in the event that, prior to the fifth anniversary of the Effective Date, there is a default by the Commission under the terms of this Note or the Cooperation Agreement which is not cured within the respective time period provided herein and therein. 9. (a) Prior to the repayment in full of the City Loan, the Commission shall not assign or attempt to assign any right or interest in the Cooperation Agreement (referred to hereinafter as a "Transfer"), without prior written approval of the City. Consent to one such transaction shall not be deemed to be a waiver of the right to require consent to future or successive transactions. The City shall not unreasonably withhold or delay its consent. If consent should be given, any such Transfer shall be subject to this Section 9, and any such transferee shall assume all obligations hereunder and agree to be bound by all provisions contained herein. (b) Any such proposed transferee shall have the qualifications and financial responsibility necessary and adequate as may be reasonably determined by the City, to fulfill the obligations undertaken by the Commission in the Cooperation Agreement and this Note. Any such proposed transferee, by instrument in writing satisfactory to the City, for itself and its successors and assigns, and for the benefit of the City shall expressly assume all of the obligations of the Commission under the Cooperation Agreement and agree to be subject to all conditions and restrictions applicable to the Commission in this Note. There shall be submitted to the City for review all instruments and other legal documents proposed to effect any such -3- Transfer; and if approved by the City its approval shall be indicated to the Commission in writing. (c) In the absence of specific written agreement by the City, no unauthorized Transfer, or approval thereof by the City, shall be deemed to relieve the Commission or any other party from any obligations under the Cooperation Agreement. (d) In the event of a Transfer prior to the time the City Loan is paid in full, without the prior written consent of the City, the remaining principal balance of the City Loan and all accrued but unpaid interest shall be immediately due and payable. (e) As used herein, "Transfer" includes the transfer, assignment, hypothecation or conveyance of legal or beneficial ownership of any interest in the Agency, or any conversion of the Commission to an entity form other than that of the Commission at the time of execution of this Note. (f) The City shall not unreasonably withhold, condition or delay its approval of any matter for which its approval is required hereunder. Any disapproval shall be in writing and contain the City's reasons for disapproval. 10. Subject to the provisions and limitations of this Section 10, the obligation to repay the City Loan is a nonrecourse obligation of the Agency. Commission officials, employees, agents and attorneys shall not have any personal liability for repayment of the City Loan. The sole recourse of City for repayment of the City Loan shall be the exercise of its rights against the security for the City Loan. Provided, however, that the foregoing shall not (a) constitute a waiver of any obligation evidenced by this Note; (b) limit the right of the City to name the Commission as a party defendant in any action or proceeding hereunder so long as no judgment in the nature of a deficiency judgment shall be asked for or taken against the Agency; (c) release or impair this Note; (d) prevent or in any way hinder the City from exercising, or constitute a defense, an affirmative defense, a counterclaim, or other basis for relief in respect of the exercise of, any other remedy or any other instrument securing the Note or as prescribed by law or in equity in case of default; (e) prevent or in any way hinder the City from exercising, or constitute a defense, an affirmative defense, a counterclaim, or other basis for relief in respect of the exercise of, its remedies in respect of any deposits, insurance proceeds, condemnation awards or other monies or other collateral or letters of credit securing the Note; (f) relieve the Commission of any of its obligations under any indemnity delivered by the Commission to the City; or (g) affect in any way the validity of any guarantee or indemnity from any Person of all or any of the obligations evidenced and secured by this Note. Notwithstanding the first sentence of this paragraph, City may recover directly from the Commission or from any other party: (a) Any damages, costs and expenses incurred by the City as a result of fraud or any criminal act or acts of the Commission or any member, officer, director or employee of the Agency; (b) Any damages, costs and expenses incurred by the City as a result of any misappropriation of funds; -4- (c) All court costs and attorneys' fees reasonably incurred in enforcing or collecting upon any of the foregoing exceptions (provided that the City shall pay to the Commission the Agency's reasonable court costs and attorneys' fees if the Commission is the prevailing party in any such enforcement or collection action). 11. The Commission waives presentment for payment, demand, protest, and notices of dishonor and of protest; the benefits of all waivable exemptions; and all defenses and pleas on the ground of any extension or extensions of the time of payment or of any due date under this Note, in whole or in part, whether before or after maturity and with or without notice. The Commission hereby agrees to pay all costs and expenses, including reasonable attorney's fees, which may be incurred by the holder hereof, in the enforcement of this Note, the Cooperation Agreement or any term or provision thereof. 12. Upon the failure of Commission to perform or observe any other term or provision of this Note, upon any event of acceleration described in Section 8, or upon the occurrence of any other event of default under the terms of the Cooperation Agreement, the holder may exercise its rights or remedies hereunder or thereunder. 13. (a) Subject to the extensions of time set forth in Section 14, and subject to the further provisions of this Section 13, failure or delay by the Commission to perform any material term or provision of this Note or the Cooperation Agreement constitutes a default under this Note. (b) The City shall give written notice of default to the Agency, specifying the default complained of by the City. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default. (c) Any failures or delays by the City in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies. Delays by the City in asserting any of its rights and remedies shall not deprive the City of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert, or enforce any such rights or remedies. (d) If a monetary event of default occurs under the terms of this Note or the Cooperation Agreement, prior to exercising any remedies hereunder or thereunder, the City shall give to the Commission written notice of such default. The Commission shall have a reasonable period of time after such notice is given within which to cure the default prior to exercise of any remedies by the City under this Note and/or the Cooperation Agreement. In no event shall the City be precluded from exercising any remedies if its security becomes or is about to become materially impaired by any failure to cure a default or the default is not cured within ten (10) calendar days after the notice of default is received or deemed received. (e) If a non -monetary event of default occurs under the terms of this Note or the Cooperation Agreement, prior to exercising any remedies hereunder or thereunder, the City shall give to the Commission written notice of such default. If the default is reasonably capable of being cured within thirty (30) calendar days after such notice is received or deemed received, the Commission shall have such period to effect a cure prior to exercise of any remedies by the -5- City under this Note and/or the Cooperation Agreement. If the default is such that it is not reasonably capable of being cured within thirty (30) calendar days, and the Commission(i) initiates corrective action within said period, and (ii) diligently and in good faith works to effect a cure as soon as possible, then the Commission shall have such additional time as is reasonably necessary to cure the default prior to exercise of any remedies by the City. In no event shall the City be precluded from exercising remedies if its security becomes or is about to become materially jeopardized by any failure to cure a default or the default is not cured within ninety (90) calendar days after the notice of default is received or deemed received. (f) Any notice of default that is transmitted by electronic facsimile transmission followed by delivery of a "hard" copy, shall be deemed delivered upon its transmission; any notice of default that is personally delivered (including by means of professional messenger service, courier service such as United Parcel Service or Federal Express, or by U.S. Postal Service), shall be deemed received on the documented date of receipt by Borrower; and any notice of default that is sent by registered or certified mail, postage prepaid, return receipt required shall be deemed received on the date of receipt thereof. 14. Notwithstanding specific provisions of this Note, the Commission shall not be deemed to be in default for failure to perform any non -monetary performance hereunder where delays or defaults are due to war, insurrection, strikes, lock -outs, riots, floods, earthquakes, fires, casualties, acts of God, acts of the public enemy, epidemics, quarantine restrictions, freight embargoes, lack of transportation, governmental restrictions or priority, litigation, unusually severe weather, inability to secure necessary labor, material or tools, delays of any contractor, sub -contractor or supplier, acts of the City or any other public or governmental Commission or entity, or any causes beyond the control or without the fault of the Commission ("Force Majeure Event"). An extension of time for any such Force Majeure Event shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause of the Force Majeure Event, if notice by the Commission is sent to the City within thirty (30) calendar days of knowledge of the commencement of such cause. Notwithstanding the foregoing, none of the foregoing events shall constitute a Force Majeure Event unless and until the Commission delivers to the City written notice describing the event, its cause, when and how the Commission obtained knowledge, the date and the event commenced, and the estimated delay resulting therefrom. The Commission shall deliver such written notice within thirty (30) calendar days after it obtains actual knowledge of the Force Majeure Event. Times of performance under this Note may also be extended in writing by the City and the Agency. 15. If the rights created by this Note shall be held by a court of competent jurisdiction to be invalid or unenforceable as to any part of the obligations described herein, the remaining obligations shall be completely performed and paid. 16. The Commission shall have the right to prepay the obligation evidenced by this Note, or any part thereof, without penalty. IN WITNESS WHEREOF, the Commission has executed this Note as of the day and year set forth above. -6- Attest: BORROWER COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY By: By: Mike Dalla, City Clerk Brad Raulston, Executive Director APPROVED AS TO FORM: By: General Counsel APPROVED AS TO FORM: Kane Ballmer & Berkman By: Commission Special Counsel -7- EXHIBIT 4 DEED OF TRUST [behind this page] OFFICIAL BUSINESS. Document entitled to free recording per Government Code Section 6103. Recording Requested by and When Recorded Mail to: OFFICE OF CITY MANAGER CITY OF NATIONAL CITY 1243 National City Boulevard National City, California 91950-4379 SPACE ABOVE THIS LINE FOR RECORDER'S USE [LIST OF APNS FOR PROPERTIES] DEED OF TRUST, SECURITY AGREEMENT AND FIXTURE FILING (WITH ASSIGNMENT OF RENTS) This Deed of Trust, Security Agreement and Fixture Filing (With Assignment of Rents)(the "Deed of Trust") is given as of the date signed by the COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY, a public body corporate and politic (hereinafter referred to as "Trustor") whose address is 1243 National City Boulevard, National City, California 91950-4379, to [Name] Title Company, a California corporation (hereinafter called "Trustee"), for the benefit of the CITY OF NATIONAL CITY, a municipality (hereinafter called `Beneficiary"), whose address is 1243 National City Boulevard, National City, California 91950- 4379. Witnesseth: That Trustor IRREVOCABLY GRANTS, TRANSFERS AND ASSIGNS to Trustee, its successors and assigns, in trust, with POWER OF SALE TOGETHER WITH RIGHT OF ENTRY AND POSSESSION the following properties (the "Trust Estate"): (a) That certain real property in the City of National City, County of San Diego, State of California more particularly described and enumerated in Exhibit "A" attached hereto and by this reference made a part hereof (such interest in real property is hereafter referred to as the "Subject Property"); (b) All buildings, structures and other improvements now or in the future located or to be constructed on the Subject Property (the "Improvements"); (c) all tenements, hereditaments, appurtenances, privileges, franchises and other rights and interests now or in the future benefitting or otherwise relating to the Subject Property or the Improvements, including easements, rights -of -way and development rights (the Deed of Trust Page 1 of 9 "Appurtenances"). (The Appurtenances, together with the Subject Property and the Improvements, are hereafter referred to as the "Real Property"); (d) subject to the assignment to Beneficiary set forth in Paragraph 4 below, all rents, issues, income, revenues, royalties and profits now or in the future payable with respect to or otherwise derived from the Trust Estate or the ownership, use, management, operation leasing or occupancy of the Trust Fstate, including those past due and unpaid (the "Rents"); (e) all present and future right, title and interest of Trustor in and to all inventory, equipment, fixtures and other goods (as those terms are defined in Division 9 of the California Uniform Commercial Code (the "UCC"), and whether existing now or in the future) now or in the future located at, upon or about, or affixed or attached to or installed in, the Real Property, or used or to be used in connection with or otherwise relating to the Real Property or the ownership, use, development, construction, maintenance, management, operation, marketing, leasing or occupancy of the Real Property, including furniture, furnishings, theater equipment, seating, machinery, appliances, building materials and supplies, generators, boilers, furnaces, water tanks, heating ventilating and air conditioning equipment and all other types of tangible personal property of any kind or nature, and all accessories, additions, attachments, parts, proceeds, products, repairs, replacements and substitutions of or to any of such property, but not including personal property that is donated to Trustor (the "Goods," and together with the Real Property, the "Property"); and (f) all present and future right, title and interest of Trustor in and to all accounts, general intangibles, chattel paper, deposit accounts, money, instruments and documents (as those terms are defined in the UCC) and all other agreements, obligations, rights and written material (in each case whether existing now or in the future) now or in the future relating to or otherwise arising in connection with or derived from the Property or any other part of the Trust Estate or the ownership, use, development, construction, maintenance, management, operation, marketing, leasing, occupancy, sale or financing of the property or any other part of the Trust Estate, including (to the extent applicable to the Property or any other portion of the Trust Estate) (i) permits, approvals and other governmental authorizations, (ii) improvement plans and specifications and architectural drawings, (iii) agreements with contractors, subcontractors, suppliers, project managers, supervisors, designers, architects, engineers, sales agents, leasing agents, consultants and property managers, (iv) takeout, refinancing and permanent loan commitments, (v) warranties, guaranties, indemnities and insurance policies, together with insurance payments and unearned insurance premiums, (vi) claims, demands, awards, settlements, and other payments arising or resulting from or otherwise relating to any insurance or any loss or destruction of, injury or damage to, trespass on or taking, condemnation (or conveyance in lieu of condemnation) or public use of any of the Property, (vii) license agreements, service and maintenance agreements, purchase and sale agreements and purchase options, together with advance payments, security deposits and other amounts paid to or deposited with Tnistor under any such agreements, (viii) reserves, deposits, bonds, deferred payments, refunds, rebates, discounts, cost savings, escrow proceeds, sale proceeds and other rights to the payment of money, trade names, trademarks, goodwill and all other types on intangible personal property of any kind or nature, and (ix) all supplements, modifications, amendments, renewals, extensions, proceeds, replacements and substitutions of or to any of such property (collectively the "Intangibles"). Deed of Trust Page 2 of 9 Trustor further grants to Trustee and Beneficiary, pursuant to the UCC, a security interest in all present and future right, title and interest of Trustor in and to all Goods and Intangibles and all of the Trust Estates described above in which a security interest may be created under the UCC (collectively, the "Personal Property"). This Deed of Trust constitutes a security agreement under the UCC, conveying a security interest in the Personal Property to Trustee and Beneficiary. Trustee and Beneficiary shall have, in addition to all rights and remedies provided herein, all the rights and remedies of a "secured party" under the UCC and other applicable California law. Trustor covenants and agrees that this Deed of Trust constitutes a fixture filing under Sections 9313, 9502 and 14109 of the UCC. FOR THE PURPOSE OF SECURING due, prompt and complete observance, performance and discharge of each and every condition, obligation, covenant and agreement contained herein or contained in that certain promissory note (the "Note"), dated on or about the date hereof, executed by Trustor. The obligations and restrictions set forth in the Note (the "Secured Obligations") and all of their terms are incorporated herein by reference and this conveyance shall secure any and all extensions, amendments, modifications or renewals thereof however evidenced, and additional advances evidenced by any instrument reciting that it is secured hereby. AND TO PROTECT THE SECURITY OF THIS DEED OF TRUST, TRUSTOR COVENANTS AND AGREES: 1. That Trustor shall perform the obligations of the Agency as set forth in the Secured Obligations at the time and in the manner respectively provided therein; 2. That Trustor shall not permit or suffer the use of any of the property for any purpose other than the use for which the same was intended at the time this Deed of Trust was executed; 3. That the Secured Obligations are incorporated in and made a part of the Deed of Trust. Upon default of a Secured Obligation, and after the giving of notice and the expiration of any applicable cure period, the Beneficiary, at its option, may exercise its remedies hereunder. 4. That all rents, profits and income from the property covered by this Deed of Trust are hereby assigned to the Beneficiary for the purpose of discharging the debt hereby secured. Permission is hereby given to Trustor so long as no default exists hereunder after the giving of notice and the expiration of any applicable cure period, to collect such rents, profits and income. 5. That upon default hereunder or under the aforementioned Secured Obligations, or any of them, and after the giving of notice and the expiration of any applicable cure period, Beneficiary shall be entitled to the appointment of a receiver by any court having jurisdiction, without notice, to take possession and protect the property described herein and operate same and collect the rents, profits and income therefrom; 6. That Trustor will keep the improvements now existing or hereafter erected on the property insured against loss by fire and such other hazards, casualties, and contingencies as may Deed of Trust Page 3 of 9 reasonably be required in writing from time to time by the Beneficiary, and all such insurance shall be evidenced by standard fire and extended coverage insurance policy or policies. In no event shall the amounts of coverage be less than 100 percent of the insurable value of the Property. Such policies shall be endorsed with standard mortgage clause with loss payable to the Beneficiary and certificates thereof together with copies of original policies shall be deposited with the Beneficiary; 7. To pay, at least 10 days before delinquency, any taxes and assessments affecting said Property; to pay, when due, all encumbrances, charges and liens, with interest, on said Property or any part thereof which appear to be prior or superior hereto; and to pay all costs, fees, and expenses of this Trust. Notwithstanding anything to the contrary contained in this Deed of Trust, Trustor shall not be required to pay and discharge any such tax, assessment, charge or levy so long as Trustor is contesting the legality thereof in good faith and by appropriate proceedings, and Trustor has adequate funds to pay any liabilities contested pursuant to this Section 7. 8. To keep said property in good condition and repair, subject to ordinary wear and tear, casualty and condemnation, not to remove or demolish any buildings thereon; to complete or restore promptly and in good and workmanlike manner any building which may be constructed, damaged, or destroyed thereon and to pay when duc all claims for labor performed and materials furnished therefor; to comply with all laws affecting said property or requiring any alterations or improvements to be made thereon (subject to Trustor's right to contest the validity or applicability of laws or regulations); not to commit or permit waste thereof; not to commit, suffer or permit any act upon said property in violation of law and/or covenants, conditions and/or restrictions affecting said property; not to permit or suffer any material alteration of or addition to the buildings or improvements hereafter constructed in or upon said property without the consent of the Beneficiary; 9. To appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of Beneficiary or Trustee, and to pay all costs and expenses, including cost of evidence of title and reasonable attorney's fees in a reasonable sum, in any such action or proceeding in which Beneficiary or Trustee may appear; 10. Should Trustor fail, after the giving of notice and the expiration of any applicable cure period, to make any payment or do any act as herein provided, then Beneficiary or Trustee, but without obligation so to do and without notice to or demand upon Trustor and without releasing Trustor from any obligation hereof, may make or do the same in such manner and to such extent as either may deem necessary to protect the security hereof. Following default, after the giving of notice and the expiration of any applicable cure period, Beneficiary or Trustee being authorized to enter upon said property for such purposes, may commence, appear in and/or defend any action or proceeding purporting to affect the security hereof or the rights or powers of Beneficiary or Trustee; may pay, purchase, contest, or compromise any encumbrance, charge, or lien which in the judgment of either appears to be prior or superior hereto; and, in exercising any such powers, may pay necessary expenses, employ counsel, and pay his reasonable fees; 11. Beneficiary shall have the right to pay fire and other property insurance premiums when due should Trustor fail to make any required premium payments. All such payments made by Deed of Trust Page 4 of 9 the Beneficiary shall be added to the indebtedness and obligations secured hereby in the Secured Obligations, or any other instrument drawn and agreed upon between the parties; 12. To pay immediately and without demand all sums so expended by Beneficiary or Trustee, under permission given under this Deed of Trust, with interest from date of expenditure at the rate of ten percent (10%) pursuant to Section 3289 of the California Civil Code; 13. Trustor further covenants that it will not voluntarily create, suffer, or permit to be created against the property subject to this Deed of Trust any lien or liens except as authorized by Beneficiary and further that they will keep and maintain the property free from the claims of all persons supplying labor or materials which will enter into the construction of any and all buildings now being erected or to be erected on said premises. Notwithstanding anything to the contrary contained in this Deed of Trust, Trustor shall not be obligated to pay any claims for labor, materials or services which Trustor in good faith disputes and is diligently contesting, provided that Trustor shall, at Beneficiary's written request, within thirty (30) days after the filing of any claim or lien (but in any event, and without any requirement that Beneficiary must first provide a written request, prior to foreclosure) record in the Office of the Recorder of San Diego County, a surety bond in an amount one -and -one-half (1i) times the amount of such claim item to protect against a claim of lien, or provide such other security reasonably satisfactory to Beneficiary; 14. That any and all improvements made or about to be made upon the premises covered by the Deed of Trust, and all plans and specifications, comply with all applicable municipal ordinances and regulations and all other applicable regulations made or promulgated, now or hereafter, by lawful authority, and that the same will upon completion comply with all such municipal ordinances and regulations and with the rules of the applicable fire rating or inspection organization, bureau, association or office; and 15. Trustor herein agrees to pay to Beneficiary or to the authorized loan servicing representative of the Beneficiary a reasonable charge for providing a statement regarding the obligation secured by this Deed of Trust as provided by Section 2954, Article 2, Chapter 2 Title 14, Division 3, of the California Civil Code. IT IS MUTUALLY AGREED THAT: 16. Should the property or any part thereof be taken or damaged by reason of any public improvement or condemnation proceeding, or damaged by fire, or earthquake, or in any other manner, subject to the rights of any beneficiary of a deed of trust senior or junior in priority to this Deed of Trust ("Lender"), Beneficiary shall be entitled to all compensation, awards, and other payments or relief therefor which are not used to reconstruct, restore or otherwise improve the property or part thereof that was taken or damaged, and shall be entitled at its option to commence, appear in and prosecute in its own name, any action or proceedings, or to make any compromise or settlement, in connection with such taking or damage. Unless Beneficiary approves of the rights of any Lender to the contrary, in addition to their rights herein, all such compensation, awards, damages, rights of action and proceeds which are not used to reconstruct, restore or otherwise improve the property or part thereof that was taken or damaged, including the proceeds of any policies of fire and other insurance affecting said property, are hereby assigned to Beneficiary. Deed of Trust Page 5 of 9 17. if Trustor shall fail to perform any covenant or agreement in this Deed of Trust or the Secured Obligations within thirty (30) days after written demand therefor by Beneficiary (or, in the event that more than 30 days is reasonably required to cure such default, should Trustor fail to promptly commence such cure, and diligently prosecute same to completion), after the giving of notice and the expiration of any applicable cure period, Beneficiary may deliver to Trustee a written declaration of default and demand for sale, and of written notice of default and of election to cause the property to be sold, which notice Trustee shall cause to be duly filed for record and Beneficiary may foreclose this Deed of Trust. Beneficiary shall also deposit with Trustee this Deed, the Secured Obligations and all documents evidencing expenditures secured hereby; 18: After the lapse of such time as may then be required by law following the recordation of said notice of default, and notice of sale having been given as then required by law, Trustee, without demand on Trustor, shall sell said property at the time and place fixed by it in said notice of sale, either as a whole or in separate parcels, and in such order as it may determine at public auction to the highest bidder for cash in lawful money of the United States, payable at time of sale. Trustee may postpone sale of all or any portion of said property by public announcement at the time and place of sale, and from time to time thereafter may postpone the sale by public announcement at the time and place of sale, and from time to time thereafter may postpone the sale by public announcement at the time fixed by the preceding postponement. Trustee shall deliver to the purchaser its Deed conveying the property so sold, but without any covenant or warranty, express or implied. The recitals in the Deed of any matters or facts shall be conclusive proof of the truthfulness thereof. Any person, including Trustor, Trustee or Beneficiary, may purchase at the sale. The Trustee shall apply the proceeds of sale to payment of (1) the expenses of such sale, together with the reasonable expenses of this trust including therein reasonable Trustee's fees or attorney's fees for conducting the sale, and the actual cost of publishing, recording, mailing and posting notice of the sale; (2) the cost of any search and/or other evidence of title procured in connection with such sale and revenue stamps on Trustee's Deed; (3) all consideration paid by Beneficiary as referred to in a Secured Obligation, with accrued interest at the highest rate of interest permitted by law; (4) all other sums then secured hereby; and (5) the remainder, if any, to the person or persons legally entitled thereto; 19. Beneficiary may from time to time substitute a successor or successors to any Trustee named herein or acting hereunder to execute this Trust. Upon such appointment, and without conveyance to the successor trustee, the latter shall be vested with all title, powers, and duties conferred upon any Trustee herein named or acting hereunder. Each such appointment and substitution shall be made by written instrument executed by Beneficiary, containing reference to this Deed of Trust and its place of record, which, when duly recorded in the proper office of the county or counties in which the property is situated, shall be conclusive proof of proper appointment of the successor trustee; 20. The pleading of any statute of limitations as a defense to any and all obligations secured by this Deed of Trust is hereby waived to the full extent permissible by law; Deed of Trust Page 6 of 9 21. Upon written request of Beneficiary stating that all obligations secured hereby have been satisfied, and upon surrender of this Deed of Trust to Trustee for cancellation and retention and upon payment of its fees, Trustee shall reconvey, without warranty, the property then held hereunder. The recitals in such reconveyance of any matters or fact shall be conclusive proof of the truthfulness thereof. The grantee in such reconveyance may be described as "the person or persons legally entitled thereto"; 22. The trust created hereby is irrevocable by Trustor; 23. This Deed of Trust applies to, inures to the benefit of, and binds all parties hereto, their heirs, legatees, devisees, administrators, executors, successors, and assigns. The term "Beneficiary" shall include not only the original Beneficiary hereunder but also any successors or assignees. In this Deed of Trust, whenever the context so requires, the masculine gender includes the feminine and/or neuter, and the singular number includes the plural. All obligations of Trustor hereunder are joint and several; 24. Trustee accepts this Trust when this Deed of Trust, duly executed and acknowledged, is made public record as provided by law. Except as otherwise provided by law the Trustee is not obligated to notify any party hereto of pending sale under this Deed of Trust or of any action of proceeding in which Trustor, Beneficiary, or Trustee shall be a party unless brought by Trustee; 25. The undersigned Trustor requests that a copy of any notice of default and of any notice of sale hereunder be mailed to Trustor at the address set forth in the first paragraph of this Deed of Trust. 26. Trustor agrees at any time and from time to time upon receipt of a written request from Beneficiary, to furnish to Beneficiary detailed statements in writing of income, rents, profits, and operating expenses of the premises, and the names of the occupants and tenants in possession, together with the expiration dates of their leases and full information regarding all rental and occupancy agreements, and the rents provided for by such leases and rental and occupancy agreements, and such other information regarding the premises and their use as may be requested by Beneficiary. 27. Trustor agrees that the indebtedness secured by this Deed of Trust is made expressly for the purpose , and in furtherance, of the responsibilities of Trustor as a redevelopment agency under the provisions of California's Community Redevelopment Law. 28. Notwithstanding specific provisions of this Deed of Trust, non -monetary performance hereunder shall not be deemed to be in default where delays or defaults are due to: war; insurrection; strikes; lock -outs; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions or priority; litigation; unusually severe weather; inability to secure necessary labor, materials or tools; delays of any contractor or supplier; acts of the other party; acts or failure to act of the City of San Diego or any other public or governmental agency or entity (except that any act or failure to act of Beneficiary shall not excuse performance by Beneficiary); or any other causes Deed of Trust Page 7 of 9 beyond the reasonable control or without the fault of the party claiming an extension of time to perform. An extension of time for any such cause (a "Force Majeure Delay") shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause. If, however, notice by the party claiming such extension is sent to the other party more than thirty (30) days after the commencement of the cause, the period shall commence to run only thirty (30) days prior to the giving of such notice. Times of performance under this Deed of Trust may also be extended in writing by the Beneficiary and Trustor. Notwithstanding the foregoing, none of the foregoing events shall constitute a Force Majeure Delay unless and until Trustor delivers to Beneficiary written notice describing the event, its cause, when and how Trustor obtained knowledge, the date the event commenced, and the estimated delay resulting therefrom. Trustor shall deliver such written notice within fifteen (15) days after it obtains actual knowledge of the event. 29. (a) Subject to the extensions of time set forth in Section 28, and subject to the further provisions of this Section 29, failure or delay by Trustor to perform any term or provision respectively required to be performed under a Secured Obligation or this Deed of Trust constitutes a default under this Deed of Trust. (b) Beneficiary shall give written notice of default to Trustor, specifying the default complained of by the Beneficiary. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default. (c) Any failures or delays by Beneficiary in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies. Delays by Beneficiary in asserting any of its rights and remedies shall not deprive Beneficiary of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert, or enforce any such rights or remedies. (d) If a monetary event of default occurs, prior to exercising any remedies, Beneficiary shall give Trustor written notice of such default. Trustor shall have a reasonable period of time after such notice is given within which to cure the default prior to exercise of remedies by Beneficiary under the Secured Obligations and/or this Deed of Trust. In no event shall Beneficiary be precluded from exercising remedies if its security becomes or is about to become materially impaired by any failure to cure a default or the default is not cured within ten (10) calendar days after the notice of default is received or deemed received. (e) If a non -monetary event of default occurs, prior to exercising any remedies, Beneficiary shall give Trustor notice of such default. If the default is reasonably capable of being cured within thirty (30) calendar days after such notice is received or deemed received, Trustor shall have such period to effect a cure prior to exercise of remedies by the Beneficiary. If the default is such that it is not reasonably capable of being cured within thirty (30) days, and Trustor (i) initiates corrective action within said period, and (ii) diligently and in good faith works to effect a cure as soon as possible, then Trustor shall have such additional time as is reasonably necessary to cure the default prior to exercise of any remedies by Beneficiary. In no event shall Beneficiary be precluded from exercising remedies if its security becomes or is about to become materially jeopardized by any Deed of Trust Page 8 of 9 failure to cure a default or the default is not cured within ninety (90) days after the notice of default is received or deemed received. (1) Any notice of default that is transmitted by electronic facsimile transmission followed by delivery of a "hard" copy, shall be deemed delivered upon its transmission; any notice of default that is personally delivered (including by means of professional messenger service, courier service such as United Parcel Service or Federal Express, or by U.S. Postal Service), shall be deemed received on the documented date of receipt by Trustor; and any notice of default that is sent by registered or certified mail, postage prepaid, return receipt required shall be deemed received on the date of receipt thereof. 30. This Deed of Trust shall be subordinate and junior to only those trust deeds Beneficiary expressly agrees to subordinate to in a written instrument approved by the Executive Director of the Trustor and City Manager of the Beneficiary, or their respective assignees. The Executive Director of the Trustor or City Manager of Beneficiary or their designee shall execute such instruments as may be necessary to subordinate the lien of this Deed of Trust and the Secured Obligation to the deed of trust described in this Section 30, above. hi the event of a default or breach by Trustor of any security instrument securing a senior obligation described in this Section 30, Beneficiary shall have the right to cure the default prior to completion of any foreclosure. In such event, Beneficiary shall be entitled to reimbursement by Trustor of all costs and expenses incurred by Beneficiary in curing the default. The amount of any such disbursements shall be a lien against the Subject Property and added to the obligation secured by this Deed of Trust until repaid, with interest at the highest rate permitted by law. IN WITNESS WHEREOF Trustor has executed this Deed of Trust as of the day and year set forth above. Attest: CITY OF NATIONAL CITY By: By: City Clerk Chris Zapata, City Manager Attest: COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY By: By: City Clerk Brad Raulston, Executive Director APPROVED AS TO FORM: Deed of Trust Page 9 of 9 By: Commission General Counsel APPROVED AS TO FORM: Kane Ballmer & Berkman By: Commission Special Counsel Deed of Trust Page 10 of 9 State of California County of ) ss On before me, , a Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) LEGAL DESCRIPTION OF SUBJECT PROPERTY EXIIIBIT "A" TO DF.FD OF TRUST, SECURITY AGREEMENT AND FIXTURE FILING (WITH ASSIGNMENT OF RENTS) EXHIBIT 5 PLEDGE AGREEMENT [behind this page] THIRD PARTY PLEDGE AGREEMENT TO: CITY OF NATIONAL CITY ("City") 1. GRANT OF SECURITY INTEREST. In consideration for City's assistance and cooperation in the implementation and completion of those certain Projects (defined below) set forth in that certain Cooperation Agreement dated February , 2011 entered into by City and the Community Development Commission of the City of National City ("Pledgor" or "Commission") ("Cooperation Agreement") and as security for the payment of all Indebtedness (defined below) of Pledgor to City, Pledgor hereby assigns, transfers to and pledges with City the following money and property: that certain bank account established at Wells Fargo, LAIF, Deutsche Bank for 2004 TAB account (bond reserve funds), Deutsche Bank — Trustee for 2005 TAB account (bond reserve funds), Bank of New York/Mellon — Trustee for 1999 TAB account (bond reserve funds), Gilford Securities, and all proceeds on deposit or to be deposited therein and rights to payment with respect to the foregoing, of Pledgor, together with all other money or property heretofore delivered or which shall hereafter be delivered to or come into the possession, custody or control of City in any manner or for any purpose whatsoever during the existence of this Agreement (collectively called "Collateral"), and whether held in a general or special account or deposit for safekeeping or otherwise, together with whatever is receivable or received when any Collateral or proceeds are sold, collected, exchanged or otherwise disposed of, whether such disposition is voluntary or involuntary, including without limitation, (a) all rights to payment, including returned premiums, with respect to any insurance relating to any of the foregoing, (b) all rights to payment of any Net Available Tax Increment (defined below), and (c) all rights to payment with respect to any cause of action affecting or relating to any of the foregoing, (hereinafter called "Proceeds"), and in the event that Pledgor receives any such Proceeds, Pledgor will hold the same in trust on behalf of and for the benefit of City and will immediately deliver all such Proceeds to City in the exact form received, to be held by City as part of the Collateral, subject to all terms hereof. The word "Indebtedness" is used herein in its most comprehensive sense and includes any and all advances, debts, obligations and liabilities of Pledgor heretofore, now or hereafter made, incurred or created, whether voluntary or involuntary and however arising, whether due or not due, absolute or contingent, liquidated or unliquidated, determined or undetermined, or whether recovery upon such Indebtedness may be or hereafter becomes unenforceable, including, without limitation, all amounts due under that certain Cooperation Agreement, including, without limitation, amounts equal to the cost to the City to carry out the Projects (defined below), including without limitation all costs incurred by the City for planning, acquisition and disposition, financing, development, permitting, design, site testing, bidding, construction and management of the Projects and Pledgor's obligation to make the payments set forth in the Payment Schedule attached to the Cooperation Agreement as Exhibit 2. The term Net available tax increment is defined as any tax increment generated from the Project Area, net of any amount required by the CRL to be set aside for purposes of increasing, improving or preserving the City's supply of low and moderate housing, any amounts paid to affected taxing agencies whether by statute or agreement and any amounts Pledge Agreement Page 1 of 10 paid to the State of California or the County of San Diego as required by statute or agreement, existing debt service payments, and existing contractual obligations received by the Commission or any lawful successor of the Commission and/or to any of the powers and rights of the Commission pursuant to any applicable constitutional provision, statute or other provision of law now existing or adopted in the future. The pledge of net available tax increment will constitute obligations to make payments authorized and incurred pursuant to Section 33445 and other applicable statutes. The obligations set forth in this Agreement will be contractual obligations that, if breached, will subject the Commission to damages and other liabilities or remedies. The term "Projects" as used herein shall collectively mean the projects associated with the Cooperation Agreement listed in the Schedule of Projects set forth in Exhibit 1 of the Cooperation Agreement. 2. CONTINUING AGREEMENT; REVOCATION; OBLIGATION UNDER OTHER AGREEMENTS. This is a continuing agreement and all rights, powers and remedies hereunder shall apply to all past, present and future Indebtedness of Pledgor to the City, including that arising under successive transactions which shall either continue the Indebtedness, increase or decrease it, or from time to time create new Indebtedness after all or any prior Indebtedness has been satisfied, and notwithstanding the death, incapacity, dissolution, liquidation or bankruptcy of Pledgor or any other event or proceeding affecting Pledgor. This Agreement shall not apply to any new Indebtedness created after actual receipt by City of written notice of its revocation as to such new Indebtedness; provided however, that contractual agreements made by the City to Pledgor to aid and cooperate with Pledgor in the implementation and completion of the Projects after revocation under commitments existing prior to receipt by City of such revocation, and extensions, renewals or modifications, of any kind, of Indebtedness incurred by the Pledgor prior to receipt by City of such revocation shall not be considered new Indebtedness. Any such notice must be sent to City by registered U.S. mail, postage prepaid, addressed to its office at: 1243 National City Boulevard National City, California 91950-4379 or at such other address as City shall from time to time designate. The obligations of Pledgor hereunder shall be in addition to any obligations of Pledgor under any other grants or pledges of security for any liabilities or obligations of Pledgor or any other person heretofore or hereafter given to City unless said other grants or pledges of security are modified or revoked in writing; and this Agreement shall not, unless herein provided, affect or invalidate any such other grants or pledges of security. 3. WAIVER OF STATUTE OF LIMITATIONS; REINSTATEMENT OF LIABILITY. Pledgor acknowledges that there is no condition precedent to the effectiveness of this Agreement and that this Agreement is in full force and effect and is binding on Pledgor as of the date written below, regardless of whether City obtains additional collateral or any guaranties from others or takes any other action contemplated by Pledgor. Pledgor waives the benefit of any statute of limitations affecting Pledgor's liability hereunder or the enforcement thereof, and Pledgor agrees that any payment of any Indebtedness or other act Pledge Agreement Page 2 of 10 which shall toll any statute of limitations applicable thereto shall similarly operate to toll such statute of limitations applicable to Pledgor's liability hereunder. The liability of Pledgor hereunder shall be reinstated and revived and the rights of City shall continue if and to the extent for any reason any amount at any time paid on account of any Indebtedness secured hereby is rescinded or must be otherwise restored by City, whether as a result of any proceedings in bankruptcy, insolvency, reorganization or otherwise, all as though such amount had not been paid. The determination as to whether any amount so paid must be rescinded or restored shall be made by City in its sole discretion; provided however, that if City chooses to contest any such matter at the request of Pledgor, Pledgor agrees to indemnify and hold City harmless from and against all costs and expenses, including reasonable attorneys' fees, expended or incurred by City in connection therewith, including without limitation, in any litigation with respect thereto. 4. REPRESENTATIONS AND WARRANTIES. 4.1 Pledgor represents and warrants to City that: (i) Pledgor is the owner and has possession or control, or will have possession or control, of the Collateral and Proceeds; (ii) Pledgor has the right to pledge the Collateral and Proceeds; (iii) all Collateral and Proceeds are genuine, free from liens, adverse claims, setoffs, default, prepayment, defenses and conditions precedent of any kind or character, except as heretofore disclosed to City in writing; (iv) specifically with respect to Collateral and Proceeds consisting of investment securities, instruments, chattel paper, documents, contracts, insurance policies or any like property, all persons appearing to be obligated thereon have authority and capacity to contract and are bound as they appear to be, and the same comply with applicable laws concerning form, content and manner of preparation and execution; (v) all statements contained herein and, where applicable, in the Collateral are true and complete; and (vi) no financing statement covering any of the Collateral or Proceeds, and naming any secured party other than City, is on file in any public office. 4:2 Pledgor further represents and warrants to City that the Collateral pledged hereunder is so pledged at Pledgor's request. Pledgor agrees to keep adequately informed from such means of any facts, events or circumstances which might in any way affect Pledgor's risks hereunder. 5. COVENANTS OF PLEDGOR. 5.1 Pledgor agrees: (i) to indemnify City against all losses, claims, demands, liabilities and expenses of every kind caused by property subject hereto by reason of Government Code Section 895.2; (ii) to pay all costs and expenses, including reasonable attorneys' fees, incurred by City in the perfection, preservation, realization, enforcement and exercise of its rights, powers, and remedies hereunder; (iii) to permit City to exercise its powers; (iv) to execute and deliver such documents as City deems necessary to create, perfect and continue the security interests contemplated hereby; and (v) not to change its chief place of business or the place Pledge Agreement Page 3 of 10 where Pledgor keeps any of the Collateral or Pledgor's records concerning the Collateral and Proceeds without first giving City written notice of the address to which Pledgor is moving same. 5.2 Pledgor agrees with regard to Collateral and Proceeds: (i) not to permit any lien on the Collateral or Proceeds, except in favor of City; (ii) after an Event of Default, defined below, not to withdraw any funds from any deposit account pledged to City hereunder without City's prior written consent; (iii) not to sell, hypothecate or otherwise dispose of any of the Collateral or Proceeds, or any interest therein, without the prior written consent of City; (iv) to keep, in accordance with generally accepted accounting principles, complete and accurate records regarding all Collateral and Proceeds, and to permit City to inspect the same at any reasonable time; (v) not to commingle Collateral or Proceeds with other property, (vi) in the event City elects to receive payments of Collateral or Proceeds hereunder after an Event of Default that is continuing, to pay all expenses incurred by City in connection therewith, including expenses of accounting, correspondence, collection efforts, filing, recording, record keeping and expenses incidental thereto; (vii) to provide any service and do any other acts or things necessary to keep the Collateral and Proceeds free and clear of all defenses, rights of offset and counterclaims; and (viii) if the Collateral or Proceeds consists of securities and so Iong as no Event of Default exists, to vote said securities and to give consents, waivers and ratifications with respect thereto, provided that no vote shall be cast or consent, waiver or ratification given or action taken which would impair City's interest in the Collateral and Proceeds or be inconsistent with or violate any provisions of this Agreement. 6. POWERS OF CITY. Pledgor appoints City its true attorney in fact to perform any of the following powers, which are coupled with an interest, are irrevocable until termination of this Agreement and may be exercised from time to time by City `s officers, council members, agents and employees, or any of them, whether or not Pledgor is in default: (a) to perform any obligation of Pledgor hereunder in Pledgor's name or otherwise; (b) to notify any person obligated on any security, instrument or other document subject to this Agreement of City `s rights hereunder; (c) to collect by legal proceedings or otherwise all dividends, interest, principal or other sums now or hereafter payable upon or on account of the Collateral or Proceeds; (d) to enter into any extension, reorganization, deposit, merger or consolidation agreement, or any other agreement relating to or affecting the Collateral or Proceeds, and in connection therewith to deposit or surrender control of the Collateral and Proceeds, to accept other property in exchange for the Collateral and Proceeds, and to do and perform such acts and things as City may deem proper, with any money or property received in exchange for the Collateral or Proceeds, at City `s option, to be applied to the Indebtedness or held by City under this Agreement; (e) to make any compromise or settlement City deems desirable or proper in respect of the Collateral and Proceeds; (f) to insure, process and preserve the Collateral and Proceeds; (g) to exercise all rights, powers and remedies which Pledgor would have, but for this Agreement, under all the Collateral and Proceeds subject to this Agreement; and (h) to do all acts and things and execute all documents in the name of Pledgor or otherwise, deemed by City as necessary, proper or Pledge Agreement Page 4 of 10 convenient in connection with the preservation, perfection or enforcement of its rights hereunder. To effect the purposes of this Agreement or otherwise upon instructions of Pledgor, City may cause any Collateral and/or Proceeds to be transferred to City's name or the name of City's nominee. If an Event of Default has occurred and is continuing, any or all Collateral and/or Proceeds consisting of securities may by registered, with notice to Pledgor, in the name of City or its nominee, and thereafter City or its nominee may exercise, without notice, all voting and corporate rights at any meeting of the shareholders of the issuer thereof, any and all rights of conversion, exchange or subscription, or any other rights, privileges or options pertaining to any Collateral and/or Proceeds, all as if it were the absolute owner thereof. The foregoing shall include, without limitation, the right of City or its nominee to exchange, at its discretion, any and all Collateral and/or Proceeds upon the merger, consolidation, reorganization, recapitalization or other readjustment of the issuer thereof, or upon the exercise by the issuer thereof or City of any right, privilege or option pertaining to any shares of the Collateral and/or Proceeds, and in connection therewith, the right to deposit and deliver any and all of the Collateral and/or Proceeds with any committee, depository, transfer agent, registrar or other designated agency upon such terms and conditions as City may determine. All of the foregoing rights, privileges or options may be exercised without liability except to account for property actually received by City. City shall have no duty to exercise any of the foregoing, or any other rights, privileges or options with respect to the Collateral or Proceeds and shall not be responsible for any failure to do so or delay in so doing. 7. CASH COLLATERAL ACCOUNT; NO DISBURSEMENT. Any money received by City in respect of the Collateral may, at City's option, be retained in a non -interest bearing cash collateral account and the same shall, for all purposes, be deemed Collateral hereunder. No disbursement of all of the Collateral may be made without City's prior written consent, which may be given or withheld in City's sole and absolute discretion. 8. CITY'S CARE AND DELIVERY OF COLLATERIAL. City's obligation with respect to Collateral and/or Proceeds in its possession shall be strictly limited to the duty to exercise reasonable care in the custody and preservation of such Collateral and Proceeds, and such duty shall not include any obligation to ascertain or to initiate any action with respect to or to inform Pledgor of maturity dates, conversion, call or exchange rights, or offers to purchase the Collateral or Proceeds, or any similar matters, notwithstanding City's knowledge of the same. City shall have no duty to take any steps necessary to preserve the rights of Pledgor against prior parties, or to initiate any action to protect against the possibility of a decline in the market value of the Collateral or Proceeds. City shall not be obligated to take any actions with respect to the Collateral or Proceeds requested by Pledgor unless such request is made in writing and City determines, in its sole discretion, that the requested action would not unreasonably jeopardize the value of the Collateral and Proceeds as security for the Indebtedness. City may at any time deliver the Collateral and Proceeds, or any part thereof, to Pledgor, and the receipt thereof by Pledgor shall be a complete and full acquittance for the Collateral and Proceeds so delivered, and City shall thereafter be discharged from any liability or responsibility therefor. Pledge Agreement Page 5 of 10 9. PLEDGOR'S WAIVERS. 9.1 Pledgor waives any right to require City to make any presentments or demands for performance, or give any notices of nonperformance, protests, notices of protest or notices of dishonor in connection with any obligations or evidences of indebtedness held by City as security or which constitute in whole or in part the Indebtedness secured hereunder, or in connection with the creation of new or additional Indebtedness. 9.2 Pledgor waives any defense arising by reason of: (i) the cessation or limitation from any cause whatsoever, other than payment in full, of the Indebtedness by Pledgor; (ii) any lack of authority of any officer, board member, director, partner, agent or any other person acting or purporting to act on behalf of Pledgor which is a corporation, partnership or other type of entity, or any defect in the formation of Pledgor; (iii) any act or omission by City which directly or indirectly results in or aids the discharge of Pledgor or any Indebtedness by operation of law or otherwise; or (iv) any modification of the indebtedness, in any form whatsoever, including any modification made after revocation hereof to any Indebtedness incurred prior to such revocation, and including without limitation, the renewal, extension, acceleration or other change in the terms of the Indebtedness, or any part thereof, including increase or decrease of the rate of interest thereon. Until all Indebtedness shall have been paid in full Pledgor waives all rights and defenses arising out of an election of remedies by City. Until all Indebtedness of the Pledgor to City shall have been paid in full, Pledgor further waives any right to enforce any remedy which City now has or may hereafter have against any other person or entity, and waives any benefit of, or any right to participate in, any security whatsoever now or hereafter held by City. 10. AUTHORIZATIONS TO CITY. Pledgor authorizes City either before or after revocation hereof, without notice or demand and without affecting Pledgor's liability hereunder, from time to time to: (a) alter, compromise, renew, extend, accelerate or otherwise change the time for payment of, or otherwise change the terms of the Indebtedness or any part thereof, including increase or decrease of the rate of interest thereon; (b) take and hold security, other than the Collateral and Proceeds, for the payment of the Indebtedness or any part thereof and exchange, enforce, waive and release the Collateral and Proceeds, or any part thereof, or any such other security; (c) after an Event of Default that is continuing, apply the Collateral and Proceeds or any other security and direct the order or manner of sale thereof, including without limitation, a non judicial sale permitted by the terms of the controlling security agreement or deed of trust, as City in its discretion may determine; (d) release or substitute any one or more of the endorsers or guarantors of the Indebtedness, or any part thereof, or any other parties thereto; and (e) apply payments received by City from Pledgor to any Indebtedness of Pledgor to City, in such order as City shall determine in its sole discretion, whether or not any such Indebtedness is covered by this Agreement, and Pledgor hereby waives any provision of law regarding application of payments which specifies otherwise. City may assign this Agreement in whole or in part after providing written notice to Pledgor. Pledge Agreement Page 6 of 10 11. PAYMENT OF TAXES, CHARGES, LIENS AND ASSESSMENTS. Piedgor agrees to pay, prior to delinquency, all taxes, charges, liens and assessments against the Collateral and Proceeds, and upon the failure of Piedgor to do so, City at its option may pay any of them and shall be the sole judge of the legality or validity thereof and the amount necessary to discharge the same. Any such payments made by City shall be obligations of Piedgor to City, due and payable immediately upon demand, together with interest at a rate determined in accordance with the provisions of Section 15 herein, and shall be secured by the Collateral and Proceeds, subject to all terms and conditions of this Agreement. 12. EVENTS OF DEFAULT. The occurrence of any of the following shall constitute an "Event of Default" under this Agreement: (a) any default in the payment or performance of any obligation, or any defined event of default, under (i) any contract or instrument evidencing any Indebtedness, or (ii) any other agreement between Piedgor and City, including without limitation, the Cooperation Agreement and other related agreements any other obligation of Piedgor relating to or executed in connection with any Indebtedness; (b) any representation or warranty made by Piedgor herein shall prove to be incorrect in any material respect when made; (c) Piedgor shall fail to observe or perform any obligation or agreement contained herein; (d) any attachment or like levy on any property of Piedgor; and (e) City, in good faith, believes any or all of the Collateral and/or Proceeds to be in danger of misuse, dissipation, commingling, loss, theft, damage, or destruction, or otherwise in jeopardy or unsatisfactory in character or value. 13. REMEDIES. Upon the occurrence of any Event of Default, City shall have and may exercise without demand any and all rights, powers, privileges and remedies granted to a secured party upon default at law or in equity. All rights, powers, privileges and remedies of City shall be cumulative. City may exercise its lien or right of setoff with respect to the Indebtedness in the same manner as if the Indebtedness were unsecured. No delay, failure or discontinuance of City in exercising any right, power, privilege or remedy hereunder shall affect or operate as a waiver of such right, power, privilege or remedy; nor shall any single or partial exercise of any such right, power, privilege or remedy preclude, waive or otherwise affect any other or further exercise thereof or the exercise of any other right, power, privilege or remedy. Any waiver, permit, consent or approval of any kind by City of any default hereunder, or any such waiver of any provisions or conditions hereof, must be in writing and shall be effective only to the extent set forth in writing. While an Event of Default exists: (a) City may, at any time and at City's sole option, liquidate any time deposits pledged to City hereunder, whether or not said time deposits have matured and notwithstanding the fact that such liquidation may give rise to penalties for early withdrawal of funds; (b) City may appropriate the Collateral and apply all Proceeds toward repayment of the Indebtedness in such order as City may from time to time elect or, at City `s sole option, place any Proceeds in the cash collateral account; and (c) at City's request, Piedgor will assemble and deliver all Collateral and Proceeds, and books and records pertaining thereto, to City at a reasonably convenient place designated by City. It is agreed that public or private sales, for cash or on credit, to a wholesaler or retailer or investor, or user of property of the types subject to this Agreement, or public auction, are all Pledge Agreement Page 7 of 10 commercially reasonable since differences in the sales prices generally realized in the different kinds of sales are ordinarily offset by the differences in the costs and credit risks of such sales. For any Collateral or Proceeds consisting of securities, City shall be under no obligation to delay a sale of any portion thereof for the period of time necessary to permit the issuer thereof to register such securities for public sale under any applicable state or federal law, even if the issuer thereof would agree to do so. 14. DISPOSITION OF COLLATERAL AND PROCEEDS. Upon the transfer of all or any part of the Indebtedness, City may transfer all or any part of the Collateral or Proceeds and shall be fully discharged thereafter from all liability and responsibility with respect to any of the foregoing so transferred, and the transferee shall be vested with all rights and powers of City hereunder with respect to any of the foregoing so transferred; but with respect to any Collateral or Proceeds not so transferred, City shall retain all rights, powers, privileges and remedies herein given. Any proceeds of any disposition of any of the Collateral or Proceeds, or any part thereof, may be applied by City to the payment of expenses incurred by City in connection with the foregoing, including reasonable attorneys' fees, and the balance of such proceeds may be applied by City toward the payment of the Indebtedness in such order of application as City may from time to time elect. 15. COSTS, EXPENSES AND ATTORNEYS' FEES. Pledgor shall pay to City immediately upon demand the full amount of all payments, advances, charges, costs and expenses, including reasonable attorneys' fees (to include outside counsel fees and all allocated costs of City 's legal counsel) (all such items collectively referred to as "Pledgor Reimbursement Obligations"), incurred by City in exercising any right, power, privilege or remedy conferred by this Agreement or in the enforcement thereof, including any of the foregoing incurred in connection with any bankruptcy proceeding relating to Pledgor or the valuation of the Collateral and/or Proceeds, including without limitation, the seeking of relief from or modification of the automatic stay or the negotiation and drafting of a cash collateral order. All of the foregoing shall be paid to City by Pledgor with interest at a rate per annum equal to the greater of ten percent (10%) or Prime Rate in effect from time to time from the date the Pledgor Reimbursement Obligations are incurred by the City. The "Prime Rate" is a base rate that J.P. Morgan Chase Bank from time to time establishes and which serves as the basis upon which effective rates of interest are calculated for its most creditworthy customers. 16. DISCLOSURE OF INFORMATION. Pledgor acknowledges that City has the right to sell, assign, transfer, negotiate or grant participations in all or any part of, or any interest in, any Indebtedness of Pledgor to City and any obligations with respect thereto, including this Agreement. In connection therewith, City may disclose all documents and information which City now has or hereafter acquires relating to Pledgor and this Agreement, whether furnished by Pledgor or otherwise. In the event of any such sale, assignment, transfer or participation, City and the parties to such transaction shall share in the rights and obligations of City as set forth in this Agreement only as and to the extent they agree among themselves. In connection with any such sale, assignment, transfer or participation, Pledgor further agrees that this Agreement shall be sufficient evidence of the obligations of Pledge Agreement Page 8 of 10 Pledgor to each purchaser, assignee, transferee or participant, and upon written request by City, Pledgor shall enter into such amendment or modification to this Agreement as may be reasonably required in order to evidence any such sale, assignment, transfer or participation. The indemnity obligations of Pledgor under this Agreement shall also apply with respect to any purchaser, assignee, transferee or participant. 17. GOVERNING LAW; SUCCESSORS, ASSIGNS. This Agreement shall be governed by and construed in accordance with the laws of the State of California, and shall be binding upon and inure to the benefit of the heirs, executors, administrators, legal representatives, successors and assigns of the parties. 18. SEVERABILITY OF PROVISIONS. If any provision of this Agreement shall be held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or any remaining provisions of this Agreement. 2011. IN WITNESS WHEREOF, this Agreement has been duly executed as of February _, PLEDGOR NATIONAL CITY REDEVELOPMENT COMMISSION Dated: By: Brad Raulston Executive Director ATTEST: Mike Dalla, City Clerk APPROVED AS TO FORM By: Claudia Gacitua Silva Commission General Counsel Pledge Agreement Page 9 of 10 KANE, BALLMER & BERKMAN By: Susan Y. Cola Commission Special Counsel Pledge Agreement Page 10 of 10 EXHIBIT 6 UCC-1 FINANCING STATEMENT [behind this page] ATTACHMENT UCC-1 Financing Statement Debtor: The Community Development Commission of the City of National City. Secured Party: The City of National City. Item 4: Collateral Description. This Financing Statement covers all of the following items and/or types of property, whether any of the foregoing is owned now or acquired later; all accessions, additions, replacements, and substitutions relating to any of the foregoing; all records of any kind relating to any of the foregoing; and all proceeds relating to any of the foregoing (including insurance, general intangibles and account proceeds): (1) Any and all general intangibles, instruments, documents, chattel paper, accounts, accounts receivable, cash, deposit accounts, contract rights and rights to payment pursuant to, or in any way now or hereinafter arising out of, in connection with or otherwise relating to (a) that certain Cooperation Agreement] [that certain Option Agreement] [that certain Agreement for Right of First Refusal] dated as of , among the City of and the Debtor, [that certain Promissory Note executed by the Debtor in favor of the City of dated as of ] as now existing or as it may hereinafter be amended, modified, supplemented, or superseded; (b) any and all related documents, instruments, and agreements, as now existing or as may be modified, supplemented, or amended from time to time; and (c) any and all present and future collateral, of whatever kind or nature, now or hereafter granted to secure payment and performance of any and all of the foregoing (collectively and severally referred to as the "Collateral"); and (2) Together with whatever is receivable or received when any of the Collateral or proceeds thereof are sold, assigned, transferred, collected, exchanged, or otherwise disposed of, whether such disposition is voluntary or involuntary, including without limitation (a) all accounts, contract rights, chattel paper, instruments, general intangibles, money and rights to payment of any kind now or hereafter arising from any such sale, assignment, transfer, collection, exchange, or other disposition of any of the foregoing; and (b) all rights to payment, including without limitation, rights to payment with respect to any cause of action affecting or relating to any of the foregoing (referred to as the "Proceeds"). UCC-1 ATTACHMENT COLLATERAL DESCRIPTION EXHIBIT 7 OPTION AGREEMENT WITH MEMORANDUM OF OPTION [behind this page] OPTION AGREEMENT THIS OPTION AGREEMENT (this "Agreement") is entered into this day of February , 2011, by and between the CITY OF NATIONAL CITY (the "City") and the COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY (the "Commission"), with reference to the following facts: A. The Commission owns, or within the term of this Agreement, wilt own, certain real property more particularly described on Exhibit "A" (the "Property"). B. The Commission desires to grant the City an option to purchase the Property from the Commission and the City wishes to reserve the right to purchase the Property from the Commission under the terms contained herein. C. The parties hereto wish to enter into a memorandum of option agreement and record such an instrument on any or all of the Property subject to this Agreement using the memorandum attached hereto as Exhibit `B". D. This Agreement is subject to the provisions of the Redevelopment Plan for the National City Redevelopment Project on July 17, 2007 by Ordinance No. 2007-2295 (the "Redevelopment Plan"). The Redevelopment Plan is incorporated herein by reference and made a part hereof as though fully set forth herein. NOW, THEREFORE, for good and valuable consideration paid by the City, receipt and sufficiency of which is acknowledged by the Commission, the parties hereto do mutually agree as follows: 1. Grant of Option. Commission hereby grants City, or its nominee, the option to purchase the Property, or any part thereof, on or before the latter of (a) the thirtieth (30th) anniversary of this Agreement or (b) last date for duration of the Redevelopment Plan, as set forth in Section XI therein ("Redevelopment Plan Effectiveness Date"). This option shall be exercisable only by written notice delivered by City to Commission as provided below. Upon the exercise of such option to purchase the Property and receipt by the Commission, City shall purchase the Property pursuant to the terms below. 2. Exercise of Option. The option contained herein shall be exercised by City, if at all, in the following manner: (i) City shall deliver written notice (the "Exercise Notice") to Commission not less than ten (10) days prior to the date of the proposed purchase of the Property by the City; the last date of written notice shall be the latter of (a) the thirtieth (30th) anniversary of this Agreement or (b) the Redevelopment Plan Effectiveness Date; (ii) Commission, after receipt of City's notice, shall deliver notice (the "Responsive Purchase Notice") to City prior to the proposed purchase date of the Property by the City, setting forth the proposed purchase price and such other terms necessary and appropriate to accomplish the purchase of the Property by City under the timeframes proposed by the City; and (iii) if City wishes to exercise such option Option Agreement Page 1 of 4 to purchase the Property, City shall, after City's receipt of the Responsive Purchase Notice, exercise the option by delivering the City's form of purchase and sale agreement and grant deed, modified for any particular parcel of Property, along with the consideration for the Property in the amount of the purchase price and identification of the day the grant deed is to be recorded in the office of the County Recorder (the "Closing Date"). The proposed grant deed for the Property or any part thereof shall include, among other things, express covenants requiring the Property to be devoted to the purposes set forth below. The purchase price for the Property shall be the fair market value of the Property. City and Commission shall meet to determine the fair market value of the Property. In the event the Commission and City are unable to agree on the fair market value, within forty-five (45) days of the Responsive Purchase Notice (the "Negotiation Period"), the fair market value shall be determined in accordance with the appraisal procedures set forth in the paragraph directly, below ("Fair Market Value Appraisal Process"). In the event the Commission and City are unable to agree upon the fair market value of the Property within the Negotiation Period, the Commission and City shall each appoint and pay for a Qualified Appraiser (as defined below) to determine the fair market value of the Property in accordance with the standards and procedures set forth below. Each Qualified Appraiser shall complete and submit an appraisal to the City and Commission on or prior to 5:00 p.m. Pacific time on the date that is sixty (60) days following the expiration of the Negotiation Period ("Notice of the Fair Market Value Appraisal"). If the appraisals differ, then the Fair Market Value shall be the average of the two (2) appraisals. Each of the Qualified Appraisers shall be instructed to appraise the Property (taking into consideration any improvements and infrastructure located thereon) for uses allowed under then applicable laws. As used herein, the term "Qualified Appraiser" shall mean an MAI appraiser with at least ten (10) consecutive years experience with similar properties in Southern California, with whom neither the Commission nor City is affiliated with. 3. Purpose. Any and all property purchased by the City pursuant to this Option may be used, sold or leased by the City for any municipal purpose, including, but not limited to, housing and public improvements, in conformance with the Redevelopment Plan. 4. Condition of Property. The Property is sold in its "as -is" condition on the Closing Date subject to the Redevelopment Plan and all encumbrances of record. 5. Memorandum. Concurrently with the execution hereof, Commission and City shall execute, acknowledge and cause to be recorded in the Official Records of San Diego County, California, the Memorandum of Option Agreement substantially in the form attached hereto as Exhibit "B." Upon the termination of this Agreement as provided herein or at the time of and concurrently with the closing of a sale of the Property, the parties agree to execute a quitclaim deed or other termination instrument in order to cause the memorandum to be terminated and removed of record. Option Agreement Page 2 of 4 6. Transferability of Right. The right of the City under this Agreement is fully transferable and assignable by the City without the consent of the Commission. 7. Expiration Date and Termination of Agreement. The City reserves the right to reduce or extend the time period in paragraph 1 which permits the City to purchase the Property on or before the latter of (a) the thirtieth (30th) anniversary of the Agreement or (b) the Redevelopment Plan Effectiveness Date. 8. Prorations. Title Insurance. Title and Escrow. The parties shall equally share all costs of escrow and prorations affecting the Property. Commission shall not voluntarily create and record any liens or encumbrances or other matters against the Property after receipt of the Exercise Notice. The Commission pay for City's requirements for a CLTA Commission's Policy of Title Insurance in favor of the City. Unless otherwise agreed upon by the parties in writing, the title insurer and escrow shall be [Name] Title Company, [address]. Said escrow agent shall instruct title insurer to deliver a title commitment to the City upon receipt of the Exercise Notice. 9. This Agreement shall be binding on and shall inure to the benefit of all successors and assigns of the parties, whether by agreement or operation of law. This Agreement may be signed in any number of counterparts and delivered by facsimile. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above. ATTEST: CITY OF NATIONAL CITY By: By: City Clerk Chris Zapata, City Manager ATTEST: COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY By: By: City Clerk Brad Raulston, Executive Director APPROVED AS TO FORM: By: General Counsel APPROVED AS TO FORM: Option Agreement Page 3 of 4 Kane Ballmer & Berkman By: Commission Special Counsel Option Agreement Page 4 of 4 EXHIBIT "A" The "Property" Assessor Parcel Number: EXHIBIT "B" RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City of National City 1243 National City Blvd National City, CA 91950 APN: MEMORANDUM OF OPTION AGREEMENT 1. Parties; and Property. This memorandum of option agreement is entered into by the COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY, a public entity, corporate and politic ("Commission") and CITY OF NATIONAL CITY, a municipality ("City") concerning real property located in the City of National City and County of San Diego, State of California, as more fully described in the attached Exhibit "1" (the "Property"). 2. Memorandum. For good and valuable consideration received, the Commission, as current fee Commission of the Property, acknowledges that Commission and City have entered into an option agreement (the "Option Agreement") permitting the City to purchase the Property from the Commission under the terms and conditions thereof for a term of Thirty (30) years from the date this instrument is signed, unless otherwise changed or modified by the terms of the Option Agreement. 3. Not Complete Summary. This instrument is not a complete summary of the Option Agreement. Provisions herein shall not be used in interpreting the Option Agreement. 4. Prohibition against Discrimination and Segregation. City covenants and agrees for itself, its successors, its assigns and every successor in interest to the Property or any part thereof or interest therein, there shall be no discrimination against or segregation of any person, or group of persons, on account of sex, sexual orientation, marital status, race, color, creed, religion, ancestry or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property nor shall City, itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees of the Property. All deeds, leases or contracts shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: Option Agreement Page 6 a. In deeds: "The grantee herein covenants by and for himself or herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed, nor shall the grantee or any person claiming under or through him or her, establish or permit any practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the premises herein conveyed. The foregoing covenants shall run with the land." Notwithstanding the preceding paragraph, the provisions relating to discrimination on the basis of familial status shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of the Government Code nor be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall also apply to the preceding paragraph. b. In leases: "The lessee herein covenants by and for himself or herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or through him or her, and this lease is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of persons, on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants, lessees, sublessees, subtenants, or vendees in the premises herein leased." Notwithstanding the preceding paragraph, the provisions relating to discrimination on the basis of familial status shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of the Government Code nor be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision (d) of Section 51 Option Agreement Page 7 and Section 1360 of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall also apply to the preceding paragraph. c. In contracts: "There shall be no discrimination against or segregation of any person or group of persons, on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the land, nor shall the transferee itself or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants, lessees, sublessees, subtenants, or vendees of the land." 5. Purpose. This instrument is prepared for recordation purposes only, and in no way modifies the terms, conditions, provisions and covenants of the Option Agreement. In the event of any inconsistency between the terms, conditions, provisions and covenants of this instrument and the Option Agreement, the terms, conditions and covenants of the Option Agreement shall prevail. The parties hereto have executed this instrument on the dates specified immediately beside their respective signatures. This document may be executed and acknowledged before a notary public with counterpart signature and acknowledgment pages, each of which shall be deemed an original and which, when taken together, shall constitute the fully -executed instrument. A 11LST: CITY OF NATIONAL CITY By: By: City Clerk Chris Zapata, City Manager ATTEST: COMMIlNTTY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY By: By: City Clerk Brad Raulston, Executive Director APPROVED AS TO FORM: By: City Attorney Option Agreement Page 8 APPROVED AS TO FORM: Kane Ballmer & Berkman By: Commission Special Counsel Option Agreement Page 9 Exhibit "1" to Memorandum of Option Agreement Legal Description of Property The land is situated in the State of California, County of and is described as follows; [to be inserted] APN State of California County of ACKNOWLEDGMENT PAGE TO MEMORANDUM OF OPTION AGREEMENT ) ) ) On before me, , a Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) State of California County of ) ) ) On before me, , a Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) EXHIBIT 8 COMMISSION PROPERTIES SUBJECT OF OPTION AGREEMENT [PROVIDE LEGAL DESCRIPTION OR APNs] CITY OF NATIONAL CITY, CALIFORNIA CITY COUNCIL AGENDA STATEMENT MEETING DATE: February 15, 2011 AGENDA ITEM NO. 11 EM TITLE: p, resolution of the City Council of the City of National City authorizing the Mayor to execute a Property Management Agreement by and between the Community Development Commission and City of National City. (Tax Increment Fund, Low -Mod Set Aside Fund).j PREPARED BY: Patricia Bear DEPARTMENT: Redevelo ment Division PHONE: 42551 EXPLANATION: Since its formation in 1969, the CDC has acquired several properties (land and structures) for three primary purposes: development and operation of affordable housing (for example Morgan and Kimball Towers), redevelopment for economic development purposes (for example Marina Gateway sites), and to be protected as historical and cultural assets (for example, the Stein Farm). In order to provide on- going maintenance, protection and security for these sites, staff is recommending the attached Property Management Agreement between the CDC and City be approved. The Agreement establishes funding for the required property management services for eight years, to be extended at the desire of either entity until 2036. The payment to the City is established at an amount considered to be adequate currently and could be adjusted by the parties in the future, should costs either increase or decrease. The initial amount is based on costs incurred by the CDC for its properties over the past three years, excluding capital improvement costs and/or administrative costs for staff time. A list of the properties to hn managed is attached, as Exhibit B, to the Agreement. APPROVED BY. FINANCIAL STATEMENT: APPROVED: Finance ACCOUNT NO. rihis Agreement would provide $556,468 annually in tax increment funds and low - moderate housing set aside funds to the City to maintain CDC owned properties. These costs are funded through operating accounts of the City. ENVIRONMENTAL REVIEW: Not applicable, ORDINANCE: INTRODUCTION: FINAL ADOPTION: STAFF RECOMMENDATION: Adopt the resolution BOARD / COMMISSION RECOMMENDATION: ATTACHMENTS: Proposed Agreement. RESOLUTION 2011 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE A PROPERTY MANAGEMENT AGREEMENT BY AND BETWEEN COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY AND THE CITY OF NATIONAL CITY WHEREAS, the Community Development Commission of the City of National City ("CDC") has acquired a variety of real estate parcels and structures (the "Properties"), as allowed under the Califomia Redevelopment Law Section 33391 for the purposes of developing and operating affordable housing, to hold for redevelopment for economic development purposes, and as public properties held in perpetuity as historic and cultural resources; and WHEREAS, the CDC desires for the City to maintain said Properties as identified in Exhibit "A", attached hereto; and WHEREAS, the CDC shall allocates current and future property tax increment and low -mod housing set -aside funds to manage the properties for a period of eight (8) years, with continuing options to extend the term in five (5) year increments, as desired by either party, until May 16, 2036; and WHEREAS, the City desires to maintain said Properties for the purposes as defined in the Redevelopment Plan for the National City Redevelopment Project; and WHEREAS, the CDC will pay the City for property management services and related expenses at an annual rate of $556,468, which may be adjusted between the parties as expenses increase or decrease. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of National City hereby authorizes the Mayor to execute the Property Management Agreement by and between the Community Development Commission of the City of National City and the City of National City. PASSED and ADOPTED this 15th day of February, 2011. Ron Morrison, Mayor ATTEST: Michael R. Della, City Clerk APPROVED AS TO FORM: Claudia G. Silva City Attorney 72 921 National City Blvd 73 929 National City Blvd 74 921 A Avenue 75 130 E. 8th St 76 1028 A Ave 77 500 E. Plaza Blvd 78 1640 E. Plaza Blvd 79 Sheryl Lane 80 1231 McKinley Ave 81 1237 McKinley Ave 82 1239 McKinley Ave 83 900 W. 23rd St 85 405 W. 18th St 86 Cleveland Ave 87 2300 Cleveland Ave 88 830 W 23rd St 89 835 E 24th St 90 801 Bay Marina Dr 91 No Site Address 92 F Ave 93 E Ave 94 1845E Ave 95 1808 F Ave 97 98 99 100 101 102 103 No Site Address No Site Address No Site Address 1221 D Ave No Site Address No Site Address National City Blvd EXHIBIT A LIST OF CDC PROPERTIES Former Ed. Center Steamed Bean Kimball House H&M Goodies Avenue A Housing Lamb's Theatre Days Inn Habitat For Humanity McKinley Parcels McKinley Parcels McKinley Parcels Santa Fe Depot Westside Housing Site . Marina Gateway Marina Gateway Marina Gateway Marina Gateway Marina Gateway Stein Farm Stein Farm Stein Farm Stein Farm Kimball/Morgan Towers Kimball/Morgan Towers Kimball/Morgan Towers Kimball/Morgan Towers RCP 556 471 03 CDC of National City 556 471 04 CDC of National City 556 472 16 CDC of National City 556 472 26 CDC of National City 556 553 08 CDC of National City 556 560 39 CDC of National City 557 410 20 CDC of National City 557 430 37 CDC of National City 559 022 05 CDC of National City 559 022 07 CDC of National City 559 022 08 CDC of National City 559 040 43 01 CDC of National City 559 085 08 CDC of National City 559 117 04 CDC of National City 559 117 05 CDC of National City 559 117 06 CDC of National City 559 117 07 CDC of National City 559 117 12 CDC of National City 560 050 13 CDC of National City 560 232 02 CDC of National City 560 232 04 CDC of National City 560 232 05 CDC of National City 560 232 06 CDC of National City 560 410 02 CDC of National City 560 410 04 CDC of National City 560 410 05 CDC of National City 560 410 06 CDC of National City 560 410 08 CDC of National City 562 251 39 CDC of National City 562 321 08 CDC of National City PROPERTY MANAGEMENT AGREEMENT BY AND BETWEEN THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY AND THE CITY OF NATIONAL CITY FOR PROPERTY MANAGEMENT SERVICES THIS Agreement is made and entered into by and between the Community Development Commission of the City of National City [CDC], and the City of National City[City] for the City to provide Property Management Services for CDC owned properties. ARTICLE 1 PROPERTY MANAGEMENT SERVICES 1.1 Scope of Services. The City shall perform the Property Management Services as set forth in the written Scope of Services [Exhibit A] at the direction of the CDC for the properties listed in the List of CDC Properties [Exhibit B]. ARTICLE II DURATION OF AGREEMENT 2.1 Term of Agreement. This Agreement shall be effective on the date it is executed by the last party to sign the Agreement, and shall have a term of eight (8) years ("Term"), with continuing options to extend the Term in five (5) year increments, as desired by either party, until May 16, 2036. ARTICLE 111 COMPENSATION -Page 1 of 6 — Property Management Agreement 3.1 Amount of Compensation. The CDC shall pay the City for performance of all Property Management Services rendered in accordance with this Agreement, including reasonably related expenses, at the annual rate of $556,468 per fiscal year [Annual Fee], which may be adjusted, from time to time, by mutual agreement of the parties as expenses increase or decrease. 3.2 Manner of Payment. The CDC shall pay City the Annual Fee within thirty (30) calendar days after the end of the fiscal year for which Property Management Services were performed. 3.3 Additional Services. The CDC may require that the City perform additional Property Management Services beyond those described in the Scope of Services [Additional Services]. Prior to the City's performance of Additional Services, the CDC and the City must agree in writing upon a fee for the Additional Services, including reasonably related expenses. The CDC wilt pay the City for the performance of Additional Services in accordance with Section 3.2. ARTICLE IV CITY'S OBLIGATIONS 4.1 Property Management Standards. The City agrees that the Property Management Services rendered under this Agreement shall be performed in accordance with the standards customarily adhered to by an experienced and competent property management firm using the degree of care and skill ordinarily exercised by reputable professionals practicing in the same field of service in the State of California. 4.2 Maintenance of Records. The City shall maintain books, records, logs, documents and other evidence sufficient to record all actions taken with respect to the rendering of the Property Management Services. The City further agrees to allow the CDC to inspect, copy, and audit such books, records, documents and other evidence at all reasonable times. ARTICLE V INDEMNIFICATION 5.1 Indemnification. In contemplation of the provisions of California Government Code section 895.2 imposing certain tort liability jointly upon public entities solely by reason of such entities being parties to an agreement as defined by -Page 2 of 6 — Property Management Agreement Government Code section 895, the parties hereto, as between themselves, pursuant to the authorization contained in Government Code sections 895.4 and 895.6, shall each assume the full liability imposed upon it, or any of its officers, agents or employees, by law for injury caused by negligent or wrongful acts or omissions occurring in the performance of this Agreement to the same extent that such liability would be imposed in the absence of Government Code section 895.2. To achieve the above -stated purpose, each party indemnifies, defends and holds harmless the other party for any liability, losses, cost or expenses that may be incurred by such other party solely by reason of Government Code section 895.2. ARTICLE VI MISCELLANEOUS 6.1 Jurisdiction and Venue. The venue for any suit or proceeding concerning this Agreement, the interpretation or application of any of its terms, or any related disputes shall be in the County of San Diego, State of California. 6.2 Conflicts Between Terms. If an apparent conflict or inconsistency exists between the main body of this Agreement and the Exhibits, the main body of this Agreement shall control. If a conflict exists between an applicable federal, state, or local law, rule, regulation, order, or code and this Agreement, the law, rule, regulation, order, or code shall control. Varying degrees of stringency among the main body of this Agreement, the Exhibits, and laws, rules, regulations, orders, or codes are not deemed conflicts, and the most stringent requirement shall control. Each Party shall notify the other immediately upon the identification of any apparent conflict or inconsistency concerning this Agreement. 6.3 Notices. In all cases where written notice is required under this Agreement, service shall be deemed sufficient if the notice is deposited in the United States mail, postage paid. Proper notice shall be effective on the date it is mailed, unless provided otherwise in this Agreement. For the purpose of this Agreement, unless otherwise agreed in writing, notice to the City shall be addressed to: 1243 National City Boulevard, National City, CA, 91950, Attn: City Manager and notice to the CDC shall be addressed to: 1243 National City Boulevard, National City, CA 91950, Attn: Executive Director. 6.4 Exhibits Incorporated. All Exhibits referenced in this Agreement are incorporated into the Agreement by this reference. -Page 3 of 6 — Property Management Agreement 6.5 Binding on Successors. This Agreement shall be binding on and shall inure to the benefit of all successors and assigns of the parties, whether by agreement or operation of law. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above. Attest: CITY OF NATIONAL CITY By: By: Mike Dalla, City Clerk Ron Morrison, Mayor Attest: By: By: Brad Raulston, Secretary APPROVED AS TO FORM: By: Claudia Gacitua Silva City Attorney APPROVED AS TO FORM: Kane Ballmer & Berkman -Page 4 of 6 — Property Management Agreement COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY Ron Morrison, Chairman By: Commission Special Counsel -Page 5 of 6 — Property Management Agreement EXHIBIT A SCOPE OF SERVICES Essential Duties 1.Implements property management and marketing plans to include marketing and maintenance of CDC owned property. 2. Negotiates leases for CDC owned property; monitors and manages lease agreements, maintenance, and other contracts for CDC property; oversees the ongoing maintenance, security and repair activities for leased property. 3. Prepares, coordinates, and monitors the program budget for property management functions. 4. Represents the CDC in relocation processes. 5. Prepares written and oral reports on property management activities; provides report information to the CDC Board or citizen advisory committees, as required; responds to public inquiries regarding CDC owned property and property management activities. -Page 6 of 6 — Property Management Agreement EXHIBIT B LIST OF CDC PROPERTIES -Page 7 of 6 — Property Management Agreement CITY OF NATIONAL CITY, CALIFORNIA CITY COUNCIL AGENDA STATEMENT MEETING DATE: February 15, 2011 AGENDA ITEM NO. 12 .. =M TITLE: IA resolution of the City Council of the City of National City approving a Cooperation Agreement for the Westside Infill Transit Oriented Development ("WI-TOD") between the Community Development Commission of the City of National City and the City of National City and making certain determinations and findings related th reto. (Low Mod Set Aside Fund) (Companion Item*). PREPARED BY: Patricia Beard DEPARTMENT: Redeye • . - nt Division PHONE: 142551 APPROVED BY: t�— EXPLANATION: In order to complete affordable housing projects as required by the California Redevelopment Law (Sections 33220 and 33206), the Housing Element of the National City General Plan and the Redevelopment Plan for the National City Redevelopment Project, twenty -percent (20%) of anticipated property tax increment to the CDC must be used to develop and operate low -moderate income housing. The City has traditionally assisted in coordinating, administering and implementing low -moderate income housing projects. The attached Agreement secures funds necessary to implement the WI-TOD - an anticipated low and moderate housing project within the Redevelopment Project area and Westside Specific Plan area. All activities, including administrative oversight, acquisition, development, disposition and operation for said projects would become City obligations under the Agreement. ase see attached Background Report. I FINANCIAL STATEMENT: ACCOUNT NO. APPROVED: Finance IThe City would accept transfer up to $40 million in anticipated low -mod set aside funds from the CDC to fund the WI-TOD project.. ENVIRONMENTAL REVIEW: The Westside Specific Plan EIR (Schedule No. 2008071092) was certified by the City Council on March 16, 2010 and considered the WI-TOD project. Per Public Resources Code Section 21166 no subsequent EIR is required for this Agreement because no substantial changes are proposed that require revisions to the Westside Specific Plan EIR. ORDINANCE: INTRODUCTION: FINAL ADOPTION: STAFF RECOMMENDATION: Adopt the resolution. BOARD / COMMISSION RECOMMENDATION: ATTACHMENTS: Background Report Proposed Agreement RESOLUTION 2011 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY APPROVING A COOPERATION AGREEMENT FOR THE WESTSIDE INFILL TRANSIT ORIENTED DEVELOPMENT ("WI-TOD") BETWEEN THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY AND THE CITY OF NATIONAL CITY, AND MAKING CERTAIN DETERMINATIONS AND FINDINGS RELATED THERETO WHEREAS, the City of National City adopted the Redevelopment Plan for the National City Redevelopment Project on July 17, 2007, by Ordinance No. 2007-2295 (the "Redevelopment Plan"), which results in the allocation of a portion of the property taxes generated from the National City Redevelopment Project (the "Project Area") to the Community Development Commission of the City of National City ("CDC") for purposes of redevelopment; and WHEREAS, the intent of the Redevelopment Plan is, in part, to increase, improve and preserve the community's supply of low and moderate income housing, and to expend tax increment to accomplish these goals and objectives; and WHEREAS, the CDC has adopted its Five -Year Implementation Plan for the Project Area, as amended from time to time (collectively, the "Implementation Plan") with established goals to support affordable housing, economic development, community revitalization, commercial revitalization, and institutional revitalization. To implement the programs and activities associated with each goal, the CDC has made redevelopment fund commitments and budget allocations based on estimated available tax increment revenue and debt financing structures; and WHEREAS, Sections 33334.2 and 33334.3 of California's Community Redevelopment Law [Health and Safety Code Sections 33000, et seq.] (the "CRL") require the CDC to use 20 percent (20%) of taxes allocated to the CDC pursuant to Section 33670 of the CRL for the purpose of increasing, improving, and preserving the community's supply of low and moderate income housing; and WHEREAS, the CDC and the City wish to cooperate with one another to carry out the CDC's low and moderate income housing activities in accordance with the Redevelopment Plan and the Implementation Plan; and WHEREAS, pursuant to Sections 33220 and 33206 of the CRL, the City may aid the CDC and cooperate in the planning, undertaking, construction, or operation of low and moderate income housing in the community; and WHEREAS, the CDC and the City have prepared a Cooperation Agreement (the "Agreement") to provide for implementation of certain low and moderate income housing programs and projects set forth in the Schedule of Projects attached thereto as Exhibit 1 (the "Projects"), and to make payments by the CDC to the City in accordance with the Payment Schedule attached thereto as Exhibit 2 and as otherwise necessary to reimburse the City for the cost to the City of performing its obligations thereunder in accordance with the Schedule of Performance attached thereto as Exhibit 3, subject to all of the terms and conditions of the Agreement; and WHEREAS, the programs and activities associated with the Projects include, but are not limited to, acquisition and disposition of property; development of design criteria; design, planning and preparation of construction bid documents; financial analysis; financing; new construction or rehabilitation; mortgage assistance to qualifying households; Resolution No. 2011 — Page 2 subsidies to individuals and families; entering into and repayment of loans secured by the low and moderate income housing funds; and ongoing monitoring of projects, asset management and administration of agreements; and WHEREAS, to carry out the Projects in accordance with the objectives and purposes of the Redevelopment Plan for the Project Area and the Implementation Plan, the CDC desires assistance and cooperation in the implementation and completion of the Projects; and WHEREAS, the City wishes to enter into the Agreement with the CDC to aid the CDC, and cooperate with the CDC to expeditiously implement the Projects in accordance with the Redevelopment Plan for the Project Area and the Implementation Plan, and undertake and complete all actions necessary or appropriate to ensure that the low and moderate income housing objectives of the Redevelopment Plan for the Project Area and the Implementation Plan are fulfilled within the time effectiveness of the Project Area; and WHEREAS, in considering the CDC's desire to ensure timely implementation and completion of the Projects, the CDC wishes to enter into the Agreement with the City for the pledge of net available housing funds to finance the Projects; and WHEREAS, the purpose of the Agreement is to facilitate the implementation of the Projects, and to provide funding necessary to effectuate the completion of the Projects with net available housing funds in this current fiscal year and forthcoming fiscal years; and WHEREAS, net available housing funds is defined as that portion of the tax increment allocated to the CDC or any lawful successor of the CDC and/or to any of the powers and rights of the CDC pursuant to any applicable constitutional provision, statute or other provision of law now existing or adopted in the future, that is set aside by the CDC pursuant to Sections 33334.2 and 33334.3 or any other law or regulation that may be enacted in the future requiring a set -aside of tax increment for the purpose of increasing, improving, and preserving the community's supply of low and moderate income housing, net of existing debt service payments and existing contractual obligations payable from such housing set aside; and WHEREAS, the pledge of net available housing funds will constitute obligations of the CDC to make payments authorized and incurred pursuant to Section 33334.2 and other applicable statutes. The obligations set forth in the Agreement will be contractual obligations that, if breached, will subject the CDC to damages and other liabilities or remedies; and WHEREAS, by approving and entering into the Agreement, the CDC will approve the pledge of net available housing funds from the Project Area and/or bond proceeds secured by a pledge of net available housing funds from the Project Area to pay for the Projects; and WHEREAS, the obligations of the CDC under the Agreement shall constitute an indebtedness of the CDC for the purpose of carrying out the Redevelopment Plan for the Project Area; and Resolution No. 2011 - Page 3 WHEREAS, it is in the best interests of the City of National City and for the common benefit of residents, employees, business tenants and property owners within the Project Area and the City of National City as a whole for the Projects to be developed and constructed; and WHEREAS, the Westside Specific Plan Environmental Impact Report ("EIR") (Schedule No. 2008071092) was certified by the City Council on March 16, 2010, and is on file in the office of the City Clerk; and WHEREAS, the Agreement does not contemplate and will not result in any new programs or activities, or substantial changes to the activities analyzed in the Westside Specific Plan EIR; and WHEREAS, Public Resources Code Section 21166 ("Section 21166") provides that when an EIR has been certified for a project, no subsequent or supplemental EIR shall be prepared unless the lead agency determines, on the basis of substantial evidence in light of the whole record, that one or more of the following events occurs: (a) Substantial changes are proposed in the project which will require major revisions of the environmental impact report. (b) Substantial changes occur with respect to the circumstances under which the project is being undertaken which will require major revisions in the environmental impact report. (c) New information, which was not known and could not have been known at the time the environmental impact report was certified as complete, becomes available; and WHEREAS, the CDC, as the lead agency under CEQA, has not determined any of the findings required by Section 21166; and WHEREAS, all other legal prerequisites to the adoption of this Resolution have been satisfied. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of National City, as follows: Section 1. The City Council has received and heard all oral and written objections to the proposed payments by the CDC to the City for the Projects as described in the Agreement, and to other matters pertaining to this transaction, and all such oral and written objections are hereby overruled. Section 2. The City Council hereby finds and determines that the foregoing recitals are true and correct. Section 3. Based on the evidence in the record, the City Council hereby finds and determines, the use of low and moderate income housing funds for the Projects will be of benefit to the Project Area in accordance with Section 33334.2 of the CRL. Section 4. The City Council hereby consents to and accepts the payments by the CDC to the City in accordance with the Schedule of Payments attached to the Agreement as Exhibit 2. Resolution No. 2011 — Page 4 Section 5. The Mayor is hereby authorized to execute the Agreement on behalf of the City, together with such non -substantive changes and amendments as may be approved by the Mayor and City Attorney. Section 6. The City Manager, or designee, is hereby authorized, on behalf of the City, to sign all documents necessary and appropriate to carry out and implement the Agreement, including, without limitation, any security instruments to be recorded against CDC assets to secure the CDC's obligations under the Agreement, and to administer the City's obligations, responsibilities and duties to be performed under the Agreement. Section 7. That the information contained in the Westside Specific Plan EIR has been reviewed and considered by the City Council, and it is determined that no substantial changes or new information of substantial importance within the meaning of Section 21166 would warrant any additional environmental review in connection with approval of the Agreement. Section 8. That the City Manager is directed to file a Notice of Determination ("NOD") with the Clerk of the Recorder's Office for the County of San Diego regarding the Agreement. Section 9. Said Agreement is on file in the office of the City Clerk. Section 10. This Resolution shall take effect immediately upon its adoption. PASSED and ADOPTED this 15th day of February, 2011. Ron Morrison, Mayor ATTEST: Michael R. Dalla, City Clerk APPROVED AS TO FORM: Claudia G. Silva City Attorney ATTACHMENT 1 BACKGROUND REPORT On March 3, 2009, the CDC entered into an Exclusive Negotiation Agreement with the Related Companies of California and Community Housing Works to discuss the potential redevelopment of the National City Public Works site and adjoining sites into a transit- ' oriented infill affordable housing project — commonly called the Westside InfiII TOD or MI-TOD". The WI-TOD would implement a land use addressed in the Westside Specific Plan and its certified Environmental Impact Report certified on March 16, 2010. The developers and CDC have been diligently working on the proposal and anticipate bringing forward a Development and Disposition Agreement in spring of 2011. In anticipation of the commencement of planning, design and supplemental analysis under the California Environmental Quality Act so that an actual project can be considered, staff desires that funding be established and preserved within the City to implement the project if it is approved. The attached Agreement provides for a transfer of up to $40 million in anticipated low -mod set aside funds for the project oversight, site predevelopment activities such as remediation, any project subsidy to be determined in the future and on -going operational costs. In order for the CDC and City to cooperate in this manner, certain findings are required to be made: • The City has received and heard all oral and written objections to the proposed payments by the Commission to the City for the Projects as described in the Agreement, and to other matters pertaining to this transaction, and all such oral and written objections are hereby overruled; • The City hereby finds and determines that the foregoing recitals are true and correct; • Based on the evidence in the record, the City hereby finds and determines, with respect to the use of low and moderate income housing funds for the Projects will be of benefit to the Project Area in accordance with Section 33334.2 of the CRL; and • The City hereby consents to the payments by the Commission to the City in accordance with the Schedule of Payments attached to the Agreement as Exhibit 2. Funds ultimately transferred will not exceed actual funding to be determined necessary for the project. The Mayor is authorized to execute the Agreement on behalf of the City, together with such non -substantive changes and amendments as may be approved by the City Manager and City Attorney. The City Manager, or designee, is authorized, on behalf of the City, to sign all subsequent documents necessary and appropriate to carry out and implement the Agreement, including, without limitation, any security instruments to be recorded against CDC assets to secure the CDC's obligations under the Agreement, and to administer the CDC's obligations, responsibilities and duties to be performed under the Agreement. COOPERATION AGREEMENT FOR PAYMENT OF COSTS ASSOCIATED WITH CERTAIN REDEVELOPMENT COMMISSION FUNDED LOW AND MODERATE INCOME HOUSING PROJECTS THIS COOPERATION AGREEMENT (this "Agreement") is entered into this 15th day of February, 2011, by and between the CITY OF NATIONAL CITY, a public body, corporate and politic (the "City") and the COMMUNITY DEVELOPMENT COMISSION OF THE CITY OF NATIONAL CITY (the "Commission"), with reference to the following facts: A. The City Council of the City of National City (the "City Council") adopted the Redevelopment Plan for National City Redevelopment Project on July 17, 2007 by Ordinance No. 2007-2295 (the "Redevelopment Plan"), which results in the allocation of a portion of the property taxes generated from the National City Redevelopment Project (the "Project Area") to the Commission for purposes of redevelopment. B. The intent of the Redevelopment Plan is, in part, to increase, improve and preserve the community's supply of low and moderate income housing, and to expend tax increment to accomplish these goals and objectives. C. The Commission has adopted its Five -Year Implementation Plan for the Project Area, as amended from time to time (collectively, the "Implementation Plan") with established goals to support affordable housing, economic development, community revitalization, commercial revitalization, and institutional revitalization. To implement the programs and activities associated with each goal, the Commission has made redevelopment fund commitments and budget allocations based on estimated available tax increment revenue and debt financing structures. D. Sections 33334.2 and 33334.3 of California's Community Redevelopment Law [Health & Safety Code §§33000, et seq.] (the "CRL") require the Commission to use 20 percent of taxes allocated to the Commission pursuant to Section 33670 of the CRL and deposited in the Commission's Low and Moderate Income Housing Fund (the "Housing Fund") for the purpose of increasing, improving, and preserving the community's supply of low and moderate income housing. E. Pursuant to Sections 33220 and 33206 of the California Community Redevelopment Law (Health and Safety Code Section 33000 et seq.) (the "CRL"), the City may aid and cooperate in the planning, undertaking, construction, or operation of low and moderate income housing in the community. F. To carry out the Commission's low and moderate income housing program in accordance with the objectives and purposes of the redevelopment Plan for the Project Area and the Implementation Plan, the Commission desires assistance and cooperation in the implementation and completion of the low and moderate income housing projects and programs listed in the attached Exhibit 1, which are incorporated herein by this reference (the "Projects"). G. The activities associated with the Projects include but are not limited to acquisition and disposition of property, development of design criteria, design, planning, Cooperation Agreement Page 1 of 6 preparation of construction bid documents, financial analysis, financing, new construction or rehabilitation, mortgage assistance to qualifying households, subsidies to individuals and families, entering into and repayment of loans secured by the low and moderate income housing funds and ongoing monitoring of projects, asset management and administration of agreements. The City agrees to aid the Commission and cooperate with the Commission to expeditiously implement the Projects in accordance with the redevelopment Plan for the Project Area and the Implementation Plan and undertake and complete all actions necessary or appropriate to ensure that the Iow and moderate income housing objectives of the redevelopment Plan for the Project Area and the Implementation Plan are fulfilled within the time effectiveness of the Project Area. H. In considering the Commission's desire to ensure timely implementation and completion of the Projects, the Commission wishes to enter into this Agreement with the City for the pledge of net available housing funds and/or bond proceeds secured by a pledge of net available housing funds ("Bond Proceeds") to finance the Projects. The purpose of this Agreement is to facilitate the implementation of the Projects and to continue to provide funding necessary to effectuate the completion of the Projects with net available housing funds, and/or Bond Proceeds, in this current fiscal year and forthcoming fiscal years. I. "Net available housing funds" is defined as that portion of the tax increment allocated to the Commission or any lawful successor of the Commission and/or to any of the powers and rights of the Commission pursuant to any applicable constitutional provision, statute or other provision of law now existing or adopted in the future, that is set aside by the Commission pursuant to Sections 33334.2 and 33334.3 or any other law or regulation that may be enacted in the future requiring a set aside of tax increment for the purpose of increasing, improving, and preserving the community's supply of low and moderate income housing, net of existing debt service payments and existing contractual obligations payable from such housing set aside. The pledge of net available housing funds will constitute obligations of the Commission to make payments authorized and incurred pursuant to Section 33334.2 and other applicable statutes. The obligations set forth in this Agreement will be contractual obligations that, if breached, will subject the Commission to damages and other liabilities or remedies. J. By approving and entering into this Agreement, the Commission has approved the pledge of net available housing funds from the Project Area to pay for the Projects. K. The obligations of the Commission under this Agreement shall constitute an indebtedness of the Commission for the purpose of carrying out the redevelopment Plan for the Project Area. NOW, THEREFORE, the parties hereto do mutually agree as follows: I. INTRODUCTORY PROVISIONS The recitals above arc an integral part of this Agreement and set forth the intentions of the parties and the premises on which the parties have decided to enter into this Agreement. II. COMMISSION'S OBLIGATIONS 1. The Projects are those low and moderate income housing projects and programs which are listed on the attached Exhibit 1. The Commission shall, within thirty (30) days of Cooperation Agreement Page 2 of 6 execution of this Agreement, convey by grant deed in form mutually agreeable to both parties those certain real properties Iegally described in Exhibit 4 ("Commission Property") to City, and agrees to pay to the City an amount equal to the cost to the City to carry out the Projects not to exceed FORTY MII LION DOLLARS ($40,000,000), including without limitation the City's administrative costs and all costs incurred by the City for the acquisition and disposition of property, development of design criteria, design, planning, preparation of construction bid documents, financial analysis, financing, new construction or rehabilitation, mortgage assistance to qualifying households, subsidies to individuals and families, entering into and repayment of loans secured by the low and moderate income housing fund account and ongoing monitoring, asset management and administration of agreements. The City's administrative costs shall include all reasonable amounts needed to pay for the City's overhead, payroll and benefits, insurance, supplies, telephone, copying, fixtures, furniture, equipment, legal accounting, and other professional fees and costs, and other reasonable customary, and lawful administrative expense of the City during any Fiscal Year in which the City services are provided. The City's annual administrative costs shall be in the amounts separately identified in the City's annual budget for each Fiscal Year until termination of this Agreement. 2. The Commission's obligations under this Agreement, including without limitation the Commission's obligation to make the payments to the City required by this Agreement, shall constitute an indebtedness of the Commission for the purpose of carrying out the redevelopment of the Project Area and are obligations to make payments authorized and incurred pursuant to Section 33334.2 of the CRL and other applicable statutes. The obligations of the Commission set forth in this Agreement are contractual obligations that, if breached, will subject the Commission to damages and other liabilities or remedies. 3. The obligations of Commission under this Agreement shall be payable out of net available housing funds and/or Bond Proceeds, as defined in the above recitals and/or as defined or provided for in any applicable constitutional provision, statute or other provision of law now existing or adopted in the future affecting tax increment allocated to the Commission and/or any lawful successor entity of the Commission and/or any entity established by law to carry out any of the redevelopment Plan for the Project Area and/or expend tax increment or pay indebtedness of the Commission to be repaid with tax increment, pursuant to Section 33670 of the CRL or any applicable constitutional provision, statute or other provision of law now existing or adopted in the future, in amounts not less than those set forth in the Payment Schedule attached hereto as Exhibit 2 and incorporated herein by this reference. In the event that additional funds are required in order to make the Commission payments to the City required by this Agreement, the Commission shall make such payments from income received by the Commission from its projects and programs or any other additional funds available to it. 4. The indebtedness of Commission under this Agreement shall be subordinate to the rights of the holder or holders of any existing bonds, notes or other instruments of indebtedness (all referred to herein as "indebtedness") of the Commission incurred or issued to finance the Project Area, including without limitation any pledge of tax increment revenues from the Project Area to pay any portion of the principal (and otherwise comply with the obligations and covenants) of any bond or bonds issued or sold by Commission with respect to the Project Area. 5. Except as set forth in the following section of this Agreement, all payments due to be made by the Commission to the City under this Agreement shall be made by the Commission in accordance with the schedule set forth in Exhibit 2 and as otherwise necessary to reimburse Cooperation Agreement Page 3 of 6 the City for the cost to the City of performing its obligations hereunder. The City shall provide the Commission with a quarterly report accompanied by evidence reasonably satisfactory to the Commission's Executive Director that the City has progressed in the implementation of the Project for which payment is made by the Commission commensurate with such payments and has incurred costs or obligations to make payments equal to or greater than such amount. III. CITY'S OBLIGATIONS 1. The City shall accept any funds offered by the Commission pursuant to this Agreement and shall devote those funds to completion of the Projects, in accordance with the requirements of the CRL for expenditure of Housing Funds by (i) reimbursing the City or using such funds to make City expenditures to perform the work required to carry out and complete the Projects; (ii) utilizing such funds to pay debt service on bonds or other indebtedness or obligations that the City has or will incur for such purposes; and/or (iii) holding and expending such funds only for the purpose of satisfying the obligations of the City hereunder. 2. It is the responsibility of City to pay its costs in connection with the Projects from funds paid to the City by the Commission under this Agreement. 3. The City shall perform its obligations hereunder in accordance with the applicable provisions of federal, state and local laws, including the obligation to comply with environmental laws such as CEQA before undertaking any of the Projects, and shall timely complete the work required for each Project in accordance with the Schedule of Performance attached hereto as Exhibit 3 and incorporated herein by this reference. IV. LIABILITY AND INDEMNIFICATION In contemplation of the provisions of California Government Code section 895.2 imposing certain tort liability jointly upon public entities solely by reason of such entities being parties to an agreement as defined by Government Code section 895, the parties hereto, as between themselves, pursuant to the authorization contained in Government Code sections 895.4 and 895.6, shall each assume the full liability imposed upon it, or any of its officers, agents or employees, by law for injury caused by negligent or wrongful acts or omissions occurring in the performance of this Agreement to the same extent that such liability would be imposed in the absence of Government Code section 895.2. To achieve the above -stated purpose, each party indemnifies, defends and holds harmless the other party for any liability, losses, cost or expenses that may be incurred by such other party solely by reason of Government Code section 895.2. V. ENTIRE AGREEMENT; WAIVERS; AND AMENDMENTS 1. This Agreement shall be executed in triplicate originals, each of which is deemed to be an original. This Agreement consists of six (6) pages and four (4) Exhibits, which constitute the entire understanding and agreement of the parties. 2. This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the parties with respect to the subject matter of this Agreement. Cooperation Agreement Page 4 of 6 3. This Agreement is intended solely for the benefit of the City and the Commission. Notwithstanding any reference in this Agreement to persons or entities other than the City and the Commission, there shall be no third party beneficiaries under this Agreement. 4. All waivers of the provisions of this Agreement and all amendments to this Agreement must be in writing and signed by the authorized representatives of the parties. VI. SEVERABILITY If any term, provisions, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions shall continue in full force and effect unless the rights and obligations of the parties have been materially altered or abridged by such invalidation, voiding or unenforceability. VII. DEFAULT If either party fails to perform or adequately perform an obligation required by this Agreement within thirty (30) calendar days of receiving written notice from the non -defaulting party, the party failing to perform shall be in default hereunder. In the event of default, the non - defaulting party will have all the rights and remedies available to it at law or in equity to enforce the provisions of this contract, including without limitation the right to sue for damages for breach of contract. The rights and remedies of the non -defaulting party enumerated in this paragraph are cumulative and shall not limit the non -defaulting party's rights under any other provision of this Agreement, or otherwise waive or deny any right or remedy, at law or in equity, existing as of the date of the Agreement or hereinafter enacted or established, that may be available to the non -defaulting party against the defaulting party. All notices of defaults shall clearly indicate a notice of default under this Agreement. VIII. BINDING ON SUCCESSORS This Agreement shall be binding on and shall inure to the benefit of all successors and assigns of the parties, whether by agreement or operation of law. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above. IN WITNESS WHEREOF, City and Commission have signed this Agreement as of the dates set opposite their signatures. THE CITY OF NATIONAL CITY Attest: By: By: City Clerk Ron Morrison, Mayor Cooperation Agreement Page 5 of 6 COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY Attest: By: By: Secretary Ron Morrison, Chairman APPROVED AS TO FORM: By: City Attorney APPROVED AS TO FORM: Kane Ballmer & Berkman By: Commission Special Counsel Cooperation Agreement Page 6 of 6 EXHIBIT 1 SCHEDULE OF PROJECTS 1. Construction of at least 201 units of affordable rental housing for low income households (as defined by Health and Safety Code section 50079.5(a)) and very low income households (as defined by Health and Safety Code section 50105(a)), which shall be offered at affordable rent (as defined by Health and Safety Code section 50053(b)). Estimated Cost: $80,694,501 EXHIBIT 2 PAYMENT SCHEDULE Payment to the Housing City will be made as follows: The reserves of the existing Low -Moderate Housing Funds will be transferred to the City upon execution of this Agreement. The Balance of Funds will be transferred annually from the full balance of Low Mod Housing Fund receipts until the full obligation is paid or may be pre -paid if bonds are issued for the project EXHIBIT 3 SCHEDULE OF PERFORMANCE Completion of Draft Development and Disposition Agreement June 30, 2011 Completion of Project Due Diligence June 30, 2012 Commence construction June 30, 2013 Completion of Phase I June 30, 2016 Completion of Phase II June 30, 2020 EXHIBIT 4 LEGAL DESCRIPTION APNs: 559-104-10, 559-124-05, 559-125-15, 560-206-03, 560-391-05, 08, 560-396-06 CITY OF NATIONAL CITY, CALIFORNIA CITY COUNCIL AGENDA STATEMENT MEETING DATE: February 15, 2011 AGENDA ITEM NO. ir3 EM TITLE: {A resolution of the City Council of the City of National City authorizing the City to enter into a Cooperation Agreement (SR 54 and National City Boulevard infrastructure improvement) with the Community Development Commission of the City of National City and making certain determinations and findings related thereto. (Tax Increment Fund) (Companion Item #).J PREPARED BY: Patricia Bearct PHONE: 42551 EXPLANATION: DEPARTMENT: Redevelopment Division APPROVED BY* In order to assure timely completion of public improvements necessary to the future redevelopment in accordance with the Redevelopment Plan for the National City Redevelopment Project of properties immediately northeast of the SR 54 and the National City Boulevard intersection, the City Council and CDC will tonight both consider entering a Cooperation Agreement. The Agreement would provide that the CDC transfer funding for the anticipated improvements (detailed in Exhibit I of the Agreement) to the City. Both a construction schedule for the City and payment schedule for the CDC are included in the Agreement as are the parcels within the Project Area to be made more economically viable by the infrastructure project and the payment schedule for the CDC payments for the work. If the Agreement is approved, title to the CDC site would transfer to the City if an Option (included) is exercised. Should the subsequently decide to resell the property to a redeveloper, a Public Hearing as required by the Califomia Redevelopment Law (Section 33433) would be required. ase see attached Background Report. 1 FINANCIAL STATEMENT: APPROVED: Finance This Agreement would pledge future Tax Increment funds not to exceed $2,500,000. The Tax Increment would be paid in a lump sum of $830,000 upon completion of the improvements and thereafter in annual installments of up to $120,000 over the remaining life of the Redevelopment Plan or until the full commitment is paid, whichever comes first. The City does not have adequate funds in the General Fund or any designated funds to complete the work, ENVIRONMENTAL REVIEW: Not applicable, ORDINANCE: INTRODUCTION: { FINAL ADOPTION: { STAFF RECOMMENDATION: Adopt the resolution. BOARD / COMMISSION RECOMMENDATION: ATTACHMENTS: Background Report Proposed Agreement. RESOLUTION NO. 2011 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE CITY TO ENTER INTO A COOPERATION AGREEMENT [SR 54 AND NATIONAL CITY BOULEVARD INFRASTRUCTURE IMPROVEMENTS] WITH THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY, AND MAKING CERTAIN DETERMINATIONS AND FINDINGS RELATED THERETO WHEREAS, the City Council adopted the Redevelopment Plan for the National City Redevelopment Project on July 17, 2007, by Ordinance No. 2007-2295 (the "Redevelopment Plan"), which results in the allocation of a portion of the property taxes generated from the National City Redevelopment Project (the "Project Area") to the Community Development Commission of the City of National City ("CDC") for purposes of redevelopment; and WHEREAS, the intent of the Redevelopment Plan is, in part, to provide for the construction and installation of necessary public infrastructure and facilities and to facilitate the repair, restoration and/or replacement of existing public facilities and to perform specific actions necessary to promote the redevelopment and the economic revitalization of the Project Area; to increase, improve and preserve the community's supply of low and moderate income housing; to take all other necessary actions to implement the Redevelopment Plan; and to expend the CDC's share of property taxes (referred to as "tax increment") to accomplish the goals and objectives of the Redevelopment Plan; and WHEREAS, the CDC has adopted its Five -Year Implementation Plan for the Project Area, as amended from time to time (collectively, the "Implementation Plan") with established goals to support affordable housing, economic development, community revitalization, commercial revitalization, and institutional revitalization. To implement the programs and activities associated with each goal, the CDC has made redevelopment fund commitments and budget allocations based on estimated available tax increment revenue and debt financing structures; and WHEREAS, the City and CDC wish to cooperate with one another to bring about the redevelopment of the Project Area, and accomplish various tasks set forth in the Redevelopment Plan and the Implementation Plan; and WHEREAS, pursuant to Section 33220 of the California Community Redevelopment Law (Health and Safety Code Sections 33000 et seq.) (the "CRL") certain public bodies, including the City, may aid and cooperate in the planning, undertaking, construction, or operation of redevelopment projects; and WHEREAS, the CDC and City desire to enter into a Cooperation Agreement (the "Agreement") to provide for implementation of certain public infrastructure projects (the "Projects"), under which payments will be made by the CDC to the City as otherwise necessary to reimburse the City for the cost to the City of installing and constructing the Projects; and WHEREAS, the programs and activities associated with the Projects include, but are not limited to, development of design criteria, design, planning, preparation of construction bid documents, financial analysis, financing, and new construction or rehabilitation; and Resolution No. 2011 — Page 2 WHEREAS, the obligations of the CDC under the Agreement shall constitute an indebtedness of the CDC for the purpose of carrying out the Redevelopment Plan for the Project Area; and WHEREAS, it is in the best interest of the City and for the common benefit of residents, employees, business tenants, and property owners within the Project Area, and the City as a whole, for the Projects to be developed and constructed in accordance with the Agreement; and WHEREAS, the Agreement shall require the City to comply with Public Resources Code Sections 21000, et seq. ("CEQA") before undertaking each Project and, pursuant to CEQA Guideline Section 15378(b)(4), approval of the Agreement is not a project subject to the California Environmental Quality Act ("CEQA"), because the Agreement consists of the creation of a governmental funding mechanism for various public improvements, but does not commit funds to any specific public improvement, in that environmental review required by CEQA shall be completed prior to the commencement of any public improvement listed in the Agreement; and WHEREAS, all other legal prerequisites to the adoption of this Resolution have occurred. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of National City as follows: Section 1. The City Council has received and heard all oral and written objections to the Agreement, and to other matters pertaining to this transaction, and all such oral and written objections are hereby overruled. Section 2. The City Council hereby finds and determines that the foregoing recitals are true and correct. Section 3. Based on the evidence in the record, the City Council hereby finds and determines, with respect to the Projects that are publicly owned and are located in or contiguous to the Project Area as identified in the Agreement, that: (a) Said Projects and the programs and activities associated therewith are of benefit to the Project Area by helping to eliminate blight within the Project Area or providing housing for low or moderate income persons; and (b) No other reasonable means of financing said Projects and the programs and activities associated therewith are available to the community; and (c) The payment of funds by the CDC for the costs related to said Projects and the programs and activities associated therewith is consistent with the respective Implementation Plan adopted pursuant to Section 33490 of the CRL. Section 4. The Mayor is hereby authorized to execute the Agreement on behalf of the City, together with such non -substantive changes and amendments as may be approved by the Mayor and City Attorney. Resolution No. 2011 - Page 3 Section 5. The City Manager, or designee, is hereby authorized, on behalf of the City, to sign all documents necessary and appropriate to carry out and implement the Agreement, including, without limitation, any security instruments to be recorded against CDC assets to secure the CDC's obligations under the Agreement, and to administer the City's obligations, responsibilities and duties to be performed under the Agreement. Section 6. the City accepts the pledge of future Tax Increment funds in an amount not to exceed $2,500,000, as set forth in the Agreement. Section 7. Said Agreement is on file in the office of the City Clerk. Section 8. This Resolution shall take effect immediately upon its adoption. PASSED and ADOPTED this 15th day of February, 2011. Ron Morrison, Mayor ATTEST: Michael R. Della, City Clerk APPROVED AS TO FORM: Claudia G. Silva City Attorney ATTACHMENT 1 BACKGROUND REPORT Public infrastructure improvements are needed to improve the economic viability of parcels commonly referred to as the National City Swap Meet and RCP site (APN# 562- 321-08) planned for redevelopment in the Redevelopment Plan for the National City Redevelopment Project. The improvements are designed to improve traffic flow and access to these gateway sites in the Project Area and are anticipated to cost up to $2.5 million. In order to complete the projects the CDC and City can decide to cooperate, as is proposed in this Agreement. The City would implement the project and the CDC would pay for it through future property tax increment revenues. The Agreement would provide that the CDC would pledge future property tax increment funds as follows: $830,000 to be paid in a lump sum at completion of construction and $120,000 annually thereafter in net increased tax increment (excluding low mod set aside funds and pass through funds to other taxing entities) up to the actual final construction costs for the project. The City would take title to the RCP site if an included Option is exercised. Should the City decide at any point in the future to sell the site to a private developer, a Public Hearing under Section 33433 of the California Redevelopment Law would be required. In order to cooperate, the CDC and City must make the following findings: • The City has received and heard all oral and written objections to the Agreement, and to other matters pertaining to this transaction, and all such oral and written objections are hereby overruled; • The City hereby finds and determines that the foregoing recitals are true and correct; • Based on the evidence in the record, the City hereby finds and determines, with respect to the Projects that are publicly owned and are located in or contiguous to the Project Area as identified in the Agreement, that: (a) Said Projects and the programs and activities associated therewith are of benefit to the Project Area by helping to eliminate blight within the Project Area or providing housing for low- or moderate income persons; and (b) No other reasonable means of financing said Projects and the programs and activities associated therewith are available to the community; and (c) The payment of funds by the Commission for the costs related to said Projects and the programs and activities associated therewith is consistent with the respective Implementation Plan adopted pursuant to Section 33490 of the CRL. The resolution authorizing approval of the Agreement would give the City Manager the authority to sign all subsequent documents necessary to carry out and implement the Agreement, including, without limitation, any security instruments to be recorded against CDC assets to secure the CDC's obligations under the Agreement, and to administer the City's obligations, responsibilities and duties to be performed under the Agreement. COOPERATION AGREEMENT FOR COMMISSION'S PAYMENT OF CERTAIN COSTS [SR 54 AND NATIONAL CITY BLVD INFRASTRUCTURE IMPROVEMENTS] THIS COOPERATION AGREEMENT (this "Agreement") is entered into this day of February, 2011, by and between the CITY OF NATIONAL CITY (the "City") and the COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY (the "Commission"), with reference to the following facts: A. The City Council of the City of National City (the "City Council") adopted the Redevelopment Plan for National City Redevelopment Project on July 17, 2007 by Ordinance No. 2007-2295 (the "Redevelopment Plan"), which results in the allocation of a portion of the property taxes generated from the National City Redevelopment Project (the "Project Area") to the Commission for purposes of redevelopment. B. The intent of the Redevelopment Plan is, in part, to provide for the construction and installation of necessary public infrastructure and facilities and to facilitate the repair, restoration and/or replacement of existing public facilities and to perform specific actions necessary to promote the redevelopment and the economic revitalization of the Project Area; to increase, improve and preserve the community's supply of low and moderate income housing; and to take all other necessary actions to implement the Redevelopment Plan and to expend the Commission's share of property taxes (referred to as "tax increment") to accomplish the goals and objectives of the Redevelopment Plan. C. The Commission has adopted its Five -Year Implementation Plan for the Project Area, as amended from time to time (collectively, the "Implementation Plan") with established goals to support affordable housing, economic development, community revitalization, commercial revitalization, and institutional revitalization. To implement the programs and activities associated with each goal, the Commission has made redevelopment fund commitments and budget allocations based on estimated available tax increment revenue and debt financing structures. D. Pursuant to Section 33220 of the California Community Redevelopment Law (Health and Safety Code Section 33000 et seq.) (the "CRL"), certain public bodies, including the City may aid and cooperate in the planning, undertaking, construction, or operation of redevelopment projects. Collectively, the projects associated with this Agreement are listed in the attached Exhibit 1, which are incorporated herein by this reference (the "Projects"). To carry out the Projects in accordance with the objectives and purposes of the Redevelopment Plan and the Implementation Plan, the Commission desires assistance and cooperation in the implementation and completion of the Projects. The City agrees to aid the Commission and cooperate with the Commission to expeditiously implement the Projects in accordance with the Redevelopment Plan and the Implementation Plan and undertake and complete all actions necessary or appropriate to ensure that the objectives of the Redevelopment Plan and the Implementation Plan are fulfilled within the time effectiveness of the Project Area. Cooperation Agreement Page 1 of 6 E. In considering the Commission's desire to ensure timely implementation and completion of the Projects, the Commission wishes to enter into this Agreement with the City for the pledge of net available tax increment ("Net Tax Increment"), as defined, below, to finance the Projects. The purpose of this Agreement is to facilitate the implementation of the Projects and to provide funding necessary to effectuate the completion of the Projects with Net Tax Increment in this current fiscal year and forthcoming fiscal years. F. Net Tax Increment is defined as tax increment generated from those certain real properties located within the Project Area, more specifically described in Exhibit 2 attached hereto and incorporated herein by this reference, net of any amount required by the CRL to be set aside for purposes of increasing, improving or preserving the City's supply of low and moderate housing and any amounts paid to affected taxing agencies whether by statute or agreement and any amounts paid to the State of California or the County of San Diego as required by statute or agreement, existing debt service payments, and existing contractual obligations received by the Commission or any lawful successor of the Commission and/or to any of the powers and rights of the Commission pursuant to any applicable constitutional provision, statute or other provision of law now existing or adopted in the future. The pledge of Net Tax Increment shall constitute obligations to make payments authorized and incurred pursuant to Section 33445 and other applicable statutes. The obligations set forth in this Agreement will be contractual obligations that, if breached, will subject the Commission to damages and other liabilities or remedies. G. The City Council and the Commission by resolution have each found that the use of Commission redevelopment funding for the publicly owned improvements included in the Projects is in accordance with Section 33445 of the CRL and other applicable law. The said City Council and Commission resolutions are each based on the authority of the Commission, with the consent of the City Council, to pay all or part of the cost of the installation and construction of any building, facility, structure, or other improvements which is publicly owned within the Project Area, if the City Council makes certain determinations. H. By approving and entering into this Agreement, the Commission has approved certain obligations, including the pledge of Net Tax increment to pay for the Projects. I. The obligations of the Commission under this Agreement shall constitute an indebtedness of the Commission for the purpose of carrying out the Redevelopment Plan for the Project Area. NOW, THEREFORE, the parties hereto do mutually agree as follows: I. INTRODUCTORY PROVISIONS The recitals above are an integral part of this Agreement and set forth the intentions of the parties and the premises on which the parties have decided to enter into this Agreement. II. COMMISSION'S OBLIGATIONS 1. The Projects are those projects which are listed on the attached Exhibit 1. The Cooperation Agreement Page 2 of 6 Commission agrees to pay to the City an amount equal to the actual and direct cost to the City to carry out the Projects, including without limitation all costs incurred by the City for the planning, acquisition and disposition, financing, development, permitting, design, site testing, bidding, construction and construction management of the Projects in the principal amount not to exceed TWO MILLION FIVE HUNDRED THOUSAND DOLLARS ($2,500,000)("Payment Obligation"), payable in annual installments, accruing interest at the rate of six percent (6%) from the Net Tax Increment generated, beginning in fiscal year 2014 until the principal balance plus accrued interest is paid, or July 1, 2041, whichever occurs earlier. Concurrently herewith, Commission and City shall execute an Option Agreement substantially in form attached hereto as Exhibit 4, a memorandum of which shall be recorded against that certain real property owned by the Commission, identified by the San Diego County Recorder's Office as Assessor Parcel Number 562-321-08 ("Commission Property"), within thirty (30) days of execution of this Agreement. The Option Agreement shall give City an option to purchase the Commission Property ("Option"). In the event that City exercises said Option, Commission shall receive a credit against the Payment Obligation in the amount of the Purchase Price, as set forth in the Option Agreement. The Commission's obligations under this Agreement, including without limitation the Commission's obligation to make the payments to the City required by this Agreement, shall constitute an indebtedness of the Commission for the purpose of carrying out the redevelopment of the Project Area and are obligations to make payments authorized and incurred pursuant to Section 33445 of the CRL and other applicable statutes. The obligations of the Commission set forth in this Agreement are contractual obligations that, if breached, will subject the Commission to damages and other liabilities or remedies. 2. The obligations of Commission under this Agreement shall be payable out of Net Tax Increment, as defined in the above recitals and/or as defined or provided for in any applicable constitutional provision, statute or other provision of law now existing or adopted in the future, levied by or for the benefit of taxing agencies in the Project Area, and allocated to the Commission and/or any lawful successor entity of the Commission and/or any entity established by law to carry out any of the redevelopment plans for the Project Area and/or expend tax increment or pay indebtedness of the Commission to be repaid with tax increment, pursuant to Section 33670 of the CRL or any applicable constitutional provision, statute or other provision of law now existing or adopted in the future, in amounts set forth in the Payment Schedule attached hereto as Exhibit 3 and incorporated herein by this reference. 3. The indebtedness of Commission under this Agreement shall be subordinate to the rights of the holder or holders of any existing bonds, notes or other instruments of indebtedness (all referred to herein as "indebtedness") of the Commission incurred or issued to finance the Project Area, including without limitation any pledge of tax increment revenues from the Project Area to pay any portion of the principal (and otherwise comply with the obligations and covenants) of any bond or bonds issued or sold by Commission with respect to the Project Area. 4. All payments due to be made by the Commission to the City under this Agreement shall be made by the Commission in accordance with the schedule set forth in Exhibit 3 and as otherwise necessary to reimburse the City for the cost to the City of performing its obligations hereunder. City shall provide Commission with a quarterly report accompanied Cooperation Agreement Page 3 of 6 by evidence reasonably satisfactory to the Commission's Executive Director that progressed in the development and construction of the Project for which payment is Commission commensurate with such payments and has incurred costs or obliga payments equal to or greater than such amount. III. CITY'S OBLIGATIONS 1. The City shall accept any funds offered by the Commission pur Agreement and shall devote those funds to completion of the Projects by (i) reimbu or using such funds to make City expenditures to perform the work required to complete the Projects; (ii) utilizing such funds to pay debt service on bonds or other or obligations that the City has or will incur for such purposes; and/or (iii) paying sE: a special fund of the City to be held and expended only for the purpose of obligations of the City hereunder. In the event that City exercises the Option, the Property may be used, leased or sold by the City for any municipal purpos affordable housing and public improvements, in conformance with the Redevelopm 2. It is the responsibility of City to pay all development and constru. connection with the Projects from funds paid to the City by the Commissic Agreement. 3. The City shall perform its obligations hereunder in accordance with t provisions of federal, state and local laws, including the obligation to comply with e laws such as CEQA before undertaking each Project, and shall timely comply required for each Project in accordance with Exhibit 1 and incorporated herein by th IV. LIABILITY AND INDEMNIFICATION In contemplation of the provisions of California Government Code s imposing certain tort liability jointly upon public entities solely by reason of such parties to an agreement as defined by Government Code section 895, the parti: between themselves, pursuant to the authorization contained in Government Code s. and 895.6, shall each assume the full liability imposed upon it, or any of its office employees, by law for injury caused by negligent or wrongful acts or omissions oca performance of this Agreement to the same extent that such liability would be in° absence of Government Code section 895.2. To achieve the above -stated purpos, indemnifies, defends and holds harmless the other party for any liability, losses, cos that may be incurred by such other party solely by reason of Government Code secti V. ENTIRE AGREEMENT; WAIVERS; AND AMENDMENTS 1. This Agreement shall be executed in triplicate originals, each of whi: to be an original. This Agreement consists of six (6) pages and three (3) Exi constitute the entire understanding and agreement of the parties. Cooperation Agreement Page 4 of 6 his Agreement integrates all of the terms and conditions mentioned herein or and supersedes all negotiations or previous agreements between the parties e subject matter of this Agreement. nis Agreement is intended solely for the benefit of the City and the Commission. any reference in this Agreement to persons or entities other than the City and there shall be no third party beneficiaries under this Agreement; provided, "ity may, with the consent of Commission, which shall not be unreasonably City's rights and obligations, in whole or part, under this Agreement to any third 11 waivers of the provisions of this Agreement and all amendments to this be in writing and signed by the authorized representatives of the parties. tiBILITY :rm, provisions, covenant or condition of this Agreement is held by a court of liction to be invalid, void or unenforceable, the remainder of the provisions shall force and effect unless the rights and obligations of the parties have been i or abridged by such invalidation, voiding or unenforceability. ,T party fails to perform or adequately perform an obligation required by this n thirty (30) calendar days of receiving written notice from the non -defaulting ailing to perform shall be in default hereunder. In the event of default, the non - will have all the rights and remedies available to it at law or in equity to enforce f this contract, including without limitation the right to sue for damages for :act. The rights and remedies of the non -defaulting party enumerated in this mulative and shall not limit the non -defaulting party's rights under any other Agreement, or otherwise waive or deny any right or rernedy, at law or in equity, ie date of the Agreement or hereinafter enacted or established, that may be non -defaulting party against the defaulting party. All notices of defaults shall a notice of default under this Agreement. C ON SUCCESSORS cement shall be binding on and shall inure to the benefit of all successors and ales, whether by agreement or operation of law. SIGNATURES ON NEXT PAGE SPACE LEFT INTENTIONALLY BLANK Cooperation Agreement Page 5 of 6 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above. Attest: CITY OF NATIONAL CITY By: By: Mike Dalla, City Clerk Ron Morrison, Mayor Attest: COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY By: By: Secretary Ron Morrison, Chair APPROVED AS TO FORM: By: City Attorney APPROVED AS TO FORM: Kane Ballmer & Berkman By: Commission Special Counsel Cooperation Agreement Page 6 of 6 EXIIIBIT 1 SCHEDULE OF PROJECTS SCOPE OF PROJECT ESTIMATED COST COMPLETION DATE* Install timed traffic signal at National City Blvd and 33rd St $2,500,000 inclusive of all Projects 2 years Extend right turn lane on westbound off ramp SR 54 to 590 feet 442 years Construct additional right turn lane on westbound off ramp SP 43 — 350 feet 2 years Restripe off ramp to add queuing area 44 2 years Construct retaining wall northern embankment of SR 54 off ramp 2 years Restripe northbound turn lane at D Ave and 30th ST to add queuing length to 270' and remove on street parking south of D Ave 442 years Restripe southbound turn lane to 270 feet of queuing length and remove on street parking east side of D Ave 2 years Restripc westbound 30rh St turn land to 370 feet of queuing length and remove on street parking northside of D Ave and F St LL2 years Remove parking north side of 30th St adjacent to high school and realign travel lanes 2 years Relocate bus stops SW and SE corners of National City Blvd at 33r St 2 years Build cul de sac southern terminus of D Avenue 442 years Curb, gutter, sidewalk all street improvements 442 years *Completion dates may be subject to extension by the mutual written agreement of City and Commission. EXHIBIT 2 LEGAL DESCRIPTION APNs: 562-321-05, 562-322-01, 562-322-02, 562-322-25, 562-322-26, 562-322-30, 562-322-30, 562-322-31, and 562-321-08. Option Agreement Page 8 EXHIBIT 3 PAYMENT SCHEDULE Loan Amount: $2,500,000 Payments from 2014 - 2042: $123,000 annually* * Balance of payments shall include accrue interest at the rate of six percent (6%) until the balance is fully paid. ** Payments may be reduced based on one or both of the following conditions — receipt of Net Tax Increment less than $123,000 annually from the and/or cost of the actual infrastructure project being less than $2,500,000 based on contracts. Option Agreement Page 9 Exhibit 4 OPTION AGREEMENT THIS OPTION AGREEMENT (this "Agreement") is entered into this day of February , 2011, by and between the CITY OF NATIONAL CITY (the "City") and the COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY (the "Commission"), with reference to the following facts: A. The Commission owns, or within the term of this Agreement, will own, certain real property more particularly described on Exhibit "A" (the "Property"). B. The Commission desires to grant the City an option to purchase the Property from the Commission and the City wishes to reserve the right to purchase the Property from the Commission under the terms contained herein. C. The parties hereto wish to enter into a memorandum of option agreement and record such an instrument on any or all of the Property subject to this Agreement using the memorandum attached hereto as Exhibit `B". D. This Agreement is subject to the provisions of the Redevelopment Plan for the National City Redevelopment Project on July 17, 2007 by Ordinance No. 2007-2295 (the "Redevelopment Plan"). The Redevelopment Plan is incorporated herein by reference and made a part hereof as though fully set forth herein. NOW, THEREFORE, for good and valuable consideration paid by the City, receipt and sufficiency of which is acknowledged by the Commission, the parties hereto do mutually agree as follows: 1. Grant of Option. Commission hereby grants City, or its nominee, the option to purchase the Property, or any part thereof, on or before the latter of (a) the thirtieth (30th) anniversary of this Agreement or (b) last date for duration of the Redevelopment Plan, as set forth in Section XI therein ("Redevelopment Plan Effectiveness Date"). This option shall be exercisable only by written notice delivered by City to Commission as provided below. Upon the exercise of such option to purchase the Property and receipt by the Commission, City shall purchase the Property pursuant to the terms below. 2. Exercise of Option. The option contained herein shall be exercised by City, if at all, in the following manner: (i) City shall deliver written notice (the "Exercise Notice") to Commission not less than ten (10) days prior to the date of the proposed purchase of the Property by the City; the last date of written notice shall be the latter of (a) the thirtieth (30th) anniversary of this Agreement or (b) the Redevelopment Plan Effectiveness Date; (ii) Commission, after receipt of City's notice, shall deliver notice (the "Responsive Purchase Notice") to City prior to the proposed purchase date of the Property by the City, setting forth the proposed purchase price Option Agreement Page 10 of EIGHT HUNDRED AND THIRTY THOUSAND DOLLARS ($830,000) and such other terms necessary and appropriate to accomplish the purchase of the Property by City under the timeframes proposed by the City; and (iii) if City wishes to exercise such option to purchase the Property, City shall, after City's receipt of the Responsive Purchase Notice, exercise the option by delivering the City's form of purchase and sale agreement and grant deed, modified for any particular parcel of Property, along with the consideration for the Property of EIGHT HUNDRED AND THIRTY THOUSAND DOLLARS ($830,000) and identification of the day the grant deed is to be recorded in the office of the County Recorder (the "Closing Date"). The proposed grant deed for the Property or any part thereof shall include, among other things, express covenants requiring the Property to be devoted to the purposes set forth below. 3. Purpose. Any and all property purchased by the City pursuant to this Option may be used, sold or leased by the City for any municipal purpose, including, but not limited to, housing and public improvements, in conformance with the Redevelopment Plan. 4. Condition of Property. The Property is sold in its "as -is" condition on the Closing Date subject to the Redevelopment Plan and all encumbrances of record. 5. Memorandum. Concurrently with the execution hereof, Commission and City shall execute, acknowledge and cause to be recorded in the Official Records of San Diego County, California, the Memorandum of Option Agreement substantially in the form attached hereto as Exhibit "B." Upon the termination of this Agreement as provided herein or at the time of and concurrently with the closing of a sale of the Property, the parties agree to execute a quitclaim deed or other termination instrument in order to cause the memorandum to be terminated and removed of record. 6. Transferability of Right. The right of the City under this Agreement is fully transferable and assignable by the City without the consent of the Commission. 7. Expiration Date and Termination of Agreement. The City reserves the right to reduce or extend the time period in paragraph 1 which permits the City to purchase the Property on or before the latter of (a) the thirtieth (30th) anniversary of the Agreement or (b) the Redevelopment Plan Effectiveness Date. 8. Prorations. Title Insurance. Title and Escrow. The parties shall equally share all costs of escrow and prorations affecting the Property. Commission shall not voluntarily create and record any liens or encumbrances or other matters against the Property after receipt of the Exercise Notice. The Commission pay for City's requirements for a CLTA Owner's Policy of Title Insurance in favor of the City_ Unless otherwise agreed upon by the parties in writing, the title insurer and escrow shall be [Name] Title Company, [address]. Said escrow agent shall instruct title insurer to deliver a title commitment to the City upon receipt of the Exercise Notice. 9. This Agreement shall be binding on and shall inure to the benefit of all successors and assigns of the parties, whether by agreement or operation of law. This Agreement may be signed in any number of counterparts and delivered by facsimile. Option Agreement Page 11 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above. ATTEST: CITY OF NATIONAL CITY By: By: City Clerk Chris Zapata, City Manager ATTEST: COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY By: By: Secretary Brad Raulston, Executive Director APPROVED AS TO FORM: By: City Attorney APPROVED AS TO FORM: Kane Ballmer & Berkman By: Commission Special Counsel Option Agreement Page 12 EXHIBIT "A" The "Property" Assessor Parcel Number 562-321-08 EXHIBIT "B" RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City of National City 1243 National City Blvd National City, CA 91950 APN: 562-321-08 MEMORANDUM OF OPTION AGREEMENT 1. Parties; and Property. This memorandum of option agreement is entered into by the COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY, a public entity, corporate and politic ("Commission") and CITY OF NATIONAL CITY , a municipality ("City") concerning real property located in the City of National City and County of San Diego, State of California, as more fully described in the attached Exhibit "1" (the "Property"). 2. Memorandum. For good and valuable consideration received, the Commission, as current fee owner of the Property, acknowledges that Commission and City have entered into an option agreement (the "Option Agreement") permitting the City to purchase the Property from the Commission under the terms and conditions thereof for a term of Thirty (30) years from the date this instrument is signed, unless otherwise changed or modified by the terms of the Option Agreement. 3. Not Complete Summary. This instrument is not a complete summary of the Option Agreement. Provisions herein shall not be used in interpreting the Option Agreement. 4. Prohibition against Discrimination and Segregation. City covenants and agrees for itself, its successors, its assigns and every successor in interest to the Property or any part thereof or interest therein, there shall be no discrimination against or segregation of any person, or group of persons, on account of sex, sexual orientation, marital status, race, color, creed, religion, ancestry or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property nor shall City, itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees of the Property. All deeds, leases or contracts shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: Option Agreement Page 14 a. In deeds: "The grantee herein covenants by and for himself or herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed, nor shall the grantee or any person claiming under or through him or her, establish or permit any practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the premises herein conveyed. The foregoing covenants shall run with the land." Notwithstanding the preceding paragraph, the provisions relating to discrimination on the basis of familial status shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of the Government Code nor be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall also apply to the preceding paragraph. In leases: "The lessee herein covenants by and for himself or herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or through him or her, and this lease is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of persons, on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants, lessees, sublessees, subtenants, or vendees in the premises herein leased." Notwithstanding the preceding paragraph, the provisions relating to discrimination on the basis of familial status shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of the Government Code nor be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision (d) of Section 51 Option Agreement Page 15 and Section 1360 of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall also apply to the preceding paragraph. c. In contracts: "There shall be no discrimination against or segregation of any person or group of persons, on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the land, nor shall the transferee itself or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants, lessees, sublessees, subtenants, or vendees of the land." 5. Purpose. This instrument is prepared for recordation purposes only, and in no way modifies the terms, conditions, provisions and covenants of the Option Agreement. In the event of any inconsistency between the terms, conditions, provisions and covenants of this instrument and the Option Agreement, the terms, conditions and covenants of the Option Agreement shall prevail. The parties hereto have executed this instrument on the dates specified immediately beside their respective signatures. This document may be executed and acknowledged before a notary public with counterpart signature and acknowledgment pages, each of which shall be deemed an original and which, when taken together, shall constitute the fully -executed instrument. ATTEST: CITY OF NATIONAL CITY By: By: City Clerk Chris Zapata, City Manager A 1'1EST: COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY By: By: Secretary Brad Raulston, Executive Director APPROVED AS TO FORM: By: City Attorney Option Agreement Page 16 APPROVED AS TO FORM: Kane Ballmer & Berkman By: Commission Special Counsel Option Agreement Page 17 Exhibit "1" to Memorandum of Option Agreement Legal Description of Property The land is situated in the State of Califomia, County of and is described as follows; [to be inserted] APN State of California County of ACKNOWLEDGMENT PAGE TO MEMORANDUM OF OPTION AGREEMENT ) ) ) On before me, , a Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) State of California County of ) ) ) On before me, , a Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) CITY OF NATIONAL CITY, CALIFORNIA CITY COUNCIL AGENDA STATEMENT MEETING DATE: February 15, 2011 AGENDA ITEM NO.114 EM TITLE: IA resolution of the City Council of the City of National City authorizing the Mayorto execute a Reimbursement Agreement by and between the City of National City and the Community Development Commission of the City of National City . (Tax Increment Fund and Low -Mod Housing Fund). PREPARED BY: Patricia Beard PHONE: 4255 DEPARTMENT: APPROVED BY: EXPLANATION: In order to provide the City reimbursement for its administrative expenses incurred in administering the Redevelopment Plan for the National City Redevelopment Project areas, staff proposes the attached Reimbursement Agreement. The Agreement would cover all expenses incurred at Fiscal Year 2011 levels throughout the longest expected time of the Redevelopment Project's ability to collect Tax Increment (2052). Attachment 1 to this staff report details the expenses to be reimbursed. FINANCIAL STATEMENT: APPROVED: Finance ACCOUNT NO. This Agreement would reimburse the City not to exceed $5,442,827.14 annually for staff charges incurred in implementing the Redevelopment Plan. These payments would be made after all other CDC obligations, such as pass through payments to other taxing entities, have been made by June 30 of each fiscal year until 2052. ENVIRONMENTAL REVIEW: Not applicable, ORDINANCE: INTRODUCTION: FINAL ADOPTION: STAFF RECOMMENDATION: Adopt the resolution. BOARD / COMMISSION RECOMMENDATION: ATTACHMENTS: Attachment 1 — Staff charges to implement the Redevelopment Plan for the National City Redevelopment Project areas (taken from actual expenses for Fiscal Year 2010). RESOLUTION NO. 2010 - RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE A REIMBURSEMENT AGREEMENT BY AND BETWEEN CITY OF NATIONAL CITY AND THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY WHEREAS, Chapter 6, Article 1 of Section 33220 of the California Community Redevelopment Law (Health and Safety Code Section 33000 et seq.) (the "CRL") authorizes the Community Development Commission of the City of National City ("CDC") to accept financial assistance from any public agency, including but not limited to the City, to assist the CDC in the fulfillment, generally, of the CDC's duties under the CRL; and WHEREAS, since the inception of the CDC, the City has been advancing, is currently advancing, and desires to continue advancing in the future, the CDC's annual Administrative Costs to the CDC at the beginning of each Fiscal Year in accordance with this Agreement; and WHEREAS, in consideration for the City's advancement of the CDC's annual Administrative Costs, the CDC desires to reimburse the City in accordance with this Agreement, beginning in Fiscal Year 2012 and ending July 17, 2052; and WHEREAS, the CDC reimbursement to the City, for the City advances, shall not exceed $5,442,827.14 annually, as set forth in the Agreement. NOW, THEREFORE, BE IT RESOLVED that the City of National City hereby authorizes the Mayor to execute a Reimbursement Agreement by and between the City of National City and the Community Development Commission of the City of National City for reimbursement by the CDC to the City for administrative costs beginning in Fiscal Year 2012 and ending July 17, 2052. Said Reimbursement Agreement is on file in the office of the City Clerk. PASSED and ADOPTED this 15th day of February, 2011. Ron Morrison, Mayor ATTEST: Michael R. Della, City Clerk APPROVED AS TO FORM: Claudia G. Silva City Attorney ATTACHMENT 1 Department 2009-10 Actual; 401 - City Council 402 - City Clerk 403 - City Manger 404 - Finance 405 - City Attorney 406 - Development Services 407 - Human Resources 408 - General 409 - Non -Departmental 415 - MIS 421- Engineering 445 - Redevelopment 468 - Advanced Planning/Economic Development 462 - Housing 466 - Healthy Homes 467 - Housing Inspection Program 471 - HPRP Grant 464 - Neighborhood Services 472 - Abandoned Vehicle Abatement 522 - Low -Mod Housing Grand Totals 28,473.60 111,651.17 344,261.09 397,621.82 229,358.74 126,464.92 45,049.76 0.005' 2,198,026.10 0.00 0.00 473,049.05 fl 288,696.28 55,936.12 116,672.39 103,294.24 0.00 253,360.92 0.00 670,910.94 REIMBURSEMENT AGREEMENT BY AND BETWEEN THE CITY OF NATIONAL CITY AND THE COMMUNITY DEVELOPMENT COMMISSION OF NATIONAL CITY This REIMBURSEMENT AGREEMENT ("Agreement") is effective as of 20_, by and between the CITY OF NATIONAL CITY ("City") and the COMMUNITY DEVELOPMENT COMMISSION OF NATIONAL CITY, a public body corporate and politic, duly organized and existing under the laws of the State of California ("CDC") pertaining to the City's advancement of the CDC's annual Administrative Costs incurred by the CDC in the fulfillment, generally, of the CDC's duties under the California Community Redevelopment Law (Health and Safety Code section 33000 et seq.) ("CRL"). RECITALS A. WHEREAS, Chapter 6, Article 1 of the CRL authorizes the CDC to accept financial assistance from any public agency, including but not limited to the City, to assist the CDC in the fulfillment, generally, of the CDC's duties under the CRL; and B. WHEREAS, since the inception of the CDC, the City has been advancing, the City is currently advancing, and the City desires to advance in the future the CDC's annual Administrative Costs to CDC at the beginning of each Fiscal Year in accordance with this Agreement; and C. WHEREAS, in consideration for the City's advancement of the CDC's annual Administrative Costs, the CDC desires to reimburse the City in accordance with this Agreement, beginning from Fiscal Year 20 and ending July 17, 2052; NOW, THEREFORE, in consideration of the promises and mutual covenants herein contained, and for other valuable consideration, the receipt of which is hereby acknowledged, the CDC and City hereby agree, as follows: DEFINITIONS "Administrative Costs" means all reasonable amounts needed to pay for the CDC's overhead, payroll and benefits, insurance, supplies, telephone, copying, fixtures, furniture, equipment, legal accounting, and other professional fees and costs, and other reasonable customary, and lawful administrative expense of the CDC during any Fiscal Year in which the CDC services were provided. "Available Junior Tax Revenues" means all Tax Revenues received in any Fiscal Year less the following amounts: (1) amounts due and payable with respect to tax -sharing agreements with other jurisdictions entered into by the CDC; (2) amounts due and payable, as required by applicable laws or statutes; (3) amounts owing under owner participation agreements, disposition and development agreements or similar agreements entered into in accordance with the CDC's duties under the CRL; (4) amounts needed to pay debt service, create or replenish reserves, or otherwise required to be paid with respect to bonds issued or other obligations refunding such 1 bonds, in accordance with the CRL, (5) Tax Revenues required to be set aside for low and moderate income housing pursuant to Sections 33334.2, 33334.3 and 33334.6, et seq., of the CRL, including but not limited to proceeds of bonds; and (6) any other obligations secured by a pledge of Tax Revenues in furtherance of the CDC's obligations under the CRL. "Fiscal Year" means any twelve (12) month period beginning on July 1st and ending on the following June 30th. "Tax Revenues" means all taxes annually allocated to the CDC pursuant to Article 6 of Chapter 6 (commencing with Section 33670) of the CRL and Section 16 of Article XVI of the Constitution of the State. TERMS AND CONDITIONS 1. Recitals and Definitions. The Recitals and Definitions, above, are adopted as true and incorporated herein by this reference. 2. Administrative Costs. The CDC's annual Administrative Costs shall be separately identified in the CDC's Annual Budget for each Fiscal Year until termination of this Agreement. 3. City Advancement. On or before July 1st of each Fiscal Year, the City shall advance the CDC's annual Administrative Costs up to an amount not to exceed FIVE MILLION FOUR HUNDRED FORTY TWO THOUSAND EIGHT HUNDRED TWENTY SEVEN DOLLARS AND FOURTEEN CENTS ($5,442,827,14) to the CDC in the exact amounts identified in the CDC's Annual Budget, as adopted by the CDC and City Council for each respective Fiscal Year ("City's Advancement"), beginning from Fiscal Year 2012 and ending on July 17, 2052. 4. CDC Reimbursement. On or before June 30th of each Fiscal Year ("Reimbursement Payment Date") in which the City's Advancement has been made, the CDC shall reimburse the entire amount of the City's Advancement for that Fiscal Year ("Reimbursement Payment"); provided, however, that the CDC shall have the sole and exclusive right to pledge any Available Junior Tax Revenues to the repayment of other indebtedness incurred by the CDC in carrying out the CDC's duties under the CRL. 5. Interest. Any Reimbursement Payment made to the City after the Reimbursement Payment Date applicable to that Reimbursement Payment shall accrue interest compounded annually at the average portfolio earnings rate of the City of National City from the Local CDC Invest Fund (LAIF), on June 30th of each Fiscal Year until paid in full ("Interest"). Reimbursement Payments made to the City pursuant to the terms of this Agreement shall be applied first to the payment of any Interest accrued hereunder, then to reduce the principal balance due. 6. Reimbursement as Indebtedness. The obligations of the CDC under this Agreement to reimburse the City's Advancement shall constitute an indebtedness of the CDC within the meaning of Section 33670 et seq. of the CRL. 2 7. Termination of Services and Reimbursement Obligation. City's obligation to advance the CDC's annual Administrative Costs and the CDC's obligation to make any Reimbursement Payment shall terminate on July 17, 2052. The total Reimbursement Payment for such Fiscal Year through July 17, 2052 shall be immediately due and owing prior to termination. 8. No Pledge of Tax Revenues. Nothing herein shall be interpreted or construed as a pledge of Tax Revenues to secure payment of any Reimbursement Payment or accrued Interest. The CDC may, in its sole and absolute discretion, use any lawful source of revenue to make any Reimbursement Payment and/or accrued Interest in accordance with this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written. CITY OF NATIONAL CITY By: Ron Morrison Mayorr A I] EST: Mike Dalla, City Clerk APPROVED AS TO FORM AND LEGALITY City Attorney B y: Claudia Gacitua Silva SIGNATURES CONTINUED ON NEXT PAGE SPACE INTENTIONALLY LEFT BLANK 3 COMMUNITY DEVELOPMENT COMMISSION OF NATIONAL CITY Dated: By: Ron Morrison Chairman A IThST: Brad Raulston, Secretary APPROVED AS TO FORM AND LEGALITY CDC General Counsel By: Claudia Gacitua Silva KANE, BALLMER & BERKMAN CDC Special Counsel By: Susan Y. Cola 4 CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: February' 15, 2011 AGENDA ITEM NO. 15 EM TITLE: Resolution of the City Council of the City of National City Approving and Adopting the FY 2010-2011 Mid Year Budget Changes PREPARED BY: Jeanette Ladrido. CPA PHONE: 336-4331 EXPLANATION: DEPARTMENT APPROVED BY: In June 2010, the City Council adopted the FY 2010-2011 budget. As part of the mid -year review, the finance staff reviewed the first six months of actual revenue and expenditures and projected the last six months of the fiscal year. The mid -year budget review was presented to the City Council and members of the community on Saturday, February 5, 2011. Per staff review, it is estimated that the General Fund is on target with the original budget and there is no significant changes recommended. In addition to the mid -year budget review, staff also provided projections of the FY 11-12 General Fund structural deficit and will begin planning the FY 11-12 budget year. FINANCIAL STATEMENT: ACCOUNT NO. N/A ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: APPROVED: APPROVED: Finance MIS STAFF RECOMMENDATION: Accept and file. BOARD / COMMISSION RECOMMENDATION: ATTACHMENTS: 1. Resolution 2. Summary of FY 2011-2012 Mid -Year Budget Changes RESOLUTION 2011 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY APPROVING AND ADOPTING THE FY 2010-2011 MID -YEAR BUDGET CHANGES WHEREAS, on June 22, 2010, the City Council of the City of National City ("CDC") adopted Resolution No. 2010-144 adopting the budget for FY 2010-2011 that was modeled on the FY 2009-2010 budget with minor modifications; and WHEREAS, as part of the mid -year review process, the Finance Department reviewed the first six months for actual revenue and expenditures, and projected the last six months of the fiscal year; and WHEREAS, the mid -year budget review was presented to the City Council and members of the public on February 5, 2011; and WHEREAS, the General Fund is on target with the original budget and there are no significant changes recommended; and WHEREAS, the City Manager has recommended approval of the mid -year budget changes as summarized in the attached Exhibit "A". NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of National City hereby approves and adopts the FY 2009-2010 mid -year budget changes, attached hereto as Exhibit "A". PASSED and ADOPTED this 15th day of February, 2011. Ron Morrison, Mayor ATTEST: Michael R. Dalla, City Clerk APPROVED AS TO FORM: Claudia G. Silva City Attorney FY 2010-2011 MID -YEAR BUDGET CHANGES Account "1 001-00000-3011 001-00000-3012 001-00000-3016 001-00000-3300 001-00000-3636 001-00000-3999 001-00000-3999 001-45137-3201 Account Title Property Tax In Lieu of Sales Tax Property Tax In Lieu of VLF AB1290 Property Tax Pass Through Pmt Investment Earnings Refunds & Reimbursements Ardopted Adjusted AdjustmentBudget Budget Amount' - DeScrtptlon'' 3,058,750 3,024,676 (34,074) Based on actuals 4,643,529 4,927,932 284,403 Based on actuals CDC contribution was appropriated at 001- 705,538 385,538 (320,000) 00000-3455 and also this line item Reduction due to interest allocation to the 520,000 263,000 (257,000) sewer fund and very low investment returns One time reimbursements from prior years' 2,500 140,000 137,500 deposits Transfer in from Unemployment Reserve 200,000 197,347 Transfer in from General Accounting Services Parking Citations 001-409-000-099-0000 Transfer to Personnel Comp Fund 001-445-137-292-0000 Parking Penalty - SD County 001-445-137-299-0000 Contract Services -Data Ticket 125-00000-3300 Investment earnings 130-412-125-299-0000 Contract Services 166-441-429-100-0000 Part time salaries 212-00000-3999 Transfer -in from the General Fund 212-409-000-199-0000 Personnel Compensation 259-431-000-470-0000 Principal -Library GO Bond 302-00000-3999 Transfer -in from Tax Increment Fund 502-445-462-435-0000 Housing Asst Payments 502-445-462-602-0000 Housing Asst Payments 506-412-269-470-0000 Principal -HUD 108 Loan 511-409-000-099-0000 Transfer out to CDC Payment Fund 626-422-223-234-0000 Gas & Electricity 626-422-223-480-0000 Bond Interest - Honeywell 627-403-081-432-0000 Liability Claims Cost 627-403-081-433-0000 Workers Comp Cost 629-409-000-099-0000 630-409-000-099-0000 632-409-000-099-0000 633-409-000-099-0000 Information Systems Maintenance Office Equipment Depreciation General Accounting Services Unemployment Reserve Fund Operating transfer to the General Fund must (2,653) be reduced due to insuffient Fund Balance Increase operating transfer to the General Fund to cover insufficient Fund Balance of the 200,000 202,653 2,653 Unemployment Reserve Fund Increased estimate based on yld actual 265,600 405,600 140,000 receipts 356,900 756,900 65,000 180,000 0 50,000 400,000 For leave sellbacks 115,000 Due to increased citations issued 50,000 Was not appropriated in the budget 0 93,800 93,800 Interest allocation from General Fund Increase appropriation to include Heartland 120,000 195,000 75,000 Dispatching 154,128 103,012 (51,116) Part time salaries was overbudgeted. 0 400,000 400,000 For leave sellbacks 356,900 756,900 400,000 Projection based on actual cost 0 165,000 165,000 Was not appropriated in the budget 0 125,567 125,567 To pay for prior year CDC reimbursements 8,220,000 0 (8,220,000) To correct appropriation 0 8,220,000 8,220,000 To correct appropriation 225,000 245,000 20,000 Based on debt service schedule To pay for prior year CDC costs & close out 666,667 792,234 125,567 fund 302 To increase appropriations for Gas & 565,398 700,000 134,602 Electricity To appropriate interest payments per Debt Service Schedule. Funding provided by City National Bank - no cost to the Ctiy of National 21,721 108,261 86,540 City 160,000 223,000 63,000 Increase liability reserves per actuarial report Increase w/c liability reserves per actuarial 1,290,000 1,524,000 234,000 report Projected Insufficient Fund Balance to cover 0 525,000 525,000 operating transfer to the General Fund Estimated Fund Balance is sufficient to cover 900,000 375,000 (525,000) operating transfer to the General Fund 200,000 202,653 2,653 Increase transfer to the General Fund 200,000 197,347 (2,653) Reduce transfer and close out fund CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: February 15th, 2011 AGENDA ITEM NO. 16 EM TITLE: ;'Warrant Register #28 for the period of 01/05/11 through 01/11/11 in the amount of $2,161,020.39 PREPARED BY: K. Apalateguiii. PHONE: 619-336-4331 EXPLANATION: DEPARTMENT: Finance APPROVED BY: e2 ejm Per Government Section Code 37208, attached are the warrants issued for the period of 01/05/11 through 01/11/11 The Finance Department has implemented a policy explanation of all warrants above $50,000.00 Vendor Check Amount Explanation ATP General Engineering 239819 85,327.33 Street Resurfacing Project Health Net 239866 67,986.01 Health Ins H0067A Jan-11 Kaiser Health Plans 239876 131,543.28 Insurance active Jan-11 Pierce Manufacturing Inc 239903 513,879.13 Fire Apparatus Engine Project Design Consultant 239906 56,475.82 NC General Plan Update )G&E 239919 86,231.52 Utilities FINANCIAL STATEMENT: ACCOUNT NO. N/A ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: APPROVED:�r A v U Finance ghaw APPROVED MIS STAFF RECOMMENDATION: Ratification of warrants in the amount of $2,161,020.39 BOARD / COMMISSION RECOMMENDATION: N/A ATTACHMENTS: arrant Register #28 PAYEE ABCANA INDUSTRIES AGUIRRE AIRGAS-WEST ALEXANDER'S LEGAL SEMINARS ALL FRESH PRODUCTS ALPHA & OMEGA ALVARO ESPINOZA ARCO GASPRO PLUS ASSI SECURITY AT&T MOBILITY AT&T/MCI AT&T/MCI ATP GENERAL ENGINEERING BEST BEST & KRIEGER LLP MENDOZA BOGLE BONSUISSE INC BRENA BRENNTAG PACIFIC INC BROADWAY AUTO ELECTRIC BSN SPORTS BURKE WILLIAMS & SORENSEN LLP CAPE CALIFORNIA BAKING CO. CALIFORNIA LAW ENFORCEMENT CALIXTO CEB CEB CHEVRON & TEXACO BUSINESS CARD CHILDREN'S HOSPITAL CINTAS DOCUMENT MANAGEMENT CITY OF CHULA VISTA CLAIMS MANAGEMENT ASSOCIATES COOPER'S PLUMBING & HEATING CORPORATE PAYMENT SYSTEMS CORPORATE PAYMENT SYSTEMS COUNTY OF SAN DIEGO COUNTY OF SAN DIEGO COX COMMUNICATIONS CSMFO CULLIGAN REYES D3 EQUIPMENT SARDILLA DELTA CARE (PMI) DELTA CARE (PMI) DELTA DENTAL PLAN OF CA DELTA DENTAL PLAN OF CA DISCOUNT SPECIALTY CHEMICALS WARRANT REGISTER # 28 1/11/2011 DESCRIPTION MUNI POOL CHEMICALS LABOR, REPAIR HEADSET MOP 45714 MATERIALS & SUPPLIES SD CIVIL LITIGATION MANUAL FOOD FOR NUTRITION CENTER REQUIRED SCBA MASK FIT TESTS REFUND DUPLICATE PAYMENT FUEL FOR CITY FLEET CITY-WIDE CARD ACCESS PROJECT WIRELESS CIRCUIT 11/6-12/05/10 TELECOMMUNICATIONS SERVICE / NC TELECOMMUNICATIONS SERVICE STREET RESURFACING PROJECT PERSONNEL ISSUES NOV 2010 REFUND - VIOLATION DISMESSED TRAVEL EXP - MSA CARE CLASS MILK AND DAIRY DELIVERY! NUTRITION REFUND -OVERPAYMENT POOL CHEMICALS ELECTRICAL PARTS FOR CITY VEHICLES SAFETY PADDING FOR CAMACHO GYM FFA GRIEVANCE NOV 2010 FIRE/LTD JAN 2011 BREAD DELIVERY FOR NUTRITION PD/LTD JAN 2011 EDUC REIMB - CRIMINAL JUSTICE M DEBT COLLECTION PRACTICE CA SUBDIVISION MAP ACT 2D UP 10 MOP45699 FUEL CHILD ABUSE EXAMS MONTHLY SHREDDING ANIMAL SHELTER COSTS FOR FY 2011 CONSULTANT SVCS-LIABILITY & RISK PLUMBING SERVICES, REPAIRS US BANK CITY CREDIT CARD US BANK PAYMENT OBSERVER SAFETY CLOTHING REGIONAL COMMUNICATIONS MAINT COX HIGH SPEED 60MB DATA CIRCUIT OUTSTANDING FINANCIAL REPORTING WATER SOFTNER SERVICE REFUND - VIOLATION DISMISSED TUBE #IC 142976A1 REFUND - VIOLATION DISMISSED DENTAL INS PMI JAN 2010 PMI COBRA DENTAL INS DEC 2010 DENTAL INS JAN 2011 COBRA DENTAL INS DEC 2010 MOUNTAIN AIR MALODOR COUNTERACTANT 1/3 CHK NO DATE AMOUNT 239807 1/11/11 284.73 239808 1/11/11 434.11 239809 1/11/11 104.90 239810 1/11/11 44.86 239811 1/11/11 4,487.00 239612 1/11/11 225.00 239813 1/11/11 70.00 239814 1/11/11 24,709.29 239815 1/11/11 18,169.00 239816 1/11/11 2,323.53 239817 1/11/11 6,443.27 239818 1/11/11 2,520.87 239819 1/11/11 85, 327.33 239820 1/11/11 405.57 239821 1/11/11 35.00 239822 1/11/11 124.95 239823 1 /11111 1,159.70 239824 1/11/11 40.00 239825 1/11/11 1,800.14 239826 1/11/11 761.25 239827 1/11/11 269.96 239828 1/11/11 192.50 239829 1/11/11 496.00 239830 1/11/11 595.80 239831 1/11/11 1,599.00 239832 1/11/11 898.59 239833 1/11/11 190.04 239834 1/11/11 128.59 239835 1/11/11 79.33 239836 1/11/11 16.00 239837 1/11/11 72.95 239838 1/11/11 28,437.00 239839 1 /11111 4,965.00 239840 1/11/11 1,418.89 239841 1/11/11 320.52 239842 1/11/11 83.00 239843 1/11/11 24.00 239844 1/11/11 9,063.00 239845 1/11/11 29.16 239846 1/11/11 50.00 239847 1/11/11 199.30 239848 1/11/11 25.00 239849 ' 1/11/11 620.67 239850 1/11/11 35.00 239851 1/11/11 3,069.99 239852 1/11/11 190.93 239853 1/11/11 12,873.24 239854 1/11/11 1,240.33 239855 1/11/11 146.18 PAYEE DRIVE MEDICS DSL EXTREME EDCO DISPOSAL CORPORATION FONTANILLA AUDREY FRANK TOYOTA GEORGE WATERS GRAINGER GRANICUS INC HAMILTON MEATS & PROVISIONS HD SUPPLY PLUMBING HEALTH NET HEALTH NET HEALTH NET HEALTH NET HONEYWELL INTERNATIONAL INC IKON OFFICE SOLUTIONS JAMES BOGART JASMUND JJJ ENTERPRISES JOSSE KAISER FOUNDATION HEALTH PLANS KAISER FOUNDATION HEALTH PLANS KAISER FOUNDATION HEALTH PLANS KAISER FOUNDATION HEALTH PLANS KONE LASER SAVER INC LEAGUE OF CA CITIES LEXIS-NEXIS LINCOLN EQUIPMENT INC. MATLOCK METRO FIRE & SAFETY MEYERS/NAVE LAW CORP MINE SAFETY APPLIANCES CO INC. MORE DIRECT NAN MCKAY ANDASSOC INC NATIONAL CITY AUTO TRIM NATIONAL CITY CAR WASH NATIONAL CITY ROTARY CLUB NELLANS CARPET & WINDOW TREATM NEXUS IS INC OFFICE ZONE ORKIN PEST CONTROL PACIFIC AUTO REPAIR PBS&J PDR DISTRIBUTION LLC PEACE OFFICERS RESEARCH PHYSIO CONTROL PIERCE MANUFACTURING INC PRO BUILD WARRANT REGISTER # 28 1/11/2011 DESCRIPTION NETAPP 20 HRS, SEAGATE #1 20 HRS DATA LINE FOR EL TOYON REC CENTER WASTE DISPOSAL FOR CDC REFUND - DUPLICATE PAYMENT 2009 TOYOTA PRIUS HYBRIDS EMPLOYEE DISCIPLINARY HEARING MOP 65179 MATERIALS & SUPPLIES WEBCAST/LIVECAST MANAGED MEAT DELIVERY / NUTRITION PLUMBING MATERIALS HEALTH INS H0067A JAN 2011 HEALTH INS 57135J JAN 2011 HEALTH -FULL NET 57135A JAN 2011 HEALTH NET 57135F JAN 2011 CITY-WIDE HVAC WORK COPIER MAINT & SUPPLY BILLINGS REFUND -OVERPAYMENT LICENSE REIMBURSEMENT ALARM MONITORING/FIRE INSPECTIONS 125 PLAN REIMBURSEMENT KAISER INS ACTIVE JAN 2011 KAISER RETIREES INS JAN 2010 KAISER RET INS JAN 2011 KAISER RET INS COBRA JAN 2011 ELEVATOR REPAIRS & MAINTENANCE MOP 45725 MATERIALS & SUPPLIES ANNUAL LUNCHEON MEETING 2011 LABOR RELATIONS & PD CIVIL LIAB 16'-32' ALUMINUM TELESCOPIC POLE MSA C. A. R. E. CLASS MAINTENANCE SERVICE CONSULT/MOU NEGOTIATIONS INSPECTION / THERMAL IMAGING DIGITAL SENDER 110 & 220V SECTION 8 PAYMENTS TO NAN MCKAY R&M CITY VEHICLES CAR WASHES FOR CITY FLEET STATEMENT 9/01/10 - 01 /31 /11 CERAMIC TILE INSTALLATION AT LIBRARY NEXUS QUARTERLY PHONE SYSTEM WF38 ROLL LAMINATOR PRODUCT CODE BUILDINGS PEST MAINTENANCE SMOG CERTIFICATION PROVIDE SEWER BILL/TAX ROLL 2011 EDITION PDR PORAC/PEACH OFFICER RESEARCH ASSOC TECHNICAL SERVICE AGREEMENT PIERCE FIRE APPARATUS MOP 45707 BUILDING MATERIAL CHK NO 239856 239857 239858 239859 239860 239861 239862 239863 239864 239865 239866 239867 239868 239869 239870 239871 239872 239873 239874 239875 239876 239877 239878 239879 239880 239881 239882 239883 239884 239885 239886 239887 239888 239889 239890 239891 239892 239893 239894 239895 239896 239897 239898 239899 239900 239901 239902 239903 239904 DATE 1/11/11 1/11/11 1/11/11 1/11/11 1/11/11 1/11/11 1/11/11 1/11/11 1/11/11 1/11/11 1/11/11 1/11/11 1/11/11 1/11/11 1/11/11 1/11/11 1/11/11 1/11/11 1/11/11 1/11/11 1/11/11 1/11/11 1/11/11 1/11/11 1/11/11 1/11/11 1/11/11 1/11/11 1/11/11 1/11/11 1/11/11 1(11/11 1/11/11 1/11/11 1/11/11 1/11/11 1/11/11 1/11/11 1/11/11 1/11/11 1/11/11 1/11/11 1/11/11 1/11/11 1/11/11 1/11/11 1/11/11 1/11/11 1/11/11 2/3 AMOUNT 7,239.00 65.66 209.50 10.00 1,058.91 19.20 801.08 1,477.35 3,327.35 2,706.45 67,986.01 1,192.62 6,177.85 3,573.74 2,527.73 3,931.79 20.00 120.00 900.00 576.90 131,543.28 20,993.76 10,458.62 6,728.24 377.26 370.47 420.00 663.10 208.25 104.04 238.00 27.50 116.16 3,168.23 224.00 158.16 156.00 280.00 6,162.00 2,486.74 4,739.14 373.33 3,725.39 5,991.16. 66.10' 130.00 3,078.00 513,879.13 1,872.04 PAYEE PRO -EDGE KNIFE PROJECT DESIGN CONSULTANTS PRUDENTIAL OVERALL SUPPLY R.J. SAFETY SUPPLY RELIANCE STANDARD RODRIGUEZ ROMERO'S ROOFING SERVICE, INC SAM'S ALIGNMENT SERVICE SAN DIEGO BMW MOTORCYCLES SAN DIEGO CLIPPING SERVICE SAN DIEGO MIRAMAR COLLEGE SAN DIEGO PET & LAB SUPPLY SAN DIEGO SPEEDO TACH, INC. SDCTOA SDG&E SDMSE SAN DIEGO PROJ HEARTBEAT SEWARD SILVA .KS INC. ;MART & FINAL 6MART SOURCE OF CALIFORNIA LLC SOUTH BAY FENCE INC. SOUTHERN CAL TRINING OFFCR'S SOUTHWEST SIGNAL SERVICE ST BERNARD SOFTWARE STANLEY ACCESS TECHNOLOGIES STAPLES ADVANTAGE STEVENSON SUPERIOR READY MIX SWEETWATER AUTHORITY SYSCO SAN DIEGO THE LINCOLN NATIONAL LIFE INS THE SOHAGI LAW GROUP PLC TIERRA WEST ADVISORS INC U S BANK SERVICE CENTER UNITED PARCEL SERVICE VCA EMERGENCY ANIMAL HOSPITAL VERIZON WIRELESS WAXIE SANITARY SUPPLY WESTAIR GASES & EQUIPMENT INC WILLY'S ELECTRONIC SUPPLY Pay period Start Date 1 12/14/2010 WARRANT REGISTER # 28 1/11/2011 DESCRIPTION KNIFE SHARPENING SERVICES NC GENERAL PLAN UPDATE MOP 45742 UNIFORMS - NS CLASS 3 LIME/BLACK PARKA 3M VTL JAN 2011 125 PLAN REIMBURSEMENT ROOF REPAIRS WHEEL ALIGNMENT -CITY VEHICLES R&M CITY VEHICLES NEWS READING AND CLIPPING SVC REGIONAL OFFICER TRAINING MOP 45753 K9 FOOD SPEEDOMETER CALIBRATIONS CHIEF'S ASSOCIATION MEMBERSHIP FACILITIES GAS & ELECTRIC ONE YEAR CONTRACTUAL AGREEMENT SUPERVISORY COURSE 125 PLAN REIMBURSEMENT VALMLATFB VALMAX LIFE AUTOMATIC MOP 45756 DRINKS - TRANING - FIRE B/L DIVISION ENVELOPES - FINANCE INSTALL CHAIN LINK ENCLOSURE SOUTHERN DIVISION MEMBERSHIP TRAFFIC SIGNAL & STREET LIGHTING IPAFS0250 WEB FILTERING SERVICE AUTOMATIC DOOR REPAIRS PROPERTY AND EVIDENCE SUPPLIES REIMBURSEMENT/EMP DISC HEARING COLDMIX ASPHALT FACILITIES WATER BILL FOOD & CONSUMABLES FOR NUTRITION LIFE & AD&D STD LTD JAN 2011 GENERAL PLAN UPDATE TIERRA WEST ADVISORS NOV 2010 CREDIT CARD COST - PD UPS SHIPMENT EMERGENCY ANIMAL CARE FOR STRAY VERIZON WIRELESS SERVICE / CITY 22025 SERIES 2000 BROWN TOWELS CO2 CYLINDER, 20LBS MINIMUM. MOP 45763 ELECTRICAL MATERIAL End Date 12/27/2010 Check Date 1/5/2011 3/3 CHK NO DATE AMOUNT 239905 1/11/11 46.00 239906 1/11/11 56,475.82 239907 1/11/11 46.91 239908 1/11/11 169.65 239909 1/11/11 2,361.68 239910 1/11/11 830.79 239911 1/11/11 295.00 239912 1/11/11 72.00 239913 1/11/11 239.79 239914 1/11/11 65.00 239915 1/11/11 65.00 239916 1/11/11 118.73 239917 1/11/11 55.00 239918 1/11/11 50.00 239919 1/11/11 86,231.52 239920 1/11/11 292.50 239921 1/11/11 419.58 239922 1/11/11 346.17 239923 1/11/11 1,148.73 239924 1/11/11 108.60 239925 1/11/11 364.05 239926 1/11/11 6,395.00 239927 1/11/11 50.00 239928 1/11/11 8,629.79 239929 1/11/11 8,063.44 239930 1/11/11 187.00 239931 1/11/11 2,254.39 239932 1/11/11 82.29 239933 1/11/11 2,407.26 239934 1/11/11 13,147.95 239935 1/11/11 8,390.33 239936 1/11/11 8,886.42 239937 1/11/11 26,519.44 239938 1/11/11 8,895.00 239939 1/11/11 342.43 239940 1/11/11 19.38 239941 1/11/11 100.00 239942 1/11/11 4,577.70 239943 1/11/11 544.10 239944 1/11/11 31.55 239945 1/11/11 167.94 AIP Total 1,288,953.64 872,066.75 GRAND TOTAL $ 2,161020.39 CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: February 15th, 2011 AGENDA ITEM NO. 1-7 EM TITLE: Warrant Register #29 for the period of 01/12/11 through 01/18/11 in the amount of $193,220.32 PREPARED BY: K. Apalategui PHONE: 619-336-4331 EXPLANATION: DEPARTMENT: Finance APPROVED BY: pt.,. Per Government Section Code 37208, attached are the warrants issued for the period of 01/12/11 through 01/18/11 The Finance Department has implemented a policy explanation of all warrants above $50,000.00 Vendor Check Amount Explanation FINANCIAL STATEMENT: ACCOUNT NO. N/A ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: APPROVED: Finance APPROVErt- �"MIS STAFF RECOMMENDATION: Ratification of warrants in the amount of $193,220.32 BOARD / COMMISSION RECOMMENDATION: N/A ATTACHMENTS: errant Register #29 PAYEE SOUTHWESTERN COLLEGE SOUTHWESTERN COLLEGE THE UNION TRIBUNE PUBLISHING FRED PRYOR SEMINARS AKJ BOOKS AMAZON BAKER & TAYLOR BRODART DILEO, MIDWEST TAPE NATIONAL ELEM SCHOOL DISTRICT SMART & FINAL SPRINT STAPLES ADVANTAGE THE SHOPPER, INC. U S POSTMASTER XEROX CORPORATION -1RISTENSEN & SPATH LLP NTE'S MODULAR PERFORMANCE UIXIELINE BUILDERS DTSC EQUIFAX INFORMATION SVCS GEOSYNTEC CONSULTANTS HUSK PARTNERS POWER PLUS PRUDENTIAL OVERALL SUPPLY STAPLES ADVANTAGE SWEETWATER AUTHORITY VISTA PAINT BALLERINI COURT REPORTERS BOYS & GIRLS CLUBS & GREATER S BURN INSTITUTE CRIA CRIA CRIA CARLSBAD POLICE DEPARTMENT CITY OF NATIONAL CITY CMRTA COUNTY OF SAN DIEGO DAY WIRELESS SYSTEMS (20) DOUCETTE ENVIRONMENTAL HEALTH COALITION GIL CORPORATION PERIAN FEDEX GROSSMAN PSYCHOLOGICAL GROSSMAN PSYCHOLOGICAL GROSSMAN PSYCHOLOGICAL WARRANT REGISTER # 29 1/18/2011 DESCRIPTION MLK BREAKFAST/CM RIOS MLK BREAKFAST / MYR MORRISON LEGAL NOTICES ADVERTISING FY 10/11 REG: PROJECT MNGMT COURSE / PD WOWMOBILE GIVEAWAY BOOKS CHILDREN BOOKS ADULT NON-FICTION BOOKS AUTOMATION/PRECISION ONE / FY 2011 WOWMOBILE CRAFT SUPPLIES DVD'S FOR THE COLLECTION PRINTING OF FLYERS TO PROMOTE FAMILY FAMILIES FOR LITERACY PROGRAM VIDEO CONFERENCING MOP#45704 - SUPPLIES FOR WINGS PROCESSING SUPPLIES FOR DVD'S / FY11 POSTAGE FOR OVERDUE NOTICES XEROX BASE CHARGE AND OVERAGES LEGAL SERVICES/REDEVELOPMENT ECONOMIC DEVELOPMENT LOAN REIMBURSEMENT / CASA QUINTA NC PUBLIC WORKS YARD-401294(SM) CREDIT CHECK / SEC 8 BAY MARINA DRIVE CONSULTING SERVICES / CITY MNGR EQUIP RENTAL (POWER POLES) MOP45742 UNIFORMS-NS MOP 45704 OFFICE SUPPLIES-S8 WATER UTILITIES / CDC MOP 68834 PAINT-NS HEARING ON THE APPEAL BOYS & GIRLS CLUB REIMBURSEMENT BURN INSTITUTE'S REIMBURSEMENT CA ROBBERY INVESTIGATION CONE CA ROBBERY INVESTIGATION CONE CA ROBBERY INVESTIGATION CONE 2011 SDCLETMA MEMBERSHIP PETTY CASH P/E NOV 30, 2010 2011 CMRTA MEMBERSHIP RENEW REC HEALTH PERMIT INSTALL RADIO IN 2011 NISSAN ALTIMA 2011 CSBA MEMBERSHIP COST ENVIRONMENTAL HEALTH REIMB CONSULTANT SERVICES / BUILDING CREDIT CHECKS FOR NEW PD EMP FEDEX - GRANT APPLICATION OFFICER ASSISTANCE JUL-SEPT 2010 PRE-EMP PSYCHOLOGICAL EXAMS PRE-EMP PSYCHOLOGICAL EXAMS 1/2 CHK NO DATE AMOUNT 239946 1/13/11 25.00 239947 1/13/11 25.00 239948 1/13/11 2,139.60 239949 1/18/11 159.00 239950 1/18/11 1,895.09 239951 1/18/11 1,879.24 239952 1/18/11 552.27 239953 1/18/11 4,725.41 239954 1/18/11 6.49 239955 1/18/11 2,101.91 239956 1/18/11 126.58 239957 1/18/11 11.85 239958 1/18/11 11.08 239959 1/18/11 472.22 239960 1/18/11 324.43 239961 1/18/11 308.00 239962 1/18/11 534.42 239963 1/18/11 1,300.00 239964 1/18/11 995.00 239965 1/18/11 18, 603.76 239966 1/18/11 983.89 239967 1/18/11 79.81 239968 1/18/11 1,217.14 239969 1/18/11 7,500.00 239970 1/18/11 195.00 239971 1/18/11 13.87 239972 1/18/11 45.52 239973 1/18/11 108.98 239974 1/18/11 320.96 239975 1/18/11 2,462.81 239976 1/18/11 4,970.00 239977 1/18/11 4,495.37 239978 1/18/11 195.00 239979 1/18/11 195.00 239980 1/18/11 195.00 239981 1/18/11 50.00 239982 1/18/11 423.85 239983 1/18/11 50.00 239984 1/18/11 247.00 239985 1/18/11 345.00 239986 1/18/11 205.00 239987 1/18/11 4,068.93 239988 1/18/11 13,756.12 239989 1/18/11 27.48 239990 1/18/11 25.91 239991 1/18/11 3,475.00 239992 1/18/11 1,000.00 239993 1/18/11 500.00 PAYEE GTC SYSTEMS INC HARRIS HORIZON HEALTH EAP INSTITUTE FOR LOCAL GOV'T IRON MOUNTAIN LOPEZ MATTHEW BENDER & CO INC MCDOUGAL LOVE ECKIS MCDOUGAL LOVE ECKIS MOTOR COP SHOP, INC. NAPA AUTO PARTS NATIONAL CITY TROPHY PERRY FORD PRUDENTIAL OVERALL SUPPLY RED WING SHOES SAN DIEGO AMERICAN RED CROSS SMART & FINAL SMART SOURCE OF CALIFORNIA LLC STAPLES ADVANTAGE STARTECH COMPUTERS SWEETWATER AUTHORITY TAB PRODUCTS CO TDSSW INC THE LIGHTHOUSE INC TOPECO PRODUCTS U S BANK SERVICE CENTER U S BANK SERVICE CENTER U S HEALTHWORKS UNION -TRIBUNE PUB. CO. VALLEY INDUSTRIAL SPECIALTIES WEST PAYMENT CENTER WESTFLEX INDUSTRIAL ZUMAR INDUSTRIES WIRED PAYMENTS TRISTAR RISK MANAGEMENT SECTION 8 HAPS PAYMENTS I CO$PORLTED WARRANT REGISTER # 29 1/18/2011 DESCRIPTION NETWORK ENGINEERING HOURS MOTORCYCLE BASIC ACADEMY EMPLOYEE ASST PROGRAM DEC'10 ETHICS FOR LOCAL GOVERNMENTS RECORDS MGMT/DOC STORAGE TRANSLATION SERVICES FY 10/11 CA DEER DESKTOP CODE SET PROFESSIONAL SVCS - 11/30/10 PROFESSIONAL SVCS DEC 31, 2010 HELMET, BLK/WHT, "H" MOP 45735 OIL MOP 66556 FOOTBALL MEDALS 2" MOP 45703 AUTO PARTS MOP 45742 LAUNDRY SERVICE SAFETY BOOTS (DON JASMUND-ST) POOL LIFEGUARD TRAINING MOP# 45756. SUPPLIES / HR LETTERHEAD IMPRINTS -COUNCIL MOP 45704 OFFICE SUPPLIES-PD MOP 61744 COMPUTER SUPPLIES FACILITIES WATER BILL OFFICE SUPPLIES TRAFFIC SIGNAL COUNTS MOP 45726 MATERIALS & SUPPLIES MOP 63849 MATERIALS & SUPPLIES CREDIT CARD COSTS - COMM SVCS CREDIT CARD COST - PD MEDICAL SERVICES PUBLICATION / PLANNING COMMISSION MOP 46453 PLUMBING MATERIALS LEGAL PUBLICATION / CITY ATTORNEY MOP 63850 MATERIALS & SUPPLIES TEXT PARK PARALLEL DEC 2010 WC REPLENISHMENT Start Date 1/12/2011 End Date 1/18/2011 2/2 CHK NO DATE AMOUNT 239994 1/18/11 1,072.50 239995 1/18/11 1,362.72 239996 1/18/11 848.46 239997 1/18/11 95.31 239998 1/18/11 131.00 239999 1/18/11 140.00 240000 1/18/11 728.39 240001 1/18/11 1,610.00 240002 1/18/11 1,400.00 240003 1/18/11 386.95 240004 1/1 B/11 558.19 240005 1/18/11 280.41 240006 1/18/11 13.17 240007 1/18/11 569.74 240008 1/18/11 125.00 240009 1/18/11 140.00 240010 1/18/11 9.48 240011 1/18/11 197.5E 240012 1/18/11 698.& 240013 1/18/11 1,097.26 240014 1/18/11 13, 349.68 240015 1/18/11 321.92 240016 1/18/11 2,455.00 240017 1/18/11 532.88 240016 1/18/11 96.54 240019 1 /18/11 1,058.00 240020 1/18/11 434.98 240021 1/18/11 155.00 240022 1/18/11 304.40 240023 1/18/11 464.06 240024 1/18/11 1,155.21 240025 1/18/11 424.61 240026 1/18/11 490.57 A/P Total 33026397 1/13/11 116,056.82 54,187.77 22,975.73 GRAND TOTAL S 193,220.32 CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT SECOND READING MEETING DATE: February 15, 2011 AGENDA ITEM NO.18 TEM TITLE: Ordinance of the City of National City to Approve an Amendment to the Contract Between the Board of Administration California Public Employees' Retirement System and the City Council of the City of National City to Provide for a 2% @ 60 Full Formula Benefit for Miscellaneous Members PREPARED BY: Stacey Stevenson DEPARTMENT: PHONE: 336-4308 APPROVED B EXPLANATION: As provided for in the current contract between the City of National City and CaIPERS, City of National City employees working in designated miscellaneous classifications have a retirement formula of 3% @ 60 (Section 21354.3). The City Council of the City of National City voted to effectuate a two tiered retirement system under which individuals hired as miscellaneous members for the first time will not receive the benefit of the 3% @ 60 formula. instead, such new hires will receive a benefit of 2% @ 60 (Section 21353). Such a change is allowable under Section 20475 (Different Level of Benefits). FINANCIAL STATEMENT: ACCOUNT NO. APPROVED:SeF Finance APPROVED: MIS The change in formula is projected to result in an ultimate savings of 4.754% of the City's annual payment to CaIPERS. The timeline for savings is dependent on the City's hiring patterns. ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: STAFF RECOMMENDATION: Recommend adoption of the Ordinance BOARD / COMMISSION RECOMMENDATION: N/A ATTACHMENTS: finance ORDINANCE NO. 2011 — 02 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING AN AMENDMENT TO THE CONTRACT BETWEEN THE CITY OF NATIONAL CITY AND THE BOARD OF ADMINISTRATION OF THE CALIFORNIA PUBLIC EMPLOYEES' RETIREMENT SYSTEM TO PROVIDE FOR A 2% @ 60 FULL FORMULA BENEFIT FOR MISCELLANEOUS MEMBERS ENTERING MEMBERSHIP FOR THE FIRST TIME The City Council of the City of National City does ordain as follows: Section 1. That an Amendment to the Contract between the City of National City and the Board of Administration, California Public Employees' Retirement System is hereby authorized, a copy of said amendment being attached hereto, marked as Exhibit "A", and by such reference made a part hereof as though herein set out in full. Section 2. The Mayor is hereby authorized, empowered, and directed to execute said Amendment for and on behalf of the City of National City. Section 3. This Ordinance shall take effect 30 days after the date of its adoption, and prior to the expiration of 15 days from the passage thereof shall be published at least once in the San Diego Union Tribune, a newspaper of general circulation, published and circulated in the City of National City, and thenceforth and thereafter the same shall be in full force and effect. PASSED and ADOPTED this 15th day of February, 2011. Ron Morrison, Mayor ATTEST: Michael R. Dalla, City Clerk APPROVED AS TO FORM: Claudia G. Silva City Attorney EXHIBIT A California Public Employees' Retirement System ME TO CONTRACT Between the Board of Administration California Public Employees' Retirement System and the City Council City of National City The Board of Administration, California Public Employees` Retirement System, hereinafter referred to as Board, and the governing body of the above public agency, hereinafterreferred to as Public Agency, having entered into a contract effective. July 1, 1948, and witnessed May.1, 1948,,and as amended effective March 1, 1954, July 1, 1954, April 1, 1956,-.April 1, 1970, December 1, 1972, September 28, 1973, October 1, 1973, March 1, 1974, October 1, 1974, January 16, 1977, October 16,.1978, October 1, 1980, July 16, 1983, January 1. 1985, 'December 27, 1988, December 12, 1989, veraber 15, 1991, December 1991-, June 11, 1993, May 2, 1996, July 9, 2002, September 17,.2002, July 6, 2004 and January 27, 2009, and March 18, 2010 which_ provides for participation of Public Agency in .said System, Board and Public Agency hereby -agree as. follows: Paragraphs 1 through.17 are hereby stricken from said contract as, executed effective March 18, 2010, and hereby replaced by the following -paragraphs berecf 1 through 18 inclusive: -Alt words andj terms used herein which aredefined in the -Public ; ,Employees' Retirement Law shall have: the Meaning as defined therein unl othervtr"isespeoiftcally p ovrd :d.:. "Normal retirement- age" shall. Mean age 60 for :local mrscelfaneouo r ern iers; _ age 50 for local 'ire Members; age 50 for focal police members entering membershipin-the err- ctaasdlcation on or pnor': fc March 19, 2010, and age. 55 for locat xnenibers er rig, membership foe the firs( _ time in the police essifiction after March 14, 2010. ; Pr ti v� Public Agency shall participate in the Public Employees' Retirement System from and after July 1, 1948 making its employees as hereinafter provided,members of said System subject to all provisions of the Public Employees' Retirement Law except such as -apply only on election of a contracting agency and are not provided for herein and to all amendments to said Law hereafter enacted except those, which by express provisions thereof, apply only on the election of a contracting agency. Public Agency agrees to indemnify,end and hold harmless the Caiiforpra}?ublic'Employ s'.RetirementSysten v(Call S).and its tinstees,,agents and employees, the CalPERS Bbardof Administration, and the -California Public Employees' Retirement Fund from any clads, demands, actions, losses, liabilities, damages, judgments, expenses and costs, including but not limited to interest, penalties and attorneys s • that may ariseas a result of any of the following: (a) Public Agency's election to provide retirement benefits, provisions orTormulas under this Contract that are differentthan the retirement benefits, provisions or formulas provided under the Public Agency's prior non-CalPERS retirement program. (b) Public Agertcy's.Jelection to amend this Contract to provide retirement. benefits, provisions or formulas that, are different than existing retirement benefits, provisions or formulas. it`) Public Agency's agreement with: a third party other than CaIPERR to provide retirement benefits; provisions, or for nuias thatare different than the retirement benefits, provisions or -.formulas provided under this Contract and provided for under the California Public Employees' Retirement Law. (d) PublicAgency's.election to file for bankhiptcy under Chap(er ;f (comtmtencingwith section 901) of l rite t t of the. Uniited States I3ankruptcy Code and/or Public Agencys e1ec on to reject this -Contract with the CalPERS Board of Administration pursuant section 365, of Title 11, of the United 'States Bankruptcy Code er any simifar provision of law. (e) • Public Agency's etection.to assign this Contract Withal it'ihe pif or written consent of the CalPERS' Board of Administration. The terrnination.of this Contract either voittntati y by request of - . Public Agency or involuntarily pursuant to'tbe Public Ernpl)yees` Retirement La*. arr€ges spensQ by r i fe Agerricy in Ling retimmerit benefits; -provtsfons or fon utas: made as re ult of amendments; -additions or deletions to California statute or the California Constitution. PLEASE DC NOT SIGN "F-Xiii:‘;:7 4. Employees of Public Agency in the following classes shall become members of said Retirement System except such in each such class as are excluded by law or this agreement: a. Local Fire Fighters (herein referred to as local safety members); •b. Local Police Officers (herein referred to as local safety members); c. Employees other than local safety members (herein referred to as local miscellaneous members). 5. In addition to the classes of employees excluded from membership by Said Retirement Law, the following.classes of employees shall not become members of said Retirement System: NO ADDITIONAL EXCLUSIONS 6. Prior- to January 1, 1975, those members who were hired by Public Agency on •a temporary and/or seasonal basis not to exceed 6 months were excluded from PERS membership by contract Government Code Section 20305 supersedes this contract provision by providing that any such temporary and/or seasonal employees are excluded from PERS membership subsequent to January 1, '1975. . •• This contract shall be a continuation of the contract of the Community Development Commission of the City of National City, hereinafter referred to as "Former Agency". The accumulated- contributions, assets and liability for prior and current service under the Former Agency's contract shall be merged pursuant to Section 20508 of the Govemment Code. Such 'merger occurred March 20, 2008. The percentage of final compensation to be provided for each year of credited prior and current service as a local Miscellaneous member in employment before and not on or after September 17, 2002 shall be determined in accordance With Section 21354 of said Retirement Law (2% at age 55 Full). 9. The percentage of final compensation to be for each year of credtted prior and current service as a localmiscellaneous member in employment on or after September 17, 2002 and not entering membership - for the first time in the miscellaneous classification after the effective date. of this amendment to contract shall .be -determined in accordance with ection 21354.3 of said Retimment LaVi (3% atage 60 Full). 10. The percentage of final compensation to be provided for each year of credited current service as a local miscellaneous member entering membership for the first time in the miscellaneous classification after the effective date of this amendment to contract shall be determined in accordance with Section 21353 of ,said Retirement taw {2% at age 60 Full). 11. The percentage of final compensation to be provided for each year of credited prior and current service as a local fire member and lor those local police members entering. membership in the police classlfica.tion on -.•or prior to March 18,2010 shall be determined in acoprdatice vvith'Section • 213622 of said Retirement Law<3% at age-50full). 12. The percentage of final compensation Ito be provided -for eaCh year of credited current senikie as a boat police member entering membership for the first time in the lice classification• after March 18, 2010 shall be • determined in accordance with Section 21363.1 of said Retirement Law • -(3% at age 55'Full). 13. Public Agency elected and elects to be subject -to the following optional provisions: a. -Section 20425 ("Local Pollee Officer" shall include employees of.a o were ,employed to-perfonn-identification-cr corninkinication duties on August 4, 1972 and who eieeted to be local safety members). b. Section. 21222.1 (One -Time 5%• Increase - 1970). Legistalton repealed said -Section effective January 1, 1980; c. Sections 21624 and 21626 (Post -Retirement Survivor Allowance). 4. Section21573 (Third Level of 1969Survivor Benefits). e. Section 20965,(Credit for Unused Sick Leave). f. • Section 21325 (One -Time 3% to l'570 Increase For Local •Miscellaneous Members Who- Retired or Died Prior to January 1, 1974). Leilislation repeated said Section effective January 1-, 2002. • Section 20042 (One-Yearfinal Compensation). 2oftea (Two Years Additional Service.C.Pedit). Section 20475 (Different Level of. Benefits). Section 21363.1 (3% @ 55 Full formula) is applicable to local police members entering membership for the first time in the police classification after March 18, 2010/and Section 21353 (2% @ 60 Full formula) is applicable to local miscellaneous members entering membership for the first time in the miscellaneous classification after the effective date of this amendment to contract. 14. Public. Agency, in accordance with Govemment Code Section 20790, ceased to be an. "employer" for purposes of Section 20834 effective on January 16, 1977. Accumulated contributions of Public Agency shall be fixed and determined as provided in Government Code Section 20834, and accumulated contributions thereafter shall be held by the Board as • provided in Government Code Section 20834. 15. Public Agency shall contribute to said Retirement System the cOntributions determined by actuarial valuations of prior and future service liability with respect to local miscellaneous members and local safety members of said Retirement System. AB. =Public Agency shall also contribute to said Retirement System as follows: a Contributions -required per covered member on account of the 1959 Survivor Benefits provided under Section 21573 of said Retirement Law. (Subject to annual change.) In addition, all assets and liabilities of Public Agency and its employees shall be pooled in a single account, based on term insurance rates, for survivors of all local miscellaneous members and local safety rnembers. b. A reasonable amount, as fixed by the Board, payable in one installment within 60 days of date of contract to cover the costs of administering said System as it affects the employees of Public Agency, not including the costs of special valuations or of the periodic investigation and valuations required by law. c. A reasonable amount, as fixed by the Board, payable in one installment as the occasions arise, to cover the costs of special valuations on account of employees of Public Agency, and costs of the periodic investigation and valuations required by law. 17. - Contributions required. of Public Agency and its employees shall be -p.tiNect to adjustment by Board on account of amendments to the Public rripieyeest Retirement Law, and on account of the experience under the - Retirement System as determined by the • periodic investigation and valuation required by said Retirement Law, . • . • 18. Contributions required of Public Agency and its employees shall be paid by Public Agency to the Retirement System within fifteen days after the • end of the period to Which said contributions refer or as may be prescribed by Board regulation. If more or less than the -vorrect amount of contributions is paid for any period, proper adjustment shall be made in connection with subsequent reittans. Adjustments on aecount of • errors in contributions requited of any employee may be made by direct payments betwe. the employee and the Board. B. This amendment shall be effective on the day of BOARD -OF ADMIIASTRATION CITYCOLJNCIL PUBLICEMPLOYE' .RETIREMENT SYSTEM CITY OF NATIQINIAL CITY rn C..") -11"i • BY • • BY CI) LORI MCGARTLANKCHIEF PRESIDING -OLOCER • EMPLOYER SERVICA DIVISION • PUBLIC EMPLO'YEE;!--RETIREMENT SYSTEM .00 Witness Date Ez3 Attest: Cterk 1 CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE February 15, 2011 AGENDA ITEM NO. 19 EM TITLE: Resolution approving a Conditional Use Permit for the expansion of an existing restaurant and the modification of nonconforming alcohol sales at 3421 East Plaza Blvd. (Applicant Roger Speir) (Case File 2010-29 CUP) mt- PREPARED BY: Martin Reeder DEPARTMENT: Develo t Planning. PHONE: 336-4313 APPROVED EXPLANATION: The City Council conducted a hearing on this item at the February 1, 2011 City Council meeting. The attached resolution is needed to take action on the item.. FINANCIAL STATEMENT: ACCOUNT NO. APPROVED: APPROVED: ENVIRONMENTAL REVIEW: Categorically Exempt pursuant to Class 1 Section 15301 (Existing Facilities) ORDINANCE: INTRODUCTION: FINAL ADOPTION: Finance MIS STAFF RECOMMENDATION: Adopt the Resolution BOARD / COMMISSION RECOMMENDATION: ATTACHMENTS: >olution RESOLUTION 2011 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY APPROVING A CONDITIONAL USE PERMIT FOR THE EXPANSION OF AN EXISTING RESTAURANT (TITA'S II) AND THE MODIFICATION OF NONCONFORMING ALCOHOL SALES AT 3421 EAST PLAZA BOULEVARD APPLICANT: ROGER SPEIR; CASE FILE NO. 2010-29 CUP WHEREAS, the City Council considered a Conditional Use Permit for the expansion of an existing restaurant and the modification of nonconforming alcohol sales at 3421 East Plaza Boulevard (APN 669-101-05) at a duly advertised public hearing held on February 1, 2011, at which time oral and documentary evidence was presented; and WHEREAS, at said public hearings the City Council considered the staff report contained in Case File No. 2010-29 CUP maintained by the City and incorporated herein by reference, along with evidence and testimony at said hearing; and WHEREAS, this action is taken pursuant to all applicable procedures required by state law and City law; and, WHEREAS, the action recited herein is found to be essential for the preservation of public health, safety and general welfare. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of National City that the testimony and evidence presented to the City Council at the public hearings held on February 1, 2011, support the following findings: 1. That the site for the proposed use is adequate in size and shape, since an alcohol license has been associated with this property for some time, and the proposed entertainment would be an accessory use to the existing restaurant in an existing neighborhood commercial center and is not expected to significantly increase the demand for parking in the center. 2. That the site has sufficient access to streets and highways that are adequate in width and pavement type to carry the volume and type of traffic generated by the proposed use, since Plaza Blvd. is classified as an arterial street in the Circulation Element and the addition of accessory live entertainment is not expected to result in an appreciable increase in traffic. 3. That the proposed use will not have an adverse effect upon adjacent or abutting properties, since the proposed use will be subject to conditions that restrict the hours that alcohol will be available, require compliance with City noise standards, and require the purchase of food with any alcohol purchase. 4. That the proposed use is deemed essential and desirable to the public convenience and welfare, since it will contribute to the viability of a restaurant, an established and allowed use in the applicable commercial zone. 5. That public convenience and necessity may be served by a proposed use of the property for the retail sales of alcoholic beverages pursuant to law. BE IT FURTHER RESOLVED that the application for Conditional Use Permit is approved subject to the following conditions: Resolution No. 2011 — Page 2 GENERAL 1. This Conditional Use Permit authorizes live entertainment and the on -sale of beer and wine within a restaurant located at 3421 East Plaza Boulevard. Consumption of alcoholic beverages and live entertainment shall be limited to an area in substantial conformance with Exhibit B, Case File No. 2010-29 CUP, dated October 28, 2010. 2. Within four (4) days of approval, pursuant to Fish and Game Code section 711.4 and the California Code of Regulations, Title 14, Section 753.5, the applicant shall pay all necessary environmental filing fees for the San Diego County Clerk. Checks shall be made payable to the County Clerk and submitted to the National City Planning Department. 3. This permit shall become null and void if not exercised within one year after adoption of the Resolution of approval unless extended according to procedures specified in section 18.116.190 of the National City Municipal Code. 4. This permit shall expire if the use authorized by this resolution is discontinued for a period of 12 months or longer. This permit may also be revoked, pursuant to provisions of the Land Use Code, if discontinued for any lesser period of time. 5. This Conditional Use Permit may be revoked if the operator is found to be in violation of Conditions of Approval. 6. Before this Conditional Use Permit shall become effective, the applicant and the property owner both shall sign and have notarized an Acceptance Form, provided by the Planning Division, acknowledging and accepting all conditions imposed upon the approval of this permit. Failure to return the signed and notarized Acceptance Form within 30 days of its receipt shall automatically terminate the Conditional Use Permit. The applicant shall also submit evidence to the satisfaction of the Development Services Director that a Notice of Restriction on Real Property is recorded with the County Recorder. The applicant shall pay necessary recording fees to the County. The Notice of Restriction shall provide information that conditions imposed by approval of the Conditional Use Permit are binding on all present or future interest holders or estate holders of the property. The Notice of Restriction shall be approved as to form by the City Attorney and signed by the Development Services Director prior to recordation. BUILDING 7. Any plans submitted for improvements must comply with the current editions of the California Building Code, the California Mechanical Code, the California Plumbing Code, the California Electrical Code, and California Title 24 energy and handicap regulations. FIRE 8. Plans submitted for improvements must comply with the current editions of the CFC, NFPA, Title 19 and the National City Municipal Code. 9. The required width of emergency fire apparatus access roads shall not be obstructed in any manner, including parking of vehicles. All access roads shall be no less than Resolution No. 2011 — Page 3 20 feet wide, no less than 14 feet high, and shall have an all weather road with the ability to support 75 thousand pounds or greater. Where a fire hydrant is located on a fire apparatus road, the minimum road width shall be 26 feet. 10. • The project shall be evaluated for sprinkler and fire alarm requirements. 11. A contractor license is required. Fire Protection Systems require a C-16 license, and a Fire Alarm Systems require a C-10 license. The stamp shall be visible on all sets of plans. 12. Fire Sprinkler, Fire Alarm, Fire Protection Systems and Fire Underground plans are to be directly submitted to the National City Fire Department under separate permit for review and permitting. Fees along with three sets of plans including all "Cut Sheets and Calculations" shall be included upon submittal. Plan review shall be a 30-day plan review process or 21 working days. No over the counter plan reviews accomplished. 13. Supervision (Fire Alarm) of sprinkler piping and fire detection devices shall be automatically supervised where more than 20 sprinklers are on the system. 14. Plans will not be reviewed until fees have been paid. Check is payable to the City of National City. 15. Upon submittal for permit, the following shall be included for underground: • Data sheet for Back -Flows • Data sheets for Private and Commercial Hydrants • Data sheets for Post Indicator Valves 16. Should any plan corrections be required, contractor must correct the plan and re- submit to the Fire Department for approval once again prior to installation. 17. Once plans are approved, the contractor will be contacted by the National City Fire Department to retrieve the plans. The contractor will be required to sign the permit and pick up the approved plans. Work may not commence prior to plan pick-up. 18. A rough inspection of all work is required prior to closure. All rough work shall be visible at time of inspection 19. A request for an inspection shall be made 48 hours in advance. Inspection shall be made once work is complete utilizing approved and stamped plans. Contractor shall be required to have the approved plans on site per code. 20. All contractors shall possess a National City New Business License prior to Fire Department plan submittal. A copy of the New Business License will be required at time of plan submittal. 21. Exit signs shall be illuminated with green lettering as required by the National City Municipal Code. Resolution No. 2011 — Page 4 22. FDC caps to be Knox FDC Plugs. The application must be acquired from the National City Fire Department Administration offices. 23. If entrance/exit gates are used, gates shall be equipped with Knox Box and Emergency Strobes so as to provide emergency vehicle access and egress. A Knox Key Switch shall be required in conjunction with strobe for emergency access and shall be placed at front of property. Please contact the National City Fire Department for exact field location. 24. During construction, the project shall strictly following Chapter 14 of the CFC edition "Fire Safety During Construction Alteration or Demolition of a Building". PLANNING 25. No bar is permitted as part of this approval. 26. The sale of alcoholic beverages shall be limited to between the hours of 10:00 a.m. and 12:00 a.m. seven days a week. 27. All persons who will be serving alcoholic beverages shall receive L.E.A.D. (Licensee Education on Alcohol and Drugs) training in Responsible Beverage Service from the State Department of Alcoholic Beverage Control or Responsible Hospitality Coalition. Training shall include a component addressing domestic violence. 28. Exterior advertising and signs of all types, promoting or indicating the availability of alcoholic beverages, including advertising/signs directed to the exterior from within, are prohibited. Interior displays of alcoholic beverages and signs, which are clearly visible to the exterior, shall constitute a violation of this condition. There shall be no excessive advertising and/or marketing that targets youth or holidays. 29. No alcoholic beverages shall be consumed outside of the interior restaurant dining area without modification of this Conditional Use Permit. 30. No alcoholic beverages shall be available with take out or delivery service. 31. No alcohol shall be available without the purchase of food. 32. The sale of alcohol shall not exceed the sale of food. With the annual renewal of the City business license, the business proprietor shall submit a statement clearly indicating total alcoholic beverage sales and total food sales. Said statement shall be subject to audit and verification by employees of the City, who are authorized to examine, audit and inspect such books and records of the license, as may be necessary in their judgment to verify that the sale of alcohol does not exceed the sale of food. All information obtained by an investigation of records shall remain confidential. 33. Permittee shall post signs, to be approved by the Planning Division, on the exterior building walls in compliance with Chapter 10.30.070 of the National City Municipal Code. Said signs shall not be less than 17 by 22 inches in size, with lettering not less than one inch in height. The signs shall read as follows: Resolution No. 2011 — Page 5 a. "It is unlawful to drink an alcoholic beverage or to possess an open alcoholic beverage container in public or in a public parking lot. NCMC 10.30.050 and 10.30.060." 34. No public concert events are permitted as part of this permit. Entertainment shall be limited to normal business hours and shall comply with Title 12 (Noise) of the National City Municipal Code at all times. No advertisement targeted for a specific performer or event may be circulated outside of the restaurant, and live entertainment shall be incidental to the restaurant use. 35. A detailed landscape and underground irrigation plan, including plant types, methods of planting, etc. shall be submitted for review and approval by the Planning Division prior to issuance of building permits. The landscape plan shall reflect the use of drought tolerant planting and water conserving irrigation. 36. All plans submitted for approval shall reflect a parking lot configuration that is consistent with Land Use Code section 18.58 — Off -Street Parking and Loading. Police 37. Permittee shall comply with all regulatory provisions of the Business and Professions Code that pertain to the sale, display and marketing or merchandising of alcoholic beverages. BE IT FURTHER RESOLVED that copies of this Resolution shall be transmitted forthwith to the applicant. BE IT FURTHER RESOLVED that this Resolution shall become effective and final on the day following the City Council meeting where the resolution is adopted. The time within which judicial review of this decision may be sought is governed by the provisions of Code of Civil Procedure section 1094.6. PASSED and ADOPTED this 15th day of February, 2011. Ron Morrison, Mayor ATTEST: Michael R. Della, City Clerk APPROVED AS TO FORM: Claudia G. Silva City Attorney CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT EETING DATE: February 15, 2011 AGENDA ITEM NO. 120 ITEM TITLE: TEMPORARY USE PERMIT — Request by Pazzo Sports to partner with the City of National City for their March 2, 2011 Soccer Match -- Xolos vs. Galaxy (with Landon Donovan and David Beckham). The promoters are requesting the approval of sign/ad space, including electronic freeway signage, throughout National City in exchange for promoting National City during the soccer match. PREPARED BY: Marley Rolon PHONE: 1(619) 336-43641 EXPLANATION: DEPARTMENT: Neighb. -�d Services Division APPROVED BY: This is a soccer promotion request by Gareth Maden to advertise the March 2nd Game — Xolos Club Tijuana vs. Galaxy (with Landon Donovan and David Beckham) at USD Torero Stadium in San Diego. The promoters are looking to do a trade in co-sponsorship with National City for sign/ ad space, including the electronic freeway signage in the run up to the March 2nd game. In exchange, they will provide booth space at the promotional village at the Jenny Craig Concourse, promote the City of National City around the field as well as in -game and jumbotron announcements advertising "National City —Supporting Soccer" and they would also like to select 12 kids from National City to act as on field ball crew for the game. This is a family -friendly event with an expected audience of 6,500 soccer moms, dads, kids and David Beckham Fans. The use of the National City Mile Cars electronic board signs is pending approval and confirmation from the National City Mile of Cars Association. FINANCIAL STATEMENT: APPROVED: Finance ACCOUNT NO. APPROVED: MIS :N/A: ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: STAFF RECOMMENDATION: BOARD / COMMISSION RECOMMENDATION: ATTACHMENTS: CITY OF NATIONAL CITY, CALIFORNIA COMMUNITY DEVELOPMENT COMMISSION COUNCIL AGENDA STATEMENT *TING DATE: February 15, 2011 AGENDA ITEM NO.21 ITEM TITLE: Resolution of the Community Development Commission of the City of National City ("CDC") authorizing the Chairman to approve the appropriation of $250,000 for the 8th Street (from D to Highland Avenue) Project, as a partial grant match for a $450,000 Safe Routes to School Grant. (Tax Increment Fund). **Companion Item # PREPARED BY: Stephen Manganiello DEPARTMENT: Development Services/ PHONE: 336-4382 Engine n ision EXPLANATION: APPROVED BY: On October 20, 2010 Caltrans awarded a $450,000 State Safe Routes to School Grant for construction of the 8th Street Safe Routes to School Project from D Avenue to Highland Avenue near Central Elementary School. A local match of $650,000 is required for a total project cost of $1.1 million. This project will serve as an expansion of the $4.5 million 8th Street Smart Growth Project, which collectively, will provide traffic calming and streetscape enhancements from Harbor Drive to Highland Avenue, including undergrounding of overhead utilities from National City Boulevard to Highland Avenue. Both projects will be bid together to save costs, minimize the duration of construction, and ensure continuity along the corridor. ille appropriation will serve as a required Safe Routes to School grant match that will fund the design of 8th Street - D to Highland Avenue Project. The transfer of the available funds from the Westside Implementation Project to the 8th Street — D to Highland Avenue Project will have no financial impact to the current budget. FINANCIAL STATEMENT: ACCOUNT NO. APPROVED: APPROVED: Finance MIS There is no financial impact at this time. Funds will be transferred from 511-409-500-598-3938 (Westside Implementation) to 511-409-500-598-6176 (8th - from D to Highland). ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: STAFF RECOMMENDATION: Adopt the Resolution. BOARD / COMMISSION RECOMMENDATION: N/A •ACHMENTS: Resolution cdcharris RESOLUTION 2011 — RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY APPROVING THE APPROPRIATION OF $250,000 FOR THE 8TH STREET (D AVENUE TO HIGHLAND) PROJECT AS A PARTIAL GRANT MATCH FOR A $450,000 SAFE ROUTES TO SCHOOL GRANT WHEREAS, October 20, 2010, Caltrans awarded a $450,000 State Safe Routes to School Grant for construction of the 8th Street Safe Routes to School Project from D Avenue to Highland Avenue (the "Project") near Central Elementary School; and WHEREAS, a local match of $650,000 is required for a total project cost of $1.1 Million; and WHEREAS, the Project will serve as an expansion of the $4.5 Million Street Smart Growth Project, which collectively will provide traffic calming and streetscape enhancements from Harbor Drive to Highland Avenue, including undergrounding of overhead utilities from National City Boulevard to Highland Avenue; and WHEREAS, the appropriation of available funds in the amount of $250,000, to be transferred from the Westside Implementation Project Account (No. 511-409-500-598-3938) to the 8th Street — D to Highland Avenue Account (No. 511-409-500-598-6176), will serve as a partial grant match. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of National City hereby authorizes the appropriation of $250,000, to be transferred from the Westside Implementation Project Account (No. 511-409-500-598-3938) to the 8th Street — D to Highland Avenue Account (No. 511-409-500-598-6176) to fund a partial grant match for the 8th Street Safe Routes to School Project from D Avenue to Highland Avenue. PASSED and ADOPTED this 15th day of February, 2011. Ron Morrison, Chairman ATTEST: Brad Raulston, Secretary APPROVED AS TO FORM: Claudia G. Silva CDC General Counsel CITY OF NATIONAL CITY, CALIFORNIA COMMUNITY DEVELOPMENT COMMISSION AGENDA STATEMENT MEETING DATE: February 15, 2011 AGENDA ITEM NO.42 EM TITLE: IA resolution of the Community Development Commission of the City of National City authorizing the Cdc to Enter into a Cooperation Agreement by and between the CDC and the City of National City for payment of certain Capital Improvement costs until June 30, 2016 and an Option Agreement regarding properties owned by the CDC and pledging security interests of the CDC and making certain findings and determinations thereto . (Tax Increment Fund and Low -Mod Housing Fund). PREPARED BY: Patricia Beard ('� � DEPARTMENT: Redevelopment PHONE:4255 �IJQ,� APPROVED Y: EXPLANATION: 1In order to ensure funding for the 2011-2016 Capital Improvement Program within the National City Redevelopment Project areas, staff proposes that the CDC and City consider the attached Cooperative Agreement. The Agreement would: 1. Provide funding for the Five Year Capital Improvement Program; 2. Provide a Option Agreement that could, if deemed prudent, be exercised by the City Manager and Executive Director to transfer title to any, some or all of the CDC -owned properties to the City; and 3. Assign, transfer and pledge the financial holdings of the CDC to the City. ease see attached Background Report which highlights the necessary findings to adopt this resolution 1 FINANCIAL STATEMENT: ACCOUNT NO. APPROVED: Finance This item would authorize the transfer of up to $55,226,623 of "net tax increment" as defined in the Agreement from the CDC to the City for Capital Projects, potentially transfer title to any, some or all of the CDC held properties to the City and pledge the financial holdings of the CDC to the City. Funding for property management of the CDC properties is provided in a Property Management Agreement on tonight's agenda. ENVIRONMENTAL REVIEW: Not applicable, ORDINANCE: INTRODUCTION: FINAL ADOPTION: STAFF RECOMMENDATION: Adopt the resolution. BOARD / COMMISSION RECOMMENDATION: ATTACHMENTS: Background Report Proposed Agreement and Exhibits RESOLUTION NO. 2011 - RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY ("CDC") AUTHORIZING THE CDC TO ENTER INTO A COOPERATION AGREEMENT WITH CITY OF NATIONAL CITY FOR PAYMENT OF CERTAIN CAPITAL IMPROVEMENT COSTS UNTIL JUNE 30, 2016 AND AN OPTION AGREEMENT REGARDING PROPERTIES OWNED BY THE CDC, AND PLEDGING SECURITY INTERESTS OF THE CDC, AND MAKING CERTAIN DETERMINATIONS AND FINDINGS RELATED THERETO WHEREAS, the City Council adopted the Redevelopment Plan for National City Redevelopment Project on July 17, 2007, by Ordinance No. 2007-2295 (the "Redevelopment Plan"), which results in the allocation of a portion of the property taxes generated from the National City Redevelopment Project (the "Project Area") to the Community Development Commission of the City of National City ("CDC") for purposes of redevelopment; and WHEREAS, the intent of the Redevelopment Plan is, in part, to provide for the construction and installation of necessary public infrastructure and facilities and to facilitate the repair, restoration and/or replacement of existing public facilities and to perform specific actions necessary to promote the redevelopment and the economic revitalization of the Project Area; to increase, improve and preserve the community's supply of low and moderate income housing; to take all other necessary actions to implement the Redevelopment Plan; and to expend the CDC's share of property taxes (referred to as "tax increment") to accomplish the goals and objectives of the Redevelopment Plan; and WHEREAS, the CDC has adopted its Five -Year Implementation Plan for the Project Area, as amended from time to time (collectively, the "Implementation Plan") with established goals to support affordable housing, economic development, community revitalization, commercial revitalization, and institutional revitalization. To implement the programs and activities associated with each goal, the CDC has made redevelopment fund commitments and budget allocations based on estimated available tax increment revenue and debt financing structures; and WHEREAS, the City and CDC wish to cooperate with one another to bring about the redevelopment of the Project Area and accomplish various tasks set forth in the Redevelopment Plan and the Implementation Plan; and WHEREAS, pursuant to Section 33220 of the California Community Redevelopment Law (Health and Safety Code Section 33000 et seq.) (the "CRL") certain public bodies, including the City, may aid and cooperate in the planning, undertaking, construction, or operation of redevelopment projects; and WHEREAS, the CDC and City desire to enter into a Cooperation Agreement (the "Agreement") to provide for implementation of certain public infrastructure projects (the "Projects"), under which payments will be made by the CDC to the City as otherwise necessary to reimburse the City for the cost to the City of installing and constructing the Projects; and WHEREAS, the programs and activities associated with the Projects include, but are not limited to, development of design criteria, design, planning, preparation of construction bid documents, financial analysis, financing, and new construction or rehabilitation; and Resolution No. 2011 — Page 2 WHEREAS, the obligations of the CDC under the Agreement shall constitute an indebtedness of the CDC of $55,226,623 for the purpose of carrying out the Redevelopment Plan for the Project Area; and WHEREAS, it is in the best interests of the City and for the common benefit of residents, employees, business tenants and property owners within the Project Area and the City as a whole for the Projects to be developed and constructed in accordance with the Agreement; and WHEREAS, the Agreement shall require the City to comply with Public Resources Code Sections 21000 et seq. ("CEQA") before undertaking each Project and, pursuant to CEQA Guideline Section 15378(b)(4), approval of the Agreement is not a project subject to the California Environmental Quality Act ("CEQA"), because the Agreement consists of the creation of a governmental funding mechanism for various public improvements, but does not commit funds to any specific public improvement, in that environmental review required by CEQA shall be completed prior to the commencement of any public improvement listed in the Agreement; and WHEREAS, all other legal prerequisites to the adoption of this Resolution have occurred. NOW, THEREFORE, BE IT RESOLVED by the Community Development Commission of the City of National City as follows: Section 1. The CDC has received and heard all oral and written objections to the Agreement, and to other matters pertaining to this transaction, and all such oral and written objections are hereby overruled. Section 2. The CDC hereby finds and determines that the foregoing recitals are true and correct. Section 3. Based on the evidence in the record, the CDC hereby finds and determines, with respect to the Projects that are publicly owned and are located in or contiguous to the Project Area as identified in the Agreement, that: (a) Said Projects and the programs and activities associated therewith are of benefit to the Project Area by helping to eliminate blight within the Project Area or providing housing for low- or moderate income persons; and (b) No other reasonable means of financing said Projects and the programs and activities associated therewith are available to the community; and (c) The payment of funds by the CDC for the costs related to said Projects and the programs and activities associated therewith is consistent with the respective Implementation Plan adopted pursuant to Section 33490 of the CRL. Section 4. The Chairman is hereby authorized to execute the Agreement on behalf of the CDC, together with such non -substantive changes and amendments as may be approved by the Chairman and CDC General Counsel. Resolution No. 2011 — Page 3 Section 5. The CDC's Executive Director, or designee, is hereby authorized, on behalf of the CDC, to sign all documents necessary and appropriate to carry out and implement the Agreement, including, without limitation, any security instruments to be recorded against CDC assets to secure the CDC's obligations under the Agreement, and to administer the CDC's obligations, responsibilities and duties to be performed under the Agreement. Section 6. The CDC authorizes the transfer of up to $55,226,623 of net tax increment funds from the CDC to the City, as set forth in the Agreement. Section 7. In the event the CDC desires to issue bonds, notes, or other instruments of indebtedness of the CDC to carry out redevelopment projects, then any indebtedness of the CDC to the City, including any interest accrued thereon, shall be deemed not to be a first pledge of tax increment allocations received by the CDC pursuant to Section 33670 of the CRL; and any indebtedness of the CDC to the City, including any interest accrued thereon, shall be subordinate to any pledge of tax increments to bondholders or the holders of other such instruments of indebtedness. Section 8. Said Cooperation Agreement is on file in the office of the City Clerk. Section 9. This Resolution shall take effect immediately upon its adoption. PASSED and ADOPTED this 15th day of February, 2011. Ron Morrison, Chairman ATTEST: Brad Raulston, Secretary APPROVED AS TO FORM: Claudia G. Silva CDC General Counsel ATTACHMENT 1 BACKGROUND REPORT In order to ensure adequate funding to accomplish the Capital Improvement Program listed in this Agreement, allow the Option to transfer properties from the CDC to the City and pledge the security interests of the CDC to the City, the CDC and City can agree to cooperatively work together. In order to do so, both the CDC and City must make the following findings, as listed in the resolution for this agenda item and its companion item: • The CDC has received and heard all oral and written objections to the Agreement, and to other matters pertaining to this transaction, and all such oral and written objections are hereby overruled; • The CDC hereby finds and determines that the recitals in the Agreement are true and correct; and • Based on the evidence in the record, the CDC hereby finds and determines, with respect to the Projects that are publicly owned and are located in or contiguous to the Project Area as identified in the Agreement, that: (a) Said Projects and the programs and activities associated therewith are of benefit to the Project Area by helping to eliminate blight within the Project Area or providing housing for low- or moderate income persons; and (b) No other reasonable means of financing said Projects and the programs and activities associated therewith are available to the community; and (c) The payment of funds by the CDC for the costs related to said Projects and the programs and activities associated therewith is consistent with the respective Implementation Plan adopted pursuant to Section 33490 of the CRL; The Agreement provides that the Chairman would be authorized to execute the Agreement on behalf of the Commission, together with such non -substantive changes and amendments as may be approved by the Executive Director and CDC Counsel. The Executive Director, or designee, would be authorized, on behalf of the CDC, to sign all subsequent documents necessary and appropriate to carry out and implement the Agreement, including, without limitation, any security instruments to be recorded against CDC assets to secure the CDC's obligations under the Agreement, and to administer the CDC's obligations, responsibilities and duties to be performed under the Agreement. In the event the CDC desires to issue bonds, notes, or other instruments of indebtedness of the CDC to carry out redevelopment projects, then any indebtedness of the CDC to the City, including any interest accrued thereon, shall be deemed not to be a first pledge of tax increment allocations received by the CDC pursuant to Section 33670 of the CRL; and any indebtedness of the CDC to the City, including any interest accrued thereon, shall be subordinate to any pledge of tax increments to bondholders or the holders of other such instruments of indebtedness. COOPERATION AGREEMENT FOR COMMISSION'S PAYMENT OF CERTAIN COSTS THIS COOPERATION AGREEMENT (this "Agreement") is entered into this day of February, 2011, by and between the CITY OF NATIONAL CITY (the "City") and the COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY (the "Commission"), with reference to the following facts: A. The City Council of the City of National City (the "City Council") adopted the Redevelopment Plan for National City Redevelopment Project on July 17, 2007 by Ordinance No. 2007-2295 (the "Redevelopment Plan"), which results in the allocation of a portion of the property taxes generated from the National City Redevelopment Project (the "Project Area") to the Commission for purposes of redevelopment. B. The intent of the Redevelopment Plan is, in part, to provide for the construction and installation of necessary public infrastructure and facilities and to facilitate the repair, restoration and/or replacement of existing public facilities and to perform specific actions necessary to promote the redevelopment and the economic revitalization of the Project Area; to increase, improve and preserve the community's supply of low and moderate income housing; and to take all other necessary actions to implement the Redevelopment Plan and to expend the Commission's share of property taxes (referred to as "tax increment") to accomplish the goals and objectives of the Redevelopment Plan. C. The Commission has adopted its Five -Year Implementation Plan for the Project Area, as amended from time to time (collectively, the "Implementation Plan") with established goals to support affordable housing, economic development, community revitalization, commercial revitalization, and institutional revitalization. To implement the programs and activities associated with each goal, the Commission has made redevelopment fund commitments and budget allocations based on estimated available tax increment revenue and debt financing structures. D. Pursuant to Section 33220 of the California CommunityRRedevelopment Law (Health and Safety Code Section 33000 et seq.) (the "CRL"), certain public bodies, including the City may aid and cooperate in the planning, undertaking, construction, or operation of redevelopment projects. Collectively, the projects associated with this Agreement are listed in the attached Exhibit 1, which are incorporated herein by this reference (the "Projects"). To carry out the Projects in accordance with the objectives and purposes of the Redevelopment Plan and the Implementation Plan, the Commission desires assistance and cooperation in the implementation and completion of the Projects. The City agrees to aid the Commission and cooperate with the Commission to expeditiously implement the Projects in accordance with the Redevelopment Plan and the Implementation Plan and undertake and complete all actions necessary or appropriate to ensure that the objectives of the Redevelopment Plan and the Implementation Plan are fulfilled within the time effectiveness of the Project Area. Cooperation Agreement Page 1 of 6 E. In considering the Commission's desire to ensure timely implementation and completion of the Projects, the Commission wishes to enter into this Agreement with the City for the pledge of net available tax increment ("Net Tax Increment"), as defined, below, to finance the Projects. The purpose of this Agreement is to facilitate the implementation of the Projects and to provide funding necessary to effectuate the completion of the Projects with Net Tax Increment in this current fiscal year and forthcoming fiscal years. F. "Net Tax Increment" is defined as any tax increment generated from the Project Area, net of any amount required by the CRL to be set aside for purposes of increasing, improving or preserving the City's supply of low and moderate housing, any amounts paid to affected taxing agencies whether by statute or agreement and any amounts paid to the State of California or the County of San Diego as required by statute or agreement, existing debt service payments, and existing contractual obligations received by the Commission or any lawful successor of the Commission and/or to any of the powers and rights of the Commission pursuant to any applicable constitutional provision, statute or other provision of law now existing or adopted in the future. The pledge of Net Tax Increment shall constitute obligations to make payments authorized and incurred pursuant to Section 33445 and other applicable statutes. The obligations set forth in this Agreement will be contractual obligations that, if breached, will subject the Commission to damages and other liabilities or remedies. G. The City Council and the Commission by resolution have each found that the use of Commission redevelopment funding for the publicly owned improvements included in the Projects is in accordance with Section 33445 of the CRL and other applicable law. The said City Council and Commission resolutions are each based on the authority of the Commission, with the consent of the City Council, to pay all or part of the cost of the installation and construction of any building, facility, structure, or other improvements which is publicly owned within the Project Area, if the City Council makes certain determinations. H. By approving and entering into this Agreement, the Commission has approved certain obligations, including the pledge of Net Tax Increment to pay for the Projects. I. The obligations of the Commission under this Agreement shall constitute an indebtedness of the Commission for the purpose of carrying out the Redevelopment Plan for the Project Area. NOW, THEREFORE, the parties hereto do mutually agree as follows: I. INTRODUCTORY PROVISIONS The recitals above are an integral part of this Agreement and set forth the intentions of the parties and the premises on which the parties have decided to enter into this Agreement. II. COMMISSION'S OBLIGATIONS 1. The Projects are those projects which are listed on the attached Exhibit 1. The Agency agrees to pay to the City an amount equal to the cost to the City to carry out the Projects ("Payment Obligation"), including without limitation all administrative costs incurred by the Cooperation Agreement Page 2 of 6 City for the planning, acquisition and disposition, financing, development, permitting, design, site testing, bidding, construction and construction management of the Projects. The Agency's Payment Obligation shall be evidenced by a Promissory Note substantially in form attached hereto as Exhibit 3, and secured by a Deed of Trust, substantially in form attached hereto as Exhibit 4, a Pledge Agreement, substantially in form attached hereto as Exhibit 5, and UCC-1 Financing Statement, substantially in form attached hereto as Exhibit 6. Concurrently herewith, Agency and City shall execute an Option Agreement (including Memorandum of Option Agreement) substantially in form attached hereto as Exhibit 7. The Deed of Trust and Memorandum of Option Agreement shall be recorded against those certain real properties owned by the Agency and identified in the list attached hereto as Exhibit 8 (coIlectively, the "Agency Properties"), within thirty (30) days of execution of this Agreement. The Option Agreement shall give City an option to purchase the Agency Properties ("Option"). In the event that City exercises said Option, Agency shall receive a credit against any amounts owed to City the Payment Obligation in the amount of the Purchase Price, as set forth in the Option Agreement. The Agency's obligations under this Agreement, including without limitation the Agency's obligation to make the payments to the City required by this Agreement, shall constitute an indebtedness of the Agency for the purpose of carrying out the redevelopment of the Project Area and are obligations to make payments authorized and incurred pursuant to Section 33445 of the CRL and other applicable statutes. The obligations of the Agency set forth in this Agreement are contractual obligations that, if breached, will subject the Agency to damages and other liabilities or remedies. 2. The obligations of Commission under this Agreement shall be payable out of Net Tax Increment, as defined in the above recitals and/or as defined or provided for in any applicable constitutional provision, statute or other provision of law now existing or adopted in the future, levied by or for the benefit of taxing agencies in the Project Area, and allocated to the Commission and/or any lawful successor entity of the Commission and/or any entity established by law to carry out any of the redevelopment plans for the Project Area and/or expend tax increment or pay indebtedness of the Commission to be repaid with tax increment, pursuant to Section 33670 of the CRL or any applicable constitutional provision, statute or other provision of law now existing or adopted in the future, in amounts not less than those set forth in the Payment Schedule attached hereto as Exhibit 2 and incorporated herein by this reference. 3. The indebtedness of Commission under this Agreement shall be subordinate to the rights of the holder or holders of any existing bonds, notes or other instruments of indebtedness (all referred to herein as "indebtedness") of the Commission incurred or issued to finance the Project Area, including without limitation any pledge of tax increment revenues from the Project Area to pay any portion of the principal (and otherwise comply with the obligations and covenants) of any bond or bonds issued or sold by Commission with respect to the Project Area. 4. All payments due to be made by the Commission to the City under this Agreement shall be made by the Commission in accordance with the schedule set forth in Exhibit 2 and as otherwise necessary to reimburse the City for the cost to the City of performing its obligations hereunder. City shall provide Commission with a quarterly report accompanied by evidence reasonably satisfactory to the Commission's Executive Director that the City has Cooperation Agreement Page 3 of 6 progressed in the development and construction of the Project for which payment is made by the Commission commensurate with such payments and has incurred costs or obligations to make payments equal to or greater than such amount. III. CITY'S OBLIGATIONS 1. The City shall accept any funds offered by the Commission pursuant to this Agreement and shall devote those funds to completion of the Projects by (i) reimbursing the City or using such funds to make City expenditures to perform the work required to carry out and complete the Projects; (ii) utilizing such funds to pay debt service on bonds or other indebtedness or obligations that the City has or will incur for such purposes; and/or (iii) paying such funds into a special fund of the City to be held and expended only for the purpose of satisfying the obligations of the City hereunder. In the event that City exercises the Option, the Commission Property may be used, leased or sold by the City for any municipal purposes, including affordable housing and public improvements, in conformance with the Redevelopment Plan. 2. It is the responsibility of City to pay all development and construction costs in connection with the Projects from funds paid to the City by the Commission under this Agreement. 3. The City shall perform its obligations hereunder in accordance with the applicable provisions of federal, state and local laws, including the obligation to comply with environmental laws such as CEQA before undertaking each Project, and shall timely complete the work required for each Project in accordance with the Schedule of Performance attached hereto as Exhibit 2 and incorporated herein by this reference. IV. LIABILITY AND INDEMNIFICATION In contemplation of the provisions of California Government Code section 895.2 imposing certain tort liability jointly upon public entities solely by reason of such entities being parties to an agreement as defined by Government Code section 895, the parties hereto, as between themselves, pursuant to the authorization contained in Government Code sections 895.4 and 895.6, shall each assume the full liability imposed upon it, or any of its officers, agents or employees, by law for injury caused by negligent or wrongful acts or omissions occurring in the performance of this Agreement to the same extent that such liability would be imposed in the absence of Government Code section 895.2. To achieve the above -stated purpose, each party indemnifies, defends and holds harmless the other party for any liability, losses, cost or expenses that may be incurred by such other party solely by reason of Government Code section 895.2. V. ENTIRE AGREEMENT; WAIVERS; AND AMENDMENTS 1. This Agreement shall be executed in triplicate originals, each of which is deemed to be an original. This Agreement consists of six (6) pages and two (2) Exhibits, which constitute the entire understanding and agreement of the parties. Cooperation Agreement Page 4 of 6 2. This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the parties with respect to the subject matter of this Agreement. 3. This Agreement is intended solely for the benefit of the City and the Commission. Notwithstanding any reference in this Agreement to persons or entities other than the City and the Commission, there shall be no third party beneficiaries under this Agreement; provided, however, that City may, with the consent of Commission, which shall not be unreasonably withheld, assign City's rights and obligations, in whole or part, under this Agreement to any third party. 4. All waivers of the provisions of this Agreement and all amendments to this Agreement must be in writing and signed by the authorized representatives of the parties. VI. SEVERABILITY If any term, provisions, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions shall continue in full force and effect unless the rights and obligations of the parties have been materially altered or abridged by such invalidation, voiding or unenforceability. VII. DEFAULT If either party fails to perform or adequately perform an obligation required by this Agreement within thirty (30) calendar days of receiving written notice from the non -defaulting party, the party failing to perform shall be in default hereunder. In the event of default, the non - defaulting party will have all the rights and remedies available to it at law or in equity to enforce the provisions of this contract, including without limitation the right to sue for damages for breach of contract. The rights and remedies of the non -defaulting party enumerated in this paragraph are cumulative and shall not limit the non -defaulting party's rights under any other provision of this Agreement, or otherwise waive or deny any right or remedy, at law or in equity, existing as of the date of the Agreement or hereinafter enacted or established, that may be available to the non -defaulting party against the defaulting party. All notices of defaults shall clearly indicate a notice of default under this Agreement. VIII. BINDING ON SUCCESSORS This Agreement shall be binding on and shall inure to the benefit of all successors and assigns of the parties, whether by agreement or operation of law. SIGNTURES ON NEXT PAGE SPACE LEFT INTENTIONALLY BLANK Cooperation Agreement Page 5 of 6 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above. Attest: CITY OF NATIONAL CITY By: By: City Clerk Ron Morrison, Mayor Attest: COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY By: By: Secretary Ron Morrison, Chairman APPROVED AS TO FORM: By: City Attorney APPROVED AS TO FORM: Kane Ballmer & Berkman By: Commission Special Counsel Cooperation Agreement Page 6 of 6 EXHIBIT 1 PROJECTS SUBJECT TO THIS AGREEMENT Project name/description APN # or location Anticipated cost Anticipated Completion Granger Hall and property 554-050-11 $1,200,000 June 30, 2014 Old Library/Cultural Arts Center/Public Works 200 East 12`h St $398,323 June 30, 2014 Street Resurfacing Redevelopment Project Areas $6,500,000 June 30, 2016 Concrete improvements Redevelopment Project Areas $1,400,000 June 30, 2016 Roundabout D Avenue and 12t St $625,000 June 30, 2016 Traffic Signal Timing, fiber optic interconnect Redevelopment Project Areas $150,000 June 30, 2016 Plaza Boulevard Widening Plaza Boulevard — I-5 to 1-805 $4,709,300 June 30, 2016 Traffic Monitoring/Safety Enhancement Redevelopment Project Areas $150,000 June 30, 2016 Drainage Improvements Redevelopment Project Areas $2,200,000 June 30, 2016 Public Works Relocation 2200 Hoover Ave $100,000 June 30, 2016 Public Works Acquisition 2200 Hoover Avenue $4,700,000 June 30, 2016 Senior Village APNs # 561- 410-04, 05, 06 $13,000,000 June 30, 2016 Las Palma Park Facilities Plan APNs #563- 150-31, 561- 360-35 $50,000 June 30, 2016 Pacific Steel 1500 Cleveland $60,000 June 30, 2016 Kimball Way Creek Improvements Paradise Creek — National City $100,000 June 30, 2016 B-1 Site Development 5 acre parcel — Port holdings immediately northeast of Pier 32 Marina — Harbor District Project $200,000 June 30, 2106 Area Storefront Renovation Program All project areas $250,000 June 30, 2016 Sudberry — RCP site APN # 562- 321-08 $830,000 June 30, 2016 Paradise Creek Enhancement Paradise Creek — 18th St — 24`h St $2,300,000 June 30, 2016 Aquatic Center Pepper Park, Harbor District project area $3,300,000 June 30, 2016 WI-TOD 2200 Hoover Ave $13,000,000 June 30, 2016 TOTAL $55,226,623 EXHIBIT 2 PAYMENT SCHEDULE All projects will be completed by June 30, 2016 as noted in Exhibit 1 EXHIBIT 3 PROMISSORY NOTE [behind this page] PROMISSORY NOTE TO THE CITY OF NATIONAL CITY SECURED BY A DEED OF TRUST AND ASSIGNMENT OF RENTS 7.00% Interest National City, California Date: February , 2011 FOR VALUE RECEIVED, the REDEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY, a public body, corporate and politic (the "Agency" or "Borrower") hereby promises to pay to the CITY OF NATIONAL CITY, a California municipal corporation (the "City" or "Lender") the principal amount of [INSERT AMOUNT] DOLLARS and No/100 Cents ($ .00) (the "City Loan") together with interest on the unpaid principal balance from time to time outstanding at an annual rate of seven percent (7%). The Commission, acting to carry out its public purposes of executing and implementing the Redevelopment Plan for the National City Redevelopment Project Areas (the "Project Area") under the Community Redevelopment Law, borrowed from the City the City Loan on a long- term basis. This promissory note (the "Note") evidences the City Loan to the Agency, and is given by the Commission pursuant to the Community Redevelopment Law and that certain Cooperation Agreement, dated 2011, by and between the City and Commission (referred to herein as the "Cooperation Agreement"). The Cooperation Agreement is a public record on file in the offices of the Commission and the City, and the provisions of said document are incorporated herein by this reference. Any capitalized term not otherwise defined herein shall have the meaning ascribed to such tern in the Cooperation Agreement. 1. Definitions. Any capitalized term not otherwise defined herein shall have the meaning ascribed to such term in the Cooperation Agreement. In addition, the following terms shall have the following meanings: "Affiliate" shall mean (1) any Person directly or indirectly controlling, controlled by, or under common control with another Person; (2) any Person owning or controlling ten percent (10%) or more of the outstanding voting securities of such other Person; or (3) if that other Person is an officer, director, member or partner, of any company for which such Person acts in any such capacity. The term "control" as used in the immediately preceding sentence, shall mean the power to direct the management or the power to control election of the board of directors. It shall be a presumption that control with respect to a corporation or limited liability company is the right to exercise or control, directly or indirectly, more than fifty percent (50%) of the voting rights attributable to the controlled corporation or limited liability company, and, with respect to any individual, partnership, trust, other entity or association, control is the possession, indirectly or directly, of the power to direct or cause the direction of the management or policies of the controlled entity. "City Loan" shall mean the long-term loan made by the City to the Commission pursuant to the Community Redevelopment Law and the Cooperation Agreement in the principal amount of [insert amount] ($ .00), which is evidenced by this Note. "Community Redevelopment Law" shall mean the Community Redevelopment Law of the State of California set forth at California Health and Safety Code Section 33000 et seq. "Net Available Tax Increment Revenue" shall mean any tax increment (defined as any tax increment generated from the Project Area), net of any amount required by the CRL to be set aside for purposes of increasing, improving or preserving the City's supply of low and moderate housing, any amounts paid to affected taxing agencies whether by statute or agreement and any amounts paid to the State of California or the County of San Diego as required by statute or agreement, existing debt service payments, and existing contractual obligations received by the Commission or any lawful successor of the Commission and/or to any of the powers and rights of the Commission pursuant to any applicable constitutional provision, statute or other provision of law now existing or adopted in the future. The pledge of net available tax increment will constitute obligations to make payments authorized and incurred pursuant to Section 33445 and other applicable statutes. The obligations set forth in this Agreement will be contractual obligations that, if breached, will subject the Commission to damages and other liabilities or remedies. "Person" means an individual, partnership, limited partnership, trust, estate, association, corporation, limited liability company or other entity, domestic or foreign. "Tax Increment Revenue" means the portion of property tax revenues from the increase in assessed value of real property within the Project Area that has occurred after adoption of the Redevelopment Plan for the Project Area received by the Commission to pay the principal of and interest on loans, moneys advanced to, or indebtedness (whether funded, refunded, assumed, or otherwise) incurred by the Commission to finance or refinance, in whole or in part, its activities in the Project Area. "Term" of this Note shall mean the period of time five (5) years following the execution of this Note by the Commission which execution date shall constitute the "Effective Date" of this Note. "Transfer" shall have the meaning set forth in Section 9 of this Note. 2. This Note evidences the obligation of the Commission to the City for the repayment of the City Loan. 3. This Note is payable at the principal office of the City, 1243 National City Boulevard, National City, California, 91950-4379, or at such other place as the holder hereof may inform the Commission, in writing, in lawful money of the United States. 4. This Note shall be secured by the Agency's pledge of Net Available Tax Increment Revenue as provided in the Cooperation Agreement, the Agency Deed of Trust -2- (Exhibit 4 to the Cooperation Agreement), Pledge Agreement (Exhibit 5 to the Cooperation Agreement), and UCC-1 Financing Statement (Exhibit 6 to the Cooperation Agreement). 5. This Note shall bear interest at the rate of seven percent (7.00 %) per annum, simple interest, which shall begin to accrue upon disbursement of the City Loan. 6. The indebtedness of the Commission under this Note shall be subordinate to the rights of the holder or holders of any existing bonds, notes and other instruments of indebtedness, and existing contractual indebtedness (all referred to herein as "indebtedness") of the Commission incurred or issued to finance its activities in the Project Area, including without limitation any pledge of tax increment revenues from the Project Area to pay any portion of the principal (and otherwise comply with the obligations and covenants) of any existing bond or bonds issued or sold by the Commission with respect to the Project Area. 7. Prior to the expiration of the fifth (5th) anniversary following the Effective Date of this Note, the Commission shall be obligated to repay the City Loan from the Agency's Net Available Tax Increment Revenue, by making annual installment payments based on the Payment Schedule. In the event that additional funds are required in order to make the Commission payments to the City required by this Note, the Commission shall make such payments from income received by the Commission from its projects and programs or any other additional funds available to it. All payments to the City shall be applied first to interest, then to reduce the principal amount owed. 8. The entire unpaid principal balance of this Note and any accrued but unpaid interest shall be due and payable immediately in the event that, prior to the fifth anniversary of the Effective Date, there is a default by the Commission under the terms of this Note or the Cooperation Agreement which is not cured within the respective time period provided herein and therein. 9. (a) Prior to the repayment in full of the City Loan, the Commission shall not assign or attempt to assign any right or interest in the Cooperation Agreement (referred to hereinafter as a "Transfer"), without prior written approval of the City. Consent to one such transaction shall not be deemed to be a waiver of the right to require consent to future or successive transactions. The City shall not unreasonably withhold or delay its consent. If consent should be given, any such Transfer shall be subject to this Section 9, and any such transferee shall assume all obligations hereunder and agree to be bound by all provisions contained herein. (b) Any such proposed transferee shall have the qualifications and financial responsibility necessary and adequate as may be reasonably determined by the City, to fulfill the obligations undertaken by the Commission in the Cooperation Agreement and this Note. Any such proposed transferee, by instrument in writing satisfactory to the City, for itself and its successors and assigns, and for the benefit of the City shall expressly assume all of the obligations of the Commission under the Cooperation Agreement and agree to be subject to all conditions and restrictions applicable to the Commission in this Note. There shall be submitted to the City for review all instruments and other legal documents proposed to effect any such -3- Transfer; and if approved by the City its approval shall be indicated to the Commission in writing. (c) In the absence of specific written agreement by the City, no unauthorized Transfer, or approval thereof by the City, shall be deemed to relieve the Commission or any other party from any obligations under the Cooperation Agreement. (d) In the event of a Transfer prior to the time the City Loan is paid in full, without the prior written consent of the City, the remaining principal balance of the City Loan and all accrued but unpaid interest shall be immediately due and payable. (e) As used herein, "Transfer" includes the transfer, assignment, hypothecation or conveyance of legal or beneficial ownership of any interest in the Agency, or any conversion of the Commission to an entity form other than that of the Commission at the time of execution of this Note. (f) The City shall not unreasonably withhold, condition or delay its approval of any matter for which its approval is required hereunder. Any disapproval shall be in writing and contain the City's reasons for disapproval. 10. Subject to the provisions and limitations of this Section 10, the obligation to repay the City Loan is a nonrecourse obligation of the Agency. Commission officials, employees, agents and attorneys shall not have any personal liability for repayment of the City Loan. The sole recourse of City for repayment of the City Loan shall be the exercise of its rights against the security for the City Loan. Provided, however, that the foregoing shall not (a) constitute a waiver of any obligation evidenced by this Note; (b) limit the right of the City to name the Commission as a party defendant in any action or proceeding hereunder so long as no judgment in the nature of a deficiency judgment shall be asked for or taken against the Agency; (c) release or impair this Note; (d) prevent or in any way hinder the City from exercising, or constitute a defense, an affirmative defense, a counterclaim, or other basis for relief in respect of the exercise of, any other remedy or any other instrument securing the Note or as prescribed by law or in equity in case of default; (e) prevent or in any way hinder the City from exercising, or constitute a defense, an affirmative defense, a counterclaim, or other basis for relief in respect of the exercise of, its remedies in respect of any deposits, insurance proceeds, condemnation awards or other monies or other collateral or letters of credit securing the Note; (f) relieve the Commission of any of its obligations under any indemnity delivered by the Commission to the City; or (g) affect in any way the validity of any guarantee or indemnity from any Person of all or any of the obligations evidenced and secured by this Note. Notwithstanding the first sentence of this paragraph, City may recover directly from the Commission or from any other party: (a) Any damages, costs and expenses incurred by the City as a result of fraud or any criminal act or acts of the Commission or any member, officer, director or employee of the Agency; (b) Any damages, costs and expenses incurred by the City as a result of any misappropriation of funds; -4- (c) All court costs and attorneys' fees reasonably incurred in enforcing or collecting upon any of the foregoing exceptions (provided that the City shall pay to the Commission the Agency's reasonable court costs and attorneys' fees if the Commission is the prevailing party in any such enforcement or collection action). 11. The Commission waives presentment for payment, demand, protest, and notices of dishonor and of protest; the benefits of all waivable exemptions; and all defenses and pleas on the ground of any extension or extensions of the time of payment or of any due date under this Note, in whole or in part, whether before or after maturity and with or without notice. The Commission hereby agrees to pay all costs and expenses, including reasonable attorney's fees, which may be incurred by the holder hereof, in the enforcement of this Note, the Cooperation Agreement or any term or provision thereof. 12. Upon the failure of Commission to perform or observe any other term or provision of this Note, upon any event of acceleration described in Section 8, or upon the occurrence of any other event of default under the terms of the Cooperation Agreement, the holder may exercise its rights or remedies hereunder or thereunder. 13. (a) Subject to the extensions of time set forth in Section 14, and subject to the further provisions of this Section 13, failure or delay by the Commission to perform any material term or provision of this Note or the Cooperation Agreement constitutes a default under this Note. (b) The City shall give written notice of default to the Agency, specifying the default complained of by the City. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default. (c) Any failures or delays by the City in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies. Delays by the City in asserting any of its rights and remedies shall not deprive the City of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert, or enforce any such rights or remedies. (d) If a monetary event of default occurs under the terms of this Note or the Cooperation Agreement, prior to exercising any remedies hereunder or thereunder, the City shall give to the Commission written notice of such default. The Commission shall have a reasonable period of time after such notice is given within which to cure the default prior to exercise of any remedies by the City under this Note and/or the Cooperation Agreement. In no event shall the City be precluded from exercising any remedies if its security becomes or is about to become materially impaired by any failure to cure a default or the default is not cured within ten (10) calendar days after the notice of default is received or deemed received. (e) If a non -monetary event of default occurs under the terms of this Note or the Cooperation Agreement, prior to exercising any remedies hereunder or thereunder, the City shall give to the Commission written notice of such default. If the default is reasonably capable of being cured within thirty (30) calendar days after such notice is received or deemed received, the Commission shall have such period to effect a cure prior to exercise of any remedies by the -5- City under this Note and/or the Cooperation Agreement. If the default is such that it is not reasonably capable of being cured within thirty (30) calendar days, and the Commission(i) initiates corrective action within said period, and (ii) diligently and in good faith works to effect a cure as soon as possible, then the Commission shall have such additional time as is reasonably necessary to cure the default prior to exercise of any remedies by the City. In no event shall the City be precluded from exercising remedies if its security becomes or is about to become materially jeopardized by any failure to cure a default or the default is not cured within ninety (90) calendar days after the notice of default is received or deemed received. (f) Any notice of default that is transmitted by electronic facsimile transmission followed by delivery of a "hard" copy, shall be deemed delivered upon its transmission; any notice of default that is personally delivered (including by means of professional messenger service, courier service such as United Parcel Service or Federal Express, or by U.S. Postal Service), shall be deemed received on the documented date of receipt by Borrower; and any notice of default that is sent by registered or certified mail, postage prepaid, return receipt required shall be deemed received on the date of receipt thereof. I4. Notwithstanding specific provisions of this Note, the Commission shall not be deemed to be in default for failure to perform any non -monetary performance hereunder where delays or defaults are due to war, insurrection, strikes, Iock-outs, riots, floods, earthquakes, fires, casualties, acts of God, acts of the public enemy, epidemics, quarantine restrictions, freight embargoes, lack of transportation, governmental restrictions or priority, litigation, unusually severe weather, inability to secure necessary labor, material or tools, delays of any contractor, sub -contractor or supplier, acts of the City or any other public or governmental Commission or entity, or any causes beyond the control or without the fault of the Commission ("Force Majeure Event"). An extension of time for any such Force Majeure Event shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause of the Force Majeure Event, if notice by the Commission is sent to the City within thirty (30) calendar days of knowledge of the commencement of such cause. Notwithstanding the foregoing, none of the foregoing events shall constitute a Force Majeure Event unless and until the Commission delivers to the City written notice describing the event, its cause, when and how the Commission obtained knowledge, the date and the event commenced, and the estimated delay resulting therefrom. The Commission shall deliver such written notice within thirty (30) calendar days after it obtains actual knowledge of the Force Majeure Event. Times of performance under this Note may also be extended in writing by the City and the Agency. 15. If the rights created by this Note shall be held by a court of competent jurisdiction to be invalid or unenforceable as to any part of the obligations described herein, the remaining obligations shall be completely performed and paid. 16. The Commission shall have the right to prepay the obligation evidenced by this Note, or any part thereof, without penalty. IN WITNESS WHEREOF, the Commission has executed this Note as of the day and year set forth above. -6- Attest: BORROWER COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY By: By: Mike Dalla, City Clerk Brad Raulston, Executive Director APPROVED AS TO FORM: By: General Counsel APPROVED AS TO FORM: Kane Bailmer & Berkman By: Commission Special Counsel 7 EXHIBIT 4 DEED OF TRUST [behind this page] OFFICIAL BUSINESS. Document entitled to free recording per Government Code Section 6103. Recording Requested by and When Recorded Mail to: OFFICE OF CITY MANAGER CITY OF NATIONAL CITY 1243 National City Boulevard National City, California 91950-4379 SPACE ABOVE THIS LINE FOR RECORDER'S USE [LIST OF APNS FOR PROPERTIES] DEED OF TRUST, SECURITY AGREEMENT AND FIXTURE FILING (WITH ASSIGNMENT OF RENTS) This Deed of Tnist, Security Agreement and Fixture Filing (With Assignment of Rents)(the "Deed of Trust") is given as of the date signed by the COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY, a public body corporate and politic (hereinafter referred to as "Trustor") whose address is 1243 National City Boulevard, National City, California 91950-4379, to [Name] Title Company, a California corporation (hereinafter called "Trustee"), for the benefit of the CITY OF NATIONAL CITY, a municipality (hereinafter called "Beneficiary"), whose address is 1243 National City Boulevard, National City, California 91950- 4379. Witnesseth: That Trustor IRREVOCABLY GRANTS, TRANSFERS AND ASSIGNS to Trustee, its successors and assigns, in trust, with POWER OF SALE TOGETHER WITH RIGHT OF ENTRY AND POSSESSION the following properties (the "Trust Estate"): (a) That certain real property in the City of National City, County of San Diego, State of California more particularly described and enumerated in Exhibit "A" attached hereto and by this reference made a part hereof (such interest in real property is hereafter referred to as the "Subject Property"); (b) All buildings, structures and other improvements now or in the future located or to be constructed on the Subject Property (the "Improvements"); (c) all tenements, hereditaments, appurtenances, privileges, franchises and other rights and interests now or in the future benefitting or otherwise relating to the Subject Property or the Improvements, including easements, rights -of -way and development rights (the Deed of Trust Page 1 of 9 "Appurtenances"). (The Appurtenances, together with the Subject Property and the Improvements, are hereafter referred to as the "Real Property"); (d) subject to the assignment to Beneficiary set forth in Paragraph 4 below, all rents, issues, income, revenues, royalties and profits now or in the future payable with respect to or otherwise derived from the Trust Estate or the ownership, use, management, operation leasing or occupancy of the Trust Estate, including those past due and unpaid (the "Rents"); (e) all present and future right, title and interest of Trustor in and to all inventory, equipment, fixtures and other goods (as those terms are defined in Division 9 of the California Uniform Commercial Code (the "UCC"), and whether existing now or in the future) now or in the future located at, upon or about, or affixed or attached to or installed in, the Real Property, or used or to be used in connection with or otherwise relating to the Real Property or the ownership, use, development, construction, maintenance, management, operation, marketing, leasing or occupancy of the Real Property, including fumiture, furnishings, theater equipment, seating, machinery, appliances, building materials and supplies, generators, boilers, furnaces, water tanks, heating ventilating and air conditioning equipment and all other types of tangible personal property of any kind or nature, and all accessories, additions, attachments, parts, proceeds, products, repairs, replacements and substitutions of or to any of such property, but not including personal property that is donated to Trustor (the "Goods," and together with the Real Property, the "Property"); and (f) all present and future right, title and interest of Trustor in and to all accounts, general intangibles, chattel paper, deposit accounts, money, instruments and documents (as those terms are defined in the UCC) and all other agreements, obligations, rights and written material (in each case whether existing now or in the future) now or in the future relating to or otherwise arising in connection with or derived from the Property or any other part of the Trust Estate or the ownership, use, development, construction, maintenance, management, operation, marketing, leasing, occupancy, sale or financing of the property or any other part of the Trust Estate, including (to the extent applicable to the Property or any other portion of the Trust Estate) (i) permits, approvals and other governmental authorizations, (ii) improvement plans and specifications and architectural drawings, (iii) agreements with contractors, subcontractors, suppliers, project managers, supervisors, designers, architects, engineers, sales agents, leasing agents, consultants and property managers, (iv) takeout, refinancing and permanent loan commitments, (v) warranties, guaranties, indemnities and insurance policies, together with insurance payments and unearned insurance premiums, (vi) claims, demands, awards, settlements, and other payments arising or resulting from or otherwise relating to any insurance or any loss or destruction of, injury or damage to, trespass on or taking, condemnation (or conveyance in lieu of condemnation) or public use of any of the Property, (vii) license agreements, service and maintenance agreements, purchase and sale agreements and purchase options, together with advance payments, security deposits and other amounts paid to or deposited with Trustor under any such agreements, (viii) reserves, deposits, bonds, deferred payments, refunds, rebates, discounts, cost savings, escrow proceeds, sale proceeds and other rights to the payment of money, trade names, trademarks, goodwill and all other types on intangible personal property of any kind or nature, and (ix) all supplements, modifications, amendments, renewals, extensions, proceeds, replacements and substitutions of or to any of such property (collectively the "Intangibles"). Deed of Trust Page 2 of 9 Trustor further grants to Trustee and Beneficiary, pursuant to the UCC, a security interest in all present and future right, title and interest of Trustor in and to all Goods and Intangibles and all of the Trust Estates described above in which a security interest may be created under the UCC (collectively, the "Personal Property"). This Deed of Trust constitutes a security agreement under the UCC, conveying a security interest in the Personal Property to Trustee and Beneficiary. Trustee and Beneficiary shall have, in addition to all rights and remedies provided herein, all the rights and remedies of a "secured party" under the UCC and other applicable California law. Trustor covenants and agrees that this Deed of Trust constitutes a fixture filing under Sections 9313, 9502 and 14109 of the UCC. FOR THE PURPOSE OF SECURING due, prompt and complete observance, performance and discharge of each and every condition, obligation, covenant and agreement contained herein or contained in that certain promissory note (the "Note"), dated on or about the date hereof, executed by Trustor. The obligations and restrictions set forth in the Note (the "Secured Obligations") and all of their terms are incorporated herein by reference and this conveyance shall secure any and all extensions, amendments, modifications or renewals thereof however evidenced, and additional advances evidenced by any instrument reciting that it is secured hereby. AND TO PROTECT THE SECURITY OF THIS DEED OF TRUST, TRUSTOR COVENANTS AND AGREES: 1. That Trustor shall perform the obligations of the Agency as set forth in the Secured Obligations at the time and in the manner respectively provided therein; 2. That Trustor shall not permit or suffer the use of any of the property for any purpose other than the use for which the same was intended at the time this Deed of Trust was executed; 3. That the Secured Obligations are incorporated in and made a part of the Deed of Trust. Upon default of a Secured Obligation, and after the giving of notice and the expiration of any applicable cure period, the Beneficiary, at its option, may exercise its remedies hereunder. 4. That all rents, profits and income from the property covered by this Deed of Trust are hereby assigned to the Beneficiary for the purpose of discharging the debt hereby secured. Permission is hereby given to Trustor so long as no default exists hereunder after the giving of notice and the expiration of any applicable cure period, to collect such rents, profits and income. 5. That upon default hereunder or under the aforementioned Secured Obligations, or any of them, and after the giving of notice and the expiration of any applicable cure period, Beneficiary shall be entitled to the appointment of a receiver by any court having jurisdiction, without notice, to take possession and protect the property described herein and operate same and collect the rents, profits and income therefrom; 6. That Trustor will keep the improvements now existing or hereafter erected on the property insured against loss by fire and such other hazards, casualties, and contingencies as may Deed of Trust Page 3 of 9 reasonably be required in writing from time to time by the Beneficiary, and all such insurance shall be evidenced by standard fire and extended coverage insurance policy or policies. In no event shall the amounts of coverage be less than 100 percent of the insurable value of the Property. Such policies shall be endorsed with standard mortgage clause with loss payable to the Beneficiary and certificates thereof together with copies of original policies shall be deposited with the Beneficiary; 7. To pay, at least 10 days before delinquency, any taxes and assessments affecting said Property; to pay, when due, all encumbrances, charges and liens, with interest, on said Property or any part thereof which appear to be prior or superior hereto; and to pay all costs, fees, and expenses of this Trust. Notwithstanding anything to the contrary contained in this Deed of Trust, Trustor shall not be required to pay and discharge any such tax, assessment, charge or levy so long as Trustor is contesting the legality thereof in good faith and by appropriate proceedings, and Trustor has adequate funds to pay any liabilities contested pursuant to this Section 7. 8. To keep said property in good condition and repair, subject to ordinary wear and tear, casualty and condemnation, not to remove or demolish any buildings thereon; to complete or restore promptly and in good and workmanlike manner any building which may be constructed, damaged, or destroyed thereon and to pay when due all claims for labor performed and materials furnished therefor; to comply with all laws affecting said property or requiring any alterations or improvements to be made thereon (subject to Trustor's right to contest the validity or applicability of laws or regulations); not to commit or permit waste thereof; not to commit, suffer or permit any act upon said property in violation of law and/or covenants, conditions and/or restrictions affecting said property; not to permit or suffer any material alteration of or addition to the buildings or improvements hereafter constructed in or upon said property without the consent of the Beneficiary; 9. To appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of Beneficiary or Trustee, and to pay all costs and expenses, including cost of evidence of title and reasonable attorney's fees in a reasonable sum, in any such action or proceeding in which Beneficiary or Trustee may appear; 10. Should Trustor fail, after the giving of notice and the expiration of any applicable cure period, to make any payment or do any act as herein provided, then Beneficiary or Trustee, but without obligation so to do and without notice to or demand upon Trustor and without releasing Trustor from any obligation hereof, may make or do the same in such manner and to such extent as either may deem necessary to protect the security hereof. Following default, after the giving of notice and the expiration of any applicable cure period, Beneficiary or Trustee being authorized to enter upon said property for such purposes, may commence, appear in and/or defend any action or proceeding purporting to affect the security hereof or the rights or powers of Beneficiary or Trustee; may pay, purchase, contest, or compromise any encumbrance, charge, or lien which in the judgment of either appears to be prior or superior hereto; and, in exercising any such powers, may pay necessary expenses, employ counsel, and pay his reasonable fees; 11. Beneficiary shall have the right to pay fire and other property insurance premiums when due should Trustor fail to make any required premium payments. All such payments made by Deed of Trust Page 4 of 9 the Beneficiary shall be added to the indebtedness and obligations secured hereby in the Secured Obligations, or any other instrument drawn and agreed upon between the parties; 12. To pay immediately and without demand all sums so expended by Beneficiary or Trustee, under permission given under this Deed of Trust, with interest from date of expenditure at the rate of ten percent (10%) pursuant to Section 3289 of the California Civil Code; 13. Trustor further covenants that it will not voluntarily create, suffer, or permit to be created against the property subject to this Deed of Trust any lien or liens except as authorized by Beneficiary and further that they will keep and maintain the property free from the claims of all persons supplying labor or materials which will enter into the construction of any and all buildings now being erected or to be erected on said premises. Notwithstanding anything to the contrary contained in this Deed of Trust, Trustor shall not be obligated to pay any claims for labor, materials or services which Trustor in good faith disputes and is diligently contesting, provided that Trustor shall, at Beneficiary's written request, within thirty (30) days after the filing of any claim or lien (but in any event, and without any requirement that Beneficiary must first provide a written request, prior to foreclosure) record in the Office of the Recorder of San Diego County, a surety bond in an amount one -and -one-half (1') times the amount of such claim item to protect against a claim of lien, or provide such other security reasonably satisfactory to Beneficiary; 14. That any and all improvements made or about to be made upon the premises covered by the Deed of Trust, and all plans and specifications, comply with all applicable municipal ordinances and regulations and all other applicable regulations made or promulgated, now or hereafter, by lawful authority, and that the same will upon completion comply with all such municipal ordinances and regulations and with the rules of the applicable fire rating or inspection organization, bureau, association or office; and 15. Trustor herein agrees to pay to Beneficiary or to the authorized loan servicing representative of the Beneficiary a reasonable charge for providing a statement regarding the obligation secured by this Deed of Trust as provided by Section 2954, Article 2, Chapter 2 Title 14, Division 3, of the California Civil Code. IT IS MUTUALLY AGREED THAT: 16. Should the property or any part thereof be taken or damaged by reason of any public improvement or condemnation proceeding, or damaged by fire, or earthquake, or in any other manner, subject to the rights of any beneficiary of a deed of trust senior or junior in priority to this Deed of Tnist ("Lender"), Beneficiary shall be entitled to all compensation, awards, and other payments or relief therefor which are not used to reconstruct, restore or otherwise improve the property or part thereof that was taken or damaged, and shall be entitled at its option to commence, appear in and prosecute in its own name, any action or proceedings, or to make any compromise or settlement, in connection with such taking or damage. Unless Beneficiary approves of the rights of any Lender to the contrary, in addition to their rights herein, all such compensation, awards, damages, rights of action and proceeds which are not used to reconstruct, restore or otherwise improve the property or part thereof that was taken or damaged, including the proceeds of any policies of fire and other insurance affecting said property, are hereby assigned to Beneficiary. Deed of Trust Page 5 of 9 17. If Trustor shall fail to perform any covenant or agreement in this Deed of Trust or the Secured Obligations within thirty (30) days after written demand therefor by Beneficiary (or, in the event that more than 30 days is reasonably required to cure such default, should Trustor fail to promptly commence such cure, and diligently prosecute same to completion), after the giving of notice and the expiration of any applicable cure period, Beneficiary may deliver to Trustee a written declaration of default and demand for sale, and of written notice of default and of election to cause the property to be sold, which notice Trustee shall cause to be duly filed for record and Beneficiary may foreclose this Deed of Trust. Beneficiary shall also deposit with Trustee this Deed, the Secured Obligations and all documents evidencing expenditures secured hereby; 18. After the lapse of such time as may then be required bylaw following the recordation of said notice of default, and notice of sale having been given as then required by law, Trustee, without demand on Trustor, shall sell said property at the time and place fixed by it in said notice of sale, either as a whole or in separate parcels, and in such order as it may determine at public auction to the highest bidder for cash in lawful money of the United States, payable at time of sale. Trustee may postpone sale of all or any portion of said property by public announcement at the time and place of sale, and from time to time thereafter may postpone the sale by public announcement at the time and place of sale, and from time to time thereafter may postpone the sale by public announcement at the time fixed by the preceding postponement. Trustee shall deliver to the purchaser its Deed conveying the property so sold, but without any covenant or warranty, express or implied. The recitals in the Deed of any matters or facts shall be conclusive proof of the truthfulness thereof. Any person, including Trustor, Trustee or Beneficiary, may purchase at the sale. The Trustee shall apply the proceeds of sale to payment of (1) the expenses of such sale, together with the reasonable expenses of this trust including therein reasonable Trustee's fees or attorney's fees for conducting the sale, and the actual cost of publishing, recording, mailing and posting notice of the sale; (2) the cost of any search and/or other evidence of title procured in connection with such sale and revenue stamps on Trustee's Deed; (3) all consideration paid by Beneficiary as referred to in a Secured Obligation, with accrued interest at the highest rate of interest permitted bylaw; (4) all other sums then secured hereby; and (5) the remainder, if any, to the person or persons legally entitled thereto; 19. Beneficiary may from time to time substitute a successor or successors to any Trustee named herein or acting hereunder to execute this Trust. Upon such appointment, and without conveyance to the successor trustee, the latter shall be vested with all title, powers, and duties conferred upon any Trustee herein named or acting hereunder. Each such appointment and substitution shall be made by written instrument executed by Beneficiary, containing reference to this Deed of Trust and its place of record, which, when duly recorded in the proper office of the county or counties in which the property is situated, shall be conclusive proof of proper appointment of the successor trustee; 20. The pleading of any statute of limitations as a defense to any and all obligations secured by this Deed of Trust is hereby waived to the full extent permissible by law; Deed of Trust Page 6 of 9 21. Upon written request of Beneficiary stating that all obligations secured hereby have been satisfied, and upon surrender of this Deed of Trust to Trustee for cancellation and retention and upon payment of its fees, Trustee shall reconvey, without warranty, the property then held hereunder. The recitals in such reconveyance of any matters or fact shall be conclusive proof of the truthfulness thereof. The grantee in such reconveyance may be described as "the person or persons legally entitled thereto"; 22. The trust created hereby is irrevocable by Trustor; 23. This Deed of Trust applies to, inures to the benefit of, and binds all parties hereto, their heirs, legatees, devisees, administrators, executors, successors, and assigns. The term "Beneficiary" shall include not only the original Beneficiary hereunder but also any successors or assignees. In this Deed of Trust, whenever the context so requires, the masculine gender includes the feminine and/or neuter, and the singular number includes the plural. All obligations of Trustor hereunder are joint and several; 24. Trustee accepts this Trust when this Deed of Trust, duly executed and acknowledged, is made public record as provided by law. Except as otherwise provided by law the Trustee is not obligated to notify any party hereto of pending sale under this Deed of Trust or of any action of proceeding in which Trustor, Beneficiary, or Trustee shall be a party unless brought by Trustee; 25. The undersigned Trustor requests that a copy of any notice of default and of any notice of sale hereunder be mailed to Trustor at the address set forth in the first paragraph of this Deed of Trust. 26. Trustor agrees at any time and from time to time upon receipt of a written request from Beneficiary, to furnish to Beneficiary detailed statements in writing of income, rents, profits, and operating expenses of the premises, and the names of the occupants and tenants in possession, together with the expiration dates of their leases and full information regarding all rental and occupancy agreements, and the rents provided for by such leases and rental and occupancy agreements, and such other information regarding the premises and their use as may be requested by Beneficiary. 27. Trustor agrees that the indebtedness secured by this Deed of Trust is made expressly for the purpose , and in furtherance, of the responsibilities of Trustor as a redevelopment agency under the provisions of California's Community Redevelopment Law. 28. Notwithstanding specific provisions of this Deed of Trust, non -monetary performance hereunder shall not be deemed to be in default where delays or defaults are due to: war; insurrection; strikes; lock -outs; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions or priority; litigation; unusually severe weather; inability to secure necessary labor, materials or tools; delays of any contractor or supplier; acts of the other party; acts or failure to act of the City of San Diego or any other public or governmental agency or entity (except that any act or failure to act of Beneficiary shall not excuse performance by Beneficiary); or any other causes Deed of Trust Page 7 of 9 beyond the reasonable control or without the fault of the party claiming an extension of time to perform. An extension of time for any such cause (a "Force Majeure Delay") shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause. If, however, notice by the party claiming such extension is sent to the other party more than thirty (30) days after the commencement of the cause, the period shall commence to run only thirty (30) days prior to the giving of such notice. Times of performance under this Deed of Trust may also be extended in writing by the Beneficiary and Trustor. Notwithstanding the foregoing, none of the foregoing events shall constitute a Force Majeure Delay unless and until Trustor delivers to Beneficiary written notice describing the event, its cause, when and how Trustor obtained knowledge, the date the event commenced, and the estimated delay resulting therefrom. Trustor shall deliver such written notice within fifteen (15) days after it obtains actual knowledge of the event. 29. (a) Subject to the extensions of time set forth in Section 28, and subject to the further provisions of this Section 29, failure or delay by Trustor to perform any term or provision respectively required to be performed under a Secured Obligation or this Deed of Trust constitutes a default under this Deed of Trust. (b) Beneficiary shall give written notice of default to Trustor, specifying the default complained of by the Beneficiary. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default. (c) Any failures or delays by Beneficiary in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies. Delays by Beneficiary in asserting any of its rights and remedies shall not deprive Beneficiary of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert, or enforce any such rights or remedies. (d) If a monetary event of default occurs, prior to exercising any remedies, Beneficiary shall give Trustor written notice of such default. Trustor shall have a reasonable period of time after such notice is given within which to cure the default prior to exercise of remedies by Beneficiary under the Secured Obligations and/or this Deed of Trust. In no event shall Beneficiary be precluded from exercising remedies if its security becomes or is about to become materially impaired by any failure to cure a default or the default is not cured within ten (10) calendar days after the notice of default is received or deemed received. (e) If a non -monetary event of default occurs, prior to exercising any remedies, Beneficiary shall give Trustor notice of such default. If the default is reasonably capable of being cured within thirty (30) calendar days after such notice is received or deemed received, Trustor shall have such period to effect a cure prior to exercise of remedies by the Beneficiary. If the default is such that it is not reasonably capable of being cured within thirty (30) days, and Trustor (i) initiates corrective action within said period, and (ii) diligently and in good faith works to effect a cure as soon as possible, then Trustor shall have such additional time as is reasonably necessary to cure the default prior to exercise of any remedies by Beneficiary. In no event shall Beneficiary be precluded from exercising remedies if its security becomes or is about to become materially jeopardized by any Deed of Trust Page 8 of 9 failure to cure a default or the default is not cured within ninety (90) days after the notice of default is received or deemed received. (f) Any notice of default that is transmitted by electronic facsimile transmission followed by delivery of a "hard" copy, shall be deemed delivered upon its transmission; any notice of default that is personally delivered (including by means of professional messenger service, courier service such as United Parcel Service or Federal Express, or by U.S. Postal Service), shall be deemed received on the documented date of receipt by Trustor; and any notice of default that is sent by registered or certified mail, postage prepaid, return receipt required shall be deemed received on the date of receipt thereof. 30. This Deed of Trust shall be subordinate and junior to only those trust deeds Beneficiary expressly agrees to subordinate to in a written instrument approved by the Executive Director of the Trustor and City Manager of the Beneficiary, or their respective assignees. The Executive Director of the Trustor or City Manager of Beneficiary or their designee shall execute such instruments as may be necessary to subordinate the lien of this Deed of Trust and the Secured Obligation to the deed of trust described in this Section 30, above. In the event of a default or breach by Trustor of any security instrument securing a senior obligation described in this Section 30, Beneficiary shall have the right to cure the default prior to completion of any foreclosure. In such event, Beneficiary shall be entitled to reimbursement by Trustor of all costs and expenses incurred by Beneficiary in curing the default. The amount of any such disbursements shall be a lien against the Subject Property and added to the obligation secured by this Deed of Trust until repaid, with interest at the highest rate permitted by law. IN WITNESS WHEREOF Trustor has executed this Deed of Trust as of the day and year set forth above. Attest: CITY OF NATIONAL CITY By: By: City Clerk Chris Zapata, City Manager Attest: COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY By: By: City Clerk Brad Raulston, Executive Director APPROVED AS TO FORM: Deed of Trust Page 9 of 9 By: Commission General Counsel APPROVED AS TO FORM: Kane Ballmer & Berkman By: Commission Special Counsel Deed of Trust Page 10 of 9 State of California County of ) ss On before me, , a Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) LEGAL DESCRIPTION OF SUBJECT PROPERTY EXHIBIT "A" TO DEED OF TRUST, SECURITY AGREEMENT AND FIXTURE FILING (WITH ASSIGNMENT OF RENTS) EXHIBIT 5 PLEDGE AGREEMENT [behind this page] THIRD PARTY PLEDGE AGREEMENT TO: CITY OF NATIONAL CITY ("City") 1. GRANT OF SECURITY INTEREST. In consideration for City's assistance and cooperation in the implementation and completion of those certain Projects (defined below) set forth in that certain Cooperation Agreement dated February , 2011 entered into by City and the Community Development Commission of the City of National City ("Pledgor" or "Commission") ("Cooperation Agreement") and as security for the payment of all Indebtedness (defined below) of Pledgor to City, Pledgor hereby assigns, transfers to and pledges with City the following money and property: that certain bank account established at Wells Fargo, LAIF, Deutsche Bank for 2004 TAB account (bond reserve funds), Deutsche Bank — Trustee for 2005 TAB account (bond reserve funds), Bank of New York/Mellon — Trustee for 1999 TAB account (bond reserve funds), Gilford Securities, and all proceeds on deposit or to be deposited therein and rights to payment with respect to the foregoing, of Pledgor, together with all other money or property heretofore delivered or which shall hereafter be delivered to or come into the possession, custody or control of City in any manner or for any purpose whatsoever during the existence of this Agreement (collectively called "Collateral"), and whether held in a general or special account or deposit for safekeeping or otherwise, together with whatever is receivable or received when any Collateral or proceeds are sold, collected, exchanged or otherwise disposed of, whether such disposition is voluntary or involuntary, including without limitation, (a) all rights to payment, including returned premiums, with respect to any insurance relating to any of the foregoing, (b) all rights to payment of any Net Available Tax Increment (defined below), and (c) all rights to payment with respect to any cause of action affecting or relating to any of the foregoing, (hereinafter called "Proceeds"), and in the event that Pledgor receives any such Proceeds, Pledgor will hold the same in trust on behalf of and for the benefit of City and will immediately deliver all such Proceeds to City in the exact form received, to be held by City as part of the Collateral, subject to all terns hereof. The word "Indebtedness" is used herein in its most comprehensive sense and includes any and all advances, debts, obligations and liabilities of Pledgor heretofore, now or hereafter made, incurred or created, whether voluntary or involuntary and however arising, whether due or not due, absolute or contingent, liquidated or unliquidated, determined or undetermined, or whether recovery upon such Indebtedness may be or hereafter becomes unenforceable, including, without limitation, all amounts due under that certain Cooperation Agreement, including, without limitation, amounts equal to the cost to the City to carry out the Projects (defined below), including without limitation all costs incurred by the City for planning, acquisition and disposition, financing, development, permitting, design, site testing, bidding, construction and management of the Projects and Pledgor's obligation to make the payments set forth in the Payment Schedule attached to the Cooperation Agreement as Exhibit 2. The term Net available tax increment is defined as any tax increment generated from the Project Area, net of any amount required by the CRL to be set aside for purposes of increasing, improving or preserving the City's supply of low and moderate housing, any amounts paid to affected taxing agencies whether by statute or agreement and any amounts Pledge Agreement Page 1 of 10 paid to the State of California or the County of San Diego as required by statute or agreement, existing debt service payments, and existing contractual obligations received by the Commission or any lawful successor of the Commission and/or to any of the powers and rights of the Commission pursuant to any applicable constitutional provision, statute or other provision of law now existing or adopted in the future. The pledge of net available tax increment will constitute obligations to make payments authorized and incurred pursuant to Section 33445 and other applicable statutes. The obligations set forth in this Agreement will be contractual obligations that, if breached, will subject the Commission to damages and other liabilities or remedies. The term "Projects" as used herein shall collectively mean the projects associated with the Cooperation Agreement listed in the Schedule of Projects set forth in Exhibit 1 of the Cooperation Agreement. 2. CONTINUING AGREEMENT; REVOCATION; OBLIGATION UNDER OTHER AGREEMENTS. This is a continuing agreement and all rights, powers and remedies hereunder shall apply to all past, present and future Indebtedness of Pledgor to the City, including that arising under successive transactions which shall either continue the Indebtedness, increase or decrease it, or from time to time create new Indebtedness after all or any prior Indebtedness has been satisfied, and notwithstanding the death, incapacity, dissolution, liquidation or bankruptcy of Pledgor or any other event or proceeding affecting Pledgor. This Agreement shall not apply to any new Indebtedness created after actual receipt by City of written notice of its revocation as to such new Indebtedness; provided however, that contractual agreements made by the City to Pledgor to aid and cooperate with Pledgor in the implementation and completion of the Projects after revocation under commitments existing prior to receipt by City of such revocation, and extensions, renewals or modifications, of any kind, of Indebtedness incurred by the Pledgor prior to receipt by City of such revocation shall not be considered new Indebtedness. Any such notice must be sent to City by registered U.S. mail, postage prepaid, addressed to its office at: 1243 National City Boulevard National City, California 91950-4379 or at such other address as City shall from time to time designate. The obligations of Pledgor hereunder shall be in addition to any obligations of Pledgor under any other grants or pledges of security for any liabilities or obligations of Pledgor or any other person heretofore or hereafter given to City unless said other grants or pledges of security are modified or revoked in writing; and this Agreement shall not, unless herein provided, affect or invalidate any such other grants or pledges of security. 3. WAIVER OF STATUTE OF LIMITATIONS; REINSTATEMENT OF LIABILITY. Pledgor acknowledges that there is no condition precedent to the effectiveness of this Agreement and that this Agreement is in full force and effect and is binding on Pledgor as of the date written below, regardless of whether City obtains additional collateral or any guaranties from others or takes any other action contemplated by Pledgor. Pledgor waives the benefit of any statute of limitations affecting Pledgor's liability hereunder or the enforcement thereof, and Pledgor agrees that any payment of any Indebtedness or other act Pledge Agreement Page 2 of 10 which shall toll any statute of (imitations applicable thereto shall similarly operate to toll such statute of limitations applicable to Pledgor's liability hereunder. The liability of Pledgor hereunder shall be reinstated and revived and the rights of City shall continue if and to the extent for any reason any amount at any time paid on account of any Indebtedness secured hereby is rescinded or must be otherwise restored by City, whether as a result of any proceedings in bankruptcy, insolvency, reorganization or otherwise, all as though such amount had not been paid. The determination as to whether any amount so paid must be rescinded or restored shall be made by City in its sole discretion; provided however, that if City chooses to contest any such matter at the request of Pledgor, Pledgor agrees to indemnify and hold City harmless from and against all costs and expenses, including reasonable attorneys' fees, expended or incurred by City in connection therewith, including without limitation, in any litigation with respect thereto. 4. REPRESENTATIONS AND WARRANTIES. 4.1 Pledgor represents and warrants to City that: (i) Pledgor is the owner and has possession or control, or will have possession or control, of the Collateral and Proceeds; (ii) Pledgor has the right to pledge the Collateral and Proceeds; (iii) all Collateral and Proceeds are genuine, free from liens, adverse claims, setoffs, default, prepayment, defenses and conditions precedent of any kind or character, except as heretofore disclosed to City in writing; (iv) specifically with respect to Collateral and Proceeds consisting of investment securities, instruments, chattel paper, documents, contracts, insurance policies or any like property, all persons appearing to be obligated thereon have authority and capacity to contract and are bound as they appear to be, and the same comply with applicable laws concerning form, content and manner of preparation and execution; (v) all statements contained herein and, where applicable, in the Collateral are true and complete; and (vi) no financing statement covering any of the Collateral or Proceeds, and naming any secured party other than City, is on file in any public office. 4.2 Pledgor further represents and warrants to City that the Collateral pledged hereunder is so pledged at Pledgor's request. Pledgor agrees to keep adequately informed from such means of any facts, events or circumstances which might in any way affect Pledgor's risks hereunder. 5. COVENANTS OF PLEDGOR. 5.1 Pledgor agrees: (i) to indemnify City against all losses, claims, demands, liabilities and expenses of every kind caused by property subject hereto by reason of Government Code Section 895.2; (ii) to pay all costs and expenses, including reasonable attorneys' fees, incurred by City in the perfection, preservation, realization, enforcement and exercise of its rights, powers, and remedies hereunder, (iii) to permit City to exercise its powers; (iv) to execute and deliver such documents as City deems necessary to create, perfect and continue the security interests contemplated hereby; and (v) not to change its chief place of business or the place Pledge Agreement Page 3 of 10 where Pledgor keeps any of the Collateral or Pledgor's records concerning the Collateral and Proceeds without first giving City written notice of the address to which Pledgor is moving same. 5.2 Pledgor agrees with regard to Collateral and Proceeds: (i) not to permit any lien on the Collateral or Proceeds, except in favor of City; (ii) after an Event of Default, defined below, not to withdraw any funds from any deposit account pledged to City hereunder without City's prior written consent; (iii) not to sell, hypothecate or otherwise dispose of any of the Collateral or Proceeds, or any interest therein, without the prior written consent of City; (iv) to keep, in accordance with generally accepted accounting principles, complete and accurate records regarding all Collateral and Proceeds, and to permit City to inspect the same at any reasonable time; (v) not to commingle Collateral or Proceeds with other property, (vi) in the event City elects to receive payments of Collateral or Proceeds hereunder after an Event of Default that is continuing, to pay all expenses incurred by City in connection therewith, including expenses of accounting, correspondence, collection efforts, filing, recording, record keeping and expenses incidental thereto; (vii) to provide any service and do any other acts or things necessary to keep the Collateral and Proceeds free and clear of all defenses, rights of offset and counterclaims; and (viii) if the Collateral or Proceeds consists of securities and so long as no Event of Default exists, to vote said securities and to give consents, waivers and ratifications with respect thereto, provided that no vote shall be cast or consent, waiver or ratification given or action taken which would impair City's interest in the Collateral and Proceeds or be inconsistent with or violate any provisions of this Agreement. 6. POWERS OF CITY. Pledgor appoints City its true attorney in fact to perform any of the following powers, which are coupled with an interest, are irrevocable until termination of this Agreement and may be exercised from time to time by City `s officers, council members, agents and employees, or any of them, whether or not Pledgor is in default: (a) to perform any obligation of Pledgor hereunder in Pledgor's name or otherwise; (b) to notify any person obligated on any security, instrument or other document subject to this Agreement of City `s rights hereunder; (c) to collect by legal proceedings or otherwise all dividends, interest, principal or other sums now or hereafter payable upon or on account of the Collateral or Proceeds; (d) to enter into any extension, reorganization, deposit, merger or consolidation agreement, or any other agreement relating to or affecting the Collateral or Proceeds, and in connection therewith to deposit or surrender control of the Collateral and Proceeds, to accept other property in exchange for the Collateral and Proceeds, and to do and perform such acts and things as City may deem proper, with any money or property received in exchange for the Collateral or Proceeds, at City `s option, to be applied to the Indebtedness or held by City under this Agreement; (e) to make any compromise or settlement City deems desirable or proper in respect of the Collateral and Proceeds; (f) to insure, process and preserve the Collateral and Proceeds; (g) to exercise all rights, powers and remedies which Pledgor would have, but for this Agreement, under all the Collateral and Proceeds subject to this Agreement; and (h) to do all acts and things and execute all documents in the name of Pledgor or otherwise, deemed by City as necessary, proper or Pledge Agreement Page 4 of 10 convenient in connection with the preservation, perfection or enforcement of its rights hereunder. To effect the purposes of this Agreement or otherwise upon instructions of Pledgor, City may cause any Collateral and/or Proceeds to be transferred to City's name or the name of City's nominee. If an Event of Default has occurred and is continuing, any or all Collateral and/or Proceeds consisting of securities may by registered, with notice to Pledgor, in the name of City or its nominee, and thereafter City or its nominee may exercise, without notice, all voting and corporate rights at any meeting of the shareholders of the issuer thereof, any and all rights of conversion, exchange or subscription, or any other rights, privileges or options pertaining to any Collateral and/or Proceeds, all as if it were the absolute owner thereof. The foregoing shall include, without limitation, the right of City or its nominee to exchange, at its discretion, any and all Collateral and/or Proceeds upon the merger, consolidation, reorganization, recapitalization or other readjustment of the issuer thereof, or upon the exercise by the issuer thereof or City of any right, privilege or option pertaining to any shares of the Collateral and/or Proceeds, and in connection therewith, the right to deposit and deliver any and all of the Collateral and/or Proceeds with any committee, depository, transfer agent, registrar or other designated agency upon such terms and conditions as City may determine. All of the foregoing rights, privileges or options may be exercised without liability except to account for property actually received by City. City shall have no duty to exercise any of the foregoing, or any other rights, privileges or options with respect to the Collateral or Proceeds and shall not be responsible for any failure to do so or delay in so doing. 7. CASII COLLATERAL ACCOUNT; NO DISBURSEMENT. Any money received by City in respect of the Collateral may, at City's option, be retained in a non -interest bearing cash collateral account and the same shall, for all purposes, be deemed Collateral hereunder. No disbursement of all of the Collateral may be made without City's prior written consent, which may be given or withheld in City's sole and absolute discretion. 8. CITY'S CARE AND DELIVERY OF COLLATERIAL. City's obligation with respect to Collateral and/or Proceeds in its possession shall be strictly limited to the duty to exercise reasonable care in the custody and preservation of such Collateral and Proceeds, and such duty shall not include any obligation to ascertain or to initiate any action with respect to or to inform Pledgor of maturity dates, conversion, call or exchange rights, or offers to purchase the Collateral or Proceeds, or any similar matters, notwithstanding City's knowledge of the same. City shall have no duty to take any steps necessary to preserve the rights of Pledgor against prior parties, or to initiate any action to protect against the possibility of a decline in the market value of the Collateral or Proceeds. City shall not be obligated to take any actions with respect to the Collateral or Proceeds requested by Pledgor unless such request is made in writing and City determines, in its sole discretion, that the requested action would not unreasonably jeopardize the value of the Collateral and Proceeds as security for the Indebtedness. City may at any time deliver the Collateral and Proceeds, or any part thereof, to Pledgor, and the receipt thereof by Pledgor shall be a complete and full acquittance for the Collateral and Proceeds so delivered, and City shall thereafter be discharged from any liability or responsibility therefor. Pledge Agreement Page 5 of 10 9. PLEDGOR'S WAIVERS. 9.1 Pledgor waives any right to require City to make any presentments or demands for performance, or give any notices of nonperformance, protests, notices of protest or notices of dishonor in connection with any obligations or evidences of indebtedness held by City as security or which constitute in whole or in part the Indebtedness secured hereunder, or in connection with the creation of new or additional Indebtedness. 9.2 Pledgor waives any defense arising by reason of: (i) the cessation or limitation from any cause whatsoever, other than payment in full, of the Indebtedness by Pledgor; (ii) any lack of authority of any officer, board member, director, partner, agent or any other person acting or purporting to act on behalf of Pledgor which is a corporation, partnership or other type of entity, or any defect in the formation of Pledgor; (iii) any act or omission by City which directly or indirectly results in or aids the discharge of Pledgor or any Indebtedness by operation of law or otherwise; or (iv) any modification of the Indebtedness, in any form whatsoever, including any modification made after revocation hereof to any Indebtedness incurred prior to such revocation, and including without limitation, the renewal, extension, acceleration or other change in the terms of the Indebtedness, or any part thereof, including increase or decrease of the rate of interest thereon. Until all Indebtedness shall have been paid in full Pledgor waives all rights and defenses arising out of an election of remedies by City. Until all Indebtedness of the Pledgor to City shall have been paid in full, Pledgor further waives any right to enforce any remedy which City now has or may hereafter have against any other person or entity, and waives any benefit of, or any right to participate in, any security whatsoever now or hereafter held by City. 10. AUTHORIZATIONS TO CITY. Pledgor authorizes City either before or after revocation hereof, without notice or demand and without affecting Pledgor's liability hereunder, from time to time to: (a) alter, compromise, renew, extend, accelerate or otherwise change the time for payment of, or otherwise change the terms of the Indebtedness or any part thereof, including increase or decrease of the rate of interest thereon; (b) take and hold security, other than the Collateral and Proceeds, for the payment of the Indebtedness or any part thereof and exchange, enforce, waive and release the Collateral and Proceeds, or any part thereof, or any such other security; (c) after an Event of Default that is continuing, apply the Collateral and Proceeds or any other security and direct the order or manner of sale thereof, including without limitation, a non -judicial sale permitted by the terms of the controlling security agreement or deed of trust, as City in its discretion may determine; (d) release or substitute any one or more of the endorsers or guarantors of the Indebtedness, or any part thereof, or any other parties thereto; and (e) apply payments received by City from Pledgor to any Indebtedness of Pledgor to City, in such order as City shall determine in its sole discretion, whether or not any such Indebtedness is covered by this Agreement, and Pledgor hereby waives any provision of law regarding application of payments which specifies otherwise. City may assign this Agreement in whole or in part after providing written notice to Pledgor. Pledge Agreement Page 6 of 10 11. PAYMENT OF TAXES, CHARGES, LIENS AND ASSESSMENTS. Pledgor agrees to pay, prior to delinquency, all taxes, charges, liens and assessments against the Collateral and Proceeds, and upon the failure of Pledgor to do so, City at its option may pay any of them and shall be the sole judge of the legality or validity thereof and the amount necessary to discharge the same. Any such payments made by City shall be obligations of Pledgor to City, due and payable immediately upon demand, together with interest at a rate determined in accordance with the provisions of Section 15 herein, and shall be secured by the Collateral and Proceeds, subject to all terms and conditions of this Agreement. 12. EVENTS OF DEFAULT. The occurrence of any of the following shall constitute an "Event of Default" under this Agreement: (a) any default in the payment or performance of any obligation, or any defined event of default, under (i) any contract or instrument evidencing any Indebtedness, or (ii) any other agreement between Pledgor and City, including without limitation, the Cooperation Agreement and other related agreements any other obligation of Pledgor relating to or executed in connection with any Indebtedness; (b) any representation or warranty made by Pledgor herein shall prove to be incorrect in any material respect when made; (c) Pledgor shall fail to observe or perform any obligation or agreement contained herein; (d) any attachment or like levy on any property of Pledgor; and (e) City, in good faith, believes any or all of the Collateral and/or Proceeds to be in danger of misuse, dissipation, commingling, loss, theft, damage, or destruction, or otherwise in jeopardy or unsatisfactory in character or value. 13. REMEDIES. Upon the occurrence of any Event of Default, City shall have and may exercise without demand any and all rights, powers, privileges and remedies granted to a secured party upon default at law or in equity. All rights, powers, privileges and remedies of City shall be cumulative. City may exercise its lien or right of setoff with respect to the Indebtedness in the same manner as if the Indebtedness were unsecured. No delay, failure or discontinuance of City in exercising any right, power, privilege or remedy hereunder shall affect or operate as a waiver of such right, power, privilege or remedy; nor shall any single or partial exercise of any such right, power, privilege or remedy preclude, waive or otherwise affect any other or further exercise thereof or the exercise of any other right, power, privilege or remedy. Any waiver, permit, consent or approval of any kind by City of any default hereunder, or any such waiver of any provisions or conditions hereof, must be in writing and shall be effective only to the extent set forth in writing. While an Event of Default exists: (a) City may, at any time and at City's sole option, Liquidate any time deposits pledged to City hereunder, whether or not said time deposits have matured and notwithstanding the fact that such liquidation may give rise to penalties for early withdrawal of funds; (b) City may appropriate the Collateral and apply all Proceeds toward repayment of the Indebtedness in such order as City may from time to time elect or, at City `s sole option, place any Proceeds in the cash collateral account; and (c) at City's request, Pledgor will assemble and deliver all Collateral and Proceeds, and books and records pertaining thereto, to City at a reasonably convenient place designated by City. It is agreed that public or private sales, for cash or on credit, to a wholesaler or retailer or investor, or user of property of the types subject to this Agreement, or public auction, are all Pledge Agreement Page 7 of 10 commercially reasonable since differences in the sales prices generally realized in the different kinds of sales are ordinarily offset by the differences in the costs and credit risks of such sales. For any Collateral or Proceeds consisting of securities, City shall be under no obligation to delay a sale of any portion thereof for the period of time necessary to permit the issuer thereof to register such securities for public sale under any applicable state or federal law, even if the issuer thereof would agree to do so. 14. DISPOSITION OF COLLATERAL AND PROCEEDS. Upon the transfer of all or any part of the Indebtedness, City may transfer all or any part of the Collateral or Proceeds and shall be fully discharged thereafter from all liability and responsibility with respect to any of the foregoing so transferred, and the transferee shall be vested with all rights and powers of City hereunder with respect to any of the foregoing so transferred; but with respect to any Collateral or Proceeds not so transferred, City shall retain all rights, powers, privileges and remedies herein given. Any proceeds of any disposition of any of the Collateral or Proceeds, or any part thereof, may be applied by City to the payment of expenses incurred by City in connection with the foregoing, including reasonable attorneys' fees, and the balance of such proceeds may be applied by City toward the payment of the Indebtedness in such order of application as City may from time to time elect. 15. COSTS, EXPENSES AND ATTORNEYS' FEES. Pledgor shall pay to City immediately upon demand the full amount of all payments, advances, charges, costs and expenses, including reasonable attorneys' fees (to include outside counsel fees and all allocated costs of City 's legal counsel) (all such items collectively referred to as "Pledgor Reimbursement Obligations"), incurred by City in exercising any right, power, privilege or remedy conferred by this Agreement or in the enforcement thereof, including any of the foregoing incurred in connection with any bankruptcy proceeding relating to Pledgor or the valuation of the Collateral and/or Proceeds, including without limitation, the seeking of relief from or modification of the automatic stay or the negotiation and drafting of a cash collateral order. All of the foregoing shall be paid to City by Pledgor with interest at a rate per annum equal to the greater of ten percent (10%) or Prime Rate in effect from time to time from the date the Pledgor Reimbursement Obligations are incurred by the City. The "Prime Rate" is a base rate that J.P. Morgan Chase Bank from time to time establishes and which serves as the basis upon which effective rates of interest are calculated for its most creditworthy customers. 16. DISCLOSURE OF INFORMATION. Pledgor acknowledges that City has the right to sell, assign, transfer, negotiate or grant participations in all or any part of, or any interest in, any Indebtedness of Pledgor to City and any obligations with respect thereto, including this Agreement. In connection therewith, City may disclose all documents and information which City now has or hereafter acquires relating to Pledgor and this Agreement, whether furnished by Pledgor or otherwise. In the event of any such sale, assignment, transfer or participation, City and the parties to such transaction shall share in the rights and obligations of City as set forth in this Agreement only as and to the extent they agree among themselves. In connection with any such sale, assignment, transfer or participation, Pledgor further agrees that this Agreement shall be sufficient evidence of the obligations of Pledge Agreement Page 8 of 10 Pledgor to each purchaser, assignee, transferee or participant, and upon written request by City, Pledgor shall enter into such amendment or modification to this Agreement as may be reasonably required in order to evidence any such sale, assignment, transfer or participation. The indemnity obligations of Pledgor under this Agreement shall also apply with respect to any purchaser, assignee, transferee or participant. 17. GOVERNING LAW; SUCCESSORS, ASSIGNS. This Agreement shall be governed by and construed in accordance with the laws of the State of California, and shall be binding upon and inure to the benefit of the heirs, executors, administrators, legal representatives, successors and assigns of the parties. 18. SEVERABILITY OF PROVISIONS. If any provision of this Agreement shall be held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or any remaining provisions of this Agreement. 2011. IN WITNESS WHEREOF, this Agreement has been duly executed as of February PLEDGOR NATIONAL CITY REDEVELOPMENT COMMISSION Dated: By: Brad Raulston Executive Director ATTEST: Mike Dalla, City Clerk APPROVED AS TO FORM By: Claudia Gacitua Silva Commission General Counsel Pledge Agreement Page 9 of 10 KANE, BALLMER & BERKMAN By: Susan Y. Cola Commission Special Counsel Pledge Agreement Page 10 of 10 EXHIBIT 6 UCC-1 FINANCING STATEMENT [behind this page] ATTACHMENT UCC-1 Financing Statement Debtor: The Community Development Commission of the City of National City. Secured Party: The City of National City. Item 4: Collateral Description. This Financing Statement covers all of the following items and/or types of property, whether any of the foregoing is owned now or acquired later; all accessions, additions, replacements, and substitutions relating to any of the foregoing; all records of any kind relating to any of the foregoing; and all proceeds relating to any of the foregoing (including insurance, general intangibles and account proceeds): (1) Any and all general intangibles, instruments, documents, chattel paper, accounts, accounts receivable, cash, deposit accounts, contract rights and rights to payment pursuant to, or in any way now or hereinafter arising out of, in connection with or otherwise relating to (a) [that certain Cooperation Agreement] [that certain Option Agreement] [that certain Agreement for Right of First Refusal] dated as of , among the City of and the Debtor, that certain Promissory Note executed by the Debtor in favor of the City of dated as of ] as now existing or as it may hereinafter be amended, modified, supplemented, or superseded; (b) any and all related documents, instruments, and agreements, as now existing or as may be modified, supplemented, or amended from time to time; and (c) any and all present and future collateral, of whatever kind or nature, now or hereafter granted to secure payment and performance of any and all of the foregoing (collectively and severally referred to as the "Collateral"); and (2) Together with whatever is receivable or received when any of the Collateral or proceeds thereof are sold, assigned, transferred, collected, exchanged, or otherwise disposed of, whether such disposition is voluntary or involuntary, including without limitation (a) all accounts, contract rights, chattel paper, instruments, general intangibles, money and rights to payment of any kind now or hereafter arising from any such sale, assignment, transfer, collection, exchange, or other disposition of any of the foregoing; and (b) all rights to payment, including without limitation, rights to payment with respect to any cause of action affecting or relating to any of the foregoing (referred to as the "Proceeds"). UCC-1 ATTACHMENT COLLATERAL DESCRIPTION EXHIBIT 7 OPTION AGREEMENT WITH MEMORANDUM OF OPTION [behind this page] OPTION AGREEMENT THIS OPTION AGREEMENT (this "Agreement") is entered into this day of February , 2011, by and between the CITY OF NATIONAL CITY (the "City") and the COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY (the "Commission"), with reference to the following facts: A. The Commission owns, or within the term of this Agreement, will own, certain real property more particularly described on Exhibit "A" (the "Property"). B. The Commission desires to grant the City an option to purchase the Property from the Commission and the City wishes to reserve the right to purchase the Property from the Commission under the terms contained herein. C. The parties hereto wish to enter into a memorandum of option agreement and record such an instrument on any or all of the Property subject to this Agreement using the memorandum attached hereto as Exhibit `B". D. This Agreement is subject to the provisions of the Redevelopment Plan for the National City Redevelopment Project on July 17, 2007 by Ordinance No. 2007-2295 (the "Redevelopment Plan"). The Redevelopment Plan is incorporated herein by reference and made a part hereof as though fully set forth herein. NOW, THEREFORE, for good and valuable consideration paid by the City, receipt and sufficiency of which is acknowledged by the Commission, the parties hereto do mutually agree as follows: 1. Grant of Option. Commission hereby grants City, or its nominee, the option to purchase the Property, or any part thereof, on or before the latter of (a) the thirtieth (30th) anniversary of this Agreement or (b) last date for duration of the Redevelopment Plan, as set forth in Section XI therein ("Redevelopment Plan Effectiveness Date"). This option shall be exercisable only by written notice delivered by City to Commission as provided below. Upon the exercise of such option to purchase the Property and receipt by the Commission, City shall purchase the Property pursuant to the terms below. 2. Exercise of Option. The option contained herein shall be exercised by City, if at all, in the following manner: (i) City shall deliver written notice (the "Exercise Notice") to Commission not less than ten (10) days prior to the date of the proposed purchase of the Property by the City; the last date of written notice shall be the latter of (a) the thirtieth (30th) anniversary of this Agreement or (b) the Redevelopment Plan Effectiveness Date; (ii) Commission, after receipt of City's notice, shall deliver notice (the "Responsive Purchase Notice") to City prior to the proposed purchase date of the Property by the City, setting forth the proposed purchase price and such other terms necessary and appropriate to accomplish the purchase of the Property by City under the timeframes proposed by the City; and (iii) if City wishes to exercise such option Option Agreement Page 1 of 4 to purchase the Property, City shall, after City's receipt of the Responsive Purchase Notice, exercise the option by delivering the City's form of purchase and sale agreement and grant deed, modified for any particular parcel of Property, along with the consideration for the Property in the amount of the purchase price and identification of the day the grant deed is to be recorded in the office of the County Recorder (the "Closing Date"). The proposed grant deed for the Property or any part thereof shall include, among other things, express covenants requiring the Property to be devoted to the purposes set forth below. The purchase price for the Property shall be the fair market value of the Property. City and Commission shall meet to determine the fair market value of the Property. In the event the Commission and City are unable to agree on the fair market value, within forty-five (45) days of the Responsive Purchase Notice (the "Negotiation Period"), the fair market value shall be determined in accordance with the appraisal procedures set forth in the paragraph directly, below ("Fair Market Value Appraisal Process"). In the event the Commission and City are unable to agree upon the fair market value of the Property within the Negotiation Period, the Commission and City shall each appoint and pay for a Qualified Appraiser (as defined below) to determine the fair market value of the Property in accordance with the standards and procedures set forth below. Each Qualified Appraiser shall complete and submit an appraisal to the City and Commission on or prior to 5:00 p.m. Pacific time on the date that is sixty (60) days following the expiration of the Negotiation Period ("Notice of the Fair Market Value Appraisal"). If the appraisals differ, then the Fair Market Value shall be the average of the two (2) appraisals. Each of the Qualified Appraisers shall be instructed to appraise the Property (taking into consideration any improvements and infrastructure located thereon) for uses allowed under then applicable laws. As used herein, the term "Qualified Appraiser" shall mean an MAI appraiser with at least ten (10) consecutive years experience with similar properties in Southern California, with whom neither the Commission nor City is affiliated with. 3. Purpose. Any and all property purchased by the City pursuant to this Option may be used, sold or leased by the City for any municipal purpose, including, but not limited to, housing and public improvements, in conformance with the Redevelopment Plan. 4. Condition of Property. The Property is sold in its "as -is" condition on the Closing Date subject to the Redevelopment Plan and all encumbrances of record. 5. Memorandum. Concurrently with the execution hereof, Commission and City shall execute, acknowledge and cause to be recorded in the Official Records of San Diego County, California, the Memorandum of Option Agreement substantially in the form attached hereto as Exhibit "B." Upon the termination of this Agreement as provided herein or at the time of and concurrently with the closing of a sale of the Property, the parties agree to execute a quitclaim deed or other termination instrument in order to cause the memorandum to be terminated and removed of record. Option Agreement Page 2 of 4 6. Transferability of Right. The right of the City under this Agreement is fully transferable and assignable by the City without the consent of the Commission. 7. Expiration Date and Termination of Agreement. The City reserves the right to reduce or extend the time period in paragraph 1 which permits the City to purchase the Property on or before the latter of (a) the thirtieth (30th) anniversary of the Agreement or (b) the Redevelopment Plan Effectiveness Date. 8. Prorations. Title Insurance. Title and Escrow. The parties shall equally share all costs of escrow and prorations affecting the Property. Commission shall not voluntarily create and record any liens or encumbrances or other matters against the Property after receipt of the Exercise Notice. The Commission pay for City's requirements for a CLTA Commission's Policy of Title Insurance in favor of the City. Unless otherwise agreed upon by the parties in writing, the title insurer and escrow shall be [Name] Title Company, [address]. Said escrow agent shall instruct title insurer to deliver a title commitment to the City upon receipt of the Exercise Notice. 9. This Agreement shall be binding on and shall inure to the benefit of all successors and assigns of the parties, whether by agreement or operation of law. This Agreement may be signed in any number of counterparts and delivered by facsimile. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above. AI"1'EST: CITY OF NATIONAL CITY By: By: City Clerk Chris Zapata, City Manager ATTEST: COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY By: By: City Clerk Brad Raulston, Executive Director APPROVED AS TO FORM: By: General Counsel APPROVED AS TO FORM: Option Agreement Page 3 of 4 Kane Balimer & Berkman By: Commission Special Counsel Option Agreement Page 4 of 4 EXHIBIT "A" The "Property" Assessor Parcel Number: EXHIBIT "B" RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City of National City 1243 National City Blvd National City, CA 91950 APN: MEMORANDUM OF OPTION AGREEMENT 1. Parties; and Property. This memorandum of option agreement is entered into by the COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY, a public entity, corporate and politic ("Commission") and CITY OF NATIONAL CITY, a municipality ("City") concerning real property located in the City of National City and County of San Diego, State of California, as more fully described in the attached Exhibit "1" (the "Property"). 2. Memorandum. For good and valuable consideration received, the Commission, as current fee Commission of the Property, acknowledges that Commission and City have entered into an option agreement (the "Option Agreement") permitting the City to purchase the Property from the Commission under the terms and conditions thereof for a term of Thirty (30) years from the date this instrument is signed, unless otherwise changed or modified by the terms of the Option Agreement. 3. Not Complete Summary. This instrument is not a complete summary of the Option Agreement. Provisions herein shall not be used in interpreting the Option Agreement. 4. Prohibition against Discrimination and Segregation. City covenants and agrees for itself, its successors, its assigns and every successor in interest to the Property or any part thereof or interest therein, there shall be no discrimination against or segregation of any person, or group of persons, on account of sex, sexual orientation, marital status, race, color, creed, religion, ancestry or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property nor shall City, itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees of the Property. All deeds, leases or contracts shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: Option Agreement Page 6 a. In deeds: "The grantee herein covenants by and for himself or herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed, nor shall the grantee or any person claiming under or through him or her, establish or permit any practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vcndees in the premises herein conveyed. The foregoing covenants shall run with the land." Notwithstanding the preceding paragraph, the provisions relating to discrimination on the basis of familial status shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of the Government Code nor be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall also apply to the preceding paragraph. b. In leases: "The lessee herein covenants by and for himself or herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or through him or her, and this lease is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of persons, on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants, lessees, sublessees, subtenants, or vendees in the premises herein leased." Notwithstanding the preceding paragraph, the provisions relating to discrimination on the basis of familial status shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of the Government Code nor be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision (d) of Section 51 Option Agreement Page 7 and Section 1360 of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall also apply to the preceding paragraph. c. In contracts: "There shall be no discrimination against or segregation of any person or group of persons, on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (I) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the land, nor shall the transferee itself or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants, lessees, sublessees, subtenants, or vendees of the land." 5. Purpose. This instrument is prepared for recordation purposes only, and in no way modifies the terms, conditions, provisions and covenants of the Option Agreement. In the event of any inconsistency between the terms, conditions, provisions and covenants of this instrument and the Option Agreement, the terms, conditions and covenants of the Option Agreement shall prevail. The parties hereto have executed this instrument on the dates specified immediately beside their respective signatures. This document may be executed and acknowledged before a notary public with counterpart signature and acknowledgment pages, each of which shall be deemed an original and which, when taken together, shall constitute the fully -executed instrument. Al'1'EST: CITY OF NATIONAL CITY By: By: City Clerk Chris Zapata, City Manager ATTEST: COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY By: By: City Clerk Brad Raulston, Executive Director APPROVED AS TO FORM: By: City Attorney Option Agreement Page 8 APPROVED AS TO FORM: Kane Ballmer & Berkman By: Commission Special Counsel Option Agreement Page 9 Exhibit "1" to Memorandum of Option Agreement Legal Description of Property The land is situated in the State of California, County of and is described as follows; [to be inserted] APN State of California County of ACKNOWLEDGMENT PAGE TO MEMORANDUM OF OPTION AGREEMENT ) ) ) On before me, , a Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) State of California County of ) ) ) On before me, , a Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) EXHIBIT 8 COMMISSION PROPERTIES SUBJECT OF OPTION AGREEMENT [PROVIDE LEGAL DESCRIPTION OR APNs] CITY OF NATIONAL CITY, CALIFORNIA COMMUNITY DEVELOPMENT COMMISSION AGENDA STATEMENT MEETING DATE: February 15, 2011 AGENDA ITEM NO.213 EM TITLE: IA resolution of the Community Development Commission ("CDC") of the City of National City authorizing the Chairman to execute a Property Management Agreement by and between the CDC and City of National City. (Tax Increment Fund, Low -Mod Set Aside Fund). PREPARED BY: Patricia Beard DEPARTMENT: Redevelo nt Division PHONE: 142551 APPROVED BY - EXPLANATION: Since its formation in 1969, the CDC has acquired several properties (land and structures) for three primary purposes: development and operation of affordable housing (for example Morgan and Kimball Towers), redevelopment for economic development purposes (for example Marina Gateway sites), and to be protected as historical and cultural assets (for example, the Stein Farm). In order to provide on- going maintenance, protection and security for these sites, staff is recommending the attached Property Management Agreement between the CDC and City be approved. The Agreement establishes funding for the required property management services for eight years, to be extended at the desire of either entity until 2036. The payment to the City is established at an amount considered to be adequate currently and could be adjusted by the parties in the future, should costs either increase or decrease. The initial amount is based on costs incurred by the CDC for its properties over the past three years, excluding capital improvement costs and/or administrative costs for staff time. A list of the properties to ho managed is attached, as Exhibit B, to the Agreement. FINANCIAL STATEMENT: APPROVED: Finance ACCOUNT NO. this Agreement would provide $556,468 annually in tax increment funds and low - moderate housing set aside funds to the City to maintain CDC owned properties. These costs are funded through operating accounts of the City.' ENVIRONMENTAL REVIEW: Not applicable, ORDINANCE: INTRODUCTION: FINAL ADOPTION: STAFF RECOMMENDATION: Adopt the resolution BOARD / COMMISSION RECOMMENDATION: ATTACHMENTS: Proposed Agreement. RESOLUTION NO. 2011 — RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY AUTHORIZING THE CHAIRMAN TO EXECUTE A PROPERTY MANAGEMENT AGREEMENT BY AND BETWEEN COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY AND THE CITY OF NATIONAL CITY WHEREAS, the Community Development Commission of the City of National City ("CDC") has acquired a variety of real estate parcels and structures (the "Properties"), as allowed under the California Redevelopment Law Section 33391 for the purposes of developing and operating affordable housing, to hold for redevelopment for economic development purposes, and as public properties held in perpetuity as historic and cultural resources; and WHEREAS, the CDC desires for the City to maintain said Properties as identified in Exhibit "A", attached hereto; and WHEREAS, the CDC shall allocates current and future property tax increment and low -mod housing set -aside funds to manage the properties for a period of eight (8) years, with continuing options to extend the term in five (5) year increments, as desired by either party, until May 16, 2036; and WHEREAS, the City desires to maintain said Properties for the purposes as defined in the Redevelopment Plan for the National City Redevelopment Project; and WHEREAS, the CDC will pay the City for property management services and related expenses at an annual rate of $556,468, which may be adjusted between the parties as expenses increase or decrease. NOW, THEREFORE, BE IT RESOLVED that the Community Development Commission of the City of National City hereby authorizes the Chairman to execute the Property Management Agreement by and between the Community Development Commission of the City of National City and the City of National City. PASSED and ADOPTED this 15th day of February, 2011. Ron Morrison, Chairman ATTEST: Brad Raulston, Secretary APPROVED AS TO FORM: Claudia G. Silva CDC General Counsel 72 921 National City Blvd 73 929 National City Blvd 74 921 A Avenue 75 130 E. 8th St 76 1028 A Ave 77 500 E. Plaza Blvd 78 1640 E. Plaza Blvd 79 Sheryl Lane 80 1231 McKinley Ave 81 1237 McKinley Ave 82 1239 McKinley Ave 83 900 W. 23rd St 85 405 W. 18th St 86 Cleveland Ave 87 2300 Cleveland Ave 88 830 W 23rd St 89 835 E 24th St 90 801 Bay Marina Dr 91 No Site Address 92 F Ave 93 E Ave 94 1845E Ave 95 1808 F Ave 97 98 99 100 101 102 103 No Site Address No Site Address No Site Address 1221 D Ave No Site Address No Site Address National City Blvd EXHIBIT A LIST OF CDC PROPERTIES Former Ed. Center Steamed Bean Kimball House H&M Goodies Avenue A Housing Lamb's Theatre Days Inn Habitat For Humanity McKinley Parcels McKinley Parcels McKinley Parcels Santa Fe Depot Westside Housing Site . Marina Gateway Marina Gateway Marina Gateway Marina Gateway Marina Gateway Stein Farm Stein Farm Stein Farm Stein Farm Kimball/Morgan Towers Kimball/Morgan Towers Kimball/Morgan Towers Kimball/Morgan Towers RCP 556 471 03 CDC of National City 556 471 04 CDC of National City 556 472 16 CDC of National City 556 472 26 CDC of National City 556 553 08 CDC of National City 556 560 39 CDC of National City 557 410 20 CDC of National City 557 430 37 CDC of National City 559 022 05 CDC of National City 559 022 07 CDC of National City 559 022 08 CDC of National City 559 040 43 01 CDC of National City 559 085 08 CDC of National City 559 117 04 CDC of National City 559 117 05 CDC of National City 559 117 06 CDC of National City 559 117 07 CDC of National City 559 117 12 CDC of National City 560 050 13 CDC of National City 560 232 02 CDC of National City 560 232 04 CDC of National City 560 232 05 CDC of National City 560 232 06 CDC of National City 560 410 02 CDC of National City 560 410 04 CDC of National City 560 410 05 CDC of National City 560 410 06 CDC of National City 560 410 08 CDC of National City 562 251 39 CDC of National City 562 321 08 CDC of National City PROPERTY MANAGEMENT AGREEMENT BY AND BETWEEN THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY AND THE CITY OF NATIONAL CITY FOR PROPERTY MANAGEMENT SERVICES THIS Agreement is made and entered into by and between the Community Development Commission of the City of National City [CDC], and the City of National City[City] for the City to provide Property Management Services for CDC owned properties. ARTICLE 1 PROPERTY MANAGEMENT SERVICES 1.1 Scope of Services. The City shall perform the Property Management Services as set forth in the written Scope of Services [Exhibit A] at the direction of the CDC for the properties listed in the List of CDC Properties [Exhibit B]. ARTICLE 11 DURATION OF AGREEMENT 2.1 Term of Agreement. This Agreement shall be effective on the date it is executed by the last party to sign the Agreement, and shall have a term of eight (8) years ("Term"), with continuing options to extend the Term in five (5) year increments, as desired by either party, until May 16, 2036. ARTICLE III COMPENSATION -Page 1 of 6 — Property Management Agreement 3.1 Amount of Compensation. The CDC shall pay the City for performance of all Property Management Services rendered in accordance with this Agreement, including reasonably related expenses, at the annual rate of $556,468 per fiscal year [Annual Fee], which may be adjusted, from time to time, by mutual agreement of the parties as expenses increase or decrease. 3.2 Manner of Payment. The CDC shall pay City the Annual Fee within thirty (30) calendar days after the end of the fiscal year for which Property Management Services were performed. 3.3 Additional Services. The CDC may require that the City perform additional Property Management Services beyond those described in the Scope of Services [Additional Services]. Prior to the City's performance of Additional Services, the CDC and the City must agree in writing upon a fee for the Additional Services, including reasonably related expenses. The CDC will pay the City for the performance of Additional Services in accordance with Section 3.2. ARTICLE IV CITY'S OBLIGATIONS 4.1 Property Management Standards. The City agrees that the Property Management Services rendered under this Agreement shall be performed in accordance with the standards customarily adhered to by an experienced and competent property management firm using the degree of care and skill ordinarily exercised by reputable professionals practicing in the same field of service in the State of California. 4.2 Maintenance of Records. The City shall maintain books, records, Togs, documents and other evidence sufficient to record all actions taken with respect to the rendering of the Property Management Services. The City further agrees to allow the CDC to inspect, copy, and audit such books, records, documents and other evidence at all reasonable times. ARTICLE V INDEMNIFICATION 5.1 Indemnification. In contemplation of the provisions of California Government Code section 895.2 imposing certain tort liability jointly upon public entities solely by reason of such entities being parties to an agreement as defined by -Page 2 of 6 — Property Management Agreement Government Code section 895, the parties hereto, as between themselves, pursuant to the authorization contained in Government Code sections 895.4 and 895.6, shall each assume the full liability imposed upon it, or any of its officers, agents or employees, by law for injury caused by negligent or wrongful acts or omissions occurring in the performance of this Agreement to the same extent that such liability would be imposed in the absence of Government Code section 895.2. To achieve the above -stated purpose, each party indemnifies, defends and holds harmless the other party for any liability, losses, cost or expenses that may be incurred by such other party solely by reason of Government Code section 895.2. ARTICLE VI MISCELLANEOUS 6.1 Jurisdiction and Venue. The venue for any suit or proceeding concerning this Agreement, the interpretation or application of any of its terms, or any related disputes shall be in the County of San Diego, State of California. 6.2 Conflicts Between Terms. If an apparent conflict or inconsistency exists between the main body of this Agreement and the Exhibits, the main body of this Agreement shall control. If a conflict exists between an applicable federal, state, or local law, rule, regulation, order, or code and this Agreement, the law, rule, regulation, order, or code shall control. Varying degrees of stringency among the main body of this Agreement, the Exhibits, and laws, rules, regulations, orders, or codes are not deemed conflicts, and the most stringent requirement shall control. Each Party shall notify the other immediately upon the identification of any apparent conflict or inconsistency concerning this Agreement. 6.3 Notices. in all cases where written notice is required under this Agreement, service shall be deemed sufficient if the notice is deposited in the United States mail, postage paid. Proper notice shall be effective on the date it is mailed, unless provided otherwise in this Agreement. For the purpose of this Agreement, unless otherwise agreed in writing, notice to the City shall be addressed to: 1243 National City Boulevard, National City, CA, 91950, Attn: City Manager and notice to the CDC shall be addressed to: 1243 National City Boulevard, National City, CA 91950, Attn: Executive Director. 6.4 Exhibits Incorporated. All Exhibits referenced in this Agreement are incorporated into the Agreement by this reference. -Page 3 of 6 — Property Management Agreement 6.5 Binding on Successors. This Agreement shall be binding on and shall inure to the benefit of all successors and assigns of the parties, whether by agreement or operation of law. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above. Attest: CITY OF NATIONAL CITY By: By: Mike Dalla, City Clerk Ron Morrison, Mayor Attest: By: By: Brad Raulston, Secretary APPROVED AS TO FORM: By: Claudia Gacitua Silva City Attorney APPROVED AS TO FORM: Kane Ballmer & Berkman -Page 4 of 6 — Property Management Agreement COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY Ron Morrison, Chairman By: Commission Special Counsel -Page 5 of 6 — Property Management Agreement EXHIBIT A SCOPE OF SERVICES Essential Duties 1.Implements property management and marketing plans to include marketing and maintenance of CDC owned property. 2. Negotiates leases for CDC owned property; monitors and manages lease agreements, maintenance, and other contracts for CDC property; oversees the ongoing maintenance, security and repair activities for leased property. 3. Prepares, coordinates, and monitors the program budget for property management functions. 4. Represents the CDC in relocation processes. 5. Prepares written and oral reports on property management activities; provides report information to the CDC Board or citizen advisory committees, as required; responds to public inquiries regarding CDC owned property and property management activities. -Page 6 of 6 — Property Management Agreement EXHIBIT B LIST OF CDC PROPERTIES -Page 7 of 6 — Property Management Agreement CITY OF NATIONAL CITY, CALIFORNIA COMMUNITY DEVELOPMENT COMMISSION AGENDA STATEMENT MEETING DATE: February 15, 2011 AGENDA ITEM NO. ?4 EM TITLE: (A resolution of the Community Development Commission of the City of National City approving a Cooperation Agreement for the Westside Infill Transit Oriented Development ("WI-TOD") between the Commission and the City of National City and making certain determinations and findings related thereto. (Low Mod Set Aside Fund) (Companion Item*),I PREPARED BY: Patricia Beard DEPARTMENT: Redevel pm nt Division PHONE: 425.E �1 APPROVED BY: EXPLANATION: lIn order to complete affordable housing projects as required by the California ment Law (Sections 33220 and 33206), the Housing Element of the National City General Plan and the Redevelopment Plan for the National City Redevelopment Project, twenty -percent (20%) of anticipated property tax increment to the CDC must be used to develop and operate low -moderate income housing. The City has traditionally assisted in coordinating, administering and implementing low -moderate income housing projects. In order to secure the funds necessary to implement anticipated low and moderate housing projects within the Redevelopment Project area, transfers net low -moderate housing funds for the anticipated WI-TOD to the City. Alt activities, including administrative oversight, acquisition, development, disposition and operation for said projects would become City obligations under the Agreement Please see attached Background Report. 1 FINANCIAL STATEMENT: ACCOUNT NO. APPROVED: Finance This Agreement would transfer up to $40 million in anticipated low -mod set aside funds from the CDC to the City.. ENVIRONMENTAL REVIEW: The Westside Specific Plan EIR (Schedule 20080710920 was certified by the City Council on March 16, 2010 and considered the WI-TOD project. Per Public Resources Code 21166 no subsequent EIR is required for this Agreement because no substantial changes are proposed that require revisions to the Westside Specific Plan EIR. ORDINANCE: INTRODUCTION: FINAL ADOPTION: STAFF RECOMMENDATION: Adopt the resolution. BOARD / COMMISSION RECOMMENDATION: ATTACHMENTS: Background Report Proposed Agreement RESOLUTION 2011 — RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY APPROVING A COOPERATION AGREEMENT FOR THE WESTSIDE INFILL TRANSIT ORIENTED DEVELOPMENT ("WI-TOD") BETWEEN THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY AND THE CITY OF NATIONAL CITY, AND MAKING CERTAIN DETERMINATIONS AND FINDINGS RELATED THERETO WHEREAS, the City Council adopted the Redevelopment Plan for the National City Redevelopment Project on July 17, 2007, by Ordinance No. 2007-2295 (the "Redevelopment Plan"), which results in the allocation of a portion of the property taxes generated from the National City Redevelopment Project (the "Project Area") to the Community Development Commission of the City of National City ("CDC") for purposes of redevelopment; and WHEREAS, the intent of the Redevelopment Plan is, in part, to increase, improve and preserve the community's supply of low and moderate income housing, and to expend tax increment to accomplish these goals and objectives; and WHEREAS, the CDC has adopted its Five -Year Implementation Plan for the Project Area, as amended from time to time (collectively, the "Implementation Plan") with established goals to support affordable housing, economic development, community revitalization, commercial revitalization, and institutional revitalization. To implement the programs and activities associated with each goal, the CDC has made redevelopment fund commitments and budget allocations based on estimated available tax increment revenue and debt financing structures; and WHEREAS, Sections 33334.2 and 33334.3 of California's Community Redevelopment Law [Health and Safety Code Sections 33000, et seq.] (the "CRL") require the CDC to use 20 percent (20%) of taxes allocated to the CDC pursuant to Section 33670 of the CRL for the purpose of increasing, improving, and preserving the community's supply of low and moderate income housing; and WHEREAS, the CDC and the City of National City (the "City") wish to cooperate with one another to carry out the CDC's low and moderate income housing activities in accordance with the Redevelopment Plan and the Implementation Plan; and WHEREAS, pursuant to Sections 33220 and 33206 of the CRL, the City may aid the CDC and cooperate in the planning, undertaking, construction, or operation of low and moderate income housing in the community; and WHEREAS, the CDC and the City have prepared a Cooperation Agreement (the "Agreement") to provide for implementation of certain low and moderate income housing programs and projects set forth in the Schedule of Projects attached thereto as Exhibit 1 (the "Projects"), and to make payments by the CDC to the City in accordance with the Payment Schedule attached thereto as Exhibit 2 and as otherwise necessary to reimburse the City for the cost to the City of performing its obligations thereunder in accordance with the Schedule of Performance attached thereto as Exhibit 3, subject to all of the terms and conditions of the Agreement; and WHEREAS, the programs and activities associated with the Projects include, but are not limited to, acquisition and disposition of property, development of design criteria, design, planning and preparation of construction bid documents, financial analysis, Resolution No. 2011 — Page 2 financing, new construction or rehabilitation, mortgage assistance to qualifying households, subsidies to individuals and families, entering into and repayment of loans secured by the low and moderate income housing funds and ongoing monitoring of projects, asset management and administration of agreements; and WHEREAS, to carry out the Projects in accordance with the objectives and purposes of the Redevelopment Plan for the Project Area and the Implementation Plan, the CDC desires assistance and cooperation in the implementation and completion of the Projects; and WHEREAS, the City wishes to enter into the Agreement with the CDC to aid the CDC and cooperate with the CDC to expeditiously implement the Projects in accordance with the Redevelopment Plan for the Project Area and the Implementation Plan and undertake and complete all actions necessary or appropriate to ensure that the low and moderate income housing objectives of the Redevelopment Plan for the Project Area and the Implementation Plan are fulfilled within the time effectiveness of the Project Area; and WHEREAS, in considering the CDC's desire to ensure timely implementation and completion of the Projects, the CDC wishes to enter into the Agreement with the City for the pledge of net available housing funds to finance the Projects; and WHEREAS, the purpose of the Agreement is to facilitate the implementation of the Projects and to provide funding necessary to effectuate the completion of the Projects with net available housing funds in this current fiscal year and forthcoming fiscal years; and WHEREAS, net available housing funds is defined as that portion of the tax increment allocated to the CDC or any lawful successor of the CDC and/or to any of the powers and rights of the CDC pursuant to any applicable constitutional provision, statute or other provision of law now existing or adopted in the future, that is set aside by the CDC pursuant to Sections 33334.2 and 33334.3 or any other law or regulation that may be enacted in the future requiring a set aside of tax increment for the purpose of increasing, improving, and preserving the community's supply of low and moderate income housing, net of existing debt service payments and existing contractual obligations payable from such housing set aside; and WHEREAS, the pledge of net available housing funds will constitute obligations of the CDC to make payments authorized and incurred pursuant to Section 33334.2 and other applicable statutes. The obligations set forth in the Agreement will be contractual obligations that, if breached, will subject the CDC to damages and other liabilities or remedies; and WHEREAS, by approving and entering into the Agreement, the CDC will approve the pledge of net available housing funds from the Project Area and/or bond proceeds secured by a pledge of net available housing funds from the Project Area to pay for the Projects; and WHEREAS, the obligations of the CDC under the Agreement shall constitute an indebtedness of the CDC for the purpose of carrying out the Redevelopment Plan for the Project Area; and Resolution No. 2011 — Page 3 WHEREAS, it is in the best interests of the City of National City and for the common benefit of residents, employees, business tenants and property owners within the Project Area and the City of National City as a whole for the Projects to be developed and constructed; and WHEREAS, the Westside Specific Plan Environmental Impact Report ("EIR") (Schedule No. 2008071092) was certified by the City Council on March 16, 2010, and is on file in the office of the City Clerk; and WHEREAS, the Agreement does not contemplate and will not result in any new programs or activities, or substantial changes to the activities analyzed in the Westside Specific Plan EIR; and WHEREAS, Public Resources Code Section 21166 ("Section 21166") provides that when an EIR has been certified for a project no subsequent or supplemental EIR shall be prepared unless the lead agency determines, on the basis of substantial evidence in light of the whole record, that one or more of the following events occur: (a) Substantial changes are proposed in the project which will require major revisions of the environmental impact report. (b) Substantial changes occur with respect to the circumstances under which the project is being undertaken which will require major revisions in the environmental impact report. (c) New information, which was not known and could not have been known at the time the environmental impact report was certified as complete, becomes available; and WHEREAS, the CDC, as the lead agency under CEQA, has not determined any of the findings required by Section 21166; and WHEREAS, all other legal prerequisites to the adoption of this Resolution have been satisfied. NOW, THEREFORE, BE IT RESOLVED by the Community Development Commission of the City of National City, as follows: Section 1. The CDC has received and heard all oral and written objections to the proposed payments by the CDC to the City for the Projects as described in the Agreement, and to other matters pertaining to this transaction, and all such oral and written objections are hereby overruled. Section 2. The CDC hereby finds and determines that the foregoing recitals are true and correct. Section 3. Based on the evidence in the record, the CDC hereby finds and determines, the use of low and moderate income housing funds for the Projects will be of benefit to the Project Area in accordance with Section 33334.2 of the CRL. Section 4. The CDC hereby consents to and authorizes the payments by the CDC to the City in accordance with the Schedule of Payments attached to the Agreement as Exhibit 2. Resolution No. 2011 — Page 4 Section 5. The Chairman is hereby authorized to execute the Agreement on behalf of the CDC, together with such non -substantive changes and amendments as may be approved by the CDC Chairman and CDC General Counsel. Section 6. The CDC Executive Director, or designee, is hereby authorized, on behalf of the City, to sign all documents necessary and appropriate to carry out and implement the Agreement, including, without limitation, any security instruments to be recorded against CDC assets to secure the CDC's obligations under the Agreement, and to administer the City's obligations, responsibilities and duties to be performed under the Agreement. Section 7. In the event the CDC desires to issue bonds, notes, or other instruments of indebtedness of the CDC to carry out redevelopment projects, then any indebtedness of the CDC to the City, including any interest accrued thereon, shall be deemed not to be a first pledge of tax increment allocations received by the CDC pursuant to Section 33670 of the CRL; and any indebtedness of the CDC to the City, including any interest accrued thereon, shall be subordinate to any pledge of tax increments to bondholders or the holders of other such instruments of indebtedness Section 8. That the information contained in the Westside Specific Plan EIR has been reviewed and considered by the CDC and it is determined that no substantial changes or new information of substantial importance within the meaning of Section 21166 would warrant any additional environmental review in connection with approval of the Agreement and the CDC's Executive Director is directed to file a Notice of Determination [NOD] with the Clerk of the Recorder's Office at the County of San Diego regarding the Agreement. Section 9. Said Agreement is on file in the office of the City Clerk. Section 10. This Resolution shall take effect immediately upon its adoption. PASSED and ADOPTED this 15th day of February, 2011. Ron Morrison, Chairman ATTEST: Brad Raulston, Secretary APPROVED AS TO FORM: Claudia G. Silva CDC General Counsel ATTACHMENT 1 BACKGROUND REPORT On March 3, 2009, the CDC entered into an Exclusive Negotiation Agreement with the Related Companies of California and Community Housing Works to discuss the potential redevelopment of the National City Public Works site and adjoining sites into a transit - oriented infill affordable housing project — commonly called the Westside Infill TOD or "WI-TOD". The WI-TOD would implement a land use addressed in the Westside Specific Plan and its certified Environmental Impact Report certified on March 16, 2010. The developers and CDC have been diligently working on the proposal and anticipate bringing forward a Development and Disposition Agreement in spring of 2011. In anticipation of the commencement of planning, design and supplemental analysis under the California Environmental Quality Act so that an actual project can be considered, staff desires that funding be established and preserved within the City. The attached Agreement provides for a transfer of up to $40 million in anticipated low -mod set aside funds for the project oversight, site predevelopment activities such as remediation, any project subsidy to be determined in the future and on -going operational costs. In order for the CDC and City to cooperate in this manner, certain findings are required to be made: • The Commission has received and heard all oral and written objections to the proposed payments by the Commission to the City for the Projects as described in the Agreement, and to other matters pertaining to this transaction, and all such oral and written objections are hereby overruled; • The Commission hereby finds and determines that the foregoing recitals are true and correct; and • Based on the evidence in the record, the Commission hereby finds and determines, with respect to the use of low and moderate income housing funds for the Projects will be of benefit to the Project Area in accordance with Section 33334.2 of the CRL. Funds ultimately transferred will not exceed actual funding to be determined necessary for the project. The Chairman is authorized to execute the Agreement on behalf of the CDC, together with such non -substantive changes and amendments as may be approved by the Executive Director and CDC Counsel. The Executive Director, or designee, is authorized, on behalf of the CDC, to sign all subsequent documents necessary and appropriate to carry out and implement the Agreement, including, without limitation, any security instruments to be recorded against CDC assets to secure the CDC's obligations under the Agreement, and to administer the CDC's obligations, responsibilities and duties to be performed under the Agreement. In the event the CDC desires to issue bonds, notes, or other instruments of indebtedness of the CDC to carry out redevelopment projects, then any indebtedness of the CDC to the City, including any interest accrued thereon, shall be deemed not to be a first pledge of tax increment allocations received by the CDC pursuant to Section 33670 of the CRL; and any indebtedness of the CDC to the City, including any interest accrued thereon, shall be subordinate to any pledge of tax increments to bondholders or the holders of other such instruments of indebtedness. COOPERATION AGREEMENT FOR PAYMENT OF COSTS ASSOCIATED WITH CERTAIN REDEVELOPMENT COMMISSION FUNDED LOW AND MODERATE INCOME HOUSING PROJECTS THIS COOPERATION AGREEMENT (this "Agreement") is entered into this 15th day of February, 2011, by and between the CITY OF NATIONAL CITY, a public body, corporate and politic (the "City") and the COMMUNITY DEVELOPMENT COMISSION OF THE CITY OF NATIONAL CITY (the "Commission"), with reference to the following facts: A. The City Council of the City of National City (the "City Council") adopted the Redevelopment Plan for National City Redevelopment Project on July 17, 2007 by Ordinance No. 2007-2295 (the "Redevelopment Plan"), which results in the allocation of a portion of the property taxes generated from the National City Redevelopment Project (the "Project Area") to the Commission for purposes of redevelopment. B. The intent of the Redevelopment Plan is, in part, to increase, improve and preserve the community's supply of low and moderate income housing, and to expend tax increment to accomplish these goals and objectives. C. The Commission has adopted its Five -Year Implementation Plan for the Project Area, as amended from time to time (collectively, the "Implementation Plan") with established goals to support affordable housing, economic development, community revitalization, commercial revitalization, and institutional revitalization. To implement the programs and activities associated with each goal, the Commission has made redevelopment fund commitments and budget allocations based on estimated available tax increment revenue and debt financing structures. D. Sections 33334.2 and 33334.3 of California's Community Redevelopment Law [Health & Safety Code §§33000, et seq.] (the "CRL") require the Commission to use 20 percent of taxes allocated to the Commission pursuant to Section 33670 of the CRL and deposited in the Commission's Low and Moderate Income Housing Fund (the "Housing Fund") for the purpose of increasing, improving, and preserving the community's supply of low and moderate income housing. E. Pursuant to Sections 33220 and 33206 of the California Conununity Redevelopment Law (Health and Safety Code Section 33000 et seq.) (the "CRL"), the City may aid and cooperate in the planning, undertaking, construction, or operation of low and moderate income housing in the community. F. To carry out the Commission's low and moderate income housing program in accordance with the objectives and purposes of the redevelopment Plan for the Project Area and the Implementation Plan, the Commission desires assistance and cooperation in the implementation and completion of the low and moderate income housing projects and programs listed in the attached Exhibit 1, which are incorporated herein by this reference (the "Projects"). G. The activities associated with the Projects include but are not limited to acquisition and disposition of property, development of design criteria, design, planning, Cooperation Agreement Page 1 of 6 preparation of construction bid documents, financial analysis, financing, new construction or rehabilitation, mortgage assistance to qualifying households, subsidies to individuals and families, entering into and repayment of loans secured by the low and moderate income housing funds and ongoing monitoring of projects, asset management and administration of agreements. The City agrees to aid the Commission and cooperate with the Commission to expeditiously implement the Projects in accordance with the redevelopment Plan for the Project Area and the Implementation Plan and undertake and complete all actions necessary or appropriate to ensure that the low and moderate income housing objectives of the redevelopment Plan for the Project Area and the Implementation Plan are fulfilled within the time effectiveness of the Project Area. H. In considering the Commission's desire to ensure timely implementation and completion of the Projects, the Commission wishes to enter into this Agreement with the City for the pledge of net available housing funds and/or bond proceeds secured by a pledge of net available housing funds ("Bond Proceeds") to finance the Projects. The purpose of this Agreement is to facilitate the implementation of the Projects and to continue to provide funding necessary to effectuate the completion of the Projects with net available housing funds, and/or Bond Proceeds, in this current fiscal year and forthcoming fiscal years. I. "Net available housing funds" is defined as that portion of the tax increment allocated to the Commission or any lawful successor of the Commission and/or to any of the powers and rights of the Commission pursuant to any applicable constitutional provision, statute or other provision of law now existing or adopted in the future, that is set aside by the Commission pursuant to Sections 33334.2 and 33334.3 or any other law or regulation that may be enacted in the future requiring a set aside of tax increment for the purpose of increasing, improving, and preserving the community's supply of low and moderate income housing, net of existing debt service payments and existing contractual obligations payable from such housing set aside. The pledge of net available housing funds will constitute obligations of the Commission to make payments authorized and incurred pursuant to Section 33334.2 and other applicable statutes. The obligations set forth in this Agreement will be contractual obligations that, if breached, will subject the Commission to damages and other liabilities or remedies. J. By approving and entering into this Agreement, the Commission has approved the pledge of net available housing funds from the Project Area to pay for the Projects. K. The obligations of the Commission under this Agreement shall constitute an indebtedness of the Commission for the purpose of carrying out the redevelopment Plan for the Project Area. NOW, THEREFORE, the parties hereto do mutually agree as follows: I. INTRODUCTORY PROVISIONS The recitals above are an integral part of this Agreement and set forth the intentions of the parties and the premises on which the parties have decided to enter into this Agreement. II. COMMISSION'S OBLIGATIONS 1. The Projects are those low and moderate income housing projects and programs which are listed on the attached Exhibit 1. The Commission shall, within thirty (30) days of Cooperation Agreement Page 2 of 6 execution of this Agreement, convey by grant deed in form mutually agreeable to both parties those certain real properties legally described in Exhibit 4 ("Commission Property") to City, and agrees to pay to the City an amount equal to the cost to the City to carry out the Projects not to exceed FORTY MILLION DOLLARS ($40,000,000), including without limitation the City's administrative costs and all costs incurred by the City for the acquisition and disposition of property, development of design criteria, design, planning, preparation of construction bid documents, financial analysis, financing, new construction or rehabilitation, mortgage assistance to qualifying households, subsidies to individuals and families, entering into and repayment of loans secured by the low and moderate income housing fund account and ongoing monitoring, asset management and administration of agreements. The City's administrative costs shall include all reasonable amounts needed to pay for the City's overhead, payroll and benefits, insurance, supplies, telephone, copying, fixtures, furniture, equipment, legal accounting, and other professional fees and costs, and other reasonable customary, and lawful administrative expense of the City during any Fiscal Year in which the City services are provided. The City's annual administrative costs shall be in the amounts separately identified in the City's annual budget for each Fiscal Year until termination of this Agreement. 2. The Commission's obligations under this Agreement, including without limitation the Commission's obligation to make the payments to the City required by this Agreement, shall constitute an indebtedness of the Commission for the purpose of carrying out the redevelopment of the Project Area and are obligations to make payments authorized and incurred pursuant to Section 33334.2 of the CRL and other applicable statutes. The obligations of the Commission set forth in this Agreement are contractual obligations that, if breached, will subject the Commission to damages and other liabilities or remedies. 3. The obligations of Commission under this Agreement shall be payable out of net available housing funds and/or Bond Proceeds, as defined in the above recitals and/or as defined or provided for in any applicable constitutional provision, statute or other provision of law now existing or adopted in the future affecting tax increment allocated to the Commission and/or any lawful successor entity of the Commission and/or any entity established by law to carry out any of the redevelopment Plan for the Project Area and/or expend tax increment or pay indebtedness of the Commission to be repaid with tax increment, pursuant to Section 33670 of the CRL or any applicable constitutional provision, statute or other provision of law now existing or adopted in the future, in amounts not less than those set forth in the Payment Schedule attached hereto as Exhibit 2 and incorporated herein by this reference. In the event that additional funds are required in order to make the Commission payments to the City required by this Agreement, the Commission shall make such payments from income received by the Commission from its projects and programs or any other additional funds available to it. 4. The indebtedness of Commission under this Agreement shall be subordinate to the rights of the holder or holders of any existing bonds, notes or other instruments of indebtedness (all referred to herein as "indebtedness") of the Commission incurred or issued to finance the Project Area, including without limitation any pledge of tax increment revenues from the Project Area to pay any portion of the principal (and otherwise comply with the obligations and covenants) of any bond or bonds issued or sold by Commission with respect to the Project Area. 5. Except as set forth in the following section of this Agreement, all payments due to be made by the Commission to the City under this Agreement shall be made by the Commission in accordance with the schedule set forth in Exhibit 2 and as otherwise necessary to reimburse Cooperation Agreement Page 3 of 6 the City for the cost to the City of performing its obligations hereunder. The City shall provide the Commission with a quarterly report accompanied by evidence reasonably satisfactory to the Commission's Executive Director that the City has progressed in the implementation of the Project for which payment is made by the Commission commensurate with such payments and has incurred costs or obligations to make payments equal to or greater than such amount. III. CITY'S OBLIGATIONS 1. The City shall accept any funds offered by the Commission pursuant to this Agreement and shall devote those funds to completion of the Projects, in accordance with the requirements of the CRL for expenditure of Housing Funds by (i) reimbursing the City or using such funds to make City expenditures to perform the work required to carry out and complete the Projects; (ii) utilizing such funds to pay debt service on bonds or other indebtedness or obligations that the City has or will incur for such purposes; and/or (iii) holding and expending such funds only for the purpose of satisfying the obligations of the City hereunder. 2. It is the responsibility of City to pay its costs in connection with the Projects from funds paid to the City by the Commission under this Agreement. 3. The City shall perform its obligations hereunder in accordance with the applicable provisions of federal, state and local laws, including the obligation to comply with environmental laws such as CEQA before undertaking any of the Projects, and shall timely complete the work required for each Project in accordance with the Schedule of Performance attached hereto as Exhibit 3 and incorporated herein by this reference. IV. LIABILITY AND INDEMNIFICATION In contemplation of the provisions of California Government Code section 895.2 imposing certain tort liability jointly upon public entities solely by reason of such entities being parties to an agreement as defined by Government Code section 895, the parties hereto, as between themselves, pursuant to the authorization contained in Government Code sections 895.4 and 895.6, shall each assume the full liability imposed upon it, or any of its officers, agents or employees, by law for injury caused by negligent or wrongful acts or omissions occurring in the performance of this Agreement to the same extent that such liability would be imposed in the absence of Government Code section 895.2. To achieve the above -stated purpose, each party indemnifies, defends and holds harmless the other party for any liability, losses, cost or expenses that may be incurred by such other party solely by reason of Government Code section 895.2. V. ENTIRE AGREEMENT; WAIVERS; AND AMENDMENTS 1. This Agreement shall be executed in triplicate originals, each of which is deemed to be an original. This Agreement consists of six (6) pages and four (4) Exhibits, which constitute the entire understanding and agreement of the parties. 2. This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the parties with respect to the subject matter of this Agreement. Cooperation Agreement Page 4 of 6 3. This Agreement is intended solely for the benefit of the City and the Commission. Notwithstanding any reference in this Agreement to persons or entities other than the City and the Commission, there shall be no third party beneficiaries under this Agreement. 4. All waivers of the provisions of this Agreement and all amendments to this Agreement must be in writing and signed by the authorized representatives of the parties. VI. SEVERABILITY if any term, provisions, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions shall continue in full force and effect unless the rights and obligations of the parties have been materially altered or abridged by such invalidation, voiding or unenforceability. VII. DEFAULT If either party fails to perform or adequately perform an obligation required by this Agreement within thirty (30) calendar days of receiving written notice from the non -defaulting party, the party failing to perform shall be in default hereunder. In the event of default, the non - defaulting party will have all the rights and remedies available to it at law or in equity to enforce the provisions of this contract, including without limitation the right to sue for damages for breach of contract. The rights and remedies of the non -defaulting party enumerated in this paragraph are cumulative and shall not limit the non -defaulting party's rights under any other provision of this Agreement, or otherwise waive or deny any right or remedy, at law or in equity, existing as of the date of the Agreement or hereinafter enacted or established, that may be available to the non -defaulting party against the defaulting party. All notices of defaults shall clearly indicate a notice of default under this Agreement. VIII. BINDING ON SUCCESSORS This Agreement shall be binding on and shall inure to the benefit of all successors and assigns of the parties, whether by agreement or operation of law. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above. IN WITNESS WHEREOF, City and Commission have signed this Agreement as of the dates set opposite their signatures. THE CITY OF NATIONAL CITY Attest: By: By: City Clerk Ron Morrison, Mayor Cooperation Agreement Page 5 of 6 COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY Attest: By: By: Secretary Ron Morrison, Chairman APPROVED AS TO FORM: By: City Attorney APPROVED AS TO FORM: Kane Ballmer & Berkman By: Commission Special Counsel Cooperation Agreement Page 6 of 6 EXHIBIT 1 SCHEDULE OF PROJECTS 1. Construction of at least 201 units of affordable rental housing for low income households (as defined by Health and Safety Code section 50079.5(a)) and very low income households (as defined by Health and Safety Code section 50105(a)), which shall be offered at affordable rent (as defined by Health and Safety Code section 50053(b)). Estimated Cost: $80,694,501 EXHIBIT 2 PAYMENT SCHEDULE Payment to the Housing City will be made as follows: The reserves of the existing Low -Moderate Housing Funds will be transferred to the City upon execution of this Agreement. The Balance of Funds will be transferred annually from the full balance of Low Mod Housing Fund receipts until the full obligation is paid or may be pre -paid if bonds are issued for the project. EXHIBIT 3 SCHEDULE OF PERFORMANCE Completion of Draft Development and Disposition Agreement June 30, 2011 Completion of Project Due Diligence June 30, 2012 Commence construction June 30, 2013 Completion of Phase I June 30, 2016 Completion of Phase II June 30, 2020 EXHIBIT 4 LEGAL DESCRIPTION APNs: 559-104-10, 559-124-05, 559-125-15, 560-206-03, 560-391-05, 08, 560-396-06 CITY OF NATIONAL CITY, CALIFORNIA COMMUNITY DEVELOPMENT COMMISSION AGENDA STATEMENT MEETING DATE: February 15, 2011 AGENDA ITEM NO.215 EM TITLE: IA resolution of the Community Development Commission of the City of National City authorizing the Commission to enter into a Cooperation Agreement (SR 54 and National City Boulevard infrastructure improvement) with the City of National City and making certain determinations and findings related thereto. (Tax Increment Fund) (Companion Item #).1 PREPARED BY: Patricia Beardj PHONE: 42551 EXPLANATION: DEPARTMENT: Rede - pme t Division APPROVED BY: 1In order to assure timely completion of public improvements necessary to future redevelopment in accordance with the Redevelopment Plan for the National City Redevelopment Project of properties immediately northeast of the SR 54 and the National City Boulevard intersection, the City Council and CDC will tonight both consider entering a Cooperation Agreement. The Agreement would provide that the CDC transfer funding and land (APN# 562-321-08) for the anticipated improvements (detailed in Exhibit I of the Agreement) to the City. Both a construction schedule for the City and payment schedule for the CDC are included in the Agreement as are the parcels within the Project Area to be made more economically viable by the infrastructure project and the schedule for the CDC payments for the work. Should the Agreement be approved, title to the CDC property will transfer to the City if an Option (included) is exercised. Prior to any future disposition by the City of said parcel to a redeveloper, a Public Hearing on the resale and reuse of land as required under California Redevelopment Law (Section 33433) will be held. ....ase see attached Background Report. FINANCIAL STATEMENT: APPROVED: Finance Irhis Agreement would pledge future Tax Increment funds not to exceed $2,500,000. The Tax Increment would be paid by $830,000 lump sum payment after completion of the improvements and thereafter in annual installments of up to $120,000 over the remaining life of the Redevelopment Plan or until the full commitment is paid, whichever comes first. The City does not have adequate funds in the General Fund or any designated funds to complete the work. pNVIRONMENTAL REVIEW: Not applicable, ORDINANCE: INTRODUCTION: FINAL ADOPTION: 1 STAFF RECOMMENDATION: Adopt the resolution. BOARD / COMMISSION RECOMMENDATION: ATTACHMENTS: Background Report Proposed Agreement. RESOLUTION NO. 2011 — RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY ("CDC") AUTHORIZING THE CDC TO ENTER INTO A COOPERATION AGREEMENT [SR 54 AND NATIONAL CITY BOULEVARD INFRASTRUCTURE IMPROVEMENTS] WITH THE CITY OF NATIONAL CITY, AND MAKING CERTAIN DETERMINATIONS AND FINDINGS RELATED THERETO WHEREAS, the City Council adopted the Redevelopment Plan for the National City Redevelopment Project on July 17, 2007, by Ordinance No. 2007-2295 (the "Redevelopment Plan"), which results in the allocation of a portion of the property taxes generated from the National City Redevelopment Project (the "Project Area") to the Community Development Commission of the City of National City (the "CDC") for purposes of redevelopment; and WHEREAS, the intent of the Redevelopment Plan is, in part, to provide for the construction and installation of necessary public infrastructure and facilities and to facilitate the repair, restoration and/or replacement of existing public facilities and to perform specific actions necessary to promote the redevelopment and the economic revitalization of the Project Area; to increase, improve and preserve the community's supply of low and moderate income housing; to take all other necessary actions to implement the Redevelopment Plan; and to expend the CDC's share of property taxes (referred to as "tax increment") to accomplish the goals and objectives of the Redevelopment Plan; and WHEREAS, the CDC has adopted its Five -Year Implementation Plan for the Project Area, as amended from time to time (collectively, the "Implementation Plan") with established goals to support affordable housing, economic development, community revitalization, commercial revitalization, and institutional revitalization. To implement the programs and activities associated with each goal, the CDC has made redevelopment fund commitments and budget allocations based on estimated available tax increment revenue and debt financing structures; and WHEREAS, the City and CDC wish to cooperate with one another to bring about the redevelopment of the Project Area, and accomplish various tasks set forth in the Redevelopment Plan and the Implementation Plan; and WHEREAS, pursuant to Section 33220 of the California Community Redevelopment Law (Health and Safety Code Sections 33000 et seq.) (the "CRL") certain public bodies, including the City, may aid and cooperate in the planning, undertaking, construction, or operation of redevelopment projects; and WHEREAS, the CDC and City desire to enter into a Cooperation Agreement (the "Agreement") to provide for implementation of certain public infrastructure projects (the "Projects"), under which payments will be made by the CDC to the City as otherwise necessary to reimburse the City for the cost to the City of installing and constructing the Projects; and WHEREAS, the programs and activities associated with the Projects include, but are not limited to, development of design criteria, design, planning, preparation of construction bid documents, financial analysis, financing, and new construction or rehabilitation; and Resolution No. 2011 — Page 2 WHEREAS, the obligations of the CDC under the Agreement shall constitute an indebtedness of the CDC for the purpose of carrying out the Redevelopment Plan for the Project Area; and WHEREAS, it is in the best interest of the City and for the common benefit of residents, employees, business tenants and property owners within the Project Area, and the City as a whole, for the Projects to be developed and constructed in accordance with the Agreement; and WHEREAS, the Agreement shall require the City to comply with Public Resources Code Sections 21000 et seq. ("CEQA") before undertaking each Project, and pursuant to CEQA Guideline Section 15378(b)(4), approval of the Agreement is not a project subject to the California Environmental Quality Act ("CEQA"), because the Agreement consists of the creation of a governmental funding mechanism for various public improvements, but does not commit funds to any specific public improvement, in that environmental review required by CEQA shall be completed prior to the commencement of any public improvement listed in the Agreement; and WHEREAS, all other legal prerequisites to the adoption of this Resolution have occurred. NOW, THEREFORE, BE IT RESOLVED by the Community Development Commission of the City of National City as follows: Section 1. The CDC has received and heard all oral and written objections to the Agreement, and to other matters pertaining to this transaction, and all such oral and written objections are hereby overruled. Section 2. The CDC hereby finds and determines that the foregoing recitals are true and correct. Section 3. Based on the evidence in the record, the CDC hereby finds and determines, with respect to the Projects that are publicly owned and are located in or contiguous to the Project Area as identified in the Agreement, that: (a) Said Projects and the programs and activities associated therewith are of benefit to the Project Area by helping to eliminate blight within the Project Area or providing housing for low or moderate income persons; and (b) No other reasonable means of financing said Projects and the programs and activities associated therewith are available to the community; and (c) The payment of funds by the CDC for the costs related to said Projects, and the programs and activities associated therewith is consistent with the respective Implementation Plan adopted pursuant to Section 33490 of the CRL. Section 4. The CDC Chairman is hereby authorized to execute the Agreement on behalf of the CDC, together with such non -substantive changes and amendments as may be approved by the CDC Chairman and CDC General Counsel. Resolution No. 2011 — Page 3 Section 5. The CDCs Executive Director, or designee, is hereby authorized, on behalf of the CDC, to sign all documents necessary and appropriate to carry out and implement the Agreement, including, without limitation, any security instruments to be recorded against CDC assets to secure the CDC's obligations under the Agreement, and to administer the CDC's obligations, responsibilities and duties to be performed under the Agreement. Section 6. The CDC authorizes the pledge of future Tax Increment funds in an amount not to exceed $2,500,000, as set forth in the Agreement. Section 7. In the event the CDC desires to issue bonds, notes, or other instruments of indebtedness of the CDC to carry out redevelopment projects, then any indebtedness of the CDC to the City, including any interest accrued thereon, shall be deemed not to be a first pledge of tax increment allocations received by the CDC pursuant to Section 33670 of the CRL; and any indebtedness of the CDC to the City, including any interest accrued thereon, shall be subordinate to any pledge of tax increments to bondholders or the holders of other such instruments of indebtedness. Section 8. Said Agreement is on file in the office of the City Clerk. Section 9. This Resolution shall take effect immediately upon its adoption. PASSED and ADOPTED this 15th day of February, 2011. Ron Morrison, Chairman ATTEST: Brad Raulston, Secretary APPROVED AS TO FORM: Claudia G. Silva CDC General Counsel ATTACHMENT 1 BACKGROUND REPORT Public infrastructure improvements are needed to improve the economic viability of parcels commonly referred to as the National City Swap Meet and RCP site (APN# 562- 321-08) planned for redevelopment in the Redevelopment Plan for the National City Redevelopment Project. The improvements are designed to improve traffic flow and access to these gateway sites in the Project Area and are anticipated to cost up to $2.5 million. In order to complete the projects the CDC and City can decide to cooperate, as is proposed in this Agreement. The Agreement would provide that the CDC would pledge future property tax increment funds as follows: $830,000 to be paid in a lump sum at completion of construction and $120,000 annually thereafter in net increased tax increment (excluding low mod set aside funds and pass through funds to other taxing entities) up to the actual final construction costs for the project. Title to the RCP site would transfer to the City if an included Option is exercised. Prior to the City transferring said site to any private developer in the future, a Public Hearing under Section 33433 of the California Redevelopment Law would be required. In order to cooperate, the CDC and City must make the following findings: • The Commission has received and heard all oral and written objections to the Agreement, and to other matters pertaining to this transaction, and all such oral and written objections are hereby overruled; • The Commission hereby finds and determines that the foregoing recitals are true and correct; • Based on the evidence in the record, the Commission hereby finds and determines, with respect to the Projects that are publicly owned and are located in or contiguous to the Project Area as identified in the Agreement, that: (a) Said Projects and the programs and activities associated therewith are of benefit to the Project Area by helping to eliminate blight within the Project Area or providing housing for low- or moderate income persons; and (b) No other reasonable means of financing said Projects and the programs and activities associated therewith are available to the community; and (c) The payment of funds by the Commission for the costs related to said Projects and the programs and activities associated therewith is consistent with the respective Implementation Plan adopted pursuant to Section 33490 of the CRL. The resolution authorizing approval of the Agreement would give the Executive Director the authority to sign all subsequent documents necessary to carry out and implement the Agreement, including, without limitation, any security instruments to be recorded against CDC assets to secure the CDC's obligations under the Agreement, and to administer the CDC's obligations, responsibilities and duties to be performed under the Agreement. In the event the Commission desires to issue bonds, notes, or other instruments of indebtedness of the Commission to carry out redevelopment projects, then any indebtedness of the Commission to the City, including any interest accrued thereon, shall be deemed not to be a first pledge of tax increment allocations received by the Commission pursuant to Section 33670 of the CRL; and any indebtedness of the Commission to the City, including any interest accrued thereon, shall be subordinate to any pledge of tax increments to bondholders or the holders of other such instruments of indebtedness. COOPERATION AGREEMENT FOR COMMISSION'S PAYMENT OF CERTAIN COSTS [SR 54 AND NATIONAL CITY BLVD INFRASTRUCTURE IMPROVEMENTS] THIS COOPERATION AGREEMENT (this "Agreement") is entered into this day of February, 2011, by and between the CITY OF NATIONAL CITY (the "City") and the COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY (the "Commission"), with reference to the following facts: A. The City Council of the City of National City (the "City Council") adopted the Redevelopment Plan for National City Redevelopment Project on July 17, 2007 by Ordinance No. 2007-2295 (the "Redevelopment Plan"), which results in the allocation of a portion of the property taxes generated from the National City Redevelopment Project (the "Project Area") to the Commission for purposes of redevelopment. B. The intent of the Redevelopment Plan is, in part, to provide for the construction and installation of necessary public infrastructure and facilities and to facilitate the repair, restoration and/or replacement of existing public facilities and to perform specific actions necessary to promote the redevelopment and the economic revitalization of the Project Area; to increase, improve and preserve the community's supply of low and moderate income housing; and to take all other necessary actions to implement the Redevelopment Plan and to expend the Commission's share of property taxes (referred to as "tax increment") to accomplish the goals and objectives of the Redevelopment Plan. C. The Commission has adopted its Five -Year Implementation Plan for the Project Area, as amended from time to time (collectively, the "Implementation Plan") with established goals to support affordable housing, economic development, community revitalization, commercial revitalization, and institutional revitalization. To implement the programs and activities associated with each goal, the Commission has made redevelopment fund commitments and budget allocations based on estimated available tax increment revenue and debt financing structures. D. Pursuant to Section 33220 of the California Community Redevelopment Law (Health and Safety Code Section 33000 et seq.) (the "CRL"), certain public bodies, including the City may aid and cooperate in the planning, undertaking, construction, or operation of redevelopment projects. Collectively, the projects associated with this Agreement are listed in the attached Exhibit 1, which are incorporated herein by this reference (the "Projects"). To carry out the Projects in accordance with the objectives and purposes of the Redevelopment Plan and the Implementation Plan, the Commission desires assistance and cooperation in the implementation and completion of the Projects. The City agrees to aid the Commission and cooperate with the Commission to expeditiously implement the Projects in accordance with the Redevelopment Plan and the Implementation Plan and undertake and complete all actions necessary or appropriate to ensure that the objectives of the Redevelopment Plan and the Implementation Plan are fulfilled within the time effectiveness of the Project Area. Cooperation Agreement Page 1 of 6 E. In considering the Commission's desire to ensure timely implementation and completion of the Projects, the Commission wishes to enter into this Agreement with the City for the pledge of net available tax increment ("Net Tax Increment"), as defined, below, to finance the Projects. The purpose of this Agreement is to facilitate the implementation of the Projects and to provide funding necessary to effectuate the completion of the Projects with Net Tax Increment in this current fiscal year and forthcoming fiscal years. F. Net Tax Increment is defined as tax increment generated from those certain real properties located within the Project Area, more specifically described in Exhibit 2 attached hereto and incorporated herein by this reference, net of any amount required by the CRL to be set aside for purposes of increasing, improving or preserving the City's supply of low and moderate housing and any amounts paid to affected taxing agencies whether by statute or agreement and any amounts paid to the State of California or the County of San Diego as required by statute or agreement, existing debt service payments, and existing contractual obligations received by the Commission or any lawful successor of the Commission and/or to any of the powers and rights of the Commission pursuant to any applicable constitutional provision, statute or other provision of law now existing or adopted in the future. The pledge of Net Tax Increment shall constitute obligations to make payments authorized and incurred pursuant to Section 33445 and other applicable statutes. The obligations set forth in this Agreement will be contractual obligations that, if breached, will subject the Commission to damages and other liabilities or remedies. G. The City Council and the Commission by resolution have each found that the use of Commission redevelopment funding for the publicly owned improvements included in the Projects is in accordance with Section 33445 of the CRL and other applicable law. The said City Council and Commission resolutions are each based on the authority of the Commission, with the consent of the City Council, to pay all or part of the cost of the installation and construction of any building, facility, structure, or other improvements which is publicly owned within the Project Area, if the City Council makes certain determinations. H. By approving and entering into this Agreement, the Commission has approved certain obligations, including the pledge of Net Tax Increment to pay for the Projects. I. The obligations of the Commission under this Agreement shall constitute an indebtedness of the Commission for the purpose of carrying out the Redevelopment Plan for the Project Area. NOW, THEREFORE, the parties hereto do mutually agree as follows: I. INTRODUCTORY PROVISIONS The recitals above are an integral part of this Agreement and set forth the intentions of the parties and the premises on which the parties have decided to enter into this Agreement. II. COMMISSION'S OBLIGATIONS 1. The Projects are those projects which are listed on the attached Exhibit 1. The Cooperation Agreement Page 2of6 Commission agrees to pay to the City an amount equal to the actual and direct cost to the City to carry out the Projects, including without limitation all costs incurred by the City for the planning, acquisition and disposition, financing, development, permitting, design, site testing, bidding, construction and construction management of the Projects in the principal amount not to exceed TWO MILLION FIVE HUNDRED THOUSAND DOLLARS ($2,500,000)("Payment Obligation"), payable in annual installments, accruing interest at the rate of six percent (6%) from the Net Tax Increment generated, beginning in fiscal year 2014 until the principal balance plus accrued interest is paid, or July 1, 2041, whichever occurs earlier. Concurrently herewith, Commission and City shall execute an Option Agreement substantially in form attached hereto as Exhibit 4, a memorandum of which shall be recorded against that certain real property owned by the Commission, identified by the San Diego County Recorder's Office as Assessor Parcel Number 562-321-08 ("Commission Property"), within thirty (30) days of execution of this Agreement. The Option Agreement shall give City an option to purchase the Commission Property ("Option"). In the event that City exercises said Option, Commission shall receive a credit against the Payment Obligation in the amount of the Purchase Price, as set forth in the Option Agreement. The Commission's obligations under this Agreement, including without limitation the Commission's obligation to make the payments to the City required by this Agreement, shall constitute an indebtedness of the Commission for the purpose of carrying out the redevelopment of the Project Area and are obligations to make payments authorized and incurred pursuant to Section 33445 of the CRL and other applicable statutes. The obligations of the Commission set forth in this Agreement are contractual obligations that, if breached, will subject the Commission to damages and other liabilities or remedies. 2. The obligations of Commission under this Agreement shall be payable out of Net Tax Increment, as defined in the above recitals and/or as defined or provided for in any applicable constitutional provision, statute or other provision of law now existing or adopted in the future, levied by or for the benefit of taxing agencies in the Project Area, and allocated to the Commission and/or any lawful successor entity of the Commission and/or any entity established by law to carry out any of the redevelopment plans for the Project Area and/or expend tax increment or pay indebtedness of the Commission to be repaid with tax increment, pursuant to Section 33670 of the CRL or any applicable constitutional provision, statute or other provision of law now existing or adopted in the future, in amounts set forth in the Payment Schedule attached hereto as Exhibit 3 and incorporated herein by this reference. 3. The indebtedness of Commission under this Agreement shall be subordinate to the rights of the holder or holders of any existing bonds, notes or other instruments of indebtedness (all referred to herein as "indebtedness") of the Commission incurred or issued to finance the Project Area, including without limitation any pledge of tax increment revenues from the Project Area to pay any portion of the principal (and otherwise comply with the obligations and covenants) of any bond or bonds issued or sold by Commission with respect to the Project Area. 4. All payments due to be made by the Commission to the City under this Agreement shall be made by the Commission in accordance with the schedule set forth in Exhibit 3 and as otherwise necessary to reimburse the City for the cost to the City of performing its obligations hereunder. City shall provide Commission with a quarterly report accompanied Cooperation Agreement Page 3 of 6 by evidence reasonably satisfactory to the Commission's Executive Director that the City has progressed in the development and construction of the Project for which payment is made by the Commission commensurate with such payments and has incurred costs or obligations to make payments equal to or greater than such amount. III. CITY'S OBLIGATIONS 1. The City shall accept any funds offered by the Commission pursuant to this Agreement and shall devote those funds to completion of the Projects by (i) reimbursing the City or using such funds to make City expenditures to perform the work required to carry out and complete the Projects; (ii) utilizing such funds to pay debt service on bonds or other indebtedness or obligations that the City has or will incur for such purposes; and/or (iii) paying such funds into a special fund of the City to be held and expended only for the purpose of satisfying the obligations of the City hereunder. In the event that City exercises the Option, the Commission Property may be used, leased or sold by the City for any municipal purposes, including affordable housing and public improvements, in conformance with the Redevelopment Plan. 2. It is the responsibility of City to pay all development and construction costs in connection with the Projects from funds paid to the City by the Commission under this Agreement. 3. The City shall perform its obligations hereunder in accordance with the applicable provisions of federal, state and Local laws, including the obligation to comply with environmental laws such as CEQA before undertaking each Project, and shall timely complete the work required for each Project in accordance with Exhibit 1 and incorporated herein by this reference. IV. LIABILITY AND INDEMNIFICATION In contemplation of the provisions of California Government Code section 895.2 imposing certain tort liability jointly upon public entities solely by reason of such entities being parties to an agreement as defined by Government Code section 895, the parties hereto, as between themselves, pursuant to the authorization contained in Government Code sections 895.4 and 895.6, shall each assume the full liability imposed upon it, or any of its officers, agents or employees, by law for injury caused by negligent or wrongful acts or omissions occurring in the performance of this Agreement to the same extent that such liability would be imposed in the absence of Government Code section 895.2. To achieve the above -stated purpose, each party indemnifies, defends and holds harmless the other party for any liability, losses, cost or expenses that may be incurred by such other party solely by reason of Government Code section 895.2. V. ENTIRE AGREEMENT; WAIVERS; AND AMENDMENTS 1. This Agreement shall be executed in triplicate originals, each of which is deemed to be an original. This Agreement consists of six (6) pages and three (3) Exhibits, which constitute the entire understanding and agreement of the parties. Cooperation Agreement Page 4 of 6 2. This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the parties with respect to the subject matter of this Agreement. 3. This Agreement is intended solely for the benefit of the City and the Commission. Notwithstanding any reference in this Agreement to persons or entities other than the City and the Commission, there shall be no third party beneficiaries under this Agreement; provided, however, that City may, with the consent of Commission, which shall not be unreasonably withheld, assign City's rights and obligations, in whole or part, under this Agreement to any third party. 4. All waivers of the provisions of this Agreement and all amendments to this Agreement must be in writing and signed by the authorized representatives of the parties. VI. SEVERABILITY If any term, provisions, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions shall continue in full force and effect unless the rights and obligations of the parties have been materially altered or abridged by such invalidation, voiding or unenforceability. VII. DEFAULT If either party fails to perform or adequately perform an obligation required by this Agreement within thirty (30) calendar days of receiving written notice from the non -defaulting party, the party failing to perform shall be in default hereunder. In the event of default, the non - defaulting party will have all the rights and remedies available to it at law or in equity to enforce the provisions of this contract, including without limitation the right to sue for damages for breach of contract. The rights and remedies of the non -defaulting party enumerated in this paragraph are cumulative and shall not limit the non -defaulting party's rights under any other provision of this Agreement, or otherwise waive or deny any right or remedy, at law or in equity, existing as of the date of the Agreement or hereinafter enacted or established, that may he available to the non -defaulting party against the defaulting party. All notices of defaults shall clearly indicate a notice of default under this Agreement. VIII. BINDING ON SUCCESSORS This Agreement shall be binding on and shall inure to the benefit of all successors and assigns of the parties, whether by agreement or operation of Iaw. SIGNATURES ON NEXT PAGE SPACE LEFT INTENTIONALLY BLANK Cooperation Agreement Page 5 of 6 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first sct forth above. Attest: CITY OF NATIONAL CITY By: By: Mike Dalla, City Clerk Ron Morrison, Mayor Attest: COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY By: By: Secretary Ron Morrison, Chair APPROVED AS TO FORM: By: City Attorney APPROVED AS TO FORM: Kane Ballmer & Berkman By: Commission Special Counsel Cooperation Agreement Page 6 of 6 EXHIBIT 1 SCHEDULE OF PROJECTS SCOPE OF PROJECT ESTIMATED COST COMPLETION DATE* Install timed traffic signal at National City Blvd and 33rd St $2,500,000 inclusive of all Projects 2 years Extend right turn lane on westbound off ramp SR 54 to 590 feet " 2 years Construct additional right turn lane on westbound off ramp SP 43 — 350 feet " 2 years Restripe off ramp to add queuing area " 2 years Construct retaining wall northern embankment of SR 54 off ramp 2 years Restripe northbound turn lane at D Ave and 30`h ST to add queuing length to 270' and remove on street parking south of D Ave 4,2 years Restripe southbound turn lane to 270 feet of queuing length and remove on street parking east side of D Ave 2 years Restripe westbound 30t St turn land to 370 feet of queuing length and remove on street parking northside of D Ave and F St " 2 years Remove parking north side of 30`h St adjacent to high school and realign travel lanes L42 years Relocate bus stops SW and SE comers of National City Blvd at 33r St " 2 years Build cul de sac southern terminus of D Avenue " 2 years Curb, gutter, sidewalk all street improvements 2 years *Completion dates may be subject to extension by the mutual written agreement of City and Commission. EXHIBIT 2 LEGAL DESCRIPTION APNs: 562-321-05, 562-322-01, 562-322-02, 562-322-25, 562-322-26, 562-322-30, 562-322-30, 562-322-31, and 562-321-08. Option Agreement Page 8 EXHIBIT 3 PAYMENT SCHEDULE Loan Amount: $2,500,000 Payments from 2014 - 2042: $123,000 annually* * Balance of payments shall include accrue interest at the rate of six percent (6%) until the balance is fully paid. ** Payments may be reduced based on one or both of the following conditions — receipt of Net Tax Increment less than $123,000 annually from the and/or cost of the actual infrastructure project being less than $2,500,000 based on contracts. Option Agreement Page 9 Exhibit 4 OPTION AGREEMENT THIS O171'1ON AGREEMENT (this "Agreement") is entered into this day of February , 2011, by and between the CITY OF NATIONAL CITY (the "City") and the COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY (the "Commission"), with reference to the following facts: A. The Commission owns, or within the term of this Agreement, will own, certain real property more particularly described on Exhibit "A" (the "Property"). B. The Commission desires to grant the City an option to purchase the Property from the Commission and the City wishes to reserve the right to purchase the Property from the Commission under the terms contained herein. C. The parties hereto wish to enter into a memorandum of option agreement and record such an instrument on any or all of the Property subject to this Agreement using the memorandum attached hereto as Exhibit `B". D. This Agreement is subject to the provisions of the Redevelopment Plan for the National City Redevelopment Project on July 17, 2007 by Ordinance No. 2007-2295 (the "Redevelopment Plan"). The Redevelopment Plan is incorporated herein by reference and made a part hereof as though fully set forth herein. NOW, THEREFORE, for good and valuable consideration paid by the City, receipt and sufficiency of which is acknowledged by the Commission, the parties hereto do mutually agree as follows: 1. Grant of Option. Commission hereby grants City, or its nominee, the option to purchase the Property, or any part thereof, on or before the latter of (a) the thirtieth (30th) anniversary of this Agreement or (b) last date for duration of the Redevelopment Plan, as set forth in Section XI therein ("Redevelopment Plan Effectiveness Date"). This option shall be exercisable only by written notice delivered by City to Commission as provided below. Upon the exercise of such option to purchase the Property and receipt by the Commission, City shall purchase the Property pursuant to the terms below. 2. Exercise of Option. The option contained herein shall be exercised by City, if at all, in the following manner: (i) City shall deliver written notice (the "Exercise Notice") to Commission not less than ten (10) days prior to the date of the proposed purchase of the Property by the City; the last date of written notice shall be the latter of (a) the thirtieth (30th) anniversary of this Agreement or (b) the Redevelopment Plan Effectiveness Date; (ii) Commission, after receipt of City's notice, shall deliver notice (the "Responsive Purchase Notice") to City prior to the proposed purchase date of the Property by the City, setting forth the proposed purchase price Option Agreement Page 10 of EIGHT HUNDRED AND THIRTY THOUSAND DOLLARS ($830,000) and such other terms necessary and appropriate to accomplish the purchase of the Property by City under the timeframes proposed by the City; and (iii) if City wishes to exercise such option to purchase the Property, City shall, after City's receipt of the Responsive Purchase Notice, exercise the option by delivering the City's form of purchase and sale agreement and grant deed, modified for any particular parcel of Property, along with the consideration for the Property of EIGHT HUNDRED AND THIRTY THOUSAND DOLLARS ($830,000) and identification of the day the grant deed is to be recorded in the office of the County Recorder (the "Closing Date"). The proposed grant deed for the Property or any part thereof shall include, among other things, express covenants requiring the Property to be devoted to the purposes set forth below. 3. Purpose. Any and all property purchased by the City pursuant to this Option may be used, sold or leased by the City for any municipal purpose, including, but not limited to, housing and public improvements, in conformance with the Redevelopment Plan. 4. Condition of Property. The Property is sold in its "as -is" condition on the Closing Date subject to the Redevelopment Plan and all encumbrances of record. 5. Memorandum. Concurrently with the execution hereof, Commission and City shall execute, acknowledge and cause to be recorded in the Official Records of San Diego County, California, the Memorandum of Option Agreement substantially in the form attached hereto as Exhibit "B." Upon the termination of this Agreement as provided herein or at the time of and concurrently with the closing of a sale of the Property, the parties agree to execute a quitclaim deed or other termination instrument in order to cause the memorandum to be terminated and removed of record. 6. Transferability of Right. The right of the City under this Agreement is fully transferable and assignable by the City without the consent of the Commission. 7. Expiration Date and Termination of Agreement. The City reserves the right to reduce or extend the time period in paragraph 1 which permits the City to purchase the Property on or before the latter of (a) the thirtieth (30th) anniversary of the Agreement or (b) the Redevelopment Plan Effectiveness Date. 8. Prorations. Title Insurance. Title and Escrow. The parties shall equally share all costs of escrow and prorations affecting the Property. Commission shall not voluntarily create and record any liens or encumbrances or other matters against the Property after receipt of the Exercise Notice. The Commission pay for City's requirements for a CLTA Owner's Policy of Title Insurance in favor of the City. Unless otherwise agreed upon by the parties in writing, the title insurer and escrow shall be [Name] Title Company, [address]. Said escrow agent shall instruct title insurer to deliver a title commitment to the City upon receipt of the Exercise Notice. 9. This Agreement shall be binding on and shall inure to the benefit of all successors and assigns of the parties, whether by agreement or operation of law. This Agreement may be signed in any number of counterparts and delivered by facsimile. Option Agreement Page 11 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above. ATTEST: CITY OF NATIONAL CITY By: By: City Clerk Chris Zapata, City Manager ATTEST: COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY By: By: Secretary Brad Raulston, Executive Director APPROVED AS TO FORM: By: City Attorney APPROVED AS TO FORM: Kane Ballmer & Berkman By: Commission Special Counsel Option Agreement Page 12 EXHIBIT "A" The "Property" Assessor Parcel Number 562-321-08 EXHIBIT "B" RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City of National City 1243 National City Blvd National City, CA 91950 APN: 562-321-08 MEMORANDUM OF OPTION AGREEMENT 1. Parties; and Property. This memorandum of option agreement is entered into by the COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY, a public entity, corporate and politic ("Commission") and CITY OF NATIONAL CITY , a municipality ("City") concerning real property located in the City of National City and County of San Diego, State of California, as more fully described in the attached Exhibit "1" (the "Property"). 2. Memorandum. For good and valuable consideration received, the Commission, as current fee owner of the Property, acknowledges that Commission and City have entered into an option agreement (the "Option Agreement") permitting the City to purchase the Property from the Commission under the terms and conditions thereof for a term of Thirty (30) years from the date this instrument is signed, unless otherwise changed or modified by the terms of the Option Agreement. 3. Not Complete Summary. This instrument is not a complete summary of the Option Agreement. Provisions herein shall not be used in interpreting the Option Agreement. 4. Prohibition against Discrimination and Segregation. City covenants and agrees for itself, its successors, its assigns and every successor in interest to the Property or any part thereof or interest therein, there shall be no discrimination against or segregation of any person, or group of persons, on account of sex, sexual orientation, marital status, race, color, creed, religion, ancestry or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property nor shall City, itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees of the Property. All deeds, leases or contracts shall contain or he subject to substantially the following nondiscrimination or nonsegregation clauses: Option Agreement Page 14 a. In deeds: "The grantee herein covenants by and for himself or herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed, nor shall the grantee or any person claiming under or through him or her, establish or permit any practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the premises herein conveyed. The foregoing covenants shall run with the land." Notwithstanding the preceding paragraph, the provisions relating to discrimination on the basis of familial status shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of the Government Code nor be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall also apply to the preceding paragraph. b. In leases: "The lessee herein covenants by and for himself or herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or through him or her, and this lease is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of persons, on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants, lessees, sublessees, subtenants, or vendees in the premises herein leased." Notwithstanding the preceding paragraph, the provisions relating to discrimination on the basis of familial status shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of the Government Code nor be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision (d) of Section 51 Option Agreement Page 15 and Section 1360 of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall also apply to the preceding paragraph. c. In contracts: "There shall be no discrimination against or segregation of any person or group of persons, on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the land, nor shall the transferee itself or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants, lessees, sublessees, subtenants, or vendees of the land." 5. Purpose. This instrument is prepared for recordation purposes only, and in no way modifies the terms, conditions, provisions and covenants of the Option Agreement. In the event of any inconsistency between the terms, conditions, provisions and covenants of this instrument and the Option Agreement, the terms, conditions and covenants of the Option Agreement shall prevail. The parties hereto have executed this instrument on the dates specified immediately beside their respective signatures. This document may be executed and acknowledged before a notary public with counterpart signature and acknowledgment pages, each of which shall be deemed an original and which, when taken together, shall constitute the fully -executed instrument. ATTEST: CITY OF NATIONAL CITY By: By: City Clerk Chris Zapata, City Manager ATTEST: COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY By: By: Secretary Brad Raulston, Executive Director APPROVED AS TO FORM: By: City Attorney Option Agreement Page 16 APPROVED AS TO FORM: Kane Ballmer & Berkman By: Commission Special Counsel Option Agreement Page 17 Exhibit "1" to Memorandum of Option Agreement Legal Description of Property The land is situated in the State of California, County of and is described as follows; [to be inserted] APN State of California County of ACKNOWLEDGMENT PAGE TO MEMORANDUM OF OPTION AGREEMENT ) ) ) On before me, , a Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) State of California County of ) ) ) On before me, , a Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) CITY OF NATIONAL CITY, CALIFORNIA COMMUNITY DEVELOPMENT COMMISSION AGENDA STATEMENT MEETING DATE: February 15, 2011 AGENDA ITEM NO.26 EM TITLE: IA resolution of the Community Development Commission of the City of National City authorizing the Chairman to execute a Reimbursement Agreement by and between the City of National City and the Community Development Commission of the City of National City . (Tax Increment Fund and Low - Mod Housing Fund). PREPARED BY: Patricia Beard 3 P DEPARTMENT: Redev .pment r7 APPROVED BY: PHONE: 4255 EXPLANATION: In order to provide the City reimbursement for its administrative expenses incurred in administering the Redevelopment Plan for the National City Redevelopment Project areas, staff proposes the attached Reimbursement Agreement. The Agreement would cover all expenses incurred at Fiscal Year 2011 levels throughout the longest expected time of the Redevelopment Project's ability to collect Tax Increment (2052). Attachment 1 to this staff report details the expenses to be reimbursed FINANCIAL STATEMENT: ACCOUNT NO. APPROVED: Finance This Agreement would reimburse the City not to exceed $5,442,827.14 annually for staff charges incurred in implementing the Redevelopment Plan. These payments would be made after all other CDC obligations, such as pass through payments to other taxing entities, have been made by June 30 of each fiscal year until 2052. ENVIRONMENTAL REVIEW: Not applicable, ORDINANCE: INTRODUCTION: FINAL ADOPTION: STAFF RECOMMENDATION: Adopt the resolution. BOARD / COMMISSION RECOMMENDATION: ATTACHMENTS: Attachment 1 — Staff charges to implement the Redevelopment Plan for the National City Redevelopment Project areas (taken from actual expenses for Fiscal Year 2010). RESOLUTION NO. 2011 - RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY AUTHORIZING THE CHAIRMAN TO EXECUTE A REIMBURSEMENT AGREEMENT BY AND BETWEEN CITY OF NATIONAL CITY AND THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY WHEREAS, Chapter 6, Article 1 of Section 33220 of the California Community Redevelopment Law (Health and Safety Code Section 33000 et seq.) (the "CRL") authorizes the Community Development Commission of the City of National City ("CDC") to accept financial assistance from any public agency, including but not limited to the City, to assist the CDC in the fulfillment, generally, of the CDC's duties under the CRL; and WHEREAS, since the inception of the CDC, the City has been advancing, is currently advancing, and desires to continue advancing in the future, the CDC's annual Administrative Costs to the CDC at the beginning of each Fiscal Year in accordance with this Agreement; and WHEREAS, in consideration for the City's advancement of the CDC's annual Administrative Costs, the CDC desires to reimburse the City in accordance with this Agreement, beginning in Fiscal Year 2012 and ending July 17, 2052; and WHEREAS, the CDC reimbursement to the City, for the City advances, shall not exceed $5,442,827.14 annually, as set forth in the Agreement. PASSED and ADOPTED this 15th day of February, 2011. Ron Morrison, Chairman ATTEST: Brad Raulston, Secretary APPROVED AS TO FORM: Claudia G. Silva CDC General Counsel ATTACHMENT 1 Department 2009-10 Actual 401- City Council 402 - City Clerk 403 - City Manger 404 - Finance 405 - City Attorney 406 - Development Services 407 - Human Resources 408 - General 409 - Non -Departmental 415 - MIS 421 - Engineering 445 - Redevelopment 468 - Advanced Planning/Economic Development 462 - Housing 466 - Healthy Homes 467 - Housing Inspection Program 471- HPRP Grant 464 - Neighborhood Services 472 - Abandoned Vehicle Abatement 522 - Low -Mod Housing Grand Totals 28,473.60 111,651.17 344,261.09 397,621.82 229,358.74 126,464.92 45,049.76 0.00 2,198,026.10 0.00 0.00 473,049.05 288,696.28 55,936.12 116,672.39 103,294.24 0.00 253,360.92 0.00 670,910.94 $5,442,827.14 REIMBURSEMENT AGREEMENT BY AND BETWEEN THE CITY OF NATIONAL CITY AND THE COMMUNITY DEVELOPMENT COMMISSION OF NATIONAL CITY This REIMBURSEMENT AGREEMENT ("Agreement") is effective as of 20_, by and between the CITY OF NATIONAL CITY ("City") and the COMMUNITY DEVELOPMENT COMMISSION OF NATIONAL CITY, a public body corporate and politic, duly organized and existing under the laws of the State of California ("CDC") pertaining to the City's advancement of the CDC's annual Administrative Costs incurred by the CDC in the fulfillment, generally, of the CDC's duties under the California Community Redevelopment Law (Health and Safety Code section 33000 et seq.) ("CRL"). RECITALS A. WHEREAS, Chapter 6, Article 1 of the CRL authorizes the CDC to accept financial assistance from any public agency, including but not limited to the City, to assist the CDC in the fulfillment, generally, of the CDC's duties under the CRL; and B. WHEREAS, since the inception of the CDC, the City has been advancing, the City is currently advancing, and the City desires to advance in the future the CDC's annual Administrative Costs to CDC at the beginning of each Fiscal Year in accordance with this Agreement; and C. WHEREAS, in consideration for the City's advancement of the CDC's annual Administrative Costs, the CDC desires to reimburse the City in accordance with this Agreement, beginning from Fiscal Year 20 and ending July 17, 2052; NOW, THEREFORE, in consideration of the promises and mutual covenants herein contained, and for other valuable consideration, the receipt of which is hereby acknowledged, the CDC and City hereby agree, as follows: DEFINITIONS "Administrative Costs" means all reasonable amounts needed to pay for the CDC's overhead, payroll and benefits, insurance, supplies, telephone, copying, fixtures, furniture, equipment, legal accounting, and other professional fees and costs, and other reasonable customary, and lawful administrative expense of the CDC during any Fiscal Year in which the CDC services were provided. "Available Junior Tax Revenues" means all Tax Revenues received in any Fiscal Year less the following amounts: (1) amounts due and payable with respect to tax -sharing agreements with other jurisdictions entered into by the CDC; (2) amounts due and payable, as required by applicable laws or statutes; (3) amounts owing under owner participation agreements, disposition and development agreements or similar agreements entered into in accordance with the CDC's duties under the CRL; (4) amounts needed to pay debt service, create or replenish reserves, or otherwise required to be paid with respect to bonds issued or other obligations refunding such 1 bonds, in accordance with the CRL, (5) Tax Revenues required to be set aside for low and moderate income housing pursuant to Sections 33334.2, 33334.3 and 33334.6, et seq., of the CRL, including but not limited to proceeds of bonds; and (6) any other obligations secured by a pledge of Tax Revenues in furtherance of the CDC's obligations under the CRL. "Fiscal Year" means any twelve (12) month period beginning on July 1st and ending on the following June 30th. "Tax Revenues" means all taxes annually allocated to the CDC pursuant to Article 6 of Chapter 6 (commencing with Section 33670) of the CRL and Section 16 of Article XVI of the Constitution of the State. TERMS AND CONDITIONS 1. Recitals and Definitions. The Recitals and Definitions, above, are adopted as true and incorporated herein by this reference. 2. Administrative Costs. The CDC's annual Administrative Costs shall be separately identified in the CDC's Annual Budget for each Fiscal Year until termination of this Agreement. 3. City Advancement. On or before July 1st of each Fiscal Year, the City shall advance the CDC's annual Administrative Costs up to an amount not to exceed FIVE MILLION FOUR HUNDRED FORTY TWO THOUSAND EIGHT HUNDRED TWENTY SEVEN DOLLARS AND FOURTEEN CENTS ($5,442,827,14) to the CDC in the exact amounts identified in the CDC's Annual Budget, as adopted by the CDC and City Council for each respective Fiscal Year ("City's Advancement"), beginning from Fiscal Year 2012 and ending on July 17, 2052. 4. CDC Reimbursement. On or before June 30th of each Fiscal Year ("Reimbursement Payment Date") in which the City's Advancement has been made, the CDC shall reimburse the entire amount of the City's Advancement for that Fiscal Year ("Reimbursement Payment"); provided, however, that the CDC shall have the sole and exclusive right to pledge any Available Junior Tax Revenues to the repayment of other indebtedness incurred by the CDC in carrying out the CDC's duties under the CRL. 5. Interest. Any Reimbursement Payment made to the City after the Reimbursement Payment Date applicable to that Reimbursement Payment shall accrue interest compounded annually at the average portfolio earnings rate of the City of National City from the Local CDC Invest Fund (LAIF), on June 30th of each Fiscal Year until paid in full ("Interest"). Reimbursement Payments made to the City pursuant to the terms of this Agreement shall be applied first to the payment of any Interest accrued hereunder, then to reduce the principal balance due. 6. Reimbursement as Indebtedness. The obligations of the CDC under this Agreement to reimburse the City's Advancement shall constitute an indebtedness of the CDC within the meaning of Section 33670 et seq. of the CRL. 2 7. Termination of Services and Reimbursement Obligation. City's obligation to advance the CDC's annual Administrative Costs and the CDC's obligation to make any Reimbursement Payment shall terminate on July 17, 2052. The total Reimbursement Payment for such Fiscal Year through July 17, 2052 shall be immediately due and owing prior to termination. 8. No Pledge of Tax Revenues. Nothing herein shall be interpreted or construed as a pledge of Tax Revenues to secure payment of any Reimbursement Payment or accrued Interest. The CDC may, in its sole and absolute discretion, use any lawful source of revenue to make any Reimbursement Payment and/or accrued Interest in accordance with this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written. CITY OF NATIONAL CITY By: Ron Morrison Mayorr A 1"1'hST: Mike Dalla, City Clerk APPROVED AS TO FORM AND LEGALITY City Attorney By: Claudia Gacitua Silva SIGNATURES CONTINUED ON NEXT PAGE SPACE INTENTIONALLY LEFT BLANK 3 COMMUNITY DEVELOPMENT COMMISSION OF NATIONAL CITY Dated: By: Ron Morrison Chairman A 1'1'BST: Brad Raulston, Secretary APPROVED AS TO FORM AND LEGALITY CDC General Counsel By: Claudia Gacitua Silva KANE, BALLMER & BERKMAN CDC Special Counsel By: Susan Y. Cola 4 ETING DATE: CITY OF NATIONAL CITY, CALIFORNIA COMMUNITY DEVELOPMENT COMMISSION COUNCIL AGENDA STATEMENT February 15, 2011 AGENDA ITEM NO. 27 ITEM TITLE: Resolution of the Community Development Commission of the City of National City approving and adopting the FY 2010-2011 Mid -Year Budget Changes PREPARED BY: eanette Ladrido, DEPARTMEN PHONE: ''619-336.4331' APPROVED BY: CC EXPLANATION: In June 2010, the City Council adopted the FY 2010-2011 budget. As part of the mid -year review, the finance staff reviewed the first six months of actual revenue and expenditures and projected the last six months of the fiscal year. The mid -year budget review was presented to the City Council and members of the community on Saturday, February 5, 2011. Per staff review, it is estimated that the General Fund is on target with the original budget and there is no significant changes recommended. In addition, staff has reviewed the Original Budgets of the CDC and it appears that the original budgets do not require significant revisions. FINANCIAL STATEMENT: APPROVED: ACCOUNT NO. APPROVED: N/A ENVIRONMENTAL REVIEW: NI/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: Finance MIS STAFF RECOMMENDATION: Accept and File BOARD I COMMISSION RECOMMENDATION: N/A rACHMENTS: 1. !Resolution 2. Summary of FY 2011-2012 Mid -Year Budget Changes RESOLUTION NO. 2011 — RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY APPROVING AND ADOPTING THE FY 2010-2011 MID -YEAR BUDGET CHANGES WHEREAS, on June 22, 2010, the Community Development Commission of the City of National City ("CDC") adopted Resolution No. 2010-147 adopting the budget for FY 2010-2011 that was modeled on the FY 2009-2010 budget with minor modifications; and WHEREAS, as part of the mid -year review process, the Finance Department reviewed the first six months for actual revenue and expenditures, and projected the last six months of the fiscal year; and WHEREAS, the mid -year budget review was presented to the CDC and members of the public on February 5, 2011; and WHEREAS, the General Fund is on target with the original budget and there are no significant changes recommended; and WHEREAS, the CDC's Executive Director has recommended approval of the mid -year budget changes as summarized in the attached Exhibit "A". NOW, THEREFORE, BE IT RESOLVED that the Community Development Commission of the City of National City hereby approves and adopts the FY 2010-2011 mid- year budget changes, attached hereto as Exhibit "A". PASSED and ADOPTED this 15th day of February, 2011. Ron Morrison, Chairman ATTEST: Brad Raulston, Secretary APPROVED AS TO FORM: Claudia G. Silva CDC General Counsel FY 2010-2011 MID -YEAR BUDGET CHANGES 302-00000-3999 502-445-462-435-0000 502-445-462-602-0000 506-412-269-470-0000 511-409-000-099-0000 Transfer -in from Tax Increment Fund Housing Asst Payments Housing Asst Payments Principal -HUD 108 Loan Transfer out to CDC Payment Fund 0 125,567 125,567 To pay for prior year CDC reimbursements 8,220,000 0 (8,220,000) To correct appropriation 0 8,220,000 8,220,000 To correct appropriation 225,000 245,000 20,000 Based on debt service schedule To pay for prior year CDC costs 8 close out 666,667 792,234 125,567 fund 302 ETING DATE: CITY OF NATIONAL CITY, CALIFORNIA COMMUNITY DEVELOPMENT COMMISSION COUNCIL AGENDA STATEMENT February 15th, 2011 AGENDA ITEM NO. Q8 ITEM TITLE: Authorize the reimbursement of Community Development Commission expenditures in the amount of $92,975.78 to the City of National City for the period of 01/05/11 through 01/11/11 PREPARED BY: K. Apalategui, PHONE: p19-336-43311 EXPLANATION: Effective July 1, 2008 the Community Development Commission's fiscal operations have been merged with the City of National City. In order to streamline the payment process, the City of National City pays for all expenditures for the CDC. DEPARTMENT: Finance APPROVED BY: pA 04, Attached is a detailed listing of all CDC warrants paid for with the City General Funds. Staff requests approval of the reimbursement of CDC activity. FINANCIAL STATEMENT: ACCOUNT NO. APPROVED. APPROV€I Approve the reimbursement of funds to the City of National City in the amount of $92,975.78 ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: Finance MIS STAFF RECOMMENDATION: Accept and File. BOARD / COMMISSION RECOMMENDATION: N/A TACHMENTS: warrants for the period of 01/05/11 through 01/11/11 C CORPOR.A1 1D COMMUNITY DEVELOPMENT COMMISSION WARRANT REGISTER #28 1/11/2011 PAYEE CSMFO DELTA CARE (PMI) EDCO DISPOSAL CORPORATION KAISER FOUNDATION HEALTH PLANS LASER SAVER INC NAN MCKAY AND ASSOC INC PRO BUILD PRUDENTIAL OVERALL SUPPLY SAN DIEGO CLIPPING SERVICE SDG&E THE LINCOLN NATIONAL LIFE INS TIERRA WEST ADVISORS INC VERIZON WIRELESS PAYROLL Pay period Start Date 1 12/14/2010 DESCRIPTION OUTSTANDING FINANCIAL REPORTING DENTAL INS PMI JAN 2010 WASTE DISPOSAL FOR CDC KAISER INS ACTIVE JAN 2011 MOP 45725 MATERIALS & SUPPLIES SECTION 8 PAYMENTS TO NAN MCKAY MOP 45707 BUILDING MATERIAL MOP 45742 UNIFORMS - NS NEWS READING AND CLIPPING SVC FACILITIES GAS & ELECTRIC LIFE & AD&D STD LTD JAN 2011 TIERRA WEST ADVISORS NOV 2010 VERIZON WIRELESS SERVICE / CITY End Date 12/27/2011 Check Date 1/5/2011 CHK NO DATE AMOUNT 239846 1/11/11 25.00 239851 1/11/11 -8 14 239858 1/11/11 209.50 239876 1/11/11 -190.50 239881 1/11/11 41.13 239890 1/11/11 224.00 239904 1/11/11 18.23 239907 1/11/11 46.91 239914 1/11/11 65.00 239919 1/11/11 34.20 239936 1/11/11 -1.32 239938 1/11/11 8,895.00 239942 1/11/11 366.65 A/P Total $ 9,725.66 83,250.12 GRAND TOTAL $ 92,975.78 ETING DATE: CITY OF NATIONAL CITY, CALIFORNIA COMMUNITY DEVELOPMENT COMMISSION COUNCIL AGENDA STATEMENT February 15th, 2011 AGENDA ITEM NO. 9 ITEM TITLE: Authorize the reimbursement of Community Development Commission expenditures in the amount of $54,373.02 to the City of National City for the period of 01/12/11 through 01/18/11 PREPARED BY: IK. Apalateguiii PHONE: 1619-336-433f EXPLANATION: DEPARTMENT: Finance APPROVED BY: 4+ L.,e0Cyjt) Effective July 1, 2008 the Community Development Commission's fiscal operations have been merged with the City of National City. In order to streamline the payment process, the City of National City pays for all expenditures for the CDC. Attached is a detailed listing of all CDC warrants paid for with the City General Funds. Staff requests approval of the reimbursement of CDC activity. FINANCIAL STATEMENT: ACCOUNT NO. APPROVED: APPROVED: Approve the reimbursement of funds to the City of National City in the amount of $54,373.02 ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: Finance MIS STAFF RECOMMENDATION: Accept and File. j BOARD / COMMISSION RECOMMENDATION: N/A TACHMENTS: warrants for the period of 01/12/11 through 01/18/11 PAYEE CITY OF NATIONAL CITY CHRISTENSEN & SPATH LLP DANTE'S MODULAR PERFORMANCE DIXIELINE BUILDERS DTSC EQUIFAX INFORMATION SVCS GEOSYNTEC CONSULTANTS HUSK PARTNERS POWER PLUS PRUDENTIAL OVERALL SUPPLY STAPLES ADVANTAGE SWEETWATER AUTHORITY VISTA PAINT SECTION 8 SECTION 8 HAPS PAYMENTS COMMUNITY DEVELOPMENT COMMISSION WARRANT REGISTER #29 1/18/2011 DESCRIPTION PETTY CASH P/E NOV 30, 2010 LEGAL SERVICES/ REDEVELOPMENT ECONOMIC DEVELOPMENT LOAN REIMBURSEMENT / CASA QUINTA NC PUBLIC WORKS YARD-401294(SM) CREDIT CHECK / SEC 8 BAY MARINA DRIVE CONSULTING SERVICES / CITY MNGR EQUIP RENTAL (POWER POLES) MOP45742 UNIFORMS-NS MOP 45704 OFFICE SUPPLIES-S8 WATER UTILITIES / CDC MOP 68834 PAINT-NS Start Date 1/12/2011 End Date 1/18/2011 CHK NO DATE AMOUNT 239982 1/18/11 33.36 239963 1/18/11 1,300.00 239964 1/18/11 995.00 239965 1/18/11 18, 603.76 239966 1/18/11 983.89 239967 1/18/11 79.81 239968 1/18/11 1,217.14 239969 1/18/11 7,500.00 239970 1/18/11 195.00 239971 1/18/11 13.87 239972 1/18/11 45.52 239973 1/18/11 108.98 239974 1/18/11 320.96 A/P Total S 31.397.29 22,975.73 GRAND TOTAL S 54,373.02 CITY OF NATIONAL CITY, CALIFORNIA COMMUNITY DEVELOPMENT COMMISSION AGENDA STATEMENT MEETING DATE: February 15, 2011 AGENDA ITEM NO. 30 EM TITLE: (A resolution approving the Preliminary Report for the Amendment to the Redevelopment Plan for the National City Redevelopment Project Area and authorizing transmittal of the Preliminary Report pursuant to Health and Safety Code Sections 33333.11(e) and 33344.5.1 PREPARED BY: Patricia Beard DEPARTMENT: Redevelopment Divisio A)pPHONE: 142551 APPROVED BY. EXPLANATION: IThe Commission is pursuing an Amendment to the Redevelopment Plan as follows: increase the tax increment limit from $300 million to $475 million, increase the amount of bonded indebtedness from $100 to $150 million, increase by ten (10) years the timeframe to receive tax increment and the effectiveness of the redevelopment plan, increase the affordable housing deposit in the Low and Moderate Income Housing Fund to no less than 30 percent, modify the duration of affordability for residential projects affordable to low- to moderate -income households, reinstate the time frame to commence eminent domain on certain non-residential properties within the Existing Area for twelve (12) years, and modify Exhibit D delineating properties subject to eminent domain. FINANCIAL STATEMENT: ACCOUNT NO. Not applicable APPROVED: APPROVED: Finance MIS ENVIRONMENTAL REVIEW: This action in not considered a project under the definition set forth in CEQA guidelines Section 15378; however, a CEQA analysis is being prepared for the Amendment, which will be submitted to the Commission and City Council prior to adopting the Amendment. ORDINANCE: INTRODUCTION: FINAL ADOPTION: STAFF RECOMMENDATION: Approve and transmit the Preliminary Report to the affected taxing entities fpr the proposed Amendment. BOARD / COMMISSION RECOMMENDATION: ATTACHMENTS: Preliminary Report RESOLUTION 2011 — RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF NATIONAL CITY APPROVING THE PRELIMINARY REPORT FOR THE AMENDMENT TO THE REDEVELOPMENT PLAN FOR THE NATIONAL CITY REDEVELOPMENT PROJECT AREA, AND AUTHORIZING TRANSMITTAL OF THE PRELIMINARY REPORT PURSUANT TO HEALTH AND SAFETY CODE SECTIONS 33333.11 (e) AND 33344.5 WHEREAS, the Community Development Commission of the City of National City ("CDC") has undertaken proceedings to adopt an amendment ("Amendment") to the National City Redevelopment Project Area ("Project Area"); and WHEREAS, the Amendment for the Project Area proposes to increase the tax increment from $300 Million to $475 Million, increase the amount of bonded indebtedness from $100 Million to $150 Million, increase the effectiveness of the Redevelopment Plan by ten (10) years, increase the timeframe to receive tax increment by ten (10) years, increase the affordable housing deposit in the Low and Moderate Income Housing Fund to not less than 30 percent (30%), modify the duration of affordability for low to moderate -income housing, re- instate eminent domain for twelve years on certain non-residential properties, and make modifications to the boundaries for non-residential properties subject to eminent domain as indicated in Exhibit D; and WHEREAS, pursuant to California Community Redevelopment Law (Health and Safety Code Section 33000, et seq.) ("CRL") the CDC shall prepare and send to each affected taxing entity a Preliminary Report as detailed in Sections 33333.11(e) and 33344.5 of the CRL; and WHEREAS, the proposed Amendment for the Project Area will allow the CDC to improve its bonding capacity and address blighting conditions that remain in the Project Area; and WHEREAS, the proposed Preliminary Report does not propose development or uses that are not already included in the General Plan and is in conformance with the General Plan. NOW, THEREFORE, BE IT RESOLVED that the Community Development Commission of the City of National City does hereby: Section 1. Approve the Preliminary Report and authorizes staff to transmit the Preliminary Report to each affected taxing agency for the purpose of consultations in accordance with the provisions of the CRL. Section 2. The Community Development Commission of the City of National City hereby finds that the Project Area contains no lands that are in agricultural use and therefore, the CDC is not required to transmit this Preliminary Report to the entities described in Section 33344.5(g) of the CRL. --- Signature Page to Follow --- Resolution No. 2011 — Page 2 PASSED and ADOPTED this 15th day of February, 2011. Ron Morrison, Chairman ATTEST: Brad Raulston, Secretary APPROVED AS TO FORM: Claudia G. Silva CDC General Counsel CITY OF NATIONAL CITY, CALIFORNIA COMMUNITY DEVELOPMENT COMMISSION AGENDA STATEMENT The Community Development Commission of the City of National City has undertaken proceedings to adopt an amendment to the National City Redevelopment Project Area ("Project Area"). The proposed Amendment will improve the bonding capacity of the Commission and allow the Commission to address blighting conditions that remain in the Project Area. The Amendment will positively affect the Project Area by increasing the tax increment limit by $175 million and increasing the amount of bond indebtedness by $50 million. As part of the redevelopment plan amendment process a Preliminary Report is required to be prepared pursuant to Health and Safety Code Sections 33333.11(e) and 33344.5. The Preliminary Report must also be circulated to all affected taxing entities as defined in Section 33353.2, the Department of Finance, and the Department of Housing and Community Development. The Preliminary Report informs the CDC, affected taxing agencies and other interested parties about the reasons for the Amendment. The Preliminary Report includes the information required by Health and Safety Code Sections 33333.11(e) and 33344.5 as follows: • the reasons for the amendment, • a map of the remaining blight in the Project Area, • a description of the physical and economic blighting conditions remaining in the Project Area, • a description and proposed method of financing the projects or programs proposed to eliminate the remaining blight, • an amendment to the implementation plan, and • a neighborhood impact report. National City Redevelopment Project Area DRAFT Textual Amendment to the Redevelopment Plan Adopted: Ordinance No.: Redevelopment Agency of the City of National City TEXTUAL AMENDMENT to the REDEVELOPMENT PLAN for the NATIONAL CITY REDEVELOPMENT PROJECT AREA INTRODUCTION This Amendment to the Redevelopment Plan for the National City Redevelopment Project Area ("Amendment") accomplishes the following changes in the Existing Area: • increase the annual tax increment limit from $300 million to $475 million, • increase the amount of bonded indebtedness from $100 to $150 million, • increase by ten (10) years the timeframe to receive tax increment and the effectiveness of the redevelopment plan, • increase by ten (10) years the effectiveness of the redevelopment plan, • modify the duration of affordability for residential projects affordable to low- to moderate -income households, • reinstate the time frame to commence eminent domain on certain properties within the Existing Area for non-residential properties for twelve (12) years from the date of adoption of the ordinance approving the Amendment, and • modify Exhibit D delineating properties subject to eminent domain. The Amendment will enable the Agency to retain all tools available to the Agency in implementing the Redevelopment Plan. The changes by this Amendment are not to be construed to amend, modify, change or affect in any other provisions the text of the Plan and does not add or delete territory from the boundaries of the National City Redevelopment Project Area. The Plan is hereby amended as follows: -1- AMENDMENT to the REDEVELOPMENT PLAN for the NATIONAL CITY REDEVELOPMENT PROJECT AREA AMENDMENT That Section 603 of the Redevelopment Plan entitled "Acquisition of Real Property" is hereby amended to modify the 4th paragraph to read as follows (Changes are in redline and strikethrough): Except as otherwise provided herein, or otherwise provided by law, no eminent domain proceeding to acquire property within the Project Area shall be commenced within the Center City Area, the Downtown Original Area, the Downtown 1985 Amendment Area, and the Added Area after ten (10) twelve (12) years following the date of adoption of the 2007 2011 Ordinance amending this Plan. Such time limitation may be extended only by amendment of this Plan. That Section 637 of the Redevelopment Plan entitled "Increased and Improved Supply" is hereby amended to modify the 1S` sentence of the 1S` paragraph to read as follows (Change is in redline and strikethrough): "Except as otherwise permitted by law, not less than twenty thirty percent (20 30%) of all taxes which are allocated to the CDC pursuant to subdivision (b) of Section 33670..." That Section 638 of the Redevelopment Plan entitled "Duration of Affordability" is hereby amended to modify the 2°d and 3rd paragraphs to read as follows (Changes are in redline and strikethrough): Fifteen Fifty -Five years for rental units. However, the CDC ..." "b. Fortv-Five years for owner -occupied units. However, the CDC may permit sales of owner -occupied units prior to the expiration of the -1-0 45-year period for a price in excess of that ..." That Section 802 of the Redevelopment Plan entitled "Tax Increment Revenue" is hereby amended to modify the 7`h, 8th, 9 , 10`h, 11h, 12th and 13th paragraphs to read as follows (Changes are in redline and strikethrough): "The number of dollars of taxes which may be divided and allocated to the CDC pursuant to Section 33670 of the Redevelopment. Law, inclusive of payments to taxing agencies, shall not exceed $380 475 million, ...." -2- "With respect to the E.J. Christmanl Area, notwithstanding any other provision of this Plan,... the CDC shall not pay indebtedness with the proceeds of property taxes received pursuant to Heath and Safety Code Section 33670 or receive property taxes pursuant to Health and Safety Code Section 33670 after ewmbef 13, 2019 December 18, 2030. These limitations ..." "With respect to the South Bay Town and Country Area, notwithstanding any other provision of this Plan,... the CDC shall not pay indebtedness with the proceeds of property taxes received pursuant to Heath and Safety Code Section 33670 or receive property taxes pursuant to Health and Safety Code Section 33670 after June 24, 2025 July 25, 2036. These limitations ..." "With respect to the Center City Area, notwithstanding any other provision of this Plan,... the CDC shall not pay indebtedness with the proceeds of property taxes received pursuant to Heath and Safety Code Section 33670 or receive property taxes pursuant to Health and Safety Code Section 33670 after Apiil 13, 2026 May 13. 2037. These limitations ..." "With respect to the E.J, Christman2 Area, notwithstanding any other provision of this Plan,... the CDC shall not pay indebtedness with the proceeds of property taxes received pursuant to Heath and Safety Code Section 33670 or receive property taxes pursuant to Health and Safety Code Section 33670 after December 13, 2027 January 13, 2039. These limitations ..." "With respect to the Downtown Original Area, notwithstanding any other provision of this Plan,... the CDC shall not pay indebtedness with the proceeds of property taxes received pursuant to Heath and Safety Code Section 33670 or receive property taxes pursuant to Health and Safety Code Section 33670 after December 1, 2031 January 1. 2042. These limitations ..." "With respect to the Downtown 1985 Amendment Area, notwithstanding any other provision of this Plan,... the CDC shall not pay indebtedness with the proceeds of property taxes received pursuant to Heath and Safety Code Section 33670 or receive property taxes pursuant to Health and Safety Code Section 33670 after April 16, 2035 May 16, 2046. These limitations ..." That Section 803 of the Redevelopment Plan entitled "CDC Bonds" is hereby amended to modify the 4`h paragraph to read as follows (Changes are in redline and strikethrough): The amount of bonded indebtedness, to be repaid in whole or in part from the allocation of taxes pursuant to Section 33670 of the Redevelopment Law, which can be outstanding at one time shall not exceed $400.0 150.0 million, except by amendment to this Plan. -3- That Section 1100 of the Redevelopment Plan entitled "Duration of Plan" is hereby amended to modify the 1st, 2°a 3`a, 4`h 5th and 6th paragraphs to read as follows (Changes are in redline and strikethrough): "With respect to the E.J. Christmanl Area, except for the nondiscrimination and nonsegregation provisions which shall run in perpetuity, the provisions of this Plan shall expire on November ' 8 December 18, 2020. After this time limit, the Agency shall have no authority to act pursuant to this Plan except..." "With respect to the South Bay Town and Country Area, except for the nondiscrimination and nonsegregation provisions which shall run in perpetuity, the provisions of this Plan shall expire on June 21, 2015 July 25, 2026. After this time limit, the Agency shall have no authority to act pursuant to this Plan except..." "With respect to the Center City Area, except for the nondiscrimination and nonsegregation provisions which shall run in perpetuity, the provisions of this Plan shall expire on April 13, 2016 May 13, 2027. After this time limit, the Agency shall have no authority to act pursuant to this Plan except..." "With respect to the E.J. Christmanl Area, except for the nondiscrimination and nonsegregation provisions which shall run in perpetuity, the provisions of this Plan shall expire on December 13, 2017 January 13. 2029. After this time limit, the Agency shall have no authority to act pursuant to this Plan except..." "With respect to the Downtown Original Area, except for the nondiscrimination and nonsegregation provisions which shall run in perpetuity, the provisions of this Plan shall expire on December 1, 2021 January 1, 2032. After this time limit, the Agency shall have no authority to act pursuant to this Plan except..." "With respect to the Downtown 1985 Amendment Area, except for the nondiscrimination and nonsegregation provisions which shall run in perpetuity, the provisions of this Plan shall expire on April 16, 2025 May 16, 2036. After this time limit, the Agency shall have no authority to act pursuant to this Plan except..." That Exhibit D of the Redevelopment Plan entitled "Location of Real Property Potentially Subject to Acquisition by Eminent Domain" is hereby amended to add ls` and 2nd bullet points as follows: Existing Area (as defined in Section 300 of this Plan) • All parcels located between Highland Avenue and Interstate 805 on the north and south sides of Plaza Boulevard as indicated on the attached map. -4- • All parcels located between East 18h Street on the north interstate 805 on the east, Highway 54 on the south, and "N" & Palm Avenues on the east as indicated on the attached map. • All parcels located immediately east and adjacent to National City Boulevard, between... -5- OF REAL PROPERTY POTENTIALLY SUBJECT TO EMINi - 6 - ITEM 31 2/15/11 U.S. Department of Housing and Urban Development Office of Community Planning and Development Los Angeles Field Office, Region IX 611 W. 6th Street, Suite 1000 Los Angeles, CA 90017 2010 Chris Zapata, City Manager City of National City 1243 National City Boulevard National City, CA 91950-4301 Dear Mr. Zapata: SUBJECT: CLEARANCE OF FINDINGS —FISCAL YEAR 2010 Community Development Block Grant (CDBG) Program Thank you for your letter detailing your City's responses and corrective actions to the findings identified in our monitoring report dated September 16, 2010. Outlined below are the results of your monitoring responses. Finding One — Public Facilities and Improvements The City constructed and/or replaced sidewalks, curbs, gutters and drive approaches in over fifty separate locations in the eligible neighborhoods. Two of the fifty segments were in commercial and industrial locations. The commercial location was 901-907 East Plaza Boulevard. The industrial location was 222 West Plaza Boulevard. Corrective Action: To correct this violation, the City has two choices: 1) qualify the two sites under another national objective; or 2) reimburse the CDBG Program for the construction cost of the two sites. In addition, the City should revise its internal process to require the Community Development staff to review and approve each location where the Public Works Department intends to make these infrastructure improvements, including change orders. Please provide a copy of its written policies and procedures ensuring that CDBG funds will only be used in residential areas. City's Response: "Your office requested that the City identify all concrete improvement sites on the redevelopment area map previously provided and that a change from LMA to SBA national objective be completed on IDIS, the HUD project database. During a review by City staff of the Project, it was noted that other funding sources were used that cover the total cost of the two Improvements in question. In addition to CDBG funds, the Project was funded by $14,692.41 from City General Fund and $6,370.00 from the Gas Tax Fund. The total hard (construction) cost of the Improvements was $14,301.75. Since the cost of both Improvements is Less than the contribution made to the Project by local and state funds, the City believes that a change in national objective to the Project will not he necessary. "The City's Engineering Division has also agreed to sign a Memorandum of Understanding stating that project work funded with CDBG and justified by the LMA national objective will only be completed in residential areas. Furthermore, the Engineering Division has incorporated policies and procedures to safeguard against work being completed in commercial and industrial zones when the activity is designated under the LMA national objective." Status: Closed. No reimbursement is necessary, since local funds had been used to finance the ineligible parts of the project. Finding Two — ADA Compliance In 2007, the City funded $50,000 for constructing the Christmas in July warehouse office. Included in the project was a ramp to the front door of the office to provide access to those with disabilities. City's Response: "Christmas in July National City has reconstructed the ramp. The ramp has passed inspection with the City's Building and Safety Division." The City provided photographs of the ramp. Status: Closed. Concern One — Monitoring The City has been remiss in documenting its monitoring of its subrecipients in the past. However in the past couple months; the City has developed a monitoring schedule, checklist and a written process. While two monitoring visits have been initiated using their written process, neither has been concluded. The City's first monitoring visit was in July of 2010. The City found that the project was completed according to the City's requirements. A photograph was attached to the monitoring form but the rest of the form was not completed because they felt that most of the questions did not apply to the project. The monitoring session of the second subrecipient, Christmas in July, uncovered numerous issues which are in the process of being addressed. Our staff did verify that the City monitored their HOME projects by reviewing the Summercrest Apartment monitoring file. City's Response: The City enclosed is a copy of the completed Monitoring Checklist for Christmas in July. Their monitoring findings have not been cleared by Christmas in July. The organization has agreed to provide a full response to the City's Monitoring Report by February 14`r. Status: Closed. The City will provide a copy of the Monitoring Report when received, but it is evident based on the material it has submitted that the City has complied. Concern Two — IDIS Cleanup 2 The City has made a tremendous effort in cleaning up inaccurate data entries made prior to hiring the current program staff. This is reflective in improving its statewide ranking mentioned earlier in this letter. However, there are some remaining activities that need to be deleted or combined with other activities in IRIS. City's Response: The City is using HOME administrative or redevelopment funds to correct the errors. Status: Closed. However our office will continue to monitor these projects to assure that the corrections are made in IDIS. We want to thank your staff for their complete cooperation in responding to our questions throughout the review. If you have any questions, please contact Dean Huseby, Community Planning and Development Representative, at (213) 534-2569. Sincerely, William Vasquez,'Directo, Office of Community Pla & Development Enclosure cc: Alfredo Ybarra Carlos Aguirre Frank Riley ITEM #32 2/15/11 VERBAL UPDATE ON BLOOD DRIVE RESULTS (COMMUNITY SERVICES) J ITEM #33 2/15/11 CLOSED SESSION REPORT (CITY ATTORNEY)