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HomeMy WebLinkAbout09 - Assessment District 75 - Balboa Business DistrictCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 9 June 22, 2004 TO: Mayor and Members of The City Council FROM: Public Works Department Patrick Arciniega, Associate Engineer 949 - 644 -3311 parciniega @city.newport- beach.ca.us SUBJECT: SALE OF BONDS FOR UNDERGROUND ASSESSMENT DISTRICT NO. 75 BALBOA BUSINESS DISTRICT RECOMMENDATIONS: Adopt Resolution No. 2004- which sets forth the terms and conditions for the sale of bonds and approves the Purchase Agreement submitted by the designated underwriter for Assessment District No. 75. DISCUSSION: On April 27, 2004, Assessment District No. 75 was formed and Bond Counsel, Robert Hessell, recommended the final proposal for the sale of bonds be addressed at the June 22, 2004, Council Meeting. The confirmed assessments were based on the first installments being collected by the 2004 -2005 tax bill — with provision made for capitalized interest. All transmittals must be in the hands of the Tax Collector by August 10, 2004. To date the City has received $283,263.10 in prepaid contributions from property owners, which includes the $46,885.36 payment for the five City -owned parcels in the district. The total amount of unpaid assessments remains $821,203.67, which will be financed by the sale of bonds. Interest rates and bond discounts have not been established yet. The resolution, in the form presented, approves all formal terms and conditions related to the sale of bonds through approval of the Bond Indenture, and approves the Bond Purchase Contract submitted by M.L. Stern & Company, subject to modifications as necessary and to approval by the City Manager. The final pricing of bonds will be delegated to the Finance Director (Administrative Services Director). Environmental Review: This project qualifies for a Class 2 California Environmental Quality Act (CEQA) exemption under Section 15302, item "d" of the Implementing Guidelines as follows: SUBJECT: SALE OF BONDS FOR UNDERGROUND ASSESSMENT DISTRICT NO. 75 BALBOA BUSINESS DISTRICT JUNE 22, 2004 Page 2 "Conversion of overhead electric utility distribution system facilities to underground including connection to existing overhead electric utility distribution lines where the surface is restored to the condition existing prior to the undergrounding." Public Notice: None required. Assessment District 75 was formed by Public Hearing vote on April 27, 2004. Statement of Assessment and Notice of Recordation of Assessment and Diagram was published in the Daily Pilot on May 6 & 12, 2004. Letters were mailed May 3, 2004 to residents of Assessment District No. 75 with instructions for assessment payment and the cash - payment deadline of May 27, 2004. Funding Availability: Funds will be available subject to the sale of bonds for this Assessment District. Prepared by: Patrick Arciniega Associate Engine Attachments: Exhibit showing District Boundary Resolution — Sale of Bonds Submitted by: time i9: . I Mall D �GN P`®i 0 m � J Z ao c N n z F U A F z A 0 C. 0 0 0 Cu x U K f Wj J N O F. U z Q a H v] z c z C] 4 ¢O U C7 O U n 3 W 0.l ti 0 aJ cc ul CD 133�1s I I I I / i 1 1 p / a / o m m uj H � 1 w I r I � I on NIM NOiE)NIHSVM nw-M A W fl w � s w s .z, w u ¢ y z � V1 V1 W W z z J F Z ¢ a a w y o o w 0 0 y o a I z LoG] w I ° I IO w J I 133�1s I I I I / i 1 1 p / a / o m m uj H � 1 w I r I � I on NIM NOiE)NIHSVM nw-M RESOLUTION NO. 2004 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH AUTHORIZING ISSUANCE OF BONDS AND APPROVING THE FORM OF CERTAIN BOND DOCUMENTS FOR ASSESSMENT DISTRICT NO. 75 (BALBOA BUSINESS DISTRICT) WHEREAS, this City Council has previously adopted its Resolution of Intention and initiated proceedings for the acquisition of certain public works of improvement, together with appurtenances and appurtenant work, in a special assessment district designated as Assessment District No. 75 (Balboa Business District) (hereinafter referred to as the "Assessment District') pursuant to the terms and provisions of the "Municipal Improvement Act of 1913 ", being Division 12 of the Streets and Highways Code of the State of California (the "Improvement Act'); and WHEREAS, this legislative body, to finance the acquisition and construction of such improvements, declared in its Resolution of Intention to issue bonds against any unpaid assessments as certified by the Treasurer, such bonds to issue pursuant to the terms and provisions of the "Improvement Bond Act of 1915 ", being Division 10 of such Code (the 'Bond Act'); and WHEREAS, at this time this legislative body desires to set forth the general terms and conditions relating to the authorization, issuance and administration of such bonds; and WHEREAS, the form of a bond indenture (the 'Bond Indenture "), a preliminary official statement (the 'Preliminary Official Statement'), and a bond purchase agreement (the 'Bond Purchase Agreement') authorizing the sale of bonds to M. L. Stern & Co., LLC, as underwriter, which documents contain information including but not limited to the Assessment District and the terms and conditions of the bonds, are on file with the City Clerk and are ready for approval. NOW, THEREFORE, it is hereby Resolved, Determined, and Ordered as follows: SECTION 1. Recitals. The above recitals are true and correct. SECTION 2. Bonds Authorized. Pursuant to the Bond Act, this Resolution and the Bond Indenture (hereafter defined), the issuance, sale, and delivery of limited obligation improvement bonds of the City for the Assessment District, to be designated as City of Newport Beach Assessment District No. 75 (Balboa Business District) Limited Obligation Improvement Bonds (the 'Bonds "), is hereby authorized in an aggregate principal amount not to exceed the unpaid assessments. The date, manner of payment, interest rate or rates, interest payment dates, denominations, form, registration privileges, manner of execution, place of payment, terms of redemption and other terms, covenants and conditions of the Bonds shall be as provided in the Bond Indenture as executed. SECTION 3. Authorization and Conditions. The City Manager, the Director of Administrative Services, and such other official of the City as may be designated by the City Council, or any of them (each an "Authorized Officer'), are hereby authorized and directed to execute and deliver the various documents and instruments described in this Resolution with such additions and changes as the Authorized Officer deems advisable, provided that no additions or changes shall authorize an aggregate principal amount of Bonds in excess of the unpaid assessments. The approval of such additions or changes shall be conclusively evidenced by the execution and delivery of such documents or instruments by an Authorized Officer, upon consultation with and review by the City Attorney and bond counsel. SECTION 4. Bond Indenture. The form of Bond Indenture is hereby approved. The Authorized Officer is hereby authorized and directed to cause the same to be completed and executed on behalf of the City. SECTION 5. Official Statement and Continuing Disclosure Agreement. The City Council hereby approves the form of the Preliminary Official Statement describing the financing described therein, together with any changes therein or additions thereto deemed advisable by the Authorized Officer. Pursuant to Rule 15c2 -12 under the Securities Exchange Act of 1934 (the "Rule ") the Authorized Officer is authorized to determine when the Preliminary Official Statement is deemed final, and the Authorized Official is hereby authorized and directed to provide written certification thereof. The execution of the final Official Statement, which shall include such changes and additions thereto deemed advisable by the Authorized Officer pursuant to the Rule, shall be conclusive evidence of the approval of the final Official Statement by the City. The Council hereby authorizes the distribution of the final Official Statement by the purchaser of the Bonds. SECTION 6. Sale of Bonds. This City Council hereby authorizes and approves the sale of the Bonds by negotiation to M. L. Stern & Co., LLC (the "Underwriter "). The form of the Bond Purchase Agreement is hereby approved and the Authorized Officer is hereby authorized and directed to execute the Bond Purchase Agreement on behalf of the City upon the execution thereof by the Underwriter, subject to Section 3 and further subject to the following conditions: the aggregate principal amount of the bonds is equal to the unpaid assessments within the Assessment District (without regard to the portion of the assessment related to a federal tax on contributions to capital), the underwriter's discount 2 does not exceed two percent (2 %) and the net interest rate on the bonds shall not exceed seven percent (7 %) per annum. SECTION 7. Bonds Prepared and Delivered. Upon the execution of the Bond Purchase Agreement, the Bonds shall be prepared, authenticated and delivered, all in accordance with the applicable terms of the Bond Act and the Bond Indenture, and the Authorized Officer and other responsible City officials are hereby authorized and directed to take such actions as are required under the Bond Purchase Agreement and the Bond Indenture to complete all actions required to evidence the delivery of the Bonds upon the receipt of the purchase price thereof from the Underwriter. SECTION 8. Annual Assessment Installments. A copy of the resolution confirming the assessments, which assessments shall constitute the security for the Bonds, shall be delivered to the City Treasurer, and the City Treasurer shall keep or cause to be kept the record showing the several installments of principal and interest on the assessments by assessor's parcel number that are to be collected each year during the term of the bonds. The City Treasurer shall establish procedures to promptly respond to inquiries concerning installments on current tax roles as prescribed by section 53754 of the Government Code of the State of California. An annual portion of each assessment, together with annual interest on said assessment, shall be payable in the same manner and at the same time and in the same installment as the general property taxes of the County of Orange and shall be payable and become delinquent at the same time and in the same proportionate amount. Each year the annual installments shall be submitted to the County Auditor for purposes of collection. SECTION 9. Covenant to Initiate Foreclosure Proceedings. This legislative body does further specifically covenant for the benefit of the bondholders to commence and prosecute to completion foreclosure actions regarding delinquent installments of the assessments in the manner, within the time limits and pursuant to the terms and conditions as set forth in the Bond Indenture as submitted and approved through the adoption of this Resolution. SECTION 10. Actions. All actions heretofore taken by the officers and agents of the City with respect to the establishment of the Assessment District and the sale and issuance of the bonds are hereby approved, confirmed and ratified, and the proper officers of the City are hereby authorized and directed to do any and all things and take any and all actions and execute any and all certificates, agreements, contracts, and other documents, which they, or any of them, may deem necessary or advisable in order to consummate the lawful issuance and delivery of the Bonds in accordance with Bond Act, this Resolution, the Bond Indenture, the Bond Purchase Agreement, and any certificate, agreement, contract, and other document described in the documents herein approved. 9 SECTION 11. Effective Date. This resolution shall take effect from and after its adoption. PASSED, APPROVED and ADOPTED this 22nd day of June, 2004. AYES: NOES: ABSENT: ATTEST: City Clerk Mayor CERTIFICATE OF PAID AND UNPAID ASSESSMENTS ASSESSMENT DISTRICT NO. 75 (BALBOA BUSINESS DISTRICT) WHEREAS, an assessment and diagram was recorded in the Office of the appointed Superintendent of Streets of the CITY OF NEWPORT BEACH, CALIFORNIA, in accordance with law, for the acquisition of improvements in a special assessment district known and designated as Assessment District No. 75 (Balboa Business District), and, WHEREAS, notice of the recordation of such assessment and of the time and place where and within which such assessments were to be paid has been duly given in the time and form provided by law, and certain of such assessments have been paid in whole or in part. NOW, THEREFORE, I, the undersigned Treasurer, as collection officer, do hereby CERTIFY that the lists hereinafter set forth are true, correct and complete lists of all assessments paid and unpaid upon such assessment, and are hereby made and filed by me according to law, and such lists, with respective assessment and diagram numbers of the lots or parcels of land assessed, and the amounts paid or unpaid thereon, are as set forth on the attached list, marked Exhibit "A" and by reference incorporated herein. The total or aggregate amount of UNPAID ASSESSMENTS is the sum of Spa, 80T.9b I, the undersigned, hereby certify that the list of paid and unpaid assessments, attached hereto. marked Exhibit "A ", and by reference incorporated herein, was filed in my office on the Cj1-1� day of .% —z _, 2004. DATED: 6 – e% 2004. 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N O m o m N O V N M m L7 m Ir M v MN N lD (D to o m o V O m M V m N V (D N V r M M m -MN M V m m tD P m n � � fA FA V� M»�f�fl M»N»lf3 fA N�FA FA FA NO e3 to of eA �s4 eA m m i 6] N m m ID N N N N Q N Q O N Q 0 D O N Q N Q N Q D N O N Q Q VJ m Q Q N VJ h N E EMM T L T T T m m T imw °'m mm °� Emmm Em mmm w w m m w w`' w 3 w' m w w w m w¢¢ a w w -D M O m o n 0 m o M N D Z o 0 m 0 m 0 D Z m 0 .n 0 M 0 0 r 0 o m 0 w 0 v 0 O 0 v 10 LO M M N m N O N N m m N 47 N N N m W o N N O N N C? C O O C O a 4 . . . . . . . . O o v. O o O o v. O o o O v. O o o O o O o 0 0 0 0 0 CITY OF NEWPORT BEACH PUBLIC WORKS DEPARTMENT 3300 Newport Boulevard P.O. Box 1768 Newport Beach, CA. 92659 -1768 June 21, 2004 TO: LaVonne Harkless City Clerk City of Newport Beach SUBJECT: Assessment Districts 75 Balboa Business District We are transmitting the following: No. Copies Description Request for Advertising Declaration of Service by Mail Proof of Publication Remarks: For your records. Iris Lee Project Engineer F USERSIPB \V.PAminiegi AD'AD751,Tmns- CClerk- DOGS -AD -75 doc 7 0 CITY OF NEWPORT BEACH PUBLIC WORKS DEPARTMENT REQUEST FOR ADVERTISING TO: DAILY PILOT / Attention: Mike Sletten 949 - 646 -5008 — Fax (Phone 949 - 574 -4251) TYPE OF AD: LEGALS TITLE: STATEMENT OF ASSESSMENT DATESITEM IS TO RUN: THURSDAY, MAY 6, 2004 AND WEDNESDAY, MAY 12, 2004 SPECIAL INSTRUCTIONS: Publish twice L Send Proof of Publication to the attention of Shauna Oyler, Public Works Department Mail Invoice for Payment to: P/NAME OF PERSON PLACING AC CC: City Clerk Shauna Oyler Public Works Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 April 20, 2004 APR v C 104 Mary Locey Phone No. 949 - 644 -3311 f:\ userslpbw \parciniega \2d \ad75�publisn- pilot- statement of assessment.doc 0 6 GFB- FRIEDRICH & ASSOC., INC. DECLARATION OF SERVICE BY MAIL I hereby declare that I am a citizen of the United States of America, over the age of 18 years, and a resident of the County of Riverside, State of California. On the date shown below, under my direction, was deposited in the United States Mail at the City of Newport Beach City Hall, California, at the request of the City Council of the City of Newport Beach, sealed envelopes (postage prepaid) each of which contained a true copy of each document, as follows: Date of Mailing: Delivered to the Newport Beach City Hall on May 3, 2004 for postmark no later than May 4, 2004. Document(s) Mailed: Statement of Assessment for Assessment District No. 75, including City of Newport Beach Transmittal Letter, full and discounted assessment amounts, and Assessment Bond Financing Program Property Owner Information (refer to attached samples). Name(s) and Address(es): All Assessed Property Owners (111 parcels) within the boundary of Assessment District No. 75, whose properties are listed on the "Assessment Roll" in the Confirmed Engineer's Report for Assessment District No. 75, dated April 27, 2004. At the time of said mailing, there was regular communication by mail between the place of mailing and the places so addressed. I declare under penalty of perjury that the foregoing is true and correct. Executed on May 10 , 2004, at Riverside, California. By ohn A. Friedri h Assessment Engineer CITY OF NEWPORT BEACH ASS r"" 9T DISTRICT NO. 75 (BALBOA BUSINESS Authorized to publish Advertisements of ail koncluding public notices by DISTRICT Decrea of tte Superior Coun of Orange Count, Cali,,ornia Number A- 5 214, STATEMENT OF Scpte:nbe: 19, 196;, aad A -24531 11 11, 1953. ASSESSMENT NOTICE OF RECORDATION OFASSESS ENT AND PROOF OF PUBLICATION STATE OF CALIFORNIA) ) ss. COUNTY OF ORANGE ) I am a Citizen of the United States and a resident of the County aforesaid; I am over the age of eighteen years, and not a party to or interested in the below entitled matter. 1 am a principal clerk of the NEWPORT BEACH - COSTA MESA DAILY PILOT, a newspaper of general circulation, printed and published in the City of Costa Mesa, County of Orange, State of California, and that attached Notice is a true and complete copy as was printed and published on the following dates: May 6, 2004 May 12, 2004 i declare, under penalty of perjury, that the foregoing is true and correct. Executed on M �y 1 9 , 2004 at Costa Mesa, California. Signature- M DIAGRAM NOTICE IS HEREBY GIVEN to all owners of real property assessed to pay the costs and expenses .. of the utility undergrounding improvements to be acquired under proceedings conducted by the City Council of the City of Newport Beach. California, „J)wsuant to the terms and provisions of the unicipal Improvement Act of 1913 ", being Division 12 of the Streets and Highways Code of the State .- _....of California, Article XIIID of the Constitution of the State of California, and the Proposition 218 Omnibus Implementation Act (Government Code Section 53750 and following) for Assessment District No. 75 (Balboa Business District) of the City of Newport Beach. You are hereby notified that on the April 28, 2004, the Assessment Roll and Diagram to pay the costs and expenses of such acciisition were recorded in my office. The assessments are now due and payable' immediately at the Office of the Treasurer, and may be paid within the period expiring on May 27, 2004. The total assessment equals the cost of the construction of the improvements and the anticipated amount of the incidental federal tax liability that may be imposed on the project. The assessments may be paid in whole or in part during such period. In the event any property owner does not pay any portion of the assessment for the construction of the improvements before the expiration of such period, a bond representing the unpaid amount of the assessment on such parcel for the construction of the improvements will be issued pursuant to the 'Improvement Bond Act of 1915 ", being Division 10 of the Streets and Highways Code of the State of California. Any property owner who has elected not to pay his or her assessment for the c anstruction of the improvements in full before the expiration of such time period will be billed annual assessment installments for the payment of the principal of and interest then coming due . on the bond issued to represent the unpaid assessment for the construction of the improvements. The annual assessment installments will be payable over 15 years and will be collected as part of the annual County property tax bill. In the event any property owner does not pay any portion of the assessment for the incidental federal tax liability that may be imposed before the expiration of such period, a bond representing the unpaid amount of that portion of the assessment on such parcel will be issued if the tax is imposed. If, after approximately eight years, the tax is not imposed, any amount paid on the assessment for the incidental federal tax liability will be refunded to the then current owner of the property for which payment was made. In the event bonds are issued for that portion of the assessment imposed for the incidental federal tax liability. the amount will be payable in annual assessment installments for the payment of the principal of and interest then coming due on the bonds issued and will be collected aver 15 years as part of the annual County property tax bill. NOTICE: After bonds have been as that portion of the assessments funded by the bonds may be paid and properties cleared of the lien of that portion of the assessments by the payment' of the following sums: (a) any installment of principal and interest which has been posted to the tax roll for the current fiscal year, (b) the unpaid balance of principal plus the applicable redemption premium. (c) the amount of any delinquencies, including penalties, interest and casts, (d) the estimated cast of calling bands, (el interest to the date of call, unless included in (a) above and (f) a reasonable fee for the cost of administering the prepayment and the associated advance retirement of bonds. Assessments for which bonds have not been issued bonds may be paid and properties cleared of the lien of that portion of the assessments by the payment of the unpaid balance of the assessments. If. after approximately eight years. the tax is not imposed, any amount paid on the assessments for the incidental federal tax liability will be refunded to the then current owner of the property for wha.h payment was made. In addition to the assessment to pay the costs and expenses of the improvements to be armored, all owners of real property within the Assessment District are subject to a separate and additional assessment to be levied annually to pay for costs not otherwise reimbursed which will result from the administration and collection of assessments or from the administration or registration of any associated bands. DATED: April 28, 2004 /s/ Stephen G, Barium SUPERINTENDENT OF STREETS Authorized to pablish Advertisements of all kionc!,ding public notices by Decree of the Superior Court of oranP County. California, hNumbe: A- 6214. September 29, tg61 and A -7483 f June 11, 1963. PROOF OF PUBLICATION STATE OF CALIFORNIA) ) ss. COUNTY OF ORANGE ) I am a Citizen of the United States and a resident of the County aforesaid; I am over the age of eighteen years, and not a party to or interested in the below entitled matter. I am„ a principal clerk of the NEWPORT BEACH - COSTA MESA DAILY PILOT, a newspaper of general circulation, printed and published in the City of Costa Mesa, County of Orange, State of California, and that attached Notice is a true and complete copy as was printed and published on the following dates: May 6, 2004 May 12, 2004 I declare, under penalty of perjury, that the foregoing is true and correct. Executed on M :„ , zn04 at Costa Mesa, California. !9 r Signature- CITY OF NEWPORT BEACH ASSENT DISTRICT NO. 75 (BAEBOA BUSINESS DISTRICT) STATEMENT OF iASSESSMENT NOTICE OF RECORDATION OF ASSESSMENT AND DIAGRAM NOTICE IS HEREBY GIVEN to all owners of real property assessed to pay the costs and expenses of the utility undergrounding improvements to be acquired under proceedings conducted by the City Council of the City of Newport Beach, California, .,.PgLowant to the terms and provisions of the u J'M n icipal Improvement Act of 1913 ", being Division _ 42 of the Streets and Highways Code of the State •:of California, Article XIIID of the Constitution of the State of California, and the Proposition 218 Omnibus Implementation Act (Government Code Section 53750 and following) for Assessment District No. 75 (Balboa Business District) of the City of Newport Beach. You are hereby notified that on the April 28, 2004, the Assessment Roil and Diagram to pay the costs and expenses of such acquisition were r a 0road in my office. The assessments are now due and payable immediately at the Office of the Treasurer, and may be paid within the period expiring on May 27, 2004. The total assessment equals the cost of the construction of the improvements and the anticipated amount of the incidental federal tax liability that may be imposed on the project. The assessments may be paid in whole or in part during such period. In the event any property owner does not pay any portion of the assessment for the construction of the improvements before the expiration of such period, a band representing the unpaid amount of the assessment on such parcel for the construction of the improvements will be issued pursuant to the 'Improvement Bond Act of 1915', being Division 10 of the Streets and Highways Code of the State of California. Any property owner who has elected not to pay his or her assessment for the construction of the improvements in full before the expiration of such time period will be billed annual assessment installments for the payment of the principal of and interest then coming due. on the bond issued to represent the unpaid I assessment for the construction of the improvements. The annual assessment installments will be payable over 15 years and will he collected as part of the annual County property tax bill. In the event any property owner does not pay any portion of the at for the incidental federal tax liability that may be imposed before the expiration of such period. a bond representing the unpaid amount of that portion of the assessment on such parcel will be issued if the tax is imposed. If, after approximately eight years, the tax is not imposed, any amount paid on the assessment for the incidental federal tax liability will be refunded to the then current owner of the property for which payment was made. In the event bonds are issued for that portion of the as ble sessment imposed for the incidental federal tax :liability, the amount will be paya or annual assessment installments for the payment of the Principal of and interest then coming due on the bonds issued and will be collected over 15 years as part of the annual County property tax bill, NOTICE. After bonds have been issued, that Portion of the assessments funded by the bonds may be paid and properties cleared of the lien of that portion of the assessments by the payment; of the following sums: (a) any installment of principal and interest which has been posted to the tax roll for the current fiscal year, (b) the unpaid balance of principal plus the applicable redemption premium, (c) the amount of any delinquencies, including penalties, interest and costs. (d) the estimated cost of calling bonds, (e') interest to the date of call, unless included in Call above and (f) a reasonable fee for the Cost of administering the prepayment and the associated advance retirement of bonds. Assessments for which bonds have not been issued bonds may be paid and properties cleared I of the lien of that portion of the assessments by the payment of the unpaid balance of the assessments. If, after approximately eight years. the tax is not imposed. any amount paid on the assessments for the incidental federal tax liability will be refunded to the then current owner of the property for which payment was made. In addition to the assessment to pay the costs and expenses of the improvements to be acquired, all owners of real property within the Assessment District are subject to a separate and additional assessment to be levied annually to pay for costs not otherwise reimbursed which will result from the administration and c0llecho0 of assessments or from the administration or registration of any associated bands. DATED: April 28, 2004 /s/ Stephen G. Beduin SUPERINTENDENT OF STREETS � r� CITY OF NEWPORT BEACH PUBLIC WORKS DEPARTMENT 3300 Newport Boulevard P.O. Box 1768 Newport Beach, CA 92659 -1768 June 22, 2004 TO: LaVonne Harkless City Clerk City of Newport Beach SUBJECT: Assessment Districts 75 Balboa Business District We are transmitting the following: No. Copies Description Certificate of Compliance II (original) — June 21, 2004 Remarks: For your records. Iris Lee Project Engineer F .USENS'3B \N.PArcinicga..ADAD75%1 an - CClerk-CmCon pL-AD -75 doc CERTIFICATE OF COMPLIANCE WITH NOTICE REQUIREMENTS ASSESSMENT DISTRICT NO. 75 (BALBOA BUSINESS DISTRICT) COUNTY OF ORANGE CITY OF NEWPORT BEACH LVOnn2. H. lgcf ku j) , under penalty of perjury, CERTIFIES as follows: The undersigned is now, and at all times mentioned herein was, the duly qualified and acting CITY CLERK of the CITY OF NEWPORT BEACH, CALIFORNIA, and as such, accomplished or caused the accomplishment of the following notice requirements in connection with the referenced Assessment District, as noted: RECORDATION The original of the ASSESSMENT ROLL AND DIAGRAM was recorded in the Office of the Superintendent of Streets on the ae,i day of ftpf� j , 2004. A copy of the ASSESSMENT DIAGRAM was filed in the Office of the County Recorder, in Book of Assessment and Community Facilities District Maps, Book 83 Page(s) 3$- 4 a , on the 3001 day of ]%rt 2004, as Document No. aW40W 3i'4 I lO A copy of the NOTICE OF ASSESSMENT was recorded in the Office of the County Recorder on the JOT" day of Nnl 2004, as Document No. 2o04 0 002 1 4 1q} PUBLICATION The STATEMENT OF ASSESSMENT was published pursuant to Section 6066 of the Government Code of the State of California, once a week for two successive weeks, with at least five days intervening between publications, such publications being accomplished on the (,T* day of 2004, and on the _(a'H day of tla� , 2004. MAILING The STATEMENT OF ASSESSMENT was mailed, postage prepaid,, pursuant to the provisions of the "Municipal Improvement Act of 1913 ",to each person owning property in the Assessment District at the last known address as it appears on the tax rolls of the County, or on file in the Office of the undersigned, which Notice designated the property belonging to each such owner and contained a statement of the amount to be assessed, such mailing being accomplished on the 10" day of 7-1 2004. EXECUTED this �� 1 day of Tc 2004, at Newport tBeach, California. CITY CLERK CITY OF NEWPORT BEACH #I RESOLUTION NO. 2004- 57 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH AUTHORIZING ISSUANCE OF BONDS AND APPROVING THE FORM OF CERTAIN BOND DOCUMENTS FOR ASSESSMENT DISTRICT NO. 75 (BALBOA BUSINESS DISTRICT) WHEREAS, this City Council has previously adopted its Resolution of Intention and initiated proceedings for the acquisition of certain public works of improvement, together with appurtenances and appurtenant work, in a special assessment district designated as Assessment District No. 75 (Balboa Business District) (hereinafter referred to as the "Assessment District') pursuant to the terms and provisions of the "Municipal Improvement Act of 1913 ", being Division 12 of the Streets and Highways Code of the State of California (the "Improvement Act'); and WHEREAS, this legislative body, to finance the acquisition and construction of such improvements, declared in its Resolution of Intention to issue bonds against any unpaid assessments as certified by the Treasurer, such bonds to issue pursuant to the terms and provisions of the 'Improvement Bond Act of 1915 ", being Division 10 of such Code (the 'Bond Act'); and WHEREAS, at this time this legislative body desires to set forth the general terms and conditions relating to the authorization, issuance and administration of such bonds; and WHEREAS, the form of a bond indenture (the 'Bond Indenture "), a preliminary official statement (the 'Preliminary Official Statement'), and a bond purchase agreement (the 'Bond Purchase Agreement') authorizing the sale of bonds to M. L. Stern & Co., LLC, as underwriter, which documents contain information including but not limited to the Assessment District and the terms and conditions of the bonds, are on file with the City Clerk and are ready for approval. NOW, THEREFORE, it is hereby Resolved, Determined, and Ordered as follows: SECTION 1. Recitals. The above recitals are true and correct. SECTION 2. Bonds Authorized. Pursuant to the Bond Act, this Resolution and the Bond Indenture (hereafter defined), the issuance, sale, and delivery of limited obligation improvement bonds of the City for the Assessment District, to be designated as City of Newport Beach Assessment District No. 75 (Balboa Business District) Limited Obligation Improvement Bonds (the 'Bonds "), is hereby authorized in an aggregate principal amount not to exceed the unpaid assessments. The date, manner of payment, interest rate or rates, interest payment dates, denominations, form, registration privileges, manner of execution, place of payment, terms of redemption and other terms, covenants and conditions of the Bonds shall be as provided in the Bond Indenture as executed. SECTION 3. Authorization and Conditions. The City Manager, the Director of Administrative Services, and such other official of the City as may be designated by the City Council, or any of them (each an "Authorized Officer "), are hereby authorized and directed to execute and deliver the various documents and instruments described in this Resolution with such additions and changes as the Authorized Officer deems advisable, provided that no additions or changes shall authorize an aggregate principal amount of Bonds in excess of the unpaid assessments. The approval of such additions or changes shall be conclusively evidenced by the execution and delivery of such documents or instruments by an Authorized Officer, upon consultation with and review by the City Attorney and bond counsel. SECTION 4. Bond Indenture. The form of Bond Indenture is hereby approved. The Authorized Officer is hereby authorized and directed to cause the same to be completed and executed on behalf of the City. SECTION 5. Official Statement and Continuinq Disclosure Agreement. The City Council hereby approves the form of the Preliminary Official Statement describing the financing described therein, together with any changes therein or additions thereto deemed advisable by the Authorized Officer. Pursuant to Rule 15c2 -12 under the Securities Exchange Act of 1934 (the "Rule ") the Authorized Officer is authorized to determine when the Preliminary Official Statement is deemed final, and the Authorized Official is hereby authorized and directed to provide written certification thereof. The execution of the final Official Statement, which shall include such changes and additions thereto deemed advisable by the Authorized Officer pursuant to the Rule, shall be conclusive evidence of the approval of the final Official Statement by the City. The Council hereby authorizes the distribution of the final Official Statement by the purchaser of the Bonds. SECTION 6. Sale of Bonds. This City Council hereby authorizes and approves the sale of the Bonds by negotiation to M. L. Stern & Co., LLC (the "Underwriter "). The form of the Bond Purchase Agreement is hereby approved and the Authorized Officer is hereby authorized and directed to execute the Bond Purchase Agreement on behalf of the City upon the execution thereof by the Underwriter, subject to Section 3 and further subject to the following conditions: the aggregate principal amount of the bonds is equal to the unpaid assessments within the Assessment District (without regard to the portion of the assessment related to a federal tax on contributions to capital), the underwriter's discount 2 does not exceed two percent (2 %) and the net interest rate on the bonds shall not exceed seven percent (7 %) per annum. SECTION 7. Bonds Prepared and Delivered. Upon the execution of the Bond Purchase Agreement, the Bonds shall be prepared, authenticated and delivered, all in accordance with the applicable terms of the Bond Act and the Bond Indenture, and the Authorized Officer and other responsible City officials are hereby authorized and directed to take such actions as are required under the Bond Purchase Agreement and the Bond Indenture to complete all actions required to evidence the delivery of the Bonds upon the receipt of the purchase price thereof from the Underwriter. SECTION 8. Annual Assessment Installments. A copy of the resolution confirming the assessments, which assessments shall constitute the security for the Bonds, shall be delivered to the City Treasurer, and the City Treasurer shall keep or cause to be kept the record showing the several installments of principal and interest on the assessments by assessor's parcel number that are to be collected each year during the term of the bonds. The City Treasurer shall establish procedures to promptly respond to inquiries concerning installments on current tax roles as prescribed by section 53754 of the Government Code of the State of California. An annual portion of each assessment, together with annual interest on said assessment, shall be payable in the same manner and at the same time and in the same installment as the general property taxes of the County of Orange and shall be payable and become delinquent at the same time and in the same proportionate amount. Each year the annual installments shall be submitted to the County Auditor for purposes of collection. SECTION 9. Covenant to Initiate Foreclosure Proceedings This legislative body does further specifically covenant for the benefit of the bondholders to commence and prosecute to completion foreclosure actions regarding delinquent installments of the assessments in the manner, within the time limits and pursuant to the terms and conditions as set forth in the Bond Indenture as submitted and approved through the adoption of this Resolution. SECTION 10. Actions. All actions heretofore taken by the officers and agents of the City with respect to the establishment of the Assessment District and the sale and issuance of the bonds are hereby approved, confirmed and ratified, and the proper officers of the City are hereby authorized and directed to do any and all things and take any and all actions and execute any and all certificates, agreements, contracts, and other documents, which they, or any of them, may deem necessary or advisable in order to consummate the lawful issuance and delivery of the Bonds in accordance with Bond Act, this Resolution, the Bond Indenture, the Bond Purchase Agreement, and any certificate, agreement, contract, and other document described in the documents herein approved. 3 SECTION 11. Effective Date. This resolution shall take effect from and after its adoption. PASSED, APPROVED and ADOPTED this 22nd day of June, 2004. AYES: Heffernan, Rosansky, Adams, Bromberg, Webb Nichols, Mayor Ridgeway NOES: ABSENT: ATTEST: City Clerk 4 5 /,� Mayor STATE OF CALIFORNIA ; COUNTS" OF ORANGE } ss. CITY OF NEWPORT BEACH I, LaVonne Al. Harkless, City Clerk of the City of Newport Beach. California, do hereby certify that the whole number of members of the City Council is seven; that the foregoing resolution. being Resolution No. 2004 -57 was duly and regularly introduced before and adopted by the City Council of said City at a regular meeting of said Council, duly and regularly held on the 22nd day of June, 2004, and that the same was so passed and adopted by the following vote, to wit: Ayes: Heffernan, Rosansky. Adams, Bromberg, Webb. Nichols, Mayor Ridgeway Noes: None Absent: None Abstain: None IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 23rd day of June, 2004. (Seal) City Clerk Newport Beach, California