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HomeMy WebLinkAbout2021-111 - Declaring its Intention to take Proceedings Pursuant to the Municipal Improvement Act of 1913 and to Issue Bonds Pursuant to the Improvement Bond Act of 1915, and Make Certain Findings and Determinations in Connection therewith, all relating toRESOLUTION NO. 2021-111 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, DECLARING ITS INTENTION TO TAKE PROCEEDINGS PURSUANT TO THE MUNICIPAL IMPROVEMENT ACT OF 1913 AND TO ISSUE BONDS PURSUANT TO THE IMPROVEMENT BOND ACT OF 1915, AND MAKE CERTAIN FINDINGS AND DETERMINATIONS IN CONNECTION THEREWITH, ALL RELATING TO THE FORMATION OF ASSESSMENT DISTRICT NO. 120-2 WHEREAS, after receiving a petition from certain property owners, the City of Newport Beach ("City") undertook proceedings to form Assessment District No. 120 ("AD 120") in order to finance certain public works of improvement, namely, the conversion of certain overhead electrical, cable and communication facilities to underground locations, together with appurtenant work ("AD 120 Improvements"); WHEREAS, after a public hearing on April 13, 2021, the property owners within AD 120 cast sufficient ballots in favor of the district's formation, and the City recorded a Notice of Assessment against each parcel within AD 120 for the purpose of securing the assessments required to finance the AD 120 Improvements; WHEREAS, subsequent to the formation of AD 120, owners of several parcels neighboring the district ("Neighboring Parcels") expressed to the City a desire to finance improvements similar to the AD 120 Improvements; WHEREAS, some of the proposed improvements in the Neighboring Parcels would benefit parcels in AD 120 and the cost per parcel to finance the AD 120 Improvements and improvements in the Neighboring Parcels (collectively, "Combined Improvements") on a combined basis would be less than the cost per parcel to finance the improvements separately due to economies of scale, resulting in a lower assessment per parcel than if formed separately; WHEREAS, a number of property owners within AD 120 and a number of the owners of the Neighboring Parcels (collectively, "Owners") desire to form a new assessment district, Assessment District No. 120-2 (the "Assessment District"), to finance the Combined Improvements and have filed with the City Clerk several signed counterparts of a petition requesting the implementation of a project to finance the Combined Improvements ("Petition"), the cost of which is to be specifically assessed against each parcel of land benefiting from such improvements as shown on a map attached to the Petition; Resolution No. 2021-111 Page 2 of 8 WHEREAS, the proposed boundaries of the Assessment District are shown on a map which indicates by a boundary line the extent of the territory proposed to be included in the Assessment District, which map is designated "Proposed Assessment District No. 120-2" ("Map"), which Map is on file in the office of the City Clerk; WHEREAS, the City Council has been presented with petitions signed by at least fifty percent (50%) of the property owners located within the boundaries of the proposed Assessment District requesting the formation of the Assessment District to finance the Improvements; WHEREAS, pursuant to California Streets and Highways Code Section 5896.8, there is on file with the City Clerk a certificate of Harris & Associates, Inc., certifying the sufficiency of such petitions; WHEREAS, it appears to the City Council that the Assessment District should be formed to finance the installation of said Combined Improvements under the provisions of the 1913 Act; WHEREAS, the City Engineer, with the assistance of Harris & Associates, Inc., is competent to make and file with the City Clerk the report with regard to the Combined Improvements, which report is required by the 1913 Act to be made and filed; WHEREAS, the 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 undergrounding, is categorically exempt from the California Environmental Quality Act (Public Resources Code Section 21000 et seq.) ("CEQA") and its implementing guidelines (14 California Code of Regulations Section 15000 et seq.) ("Guidelines") pursuant to Section 15302(d) of the Guidelines; WHEREAS, before ordering the Combined Improvements, the City Council is required, under the 1913 Act, to adopt a resolution declaring its intention to do so; WHEREAS, the City Council intends to consider issuing bonds secured by the assessments to be levied on property in the Assessment District pursuant to the Improvement Bond Act of 1915, being Division 10 (commencing with Section 8500) of the Streets and Highways Code (1915 Act'); and WHEREAS, before issuing bonds, the City Council is required, under the 1915 Act, to adopt a resolution declaring its intention to do so. NOW, THEREFORE, the City Council of the City of Newport Beach resolves as follows: Resolution No. 2021-111 Page 3 of 8 Section 1: The above recitals, and each of them, are true and correct and are incorporated into the substantive portion of this resolution. Section 2: The Map is hereby approved, adopted and declared to describe the proposed boundaries of the Assessment District; and it shall govern for all details as to the extent of the Assessment District. The City Clerk is hereby directed to endorse her certificate on the original of the Map evidencing the date and adoption of this resolution and to file said Map in her office, and to file a copy of said Map so endorsed with the County Recorder of Orange, California within fifteen (15) days after the adoption of the resolution fixing the time and place of hearing on the formation and extent of the Assessment District. Section 3: The Combined Improvements generally include the undergrounding of existing electric, telephone and cable facilities, including the removal of poles, overhead wires, guys and anchors and the installation of new underground service connections and new streetlights and appurtenant work therewith as shown on the Map. The Combined Improvements will be designed by the Southern California Edison Company ("Edison") and other utility providers. Either Edison, the City, or the City's contractors will construct the Combined Improvements, and the City will inspect the work to ensure conformance to City standards and specifications where applicable. Once completed, the underground facilities will become the property and responsibility of Edison and such other utility providers. Each owner of property located within the Assessment District will be responsible for arranging and paying for work on his or her property necessary to connect facilities constructed by the public utilities in the public streets to the points of connection on the private property owned by the property owner. Conversion of individual service connections on private property is not included in the work done by the Assessment District. Failure to convert individual service connections on private property may result in a recommendation to the City Council that the public utilities be directed to discontinue service to that property. Overhead facilities cannot be removed until all overhead service has been discontinued. Section 4: The City Council hereby finds and declares that the public interest and necessity require the Combined Improvements, and the Combined Improvements will be of direct and special benefit to the properties and land within the Assessment District. The City Council hereby declares its intention to order the conversion of the existing overhead electric and communication facilities to underground locations, and the acquisition of the Combined Improvements, to make the expenses thereof chargeable upon the area included within the Assessment District, and to form the Assessment District. Resolution No. 2021-111 Page 4 of 8 Section 5: The City Council further declares its intention to levy a special assessment upon the land within the Assessment District in accordance with the respective special and direct benefit to be received by each parcel of land from the Combined Improvements. Section 6: This City Council finds and determines that before ordering the acquisition of the Combined Improvements it shall take proceedings pursuant to the 1913 Act and pursuant to Part 7.5 of the Special Assessment Investigation, Limitation and Majority Protest Act of 1931, Streets and Highways Code Section 2960 et seq. (the 1931 Act'). Section 7: Harris & Associates, Inc., is appointed the Assessment Engineer. The Assessment Engineer is hereby authorized and directed to make and file with the City Clerk a written report with regard to the 1913 Act ("Report"), which Report shall comply with the requirements of Section 10204 and Section 2961 of the Streets and Highways Code and Article XIIID of the California Constitution and shall contain the following: (a) Plans and specifications for the Combined Improvements; (b) A general description of works or appliances already installed and any other property necessary or convenient for the operation of the Combined Improvements, if the works, appliances or property are to be acquired as part of the Combined Improvements; (c) An estimate of the cost of the Combined Improvements, and the cost of land, rights of ways, easements, and incidental expenses in connection with the Combined Improvements, including the cost of registering bonds; (d) A diagram showing the exterior boundaries of the Assessment District, the boundaries of any zones within the Assessment District and the lines and dimensions of each parcel of land within the Assessment District as they existed at the time of passage of this resolution (each subdivision to be given a separate number on the diagram); (e) A proposed assessment of the total amount of the cost and expenses of the proposed Combined Improvements upon the several subdivisions of land in the Assessment District in proportion to the estimated benefits to be received by such subdivision, respectively, from the Combined Improvements (the assessment shall refer to the subdivisions by their respective numbers assigned as provided in (d) above); and Resolution No. 2021-111 Page 5 of 8 (f) A proposed maximum annual assessment upon each of the several subdivisions of land in the Assessment District to pay costs incurred by the City and not otherwise reimbursed which result from the administration and collection of assessments or from the administration or registration of any associated bonds and reserve or other related funds. In addition, the Report shall contain the information required by the 1931 Act as set forth in Streets and Highways Code Section 2961(b), including: (a) The total amount, as near as may be determined, of the total principal sum of all unpaid special assessments and special assessments required or proposed to be levied under any completed or pending assessment proceedings, other than the proposed assessments to be levied with respect to the Assessment District, which would require an investigation and report under the 1931 Act against the total area proposed to be assessed; and (b) The total true value, as near as may be determined, of the parcels of land and improvements within the Assessment District which are proposed to be assessed. Total true value may be estimated as the full cash value of the parcels as shown upon the last equalized assessment roll of the County of Orange. Alternatively, total true value may be determined by other reasonable means, including, but not limited to, by adjusting the value shown on the last equalized assessment roll to correct for deviations from market value due to Article XIIIA of the California Constitution. Section 8: Following the acquisition of the Combined Improvements and the payment of all incidental expenses in connection with the formation of the Assessment District and the issuance of bonds pursuant to the 1915 Act, any surplus remaining in the improvement fund established for the Assessment District shall be used as determined by the City Council as provided in Section 10427 of the Streets and Highways Code. Resolution No. 2021-111 Page 6 of 8 Section 9: Notice is hereby given that serial or term bonds to represent unpaid assessments and to bear interest at a rate not to exceed twelve percent (12%) per annum will be issued in the manner provided in the Improvement Bond Act of 1915 to represent the unpaid assessments and the last installment of such bonds shall mature a maximum of twenty (20) years from the second day of September next succeeding twelve (12) months from their date. The principal amount of such bonds maturing or becoming subject to mandatory prior redemption each year shall not be an amount equal to an even annual proportion of the aggregate principal amount of the bonds, but rather (except as specifically otherwise provided by the City Council in connection with the sale of such bonds), shall be an amount which, when added to the amount of interest payable in each year, will be a sum which is substantially equal in each year, except for the moneys falling due on the first maturity or mandatory prior redemption date of the bonds which shall be adjusted to reflect the amount of interest earned from the date when the bonds bear interest to the date when the first interest is payable on the bonds. Such bonds shall be serviced and collected by the City Treasurer or by such registrar and/or paying agent(s) as this City Council may from time to time designate. Section 10: The provisions of Part 11.1 of the Improvement Bond Act of 1915, providing an alternative procedure for the advance payment of assessments and the calling of bonds, shall apply. Section 11: Except as specifically otherwise provided for herein, the Combined Improvements shall be made and ordered pursuant to the provisions of the 1913 Act. Section 12: The City Council hereby determines that the City will not obligate itself to advance available funds from its treasury to cure any deficiency which may occur in the bond redemption fund established for the Assessment District. Section 13: The public interests will not be served by allowing the property owners to take any contract to be let for the construction of the Combined Improvements, and no notice of award of contract shall be published. Resolution No. 2021-111 Page 7 of 8 Section 14: It is hereby determined that the bonds proposed to be issued in these proceedings may be refunded. Any adjustment to assessments resulting from such refunding shall be done on a pro rata basis as required pursuant to Section 8571.5 of the Streets and Highways Code. Any such refunding shall be pursuant to the provisions of Division 11.5 (commencing with Section 9500) of the Streets and Highways Code, except that, if, following the filing of the report specified in Section 9523 and any subsequent modifications of the report, the City Council finds that all of the conditions specified in Section 9525 are satisfied and that the adjustments to assessments are on a pro rata basis, the City Council may approve and confirm the report and without further proceedings, authorize, issue, and sell the refunding bonds pursuant to Chapter 3 (commencing with Section 9600) of Division 11.5 of the Streets and Highways Code. Any such refunding bonds shall bear interest at the rate of not to exceed twelve percent (12%) per annum, or such higher rate of interest as may be authorized by applicable law at the time of sale of such bonds; and the last installment of such bonds shall mature on such date as will be determined by the City Council in the proceedings for such refunding. Section 15: It is in the public interest and more economical to do certain work on private property to eliminate any disparity in level or size between the Combined Improvements and private property and to add the actual cost of such work to the Assessment of the property to which such work was done; provided that no work of this nature shall be performed until and unless the written consent of the owner of property is first obtained. Section 16: Pursuant to Streets and Highways Code Section 10110, the City intends to enter into agreements with Edison and the other utility providers, and any agreement between the City and Edison, or any other public utility, for the ownership, management, or control of the underground electric, telephone and cable facilities to be installed pursuant to the Combined Improvements, would benefit any current or future residents of the Assessment District. Section 17: The City Council finds the adoption of this resolution is not subject to the California Environmental Quality Act ("CEQA") pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment), 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly, and 15302(d) there is a Categorical Exclusion for the conversion of overhead electrical utility distribution system facilities to underground. Resolution No. 2021-111 Page 8 of 8 Section 18: The City Council hereby determines that in the event the Assessment District is formed, the City Council will take any and all actions necessary to dissolve AD 120. Section 19: All inquiries for any and all information relating to these proceedings, including information relating to protest procedures, should be directed to: CITY OF NEWPORT BEACH Attention: Michael Sinacori 100 Civic Center Drive Newport Beach, California 92660 (949) 644-3342 Section 20: If any section, subsection, sentence, clause or phrase of this resolution is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this resolution. The City Council hereby declares that it would have passed this resolution, and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional. Section 21: This resolution shall take effect immediately upon its adoption by the City Council, and the City Clerk shall certify the vote adopting the resolution. ADOPTED this 16th day of November, 2021. ATTEST: Leilani I. Brown City Clerk APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE C. Aar n C. Harp City Attorney %L" PO gN% STATE OF CALIFORNIA } COUNTY OF ORANGE } ss. CITY OF NEWPORT BEACH } I, Leilani I. Brown, City Clerk of the City of Newport Beach, California, do hereby certify that the whole number of members of the City Council is seven; the foregoing resolution, being Resolution No. 2021-111 was duly introduced before and adopted by the City Council of said City at a regular meeting of said Council held on the 16th day of November, 2021; and the same was so passed and adopted by the following vote, to wit: AYES: Mayor Brad Avery, Council Member Noah Blom, Council Member Joy Brenner, Council Member Diane Dixon, Council Member Duffy Duffield, Council Member Will O'Neill NAYS: None RECUSED: Mayor Pro Tem Kevin Muldoon IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 171h day of November, 2021. Leilani I. Brown City Clerk Newport Beach, California