HomeMy WebLinkAbout2016-103 - Declaring Its Intention to Take Proceedings Pursuant to the Municipal Improvements 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 tRESOLUTION NO. 2016-103
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. 114 AND 114B
WHEREAS, the City Council of the City of Newport Beach (the "City") desires to
provide certain property located in the City with the undergrounding of electric,
telephone and cable facilities, and the removal of poles, overhead wires, guys,
anchors and appurtenant work therewith as further described in Section 3 hereof (the
"Improvements") and to order the formation of an Assessment District to pay the costs
thereof under and pursuant to the provisions of the Municipal Improvement Act of 1913
(the 1913 Act');
WHEREAS, the proposed Assessment District, if it is formed, is to be known
and designated as Assessment District No. 114 and 114b (the "Assessment District');
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 'Boundary of Proposed
Assessment District No. 114 and 114b" (the "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 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, such petitions having been accepted by the City Council with the
adoption of Resolution Nos. 2016-56 and 2016-57;
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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 an Assessment District should be
formed to finance the installation of said 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
Improvements, which report is required by the 1913 Act to be made and filed;
WHEREAS, Assessment District 114 and 114b consists of two designated
areas, "Area 114" and "Area 114b" which are depicted on the map and which receive
special benefits from the same Improvements;
WHEREAS, at the May 24, 2016 City Council meeting, City Council directed
that the assessment ballot tabulation be conducted separately for Area 114 and Area
114b due to the fact that each area had separate petitions, but that both areas be
addressed in a single Assessment Engineer's Report due to the special benefits
received from the Improvements and the potential cost savings to the property owners
through combining the two areas;
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.) (the "Guidelines")
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pursuant to Section 15302(d) of the Guidelines;
WHEREAS, before ordering the 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 (the 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 Council of the City of Newport Beach does hereby
RESOLVE, as follows:
Section 1: Recitals. The above recitals, and each of them, are true and correct
and are incorporated into the operative part of this resolution.
Section 2: Approval of Map. The Map is hereby approved, adopted and
declared to describe the proposed boundaries of the Assessment District including the
properties in Area 114 and in Area 114b; 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: Nature of Improvements. The Improvements generally include the
undergrounding of existing electric, telephone and cable facilities, including the removal
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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 improvements will be designed by the Southern California Edison
Company ("Edison") and other utility providers. Either Edison or the City will construct
the 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. 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: Public Interest and Necessity. The City Council hereby finds and
declares that the public interest and necessity require the Improvements, and the
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 Improvements, to make the
expenses thereof chargeable upon the area included within the Assessment District,
and to form the Assessment District.
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Section 5: Intention to Levy Assessment. 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 Improvements.
Section 6: Initiation Proceedings This City Council finds and determines that
before ordering the acquisition of the 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: Assessment Engineer Report. 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 for the Proposed
Assessment District No 114 and 114b with regard to the 1913 Act (the '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 Improvements;
(b) A general description of works or appliances already installed and
any other property necessary or convenient for the operation of the Improvements, if
the works, appliances or property are to be acquired as part of the Improvements;
(c) An estimate of the cost of the Improvements, and the cost of land,
rights of ways, easements, and incidental expenses in connection with the
Improvements, including the cost of registering bonds;
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(d) A diagram showing the exterior boundaries of the Assessment
District, the boundaries of Area 114 and Area 114b 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 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 Improvements (the assessment shall refer to the
subdivisions by their respective numbers assigned as provided in (d) above); and
(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
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(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. 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: Assessment Balloting. The assessment balloting required pursuant
to Section 53753 of the Government Code shall be tabulated separately for Area 114
and Area 114b, as identified in the Report. The results of the assessment ballot
tabulation shall provide the following alternatives to the City Council:
(a) If a majority of property owners within each of Area 114 and Area
114b cast ballots in favor of formation of the Assessment District, in compliance with
Section 53753 of the Government Code, the Assessment District may be approved by
the City Council and shall be designated as "Underground Utility Assessment District
No. 114 and 114b."
(b) If a majority of property owners within either Area 114 or Area
114b cast ballots against formation of the Assessment District, in compliance with
Section 53753 of the Government Code, the assessment district proceedings for the
Assessment District shall be abandoned.
Section 9: Surplus Funds. Following the acquisition of the 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
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as determined by the City Council as provided in Section 10427 of the Streets and
Highways Code.
Section 10: Notice. Notice is hereby given that serial or term bonds to represent
unpaid assessments and to bear interest at a rate not to exceed 12 percent 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 20 years from the second day of September next succeeding 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 11: Advance Payment of Assessments. 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 12: Compliance with the 1913 Act. Except as specifically otherwise
provided for herein, the Improvements shall be made and ordered pursuant to the
provisions of the 1913 Act.
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Section 13: No Advancement of Funds. 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 14: No Property Owner Construction. The public interests will not be
served by allowing the property owners to take any contract to be let for the construction
of the Improvements, and no notice of award of contract shall be published.
Section 15: Refunding of Assessment Bonds. 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 any, 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.
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Section 16: Approval of Construction on Private Property. 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 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 17: Agreements with Public and Private Utilities. 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
Improvements, would benefit any current or future residents of the Assessment District.
Section 18: Exemption from CEQA. 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) and 15060(c)(3) (the activity is not a project
as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations,
Title 14, Chapter 3, because it has no potential for resulting in physical change to the
environment, directly or indirectly. Further, even if subject to CEQA, it is exempt from
CEQA pursuant to Section 15302(d) of the CEQA Guidelines, which applies to the
conversion of overhead utility distribution system facilities to underground.
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Section 19: Inquiries. 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: Savings Clause. 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: City Clerk Certification. The City Clerk shall certify to the passage
and adoption of this resolution and enter it into the book of original resolutions.
Section 22: Resolution Effective Immediately. This Resolution shall take
effect immediately upon its adoption.
ADOPTED, SIGNED AND APPROVED this gch day of August, 2016.
ATTEST:
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Leilani I. Brown
City Clerk
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Diane B. Dixon
Mayor
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; that the foregoing resolution, being Resolution
No. 2016-103 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 gth day of August, 2016, and that the same
was so passed and adopted by the following vote, to wit:
AYES: Council Member Peotter, Council Member Duffield, Council Member Selich,
Council Member Petros, Mayor Dixon
NAYS: None
RECUSED: Mayor Pro Tem Muldoon, Council Member Curry
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of
said City this 10th day of August, 2016.
9dk-6 41
Leilani I. Brown, MMC
City Clerk
Newport Beach, California
(Seal)