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Home My WebLink AboutC-3922 - Bond Counsel Agreement for Assessment District No. 94 (Pacific Drive-Corona del Mar)38�St /foo -1-001 CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT hixit i 3 1i�Lr Agenda Item No. 7 March 13, 2007 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Public Works Department Patrick Arciniega 949 -644 -3311 parcineiga@city.newport-beach.ca.us SUBJECT: PROPOSED ASSESSMENT DISTRICT NO. 94 — PACIFIC DRIVE — CORONA. DEL MAR FOR UNDERGROUNDING UTILITIES AND DESIGNATION AS AN UNDERGROUND UTILITIES DISTRICT RECOMMENDATIONS: Adopt the following Resolutions for Proposed Assessment District No. 94: a. Resolution No. 2007- _ making finding on a petition for, adopting a map showing the proposed boundaries of, and making appointments for proposed Assessment District No. 94. b. Resolution No. 2007- _ declaring intention to order the construction of certain improvements in proposed Assessment District No. 94; declaring the improvements to be of special benefit; describing the district to be assessed to pay the costs and expenses thereof; providing for the issuance of bonds; and designating the area an underground utilities district. c. Resolution No. 2007- _ giving preliminary approval to the report of the assessment engineer, setting the time and place for a public hearing as May 8, 2007; and ordering the intention of assessment ballot procedure for Assessment District No. 94. Resolution No. 2007- approving contracts for utility improvements for Assessment District No. 94. 2. Approve the Bond Counsel Agreement with Robert Hessell. HISTORY: Owners of property located in Proposed Assessment District No. 94 submitted petitions to the City requesting the formation of a special assessment district to underground overhead utilities. On April 13, 2004 City Council appropriated $19,035.00 to hire MuniFinancial as the assessment engineer for this proposed project. On May 11, 2004 MuniFinancial certified that owners representing approximately 62 percent of the assessable property area within Proposed Assessment District No. 94 had signed a petition for undergrounding overhead utilities. At Staffs request, City Council posed Assessment District No. 94 Pacific Drive in•na del Mar for Undergrounding Utilities March 13, 2007 Page 2 appropriated $18,060.00 on July 27, 2004 to facilitate the undergrounding of utilities. $11,260.00 was expended to prepare SCE engineering plans and $6,800.00 was expended to prepare AT &T engineering plans. City Council has approved a total of $37,095.00 to date for the preliminary stages of this project. DISCUSSION: Assessment District No. 94 is being proposed for the conversion of existing overhead utilities to underground locations. The property owners within the boundary of the proposed Assessment District will bear the cost of the improvements and their associated proceedings. The procedure being used to create the Assessment District is outlined in the Municipal Improvement Act of 1913. Bonds issued under the Improvement Bond Act of 1915, with a term of 15 years, will be issued to finance assessments that are not paid in cash within 30 days after confirmation of the assessment. The total assessment for Proposed Assessment District No. 94 is estimated as follows: ITEM ESTIMATED COST Cost of Construction $615,331 Incidental Costs and Expenses $85,035 Financing (Bond) Costs $45,498 Federal Income Tax Component of Contribution (ITCC) $89,135 Estimated Total Cost: $835,000 The estimate includes the Federal Income Tax Component of Contribution (ITCC) Tax, which is a betterment tax. However, bonds will not be sold for the ITCC Tax since underground utility districts are undertaken at the request of the community for purposes of community aesthetics and public safety, and not for the benefit of particular customers of the utility in their capacity as customer of the utility. This underground district is not required as a condition for obtaining any electrical service. In the event the Internal Revenue Service (IRS), State, City and /or local government taxing authority determines that this project is taxable, Southern California Edison (SCE) will require the City to reimburse the full amount of the determined tax liability, plus interest, penalties, fees, and related costs. In that case the City may need to sell a second issue of the bonds, if necessary, to pay SCE within 60 days after they notify the City of Newport Beach. The estimated ITCC tax amount is $89,135.00. The City Attorney's Office has reviewed SCE's request to have the preceding statement included in the Assessment District Report. It was determined that the City would not incur any tax liability. In addition to the assessment, property owners will be responsible for converting their service connection to receive underground service. These private property costs can vary greatly depending on the condition and location of their current electrical service. Property owners are encouraged to contact licensed electrical contractors to determine their individual needs. The Bond Reserve will be seven percent for this district. PropoAssessment District No. 94 Padfic Drive In Corona Viar for Undergrounding Utilities March 13, 2007 Page 3 Property owners who pay assessments in cash will receive a discount of approximately five percent, which represents the financial cost of issuing and servicing bonds. The following is a tentative schedule for proposed Assessment District No. 94: • Property Owner Information Meeting February 20, 2007 • Resolution of Intention March 13, 2007 • Public Hearing May 8, 2007 Public Utilities Commence Work August 6, 2007 • City Notifies Property Owners to Install Service January 1, 2008 Connections • Property Owners Complete Conversions June 1, 2008 • Public Utilities Begin to Remove Overhead November 2008 Structures • Public Utilities Finish Removing Poles and January 2009 Overhead Structures The Assessment Engineer's assessment methodology uses equivalent benefit units (EBU's) as a means to apportion assessments within this District. This assessment methodology assigns one benefit unit per each underground utility service plus an overall community aesthetic benefit for a total of 4 EBU's. The total cost of the project is divided by the total number of EBU's for the project resulting in a 'cost per EBU'. A typical lot receives an assessment based on all 4 EBU's. The average cost for a standard assessment is: $27,470.87 Some exceptions were taken for lots that did not receive all three utility services, and some lots only received an EBU based on the aesthetic component. These exceptions are detailed in Exhibit D — Method of Assessment in the Engineer's Report. There are six lots along Acacia Ave., the 'Acacia lots', that will not receive underground services, however they will receive a benefit from the overall aesthetics of the undergrounding of the lines along Acacia Ave. They were assessed 1 EBU for the aesthetic component and the average assessment is: $5,913.87. One wooden guy pole will remain in the district to provide tension support for the remaining overhead lines in the alley between Acacia Ave. and Begonia Ave. The parcel that will have the remaining guy pole was given a discount of .25 for the aesthetic EBU. The estimated assessment with the ITCC tax component ranges from $27,470.87 to $2,289.24, with the average assessment being $22,567.57. The estimated assessment without the ITCC tax componenet ranges from $24,538.40 to $2,044.87, with the average assessment being $20,158.51. Plans and specifications were prepared by SCE, AT &T, and TimeWarner Communications. Attached is . a sketch showing the boundary of the proposed Assessment District and the utilities to be undergrounded. Environmental Review: A Notice of Exemption was completed February 21, 2007, and filed with the County Recorder on February 21, 2007. Proposed Assessment District No. 94 Pacific Drive in a del Mar for Undergrounding Utilities March 13. 2007 Page 4 Prepared by: Patrick L. Arcin' a PE Associate Civil Ngineer Attachments: 1. Exhibit Showing District Boundaries 2. Resolution Receiving Petition 3. Resolution of Intention to order construction of certain 4. Resolution preliminary approval of Engineer's Report, initiating ballot procedures 5. Resolution approving utility improvement contracts 6. Utility Contracts for SCE and AT &T 7. Bond Counsel Agreement 8. Engineer's Report improvements setting public healing and N N FIRST I AVENUE I -------- 417 � 416 416 2321 ' W 412 1 W 415 414 4141!2 I 421 1/2 421 / / W I 408 413 W 412 4121/2 1 419 / Q Q 4101 /21 4n / 410 111 (� a 408 COSTU ONLY (` AT &T ONLY) 415 U W O] U Q a S a I 'o 04 co N N N N N . N N C) O 0 pAClFIC N w '' V co N m C7 N N M cp co N N 0) N N N CD M N v BOUNDARY OF PROP SED N N 01 N C-4 04 c> N OR�N N m ASESSEMENT DISTRI T N N N M Lo N N N O co N co) Bqy N 01 N N A��r N 0 M N PROPOSED ASSESSEMENT DISTRICT NO.94 HOMES ALONG BOTH SIDES OF PACIFIC DRIVE 0 POLES TO BE REMOVED O POLES TO REMAIN IN PLACE OVERHEAD LINES TO BE REMOVED - - - - - - - OVERHEAD LINES TO REMAIN IN PLACE EXHIBIT'A' 0 0 RESOLUTION NO. 2007 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH RECEIVING A PETITION FOR, ADOPTING A MAP SHOWING THE PROPOSED BOUNDARIES OF, AND MAKING APPOINTMENTS FOR PROPOSED ASSESSMENT DISTRICT NO. 94 (PACIFIC DRIVE - CORONA DEL MAR) WHEREAS, this legislative body has received from certain property owners an executed petition (the "Petition ") requesting the formation of a special assessment district, to be designated as Assessment District No. 94 (Pacific Drive - Corona del Mar) (the "Assessment District°), to provide for the conversion of certain overhead electrical and communication facilities to underground locations as described in the Petition, together with appurtenances and appurtenant work in connection therewith, pursuant to the terms and provisions of the ordinances of the City of Newport Beach and the "Municipal Improvement Act of 1913 ", being Division 12 of the Streets and Highways Code of the State of California (the "AGC); WHEREAS, this legislative body finds that the Petition has been signed by owners owning more than sixty percent (60 %) in area of all assessable property within the boundaries of the proposed Assessment District; WHEREAS, this legislative body has received a map (the "Map ") showing and describing the boundary of the area proposed to be assessed in the Assessment District; NOW, THEREFORE, BE IT Determined, Resolved, and Ordered as follows: SECTION 1. The above recitals are all true and correct. SECTION 2. The Petition shall be retained as a permanent record and remain open to public inspection. SECTION 3. The Map is hereby approved and adopted. The original map of the boundaries of the proposed Assessment District and one copy thereof are to be filed in the Office of the City Clerk. SECTION 4. A certificate shall be endorsed on the original Map and on at least one copy of the Map evidencing the date and adoption of this Resolution, and within fifteen (15) days after the adoption of a resolution fixing the time and place of hearing on the formation and extent of the Assessment District, a copy of the Map shall be filed with the correct and proper endorsements thereon with the County Recorder, all in the manner and form provided in Section 3111 of the Streets and Highways Code of the State of California. SECTION 5. Stephen G. Badum P.E., Director of Public Works for the City of Newport Beach, is hereby appointed to perform all of the duties and functions of the 0 0 Superintendent of Streets for the Assessment District as said duties are specified and designated in the Act. The place for recordation of the assessment roll and diagram shall be in the office of the appointed Superintendent of Streets, and said assessment roll and diagram, upon recordation, shall be kept as a permanent record. SECTION 6. The Daily Pilot is hereby designated as the newspaper for all publications as required by law and as necessary for the Assessment District proceedings. SECTION 7. The firm of MuniFinancial is hereby appointed the Assessment Engineer forthe Assessment District proceedings and the contract for services submitted is hereby approved. SECTION 8. The firm of Fieldman Rolapp & Associates is hereby appointed the Financial Advisor for the Assessment District proceedings and the contract for services submitted is hereby approved. SECTION 9. Robert E. Hessell, attorney at law, is hereby appointed to act as Bond Counsel for the Assessment District and the contract for services submitted is hereby approved. SECTION 10. This legislative body hereby authorizes the establishment of a special improvement fund for the Assessment District and into the improvement fund shall be placed all proceeds from the sale of Assessment District bonds and cash collections. In order to expedite the improvements to be made under the Assessment District proceedings and as authorized by law, funds from any available source may be transferred into the special improvement fund. Any funds transferred into the special improvement fund (other than proceeds from the sale of Assessment District bonds and cash collections) shall be deemed a loan to the fund and shall be repaid out of the proceeds of the sale of Assessment District bonds as authorized by Section 10210 of the Streets and Highways Code of the State of California. F% 0 0 PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council of the City of Newport Beach held on the 13th day of March, 2007, by the following vote: AYES: NOES: ABSENT: ABSTAIN: ATTEST: City Clerk 3 Mayor 0 0 RESOLUTION NO. 2007- RESOLUTION DECLARING INTENTION TO ORDER THE CONSTRUCTION OF CERTAIN IMPROVEMENTS IN PROPOSED ASSESSMENT DISTRICT NO. 94 (PACIFIC DRIVE - CORONA DEL MAR), DECLARING THE IMPROVEMENTS TO BE OF SPECIAL BENEFIT, DESCRIBING THE DISTRICT TO BE ASSESSED TO PAY THE COSTS AND EXPENSES THEREOF, PROVIDING FOR THE ISSUANCE OF BONDS, AND TO DESIGNATE THE AREAAN UNDERGROND UTITLITES DISTRICT WHEREAS, this legislative body has instituted proceedings for the formation of a special assessment district designated as Assessment District No. 94 (Pacific Drive - Corona del Mar) (hereinafter referred to as the "Assessment District ") to provide for the conversion of certain overhead electrical and communication facilities to underground locations, together with appurtenances and appurtenant work in connection therewith, 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 "Act'); WHEREAS, this legislative body desires to ascertain whetherthe area comprising the Assessment District should also be designated an underground utilities district pursuant to Chapter 15.32 of the Code of Ordinances of the City of Newport Beach (the "City"); WHEREAS, the conversion of the overhead electrical and communication facilities to underground locations, together with appurtenances and appurtenant work in connection therewith, is to be done to further public safety and welfare and to improve aesthetics within the area of the Assessment District; WHEREAS, this legislative body has been presented and has received a map (the "Map ") showing and describing the boundary of the area proposed to be assessed in the Assessment District; WHEREAS, the assessment proceedings for the Assessment District were initiated by owners of the real property within the Assessment District; NOW THEREFORE, Be it Determined, Resolved, and Ordered as follows: DECLARATION OF INTENTION SECTION 1. The public interest and convenience require, and it is the intention of this legislative body to order, pursuant to the Act, the construction of the public improvements hereinafter described in and for the Assessment District, to assess the cost thereof against the real property specially benefited thereby, and to designate the area an underground utilities district. 0 DESCRIPTION OF IMPROVEMENTS SECTION 2. The public improvements to be constructed and the manner of the construction are generally described as follows: A. The improvements generally consist of the conversion of existing overhead electrical and communication facilities to underground locations within the area shown on the Map, together with appurtenances and appurtenant work thereto, all to serve and specially benefit the properties within Assessment District No. 94 (Pacific Drive - Corona del Mar). B. All rights -of -way and easements required for the improvements shall be shown upon the plans to be made a part of the Assessment Engineer's Report (described below) and to be filed with these proceedings. C. All of the improvements to be constructed are to be installed at the places and in the particular locations, and to the sizes, dimensions and materials, and to the lines, grades and elevations, as shown and delineated upon the plans, profiles and specifications all to be made a part of the Assessment Engineer's Report. D. The description of the improvements contained in this Resolution is general and the plans and profiles of the work as contained in the Assessment Engineer's Report shall be controlling as to the correct and detailed description thereof. DESCRIPTION OF ASSESSMENT DISTRICT SECTION 2. The improvements are of special benefit to the real property within the Assessment District, and this legislative body hereby makes the expenses of the construction of such improvements chargeable upon the Assessment District that is described as follows: All real property and other territory in the proposed Assessment District included within the exterior boundary lines shown on the Map described above, which Map, entitled "Proposed Boundaries Assessment District No. 94 (Pacific Drive - Corona del Mar)," was previously approved by this legislative body, exhibits the property specially benefited and proposed to be assessed to pay the costs and expenses of the construction of the work and improvements, and is on file with the transcript of these proceedings. -For all particulars as to the boundaries of the Assessment District, reference is hereby made to the boundary Map. 2 0 0 REPORT OF THE ASSESSMENT ENGINEER SECTION 3. The proposed improvements are hereby referred to MuniFinancial (the "Assessment Engineer"), who is hereby directed to make and file a report as required by the Improvement Act, The Special Assessment Investigation, Limitation, and Majority Protest Act of 1931, Article XIIID of the Constitution of the State of California, and the Omnibus Proposition 218 Implementation Act (Government Code Section 53750), such report (the "Assessment Engineer's Report") shall be in writing and contain the following: A. Plans and specifications of the improvements proposed to be constructed; B. An estimate of the cost of the construction of the improvements proposed to be constructed, including the cost of the incidental expenses, in connection therewith; C. A diagram showing the Assessment District, which shall also show the boundaries and dimensions of the respective real property and otherterritory within such Assessment District, as the same existed at the time of the passage of this Resolution of Intention, each of which subdivisions shall be given a separate number upon such diagram; D. The proposed assessment of the assessable costs and expenses of the construction of the proposed improvements upon the real property in the Assessment District in proportion to the estimated special benefits to be received by the real property, respectively, from such improvements. Such assessment shall refer to such real property upon such diagram by the respective numbers thereof; E. The description of the improvements proposed to be constructed under these proceedings. When any portion or percentage of the assessable costs and expenses of the construction of the improvements is to be paid from sources otherthan assessments, the amount of such portion or percentage shall first be deducted from the total estimated costs and expenses of such construction, and such assessment shall include only the remainder of the estimated costs and expenses. The assessment shall refer to the subdivisions by their respective numbers as assigned pursuant to subparagraph D above. SECTION 4. Notice is hereby given that bonds to represent the unpaid assessments, and bear interest at the rate of not to exceed the current legal maximum rate, will be issued hereunder in the manner provided in the Improvement Bond Act of 1915 (Streets and Highways Code Section 8500, etseq.), which bonds shall be issued for a term not to exceed the legal maximum term as authorized by law, namely, thirty-nine (39) years from the second day of September next succeeding twelve (12) months from their 3 date. The provisions of Part 11.1 of the Act, providing an alternative procedure for the advance payment of assessments and the calling of bonds shall apply. The principal amount of the bonds maturing each year shall be other than an amount equal to an even annual proportion of the aggregate principal of the bonds, and the amount of principal maturing in each year, plus the amount of interest payable in that year, will be generally an aggregate amount that is equal each year,_except for the first year's adjustment. Pursuant to the provisions of the Improvement Act and specifically Streets and Highways Code Section 10603, the Treasurer is hereby designated as the officerto collect and receive the assessments during the cash collection period. CONSTRUCTION SECTION 5. Except as may otherwise be provided for in the issuance of the bonds described above, all of the improvements shall be constructed pursuant to the provisions of the Act. SURPLUS FUNDS SECTION 6. If any excess shall be realized from the assessment, it shall be used, in such amounts as the legislative body may determine, in accordance with the provisions of law for one or more of the following purposes: A. Transfer to the general fund; provided that the amount of any such transfer shall not exceed the lesser of One Thousand Dollars ($1,000.00) or five percent (5 %) of the total from the Improvement Fund; B. As a credit upon the assessment and any supplemental assessment; C. For the maintenance of the improvements; or D. To call bonds. IMPROVEMENT FUND SECTION 7. The legislative body hereby establishes a special improvement fund identified and designated by the name of this Assessment District, and into such fund monies may be transferred at any time to expedite the construction of the authorized improvements, and any such advancement of funds is a loan and shall be repaid out of the proceeds of the sale of bonds as authorized by law. ll 0 0 PROCEEDINGS INQUIRIES SECTION 8. For any and all information relating to these proceedings, including information relating to protest procedure, your attention is directed to the person designated below: Patrick. Arciniega, Associate Civil Engineer City of Newport Beach P.O. Box 1794 Newport Beach, California 92658 (949) 644 -3347 PUBLIC PROPERTY SECTION 9. All public property shall be subject to assessment in these proceedings. RIGHTS -OF -WAY SECTION 10. The public interest, convenience and necessity requires that certain land, rights -of -way or easements be obtained in order to allow the works of improvement as proposed for this Assessment District to be accomplished. The Assessment Engineer's Report, upon adoption, shall provide certification that the land, rights -of -way or easements have been acquired or will be acquired as part of the construction of the improvements. NO CITY LIABILITY SECTION 11. This legislative body hereby declares the City will not obligate itself to advance available funds from the City treasury to cure any deficiency that may occur in the bond redemption fund for the Assessment District. ANNUAL ADMINISTRATIVE ASSESSMENT SECTION 12. It is hereby declared that this legislative body proposes to levy an annual assessment pursuant to Section 10204 of the Streets and Highways Code of the State of California, such annual assessment to pay costs incurred by the City and not otherwise reimbursed which result from the administration and collection of assessments and from the administration and registration of assessment bonds and the related bond funds. UTILITY IMPROVEMENTS SECTION 13. Pursuant to Section 101 10 of the Streets and Highways Code of the State of California, it is also the intention of this legislative body with respect to the improvements to be owned, managed, or controlled by any other public agency, regulated 5 0 0 public utility, or mutual water company, prior to ordering the construction of improvements, to enter into an agreement with each public utility company or public agency, or any combination thereof with respect to the improvements to be owned, controlled or managed by the utility or agency. PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council of the City of Newport Beach, held on the 13th day of March, 2007, by the following vote: AYES: NOES: ABSENT: ABSTAIN: Mayor ATTEST: City Clerk RESOLUTION NO. 2007- RESOLUTION GIVING PRELIMINARY APPROVAL TO THE REPORT OF THE ASSESSMENT ENGINEER FOR ASSESSMENT DISTRICT NO. 94 (PACIFIC DRIVE - CORONA DEL MAR) AND AN UNDERGROUND UTILITIES DISTRICT, SETTING A TIME AND PLACE FOR A PUBLIC HEARING THEREON, AND ORDERING THE INITIATION OF ASSESSMENT BALLOT PROCEDURES ' WHEREAS, this legislative body has instituted proceedings for the formation of a special assessment district designated as Assessment District No. 94 (Pacific Drive - Corona del Mar) (hereinafter referred to as the "Assessment District") to provide for the conversion of certain overhead electrical and communication facilities to underground locations, together with appurtenances and appurtenant work in connection therewith, 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 "Act "); WHEREAS, the Assessment District area should be designated an underground utilities district pursuant to Chapter 15.32 of the Code of Ordinances of the City of Newport Beach (the "Ordinance "); WHEREAS, a resolution of intention (the "Resolution of Intention ") forthe formation of the Assessment District and the utility conversion was previously adopted by this legislative body; WHEREAS, there has been prepared and filed with this legislative body for its consideration a Report of the Assessment Engineer (the "Report ") as required by the Resolution of Intention, Sections 10203 and 10204 of the Act, The Special Assessment Investigation, Limitation, and Majority Protest Act of 1931, Article XIIID of the Constitution of the State of California ( "Article XIIID "), and the Proposition 218 Omnibus Implementation Act (commencing with Section 53750 of the Government Code) (the "Implementation ACC) (the Act, Article XII ID, and the Implementation Act are referred to herein collectively as the "Assessment Law ") and the Ordinance; NOW, THEREFORE, It is hereby Determined, Resolved, and Ordered as follows: SECTION 1. The above recitals are all true and correct. SECTION 2. The Report is adopted and preliminarily approved, as follows: A.. The plans and specifications for the proposed improvements to be constructed, as contained in the Report, are hereby preliminarily approved and adopted; 0 0 B. The Assessment Engineer's estimate of the itemized and total costs and expenses of the construction of the improvements and of the incidental expenses in connection therewith contained in the Report, and each of them are hereby preliminarily approved and adopted; C. The diagram showing the Assessment District referred to and described in the Resolution of Intention, and also the boundaries and dimensions of the respective real property interests within the Assessment District, as the same existed at the time of the passage of said Resolution of Intention, each of which have been given a separate number upon the diagram, as contained in the Report, is hereby preliminarily approved and adopted; D. The proposed assessment upon the several property interests in the Assessment District, in proportion to the estimated special benefits to be received by such property interests, respectively, from the improvements to be constructed, and of the incidental expenses thereof, as contained in the Report, are hereby preliminarily approved and adopted; E. The descriptions of the improvements to be constructed contained in the Report are hereby preliminarily approved. SECTION 3. The Report shall stand as the Assessment Engineer's Report for the purpose of all subsequent proceedings had pursuant to the Resolution of Intention. SECTION 4. NOTICE IS HEREBY given that the City Council of the City Of Newport Beach will hold a public hearing on the assessment district, the proposed assessments, and the designation of the area as an underground utilities district at its regular meeting place, being the Council Chambers at 3300 Newport Boulevard, Newport Beach, California, on May 8, 2007 at 7:00 p.m. Pursuant to the provisions of the Assessment Law, each record owner of property that is subject to the assessment has the right to submit an assessment ballot in favorof or in opposition to the proposed assessment. Assessment ballots will be mailed to the record owner of each property interest _ located within the assessment district and subject to a proposed assessment. Each such owner may complete such ballot and thereby indicate their support for or opposition to the proposed assessment. All such ballots must be received by the City Clerk at the following address at or before the time set for the close of the public hearing: . - City Clerk City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92658 A postmark prior to such date and time will not be sufficient. 2 • • At the conclusion of the public hearing, the City Council shall cause the assessment ballots timely received to be opened and tabulated. If a majority protest exists, the City Council shall not impose an assessment within the assessment district. A majority protest exists if, upon the conclusion of the public hearing, assessment ballots submitted in opposition to the assessments within the assessment district exceed the ballots submitted in favor of such assessments. _ In tabulating the ballots, the ballots shall be weighted according to the proportional financial obligation of the affected property. SECTION 5. The City Clerk is hereby directed to mail or cause to be mailed, in the form and manner prescribed in the Assessment Law and at least 45 days prior to the date of the public hearing, notice of the public hearing and the adoption of the Resolution of" Intention and of the filing of the Report, together with the assessment ballot materials, to. the record owners of all real property proposed to be assessed. SECTION 6. The City Clerk is hereby further directed to file a copy of the proposed boundary map in the Office of the County Recorderwithin fifteen (15) days of the adoption of this resolution; said boundary map to be filed in the manner and form as set forth in Division 4.5 of the Streets and Highways Code of the State of California. PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council of the City of Newport Beach held on the 13th day of March, 2007, by the following vote: UY4*3 NOES: ABSENT: ABSTAIN: ATTEST: City Clerk M Mayor CITY OF NEWPORT BEACH RESOLUTION NO. 2007 - RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH APPROVING CONTRACTS FOR UTILITY IMPROVEMENTS FOR ASSESSMENT DISTRICT NO. 94 (PACIFIC DRIVE - CORONA DEL MAR) WHEREAS, this City Council has, pursuant to the provisions of the "Municipal Improvement Act of 1913," being Division 12 of the Streets and Highways Code of the State of California, by adoption of its Resolution of Intention, declared its intention to order the installation of certain works of improvement, together with appurtenances, in a special assessment district designated as Assessment District No. 94 (Pacific Drive - Corona del Mar) (hereinafter referred to as the "Assessment District "); WHEREAS, Streets and Highways Code Section 10110 species that before ordering any improvements which are to be owned, managed or controlled by another public agency or public utility, an agreement is required setting forth the terms and conditions of the installation, ownership, management and financing of the improvements; WHEREAS, at this time, contracts have been submitted and reviewed pursuant to the authorization of Section 10110 of said Streets and Highways Code; NOW, THEREFORE, it is hereby Determined, Ordered, and Resolved as follows: SECTION 1: The above recitals are all true and correct. SECTION 2. The agreements submitted to this legislative body relating to the installation of certain improvement facilities for the Assessment District, which improvements will be under the ownership, management and control of other public agencies or regulated public utilities, are hereby approved for execution and delivery. The agreements are the following: Southern California Edison - utility agreement AT &T - letter agreement SECTION 3. Immediately upon execution, conformed copies of said agreements shall be transmitted to the office of the respective public agency or utility company, together with a copy of this Resolution. 11 0 0 PASSED, APPROVED, and ADOPTED this 13th day of March 2007. AYES: NOES: ABSENT: ABSTAIN: ATTEST: City Clerk 2 Mayor AGREEMENT FOR REPLACEMENT OF OVERHEAD WITH UNDERGROUND DISTRIBUTION FACILITIES (installation by Utility) THIS AGREEMENT, made this 13th day of January, 2007, between SOUTHERN CALIFORNIA EDISON COMPANY, a corporation, Sereinafter called "Utility', and the party or parties whose names are subscribed hereunder as "Applicants ", WITNESSETH: WHEREAS, Applicants have requested Utility, pursuant to Section B. of Utility's Rule No. 20, Replacement of Overhead with Underground Distribution Facilities, to replace Utility's existing overhead with underground distribution facilities at the location or locations in the County of Orange County, State of Cabfurn*substantially described as follows: Bayside I Pacific / Begonia Newport Beach, CA 92660 6633 - 7113 4- 7114,6633 -7114 4 -7115 and as shown on the map attached hereto and made a part hereof; and 1S'/:I ma ffm a. It is necessary for all property owners served from Utilitys overhead facilities to be removed to agree in writing to perform the wiring changes on owners' premises so that service may be furnished from Utility's underground distribution system in accordance with Utilitys rules and that Utility may discontinue Utility's overhead service upon completion of Utility's underground facilities, or b. Suitable legislation is in effect requiring such property owners to make such necessary wiring changes and authorizing Utility to discontinue'Utility's overhead service; and WHEREAS, Applicants have requested Utility to furnish and install the pads and vaults for transformers . and associated equipment, conduits, ducts, boxes and electrolier bases and to perform other work related to structures and substructures including breaking of pavement, trenching, backfilling, and repaving required in connection with installation of the underground system; and WHEREAS, Underground service connections to each applicant from Utilitys underground distribution system will be installed and maintained as provided in Utility's rules applicable thereto; NOW, THEREFORE, in consideration of the premises, and of the mutual promises and covenants of the parties hereto, hereinafter contained, it is mutually agreed by and between the parties hereto as follows, viz.: 1. Applicants will pay to Utility concurrently with the execution hereof the nonrefundable amount of $303,218.66 , which is the excess, if any, of the estimated costs, including breaking of pavement trenching, backfilling, and paving required in connection with installation of the underground system, and of $48,738.34, the excess, if any, of the estimated costs including transformers, meters, and services, of completing the underground system and building a new equivalent overhead systemThe amount contributed by each of said Applicants is shown hereinafter. - 2. Utility will complete the undergrounding of said overhead distribution facilities, provided, however, Utility has been granted rights of way therefore satisfactory to and without cost to Utility SCE CSD 156.1 REV 11/01 -3- 3. Said underground distribution facilities will be and will remain the property of Utility. 4. Applicants each agree Applicants will perform necessary wiring changes on Applicants' premises so that service maybe furnished from Utility's underground distribution system in accordance with Utility's rules, and Utility may discontinue Utility's overhead service upon completion of Utility's undergmund facilities. 5. This contract is subject to the Rules of Utility. b. This contract shall at all times be subject to such changes or modifications by the Public Utilities _ Commission of the State of California as said Commission may, from time to time, direct in the exercise of its jurisdiction. . IN WITNESS WHEREOF, the parties hereto have executed this agreement on the day and year first above written. SIGNATURE OF APPLICANTS ADDRESS Witness w/o Str. 6633 -7113 4 -7114 w/o Cable 6633 -7114 4 -7115 contract total SOUTHERN CALIFORNIA EDISON COMPANY By REGION OR DrVMMN MANAGER Huntington Beach REGION OR DrMON $301,319.00 $ 50,638.00 $351,957.00 SCE. CSD 156 -1 REV 11101 -4- AMOUNT ODNTRIBUTED S TOTAL $ AERIAL TO UNDERGROUND CONVERSION AGREEMENT BETWEEN CITY OF NEWPORT BEACH and PACIFIC BELL TELEPHONE COMPANY DBA AT &T CALIFORNIA (AT &T To Construct USS) (Rule 32(A)(2)) m ASSESSMENT DISTRICT #94 PACIFIC DRIVE, CORONA DEL MAR Aerial to Underground Conversion Construction Agreement (Rule 32(Ax2)) where AT &T construct USS WFST.324747 (mv. 4110106) G. Waiver and Amendment ............................................................... ..............................7 Aerial to Underground Conversion Construction Agreement (Rule 32(Ax2)) where AT &T construct USS WEST:324747 (rev. 4110106) TABLE OF CONTENTS I. DEFINITIONS .............................................................................................. ..............................1 H. RECITALS .................................................................................................. ..............................1 III. SPECIFIC PROVISIONS ........................................................................ ..............................2 A. Tariff ............................................................................................. ..............................2 B. Construction ................................................................................. ..............................2 C. Term ............................................................................................. ..............................3 D. Performance by Annli cant ............................................................ ..............................3 E. Title .............................................................................................. ..............................3 F. Tax Liab .. ................................................................................ ..............................3 G. Pavment ........................................................................................ ..............................3 H. Cancellation. Modification or Deferment .................................... ..............................3 I. Indemnity; Limitation of Liabilitv ................................................ ..............................3 J. Licenses and Easements ............................................................... ..............................4 IC. Performance .................................................................................. ..............................4 L. Damage to Facilities ..................................................................... ..............................5 M. Schedule of Work ........................................................................ ..............................5 N. Force Majeure ............................................................................... ..............................5 IV. GENERAL PROVISIONS ....................................................................... ..............................5 A. Assi ent .................................................................................. ..............................5 B. Binding Effect .............................................................................. ..............................6 C. Termination .................................................................................. ..........................:...6 D. Entire Agreement ......................................................................... ..............................6 E. Jurisdiction ................................................................................... ..............................6 F. Notices .......................................................................................... .......................:......6 G. Waiver and Amendment ............................................................... ..............................7 Aerial to Underground Conversion Construction Agreement (Rule 32(Ax2)) where AT &T construct USS WEST:324747 (rev. 4110106) E • H. AttomoW Fees .............................................................................. .......................:......7 Exhibit A Applicant's Approved Street Improvement Plans Exhibit B AT &T's Estimated Costs Aerial to Underground Conversion Construction Agreement (Rule 32(A)(2)) where AT &T construct USS WEST:324747 (rev. 4/10106) 0 THIS AGREEMENT ("Agreement ") is between CITY OF NEWPORT BEACH, a California corporation ("Applicant"), and PACIFIC BELL TELEPHONE COMPANY, a California corporation doing business as AT &T California ( "AT &T") (collectively the "Parties "). I. DEFINITIONS. As used in this Agreement, the following terms apply: A. The term "Tariff' refers to Schedule Cal. P.U.C. No. A2, Rule 32.A.2. B. The terms "Underground Supporting Structure" and "USS" include, but are not limited to, conduit, manholes, service boxes, and related equipment. C. The terms "Trench" and "Trenching" include, but are not limited to, excavating, backfilling, compacting, and as necessary, breaking and replacing pavement, sidewalks, driveways, curbs and gutters; and restoring all other surface features, disturbed by underground construction, including landscaping, plus the cost of performing such work. D. The term "Hazardous Substance" refers to any substance, material and chemical that is or becomes regulated under applicable local, state or federal law, regulation, or ordinance. E. The term "District' refers to the area in/on/along Assessment District #94 along Pacific Drive in Corona del Mar where the undergrounding of existing aerial facilities is to take place. F. The term "Project' means all of the work required to underground existing aerial facilities within the District. G. The term "CPUC" refers to the California Public Utilities Commission. EL RECITALS. A. Applicant has asked AT &T to replace its existing aerial communication facilities with underground communication facilities within the District. B. AT &T is willing to underground its existing aerial communication facilities within the District, subject to the terms and conditions of this Agreement. In consideration of the above, the Parties agree as follows: Aerial to Underground Conversion Construction Agreement (Rule 32(A)(2)) where AT &T constructs USS Page 1 of 7 WEST-324747 (Rev. 4110/06) 0 � M. SPECIFIC PROVISIONS. A. Tarik The Project will be conducted in accordance with the Tariff. B. Construction. Upon receipt of the advance payment(s) described in Section G hereof and a copy of this Agreement that has been executed by Applicant, AT &T will perform the work required to convert its existing aerial facilities to underground facilities in the area shown in the District on Applicant's plans, a copy of which is attached hereto as Exhibit A. 2. If, during the installation or construction of communications facilities, AT &T employees, subcontractors, or agents encounter Hazardous Substance(s) that may be disturbed by AT &T's activities: a. AT &T shall give prompt written notice of the discovery of the Hazardous Substance(s) to Applicant; b. AT &T shall suspend performance under this Agreement until (1) containment and removal of the Hazardous Substance(s) has been completed and approved by the appropriate governmental agency(ies) if such approval is required or approved by AT &T, if governmental agency(ies) approval is not required; or (2) Applicant reasonably demonstrates to AT &T that the Hazardous Substance(s) will not be disturbed by AT &T's activities; C. AT &T's performance of its obligations under this Agreement is extended for the amount of time that it takes to complete containment/removal of the Hazardous Substance(s); and, d. If Applicant elects not to remove/contain the Hazardous Substance(s), AT &T may terminate this Agreement without further liability by giving advance notice to Applicant no later than ten (10) days after the date the Applicant notifies AT &T of its decision not to remove/contain the Hazardous Substance(s). If AT &T terminated this Agreement in accordance with this paragraph, Applicant shall reimburse AT &T for the costs AT &T incurred up to the effective date of the termination. Aerial to Underground Conversion Construction Agreement (Rule 32(A)(2)) where AT &T constructs USS Page 2 of 7 WESr324747 (Rev. 4110106) • C. Term. This Agreement is effective upon execution and shall continue in effect until terminated or canceled as provided by law or this Agreement. D. Performance by Applicant. To facilitate this project, Applicant shall require all property owners served by the aerial facilities to be replaced within the District to provide and maintain the USS on their property. E. Title. Upon completion of construction, title to the USS and all associated communications facilities placed by or for AT &T, except the underground service connections, shall vest in AT &T, provided that such is free of all liens and encumbrances. F. Tax Liability. Applicant shall pay, and hold AT &T harmless from and against, all penalties, interest, taxes or other charges that are levied or assessed against Applicant. G. Payment. 1. Applicant shall pay to AT &T within thirty (3 0) days after execution of this Agreement the sum of One Hundred & Ninety -One Thousand & Seventeen Dollars & No Cents, which represents the estimated cost of constructing the USS along the public way and other utility rights of way in the District, per Exhibit B hereto. If applicable, Applicant shall also pay to AT &T a tax component of No Dollars & No Cents collected for Federal and State Income Tax in accordance with CPUC decision 87 -09 -026. These amounts are valid for only two hundred and forty-two (242) days and are therefore subject to change after September 30, 2007, if AT &T has not commenced construction by that date due to circumstances beyond its control. The above date was agreed to by mutual agreement because of a building moratorium from July 4, 2007 to September 3, 2007. Also, this pricing must remain valid until September 30, 2007 per the actual scope of the bid. H. Cancellation. Modification or Deferment. If Applicant cancels, modifies or defers its request to replace the aerial facilities with underground facilities in the District, Applicant shall reimburse to AT &T all costs incurred by AT &T, in accordance with the Tariff. I. Indemnity; Limitation of Liability. Aerial to Underground Conversion Construction Agreement (Rule 32(A)(2)) where AT &T constructs USS Page 3 of 7 WEST--324747 (Rev. 4 /I0106) Applicant shall indemnify, defend, and hold harmless AT &T and its officers, agents and employees, as well as its associated and affiliated _ companies and their respective officers, agents, and employees ( "Indemnitees "), from and against any and all losses, damages, expenses, costs, penalties, fines, fees (including reasonable attorneys' and consultants' fees), and liabilities (collectively "Liabilities "), incurred as a result of any injury to or death of any person(s), or damage to any property(ies) arising out of or in connection with the condition of the property in the District, including environmental contamination, except where such Liabilities are caused by the sole negligence or willful misconduct of Indemnitees. 2. Applicant shall, at AT &T's request, defend AT &T, at no cost or expense to AT &T, against Liability(ies) asserted in any claim, demand, suit or legal proceeding. AT &T shall notify Applicant within a reasonable time of any written claims or demands against AT &T for which Applicant is responsible under this section. Applicant shall also (a) keep AT &T fully informed as to the progress of such defense, and (b) afford AT &T, at its own expense, an opportunity to participate with Applicant in the defense or settlement of such claims, demand, lawsuits or other legal proceedings. 3. These indemnities shall survive the termination or cancellation of this Agreement or any provision to the contrary herein. 4. IN NO EVENT SHALL AT &T BE LIABLE TO APPLICANT FOR INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, WHETHER BY TORT OR CONTRACT, INCLUDING LOST REVENUES, LOSS OF PROFITS OR OTHER COMMERCIAL OR ECONOMIC LOSS ARISING OUT OF THE PERFORMANCE OF THIS CONTRACT, INCLUDING, WITHOUT LMTATION, NEGLIGENT PERFORMANCE OR FAILURE TO PERFORM, OR A DEFECT OR FAILURE TO PERFORM OR DEFECT OF CABLE OR WIRING, REGARDLESS OF THE FORESEEABILITY THEREOF. Licenses and Easements. Prior to construction of the Project, Applicant shall, at no cost to AT &T, fiimish AT&T with any and all licenses or grants of easements that are necessary to accommodate the Project, including the construction and maintenance of AT &T's facilities. K. Performance. Aerial to Underground Conversion Construction Agreement (Rule 32(A)(2)) where AT &T constructs USS Page 4 of 7 WEST.-324747 (Rev. 4110/O6) • . • If Applicant defaults in the performance of any work that it is obligated to perform under this Agreement within the time allowed for-such work, AT &T may elect, by written notice to Applicant, to perform the work at Applicant's sole risk and expense and Applicant shall pay to AT &T upon demand AT &T's actual costs for performing the work. L. Damage to Facilities. Applicant and its employees, agents and contractors shall exercise special precaution and care to avoid causing damage to AT &T's facilities in performing work near AT &T's work. Applicant shall assume responsibility for any and all losses, costs and expenses arising out of, caused by, or in any way connected with such damages, including consequential damages. Applicant shall immediately report the occurrence of any such damage to AT &T and shall, on demand, reimburse AT &T for all expenses incurred by AT &T in replacing or repairing the damage. M. Schedule of Work. AT &T shall have its facilities converted contingent upon mutually acceptable schedules, timely obtaining of permits, licenses and other documents, and not being delayed by those uncontrollable forces described in Section III.N below. N. Force Maieure. AT &T shall not be held liable to Applicant for any delay in performance under this Agreement from any cause beyond its control and without its fault or negligence, such as acts of God, acts of civil or military authority, government regulations, the presence of archeological or historical artifacts, or Hazardous Substances on, in, or near the Project, embargoes, epidemics, war, terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear accidents, floods, strikes, power blackouts, volcanic action, other major environmental disturbances, unusually severe weather conditions, inability to secure products or services of other persons or transportation facilities, or acts or omissions of carriers. If any of the foregoing events occur, AT &T agrees, if requested by Applicant, to accelerate its efforts hereunder if reasonably feasible in order to regain lost time, so long as Applicant agrees in writing to reimburse AT &T for the incremental actual costs of such efforts. IV. GENERAL PROVISIONS. A. Assignment Applicant shall not wholly or partially assign this Agreement without the prior written consent of AT &T. Aerial to Underground Conversion Construction Agreement (Rule 32(A)(2)) where AT &T constructs USS Page S of 7 WEST324747 (Rev. 4110106) B. Binding Effect Thfs Agreement shall be for the benefit of and is binding upon the respective successors and assigns of the parties. C. Termination. This Agreement automatically terminates upon completion of the Project. In the event of any material default or breach of this Agreement by Applicant, in addition to all other rights and remedies which AT &T may have at law or in equity, AT &T shall have the immediate right to terminate this Agreement by giving ten (10) days prior written notice of termination. The notice shall specify the cause of termination and shall give Applicant a reasonable opportunity to cure and correct any such cause. In the event this Agreement is terminated or suspended as provided herein, AT &T shall not be liable to Applicant or any other person or entity for any losses, damages or claims which may arise as a result of termination. Applicant shall pay to AT &T all costs and expenses incurred by AT &T prior to termination of this Agreement. Any termination of this Agreement in whole or in part shall not release Applicant from any liability or obligation under this Agreement, whether of indemnity or otherwise, which may have accrued or which may be accruing or which arises out of any claim that may have accrued or may be accruing at the time of termination. D. Entire Agreement This Agreement and the attached Exhibits, which are incorporated herein by this reference, constitute the entire Agreement between the Parties hereto with respect to the subject matter hereof. All prior agreements, representations, statements, negotiations and understandings are superseded. E. Jurisdiction. This Agreement shall be governed by the laws of the State of California and is subject to the applicable rules, regulations and tariffs on file with the CPUC. F. Notices. All notices and other communications hereunder shall be given in writing and addressed as follows and shall be deemed given when: delivered in person, delivered to an agent, such as an overnight or similar delivery service, or three days after being deposited in the United States mail, postage prepaid. APPLICANT AT &T Aerial to Underground Conversion Construction Agreement (Rule 32(A)(2)) where AT &T constructs USS Page 6 of 7 WEST:324747 (Rev. 4110 /06) 0 City of Newport Beach Department of Public Works Attn: W. Patrick Arciniega 3300 Newport Blvd. Newport Beach, Ca. 92658- 8915 G. Waiver and Amendment. Attn: Jeff Merickel 3939 E. Coronado St. Anaheim, Ca. 92807 The provisions of this Agreement shall not be waived, altered, or amended by any representations or promises of any party unless consented to in writing by both parties. H. Attorneys' Fees. If any action is brought to adjudicate the rights granted in this Agreement or to enforce any of the terms of this Agreement, the prevailing party shall be entitled to an award of reasonable attorneys' fees in an amount to be determined by a court or a tribunal of competent jurisdiction. The duly authorized representatives of Applicant and AT &T have executed this Agreement by affixing their signatures on the dates indicated below. MY OF NEWPORT BEACH ,Printed Name: Title: Date Signed: WEST.324747 (Rev. 4110/06) PACIFIC BELL TELEPHONE COMPANY Printed Name: JU- Mri`'l R.MMILKULL Title: IVlMAiCPR— &,&INffB�IL Date Signed: 1- 31 —a-1 Aerial to Underground Conversion Construction Agreement (Rule 32(A)(2)) where AT &T constructs USS Page 7 of 7 • • BOND COUNSEL AGREEMENT ASSESSMENT DISTRICT NO. 94 (PACIFIC DRIVE - CORONA DEL MAR) THIS AGREEMENT is made and entered into as of February 1, 2007, by and between the City of Newport Beach, California, a municipality ( "City"), and Robert E. Hessell, attorney -at -law ( "Counsel'). IT IS HEREBY AGREED by and between Counsel and City as follows: SECTION 1. Obligations of Counsel. Under this agreement, Counsel shall perform legal services for and on behalf of City in connection with the proceedings relating to the formation of an underground utilities assessment district designated Assessment District No. 94 (Pacific Drive - Corona del Mar) (the "AD'), to the establishment of an underground utilities district, and to any related bond or other debt issuance by, or for the benefit of, the AD. 1.1 Time is of the essence in the performance of services under this agreement and the services shall be performed to completion in a diligent and timely manner. SECTION 2. Scope of Services. Legal services to be provided by Counsel shall include: (a) attending negotiation sessions and otherwise assisting City staff in the negotiation with utility companies; (b) preparing all resolutions, notices, agreements, bonds, and other papers and documents required in the proceedings; (c) examining the proceedings related to the formation of the AD (d) appearing at all hearings under the proceedings, and attending any other meeting where attendance is requested by the City, (e) reviewing and examining the map showing the boundaries of the AD; (f) reviewing the method and formula utilized by the Assessment Engineer for the apportionment of the special assessment; (g) reviewing the "Report" of the Assessment Engineer; (h) participating with the City's financing team to determine the structure of any bond or similar debt issuance; (i) assisting in the review of those sections of the official statement, if any, to be disseminated in connection with the issuance of any series ofbonds related to authority and security for the bonds, tax - exemption, legal opinion, litigation, summary ofbond indenture, bond purchase agreement or notice of sale and other supporting documentation relating to the offering for sale ofany bonds or similar indebtedness; 0) preparing or reviewing any continuing disclosure agreement required under SEC Rule 15c2 -12; (k) consulting with any underwriter, rating agency and credit enhancement provider, and their respective legal counsel, participating in the sale of, or security for, any bonds or similar indebtedness; 0) consulting with any trustee, fiscal agent or paying agent, and their respective legal counsel, participating in the sale of, or security for, any bonds or similar indebtedness; (m) assisting in any ballot proceedings; (n) subject to the completion of the proceedings to Counsel's satisfaction, issuing an approving legal opinion attesting to the validity of the proceedings and the issuance of bonds or similar indebtedness, which legal opinion will be addressed to the City and will be delivered by Counsel on the date the bonds are exchanged for their purchase price (the "Closing "); (o) providing any necessary supplemental legal opinions as to the applicability of the registration requirements of federal securities laws and other matters related to the issuance ofbonds or similar indebtedness; provided, however, such opinions do not include the rendering of a 10(b)5 opinion regarding any official statement or similar document; (p) providing advice and instruction to the City and its staff in connection with any of the foregoing. SECTION 3. Obligations of City. The City shall: A. Furnish to Counsel such maps, records, title searches, filings, reports, certificates and other documents and proceedings, or certified copies thereof, as are necessary or convenient for Counsel to provide Counsel's approving legal opinions. B. Pay Counsel for services rendered pursuant to this agreement as follows: e' i • 1. Formation of AD and Debt Issuance. If the AD is formed and bonds or similar indebtedness are issued by or for the benefit of the AD, Counsel shall be paid a fee for all services computed on the principal amount of each series of bonds or similar indebtedness issued as follows: One -half of one percent (0.5 %) of the principal amount up to $5,000,000; plus One- quarter of one percent (0.25 %) of the principal amount from $5,000,001 to $10,000,000; plus One- eighth of one percent (0.125 %) of the principal amount from $10,000,001 to $20,000,000; plus One- sixteenth of one percent (0.0625 %) of the principal amount above $20,000,001. Notwithstanding the foregoing, the minimum fee shall be $20,000. The fee for the bonds or similar indebtedness shall be due and payable upon the occurrence of the Closing. 2. If Debt Is Not Issued. In the event that the AD is formed and debt is not issued for any reason, Counsel shall be paid a fee of $5,000 for all services rendered with respect to the formation of the AD. The fee shall be due and payable upon invoice from Counsel, which may be transmitted to the City following a determination that debt will not be issued. 3. Costs and Expenses. In addition to the foregoing, all costs and expenses reasonably incurred in connection with the proceedings to form the AD are to be billed to, and payable by, City. Costs and expenses will be billed at cost, except the expenses stated below will be billed as follows: Photocopying: $0.10 per page Mileage: IRS Rate - (unless over one -half hour and billed hourly) Facsimile: $0.10 per page (sending only) Computer Research: Cost, plus 10% Transcript Preparation: Not to exceed $90 per transcript Bond Preparation: Not to exceed $300 per series of bonds Costs and expenses incurred in connection with the proceedings to form the AD shall be due and payable at the time the fee for the services is due and payable and shall be payable solely from the proceeds of the first issuance of bonds or similar indebtedness, collections from the Assessment District, or any combination thereof. Expenses incurred in connection with the issuance of bonds or similar indebtedness shall be due and payable at the time of the Closing of the issue for which such expenses were incurred and shall be payable from the proceeds of the issue. SECTION 4. Limitation of Agreement. Counsel's services under this agreement are limited to those expressly set forth in Section 2 above. Among other things, the scope of services does not include: (a) preparing requests for tax rulings from the Internal Revenue Service, or no action letters from the Securities and Exchange Commission; (b) except as described in Section 2 above, assisting in the preparation or review of an official statement or other disclosure document with respect to any series of bonds, or performing an independent investigation to determine the accuracy; completeness or sufficiency of any such document or rendering advice that the official statement or other disclosure document does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading, (c) preparing blue sky or investment surveys with respect to any series of bonds; (d) making an investigation or expressing any view as to the creditworthiness of the bonds; (e) representing the City in Internal Revenue Service examinations or inquiries, or Securities and Exchange Commission investigations; (f) after Closing of any series of bonds, providing the City continuing advice conceming any actions necessary to assure that interest paid on the bonds will continue to be excludable from gross income for federal income tax purposes. SECTION 5. Additional Services. Upon written request of the City, Counsel will provide legal services related to certain appurtenant legal matters, including, but not limited to, the following: (a) preparation of a preliminary official statement and a final official statement; (b) litigation challenging the validity of (i) the proceedings to form the AD, to authorize the levy of special assessments or to issue bonds or similar indebtedness or (ii) the bonds or similar indebtedness; (c) ongoing review and advice regarding the City's compliance with any applicable continuing disclosure agreement; and (d) such other services as the City and Counsel should agree. SECTION 6. Conflicts. Counsel hereby states that Counsel does not represent clients with adverse interests to the City with respect to any matter within the scope of services to be provided under this agreement. City acknowledges that Counsel represents or has represented many public agencies and, occasionally, underwriters and other entities, and City understands the possibility that during the time of this agreement, one or more of Counsel's present or future clients may have transactions with the City. City also understands the possibility that Counsel may be asked to represent, in an unrelated matter, one or more of the entities involved in the matters contemplated by this agreement. Counsel does not believe that such representation, if it occurs, will adversely affect Counsel's ability to represent the City as provided in this agreement, either because the matters will be sufficiently different from the matters contemplated by this agreement so as to make the representations not adverse to Counsel's representation ofthe City orbecause the potential for such adversity is remote or minor and outweighed by the consideration that it is unlikely that advice given to the other client will be relevant to any aspect of the matters contemplated by this agreement. Execution of this agreement signifies the City's consent to Counsel's representation of others consistent with the circumstances described in this paragraph. Counsel hereby agrees to inform City in advance of any potential representation Counsel plans to undertake on behalf of other parties or entities involved in the matters contemplated by this agreement. [The remainder of this page is intentionally blank.] • i SECTION 7. Termination. Either party may terminate this Agreement by giving seven (7) calendar days written notice thereof to the other party. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day and year first hereinabove written. Approved as to form: City Attorney City of Newport Beach LE Mayor, for the City of Newport Beach Robert E. Hessell LM • 0 CITY OF NEWPORT BEACH ENGINEER'S REPORT UNDERGROUND UTILITY ASSESSMENT DISTRICT No. 94 MARCH 13, 2007 INTENT MEETING: March 13, 2007 PUBLIC HEARING: May 8, 2007 C Corporate Office 27368 Via Industria Suite 110 Temecula, CA 92590 Tel: (951) 587 -3500 Tel: (800) 755 -MT JNI (6864) Fax: (951) 587 -3510 Regional Oliiees Anaheim, CA Industry, CA Jacksonville, FL Lancaster, CA Oakland, CA www.mum.com Phoenix, AZ San Diego, CA Seattle, WA Washington, DC • ENGINEER'S REPORT UNDERGROUND UTILITY ASSESSMENT DISTRICT NO. 94 CITY OF NEWPORT BEACH TABLE OF CONTENTS CERTIFICATIONS ENGINEER'S REPORT ...... _ ....................... _...................................................................... GENERAL DESCRIPTION OF UNDERGROUND UTILITY ASSESSMENT DISTRICT NO. 94 ...... _ ........ 1 DESCRIPTION OF WORK .... .. ................................................................. .. .................. _ ........................................ 1 EXHIBIT A - PLANS AND SPECIFICATIONS ................................... _ .............................................................. A EXHIBITB -COST ESTIMATE ........................................................................................... ............................... B EXHIBIT C - DEBT LIMIT REPORT ......................................................»........................... .................... ».........0 EXHIBIT D - METHOD OF ASSESSMENT .................................. _ .................................................................... D EXHIBITE - ASSESMENT ROLL ......................................................................._................ ............................... E EXHIBIT F - ASSESSEMENT DIAGRAM ............................................................................ ............................... F EXHIBIT G - MAXIMUM ANNUAL ADMINISTRATIVE COST ..... _ .............................. ...................... ».......G EXHIBIT H - INDIVIDUAL SERVICE CONNECTIONS.......„ ........................................... ..............................H EXHIBITI - PUBLIC PROPERTIES ....................................................................................... ..............................I EXHIBIT J - CERTIFICATE OF COMPLETION OF ENVIRONMENTAL PROCEEDINGS .......................J EXHIBIT K - RIGHT -OF -WAY CERTIFICATE .......................................... » ............................... _ ................... K MuniFinancial City of Newport Beach ENGINEER'S REPORT UNDERGROUND UTILITY ASSESSMENT DISTRICT NO. 94 CITY OF NEWPORT BEACH The undersigned respectfully submits the enclosed report as directed by the City Council. 2007. Willdan Assessment Engineer I HEREBY CERTIFY that the enclosed Engineer's Report, together with the Assessment and Assessment Diagram thereto attached, was filed with me on the day of 2007. Clerk of the City Council, City of Newport Beach, California I HEREBY CERTIFY that the enclosed Engineer's Report, together with the Assessment and Assessment Diagram thereto attached, was approved and confirmed by the City Council for the City of Newport Beach, California, on the day of . 2007. Clerk of the City Council, City of Newport Beach, California I HEREBY CERTIFY that the enclosed Engineer's Report, together with the Assessment and Assessment Diagram thereto attached, was recorded in my office on the day of 2007. Superintendent of Streets City of Newport Beach, California MuniFinancial ii City of Newport Beach • ! ENGINEER'S REPORT UNDERGROUND UTILITY ASSESSMENT DISTRICT NO. 94 CITY OF NEWPORT BEACH Willdan /MuniFinancial, Assessment Engineer of work for Underground Utility Assessment District No. 94 (the "Districel, writes this report, as prescribed by the City Council of the City of Newport Beach in accordance with the Resolution of Intention, and pursuant to the terms and provisions of Article XIIID Of the State Constitution, Part 7.5 of the Special Assessment Investigation, Limitation and Majority Protest Act of 1931, which is Division 4 of the Streets and Highways Code of the State of California, the Municipal Improvement Act of 1913, which is Division 12 of the Streets and Highways Code of the State of California, and Chapter 28 of the Improvement Act of 1911. The improvements, which are the subject of this report, aze briefly described as follows: GENERAL DESCRIPTION OF UNDERGROUND UTILITY ASSESSMENT DISTRICT NO. 94 Underground Utility Assessment District No. 94 generally includes the properties South of First Avenue, East of Avocado Road, West of Begonia Avenue, and North of Bayside Drive. The District is trade up thirty -seven (37) single- family residential properties. All properties within the District except for one are developed, two properties will only require that their phone service be undergrounded, and six properties will benefit only from the improved neighborhood aesthetics as a result of the utility undergrounding. DESCRIPTION OF WORK The following is a description of the planned improvements for the entire district. Undergrounding of Overhead Utility Lines The undergrounding of overhead utility lines within the boundaries of the District includes trenching, installing the new utility vaults needed to receive the conduits and transformers, laying the conduit lines into the trenches, re- paving the street, switching service to the underground system and removing the existing overhead poles and wires. This includes power lines owned by Southern California Edison, phone lines owned by AT &T, and cable television and fiber optic lines owned by Time Warner Communications. The proposed underground electric and communication improvements must be constructed within public right -of -way, land, or easements owned by the City of Newport Beach or the serving utility. Onsite Property Costs The public improvement portion of the undergrounding of utilities will terminate at a service lateral located at the front or rear of each property to be served in the district. Each individual property owner will be responsible for all necessary work to connect facilities from the service lateral to the connection point at the house, including but not limited to, trenching, backfilling, installation of conduits and conductors, and conversion panels. MuniFinancial City of Newport Beach 0 0 t ell Bonds representing unpaid assessments, and beating interest at a rate not -to- exceed twelve- percent (12- percent) per annum, shall be issued in the mannet provided by the Improvement Bond Act of 1915 (Division 10, Streets and Highways Code), and the last installment of the bonds shall mature not -to- exceed thirty -nine (39) years from the second day of September next succeeding twelve (12) months from the date. This report includes the following attached exhibits: EXHIBIT A - Plans and specifications for improvements to be constructed. Plans and specifications are a part of this report, separately bound, and are available for review at the Office of the Superintendent of Streets of the City of Newport. EXHIBIT B - An estimate of the cost of the improvements. EXHIBIT C - A debt limitation report showing the following. 1. The total amount of Prior Assessment Liens, as near as may be determined, and 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 that contemplated for this Underground Utility Assessment District No. 94, against the total area proposed to be assessed. 2. The total true value, as near as may be determined, of the parcels of land and the improvements that are proposed to be assessed by this District. EXHIBIT D - A statement of the method by which the Assessment Engineer determined the amount to be assessed against each parcel based on the special benefits to be derived by each parcel, respectively, from the improvements. EXHIBIT E - An assessment roll, showing the amount to be assessed against each parcel of real property within this Underground Utility Assessment District No. 94. Each parcel is identified by an Assessor's Parcel Number. Each parcel is also assigned an "assessment number" for the purposes of this proceeding. EXHIBIT F - A diagram showing all of the parcels of real property within this Underground Utility Assessment District No. 94. The diagram corresponds to and is keyed to Exhibit C by the assessment number. EXHIBIT G - Proposed maximum annual administrative cost per parcel. EXHIBIT H - Provisions related to Individual Service Connections. EXHIBIT I - A schedule showing the public property that will be included within the District. EXHIBIT j — Certification of Completion of Environmental Proceedings. EXHIBIT K — Right -of -Way Certificate. MuniFinancial 2 City of Newport Beach 0 • ENGINEER'S REPORT UNDERGROUND UTILITY ASSESSMENT DISTRICT NO. 94 CITY OF NEWPORT BEACH EXHIBIT A - PLANS AND SPECIFICATIONS PLANS AND SPECIFICATIONS The plans and specifications for the improvements for this District are voluminous and will not be bound to this Report, but by this reference are incorporated as if attached to this Report. The plans and specifications are on file in the Office of the Superintendent of Streets of the City of Newport Beach. The plans and specifications for this District consist of utility undergrounding plans, public works encroachment permit, paving requirements, and special provisions. MuniFinancial Exhibit A - Page I City of Newport Beach n u 0 ENGINEER'S REPORT UNDERGROUND UTILITY ASSESSMENT DISTRICT NO. 94 CITY OF NEWPORT BEACH EXHIBIT B - COST ESTIMATE MuniFinancial Exhibit B - Page t City of Newport Beach TOTAL CONSTRUCTION COSTS. AMOUNT Electrical Construction Costs , Southern California Edison $351,957.00 Contingency (10 %) 35,195.70 City Fund Advancement 11.260.00 Sub Total $398,412.70 Telephone Construction Costs AT &T 191,017.00 Contingency (10 %) 19,101.70 City Fund Advancement 6,800.00 Sub Total $216,918.70 Total Construction Costs $615,331.40 INCIDENTAL EXPENSES Assessment Engineering $19,035.00 City Administration 13,000.00 Construction Inspection 11,000.00 Financial Advisor 12,500.00 Bond Counsel 20,000.00 Paying Agent 2,000.00 COI Incidental Contingen_ cy 7 500.00 Sub Total $85,035.00 FINANCING COSTS (1st Bond Issue) Underwriters Discount (Ll %) $8,204.52 Reserve Fund (55 %01 37.293.25 Sub Total $45,497.77 DISTRICT FORMATION AMOUNT TO ASSESSMENT $745,865 FEDERAL INCOME TAX COMPONENT OF CONTRIBUTION (ITCC) 2nd Bond Issue - Only necessary if Federal Government requires the tax payment* INCIDENTAL & FINANCING COSTS (2nd Bond Issue) ITCC Portion $77,430.54 Bond Issuance Contingency 10.000.00 Total $87,431 Rounding $1,704 TOTAL AMOUNT TO ASSESSMENT (Both Bond Issues) $835,000 * 2nd bond issue for Federal Income Tax Component of Contribution (22 %) and will only be issued if the Federal Government requests the payment of the tax. MuniFinancial Exhibit B - Page t City of Newport Beach 0 n L� ENGINEER'S REPORT UNDERGROUND UTILITY ASSESSMENT DISTRICT NO. 94 CITY OF NEWPORT BEACH EXHIBIT C - DEBT LIMITATION REPORT After reasonable search, we are not aware ofany prior assessment liens on the properties located within Underground Utility Assessment District No. 94. The total of the assessment liens for the Underground Utility Assessment District No. 94 is equal to $835,000. "True Value" as used herein is the estimated 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. The gross property valuation (based on the 2006/07 County of Orange Secured Property Tax Roll) for properties located within Underground Utility Assessment District No. 94 totals $52,448,651. CERTIFICATION OF ASSESSMENT ENGINEER I, the undersigned Assessment Engineer, do hereby certify that the total amount of the principal sum of the assessments proposed to be levied for the District, together with the principal amount of all other assessments levied or proposed to be levied on the properties within 'the District, as set forth above, does not exceed one -half (1/2) of the total true value of the parcels proposed to be assessed for the District. I further certify that the proposed assessment upon any parcel does not exceed one -half (1/2) of the true value of the parcel. Willdan/MuniFinancial Kenneth T. Steele, P.E. Assessment Engineer MuniFinanelal Exhibit C - Page 1 City of Newport Beach 0 0 ENGINEER'S REPORT UNDERGROUND UTILITY ASSESSMENT DISTRICT NO. 94 CITY OF NEWPORT BEACH EXHIBIT D - METHOD OF ASSESSMENT BACKGROUND The law requires that assessments levied pursuant to the Municipal Improvement Act of 1913 be based on the benefit that properties receive from the Improvements. However, the law does not specify the method or formula that should be used to apportion the assessments in the Underground Utility Assessment District No. 94 proceedings. In addition, Articles XIIIC and XIIID of the California Constitution require that only special benefits are assessable, that no assessment may exceed the proportional special benefit received by the parcel assessed, and that publicly owned parcels shall not be exempt from assessment unless clear and convincing evidence demonstrates that such public owned parcels receive no special benefits from the improvements or services for which the assessment is levied. Special benefit is a particular and distinct benefit over and above general benefits conferred to the public at large on real property located within the District. General enhancement of property value does not constitute special benefit. It is necessary to identify the-special benefit that the Improvements will render to the properties within the Underground Utility Assessment District No. 94. It is also necessary to identify and separate any portion of the Improvements, which provide a general benefit to the public at large from the portion of Improvements that provide a special benefit to parcels within the District. Any cost of Improvements, or portion thereof, that is considered general benefit has not been included as part of the total assessment. It has been determined from the design plans, cost estimates, and boundaries of the District that all of the Improvements, for the undergrounding of the utilities, provide a direct and special benefit to the parcels within the District and there is no measurable general benefit to the public at large. The responsibility rests with the Assessment Engineer who is appointed for the purpose of analyzing the facts and determining the method of apportionment of the assessment to the benefiting properties, based on the amount of special benefit that each parcel receives, related to the District as a whole. For these proceedings, the City has retained the firm of Willdan /MuniFinancial as the Assessment Engineer. The Assessment Engineer makes the recommendation for the method of apportionment at the public hearing. The final authority and action rest with the City Council after hearing all testimony and evidence presented at the public hearing and completing the tabulation of assessment ballots. Upon conclusion of the public hearing, the City Council must make the final action in determining that the assessment has been apportioned equitably based on the special benefit received by each parcel. Ballot tabulation will then be completed, and if less than 50 percent of ballots returned and tabulated, weighted by assessment amount, are opposed to the assessment, then there is not a majority protest and the City .Council may form the District, adopt the Final Engineer's Report, and Order the Work to commence. MuniFinancial Exhibit D - Page 1 City of Newport Beach 0 BENEFIT • The district is being formed to underground the existing overhead electrical and communication facilities within the boundaries of the District. Undergrounding the existing overhead utilities will improve the safety of motorists who drive in the neighborhood. The existing poles are immovable objects that could cause damage and possible injury to the occupants of the vehicle, in the event of an accident involving a utility pole. By removing the poles from the right -of -way and street edge, the potential for vehicles to collide with them are removed which will provide overall improved safety for drivers within the District. The removal of overhead utility poles and lines provides an additional safety benefit in that it reduces the potential of hazardous conditions in the event of natural disasters. Earthquakes, severe storms with high winds, and other natural disasters can cause poles to fall, potentially impacting property in the District, and possibly cause live electric lines to be exposed. Downed electric lines pose a potential threat of fire and potential injury due to electric shock. In addition, downed electric lines can restrict ingress and egress of residents and emergency services. In addition to the safety improvements provided by the undergrounding of utilities, removing the poles and lines will eliminate an unusually heavy concentration of overhead electric and communication facilities. This will improve the overall aesthetics within the District and the reliability of the utility services received by properties in the District. Parcels that will have their utilities undergrounded will benefit from improved reliability of the utility services by receiving new upgraded utility lines and cables, along with appurtenant facilities related to the utility to be undergrounded. This will reduce exposure to natural phenomena that may cause potential damage and interruption in utility services. Undergrounding of these utilities will bring this neighborhood closer to modem day development standards. These special benefits improve the physical and visual environment, as well as, the quality of utility services provided. The benefits of this undergrounding project are a direct and special benefit to the owners of property within the District. Since residents of all of the lots within the District drive and walk the streets that have the utilities proposed for undergrounding, the owners of these lots receive all of the direct and special benefits of the improvements. There is no measurable general benefit since the primary function of the affected streets is to provide access for the residents within the District, and not to the public at large. METHOD OF ASSESSMENT The method of assessment is determined by an analysis of the benefit a property receives rather than the specific cost of providing improvements to an individual property. The benefit of undergrounding the overhead utility system is based on safety, services to be undergrounded, reliability, and neighborhood aesthetics. The District is made up of 37 single - family residential properties. The method of apportionment established for most districts formed under the 1913 Act utilizes a weighted method of apportionment known as an Equivalent Benefit Unit (EBU) methodology that uses the single- family home site as the basic unit of assessment. The distribution of electricity, other utilities, and the underground wires and cables are constant no matter what size lot or house is located on each parcel. Therefore, each property within the District will be assigned one Equivalent Benefit Unit for each of the three utilities to be undergrounded and one Equivalent Benefit Unit for the improved neighborhood aesthetics resulting from the removal of overhead utilities. The total EBU and assessment assigned to each property shall be calculated by the following-equation: MuniFinancial Exhibit D - Page 2 City of Newport Beach 11 Electrical + Phone + • Cable + Aesthetic - Parcel's EBU EBU EBU EBU EBU Total Assessment Assessment Rate per EBU Total EBU ` Assessment Rate per EBU x ParcePs EBU = Parcel's Assessment In addition to the assessments related to the cost of undergrounding the overhead utilities and associated incidental expenses and financing costs in connection with the issuance of bonds ("Underground Assessment'), properties that benefit from the conversion of their electrical services from overhead facilities to underground transmission may also be subject to an additional assessment linked to the Income Tax Component of Contribution (ITCC) ("Supplemental Assessment'). This Supplemental Assessment is established to cover any tax liability incurred by Southern California Edison as a result of an Internal Revenue Service determination that the utility conversion is a taxable event. In the event Southern California Edison is taxed, a second series of bonds would be issued to pay for the tax liability. A parcel's Supplemental Assessment is calculated based on such parcels share of the total Electrical Equivalent Benefit Units. The total assessment lien on each parcel will be the Underground Assessment plus the Supplemental Assessment. Parcels that will not have their electrical service converted from overhead facilities to underground transmission will not be assessed a Supplemental Assessment. EXCEPTIONS AND-CREDITS The overhead utilities will be removed along the north side of Acacia Avenue from Pacific Drive to First Avenue and parcels 459 - 101 -13, 459- 101 -14, 459- 102 -01, 459 - 102 -04, 459- 102 -05, 938 -01 -418, and 938- 01 -430 (the "Acacia Properties') will receive improved aesthetics associated with the neighborhood as a whole. Although the overhead utilities will be removed along Acacia Avenue, the Acacia Properties will continue to receive their utility services from overhead connections or existing underground transmission lines connected to overhead utilities located along the backside of their properties, therefore, the Acacia Properties will not benefit from the enhanced services, increased reliability and capacity, or improved safety as a result of the utility undergrounding. In determining the level of benefit the Acacia Properties receive, the special benefits received by all other parcels within the District must be considered in order to calculate the proportional special benefit conferred on the Acacia Properties. In addition, the overhead utilities that will remain along the side and backside of these properties must also be considered in calculating the EBUs assigned to the Acacia Properties. Therefore, since only the frontage along Acacia Avenue will be improved by the proposed utility undergrounding, the aesthetic EBU assigned to each Acacia Property must reflect the level of benefit conferred on such properties. Specifically, parcels 459- 101 -13, 459-102-04,938-01-418, and 938 -01 -430 will continue to have overhead utilities along the back alley of their properties, as such, the aesthetic EBU assigned to each of these parcels shall equal one -half of the base aesthetic EBU (1/2 x 1.00 = 0.5 EBU). Parcel 459- 102 -05 will also be served by overhead utilities along the backside of their property, however, this property will benefit from the removal of overhead utilities not only along Acacia Avenue but also along the alley that joins Acacia Avenue and Begonia Avenue and shall,be assessed two- thirds of the base aesthetic EBU MuniFinanclal Exhibit D - Page 3 City of Newport Beach • • (2/3 x 1.00 = 0.67 EBU). Parcel 459- 102 -15 shall also benefit from the removal of overhead utilities along the alley that joins Acacia Avenue and Begonia Avenue, but will still have overhead facilities along the backside of their property. As such, parcel 459- 102 -15 will also be assessed one -half of the base aesthetic EBU (1/2 x 1.00 = 0.5 EBU). Assessment Assessor's Electrical Phone Cable Aesthetic Total Number Parcel Number EBU EBU EBU EBU EBUs 21 459 - 101 -13 0.00 0.00 0.00 1/2 x (1.00) 0.5 24 459 - 102 -04 0.00 0.00 0.00 1/2 x (1.00) 0.5 25 459-102 -05 . 0.00 0.00 0.00. 2/3 x (1.00) 0.67 35 459 - 102 -15 0.00 0.00 0.00 1/2 x (1.00) 0.5 36 938 - 01-418 0.00 0.00 0.00 1/2 x (1.00) 0.5 37 938 - 01-430 0.00 0.00 0.00 112 x (1.00) 0.5 Parcels 459- 101 -14 and 459- 102 -01 will continue to have overhead utilities along the backside of their properties and along the frontage on First Avenue. These two parcels aesthetic EBU shall equal one - third of the base aesthetic EBU (1/3 x 1.00 = 0.33 EBU). Assessment Assessor's Electrical Phone Cable Aesthetic Total Number Parcel Number EBU EBU EBU EBU EBUs 22 459 - 101 -14 0.00 0.00 0.00 113 x (1.00) 0.33 23 459 -102 -01 0.00 0.00 0.00 113 x (1.00) 0.33 A guy pole will continue to remain along the backside of parcel 459- 102 -09; therefore, a credit will be applied against the parcel's Aesthetic EBU. Unlike the four Acacia Properties that will continue to have overhead facilities across the backside of their property, parcel 459- 102 -09 will not have power lines or transmission wires adjacent to its property. As such, the credit applied to parcel 459- 102 -09 shall equal one -forth of the base aesthetic EBU for a final Aesthetic EBU equal to 0.75. In the future, if another assessment district is formed to remove the remaining overhead utilities adjacent to the Acacia Properties, the Acacia Properties and assessor parcel number 459 - 102 -09 shall be included within the new assessment district and assessed for the remaining benefits not assessed within Assessment District No. 94. MuniFinancial Exhibit D - Page 4 City of Newport Beach 0 0 ENGINEER'S REPORT UNDERGROUND UTILITY ASSESSMENT DISTRICT NO. 94 CITY OF NEWPORT BEACH EXHIBIT E - ASSESSMENT ROLL An assessment of the total amount of the costs and expenses of the improvements upon the subdivisions of land within the Underground Utility Assessment District No. 94, in proportion to the estimated special benefit to be received by the subdivisions from the Improvements, is set forth upon the following Assessment Roll Filed with and made part of this Report. The Assessment Roll lists the assessor's parcel numbers within this Underground Utility Assessment District No. 94 by assessment number. The assessment numbers appearing on the Assessment Roll correspond with the subdivisions and parcels of land and their numbers shown on the Assessment Diagram (Exhibit F). Conclusion In conclusion, it is my opinion that the assessments for Underground Utility Assessment District No. 94 are allocated in accordance with the direct and special benefit that each parcel receives from the Improvements. Signed by Willdan Assessment Engineer City of Newport Beach State of California Kenneth T. Steele, P.E. MuniFinancial Exhibit E - Page I City of Newport Beach Assessment Number Assessor's Parcel Number Electrical EBU Phone EBU Cable EBU Aesthetic EBU Total EBU Direct Formation Assessment ITCC Assessment Preliminarily Approved 1 052 - 011 -01 1.00 1.00 1.00 1.00 4.00 24,538.40 2,932.47 27,470.87 2 052 - 011 -03 1.00 1.00 1.00 1.00 4.00 24,538.40 2,932.47 27,470.87 3 052 - 011 -04 1.00 1.00 1.00 1.00 4.00 24,538.40 2,932.47 27,470.87 4 052- 011 -05 1.00 1.00 1.00 1.00 4.00 24,538.40 2,932.47 27,470.87 5 052 - 011 -07 1.00 1.00 1.00 1.00 4.00 24,538.40 2,932.47 27,470.87 6 052- 011 -08 1.00 1.00 1.00 1.00 4.00 24,538.40 2,932.47 27,470.87 7 052- 011 -09 1.00 1.00 1.00 1.00 4.00 24,538.40 2,932.47 27,470.87 8 052- Qll -12 1.00 1.00 1.00 1.00 4.00 24,538.40 2,932.47 27,470.87 9 052- 011 -14 1.00 1.00 1.00 1.00 4.00 24,538.40 2,932.47 27,470.87 10 052 - 011 -20 1.00 1.00 1.00 1.00 4.00 24,538.40 2,932.47 27,470.87 11 052 - 011 -21 1.00 1.00 1.00 1.00 4.00 24,538.40 2,932.47 27,470.87 12 052- 011 -22 1.00 1.00 1.00 1.00 4.00 24,538.40 2,932.47 27,470.87 13 052 - 011 -23 1.00 1.00 1.00 1.00 4.00 24,538.40 2,932.47 27,470.87 14 459 - 101 -02 1.00 1.00 1.00 1.00 4.00 24,538.40 2,932.47 27,470.87 15 459- 101 -06 1.00 1.00 1.00 1.00 4.00 24,538.40 2,932.47 27,470.87 16 459 - 101 -07 1.00 1.00 1.00 1.00 4.00 24,538.40 2,932.47 27,470.87 17 459 - 101 -08 1.00 1.00 1.00 1.00 4.00 24,538.40 2,932.47 27,470.87 18 459 - 101 -09 1.00 1.00 1.00 1.00 4.00 24,538.40 2,932.47 27,470.87 19 459- 101 -10 1.00 1.00 1.00 1.00 4.00 24,538.40 2,932.47 27,470,87 20 459 - 101 -12 1.00 1.00 1.00 1.00 4.00 24,538.40 2,932.47 27,470.87 21 459 - 101 -13 0.00 0.00 0.00 0.50 0.50 3,067.30 366.56 3,433.86 22 459 - 101 -14 0.00 0.00 0.00 0.33 0.33 2,044.87 244.37 2,289.24 23 459 - 102 -01 0.00 0.00 0.00 0.33 0.33 2,044.87 244.37 2,289.24 24 459 -102 -04 0.00 0.00 0.00 0.50 0.50 3,067.30 366.56 3,433.86 25 459- 102 -05 0.00 1.00 0.00 0.67 1.67 10,224.33 1,221.86 11,446.20 26 459- 102 -06 1.00 1.00 1.00 1.00 4.00 24,538.40 2,932.47 27,470.87 27 459- 102 -07 1.00 1.00 1.00 1.00 4.00 24,538.40 2,932.47 27,470.87 28 459 - 102 -08 1.00 1.00 1.00 1.00 4.00 24,538.40 2,932.47 27,470.87 29 459 - 102 -09 1.00 1.00 1.00 0.75 3.75 23,004.75 2,749.19 25,753.94 30 459 - 102 -10 1.00 1.00 1.00 1.00 4.00 24,538.40 2,932.47 27,470.87 MuniFinancial Exhibit E - Page 2 City of Newport Beach Assessment Number Assessor's Parcel Number Electrical EBU Phone EBU Cable EBU Aesthetic EBU Total EBU Direct Formation Assessment ITCC Assessment Preliminarily Approved 31 459- 102 -11 1.00 1.00 1.00 1.00 4.00 24,538.40 2,932.47 27,470.87 32 459 - 102 -12 1.00 1100 1.00 1.00 4.00 24,538.40 2,932.47 27,470,87 33 459 - 102 -13 1.00 1.00 1.00 1.00 4.00 24,538.40 2,932.47 27,470.87 34 459 - 102 -14 1.00 1.00 1.00 1.00 4.00 24,538.40 2,932.47 27,470.87 35 459 - 102 -15 0.00 1.00 0.00 0.50 1.50 9,201.90 1,099.68 10,301.58 36 938 -01 -418 0.00 0.00 0.00 0.50 0.50 3,067.30 366.56 3,433.86 37 938 - 01-430 0.00 0.00 0.00 0.50 0.50 3,067.30 366.56 3,433.86 TOTAL 37 29.00 31.00 29.00 32.58 121.58 745,865.00 89,135.00 $835,000.00 MuniFinancial Exhibit E - Page 3 City of Newport Beach E S ! PAM f �asm f f@tfln i tW ! (OE1M ! pApflm t NlH1M 1 xtxW e cant v ! evnsu v ®alter a ®after a axxw ll ®MfID f0 ti RON n la ai t a tl11pTN a .anmm a aanma b aSleDp a aalmn Igitaa D abnw! D 01 ®M IYIO3At A On�tft D aan lfo ® M uniFinancial PROPOSED BOUNDARIES OF UNDERGROUND UTILITY ASSESSMENT DISTRICT NO. 94 v sr a fm aoDe: r.av CITY OF NEWPORT BEACH COUNTY OF ORANGE STATE OF CAUFORNIA I I MW AVP K lwl tim xnrorrvaansarcaelxtw _ wrar i xv�rclxlirrnvrnaYenxl vAV oaxoxlnaem .a.wlx, otw�NOlnnnrlmmxtlDOxrtcrxv. x,lmo Nerawredmmuxlrarlwxne mAw IF WYT� WA111PIOTIDmT1lGIY WwLiCiN@AYYm OFYPn1T11160NlAtPlDgl16®R I®DwTln MYO aal.mlRx3111101.'!1 CFfUc 11YOFIHTOIfIAOI Atll xlabbMmATlI nx101FlIfFTE1IYOFIEMVmYF/PI a!l�MYK .xQI.OMIWR OP_�OaACR�.xID01f OxtflM •+xmertvamisAxlrx�dl Ix A�o�aexl xnenmrEVTnelDUnrxDmvec r�mAmaraivoxew 4EIPlmilneneell �nlee iva euixeelrn¢ 111 bLY. W TNT• C6xA&0 DIX mmartr cwnr mxrcnrwexe T11fi41Kf nnnNNBlmDxG nmxlmwars�DmmwTae ovaNUl alxl.NEDnNlI11YAMIDMBxDelA! xgkn w 11ExWYECgM1Y11666W W IMfOIY'R1MtlE WImO! LDim. weelxxlrneroTM WACFIK WAnee Ww1YA�Jxftdx NxbsfcxtY, Neaa�al�nerovamansvremmeaae wvAeenubeoolaa vAxx. LWFfD A88I1T1SiA1CTeGVIDARY PIAC6lxE TTTi^ 3l Qi A99�KT L • • ENGINEER'S REPORT UNDERGROUND UTILITY ASSESSMENT DISTRICT NO. 94 CITY OF NEWPORT BEACH EXHIBIT F - ASSESSMENT DIAGRAM A Diagram showing the Underground Utility Assessment District No. 94, the boundaries, and the dimensions of the subdivisions of land within the Underground Utility Assessment District No. 94, as they existed at the time of the passage of the Resolution of Intention, is filed with and made a part of this Report and part of the assessment. Each of the subdivisions of land, parcels, or lots will be given a separate number on the Assessment Diagram (to follow after the resolution of intention), which corresponds with the assessment number shown on the Assessment Roll (Exhibit C). The Assessment Diagram in a reduced -scale format follows. MuniFinancial Exhibit F - Page 1 City of Newport Beach • • ENGINEER'S REPORT UNDERGROUND UTILITY ASSESSMENT DISTRICT NO. 94 CITY OF NEWPORT BEACH EXHIBIT G — MAXIMUM ANNUAL ADMINISTRATION COST ADD -ON In addition to, or as a part of the assessment lien levied against each parcel of land within the District, each parcel of land shall also be subject to an annual administrative cost assessment to pay costs incurred by the City, and not otherwise reimbursed, which result from the administration and collection of assessments, the administration and registration of any bonds, and the administration of reserve or other related funds. The maximum annual total amount of such annual administrative cost assessment for each parcel within the District will not exceed $150.00. Each parcel's share of the administrative cost assessment shall be computed based on the parcel's proportionate share of its annual assessment (not to exceed $150.00). MuniFinancial Exhibit G - Page I City of Newport Beach f • ENGINEER'S REPORT UNDERGROUND UTILITY ASSESSMENT DISTRICT NO. 94 CITY OF NEWPORT BEACH EXHIBIT H — INDIVIDUAL SERVICE CONNECTIONS The improvements will be designed and constructed by the Southern California Edison Company (electric), AT &T (telephone) and Tune Warner (cable TV). The City of Newport Beach will inspect the work for conformance to applicable City standards and specifications. Once completed, the underground electric, telephone and cable TV facilities will become the property and responsibility of Southern California Edison, AT &T and Time Warner respectively. Each owner of property located within the District will be responsible for arranging for, and paying for, work on his or her property necessary to connect facilities constructed by the public utilities in the public streets or easements to the points of connection on private property. Conversion of individual service connections on private property is not included in the work done by the District. The estimated time for completion of the undergrounding of the utilities is six (6) months after the sale of bonds. Property owners will be required to provide necessary underground connections within 180 calendar days of the completion of the underground facilities. Failure to convert individual service connections on private property may result in a recommendation to the City Council that the public utility companies be directed to discontinue service to that property. Overhead facilities cannot be removed until all overhead service has been discontinued. MuniFinancial Exhibit H - Page 1 City of Newport Beach 0 ENGINEER'S REPORT UNDERGROUND UTILITY ASSESSMENT DISTRICT NO. 94 CITY OF NEWPORT BEACH EXHIBIT I — PUBLIC All streets in the boundaries of the district are public streets. There are no other public owned properties within the boundaries of the district. MuniFinancial Exhibit I - Page 1 City of Newport Beach ENGINEER'S REPORT UNDERGROUND UTILITY ASSESSMENT DISTRICT NO. 94 CITY OF NEWPORT BEACH EXHIBIT J CERTIFICATION OF COMPLETION OF ENVIRONMENTAL PROCEEDINGS City of Newport Beach County of Orange State of California The undersigned, under penalty of perjury, certifies as follows: 1. The improvements to be constructed under the proceedings in Assessment District No. 94 are categorically exempt from the provisions of the California Environmental Quality Act (CEQA) under the provisions of Paragraph 15302, Class 2 (d) of "Guidelines For Implementation of the California Environmental Quality Act", as adopted by the Secretary for Resources of the State of California, June 1992. 2. The undergrounding to be done under Assessment District No. 94 is categorically exempt from the requirement for the preparation of environmental documents under the California Environmental Quality Act guidelines because the Secretary for Resources has found that conversion of overhead electric utility distribution system facilities to underground locations where the surface is restored to the condition prior to the undergrounding, does not have a significant effect on the environment, and are declared to be categorically exempt. 3. A Notice of Exemption has been filed in the office of the County Clerk of Orange County, California. 4. All environmental evaluation proceedings necessary for the formation of Assessment District No. 94 have been completed to my satisfaction, and no further environmental proceedings are necessary. EXECUTED this day of 2007, at Newport Beach, California. Stephen G. Badum, P.E. Director of Public Works MunlFinancial Exhibit J - Page 1 City of Newport Beach 0 0 ENGINEER'S REPORT UNDERGROUND UTILITY ASSESSMENT DISTRICT NO. 94 CITY OF NEWPORT BEACH EXHIBIT K RIGHT -OF -WAY CERTIFICATE CITY OF NEWPORT BEACH COUNTY OF ORANGE STATE OF CALIFORNIA The undersigned hereby certifies under penalty of perjury that the following is true and correct. At all times herein mentioned, the undersigned was, and now is, the duly appointed Superintendent of Streets of the City of Newport Beach, California. The city of Newport Beach has instituted proceedings under the provisions of the "Municipal Improvement Act of 1913 ", being Division 12 of Streets and Highways Code of the State of California, for the construction of certain public improvements in a special assessment district known and designated as Underground Utility Assessment District No. 94 (hereinafter referred to as the "Assessment District "). All easements, rights -of -way or land necessary for the accomplishment of the works of improvement for the above - referenced Assessment District have been obtained and are in the possession of the City. All works of improvement as proposed to be constructed within said Assessment District will be constructed within public rights -of -way, land or easements owned by said City at the time of the construction of the works of improvement. EXECUTED this day of 12007, at Newport Beach, California. Stephen G. Badum, P.E. Superintendent of Streets MuniFinancial Exhibit K - Page 1 City of Newport Beach