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HomeMy WebLinkAboutTC Res 2010-05-19 (5)RESOLUTION NO. 27-2010 RESOLUTION PRELIMINARILY DECLARING INTENTION TO FORM THE DEL MAR VALLEY 2010 SUPPLEMENTAL UTILITY UNDERGROUNDING ASSESSMENT DISTRICT, AS A COMPONENT OF A PROPOSED UTILITY UNDERGROUNDING PROGRAM FOR A PORTION OF DEL MAR VALLEY, AND APPOINTING BOND COUNSEL, DISTRICT ENGINEER AND UNDERWRITER Town of Tiburon Del Mar Valley 2010 Supplemental Utility Undergrounding Assessment District WHEREAS, by resolution adopted on May 18, 2005, this Town Council (this "Town Council") of the Town of Tiburon (the "Town") formed the Del Mar Valley Utility Undergrounding Assessment District (the "Original District"), approved the Final Engineer's Report respecting the Original District (the "Final Report"), and levied assessments (the "Original Assessments") upon the designated parcels within the Original District in accordance with the Final Report; and WHEREAS, the purpose of the Original District was to provide financing for a proposed project (the "Project") consisting of the conversion to underground locations of the existing overhead utility facilities within the Original District and related appurtenant work; and WHEREAS, by litigation initiated on June 16, 2005, the validity of the assessments levied for the Original District (the "Original Assessments") was challenged, which litigation has now been settled in March, 2010, by a court-approved litigation settlement agreement (the "Settlement Agreement"), which led to entry of a Judgment by Stipulation on March 23, 2010, thereby concluding the litigation respecting the Original District and the Original Assessments; and WHEREAS, following formation of the Original District and the completion of plans, specification and bid documents for the Project, the Town solicited sealed bids for the Project; and, on March 6, 2006, the scheduled bid opening date, the Town received construction bids and determined that the best bid received was for an amount significantly higher than estimated in the Final Report, on the basis of which the amounts of the Original Assessments were calculated, with the result that levy of supplemental assessments became necessary in order to fully fund the Project; and WHEREAS, by resolution adopted on May 8, 2006, this Town Council formed the Del Mar Valley Utility Undergrounding Supplemental Assessment District (the "Original Supplemental District"), approved the Engineer's Report respecting the Original Supplemental District (the "Supplemental Report"), and levied supplemental assessments (the "Original Supplemental Assessments") upon the designated parcels in accordance with the Supplemental Report; and Page 1 of 4 WHEREAS, on May 18, 2006, the Town initiated a validation action in the Marin County Superior Court (the "Superior Court") for the purpose of obtaining judicial validation of the Original Supplemental Assessments pursuant to the provisions of Sections 860 through 870.5 of the California Code of Civil Procedure (the "Validation Proceedings"); and WHEREAS, following a favorable ruling by the Superior Court in the Validation Proceedings, upholding the validity of the Original Supplemental Assessments, the First District Court of Appeals, by its opinion issued on December 31, 2009 (the "DCA Decision"), reversed the Superior Court and ruled the Original Supplemental Assessments invalid; and WHEREAS, rather than pursuing an appeal of the DCA Decision to the California State Supreme Court, at substantial additional expense to the Town and entailing further substantial delay in the implementation of the Reduced Project (as described in subparagraph (a) immediately below), this Town Council preliminarily intends to pursue implementation of an alternative program consisting of three components (the "Proposed Utility Undergrounding Program"), as follows: (a) abandonment of the Original Supplemental District; (b) modification of the Original District, in conformity with the Settlement Agreement, by ordering certain changes of proceedings respecting the Original District to (i) revise the boundary of the Original District to exclude those parcels listed in Exhibit B of the Settlement Agreement and identified therein as the "Deleted Parcels" (thereby creating the "Reformed Original District"), (ii) reduce the scope of the Project and the related estimated Project cost to conform to the reduced area of the Reformed Original District (the Project, as reduced in scope, being referred to hereafter in this resolution as the "Reduced Project"), (iii) reduce to zero the amount of the Original Assessments which were levied on the Deleted Parcels, and (iv) refund to the owners of the Deleted Parcels the amounts paid on account of the Original Assessments, with interest to be calculated in accordance with the Settlement Agreement; and (c) formation of a new supplemental district, to be known as the "2010 Supplemental Del Mar Valley Utility Undergrounding Assessment District" (the "New Supplemental District"), with boundaries conforming to the Reformed Original District and with the amount of the proposed new supplemental assessments (the "New Supplemental Assessments") being calculated to supplement the moneys which will remain available for the Reduced Project following the refunds described in subparagraph (a) above to the owners of the Deleted Parcels to fully fund the Reduced Project, and to pay the incidental expenses relating to the New Supplemental District and the financing costs of the subordinate lien limited obligation improvement bonds (the "New Bonds") to be issued and sold on the security of the New Supplemental Assessments which remain unpaid following a cash payment period during which owners of the parcels upon which a New Supplemental Assessment is levied may prepay, without interest, and discharge the lien of the New Supplemental Assessment prior to issuance of the New Bonds; and Page 2 of 4 WHEREAS, with respect to the third component described in the foregoing subparagraph (c), this Town Council wishes by this resolution to (a) preliminarily declare its intention to form the New Supplemental District and to provide for the issuance and sale of the New Bonds and (b) to appoint Bond Counsel, District Engineer and Underwriter for the Proposed Utility Undergrounding Program, with particular emphasis on the New Supplemental District and the New Bonds; and WHEREAS, the Town adopted a policy to govern the formation of utility undergrounding districts on April 19, 2006 ("Undergrounding Policy"). This policy establishes a procedure for undergrounding proponents to petition the Town to begin the formation process and for the Town to (a) retain the appropriate consultants and (b) provide affected district residents with ample information and opportunities to be heard. In adopting this policy, the Town Council contemplated an entirely new undergrounding project promoted by one or more neighborhood proponents, where non-proponents would be expected to know little or nothing about the project or the assessment district process. The Town Council finds that the Undergrounding Policy should not apply to the proposed New Supplemental District, because of the unique history of the Original District and the Original Supplemental District and because the Town itself is initiating the process in response to that history. NOW, THEREFORE, THE TOWN COUNCIL OF THE TOWN OF TIBURON HEREBY FINDS, DETERMINES AND RESOLVES as follows: 1. The foregoing recitals are true and correct, and this Town Council hereby expressly so finds and determines. 2. This Town Council hereby further finds and determines that it is in the best interest of the Town, its inhabitants and the property owners within the Reformed Original District, to proceed as diligently as possible with the Proposed Utility Undergrounding Program, thereby providing the highest possible chance of implementing the Reduced Project at the least cost and expense to the affected property owners and the Town, in a manner which implements the Settlement Agreement, is best achieved by seeking to implement the Proposed Utility Undergrounding Program, as described above in this resolution. 3. This Town Council hereby determines that the New Supplemental District shall be exempt from the Undergrounding Policy. 4. This Town Council hereby preliminarily declares its intention to form the New Supplemental District and to provide for the issuance and sale of the New Bonds, as part of implementation of the Proposed Utility Undergrounding Program; provided that this resolution shall not constitute the more formal "Resolution of Intention" for the proposed New Supplemental District, which this Town Council presently expects to consider at its regular meeting on June 2, 2010, and which shall include those matters required by Section 10200 of the California Streets and Highways Code. Page 3 of 4 5. This Town Council hereby appoints the following firms to provide the services indicated with respect to the Proposed Utility Undergrounding Program in general and with respect to the New Supplemental District and the New Bonds in particular: (a) Bond Counsel - Meyers, Nave, Riback, Silver & Wilson, a Professional Law Corporation; (b) District Engineer - NBS; and (c) Underwriter - Wulff, Hansen & Co. 6. This resolution shall take effect immediately upon adoption by this Town Council. PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Tiburon, State of California, held this 19th day of May, 2010, by the following vote: AYES: COUNCILMEMBERS: Collins, Fraser, Fredericks, O'Donnell, Slavitz NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None ..z RICHARD COLLINS, MAYOR TOWN OF TIBURON ATTEST: fi4wl- ~ - - DIANE CRANE IACO I, TOWN CLERK Page 4 of 4