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HomeMy WebLinkAboutTC Res 2010-06-02 (3)TIBURON TOWN COUNCIL RESOLUTION NO. 30-2010 RESOLUTION OF INTENTION TO ESTABLISH THE DEL MAR VALLEY 2010 SUPPLEMENTAL UTILITY UNDERGROUNDING ASSESSMENT DISTRICT (THE "NEW SUPPLEMENTAL DISTRICT") TO SUPPLEMENT THE FUNDING FOR THE PROPOSED PROJECT (THE "REDUCED PROJECT") OF CONVERSION TO UNDERGROUND LOCATIONS OF EXISTING OVERHEAD UTILITY FACILITIES AND APPURTENANT WORK IN THE DEL MAR VALLEY UTILITY UNDERGROUNDING ASSESSMENT DISTRICT, AS REFORMED BY ACTION OF THIS COUNCIL ON MAY 19, 2010 (THE "REFORMED ORIGINAL DISTRICT"); APPROVING BOUNDARY MAP WHICH DESCRIBES THE BOUNDARY OF THE NEW SUPPLEMENTAL DISTRICT WITHIN WHICH NEW SUPPLEMENTAL ASSESSMENTS ARE PROPOSED TO BE LEVIED TO PAY THE PORTION OF THE COSTS AND EXPENSES THEREOF WHICH HAS NOT BEEN FUNDED BY THE REFORMED ORIGINAL DISTRICT; DECLARING THE INTENTION TO PROVIDE FOR THE ISSUANCE OF NEW BONDS TO BE SECURED BY THE NEW SUPPLEMENTAL ASSESSMENTS; AND DECLARING THE INTENTION TO PROVIDE FOR THE REIMBURSEMENT TO THE TOWN OF TIBURON OF CERTAIN MONEYS ADVANCED BY THE TOWN ON ACCOUNT OF IMPLEMENTATION OF THE REDUCED PROJECT AND THE PROPOSED UTILITY UNDERGROUNDING PROGRAM Town of Tiburon Del Mar Valley 2010 Supplemental Utility Undergrounding Assessment District WHEREAS, by proceedings taken by this Town Council (this "Town Council") of the Town of Tiburon (the "Town") pursuant to the Municipal Improvement Act of 1913 (Sections 10000 and following, Streets and Highways Code; hereafter the "1913 Act") and concluded by resolution adopted on May 18, 2005, this Town Council 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 "Property Owner Litigation"), 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 1 Judgment by Stipulation on March 23, 2010, thereby concluding the Property Owner Litigation respecting the Original District and the Original Assessments; and WHEREAS, following the initiation of the litigation respecting the Original Assessments, limited obligation improvement bonds (the "Original Bonds") were issued upon the security of the unpaid Original Assessments excluding those Original Assessments levied on six parcels owned by plaintiffs in the litigation; 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 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 (b) immediately below), this Town Council intends to pursue implementation of an alternative program (the "Proposed Utility Undergrounding Program") consisting of three components, 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 2 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 "Del Mar Valley 2010 Supplemental 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 (b) 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 new 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 WHEREAS, by resolutions adopted by this Town Council on May 19, 2010, the implementation of the first two components of the Proposed Utility Undergrounding Program, as described in subparagraphs (a) and (b) of the foregoing paragraph, has been authorized and requires no further action by this Town Council; and WHEREAS, with respect to the third component described in the foregoing subparagraph (c), this Town Council wishes by this resolution: (a) to declare its intention to form the New Supplemental District; (b) to approve the boundary map for the New Supplemental District (the "New Supplemental District Boundary Map") and provide for the recording thereof in the official records of the Marin County Recorder; (c) to generally describe and declare its intention to proceed with implementation of the Reduced Project; (d) to provide for the issuance and sale of the New Bonds upon the security of unpaid New Supplemental Assessments; and (e) to declare its intention that, in the event that there are funds remaining in the improvement fund following completion of the Reduced Project and payment of all authorized costs and expenses thereof, and before making a determination of "surplus," as provided by Section 10427 of the 1913 Act, the Town will be reimbursed for the 3 moneys it has advanced or may hereafter advance with respect to the implementation of the Proposed Utility Undergrounding Program and any costs and expenses incidental thereto, expressly excluding therefrom (i) the amounts of $605,000 and $35,000 payable under the Settlement Agreement on account of attorneys fees and court costs and (ii) the amount of $220,702.22 to be contributed by the Town to pay the shares of cost which would otherwise be levied as New Supplemental Assessments on those parcels in the New Supplemental District which are owned by (A) the nine litigants whose parcels will remain in the Reformed Original District and (B) the school district; provided that such reimbursement shall be limited to the lesser of fifty percent (50%) of such improvement fund balance or $250,000; NOW THEREFORE, THE TOWN COUNCIL OF THE TOWN OF TIBURON HEREBY FINDS, DETERMINES, DECLARES AND RESOLVES as follows: 1. The foregoing recitals are true and correct, and this Town Council hereby expressly so finds and determines. 2. The public interest and convenience require, and this Town Council hereby reaffirms its intention to order, pursuant to the 1913 Act, the implementation of the Reduced Project within the Reformed Original District and to levy the New Supplemental Assessments against the parcels within the Reformed Original District. 3. The utility undergrounding project to be implemented (the "Reduced Project") is generally described as follows: A. The Reduced Project generally consists of the conversion of existing overhead electrical and communication facilities to underground locations within the area shown on the New Supplemental District Boundary Map, together with appurtenances and appurtenant work thereto, all to serve and specially benefit the properties within the Reduced Original District. B. All rights-of-way and easements required for the Project will be shown upon the plans (the "Project Plans") which will be filed in the office of the Director of Public Works of the Town and incorporated by reference in the Engineer's Report (described below). C. All of the improvement work to be performed will be performed in the locations and to the sizes, dimensions and materials, and to the lines, grades and elevations, as shown and delineated upon the Project Plans, subject to such changes as made be authorized prior to or during the course of construction of the Reduced Project in accordance with the specifications and other contract documents. D. The Project Plans, as incorporated by reference in the Engineer's Report, will be controlling as to the correct and detailed description of the Reduced Project. 4. The boundary of the New Supplemental District, which shall be coterminous with the boundary of the Reformed Original District, is shown on a map on file with 4 the Town Clerk, entitled "Proposed Boundaries of the Del Mar Valley 2010 Supplemental Utility Undergrounding Assessment District, Town of Tiburon, County of Marin, State of California" (the "New Supplemental District Boundary Map"). This Town Council hereby approves the New Supplemental District Boundary Map as describing the extent of the territory included within the New Supplemental District, which shall be known by the above title. This Town Council hereby finds and determines that the New Supplemental District Boundary Map contains the matters and is in the form prescribed by Section 3110 of the Streets and Highways Code and hereby authorizes and directs the Town Clerk to file a copy thereof with the Marin County Recorder (the "County Recorder") for placement in such book of maps as is maintained by the County Recorder for such purposes. Such filing shall be accomplished within 15 days of the date of adoption of this resolution, as specified by Section 3111 of the Streets and Highways Code. 5. The proposed New Supplemental District and the Reduced Project are hereby referred to NBS, designated by prior resolution of this Town Council as the District Engineer for the New Supplemental District, and directs the District Engineer to make and file with the Town Clerk for presentation to this Town Council a written report (the "Engineer's Report") containing the matters prescribed by 10204 of the 1913 Act, as supplemented by Article XIIID of the California Constitution and Section 53753 of the Government Code. 6. Notice is hereby given that limited obligation improvement bonds (the "New Bonds") to represent the unpaid New Supplemental Assessments will be issued in accordance with the "Improvement Bond Act of 1915" (the "1915 Act"), being Division 10 of the Streets and Highways Code, which bonds will be issued in one or more series, each with 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 date, and bearing interest at a rate or rates not to exceed the legal maximum. The provisions of Part 11.1 of the 1915 Act, providing an alternative procedure for the advance payment of assessments and the calling of bonds, will apply. 7. The principal amount of the New Bonds maturing each year will be established so that, as nearly as practicable, the combined annual debt service of the remaining outstanding Original Bonds and the New Bonds will be equal each calendar year over the term of the New Bonds. 8. Pursuant to Section 10603 of the Code, the Director of Administrative Services of the Town is hereby designated as the officer to collect and receive the payments on account of New Supplemental Assessments during the cash collection period. 9. By its resolution authorizing issuance of the Original Bonds, the Town has established and is maintaining an improvement fund for the Reduced Original District (the "Improvement Fund"). By its resolution authorizing issuance of the New Bonds, the Town will provide that any cash prepayments on account of the New Supplemental Assessments and the prescribed portion of the proceeds of sale of the New Bonds will be deposited in the Improvement Fund, from which authorized costs and expenses of the Reduced Project and the proceedings for implementation of the Proposed Utility Undergrounding Program will be paid. 5 This Town Council hereby finds and determines that the Town has, from time to time, advanced and may hereafter advance moneys legally available for such purpose to pay costs and expenses attributable to the Proposed Utility Undergrounding Program and which therefore represent reimbursable incidental costs and expenses of the Proposed Utility Undergrounding Program, the Reformed Original District and the New Supplemental District. These expenses include, without limitation, costs associated with modifying the Original District to comply with the Settlement Agreement and the DCA Decision. In accordance with Section 10210 of the Streets and Highways Code, this Town Council hereby declares that, in the event that there are moneys remaining in the Improvement Fund upon completion of the Reduced Project and payment of all other authorized incidental costs and expenses of the New Supplemental District (the "Improvement Fund Balance"), the Town will be reimbursed for all such advances to the extent possible from such remaining moneys; provided that the Town shall not be reimbursed for (a) the amounts of $605,000 and $35,000 payable under the Settlement Agreement on account of attorneys fees and court costs, respectively, (b) the amount of $220,702.22 to be contributed by the Town to pay the shares of cost which would otherwise be levied as New Supplemental Assessments on those parcels in the New Supplemental District which are owned by (i) the nine litigants whose parcels will remain in the Reformed Original District and (ii) the school district and (c) litigation costs associated with Town of Tiburon et. al. v. Jimmie D. Bonander et. al. and Mostyn v. Town of Tiburon et. al.; provided that the amount of such reimbursement shall be limited to the lesser of fifty percent (50%) of the Improvement Fund Balance or $250,000. In the event that, following reimbursement to the Town of all amounts advanced and not excluded from reimbursement as provided in the foregoing paragraph, there are still moneys remaining in the Improvement Fund, this Town Council shall by resolution declare such remaining amount to be "surplus," within the meaning of Section 10427 of the Streets and Highways Code, and shall direct that such surplus be utilized for one or more of the purposes authorized by law, as set forth in Section 10427, as this Town Council shall determine at the time of adoption of such resolution declaring surplus. 10. Pursuant to Section 8769 of the Streets and Highways Code, this Town Council hereby declares that the Town will not obligate itself to advance available funds from the Town treasury to cure any deficiency that may occur in the bond redemption fund for the New Bonds. 11. This Town Council hereby declares that it proposes to authorize the levy an annual assessment pursuant to subsection (f) of Section 10204 of the Streets and Highways Code, such annual assessment to pay costs incurred by the Town and not otherwise reimbursed which result from the administration and collection of the New Supplemental Assessments and from the administration and registration of the New Bonds and the related bond funds. 12. Pursuant to Section 10110 of the Streets and Highways Code, it is the intention of this Town Council with respect to those Reduced Project improvements to be owned, managed, or controlled by a regulated public utility, to enter into an agreement with each such regulated public utility with respect to those Reduced Project improvements to be owned, controlled or managed by the utility. 6 13. This Town Council hereby declares that it intends to comply with the requirements of the Special Assessment Investigation, Limitation and Majority Protest Act of 1931, being Division 4 of the Street and Highways Code, by proceeding under Part 7.5 of said Division 4. For that purpose, the District Engineer is directed to include in the Engineer's Report the information prescribed by Section 2961 of the Streets and Highways Code. PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Tiburon, State of California, held this 2nd day of June, 2010 by the following vote: AYES: COUNCILMEMBERS: Fraser, Fredericks, O'Donnell, Slavitz NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: Collins LCI ING MAYOR J 4i,AVITz-,A T E TTWN OF; TIB _ ON ATTES DIANE CRANE IACOPI, TOWN CLERK 1428524.3 7