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HomeMy WebLinkAboutTC Res 2010-07-21 (3)RESOLUTION NO. 43-2010 A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF TIBURON OVERRULING PROTESTS, APPROVING FINAL ENGINEER'S REPORT, LEVYING SUPPLEMENTAL ASSESSMENTS WITHOUT MODIFICATION, APPROVING AND ORDERING THE WORK AND IMPROVEMENTS FOR THE UTILITY UNDERGROUNDING PROJECT, AND AUTHORIZING AND DIRECTING RELATED ACTIONS WITH RESPECT TO THE DEL MAR VALLEY 2010 SUPPLEMENTAL UTILITY UNDERGROUNDING ASSESSMENT DISTRICT WHEREAS, by resolution adopted on May 19, 2010 (Resolution No. 26-2010), this Town Council (this "Town Council") of the Town of Tiburon (the "Town") ordered a change of proceedings with respect to its previously-established Del Mar Valley Utility Undergrounding Assessment District (the "Original District"), established by resolution of this Town Council adopted on May 18, 2005, and the changes which were so ordered included both (a) deletion of certain parcels from the Original District and (b) a reduction in the scope of the proposed utility undergrounding project (the "Project") to provide for the undergrounding of those existing overhead facilities and removal of those existing utility poles which are situated within the reduced area of the Original District (the "Reformed Original District"); and WHEREAS, by its further resolution adopted on May 19, 2010, as Resolution No. 27-2010, and entitled "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," this Town Council preliminarily declared its intention to form said Del Mar Valley 2010 Supplemental Utility Undergrounding Assessment District (the "Supplemental District") to be coterminous with the Reformed Original District, and appointed professional service providers to assist this Town Council and the Town staff in forming the Supplemental District and completing the related bond financing; and WHEREAS, thereafter, on June 2, 2010, this Town Council adopted its Resolution No. 30-2010 (the "Resolution of Intention"), by which this Town Council, among other things, formally declared its intention to establish the Supplemental District to supplement the previous but insufficient funding for the Project generated by the Original District, approved and directed the recording of a boundary map for the Supplemental District, and directed NBS, as the appointed District Engineer for the Supplemental District, to prepare and submit to the Town Clerk the written engineer's report containing the matters prescribed by Section 10204 of the California Streets and Highways Code, as supplemented by Section 4 of Article XIIID of the California Constitution and Section 53753 of the California Government Code; and WHEREAS, as directed by the Resolution of Intention, the District Engineer prepared and submitted to the Town Clerk its engineer's report, entitled "Preliminary Engineer's Report," dated May, 2010 (the "Preliminary Engineer's Report"), and this Town Council on June 2, 2010, adopted its Resolution No. 31-2010 (1) preliminarily approving the Preliminary Engineer's Report and scheduling a public hearing for July 21, 2010, to consider the report and Resolution No. 43-2010 Adopted July 21, 2010 Page 1 of 5 to allow for any interested person to appear and comment on any aspect of the Supplemental District and (2) directing the Town Clerk to provide for mailed notice of the hearing and supplemental assessment ballots (the "Official Ballots") to the property owners of parcels upon which supplemental assessments (the "Supplemental Assessments") are proposed to be levied, all in accordance with Section 4 of Article XIIID of the California Constitution and Section 53753 of the California Government Code; and WHEREAS, notice of the July 21 public hearing, accompanied by the applicable Official Ballot, was given by mail to those property owners of parcels upon which supplemental assessments are proposed to be levied (the "Supplemental Assessment Parcels"), as required by law, as evidenced by a certificate of mailing which is on file with the Town Clerk; and WHEREAS, in addition to directing the mailing of notice of hearing and Official Ballots to the owners of the Supplemental Assessment Parcels, the Resolution of Intention further directed the Town Clerk, in coordination with Meyers, Nave, Riback, Silver & Wilson, serving as bond counsel to the Town for the Supplemental District ("Bond Counsel") and the Town Attorney, to cause the preparation and mailing of a notice of hearing and advisory assessment ballots (the "Advisory Ballots") to the owners of the nine (9) parcels (the "No Supplemental Assessment Parcels") situated within the Supplemental District but upon which no Supplemental Assessment is proposed for the reason that the Town is contributing the amount which represents the portion of cost and expense allocable to such parcels on account of the special benefit conferred on such parcels by the Project, it being the wish of the Town Council to provide an opportunity for such owners to complete and submit an Advisory Ballot with respect to the parcel they own, even though by law such Advisory Ballots cannot be considered in determining whether a "majority protest" is established with respect to the proposed Supplemental District for the reason that there is no "proposed assessment" being proposed for the No Supplemental Assessment Parcels; and WHEREAS, a certificate of mailing has also been filed with the Town Clerk, evidencing compliance with the directive to prepare and mail the notice of hearing and Advisory Ballots to the owners of the nine No Supplemental Assessment Parcels; and WHEREAS, the District Engineer has prepared and submitted for consideration at the public hearing a final engineer's report, entitled "Final Engineer's Report," dated July, 2010 (the "Final Engineer's Report"), which includes only minor, non-substantive changes from the Preliminary Engineer's Report; and WHEREAS, the public hearing was conducted as scheduled on July 21, 2010, and having provided opportunity for any interested person present to be heard, and the Mayor having provided one last opportunity for any property owner present to either (1) submit an assessment ballot or (2) change an assessment ballot previously submitted, including both Official Ballots and Advisory Ballots, and upon seeing that there were no further actions to be taken with respect to either submission or changing of assessment ballots, the hearing was closed; and WHEREAS, following the close of the public hearing, the Town Clerk opened all of the assessment ballots which were received prior to the close of the hearing, including Resolution No. 43-2010 Adopted July 21, 2010 Page 2 of 5 both Official Ballots and Advisory Ballots, separately tallied the Official Ballots received and the Advisory Ballots received, and reported to this Town Council that the Official Ballots received in favor of proceeding with the Supplemental District exceed the Official Ballots received in opposition to proceeding, as determined in accordance with Section 53753 of the California Government Code; and WHEREAS, having established that there is not a majority protest which would preclude this Town Council from proceeding to establish the Supplemental District, the Town Clerk then proceeded to report to this Town Council the results of the tally of the Advisory Ballots received; and WHEREAS, based upon the recommendations of the District Engineer, as set forth in the Final Engineer's Report, and all of the testimony heard and written communications received from interested persons, and having considered the results of the separate tallies of both the Official Ballots and the Advisory Ballots, this Town Council hereby finds and determines that (1) the general benefits conferred by the work and improvements which comprise the Project have been appropriately identified, quantified and separated from the special benefits, as set forth in the Final Engineer's Report, (2) only that portion of the estimated cost of the Project which represents local and special benefits (net of the Town's contribution on account of the nine parcels and ten additional parcels owned by the school district) has been assessed against the respective parcels of land which are assessed, (3) the proposed assessment of the portion of the estimated cost and expense of the Project which represents local and special benefit upon the respective parcels of land in the Supplemental District, as set forth in the Final. Engineer's Report, represents a fair and equitable apportionment of such estimated cost and expense in proportion to the estimated benefits to be received by each of the parcels, respectively from the improvements which comprise the Project and (4) the amount of the Supplemental Assessment proposed for each of the parcels being assessed does not exceed the special benefit conferred on each such parcel by the Project improvements; and WHEREAS, without limiting the generality of the foregoing, this Town Council hereby finds and determines that, under the facts and circumstances pertaining to the Supplemental District, this Town Council concurs in the conclusion of the District Engineer, as set forth in Section 5.2 of the Final Engineer's Report, that all of the benefits conferred are direct and local in nature, and there are no general benefits conferred by the work and improvements of the Project; and NOW, THEREFORE, THE TOWN COUNCIL OF THE TOWN OF TIBURON HEREBY FINDS, DETERMINES, DECLARES AND RESOLVES as follows: 1. The foregoing recitals are all true and correct. 2. This Town Council hereby finds and determines that there was not a majority protest within the meaning of Section 53753 of the Government Code, and hereby overrules all protests, whether written or oral, submitted prior to or at the public hearing. 3. without modification. The Final Engineer's Report, dated July, 2010, is hereby approved Resolution No. 43-2010 Adopted July 21, 2010 Page 3 of 5 4. The proposed work and improvements which comprise the Project, as described in the Final Engineer's Report, are hereby ordered. 5. The individual Supplemental Assessments, in the amounts set forth in the Final Engineer's Report, are hereby confirmed and levied, and this action is final as to all persons in accordance with Section 10312 of the Streets and Highways Code (the "Code"). 6. A Notice of Supplemental Assessment shall be prepared and recorded by the Town Clerk in the official records of the Marin County Recorder, together with an assessment diagram in the form set forth in the Final Engineer's Report. Notice of recordation of assessment shall be given by the Town Clerk by publication as prescribed by Section 10404 of the Code. Notice of recordation of assessment shall be given by the Town Clerk to the owners of those parcels within the Supplemental District upon whose parcels a Supplemental Assessment has been levied by this resolution, such notice to be in the form and given in the manner required by Section 10404 of the Code. The notice of recordation of assessment given by mail shall also prescribe the deadline for submission of a cash prepayment of all or any portion of the Supplemental Assessment by or on behalf of any property owner wishing to do so, pursuant to Sections 10403 and 10404 of the Code. 7. Pursuant to Section 10603 of the Code, the Director of Administrative Services is hereby designated to collect and receive the cash payments from property owners on account of the supplemental assessments levied, and the Director of Administrative Services shall, upon the expiration of the prescribed 30-day cash payment period, submit to the Town Clerk a Certificate re Paid and Unpaid Supplemental Assessments. 8. Following receipt of the Certificate re Paid and Unpaid Supplemental Assessments, this Town Council intends to proceed with authorization of the issuance and sale of limited obligation improvement bonds, pursuant to the Improvement Bond Act of 1915 and upon the security of and in a principal amount equal to the unpaid supplemental assessments, bearing interest at a rate not to exceed twelve percent (12%) per annum, with the last principal installment of the Bonds to mature not to exceed thirty-nine (39) years from the second day of September next succeeding twelve (12) months from their date. 9. This resolution shall take effect immediately upon its adoption. PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Tiburon, State of California, held this 21 st day of July, 2010 by the following vote: AYES: COUNCILMEMBERS: Collins, Fraser, Fredericks, O'Donnell, Slavitz NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None L4dCHARD COLLINS, MAYOR TOWN OF TIBURON Resolution No. 43-2010 Adopted July 21, 2010 Page 4 of 5 ATTEST: DIANE CRANE IACOPI, TOWN CLERK Resolution No. 43-2010 Adopted July 21, 2010 Page 5 of 5