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HomeMy WebLinkAbout2009-56 - Assessment District 103RESOLUTION NO. 2009-56 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH OVERRULING PROTESTS, APPROVING FINAL ENGINEER'S REPORT, LEVYING ASSESSMENTS WITHOUT MODIFICATION, APPROVING AND ORDERING THE WORK AND IMPROVEMENTS FOR THE UTILITY UNDERGROUNDING PROJECT, AND AUTHORIZING AND DIRECTING RELATED ACTIONS WITH RESPECT TO ASSESSMENT DISTRICT NO. 103 (G SUE Balboa Blvd/Channel Rd/Ocean Blvd) WHEREAS, in response to petitions submitted by the owners of various parcel of land with this proposed "Assessment District No. 103 (G St/E Balboa Blvd/Channel Rd/Ocean Blvd)" (the "Assessment District "), which petitions have been accepted by prior action of this City Council (this "City Council "), the following further actions have been taken by adoption of the following resolutions by this City Council on June 9, 2009, in furtherance of considering formation of the Assessment District and implementing the proposed project (the "Project ") of undergrounding existing overhead utility facilities within or adjacent to the boundary of the Assessment District: a. Resolution No. 2009 -35 — approving and adopting a boundary map for the Assessment District (the "Boundary Map ") and directing the recordation of the Boundary Map in the official records of the Orange County Recorder; and b. Resolution No. 2009 -36 (the "Resolution of Intention ") — among other things (1) declaring the intention of this City Council to establish the Assessment District and implement the Project; (2) directing Hams & Associates, as the designated assessment engineer (the "Assessment Engineer') for the Assessment District, to prepare and submit to the City Clerk the engineer's report required by law for consideration by this City Council; (3) declaring the intention of the City to issue limited obligation improvement bonds (the "Bonds ") to finance a portion of the cost and expense of the Project; and (4) declaring its intention to designate the area within the Assessment District as an underground utilities district pursuant to Chapter 15.32 of the Code of Ordinances of the City (the "Ordinance Code "); and WHEREAS, as directed by the Resolution of Intention, the Assessment Engineer prepared and submitted of its engineer's report, entitled "Preliminary Engineer's Report," dated June 9, 2009 (the "Preliminary Engineer's Report"), and this City Council on June 9, 2009, adopted its Resolution No. 2009 -37 (1) preliminarily approving the Preliminary Engineer's Report and scheduling a public hearing for July 28, 2009, to consider the report and to hear protests and expressions of support for the Assessment District and (2) directing the City Clerk to provide for mailed notice of the hearing and assessment ballots to the affected property owners in accordance with Section 4 of Article XMD of the California Constitution and Section 53753 of the California Government Code; and WHEREAS, notice of the public hearing on July 28, 2009, was given to property owners by mail, accompanied by the property owner assessment ballots, as required by law, as evidenced by a certificate of mailing which is on file with the City Clerk; and WHEREAS, following the preliminary approval of the Preliminary Engineer's Report, the Assessment Engineer discovered that an error had been made in calculating the proposed assessment respecting the parcel identified as Assessment No. 310, resulting in a proposed assessment which is $24,248 less than what it would have been had the calculation been performed correctly, and resulting in proposed assessments on all of the other parcels in the Assessment District which are higher by the same aggregate amount of $24,248 than they would have been; and WHEREAS, the Assessment Engineer has prepared and submitted for consideration at the public hearing an amended engineer's report, entitled "Final Engineer's Report," dated July 28, 2009 (the "Final Engineer's Report"), in which the proposed assessments on all parcels in the Assessment District other than Assessment No. 310 have been reduced to the lower amount which they would have been had the calculation respecting Assessment No. 310 been performed correctly; and WHEREAS, having reduced the total amount to be assessed by $24,248, the Assessment Engineer has made a corresponding change in two contingency line items and in the line items pertaining to "Financing Costs" for the purpose of maintaining a total amount to be assessed, as set forth in the cost estimate, which is equal to the total amount proposed to be assessed; and WHEREAS, the statement of "Methodology," set forth at pages 20 through 22 in the Final Engineer's Report, has been supplemented with a paragraph reciting that consideration was given to reducing the amount of area assigned to parcels based upon the building setbacks applicable to each parcel and that, based upon factors enumerated in the paragraph, the Assessment Engineer concluded that such reductions should not be made; and WHEREAS, the public hearing was conducted as scheduled on July 28, 2009, 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, 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 City Clerk opened, declared and tallied the assessment ballots which were received prior to the close of the hearing, and the City Clerk has reported to this City Council that the assessment ballots received in favor of proceeding with the Assessment District exceed the assessment ballots received in opposition to proceeding, as determined in accordance with Section 53753 of the California Government Code, this City Council hereby finds and determines that there is not a majority protest respecting the Assessment District; and WHEREAS, based upon the recommendations of the Assessment Engineer, as set forth in the Final Engineer's Report, and all of the testimony heard and written communications received from interested persons, this City Council hereby finds and determines that (1) the general benefits have been appropriately identified 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 benefit has been assessed against the respective parcels of land which are assessed and (3) the proposed assessment of the portion of the total estimated cost and expense of the Project which represents local and special benefit upon the respective parcels of land in the Assessment 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 WHEREAS, without limiting the generality of the foregoing, this City Council hereby finds and determines that, under the facts and circumstances pertaining to the Assessment District, the general benefits imparted by the Project, as recommended by the Assessment Engineer in the Final Engineer's Report, are relatively incidental, and do not exceed and are fully offset by the combined contributions from Southern California Edison and AT &T, with the result that only that portion of the estimated cost of the Project which represents local and special benefits has been assessed against the parcels of land which have been determined to be specially benefitted; NOW, THEREFORE, it is hereby Determined, Ordered and Resolved as follows: SECTION 1. The foregoing recitals are all true and correct. SECTION 2. This City 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. SECTION 3. The Final Engineer's Report, dated July 28, 2009, is hereby approved without modification. SECTION 4. The proposed work and improvements which comprise the Project, as described in the Final Engineer's Report, are hereby ordered. SECTION 5. The individual 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 "). SECTION 6. This City Council hereby expressly finds and determines that the Project is categorically exempt from the provisions of the California Environmental Quality Act ( "CEQA "). In the event that a Notice of Exemption has not previously been prepared and filed, this City Council hereby directs the preparation of a Notice of Exemption, indicating that the Project is categorically exempt from the provisions of CEQA, and further directs that said Notice of Exemption be filed with the Orange County Clerk for posting in accordance with CEQA. SECTION 7. This City Council hereby finds and determines that the information set forth at page 17 of the Final Engineer's Report demonstrates compliance with the requirements of Part 7.5 of Division 4 of the Code, thereby dispensing with any further proceedings pursuant to said Division 4, and this determination and action is final and conclusive as to all persons in accordance with Section 3012 of the Code. SECTION 8. A Notice of Assessment shall be prepared and recorded by the City Clerk in the official records of the Orange 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 City Clerk by publication and by mail in the form and manner required by Section 10404 of the Code. The notice of recordation of assessment given by mail shall also prescribe the deadline for submission by or on behalf of any property owner of a cash payment to prepay, either in whole or in part, the assessment levied upon the property of such owner, pursuant to Sections 10403 and 10404 of the Code. SECTION 9. Pursuant to Section 10603 of the Code, the Superintendent of Streets is hereby designated to collect and receive the cash payments from property owners on account of the assessments levied, and the Superintendent of Streets shall, upon the expiration of the prescribed 30 -day cash payment period, submit to the City Clerk a Certificate re Paid and Unpaid Assessments. SECTION 10. Following receipt of the Certificate re Paid and Unpaid Assessments, this City Council intends to proceed with authorization of the issuance and sale of the Bonds, pursuant to the Improvement Bond Act of 1915 and upon the security of and in a principal amount equal to the unpaid 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 twenty -four (24) years from the second day of September next succeeding twelve (12) months from their date. SECTION 11. The area within the Assessment District is hereby designated an underground utilities district pursuant to and in accordance with Chapter 15.32 of the Ordinance Code, and in accordance with Section 15.32.040 of the Ordinance Code, this City Council hereby establishes the date which is one year from the date on which the Project facilities are released by Southern California Edison and AT &T, respectively, as a reasonable date by which all affected property owners must be ready to receive underground service. SECTION 12. This resolution shall take effect immediately upon its adoption. PASSED, APPROVED, and ADOPTED this ATTEST: &4M Q r City Clerk 1262833.1 STATE OF CALIFORNIA } COUNTY OF ORANGE } ss. CITY OF NEWPORT BEACH } I, Leilani I. Brown, City Clerk of the City of Newport Beach, California, do hereby certify that the whole number of members of the City Council is seven; that the foregoing resolution, being Resolution No. 2009 -56 was duly and regularly introduced before and adopted by the City Council of said City at a regular meeting of said Council, duly and regularly held on the 28th day of July, 2009, and that the same was so passed and adopted by the following vote, to wit: Ayes: Henn, Rosansky, Curry, Webb, Gardner, Daigle, Mayor Selich Noes: None Absent: None Abstain: None IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 29th day of July, 2009. City Clerk Newport Beach, California (Seal)