Chapter 14.16

IMPROVEMENT PROCEDURE CODE*

Parts:

• 1 General Provisions

• 2 Public Improvement Procedure

• 3 Acquisition, Opening and Closing Procedures

• 4 Assessment Bonds - General Provisions

• 5 Bond Plan A - Lot Bonds

• 6 Bond Plan B - District Bonds

• 7 Bond Plan C - Ad Valorem Bonds

• 8 Municipal Improvement District Procedure

Part 1

GENERAL PROVISIONS

Sections:

• 14.16.020 Municipal affairs - Procedure applicable - Statutory authority.

  • 14.16.030 City election not to adopt certain debt limitation act.

  • 14.16.040 Territory comprising assessment district.

  • 14.16.050 Public streets, ways, and areas - Council powers.

  • 14.16.060 Resolution of intention - Required to declare proceedings.

  • 14.16.070 Notice or resolution - Time.

  • 14.16.080 Continuance of hearings - Procedure.

  • 14.16.090 New hearing authorized when.

  • 14.16.100 Notice of improvement - Designation and posting.

  • 14.16.110 Publication requirements.

  • 14.16.120 Notice mailing limitation.

  • 14.16.130 Priority of liens.

  • 14.16.140 Purchase of bonds.

• 9 Single Ad Valorem Assessment Procedure

• 10 Assessment Readjustment and Bond Refunding

• 11 Investigation Procedures

• 12 Election of Procedures

• 13 Construction and Maintenance of Sidewalks, Gutters, Pavement and Curbs

• 14 Fees

• 15 Use by City of State Legislation for Special Assessment Proceedings and Validation Proceedings

• 16 Maintenance Districts

• 17 Maintenance and Repair of Sidewalks

*Cross reference— For the Improvement Act of 1911, see Str. and Hwys. Code § 5000 et seq.

• 14.16.150 Purchase and sale of delinquent property.

• 14.16.160 Force account authorized when - Procedures.

• 14.16.170 Revolving fund.

• 14.16.175 Reserve funds and covenants to foreclose.

• 14.16.200 Chapter provisions to supersede when.

14.16.210 Construction of chapter provisions.

• A. "Act," as used in any of the acts referred to in this chapter shall be deemed to be this chapter.

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§ 14.16.010

Where a power is given in and by any of said acts, the said power shall thereby be conferred upon the city.

• B. The public officials referred to in any of said acts are the public officials of the city, and the matters and things therein mentioned with reference to a city shall be deemed to apply to and be the City of San José.

• C. "Applicable" means such provisions or powers of said acts as might be used in connection herewith.

• D. "Ordinance," referred to in any of said acts, shall be deemed to be a "resolution." Where any of said acts require and provide for the adoption of an ordinance, the same shall be deemed to provide for the adoption of a resolution, and the adoption of a resolution shall be deemed to be a full and sufficient compliance therewith.

(Prior code §§ 2600.115, 2600.116, 2600.117, 2600.118.)

applicable - Statutory authority.

The city, having heretofore (by the adoption of Section 2a of Article I of its Charter) elected to take advantage of the provisions of the 1914 amendment to Section 6 of Article XI of the Constitution of the state of California, giving cities home rule as to municipal affairs; and the matters of the character herein referred to being within the classification "municipal affairs," hereby establishes the following as the exclusive procedure applicable thereto:

Pursuant to the provisions of Section 2a of Article I of its Charter, the city hereby elects to have the doing of such public improvements governed by this chapter, and any ordinances amendatory thereof, or supplemental thereto, together with the applicable provisions of its Charter, instead of by the general laws of the state. (Prior code § 2600.106.)

Subject to the provisions of Part 11 of this chapter, the city hereby elects not to adopt the

Special Assessment Investigation, Limitation and Majority Protest Act of 1931 as a part of the procedure provided in this chapter, anything in the statutory sections adopted hereunder by reference to the contrary notwithstanding, and when the procedure hereof is used in the place of general law such act shall not be deemed to qualify, limit or be applicable to the procedure and proceedings herein provided.

(Prior code § 2600.107.)

Anything contained in the Improvement Act of 1911 as adopted by reference in this chapter to the contrary notwithstanding, the territory comprising the district benefitted by any of the work provided for in said act as adopted, and to be assessed to pay the cost and expense thereof, need not be contiguous, and the district may consist of separate and distinct areas or sections. The work performed in one section need not benefit the other section or sections.

(Prior code § 2600.128a.)

All streets, avenues, lanes, alleys, courts, places, public ways, or property, or rights-of-way, or tidelands, or submerged lands owned by the city, now open or dedicated or which may hereafter be opened or dedicated to public use, and any property for the immediate possession and use of which, as rightsof-way required for public use, an order has been obtained in compliance with the provisions of Section 14 of Article I of the Constitution of the state, and all tidelands or submerged lands to which all the right, title and interest of the state shall have been or may hereafter be granted to the city, shall be deemed and held to be open public streets, avenues, lanes, alleys, courts, places, public ways, or property or rights-of-way owned by said city, for the purposes of this chapter, and the city council is hereby empowered to establish and change the grades of said respective ways, properties and rights-of-way

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§ 14.16.130

hereinbefore enumerated, and fix the width thereof, and is hereby invested with jurisdiction to order to be done thereon, either singly or in any combination thereof, any of the work and things mentioned in this chapter, or in the statutory section adopted by reference hereunder, under the proceedings herein described.

(Prior code § 2600.114.)

When any proceeding is taken pursuant to any part of this chapter, the resolution of intention so to do shall so declare. This Part 1 is declared to be supplemental to every other part of this chapter, and its provisions are applicable to any and all proceedings had and taken pursuant to this chapter, and it shall not be necessary to so declare in such resolution.

(Prior code § 2600.108.)

The requirements of any section of any law the procedure of which is adopted under this chapter to the contrary notwithstanding, no notice or resolution other than a resolution of intention shall be required to be given for a longer period than ten days before the time set for said hearing. (Prior code § 2600.120.)

If in any proceedings under this chapter, at the time of any hearing a quorum of the city council is not present, said hearing may, by order of any one member of said council or by announcement of the clerk thereof, if no member is present, be continued to a day and hour to be stated in the order or announcement. Such order or announcement and a statement of the name of the member of the council present, if any, shall be entered in the minutes of the city council and the hearings shall be deemed and held to be regularly continued to the hour so ordered or announced. (Prior code § 2600.109.)

If for any reason, any such hearing is not had at the time fixed therefor and no order or announcement is made, as above provided, continuing the same to another time, the power of the legislative body in the premises shall not thereby be divested, but the legislative body may proceed anew to fix a time and place for such hearing and cause notice thereof to be given by publication by at least one insertion, such publication to be at least five days before the date of the hearing, and thereupon the legislative body shall have power to proceed and act as in the first instance.

(Prior code § 2600.110.)

Any notice of improvement required to be given under any of the acts adopted by reference in this chapter may be designated "notice of public improvement," anything in said acts to the contrary notwithstanding. The council may also determine in the resolution of intention the area within which, or the distance apart, said notices shall be posted, which may be other and different than that provided in any of said acts. (Prior code § 2600.122.)

The requirements of any section of any law the procedure of which is adopted under this chapter to the contrary notwithstanding, no notice, resolution or other paper required herein to be published need be published more than twice. (Prior code § 2600.119.)

The requirement of any section of any law the procedure of which is adopted hereunder to the contrary notwithstanding, it shall not be necessary to give notice of any matter or hearing by mail, or make or file any affidavit in regard thereto. (Prior code § 2600.121.)

The lien of all assessments and bonds levied or issued under any of the provisions to this chapter

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§ 14.16.130

shall be subordinate to all special assessment liens and the liens of bonds previously imposed upon the same property, but shall have priority over all such liens subsequently imposed upon the same property. (Prior code § 2600.112.)

In any proceeding had under any part of this chapter, the city may declare in the resolution of intention that it intends to purchase the bonds to be issued therein. In such case the city shall, upon the issuance of the bonds, pay to said contractor, in case of public improvements, or into court, in case of acquisition proceedings, the principal amount of said bonds. In such case, the city shall succeed to all rights under said assessment and bonds. Such bonds, when issued, shall be made payable to bearer. The city shall have like power to subsequently acquire any bonds issued hereunder or now issued and outstanding for any improvement or acquisition in this city.

(Prior code § 2600.127.)

The city is authorized and empowered to bid on and purchase any property offered for sale for the nonpayment of any improvement assessment levied and assessed under any of the provisions of Parts 1 through 10 of this chapter or of any installment of same or penalties or costs of interest thereon, or any suit brought to foreclose such assessment. Whenever any property shall have been acquired by the city at any such sale, then the said property or any lien on or interest in same thereunder may be released, assigned, sold or otherwise disposed of by the city in the manner heretofore provided or hereafter to be provided by ordinance or resolution or order of the city council thereof; provided, however, that no such release, assignment, sale or other disposition of any such lien or interest or of any such property shall be made unless thee shall be first paid to such city a sum of money equal to and not less than the amount paid therefor, with all

accrued penalties, costs, interest and necessary expenses incurred; provided further, however, that if any such lien or interest or property cannot, as determined by such council, be sold for the amounts or charges computed as herein provided, then the city council may by four-fifths' vote of such body, sell any such lien or interest or property for the best price obtainable according to the judgment of the council.

(Prior code § 2600.125.)

At any time within twenty days after the opening of bids, or, if no bids have been received, at any time within twenty days after the time fixed for the opening of bids, the council shall have the power, by resolution adopted by a four-fifths' vote of all its members, to determine and declare that in its opinion the work in question may be more economically and satisfactorily performed by day labor, or the materials and supplies purchased at a lower price in the open market, and to order that the same be done by force account, in the manner stated in this chapter, without further observance of the provisions hereof with reference to the award of contract or execution of contract or bonds. In such case, the city shall have the same rights as a contractor, and said work and improvements shall be carried out by the city manager. When such work is completed, the city shall become the owner of the assessment made to pay the cost thereof, and of all bonds issued thereon, with like power of enforcement as if held by a contractor. No warrant need be issued in such case, but after the assessment and diagram have been recorded, the superintendent of streets is authorized to collect and receive payment of several amounts due thereon in the manner provided in said act for and in the place of said contractor, and his statement of payments received, when filed, shall constitute and be in lieu of the contractor's return of the warrant and statement of payments received. Such bonds, when issued, shall be made payable to bearer.

(Prior code § 2600.126.)

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§ 14.16.175

In the exercise of any of the powers now or hereafter provided for in this chapter, including the right to take immediate possession in eminent domain proceedings, the city council is authorized and empowered to create, use and reimburse a revolving fund according to the procedure set forth in that certain act of the legislature of the state entitled "An act to authorize and empower legislative bodies of municipal corporations to establish, maintain, use and reimburse revolving funds in connection with or incident to the laying out, construction or improvement of streets or other public works or the acquisition of land, rights-of-way or other property necessary therefor," approved April 30, 1925, as the same was in effect on January 1, 1936. (Prior code § 2600.111.)

In any proceedings conducted by the city council pursuant to the provisions of the Improvement Bond Act of 1915 (Division 10 of the Streets and Highways Code of the state of California) the city, in the discretion of the city council and notwithstanding any other ordinance of the City of San José, may:

• A. Create a special reserve fund to provide available funds from which the city can make payment of the amount of any delinquent assessments levied in the proceedings in which such reserve fund is created, and interest thereon, for transfer into the redemption fund for the bonds issued in the proceedings in which such reserve fund is created, pursuant to and as provided in Part 13 of said Division 10. Payments from such reserve fund shall be deemed an advance to be reimbursed from the proceeds of redemption or sale of the properties with respect to which payment of delinquent assessments and interest thereon was paid from such reserve fund. Any such reserve fund shall be created by including as part of the

assessment the amount estimated to be sufficient for the purpose of making said advances, provided only that the amount shall not exceed fifteen percent of the total assessment levied in the proceedings in which such reserve fund is created unless a greater amount is approved by the affirmative vote of four-fifths of the members of the city council. Interest earned by investment of any such reserve fund, or portions thereof, shall be credited to the redemption fund for the bonds issued in the proceedings in which such reserve fund was created, and used for advance retirement of bonds issued in said proceedings in the manner provided in Part 11 of said Division 10.

Each year at the time assessment payments due from any property are payable, the city shall credit toward the assessments in such district, in the manner provided by Section 10427.1 of the Streets and Highways Code, an amount equal to the original amount of the funds divided by the number of years in which the bonds mature (the latter of which is hereinafter called the "annual fund disbursement"). In recognition of the fact that advances may be made from year to year to cure delinquent assessments in such district, no portion of the annual fund disbursement shall be credited from the reserve fund in any year in excess of the amount which would cause the reserve fund to fall below a minimum amount equal to the original amount of the reserve fund minus the total of annual fund disbursements which would have ordinarily been made to that point.

In the event that an annual fund disbursement toward the assessments was not fully made in any year because to have done so would have caused the reserve fund to

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§ 14.16.175

fall below the minimum amount for that year, the city may thereafter credit any amounts in excess of the minimum amount toward the assessments due in subsequent years.

In the event assessments are paid in cash in advance of their final maturity date, the city is authorized, but not required, to reduce the minimum amount of the reserve fund and increase the annual fund disbursement in the proportion in which the assessments paid in cash bear to the total original assessments.

All sums remaining in the reserve fund in the year in which the last installment of the assessments becomes due and payable shall be credited toward the assessments as set forth below.

Prior to July 31st of the fiscal year next preceding the fiscal year in which the last unpaid assessment installment upon the assessment levied in such proceedings becomes due and payable, the city council shall determine the amount remaining in such reserve fund, if any, after all sums advanced have been reimbursed, and shall declare such amount to be surplus and order same to be distributed and/or credited in the manner set forth in Section 10427.1 of the Streets and Highways Code of the state of California, provided only that where all or any part of such assessments remains unpaid and is payable in installments, the amount apportioned to each parcel shall be credited against the last unpaid assessment installment and if the amount apportioned to each parcel exceeds the amount of said last installment, then such excess shall be credited against the next to last unpaid assessment installment.

• B. Covenant for the benefit of bondholders that in the event there are no funds available from which the city can make payment of the amount of any delinquent assessments levied in the proceedings in which such covenant is made, and interest thereon, for transfer into the redemption fund for the bonds issued in the proceedings in which such covenant is made, pursuant to and as provided in Part 13 of said Division 10, the city council shall order, and cause to be commenced and diligently prosecuted, court foreclosure proceedings upon the lien of any and all such delinquent assessments and interest, pursuant to and as provided in Part 14 of said Division 10. Any such covenant shall provide that such foreclosure proceedings shall be commenced either (a) within sixty days of receipt of written demand of any bondholder whose interests might be adversely affected by any delinquency, or (b) within sixty days following the date of such a delinquency.

The foregoing provisions in this section shall be applicable to any pending proceedings being conducted by the city council provided only that all interested persons shall be given due notice and hearing with respect to the intention of the city council to create such a reserve fund and/or to make such a covenant.

(Prior code § 2600.192; Ord. 19692.)

All assessments, reassessments and bonds, and each installment thereof, and the interest, costs and penalties on same shall be and continue to be liens against the lots and parcels of land on which they were levied and imposed, until the same have been paid, but for a period not to exceed four years after the due date of the last installment of the principal thereof.

(Prior code § 2600.113.)

This chapter shall not affect or relate to any proceedings for the doing of any work or improve-

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§ 14.16.270

ment instituted prior to its passage, and which has not been abandoned, but in such case the work done or proposed to be done shall be completed in accordance with the statute under which such proceedings were instituted. Any assessments levied or to be levied or bonds issued or to be issued thereunder shall be issued, levied, collected and paid in accordance with the law under which the same were issued or levied, or to be issued or levied. (Prior code § 2600.124.)

Where any provision of this chapter now or hereafter adopted shall be in conflict with any provision of any act of the legislature adopted by reference herein, the provisions of this chapter shall supersede and control. (Prior code § 2600.123.)

This chapter shall be liberally construed to the end that its purposes may be effected. No error, irregularity or informality, and no neglect or omission of any officer of the city in any procedure taken hereunder which does not directly affect the jurisdiction of the city council to order the improvement shall avoid or invalidate such proceeding, or any assessment for any such improvement or any bonds issued thereunder. The exclusive remedy of any person affected or aggrieved thereby shall be by appeal to the city council as herein provided. (Prior code § 2600.128.)

Part 2

Public work and improvements in and upon public streets, avenues, lanes, alleys, courts, places, sidewalks and other public property and rights-ofway, in whole or in part, including property over which the immediate possession and right of use has been obtained under the provisions of Section 14 of Article I of the Constitution of the state, in which the whole or any part of the cost thereof is to be paid by special assessment upon the lands benefitted thereby, shall be done and the proceedings therefor shall be had and taken according to the procedure provided therefor in and by this part of this Chapter.

(Prior code § 2600.1.)

• A. The city council is vested with the powers provided in this chapter, in the Improvement Act of 1911 of the state of California (Section 5000 et seq., of the Streets and Highway Code), as amended and the Municipal Improvement Act of 1913 of the state of California (Section 10000 et seq., of the Streets and Highway Code), as amended.

• B. Whenever the city council elects to employ the Municipal Improvement Act of 1913, the additions, deletions and modifications set forth in this chapter shall apply.

(Prior code § 2600.2; Ord. 22550.)

PUBLIC IMPROVEMENT PROCEDURE

Sections:

• 14.16.260 Council powers.

• 14.16.270 Statutory procedures applicable to work and assessment of costs.

• 14.16.280 Costs - Contractor's suit authorized when.

• A. For all public work and improvements performed, and assessments for costs and expenses made, confirmed and collected, and serial bonds issued, collected and paid, the procedure followed shall be as set forth in the Improvement Act of 1911 or in the Municipal Improvement Act of 1913 as modified in this

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chapter. The city council shall determine by resolution whether to proceed under the Improvement Act of 1911 or the Municipal Improvement Act of 1913.

• B. Preliminary steps leading toward the levy of a special assessment for an improvement may themselves be deemed, at the discretion of the city council, to be an improvement and their costs may be separately assessed. The city council may adopt a resolution of intention stating its determination to levy assessments for preliminary steps.

• C. Preliminary steps include, but are not limited to, the preparation of environmental impact reports and other feasibility and design studies, appraisals, construction plans and cost estimates; elections pursuant to Chapter 2.5 of the Municipal Improvement Act of 1913; all actions to secure permit approvals and contracts for the improvement from governmental agencies or public utilities; validation and other judicial actions as may be required to establish the authority for instruction or acquisition of the improvement and the levy of assessments and issuance of improvement bonds; negotiations and proceedings in eminent domain for the acquisition of real property required for the improvement; and preparation of the report described in Section 10402 of the Streets and Highway Code.

• D. An assessment for preliminary steps may be levied after an election as provided in Chapter 2.5 of the Municipal Improvement Act of 1913 or at the discretion of the city council, after a hearing as provided in Chapter 4 of the Municipal Improvement Act of 1913.

• E. Improvement bonds may be issued to be secured by assessments for preliminary steps in the same manner as assessments for other improvements.

• F. The validity and enforceability of assessments and bonds for preliminary steps shall not be dependent upon the later construction or acquisition of the improvement.

• G. Unless the context of the Municipal Improvement Act of 1913 otherwise requires, all provisions, additions and requirements of the Municipal Improvement Act of 1913 shall apply to assessments for preliminary steps in the same manner as assessments for any improvement.

(Prior code § 26003; Ord. 22550.)

In cases where bonds are not ordered to be issued pursuant to any of the provisions contained in this chapter and where assessments are not paid within thirty-five days from the date of the warrant, then the contractor, or his assignee, may sue, in his own name the owner of the land, lots or portions of lots assessed, and in such case such action may be taken and proceedings had as set forth in Section 27 of the Act cited in Section 14.16.260, as the same was amended prior to and was in effect on January 1, 1936; provided, however, that the attorney's fees therein shall be in such amount as may be deemed reasonable and shall be fixed by the court. (Prior code § 2600.4.)

Should suit not be filed, as in this section provided, then it shall be the duty of the superintendent of streets on or before the fourth Monday of the following September to certify to the county tax collector a list of the properties within the city upon which there is a lien for such delinquent assessments, as shown by the records of the street superintendent. Said tax collector shall cause to be pasted or attached or printed or stamped upon the tax bill or tax receipt of said property for said year a notice which shall, in substance, be as follows:

NOTICE OF ASSESSMENT

"There is a special improvement assessment lien upon this property which must be paid to the City Street Superintendent to avoid foreclosure." (Prior code § 2600.5.)

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§ 14.16.350

When said proceedings are for repairs, and the council shall elect to collect same with the municipal taxes, the notice of lien shall be sent to the county auditor, and shall include a statement of the interest on each assessment at six percent per year from the date of confirmation of such report to and including the thirty-first day in December of the fiscal year in which said assessment is to be so collected, and said amounts shall be collected with the first installment of said taxes. (Prior code § 2600.6.)

Part 3

ACQUISITION, OPENING AND CLOSING PROCEDURES

Sections:

• 14.16.360 Council powers.

• 14.16.370 Work and assessment of costs - Statutory procedures applicable.

• 14.16.380 Street closing.

• 14.16.390 Compensation for property taken or damaged - Stipulation for judgment.

• 14.16.400 Immediate possession - Authorized when.

• 14.16.410 Immediate possession - Resolution prerequisite - Affidavit and order for possession.

• 14.16.420 Immediate possession - Rights granted.

• 14.16.430 Advance of funds authorized when.

• 14.16.440 Assessments or bonds to provide funds.

• 14.16.450 Stay of proceedings following appeal - Possession during litigation.

• 14.16.460 Excess condemnation of lands authorized when.

• 14.16.470 Alternative proceedings by commissioners authorized when.

• 14.16.480 Commissioners - Appointment.

• 14.16.490 Commissioners - Qualifications - Other officials authorized.

• 14.16.500 Commissioners - Oath and bond.

• 14.16.510 Commissioners - Compensation.

• 14.16.520 Commissioners - Removal authorized - Vacancy filling.

• 14.16.530 Commissioners - Appraisal - Reports and assistance required.

• 14.16.540 Commissioners - Assessment of compensation and damages.

• 14.16.550 Commissioners - Report of findings and expenses.

• 14.16.560 Commissioners - Contents of reports.

• 14.16.570 Property deemed to belong to unknown owners when.

• 14.16.580 Hearing on commissioners' report - Notice.

• 14.16.590 Filing of objections.

• 14.16.600 Hearing on commissioners' report - City council action.

• 14.16.610 Confirmed report - Copy to superintendent of streets.

• 14.16.620 Property - Diagram and assessment required.

• 14.16.630 Assessment on property - Payment by offset permitted when.

• 14.16.640 Special fund for assessment moneys.

• 14.16.650 Payments for acquisition of lands.

• 14.16.660 Resolution ordering condemnation brought when.

The acquisition, opening, laying out, extending, widening, straightening or closing up, in whole or in part, of public streets, squares, lanes, alleys, courts and places, and the acquisition of any and all

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§ 14.16.350

property, rights-of-way or easements, or of any interest therein necessary or convenient for the purpose of constructing thereon any of the work or improvements of the character mentioned in the Improvement Act of 1911 of the state, as in effect on January 1, 1936, where the whole or any part of the cost thereof is to be paid by special assessment on the lands benefitted thereby, shall be done according to the procedure provided therefor in and by this part of this chapter. (Prior code § 2600.7.)

There is hereby vested in the city council the powers provided in Section 1 of that certain act of the legislature of the state approved March 24, 1903, designated therein and commonly known as "Street Opening Act of 1903," as amended prior to and as said act was in effect on January 2, 1936; and in addition thereto, there is hereby vested in the city council, whenever the public interest or convenience may require, the full power and authority to acquire by condemnation any and all property, rights-of-way or easements, or any interest therein, necessary or convenient for the purpose of constructing thereon any of the work or improvements of the character mentioned in the Improvement Act of 1911 of the state, as said act was in effect on January 1, 1936. (Prior code § 2600.8.)

The work aforesaid shall be done and assessments or reassessments for the cost and expenses of same shall be made, confirmed and collected according to the procedure set forth in Sections 2, 3, 4, 5, 6, 7, 8, 9, 10, 11,12, 13, 14, 15, 16, 17, 18, 18a, 19, 20, 20a, 21, 22, 23, 24, 25, 26, 26a, 27, 28, 29, 30, 31, 32, 33, 33a, 34, 35, and 37 of the Act cited in Section 14.36.360, as amended prior to and as the said act was in effect on January 1, 1936. (Prior code § 2600.9.)

Having acquired jurisdiction as provided in Section 4 of the Act cited in Section 14.36.360, if

the proposed work is for closing up and it appears that no assessment is necessary, the council shall by resolution so declare, and order the closing up and abandoning of the street or streets or portion of street or streets involved. If it appears that an assessment is necessary for the proposed work of closing up, then the council shall by resolution determine the amount thereof and order the making of a diagram and assessment and shall proceed as provided in Section 2 of the said act as so amended.

(Prior code § 2600.10.)

In addition to the procedure elsewhere provided in this Part 3 as the method of determining the compensation for all property to be actually taken and the basis of damage to property not actually taken but injuriously affected, in all cases where such damages are allowed by the provisions hereof, and anything elsewhere in this part of this chapter to the contrary notwithstanding, the plaintiff and all parties owning and claiming an interest in any parcel or parcels of land sought to be acquired may enter into a written stipulation for the entry of an interlocutory judgment relating to such parcel or parcels of land, agreeing upon the actual value of any property to be actually taken and the amount of damages to property not actually taken but injuriously affected, in which case said stipulation shall be in the manner and form, and such proceedings shall be had and taken in regard to the filing of same, the giving of notice, the filing of objections, the intervention of parties, the hearing of same and the entry of interlocutory decrees according to the procedure set forth in Sections 33a and 33b of the certain Act of the legislature of the state approved May 23, 1925, designated therein and commonly known as "Acquisition and Improvement Act of 1925," as the same was amended prior to and was in effect on January 1, 1932. Sections 29 and 32 of the said Act as referred to in said Sections 33a and 33b thereof shall be deemed and are hereby declared to be Sections 8 and 11 respectively of the

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§ 14.16.440

Street Opening Act of 1903, as above adopted; provided, however, that the notice therein provided to be given by the clerk of the court need not contain a description of said assessment district but may refer therefor to the resolution of intention, or to the resolution finally establishing the boundaries of said district after the hearing thereon heretofore provided, giving the date of the adoption of said resolution and the place where the same is on file. (Prior code § 2600.11.)

In any action in eminent domain brought under this chapter, the city may take the immediate possession and use of the property therein sought to be acquired, pursuant to Section 14 of Article I of the Constitution of this state, in accordance with the following procedure, which is provided therefor. (Prior code § 2600.12.)

If the legislative body conducting the proceedings shall by resolution determine that the public necessity and convenience require the taking of immediate possession and use of all or any portion of the property sought to be condemned therein, pursuant to Section 10 of said Street Opening Act of 1903, as above adopted, then the city engineer shall make and file in said action an affidavit as to the amount of compensation and damages reasonably adequate for securing payment to the owners, and the court may ex parte make an order in said action adjudging the amount reasonably adequate to secure to the owner of the property sought to be taken immediate payment of just compensation for such taking, and damages incident thereto, as soon as the same can be ascertained according to law, and directing the plaintiff to deposit the said sum of money with the court. Upon depositing the said money so ordered, the court shall make an order in said action adjudging that the plaintiff is entitled to have and take and awarding to plaintiff immediate

possession and use, for the purposes and uses described in the complaint therein, of all or such portions of the property sought to be condemned therein for which immediate possession and use is sought and security furnished. (Prior code § 2600.13.)

Upon obtaining the order mentioned in Section 14.16.410, the city, or any contractor for any improvement contemplated in any proceedings pending or instituted before the council, whose contract includes work or improvement upon any or all of the property covered by such order for immediate possession, shall have the right to enter upon and construct thereon the improvements included in the contract.

(Prior code § 2600.14.)

The city council shall have the power to and may advance such amount as is required by the court to be deposited to obtain such immediate possession and use, and may reimburse the treasury for the amount so advanced from any assessment thereafter levied and collected from the sale of any bonds thereafter issued under the proceedings. Such amount may be advanced from either the general fund or from any fund available for the purpose of acquisition of public ways or property, or from any revolving fund created and administered as hereinafter provided.

(Prior code § 2600.15.)

In addition to the foregoing method for obtaining the amount necessary for such deposit required by the court in order that immediate possession and use may be had, the city council may make and levy an assessment, and issue and sell bonds as provided in Part 4 of this chapter. In such event, the city attorney shall report in writing to the city council the amount required to be so deposited. The city council may thereupon direct the superintendent of streets to make and file an assessment and diagram

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§ 14.16.440

in which event proceedings shall be had in accordance with the preceding provisions of this Part 3 of Chapter 14.16, unless bonds are to be issued pursuant to Part 7, Plan C of this chapter, in which event proceedings shall be had as therein provided. (Prior code § 2600.16.)

• A. An appeal from the interlocutory judgment, or from any order granting or denying a new trial, or granting or denying a motion to vacate said judgment and enter another and different judgment, shall stay all proceedings in the trial court upon the judgment or order appealed from, including execution and any right to move for a dismissal of the action. An appeal by plaintiff from a portion of the judgment shall stay all proceedings upon the whole judgment.

• B. In the event, upon an appeal by plaintiff, that plaintiff shall elect, if already in possession, to continue therein, and if not, then to take possession of and use the property during the pendency of and until the final conclusion of the litigation, and shall take such proceedings as are required therefor herein, and shall have paid into court such moneys as may be required therefor by the court, then and in that event the money or deposit shall not be subject to withdrawal either by the plaintiff or defendant until after the entry of the final decree of condemnation, and then only by order of the court in which it is deposited, on motion made therefor. No defendant shall receive said moneys during said time, and in the event he shall receive same or any part thereof, then the same shall be recoverable in the name of the plaintiff in an action upon a common count for money had and received, which may be filed at any time before the expiration of five years after

the final determination of said litigation. In any event, the right of appeal shall continue in plaintiff, and said action shall not become moot or abate or be subject to dismissal, because of either the taking of said possession, the deposit of said moneys, or the payment thereof to defendant. For the purposes of this section, each separate parcel of property to be taken shall be declared the subject matter of a several action.

(Prior code § 2600.17.)

authorized when.

If the city council shall in its resolution of intention find that public interest and necessity so require, it may acquire lands in excess condemnation pursuant to Section 14 1/2 of Article I of the Constitution of the state. It is also authorized and empowered to sell and dispose of any such lands so acquired in excess condemnation in the manner and form hereinafter provided for the sale of property acquired by the city for the nonpayment of assessments.

(Prior code § 2600.18.)

As an alternative to the foregoing procedure of forthwith directing the filing of a suit in eminent domain, the proceedings set forth in Sections 14.16.440 through 14.16.620 may be had. (Prior code § 2600.19.)

The city council may provide in the resolution ordering the work, for the appointment of three commissioners to assess the damages. (Prior code § 2600.20.)

Such commissioners must be residents of the city, over the age of twenty-one years, disinterested,

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PUBLIC WORKS AND IMPROVEMENTS

§ 14.16.570

and be acquainted with the values of real property and improvements in the city; provided, however, that the city council may order that all the duties of the commissioners shall be performed by the city manager, and that all clerical work shall be performed by the superintendent of streets, who shall receive no compensation therefor other than the salaries of their respective offices. (Prior code § 2600.21.)

Said commissioners shall proceed to assess the compensation and damages within the time and in the manner hereinbefore provided therefor with reference to referees appointed by a court. (Prior code § 2600.26.)

Each commissioner shall file with the city clerk an oath of office, and a bond to the city in a sum to be fixed by the city council, to faithfully and impartially perform and discharge the duties of his office. (Prior code § 2600.23.)

Said commissioners shall make and file with the city clerk a written report of their findings, and of their fees and necessary expenses, within three months after the date of their appointment; provided, however, that the time so allowed may be extended by the city council upon good cause shown. (Prior code § 2600.27.)

For their services, said commissioners shall receive such compensation as the city council may determine, not to exceed two hundred dollars per month each, for a term of not to exceed three months, unless extended by order of the city council.

(Prior code § 2600.24.)

The city council may at any time remove any and all said commissioners for cause, upon five days' notice by mail and hearing, and may fill any vacancies occurring for any cause. (Prior code § 2600.22.)

The city council shall furnish the commissioners with such reports on the title to property which they are to appraise, and such assistance and incidentals as the city council shall deem necessary and proper. (Prior code § 2600.25.)

Said report shall specify each lot, subdivision or piece of property taken or injured by the improvement, together with the name of the owner or claimants thereof, and of each person interested therein as lessees, encumbrancers, or otherwise, so far as known to them, and the particulars of their interest, so far as same can be ascertained, and the amount of compensation or damage, as the case maybe.

(Prior code § 2600.28.)

If in any case the commissioners find that conflicting claims of title exist, or shall be in ignorance or doubt as to the ownership of any lot of land or of any improvements thereon, or of any interest therein, it shall be set down as belonging to unknown owners. Error in the designation of the owner or owners of any land or improvements, or of the particulars of their interest, shall not affect the validity of the assessment or of the condemnation of the property.

(Prior code § 2600.29.)

T14:49

SAN JOSÉ CODE

§ 14.16.580

Upon said report being filed, the city clerk shall give notice, by two publications in a newspaper printed and published in the city, of a time and place, which shall be not less than ten days after the first publication thereof, when said report shall be heard, and requesting all persons interested to show cause, if any, why said report should not be confirmed.

(Prior code § 2600.30.)

All objections shall be in writing, and filed with the city clerk not later than the hour fixed for said hearing.

(Prior code § 2600.31.)

At the time set or at such other time as the hearing may be adjourned to, the city council shall hear such objections and pass upon the same, and shall proceed to pass upon said report, and may confirm, correct, or modify the same, or may require the commissioners to make a new, or further report, which shall be filed, notice given and hearing had, as in the case of the original report, provided that the time within which same shall be made may be specified by the city council. (Prior code § 2600.32.)

The clerk shall forthwith deliver to the superintendent of streets of the city, a certified copy of said report as finally confirmed and adopted by the city council.

(Prior code § 2600.33.)

Upon the final confirmation of said report by the city council, the city engineer shall forthwith make and deliver a diagram to the superintendent

of streets, and the superintendent of streets shall forthwith make and file with the city clerk, an assessment to cover the compensation and damages and the fees and incidental expenses shown therein, which shall be made, confirmed, levied and collected, in the manner hereinbefore provided in the preceding sections of this part, unless bonds are to be issued pursuant to Part 7, Plan C of this chapter, in which event proceedings shall be had as therein provided.

(Prior code § 2600.34.)

The owner of any property assessed, who is entitled to compensation under the report, may demand of the superintendent of streets that such assessment be offset against the amount to which he is entitled under the report. Such offset shall be had in the manner hereinbefore provided by Section 14.16.370 of this part. (Prior code § 2600.35.)

The superintendent of streets shall, from time to time, pay over to the city treasurer all moneys collected by him on account of such assessments. The city treasurer shall, upon receipt thereof, place the same in a separate fund to be designated therefor. Payments shall be made from said fund by warrants signed by the auditor and city manager. (Prior code § 2600.36.)

When sufficient money is in the hands of the city treasurer, in the fund designated therefor, to pay for the lands and improvements taken or damaged, after deducting all payments by offset, said manager shall draw and deliver to the superintendent of streets warrants therefor, and it shall be the duty of the superintendent of streets to notify the owner, possessor or occupant of the land and improvements thereon to whom compensation and damages shall have been awarded, that warrants have been drawn for the payment of same, and that

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§ 14.16.710

they can receive same at the office of said superintendent of streets upon tendering conveyances of the property to be taken; such notification, excepting to unknown owners, to be made by depositing a notice in the post office, postage prepaid, addressed to his last known place of residence. If the owner fails to comply within thirty days after mailing said notice, the warrant shall be deposited with the city treasurer to be delivered upon the tender of such conveyance, unless judgment of condemnation shall be had, in which event the warrant shall be canceled.

(Prior code § 2600.37.)

If any owner of land to be taken neglects or refuses to accept the warrant drawn in his favor, as aforesaid, the city council shall have continuing jurisdiction to direct an action to be brought by the city attorney for the condemnation of the property necessary or convenient to be taken therefor, as in this part hereinbefore provided. (Prior code § 2600.38.)

Part 4

ASSESSMENT BONDS - GENERAL PROVISIONS*

Sections:

• 14.16.700 Applicability of Parts 4 through 7 of this chapter.

• 14.16.710 Issuance declared in resolution of intention - Form.

• 14.16.720 Form of bonds.

• 14.16.730 Possession, acquisition or closing bonds - Sale procedures.

*Charter references— For Charter provisions on revenue bonds, see Charter §§ 1220 - 1222; for provisions on the Improvement Act of 1911 on improvement bonds, see Str. And Hwys. Code § 6400 et seq.

14.16.750 Action to determine validity of bonds.

14.16.760 Registration of bonds - 1913 statutory provisions incorporated by reference.

14.16.770 Registration of bonds - 1935 statutory provisions incorporated by reference.

14.16.780 Duplicate bonds - Issuance conditions - Statutory provisions incorporated by reference.

14.16.790 Payment of assessments with matured bonds and coupons.

14.16.800 Distribution of surplus remaining in redemption fund.

When bonds are to be issued in any proceeding had and taken in connection with any public improvement or acquisition or immediate possession or street closing, pursuant to the provisions of any part of this chapter, the same shall be issued, paid and collected in accordance with the provisions of this part and parts 5, 6 and 7 of this chapter.

(Prior code § 2600.39.)

When the city council shall determine that serial bonds shall be issued to represent the cost and expenses of any proposed work or improvement, or of the possession or acquisition of any property in any such proceeding, it shall so declare in the resolution of intention therefor, and shall specify pursuant to what plan herein provided said bonds shall be issued, the date of their maturity following the date of their issuance, and shall also specify the interest rate which they shall bear, which shall not exceed seven percent per year; provided, however, that in case said bonds are for the acquisition or immediate possession of property, said interest rate

T14:51

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§ 14.16.710

may be stated to be not to exceed seven percent per year. Said bond declaration may be substantially in the following form:

"Notice is hereby given that (serial) bonds to (represent the unpaid assessments (of $25.00 or over) and) bear interest at the rate of (not to exceed) _________ percent per annum, will be issued pursuant to Bond Plan _________ of Part III of the San José Improvement Procedure Code, the last installment of which shall mature _________ years from the second day of (January next succeeding the fifteenth day of November following their date) July next succeeding ten months from their date." (Prior code § 2600.40.)

Whenever any bonds are issued pursuant to any one of the plans provided in Parts 5, 6 or 7 of this chapter, such bonds shall be substantially in the form provided in the particular plan specified, with such appropriate changes in the wording of such bonds as to show that they were issued pursuant to such plans.

(Prior code § 2600.41.)

In the event that bonds are issued for the immediate possession and use, or for the acquisition of any property, or for the closing of any street, as set forth in Part 3 of this chapter, then said bonds must be sold, at a time to be fixed by the council, to the highest cash bidder therefor after advertising for bids, which advertisement shall be published twice in a newspaper of general circulation published in the city, the first publication of which shall be at least ten days before the date set for opening said bids and making said sale, but said bonds shall not be sold for less than par. The proceeds of the sale of such bonds shall be paid into the fund of the proceeding to represent the assessments in which said bonds were issued. If any bonds be sold for an amount in excess of par, such excess shall be paid into the redemption fund for the payment of such bonds. If satisfactory bids are received, the bonds

offered for sale must be awarded to the highest bidder. If no bids are received, or if the council determines that the bids received are not satisfactory as to price or responsibility of bidders, the council may reject all bids received, if any, and readvertise for bids. The city treasurer may be a bidder at such sale.

(Prior code § 2600.42.)

The city council shall have the power to advance from the general fund or from any funds available for the purpose of acquisition of public ways or property, or from any revolving fund created and administered as provided in Part 1 of this chapter, to the appropriate fund, the minimum sum for which all, or any part, of said bonds may be sold, in which case the city shall have the same rights in respect to the enforcement and collection thereof as other purchasers. Where the city so purchases bonds, it shall have authority at any time to sell same, or any thereof, and to reimburse itself therefor. The city council shall have the like power, with the like effect, to purchase with moneys from the proper fund bonds issued for the cost of public improvements, or to issue them to the city payable to bearer, and pay the contractor the balance of his contract price in cash. (Prior code § 2600.43.)

The city council may bring an action in the superior court of the state in and for the county of Santa Clara, to determine the validity of any such bonds or the levy of such assessments made or to be made thereunder, or of any contract or acquisition or improvement, and of the proceedings had therein. Such action shall be governed by the procedure and shall have like effect as provided in Section 16 of the Improvement Act of 1911, amended prior to and as in effect on January 1, 1938. (Prior code § 2600.44.)

Any bonds and interest coupons thereon issued pursuant to the provisions of this chapter may

T14:52

PUBLIC WORKS AND IMPROVEMENTS

§ 14.16.800

be registered in the manner and with like effect provided in that certain act of the legislature of the state entitled "An act to provide for the registration of bonds issued by the state of California, or any county, city and county, municipal corporation, or other political corporation," approved April 14, 1913 (Stats. 1913, p. 23), and the provisions thereof are incorporated herein and made a part hereof by reference thereto.

(Prior code § 2600.45.)

Any bond or any interest coupon thereon issued pursuant to the provisions of this chapter which is presented to the treasurer for payment, and is not paid for want of funds, may be registered in the manner and with like effect provided in that certain Act of the Legislature of the state of California entitled "An act to provide for the registration of bonds and interest coupons unpaid for want of funds and the preference and payment thereof in the order of such registration when funds are available," approved June 7, 1935 (Stats. 1935, p. 994), and the provisions thereof are incorporated herein and made a part hereof by reference thereto. (Prior code § 2600.46.)

Whenever it is made to appear to the city council by competent proof that any bond issued pursuant to any of the provisions hereof, has been lost or destroyed, proceedings may be had for the issuance of a duplicate bond in the place thereof in the manner and with like effect provided in that certain act of the legislature of the state entitled "An act to provide for the issuance of duplicate bonds, warrants and other evidence of indebtedness of counties, municipal and other public corporations," approved June 10, 1933 (Stats. 1933, p. 2175), and the provisions thereof are incorporated herein and made a part hereof by reference thereto. (Prior code § 2600.47.)

Payment of all or any portion of any assessment taxes levied to pay the principal or interest due or to become due on the bonds of any district formed under this chapter may be made with matured bonds or matured coupons of such district. Said bonds and coupons shall be accepted and treated as cash, and when so received shall be canceled and the interest and sinking fund of said district shall be credited with the face value thereof. (Prior code § 2600.48.)

In the event of a surplus remaining in the redemption fund after payment of all bonds issued under any plan mentioned herein and the interest thereon, for retirement of which such fund was established, such surplus shall, subject to any other special provision therefor hereunder, be applied first to repayment to the city of any balance due it for contributions and advances which it may have made to the redemption fund and of any special taxes which it may have levied in aid thereof other than any regular taxes levied to retire any such bonds, and also of any moneys due it for costs incurred or charges allowed, together with interest on such sums at the rate mentioned in said bonds. The remainder of such surplus shall then be ratably apportioned to the owners of the lots originally assessed for the payment of said bonds, according to the amounts assessed, the ratable sum allowed to the owners of any lot upon which an assessment remains unpaid being first credited therewith, and such owners being those appearing on the tax roll upon which funds to retire the last installment of said bonds were collected.

(Prior code § 2600.49.)

Part 5

BOND PLAN A - LOT BONDS

Sections:

T14:53

SAN JOSÉ CODE

§ 14.16.850

• 14.16.870 Assessments under twenty-five dollars - Method of collection.

• 14.16.880 Assessments under twenty-five dollars - Alternative method.

• 14.16.890 Assessments due and payable when.

• 14.16.900 Procedures following default in payment.

There is hereby vested in the city council the powers provided in Sections 59 and 60 of said Improvement Act of 1911, as amended prior to and as said act was in effect on January 1, 1936, together with like power to issue bonds under this plan for any of the purposes provided in Section 14.16.700 of this chapter.

(Prior code § 2600.50.)

As an alternative method for the collection of such assessments which are less in amount than twenty-five dollars, the city council, by resolution adopted at or between the time of the adoption of the resolution ordering the issuance of the bonds and the last regular or regularly adjourned meeting held thereafter before the date fixed by law for the delivering of the county assessment roll to the county auditor, at its own election may, and upon the written request of the contractor or his assigns must, direct that the same be collected upon the tax roll upon which general taxes are collected for the city. The auditor shall extend upon such roll the amount of such assessments, together with interest thereon from the date of recordation of the assessment to the next thirty-first day of December of the tax year for which such roll is prepared, and which interest shall be at the rate specified in the bonds, opposite the properties affected and to the first installment of said taxes.

(Prior code § 2600.53.)

Said bonds shall be issued, collected and paid according to the procedure provided in Sections 62, 63 (as amended by Chapter 1032 of the California Statutes of 1935), 63a, 64, 65, 65a, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 76a, 76b and 76c of the act cited in Section 14.16.850, as amended prior to and as the said act was in effect on January 1, 1936. (Prior code § 2600.51.)

Where bonds are provided to be issued pursuant to the provisions of this plan, all assessments less in amount than twenty-five dollars which are unpaid at the time of the issuance thereof shall be collected, and proceedings in connection therewith shall be had and taken, in accordance with the provisions of Section 14.16.280 of this chapter. (Prior code § 2600.52.)

In such event, said assessments, together with the interest so entered on the assessment roll, shall become due and payable to the contractor or his assignee at the time and place provided for the payment of the first principal installment of said serial bonds. Said resolution shall contain a description of the properties so assessed, the amount of such assessments, the amount of interest which will become so payable on each assessment, and the total amounts of principal and interest on each property, and a certified copy thereof shall be delivered by the street superintendent to the county auditor on or before the date fixed by law for the delivery of said assessment roll to the county auditor. Thereafter said amounts shall be collected at the same time and in the same manner as general municipal taxes are collected, and be subject to the same penalties and interest, and to the same procedure under foreclosure and sale in case of delinquency, as provided for general municipal taxes, all

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PUBLIC WORKS AND IMPROVEMENTS

§ 14.16.970

of which laws for the levy, enforcement and collection of which are hereby made applicable to such special assessment taxes. (Prior code § 2600.54.)

Upon default in payment, the lands securing same shall be sold in the same manner in which real property in such city is sold for the nonpayment of general municipal taxes, and be subject to redemption within one year from the date of sale in the same manner as such real property is redeemed from such delinquent sale, and upon failure of such redemption, shall in like manner pass to the purchasers. In case a sale of any such property for nonpayment of county or city taxes is made to the state, the state shall hold the title acquired at such sale and thereafter account for any moneys received on a redemption or sale thereof, in the same manner as it holds such property when sold to it for the nonpayment of general municipal taxes, the city for the purposes hereof being the real purchaser. The city shall not, however, be required to pay into the assessment fund any part of said delinquency unless said property is sold and said money received. (Prior code § 2600.55.)

Part 6

BOND PLAN B - DISTRICT BONDS

Sections:

• 14.16.960 Issuance, collection and payment - Statutory provisions applicable.

• 14.16.970 Issuance, collection and payment - Procedures for amounts under and over twenty-five dollars.

There is hereby vested in the city council the powers provided in Section 1 of said Improvement Bond Act of 1915, as amended prior to and as the said act was in effect on January 1, 1936, together

with like powers to issue bonds under this plan for any of the purposes provided in Section 14.16.650 of this chapter.

(Prior code § 2600.56.)

The said serial bonds shall be issued, collected, and paid, and assessments and reassessments which are a trust fund for the redemption and payment of same shall be made, confirmed, and collected, according to the procedure provided in Sections 3, 5, 5a, 6, 7, 8, 9, 11, 12, 13, 14a, 15, 16, 17 and 19 of said Improvement Bond Act of 1915, as amended prior to and as the said act was in effect on January 1, 1936, and Section 14(b) of said act, as amended prior to and as the said act was in effect on January 1, 1928.

(Prior code § 2600.57.)

Such serial bonds shall be issued in the total amount of all assessments of twenty-five dollars or more, which are unpaid at the time of the issuance thereof. Bonds shall also be issued in the total amount of all assessments less in amount than twenty-five dollars which are unpaid at said time, which bonds shall mature at the same time as the maturity of the first series of said serial bonds, and which assessments shall become due and payable at the same time as that portion of the larger assessments which are collected for the payment of the first series of said serial bonds and the interest thereon. The list of unpaid assessments filed with the city clerk by the street superintendent shall separately state in such list the assessments which are of twenty-five dollars or over in amount and the assessments which are under twenty-five dollars in amount, and shall state the total of each thereof. (Prior code § 2600.58.)

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§ 14.16.1000

Part 7

BOND PLAN C - AD VALOREM BONDS

Sections:

14.16.1010 Assessment provisions inapplicable.

• 14.16.1020 Improvement proceedings - Statutory provisions applicable.

• 14.16.1030 Acquisition proceedings - Statutory provisions applicable.

• 14.16.1040 Possession proceedings - Statutory provisions applicable.

• 14.16.1050 Form of bonds.

• 14.16.1060 Maturity of bonds - Interest payment.

• 14.16.1070 Levy and collection of special tax.

• 14.16.1080 Validity of bonds and tax levy.

• 14.16.1090 Issuance of new bonds.

There is hereby vested in the city council the power to issue ad valorem bonds upon any district created under any section hereof for any of the purposes provided in Section 14.16.700 of this chapter.

(Prior code § 2600.59.)

When in any proceeding bonds are provided to be issued under Parts 4 through 7 of this chapter or plan of this part, no assessment or diagram shall be made as provided in Parts 2 and 3 of this chapter, and the respective provisions thereof with reference to the making, confirmation, recordation, levy, collection, payment and enforcement of same, shall be and remain inapplicable in said proceeding. (Prior code § 2600.60.)

If said proceedings are had pursuant to Part 2 of this chapter, then as soon as may be done in good

faith after the completion of the work, proceedings shall be had and taken in substantial accordance with the applicable provisions of Sections 22, 23, 24, 25 and 38 of that certain act of the Legislature of the state approved May 23, 1925, designated therein and commonly known as "Acquisition and Improvement Act of 1925" as amended prior to and as the said act was in effect on January 1, 1932, with such appropriate changes in the wording of the notice therein provided as to show that it is given pursuant to this Part 7 and plan of this Parts 4 through 7 of this chapter. (Prior code § 2600.61)

If said proceedings are had and taken pursuant to Part 3 of this chapter, then upon the entry of the interlocutory judgment, proceedings shall be had and taken in substantial accordance with the applicable provisions of Sections 36, 36 1/2, 36 3/4, 37, 37a and 38 of said act, as amended prior to and as said act was in effect on January 1, 1932, with such appropriate changes in the wording of the notice therein provided as to show that it is given pursuant to this Part 7 and plan of Parts 4 through 7 of this chapter. The Section number 36a referred to in said Section 37a is hereby declared to be said Section 36 3/4.

(Prior code § 2600.62.)

If said proceedings are had and taken pursuant to Part 3 of this chapter, and upon the determination of the city council to issue immediate possession bonds, proceedings shall be had and taken in substantial accordance with the applicable provisions of Sections 28 1/2 and 28 3/4 of said act, as amended prior to and as the said act was in effect on January 1, 1932, with such appropriate changes in the wording of the notice therein provided as to show that it is given pursuant to this Part 7 and plan of Parts 4 through 7 of this chapter. (Prior code § 2600.63.)

T14:56

PUBLIC WORKS AND IMPROVEMENTS

§ 14.16.1090

Bonds shall be issued substantially in the manner and form provided in the applicable provisions of Section 39 of the said act, as amended prior to and as the said act was in effect on January 1, 1932, with such appropriate changes in the wording of such bonds as to show that such bonds are issued pursuant to this Part 7 and plan of Parts 4 through 7 of this chapter. (Prior code § 2600.64.)

The principal and interest of the bonds issued under this Part 7 and plan of Parts 4 through 7 of this chapter shall be payable in the manner provided in Section 40 of the said act, as amended prior to and as the said act was in effect on January 1, 1932; provided, however, that:

• A. The odd balance of the total principal amount not provided to be paid in equal installments may be provided to be paid in either the first or the last installment;

• B. Each series of said bonds shall be payable on the second day of July of the years in which they mature;

• C. The first series may be made payable on the second day of July of the first year next succeeding ten months after their date;

• D. The final series or installment of said bonds shall mature and be payable on a date which shall not exceed fourteen years from the date of the maturity of the first series or installment of said bonds; and E. The first payment of interest shall not come due before six months before the maturity of the first series of bonds.

• (Prior code § 2600.65.)

There is hereby continued in the proper city and county officials the applicable powers provided in, and proceedings may be had by them in substantial conformity with, the applicable provisions provided with reference to the levy, collection and pay-

ment of special taxes, transfer of funds, and contributions, in Section 41 of the said act, as amended prior to and as the said act was in effect on January 1, 1932; provided, however, that said annual levy of assessment shall be sufficient to pay the principal and interest of such bonds as have become payable and for the payment of which no special assessment has been levied, and to pay the principal and interest of bonds which will become payable before the proceeds of another tax levy can be made available for the payment of said principal and interest, and, in addition to such amounts for principal and interest, such tax levy may include a sum not to exceed five percent of such amounts to provide for anticipated delinquencies. It is the intention of the foregoing proviso that the city shall not have the power, in making such tax levy, to pyramid delinquencies as provided in said act. (Prior code § 2600.66.)

All bonds issued and all taxes levied or collected pursuant to the provisions of this Part 7 or plan of Parts 4 through 7 of this chapter shall have the regularity, validity and legal sufficiency provided in Section 42 of the said act as amended prior to and as the said act was in effect on January 1, 1932.

(Prior code § 2600.67.)

There is hereby vested in the proper city officials the applicable powers provided in, and proceedings may be had by them with like force and effect, as provided in the applicable provisions of Sections 44, 48, 49 and 52 of the said act, as amended prior to and as the said act was in effect on January 1, 1932, with such appropriate changes in the wording of the notice therein provided as to show that it is given pursuant to this Part 7 and plan of Parts 4 through 7 of this chapter. (Prior code § 2600.68.)

T14:57

SAN JOSÉ CODE

§ 14.16.1100

Part 8

MUNICIPAL IMPROVEMENT DISTRICT PROCEDURE

Sections:

• 14.16.1100 District formation - Purpose and powers.

• 14.16.1110 District formation - Procedures required.

14.16.1120 City council jurisdiction.

• 14.16.1130 Issuance and sale of bonds.

• 14.16.1140 Contract and construction of improvements.

• 14.16.1150 Acquisition of improvements - Procedures.

• 14.16.1155 Acquisition of improvements - Certification prior to.

• 14.16.1160 Construction of improvements by city.

• 14.16.1170 Work under local, state or national authority - Statutory provisions applicable.

• 14.16.1180 Cancellation of unsold bonds.

• 14.16.1190 Disposition of unexpended balance.

Any portion of the city may be formed into a municipal improvement district for the purpose of creating a special assessment indebtedness to be represented by bonds of said district, the proceeds from the sale of which shall be used for the acquisition or construction of any public improvement, work or public utility which the city is authorized by its Charter or this chapter to acquire or construct. Such district shall be formed and such bonds shall be issued and sold in the manner and under the proceedings hereinafter set forth. (Prior code § 2600.69.)

A map or plat of any lands necessary or convenient to be taken for any such proposed improvement, and, by boundary line, of the territory proposed to be included in the assessment, together with a statement of the total estimated expense of said improvement, shall be filed and approved, and a resolution of intention to order said improvement shall be adopted and published, and a notice of improvement shall be posted in the manner provided in Part 3 of this chapter. Where said proceedings include improvements, plans and specifications therefor shall be approved, and the improvements shall be described in the resolution of intention in the manner provided in Part 2 of this chapter. The estimated cost of the acquisition or improvement shall be stated in the resolution of intention.

(Prior code § 2600.70.)

At the time of the hearing provided in said resolution of intention, or any date to which it is continued, the city council shall have the jurisdiction to alter and establish the boundaries of said district, and to order said acquisition or improvement as provided in the applicable provisions of Parts 2 and 3 of this chapter; provided, however, that all further proceedings shall be had therein as provided in this Part 8. (Prior code § 2600.71.)

Said resolution ordering the improvement shall, among other things, provide for the issuance and sale of bonds pursuant to Plan A, B or C set forth in Parts 5 through 7 of this chapter, in the amount found to be the estimated cost of the acquisition or improvement. The proceeds of the sale of such bonds shall be placed in the treasury of said city to the credit of the proper district fund, and shall be applied exclusively to the purposes and objects mentioned in the resolution of intention therefor and to the incidental expenses in connection therewith. (Prior code § 2600.72.)

T14:58

PUBLIC WORKS AND IMPROVEMENTS

§ 14.16.1170

If said proceedings include the construction of public improvements, a contract therefor shall be let, and said work and improvement shall be constructed and accepted in the manner provided in and controlled by the provisions of Sections 89, 90, 91, 92 and 93 of the Charter of the city as in effect at the time of the making of said contract, and pay the costs and expense thereof out of said fund. (Prior code § 2600.73.)

If said proceedings include the acquisition of public improvements, the proceedings therefor shall be had and taken in the manner provided in Part 3 of this chapter, or by direct purchase pursuant to the powers provided in the Charter of the city as in effect at said time, and pay the costs and expense thereof out of said fund. (Prior code § 2600.74.)

In any proceedings conducted by the city council pursuant to the provisions of the Municipal Improvement Act of 1913 (Division 12 of the Streets and Highways Code of the state of California) the city, in the discretion of the city council and notwithstanding any other ordinance of the City of San José, may:

• A. Acquire any work, improvements, appliances or facilities authorized to be made, constructed or acquired pursuant to said act notwithstanding that such work, improvements, appliances or facilities are not in existence, or not installed in place or not completed, on or before the date of adoption of the resolution of intention for the acquisition thereof, provided the director of public works has certified prior to acquisition thereof that the amount to be paid for such work, improvements, appliances or facilities is rea-

sonable and not in excess of the fair market value or actual construction cost thereof, whichever is lesser.

• B. The foregoing provisions of this section shall be applicable to any pending proceeding being conducted by the city council, provided only that all interested persons shall be given due notice and hearing with respect to the intention of the city council to so acquire any such work, improvements, appliances or facilities.

• (Prior code § 2600.193; Ord. 19522.)

The city council shall have the power, when it elects so to do, to do such work and improvement directly without awarding a contract therefor and to purchase the materials, hire the labor and do all things necessary for the doing of said work and improvement, in the manner provided in and controlled by the provisions of Section 89 of the Charter of the city as in effect at the time of the doing of said work, and to pay the costs and expenses thereof out of said fund.

(Prior code § 2600.75.)

When said acquisition or improvement is to be done under any local, state or national agency or authority, or if any contribution of labor, or labor and any portion of materials, supplies or equipment, is to be made thereto by any local, state or national agency or authority, proceedings shall be had in regard thereto, and any contract, if any, shall be made and said work and improvement shall be done in substantial conformity with the applicable provisions of Sections 3a, 18.5, 18a and 84 (as added by Chapter 1032 of the California Statutes of 1933) of the Improvement Act of 1911, referred to in Part 2 of this chapter, as amended prior to and as the said act was in effect on January 1, 1936, and the

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§ 14.16.1170

proceeds of said bond issue shall be used for the payment of the balance of the costs thereof and the incidental expenses in connection therewith. (Prior code § 2600.76.)

At any time within three years after the date of the resolution ordering the issuance of said bonds, the city council may by resolution determine that no part of such bond issue, or, if a portion of the bonds so authorized have been sold, that not part of the remainder of such issue then remaining unsold, shall thereafter be issued or sold and thereupon the whole or that portion of the bonds issued pursuant thereto, remaining unsold and described in such resolution, shall become void. (Prior code § 2600.77.)

Any unexpended balance which shall remain in said fund upon the completion of and payment for said public improvement or acquisition, shall be deposited in the sinking fund for the payment of the principal and interest to become due on said bonds, and shall be credited against the first amount necessary to be levied thereafter for the payment of same.

(Prior code § 2600.78.)

If in any proceeding had and taken pursuant to Parts 2 or 3 of this chapter the city council finds that any improvement or acquisition to be done thereunder will benefit all of the taxable lands within the whole city, or any particular district therein, the city council is hereby empowered to so declare in its resolution of intention, and to order that the costs and expenses thereof shall be assessed by a single tax levy upon all of the taxable lands within the whole city, or within said district. Where said costs and expenses are to be assessed upon the whole of the city, it shall be unnecessary to describe the boundaries of the city with more detail. Where said costs and expenses are to be assessed upon the lands within a district in the city, then the boundaries thereof shall be described in said resolution of intention and established as provided in Parts 2 or 3 of this chapter, depending upon the nature of said proceedings. In either case it shall be unnecessary to furnish a diagram of the property within said district.

(Prior code § 2600.79.)

Part 9

SINGLE AD VALOREM ASSESSMENT PROCEDURE

Sections:

• 14.16.1210 Improvement cost - Proceedings under Part 2.

• 14.16.1220 Acquisition cost - Proceedings under Part 3.

• 14.16.1230 Expenses - Collection by entry on tax roll.

• 14.16.1240 Collection of part of cost by tax levy.

If said proceedings are had pursuant to Part 2 of this chapter, then as soon as may be done in good faith after the completion of the work, proceedings shall be had as provided in Section 14.16.1020 of this chapter, and particularly Sections 22, 23 and 24 of the act therein referred to, excepting that said notice shall provide that the said cost is to be assessed by a single tax levy upon the taxable lands within the city or in said district rather than that bonds are to be issued therein, and that objections of persons interested shall be with reference thereto rather than concerning the issuance of said bonds, and that the order of said council shall provide that

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§ 14.16.1250

the cost thereof shall be assessed by a single tax levy upon all of the taxable lands within said city, or within said district.

(Prior code § 2600.80.)

If said proceedings are had and taken pursuant to Part 3 of this chapter, then upon the entry of the interlocutory judgment, proceedings shall be had and taken pursuant to Section 14.16.1030 of this chapter, and particularly Sections 36 and 37 of the act therein referred to, excepting that said notice shall provide that the said cost is to be assessed by a single tax levy upon all of the taxable lands within the city or in said district rather than that bonds are to be issued therein, and that objections of persons interested shall be with reference thereto rather than concerning the issuance of said bonds, and that the order of said council shall provide that the cost thereof shall be assessed by a single tax levy upon all of the taxable lands within said city, or within said district.

(Prior code § 2600.81.)

In the case of either an improvement or an acquisition, the costs and expenses thereof shall be advanced from the general fund or any fund available therefor, and paid to the contractor for said improvement, or to the property owners, or into court for them, as compensation and damages for the lands taken and damaged. The city clerk shall forward a certified copy of such order to the county auditor who shall extend the same upon the next tax roll upon which general municipal taxes are collected for the city, or in said district, which amounts shall be assessed against real property and collected at the same time and in the same manner as general municipal taxes are collected, and be subject to the same penalties and interest and to the same procedure upon foreclosure and sale in case of delinquency as provided for general municipal taxes, all of which laws for the levy, enforcement and

collection of which are hereby made applicable to such special assessment taxes. When collected, said funds shall be used for the reimbursement of the fund of said city from which said costs and expenses were originally advanced. (Prior code § 2600.82.)

If in any proceeding had and taken pursuant to Parts 2 or 3 of this chapter the city council finds that a portion of any improvement or acquisition, or a portion of the costs and expenses thereof to be done thereunder, will benefit all of the taxable lands within the whole of said city, it may so declare in its resolution of intention and order that the costs and expenses of said portion of said improvement or acquisition or the portion of said costs and expenses thereof shall be assessed by a single tax levy upon all of the taxable lands within the whole of said city. In such event, such portion shall be stated therein.

(Prior code § 2600.83.)

In the cases provided in the preceding section, it shall be provided in the assessment for the costs and expenses of said acquisition or improvement that said portion of said costs and expenses are to be assessed by a single tax levy upon all of the taxable lands within the city; and upon the confirmation of said assessment, the city clerk shall prepare and forward to the county auditor a certificate to the effect that said portion of said costs have been so levied pursuant to said proceedings, in which event proceedings shall be had thereon as provided in Section 14.16.1230 of this part. (Prior code § 2600.84.)

Part 10

ASSESSMENT READJUSTMENT AND BOND REFUNDING

Sections:

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§ 14.16.1300

14.16.1330 Council powers.

14.16.1340 Proposals - Conditions.

14.16.1350 Proposals - Appeals.

14.16.1360 Proposals - Preliminary confirmation.

14.16.1370 Written consents - Prerequisite to final confirmation.

14.16.1380 Written consents - Contents.

14.16.1390 Final confirmation.

14.16.1400 Refunding bonds - Issuance procedures generally.

14.16.1410 Plan A and B bonds.

14.16.1420 Plan C bonds.

14.16.1430 Sale of refunding bonds.

14.16.1440 Emergency provisions incorporated by reference.

The readjustment of assessments and the refunding of bonds heretofore or hereafter issued under any act now or hereafter adopted for the acquisition or construction of public improvements by special assessment upon the lands benefited, or under this chapter; the acquisition, surrender, purchase and cancellation of any such bonds in that connection; the issuance and sale or trading of refunding bonds to represent such readjusted assessments; the levy of said readjusted assessment or reassessment, for the payment of such refunding bonds, and the enforcement and collection of the lien thereof; and the manner of making contributions of public funds to assist in such refunding, shall be done according to the procedure provided therefor in and by this part of this chapter. (Prior code § 2600.85.)

Wherever reference is made in the said act to any of the provisions of the Improvement Act of

1911, then the said provisions shall be deemed to be those referred to in Parts 2 and 4 through 7 of this chapter.

(Prior code § 2600.88.)

The proceedings for the acquisition and cancellation of said issued bonds, the issuance and payment of assessment readjustment bonds, the making of said assessments for the costs of acquiring same, the levy and collection of said assessments, and the redemption of lost or otherwise unobtainable bonds to be acquired and cancelled, shall be had and taken according to the procedure set forth in Sections 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 16, 17, 18, 19 and 21 of that certain act of the Legislature of the state approved July 6, 1935, designated therein and commonly known as "Assessment Readjustment Act of 1935," as the said act was in effect on January 1, 1936; provided, however, that the notice referred to in Section 4 shall be entitled "Notice of Assessment Readjustment and Bond Refunding," and that said resolution of intention may provide that said bonds shall bear interest at a rate not to exceed seven percent; and excepting as herein otherwise provided. (Prior code § 2600.87.)

Whenever in the opinion of the city council the public interest, convenience or necessity requires the acquisition and cancellation of any such bonds so issued, said city council is authorized and empowered to order, under the provisions of this part, the acquisition and cancellation of any such bonds so issued. The city council may in its discretion make appropriations from the general fund, or from any funds available for said purpose, for any and all of the purposes set forth herein. Unless otherwise limited by the context of this chapter, the term "bonds" as used herein shall include bonds and their respective coupons. (Prior code § 2600.86.)

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§ 14.16.1380

No further action shall be taken upon any proposal or proposals mentioned in Section 6 of said act unless the same and the plan therein provided is signed or approved in writing by the holders of seventy-five percent of the outstanding bonds. Such proposal or proposals shall also provide for payment to be made of all bonds, the holders of which do not sign or approve same, in the manner provided in said act, and may provide for the whole of or the augmenting of such fund by the sale of such refunding bonds or a portion thereof. (Prior code § 2600.89.)

In addition to the grounds of appeals stated in Section 6 of said act, the property owners and all persons interested may also protest in writing against any or all proposal or proposals theretofore filed therein, or to any matter or thing therein contained, and the city council shall have like power to and with like effect may order the bondholders who have signed said proposal or proposals to remedy, correct, alter or modify same. (Prior code § 2600.90.)

When no appeal is taken or when the orders and determinations of city council in regard thereto have been complied with, it shall thereupon confirm one of said proposals. Its confirmation of the proposal and of the assessment and diagram as provided in Section 6 of said act is hereby declared to be preliminary in its nature. (Prior code § 2600.91.)

Before the city council shall have acquired jurisdiction to finally confirm the proceedings, including the diagram, assessment and proposal, or to proceed further in such proceedings and to issue assessment readjustment bonds as provided in Section 7 of said act, there shall first be filed with the city clerk in said matter written consents and ap-

provals of said assessment readjustment and bond refunding proceedings, including the diagram, assessment and proposal as preliminarily confirmed by the city council, and consenting to the completing of same and to the readjustment of assessments and the refunding of bonds in accordance therewith, signed by the owners of over one-half the area of lands in the district or districts being readjusted and refunded, and in the district created therefor. There shall also be filed with said city clerk like written consents and approvals signed by seventyfive percent or more of the owners of the outstanding bonds to be exchanged or paid. (Prior code § 2600.92.)

Said written consents, when signed by the property owners, shall contain a description of the property or properties within the district owned by them, and when signed by the bondholders shall contain the series and number of the bond owned by them, and among other things shall consent and agree that any contract or contractual relations existing between the property owners of such district and the owners or holders of the outstanding bonds may be amended, modified, changed, terminated, abrogated or otherwise altered, to the extent and in the manner proposed and as preliminarily confirmed by the city council, and shall consent to accept, ratify, approve and confirm the said proposal, the diagram and assessment, and all proceedings had in regard to the readjustment of said assessments and the refunding of said bonds, and the proceedings proposed to be taken in regard thereto; and shall contain a waiver of any and all objections to any and all irregularities, errors or informalities in said proceedings pursuant to said resolution of intention and to each and every step therein, including any objections to the jurisdiction of the city council in said proceeding, or to the constitutionality of this chapter or to any act or provision of any act of the Legislature of the state referred to herein and applicable thereto; and shall authorize the city and its respective officers to complete said proceedings in accordance therewith. (Prior code § 2600.93.)

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§ 14.16.1390

From and after said preliminary confirmation, the city council shall have continuing jurisdiction until and after the filing of said written consents and approvals as above provided, to finally confirm said proposal, assessment and diagram, and all proceedings had and taken pursuant to said resolution of intention. At such meeting, the city council shall adopt a resolution of final confirmation which shall find and determine that written consents have been so filed in the office of the city clerk as above provided, and shall order the refunding of said bonds in the manner herein and in said proposal provided. The validity, sufficiency and genuineness of said consents, and each thereof, and the finding and declaration of the legislative body thereon, shall be final and conclusive, unless action to test the validity thereof, or to attack or set aside or annul the same, is commenced as provided in Section 19 of said refunding act. (Prior code § 2600.94.)

Such refunding bonds shall be issued under Plan A, B or C of Parts 5 through 7 of this chapter together, with the applicable provisions of Part 4 thereof, and the resolution of intention therefor shall designate under which plan said refunding bonds are proposed to be issued. When such bonds are to be issued pursuant to Plan A, and upon the assessment therefor being confirmed and recorded, proceedings shall be had for the issuance, payment and enforcement of said bonds, and the levy and collection of assessments therefor in accordance with the procedure provided in said Plan A, provided, however, that the proposal in said proceeding may provide for the collection of assessments under twenty-five dollars in the manner provided in said Plan A or may provide for the issuance of bonds thereon without regard to the amount thereof, which remain unpaid upon the expiration of thirty days after the recordation of said assessment. When such bonds are to be issued pursuant to Plan B, then such bonds shall be issued, paid and enforced

in the manner provided in said Plan B. When such bonds are to be issued pursuant to Plan C, then such bonds shall be issued, paid and enforced in the manner provided in Plan C. (Prior code § 2600.95.)

When such bonds are to be issued pursuant to Plans A or B of Parts 4 through 7 of this chapter, then, upon the final confirmation of said assessment and diagram, proceedings shall be had in the following order:

• A. The city clerk shall attach to the assessment and diagram a certified copy of the resolution of final confirmation of same, which certificate shall state the date of adoption of said resolution;

• B. The city clerk shall cause to be, and the superintendent of streets shall, record the said assessment and diagram in the office of said superintendent of streets;

• C. The superintendent of streets, during the ensuing thirty days, shall demand of the owners of property within the assessment district and receive payment of their several assessments;

• D. The city treasurer shall create a special fund in which shall be deposited all moneys collected on said assessment;

• E. Forthwith upon the expiration of said thirty-day period, the superintendent of streets shall make a statement of payments received, and attach the same at the end of the record of the assessment and diagram.

• F. Outstanding bonds and coupons of consenting or other bondholders may be acquired and cancelled, from time to time, from the money collected upon the readjustment assessment, in accordance with the plan therefor as approved. When the plan of payment or exchange has been consummated, and provision has been completed for payment of the bonds of nonconsenting bondholders, then all re-

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§ 14.16.1440

maining outstanding bonds so acquired, and all unpaid assessments levied to pay the principal or interest thereof, and all penalties, costs and interest thereon, shall be cancelled by the proper officers, and the district or districts created for the payment of same shall be deemed dissolved.

(Prior code §§ 2600.96 - 2600.102.)

• A. When such bonds are to be issued pursuant to Plan C of Parts 4 through 7 of this chapter, then, upon the filing of the proposal, proceedings shall be had in the following order:

  1. The city engineer, or person designated by the council so to do, shall prepare and file with the city clerk a report showing the amount necessary to consummate the plan of acquiring and cancelling said issued bonds in accordance with said proposal, and the costs and expenses incidental thereto;

  2. The city clerk shall fix a time for hearing on issuance of bonds, and give notice thereof;

  3. The council shall on said hearing, determine the amount and order the issuance of bonds;

  4. All said things shall be done substantially in the manner and with like effect, as provided in the applicable provisions of Section 14.16.1030.

• B. Upon the issuance of said bonds, the same shall be sold or exchanged and the plan of acquiring and cancelling outstanding bonds consummated, substantially in the manner herein provided in Section 14.16.1430 of this part.

(Prior code § 2600.103.)

No bondholder shall provide in his proposal for the whole of, or the augmenting of, a fund to be used in the refunding of said bonds, by the sale of

such refunding bonds or a portion thereof. The city council shall have the power to sell said refunding bonds or any part thereof as provided in the proposal as confirmed, or as may be subsequently required, and use the proceeds thereof to purchase said bonds to be exchanged or paid, or any part thereof, or to make all payments of principal and interest thereafter maturing on the bonds the holders of which do not sign such proposal or thereafter surrender their bonds as in said act provided. (Prior code § 2600.104.)

There is hereby declared to exist within the city the emergency described in Section 23 of said act which emergency declarations are incorporated herein by reference thereto. As to all bonds issued prior to the effective date of the ordinance codified in this chapter, this part is deemed adopted in accordance with said emergency provisions As to all bonds issued subsequent to the effective date of Ordinance No. 2527, the provisions of this part shall be deemed to be a part of the contract thereof. (Prior code § 2600.105.)

Part 11

INVESTIGATION PROCEEDINGS

Sections:

• 14.16.1470 Notice of preliminary resolution and hearing.

• 14.16.1480 Title and form of notice.

• 14.16.1490 Written objections to proceedings - Contents.

• 14.16.1500 Resolution of convenience and necessity - Authorized when - Scope.

• 14.16.1510 Resolution of convenience and necessity - Adoption - Council jurisdiction.

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§ 14.16.1450

Before adopting any resolution of intention under any part of this Code where an assessment is to be levied upon the property benefited, excepting street-closing proceedings where no assessment is to be levied, proceedings for reassessment, and assessment readjustment and bond refunding proceedings, a resolution of preliminary determination shall be adopted.

(Prior code § 2600.129.)

Said resolution shall be similar in form to the proposed resolution of intention, excepting that instead of fixing a time and providing for notice of a protest hearing thereunder, it shall contain a notice of a day, hour and place when and where any and all persons interested may appear and show cause, if any they have, why the city council should not find and determine that the public convenience and necessity require the improvement or acquisitions described or referred to in said resolution, without further compliance with the Special Assessment Investigation, Limitation and Majority Protest Act of 1931.

(Prior code § 2600.130.)

Notice of the adoption of said preliminary resolution and of said time and place of hearing shall be given by the city clerk by publishing same in one or more issues of a newspaper published and circulated in the city, and by posting same on or near the council chamber door of said council. Said posting and the first of such publications shall be had at least ten days before said date of hearing. (Prior code § 2600.131.)

Said notice shall be entitled, "Notice of Proposed Local Improvement," shall state the fact and

date of the passage of the resolution of preliminary determination and of the time and place set for hearing, and briefly describe the proposed improvements or acquisitions, and refer to said resolution for further particulars. (Prior code § 2600.132.)

Any person interested, owning or having an interest in real property within the assessment district, at or before the time fixed for said hearing, may file with the city clerk a written objection to undertaking said proceedings without first complying with the provisions of the Limitation and Majority Protest Act of 1931. Said objection shall bear the signature of the objector and contain a description of his property and a statement of the nature of his interest therein.

(Prior code § 2600.133.)

If no protests are filed as provided herein, or when said protests shall have been heard and overruled, the city council may adopt a resolution finding and determining that public convenience and necessity require the proposed improvements or acquisitions, and that the Special Assessment Investigation, Limitation and Majority Protest Act of 1931 shall not apply. (Prior code § 2600.134.)

The resolution last stated shall be adopted by no less than four-fifths' vote of the city council, and its finding and determination shall be final and conclusive. Upon its adoption, the city council shall have jurisdiction under this Code, and the provisions of said Special Assessment Investigation, Limitation and Majority Protest Act of 1931 shall not apply to said proceedings. (Prior code § 2600.135.)

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§ 14.16.1600

This part shall not apply to such proceedings in the event that all of the owners to be assessed file with the city clerk a written waiver of such investigation proceedings signed by them, or in the event that the city council shall first comply with the provisions of said investigation act. (Prior code § 2600.136.)

Part 12

ELECTION OF PROCEDURES

Section:

Anything herein in this chapter to the contrary notwithstanding, the city council of San José may elect to conduct improvement proceedings or proceedings for the closing or vacation of public streets in accordance with any general laws of the state of California. The council shall specify in its resolution or ordinance of intention the law which shall govern the conduct of said improvement proceedings or said closing or vacation proceedings. (Prior code § 2600.175.)

Part 13

CONSTRUCTION AND MAINTENANCE OF SIDEWALK, GUTTERS, PAVEMENT, AND CURBS

Sections:

• 14.16.1610 Work performance - Superintendent of streets authority.

14.16.1620 Advancement of costs of work.

• 14.16.1630 Part 13 constitutes alternative procedure.

• A. Anything in this chapter to the contrary notwithstanding, the construction of sidewalks, gutters, pavements, driveways, and curbs, and the installation of storm and sanitary drainage facilities, water mains, pipes, conduits, tunnels, hydrants, and other necessary works and appliances for providing water service, parkway trees, and street lighting facilities in front of properties in any block where a sidewalk, gutter, pavement, driveway, the installation of storm and sanitary sewer drainage facilities, water mains, pipes, conduits, tunnels, hydrants, and other necessary works and appliances for providing water service, parkway trees, and street lighting facilities, or curb or all of them have been constructed theretofore in front of properties in said block constituting more than fifty percent of the front footage of said block, or where the owners of more than sixty percent of the front footage of said block, as shown by the last equalized assessment roll, file a petition with the city clerk, requesting the installation of any such improvements, or where a petition signed by the owners of more than sixty percent of the frontage of any part of an unimproved portion or portions of a block has been filed with the city clerk requesting the installation of such improvements in front of said part, and the making, confirming and collecting of the assessment for the cost and expense of said construction, may be done and the proceedings therefor may be had and taken in accordance with the procedure therefor provided in Chapter 27 of Division 7, Part 3, of the Streets and Highways Code of the state as the same is now in effect or may hereafter be amended, and the duty of any owner or person in possession of property in such block, to construct or cause to be constructed sidewalks, gutters, pavements, driveways, and curbs, storm and sanitary drainage facilities, water mains, pipes, conduits, tunnels, hydrants, and other necessary works and appliances for

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§ 14.16.1600

providing water service, parkway trees, and street lighting facilities, or all of them, in front of his property, or to pay the costs and expenses thereof, shall be as set forth in said Chapter 27.

• B. As used in this part, "sidewalks or curbs" includes "gutters," "driveways," "pavement" to the centerline of the street, "full pavement" in alleys, "storm and sanitary drainage facilities," "water mains," "pipes," "conduits," "tunnels," "hydrants," and "other necessary works and appliances for providing water service," "parkway trees," and "street lighting facilities."

• (Prior code § 2600.181; Ord. 20914.)

In performing the work of repairing or constructing any sidewalk as provided in Chapter 27 of Division 7, Part 3, of the Streets and Highways Code of the state, the superintendent of streets may, if the cost of said work does not exceed five thousand dollars:

• A. Procure at least three sealed bids to perform said work, from contractors licensed to undertake the same, and let said work to the lowest responsible bidder at the prices named in his bid; or

• B. Order a city work crew to perform said work.

(Prior code § 2600.182; 14.16.1620; Ord. 20914.)

The superintendent of streets is authorized and empowered to and may advance from the special assessment revolving fund any sum or sums necessary to pay the cost of the work of repairing or constructing any sidewalk by a contractor awarded a contract to perform said work by the superintendent of streets under the procedures set forth in this part, and may reimburse said special assessment revolving fund for the sum or sums so advanced from any assessment thereafter levied and collected.

This Part 13 constitutes a separate and alternative procedure for performing the work specified herein, and no other provision of this chapter shall apply to proceedings instituted hereunder. (Prior code § 2600.184; 14.16.1640; Ord. 20914.)

Part 14

FEES

Sections:

• A. Whenever an apportionment of an unpaid special assessment on a parcel of land in an improvement district is requested or made necessary by a subdivision of land after the levy of the assessment, including a division into condominium interests as defined in Section 783 of the Civil Code of the state, a fee as set forth in the schedule of fees established by resolution of council shall be paid to the City of San José.

• B. Such fee shall be paid to the city at the time of application for apportionment; or, if there is no application for apportionment, the fee shall be apportioned in proportion to the amount of the divided assessments against the divided parcels and collected with the first installment of the amended assessment.

• C. This fee is intended to cover the cost to amend and record the assessment diagram. All such fees shall be deposited in the general fund of the city.

(Prior code § 2600.190; Ord. 21293.)

(Prior code § 2600.183; 14.16.1630; Ord. 20914.)

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§ 14.16.1755

Part 15

USE BY CITY OF STATE LEGISLATION FOR SPECIAL ASSESSMENT PROCEEDINGS AND VALIDATION PROCEEDINGS

Sections:

14.16.1700 City's ability to use state legislation for special assessment proceedings and validation proceedings.

14.16.1755 Reserve fund disbursement for Improvement District No. 77-148SJ.

14.16.1756 Reserve fund disbursement for Improvement District No. 78-151SJ.

Nothing contained in the San José Municipal Code shall be deemed to limit the authority of the City of San José to employ any special assessment proceedings contained in the laws of the state of California, including but not limited to the Improvement Bond Act of 1911, the Municipal Improvement Act of 1913 and the Improvement Bond Act of 1915, in connection with the construction or maintenance of any public improvement or the acquisition of any property for public use where the cost of such construction, maintenance or acquisition is to be paid in full or part by special assessments or through special assessment taxes upon land.

Furthermore, nothing contained in the San José Municipal Code shall be deemed to limit the authority of the City of San José to employ any "in rem" validation proceeding which is authorized by the laws of the state of California, including but not limited to Government Code Section 53510, the Improvement Bond Act of 1911 and the Municipal Improvement Act of 1913, in order to determine the validity of any assessment, bond, warrant, contract, obligation or evidence of indebtedness under-

taken in connection with construction or maintenance of any public improvement or the acquisition of any property for public use where the cost of such construction, maintenance or acquisition is paid in fill or in part by special assessments or through special assessment taxes upon the land imposed under any provision of the Municipal Code of San José or any law of the state of California. (Prior code § 2600.191; Ord. 19650.)

The reserve fund created under Section 14.16.1750 by assessment in Improvement District No. 77-148SJ in order to advance funds to meet the bond redemption payments in case of delinquent assessments in said district shall be in the total original amount of one hundred seventy thousand dollars. All interest earned by the reserve funds of said district shall be credited towards the assessments for said district as set forth hereafter. Each year at the time assessment payments due from any property owners are payable, the city shall credit toward the assessments in said district in the manner provided by Section 10427.1 of the Streets and Highways Code, the total amount of interest earned on said district reserve fund, and in addition thereto, the sum of eight thousand five hundred dollars (which said sum excluding interest shall be hereinafter called "annual fund disbursement"), which is to be deducted from said district reserve fund; provided, however, in recognition of the fact that advances may be made from year to year to cure delinquent assessments in said district, no portion of the annual fund disbursement shall be credited from the reserve fund in any year in excess of the amount which would cause the district reserve fund to equal the minimum amount as set forth herein to be maintained in said district reserve fund. The minimum amount shall be defined as one hundred seventy thousand dollars less eight thousand five hundred dollars for each of the years in which assessments are due in said district. Thus, no deductions from such reserve fund for the purpose of making the annual fund disbursement herein shall

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§ 14.16.1755

be made which would cause the reserve fund to fall below the minimum amounts as of the time made, in any year as set forth below.

In the event that annual fund disbursement toward the assessment was not fully made in any year because there were insufficient amounts in the reserve fund to meet the minimum balances set forth above, and such amounts are later replenished through foreclosure or otherwise, the city may thereafter credit any amounts in the reserve fund in excess of the minimum shown above towards the assessments for said district.

In the event assessments are paid in cash in advance of their final maturity date, the city is authorized, but not required, to reduce the minimum amounts in the reserve fund and increase the annual fund disbursement in the proportion in which the assessments paid in cash bear to the total original assessments. Thus, for example, if in any year one-fourth the total original assessments have been

paid in cash, the minimum amount in the reserve fund for that year and succeeding years could be reduced by one-fourth.

All sums remaining in the reserve fund on July 2, 1999, or thereafter collected through foreclosure or otherwise shall be credited toward remaining assessments as set forth above. (Ord. 19592.)

Improvement District No. 78-151SJ.

The reserve fund created under Section 14.16.1750 by assessment in Improvement District No. 78-151SJ in order to advance funds to meet the bond redemption payments in case of delinquent assessments in said district shall be in the total original amount of eighty-five thousand dollars. All interest earned by the reserve funds of said district shall be credited towards the assessments for said district as set forth hereafter. Each year at the time assessment payments due from any property owners are payable, the city shall credit toward the assessments in said district in the manner provided by Section 10427.1 of the Streets and Highways Code, the total amount of interest earned on said district reserve fund, and in addition thereto, the sum of four thousand two hundred fifty dollars (which said sum excluding interest shall be hereinafter called "annual fund disbursement"), which is to be deducted from said district reserve fund; provided, however, in recognition of the fact that advances may be made from year to year to cure delinquent assessments in said district, no portion of the annual fund disbursement shall be credited from the reserve fund in any year in excess of the amount which would cause the district reserve fund to equal the minimum amount as set forth herein to be maintained in said district reserve fund. The minimum amount shall be defined as eighty-five thousand dollars less four thousand two hundred fifty dollars for each of the years in which assessments are due in said district. Thus, no deductions from such reserve fund for the purpose of making the annual fund disbursement herein shall be made

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which would cause the reserve fund to fall below the minimum amounts as of the time made, in any year as set forth below.

In the event that annual fund disbursement toward the assessments was not fully made in any year because there were insufficient amounts in the reserve fund to meet the minimum balances set forth above, and such amounts are later replenished through foreclosure or otherwise, the city may thereafter credit any amounts in the reserve fund in excess of the minimum shown above towards the assessments for said district.

In the event assessments are paid in cash in advance of their final maturity date, the city is authorized, but not required, to reduce the minimum amounts in the reserve fund and increase the annual fund disbursement in the proportion in which the assessments paid in cash bear to the total original assessments. Thus, for example, if in any year one-fourth the total original assessments have been

paid in cash, the minimum amount in the reserve fund for that year and succeeding years could be reduced by one-fourth.

All sums remaining in the reserve fund on July 2, 1999, or thereafter collected through foreclosure or otherwise shall be credited toward remaining assessments as set forth above.

(Ord. 19648.)

Part 16

MAINTENANCE DISTRICTS

Sections:

14.16.1820 Part not exclusive.

14.16.1830 General law.

14.16.1840 Owner.

14.16.1850 Part superior.

14.16.1860 Municipal affair.

14.16.1870 Council powers - Assessments.

14.16.1880 Applicable general law.

14.16.1890 Council powers - Maintenance and operation.

14.16.1900 Purpose.

14.16.1910 Resolution of intention.

14.16.1920 Budget - Contents.

14.16.1930 Filing with city clerk.

14.16.1940 Notice.

14.16.1950 Hearing - Notice - Form.

14.16.1960 Hearing - Form of mailed notice.

14.16.1970 Affidavits.

14.16.1980 Protests.

14.16.1990 Hearing.

14.16.2000 Initial modification.

14.16.2010 Majority protest.

14.16.2020 Final determination.

14.16.2030 Benefit assessments - Posting.

14.16.2040 Method of collection.

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14.16.2060 Applicability - Petition.

14.16.2070 Applicability - City council action.

The word "owner" shall mean all persons owning real property whose names and addresses appear on the last equalized assessment roll or who are known to the city clerk. (Prior code § 2600.194.4; Ord. 19651.)

• 14.16.2090 Hearing - Notice.

• 14.16.2100 Hearing - Notice - Form.

• 14.16.2110 Hearing - Form of mailed notice.

• 14.16.2120 Affidavits.

• 14.16.2130 Hearing protests.

The provisions of this part shall be controlling over the provisions of any general law or act in conflict herewith in any proceedings hereunder. (Prior code § 2600.194.5; Ord. 19651.)

• 14.16.2140 Majority protest.

• 14.16.2141 Reservation of rights only.

• 14.16.2150 Application of Sections 14.16.1890 through 14.16.2050.

This part shall be cited and referred to as the City of San José maintenance district procedure. (Prior code § 2600.194; Ord. 19651.)

The procedures provided in the several sections hereof are alternative. (Prior code § 2600.194.1; Ord. 19651.)

This part is not exclusive, but the resolution of intention in any proceedings under an act or general law may provide that such act or general law is supplemented by any portion or portions hereof. (Prior code § 2600.194.2; Ord. 19651.)

The words "general law" or the word "act" shall mean an enactment of the Legislature of the state of California. Unless herein otherwise provided, said general law or act shall be as now or hereafter amended or codified.

(Prior code § 2600.194.3; Ord. 19651.)

This part is adopted pursuant to the municipal affairs provision of the Charter of this city. In proceedings pursuant to this part, which are a municipal affair, the general laws or acts referred to in this part are deemed a part hereof. (Prior code § 2600.194.6; Ord. 19651.)

The city council may, in its resolution declaring its intention to order work done or improvements made, or it may, by separate resolution, declare its intention to order that the costs and expenses of maintaining and operating any or all public improvements of a local nature, including the cost of necessary repairs, replacements, fuel, power, electrical current, care, supervision, and any and all other items necessary for the proper maintenance and operation thereof, shall be assessed, either partly or wholly, upon such district as the city council shall determine will be benefited by the maintenance and operation of the public improvements proposed to be maintained; the amounts so assessed to be collected in the same manner and by the same county officers as the taxes for general city purposes are collected.

(Prior code § 2600.195; Ord. 19651.)

When the city council has declared its intention pursuant to Section 14.16.1870, the applicable provisions of chapter 26 of Part 3 of Division 7 of

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the Streets and Highways Code of the state of California, excepting Sections 5850 to 5853, inclusive, shall apply. (Prior code § 2600.195.1; Ord. 19651.)

The city council may, in its resolution declaring its intention to order work done or improvements made, or it may, by separate resolution, declare its intention to order that costs and expenses of maintaining and operating any or all public improvements of a local nature, including the cost of necessary repairs, replacements, fuel, power, electrical current, care, supervision, and any and all other items necessary for the proper maintenance and operation thereof, shall be assessed either partly or wholly, upon such district as the city council shall determine will be benefited by the maintenance and operation of the public improvements proposed to be maintained; the amounts so assessed to be collected in the same manner and by the same county officers as the taxes for general city purposes are collected and the city council may in said resolution of intention or said separate resolution reserve the right to elect to award contract or contracts for maintaining and operating such public improvements by either negotiation or bidding or combination of both instead of by bid contract or contracts only in each of the years during which the district continues in existence, such election whether to proceed by bid or negotiation or combination for a particular year to be determined and exercised each year at the time the budget and assessment are adopted for the year in question and not at the time the right to elect is reserved. (Prior code § 2600.196; Ords. 19651, 20145.)

The purpose of this section is to provide an alternative procedure by which the city council may provide for the payment of the whole or any part of the costs and expenses of maintaining and operating any public improvements which are local in nature, payable from annual benefit assessments

apportioned among the several lots or parcels of property within the maintenance district established therefor, the nature and formula or formulae for which are to be determined in the proceedings in which jurisdiction is provided, and to provide an alternative procedure by which the city council may reserve the right to elect to award contract or contracts for maintaining and operating such public improvements by either negotiation or bidding or combination of both rather than by bid contract or contracts only in each of the years during which the district continues in existence, such election whether to proceed by bid or negotiation or combination for a particular year to be determined and exercised each year at the time the budget and assessment are adopted for the year in question and not at the time the right to elect is reserved.

(Prior code § 2600.196.1; Ords. 19651, 20145.)

The resolution of intention to order work done or improvements made or said separate resolution, declared pursuant to Section 14.16.1890, shall contain a statement of the formula or formulae upon and by which annual assessment levies for the payment of said costs and expenses will be apportioned according to benefits among the several lots or parcels of property within the maintenance district to be established therefor, and zones of benefit if required. Said resolution shall instruct the director of public works to annually prepare a budget. (Prior code § 2600.196.2; Ord. 19651.)

The director of public works shall annually prepare a budget for the costs and expenses of maintaining and operating any or all of said public improvements of a local nature during the ensuing fiscal year which shall include the following:

• A. The gross amount required for the costs and expenses of maintaining and operating said public improvements;

• B. The balance which will be available in the assessment fund at the end of the current fiscal year for such purpose;

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• C. The amount, if any, to be contributed by the city to pay any part of said costs and expenses;

• D. Amounts to be repaid to city for funds advanced by the city to pay deficits which occurred in prior years; and

• E. The net balance which is the amount necessary to pay said costs and expenses.

• (Prior code § 2600.196.3; Ord. 19651.)

When the budget has been completed by the director of public works, it shall be incorporated into a report which, in addition to the budget, sets forth the benefit formula or formulae, a description of each lot or parcel of property in the maintenance district, by description sufficient to identify the same, and the amount of assessment to be levied against each parcel. Said report shall be signed by the director of public works and filed with the city clerk. The city clerk shall place the matter on the agenda for a hearing by the city council. (Prior code § 2600.196.4; Ord. 19651.)

The city clerk shall cause notice of hearing to be published once in a newspaper of general circulation in the city; to be mailed, postage prepaid, to all owners of property subject to the assessment; and to be posted on or near the council chamber door or any bulletin board in or adjacent to the City Hall. Said mailing, publication and posting shall be completed not less than ten days prior to such hearing.

(Prior code § 2600.196.5; Ord. 19651.)

The form of notice to be published and posted shall be substantially as follows:

NOTICE OF HEARING ON _________ MAINTENANCE DISTRICT

NOTICE IS HEREBY GIVEN that the director of public works has caused to be prepared and filed with the city clerk a report, in writing, which

provides the basis for the benefit assessment for the following type(s) of maintenance and operation _________ to be borne by all lots or parcels of property within the existing district, or proposed maintenance District No. , more particularly described in Exhibit A hereto attached and by reference incorporated herein. Said report sets forth the amounts to be provided in the budget for maintenance and operation, a description of each lot or parcel of property in the maintenance district, by a description sufficient to identify the same, and the amount of assessment to be levied for the fiscal year 19 through 19_______ against each lot or parcel of property. Said report shall be open to public inspection.

Any interested owner objecting to (only items with X are subject to objection at this hearing):

• establishment of the district;

• boundaries of the district;

• fairness of the benefit formula or for-

• mulae;

  • zones of benefit;

• the amount of the assessment on any

• lot or parcel of property owned by him/her:

• if applicable, reservation by city of right to elect whether to proceed each year by either negotiated or bid contract or contracts or combination of both instead of bid contract or contracts only;

may file with the city clerk at or before the hour fixed for hearing a protest, in writing, signed by him/her, describing the lot or parcel of property so that it may be identified, and stating the grounds of his/her protest, and may appear at said hearing and be heard in regard thereto.

Said report will be heard by the council at its meeting to be held on the _________ day of _, 19, at the hour of _________

o'clock _________.m. in the regular meeting place of said council, council chambers, City Hall, San José, California, at which time said council will examine said report and hear protests.

Notice prior to the final determination of the district shall indicate that the formation of the

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district, the boundaries of the district, the benefit formula and the amount of assessment, reservation of right to elect whether to proceed for each of the years during which the district continues in existence, either by bid or negotiated contract or contracts or combination thereof for operation and maintenance of the improvements, the cost of which is to be assessed wholly or partly upon the district, such election to be made each year at the time the budget and assessment are adopted and confirmed for the year in question and not at the time the right to elect is reserved, are subject to objection. In years thereafter, only the amount of assessment or changes in the formula or formulae are subject to objection and notice shall so indicate.

(Prior code § 2600.196.5; Ords. 19651, 20145.)

The form of mailed notice shall be substantially as hereinabove set forth, but shall also contain a description of the lot or parcel of property covered by the notice sufficient to identify it, and the amount of the proposed assessment against said lot or parcel of property as set forth in the report and, if applicable, shall contain a statement that the city council intends to reserve the right to elect to award contract or contracts for maintaining and operating the public improvements of a local nature, the costs of operation and maintenance of which are to be assessed either partly or wholly upon the district by either negotiation or bidding or combination thereof rather than by bid contract or contracts only, in each of the years during which the district continues in existence, such election to proceed by bid or negotiated contract or contracts or combination thereof to be determined and exercised each year at the time the budget and assessment are adopted for the year in question and not at the time the right to elect is reserved.

(Prior code § 2600.196.7; Ords. 19651, 20145.)

Affidavits or certificates of publication, posting and mailing shall be made and filed with the city clerk.

(Prior code § 2600.196.8; Ord. 19651.)

The city clerk shall receive written protests and shall endorse on each protest the date and time it is filed with him. No protest received after the time fixed for hearing shall be timely. Any written or oral protest not made at the time and in the manner provided herein shall be deemed to be waived voluntarily by any person who might have made such protest, and each person shall be deemed to have consented to the proposed assessment and any other act, determination, or proceeding on which protest could be made.

(Prior code § 2600.196.9; Ords. 19651, 20145.)

In connection with the hearing provided for the establishment of the maintenance district, owners may protest or object as provided in Section 14.16.1980 with regard to the establishment of the district, the boundaries thereof, the zones of benefit, the fairness of said benefit formula or formulae and the amounts of the assessments, and, if applicable, the reservation by city of right to elect to proceed each year either by negotiated or bid contract or contracts or combination thereof, instead of bid contract or contracts only. After a maintenance district has been established and finally determined, annual hearings will be limited to protest or objections to the amounts of the assessment or any change in the formula or formulae. The council may take and receive oral and documentary evidence pertaining to the matters contained in the report.

(Prior code § 2600.196.10; Ords. 19651, 20145.)

At annual hearing, the city council, of its own volition or in response to any protest or objection made, heard or considered, may make modifications in the district or the formula or formulae or in the amounts of the assessments for the purpose of making the same more fair and equitable; provided, however, that if modification is made which increases any assessment, or assesses additional property, before making a final determination as to such

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increased assessments or additional assessments, it shall set said matter for hearing at a subsequent meeting of said council, which it shall call or to which it may adjourn; provided, further, that it shall give notice of the time, place and purpose of said meeting, in accord with the notice procedure set forth in Section 14.16.1940.

they are collected shall post to said tax roll the total amount of the benefit assessment levied and to be collected for said year on each lot or parcel of property within the maintenance district as set forth in said report. The amount so posted shall appear as a separate item on the tax bill. (Prior code § 2600.196.14; Ord. 19651.)

(Prior code § 2600.196.11; Ords. 19651, 20145.)

If the city council finds that protests against the payment of costs of maintenance and operation are made by the owners of more than one-half of the area of the property in the proposed maintenance district, no further proceedings shall be taken for a period of six months from the date of the decision of the city council on the hearing, unless the protests are overruled by a affirmative vote of four-fifths of the members of the city council. The city council may adjourn the hearing from time to time.

(Prior code § 2600.196.12; Ord. 19651.)

At the initial hearing or at the subsequent hearing as herein provided or at any meeting to which either shall have been adjourned, or at any meeting of the city council subsequent to the full hearing of said matter, the city council may finally adopt the district, a formula or formulae for the apportionment of benefits in said annual assessment district, and determine whether to reserve the right to elect to proceed each year by negotiated or bid contract or contracts or combination thereof, rather than bid contract or contracts only, and if such reservation is made, exercise its election for a bid contract or contracts or combination for the first year, at the time the budget and assessment is approved for the said first year. For each year thereafter such election shall be made at the time the budget and assessment is approved for the year in question.

(Prior code § 2600.196.13; Ords. 19651, 20145.)

The officer designated by law to extend ad valorem property taxes upon the tax roll on which

The special benefit assessments shall be collected upon the last secured tax roll upon which said ad valorem property taxes are collected. They shall be in addition to all of said ad valorem property taxes, and shall be collected together with, and not separate therefrom, and enforced in the same manner and by the same persons and at the same time and with the same penalties and interest as are said ad valorem property taxes. All laws applicable to the collection and enforcement of said ad valorem property taxes shall be applicable to said special benefit assessment levy, and the assessed lot or parcel of property, if sold for taxes, shall be subject to redemption in the same manner as such real property is redeemed from the sale for ad valorem property taxes, and if not redeemed, shall in like manner pass to the purchaser. (Prior code § 2600.196.15; Ord. 19651.)

If any property within the maintenance district is erroneously omitted in any such report, said property shall be assessed for the omitted amount in the next year after such omission is discovered. (Prior code § 2600.196.16; Ord. 19651.)

The provisions of Sections 14.16.1890 through 14.16.2050 shall be applicable to maintenance districts formed before the effective date hereof, regardless of the law pursuant to which said maintenance districts were formed, if all of the owners of all of the lots or parcels of property subject to benefit assessment to pay said costs of maintenance and operation request, in writing, that the alternative method for the levy of the benefit assessment as

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provided in Sections 14.16.1890 through 14.16.2050 hereof shall apply and/or if the city council wishes, that, as provided in Sections 14.16.1890 through 14.16.2050 hereof, the reservation of rights to elect whether to proceed either by bid or negotiated contract or contracts or combination rather than by bid contract or contracts only shall apply. (Prior code § 2600.197; Ords. 19651, 20145.)

Alternatively, the city council may, by separate resolution, declare its intention to order that the method for the levy of the benefit assessment as herein provided and/or the intention to reserve rights (if the city council wishes to reserve such rights) to elect whether to proceed either by bid or negotiated contract or contracts or combination rather than by bid only, such determination and election to be made for each year at the time the budget and assessment is approved for the year in question, be made applicable to a maintenance district formed prior to the effective date hereof.

rather than by bid only, such determination and election to be made for each year at the time the budget and assessment is approved for the year in question. Said resolution shall instruct the director of public works to annually prepare a budget in accord with Section 14.16.1920 and Section 14.16.1930 above.

(Prior code § 2600.197.2; Ords. 19651, 20145.)

The city clerk shall receive the budget and place the matter on the agenda for a hearing by the city council. A notice of hearing shall be published once in a newspaper of general circulation in the city; shall be mailed, postage prepaid, to all owners of property subject to the assessment and shall be posted on or near the council chamber door or any bulletin board in or adjacent to the City Hall. Said mailing, publication and posting shall be completed not less than ten days prior to such hearing. (Prior code § 2600.197.3; Ord. 19651.)

(Prior code § 2600.197.1; Ords. 19651, 20145.)

The resolution of intention to apply the alternative method for the levy of the benefit assessment and/or the intention to reserve rights (if the city council wishes to reserve such rights) to elect whether to proceed either by bid or negotiated contract or contracts or combination rather than by bid only, such determination and election to be made for each year at the time the budget and assessment is approved for the year in question as provided in Sections 14.16.1890 through 14.16.2050 hereof, declared pursuant to Section 14.16.2070, shall contain a statement of the formula or formulae upon and by which annual assessment levies for the payment of said costs and expenses will be apportioned according to benefits among the several lots or parcels of property within said maintenance district and/or a statement of the intention to reserve rights (if the city council wishes to reserve such rights) to elect whether to proceed either by bid or negotiated contract or contracts or combination

The form of notice to be published and posted shall be substantially as follows:

NOTICE OF HEARING ON _________ MAINTENANCE DISTRICT

NOTICE IS HEREBY GIVEN that the director of public works has caused to be prepared and filed with the city clerk a report, in writing, which provides the basis for the benefit assessment for the following type(s) of maintenance and operation _________ to be borne by all lots or parcels of property within the existing district, or proposed maintenance District No. _________, more particularly described in Exhibit A hereto attached and by reference incorporated herein. Said report sets forth the amounts to be provided in the budget for maintenance and operation, a description of each lot or parcel of property in the maintenance district, by a description sufficient to identify the same, and the amount of assessment to be levied for the

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fiscal year 19________ through 19________ against each lot or parcel of property. Said report shall be open to public inspection.

Any interested owner objecting to (only items with X are subject to objection at this hearing):

• establishment of the district;

• boundaries of the district;

• fairness of the benefit formula or for-

• mulae;

  • zones of benefit;

• the amount of the assessment on any lot or parcel of property owned by him)her:

• if applicable, reservation by city of right to elect whether to proceed each year by either negotiated or bid contract or contracts or combination of both instead of bid contract or contracts only;

may file with the city clerk at or before the hour fixed for hearing a protest, in writing, signed by him/her, describing the lot or parcel of property so that it may be identified, and stating the grounds of his/her protest, and may appear at said hearing and be heard in regard thereto.

Said report will be heard by the council at its meeting to be held on the _________ day of _, 19, at the hour of _________ o'clock _________.m. in the regular meeting place of said council, council chambers, City Hall, San José, California, at which time said council will examine said report and hear protests.

If the city council intends to reserve the right to elect whether to award contract or contracts for maintenance and operation of the public improvements of a local nature, the costs of which are to be assessed either partly or wholly upon the district each year by either negotiated or bid contract or contracts or combination of both instead of bid contract only, such determination to and election to be made for each year at the time the budget and assessment is approved for the year in question, the notice shall so indicate.

(Prior code § 2600.197.4; Ords. 19651, 20145.)

The form of mailed notice shall be substantially as hereinabove set forth, but shall also contain a description of the lot or parcel of property covered by the notice sufficient to identify it, and the amount of the proposed assessment against said lot or parcel of property as set forth in the report. (Prior code § 2600.197.5; Ord. 19651.)

Affidavits or certificates of publication, posting and mailing shall be made and filed with the city clerk.

(Prior code § 2600.197.6; Ord. 19651.)

Owners may protest or object as provided in Section 14.16.1980 with regard to use of the alternative method for the levy of the benefit assessment as provided in Sections 14.16.1890 through 14.16.2050 hereof as well as the fairness of the formula or formulae and the amount of the assessment, as well as the reservation of rights (if proposed to be reserved) to elect whether to proceed each year by either negotiated or bid contract or contracts or combination of both instead of bid contract only, such determination and election to be made for each year at the time the budget and assessment is approved for the year in question. The council may take and receive oral and documentary evidence pertaining to the matters contained in the report.

(Prior code § 2600.197.7; Ords. 19651, 20145.)

If the city council finds that protests thereto are made by the owners of more than one-half of the area of the property in said maintenance district to the use of the alternative method, and/or the reservation of rights (if proposed to be reserved by the city council) to elect whether to proceed each year by either negotiated or bid contract or contracts or combination of both instead of bid contract only, such determination and election to be made for each year at the time the budget and

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assessment is approved for the year in question, no further proceedings using the alternative method or employing reservation of rights shall be taken for a period of six months from the date of the decision of the city council on the hearing, unless the protests are overruled by an affirmative vote of fourfifths of the members of the city council. The city council may adjourn the hearing from time to time. (Prior code § 2600.197.8; Ords. 19651, 20145.)

In the event that the city council proposes to reserve rights to elect whether to proceed each year by negotiated or bid contract or contracts or combination of both instead of bid contract only in a maintenance district formed prior to the effective date of this Part 16 to which the levy of a benefit district has previously been made applicable by Sections 14.16.1870 through 14.16.1880 or Sections 14.16.1890 through 14.16.2050 hereof, the resolution of intention, the notice mentioned in sections 14.16.1930 and 14.16.1940 shall refer only to the reservation of rights, and the protest shall be limited to such reservation of rights, and the previously approved alternative method of benefit assessment shall in no way be affected by the proposed reservation of rights or protest thereto. (Ord. 20145.)

The procedures under Sections 14.16.1890 through 14.16.2050 hereof relating to the alternative method for the levy of benefit assessment and reservation of rights apply equally to Sections 14.16.2060 through 14.16.2150 except as to matters specifically otherwise provided for herein.

(Prior code § 2600.197.9; Ords. 19651, 20145.)

Part 17

MAINTENANCE AND REPAIR OF SIDEWALKS

Sections:

• 14.16.2220 Work performance - Superintendent of streets authority.

• 14.16.2230 Advancement of costs of work.

• 14.16.2240 Notice of cost and hearing by council.

• 14.16.2250 Conference with superintendent of streets.

• 14.16.2270 Part 17 constitutes alternative procedure.

• A. Anything in this chapter to the contrary notwithstanding, the maintenance and repair of sidewalk areas and the making, confirming and collecting of assessments for the cost and expenses of said maintenance and repair may be done and the proceedings therefor may be had and taken in accordance with this part and the procedure therefor provided in Chapter 22 of Division 7, Part 3, of the Streets and Highways Code of the state as the same is now in effect or may hereafter be amended. In the event of any conflict between the provisions of said Chapter 22 of Division 7, Part 3, of the Streets and Highways Code of the state and this Part 17, the provisions of Part 17 shall control.

• B. The owners of lots or portions of lots adjacent to or fronting on any portion of a sidewalk area between the property line of the lots and the street line, including parking strips, sidewalks, curbs and gutters, and persons in possession of such lots by virtue of any permit or right shall repair and maintain such sidewalk areas and pay the costs and expenses therefor, including a charge for the City of San José's costs of inspection and administration whenever the city awards a contract for such maintenance and repair and including the costs of collection of assessments for the costs of maintenance and repair under subsection A. of this

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section or handling of any lien placed on the property due to failure of the property owner to promptly pay such assessments.

• C. For the purposes of this part, maintenance and repair of sidewalk area shall include, but not be limited to, maintenance and repair of surfaces including grinding, removal and replacement of sidewalks, repair and maintenance of curb and gutters, removal and filling or replacement of parking strips, removal of weeds and/or debris, supervision and maintenance of signs allowed pursuant to Section 23.04.340 and Section 23.04.830, tree root pruning and installing root barriers, trimming of shrubs and/or ground cover and trimming shrubs within the area between the property line of the adjacent property and the street pavement line, including parking strips and curbs, so that the sidewalk area will remain in a condition that is not dangerous to property or to persons using the sidewalk in a reasonable manner and will be in a condition which will not interfere with the public convenience in the use of said sidewalk area.

• D. Notwithstanding the provisions of Section 5614 of the state Streets and Highways Code, the director of streets and parks may in his or her discretion, and for sufficient cause, extend the period within which required maintenance and repair of sidewalk areas must commence by a period of not to exceed ninety days from the time the notice referred to in said Section 5614 is given.

(Prior code § 2600.180; 14.16.1610; Ords. 20914, 21367, 23389, 23734, 24757.)

The property owner required by Section 14.16.2200 to maintain and repair the sidewalk area shall owe a duty to members of the public to keep and maintain the sidewalk area in a safe and nondangerous condition. If, as a result of the failure of any property owner to maintain the sidewalk area in a nondangerous condition as required by Section 14.16.2200, any person suffers injury or

damage to person or property, the property owner shall be liable to such person for the resulting damages or injury. (Ord. 23389.)

For the purposes of this chapter only, the superintendent of streets of the City of San José or his or her authorized representative shall be deemed to mean the director of streets and traffic as to any activities conducted by that department pursuant to this part or the director of public works as to any activities conducted by that department pursuant to this part.

(Ords. 20914, 23734.)

In performing the work of repairing or constructing any sidewalk as provided in Chapter 22 of Division 7, Part 3 of the Streets and Highways Code of the state, the superintendent of streets may, if the cost of said work does not exceed five thousand dollars:

• A. Procure at least three sealed bids to perform said work, from contractors licensed to undertake the same, and let said work to the lowest responsible bidder at the prices named in his bid; or

• B. Order a city work crew to perform said work.

(Ord. 20914.)

The superintendent of streets is authorized and empowered to and may advance from the special assessment revolving fund, any sum or sums necessary to pay the cost of the work of repairing or constructing any sidewalk by a contractor awarded a contract to perform said work by the superintendent of streets under the procedures set forth in this part, and may reimburse said special assessment revolving fund for the sum or sums so advanced from any assessment thereafter levied and collected.

(Ord. 20914.)

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PUBLIC WORKS AND IMPROVEMENTS

§ 14.20.010

Upon the completion of the repairs or construction, the superintendent of streets shall cause notice of the cost of the repairs or construction to be given in the manner specified in Chapter 22 (Repair) of Division 7, Part 3, of the Streets and Highways Code of the state of California, as the same is now in effect or may hereafter be amended, for the giving of notice to repair or construct. The notice shall specify the day, hour and place when the city council will hear and pass on the report of the costs of the repair, together with any written objections or protests which may be raised by any property owner liable to be assessed for the cost of such repair or construction and any other interested persons. The notice shall also describe the procedure to be followed for such written objections or protests. In no case shall the hearing provided for in this section be sooner than ten days after giving of notice.

(Ord. 20914.)

The superintendent of streets may include with the notice of cost and hearing, as specified in Section 14.16.2240 hereinabove, additional notice of a conference with the superintendent of streets. The conference which may be scheduled by the superintendent upon receipt of the written objection or protest, specified in Section 14.16.2240, shall be conducted prior to the council hearing for the purpose of discussion between the property owner and the superintendent of streets of the costs of repair. Upon the conclusion of the conference, the superintendent shall note his conclusions in the report together with any recommendations for adjustment of the costs of repair.

to the hearing, from property owners liable to be assessed for the work of making such repair in accord with the procedure provided in Chapter 22 of Division 7, Part 3 of the Streets and Highways Code.

(Ord. 20914.)

This Part 17 constitutes a separate and alternative procedure for performing the work specified herein, and no other provision of this chapter shall apply to proceedings instituted hereunder. (Ord. 20914.)