Chapter 14.21

SECOND ALTERNATIVE PUBLIC IMPROVEMENT PROCEDURE

Sections:

It is declared to be the policy of the city to permit the financing of the acquisition, construction, establishment, expansion, improvement, installation and renovation of public works within the city, and with the consent of the legislative bodies thereof, within neighboring jurisdictions, pursuant to the procedures set forth in this chapter as well as by any other method permitted by law. This chapter is enacted pursuant to the powers reserved to the city under Sections 3 and 5 of Article XI of the Constitution of the state of California and Section 200 of the Charter of the city. (Ord. 23291.)

• 14.21.030 Improvement district procedures - Municipal Improvement Act of 1913 and Improvement Bond Act of 1915 and related acts adopted by reference.

• 14.21.040 Existing contracts for construction of improvements - Supplement to Municipal Improvement Act of 1913.

• 14.21.050 Municipal Improvement Act of 1913 - Amendments and deletions.

• 14.21.060 Improvement Bond Act of 1915 - Amendments and deletions.

• 14.21.070 Tax exempt status.

• 14.21.080 Integrated Financing District Act.

• 14.21.090 Scope and construction of chapter provisions.

This chapter shall be known as the "City of San José Second Alternative Public Improvement Procedure Act."

(Ord. 23291.)

Whenever the public interest and necessity so require, the council of the city may, acting under this chapter, by ordinance or ordinances or resolution or resolutions, establish improvement districts, levy assessments therein, issue bonds or other evidences of indebtedness, and take any and all other actions authorized hereby to provide funds to finance the acquisition, construction, establishment, improvement, installation, or renovation of any

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improvements of benefit to the improvement districts so established. The procedures for such undertakings shall (except as in this chapter otherwise expressly provided) be the procedures set forth in the Municipal Improvement Act of 1913 (Division 12 of the California Streets and Highways Code, commencing with Section 10000) and in the Improvement Bond Act of 1915 (Division 10 of the California Streets and Highways Code, commencing with Section 8500) and all other statutes of the state of California referred to therein or which refer to said Municipal Improvement Act of 1913 or said Improvement Bond Act of 1915, as the same are in effect on the date of introduction of the ordinance codified in this chapter and as such statutes may hereafter be amended, except that any provision of the Streets and Highways Code of the state of California amended, revised or deleted pursuant to Chapter 14.21.050 and 14.21.060 hereof shall only be further amended, revised or deleted by amendment, revision or deletion to this chapter made by the council of the city. All of the provisions of said statutes are incorporated in this chapter by reference and made a part hereof. (Ord. 23291.)

Notwithstanding any other provision of law, whenever the public interest and necessity so require, and upon such terms and conditions as the council shall determine, the city, in the case of an acquisition of improvements in the process of being constructed at or after the time of adoption of the resolution of intention, from the proceeds of the assessments levied in the district or from the proceeds of bonds, (i) may assume the contract obligations of any person for the construction of said improvements and may, reimburse the contracting party for payments made on the contract prior to the assumption thereof by the city and thereafter make payments on the contract, or (ii) may, without assuming the contract obligations, reimburse the contracting party for payments theretofore made

on the contract and thereafter make periodic payments on the contract. No assumption of any contract shall be effective until the written consent of the parties to the contract have been delivered to the city, and no assumption of any contract shall be made and no reimbursements or payments shall be made until after the levy of assessments under this chapter and the expiration of any applicable statute of limitations to challenge said assessments. (Ord. 23291.)

Certain provisions of the California Streets and Highways Code, as incorporated in this chapter, are revised or deleted, as follows:

• A. Section 10003 of the Streets and Highways Code is amended to read as follows: Section 10003. Municipality; city "Municipality" and "city" mean the City of San José, California.

• B. Section 10004 of the Streets and Highways Code is amended to read as follows: Section 10004. Legislative body "Legislative body" means the council of the city.

• C. Section 10010 of the Streets and Highways Code is amended to read as follows: Section 10010. Acquisition "Acquisition," or any of its variants, means and includes one or more of the following:

  • (a) All or any portion of any works, improvements, appliances or facilities authorized to be made, constructed or acquired under this division, whether or not in existence and installed in place on or before the date of adoption of the resolution of intention for the acquisition thereof, any use or capacity rights in any of the foregoing and any works, improvements, appliances or facilities acquired or installed pursuant to Sections 10109 to 10111, inclusive;

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• (b) Electric current, gas or other illuminating agent for power or lighting service;

• (c) Any real property, rights-of-way, easements or interests in real property, acquired or to be acquired by gift, purchase or eminent domain, and which are necessary or convenient in connection with the construction or operation of any work or improvement authorized to be acquired or to be made or constructed under this division, excepting therefrom any such real property, rights-of-way, easements or interests in real property shown upon any final map filed with or submitted to the legislative body for acceptance and approval to the legislative body for acceptance and approval under the provisions of the Subdivision Map act (commencing at Section 11500, Business and Professions Code) and offered for dedication to public use by said map or by any separate offer of dedication theretofore or thereafter made;

• (d) The payment in full of all amounts necessary to eliminate any fixed special assessment liens previously imposed upon any assessment parcel included in the new assessment district.

  • The cost of such payment shall be included in the new assessment on such parcel. This subdivision shall be applicable only in cases where such acquisition is incidental to other acquisitions or improvements.

• D. Section 10101 of the Streets and Highways Code is amended to read as follows: Section 10101. Acquisitions; works or appliances; plants, lands and rights-ofway; electricity and gas

• (a) The legislative body may acquire any works or appliances already installed, or in the process of being installed, in the streets, of the municipality which are necessary or convenient to supply the municipality or its inhabitants with water, electricity, gas, or other means of heat, illumination, power, or any other public service, and any plants, lands, and rights-of-way, whether located within or without the municipality, which are necessary or convenient for their use and operation, or may acquire the use of any such works, appliances, and other property. The legislative body may also acquire electric current, gas, or other illuminating agent for power or lighting service pursuant to this division.

• E. Section 10102 of the Streets and Highways Code is amended to read as follows. Section 10102. Right to acquire or in stall works and improvements; acquisition of land, easements etc. Whenever the public interest or convenience requires the legislative body of any municipality may pay fees or expenses or acquire or install all or any portion of any or all of the works and improvements mentioned in the Improvement Act of 1911 (Division 7 (commencing with Section 5000)), the Vehicle Parking District Law of 1943 (Part 1 (commencing with Section 315000) of Division 18), the Parking District Law of 1951 (Part 4 (commencing with Section 35100) of Division 18), the Park and Playground Act of 1909 (Chapter 7 (commencing with Section 38000) of Part 2 of Division 3 of Title 4 of the Government Code), or other works and improvements of a local nature, and acquire by gift, purchase, or eminent domain proceed-

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ings land, rights-of-way, and easements necessary for the works and improvements.

• F. Section 10110 of the Streets and Highways Code is amended to read as follows: Section 10110. Agreement with public agency, regulated public utility or mutual water company having charge of works or appliances; contents Before the ordering of the work, acquisitions, or improvements which are to be owned, managed, or controlled by any other public agency, regulated public utility, or mutual water company, the legislative body shall enter into an agreement with the public agency, public utility, or mutual water company which has, or may have, charge of the works, appliances, or improvements. Among other things, the agreement may provide for any or all of the following:

  • (a) For the supplying by the public agency, public utility, or mutual water company of plans and specifications in accordance with Chapter 5 commencing with Section 5170) of Part 3 of Division 7.

  • (b) For the performance of work or service by the public agency, public utility, or mutual water agency, and the payment to the public agency, public utility, or mutual water company out of the improvement fund for the work or service. Any agreement providing for the performance of work by a public utility or mutual water company may provide for the posting of labor, material, and performance bonds in accordance with Chapter 6 (commencing with Section 10500).

public utility, or mutual water agency, and the payment to the public agency, public utility, or mutual water company out of the improvement fund for the work or service. Any agreement providing for the performance of work by a public utility or mutual water company may provide for the posting of labor, material, and performance bonds in accordance with Chapter 6 (commencing with Section 10500).

• (c) For the acquisition by the legislative body of works or appliances already installed or being installed

or to be installed and for the conveyance of these works or appliances to the public agency, public utility, or mutual water company. The owner of these works or appliances may be a party to the agreement.

(d) That the agreement shall become effective after proceedings have been taken pursuant to this division and the funds are available to carry out all the terms thereof. Whenever it is proposed to annex to the public agency the territory in which the installation or acquisition is contemplated, proceedings may be taken up to and including the confirmation of the assessment as provided for in Section 10312 prior to the commencement of the annexation proceedings. If the annexation is successful, the assessment shall be recorded and other proceedings taken that may enable the parties to comply with terms of the agreement. If the annexation proceedings fail, further proceedings under the resolution of intention are barred.

Any agreement entered into pursuant to this section to the extent that utilities have been financed by special assessments, shall provide that no main extension refund agreement shall be entered into with a developer.

• G. Section 10112 of the Streets and Highways Code is amended to read as follows: Section 10112. Preliminary steps as improvements

In the case of any proposal for the construction or acquisition of improvements pursuant to this division, the preliminary steps for the proposal, including, but not limited to, environmental impact reports,

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feasibility studies, engineering plans, cost estimates, legal expenses, the cost of title searching, description writing, salaries of right-of-way agent, appraisal fees, partial reconveyance fees, surveys, sketches, maps, expenses incident to property acquisition, costs of obtaining necessary governmental permits and elections may themselves be deemed, in the discretion of the legislative body, to be improvements within the meaning of this division.

• H. Paragraph (b) of Section 10204 of the Streets and Highways Code is amended to read as follows:

(b) A general description of works or appliances already installed or being installed or to be installed and any other property necessary or convenient for the operation of the improvement, if the works, appliances, or property are to be acquired as part of the improvement. In the case of the acquisition of improvements being or to be installed pursuant to contracts executed by any developer or landowner, a schedule showing, as of the date of adoption of the resolution of intention, the total amount paid on such contracts, the estimated schedule of payments remaining under the contracts, and the estimated completion date for each phase of the construction of the improvements to be acquired.

• I. Section 10301 of the Streets and Highways Code is amended to read as follows: Section 10301. Hearing of protests; time and place; notice

After passing on the report, the legislative body by resolution shall appoint a time and place for hearing protests to the proposed improvement and shall direct the clerk of the legislative body to give

notice of the hearing as provided in this chapter, and shall designate a daily or weekly newspaper published and circulated in the city in which the notice shall be published. The hearing shall be held not less than thirty days after the passage of the resolution. Notwithstanding the provisions for notice of hearing and a hearing on the report described in this Section 10204, the legislative body may approve the report and levy the assessment without notice or hearing if the report is approved in writing by all of the owners of all of the land proposed to be assessed.

• J. Section 10602 of the Streets and Highways Code is amended to read as follows:

Section 10602. Issue and sale; proceeds; interest

The bonds may be issued and sold as the legislative body directs. The proceeds of the bonds shall be deposited in the fund specified in Section 10424. The notice in the resolution of intention shall recite a maximum rate of interest to be paid on the indebtedness, to be determined by the legislative body, which rate shall not be exceeded in the issuance of the bonds.

• K. Sections 10009, 10104 and 10700 - 10706 of the California Streets and Highways Code are not incorporated in this chapter and shall not be applicable to the doing of work, the acquisition of improvements, and the issuance of bonds pursuant to this chapter.

• (Ord. 23291.)

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Certain provisions of the California Streets and Highways Code, as incorporated in this chapter, are revised or deleted, as follows:

• A. Section 8503 of the Streets and Highways Code is amended to read as follows: Section 8503. City

  • "City" means the City of San José, California.

• B. Section 8504 of the Streets and Highways Code is amended to read as follows: Section 8504. Legislative body

  • "Legislative body" means the council of the city.

• C. Section 8573 of the Streets and Highways Code is amended to read as follows: Section 8573. Form of bond declaration The bond declaration in the resolution of intention, assessment, and notice of recording the assessment may be substantially in the following form:

  • "Notice is hereby given that serial bonds to represent unpaid assessments, and to bear interest at the rate of not to exceed _________ percent per annum, will be issued hereunder in the manner provided by the City of San José Second Alternative Improvement Procedure Act, which incorporates by reference certain provisions of Division 10 of the Streets and Highways Code, the Improvement Bond Act of 1915, and the last installment of such bonds shall mature _________ years from the second day of September next succeeding 12 months from their date."

• D. Section 8650 of the Streets and Highways Code is amended to read as follows: Section 8650. Issuance in series; principal and interest payments; interest rate Except as the legislative body shall provide otherwise under Section 8650.1, the bonds shall be issued in series and an

even annual proportion of the aggregate principal sum thereof shall be payable on the second day of September every year succeeding the first twelve months after their date, until the whole is paid. The bonds shall bear interest at a rate not in excess of the maximum rate permitted by law from the thirty-first day after recording the assessment, or from their date if the work was done under the Municipal Improvement Act of 1913, on all sums unpaid, until the whole of the principal sum and interest are paid.

Interest shall be payable semiannually on the second day of March and September, respectively, of each year. The first payment of interest shall become due on the interest payment date which is six months before the maturity of the first series of bonds, but, if any portion of the interest is funded, the legislative body may specify that the first payment of interest shall become due on any earlier interest payment date following the date of the bonds. Interest shall be payable to the registered holders of the bonds as their names and addresses appeared on the records of the issuing agency or its registration agent on the fifteen day of the month preceding the interest payment date.

• E. Section 8651.5. of the Streets and Highways Code is amended to read as follows: Section 8651.5. Redemption; redemption premium

Each bond, or any portion of the bond in a fixed amount or any integral multiple of the fixed amount, shall be subject to redemption in advance of its maturity on any interest payment date upon payment to the registered owner of the principal and accrued interest to the date of redemption together with a redemption pre-

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mium, if any, as determined by the legislative body, but not to exceed five percent of the principal. At or before issuance of the bonds, the legislative body may reduce the redemption premium to an amount equal to not less than zero percent of the principal.

F. Section 8652. Form. The bonds shall be substantially in the following form, subject to such changes thereto as the legislative body shall deem necessary or desirable:

United States of America State of California County of Santa Clara

REGISTERED Number

IMPROVEMENT BOND City of San José

SERIES NO.

INTEREST MATURITY BOND CUSIP RATE DATE DATE NUMBER

PRINCIPAL AMOUNT:

REGISTERED OWNER:

Under any by virtue of its Charter, Chapter 14.21 of its Municipal Code and, to the extend incorporated in said chapter, the Improvement Bond Act of 1915, Division 10 (commencing with Section 8500) of the Streets and Highways Code (collectively, the "Act"), the City of San José, county of Santa Clara, state of California (the "city"), will, out of the redemption fund for the payment of the bonds issued upon the unpaid portion of assessments made for the acquisition, work, and improvements more fully described in proceedings taken pursuant to Resolution of Intention No. _________, adopted by the council of the city on the

_________ day of , 19 (as later amended), pay to the registered owner set forth above or registered assigns, on the maturity date state above, the principal sum set forth above, in lawful money of the United States of America and in lawful money of the United States of America and in like manner will pay interest payment date next preceding the date on which this bond is authenticated, unless this bond is authenticated and registered as of an interest payment date, in which event it shall bear interest from such interest payment date, or unless this bond is authenticated and registered prior to _, 19 (first interest payment date), in which event it shall bear interest from its date, until payment of such principal sum shall have been discharged, at the rate per annum stated above, payable semiannually on March 2 and September 2 in each year commencing on _, 19. Both the principal hereof and redemption premium hereon are payable at _________ as transfer agent, registrar, and paying agent, in _________, California, and the interest hereon is payable by check or draft mailed to the owner hereof at the owner's address as it appears on the records of the _________ (issuing agency or registration agent) or at such address as may have been filed with the _________ (issuing agency or registration agent) for that purpose, as of the 15th day of the month immediately preceding each interest payment date.

California, and the interest hereon is payable by check or draft mailed to the owner hereof at the owner's address as it appears on the records of the _________ (issuing agency or registration agent) or at such address as may have been filed with the _________ (issuing agency or registration agent) for that purpose, as of the 15th day of the month immediately preceding each interest payment date.

This bond will continue to bear interest after maturity at the rate above stated; provided, it is presented at maturity and payment thereof is refused upon the sole

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ground that there are not sufficient moneys in said redemption fund with which to pay same. If it is not presented at maturity, interest thereon will run until maturity.

This bond shall not be entitled to any benefit under the Act or the resolution authorizing issuance of bonds (the "resolution of issuance"), or become valid or obligatory for any purpose, until the certificate of authentication and registration hereon endorsed shall have been dated and signed by the _________ (issuing agency or registration agent). IN WITNESS WHEREOF, said City of San José has caused this bond to be signed in facsimile by the treasurer of said city and by its clerk, and has caused its corporate seal to be reproduced in facsimile hereon all as of the _________ day of _, 19, CITY OF SAN JOSÉ

Clerk Treasurer

[SEAL]

Certificate of Authentication and Registration This is one of the bonds described in the within mentioned resolution of issuance, which has been authenticated and registered on

By

ADDITIONAL PROVISIONS OF THE BOND

This bond is one of several annual series of bonds of like date, tenor, and effect, but differing in amounts, maturities, and interest rates, issued by the city under the Act and the resolution of issuance, for

the purpose of providing means for paying for the improvements described in the proceedings, and is secured by the moneys in said redemption fund and by the unpaid portion of said assessments made for the payment of said improvements, and, including principal and interest, is payable exclusively out of said fund.

This bond is transferable by the registered owner hereof, in person or by the owner's attorney duly authorized in writing, at the office of _________ (issuing agency or its registration agent), subject to the terms and conditions provided in the resolution of issuance, including the payment of certain charges, if any, upon surrender and cancellation of this bond. Upon such transfer, a new registered bond or bonds, of any authorized denomination or denominations, of the same maturity, for the same aggregate principal amount, will be issued to the transferee in exchange therefor.

Bonds shall be registered only in the name of an individual (including joint owners), a corporation, a partnership, or a trust. Neither the issuing agency nor the registration agent shall be required to make such exchange or registration of transfer of bonds after the fifteen day of the month immediately preceding any interest payment date.

The issuing agency and the registration agent may treat the owner hereof as the absolute owner for all purposes, and the issuing agency and the registration agent shall not be affected by any notice to the contrary.

This bond or any portion of it in the amount of five thousand dollars, or any integral multiple thereof, may be redeemed and paid in advance of maturity

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upon the second day of March or September in any year by giving at least thirty days' notice by registered or certified mail or by personal service to the registered owner hereof at the owner's address as it appears on the registration books of the _________ (issuing agency or registration agent) by paying principal and accrued interest together with a premium equal to _________ percent of the principal.

This bond is not subject to refunding pursuant to the procedures of Division 11 (commencing with Section 9000) or Division 11.5 (commencing with Section 9500) of the Streets and Highways Code prior to _________, _________.

I hereby certify that the following is a correct copy of the signed legal opinion of

.

City Clerk

• G. Section 8682 of the Streets and Highways Code is amended to read as follows: Section 8682. Auditor's record of unpaid assessment; collection costs

A copy of the order of the legislative body determining the assessments remaining unpaid and upon the security of which bonds are issued shall be filed in the office of the auditor. The auditor shall keep a record in his or her office showing the several installments of principal and interest on the assessments which are to be collected in each year during the term of the bonds. The auditor shall annually enter in his or her assessment roll on which taxes will next become due, opposite each lot or parcel of land affected in a space marked "public improvement assessment," or by other suitable designation, the several installments of the as-

sessment coming due during the fiscal year covered by the assessment roll, including in each case the interest due on the total unpaid assessments. The auditor shall also add a maximum of five percent of the amount of the installments and of the interest so entered, not to exceed the city treasurer's estimate of the expenses of collection. The expenses of collection shall include necessary administrative expenses of the city incurred in providing the auditor with current information regarding the ownership or division of the affected lots or parcels of land to ensure the proper entry by the auditor in his or her assessment roll of the several installments of the assessment coming due during the fiscal year covered by the assessment roll and the timely collection of the installments. The percentages, and the amount represented by the installments, when collected shall belong to the city and shall cover the expenses and compensation of the city treasurer incurred in the collection of the assessments, and of the interest and penalties added on to the assessments. No other percentage or amount shall be claimed by the legislative body for the collections.

ion of the installments. The percentages, and the amount represented by the installments, when collected shall belong to the city and shall cover the expenses and compensation of the city treasurer incurred in the collection of the assessments, and of the interest and penalties added on to the assessments. No other percentage or amount shall be claimed by the legislative body for the collections.

• H. Section 8683 of the Streets and Highways Code is amended to read as follows: Section 8683. County collection for cities; report; expenses

If collections of assessments are made by county officials, the city shall request in writing the county auditor to render, within ninety days after each installment becomes delinquent, to the city a detailed report showing the amounts of the installments, interest, penalties, and percentages so collected on each proceeding

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and from what property collected, identifying and properties which are delinquent and the amount and length of time in arrears, and also giving a statement of the percentages retained for the expenses of making such collections.

• I. Section 8775 of the Streets and Highways Code is amended to read as follows: Section 8775. Temporary redemption fund deficiency; priority for payment Unless the legislative body shall by resolution adopt an alternative procedure, if a deficiency occurs in the redemption fund with which to pay past due interest, or bonds or interest which will become due during the current tax collecting year, but it does not appear to the treasurer that there will be an ultimate loss to the bondholders, he or she shall pay matured bonds as presented and make interest payments when due as long as there are available funds in the redemption fund, in the following order of priority:

  1. All matured interest payments shall be made before the principal of any bonds is paid.

  2. Interest on bonds of earlier maturity shall be paid before interest on bonds of later maturity.

  3. Within a single maturity, interest on lower-numbered bonds shall be paid before interest on higher-numbered bonds.

  4. The principal of bonds shall be paid in the order in which the bonds are presented for payment. Any bond which is presented but not paid shall be assigned a serial number according to the order of presentment and shall be returned to the bondholder.

  Bonds not paid when presented, and interest payments not paid when due, shall bear interest at the rate stated in the bonds, without compounding, until paid.

  • J. Sections 8689, 88014 and 8809 of the Streets and Highways Code are not incorporated in this chapter and shall not be applicable to the doing of work, the acquisition of improvements and the issuance of bonds pursuant to this chapter.

• (Ord. 23291.)

To the extent provided by the Constitution and statutes of the state, the interest on the bonds shall be exempt from taxation in California. (Ord. 23291.)

This chapter is a "financing act" within the meaning assigned to such term by the Integrated Financing District Act, Chapter 1.5 of Part 1 of Division 2 of Title 5 of the California Government Code, commencing with Section 53175. (Ord. 23291.)

The powers conferred upon the council by the provisions of this chapter are in addition to and supplemental to the powers conferred by the Charter or any other ordinance or by law. The improvements designated in the Charter and in this chapter may be constructed, reconstructed, acquired, improved, bettered and extended with moneys advanced for that purpose in accordance with the provisions of this chapter, notwithstanding any other law and without regard to the requirements, restrictions, limitations or provisions contained in any other law. (Ord. 23291.)

The provisions of Article 29 of Chapter 1 of Part 3 of Division 2 of the Public Contract Code of the State of California, commencing with Section 20480, be and they are incorporated herein, except

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that the council of the city may determine, in its discretion, that competitive bidding for construction of all or any part of the work shall not apply for any of the types of work excluded from competitive bidding by the provisions of Section 1217 of the Charter of the city.

(Ord. 23291.)

Whenever reference is made in any of the statutes of the state incorporated herein to the issuance of bonds pursuant to a specified division of the Streets and Highways Code, such reference shall also be deemed to include this chapter in the issuance of bonds pursuant to the division referred to. (Ord. 23291.)

The validity of an assessment or supplementary assessment levied under this chapter shall not be contested in any action or proceeding unless the action or proceeding unless the action or proceeding is commenced within thirty days after the assessment is levied. Any appeal from a final judgment in such an action or proceeding shall be perfected within thirty days after the entry of judgment.

(Ord. 23291.)

This chapter shall be liberally construed in order to effectuate its purposes. No error, irregularity, informality, and no neglect or omission of any officer, in any procedure taken under this chapter, which does not directly affect the jurisdiction of the legislative body to order the work or improvement, shall void or invalidate such proceeding or any assessment for the cost of work done thereunder. The exclusive remedy any person affected or aggrieved thereby shall be by appeal to the legislative body in accordance with the provisions of this chapter.

(Ord. 23291.)

If any section, subsection, sentence, clause, or phrase of this chapter, or the application thereof to any person or circumstance, is for any reason held invalid, the validity of the remainder of the chapter, or the application of such provision to other persons or circumstances, shall not be affected thereby. The council of the city hereby declares that it would have passed this chapter, and each section, subsection, sentence, clause, or phrases, or the application thereof to any person or circumstance, be held invalid.

(Ord. 23291.)