San Jose Municipal Code Part 1 General Provisions

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

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 rights-of-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 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 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.)

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 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 improvement 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.)