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HomeMy WebLinkAboutRes 07-4A. 07-4B and 07-4C AD No. 2004-02 RESOLUTION NOS. 07 07-4A, 07-4B, and 07-4C CITY OF PALM DESERT STAFF REPORT REQUEST: CONSIDERATION OF THE FORMATION OF THE CITY OF PALM DESERT SECTION 29 ASSESSMENT DISTRICT (NO. 2004-02) SUBMITTED BY: DAVID YRIGOYEN, DIRECTOR OF REDEVELOPMENT/ HOUSING DATE: JANUARY 11, 2007 MEET G DATE / /f-07 CONTENTS: RESOLUTION NO. 07- 4 -_, MN'CONTINUED TO RESOLUTION NO. 07- 4A PASSED TO 2ND READING RESOLUTION NO. 07- 48 RESOLUTION NO. 07- 4c Recommendation: By Minute Motion, that the City Council: Adopt one of the following resolutions in connection with the proposed formation of the Section 29 Assessment District (No. 2004-02): A. In the case of a majority protest in connection with the Section 29 Assessment District, adopt Resolution No. 07- 4 , declaring the results of the tabulation of assessment ballots in connection with the Section 29 Assessment District and finding a majority protest exists. B. In the absence of a majority protest in connection with the Section 29 Assessment District, adopt the following resolutions: (i) Resolution No. 07- 4A , making certain findings in connection with proposed City of Palm Desert Section 29 Assessment District (No. 2004-02). (ii) Resolution No. 07- 4B , approving the Engineer's Report in connection with City of Palm Desert Section 29 Assessment District (No. 2004-02), confirming the assessments in connection with such district, ordering proposed acquisitions and improvements to be made, approving as to form and authorizing the execution of and delivery of certain agreements and taking certain other actions. G:\RDA\Maria Hunt\WPDATA\YRIGOYEN\STFRPTS\011107Section 29-Formation.DOC P6401-1033\938120v 1.doc Staff Report Consideration of the Formation of the City of Palm Desert Section 29 Assessment District (No. 2004-02) Page 2 of 4 January 11, 2006 (iii) Resolution No. 07- 4C , making certain designations in connection with City of Palm Desert Section 29 Assessment District (No. 2004-02). Discussion: The owners of certain property located within the Section 29 area of the City of Palm Desert have requested the City Council to initiate proceedings pursuant to the Municipal Improvement Act of 1913 to form an assessment district for the purpose of acquiring, constructing and installing certain public infrastructure improvements, including street, storm drain, sewer and water improvements. On November 16, 2006, the City Council adopted a resolution of intention to form the Section 29 Assessment District and to levy and collect assessments within the district. On November 16th, the City Council also adopted a resolution preliminarily approving the Engineer's Report prepared by the City's Assessment Engineer, setting a public hearing on January 11, 2007 and directing that a property owner balloting procedure be conducted in connection with the proposed formation of the Section 29 Assessment District. Such resolution also approved procedures for the completion, return and tabulation of assessment ballots, which are on file in the office of the City Clerk. The Engineer's Report, among other things, describes (i) the proposed acquisitions and improvements, (ii) the properties proposed to be subject to the assessment, (iii) the method of apportionment for calculating each parcel's proportional special benefits from the acquisitions and improvements; and the (iv) the proposed assessments. One of the proposed Section 29 Assessment District improvements is the acquisition by the City of an existing retention basin which currently serves property in Monterey 170 and the improvement and expansion of the basin so that it can also serve certain of the properties within the proposed Section 29 Assessment District as an alternative to the developers providing on-site drainage. The City Council is undertaking separate, concurrent proceedings to form a maintenance assessment district, City of Palm Desert Benefit Assessment District No. 1, (which includes properties in Monterey 170 and Section 29) for the purpose of levying annual maintenance assessments against the benefited properties to provide funding for the ongoing maintenance of the retention basin after it is acquired by the City. On January 11th, prior to the public hearing on the Section 29 Assessment District, the Council will be conducting a public hearing, tabulating assessment ballots and determining whether a majority protest exists against the levy of the annual maintenance assessment. In the event of a majority protest against the maintenance assessment, the City would not have assessment revenues as a source of funding for the ongoing maintenance of the retention basin. P6401-1033\938120v 1.doc 2 Staff Report Consideration of the Formation of the City of Palm Desert Section 29 Assessment District (No. 2004-02) Page 3 of 4 January 11, 2006 Formation of the Section 29 Assessment District is subject to the requirements of Proposition 218. In accordance with these requirements, the City mailed a notice of the January 11th public hearing, together with an assessment ballot, to the property owners within the proposed Section 29 Assessment District more than 45 days prior to the date of the hearing. At the hearing all interested persons must be given the opportunity to hear and be heard regarding protests and objections to the formation of the Section 29 Assessment District, the levy and collection of the proposed assessments, and related matters. Each ballot is weighted in accordance with the proposed assessment against the parcel covered by the ballot. In order to be counted, all ballots must be returned to the City prior to the close of the public input portion of the Section 29 Assessment District hearing. If the weighted ballots cast in opposition to the assessment do not exceed the weighted ballots cast in favor of the assessment (i.e., there is not a majority protest) the City Council may proceed to form the Section 29 Assessment District, levy the assessments, and authorize the issuance of bonds to represent unpaid assessments. The City Clerk and the Assessment Engineer will tabulate the ballots following the close of the public input portion of the hearing and determine whether or not a majority protest exists. In the event of a majority protest, Staff recommends that the City Council adopt Resolution No. 07- 4 , which declares the results of the tabulation and finds that a majority protest exists. In the event of a majority protest, proceedings for the formation of the Section 29 Assessment District, the levy of assessments and the issuance of bonds will terminate. In the absence of a majority protest, Staff recommends that the City Council adopt Resolution Nos. 07- 4A , 07- 4B , and 07- 4C . It is necessary for the City Council to adopt the above resolutions to continue the process to form the Section 29 Assessment District and to authorize the issuance and sale of improvement bonds for the Assessment District. Resolution No. 07- 4A makes a finding with respect to the value of the land in the proposed Assessment District compared with the amount of the proposed assessments. As set forth in the Engineer's Report, the proposed assessments do not exceed one- half of the total value of the parcels proposed to be assessed. Resolution No. 07- 4B finally approves the Engineer's Report, confirms the assessment for the cost of the acquisitions and improvements and the annual $50.00 administrative assessment, orders the proposed acquisitions and improvements to be made, and approves the form of certain agreements and authorizes their execution (including an agreement for the City to purchase the retention basin, an agreement with the Palm P6401-1033\938120v 1.doc 3 Staff Report Consideration of the Formation of the City of Palm Desert Section 29 Assessment District (No. 2004-02) Page 4 of 4 January 11, 2006 Springs Unified School District with respect to a contribution of funds by the School District and an acquisition agreement with respect to the acquisition of certain improvements that have already been completed). Resolution No. 07-_ also directs that notices of the assessment be mailed, published and recorded in accordance with law. Following adoption of Resolution No. 07- , property owners will have a 30-day cash collection period in which to pay all or a part of their assessments in cash at a discounted amount (because certain financing costs, such as underwriter's discount, would not be applicable). At a subsequent Council meeting, the City may consider a resolution authorizing the issuance of improvement bonds to represent those assessments, which remain unpaid after the end of the 30-day cash collection period. Resolution No. 07- appoints financing professionals, such as the underwriters, the financial advisor, bond counsel and disclosure counsel, in connection with the proposed issuance of bonds. Submitted by: Approval: avid Yrigoye sti Mc arthy Director of evelopment/Housing ACM Redevelopme t DY:AKS:mh Approval: Carlos L. O a, City Manager Paul S. Gibson, Director of Finance 3ITY COUNCIL, TION: APPROVED �� DENIED RE. —CEIVED / . 07- 70 , a.si / MEETIN , DATE /"• ` AYES: � fiitffj NOES. ,�1 aaT �ky C ABSENT: ABSTAIN: VERIFIED BY: - ')riginal on File with City Clerk' s Office * Adopted Res. Nos. 07-4A; 07-4B, as modified to delete Section 13; and 07-4C. 5-0 P6401-1033\938120v1.doc 4 RESOLUTION NO. 07- 4 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM DESERT DECLARING THE RESULTS OF THE TABULATION OF ASSESSMENT BALLOTS IN CONNECTION WITH PROPOSED CITY OF PALM DESERT SECTION 29 ASSESSMENT DISTRICT (NO. 2004-02) AND FINDING THAT A MAJORITY PROTEST EXISTS THE CITY COUNCIL OF THE CITY OF PALM DESERT HEREBY FINDS, DETERMINES, RESOLVES AND ORDERS AS FOLLOWS: Section 1. The City Council, by its Resolution No. 06-151, (the "Resolution of Intention") declared its intention to order acquisitions and improvements for proposed City of Palm Desert Section 29 Assessment District (No. 2004-02) (the "Assessment District") pursuant to the provisions of the Municipal Improvement Act of 1913 (California Streets and Highways Code Section 10000, et seq.) (the "1913 Act") and as provided in Article XIIID of the California Constitution and to comply with the requirements of Division 4 of the California Streets and Highways Code by proceeding under Part 7.5 thereof, and ordered the Assessment Engineer, Wildan and MuniFinancial, (the "Assessment Engineer") to prepare and file a report with the City Clerk in accordance with Section 10204 of the 1913 Act and Section 4 of Article XIIID of the California Constitution and containing the information required by Section 2961 of the California Streets and Highways Code. Section 2. The City Council, by its Resolution No. 06-152, (the "Resolution"), preliminarily approved a report entitled "City of Palm Desert, Preliminary Engineer's Report Section 29 Assessment District No. 2004-02" (the "Engineer's Report") prepared by the Assessment Engineer in connection with the Assessment District, which Engineer's Report is on file in the office of the City Clerk and available for public inspection and further setting the time and place for a hearing on the proposed assessments described in the Engineer's Report (the "Assessment'). Section 3. The Resolution directed the City Clerk to give notice in accordance with law of a public hearing on the Assessment and to include with such notice the assessment ballot required pursuant to Article XIIID, Section 4 of the California Constitution and Section 53753 of the California Government Code. Section 4. On January 11, 2007, following notice duly given in accordance with law, the City Council opened a public hearing and continued such hearing until January 25, 2007, and on such dates the City Council held a full and fair public hearing on the Resolution of Intention, the Engineer's Report, the levy and collection of the proposed Assessments and the proposed acquisitions and improvements in connection with the Assessment District and protests and objections thereto (the "Hearing"). P6401-1033\937782v2.doc RES. NO. 07-4 Section 5. At the Hearing, (i) all interested persons were afforded the opportunity to hear and be heard regarding protests and objections to the formation of the Assessment District and the levy and collection of the proposed Assessments, and all related matters, and (ii) the City Council heard and considered all oral and written protests. Section 6. The City Clerk, together with such assistants as she deemed necessary, tabulated all properly completed and returned assessment ballots submitted and not withdrawn in connection with the Assessments. Section 7. The City Council hereby finds and determines that (i) a majority protest exists as defined in Section 4(e) of Article XIII D of the California Constitution, and (ii) the City Council shall not form the Assessment District as described in the Resolution of Intention. [REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK.] P6401-1033\937782v2.doc 2 RESOLUTION NO. 07- 4 PASSED, APPROVED, AND ADOPTED THIS 25th DAY OF JANUARY 2007. STATE OF CALIFORNIA COUNTY OF RIVERSIDE ss. CITY OF PALM DESERT I, Rachelle D. Klassen, City Clerk of the City of Palm Desert, County of Riverside, State of California do hereby certify that the foregoing Resolution No. 07- 4 was regularly adopted by the City Council of said City of Palm Desert at a regular meeting of said council held on the 25th day of January 2007 by the following vote, to wit: AYES: NOES: ABSENT: ABSTAINED: Richard S. Kelly Mayor Rachelle D. Klassen City CLerk City of Palm Desert P6401-1033\937782v2.doc 3 r 9 RESOLUTION NO. 07- 4B A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM DESERT APPROVING THE ENGINEER'S REPORT IN CONNECTION WITH CITY OF PALM DESERT SECTION 29 ASSESSMENT DISTRICT (NO. 2004-02), CONFIRMING THE ASSESSMENTS IN CONNECTION WITH SUCH DISTRICT, ORDERING PROPOSED ACQUISITIONS AND IMPROVEMENTS TO BE MADE, APPROVING AS TO FORM AND AUTHORIZING THE EXECUTION AND DELIVERY OF CERTAIN AGREEMENTS AND TAKING CERTAIN OTHER ACTIONS THE CITY COUNCIL OF THE CITY OF PALM DESERT HEREBY FINDS, DETERMINES, RESOLVES, AND ORDERS AS FOLLOWS: Section 1. The City Council, by its Resolution No. 06-151 (the "Resolution of Intention"), declared its intention to order acquisitions and improvements for proposed City of Palm Desert Section 29 Assessment District (No. 2004-02) (the "Assessment District") pursuant to the provisions of the Municipal Improvement Act of 1913 (California Streets and Highways Code Section 10000, et seq.) (the "1913 Act") and as provided in Article XIIID of the California Constitution and to comply with the requirements of Division 4 of the California Streets and Highways Code by proceeding under Part 7.5 thereof, and ordered the Assessment Engineer, Wildan and MuniFinancial ( the "Assessment Engineer"), to prepare and file a report with the City Clerk in accordance with Section 10204 of the 1913 Act and Section 4 of Article XIIID of the California Constitution and containing the information required by Section 2961 of the California Streets and Highways Code. Section 2. The City Council, by its Resolution No. 06-152, preliminarily approved a report entitled "City of Palm Desert Preliminary Engineer's Report, Section 29 Assessment District, No. 2004-02" (the "Engineer's Report"), prepared by the Assessment Engineer in connection with the Assessment District, which Engineer's Report is on file in the office of the City Clerk and available for public inspection. Section 3. On January 11, 2007, following notice duly given in accordance with law, the City Council opened a public hearing and continued such hearing until January 25, 2007, and on such dates the City Council held a full and fair public hearing on the Resolution of Intention, the Engineer's Report, the levy and collection of the proposed assessments, and the proposed acquisitions and improvements in connection with the Assessment District and regarding protests and objections thereto. Section 4. All interested persons were afforded the opportunity to hear and be heard regarding protests and objections to the formation of the P6401-1033\937807v2.doc RES. NO. 07-4B Assessment District and the levy and collection of the proposed assessments and all related matters. The City Council considered all oral and written protests. The City Clerk, together with such assistants as she deemed necessary, tabulated all properly completed and returned assessment ballots submitted and not withdrawn. The City Council hereby finds and determines that a majority protest does not exist as defined in Section 4(e) of Article XIIID of the California Constitution. All protests and objections are hereby overruled by the City Council. Section 5. Based upon its review of the Engineer's Report and other reports and information presented to it, the City Council hereby finds and determines that (i) the lands within the Assessment District will be specially benefited by the acquisitions and improvements described in the Engineer's Report and the public interest, convenience, and necessity require that the acquisitions and improvements be made, (ii) the Assessment District includes all of the lands so benefited, (iii) the assessment of the total amount of the cost and expenses of such acquisitions and improvements upon the several subdivisions of land in the Assessment District is in proportion to the estimated special benefits to be received by such subdivisions, respectively, from such acquisitions and improvements and (iv) only special benefits are assessed and no assessment is imposed on any subdivision of land which exceeds the reasonable cost of the proportional special benefit conferred on that subdivision. Section 6. The proposed assessment for the cost of the acquisitions and improvements provided for in subdivisions (d) and (e) of Section 10204 of the 1913 Act, and the maximum annual assessment provided for in subdivision (f) of that section are hereby confirmed as set forth in the Engineer's Report. The City Council hereby determines that the amount of the annual assessment to pay for administrative costs shall be $50.00 per parcel of land in the Assessment District for which there are unpaid assessments. Section 7. The City Council hereby orders the proposed acquisitions and improvements set forth in the Engineer's Report to be made. The district benefitted by the acquisitions and improvements and to be assessed to pay the costs and expenses thereof, and the exterior boundaries thereof, are as shown by a map thereof filed in the office of the City Clerk and incorporated herein by reference Section 8. The City Council declares that the Engineer's Report as a whole and each part thereof, is hereby finally approved and confirmed. Section 9. The City Clerk is hereby directed to cause to be recorded in the office of the Superintendent of Streets a certified copy of the diagram and assessments provided for in subdivisions (d), (e) and (f) of Section 10204 of the 1913 Act. 2 P6401-1033\937807v2.doc r 1 RES. NO. 07-4B Section 10. The City Clerk is hereby directed to cause to be recorded in the office of the County Recorder of the County of Riverside a notice of assessment in connection with the Assessment District as provided by Section 3114 of the California Streets and Highways Code and Section 10402.5 of the 1913 Act. Section 11. Following the recordation of such notice of assessment, the City Clerk is hereby authorized and directed to provide notice of recordation of the assessment in accordance with Section 10404 of the 1913 Act. Section 12. The City Council hereby authorizes the City Manager and the Director of Finance, at any time prior to the completion of the improvement proceedings, to make changes in connection with the Assessment District, including but not limited to approving changes to the Engineer's Report (including, but not limited to, cost estimates and line items therein), the acquisitions and improvements ordered herein, and the assessments (including the amount of any of the individual assessments) confirmed hereby, provided this Resolution shall not be deemed to authorize the City Manager or Director of Finance to approve any increase in the amount of any of the individual assessments. Section 13. The form of Purchase and Sale Agreement and Escrow Instructions by and between the City and Berdan Parcel C LLC, A California Limited Liability Company, and NFT Parcel C LLC, A California Limited Liability Company, presented at this meeting and on file in the office of the City Clerk, is hereby approved. Each of the Mayor, the Mayor Pro Tempore (in the Mayor's absence), and any deputy of such officers (each an "Authorized Officer"), acting singly, is hereby authorized and directed, for and in the name and on behalf of the City, to execute and deliver the Purchase and Sale Agreement and Escrow Instructions in substantially the form on file with the City Clerk and presented at this meeting, with such additions thereto or changes or insertions therein as the Authorized Officer executing the same may approve (such approval to be conclusively evidenced by such Authorized Officer's execution and delivery). Section 14. The form of the School District Funding Agreement by and between the City and the Palm Springs Unified School District presented at this meeting and on file in the office of the City Clerk, is hereby approved. Each of the Authorized Officers, acting singly, is hereby authorized and directed, for and in the name and on behalf of the City, to execute and deliver the School District Funding Agreement in substantially the form on file with the City Clerk and presented at this meeting, with such additions thereto or changes or insertions therein as the Authorized Officer executing the same may approve (such approval to be conclusively evidenced by such Authorized Officer's execution and delivery). Section 15. The form of the Joint Facilities Agreement by and among the City, the Coachella Valley Water District and Summit Monterey Properties, LLC, 3 P6401-1033\937807v2.doc RES. NO. 07-4B A California Limited Liability Company, presented at this meeting and on file in the office of the City Clerk, is hereby approved. Each of the Authorized Officers, acting singly, is hereby authorized and directed, for and in the name and on behalf of the City, to execute and deliver the Acquisition Agreement in substantially the form on file with the City Clerk and presented at this meeting, with such additions thereto or changes or insertions therein as the Authorized Officer executing the same may approve (such approval to be conclusively evidenced by such Authorized Officer's execution and delivery). Section 16. The officers of the City are hereby authorized and directed, jointly and severally, to do any and all things, to execute and deliver any and all documents which they may deed necessary or advisable in order to effectuate the purposes of the this Resolution and the agreements referenced herein, and any actions previously taken by such officers are hereby ratified and confirmed. RESOLUTION NO. 07- 4B PASSED, APPROVED, AND ADOPTED THIS 25th DAY OF JANUARY 2007. STATE OF CALIFORNIA COUNTY OF RIVERSIDE ss. CITY OF PALM DESERT I, Rachelle D. Klassen, City Clerk of the City of Palm Desert, County of Riverside, State of California do hereby certify that the foregoing Resolution No. 07-4 was regularly adopted by the City Council of said City of Palm Desert at a regular meeting of said council held on the 25th day of January 2007 by the following vote, to wit: AYES: NOES: ABSENT: ABSTAINED: Richard S. Kelly Mayor Rachelle D. Klassen City Clerk City of Palm Desert 4 P6401-1033\9378071,2.doc v • • RESOLUTION NO. 07- 4A A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM DESERT MAKING CERTAIN FINDINGS IN CONNECTION WITH PROPOSED CITY OF PALM DESERT SECTION 29 ASSESSMENT DISTRICT (NO. 2004-02) THE CITY COUNCIL OF THE CITY OF PALM DESERT HEREBY FINDS, DETERMINES, RESOLVES AND ORDERS AS FOLLOWS: Section 1. The City Council, by its Resolution No. 06-151 (the "Resolution of Intention"), declared its intention to order acquisitions and improvements for proposed City of Palm Desert Section 29 Assessment District (No. 2004-02) (the "Assessment District") pursuant to the provisions of the Municipal Improvement Act of 1913 (California Streets and Highways Code Section 10000, et seq.) (the "1913 Act") and as provided in Article XIIID of the California Constitution and to comply with the requirements of Division 4 of the California Streets and Highways Code by proceeding under Part 7.5 thereof, and ordered the Assessment Engineer, Wildan and MuniFinancial (the "Assessment Engineer"), to prepare and file a report with the City Clerk in accordance with Section 10204 of the 1913 Act and Section 4 of Article XIIID of the California Constitution and containing the information required by Section 2961 of the California Streets and Highways Code. Section 2. The City Council, by its Resolution No. 06-152, preliminarily approved a report entitled "City of Palm Desert, Preliminary Engineer's Report Section 29 Assessment District No. 2004-02," (the "Engineer's Report") prepared by the Assessment Engineer in connection with the Assessment District, which Engineer's Report is on file in the office of the City Clerk and available for public inspection. Section 3. Based upon its review of the Engineer's Report and other reports and information presented to it, the City Council hereby finds and determines that the total amount of the principal sum of all unpaid special assessments levied against the parcels proposed to be assessed within the Assessment District (being the total amount, as determined and set forth in such Engineer's Report of the total principal sum of all unpaid special assessments and special assessments required or proposed to be levied under any completed or pending assessment proceedings, other than that contemplated in the proceedings for the Assessment District, which would require an investigation and report under Streets and Highways Code Section 2800, et seq., against the total area proposed to be assessed within the Assessment District), plus the principal amount of the special assessment proposed to be levied in the proceedings, do not exceed one-half of the total value of the parcels proposed to be assessed within the Assessment District (being the total true value as shown upon the last equalized assessment roll of the County of Riverside). G:\rda\Maria Hunt\WPDATA\Section 29\Resolution Making Certain Findings re Assessment District.DOC P640 I-1033\937757v 1.doc 1 RESOLUTION NO. 07- 4A PASSED, APPROVED, AND ADOPTED THIS 25TH DAY OF JANUARY 2007. STATE OF CALIFORNIA COUNTY OF RIVERSIDE ss. CITY OF PALM DESERT I, Rachelle D. Klassen, City Clerk of the City of Palm Desert, County of Riverside, State of California do hereby certify that the foregoing Resolution No. 07- 4A was regularly adopted by the City Council of said City of Palm Desert at a regular meeting of said council held on the 25th day of January 2007 by the following vote, to wit: AYES: NOES: ABSENT: ABSTAINED: Richard S. Kelly, Mayor City of Palm Desert Rachelle D. Klassen, City Clerk City of Palm Desert G:\rda\Maria Hunt\WPDATA\Section 29\Resolution Making Certain Findings re Assessment District.DOC P640 I-I 033\937757v1.doc RESOLUTION NO. 07-4C A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM DESERT MAKING CERTAIN DESIGNATIONS IN CONNECTION WITH CITY OF PALM DESERT SECTION 29 ASSESSMENT DISTRICT (NO. 2004-02) RECITALS: THE CITY COUNCIL OF THE CITY OF PALM DESERT HEREBY FINDS, DETERMINES, RESOLVES, AND ORDERS AS FOLLOWS: Section 1. The City hereby retains the following firms pursuant to the respective agreements on file in the office of the City Clerk in connection with the proceedings to issue and sell bonds in connection with City of Palm Desert Section 29 Assessment District (No. 2004-02) (the "Bonds"): a) Appointment of Underwriters. Stinson Securities, LLC and Kinsell, Newcomb, De Dios, Inc. are hereby appointed underwriters of the Bonds. b) Appointment of Financial Advisor. Del Rio Advisors, LLC is hereby appointed financial advisor in connection with the issuance and sale of the Bonds. c) Appointment of Bond Counsel. Richards, Watson & Gershon, A Professional Corporation, is hereby appointed bond counsel in connection with the issuance and sale of the Bonds. d) Appointment of Disclosure Counsel. Jones Hall Law Corporation is hereby appointed disclosure counsel in connection with the issuance and sale of the Bonds. G:rda Maria Hunt WPDATA Section 29 Resolution Making Certain Designat ions l.DOC P6401-1033\860770v3.doc RESOLUTION NO. 07- 4c PASSED, APPROVED, AND ADOPTED THIS 25th DAY OF JANUARY 2007. STATE OF CALIFORNIA COUNTY OF RIVERSIDE ss. CITY OF PALM DESERT I, Rachelle D. Klassen, City Clerk of the City of Palm Desert, County of Riverside, State of California do hereby certify that the foregoing Resolution No. 07- 4c was regularly adopted by the City Council of said City of Palm Desert at a regular meeting of said council held on the 25th day of January 2007 by the following vote, to wit: AYES: NOES: ABSENT: ABSTAIN: Richard S. Kelly, Mayor City of Palm Desert Rachelle D. Klassen, City Clerk City of Palm Desert P6401-I033\860770v3.doc 2 GRESHAM SAVAGE NOLAN & TILDEI°. A PROFESSIONAL CORPORATION LAWYERS e FOUNDED 1910 FOR THE sow: 550 E.HOSPITALITY LANE,SUITE 300 J.Matthew Wilcox SAN BF,RNARDINO,CALIFORNIA 92408-4205 e-mail:Mart.WilcoxCagresham;avagz.cou (909)890-4499•FACSIMILE(909)890-9877 www.greshavisavage.com January 10, 2007 VIA FACSIMILE 1760/340-66981, E-MAIL 1David.Erwin(r bbklaw.coml AND GOLDEN STATE OVERNIGHT David Erwin,Esq. Best, Best&Krieger LLP 74-760 Highway 111, Suite 200 Indian Wells, CA 92210 Re: REQUEST FOR CONTINUANCE Benefit Assessment District No. 1 Section 29 Drainage Benefit Assessment District Palm Desert, CA Dear Mr. Erwin: Our Firm represents Wal-Mart Real Estate Business Trust, a Delaware statutory trust,and Sam's Real Estate Business Trust, a Delaware statutory trust (collectively, "Wal-Mart"), owners of a portion of Parcel 29 of Parcel Map No. 24255. We are writing to you on behalf of Wal-Mart, and on behalf of the rest of the owners of Parcel 29, RJ Ventures, LLC, a California limited liability company, and Desert Gateway,LP, a California limited partnership(collectively, with Wal-Mart,the"Parcel 29 Owners"). In connection with its initial acquisition of Parcel 29 from Monterey 170, LLC, a California limited liability company ("Monterey"), and as partial consideration for such acquisition, Wal-Mart entered into a Storm Drain Maintenance Agreement with Gateway Industrial Park at Palm Desert Property Owners' Association, Inc., a non-profit mutual benefit corporation ("Gateway"), to provide for the maintenance and operation of an approximately 3.0 acre storm drain retention basin ("Retention Basin") for the benefit of Parcel 29, as well as certain other Parcels owned by Monterey, as outlined in the Storm Drain Agreement. Notably, the Parcel 29 Owners also shared in the cost of the land for the Retention Basin, as well as the cost of constructing the Retention Basin. We have recently learned that Monterey, Gateway, or its affiliates, may be working with the City of Palm Desert to establish a Benefit Assessment District to acquire the Retention Basin, and to expand the Retention Basin to serve other property and, to establish a separate Benefit Assessment District to provide for the maintenance of the expanded Retention Basin (collectively, the "Assessment Districts"). We understand that this matter is currently scheduled GRESI-IAM SAVAGE NOLAN&TILDEN J.Matthew Wilcox David Erwin,Esq. Best, Best&Krieger LLP January 10,2007 Page 2 for consideration by the Palm Desert City Council at its regularly scheduled meeting on Thursday,January 11, 2007. It is the opinion of the Parcel 29 Owners that they have a vested interest in the Retention Basin and a specific economic interest in the maintenance of the Retention Basin pursuant to the Storm Drain Agreement. The Parcel 29 Owners believe that they can resolve this issue with Monterey and Gateway, but need additional time to further discuss the matter with them. The purpose of this letter is to request that the City of Palm Desert continue its consideration of the formation of the Assessment Districts in order to provide additional time for the Parcel 29 Owners to work out an amicable resolution with Monterey and Gateway. Please feel free to call me should you have any questions or need anything further. Very truly yours, ilcox,for GRESHAM SAVAGE NOLAN&TILDEN JMW/cam cc: Tom Noble(via e-mail only [noblecompanyllc@aol.com]) Paul Gibson,Finance Director/City Treasurer, City of Palm Desert (via Certified Mail/Return Receipt Requested) Bill Carver(via e-mail only [carvermgmt@msn.comJ) Stanley G. Rothbart(via e-mail only [stan@rothbartdev.com]) W56I/82-PALM_DESERT(CATHEDRAL CITY}—1411458J RESOLUTION NO. 06-152 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM DESERT ACCEPTING AND APPROVING AN ENGINEER'S REPORT IN CONNECTION WITH THE PROPOSED FORMATION OF THE SECTION 29 ASSESSMENT DISTRICT (NO. 2004-2), AND APPOINTING A TIME AND PLACE FOR HEARING PROTESTS THE CITY COUNCIL OF THE CITY OF PALM DESERT HEREBY FINDS, DETERMINES, RESOLVES AND ORDERS AS FOLLOWS: Section 1. Pursuant to a resolution of the City Council of the City of Palm Desert declaring its intention to order certain acquisitions and improvements for the proposed Section 29 Assessment District (No. 2004-2), the Assessment Engineer, Wildan and MuniFinancial, has filed with the City Clerk of the City of Palm Desert and the City Clerk has presented to the City Council a report entitled, "City of Palm Desert, Preliminary Engineer's Report, Section 29 Assessment District, No. 2004-2," regarding the proposed assessment district, assessments, acquisitions and improvements described in such resolution of intention, prepared in accordance with the requirements of the Municipal Improvement Act of 1913 (California Streets and Highways Code Section 10000, et seq.), Part 7.5 of the Special Assessment Investigation, Limitation and Majority Protest Act of 1931 (Division 4 of the California Streets and Highways Code) (the "1931 Act") and Article XIII D of the California Constitution (the "Report"). Section 2. The City Council has carefully examined and reviewed the Report as presented. Section 3. The Report is hereby accepted and preliminarily approved as filed and ordered to remain open to public inspection in the office of the City Clerk. Section 4. The City Council hereby appoints Thursday, January 11, 2007 at 4:00 p.m. in the Council Chambers, City Hall, 73-510 Fred Waring Drive, Palm Desert, California, as the time, date and place for a public hearing on the Report and the imposition of the proposed assessments described therein (the "Public Hearing"). At the conclusion of the public input portion of the Public Hearing, the City Clerk, or an impartial person designated by the City Clerk, shall tabulate the assessment ballots to determine if majority protest exists. A majority protest shall exist if assessment ballots submitted in opposition to the assessment exceed the ballots submitted in favor of the proposed assessment, with each ballot weighted by the amount of the proportional financial obligation of the parcel covered by the ballot. At the Public Hearing, all interested persons shall be permitted to present written and/or oral testimony. Section 5. In accordance with Section 53753 of the California Government Code, Part 7.5 of the 1931 Act, and Article XIII D, Section 4 of the California Constitution, the City Clerk is hereby authorized and directed to give notice of the time, dated and place of the Public Hearing described in Section 4 hereof by P6401/1033/860994v1 RESOLUTION NO. 06-152 causing a notice of the Public Hearing and an assessment ballot to be mailed by first class mail to the record owners of the parcels in the proposed assessment district not less than 45 days before the date of the Public Hearing. Section 5. The City Council hereby approves the Procedures for the Completion, Return and Tabulation of Assessment Ballots presented to the City Council at this meeting and now on file in the office of the City Clerk and open to public inspection. Section 7. The City Council hereby designates the Assessment Engineer, telephone number (800) 755-6864, to answer inquiries regarding the proposed assessment district and assessments. PASSED, APPROVED and ADOPTED this 16th day of November 2006 by the following vote, to wit: AYES: BENSON, KELLY, SPIEGEL, and FERGUSON NOES: NONE ABSENT: NONE ABSTAIN: NONE O I JI US N, MAYOR ATTEST: 4 � � RACH LLE D. KLASSEN, CITY CLERK CITY OF PALM DESERT, CALIFORNIA P6401/1033/860994v1 2 . �T RESOLUTION NO. 06-151 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM DESERT DECLARING ITS INTENTION TO ORDER ACQUISITIONS AND IMPROVEMENTS FOR THE PROPOSED SECTION 29 ASSESSMENT DISTRICT (NO. 2004-2) PURSUANT TO THE MUNICIPAL IMPROVEMENT ACT OF 1913 AND IN ACCORDANCE WITH ARTICLE XIII D OF THE CALIFORNIA CONSTITUTION AND TO COMPLY WITH THE REQUIREMENTS OF DIVISION 4 OF THE CALIFORNIA STREETS AND HIGHWAYS CODE BY PROCEEDING UNDER PART 7.5 THEREOF THE CITY COUNCIL OF THE CITY OF PALM DESERT HEREBY FINDS, DETERMINES, RESOLVES AND ORDER AS FOLLOWS: Section 1. The owners of certain property located within the City of Palm Desert have requested the City Council to undertake proceedings pursuant to the Municipal Improvement Act of 1913 (Division 12 of the Streets and Highways Code, commencing with Section 10000) (the "1913 Act") to form an assessment district to be known as the "Section 29 Assessment District (No. 2004-02)" for the purpose of acquiring, constructing and installing certain public improvements of special benefit to the properties in the District. Section 2. The City Council hereby (i) finds that the public interest, necessity and convenience require and (ii) declares its intention to order acquisitions and improvements authorized by the 1913 Act. Such acquisitions and improvements are briefly described in Section 5, below. Section 3. The district of land to be benefitted by the acquisitions and improvements described in Section 5, below, and to be specially assessed to pay the costs and expenses of such acquisitions and improvements, including incidental expenses, shall be referred to as the "Section 29 Assessment District (No. 2004-2)" (the "Assessment District"). Section 4. The proposed Assessment District is generally located in the Section 29 area of the City of Palm Desert. For a full and complete description of the exterior boundaries of the proposed Assessment District, reference is hereby made to a map of the exterior boundaries of such real property labeled "Proposed Boundaries, Section 29 Assessment District (No. 2004-2), City of Palm Desert, Riverside County, California," which map is hereby approved by the City Council and is now on file in the office of the City Clerk and open to the public inspection. The City Clerk is hereby authorized and directed to cause a copy of such map to be recorded in accordance with California Streets and Highways Code Section 3111. P6401-1033\861239v4.doc RESOLUTION NO. 06-151 Section 5. The proposed acquisitions and improvements are briefly described as the installation, construction and/or acquisition of street and street-related improvements (consisting of new streets or the widening of existing streets, including Monterey Avenue, Gerald Ford Drive, Portola Avenue, 35th Avenue, Dinah Shore Drive, Gateway Drive, A Street, B Street and C Street; streets will be constructed or widened to City of Palm Desert standards, which may include, but not be limited to, curb and gutter, pavement, medians and median landscaping, sidewalks, traffic signals and utility relocations); storm drain improvements in 35th Avenue, Gateway Drive, A Street, Cortesa Way (which is a portion of C Street), C Street, Dinah Shore Drive and Portola Avenue and the acquisition of an existing retention basin constructed in a portion of Section 29, Township 4 South, Range 6 East SBM in the City of Palm Desert, and improvements thereto including, but not limited to, deepening of the retention basin and stabilization of the sidewalls; sanitary sewer improvements in 35th Avenue, Dinah Shore Drive, crossing of Interstate 10, A Street, Gateway Drive, and Cortesa Way (which is a portion of C Street) and C Street; water system improvements (including water mains and hydrants) in 35th Avenue, Dinah Shore Drive, Portola Avenue, Gerald Ford Drive, Monterey Avenue, A Street, Gateway Drive, Dolce Avenue (formerly B Street), Cortesa Way (which is a portion of C Street), and C Street; appurtenances and appurtenant work; and the acquisition of real property, easements, rights-of-way or interests in real property which are necessary or convenient in connection with the acquisition and/or construction and installation and/or operation of the foregoing improvements. The improvements may include water and sewer facilities financed pursuant to development impact or other fees imposed by the Coachella Valley Water District upon properties in the Assessment District. The description of the acquisitions and improvements contained in this Resolution are general in nature. The plans and specifications and descriptions as contained in the Engineer's Report, hereinafter directed to be made and filed, shall be controlling as to the correct and detailed description thereof. Section 6. The City Council hereby declares its intention to comply with the requirements of the Special Assessment Investigation, Limitation and Majority Protest Act of 1931, Division 4 of the California Streets and Highways Code (the "1931 Act") by roceedin under Part 7.5 f h p g o t e 1931 Act. Section 7. The proposed acquisitions and improvements described herein are hereby referred to MuniFinancial and Willdan, as Assessment Engineer, to make and file with the City Clerk of the City Council a report in writing in accordance with Article XIIID, Section 4 of the California Constitution and Section 10204 of the 1913 Act, which report shall also contain all of the information prequired by Section 2961 of the 1931 Act. Section 8. The City Council hereby determines that it is in the public interest and more economical to do work on private property to eliminate disparity in level or size between the proposed improvements and private property than to adjust the work on public property to eliminate such disparity. Section 9. Provision is hereby made for the issuance of improvement bonds, in one or more series, pursuant to Chapter 7 of Division 12 of the California Streets and Highways Code, commencing with Section 10600. P6401-1033\861239v4.doc • RESOLUTION NO. 06-131 Section 10. Notice hereby given that serial bonds or term bonds or both to represent unpaid assessments, and to bear interest at the rate not to exceed 12 percent per annum, payable semiannually, shall be issued hereunder in one or more series in the manner provided by the Improvement Bond Act of 1915, Division 10 of the California Streets and Highways Code, and the last installment of bonds shall mature a maximum of 39 years from the second day of September next succeeding 12 months from their date. Section 11. The City Council hereby determines and declares that the City will not obligate itself to advance available funds from the City treasury to cure any deficiency which may occur in the bond redemption fund. Section 12. The City Council hereby determines that the principal amount of bonds maturing or becoming subject to mandatory redemption in each year shall be other than an amount equal to an even annual proportion of the aggregate principal amount of the bonds, and the amount of principal maturing or becoming subject to mandatory redemption in each year plus the amount of interest payable in that year shall be an aggregate amount that is substantially equal each year, except for the moneys falling due on the first maturity or mandatory prior redemption date of the bonds which shall be adjusted to reflect the amount of interest earned from the date when the bonds bear interest to the date when the first interest is payable on the bonds. Section 13. With respect to the procedures for collection of assessments and the advance retirement of bonds in connection with the proposed Assessment District, the City Council proposes to proceed under the provisions of Part 11.1 of Division 10 of the California Streets and Highways Code. Section 14. The City Council hereby designates the City Treasurer, or the designated agent of the City Treasurer, to collect and receive the assessments. Section 15. Any surplus moneys remaining in the improvement fund after the acquisition and completion of the proposed improvements described herein and the payment of all claims from the improvement fund established in connection with the Assessment District shall be disposed of in accordance with Sections 10427 and 10427.2 of the 1913 Act. Section 16. In the opinion of the City Council, the public interest will not be served by allowing property owners to take a contract to perform any of the work. Provided, however, this Section is not intended to prevent the City from entering into an agreement with any property owner pursuant to which the City agrees to acquire the improvements described herein or any portion thereof, from that property owner. Section 17. Pursuant to its Resolution No. 06-137, adopted on October 12, 2006, the City Council has entered into an agreement with the Coachella Valley Water District pursuant to Chapter 2 of the 1913 Act (commencing with Section 10100) because the water and sewer improvements described in Section 5 are to be owned, managed or controlled by the Coachella Valley Water District. The City Council hereby 3 P640 1-1033\861239v4.doc A. RESOLUTION NO. 06-151 declares its intention to enter into an additional agreement or agreements with the Coachella Valley Water District in connection with financing fees of the Water District imposed upon properties in the proposed Assessment District. In addition, to the extent that any of the improvements or acquisitions described in Section 5 are to be owned, managed or controlled by any public agency other than the City or by a public utility, the City Council hereby declares its intention to enter into agreements with such other public agencies or public utilities in accordance with the 1913 Act. Section 18. The City intends to make a contribution for the cost of the improvements which are of general benefit, and such contribution shall be reflected in the Engineer's Report directed to be made and filed pursuant to Section 7 hereof. Section 19. The City Council hereby determines that the bonds issued to represent unpaid assessments may be refunded upon a determination of the City Council that the public interest or necessity requires such refunding. PASSED, APPROVED AND ADOPTED this 16th day of November 2006 by the following vote, to wit: AYES: BENSON, KELLY, SPIEGEL, and FERGUSON NOES: NONE ABSENT: NONE ABSTAIN: NONE JIM F RGU ON, MAYOR ATTEST: RACHELLE D. .SSE , CITY CLERK CITY OF PALM DESERT, CALIFORNIA 4 P6401-1033\861239v4.doc NOTICE OF DETERMINATION RECEIVED Negative Declaration L ,. Li 2006 TO: Riverside Co. Clerk/Recorder State Clearin sge P.O. Box 751 P.O. Box 3044M ITYDEVELOPMEEpNNE,�TTDEPARTMENT CITY Riverside, CA 92502-0751 Sacramento, CA 95812p3044ERT 11 FROM: CITY OF PALM DESERT sRIVE E L 2Er �J RSIDE COUNTv L 73-510 Fred Waring Drive Palm Desert, CA 92260 OCT 2 5 2006 SUBJECT: Filing of Notice of Determination in compliance withiS ctI P 4'1O.8here,21 152 of the Public Resources Code. Deputy Project Title/Common Name: Section 29 Master Plan of Infrastructure, Assessment District 2004-02 \leg Dec a?U nl y CLERK Date of Project Approval: October 12, 2006 FilegpefpRCDete:air' POSTEp 211 State Clearinghouse Number (if submitted): 2006081 156 OCT 2 5 2006 Contact Person: Philip Drell Removes ;�/ Director of Community Development s —d` j (760) 346-0611 ext. 481 County of Ff rsige State of Califoepia Project Location and Description: The project involves formation of an assessment district to finance public improvements within an approximately 350-acre vacant site bounded by Portola Avenue, Gerald Ford Drive, Monterey Avenue, 35th Avenue and Dinah Shore Drive. Improvements generally include streets, traffic signals, landscaping, water, sewer and storm drain improvements. Project will include installation of a sewer line under Interstate 10. This is to advise that the City of Palm Desert has made the following determinations regarding the above described project: 1 . The project will not have a significant effect on the environment. 2. A Mitigated Negative Declaration was prepared for this project pursuant to the provisions of CEQA. A copy of the Negative Declaration may be examined at the above city hall address. 3. Mitigation measures were made a condition of the approval of the project. 4. A statement of Overriding Considerations was not adopted for this project. . .."'*--ql.„4i,I L J.je_52._____ Director of Community Development Signature Title Date Received for Filing Please return date-stamped copy in the enclosed envelope. Martinez, Gloria From: Lee, Debra Sent: Monday, November 27, 2006 3:51 PM To: Martinez, Gloria Cc: Scott, Arla Subject: Assessment District Engineer Hi Gloria. Here is the info: Muni Financial Dick Kopecky 800-755-6864 Mark said you should confirm that phone number with Arla, so I am copying her on this e-mail. Debra Lee Administrative Secretary Department of Public Works City of Palm Desert dlee@ci.palm-desert.ca.us (760)346-0611 ext. 460 1