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HomeMy WebLinkAbout13-139Resolution No. 13-139 A RESOLUTION OF THE BOARD OF SUPERVISORS OF THE COUNTY OF BUTTE ESTABLISHING THE COUNTY OF BUTTE COMMUNITY FACILITIES DISTRICT NO. 2013-1 (CLEAN ENERGY PROGRAM), AND PROVIDING FOR THE LEVY OF A SPECIAL TAX THEREIN TO FINANCE OR REFINANCE THE ACQUISITION, INSTALLATION, AND IMPROVEMENT OF ENERGY EFFICIENCY, WATER CONSERVATION, AND RENEWABLE ENERGY IMPROVEMENTS PERMANENTLY AFFIXED TO OR ON REAL PROPERTY OR IN BUILDINGS; AND AUTHORIZING VALIDATION ACTION WHEREAS, on August 13, 2013, the Board of Supervisors (the "Board") of the County of Butte (the "County") duly adopted Resolution No. 13-109 (the "Resolution of Intention") declaring its intent to establish a community facilities district within the County's jurisdictional boundaries in accordance with the Mello-Roos Community Facilities Act of 1982, set forth in sections 53311 through 53368.3 of the California Government Code (the "Act"), and particularly in accordance with sections 53313.5(1) and 53328.1(a) (the "District"). The District is to be named "County of Butte Community Facilities District No. 2013-1 (Clean Energy Program)" and its purpose is to finance or refinance (including the payment of interest) the acquisition, installation, and improvement of energy efficiency, water conservation, and renewable energy improvements permanently affixed to privately or publicly owned real property (the "Authorized Improvements"); reference is made to the Resolution of Intention for further particulars and for additional defined terms; and WHEREAS, in the Resolution of Intention, the Board approved the boundary map showing the territory proposed for annexation to the District in the future (the "Territory'), in accordance with section 53328.1(a) of the Act and California Streets and Highways Code section 3110 (the "Boundary Map"), which Boundary Map is entitled "Proposed Boundaries of Territory Proposed for Annexation in the Future to County of Butte Community Facilities District No. 2013-1 (Clean Energy Program);' is attached to the Resolution of Intention as Exhibit A and was recorded on September 18, 2013, in the Book of Maps of Assessment and Community Facilities Districts maintained by the County Recorder of the County in Book 10 at Page 53; and WHEREAS, the Resolution of Intention fixed 9:30 a.m. on Tuesday, September 24, 2013 in the regular meeting place of the Board, Board of Supervisors Chambers, 25 County Center Drive, Oroville, California 95965 as the time and place for the Board to hold a public hearing (the "Public Hearing') to consider the establishment of the District, the specification of Authorized Improvements, the extent of the Territory, the establishment of the appropriations limit for the District, and all other matters set forth in the Resolution of Intention; and WHERAS, the Board of Supervisors opened the public hearing on September 24, 2013, provided opportunity for public testimony, and continued the hearing to October 8, 2013 at 9:30am; and WHEREAS, the Chief Administrative Officer of the County or such officer's designee (the "CAO") has submitted a report to the office of the Clerk of the Board (the "Clerk") as directed by the Resolution of Intention describing: the Authorized Improvements; the incidental, financing, and administrative costs of the District; the form of the proposed Unanimous Approval Agreement; recommendations for appropriate procedures and criteria for processing and evaluating applications for participation and inclusion in the District from the owners of property within the Territory; and an estimate of the related incidental expenses (the "Hearing Report"), which Hearing Report is incorporated herein by this reference and made a part of the record of the Public Hearing; and] WHEREAS, at or shortly after the time set for the Public Hearing, the Board conducted the Public Hearing and all persons interested, including all taxpayers, property owners, and registered voters within the Territory, were given an opportunity to appear and to be heard, and the Board heard and considered the testimony for and against the matters set forth in the Resolution of Intention, including the establishment of the District, the levy of the special tax, the extent of the Territory, the financing of any of the Authorized Improvements, and the establishment of the appropriations limit for the District; and WHEREAS, all registered voters residing within the boundaries of the Territory, and all owners of land within the boundaries of the Territory, were allowed to submit written protests to any matter set forth in the Resolution of Intention and were permitted to withdraw their protests before the close of the Public Hearing; and WHEREAS, there is on file with the Clerk a proof of publication of the Notice of Public Hearing in the THE ENTERPRISE RECORD; and WHEREAS, the Board also desires to authorize the County's special counsel, Orrick, Herrington & Sutcliffe LLP, working with the County Counsel's office, to file a validation action on behalf of the County to seek a judgment of the Butte County Superior Court that the special tax, contracts, obligations, or evidences of indebtedness arising out of the establishment and implementation of the District, and all matters, agreements, and procedures related thereto, are in all respects legal, valid, and binding; and WHEREAS, the Board of Supervisors is fully advised in this matter. NOW, THEREFORE, the County of Butte resolves the following: Section 1. The above recitals are true and correct, and the Board so finds and determines. Section 2. Except to the extent it is inconsistent with this resolution, the Resolution of Intention is reaffirmed, and its provisions and findings are incorporated herein by this reference. Section 3. The Board accepts the proof of publication of the Notice of Public Hearing and finds, based thereon, that proper notice of the Public Hearing has been given in accordance with the Act and that the Public Hearing was conducted with proper and legal notice in all respects. Section 4. The Board finds and determines that, at the close of the Public Hearing, the written protests, if any, to any of the matters set forth in the Resolution of Intention-including the establishment of the District; the levy of the special tax and the incurrence of debt (as defined in the Act); the extent of the Territory; the acquisition, construction, or installation of any of the Authorized Improvements; and the establishment of the appropriations limit for the District-were submitted by less than 50 percent of the registered voters residing within the Territory and by the owners of less than one-half of the area of land in the Territory. Thus, the Board finds that it is not precluded by the Act from proceeding further in this matter, and it determines and orders that all protests to the matters set forth in the Resolution of Intention are hereby overruled. Section 5. The Board hereby establishes the District in accordance with the Act and particularly in accordance with sections 53313.5(1) and 63328.1(a). Section 6. The Board orders (a) that a parcel within the Territory may be annexed to the Community Facilities District and subjected to the special tax only with the unanimous written approval of the owner or owners of the parcel when it is annexed (the "Unanimous Approval Agreement"), which, as provided in section 53329.6 of the Act, shall constitute the election required by the California Constitution; (b) that the rate of special tax for each parcel will be established in an amount required to finance or refinance (including the payment of interest and the funding and replenishment of any reserve fund for debt) the Authorized Improvements approved for the parcel and to pay the parcel's appropriate share of the District's incidental, financing and administrative expenses; (c) that the maximum annual rate, method of apportionment, and manner of collection of the special tax must be specified in the Unanimous Approval Agreement for each parcel; (d) that the maximum principal amount of the debt to be incurred to finance or refinance the Authorized Improvements for the parcel will be the amount approved in the Unanimous Approval Agreement for each parcel; and (e) that the special-tax revenues may also be used to repay the appropriate portion of any funds the County advances for the District and to repay under any agreement (which will not constitute a County debtor liability) any advances of funds or reimbursement for the lesser of the value or cost of work in-kind provided by any person for the purposes of the District. Section 7. Once a Unanimous Approval Agreement for one or more parcels has been signed by all of the parcel owners and by the County, County staff are authorized and directed to record or cause to be recorded a Notice of Special Tax Lien against the parcels with the County Recorder of the County in accordance with section 3114.5 of the Streets and Highways Code. Upon recordation of the Notice of Special Tax lien, a continuing lien to secure each levy of the special tax will attach to the affected parcels. The lien will continue in force until the special-tax obligation is prepaid and permanently satisfied and the lien canceled in accordance with law or until levy and collection of the tax ceases. Section 8. The special tax is to be collected in the same manner as ordinary ad valorem property taxes are collected and is to be subject to the same penalties and the same procedure, sale, and lien priority in case of delinquency as are provided for ad valorem taxes collected on the secured property-tax roll of the County, except that the Board hereby reserves the right to enforce the collection of delinquent special taxes through judicial foreclosure, including through the assignment of the ability to pursue judicial foreclosure as provided in the Act. Section 9. The CAO, 25 County Center Drive, Suite 200, Oroville, California 95965 (telephone 530-538- 7631) or any officer or staff member of the County succeeding to the duties of the CAO, is designated to prepare or cause to be prepared annually the current roll of special-tax levy obligations for each parcel within the District that is subject to the special tax and to estimate future special-tax levies. Section 10. The Board hereby approves the form of Unanimous Approval Agreement contained in the Hearing Report and directs its use with such changes as the CAO may approve after consultation with the County Counsel. The CAO is hereby authorized to execute one or more Unanimous Approval Agreements from time to time in substantially said form with such changes thereto as the CAO may approve after consultation with the County Counsel. Section 11. The Board hereby approves the form of Assignment Agreement contained in the Hearing Report and directs its use with such changes as the CAO may approve after consultation with the County Counsel. The CAO is hereby authorized to execute one or more Assignment Agreements from time to time in substantially said form with such changes thereto as the CAO may approve after consultation with the County Counsel. Section 12. In accordance with sections 53325.7 and 52238.1(a)(2) of the Act, the Board hereby establishes the appropriations limit (as defined by section 8(h) of article XIIIB of the California Constitution) for the District for the 2013-2014 fiscal year and for subsequent fiscal years as the sum of the amounts stated as the appropriations limit in each approved Unanimous Approval Agreement. The amount contributing toward the appropriations limit of the District in each Unanimous Approval Agreement will be subject to adjustment following the fiscal year in which the Unanimous Approval Agreement is fully subscribed, as provided in section 53325.7 of the Act. Section 13. The authorization to finance or refinance the acquisition, construction, and installation of Authorized Improvements covers all costs incidental to the acquisition, construction, and installation, including the costs of planning and design, the costs of any environmental evaluations, all costs associated with establishing the District and financing the Authorized Improvements, the costs of determining the amount of special taxes, the costs of collecting or paying the special taxes, and costs otherwise incurred to carry out the authorized purposes of the District. Section 14. The Board finds and determines that all proceedings it has conducted and approved with respect to the establishment of the District, up to and including the adoption of this resolution, are valid and in conformity with the Act. As provided in the Act, this determination is final and conclusive for all purposes and is binding upon all persons. Section 15. The County's special counsel, Orrick, Herrington & Sutcliffe LLP, working with the County Counsel's office, is hereby authorized and directed to file and prosecute on the County's behalf, against all persons interested in the matter, a civil validation action under California Government Code sections 53511 and 53328.1(c) and California Code of Civil Procedure section 860 and following, seeking a judgment of the Butte County Superior Court that the special tax, contracts, obligations, or evidences of indebtedness arising out of the establishment and implementation of the District, and all matters, agreements, and procedures related thereto, are in all respects legal, valid, and binding. Section 16. This resolution shall take effect immediately upon its passage and adoption. PASSED AND ADOPTED by the Butte County Board of Supervisors this 8th day of October 2013 by the following vote: AYES: Supervisors Wahl, Kirk, Lambert, Teeter and Chair Connelly NOES: None ABSENT: None NOT VOTING: None BILL CONNELLY, Chair Butte County Board of Supervisors ATTEST: 2 `t/ PauVHa,Kr2{ Chief~,dministrative Officer and Clerk of the Board of Supervisors