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now within the ownership of a public agency. There is a general rule in Cal- ifornia law that publicly held property is not to be assessed unless the legislature says it must be assessed. The legislature in the Municipal Im- provement Act of 1913 and the Improvement Act of 1911 has stated that property which is in use in the performance of a public function may be assessed unless it is excluded by the City Council in a Resolution of Intention. This proper- ty was not excluded; it was not in fact owned by BART at the time the Resolu- tion of Intention was adopted. He thinks therefore there is statutory au- thority to levy an assessment on the property. However, the remedy of fore- closure for non-payment of the assessment is not available to publicly owned property. Instead the legislature has established a provision for the levy of a property tax by the assessed agency in order to raise the funds to pay the assessment. It is his opinion, and other bond counsels, that the enactment of Article 13A of the State Constitution (Proposition 13) overrides the legisla- ture's remedy in the Statute so that he does not believe it is possible now to compel BART to levy a property tax in order to pay the assessment. This leaves the question of how that assessment may be collected. He stated he would not want that assessment represented by bond issues until that issue is resolved, both as a legal matter and as a matter of bond marketability. He stated that any bonds that are marketed must exclude that assessment if it is levied unless and until the City makes a determination that the assessment can be collected either by the cooperation of BART or by judicial determination. Councilmember Wilson asked how much the assessment would be on the BART property and when was escrow closed. Mr. Zullo stated the assessment amounts to $439,326, and it is his understanding that escrow closed on April 14, 1987. Mr. MacDonald stated that the City received a letter from Mozart Development Company stating that property closed on April 14th. He stated he talked to John Lovewell from Mozart mid afternoon of the 14th and there was no indica- tion at that time that it had closed. The time is significant because a letter went out on the 14th under the signature of the City Manager notifying BART of the potential rights that the City might have with respect to this parcel. There is nothing that says the parcel can't be assessed or that it might not be collectible as debt. The City might not be able to foreclose on the land but could at least collect it as debt. Councilmember Brandes stated that if this property, as it relates to deal- ing with a public entity, had not been closed by the time period and there happens to be another piece of property that BART or someone else wanted to buy that already had the assessment on it, would the same rule apply. Mr. Brunsell stated it would not; if a public agency purchases property which is already subject to an assessment and agrees to assume that assessment or does not take steps in the sale transaction to have that assessment paid in full then the buyer, be it public agency or not, assumes the indebtedness of the assessment - and even then if it is owned by a public agency it could be fore- closed in the case where the assessment was levied and became a lien on the property prior to the time of his ownership by the public agency. Councilmember Brandes stated that all these properties have been noticed, including this piece of property, does that not give Council any credance at this time. Mr. Brunsell advised there has not been a judicial determination on that question and he could not tell as a matter of law whether that as- sessment is collectible. 13 - 4-21-87