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CITY COUNCIL AGENDA ITEM NO. 24




Meeting Date: April 10, 2001

Subject/Title: Consideration of Changes and Modifications in Assessment District 93-3, 
CIFP 94-1

Submitted by: Engineering: J. Stevenson/B. Grewal/P. Eldredge

Approved by: Jon Elam, City Manager



RECOMMENDATION
Approve a Resolution approving changes and modifications in Assessment District No. 93-3 pursuant to waivers of 100% of affected property owners and approving the form of an amendment to the amended and restated Funding, Acquisition and Disclosure Agreement.

PREVIOUS ACTION
On March 14, 1995 the City Council approved Resolution No. 95-45, which approved the CIFP 94-1 and established the Brentwood Infrastructure Financing Authority (BIFA).

On October 24, 1995, by Resolutions Nos. 95-245 through 95-247 and Resolutions Nos. 95-251 through 95-255 Council approved the issuance of a first series of Infrastructure Revenue Bonds, Series 1995 for CIFP 94-1.

On October 24, 1996, by Resolutions Nos. 96-163 through 96-169, Council approved the issuance of Limited Improvement Bond Series 1996A, 1996B and 1996C in Assessment Districts 93-2, 93-3 and 94-3.

On November 12, 1997, by Resolutions Nos. 97-223 through 97-230, Council authorized the issuance of bonds for Phase III funding of CIFP 94-1 improvements.

On January 20, 1999, by Resolution Nos. 99-34 through 99-39, Council approved 4 separate series of bonds, approved the refunding of the outstanding Series 1995, 1996 and 1997 revenue bonds and authorized the changes and modifications in Assessment District Nos. 93-3 and 94-2.

BACKGROUND
Certain property owners ( SunCal Companies and Lafferty Homes) in Assessment District 93-3 had requested to the City to conduct change and modification proceedings to reallocate the costs for the improvements of the New Concord Avenue (now referred to as John Muir Parkway) to the prepayment of Roadway Fees. By doing so the City would be able to utilize these funds to help finance several large roadway projects that need to be constructed within the next year, more specifically the Sand Creek Road extensions and the Sunset Road realignment.

SunCal companies will still be required to construct New Concord Avenue, the only difference being that it will not be paid for by Assessment District funds. As SunCal, Lafferty Homes or their successors, pull building permits they will receive a reduction in the amount of Roadway Fees due based upon this prepayment of $2,655,858 divided by the total number of lots in the development. This modification will not cause any change in the amount of assessment on any parcel in any assessment district or any change in the annual installments of assessments payable by property owners. 

Each property owner affected by these change proceedings has submitted to the City a consent and waiver form in which they consent to the changes and waive their right to a public hearing. No other property owners within the district will be affected by these changes.

A. Council Action Items

It is in order for the City Council to consider the following resolutions at this time in order to implement this funding plan:

1. Approve a Resolution approving changes and modifications in Assessment District No. 93-3 pursuant to waivers of 100% of affected property owners and approving the form of an amendment to the amended and restated Funding, Acquisition and Disclosure Agreement.

B. Items to be Filed with the City Clerk:

1. Second Amendment to the Engineer’s Report
2. Form of Amendment To The Amended And Restated Funding, Acquisition And Disclosure Agreement
3. Form of Consent and Waiver signed by California Sun – Brentwood, LLC
4. Form of Consent and Waiver signed by Lafferty Homes at Deer Creek, L.P.


Attachments:
Resolution approving changes and modifications in Assessment District No. 93-3
Second Amendment to the Engineer’s Report
Form of Amendment To The Amended And Restated Funding, Acquisition And Disclosure Agreement
Form of Consent and Waiver signed by California Sun – Brentwood, LLC
Form of Consent and Waiver signed by Lafferty Homes at Deer Creek, L.P
Site Map
Attachment to Engineer's Report

RESOLUTION NO. ______

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD APPROVING CHANGES AND MODIFICATIONS IN ASSESSMENT DISTRICT NO. 93-3 PURSUANT TO WAIVERS OF 100% OF AFFECTED PROPERTY OWNERS AND APPROVING THE FORM OF AN AMENDMENT TO THE AMENDED AND RESTATED FUNDING, ACQUISITION AND DISCLOSURE AGREEMENT


WHEREAS, the City Council of the City of Brentwood (the “City”), by proceedings duly had and taken, previously provided for the formation of Assessment District No. 93-3 (the “District”), under and pursuant to the provisions of the Municipal Improvement Act of 1913, (being Division 12 of the California Streets and Highways Code), and assessments were levied on the parcels with assessments remaining unpaid; and
WHEREAS, certain property owners in the District have requested the City to conduct change and modification proceedings to reallocate the costs for the improvements of the New Concord Avenue to the prepayment of Roadway Fees to be used for capital improvements to the City’s Roadway System, as more particularly described in the Second Amendment to the Engineer’s Report attached hereto as Exhibit A; and
WHEREAS, each property owner affected by these change proceedings has submitted to the City a Consent and Waiver form in which it consents to and requests the proposed changes and modifications and the signed Consents and Waivers are on file with the City Clerk; and
WHEREAS, no property other than the property owned by such property owners will be affected by these proceedings; and
WHEREAS, these change proceedings will require the Amended and Restated Funding, Acquisition and Disclosure Agreement (the “93-3 Acquisition Agreement”), dated as of January 20, 1999, by and among the City and the Developers (as that term is defined in the 93﷓3 Acquisition Agreement) in the District to be amended; and
WHEREAS, an Amendment to the 93-3 Acquisition Agreement dated as of April 1, 2001 in substantially the form attached hereto as Exhibit B has been prepared and presented to the City Council for approval;
NOW THEREFORE, BE IT RESOLVED by the City Council of the City of Brentwood, as follows:
Section 1. The foregoing recitals are found and determined to be true and correct.
Section 2. The Council finds that the Consent and Waiver forms on file with the City Clerk are signed by the property owners affected by the proposed changes and modifications, and the signed Consents and Waivers constitute valid and knowing waivers of the rights accorded to the property owners affected by these proceedings and waived therein.
Section 3. Pursuant to Section 10352 of the Streets and Highways Code, this Council hereby orders change of proceedings without notice or hearing and approves and confirms the changes and modifications to be made in the District as described in the Second Amendment to the Engineer’s Report attached hereto as Exhibit A, a copy of which is on file with the City Clerk. The City Clerk is directed to file a copy of the Second Amendment to the Engineer’s Report describing the changes and modifications in the Engineer’s Report for the District which is on file in her office and in the office of the City Engineer.
Section 4. The form and substance of the Amendment to the 93-3 Acquisition Agreement attached hereto as Exhibit B is hereby approved. The City Manager is hereby authorized and directed to execute the Amendment in substantially said form, with changes and modification therein as the City Manager may require or approve after consultation with Bond Counsel, such approval to be conclusively evidenced by the execution thereof. The City Clerk is hereby directed to attach a fully executed copy of the Amendment to the 93-3 Acquisition Agreement on file in her office.
Section 5. The City Manager, City Treasurer, City Engineer, City Attorney, City Clerk and any and all other officers, agents and employees of the City are hereby authorized and directed to take any and all actions and execute and deliver any and all documents necessary or convenient to accomplish the purposes of this Resolution.
Section 6. This resolution shall take effect immediately.
PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a regular meeting on the 10th day of April, 2001, by the following vote:

Second Amendment to the Engineers Report
Assessment District 93-3
City of Brentwood, California



The purpose of this Second Amendment to the Engineers Report is to modify the purpose of the bonded funds, originally set aside to construct New Concord Avenue. This represents $2,655,858 (see Exhibit A, Description of Changes and Modifications with attached Assessment District Table). 

Pursuant to a request from Suncal, the total amount of these bonded funds will be applied to the prepayment of Roadway Fees. Roadway Fees are collected by the City of Brentwood according to the adopted Developer Impact Fee Program to fund capital roadway improvements in the City. New Concord Avenue is a listed improvement in the Developer Impact Fee Program. 


EXHIBIT A
MODIFIED ASSESSMENT DISTRICT NO. 93-3
CITY OF BRENTWOOD, CONTRA COSTA COUNTY, CALIFORNIA

DESCRIPTION OF IMPROVEMENTS

The City Council intends to order the acquisition of the following improvements under the authority of the Municipal Improvement Act of 1913:

1. Balfour Road;
Unchanged from original report.

2. Sellers Sewer;
Unchanged from original report.

3. Storm Drains;
Unchanged from original report.

4. Sewage Treatment;
Unchanged from original report.

5. New Water Wells;
Unchanged from original report.

6. Emergency Power;
Unchanged from original report.

7. Reservoir;
Unchanged from original report.

8. Reimbursement CIFP 88-1;
Unchanged from original report.

9. San Jose Water Line;
Unchanged from original report.

10. Water Line Booster Station;
Unchanged from original report.

11. San Jose Avenue;
Unchanged from original report.

12. Fire Station;
Unchanged from original report.


13. Fairview Avenue;
Unchanged from original report.

14. Non-Potable Water System;
Unchanged from original report.

15. Subtotal;
Items 1-14.

16. Hancock Entry Road;
Unchanged from original report.

17. ECCID Lateral Relocation;
Unchanged from original report.

18. Prepayment of Roadway Fees (Previously New Concord Avenue);
Improvements for New Concord Avenue from Balfour Road to 5 Drive consist of median curb, 64¢ of pavement, curb, gutter and sidewalk (both sides), utilities, median and parkway landscaping.

Improvements for 5 Drive from the easterly boundary of the Suncal project to new Concord Avenue consist of median curbs, 40¢ of pavement, curb and gutter (both sides) and utilities.

Improvements to New Concord Avenue from 5 Drive to 3 Drive consist of median curb (one side), 32¢ of pavement, curb and gutter (one side), and utilities.

Prepayment of Roadway Fees to be used for Capital Improvements to the City’s Roadway System.

19. 24” Waterline Relocation;
Unchanged from original report.

20. Subtotal;
Items 16-19.

21. Reimbursement Advance By Developers;
Unchanged from original report.

22. City Plan Check;
Unchanged from original report.



23. City Inspection Fee;
Unchanged from original report.

24. Soil Testing;
Unchanged from original report.

25. Soils Engineer;
Unchanged from original report.

26. Civil Engineering, Design & Construction Staking;
Unchanged from original report.

27. Project Construction Contingency;
Unchanged from original report.

28. Cash Contributions (24” Waterline Relocation);
Unchanged from original report.

30. Cash Contributions (New Concord Ave);
Deleted.

31. Incidental Costs Phase 1, 2 & 3;
Unchanged from original report.


EXHIBIT E
MODIFIED ASSESSMENT DISTRICT NO. 93-3
CITY OF BRENTWOOD, CONTRA COSTA COUNTY, CALIFORNIA 

METHOD OF ASSESSMENT


1. Balfour Road;
Unchanged from original report.

2. Sellers Sewer;
Unchanged from original report.

3. Storm Drains;
Unchanged from original report.

4. Sewage Treatment;
Unchanged from original report.

5. New Water Wells;
Unchanged from original report.

6. Emergency Power;
Unchanged from original report.

7. Reservoir;
Unchanged from original report.

8. Reimbursement CIFP 88-1;
Unchanged from original report.

9. San Jose Water Line;
Unchanged from original report.

10. Water Line Booster Station;
Unchanged from original report.

11. San Jose Avenue;
Unchanged from original report.

12. Fire Station;
Unchanged from original report.

13. Fairview Avenue;
Unchanged from original report.

14. Non-Potable Water System;
Unchanged from original report.

15. Subtotal;
Unchanged from original report.

16. Hancock Entry Road;
Unchanged from original report.

17. ECCID Lateral Relocation;
Unchanged from original report.

18. Prepayment of Roadway Fees (Previously New Concord Avenue);
Suncal 100%.

19. 4” Waterline Relocation;
Unchanged from original report.

21. Reimbursement Advance By Developers;
Unchanged from original report.

28. Cash Contributions (24” Waterline Relocation);
Unchanged from original report.

29. Cash Contributions (Balfour Road);
Unchanged from original report.

30. Cash Contributions (New Concord Avenue);
Deleted.

31. Incidental Costs Phases 1, 2 & 3;
Unchanged from original report.

34.-40. Incidental Costs;
Unchanged from original report. 
CITY OF BRENTWOOD
CAPITAL IMPROVEMENT FINANCING PLAN 94﷓1
ASSESSMENT DISTRICT NO. 93-3
AMENDMENT TO THE AMENDED AND RESTATED
FUNDING, ACQUISITION AND DISCLOSURE AGREEMENT

This Amendment (the “Amendment”), dated for convenience as of April 1, 2001, is made to the Amended and Restated Funding, Acquisition and Disclosure Agreement (the “Agreement”), dated as of January 20, 1999, by and among the City of Brentwood (the "City"), California Sun Properties, LLC, as succeeded by California Sun – Brentwood , LLC (hereinafter referred to as “SunCal”) and Brookfield Brentwood Lakes Inc. (hereinafter referred to as “Brookfield”).
Pursuant to paragraph D in the Recitals section of the Agreement, the City, SunCal and Brookfield hereby agree to amend (1) Exhibit A3, Description of Developer Improvements, (2) the Assessment District Payment Summary, and (3) Exhibit B, Estimate of Costs, of the Agreement for the purpose of reallocating the costs for the improvements of the New Concord Avenue to the prepayment of Roadway Fees to be used for capital improvements to the City’s Roadway System, as more particularly described in the Second Amendment to the Engineer’s Report approved by the City Council of the City on April 10, 2001 and on file with the City Clerk. Said amendments are shown on the following attachments, which are made a part hereof:
• Amended Exhibit A3, which supersedes Exhibit A3 attached to the Agreement;
• Amended Assessment District Payment Summary, which supersedes the Assessment District Payment Summary attached to the Agreement; and
• Exhibit B-1, a table showing the reallocated costs, which appends Exhibit B attached to the Agreement. 
Said amendments affect only SunCal and do not affect Brookfield in any respect.

Except as amended by this Amendment, the Agreement remains unchanged in all other respects.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the day and year first written above.

CITY OF BRENTWOOD CALIFORNIA SUN – BRENTWOOD, LLC





CITY OF BRENTWOOD
ASSESSMENT DISTRICT NO. 93-3
CONSENT AND WAIVER
The undersigned, as an authorized representative of California Sun - Brentwood, LLC , property owner (the “Property Owner”) of Assesssor’s Parcel Nos. 007﷓100-035, -030, -036 (portion), -025, -026, -031, -034, -032, -033, -027, -029, -012, -011 located in Assessment District No. 93-3, City of Brentwood, Contra Costa County, California (the “Assessment District”), hereby certifies, consents and waives as follows:
1. The undersigned, on behalf of the Property Owner, hereby requests the City of Brentwood to conduct change and modification proceedings in the Assessment District as described in the Second Amendment to the Engineer’s Report attached hereto as Exhibit A.
2. The undersigned, on behalf of the Property Owner, hereby consents to the changes and modifications to be made in the Assessment District as described in Exhibit A attached hereto.
3. The undersigned, on behalf of the Property Owner, hereby waives the right to any further notice of said changes and modifications to be made in the Assessment District and waives the right to any further public hearing before the City Council concerning said changes and modifications.
4. The undersigned, on behalf of the Property Owner, hereby further waives entitlement to receive mailed notice of said changes and modifications to be made in the Assessment District as otherwise required by law and acknowledges having received the full information which would otherwise be provided by such mailed notice.
5. The undersigned, on behalf of the Property Owner, hereby waives any entitlement to initiate any form of legal proceedings, including judicial proceedings, to challenge any aspect of the change proceedings.
6. The undersigned hereby expressly acknowledges that this certification, consent and waiver is given for the explicit purpose of inducing the City of Brentwood to proceed with the change and modification proceedings.
Dated: _________________, 2001

CALIFORNIA SUN - BRENTWOOD, LLC 
(Name of Property Owner)

By 
(Signature)

(Print name and title)

ITY OF BRENTWOOD
ASSESSMENT DISTRICT NO. 93-3
CONSENT AND WAIVER
The undersigned, as an authorized representative of Lafferty Homes at Deer Creek, L.P. , property owner (the “Property Owner”) of Assesssor’s Parcel No. 007﷓100﷓036 (portion) located in Assessment District No. 93-3, City of Brentwood, Contra Costa County, California (the “Assessment District”), hereby certifies, consents and waives as follows:
7. The undersigned, on behalf of the Property Owner, hereby requests the City of Brentwood to conduct change and modification proceedings in the Assessment District as described in the Second Amendment to the Engineer’s Report attached hereto as Exhibit A.
8. The undersigned, on behalf of the Property Owner, hereby consents to the changes and modifications to be made in the Assessment District as described in Exhibit A attached hereto.
9. The undersigned, on behalf of the Property Owner, hereby waives the right to any further notice of said changes and modifications to be made in the Assessment District and waives the right to any further public hearing before the City Council concerning said changes and modifications.
10. The undersigned, on behalf of the Property Owner, hereby further waives entitlement to receive mailed notice of said changes and modifications to be made in the Assessment District as otherwise required by law and acknowledges having received the full information which would otherwise be provided by such mailed notice.
11. The undersigned, on behalf of the Property Owner, hereby waives any entitlement to initiate any form of legal proceedings, including judicial proceedings, to challenge any aspect of the change proceedings.
12. The undersigned hereby expressly acknowledges that this certification, consent and waiver is given for the explicit purpose of inducing the City of Brentwood to proceed with the change and modification proceedings.
Dated: _________________, 2001

LAFFERTY HOMES AT DEER CREEK, L.P.
(Name of Property Owner)

By 
(Signature)

(Print name and title)

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