CITY COUNCIL AGENDA ITEM
Meeting Date: May 9, 2006
Subject/Title: Adopt a Resolution approving and authorizing the City Manager
to execute a ByPass Fee Accounting and Disbursement Agreement with the East
Contra Costa Regional Fee and Financing Authority.
Prepared by: Engineering: D. Galey
Submitted by: Engineering: B. Grewal
Adopt a Resolution approving and authorizing the City Manager to execute a
ByPass Fee Accounting and Disbursement Agreement with the East Contra Costa
Regional Fee and Financing Authority.
On April 12, 1994, by Resolution No, 94-125, City Council approved a Joint
Exercise of Powers Agreement between the East Contra Costa Regional Fee and
Financing Authority and the Cities of Antioch and Pittsburg and the County
of Contra Costa.
On July 13, 2004, by Resolution No.’s 2004-177, 2004-178, 2004-179,
2004-180, City Council and Brentwood Infrastructure Authority approved
Capital Improvement Financing Plan 2004-1 and authorized the sale and
issuance of bonds for CIFP 2004-1.
On March 28, 2006, City Council supported the expenditure of $200,000 in
City funds for landscaping along the State Route 4 ByPass Segment 3 project
located east of Fairview Avenue and north of Concord Avenue.
The Capital Improvement Financing Program (CIFP) is a financing mechanism
that is used to fund infrastructure improvements necessary to support the
development of the City. Residential and commercial developers participate
in the CIFP by either prepaying their facility fees prior to recordation of
the final map, or participating in the assessment district. The assessment
district then sells bonds against future developed property to provide
revenue for the construction of needed infrastructure, with the City acting
as the custodian to disperse funds after the improvements are completed.
This means of financing the prepayment of facility fees enables the City to
construct much-needed infrastructure ahead of new development, instead of
waiting to collect the fees at building permit issuance.
As a part of the 2004-1 CIFP, nine residential developers prepaid a portion
of their East Contra Costa Regional Fee and Financing Authority (ECCRFFA)
transportation fee totaling $4,845,440. This assisted the Bypass Authority
to simultaneously construct Segments 1 and 3 of the ByPass through
Brentwood. This ByPass Fee Accounting and Disbursement Agreement identifies
the legal requirements by which these fees will be held by a trustee and
disbursed to ECCRFFA. In addition to disbursement of prepaid fees, the
agreement also memorializes the commitment made by the City for landscape
funds in the amount of $200,000 to be used by the Authority along Segment 3
of the ByPass, specifically east of Fairview Avenue and north of Concord
The East Contra Costa Regional Fee and Financing Authority approved this
agreement at their board meeting of April 13, 2006.
Administrative costs to cover City expenses are included as a part of the
2004-1 CIFP/Assessment District, Joint Powers Agreement and this
Disbursement Agreement. The landscape contribution is able to be funded by
interest earned from Capital Improvement accounts.
Bypass Fee Accounting and Disbursement Agreement
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD APPROVING AND
AUTHORIZING THE CITY MANAGER TO EXECUTE A BYPASS FEE ACCOUNTING AND
DISBURSEMENT AGREEMENT WITH THE EAST CONTRA COSTA REGIONAL FEE AND FINANCING
WHEREAS, the East Contra Costa Regional Fee and Financing Authority (ECCRFFA)
is a joint exercise of powers authority created pursuant to an Agreement,
dated as of August 9, 1994, by and among the City and the Cities of Antioch,
Pittsburg and Oakley and the County of Contra Costa for the funding of
regional transportation improvements; and
WHEREAS, the City of Brentwood Capital Improvement Financing Plan 2004-1
issued bonds financing the prepayment of ECCRFFA regional transportation
WHEREAS, the City Council supports landscaping along the State Route 4
ByPass and has supported the expenditure of City funds for landscaping to be
located specifically along Segment 3 of the ByPass, east of Fairview Avenue
and north of Concord Avenue.
NOW, THEREFORE BE IT RESOLVED by the City Council of the City of Brentwood
1. A ByPass Fee Accounting and Disbursement Agreement, is hereby approved
and the City Manager is hereby authorized to execute said agreement.
2. The City Manager is authorized to execute same agreement as ECCRFFA
Regional Transportation fees are financed in future City of Brentwood
Capital Improvement Financing Plans.
PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at
a regular meeting held on the 9th day of May 2006 by the following vote:
BYPASS FEE ACCOUNTING AND DISBURSEMENT AGREEMENT
This FEE ACCOUNTING AND DISBURSEMENT AGREEMENT (this “Agreement”), dated as
of _______________, 2006, by and between the City of Brentwood, California
(the “City”), and the EAST CONTRA COSTA REGIONAL FEE AND FINANCING AUTHORITY
(the “Authority”), a joint exercise of powers authority created pursuant to
an Agreement, dated as of August 9, 1994, by and among the City and the
Cities of Antioch, Pittsburg and Oakley and the County of Contra Costa (the
W I T N E S S E T H:
WHEREAS, pursuant to the JPA Agreement and Resolution No. 2417 adopted by
the City Council of the City on November 27, 2001, the City levies and
collects certain regional impact fees (the “Fees”) to finance Projects (as
defined in the JPA Agreement) from developers of real property (each a
“Developer”) within the City;
WHEREAS, the City from time to time issues tax exempt bonds through the
Brentwood Infrastructure Financing Authority as a part of the City’s Capital
Improvement Financing Programs to finance Fees;
WHEREAS, in order to accommodate the legal requirements with respect to Fees
financed with such bonds (the “Financed Fees”), the City and the Authority
intend to provide an alternative method for holding and disbursing proceeds
of the Financed Fees as provided herein;
WHEREAS, the City Council of the City of Brentwood supports landscaping to
be constructed as a part of Projects and pursuant to the City Council
meeting of March 28, 2006, authorized expenditure of funds, to be disbursed
from City to Authority, for the construction of landscape improvements (the
NOW, THEREFORE, THE PARTIES HERETO MUTUALLY AGREE AS FOLLOWS:
Section 1. Definitions. As used herein, the following capitalized terms
shall have the meanings ascribed to them below:
“Authorized Officer” means (a) when used with respect to Authority, any
member of the governing board of Authority and such additional person or
persons, if any, duly designated by Authority in writing to act on its
behalf, and (b) when used with respect to City, the City Manager or any
person or persons duly designated by the City Manager in writing to act on
the City’s behalf.
“Bond Counsel” means Orrick, Herrington & Sutcliffe LLP or such other firm
of national recognized bond counsel appointed by the City.
“Bonds” means bonds issued by and on behalf of the City to finance “Financed
“Capital Improvements” has the meaning given to that term in Section 4.
“Expenses” means costs actually incurred by the City to account for the
Financed Fees, including without limitation applicable pro-rata portion of
charges by the trustee for any Bonds, arbitrage rebate compliance charges
and arbitrage rebate payments, if any, required to be paid by the City to
the United States Government attributable to the earnings on the Financed
“Financed Fees” means those certain development impact fees levied by the
City pursuant to the JPA Agreement and funded from the proceeds of Bonds.
“JPA Agreement” means the Joint Exercise of Powers Agreement, dated as of
August 9, 1994, including all amendments, among the City and the Cities of
Oakley, Pittsburg and Antioch and the County of Contra Costa, establishing
“Landscape Funds” means monies, in the amount of $200,000, contributed by
City to Authority for the construction of landscape improvements as a part
of projects, specifically State Route 4 ByPass Segment 3.
“Projects” has the meaning ascribed thereto in the JPA Agreement.
Section 2. Nature of Financed Fees. City and Authority acknowledge that City
has the authority and responsibility to collect the Financed Fees for the
benefit of the Authority pursuant to the JPA Agreement. Authority
acknowledges that, the Financed Fees are funded from the proceeds of Bonds,
and until such amounts are spent on actual Projects, such amounts must be
treated and accounted for as Bond proceeds under applicable law and the
documents providing for issuance of the Bonds.
Section 3. Accounting of Financed Fees. City agrees to promptly deposit
Financed Fees in the amount of $4,845,440 (from prepaid fees as shown on
Exhbit B) in a separate interest bearing account held by City or by the
trustee for the Bonds, and to account for such funds and any interest
earnings thereon separately from any other proceeds of Bonds or other City
funds, and to retain accurate records as to the investment and expenditure
of the Financed Fees. Earnings on Financed Fees, except to the extent
required to pay Expenses, shall be retained in such accounts and shall be
available to the Authority for requisition in accordance with Section 5.
Section 4. Expenditure of Financed Fees and Landscape Funds.
(a) Authority agrees to expend the Financed Fees for the construction and
installation of capital facilities and improvements (the “Capital
Improvements”) as provided in the JPA Agreement;
(b) Authority agrees that all Financed Fees will be used for Capital
Improvements not yet constructed or installed at the time Bonds are issued
to pay such Financed Fees;
(c) Authority agrees that no portion of the Financed Fees will be applied to
the payment of debt service on outstanding debt obligations of Authority;
(d) Authority agrees to expend Landscape Funds as a part of Capital
Improvements and construct landscape improvements to be located north of
Concord Avenue and east of Fairview Avenue, in conjunction with and adjacent
to State Route 4 ByPass Segment 3 located in the City of Brentwood.
Section 5. Requisition of Financed Fees and Landscape Funds. Authority shall
request disbursement of Financed Fees and Landscape Funds from the City by
transmitting a requisition to the City in the form attached hereto as
“Exhibit A”. Such requisition shall be submitted at the following stages of
(a) disbursement of 100% of Financed Fees upon award of a construction
contract for State Route 4 ByPass Segment 3; and
(b) disburesment of 100% Landscape Funds at such time as landscape
City agrees to pay, by check mailed within [fifteen days] of the date of
receipt of such requisition, the amount requested in such requisition to or
upon the order of the Authority; provided that the obligation of the City to
make such payment shall be limited to the amount of Financed Fees and
earnings thereon actually on deposit with the City or the trustee for the
Bonds and limited to the amount of Landscape Funds as described in Section
1. Under no circumstances shall City be required to pay or advance funds to
the Authority with respect to this Agreement from any other source, except
as provided otherwise in the JPA Agreement.
Section 6. Investment of Financed Fees. City agrees to invest the Financed
Fees in investments permitted under the applicable documents providing for
the issuance of the Bonds and in accordance with the City’s investment
policies in effect from time to time.
Section 7. Expenses from Financed Fees. City shall retain a portion of each
requisitioned payment from Financed Fees, in an amount not to exceed 1%,
necessary to pay Expenses, including Administration, incurred by the City;
provided that any such amounts retained by the City shall not exceed the
amount of interest earnings available in such account. In no event shall the
principal amount of the Financed Fees be used to pay any Expenses.
Section 8. Notice of Issuance of Bonds. City agrees that it will cause
Authority to be provided with the following information at the following
(a) promptly upon issuance of any Bonds to pay Financed Fees, a description
of Financed Fees including the amount of the Financed Fees and the property
for which the Financed Fees are funded; and
(b) upon request, a statement of all Financed Fees, Expenses and interest
Section 9. Term of this Agreement. This Agreement shall be in full force and
effect from this date to and including its termination by mutual written
agreement of the parties hereto. The Authority agrees to terminate this
Agreement upon request of City upon delivery to Authority of an opinion from
Bond Counsel to the effect that the termination of this Agreement will not
adversely affect the exclusion from gross income of interest on the Bonds
for federal income tax purposes. In that case, City shall promptly remit to
Authority any undisbursed Financed Fees as required under the JPA Agreement.
Section 10. Amendment of this Agreement. This Agreement may be amended only
by a written instrument executed by the parties hereto; provided that any
such amendment shall be conditioned upon delivery to Authority of an opinion
of Bond Counsel to the effect that such amendment will not adversely affect
the exclusion from gross income of interest on the Bonds for federal income
Section 11. No Waiver. Authority is entering into this Agreement as an
accommodation to City to enable City to comply with the regulations
applicable to the Bonds issued by City to fund the Financed Fees. Nothing in
this Agreement is intended to or shall be construed to amend, repeal, or
waive any of the provisions in the JPA Agreement which shall continue in
full force and effect..
Section 12. Successors in Interest. This Agreement and all of the provisions
hereof shall be binding on the parties hereto and their successors and
Section 13. Severability. If any section, paragraph, sentence, clause or
provision of this Agreement shall for any reason be held to be invalid or
unenforceable, the invalidity or unenforceability of such section,
paragraph, sentence, clause or provision shall not affect any of the
remaining provisions of this Agreement.
Section 14. Choice of Law. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of California.
Section 15. Execution. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all
together shall constitute but one and the same agreement.
Section 16. Notices. Any notice, request, complaint, demand, communication
or other paper required or permitted to be delivered to this Escrow
Agreement shall be addressed to the appropriate party at the addresses set
City: City of Brentwood
150 City Park Way
Attention: City Engineer
Authority: Contra Costa Public Works Department
255 Glacier Drive
Martinez, CA 94553
Attn: Maurice M. Shiu, Secretary
Attn: Dale Dennis, Program Manager
IN WITNESS WHEREOF, the City and the Authority have caused this Agreement to
be executed each on its behalf by an authorized representative as of the day
and year first above written.
CITY OF BRENTWOOD
EAST CONTRA COSTA FEE AND FINANCING AUTHORITY
REQUISITION NO. _____
To: City of Brentwood
[address for requisition]
Re: Expenditiure of Financed Fees/Landscape Funds
The undersigned is a duly authorized officer of the Regional Fee Authority
(the “Authority”). Pursuant to that certain ByPass Fee Accounting and
Disbursement Agreement, dated as of ____________________, 2006 (the
“Agreement”) by and between the Authority and the City of Brentwood (the
“City”), the Authority hereby requests a withdrawal of Financed
Fees/Landscape Funds (as defined in the Agreement”) as follows:
Request Date: __________________
Withdrawal Amount: __________________
Payee name and address: ___________________
The undersigned hereby certifies as follows:
1. The Withdrawal is being made in accordance with a permitted use of such
monies pursuant to the Agreement, and the Withdrawal is not being made for
the purpose of reinvestment.
2. None of the items for which payment is requested have been reimbursed
previously from other sources of funds (other than reimbursement to the
Authority for amounts actually expended on Projects as provided in the
Agreement within 60 days of the date of this request). The Withdrawal Amount
will be applied to the payment of an authorized cost to a third party not
related to the Authority or the City no later than 60 days after the date of
receipt thereof by the Authority.
3. If the Withdrawal Amount is greater than the amount of Financed Fees and
earnings thereon, the City is authorized to amend the amount requested to be
equal to the available amount of such funds.
EAST CONTRA COSTA REGIONAL FEE AND FINANCING AUTHORITY