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Current Council Agenda and Past Meeting Information

 

CITY COUNCIL AGENDA ITEM NO. 10

Meeting Date: March 27, 2007

Subject/Title: Adopt a Resolution approving and authorizing the City Manager or designee to execute a Bypass Fee Accounting and Disbursement Agreement with the East Contra Costa Regional Fee and Financing Authority.

Prepared by: Debra Galey, Management Analyst

Submitted by: Bailey Grewal, Director of Public Works/City Engineer
____________________________________________________________________________

RECOMMENDATION
Adopt a Resolution approving and authorizing the City Manager or designee to execute a Bypass Fee Accounting and Disbursement Agreement with the East Contra Costa Regional Fee and Financing Authority (“ECCRFFA”).

PREVIOUS ACTION
On April 12, 1994, by Resolution No. 94-125, City Council approved a Joint Exercise of Powers Agreement between ECCRFFA and the Cities of Antioch and Pittsburg and the County of Contra Costa.

On July 13, 2004, by Resolution Nos. 2004-177, 2004-178, 2004-179 and 2004-180, City Council and Brentwood Infrastructure Authority approved Capital Improvement Financing Plan (“CIFP”) 2004-1 and authorized the sale and issuance of bonds for CIFP 2004-1.

On May 9, 2006, by Resolution No. 2006-93, City Council approved and authorized the City Manager to execute a Bypass Fee Accounting and Disbursement Agreement with ECCRFFA for fees financed as a part of the 2004 CIFP.

BACKGROUND
The 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 City’s CIFP, developers are able to prepay a portion, or all, of their ECCRFFA transportation fee. This assists the Bypass Authority to simultaneously construct Segments 1 and 3 of the Bypass through the City of Brentwood. This Bypass Fee Accounting and Disbursement Agreement identify the legal requirements by which these fees will be held by a trustee and disbursed to ECCRFFA.

ECCRFFA has approved this agreement at their board meeting of March 8, 2007.

FISCAL IMPACT
Administrative costs to cover City expenses are included as a part of the CIFP/Assessment District, Joint Powers Agreement and this Disbursement Agreement.

Attachments:
Resolution
Bypass Fee Accounting and Disbursement Agreement
RESOLUTION NO.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD APPROVING AND AUTHORIZING THE CITY MANAGER OR DESIGNEE TO EXECUTE A BYPASS FEE ACCOUNTING AND DISBURSEMENT AGREEMENT WITH THE EAST CONTRA COSTA REGIONAL FEE AND FINANCING AUTHORITY (“ECCRFFA”).

WHEREAS, 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, from time to time tax exempt bonds are issued through the Brentwood Infrastructure Financing Authority or the California Statewide Communities Development Authority on behalf of the City as a part of the City’s Capital Improvement Financing Programs (“CIFP”) to finance fees; and

WHEREAS, prepayment of fees through the Assessment District bond financing allows necessary infrastructure to be constructed prior to building permit issuance and home construction.

NOW, THEREFORE BE IT RESOLVED by the City Council of the City of Brentwood that:

1. The ByPass Fee Accounting and Disbursement Agreement, is hereby approved and the City Manager or designee is hereby authorized to execute said agreement.

2. Agreements in substantially similar form, which are prepared by Bond Counsel as ECCRFFA Regional Transportation fees are financed in future City of Brentwood Capital Improvement Financing Plans or the California Statewide Communities Development Authority, or amendments, which are acceptable to the Bypass Authority, approved by Bond Counsel and consistent with applicable law and the bond documents, are hereby approved and the City Manager or designee is authorized to execute such agreements.

PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a regular meeting held on the 27th day of March 2007 by the following vote:

ECCRFFA FEE ACCOUNTING AND DISBURSEMENT AGREEMENT
This FEE ACCOUNTING AND DISBURSEMENT AGREEMENT (this “Agreement”), dated as of _______________, 2007, 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 “JPA Agreement”);

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, from time to time tax exempt bonds are issued through the Brentwood Infrastructure Financing Authority or the California Statewide Communities Development Authority on behalf of the City 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;

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 Fees”
“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 Fees.

“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 the Authority.

“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, the amount of which shall be provided to Authority as identifed in Section 8 below, 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.
(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; and
Section 5. Requisition of Financed Fees. Authority shall request disbursement of Financed Fees from the City by transmitting a requisition to the City in the form attached hereto as “Exhibit A”. Such requisition shall be submitted upon occurence of actual expenses for Capital Improvements as provided in the JPA Agreement.
City agrees to pay or to cause the trustee 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. 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 times:
(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 earnings thereon.
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 tax purposes.
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 assigns.
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 forth below.
City: City of Brentwood
City Hall
150 City Park Way
Brentwood, California
Attention: City Engineer
Authority: Contra Costa Public Works Department
255 Glacier Drive
Martinez, CA 94553
Attn: Maurice M. Shiu, Secretary

Contra Costa Public Works Department
255 Glacier Drive
Martinez, CA 94553
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
By:_________________________________ BY: ___________________________
Donna Landeros, City Manager Secretary/Designee

Attest:
By:______________________________________
Margaret Wimberly, CMC, City Clerk
Form Approved: Form Approved:
Silvano B. Marchesi, County Counsel

By:_______________________________________ By:____________________________
Damien B. Brower, City Attorney David F. Schmidt
Deputy County Counsel

EXHIBIT A

REQUISITION NO. _____

To: City of Brentwood
[address for requisition]
[phone]
[fax]

Re: Expenditure of Financed Fees

The undersigned is a duly authorized officer of the Regional Fee Authority (the “Authority”). Pursuant to that certain ECCRFFA 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 (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.

Dated: ____________
EAST CONTRA COSTA REGIONAL FEE AND FINANCING AUTHORITY

By :
Title:
 

City Administration
City of Brentwood City Council
150 City Park Way
Brentwood, CA 94513
(925) 516-5440
Fax (925) 516-5441
E-mail allcouncil@brentwoodca.gov