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HomeMy WebLinkAbout14 ADV/REIMBURSE RSCCD 12-5-05 AGENDA REPORT Agenda Item 14 Reviewed: ~ City Manager Finance Director MEETING DATE: DECEMBER 5, 2005 TO: FROM: WILLIAM A. HUSTON, CITY MANAGER PUBLIC WORKS DEPARTMENT/ENGINEERING DIVISION SUBJECT: APPROVAL OF AN ADVANCE AND REIMBURSEMENT AGREEMENT BETWEEN THE CITY OF TUSTIN AND RANCHO SANTIAGO COMMUNITY COLLEGE DISTRICT SUMMARY The proposed Advance and Reimbursement Agreement between the City of Tustin and Rancho Santiago Community College District provides for the early installation of a segment of the Warner Avenue Storm Drain Facility, which is part of the Tustin Legacy Backbone Infrastructure improvements. The Agreement further provides for the potential reimbursement to Rancho Santiago Community College District of funds advanced for installation of a segment of the Warner Avenue Storm Drain Facility from the proceeds of any future bonds issued by a Community Facilities District. RECOMMENDATION It is recommended that the City Council approve the Advance and Reimbursement Agreement between the City of Tustin and Rancho Santiago Community College District for the early installation of a segment of the Warner Avenue Storm Drain Facility, and authorize the Mayor and City Clerk to execute the Agreement on behalf of the City, subject to modifications by the City Attorney. FISCAL IMPACT None to the City. The Advance and Reimbursement Agreement identifies a cost estimate of $215,924.00 for the engineering design and construction of a segment of the Warner Avenue Storm Drain Facility. If a future Community Facilities District (CFD) is formed to fund a portion of the Tustin Legacy Backbone Infrastructure improvements then the City will assist Rancho Santiago Community College District in obtaining reimbursement from CFD bond proceeds. However, if a CFD is not formed then the City has no obligation under the proposed Agreement to repay Rancho Santiago Community College District for any portion of funds advanced or expended for these improvements. Approval of an Advance and Reimbursement Agreement between the City of Tustin and Rancho Santiago Community College District December 5, 2005 Page 2 BACKGROUND Rancho Santiago Community College District (RSCCD) desires to expedite the installation of a segment of the Warner Avenue Storm Drain Facility that is part of the Tustin Legacy Backbone Infrastructure improvements that will serve the RSCCD's Sheriff's Academy at Tustin Legacy. The City will assist RSCCD by granting an encroachment permit for the construction of a segment of the Warner Avenue Storm Drain Facility, and will assist RSCCD in obtaining reimbursements for these improvements. Approval of the Advance and Reimbursement Agreement will allow RSCCD to move forward with the development of their Sheriff's Academy facility at Tustin Legacy. The City Attorney's office is currently reviewing the Agreement and approval would be subject to modification by them. ~t;~~ C/l-èO.~ Tim D. Serlet Director of Public Works/City Engineer Engineering Services Manager Attachment: Advance and Reimbursement Agreement with RSCCD Approval of Agmt with RSCCD for Warner Storm Drain.doc ADVANCE AND REIMBURSEMENT AGREEMENT by and between the CITY OF TUSTIN and. RANCHO SANTIAGO COMMUNITY COLLEGE DISTRICT Dated as of December ,2005 207264.3 November 29, 2005 ADVANCE AND REIMBURSEMENT AGREEMENT THIS ADVANCE AND REIMBURSEMENT AGREEMENT (the "Agreement"), dated as of December -, 2005, is by and between the CITY OF TUSTIN, a general law city organized and existing under and by virtue of the laws of the State of California (the "City"), and RANCHO SANTIAGO COMMUNITY COLLEGE DISTRICT, a community college district organized and existing under and by virtue of the laws of the State of California (the "RSCCD"). RECITALS I. RSCCD owns real property at the northwest comer of Armstrong Avenue and Warner Avenue at Tustin Legacy in the City of Tustin and desires to expedite the installation of certain Storm Drain Improvements that are part of Tustin Legacy Backbone Infrastructure that will serve the RSCCD property ("Storm Drain Improvements"). 2. The Storm Drain Improvements consist of the design and installation of a fifty- four (54) inch storm drain pipe in Warner Avenue adjacent to the RSCCD property that will function as the Tustin Legacy Backbone storm drain facility in Warner Avenue in accordance with the Legacy Runoff Management Plan. 3. RSCCD desires to design and install the Storm Drain Improvements and to advance the funds therefor, provided RSCCD is reimbursed for its advances. 4. City desires to assist RSCCD by granting an encroachment permit in Warner Avenue for the Storm Drain Improvements, and assist RSCCD in obtaining reimbursement from CPO bond proceeds from the Master Developer, who would otherwise be obligated to fund the design and construction of the Storm Drain Improvements. 5. Section 53314.9 of the Mello-Roos Community Facilities Act of 1982 (the "Act") provides that, at any time either before or after the formation of a community facilities district, the legislative body may accept advances of funds from any source, including, but not limited to, private persons or private entities and may provide, by resolution, for the use of those funds for any authorized purpose, including, but not limited to, paying any cost incurred by the local agency in creating a community facilities district. 6. Section 53314.9 of the Act further provides that the legislative body may enter into an agreement, by resolution, with the person or entity advancing the funds, to repay all or a portion of the funds advanced, as determined by the legislative body, with or without interest, under all of the following conditions: (a) the proposal to repay the funds is included in both the resolution of intention to establish a community facilities district adopted pursuant to Section 53521 of the Act and in the resolution of formation to establish the community facilities district pursuant to Section 53325.1 of the Act, (b) any proposed special tax is approved by the qualified electors of the community facilities district pursuant to the Act, and (c) any agreement shall specify that if the qualified electors of the community facilities district do not approve the 207264.3 2 November 29. 2005 proposed special tax, the local agency shall return any funds which have not been committed for any authorized purpose by the time of the election to the person or entity advancing the funds. 7. The City anticipates that in 2006 the Master Developer will petition the City Council of the City (the "City Council") to establish, and that the City Council may establish, a community facilities district under the Act, the boundaries of which may include the property on which the Storm Drain Improvements will be located ("CPO") and that the CPO may, pursuant to the Act, issue bonds (the "Bonds") payable from special taxes levied on taxable property within the CPO, the proceeds of which will be used to finance the Storm Drain Improvements. 8. The City and RSCCD desire to enter into this Agreement in accordance with Section 53314.9 of the Act in order to provide for the advancement of funds by RSCCD to be used to pay costs of the early construction and installation to the Storm Drain Improvements ("Advance"), and to provide for the potential reimbursement to the RSCCD of such funds advanced, without interest, from the proceeds of any Bonds issued by the CPO. NOW, THEREFORE, for and in consideration of the mutual promises and covenants herein contained, the parties hereto agree as follows: Section 1. The Advances and Application Thereof. (a) Subject to the approval of the City Engineer: RSCCD shall design the Storm Drain Improvements described in Exhibit "A"; shall prepare plans and specifications for the work described in Exhibit "A"; and shall install the facilities described in Exhibit "A". RSCCD shall pay all funds necessary for such design work and construction costs, including City's plan checking costs. All reasonable and necessary out of pocket costs of RSCCD, except City's plan checking costs, shall be considered the "Advances". RSCCD shall submit evidence of the Advances to the City Engineer who shall verify that the funds were used for the design and construction of the Storm Drain Improvements. Upon City Engineer's written verification such Advances shall be considered "expended" for the purposes of Section 2. (b) The Storm Drain Improvements shall be publicly bid in accordance with the Califomia Public Contract and Labor Codes. (c) At all relevant times, during this Agreement and until the City has accepted the Storm Drain Improvements, RSCCD's design consultant shall maintain at least $1,000,000 in errors and omissions insurance, and shall be required to defend, indemnify and hold harmless the City, its officers, employees, and agents, from any and all claims, including claims by City, for personal injury and property damage due to consultant's negligence in designing the Storm Drain Improvements. Evidence of satisfaction of such insurance requirement and the City indemnity shall be provided to the City Engineer be RSCCD prior to RSCCD giving the contractor for the Storm Drain Improvements a notice to proceed. (d) At all relevant times, during this Agreement and until the Storm Drain Improvements have been accepted by the City Engineer, RSCCD's contractor shall maintain at least $1,000,000 in commercial general liability insurance, and shall be required to name City as an additional insured and defend, indemnify and hold harmless the City, its officers, employees, 207264.3 3 November 29, 2005 and agents, from any and all claims, including claims by City, for personal injury and property damage due to contractor's negligence or willful misconduct. Evidence of satisfaction of such insurance requirement and the City indemnity shall be provided to the City Engineer by RSCCD prior to RSCCD giving the contractor for the Storm Drain Improvements a notice to proceed. Section 2. Reimbursement. (a) Reimbursement of Advances expended or encumbered is dependent upon satisfaction of each of the conditions specified in Recital No.6 of the Agreement. Further as provided in Section 53314.9 of the Act, the approval by the qualified electors of the CPO of the proposed special tax to be levied therein is a condition to the repayment to RSCCD of the funds advanced by RSCCD pursuant hereto. Therefore, if the qualified electors of the CPO do not approve the proposed special tax to be levied therein, the City shall have no obligation to repay RSCCD any portion of the Advances expended or encumbered. In accordance with Section 53314.9 of the Act, if the qualified electors of the CPO do not approve the proposed special tax to be levied therein, the City shall return to RSCCD any portion of the Advances which have not been expended or encumbered by the time of the election on said proposed special tax. (b) If proceedings for the establishment of the CPO or the issuance of bonds thereby are terminated, the City shall, within ten business days after official action by the City or the CPO to terminate said proceedings, return the then unexpended and unencumbered portion of the Advances to RSCCD, without interest. (c) If Bonds are issued by the CPO, the City shall reimburse RSCCD, without interest, for the portion of the Advances that have been expended or encumbered, said reimbursement to be made within ten business days after the issuance of such Bonds, solely from the proceeds of such Bonds and only to the extent otherwise permitted under the Act. The City shall, within ten business days after the issuance of such Bonds, return the then unexpended and unencumbered portion of the Advances to RSCCD, without interest. (d) Except as provided in (a) above, City shall have no obligation to reimburse RSCCD for the Advances encumbered or expended. Section 3. Notices. All written notices to be given hereunder shall be given to the party entitled thereto at its address set forth below, or at such other address as such party may provide to the other parties in writing from time to time, namely: If to the City: City of Tustin 300 Centennial Way Tustin, California 92680 Attention: City Manager If to RSCCD: Rancho Santiago Community College District 207264.3 4 November 29, 2005 Each such notice, statement, demand, consent, approval, authorization, offer, designation, request or other communication hereunder shall be deemed delivered to the party to whom it is addressed (a) if personally served or delivered, upon delivery, (b) if given by electronic communication, whether by telex, telegram or teJecopier, upon the sender's receipt of an appropriate answerback or other written acknowledgment, (c) if given by registered or certified mail, return receipt requested, deposited with the United States mail postage prepaid, 72 hours after such notice is deposited with the United States mail, (d) if given by overnight courier, with courier charges prepaid, 24 hours after delivery to said overnight courier, or (e) if given by any other means, upon delivery at the address specified in this Section. Section 4. Estimated Cost. It is understood that the costs identified in Exhibit "A" attached hereto is the best available estimated costs for the Storm Drain Improvements. RSCCD and City agree that notwithstanding the estimated costs identified in Exhibit "A", the "Advances" approved by the City Engineer pursuant to Section 1 shall be the basis for any reimbursement. Section 5. No Effect on Failure to Form CFD or Issue Bonds. The obligation of RSCCD hereunder shall also not be affected by the failure of the City to establish the CPO or to issue and sell bonds within such CPO. It is also acknowledged by RSCCD that that the "Advances" approved by the City Engineer pursuant to Section 1 shall be the basis for any reimbursement. Section 6. Al!reement Not Debt or Liabilitv of City. As provided in Section 53314.9(b) of the Act, this Agreement does not constitute a debt or liability of the City. The City shall not be obligated to advance any of its own funds to pay the costs of the design or construction and installation of the Storm Drain Improvements or to reimburse the RSCCD for the Advances. No member to the City Council of the City and no officer, employee or agent of the City shall to any extent be personally liable hereunder. Section 7. California Law. This Agreement shall be governed and construed in accordance with the laws of the State of California. Section 8. Severabilitv. If any part of this Agreement is held to be illegal or unenforceable by a court of competent jurisdiction, the remainder of this Deposit Agreement shall be given effect to the fullest extent reasonably possible. Section 9. Successors and AssÏlms. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto. Section 10. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which shall constitute but one and the same instrument. 207264.3 5 November 29. 2005 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above. ATTEST: CITY OF TUSTIN Pamela Stoker, City Clerk By: , Mayor APPROVED AS TO FORM: , City Attorney ATTEST: RANCHO SANTIAGO COMMUNITY COLLEGE DISTRICT , Board Secretary By: , President, Board of Trustees APPROVED AS TO FORM: , General Counsel 207264.3 6 November 29,2005 EXHIBIT "A" PSOMAS COST ESTIMATE 10/26/2005 1.00 DESCRIPTION: Orange County Sheriff's Training Academy, Tustin 1.01 Off-site Drainage Alternate 3: 54" RCP Storm Drain in Warner Avenue Item Description Quantity Unit Unit Price TOTAL No. I 54" RCP Storm Drain 480 LF $180.00 $86,400 2 48" RCP Storm Drain 60 LF $136.00 $8,160 3 30" RCP Storm Drain 50 LF $85.00 $4,250 4 Junction Structure 3 EA $4,000.00 $12,000 5 24" RCP Storm Drain 30 LF $60.00 $1,800 6 CMP Junction Structure and Inlet 1 EA $4,500.00 $4,500 7 CMP Inlet 1 EA $2,000.00 $2,000 8 Mobilization! Demobilization 1 15 $5,000.00 $5,000 9 Remove existing RCP storm drain 60 LF $20.00 $1,200 10 Remove existing inlet structure 1 15 $1,000.00 $1,000 11 Dewatering trench 620 LF $35.00 $21,700 12 Remove existing AC pavement 2,200 SF $125 $2,750 13 Desilting Basin with Hydroseed 1 EA $2,000.00 $2,000 1.01 COST OF CONSTRUCTION: SUB - TOTAL: $152,760 . 14 Civil Engineer Design 1 LS $35,000.00 $35,000 1.01 TOTAL COST OF CONSTRUCTION AND DESIGN: SUB - TOTAL: $187,760 CONTINGENCIES: 15% $28,164 TOTAL: $215,924 NOTE: This.estimate is provided as a service to our client for comparative purposes only. Actual costs and quantities may vary due to a number of circumstances including but not limited to: changes in field conditions, availability and! or cost of materials, methods and! or timing of construction, and inflation. No cost guarantee is expressed or implied. Off-site dra;nage costs_W~rner.Av..SD.xls Est. Shts Page 1 of 1 2GKKOI0I00