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HomeMy WebLinkAbout7 Easement for District Property Agenda Item # 7 PUblic Utility District ACTION To: Board of Directors From: Kathleen Neus Date: June 16, 2014 Subject: Consideration of Granting a Right of Entry and Easement Agreement Across District Owned Property for a Multi-use Trail 1. WHY THIS MATTER IS BEFORE THE BOARD Granting of an easement is within the sole purview of the Board. 2. HISTORY The District acquired the three parcels from Steele Enterprises in August of 2000, collectively known to the District as the Steele Property. The three parcels were already encumbered with Irrevocable Offers of Dedication (IODs) for trail and roadway use prior to the District's acquisition. Trout Creek runs through two of the three parcels. District staff has been working with the Town of Truckee staff to establish a trail alignment through District property along Trout Creek. The intent of the trail is to connect downtown Truckee and Tahoe Donner with a connector to the Pioneer Commerce Trail. In June of 2011, the District granted the Town of Truckee a Right of Entry to perform a Phase I Environmental Review. A month later a cultural resources review was conducted. In 2013, the District granted a Right of Entry for a Geotechnical survey. Six test pits were dug and the material evaluated. During this same time frame, additional topographic and field surveys were completed. In March of 2014, the Town of Truckee released a Negative Declaration Document for the proposed trail to the public and scheduled a public hearing for April 2014. During the review of the Negative Declaration, the Town of Truckee, District, Nevada County Environmental Health and Holdrege & Kull met and walked the proposed trail alignment. Nevada County Environmental Health requested that a work plan be developed with the intent to describe the results of historical research regarding past waste disposal activities that may have occurred in the vicinity of the proposed trail alignment. 3. NEW INFORMATION The Town of Truckee hired Holdrege & Kull to perform the digging and sampling of the test pits. The intent of the work plan was to evaluate whether the soil on the property have been impacted by past activities. Specifically whether or not a burn dump occurred on the property. Seven new test pits were dug and the soil evaluated along the proposed trail, which included a test pit uphill and downhill of the trail. No signs of a burn dump were observed during the digging and sampling of the test pits. The preliminary draft lab results for Trout Creek have been received. No significant contaminates were found. There were no SVOCs (semi volatile organic compounds), no PCBs (polychlorinated biphenyls), and TRPH (total recoverable petroleum hydrocarbons) were non-detectable. All of the metals are well below their respective action levels. There is no evidence of a human health hazard associated with the near- surface soils at this site. As additional portions of the alignment of the trail are set through District property outside of the existing IOD, an easement for the trail and trail maintenance is required. The exact alignment of the trail will be surveyed and recorded once the construction has been completed. Truckee Donner PUD needs to grant a Right of Entry and Easement Agreement to the Town of Truckee. District Counsel has reviewed the document and finds the document acceptable. The Right of Entry and Easement Agreement with a map is included as Attachment 1. 4. FISCAL IMPACT There is no direct fiscal impact associated with this item. 5. RECOMMENDATION Grant a new Right of Entry and Easement Agreement to the Town of Truckee for a multi-use trail across District property APN 19-400-28 and APN 19-400-29 located near Euer Valley Road in Truckee. r a Michael D. Holley General Manager Attachment 1 Recording Requested By: and Return to: Truckee Donner Public Utility District 11570 Donner Pass Road Truckee, CA 96161 Not Subject to Fees: GCS 27383 TRUCKEE DONNER PUBLIC UTILITY DISTRICT AND TOWN OF TRUCKEE RIGHT OF ENTRY AND EASEMENT AGREEMENT TROUT CREEK TRAIL This Right of Entry and Easement Agreement("Agreement") is made and effective this day of , 2014, in Truckee, California, by and among Truckee Donner Public Utility District, a public agency ("TDPUD") and the Town of Truckee, a municipality ("Town"). Section 1. RECITALS AND UNDERSTANDINGS A. The Truckee Donner Public Utility District (hereinafter "TDPUD"), a public agency, is the owner of that certain real property commonly known and described as Nevada County Assessors Parcel No. 19-400-28 and 19-400-29 (collectively, the "Property"). B. The Town of Truckee, a municipal corporation of the State of California (hereinafter "Town") is prepared to construct a Class I Recreational Trail (hereinafter"Project") across the Property. C. TDPUD and Town desire to cooperate in constructing the Project is substantially the form depicted on Exhibit A hereto, which Exhibit is incorporated by reference herein as if fully set forth. It is understood by the parties that Exhibit A represents 90% Design Plans and there may be minor modifications to the project when final plans are completed. 1 Right of Entry/Easement Agreement Attachment 1 D. For Town to construct the desired improvements, the granting of a right of entry and recreational trail easement across the Property by TDPUD is required. E. There is an existing Irrevocable Offer of Dedication for the Property for a right of way for a road, public utilities, pedestrian access and multipurpose trail together with drainage easements, recorded on August 3, 2000. This Agreement does not eliminate or otherwise affect the existing Offer of Dedication. Town shall endeavor to site future improvements within the Offer of Dedication area in a manner that minimizes impacts to the value of the Property and shall meet and confer with TDPUD prior to accepting the Offer of Dedication and determining the location of any future trail within the Offer of Dedication. F. Town and TDPUD intend to set forth in this document the terms and conditions under which such consent will be granted and construction of the improvements completed. G. The TDPUD may decide in the future to sell or develop portions of APN 19-400-28 and 19-400-29. At that time, the Trout Creek Trail easement will be considered by the Town of Truckee Planning Commission at the time of development approval as open/green space associated with these parcels in future development agreements in accordance with the most current Town of Truckee Development Code. The trail length is estimated at 4,575 linear feet and a width of 30 feet, for a total trail easement area of 3.15 Acres between the two parcels. Section 2. CONSIDERATION This agreement is entered for and in consideration of the mutual promises herein exchanged and other good and valuable consideration the receipt and adequacy of which is hereby acknowledged. Section 3. SCOPE OF WORK The scope of construction of the Project on the Property under this Agreement shall be as follows and as shown in Exhibit A: a. Grade and construct a 10 to 14-foot wide trail bed with aggregate base. 2 Right of Entry/Easement Agreement Attachment 1 b. Pave an 8 to 10-foot wide recreational trail with asphalt concrete. c. Provide for 1 to 2-foot shoulders on either side of the recreational trail. d. Pave an 8 to 10-wide recreational trail spur to connect to the existing Pioneer Center Trail. e. Install and maintain appropriate signs and safety measures. f. Construct retaining walls and install guard rails as needed. g. Install necessary drainage infrastructure associated with the trail. h. Use of existing disturbed areas for construction staging. i. Any remediation activities required within the Easement area by a government agency other than the parties. No change in said scope of construction shall be made without the prior written approval of TDPUD. Section 4. DUTIES OF TDPUD A. TDPUD hereby grants to Town right of entry to the Property as reasonably required for construction of the improvements from and until such time as the easement as described herein has been recorded in the Official Records of Nevada County, California. B. TDPUD hereby grants to Town, its agents, officers, employees and independent contractors the right of use and entry to, in, and upon the portions of the parcels upon which the Project is to be constructed as set forth in Exhibit A. C. TDPUD further grants Town, its independent contractors, agents, officers and employees, a right of use and entry for vehicular access for Project construction access purposes. D. TDPUD further grants Town, its independent contractors, agents, officers and employees, a right of use and entry for temporary construction staging for purposes of storing equipment and materials. 3 Right of Entry/Easement Agreement Attachment 1 Section 5. DUTIES OF TOWN OF TRUCKEE A. Town or its designee shall construct improvements shown on Exhibit A and described in Section 3, and accept the improvement for maintenance in accordance with Section 5.1. at no cost to TDPUD. Upon acceptance Town shall, at no cost to TDPUD, contract for and obtain the preparation, processing and recording of a legal description of the depicted easement in a manner consistent with applicable legal standards and regulations and record the same by plat map. B. Town shall take measures as reasonably required to minimize any impacts on the Property as a result of the Town's construction of the Project and related activities. C. Town shall comply with applicable laws, rules and regulations bearing on the Project, including but not limited to the California Environmental Quality Act, and obtain all permits and approvals required to carry-out the Project and conform to the requirements thereof. D. Town shall use the Property only for the purposes set forth in this Agreement. E. The Town agrees, on behalf of itself, its officials, employees, agents, independent contractors and volunteers to leave the Property after construction of the Project in the same condition as existed prior to the effective date of this Agreement, excluding improvements described in Section 3 above. The Town shall give TDPUD at least ten working days' prior notice, in writing, as to when the Town intends to file its Notice of Completion so TDPUD may inspect the Property and notify Town of any concerns regarding the Property and its condition. TDPUD's failure to inspect and/or notify shall not constitute a waiver by TDPUD. F. Insurance Requirements for Trail Construction The Town shall require that whoever carries out construction of the Project shall maintain, at their expense: (a) commercial general liability insurance in the amounts of at least $2,000,000 as single coverage and property damage insurance in the amount of at least 4 Right of Entry/Easement Agreement Attachment 1 $1,000,000, and (b) comprehensive automobile liability insurance in the amount of $1,000,000 per accident for bodily injury and property damage, insuring against all liability, claims, damages, costs,demands, or losses arising out of or in connection with the Town's operations and activities under this Agreement, including but not limited to the construction of the Project. Whoever carries out construction of the Project also shall maintain workers' compensation insurance as required by law. The insurance coverage may terminate upon the Town's recording of a Notice of Completion for the Project, as long as the insurance continues to cover any occurrences during and up to and including the date of recordation of the Notice of Completion. The commercial general liability and comprehensive automobile liability insurance policies shall be endorsed to name TDPUD, its directors, officers, officials, agents, volunteers and employees as additional insureds regarding liability arising out of the duties, activities and operations under this Agreement by the Town, its officers, employees, agents and independent contractors. The Town shall provide TDPUD with ISO CG 2010 endorsement forms or equivalent. The coverage shall contain no special limitations on the scope of protection afforded to TDPUD, its directors, officers, officials, agents, volunteers and employees. The coverage shall be primary and shall apply separately to each insured against whom a claim is made or suit is brought, except with respect to the limits of the insurer's liability. TDPUD's insurance, if any, shall be excess and shall not contribute with the insurance required in this Section. The insurance is to be placed with insurers with a current A.M. Best's rating of A:VII or better, unless otherwise acceptable to TDPUD. Prior to entering TDPUD Property under this Agreement and commencement of construction of the Project, the Town shall provide to TDPUD original endorsements evidencing the insurance required by this Section signed by persons authorized to bind coverage on behalf of the insurers. The certificates and policies shall provide that 30 days' written notice of any material change, reduction of coverage or cancellation of the insurance policies will be provided to TDPUD, or, if an endorsement providing such notice cannot be obtained, the Town shall require its contractor to provide notice of cancellation to TDPUD within 48 hours of the contractor's receipt of such notice. The requirements as to the types, limits, and TDPUD's approval of insurance coverage to be maintained pursuant to this Section are not intended to and shall not in any manner limit or qualify the liabilities and obligations assumed by the Town under 5 Right of Entry/Easement Agreement Attachment 1 this Agreement. In addition, in the event any change is made in the insurance carrier, policies or nature of coverage required under this Section, the Town shall notify TDPUD prior to the making of any such changes. G. Insurance Requirements for Easement Following inspection of the improvement by TDPUD, Town, at its sole cost and expense, shall maintain public liability self-insurance under its joint powers authority self-insurance pool insuring TDPUD, its officers, directors, officials, employees, agents and volunteers against all liability, claims, demands, damages, costs, or losses arising out of or in connection with Town's duties, operations and activities pursuant to this Agreement and the use of the Easement. The Town shall obtain from the self-insurance pool an additional covered party endorsement naming TDPUD, its directors, officers, officials, employees, agents and volunteers as additional insureds regarding liability arising out of Town's duties, activities and operations under this Agreement and the use of the Easement, on a form reasonably acceptable to TDPUD. The coverage shall contain no special limitations on the scope of protection afforded to TDPUD, its directors, officers, officials, employees, agents or volunteers. Town's coverage shall be primary and shall apply separately to each insured against whom a claim is made or suit is brought, except with respect to the limits of the insurer's liability. TDPUD's insurance, if any, shall be excess and shall not contribute with Town's insurance. Prior to the effective date of the Easement, Town shall provide to TDPUD endorsements evidencing this insurance signed by a person authorized to bind coverage on behalf of the self-insurance pool. The certificates and policies shall provide that 30 days'written notice of any material change, reduction of coverage or cancellation of the insurance policies will be provided to TDPUD. The requirements as to the types, limits, and TDPUD's approval of insurance coverage to be maintained by Town are not intended to and shall not in any manner limit or qualify the liabilities and obligations assumed by Town under this Agreement. In addition, in the event any change is made in the insurance carrier, policies or nature of coverage required under this Agreement, Town shall notify TDPUD prior to making such changes. 6 Right of Entry/Easement Agreement Attachment 1 H. Indemnification Town shall protect, indemnify, hold harmless and defend TDPUD, its directors, officials, officers, employees and agents, from and against any and all suits, actions, judgments, legal or administrative proceedings, arbitrations, claims, demands, causes of action, damages, liabilities, interest, attorney's fees, fines, penalties, losses, costs and expenses of whatsoever kind or nature, including but not limited to those arising out of injury to or death of Town's employees, to the extent caused or contributed to in whole or in part by reason of any negligent act, omission or fault or willful misconduct whether active or passive of Town, its employees, agents, independent contractors or invitees arising out of, in connection with or incidental to the performance of their duties, activities or operations under this Agreement or the use of the Easement (hereinafter referred to as "Claim" or"Claims"). Submission of insurance certificates or submission of other proof of compliance with the insurance requirements in this Agreement does not relieve Town from liability under this paragraph. The obligations of this paragraph shall apply whether or not such insurance policies shall have been determined to be applicable to the Claim. In any and all claims against TDPUD, or its directors, officers, officials, employees, volunteers or agents, by any employee of Town, any independent contractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, the indemnification obligation under this paragraph shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for Town or any of its independent contractors under Worker's Compensation acts, disability benefit acts or other employee benefit acts. I. Maintenance Upon completion of the trail construction, Town, at its sole expense, shall use, maintain, operate, repair and replace the trail and easement in accordance with acceptable maintenance standards and as described in Exhibit B. The Town's failure to comply with 7 Right of Entry/Easement Agreement Attachment 1 the maintenance standards identified in this agreement shall constitute default of the Agreement. J. Environmental Obligations Town shall, at its sole expense, comply with any remediation order issued by Nevada County Environmental Health with regard to trash, hazardous material, and non-natural debris discovered during the course of its, or its contractors or subcontractors, work pursuant to this Agreement or the Right of Entry Agreement, Trout Creek Trail CIP 6010- 06, by and between the Parties of date even herewith, and the remediation of any environmental condition to the extent Project work has disturbed or exacerbated existing environmental conditions and or hazardous materials during the course of the Project. In addition, Town shall comply with all applicable laws and regulations regarding the disposal or other treatment of materials encountered during the course of the Project. Section 6. RIGHT OF ENTRY This right of entry is expressly conditioned upon the following: A. Upon the completion of Project construction, Town shall restore any real property outside the easement which the Town or its contractors have disturbed to substantially the same condition that existed prior to construction activities as described in section 5E. B. The right of entry area includes the permanent trail easement area,temporary construction access, and temporary construction staging. C. The portion of the right of entry that is outside the permanent trail easement area shall expire once the trail construction is complete and a Notice of Completion has been filed. Section 7. EASEMENT A. Upon Project completion to the satisfaction of TDPUD (per section 5E), TDPUD hereby grants to Town a recreational trail easement(the"Easement')for the recreational trail over 8 Right of Entry/Easement Agreement Attachment 1 the TDPUD property to be used only for walking, jogging, biking, strollers, wheelchairs, rollerblading, skate-boarders and other non-motorized uses by the public. The Easement shall be 20 feet wide along the alignment depicted in Exhibit A and includes slope easements and drainage easements beyond the 20 foot width for purposes of maintaining the slopes adjacent to the trail. B. The term of this Agreement and the Easement created thereby, shall run with the land unless and until abandoned or removed by the mutual consent of the parties. C. The intent of the Easement is to provide a recreational paved public trail as part of the trail connection between Bridge Street and Northwoods Boulevard, Pioneer Center Trail, and other existing and future trails as shown in the Town of Truckee Trails and Bikeways Master Plan. Upon the mutual written consent of both parties, portions of the Easement may be altered or moved provided that: (i)the intent and usability of the public trail remains unchanged; (ii) the relocated or reconstructed trail meets all Town standards and legal requirements, including but not limited to compliance with the Americans with Disabilities Act; (iii) the relocated easement is reflected in a recorded document; and (iv) the cost of the relocation shall be borne by the party requesting it unless otherwise agreed by the parties in writing. D. At the completion of the construction of the trail, the Town will record a grant of easement that includes the Easement as described in this document. TDPUD shall cooperate with the Town in this and shall take such additional steps as may be necessary to ensure that the grant of easement is accepted for recordation, such as executing the grant of easement. E. The Town shall treat the Easement area as open space, and not treat it as impervious surface of any kind, for purposes of calculating open space, lot coverage, and density in connection with any future development of the parcels of real property burdened by the easement. The intent of the parties is that the existence of the easement shall not affect the density calculations for the affected parcels. 9 Right of Entry/Easement Agreement Attachment 1 Section 8. GENERAL PROVISIONS A. Entire Agreement This Agreement constitutes the entire agreement between the parties for the portion of the Project as shown on Exhibit A, except as otherwise provided in this paragraph. The parties intend this Agreement to be a final expression of their understanding for the transaction it covers. The Irrevocable Offer of Dedication referred to in Section 1.E herein is not voided with this Agreement, however the Project serves as the multipurpose trail portion of the improvements contemplated by the Offer of Dedication. Any attached addenda, either signed or initialed by the parties, shall be deemed a part of this Agreement. B. Amendments This Agreement may not be amended or modified in any respect except by a further agreement in writing executed by TDPUD and Town. C. Counterparts This Agreement and any supplement, addendum, or modification, including any photocopy or facsimile, may be executed in two or more counterparts, all of which constitute the same writing. D. Severability If any term or provision of this Agreement is, to any extent, held invalid or unenforceable, the remainder of this Agreement shall not be affected. E. Waivers No waiver or breach of any covenant or provision in this Agreement shall be deemed a waiver of any other covenant or provision, and no waiver shall be valid unless in writing and executed by the waiving party. F. Further Assurances Whenever requested by the other party, each party shall execute, acknowledge, and deliver any further conveyances, agreements, confirmations, satisfactions, releases, powers of attorney, instruments of further assurance, approvals, consents, and any further instruments and documents necessary, expedient, or proper to complete all conveyances, 10 Right of Entry/Easement Agreement Attachment 1 transfers, sales, and agreements under this Agreement. Each party shall also do any other acts and execute, acknowledge, and deliver all requested documents needed to carry out the intent and purpose of this Agreement. G. Third-Party Rights Nothing in this Agreement, express or implied, is intended to confer on any person, other than the parties and their respective successors and assigns, any rights or remedies under this Agreement. H. Construction, Recordation, and Binding Effect Headings in this Agreement are solely for the convenience of the parties and are not a part of and shall not be used to interpret this Agreement. The singular form shall include plural, and vice versa. This Agreement shall not be construed as if it had been prepared by one of the parties, but rather as if both parties have prepared it. This Agreement shall be recorded in the Official Records of Nevada County, California and shall run with the land and bind TDPUD's successors in interest. I. Governing Law This Agreement shall be governed by and construed in accordance with California law. J. Mediation The parties shall endeavor to resolve any disputes concerning this Agreement without resorting to litigation. The parties shall, upon written request from either party, participate in good faith in mediation in an effort to resolve any such disputes. Section 9. NOTICES All notices, statements, reports, approvals, or requests or other communications that are required either expressly or by implication to be given by either party to the other under this Agreement shall be in writing and signed for each party by such officers as each may, from time to time, authorize in writing to so act. All such notices shall be deemed to have been received on the date of delivery if delivered personally or three days after mailing if enclosed in a properly addressed and stamped envelope and deposited in a United States post office for delivery. Unless and until 11 Right of Entry/Easement Agreement Attachment 1 formally notified otherwise, all notices shall be addressed to the parties at their addresses shown below: Truckee Donner Public Utility District 11570 Donner Pass Rd Truckee, CA 96161 Attn: General Manager Town of Truckee 10183 Truckee Airport Road Truckee, CA 96161 Attention: Town Manager In Witness Whereof, TDPUD and Town, pursuant to action and approval hereof by the respective governing boards, have caused this Agreement to be executed on the day and year first above written as follows: Truckee Donner Public Utility District Town of Truckee By: By: Michael Holley, General Manager Town Manager, Tony Lashbrook 12 Right of Entry/Easement Agreement - - - . dla ,u ,o-n+„,e tl Qrr tif.. a ,� Cc• ,e +.. `"+: 'k"' f —' Zo' •¢?*. � �:, M ',..� <', . ,,.♦ , . 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