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Home My WebLink About10 Attachment 1, Coldstream Phase 3 Water Development Agreement - first ame...Attachment 2 {00894323.DOCX 2 }First Amendment to Development Agreement – Coldstream Phase 3 -1- FIRST AMENDMENT TO PHASE 3 FINAL DEVELOPMENT AGREEMENT AND REIMBURSEMENT AGREEMENT BETWEEN THE TRUCKEE DONNER PUBLIC UTILITY DISTRICT AND COLDSTREAM PROPERTIES, LLC FOR CONSTRUCTION OF CERTAIN POTABLE WATER SYSTEM IMPROVEMENTS This FIRST AMENDMENT TO the PHASE 3 FINAL DEVELOPMENT AGREEMENT ("First Amendment") is made and entered into as of July ___, 2020 (the "Effective Date"), by and between COLDSTREAM PROPERTIES, LLC, a Delaware limited liability company ("Developer") and the TRUCKEE DONNER PUBLIC UTILITY DISTRICT, a local public agency of the State of California ("District"), who agree as follows: 1. Background and General. 1.1. Development Agreement. Developer and District are parties to that certain Phase 3 Development Agreement dated June 10, 2020 (the "Development Agreement") with respect to the construction of potable water facilities on certain real property located in the Town of Truckee, County of Nevada, California known as Coldstream. All capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Development Agreement. 1.2. Tank Facilities and Reimbursement. The Development Agreement provides that Developer shall construct the Tank Facilities and be reimbursed for the construction of the Tank Facilities on the terms contained therein. The Development Agreement further provides in Section 14C that the Developer and the District shall meet and confer if bids to construct the Tank Facilities are all in excess of $500,000. The stated purpose of the meet and confer is for Developer and the District to determine a mutually agreeable solution to reimburse Developer for all costs to construct the Tank Facilities, including any amounts in excess of $500,000. Because all bids to construct the Tank Facilities exceeded $500,000, Developer and District have met and conferred pursuant to section 14C and have agreed to a reimbursement structure for the Tank Facilities that is set forth in this First Amendment. 1.3. Purpose. The purpose of this First Amendment is to amend the Development Agreement in the manner set forth herein. 2. Reimbursement for Tank Facilities. 2.1. Lump Sum Payment for Amounts in Excess of $500,000. Notwithstanding any other provision of the Development Agreement, the District shall provide Developer with a “Lump Sum Payment” in the amount of the actual costs incurred to design and construct the Tank Facilities in excess of $500,000 (i.e. actual costs to design and construct the Tank Facilities minus $500,000 equals Lump Sum Payment). The entire Lump Sum Payment shall be paid by the District, in cash or other readily available funds, to Developer within 30 days following the completion of the construction of the Tank Facilities. Construction of the Tank Facilities shall be deemed complete upon either delivery by the Tank Facilities contractor of final lien waivers or the filing of a notice of completion for the Tank Facilities. Attachment 2 {00894323.DOCX 2 }First Amendment to Development Agreement – Coldstream Phase 3 -2- 2.2. Reimbursement of $500,000. The District shall reimburse Developer $500,000 of costs to design and construct the Tank Facilities (i.e. those costs not reimbursed by the Lump Sum Payment) in the manner set forth in Sections 14D through F of the Development Agreement. 3. Authorization to Contract for the Construction the Tank Facilities. Prior to entering into a construction contract for the Tank Facilities, Developer shall obtain authorization from the District’s Water Utility Director that the selected contractor’s bid is adequate and that Developer may enter into a construction contract with the selected bidder (such contract being the “Construction Contract”). 3.1. Change Orders to the Construction Contract. Any change order to the Construction Contract (a “Change Order”) must be approved by the District. The District’s General Manager may approve a Change Order so long as the Change Order would not increase the original amount owed under the Construction Contract by more than 10%. Any Change Order that would increase the original amount owed under the Construction Contract by more than 10% may be approved by the District’s Board of Directors. Any costs incurred by way of a Change Order shall be included in the actual costs to design and construct the Tank Facilities that are subject to reimbursement under the Development Agreement as amended by this First Amendment. 4. Development Agreement Remains in Effect. Except as amended herein either expressly or by necessary implication, the Development Agreement, and all terms and provisions therein, remain in full force and effect and are ratified in all respects by all parties hereto. 5. Counterparts. This First Amendment may be executed in any number of counterparts and each counterpart shall be deemed to be an original document. Delivery of the executed First Amendment may be accomplished by facsimile transmission and, if so, the facsimile copy shall be deemed an executed original counterpart of this First Amendment. All executed counterparts together shall constitute one and the same document, and an y signature pages, including facsimile copies thereof, may be assembled to form a single original document. IN WITNESS WHEREOF, the parties have executed this First Amendment as of the Effective Date. DEVELOPER: DISTRICT: COLDSTREAM PROPERTIES, LLC, a Delaware limited liability company Attachment 2 {00894323.DOCX 2 }First Amendment to Development Agreement – Coldstream Phase 3 -3- By: Name: Randall Sater Its: President By: Name: Ronald Gatto Its: Executive Vice President TRUCKEE DONNER PUBLIC UTILITIES DISTRICT, a local public agency of the State of California By: ____________________________________ Name: Remleh Scherzinger Its: General Manager/CEO