HomeMy WebLinkAbout11 Railyard Development Agreementenda Item #
ACTION
To: Board of Directors
From: Sanna Schlosser
Date: January 19, 2017
Subject: Approval of a Electric Development Agreement with Truckee
Development Associates for the Railyard Phase 1 Project
11
1. WHY THIS MATTER IS BEFORE THE BOARD
Per District Code Section 7.12.030, approval by the Board of Directors is required for
any development agreement where the total value of on -site improvements being
installed by the applicant to be conveyed to the District for ownership, operation and
maintenance exceeds $400,000,
2. HISTORY
When a developer proposes to construct a new project, a development agreement is
necessary when there are facilities that will be constructed by the developer and then
conveyed to the District for ownership, operation and maintenance. The development
agreement is essentially a contract between a developer and the District. It describes
the responsibilities of each party with respect to a particular project. Separate
development agreements are created for the Electric Department and the Water
Department. Items addressed in a development agreement typically include:
• Costs and fees;
• Dedication of easements where necessary;
• Dedication of facilities constructed by the developer;
• Insurance;
• Indemnification;
• Project acceptance; and
• Warranty.
The development agreement will normally reference the approved drawings for a
project and the District's construction standards.
The development agreement process typically takes the following steps:
1) Initial discussions between the developer and the District regarding project
feasibility;
2) Development agreement application;
3) Review and revision of project plans (this may involve multiple rounds of review
& revision);
4) Preparation of development agreement;
5) Signing of development agreement and payment of costs and fees;
6) Project construction; and
7) Project acceptance and administrative closeout.
3. NEW INFORMATION
The Railyard is located at the east end of downtown Truckee. The project involves
the construction of residential and commercial development on land formerly owned
by Union Pacific Railroad (UPRR). The overall layout of the Railyard project is shown
on Figure 1. The property currently has overhead facilities through the project area.
The land has been purchased and is being developed by Truckee Development
Associates (TDA). TDA has been working with the Town for the past few years to
develop a project master plan and obtain approvals from the Planning Commission
and Town Council,
Currently, TDA plans to construct the main infrastructure to serve the first phase of
development this year. This infrastructure includes the removal of the existing
overhead lines through the site and installation of underground electrical facilities to
serve the project and support future building development. Construction cost for
these improvements will exceed $400,000.
The Water Department development agreement was brought before the Board at the
meeting on July 20, 2016.
4. FISCAL IMPACT
There is no direct fiscal impact to the District associated with this item. The developer will be
responsible to reimburse the District for all costs associated with design, engineering,
construction inspection and administration of the project.
5. RECOMMENDATION
Approve the development agreement and authorize the General Manager to execute
the agreement between Truckee Development Association and the District for the
Railyard Phase 1 electrical improvements.
Stephen Hollabaugh
Assistant General Manager
Michael D. Holley
General Manager
Attachment 1
ELECTRIC DEVELOPMENT AGREEMENT
BETWEEN THE
TRUCKEE DONNER PUBLIC UTILITY DISTRICT
AND
TRUCKEE DEVELOPMENT ASSOCIATES LLC
APN 19-420-68 thru 19-420-71
Truckee Railyard Redevelopment, Phase 1
This agreement is entered into between the TRUCKEE DONNER PUBLIC UTILITY DISTRICT, a
local public agency of the State of California, hereafter referred to as "the District," and TRUCKEE
DEVELOPMENT ASSOCIATES LLC, a California limited liability company, hereafter referred to as
'Developer," with respect to the following facts:
RECITALS
A. Developer is the owner of that certain real property located within Nevada County, California,
bearing Assessor's Parcel Numbers 19-420-68, 19-420-691 19-420-70 & 19-420-71 on which
Developer intends to construct "infrastructure for the Truckee Railyard redevelopment, phase 1
project", hereafter referred to as the "Project."
B. Developer intends to construct a complete electric distribution system for the Project in
accordance with the approved plans and specifications. Such system shall hereafter be referred
to as the "electric distribution system."
D. The electric distribution system is a necessary part of the Project, and Developer has requested
that the District accept the system by including it wn the District's existing integrated system.
Developer has further requested that, upon completion, the District thereafter own, operate,
maintain, repair, and replace the electric distribution system as necessary. If the total value of
the projects on -site improvements being installed by the Developer to be conveyed to the District
for ownership, operation and maintenance exceeds $400,000, the Development Agreement will
be brought to District's Board of Directors for review. The total value will be calculated by the
engineer of record.
E. The District is willing to accept the electric distribution system providing it is properly constructed
in accordance with the approved plans, specifications and terms of this Agreement.
F. Complete plans and specifications for the construction of the electric distribution system have
been prepared in accordance with the District's Rules and Regulations and with the
requirements and specifications as hereafter set forth. Copies of the approved plans and
specifications are on file in the District's Electric Department.
G. Developer has selected contractors for construction of the electric portion of this Project. The
names of the contracting firms, contact persons, mailing addresses, telephone numbers,
California Contractor License, insurance coverage verification and a schedule of construction
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dates have been included on data sheets entitled Contractor Firm Data Sheets, and are on file
in the District's Electric Department.
H. The following items are on file in the District office and incorporated herein by reference:
• Development agreement application
• Contracting firm data sheet — electric
• Union Pacific Railroad Company (UPR) Wireline Crossing Agreement
• Temporary Blanket Easement
• Proof of Insurance
• Project parcel map
• Site and Improvement plans - electric
• Estimated costs and calculation of fees - electric
• Improvements by and Responsibilities of Developer - electric
• Improvements by and Responsibilities of District -electric
• Project documentation policy
The parties agree as follows:
1. Payment of Costs and Fees. The District has prepared an estimate of its costs for materials,
labor, consultants, and legal expenses that the District expects to expend for administrative,
design, inspection, and actual construction (hereafter collectively referred to as the
"construction costs"). Upon start of construction, Developer shall deposit with the District
amounts that shall be applied to the actual construction costs incurred by the District. If the
actual cost exceeds the amount deposited, Developer shall pay such excess within thirty (30)
days of receipt of the District's invoice. If the actual cost is less than the amount deposited,
the District shall refund the difference within sixty (60) days of the date of unconditional
acceptance of the electric distribution system. Upon execution of this Agreement, Developer
shall also pay to the District the fees set forth in the estimated construction costs and
calculation of fees.
2. N/A
3. N/A
4. Provision of Easements -Permission to Enter Land. Developer will execute a temporary
blanket easement granting the right to do all things necessary for the construction of the
electric facilities including, but not limited to, a right to ingress and egress, a right to
temporarily store equipment and materials, to excavate, to drive vehicles over, to place
markers on, to survey, to inspect and repair, and to remove rocks, boulders, trees and plant
life in the course of excavation or re -excavation. The temporary easement will be abandoned
upon receipt by the District of a permanent easement for the maintenance and repair of the
electric distribution system.
5. Provision of Insurance -Upon execution of this agreement, Developer shall provide the
District with satisfactory evidence of an insurance policy written upon a form and by a
company which meets with the approval of the District, insuring the District, its officers,
agents and employees against loss or liability which may arise during the construction, or
which may result from any of the work or construction herein required to be done, including all
costs of defending any claims arising as a result thereof. The minimum limits of such policy
shall be in the amount of $2,000,000 for the death of or injury to any person in any one
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accident and $1,000,000 for the death of or injury to more than one person in any one
accident and $1,000,000 for property damage in any one accident. Such policy shall be
written in favor of Developer or its general contractor and subcontractors and also in favor of
the District, its officers, agents and employees and shall be maintained in full force and effect
until the electric distribution system are unconditionally accepted by the District. Such
insurance policy shall state by its terms or by an endorsement that it shall not be canceled
without thirty (30) days prior written notice to the District that the right of subrogation is waived
and that the coverage is provided on a primary and non-contributory basis.
6. Indemnification bX Developer. Developer shall indemnify, defend and save harmless the
District, its officers, agents and employees, and each of them, of and from any and all claims,
demands, causes of action, damages, costs, expenses, losses, or liabilities, in law or in
equity, of every kind and nature whatsoever, for, but not limited to, injury to or death of
Developer, any subcontractor of Developer, or any officers, agents or employees of the
District, of Developer, or of any subcontractor, or any other person, and damages to or
destruction of property of the District or any other person, arising out of or in any manner
directly or indirectly connected with the work to be performed underthis Agreement, however
caused, regardless of any negligence of the District or its officers, agents or employees,
except the active negligence or willful misconduct of the District.
7. Improvements by and Responsibilities of Developer. Developer shall perform and be
responsible for all labor and material expenses involved in performing the electric distribution
system improvements described in the design drawings and outlined under the general
construction notes entitled Customer to Supply and Install.
8. Improvements by and Responsibilities of District. The District shall assign a Project
Administrator to oversee the Project. The District shall perform electric distribution system
improvements at Developer's expense as described in the design drawings and outlined
under the general construction notes entitled TDPUD to Supply to the Customer, for
Installation by the Customer and TDPUD to Supply and Install at Customers Expense. The
construction costs deposited with the District shall be applied to the actual construction costs
unless otherwise indicated. If the actual construction costs exceed such deposit, Developer
shall pay such excess within thirty (30) days of receipt of the District's invoice.
9. Construction Inspection, The District shall inspect the construction from time to time, in order
to determine that the electric distribution system is installed in accordance with the approved
improvement plans, construction specifications and the terms of this agreement.
a. The District shall notify the Developer and/or the Developer's representatives in writing
as to any deviation from the approved improvement plans, construction specifications
and the terms of this agreement. The Developer and/or the Developer's representatives
shall correct such deviation or failure as soon as is reasonably practicable.
10. Timely Construction Required. Construction of the electric distribution system shall be
completed, as defined herein, within twenty-four (24) months from the date of execution of
this agreement. In the event Developer fails to complete the electric distribution system within
that time, the District may in its discretion (1) increase any and all fees and costs to equal the
District's current charges, (2) require Developer's plans and specifications to be updated and
redrawn to comply with the District's current standards, and (3) terminate this Agreement and
recover from Developer the full cost of all expenses and charges incurred by the District,
including but not limited to material, labor, backfill, paving and outside services.
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11. Developer's Warranty. Developer warrants and guarantees that all labor and materials
supplied by Developer are of a good and workmanlike quality, free of any defects of any type
whatsoever for a period of one (1) year after unconditional acceptance by the District. Within
the period of this warranty, Developer shall repair or replace, at Developer's expense, any
defective material or workmanship. The District shall notify Developer of any malfunction or
nonconformity promptly upon discovery. Within fifteen (15) business days after receiving
notice from the District, Developer shall commence to repair or replace the defective part and
will expeditiously pursue such work to completion and acceptance by the District. Emergency
repairs will be coordinated by District and charged to the Developer.
12. No Early Use of Protect. Developer shall not request or obtain a temporary occupancy
permit, final inspection approval, nor shall Developer use, or permit anyone else to use, any
portion of the electric distribution system on the Project, nor shall Developer use or permit
anyone else to use any electric service supplied by the District, until the District has granted
Conditional Acceptance in writing. Developer may, however, with the District's written
permission and prior to conditional acceptance, use electricity for metered construction
purposes. The District shall be entitled to terminate, without notice, any electric usage by
Developer or any other person, other than that required for construction purposes, occurring
prior to unconditional acceptance by the District of the entire electric distribution system.
13. Completion of the System. Construction shall be deemed complete when the District
determines that the electric distribution system has been entirely finished, properly tested,
and ready to service the Project in accordance with the District's Rules and Regulations and
qualifies for Unconditional Acceptance,
14. Conditional Acceptance. When the District has determined that the electric distribution
system has been completed, the District may conditionally accept the system and may
provide electric service, on a conditional basis, to the Project. Conditional service shall be
provided to enable Developer to use the Project while Developer is in the process of
providing to the District those items specified in the paragraph entitled "Requirements for
Unconditional Acceptance." Any conditional acceptance shall be in writing from the District
General Manager. If at any time the District, in its sole discretion, determines that Developer
is not making adequate progress toward providing the District with the required items or is
delinquent in not paying for metered electric services, then the District may, after providing
thirty (30) days prior written notice, discontinue conditional electric service to the Project. Any
electric service provided by the District prior to unconditional acceptance of the electric
distribution system shall be deemed conditional service.
15. Requirements for Unconditional Acceptance. Within thirty (30) days after completion as
determined by the District, Developer shall fully comply with all steps set forth below, and
upon such full compliance, the District shall unconditionally accept the electric distribution
system.
a. Developer shall execute an offer of dedication for the electric distribution system to the
District in a form satisfactory to the District, without cost, free, and clear of all liens and
encumbrances.
b. Developer shall certify that the Project was constructed with approved materials and in
compliance with the development agreement and the approved plans, except as noted
on the Project documentation drawings.
Page 4 of 8
c. Developer shall provide the District with Project documentation drawings in compliance
with District policy (see attached).
d. Developer shall provide the District with the appropriate permanent easements.
e. N/A
f. N/A
g. Developer shall provide the District with a statement of the "as -built" dollar value of the
installed electric distribution system with documentation to substantiate the stated value.
h. Developer shall pay any outstanding costs and fees. If the actual costs exceed the
amount deposited with the District, a funds transfer agreement can be executed to
transfer any remaining deposits that may be in the Water Development Agreement (if
applicable) to cover the amount due in the Electric Development Agreement.
16. Responsibilities After Unconditional Acceptance. Prior to unconditional acceptance of the
electric distribution system by the District, Developer shall be responsible for all maintenance
and repair of the electric distribution system. Upon unconditional acceptance of the electric
distribution system by the District, the District shall thereafter own, operate, maintain, repair
and replace the electric distribution system, unless such repairs or replacements are covered
by Developer's warranty. Thereafter, the District shall use its best efforts to provide adequate
electric service to the Project upon request, completion of any permit requirements and
payment of all appropriate fees and charges, in accordance with California law, Town of
Truckee, County of Nevada requirements and District Rules and Regulations.
17. Notices. Notices or requests from either party to the other shall be in writing and delivered or
mailed, postage prepaid, to the following addresses:
Correspondence: JASON HANSFORD
P.O. Box 10384
Truckee, CA 96160
Billings: TRUCKEE DEVELOPMENT ASSOCIATES
1201 Pine Street, Suite 151
Oakland, CA 94607
TRUCKEE DONNER PUBLIC UTILITY DISTRICT
11570 Donner Pass Road
Truckee, CA 96161
18. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of
the successors and assigns of all parties; however, Developer shall not assign any of its
rights, duties or obligations under this Agreement without the prior written consent of the
District.
19, District Powers. Nothing contained herein shall be deemed to limit, restrict, or modify any
right, duty, or obligation given, granted, or imposed upon the District by the laws of the State
of California now in effect, or hereafter adopted, nor to limit or restrict the power or authority
Page 5 of 8
of the District. The District may enact rules, regulations, resolutions, or ordinances, including,
without limitation, creation of service zones and rate differentials applicable within the Project
area that may not be applicable elsewhere, at its discretion.
20. Severability. In the event that any part or provision of this Agreement is found to be illegal or
unconstitutional by a court of competent jurisdiction, such findings shall not affect the
remaining parts, portions, or provisions of this Agreement.
21. Attorneys' Fees. In the event of any litigation concerning any controversy, claim or dispute
between the parties hereto, arising out of or relating to this Agreement or the breach hereof,
or the interpretation hereof, the prevailing party shall be entitled to recover from the other
party reasonable attorneys' fees and costs incurred therein or in the enforcement or collection
of any judgment or award rendered therein.
22. Entire Agreement. This Agreement contains the entire agreement of the parties and
supersedes any prior written or oral agreements between them concerning the subject matter
contained herein. There are no representations, agreements, arrangements, or
understandings, oral or written, between the parties relating to the subject matter contained in
this Agreement which are not fully expressed herein. The provisions of this Agreement may
be waived, altered, amended or repealed in whole or in part only upon the written consent of
all parties to this Agreement.
23. Dispute Resolution. If at any time during the Development Agreement process issues arise
that need resolution, the Developer should submit a written request to the Project
Administrator responsible for the Project in question. Such request shall state all of the
items of concern. The Developer can expect a response within 10 business days from
receipt of request. If no resolution is reached, the Developer can request a meeting with the
District's General Manager. If still no resolution is reached, the Developer can request a
meeting before the Board to resolve the issue. The item shall be agendized before the Board
for the next scheduled regular Board meeting. Scheduling shall be consistent with the Brown
Act and must occur with at least 72 hours prior notice. Only after this process is exhausted
without resolution of the dispute may the parties proceed to litigation. If either party
commences a court action against the other based on a dispute or claim to which this
paragraph applies without first complying with the provisions of this paragraph, the party
commencing the court action shall not be entitled to recover attorney's fees or costs, even if
they would otherwise be available in such court action.
24. Forum. Any litigation to enforce or interpret the provisions of this Agreement or the parties'
rights and liabilities arising out of this Agreement or the performance hereunder shall be
maintained only in the courts in the Superior Court in and for the County of Nevada,
California, if in state court, or the Federal Court for the Eastern District of California, if in
federal court.
25. Captions. The captions and headings of the different paragraphs of this Agreement are
inserted for convenience of reference only, and are not to betaken as part of this Agreement
or to control or affect the meaning, construction, or effect of the same.
26. Necessary Acts. Each party to this Agreement agrees to perform any further acts and
execute and deliver any further documents that maybe reasonably necessary to carry out the
provisions of this Agreement.
Page 6 of 8
27. No Waiver. The waiver by one party of the performance of any covenant, condition or
promise shall not invalidate this Agreement, nor shall it be considered as a waiver by such
party of any other covenant, condition or promise. The delay in pursuing any remedy or
insisting upon full performance for any breach or failure of any covenant, condition or promise
shall not prevent a party from later pursuing remedies or insisting upon full performance for
the same or any similar breach or failure.
28. Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of California.
This Agreement shall be binding upon the parties only when signed by all parties. The District
representative shall not sign this Agreement until Developer has provided all costs, fees and items
required to be provided by Developer "upon execution of this Agreement."
Dated:
Truckee Development Associates, LLC
By: Richard M. Holliday, Manager
Dated:
Truckee Donner Public Utility District
By: Michael D. Holley, P.E., General Manager
Page 7 of 8
Estimated Costs and Calculation of Fees
ESTIMATED ELECTRIC FEES
FACILITIES, CONNECTION, AND METERING
Railyard Phase 1
W0#10-644289
1.FACILITIES FEES
No Facilities Fees for Phase 1
2.CONNECTION FEES
Retirement of poles and overhead lines
Installation of underground line
extension Material Cost
Labor Cost
3.METERING FEES
Replacement of 3-single phase 120/240V meters
with three 208/120V Network
meters Material cost
Labor cost
$0.00
Total Facilities Fees $0.00
$225,497.15
$174, 932.94
Total Connection Fees $400,430.09
$711.99
$650.60
Total Metering Fees $1,362.59
TOTAL $401,792.68
Project Documentation Deposit (see note 1.) 5.0% $20,089.63
$1000 minimum deposit
GRAND TOTAL $421,882.31
Less Deposit Paid 12/17/10 ($1,000.00)
BALANCE DUE $4201882.31
Note:
1. The Project Documentation Deposit will be refunded to the developer when the project as -built drawings
have been submitted to and accepted by the District in accordance with District policy. See Development
Agreement for As -Built policy.
Attachment 2
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