HomeMy WebLinkAbout11 Coldstream Development Agreement AmendmentTRUCKEE DONNER
Public Utility District
MEETING DATE: August 5, 2020
TO: Board of Directors
AGENDA ITEM #11
FROM: Brian Wright, Water Utility Director/Assistant GM
SUBJECT: Consideration for Approval of an Amendment to the
Coldstream Development and Reimbursement Agreement
with Coldstream Properties, LLC
APPROVED BY �`-
Brian Wright, Water Utility or/Assis ant G neral Manager
RECOMMENDATION:
Approve the First Amendment to the development and reimbursement agreement and
authorize the General Manager to execute the 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.
BACKGROUND:
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.
At the June 3, 2020 meeting, the Board approved a development and reimbursement
agreement between the District and Coldstream Properties, LLC. for the construction of
certain potable water system improvements associated with Phase 3 of the Coldstream
Development (PC-1). A copy of the development and reimbursement agreement has been
included with this staff report as Attachment 1. The water utility system improvements
included on -site water utility distribution system infrastructure within the development's
phase 3 parcels, as well as the design and construction of an off -site potable water storage
tank at the District's Red Mountain facility.
In June, 2020, Teichert Construction issued a request for bids for the construction of the
Red Mountain potable water storage tank. The scope of work included the construction of
a welded steel potable water storage tank as well as site preparation such as grading,
Page 1 of 3
foundation construction and associated underground pipe and valve modifications.
Following review of bids for compliance with District standards and specifications,
contractor experience and familiarity with similar projects in the region, and proposed
construction schedules, Teichert Construction, with approval from staff, identified Crosno
Construction from Arroyo Grande, CA as the most favorable contractor for the project.
The total bid price for the project is $869,820. This total bid price exceeds the original
development and reimbursement agreement limit of $500,000. Staff has reviewed the bid
schedules submitted by Teichert to identify the variances between the original engineer's
estimate and the total bid price received.
Factors contributing to the increased cost include the additional necessary site
excavation and preparation required as identified in the geotechnical survey conducted
prior to advertisement of the bid request, an added retaining wall to support minor grade
changes, as well as some additional pipe modifications to existing facility pipe
alignments.
To address any variance between the original development agreement and the total actual
costs for design and construction of the tank, the development and reimbursement
agreement included a provision for both parties (Developer and District) to meet and confer
if total costs to design and construct the Red Mountain storage tank exceed $500,000. In
accordance with this provision, staff has worked in cooperation with Teichert Construction
and District Counsel to draft an amendment to the development agreement (Attachment 2).
The amendment includes provisions to reimburse the developer up to $500,000 of actual
costs to design and construct the tank facilities in accordance with Sections 14D through F
of the Development agreement, and reimburse the developer with a "Lump Sum Payment"
for actual costs to design and construct the tank facilities in excess of $500,000 upon
completion of the project and acceptance of ownership by the District.
Total estimated costs for the design and construction of the Red Mountain storage tank
facilities are provided below:
Description of Work
Proposed Cost
Red Mountain Site Survey Work
$4,800.00
Geotechnical Analysis
$13,300.00
Civil Engineering and Design
$43,000.00
Site Prep and Tank Construction
$869,820.00
Estimated Total Cost
$930,920.00
The actual costs of design and construction of the tank facilities up to $500,000 will be
reimbursed by water utility facility fees collected from parcels within Phase 3 of the
Coldstream Development (PC-1). Actual costs for design and construction of the tank
facilities in excess of $500,000 will be reimbursed in "Lump Sum Payment" from the
District's Water Facility Fees Reserve Fund upon final acceptance of ownership by the
District.
Page 2 of 3
Staff intends to bring an agendized item before the Board at a future meeting date to
provide an updated construction schedule and cost summary.
This item is in support of the following objectives and goals identified by the District.
1.05.020 Objectives:
3. Provide reliable and high quality water supply and distribution system to meet current
and future needs
1.05.030 Goals
1.1.3. Responsibly serve the public; 1. Promote communication and cooperation with other
public and private agencies.
FISCAL IMPACT:
As provided for in the Phase 3 Final Development and Reimbursement Agreement
Between the District and Coldstream Properties, LLC. and the First Amendment to the
agreement, the District will reimburse the developer for actual costs to design and
construct the Red Mountain storage tank facilities accordingly:
Actual costs for design and construction of tank facilities up to $500,000 to be
reimbursed by water facility fees collected from parcels within Phase 3 of the
Coldstream Development
Actual costs for design and construction of tank facilities in excess of $500,000 to
be reimbursed in a "Lump Sum Payment" upon final acceptance of the Red
Mountain storage tank to be funded by the District's Water Facility Fees Reserve
Funds
This project will be funded by the District's Facility Fees Reserve Fund. Sufficient funds
exist in the District's Water Utility Facility Fees Reserve Fund for this project with a current
balance of just over $1.5M.
ATTACHMENTS:
1. Phase 3 Final Development and Reimbursement Agreement Between the
Truckee Donner Public Utility District and Coldstream Properties, LLC for
Construction of Certain Potable Water System Improvements
2. First Amendment to Phase 3 Final Development and Reimbursement
Agreement Between the Truckee Donner Public Utility District and Coldstream
Properties, LLC for Construction of Certain Potable Water System Improvements
Page 3 of 3
PHASE 3
FINAL DEVELOPMENT
AND
REIMBURSEMENT AGREEMENT
BETWEEN THE
TRUCKEE DONNER PUBLIC UTILITY DISTRICT
AND
COLDSTREAM PROPERTIES, LLC
FOR CONSTRUCTION OF CERTAIN POTABLE WATER SYSTEM
IMPROVEMENTS
APN 018-560-016
Coldstream (Planned Community 1)
This Phase 3 Final Development and Reimbursement Agreement for Construction of Certain
Potable Water System Improvements ("Agreement") is entered into as of June 10 , 2020
between the TRUCKEE DONNER PUBLIC UTILITY DISTRICT, a local public agency of the State
of California, ("District"), and COLDSTREAM PROPERTIES, LLC, a Delaware limited liability
company ("Developer") with respect to the following facts.
RECITALS
A. Developer is the owner a portion of that certain real property located within Nevada
County, California, known as Resultant Parcel 2 as shown on the Boundary Line
Adjustment recorded on August 8, 2018, as document## 20180015622 ("Property"), and
intends to develop the Property as a phase of the Coldstream Specific Plan which will
ultimately include up to 300 residential units, up to 30,000 square feet of commercial
space, open space and an approximately 3.8± gross acre park site in accordance with
entitlements granted and tentative maps approved by the Town of Truckee contained in
Town of Truckee Town Council Resolution No. 2014-45 which was adopted on September
23, 2014 (the Coldstream Specific Plan being the "Project").
B. Due to the size, location and complexity of the Project, Developer intends to develop the
Project in multiple distinct development phases (individually a "Phase" and collectively
"Phases"), consistent with the Coldstream Specific Plan and entitlements granted and
tentative maps approved by the Town of Truckee contained in Town of Truckee Town
Council Resolution No. 2014-45 which was adopted on September 23, 2014. Developer
may construct some Phases concurrently and others may be constructed prior to the
completion of other Phases. This Agreement addresses offsite improvements and Phase
3 of the Project ("Phase 3") as shown on the Anticipated Phasing Exhibit of the approved
tentative maps for the Project, a copy of which is attached hereto as Exhibit "A",
C. The Property is located within the District's potable water service area, and Developer has
requested that District provide potable water services to Phase 3, but the District cannot
do so unless and until certain additional facilities generally described in the next two
recitals are constructed and fully operational; and
D. Developer hereby agrees, in order to obtain water service to Phase 3, to construct a
(00884237.DOCX 3 )l
complete water distribution system for Phase 3 for domestic, fire protection and landscape
irrigation uses, which system shall include but not be limited to pipes, valves, service
laterals, and related equipment, in accordance with plans and specifications duly approved
by the District. Such system shall hereafter be referred to as the "Phase 3 Water
Distribution System."
E. Developer further agrees, in order to obtain water service to Phase 3, to construct a new
aboveground welded steel potable water storage tank (230,000-gallon capacity) at the
District's Red Mountain Tank Site. Construction of the new tank shall include design of
the site, new storage tank, and the related facilities and appurtenances, removal and
disposal of the old storage tank, site grading as required, foundations, connections to the
existing site piping and other appurtenances (collectively "Tank Facilities"), all in
accordance with plans and specifications which will be prepared by Developer and will
need to be approved by the District.
F. The Phase 3 Water Distribution System and Tank Facilities are facilities necessary for the
District to provide potable water service to Phase 3. Developer has requested that the
District accept f the Phase 3 Water Distribution System in accordance with plans and
specifications duly approved by the District. Developer has further requested that, upon
completion, the District shall thereafter own, operate, maintain, repair, and replace these
improvements as part of its water storage and distribution system.
G. Complete plans and specifications for the construction of the Phase 3 Water Distribution
System have been approved by the District as having been prepared in accordance with
the District's Rules and Regulations and with the requirements and specifications as
hereinafter set forth. Copies of these approved plans and specifications are on file in the
District's Water Department. The District is willing to allow Developer, at the Developer's
sole risk and at its sole cost, to construct the Phase 3 Water Distribution System in
accordance with the above -referenced approved plans, specifications, and the terms and
conditions of this Agreement, and the Tank Facilities in accordance with plans and
specifications approved by the District and the terms and conditions of this Agreement.
H. Developer has selected contractors for construction of the Phase 3 Water Distribution
System. The names of the contracting firms, contact persons, mailing addresses,
telephone numbers, California Contractor license, insurance coverage verification and a
schedule of construction dates have been included on data sheets entitled Contractor Firm
Data Sheets, and are on file in the District's Water Department.
I. District and Developer entered into an Interim Agreement for Construction of Certain
Potable Water System Improvements as of July 31, 2019, and which expired on August
26, 2019, a copy of which is attached hereto as Exhibit "B" ("Interim Agreement"), whereby
Developer constructed certain water distribution facilities for Phase 3, and has not
connected those facilities to the District's water storage and distribution system. The
Interim Agreement contemplated that District and Developer would enter into a Final
Development and Reimbursement Agreement in order to permit Developer to connect the
facilities constructed pursuant to the Interim Agreement to the District's water storage and
distribution system, complete the construction of the Water Distribution System and Tank
Facilities, dedicate all such facilities to the District and receive reimbursement for the Tank
Facilities.
The following items are on file in the District office:
Development Agreement application
Contractor Firm Data Sheet —water
(00884237.DOCX 3 {2
• Temporary Blanket Public Utility Easement
• Proof of Insurance
Project parcel map, approved Project tentative maps and Anticipated Phasing
Exhibit
• Site and improvement plans - water
• Estimated costs and calculation of fees — water
• Improvements by and Responsibilities of Developer — water
Improvements by and Responsibilities of District — water
Project documentation policy
THE PARTIES THEREFORE AGREE AS FOLLOWS:
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 activities related to the Phase 3 Water Distribution
System and the Tank Facilities (hereafter collectively referred to as the "Construction Costs").
Developer has deposited with the District the amount of this estimate, which shall be applied
to the actual costs as they are 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 for the additional costs. If the actual cost is less than the amount initially deposited,
the District shall refund the difference within sixty (60) days of the date of Unconditional
Acceptance of the Phase 3 Water Distribution. Developer has also paid to the District the total
estimated Construction Costs and water fees as set forth in Exhibit "C". Additional facilities
fees and connection fees will be required to be paid at the time water service is requested and
when construction of buildings or other facilities requiring water service are initiated. All
facilities fees and connection fees paid after the execution of this Agreement will be in the
respective amounts in effect at the time the service request that "triggers" payment is made.
Phasing Developer will construct the project in Phases, and the order and timing of
construction of future phases is presently unknown to Developer. As soon as Developer
commences preparation of civil improvement plans for any future phase of the Project,
Developer shall inform District in writing of the Phase or Phases it intends to construct next,
together with a map of such Phase or Phases and a proposed schedule for such construction.
Developer acknowledges and agrees that a separate development agreement for water
services with the District will be required for each additional Phase.
a. Improvements Required for Future Phases. The District agrees that the only off -
site improvement it will require for the entire Project is the Tank Facilities.
Accordingly, the District will not require the Developer to construct any additional
off -site water facilities whatsoever, aside for the facilities necessary to connect
the Project to the District's existing water transmission facilities, as a condition
for receiving water service to residential and commercial uses within the Project.
This section 2(a) only applies so long as the Project does not exceed the number
of residential units and the total commercial square footage described in Recital
A. The District acknowledges that a breach of this section 2(a) will interfere with
Developer's rights to develop the Project. Notwithstanding any other provision of
this Agreement, the District's obligations pursuant to this section 2(a) shall
survive the termination of this Agreement and shall be binding with respect to,
and enforceable by, any successors in interest to any portion of the property that
makes up the Project.
t00889237.DOCX 3 13
3. Provision of Easements - Permission to Enter Land. Developer has already executed a
temporary blanket easement for Phase 3 within which all of the Phase 3 Water Distribution
System facilities will be constructed and granting District, and its officers, agents and
employees the right to do all things necessary to observe the construction of the Phase 3
Water Distribution System including, but not limited to, a right to ingress and egress, a right
to temporarily store equipment and materials, to inspect, construction activities. The
temporary easement will be abandoned upon receipt by the District of a permanent easement
in a form approved by the District and suitable for recordation for the maintenance and repair
of the portion of the Phase 3 Water Distribution System, which shall be provided prior to and
as an express condition of acceptance by the District of the Phase 3 Water Distribution
System.
4. 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 $1,000,000 for the death of or injury to any person in any one accident and
$2,000,000 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, or in the amount of $3,000,000 each
occurrence for Bodily Injury and Property Damage Combined. The limits requirement can be
satisfied with any combination of primary and/or excess liability coverage. 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. 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.
5. Indemnification by Developer.
A. Developer shall indemnify, defend and save harmless the District, its officers, agents and
employees, and each of them, from and against 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 under this Agreement, however
caused, except to the extent claims, demands, causes of action, damages, costs,
expenses, losses, or liabilities are caused by the active negligence or willful misconduct
of the District.
B. Developer shall also defend, protect, indemnify, and hold harmless the District, its officers,
agents and employees against and from any claims and liability based upon the use, or
alleged use, of any patent or patented article by Developer in the construction of the Phase
3 Water Distribution System and Tank Facilities. Developer's duty to defend and hold
harmless shall include the responsibility to provide legal representation, the selection of
whom shall be subject to District's approval.
C. The duty of Developer to indemnify District shall include the duty to defend as set forth in
California Civil Code Section 2778; provided, that nothing herein contained shall require
(00884L37.DOCX 3 )4
Developer to defend against claims for liability excluded under the provisions of California
Civil Code Section 2782.
6. Improvements by and Responsibilities of Developer. Developer shall perform and be
responsible for all labor and material expenses involved in constructing the Phase 3 Water
Distribution System and Tank Facilities described herein and in Exhibit "D" entitled
Improvements by and Responsibilities of Developer.
7. Improvements by and Responsibilities of District. The District shall assign a Project
Administrator to oversee the construction of the Phase 3 Water Distribution System. The
District shall, at Developer's expense, perform and be responsible for performing the activities
described in as described in Exhibit "E" entitled Improvements by and Responsibilities of
District. 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.
8. Construction Inspection. The District shall inspect Developer's construction from time to time,
in order to determine that the Phase 3 Water Distribution System and Tank Facilities are being
installed in accordance with the approved improvement plans, construction specifications and
the terms of this Agreement. Developer shall notify District in writing no less than thirty (30)
days prior to the date that it will begin construction of the Phase 3 Water Distribution System
and the Tank Facilities.
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, when observed by District, whether it is contemporaneous with construction
or at a later time. The Developer and/or the Developer's representatives shall correct such
deviation or failure as soon as is reasonably practicable after receiving such notice.
9. Timely Construction Required. Construction of the Phase 3 Water Distribution System shall
be completed and Unconditional Acceptance by the District, as defined herein, shall occur
within sixteen (16) months from the date Developer informed the District that construction of
the Phase 3 Water Distribution System would begin. In the event Developer fails to complete
the Phase 3 Water Distribution System and Tank Facilities within that time, the District may at
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.
10. Developer's Warranty. Developer warrants and guarantees that all labor and materials
supplied by Developer for the Phase 3 Water Distribution System are and will be of a good
and workmanlike quality, free of any defects of any type whatsoever for a period of one (1)
year beginning on the date of Unconditional Acceptance by the District. Developer shall repair
or replace, at Developer's expense, any defective material or workmanship or other
malfunction or nonconformity that is identified by District during the period of this warranty.
The District shall notify Developer of any defective material or workmanship or other
malfunction or nonconformity promptly upon discovery. Within fifteen (15) business days after
receiving such notice from the District, Developer shall commence to repair or replace the
defective, malfunctioning, or nonconforming facility and will expeditiously pursue such work to
completion and acceptance by the District. Emergency repairs will be coordinated and may
be performed by District and charged to the Developer.
t00884237.DOCY. 3 15
11. CONDITIONAL ACCEPTANCE - IF REQUESTED by Developer
If Developer requests Conditional Acceptance of the Phase 3 Water Distribution System, the
conditions set forth below must be complied with prior to issuance of written Conditional
Acceptance from the District.
A. Provision of Water Service. Upon completion of the Phase 3 Water Distribution
System construction (including pressure testing and disinfection), the facilities shall
remain off, without water services, until either:
1) Conditional Acceptance of the Phase 3 Water Distribution System is issued
by the District.
or
2) Unconditional Acceptance of the Phase 3 Water Distribution System is
issued by the District.
Until either of these conditions is met, water for domestic, fire protection and landscape
irrigation will not be provided to Phase 3.
B. Completion of Phase 3 Water Distribution System. The Phase 3 Water Distribution
System shall be deemed complete when the District determines that the Phase 3
Water Distribution System has been entirely finished, properly tested, is completely
functional and operational without being dependent on any portion of the District's
water distribution system in an uncompleted Phase of the Project and qualifies for
Unconditional Acceptance.
C. Conditional Acceptance. When the District has determined that the Phase 3 Water
Distribution System has been completed, the District may provide water service, on a
conditional basis, to Phase 3. Conditional Acceptance will enable Developer to use
the Phase 3 Water Distribution System while Developer is in the process of providing
to the District those items specified in the Requirements for Unconditional Acceptance.
When Developer has fully complied with all conditions set forth below, the District will
issue in writing Conditionally Acceptance of the Phase 3 Water Distribution System.
1) The Developer submits a written request for Conditional Acceptance of the
Phase 3 Water Distribution System using the District's form (provided upon
request).
2) The Developer will arrange for District to conduct a walk-through inspection
of the Phase 3 Water Distribution System. Developer will be responsible to
repair, replace and or correct deficiencies, identified during this inspection.
3) The Developer submits a Conditional Acceptance Deposit for all potential
water corrections that are within the limits of the portion of the Phase 3
Water Distribution System in the amount equal to five percent (5%) of the
cost of the portion of the Phase 3 Water Distribution System. The method
of calculating these deposits and the amounts required are on file at the
District.
4) Developer shall execute an offer of dedication for the Phase 3 Water
Distribution System to the District in a form satisfactory to the District,
without cost, free, and clear of all liens and encumbrances.
5) Developer shall provide the District with the appropriate permanent
easements in Phase 3.
100884237.DOCX 3 )6
6) Developer shall provide a copy of the final map for Phase 3, if applicable.
7) 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
Electric Development Agreement (if applicable) to cover the amount due in
this Agreement.
8) The District has determined that the Phase 3 Water Distribution System has
been pressure tested, disinfected, successfully passed bacteriological
sampling and it is appropriate to activate the water system.
9) The Conditional Acceptance Deposit will be refunded within sixty (60) days
of the date of the District's issuance of Unconditional Acceptance of the
Phase 3 Water Distribution System.
12. UNCONDITIONAL ACCEPTANCE REQUIREMENTS
A. Proiect Final Walk Through Inspection. Developer acknowledges that a final walk
through inspection of the Phase 3 Water Distribution System is required Developer is
responsible to repair, replace and or correct deficiencies identified during this
inspection.
B. No Early Use of Proiect. 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 Phase 3 Water Distribution System t, until the District has granted
Unconditional Acceptance in writing of the Phase 3 Water Distribution System.
C. Completion of Phase. The Phase 3 Water Distribution System shall be deemed
complete when the District determines that the Phase 3 Water Distribution System has
been entirely finished, properly tested, is completely functional and operational without
being dependent on any portion of the District's water distribution system in any
uncompleted Phase of the Project and qualifies for Unconditional Acceptance.
D. Within Thirty (30) Days After Completion. Within thirty (30) days after completion of the
Phase 3 Water Distribution System t as determined by the District, Developer shall
comply with all conditions set forth below and if Conditional Acceptance was not
previously requested and granted prior to final acceptance, items CA through CAD
under Conditional Acceptance will be required. In addition to items CA through C.10,
Developer shall comply with the following conditions.
1) Developer shall execute an offer of dedication for f the Phase 3 Water
Distribution System to the District in a form satisfactory to the District,
without cost, free, and clear of any liens or encumbrances.
2) Developer shall provide the District with the permanent easements for
Phase 3, each in a form approved by the District and suitable for
recordation.
3) Developer shall provide a copy of the final map for Phase 3, if applicable.
4) 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
Electric Development Agreement (if applicable) to cover the amount due in
this Agreement.
{00884237.DOCX 3 )7
5) The District has determined that the Phase 3 Water Distribution System
has been pressure tested, disinfected, successfully passed bacteriological
sampling and it is appropriate to activate the water system.
6) Developer shall provide the District with documentation drawings for the
Phase 3 Water Distribution System in compliance with District policy.
7) Developer shall provide the District with a maintenance bond in a form
satisfactory to the District in a sum equal to fifteen percent (15%) of the
ultimate construction costs of the Phase 3 Water Distribution System. This
bond shall remain in effect for a period of one (1) year after the date of
District Unconditional Acceptance of the Phase 3 Water Distribution
System that will protect against any defects or failures in the systems that
may develop during that time.
8) Developer shall provide the District with a statement of the "as -built" dollar
value of the Phase 3 Water Distribution System with documentation to
substantiate the stated value.
9) Prior to Unconditional Acceptance of the Phase 3 Water Distribution
System by the District, Developer shall be responsible for all maintenance
and repair of the Phase 3 Water Distribution System. Upon Unconditional
Acceptance off the Phase 3 Water Distribution System by the District, the
District shall thereafter own, operate, maintain, repair and replace the
Phase 3 Water Distribution System, provided that any defective material or
workmanship or other malfunction or nonconformity that is identified by
District during the period of this warranty shall be repaired or replaced
pursuant to Developer's warranty.
10) Following Unconditional Acceptance of the Phase 3 Water Distribution
System, the District shall endeavor to provide adequate water service to
Phase 3 of the Project upon completion of any permit requirements and
payment of all appropriate fees and charges, in accordance with District
Rules and Regulations.
13. Tank Facilities Milestones and Construction.
1. Developer shall construct the Tank Facilities at the District's Red Mountain Tank
Site. Water service will be provided to the Project based on the authorizations set
forth on the Development Agreement Schedule below.
A. The Developer shall commence the design, permitting, and construction for the Tank
Facilities subject to the following milestone deadlines ("Milestones") set forth in the
Development Agreement Schedule table below. Provided that the Developer achieves
the action described in the "Milestone" and "Contingency" columns, the District will,
upon the request of the Developer, provide a Will -Serve Letter for the type and number
of units set forth in the corresponding "Authorizations" row.
(00884237.DOCX 3 )8
Development Agreement Schedule
Line
Milestone
Authorizations
Contingency
1
Execute
Will -Serve Letter for 48
Teichert Approval
Development
Phase 3 Affordable Units
Agreement
TDPUD Approval
2
Red Mountain
Will -Serve Letter for 12
Developer provide tank
Water Tank
Phase 3 Market Value
construction design/site plan
Design/Site Plan
Single Family Residential
that have approved and
Completed
Units
accepted by the District and
estimated construction costs for
the removal and replacement of
Red Mountain Storage Tank
3
Executed
Will -Serve Letter for
Developer provide copy of
Construction
Additional 18 Phase 3
executed construction contract
Contract
Market Value Single
and approved final design/plans
for Red Mountain
Family Residential Units
that have been reviewed and
Tank
accepted by the District for the
removal and replacement of the
Red Mountain Storage Tank
4
Demolition and
No Will -Serve Letter for
Removal of
this Milestone
Existing
Red Mount
Storage
Tank and all
associated
materials
5
Begin
Will Serve 20 Additional
Construction
Phase 3 Single Family
Residential Units
7
Completed
All units and commercial
Tank completed according to all
Construction of
uses within the Project.
applicable standards and
Red Mountain
specifications, signed off and
Storage Tank
transfer of ownership accepted
by TDPUD, Completion of
storage tank construction and
testing. Tank placed into
service, regardless of the status
of completion of the Phase 3
Water Distribution System.
100884237.DOCX 3 )9
B. Acceptable Security and Prevailing Wages. Upon the date that Developer enters into
a contract for the construction of the Tank Facilities, Developer shall secure and
present to District a financial security acceptable to the District, such as a performance
bond or escrow account, to ensure construction of the Tank Facilities. If such security
is provided by the contractor that will install the Tank Facilities contractor, the District
must be named as an obligee on the security. The value of the bond (or other security)
shall be One Hundred Twenty -Five percent (125%) of the contracted amount for the
construction of the Tank Facilities. The construction contract shall require payment of
prevailing wages as determined the California Department of Industrial and Labor
Relations. In the event that the Developer does not meet the November 1, 2021
deadline for the Tank Facilities construction, the site and storage tank design, and
other completed components of the Tank Facilities shall become the property of the
District and the District shall thereafter utilize the security to construct the Tank
Facilities.
C. Within thirty (30) days after completion the of the Tank Facilities, Developer shall
comply with all conditions set forth below and, upon Developer's compliance, the
District shall provide Developer a "Tank Acceptance Notice" stating that the District
has unconditionally accepted the Tank Facilities and that Developer's obligations
pursuant to Section 12 of this Agreement have been satisfied in their entirety.
1. Developer shall execute an offer of dedication for the Tank Facilities to the
District in a form satisfactory to the District, without cost, free, and clear of any
liens or encumbrances.
2. The District has determined that the Tank Facilities have been tested and are
appropriate to activate.
3. Developer shall provide the District with documentation drawings for the Tank
Facilities in compliance with District policy.
4. The contractor that constructs the Tank Facilities shall provide the District with
a maintenance bond, or other financial security, in a form satisfactory to the
District in a sum equal to fifteen percent (15%) of the ultimate construction
costs of the Tank Facilities. This bond shall remain in effect for a period of one
(1) year after the date of District Acceptance of the Tank Facilities that will
protect against any defects or failures that may develop during that time.
5. Developer shall provide the District with a statement of the "as -built" dollar
value of the Tank Facilities with documentation to substantiate the stated
value.
6. The contractor that constructs the Tank Facilities shall provide the District with
a one-year warranty for the Tank Facilities. Such warranty shall provide that
the contractor will repair any defective material or workmanship, or other
malfunction or nonconformity to the Tank Facility's designs that were
completed pursuant to item 2 on the Development Agreement Schedule above.
{O0384237.00CX 3 )l 0
D. Following acceptance of the Tank Facilities, the District shall provide adequate water
service to the Project upon completion of any permit requirements and payment of all
appropriate fees and charges, in accordance with District Rules and Regulations.
14. Reimbursement for Tank Facilities.
A. Following completion of Tank Facilities construction and District acceptance of
ownership, the District shall reimburse the Developer for the costs associated with
the construction of the Tank Facilities in accordance with the following terms.
B. Developer shall be reimbursed for the actual costs it incurred for the design and
construction of the Tank Facilities, as evidenced by receipts, purchase orders and
other documentation reasonably acceptable to the District, up to a maximum
amount of $500,000.00, regardless of the actual cost to the Developer.
C. If, prior to the beginning of any construction of the Tank Facilities, Developer
obtains at least three (3) responsive and competitive bids/proposals for the Tank
Facilities, and each such bid/proposal received, plus the costs to design the Tank
Facilities and other budgeted construction -period costs such as survey,
geotechnical testing, bonds and construction management, exceeds $500,000.00,
then Developer shall immediately halt work on designing and constructing the Tank
Facilities and, within ten (10) days of receipt of such bids/proposals, Developer
shall provide the District with a copy of each such bid/proposal and meet and
confer with the District to determine a mutually acceptable solution for constructing
the Tank Facilities and reimbursing Developer for all costs that Developer will
advance to construct the Tank Facilities. Such mutually acceptable solution must
be set forth in writing as an amendment to this Agreement and be approved and
executed by both parties.
D. Reimbursement for the costs of the Tank Facilities will be funded solely by water
facility fees collected by the District from parcels within the Project.
E. The District will collect facilities fees from parcels within the Project as they are
paid and distribute all such fees to Developer twice during each calendar year. The
first distribution will occur on or before June 30 of each year and the second will
occur on or before December 31 of each year. The District will provide Developer
a summary of all facilities paid to Developer pursuant to this Agreement together
with each distribution of facilities fees.
F. The District will continue to distribute facilities fees collected from parcels within
the Project until such time as either the Developer has been reimbursed all costs
it incurred to design and construct the Tank Facilities.
(00334237.DOCX 3 )1 1
15. 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: SCO PLANNING & ENGINEERING
Martin Wood, P.E.
140 Litton Drive, Suite 240
Grass Valley, CA 95945
Billings: COLDSTREAM PROPERTIES, LLC
Mike Isle
3500 American River Drive
Sacramento, CA 95851
District: TRUCKEE DONNER PUBLIC UTILITY DISTRICT
Attention: Contract Administrator
11570 Donner Pass Road
Truckee, CA 96161
16. 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. Any attempted assignment without such consent shall be void.
17. District Powers. Nothing contained herein shall be deemed to limit, restrict, or modify any
authority, 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 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.
18. 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.
19. Entire Agreement. This Agreement contains the entire agreement of the parties with
respect to the Phase 3 Water Distribution System and Tank Facilities described herein
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. This Agreement may be amended or
supplemented in writing, approved and executed by the parties in the same manner as
this Agreement.
20. Dispute Resolution. If at any time during the term of this Agreement process issues arise
that need resolution, the Developer should submit a written request to the Phase 3 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 ten (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
(00884237.DOCX 3 )1 2
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 against whom the court action is commenced shall be entitled to
recover attorney's fees or costs incurred therein, even if they would not otherwise be
available in such court action.
21. 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 Superior Court in and for the County of Nevada, California. Nothing
in this provision shall be deemed to waive or otherwise limit the application of the
provisions of section 394 of the California Code of Civil Procedure.
22. Captions. The captions and headings of the different paragraphs of this Agreement are
inserted for convenience of reference only and are not to be taken as part of this
Agreement or to control or affect the meaning, construction, or effect of the same.
23. Necessary Acts. Each party to this Agreement agrees to perform any further acts and
execute and deliver any further documents that may be reasonably necessary to carry out
the provisions of this Agreement.
24, 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. Nothing in the preceding
sentence shall be construed as a waiver or limitation on a party's ability to assert that the
remedy is barred by the Government Claims Act or the applicable statute of limitations.
25. Governing Law. This Agreement shall be governed by and construed in accordance with
the laws of the State of California, without giving effect to its conflict of law provisions.
26, Independent Contractor. Neither Developer, nor its officers, employees, agents or
contractors are, nor shall they be deemed, officers, employees, agents or contractors of
District in connection with the performance of Developer's obligations hereunder.
100894237.DOCx 3 )13
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 rovided by Developer "upon execution of this Agreement."
n,+tea•_ / X 209,0
Rfndall Sater
Co dstream Properties, LLC
Dated:
Mich olley, P.E , Gen al Manager
Truckee Donner Public Utility District
{00884237_DOCX 3 f 14
EXHIBIT "A"
Anticipated Phasing Exhibit
(00884231.DOCX 3 )l5
ANTICIPATED PHASING EXHIBIT
COLDSTREAM
OPTION A/B HYBRID
Sepavbe., "14
EXHIBIT A
MOD
r _I vut6v�
vm��..�.. r�etue I Im.wm rt�`Imr.-. Feu
f'Lt
Interim Agreement
For
Construction of Certain Potable Water System Improvements
(00884237.DOCx 3 )1 6
AMENDMENT TO INTERIM AGREEMENT
BETWEEN THE
TRUCKEE DONNER PUBLIC UTILITY DISTRICT
AND
COLDSTREAM PROPERTIES, LLC
FOR CONSTRUCTION OF CERTAIN POTABLE WATER SYSTEM
IMPROVEMENTS
APN 018-560-016
Coldstream (Planned Community 1)
This Amendment to the Interim Agreement for Construction of Certain Potable Water System
Improvements ("Interim Agreement") is entered into as of August 23, 2019 between the
TRUCKEE DONNER PUBLIC UTILITY DISTRICT, a local public agency of the State of California,
hereafter referred to as "the District," and COLDSTREAM PROPERTIES, LLC, hereafter referred
to as "Developer," with respect to the following facts:
THE PARTIES THEREFORE AGREE AS FOLLOWS:
Expiration of Interim Agreement. The Interim Agreement will expire on September 25, 2019,
and shall thereafter be of no force and effect except for the requirements specified in
Paragraphs 4, 5, 14, and 15, which shall survive. If negotiations can successfully be
completed, it is contemplated that the parties will enter into a Final Development Agreement
that will govern the rights and obligations of the parties concerning the completion of the water
distribution system and the Tank facilities, the acceptance thereof by the District, and the
provision of water service to the occupants of the various components of the Project once all
conditions of the Final Development Agreement are fully complied with.
This Amendment to the Interim Agreement shall be binding upon the parties only when signed by
all parties. �/ q
Dated: l I
Ra all Ster, Preside
C Idstrearn Properties, LLC
Dated: e / a(, l ao I q
Mich el D. Holley, P.E., General Manager
Truckee Donner Public Utility District
INTERIM AGREEMENT
BETWEEN THE
TRUCKEE DONNER PUBLIC UTILITY DISTRICT
AND
COLDSTREAM PROPERTIES, LLC
FOR CONSTRUCTION OF CERTAIN POTABLE WATER SYSTEM
IMPROVEMENTS
APN 018-560-016
Coldstream (Planned Community 1)
This Interim Agreement for Construction of Certain Potable Water System Improvements ("Interim
Agreement") is entered into as of July 31, 2019 between the TRUCKEE DONNER PUBLIC
UTILITY DISTRICT, a local public agency of the State of California, hereafter referred to as "the
District," and COLDSTREAM PROPERTIES, LLC, 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 Number 018-560-016 (the "Property"), which
Developer intends to develop it by constructing on the Property the "phase 3
improvements for the Village Center", hereinafter referred to as the "Project."
B. The Property is located within the District's potable water service area, and Developer has
requested that District provide potable water services to the Property, but the District
cannot do so unless and until certain additional facilities generally described in the next
two recitals are constructed and fully operational; and
C. Developer hereby agrees, in order to obtain water service to the Project, to construct a
complete water distribution system for the Project for domestic and fire protection uses,
landscape irrigation use, which system shall include but not be limited to pipes, valves,
service laterals, and related equipment, in accordance with plans and specifications duly
approved by the District. Such system shall hereafter be referred to as the "water
distribution system."
D. Developer further agrees, in order to obtain water service to the Project, to construct a
new aboveground welded steel potable water storage tank (230,000 gallon capacity) at
the Red Mountain Tank Site. Construction of the new tank shall include removal and
disposal of the old storage tank, site grading as required, foundations, connections to the
existing site piping and other appurtenances (hereinafter called "Tank facilities'), all in
accordance with plans and specifications duly approved by the District. The Tank facilities
will be the subject of a subsequent agreement between the parties.
E. The Tank facilities and the water distribution system are facilities necessary for the District
to provide potable water service to the Project. Developer has requested that the District
accept the improvements described in the preceding sentences after they are completed
in accordance with plans and specifications duly approved by the District and that the
District incorporate these improvements it into its water storage and distribution system.
Developer has further requested that, upon completion, the District shall thereafter own,
1
operate, maintain, repair, and replace these improvements as part of its water storage and
distribution system.
F. Complete plans and specifications for the construction of the water distribution system
have been approved by the District as having been prepared in accordance with the
Districts Rules and Regulations and with the requirements and specifications as
hereinafter set forth. Copies of these approved plans and specifications are on file in the
District's Water Department. The District is willing to allow Developer, at the Developer's
sole risk and at its sole cost, to construct the water distribution system in accordance with
the above -referenced approved plans, specifications, and the terms and conditions of this
agreement.
G. Developer has selected contractors for construction of the water distribution system. The
names of the contracting firms, contact persons, mailing addresses, telephone numbers,
California Contractor license, insurance coverage verification and a schedule of
construction dates have been included on data sheets entitled Contractor Firm Data
Sheets, and are on file in the District's Water Department.
H. The following items are on file in the District office and incorporated as recitals herein by
reference:
• Development Agreement application
• Contractor Firm Data Sheet — water
• Temporary Blanket Public Utility Easement
• Proof of Insurance
• Project parcel map
• Site and improvement plans - water
• Estimated costs and calculation of fees —water
• Improvements by and Responsibilities of Developer — water
• Improvements by and Responsibilities of District — water
• Project documentation policy
THE PARTIES THEREFORE AGREE AS FOLLOWS:
1. Expiration of Interim Agreement. This Interim Agreement will expire on August 26, 2019, and
shall thereafter be of no force and effect except for the requirements specified in Paragraphs
4, 5, 14, and 15, which shall survive. If negotiations can successfully be completed, it is
contemplated that the parties will enter into a Final Development Agreement that will govern
the rights and obligations of the parties concerning the completion of the water distribution
system and the Tank facilities, the acceptance thereof by the District, and the provision of
water service to the occupants of the various components of the Project once all conditions
of the Final Development Agreement are fully complied with.
2. 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 activities related to the water distribution system
(hereafter collectively referred to as the "construction costs"). Upon start of construction,
Developer shall deposit with the District the amount of this estimate, which shall be applied to
the actual costs as they are 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 for the additional costs. If the actual cost is less than the amount initially deposited,
the District shall refund the difference within a period to be determined by subsequent
agreement. Upon execution of this Agreement, Developer shall also pay to the District the
2
total estimated construction costs and water fees as set forth in Exhibit A. Additional facilities
fees and connection fees will be required to be paid at the time water service is requested and
when construction of buildings or other facilities requiring water service are initiated. All
facilities fees and connection fees paid after the execution of this Agreement will be in the
respective amounts in effect at the time the service request that "triggers" payment is made.
3. Provision of Easements - Permission to Enter Land. Developer will execute a temporary
blanket easement granting District, and its officers, agents and employees the right to do all
things necessary to observe the construction of the water distribution system including, but
not limited to, a right to ingress and egress, a right to temporarily store equipment and
materials, to inspect, construction activities. The temporary easement will be abandoned upon
receipt by the District of a permanent easement in a form approved by the District and suitable
for recordation for the maintenance and repair of the water distribution system, which shall be
provided prior to and as an express condition of acceptance by the District of the water
distribution system.
4. Provision of Insurance. Upon execution of this agreement, Developer shall provide the District
with satisfactory evidence of a Commercial General Liability or equivalent 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 as additional insureds 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 $1,000,000 for
the death of or injury to any person in any one accident and $2,000,000 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, or in the amount of $3,000,000 each occurrence for Bodily Injury and
Property Damage Combined. The limits requirement can be satisfied with any combination of
primary and/or excess liability policies. Such policy shall be written in favor of Developer or
its general contractor and subcontractors and also include additional insured coverage in favor
of the District, its officers, agents and employees and shall be maintained in full force and
effect. Such insurance policy shall state by its terms or by an endorsement that it shall not be
canceled except for non-payment of premium 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.
5. Indemnification by Developer. Developer shall indemnify, defend and save harmless the
District, its officers, agents and employees, and each of them, from and against 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 under this Agreement, however
caused, regardless of any negligence of the District or its officers, agents or employees,
except to the extent claims, demands, causes of action, damages, costs, expenses, losses,
or liabilities are proximately caused by the active negligence or willful misconduct of the
District.
Developer shall also defend, protect, indemnify, and hold harmless Indemnitees against and
from any claims and liability based upon the use, or alleged use, of any patent or patented
article by Developer in the construction of the water distribution system. Developer's duty to
defend and hold harmless shall include the responsibility to provide legal representation, the
selection of whom shall be subject to District's approval.
The duty of Developer to indemnify District shall include the duty to defend as set forth in
California Civil Code Section 2778; provided, that nothing herein contained shall require
Developer to defend against claims for liability excluded under the provisions of California
Civil Code Section 2782.
6. Improvements by and Responsibilities of Developer. Developer shall perform and be
responsible for all labor and material expenses involved in performing the water distribution
system improvements described in Exhibit 8 entitled improvements by and Responsibilities
of Developer.
7. Improvements by and Responsibilities of District. The District shall assign a Project
Administrator to oversee the Project. The District shall, at Developer's expense, perform and
be responsible for performing the activities described in as described in Exhibit C entitled
Improvements by and Responsibilities of District. 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.
8. Construction Inspection. The District shall inspect Developer's construction from time to time,
in order to determine that the water distribution system are being installed in accordance with
the approved improvement plans, construction specifications and the terms of this agreement.
1) 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 Interim Agreement, when observed by District, whether it is
contemporaneous with construction or at a later time. The Developer and/or the
Developer's representatives shall correct such deviation or failure as soon as is
reasonably practicable after receiving such notice.
9. 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: SCO PLANNING & ENGINEERING
Steven L. Kline, P.E,
140 Litton Drive, Suite 240
Grass Valley, CA 95945
Billings: TEICHERT LAND CO.
Mike Isle
3500 American River Drive
Sacramento, CA 95851
District: TRUCKEE DONNER PUBLIC UTILITY DISTRICT
Attention: Contract Administrator
11570 Donner Pass Road
Truckee, CA 96161
10. 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
4
District. Any attempted assignment without such consent shall be void.
1'l. District Powers. Nothing contained herein shall be deemed to limit, restrict, or modify any
authority, 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 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.
12, 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.
13, Entire Agreement. This Interim Agreement contains the entire agreement of the parties with
respect to the water distribution system described herein 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 Interim Agreement which are not
fully expressed herein. The provisions of this Interim Agreement may be waived, altered,
amended or repealed in whole or in part only upon the written consent of all parties to this
interim Agreement. This Interim Agreement may be amended or supplemented in writing,
approved and executed by the parties in the same manner as this agreement.
14. Dispute Resolution. If at any time during the term of the Interim 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
forthe 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
against whom the court action is commenced shall be entitled to recover attorney's fees or
costs incurred therein, even if they would not otherwise be available in such court action.
15. Forum. Any litigation to enforce or interpret the provisions of this Interim Agreement or the
parties' rights and liabilities arising out of this Interim 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. Nothing in this provision shall be deemed to waive or otherwise limit the
application of the provisions of section 394 of the California Code of Civil Procedure,
16, Captions, The captions and headings of the different paragraphs of this interim Agreement
are inserted for convenience of reference only, and are not to be taken as part of this
Agreement or to control or affect the meaning, construction, or effect of the same.
17. Necessary Acts. Each party to this Interim Agreement agrees to perform any further acts and
execute and deliver any further documents that may be reasonably necessary to carry out the
5
provisions of this Interim Agreement.
18. No Waiver. The waiver by one party of the performance of any covenant, condition or promise
shall not invalidate this Interim 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. Nothing in the preceding sentence shall be
construed as a waiver or limitation on a party's ability to assert that the remedy is barred by
the Government Claims Act or the applicable statute of limitations.
19. Governing Law. This Interim Agreement shall be governed by and construed in accordance
with the laws of the State of California, without giving effect to its conflict of law provisions.
20. independent Contractor. Neither Developer, nor its officers, employees, agents or contractors
are, nor shall they be deemed, officers, employees, agents or contractors of District in
connection with the performance of Developer's obligations hereunder.
This Interim Agreement shall be binding upon the parties only when signed by all parties. The
District representative shall not sign this Interim Agreement until Developer has provided all costs,
fees and items required to be provided by Developer "upon execution of this Interim Agreement."
Dated � �' !
RaOd6l(,ta-16r-J residers
Coldstream Properties, LLC
Dated: b
lIq
Michael D. Holley, P.E., General Manager
Truckee Donner Public Utility District
EXHIBIT A
Estimated Costs and Fees
Coldstream PC1 WO #-19-744402
The Estimated Construction Costs are as follows:
Administrative and design
$ 1,000.00
Engineering & modeling
$ 0.00
Construction and inspection
$ 20,000,00
Proiect documentation deposit
$ 9.000.00
Total Estimated Construction Costs $ 30,000.00
The Water Fees are as follows:
Facilities Fee
(Irrigation Meter #1 - 3/4" meter) $ 7,575.00
Connection Fee
(Irrigation Meter #1 - 3/4" meter) $ 1,330.00
Facilities Fee
(Irrigation Meter #2 - 3/4" meter) $ 7,575.00
Connection Fee
(Irrigation Meter #2 - 3/4" meter) $ 1,330.00
Facilities Fee
(Irrigation Meter #3 - 3/4" meter) $ 7,575.00
Connection Fee
7
(Irrigation Meter #3 - 3/4" meter) $ 1,330.00
Total Fees $ 26,715.00
Total Estimated Costs & Fees $ 56,715.00
Less Deposit Paid in Advance 1 000.00
BALANCE DUE $15.00
EXHIBIT B
Improvements by and Responsibilities of Developer
1. Schedule a pre -construction meeting with District staff and the pipeline contractor.
2. Provide all permits required.
3. Provide all traffic control and trench protection as required per applicable laws and TDPUD
field supervisor's requirements.
4. Construct water system improvements per approved plans/construction drawing.
5. Water facilities constructed under this Agreement shall be constructed by appropriately
licensed contractors. Contractors shall have current and active licenses issued by the
California Department of Consumer Affairs, Contractors License Board. The appropriate
licenses for water system construction are typically "A — General Engineering Contractor",
or "C34 — Pipeline Contractor".
6, All construction to meet or exceed requirements of the current District WATER SYSTEM
CONSTRUCTION STANDARDS.
7. Perform all water pipeline testing and disinfection per requirements of WATER SYSTEM
CONSTRUCTION STANDARDS.
8. Provide compaction test results by a licensed professional.
9, Schedule main taps and meter installations with the Water Superintendent (Brian Wright
582-3957), A minimum of five working days notification is required for District crew
scheduling.
M Contact Clay Walker (582-3926) to confirm cross connection installation requirements
(equipment, location, testing, etc.).
11. Compile and submit project documentation drawings in accordance with District
requirements.
12. 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.
13. Schedule and attend final walk. through inspection with contractor and District
representatives.
E
EXHIBIT C
Improvements by and Responsibilities of District
1. Operate water system as required including customer notification (outages), system
shut -down and system flushing.
2. Attend pre -construction meeting.
3. Inspect installation and construction of Project.
4. Perform 10" hot tap.
5. Install new irrigation meters.
6. Observe pressure testing & disinfection activities.
7. Take bacteriological samples.
8. Review, approve and inspect installation of all required backfiow prevention equipment.
9. Attend final walk thru inspection and prepare punch list if necessary.
10
EXHIBIT "C"
Estimated Costs and Fees
Coldstream PC1 WO #-19-744402
(00884237.DOCX 3 )l 7
Estimated Costs
Coldstream PC1 WO # - 19-744402
The Estimated Costs are as follows:
Administrative and design $ 1,000.00
Engineering & modeling $ 0.00
Construction and inspection $ 20,000.00
Proiect documentation deposit_ $ 9,000.00
Total Estimated Costs $ 30,000.00
The Fees as follows:
Facilities Fee
(Irrigation Meter #1 - 3/4" meter)
$
7,575.00
Connection Fee
(Irrigation Meter#1 - 3/4" meter)
$
1,330.00
Facilities Fee
(Irrigation Meter #2 - 3/4" meter)
$
7.575.00
Connection Fee
(Irrigation Meter #2 - 3/4" meter)
$
1,330.00
Facilities Fee
(Irrigation Meter #3 - 3/4" meter)
$
7,575.00
Connection Fee
(Irrigation Meter #3 - 3/4" meter)
$
1,330.00
Total Fees $ 26,716.00
Total Estimated Costs & Fees $ 56,715.00
Less Deposit Paid in Advance ($ 1,000.001
BALANCE DUE $ 55.715.00
Paid 8/1/2019, Check # 73449
Page 1
EXHIBIT "D"
Improvements by and Responsibilities of Developer
(00884237.DOCX 3 ) 18
Improvements by and Responsibilities of Developer
1. Schedule a pre -construction meeting with District staff and the pipeline
contractor.
2. Provide all permits required.
3. Provide all traffic control and trench protection as required per applicable laws
and TDPUD field supervisor's requirements.
4. Construct water system improvements per approved plans/construction
drawing.
5. Water facilities constructed under this "Development Agreement/Estimate of
Water Construction" shall be constructed by appropriately licensed
contractors. Contractors shall have current and active licenses issued by the
California Department of Consumer Affairs, Contractors License Board. The
appropriate licenses for water system construction are typically "A — General
Engineering Contractor", or "C34 — Pipeline Contractor".
6. All construction to meet or exceed requirements of the current District
WATER SYSTEM CONSTRUCTION STANDARDS.
7. Perform all water pipeline testing and disinfection per requirements of
WATER SYSTEM CONSTRUCTION STANDARDS.
8. Provide compaction test results by a licensed professional.
9. Schedule main taps and meter installations with the Water Superintendent
(Brian Wright 582-3957). A minimum of five working days notification is
required for District crew scheduling.
10. Contact Clay Walker (582-3926) to confirm cross connection installation
requirements (equipment, location, testing, etc.).
11. Compile and submit project documentation drawings in accordance with
District requirements.
12. 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.
13. Schedule and attend final walk through inspection with contractor and District
representatives.
EXHIBIT "E"
Improvements by and Responsibilities of District
(00884237.DOCX 3 )1 9
Improvements by and Responsibilities of District
1. Operate water system as required including customer notification
(outages), system shut -down and system flushing.
2. Attend pre -construction meeting.
3. Inspect installation and construction of Project.
4. Perform 10" hot tap.
5. Install new irrigation meters.
6. Observe pressure testing & disinfection activities.
7. Take bacteriological samples.
8. Review, approve and inspect installation of all required backflow
prevention equipment.
9. Attend final walk thru inspection and prepare punch list if necessary.
Attachment 2
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.
I.I. 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.
{00894323.DOCx z }First Amendment to Development Agreement — Coldstream Phase 3
-1-
Attachment 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 any 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
{00894323.DOCx 2 }First Amendment to Development Agreement — Coldstream Phase 3
-2-
Attachment 2
TRUCKEE DONNER PUBLIC UTILITIES
By: DISTRICT, a local public agency of the State of
California
Name: Randall Sater
Its: President
By:
By:
Name: Remleh Scherzinger
Name: Ronald Gatto Its: General Manager/CEO
Its: Executive Vice President
{00894323.DOCx 2 }First Amendment to Development Agreement — Coldstream Phase 3
-3-