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HomeMy WebLinkAbout15 Attachment Water Dev. Agreement {00897629.DOC 2 }1 WATER DEVELOPMENT AGREEMENT BETWEEN THE TRUCKEE DONNER PUBLIC UTILITY DISTRICT AND J-MAR II, LLC Soaring Ranch Off-Site Infrastructure Improvements 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 J-MAR II, LLC, hereafter referred to as "Developer," with respect to the following facts: RECITALS A. Developer intends to construct within the Town of Truckee right of way, “off-site infrastructure improvements to support the Joerger Ranch Specific Plan by completing a water line loop from the Soaring Way/Joerger Drive intersection to the TDPUD’s existing water line located adjacent to Riverview Park”, hereafter referred to as the "Project." The Project is to be built in conjunction with a mixed-use development located within the Joerger Ranch Specific Plan area known as Soaring Ranch Phase 2. Soaring Ranch Phase 2 will consist of approximately thirty-three thousand (33,000) sq. ft. of ground level commercial space and sixty-nine (69) multi-family rental apartments to be located immediately to the southeast of Soaring Ranch Phase 1. B. District and Developer entered into that certain Water Development Agreement executed by them on June 5, 2019, pursuant to which Developer agreed to construct and the District agreed to accept a water distribution system for Developer’s Phase 1 of a commercial center including Raley’s grocery market and additional retail on Developer’s real property within Nevada County, California bearing Assessor’s Parcel Number 19-620-60, which is included within the area subject to the Joerger Ranch Specific Plan. That water distribution system for Phase 1 has been constructed by Developer and accepted by the District. C. The Project is necessary not only to support the future development within the area subject to the Joerger Ranch Specific Plan as well as other adjoining areas including the Truckee Tahoe Airport District; it is necessary to provide resilience and reliability to the water distribution system constructed for Developer’s Phase 1 of a commercial center including Raley’s grocery market and additional retail on Developer’s real property within Nevada County, California bearing Assessor’s Parcel Number 19-620-60. Therefore, time is of the essence, and it is necessary that Developer complete the Project strictly within the time limits set forth in this Agreement. D. Developer intends to construct the Project for domestic and fire protection use, landscape irrigation use, including pipes, valves, service laterals, and related equipment, in accordance with the approved plans and specifications. Such system shall hereafter be referred to as the "Project." E. Developer has requested that the District accept the Project by including it within the {00897629.DOC 2 }2 District's existing integrated systems. Developer has further requested that, upon completion, the District thereafter own, operate, maintain, repair, and replace the Project as necessary. If the total value of the Project 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. F. The District is willing to accept the Project provided it is properly constructed in accordance with the approved plans, specifications, and terms of this agreement. G. Complete plans and specifications for the construction of the Project 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 Water Department. H. Developer has previously selected contractors for construction of the Project, however, the Developer reserves the right to re-bid the Project and make a new contractor selection prior to the start of construction of Soaring Ranch Phase 2. The names of the original 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. Should the Developer select a new contractor or contractors, the Developer shall provide new Contractor Firm Data Sheets to the District. I. The following items are on file in the District office and incorporated herein by reference:  Development Agreement application  Contractor firm data sheet – water  Encroachment Permit  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 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 Project. Upon execution of this Agreement, Developer shall also pay to the District the fees set forth in the {00897629.DOC 2 }3 estimated construction costs and calculation of water fees. At the time water service is requested and construction of buildings or other facilities requiring water service are initiated, the payment of facilities and connection fees will be required. Facilities and connection fees paid will be at the rate in effect at the time service is requested. 2. Provision of Easements - Permission to Enter Land. Permission to Enter Land. Developer will provide an encroachment permit granting the right to do all things necessary for the construction of the Project 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. 3. 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. 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 Project is 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. 4. Indemnification by 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 under this 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. 5. Improvements by and Responsibilities of Developer. Developer shall perform and be responsible for all labor and material expenses involved in performing the Project described in the attachment entitled Improvements by and Responsibilities of Developer. 6. Improvements by and Responsibilities of District. The District shall assign a Project Administrator to oversee the Project. The District shall perform the Project at Developer's expense as described in the attachment 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. 7. Construction Inspection. The District shall inspect the construction from time to time, in order to {00897629.DOC 2 }4 determine that the Project is 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 Agreement. The Developer and/or the Developer's representatives shall correct such deviation or failure as soon as is reasonably practicable. A. Timely Construction Required. Construction of the Project shall be completed and Unconditional Acceptance by the District, as defined herein six (6) to fifteen (15) months from the date of commencement of construction of Soaring Ranch Phase 2. In the event Developer fails to complete the Project 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. Additionally, no further development of parcels APN 016-620-60, 016-620-61, and 016-620-62 will be allowed prior to completion of Project. 8. 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 from the date of 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. 10. CONDITIONAL ACCEPTANCE - IF REQUESTED by Developer If Developer requests Conditional Acceptance of the Project, the circumstances outlined below must be complied with prior to issuance of written Conditional Acceptance from the District. A. Provision of Water Service. Upon completion of Project construction (including pressure testing and disinfection), the facilities under this Development Agreement shall remain off, without water services, until either: 1) Conditional Acceptance of the Project is issued by the District. or 2) Unconditional Acceptance of the Project is issued by the District. Until either of these conditions is met, water for domestic and fire protection will not be provided. {00897629.DOC 2 }5 B. Completion of the System. Project shall be deemed complete when the District determines that it has been entirely finished, properly tested, and qualifies for Unconditional Acceptance. C. Conditional Acceptance. When the District has determined that the Project has been completed the District may provide water service, on a conditional basis, to the Project. Conditional Acceptance will enable Developer to use the Project 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 steps set forth below, the District will issue in writing Conditionally Acceptance of the water distribution Project. 1) The Developer submits a written request for Conditional Acceptance of the Project using the District’s form (provided upon request). 2) The Developer will arrange for District to conduct a walk-through inspection of the Project water system improvements. Developer will be responsible to repair, replace and or correct deficiencies, identified during this inspection. 3) Developer shall execute an offer of dedication for the Project to the District in a form satisfactory to the District, without cost, free, and clear of all liens and encumbrances. 4) Developer shall provide the District with the appropriate encroachment permits. 5) Developer shall provide a copy of the final map, if applicable. 6) 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 the Water Development Agreement. 7) The District has determined that the Project has been pressure tested, disinfected, successfully passed bacteriological sampling and it is appropriate to activate the water system. 8) The Conditional Acceptance Deposit will be refunded within 60 days of the date District issuance of Unconditional Acceptance of the Project. 11. UNCONDITIONAL ACCEPTANCE REQUIREMENTS A. Project Final Walk Through Inspection. Developer acknowledges that a final walk- through inspection of the Project is required. Developer is responsible to repair, replace and or correct deficiencies identified during this inspection. {00897629.DOC 2 }6 B No Early Use of Project. 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 Project, until the District has granted Conditional Acceptance in writing. C. Within thirty (30) days after Project completion as determined by the District. Developer shall comply with all steps set forth below and if Conditional Acceptance was not previously requested and granted prior to final acceptance, items C.4 through C.8 under Conditional Acceptance will be required. In addition to items C.4 through C.8, Developer shall comply with the following conditions. 1) Developer shall provide the District with Project documentation drawings in compliance with District policy. 2) 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 Project. This bond shall remain in effect for a period of one (1) year after the date of District Unconditional Acceptance of the Project that will protect against any defects or failures in the systems that may develop during that time. 3) Developer shall provide the District with a statement of the “as-built” dollar value of the installed Project with documentation to substantiate the stated value. 4) Prior to Unconditional Acceptance of the Project by the District, Developer shall be responsible for all maintenance and repair of the Project. Upon Unconditional Acceptance of the Project by the District, the District shall thereafter own, operate, maintain, repair and replace the Project, unless such repairs or replacements are covered by Developer's warranty. 5) 12. Notices. Notices or requests from either party to the other shall be in writing and delivered or mailed, postage prepaid, to the following addresses: J-MAR II, LLC Art Chapman David Tirman P.O. Box 217 Truckee, CA 96160 TRUCKEE DONNER PUBLIC UTILITY DISTRICT Regina Cooley, Contract Administrator 11570 Donner Pass Road Truckee, CA 96161 13. Successors and Assigns. This Agreement shall be binding upon and insure 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. 14. 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 {00897629.DOC 2 }7 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. 15. 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. 16. 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 losing party reasonable attorneys' fees and costs incurred therein or in the enforcement or collection of any judgment or award rendered therein. 17. 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. 18. 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. 19. 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. 20. 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. 21. 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. {00897629.DOC 2 }8 22. 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. 23. 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: ___________________________________ _________________________________________ J-MAR II, LLC By David Tirman, President, JMA Holdings, LLC on behalf of J-MAR II, LLC Dated: ___________________________________ _________________________________________ Brian Wright, General Manager Truckee Donner Public Utility District {00897629.DOC 2 }9 Estimated Costs and Calculation of Fees Soaring Ranch Off-Site – Joerger Drive Pipeline WO # - 19-744404 The Estimated Costs are as follows: Administrative and design $ 1,000.00 Engineering & modeling $ 0.00 Construction and inspection $ 10,000.00 Project documentation deposit $ 5,000.00 Total Estimated Costs $ 16,000.00 The Fees as follows: Total Fees $ 0.00 Total Estimated Costs & Fees $ 16,000.00 Less Deposit Paid in Advance ($ 1,000.00) BALANCE DUE $ 15,000.00 {00897629.DOC 2 }10 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. Compile and submit project documentation drawings in accordance with District requirements. 11. 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. 12. Schedule and attend final walk-through inspection with contractor and District representatives. {00897629.DOC 2 }11 Improvements by and Responsibilities of District 1. Operate water system as required including customer notification (outages), system shutdown and system flushing. 2. Attend pre-construction meeting. 3. Inspect installation and construction of Project. 4. Observe pressure testing & disinfection activities. 5. Take bacteriological samples. 6. Review, approve and inspect installation of all required backflow prevention equipment. 7. Attend final walk thru inspection and prepare punch list if necessary.