HomeMy WebLinkAbout15 Attachment Electric Dev. Agreement
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ELECTRIC 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 an
electric line loop from the Soaring Way/Joerger Drive intersection to the TTUSD Bus Barn”,
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 Electric Development Agreement executed
by them on June 5, 2019, pursuant to which Developer agreed to construct and the District
agreed to accept an electric 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 electric
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 electric
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 in accordance with the approved plans and
specifications. Such system shall hereafter be referred to as the "Project."
E. N/A
F. Developer has requested that the District accept the Project by including it within the
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District's existing integrated system. 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.
G. 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.
H. 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 Electric Department.
I. 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
Electric Department. Should the Developer select a new contractor or contractors, the
Developer shall provide new Contractor Firm Data Sheets to the District.
J. The following items are on file in the District office and incorporated herein by reference:
Development agreement application
Contracting firm data sheet – electric
Encroachment Permit
Proof of Insurance
Project parcel map
Site and Improvement plans - electric
Estimated costs and calculation of fees - electric
Improvements by and Responsibilities of Developer - electric
Improvements by and Responsibilities of District - electric
Project documentation policy
The parties agree as follows:
1. Payment of Costs and Fees. The District has prepared an estimate of its costs for materials,
labor, consultants, and legal expenses that the District expects to expend for administrative,
design, inspection, and actual construction (hereafter collectively referred to as the
"construction costs"). Upon start of construction, Developer shall deposit with the District
amounts that shall be applied to the actual construction costs incurred by the District. If the
actual cost exceeds the amount deposited, Developer shall pay such excess within thirty (30)
days of receipt of the District's invoice. If the actual cost is less than the amount deposited,
the District shall refund the difference within sixty (60) days of the date of unconditional
acceptance of the Project. Upon execution of this Agreement, Developer shall also pay to the
District the fees set forth in the estimated construction costs and calculation of fees.
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2. N/A
3. N/A
4. Provision of Easements - Permission to Enter Land. Developer will provide an encroachment
permit granting the right to do all things necessary for the construction of the electric facilities
including, but not limited to, a right to ingress and egress, a right to temporarily store
equipment and materials, to excavate, to drive vehicles over, to place markers on, to survey,
to inspect and repair, and to remove rocks, boulders, trees, and plant life in the course of
excavation or re-excavation.
5. Provision of Insurance - Upon execution of this Agreement, Developer shall provide the
District with satisfactory evidence of an insurance policy written upon a form and by a
company which meets with the approval of the District, insuring the District, its officers,
agents and employees against loss or liability which may arise during the construction, or
which may result from any of the work or construction herein required to be done, including all
costs of defending any claims arising as a result thereof. The minimum limits of such policy
shall be in the amount of $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.
6. 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.
7. 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 design drawings and outlined under the general construction notes entitled Customer
to Supply and Install.
8. Improvements by and Responsibilities of District. The District shall assign a Project
Administrator to oversee the Project. The District shall perform the Project at Developer's
expense as described in the design drawings and outlined under the general construction
notes entitled TDPUD to Supply to the Customer, for Installation by the Customer and
TDPUD to Supply and Install at Customers Expense. The construction costs deposited with
the District shall be applied to the actual construction costs unless otherwise indicated. If the
actual construction costs exceed such deposit, Developer shall pay such excess within thirty
(30) days of receipt of the District's invoice.
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9. Construction Inspection. The District shall inspect the construction from time to time, in order
to determine that the Project is installed in accordance with the approved improvement plans,
construction specifications and the terms of this Agreement.
a. The District shall notify the Developer and/or the Developer's representatives in writing
as to any deviation from the approved improvement plans, construction specifications
and the terms of this agreement. The Developer and/or the Developer's representatives
shall correct such deviation or failure as soon as is reasonably practicable.
10. Timely Construction Required. Construction of the Project shall be completed, as defined
herein, within 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 in its discretion (1) increase any and all fees and costs to equal the District's
current charges, (2) require Developer’s plans and specifications to be updated and redrawn
to comply with the District's current standards, and (3) terminate this Agreement and recover
from Developer the full cost of all expenses and charges incurred by the District, including but
not limited to material, labor, backfill, paving and outside services. Additionally, no further
development of parcels APN 016-620-60, 016-620-61, and 016-620-62 will be approved for
delivery of TDPUD utility services prior to completion of Project. To guarantee Developer’s
faithful performance and completion of the Project in accordance with this Agreement,
Developer at its cost shall provide the District with a faithful performance bond or letter of
credit in the amount of Six Hundred and Seventy Thousand Dollars ($670,000). The District
shall reasonably cooperate with the Developer to facilitate Developer obtaining such security.
11. Developer's Warranty. Developer warrants and guarantees that all labor and materials
supplied by Developer are of a good and workmanlike quality, free of any defects of any type
whatsoever for a period of one (1) year after unconditional acceptance by the District. Within
the period of this warranty, Developer shall repair or replace, at Developer's expense, any
defective material or workmanship. The District shall notify Developer of any malfunction or
nonconformity promptly upon discovery. Within fifteen (15) business days after receiving
notice from the District, Developer shall commence to repair or replace the defective part and
will expeditiously pursue such work to completion and acceptance by the District. Emergency
repairs will be coordinated by District and charged to the Developer.
12. No Early Use of 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, nor shall Developer use or permit anyone else to use any electric
service supplied by the District, until the District has granted Conditional Acceptance in
writing. Developer may, however, with the District's written permission and prior to conditional
acceptance, use electricity for metered construction purposes. The District shall be entitled to
terminate, without notice, any electric usage by Developer or any other person, other than
that required for construction purposes, occurring prior to unconditional acceptance by the
District of the Project.
13. Completion of the System. Construction shall be deemed complete when the District
determines that the Project has been entirely finished, properly tested, and ready to provide
service in accordance with the District's Rules and Regulations and qualifies for
Unconditional Acceptance.
14. Conditional Acceptance. When the District has determined that the Project has been
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completed, the District may conditionally accept the Project and may provide electric service,
on a conditional basis. Conditional service shall be provided to enable Developer to use the
Project while Developer is in the process of providing to the District those items specified in
the paragraph entitled "Requirements for Unconditional Acceptance." Any conditional
acceptance shall be in writing from the District General Manager. If at any time the District, in
its sole discretion, determines that Developer is not making adequate progress toward
providing the District with the required items or is delinquent in not paying for metered electric
services, then the District may, after providing thirty (30) days prior written notice, discontinue
conditional electric service. Any electric service provided by the District prior to unconditional
acceptance of the electric distribution system shall be deemed conditional service.
15. Requirements for Unconditional Acceptance. Within thirty (30) days after completion as
determined by the District, Developer shall fully comply with all steps set forth below, and
upon such full compliance, the District shall unconditionally accept the Project.
a. 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.
b. Developer shall certify that the Project was constructed with approved materials and in
compliance with this Agreement and the approved plans, except as noted on the Project
documentation drawings.
c. Developer shall provide the District with Project documentation drawings in compliance
with District policy.
d. Developer shall provide the District with the appropriate encroachment permits.
e. N/A
f. N/A
g. 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.
h. Developer shall pay any outstanding costs and fees. If the actual costs exceed the
amount deposited with the District, a funds transfer agreement can be executed to
transfer any remaining deposits that may be in the Water Development Agreement (if
applicable) to cover the amount due in the Electric Development Agreement.
16. Responsibilities After Unconditional Acceptance. Prior to unconditional acceptance of the
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. Thereafter, the District shall use its best
efforts to provide adequate electric service using the Project upon request, completion of any
permit requirements and payment of all appropriate fees and charges, in accordance with
California law Town of Truckee, County of Nevada requirements and District Rules and
Regulations.
17. Notices. Notices or requests from either party to the other shall be in writing and delivered or
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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
Attention: Regina Cooley, Contract Administrator
11570 Donner Pass Road
Truckee, California 96161
18. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of
the successors and assigns of all parties; however, Developer shall not assign any of its
rights, duties, or obligations under this Agreement without the prior written consent of the
District.
19. District Powers. Nothing contained herein shall be deemed to limit, restrict, or modify any
right, duty, or obligation given, granted, or imposed upon the District by the laws of the State
of California now in effect, or hereafter adopted, nor to limit or restrict the power or authority
of the District. The District may enact rules, regulations, resolutions, or ordinances, including,
without limitation, creation of service zones and rate differentials applicable within the Project
area that may not be applicable elsewhere, at its discretion.
20. Severability. In the event that any part or provision of this Agreement is found to be illegal or
unconstitutional by a court of competent jurisdiction, such findings shall not affect the
remaining parts, portions, or provisions of this Agreement.
21. Attorneys' Fees. In the event of any litigation concerning any controversy, claim or dispute
between the parties hereto, arising out of or relating to this Agreement or the breach hereof,
or the interpretation hereof, the prevailing party shall be entitled to recover from the other
party reasonable attorneys' fees and costs incurred therein or in the enforcement or collection
of any judgment or award rendered therein.
22. Entire Agreement. This Agreement contains the entire agreement of the parties and
supersedes any prior written or oral agreements between them concerning the subject matter
contained herein. There are no representations, agreements, arrangements, or
understandings, oral or written, between the parties relating to the subject matter contained in
this Agreement which are not fully expressed herein. The provisions of this Agreement may
be waived, altered, amended, or repealed in whole or in part only upon the written consent of
all parties to this Agreement.
23. Dispute Resolution. If at any time during the Development Agreement process issues arise
that need resolution, the Developer should submit a written request to the Project
Administrator responsible for the Project in question. Such request shall state all of the
items of concern. The Developer can expect a response within 10 business days from
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receipt of request. If no resolution is reached, the Developer can request a meeting with the
District's General Manager. If still no resolution is reached, the Developer can request a
meeting before the Board to resolve the issue. The item shall be agendized before the Board
for the next scheduled regular Board meeting. Scheduling shall be consistent with the Brown
Act and must occur with at least 72 hours prior notice. Only after this process is exhausted
without resolution of the dispute may the parties proceed to litigation. If either party
commences a court action against the other based on a dispute or claim to which this
paragraph applies without first complying with the provisions of this paragraph, the party
commencing the court action shall not be entitled to recover attorney's fees or costs, even if
they would otherwise be available in such court action.
24. Forum. Any litigation to enforce or interpret the provisions of this Agreement or the parties'
rights and liabilities arising out of this Agreement or the performance hereunder shall be
maintained only in the courts in the Superior Court in and for the County of Nevada,
California, if in state court, or the Federal Court for the Eastern District of California, if in
federal court.
25. Captions. The captions and headings of the different paragraphs of this Agreement are
inserted for convenience of reference only and are not to be taken as part of this Agreement
or to control or affect the meaning, construction, or effect of the same.
26. Necessary Acts. Each party to this Agreement agrees to perform any further acts and
execute and deliver any further documents that may be reasonably necessary to carry out the
provisions of this Agreement.
27. No Waiver. The waiver by one party of the performance of any covenant, condition or
promise shall not invalidate this Agreement, nor shall it be considered as a waiver by such
party of any other covenant, condition, or promise. The delay in pursuing any remedy or
insisting upon full performance for any breach or failure of any covenant, condition or promise
shall not prevent a party from later pursuing remedies or insisting upon full performance for
the same or any similar breach or failure.
28. Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of California.
This Agreement shall be binding upon the parties only when signed by all parties. The District
representative shall not sign this Agreement until Developer has provided all costs, fees and items
required to be provided by Developer "upon execution of this Agreement."
Dated: ___________________________________
_________________________________________
J-MAR II, LLC
By David Tirman, President, JMA Holdings, LLC on behalf of J-MAR II, LLC
Dated: ___________________________________
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_________________________________________
Brian Wright, General Manager
Truckee Donner Public Utility District
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Estimated Costs and Calculation of Fees
1.FACILITIES FEES
N/A $0.00
Total Facilities Fees $0.00
2.CONNECTION FEES
Primary Line extension $203,088.32
Material cost $139,758.72
Labor cost $63,329.60
Total Connection Fees $203,088.32
3.METERING FEES
N/A
Material cost $0.00
Labor cost $0.00
Total Metering Fees $0.00
TOTAL $203,088.32
Project Documentation Deposit (see note 1.) 5.0% $10,154.42
$1000 minimum deposit
GRAND TOTAL $213,242.74
Deposit Paid 2/1/2019 Less Deposit Paid ($1,000.00)
BALANCE DUE $212,242.74
Note:
1. The Project Documentation Deposit will be refunded to the developer when the project
as-built drawings have been submitted to and accepted by the District in accordance
with District policy, See Development Agreement for As-Built policy.
ESTIMATED ELECTRIC FEES
Soaring Ranch Offsite Improvements
WO#19-644405
FACILITIES, CONNECTION, AND METERING
Updated 2/5/20