HomeMy WebLinkAbout14 Attachment 1 Steiner Claim DocumentsApril 14, 2015
Ms. Mimi Ash
The Metro Group, Inc.
4120 Douglas Boulevard, Suite 384
Granite Bay, California 95746
Re: Water Development Agreement for Pinyon Creek II
Placer County APNs 080-270-003, 080-270-016 and 080-270-017
Dear Ms. Ash:
Directors
Joseph R. Aguera
Jeff Bender
Bob Ellis
Tony Laliotis
Paul Warmerdam
General Manager
Michael D. Holley
The Truckee Donner Public Utility ("District") understands that you are the owner of Placer County
APNs 080-270-003, 080-270-016 and 080-270-017 and the development project commonly known as
Pinyon Creek Phase I1. You are likely aware that in 2003 the District entered into an On -Site Water
Development Agreement Between the Truckee Donner Public Utility District and Shire Investments
LLC, APN 19-620-15, Pinyon Creek I ("Agreement"), a copy of which is attached. Pursuant to Section
29 the Agreement and an August 18, 2004 letter from the District to Bryan McAllister, SCO Planning &
Engineering ("Letter"), a copy of which is also attached, the District is currently holding the sum of
$39,000 as a financial guarantee of construction of the Phase II water piping.
It appears to the District that you are the successor to Shire Investments LLC pursuant to Section 18 of
the Agreement. If that is the case, then you would be entitled to receive any refund of the financial
guarantee in accordance with the terms of the Agreement and Letter. Please confirm in writing to the
District that you are in fact the successor to Shire Investments LLC under the Agreement. Please provide
any documentation you have to support your position.
The District is also sending a copy of this letter to Mark Steiner, Pinyon Creek LLC, which is designated
in the Agreement as the recipient of any notices under the Agreement, via certified mail, so that it is
aware of the District's interest in ascertaining the identity of the person or entity entitled to any refund
of the financial guarantee.
If you have any questions, or require further information, please contact me at 530-582-3950.
Sincerely,
Neil Kaufman, P.E.
Water System Engineer
Enclosures
cc: Mark Steiner, Pinyon Creek LLC
11570 Donner Pass Road, Truckee, CA 96161 — Phone 530-587-3896 — www.tdpud.org
,0 a
A Jl"nn Ki Z
73260 LINCO7LN iTVAY, SUITE 380
AUBURNs CA 95603
TEL, (530) 820-3435
I:A4: (30) 820-3453
ENIAIL; kj1dair6L40beg)oba1.nec
May21,2.O1S
o First Class Mcril.
Neil Kaufman P.E.
Water System Engineer
Truckee Donner Public Utility District
11570.Donner Pass Road, Truckee, CA 96161
Re; FraleP17evelopmentAgreeinew)urPirtvon Creek dI
Placer County APNs 080470403, 080a270- 016 and 080-270417
Dear Mr. Iraufnnan,
I have been retained by Mark Steiner to respond to your April 14, letter to NIs. Mimi Ash
regarding the refund of $39,000 paid by Pinyon. Creek 11,;LLC3 as a deposit for a water distribution
system that was to have been developed on the above-referenecd.properties, pursuant to the On�Site
Agreement Between Truckee Dolmer,Public, Utility District, and- Shire Investments,•'LLC,.whieb was
enclosed with your letter. As that Agreementrflect Ivlr. Stei?ner signed the Agreement -on. behalf of
Pinyon Creel(, LLC, the developer'Tor that project, and Mr. Steiner and Pinyon Creek had non
assig>sarle,rights arid: b� a io��s:tuzdex that �;g eerneiii;; Piiiyov-*-reek and Shire Investwents, LLC,
eventually- ldstthe pr ect,•due:to.fo eclosure,:andrthe:water:dzstributiori:systel ;they..proposed;:for
which Pinyon Creek paid the deposit, was never completed. It is our understanding that Ms. Ash
purchased the property long after. the water project was cancelled. Ms. Ash was never the successor to
Shire Investments, LLC, or to -Pinyon Creels, LLC,. and under.the terns of the Agreement, Ms. Ash
never had any rights.or obligations under the Agreement pursuant to which the $39,000 deposit was
paid. ... . , .. � .. .
B; 7.lZiu Ietter, Mr: Steiner. regitest.: t17at tlie. $?''>',nor pa.ycnc7lt be I•efundecl to l�n, suns:, lne•made
the payment and the' Agreement makes hiin and Pinyon Creels responsible for the obligations under the
Agreement. _NIs. Ash clearly did not make the payment, was never obligated under the Agreement, and
11
only purchased rights to the underlying property long after the -Agreement had become moot because
the project for which -it was made had been cancelled. Refunding $39,000 to Ms. Ash -would be a
complete windfall' for her.
Please-feeltree to contact nne or N5r. Steiner should you lnave•any questions or require -further
%rlformation.c�nce1:�ring I\rlr: Steilrers claan to the $39,00Ui•efirtrd. - .. '. .......- - ..
'. sincerely,
Klau7J11 lb
ON -SITE WATER DEVELOPMENT AGREEMENT
BETWEEN THE
TRUCKEE DONNER PUBLIC UTILITY DISTRICT
SHIRE INVESTMENTS, LLC
APN 19-620-15
Pinyon Creek 1
This agreement is entered into between the TRUCKEE DONNER PUBLIC UTILITY DISTRICT, a
local public agency of the State of California, hereafter referred to as "the District," and SHIRE
INVESTMENTS, 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 I M20-15 on which Developer intends to construct "40
Duplex Townhomes", hereafter referred to as the "Project."
C. Developer intends to construct a complete water distribution system for the Project for domestic
and fire protection 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 "water distribution system."
D. The water distribution system is a necessary part of the Project, and Developer has requested
that the District accept the system by including it within the District's existing integrated systems.
Developer has further requested that, upon completion, the District thereafter own, operate,
maintain, repair, and replace the water distribution system as necessary.
E. The District is willing to accept the water distribution system providing it is properly constructed
in accordance with the approved plans, specifications and terms of this agreement.
F. Complete plans and specifications for the construction of the water distribution system has 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.
G. Developer has selected contractors for construction of the water portion of this Project. The
names of the contracting firms, contact persons, mailing addresses, telephone numbers 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 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 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 thirty (30) days of unconditional acceptance of
the water distribution system. Upon execution of this agreement, Developer shall also payto
the District the fees set forth in the 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. NIA
3. N/A
4. Provision of Easements -Permission to Enter Land. Developer will execute a temporary
blanket easement granting the right to do all things necessary for the construction of the
waterfacilities 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 tolremove rocks, boulders, trees and plant life in the course
of excavation or re -excavation. The temporary easement will be abandoned upon receipt by
the District of a permanent easement for the maintenance and repair of the water distribution
system.
5. Provision of Insurance -Upon execution of this agreement, Developer shall provide the
District with satisfactory evidence of an insurance policy written upon a form and by a
company which meets with the approval of the District, insuring the District, its officers,
agents and employees against loss or liability which may arise during the construction, or
which may result from any of the work or construction herein required to be done, including all
costs of defending any claims arising as a result thereof. The minimum limits of such policy
shall be in the amount of $1,000,000 for the death of or injury to any person in any one
accident and $1,000,000 for the death of or injury to more than one person in any one
accident and $500,000 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 water distribution system 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.
E
6. Indemnification bV 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, be it
active or passive, except the sole 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 water distribution
system improvements described in the attachment entitled Improvements by and
Responsibilities of Developer.
8. Improvements by and Responsibilities of District. The District shall perform water distribution
system improvements 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.
9. Construction Inspection. The District shall inspect the construction from time to time, in order
to determine that the water distribution system is installed in accordance with the approved
I
mprovement plans, construction specifications and the terms of this agreement.
a. The District shall notify the Developer Al 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 water distribution system shall be
completed, as defined herein, wn twelve (12) months from the date of execution of this
agreement. In the event Developer fails to complete the water distribution system within that
time, the District may in its discretion (1) increase any and all fees and costs to equal the
District's current charges, (2) require Developers plans and specifications to be updated and
redrawn to complywith 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.
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 anytype
whatsoever fora 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. Emergency repairs will be coordinated by
District and charged to the Developer.
3
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 water distribution system on the Project, nor shall Developer use or permit
anyone else to use any water service supplied by the District, until the District has granted
conditional acceptance in writing. Developer may, however, with the District's permission and
prior to conditional acceptance, use water for construction purposes. The District shall be
entitled to terminate, without notice, any water usage by Developer or any other person, other
than that required for construction purposes, occurring priorto conditional acceptance bythe
District of the entire water distribution system.
13. Completion of the Systems. Construction shall be deemed complete when the District
determines thatthe water distribution system has been entirely finished, properlytested, and
ready to service the Project in accordance with the District's Rules and Regulations.
14. Conditional Acceptance. When the District has determined that the water distribution system
has been completed, the District may conditionally accept the systems and may provide
water service, on a conditional basis, to the Project. Conditional service shall be provided to
enable Developer to use the Project while Developer is in the process of providing to the
District those items specified in the paragraph entitled "Requirements for Unconditional
Acceptance." Any conditional acceptance shall be in writing. 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, then the District may, after providing thirty (30) days prior
written notice, discontinue conditional water service to the Project. Any water service
provided by the District prior to unconditional acceptance of the water 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 water distribution
system.
a. Developer shall execute an offer of dedication for the water distribution system to the
District in a form satisfactory to the District, without cost, free, and clear of all liens and
encumbrances.
b. Developer shall certify that the project was constructed with approved materials and in
compliance with the development agreement and the approved plans, except as noted
on the project documentation drawings.
c. Developer shall provide the District with project documentation drawings in compliance
with District policy (see attached).
d. Developer shall provide the District with the appropriate permanent easements.
e. Developer shall provide the District with a maintenance bond in a form satisfactoryto the
District in a sum equal to twenty-five percent (25%) of the ultimate construction costs. of
the electric and/or water distribution systems. This bond shall remain in effect for a
period of one (1) year after unconditional acceptance of the water distribution systems
and protect against any defects or failures in the systems that may develop during that
time.
f. Developer shall provide the District with a statement of the "as -built" dollar value of the
installed water distribution system with documentation to substantiate the stated value.
g. Developer shall pay any outstanding costs and fees.
16. Responsibilities After Unconditional Acceptance. Prior to unconditional acceptance of the
water distribution system by the District, Developer shall be responsible for all maintenance
and repair of the water distribution system. Upon unconditional acceptance of the water
distribution system by the District, the District shall thereafter own, operate, maintain, repair
and replace the water distribution system, unless such repairs or replacements are covered
by Developer's warranty. Thereafter, the District shall use its best efforts to provide adequate
water service to the Project upon request and payment of all appropriate fees and charges, in
accordance with California law and District Rules and Regulations.
17. Notices. Notices or requests from either party to the other shall be in writing and delivered or
mailed, postage prepaid, to the following addresses:
PINYON CREEK, LLC
Mark Steiner
8999 Greenback Lane, 2nd Floor
Orangevale, CA 95682
TRUCKEE DONNER PUBLIC UTILITY DISTRICT
Post Office Box 309
Truckee, California 96160
18. 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.
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 losing
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
5
0
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. 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 County of Nevada, California.
24. 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.
25. Necessary Acts. Each party to this Agreement agrees to perform any further acts and
execute and deliver any further documents that maybe reasonably necessaryto carryout the
provisions of this Agreement.
26. 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 orfailure 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.
27. Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of California.
28. Cost Allocation for Off -Site Improvements for Development. The Developer has agreed to
the cost allocation for the off -site improvements beneficial to the Pinyon Creek 1 project.
29. Construction Guarantee Deposit. The Developer shall deposit $39,000 with the District as a
financial guarantee of construction of the Phase 2 water piping in a timely manner and further
described in the attached letter dated August 18, 2004 to a Mr. McAllister.
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:
M.A. Steiner Dd�
by Mark Steiner,
Waging Member
Peter L. Holzmeister, General Manager
Truckee Donner Public Utility District
i
Estimated Costs
WO # - 02-74428 Pinyon Creek
The Estimated Costs are as follows:
Administrative and design $ 1,500.00
Engineering & modeling $ 0.00
Construction and inspection $ 43430900
Proiect documentation deposit $ 7,580.00
Total Estimated Costs $13,510.00
Construction Guarantee Deposit $39,000.00
Facilities and Connection Fees are due and payable at the time service is requested
and building permits are applied for.
7
0
Improvements by and Responsibilities of Developer
1. Schedule a pre -construction meeting with District Planner, Water Inspector 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. All construction to meet or exceed requirements of the current District wATER
SYSTEM CONSTRUCTION STANDARDS.
6. Perform all water pipeline testing and disinfection per requirements of WATER
SYSTEM CONSTRUCTION STANDARDS .
7. Provide compaction test results by a licensed professional.
8. Schedule meter installation with Water Foreman. A minimum of five working
days notification is required for District crew scheduling (George Caballero, 582-
3935).
9. Contact Paul Rose (582-3926) to confirm cross connection installation
requirements (equipment, location, testing, etc.).
10. 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.
11. Schedule and attend final walk through inspection with contractor and District
representatives.
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 (Planner &Inspector).
3. Perform two (2) 8" taps through contractor installed sleeves and valves.
4. Inspect installation and construction of Project.
5. Observe pressure/leakage test.
6. Take bacteriological samples.
7. Test locator wire installation.
8. Specify, approve and inspect installation of all required back flow equipment.
9. Attend final walk thru inspection and prepare punch list if necessary.
E
�d
e
0 �.
Business Office
August 18, 2004
Mr. Bryan McAllister
SCO Planning &Engineering
140 Litton Drive, Suite 240
Grass Calley, California 95945
Dear Mr. McAllister:
(530) 587-3896
FAX (530) 587-5056
Board of Directors
Joseph R. Aguera
J. Ronald Hemig
James A. Maass
Patricia S. Sutton
Nelson Van Gundy
General Manager
Peter L. Holzmeiste
Per your request, the District has reviewed the potential for deletion of the planned 8-inch water
p�i�eli� acry�z�s�the en�jronmentally sensitive area at about Station 15+75 of Alignment A on the
�:��oree��``�o€;_Based upon this analysis, the following changes to the project are
acceptable.
1) The 8-inch pipe from Station 14+94 to Station 16+45 on Alignment A may be
deleted.
2) The pipe from Station 16+45 to Station 19+10 on Alignment A shall remain at 8-inch
diameter.
3) An 8-inch elbow may be substituted for the 8" tee at Station 14+94.� Both gate valves
maybe deleted.
4) An 8-inch in -line isolation valve shall be installed at the hydrant tee shown at Station
10+754 of Alignment B.
The modifications described in items 1-4 are predicated upon looping of an 8-inch pipeline
through Pinyon Creek Phase 2 (the Placer County portion) with a connection to the adjacent
Coyote Run project. .
The developer shall deposit $39,000 with the District as a financial guarantee of construction of
the Phase 2 water piping in a timely manner. The developer shall have until December 31, 2006
to complete installation of the water facilities in Phase 2. Upon successful installation of the
water facilities, the $39,000 deposit shall be refunded in full.
In the event that such water facilities are not constructed by that date, the District shall utilize the
$39,000 to install 8-inch water pipe along Alignment A from Station 14+94 to Station 16+45.
Any funds that remain after installation of the pipe (including engineering and administrative
costs) will be refunded to the developer. The $39,000 amount was determined as follows.
Dnct (lifir_p Rnx 309 • 11570 Donner Pass Road • Truckee, California 96160
4.1
Hot tap of 8" pipe at Station 14+94
8-inch pipe - Station 14+94 to 15+60 ($70/foot)
Bore and jack installation - Station 15+60 to 16+00 ($400/foot)
8-inch pipe - Station 16+00 to 16+45 ($70/foot)
Engineering &Administration
Total
$6,000
$4,620
$161000
$3,150
$3,000
$39,000
If you have any questions or require additional information, please contact me at 530-582-3950.
Sincerely,
Neil Kaufman, P.E.
Water System Engineer