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HomeMy WebLinkAbout10 Attachment 1_Old Greenwood Water Development AgreementWATER DEVELOPMENT AGREEMENT BETWEEN THE TRUCKEE DONNER PUBLIC UTILITY DISTRICT AND OLD GREENWOOD LLC APNS 19-370-07, 08 & 19-430-09, 14-17 ITY DISTRI This agreement is entered into between the TRUCKEE DONNER PUBLIC UTILCT a local public agency of the State of California, hereafter referred to as "the District,I and OLD " with respect to the following facts: GREENWOOD LLC, hereafter referred to as "Developers, RECITALS A. Developer is the owner of that certain real property located within Nevada County, California bearing Assessor's Parcel Numbers 19-370-07, 08 & 19-430-09, 14-17 on which Develo er intends to construct "Old Greenwood", hereafter referred to as the "Project." p B. N/A 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 De requested that the District accept the system by including itJwith nect,n District'sveloper sting integrated systems. The Developer has further requested that, upon completion, the District thereafter own, operate, maintain, repair, and replace the water distribution system as necessary. C. Upon execution of the Development Agreement, Developer shall convey to District all water system facilities that have been constructed as of such date, including water pipelines and the water storage tank. Developer shall construct and convey to District, before the system is accepted and service is provided, all on -site distribution system facilities in accordance with Plans approved by District. 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 Page 1 of 12 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: 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 pay to the District the fees set forth in the estimated construction costs and calculation of waterfees. 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. All normal and customary facilities and connection fees shall apply to this development, except there shall be no connection or facilities fees associated with golf course irrigation water or construction water. 2. N/A 3. N/A 4. Provision of Easements - Permission to Enter Land. Developer will execute a temporary blanket easement granting the right to do all things necessary for the construction of the Page 2 of 12 water facilities including, but not limited to, a right to ingress and egress, a right to temporarily store equipment and materials, to excavate, to drive vehicles over, to place markers on, to survey, to inspect and repair, and to remove rocks, boulders, trees and plant life in the course of excavation or re -excavation. The temporary easement will be abandoned upon receipt by the District of a permanent easement for the maintenance and repair of the water distribution system. Developer shall provide to District, at the appropriate time and meeting reasonable requirements of District and Developer, non-exclusive easements on Developer property necessary to connect Old Greenwood to Grays Crossing. The location, terms and provisions of such easement grant shall be subject to approval by Developer. In addition, Developer shall have the right to install a separate pipe connecting the Old Greenwood and Gray's Crossing golf course irrigation systems in the easement area granted to District. Developer shall pay the cost of such separate pipe and reimburse the District in an amount equal to the incremental cost of installing such separate pipe above the cost of installing the District's pipes and other improvements within such easement area. 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. 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 underthis 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 as follows: Developer shall schedule a pre -construction meeting with District Planner, Water Foreman and the pipeline contractor. Page 3 of 12 2. Developer shall provide all permits required, including the Town of Truckee encroachment permit. 3. Developer shall provide all traffic control and trench protection as required per applicable laws and TDPUD field supervisor's requirements. 4. Developer shall construct water system improvements per approved plans/construction drawing. 5. Developer shall perform all construction to meet or exceed requirements of the current District WATER SYSTEM CONSTRUCTION STANDARDS. 6. Developer shall perform testing/disinfection on Water System Improvements per District specifications/requirements. 7. Developer shall provide compaction test results by a licensed professional. 8. Developer shall coordinate all scheduling of District staff with the Distribution Foreman (582-3926). A minimum of five working days notification is required for District crew scheduling. 9. Developer shall contact the Water Superintendent (582-3957) to coordinate delivery of project construction water. 10. 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. 11. Developer shall schedule and attend final walk through inspection with contractor and District representatives. 8. Improvements by and Responsibilities of District. The District shall perform water distribution system improvements at Developer's expense as described below. 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. District shall construct modifications at the Glenshire well, and other facilities necessary to provide potable water service to the Old Greenwood project. Construction of the well modifications has been completed as of July 21, 2003. Developer's financial contribution will be $120,000 payable upon execution of the final development agreement. Developer shall be entitled to a credit to be applied toward such contribution in the amount of $82,000, for design and construction costs previously incurred by Developer in connection with the well modifications. Page 4 of 12 2. District shall compensate Developer $60,000 for the upsizing of the water transmission pipeline from Glenshire Drive Well to the Old Greenwood water storage tank, concurrently with the conveyance of such pipeline to District. 3. District shall operate water system as required including customer notification (outages), system shut -down and system flushing. 4. District shall attend pre -construction meeting (Planner & Foreman). 5. District shall inspect installation and construction of Project. 6. District shall observe testing/disinfection of all water system improvements. 7. District shall take bacteriological samples. 8. District shall test locator wire installation. 9. District shall specify, approve and inspect installation of all required back flow equipment. 10. District shall attend final walk thru inspection and prepare punch list if necessary. 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 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 water distribution system shall be completed, as defined herein, within 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 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. 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 Page 5 of 12 will expeditiously pursue such work to completion. 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 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 prior to conditional acceptance by the District of the entire water distribution system. 13. Completion of the Systems. Construction shall be deemed complete when the District determines that the 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. Page 6 of 12 e. Developer shall provide the District with a maintenance bond in a form satisfactory to 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. 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: OLD GREENWOOD A. William Fiveash P.O. Box 2537 Truckee, CA 96161 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. Page 7 of 12 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 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 may be reasonably necessaryto cant' out the provisions of this Agreement. 26. No Waiver. The waiver by one parry 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. 27. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. 28. District shall have the right to develop up to four groundwater extraction wells (the "Wells"), located on Developer property subject to the terms described below. The location of all Wells shall be approved by Developer. District and Developer will enter into a lease agreement with respect to the Wells reflecting the following terms: a) Well Sites and Improvements. Subject to the execution of the lease agreement, compliance with applicable legal, regulatory and permit requirements, obtaining Page 8 of 12 necessary approvals and project planning and scheduling constraints, Developer shall convey, in a timely manner, to District a leasehold interest in the Well sites. District shall be the sole owner of all Well improvements. All Well site, storage tank and building locations, design, construction and operation shall be approved by Developer for aesthetic issues and compatibility with the surrounding development, and all improvements associated with all Wells shall comply with all applicable design review guidelines. b) Primary Well. District shall develop and construct a primary irrigation well (the "Primary Well") at a location mutually agreed upon by the parties, which the parties anticipate will be an area adjacent to the Old Greenwood golf course irrigation pond. If, however, such area does not prove feasible, the Primary Well shall be developed and constructed at such other location mutually agreed upon by the parties. c) Water Service Obligations. District shall provide, at the rate described in subparagraph e) below, irrigation water to serve the irrigation needs of the golf course and water needed in the course of construction of the Old Greenwood and Gray's Crossing projects. District acknowledges that developer will require approximately 100,000 gallons per day of water during construction of the Old Greenwood project (anticipated to be from 8/1/02 to 6/30/04) and up to 1,000,000 gallons per day during golf course "grow in" for the Old Greenwood project (anticipated to be from 7/1/03, to 7/30/04). District shall supply construction and golf course "grow in" water in amounts and at times reasonably required by Developer for the Grays Crossing project. d) Priority of Water Sources. In the event the Primary Well is not adequate to provide the water required by Developer, whether due to maintenance and repair issues, water capacity or quality issues, construction delays or otherwise, District shall supply such water (i) first from the other Wells, and then, (b) in the event the other Wells are not adequate to provide the water required by Developer, whether due to maintenance and repair issues, water capacity or quality issues, construction delays or otherwise, from other District water sources at the rate described below. e) Operating Expense Reimbursements. Developer shall pay to District an amount equal to 24.3 cents per 1,000 gallons of water used plus the actual cost of electricity to pump water to the golf course ponds from the Primary Well, calculated under District's applicable commercial rate. District estimates the cost of the kilowatt hours necessary to operate such pump to be 16.24 cents per 1000 gallons. This rate shall be subject to adjustment on June 1, 2004 and every year thereafter as follows: a. The base rate shall be adjusted based on the change in the Consumer Price Index (1982-84) for all Urban Consumers for San Francisco/Oakland area published by the Untied States Department of Labor, Bureau of Labor Statistics ("Index") which is published for the period immediately preceding the date of the commencement of the term ("Beginning Index"). If the Index published for the period immediately preceding the adjustment date ("Adjustment Index") has increased over the Beginning Index, the monthly base rate for the following year shall be set by multiplying the monthly base rate set forth in this Agreement by a Page 9 of 12 fraction, the numerator for which is the Adjustment Index and denominator of which is the Beginning Index. In no event shall the monthly base rate increase more than five percent (5%) in any one year. b. If the Index is changed so that the base year differs from that used as of the period immediately preceding the date on which the term commences, the Index shall be converted in accordance with the conversion factor published by the Unites States Department of Labor, Bureau of Labor Statistics. If the Index is discontinued or revised and no replacement index is specified, such other government index or computation with which it is replaced shall be used in order to obtain substantially the same result as would be obtained if the Index has not been discontinues or revised. c. District and Developer agree and acknowledge that all payments Developer makes to District hereunder represent payment for facilities use and operating and maintenance costs, and not payment on account of the water itself. f) Reservation of Developer's water rights. With respect to the development of Primary Well by District and Developer, the parties recognize that Developer is an overlaying user of water from Primary Well with respect to water delivered to the golf courses for irrigation purposes. To the extent that Primary Well is used to deliver water to Developer's golf courses for irrigation purposes Developer expressly reserves the accompanying water rights, interests and claims associated with said use of water. It is further recognized by the parties that Developer's status as an overlaying user of water from Primary Well has priority over the District's appropriative use of water from Primary Well. g) Water Transmission. If the Primary Well is located adjacent to the Old Greenwood golf course irrigation pond (i) water delivered from the Primary Well shall not utilize District's transmission and distribution system, (ii) Developer shall be responsible for construction and maintenance of the delivery pipeline to the golf course pond(s) from the Primary Well and (iii) District's point of delivery with respect to the Primary Well shall be located at the well discharge. In the event that the Primary Well is not located adjacent to the Old Greenwood golf course irrigation pond, and with respect to all other Wells, Developer shall have the right to construct, at its expense, (i) a delivery pipeline directly from such Well to the golf course pond located on the Old Greenwood Project or the Gray's Crossing Project, or both, as determined by Developer, and/or (ii) a delivery pipeline from that portion of District's transmission and distribution system nearest to applicable golf course pond, in which case District's point of delivery with respect to such Wells shall be located at the connection point. District shall not be responsible for any construction, maintenance or repairs for any facilities past the point of delivery. h) Developer Right to Construct Other Wells. District agrees that Developer shall have the right to construct, develop, operate and maintain for its own use such other wells as Developer shall elect to develop, and District shall cooperate with, and not object to such construction, development, operation and maintenance as long as such wells are not constructed within a 2,500 foot radius (NOTE: this number is subject to reduction by Page 10 of 12 Developer based on approved Well locations) of any Well constructed by District under this Term Sheet. 29. (Old Greenwood Responsibilities). a. Old Greenwood will install and build a 20" water line from a location near the 5988 Storage Tank, westerly to a location near the fiberboard under -crossing with an approximate length of 5000 feet. b. Old Greenwood will forward, for water sources, an amount of $750,000.00 to Truckee Donner Public Utility District upon closing of bonding. 30. Mello Roos District. The District and the Developers, or an entity affiliated with the Developers, intend to enter into an "Acquisition and Disclosure Agreement' which is expected, among other things, to provide for the possible acquisition by the District from the Developers, or an affiliate, of some or all of the Project. In the case of any inconsistency between a provision of this Water Development Agreement and a provision of the Acquisition and Disclosure Agreement, the provision of this Water Development Agreement shall control, except that the Developers or their affiliate, as the case may be, shall be entitled to be compensated for the portions of the Project described in the Acquisition and Disclosure Agreement if and to the extent that funding therefor is available as contemplated in the to the Acquisition and Disclosure Agreement 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: / /- L 0 Old Greenwood LLC By: East West Resort Development V,L.P.,L.L.P.,its Manager By: HFHolding Corp., its General Partner by ill sh, Vi resi ent Dated: Peter L. Holzmeister, teneral M nager Truckee Donner Public Utility District Page 11 of 12 Estimated Costs and Calculation Of Fees The Estimated Costs are as follows: Administrative and design $ 4,000.00 Construction and inspection $ 16,250.00 Project documentation deposit $ 87,337.00 8.1 Improvement by & Responsibility of District $120,000.00 8.1 Imp. by & Responsibility of District (credit) ($ 82,000.00) 8.1 Imp. by & Responsibility of District (credit) ($ 60,000. 00) Total Estimated Costs Less Deposit Paid in Advance BALANCE DUE Old Greenwood CFD after Bond Closing a. 20 inch waterline b. Water Sources BALANCE DUE $ 85,587.00 ($ 4,317.00) Installed and built by Old Greenwood $750, 000.00 $750, 000.00 Facilities and Connection Fees are due and payable at the time service is requested and building permits are applied for. Page 12 of 12