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HomeMy WebLinkAbout11 Development Agreement Agenda Item # TRUCKEE DONNER Public Utility District Memorandum To: Board of Directors From: Sanna Schlosser Date: January 30, 2008 Subject: Board Approval of one Development Agreement 1. WHY THIS MATTER IS BEFORE THE BOARD District Resolution 9527, dated September 5, 1995 delegates authority for approval of certain agreements, including Development Agreements. A Development Agreement exceeding $200,000 total value requires approval of the Board. Mission Statement Objective: 4. Manage the District in a responsible manner. 6 Manage the District in an effective, efficient and fiscally responsible manner. Goal: 4.1 District will conduct its business in a lawful and ethical way. 6.6 Develop appropriate financial procedures to assure responsible financial management. 2. HISTORY The review guidelines listed in Resolution indicate that: "The total amount of the project refer to the total value of on-site improvements being installed by the developer to be conveyed to the District for ownership operation and maintenance." 3. NEW INFORMATION The Development Agreement is as follows, with corresponding total estimated value: Marriott-Truckee Town Center Electric $334,845.23 4. RECOMMENDATION The Board authorize the President of the Board to approve the above development agreement. r Sanna Schlosser, Electrical Engineer Sfiephen Hollabaug Asst. Gen. Mgr. ELECTRIC DEVELOPMENT AGREEMENT BETWEEN THE TRUCKEE DONNER PUBLIC UTILITY DISTRICT AND PEORIA-SUNNYSIDE, LLC APN 19-420-43 Truckee Town Center& Marriot Residence Inn 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 PEORIA- SUNNYSIDE, 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 19-420-43 on which Developer intends to construct "roadway,drainage and utilities infrastructure to support a commercial planned development that includes one hotel (109 rooms), one information center, one restaurant (standalone) and six retail/commercial buildings, two of which will each house an additional restaurant", hereafter referred to as the "Project." B. Developer intends to construct a complete electric distribution system for the Project in accordance with the approved plans and specifications. Such system shall hereafter be referred to as the "electric distribution system." C. N/A D. The electric 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 system. Developer has further requested that, upon completion, the District thereafter own, operate, maintain, repair, and replace the electric distribution system as necessary. E. The District is willing to accept the electric 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 electric distribution system 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. G. Developer has selected contractors for construction of the electric portions 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 Electric Department. H. The following items are on file in the District office and incorporated herein by reference: • Development agreement application • Contractor firm data sheet—electric 1 • 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 thirty(30)days of unconditional acceptance of the electric 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 electric fees. At the time electric service is requested and construction of buildings or other facilities requiring electric 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. 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 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.The temporary easement will be abandoned upon receipt by the District of a permanent easement for the maintenance and repair of the electric 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 electric 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. 2 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,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 electric distribution system improvements described in the drawing attachment entitled General Construction Notes. 8. Improvements by and Responsibilities of District. The District shall perform electric distribution system improvements at Developer's expense as described in the drawing attachment entitled General Construction Notes. 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 electric 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 electric distribution system shall be completed, as defined herein, within twenty four(24) months from the date of execution of this agreement. In the event Developer fails to complete the electric 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 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 electric distribution system on 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 permission and prior to conditional acceptance, use electricity for 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 conditional acceptance by the District of the entire electric distribution system. 13. Completion of the System. Construction shall be deemed complete when the District determines that the electric distribution system has been entirely finished, properly tested, 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 electric distribution system has been completed, the District may conditionally accept the system and may provide electric 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 electric service to the Project. 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 electric distribution system. a. Developer shall execute an offer of dedication for the electric 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 copy of the "final map"for the project. f. Developer shall provide the District with a statement of the"as-built" dollar value of the installed electric distribution system with documentation to substantiate the stated value. g. Developer shall pay any outstanding costs and fees. 4 16. Responsibilities After Unconditional Acceptance. Prior to unconditional acceptance of the electric distribution system by the District, Developer shall be responsible for all maintenance and repair of the electric distribution system. Upon unconditional acceptance of the electric distribution system by the District, the District shall thereafter own, operate, maintain, repair and replace the electric distribution system, unless such repairs or replacements are covered by Developer's warranty.Thereafter,the District shall use its best efforts to provide adequate electric 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: PEORIA-SUNNYSIDE, LLC Attn: Richard A. Barsell P.O. Box 9520 Rancho Santa Fe, CA 92067-4520 TRUCKEE DONNER PUBLIC UTILITY DISTRICT Post Office Box 309 Truckee, CA 96160 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 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. 5 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 necessary to carry out 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 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. 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: Peoria-Sunnyside, LLC by Richard A. Barsell, Managing Member Dated: Michael D. Holley, P.E., General Manager Truckee Donner Public Utility District Dated: Tim F. Taylor, President of the Board Truckee Donner Public Utility District 6 Estimated Costs and Calculation of Fees ELECTRIC CONNECTION AND FACILITIES FEE Truckee Town Center- Marriott WO#07-644239 1.FACILITIES FEES Two 2000A 1201208V Three Phase 2 @ $18,914.00 Residence Inn $37,828.00 Services One 800A 120/208V Three Phase $7,565.00 Building E One 600A 120/208V Three Phase $5,674.00 Building D One 400A 120/208V Three Phase $3,783.00 Building B Total Facilities Fees $54,850.00 2.CONNECTION FEES Three Phase line extension Material cost $182,393.14 Labor cost $103,117.36 Total Connection Fees $285,510.50 3.METERING FEES two meters >200A, 120/208V CT Eighteen <200A, 120/208V Meters Material cost $10,018.38 Labor cost $5,676.40 Total Metering Fees $15,694.78 TOTAL $356,055.28 Project Documentation Deposit 5.0% $17,802.76 GRAND TOTAL $373,858.04 Less Deposit paid in advance ($1,000.00) BALANCE DUE $372,858.04 Note: There is a proposed 3% increase in Facility Fees which may take effect at some point in the near future. TDPUD Board has not yet taken action on this item, but the proposed rate increase will be 60 days from date of adoption. 7