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HomeMy WebLinkAbout9 The Timbers Development Agreement Agenda Item # TRUCKEE DONNER Action To: Board of Directors From: Ed Taylor Date: March 19, 2008 Subject: Reassignment of the Development Agreements for Truckee Palisades Townhomes (The Timbers) 1. WHY THIS MATTER IS BEFORE THE BOARD Board action is required to reassign a Development Agreement previously approved by the Board. 2. HISTORY The District has executed Development Agreements with Gryphon Enterprises. The Board reviewed and authorized the Board President to execute the water Development Agreement on December 19, 2007 which ratified the original date the agreement was previously executed by the General Manager. The water and electric facilities have not been completed per the approved improvement plans and the requirements of the Development Agreements. The project was foreclosed upon and the ownership was transferred to Scripps Palisades, LLC, a Delaware Limited Liability Company. 3. NEW INFORMATION The attorney for Scripps Investment and Loans, Inc. has provided the District with documentation to support the transfer of ownership rights from Gryphon Enterprises to Scripps Palisades, LLC. 4. FISCAL IMPACT There is no fiscal impact associated with this action. 5. RECOMMENDATION Authorized the Board resident to sign the attached agreement that assigns the existing water and 7el i evelopme Agreements to Scripps Palisades, LLC. Ed Taylor, Wate tility Manager Michael D. Holley, General pager Truckee Donner Public Utility District Directors Joseph R.Aguera J. Ron Hemig Patricia S.Sutton Tim Taylor March 13,2008 Bill Thomason General Man a er Jeffrey E. Lubin, President Michael Y. Holley Scripps Investments and Loan, Inc. 484 Prospect Street La Jolla,CA 92037 Re:Assignment to Scripps Palisades,LLC of the Palisades Truckee Townhomes Water and Electric Development Agreements between the Truckee Donner Public Utility District and Gryphon Enterprises Mr. Lubin: On behalf of Scripps Palisades,LLC("Scripps"),you have requested the Truckee Donner Public Utility District's(the"District")consent to the assignment and transfer of all of Gryphon Enterprises' right,title and interest in the Palisades Truckee Townhomes Water and Electric Development Agreements between the District and Gryphon Enterprises(copies of which are attached hereto)to Scripps as Gryphon Enterprises' successor in interest. In accordance with the Development Agreements successors and assigns provisions,this letter hereby grants consent subject to the conditions below. Assignment of the Palisades Truckee Townhomes Water and Electric Development Agreements (the"Development Agreements")to Scripps will be effective as of (the `Effective Date"). Subject to Scripp's acknowledgement and certification of certain statements and agreements made herein, evidenced by Scripp's signature below,the District hereby: 1) Consents to the assignment and transfer of all of Gryphon Enterprises'right,title and interest in the Development Agreements,together with all rights and obligations thereunder arising from and after the Effective Date,to Scripps or an entity controlling,controlled by or under common control with it(a"Scripps Affiliate"), as of the Effective Date; 2) Acknowledges that the Development Agreements represent the entire understandings of the parties with respect to the subject matter thereof and are in full force and effect; and 3) Acknowledges that to the extent of its knowledge, Gryphon Enterprises was in material compliance with the provisions of the Development Agreements and that there exists no fact or circumstance that constitutes or that,with the passage of time P.O.Box 309-Truckee,CA 96160-Phone 530-587-3896-w rw .tdoud.ora 4) or the giving of notice or both,would constitute a default or event of default under the Development Agreements. For the District's benefit, Scripps,to the best of its knowledge,hereby certifies, acknowledges, agrees and warrants as follows: I) All right,title and interest under the Development Agreements have been transferred and assigned to Scripps as Gryphon's successor in interest by virtue of the foreclosure as documented by the Trustee's Deed, recorded March 9, 2007 in the County of Nevada and the Assignment of Contracts,dated December 7,2004; 2) All obligations and conditions under the Development Agreements to be performed by the District as of the date of this letter have been satisfied,and all such obligations and conditions of the District have been completed to the satisfaction of Scripps; 3) There are no existing defenses that Scripps has against the enforcement or validity of the Development Agreements or any of the terms thereof; 4) All payments to be made under the Development Agreements shall be made strictly in accordance with the terms of the Development Agreements as written,including all amounts,if any, currently due, and there are no charges,liens or claims of offset against future payments or other sums due to the District under the Development Agreements; 5) The Development Agreements are presently in full force and effect,with no uncured defaults and with no acts or omissions having occurred that,but for the passing of time or giving of notice,would be a default under the Development Agreements; 6) As of the Effective Date, Scripps will be bound by and will assume and discharge,in accordance with the terms of the Development Agreements, all obligations under the Development Agreements, including,but without limitation, all payments to be made under the Development Agreements that are due and unpaid as of the Effective Date and that become due in the future; and 7) As of the Effective Date,pursuant to the Water Development Agreement,paragraph 10, Scripps will be subject to current fees. If the utility systems are not completed within twelve(12)months from the date of execution of this consent to assignment, the District,in its discretion is entitled,to increase any and all fees and costs to equal the District's current charges; 8) As of the Effective Date,pursuant to the Electric Development Agreement,paragraph 10, Scripps will be subject to current fees. If the utility systems are not completed within twenty-four(24)months from the date of execution of this consent to assignment,the District, in its discretion is entitled,to increase any and all fees and costs to equal the District's current charges; P.O.Box 309-Truckee,CA 96160-Phone 530-587-3896-www.tdaud.or_g 9) That there are no charges, liens or claims of offset against future payments or other sums due to the District under the Development Agreements. Any execution and delivery of this written consent does not require any consent, vote or approval that has not already been taken. Each person executing this written consent in a representation capacity has been duly authorized and empowered to do so. Sincerely, Michael Holley General Manager Attachments ACKNOWLEDGE yONSENTED AND AGREED TO AS OF 1 ,2008: *crnippsPa1isatdes, esident & Loan,Inc.,Managing Member LC,a Delaware limited liability company registered in California THE BOARD AUTHORIZES THE BOARD PRESIDENT TO EXECUTE THE ASSIGNMENT OF THE WATER AND ELECTRIC DEVELOPMENT AGREEMENTS TO SCRIPPS PALISADES,LLC: By: Tim F. Taylor,President of the Board Truckee Donner Public Utility District P.O.Box 309—Truckee,CA 96160—Phone 530-687-3896—www.tdcud.oro WATER DEVELOPMENT AGREEMENT BETWEEN THE TRUCKEE DONNER PUBLIC UTILITY DISTRICT AND GRYPHON ENTERPRISES APN 19-450-44 Palisades Truckee Townhomes 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 GRYPHON ENTERPRISES, 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 19-450-44 on which Developer intends to construct "Palisades Truckee Townhomes", hereafter referred to as the"Project." B. NIA 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 1 • 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 Districts 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 water fees. At the time water service is requested and construction of buildings or otherfacilities 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. 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 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. 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. 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 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 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 Developers 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 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 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 Developeror 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,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 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 anytime 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 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. f. Developer shall provide the District with a statement of the"as-built"dollar value of the 4 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: GRYPHON ENTERPRISES Mimi Ash 11899 Edgewood Road, Suite M Auburn, CA 95603 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,orordinances,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 conceming 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 5 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 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. Govemina 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: �3 Gryphon Enterprises by Robert L.Ash, Owner Dated: /d Giryphon Enterprises by Robert L.Ash, Developer Dated: 3 Dated: 19 Dt'L &�o 7 Peter L. Holzm ist ,General Manager Tim F. Taylor, id the Board Truckee Donner Public Utility District Truckee Donner Public Utility District 6 Estimated Costs and Calculation Of Fees Estimated Costs WO#- 03-74499 Palisades Truckee Town Homes The Estimated Costs are as follows: Administrative and design $ 1,000.00 Engineering & modeling $ 0.00 Construction and inspection $ 4,675.00 Proiect documentation deposit $13,972.00 Total Estimated Costs $19,647.00 Less Deposit Paid in Advance ($1,000.00) BALANCE DUE S 1$647.00 Facilities and Connection Fees are due and payable at the time service is requested and building permits are applied for. 7 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. 8 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 main line 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. 9 ELECTRIC DEVELOPMENT AGREEMENT BETWEEN THE TRUCKEE DONNER PUBLIC UTILITY DISTRICT AND GRYPHON ENTERPRISES APN 19-450-44 Palisades Truckee Townhomes 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 Gryphon Enterprises, 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 19-450-44 on which Developer intend to construct"Palisades Truckee Townhomes", 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. NIA 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 • 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 Districts 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. 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 attachment entitled Improvements by and Responsibilities of Developer. 8. Improvements by and Responsibilities of District. The District shall perform electric 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 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 Reauired. 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. 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 Districts 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 anytime 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 statement of the"as-built"dollar value of the installed electric distribution system with documentation to substantiate the stated value. f. Developer shall pay any outstanding costs and fees. 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: GRYPHON ENTERPRISES Attn: Mimi Ash 11899 Edgewood Road, Suite M Auburn, CA 95603 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 attomeys'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 maybe 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: Gry0fion Enterprises by Robert L.Ash Dated: -0E- Peter L. Holzmeister, General Manager Truckee Donner Public Utility District Estimated Costs and Calculation of Fees ELECTRIC CONNECTION AND FACILITY FEES PALISADES TRUCKEE TOWNHOMES WO#03-64499110710 1.FACILITIES FEES(Note 1.) Thirty Four(34)100amp panels $42,840.00 $1260.00 each 120/240v,single phase Total Facilities Fees $42,840.00 2.CONNECTION FEES Three phase primary line ext,transformers, junctoin enclosure,U/G services Labor cost $35,336.13 Material cost $33,019.53 Total Connection Fees $68,355.66 3.METERING FEES (34) 100amp meters single phase 120/240v Labor Cost $4,755.14 Material Cost $3,117.46 Total Metering Fees $7,872.60 TOTAL $119,068.26 Project Documentation Deposit 5.0% $3,811.41 GRAND TOTAL $122,879.67 Less Deposit paid in advance ($1,000.00) BALANCE DUE $121,879.67 CUSTOMER TO SUPPLY(UNLESS OTHERWISE NOTED) AND INSTALL: 1.APPROXIMATELY 625 FEET OF PRIMARY CONDUIT,4"SCH.40 ELECTRICAL CONDUIT. ALL PRIMARY SWEEPS TO BE SCH.80 WITH A RADIUS OF 4 FEET. SEE ELECTRICAL CONSTRUCTION DETAILS E-2 AND E-3. 2.APPROXIMATELY 900 FEET OF PRIMARY CONDUIT,3"SCH.40 ELECTRICAL CONDUIT. ALL PRIMARY SWEEPS TO BE SCH.80 WITH A RADIUS OF 4 FEET. SEE ELECTRICAL CONSTRUCTION DETAILS E-2 AND E-3. 3.APPROXIMATELY 320 FEET OF SECONDARY CONDUIT,4"SCH.40 ELECTRICAL CONDUIT. ALL SECONDARY SWEEPS TO BE SCH.80 WITH A RADIUS OF 3 FEET. SEE ELECTRICAL CONSTRUCTION DETAILS E-2 AND E-3. 4.APPROXIMATELY 600 FEET OF SECONDARY CONDUIT,3"SCH.40 ELECTRICAL CONDUIT. ALL SECONDARY SWEEPS TO BE SCH.80 WITH A RADIUS OF 3 FEET. SEE ELECTRICAL CONSTRUCTION DETAILS E-2 AND E-3. 5.APPROXIMATELY 2,100 FEET OF PUD COMMUNICATIONS CONDUIT,2"SCH.40.ALL SWEEPS TO BE SCH.40 WITH A RADIUS OF 3 FEET.OBTAIN CONDUIT FROM PUD.SEE ELECTRICAL CONSTRUCTION DETAILS E-2 AND E-3. 6.ONE(1)THREE-PHASE STEEL JUNCTION ENCLOSURE AT LOCATION#4. USE JUNCTION ENCLOSURE PAD,JENSEN MODEL#25L,AT LOCATION#4. OBTAIN PAD FROM TDPUD.SEE ELECTRICAL CONSTRUCTION DETAIL E-5. 7.ONE(1)THREE-PHASE PRIMARY RISER,4"STEEL CONDUIT AT LOCATION#1.SEE ELECTRICAL CONSTRUCTION DETAIL E-1. 8.ONE(1)PUD COMMUNICATIONS RISER,2"STEEL CONDUIT AT LOCATION#1.OBTAIN CONDUIT FROM PUD.SEE ELECTRICAL CONSTRUCTION DETAIL E-1. 9.THREE(3)SINGLE-PHASE TRANSFORMER PADS,JENSEN MODEL NO.251167 AT LOCATIONS #11,25,AND 37. OBTAIN FROM JENSEN PRECAST, RENO, NV.SEE ELECTRICAL CONSTRUCTION DETAIL E-5. 10.THREE(3) SECONDARY PULLBOXES,CHRISTY#B1730 W/2 EXTS.AND A STEEL COVER AT LOCATIONS#17,30,AND#42.SEE ELECTRICAL CONSTRUCTION DETAIL E-17. 11. FOUR(4)PUD COMMUNICATIONS PULLBOXES, CHRISTY#B1730 W/2 EXTS.AND A STEEL COVER AT LOCATIONS#7,10,26,AND#38.OBTAIN FROM PUD. SEE ELECTRICAL CONSTRUCTION DETAIL E-17. 12.THREE(3) FIBERGLASS PUD COMMUNICATION BOXES(EACH COMPLETED BOX CONSISTING OF 2 HALVES AND A COVER)AT LOCATIONS#16,29,AND#41. OBTAIN FROM PUD. SEE ELECTRICAL CONSTRUCTION DETAIL E-17. 13.TWO(2) NON-REMOVABLE BARRIER POSTS IN FRONT OF EACH TRANSFORMER AT LOCATIONS#11,25,AND 37. SEE ELECTRICAL CONSTRUCTION DETAIL E-6 AND E-7. 14.THREE(3) NON-REMOVABLE BARRIER POSTS AROUND THE JUNCTION ENCLOSURE AT LOCATION#4.SEE ELECTRICAL CONSTRUCTION DETAIL E-6 AND E-7. - CUSTOMER TO INSTALL ADDITIONAL BARRIER POSTS IF NEEDED, AS DETERMINED BY TDPUD. REFER TO CONSTRUCTION DETAILS E-6 AND E-7. -ALL SWEEPS TO BE SCHEDULE 80 PVC CONDUIT UNLESS OTHERWISE INDICATED. MINIMUM REQUIRED SWEEP RADIUS: 48 INCHES-PRIMARY CONDUIT 36 INCHES-SECONDARY AND PUD COMMUNICATIONS CONDUIT TDPUD TO SUPPLY TO THE CUSTOMER: 1.ONE(1)JUNCTION ENCLOSURE PAD,JENSEN MODEL#25L. 2. FOUR(4) PUD COMMUNICATIONS PULLBOXES,CHRISTY#81730 W/2 EXTS.AND A STEEL COVER. 3.THREE(3) FIBERGLASS PUD COMMUNICATION BOXES(EACH COMPLETED BOX CONSISTING OF 2 HALVES AND A COVER). 4.APPROXIMATELY 2,100 FEET OF PUD COMMUNICATIONS CONDUIT,2"SCH.40. TDPUD TO SUPPLY AND INSTALL (NOT A COMPLETE LIST): 1.ONE(1)THREE-PHASE STEEL JUNCTION ENCLOSURE. 2.THREE(3)SINGLE-PHASE PADMOUNT TRANSFORMERS, RATED 50KVA, 12.47/7.2KV, 120/240v. 3.CABLE, PRIMARY,#1/0 AL JACKETED,APPROX.700 CIRCUIT FEET(2,100 FT.TOTAL.). 4.CABLE, PRIMARY,#2 AL JACKETED,APPROX. 1,000 FEET. 5. CABLE,SECONDARY,2-350 AND 1-4/0,APPROX.450 FEET. 6. CABLE, SECONDARY,2-4/0 AND 1-2/0,APPROX.800 FEET.