HomeMy WebLinkAbout8 Easement Brockway Road Multi-Use Trail A n e a Item
TRUCKEE DONNER
Public Utility District
A TION
To: Board of Directors
From: Kathleen Neus
Date: February 0112012
Subject: Consideration of Granting an Easement for the Brockway Road
Multi-use Trail
1. WHY THIS MATTER IS BEFORE THE BOARD
Board authorization is required to grant an easement on District property.
2. HISTORY
The Town of Truckee has the responsibility of building multi-use trails that connect the
Truckee Community throughout Town. The Town in partnership with the Truckee
Trails Foundation have identified the need to build a trail from The Rock Development
by Martis Valley Road to the Truckee Regional Park to keep bicycle and pedestrian
traffic off of Brockway Road. The trail involves crosses two District parcels; APN
19-450-14 and 19-450-5 (the Rodeo Grounds) (Attachment 1).
Dan Wilkins of the Town had brought this before the Board in a workshop item back in
October of 2009. The Town was granted a Right-of-Entry to perform a wetland
delineation, biological resource inventory and a cultural resources inventory during the
Spring of 2009.
The Town hired JBR Environmental Consultants to complete a baseline stud f p y o the
area to include a threatened and endangered species inventory, a biological/wetland
inventory, a cultural resources inventory and a topographical survey along Brockway
in
cluding ncluding the Districts parcels. All three assessments were completed in Jul of
2009 (Attachment 2).
p y
The consultant confirmed that wetlands currently exist on APN 19-450-14, the parcel
adjacent to Brockway Road. As a result of the confirmation of the wetlands impacted
by the trail a mitigation plan is required. The proposed mitigation measures that are
still pending approval from the Army Corp of Engineers (Army) and the Lahontan
Regional -Water Quality Board (Lahontan). The mitigation measures include the
removal of the existing culvert from the drainage channel, construct an open-bottom
culvert over which the trail will cross the drainage channel and the removal of fill in the
upland area near the golf course pond to encourage the establishment of wetlands.
Lastly, the Brockway Trail where it crosses the District's parcels could be built in the
last of three.stages. This is due to mitigation and the length of time to obtain permits
from the Army Corp of Engineers and Lahontan.
3. NEW INFORMATION
The Town of Truckee has been working with the Army Corp of Engineers and the
Lahontan Regional Water Quality Board to obtain permits to build the trail. Typically
when there is wetland mitigation required, Lahontan would typically require a
conservation easement on the property. The Town is being led to believe that since
the mitigation measures are small a conservation easement will not be necessary.
Even though the funding source for the trail has yet to be identified, the Town is
working on getting all permits, easements and any other requirements in place so
once funding has been identified the work on the trail may begin. Additionally, if the
easement is in place the Town becomes the lone applicant with Lahontan and the
District would not be involved in the permitting. A copy of the easement from the
District to the Town of Truckee is included (Attachment 4).
Lastly, the plat map and legal descriptions would be recorded once the project has
been completed.
4. FISCAL IMPACT
There is no fiscal impact associated with this item.
5. RECOMMENDATION
Grant an easement to the Town of Truckee for a Multi-use Trail across District
property APN 19-450-14 and 19-450-54 located on Brockway Road in Truckee.
Michael D. Holley
General Manager
TRUCKEE
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Attachment 2
TOWN OF
Date: October 13, 2009
To: Kathy Neus, Technical Programs Administrator
From: Becky Bucar, Assistant Engineer
Subject: Brockway Road Trail
In partnership with the Truckee Trails Foundation, the Town of Truckee Engineering
Division is working to develop preliminary engineering designs and environmental
studies for the Brockway Road Trail project. When completed, the Brockway Road Trail
project would construct Y2 mile of Class 1 (paved and separate from the roadway)
bikeway and recreation trail. As shown in Exhibit A, the trail would connect two existing
Class 1 trail segments, which currently terminate at the Truckee River Regional Park
(Brockway Road/Estates Drive intersection) and at The Rock(approximately 250 feet
northwest of the Brockway Road roundabout). As shown in Exhibit B, the trail will
traverse lands owned by the Tahoe-Truckee Airport District(specifically the Ponderosa
Golf Course Property)and the Truckee Donner Public Utility District(TDPUD).
Environmental Baseline Studies
A wetland delineation, biological resource inventory, and a cultural resources inventory
has been completed for the project area, as summarized below:
Wetland Delineation—A wetland delineation for the project area was completed by JBR
Environmental Consultants, Inc. in July 2009 and was verified by the Army Corp of
Engineers on August 21, 2009. The wetlands are delineated on the attached Exhibit C.
As shown, wetlands currently exist on the property that is owned by the Truckee Donner
Public Utility District. The existing channel, which travels from the culvert under Estates
Drive to the golf course pond, is also considered to be a wetland.
Because of the extent of the wetland area, all reasonable trail alignments would have
some impact to the wetlands. However, Town staff believes the current design
minimizes the impacts and proposes to mitigate them by creating new wetlands on site.
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Town of Truckee Existing and Planned Class 1 Bike Paths
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Attachment 4
Recording Requested By:
and
Return to: Truckee Donner Public Utility District
PO Box 309
Truckee, CA 96160
Not Subject to Fees: GCS 66499.35
TRUCKEE DONNER PUBLIC UTILITY DISTRICT
AND TOWN OF TRUCKEE RIGHT OF ENTRY AND EASEMENT AGREEMENT
BROCKWAY ROAD TRAIL
This Right of Entry and Easement Agreement ("Agreement") is made and effective this
day of , 20 in Truckee, California, by and among Truckee Donner Public
Utility District, a public agency("TDPUD") and the Town of Truckee, a municipality("Town").
Section 1. RECITALS AND UNDERSTANDINGS
A. The Truckee Donner Public Utility District (hereinafter "TDPUD"), a public agency, is the
owner of that certain real property commonly known and described as Nevada County
Assessors Parcel No. 19-450-54 and 19-450-14.
B. The Town of Truckee, a municipal corporation of the State of California (hereinafter
"Town") is prepared to construct a Class I Recreational Trail (hereinafter "Project")
across the TDPUD property.
C. TDPUD and Town desire to cooperate in constructing the Project is substantially the
form depicted on Exhibit A hereto, which Exhibit is incorporated by reference herein as if
fully set forth. It is understood by the parties that Exhibit A represents 90% Design Plans
and there may be minor modifications to the project when final plans are completed.
D. For Town to construct the desired improvements, the granting of a right of entry and
recreational trail easement by TDPUD is required.
E. Town and TDPUD intend to set forth in this document the terms and conditions under
which such consent will be granted and construction of the improvements completed.
Section 2. CONSIDERATION
This agreement is entered for and in consideration of the mutual promises herein exchanged
and other good and valuable consideration the receipt and adequacy of which is hereby
acknowledged.
Section 3. SCOPE OF WORK
The scope of construction of the Project on TDPUD Property under this Agreement shall be as
follows and as shown in Exhibit A:
a. Grade and construct a 10 to 14-foot wide trail bed with aggregate base.
b. Pave an 8 to 10-foot wide recreational trail with asphalt concrete.
c. Provide for 1 to 2-foot shoulders on either side of the recreational trail.
d. Remove existing culvert from drainage channel.
e. Construct open-bottom culvert over which trail will cross drainage channel.
f. Remove fill by golf course pond to encourage the establishment of wetlands.
No change in said scope of construction shall be made without the prior written approval of
TDPUD.
Section 4. DUTIES OF TDPUD
A. TDPUD hereby grants to Town right of entry to the TDPUD property as reasonably
required for construction of the improvements from and until such time as the easement
as described herein has been recorded in the Official Records of Nevada County,
California.
B. TDPUD hereby grants to Town, its agents, officers, employees and independent
contractors the right of use and entry to, in, and upon the portions of the parcels upon
which the Project is to be constructed as set forth in Exhibit A.
C. TDPUD further grants Town, its independent contractors, agents, officers and
employees, a right of use and entry for vehicular access for Project construction access
purposes.
D. TDPUD further grants Town, its independent contractors, agents, officers and
employees, a right of use and entry for temporary construction staging for purposes of
storing equipment and materials.
Section 5. DUTIES OF TOWN OF TRUCKEE
A. Town or its designee shall construct improvements shown on Exhibit A and described in
Section 3, and accept the improvement for maintenance in accordance with Section 51 at
no cost to TDPUD. Upon acceptance Town shall, at no cost to TDPUD, contract for and
obtain the preparation, processing and recording of a legal description of the depicted
easement in a manner consistent with applicable legal standards and regulations and
record the same by plat map.
B. Town shall take measures as reasonably required to minimize any impacts on TDPUD's
Property as a result of the Town's construction of the Project and related activities.
C. Town shall comply with applicable laws, rules and regulations bearing on the Project,
including but not limited to the California Environmental Quality Act, and obtain all
permits and approvals required to carry-out the Project and conform to the requirements
thereof.
D. Town shall use TDPUD's Property only for the purposes set forth in this Agreement.
E. The Town agrees, on behalf of itself, its officials, employees, agents, independent
contractors and volunteers to leave TDPUD's Property after construction of the Project in
the same condition as existed prior to the effective date of this Agreement, excluding
improvements described in Section 3 above. The Town shall give TDPUD at least ten
working days' prior notice, in writing, as to when the Town intends to file its Notice of
Completion so TDPUD may inspect the Property and notify Town of any concerns
regarding the Property and its condition. TDPUD's failure to inspect and/or notify shall
not constitute a waiver by TDPUD.
F. Insurance Requirements for Trail Construction
The Town shall require that whoever carries out construction of the Project shall
maintain, at their expense: (a) commercial general liability insurance in the amounts of at
least $2,000,000 as single coverage and property damage insurance in the amount of at
least $1,000,000, and (b) comprehensive automobile liability insurance in the amount of
$1,000,000 per accident for bodily injury and property damage, insuring against all
liability, claims, damages, costs, demands, or losses arising out of or in connection with
the Town's operations and activities under this Agreement, including but not limited to
the construction of the Project. Whoever carries out construction of the Project also shall
maintain workers' compensation insurance as required by law. The insurance coverage
may terminate upon the Town's recording of a Notice of Completion for the Project, as
long as the insurance continues to cover any occurrences during and up to and including
the date of recordation of the Notice of Completion.
The commercial general liability and comprehensive automobile liability insurance
policies shall be endorsed to name TDPUD, its directors, officers, officials, agents,
volunteers and employees as additional insureds regarding liability arising out of the
duties, activities and operations under this Agreement by the Town, its officers,
employees, agents and independent contractors. The Town shall provide TDPUD with
ISO CG 2010 endorsement forms or equivalent. The coverage shall contain no special
limitations on the scope of protection afforded to TDPUD, its directors, officers, officials,
agents, volunteers and employees. The coverage shall be primary and shall apply
separately to each insured against whom a claim is made or suit is brought, except with
respect to the limits of the insurer's liability. TDPUD's insurance, if any, shall be excess
and shall not contribute with the insurance required in this Section.
The insurance is to be placed with insurers with a current A.M. Best's rating of A:VII or
better, unless otherwise acceptable to TDPUD. Prior to entering TDPUD Property under
this Agreement and commencement of construction of the Project, the Town shall
provide to TDPUD original endorsements evidencing the insurance required by this
Section signed by persons authorized to bind coverage on behalf of the insurers. The
certificates and policies shall provide that 30 days' written notice of any material change,
reduction of coverage or cancellation of the insurance policies will be provided to
TDPUD. The requirements as to the types, limits, and TDPUD's approval of insurance
coverage to be maintained pursuant to this Section are not intended to and shall not in
any manner limit or qualify the liabilities and obligations assumed by the Town under this
Agreement. In addition, in the event any change is made in the insurance carrier,
policies or nature of coverage required under this Section, the Town shall notify TDPUD
prior to the making of any such changes.
G. Insurance Requirements for Easement
Following inspection of the improvement by TDPUD, Town, at its sole cost and expense,
shall maintain public liability insurance under its Joint Powers Authority insuring TDPUD,
its officers, directors, officials, employees, agents and volunteers against all liability,
claims, demands, damages, costs, or losses arising out of or in connection with Town's
duties, operations and activities pursuant to this Agreement and the use of the
Easement.
The insurance shall be endorsed to name TDPUD, its directors, officers, officials,
employees, agents and volunteers as additional insureds regarding liability arising out of
Town's duties, activities and operations under this Agreement and the use of the
Easement. Town shall provide TDPUD with ISO CG 2010 endorsement forms or
equivalent. The coverage shall contain no special limitations on the scope of protection
afforded to TDPUD, its directors, officers, officials, employees, agents or volunteers.
Town's coverage shall be primary and shall apply separately to each insured against
whom a claim is made or suit is brought, except with respect to the limits of the insurer's
liability. TDPUD's insurance, if any, shall be excess and shall not contribute with Town's
insurance.
Prior to the effective date of the Easement, Town shall provide to TDPUD endorsements
evidencing this insurance signed by a person authorized to bind coverage on behalf of
the insurers). The certificates and policies shall provide that 30 days' written notice of
any material change, reduction of coverage or cancellation of the insurance policies will
be provided to TDPUD. The requirements as to the types, limits, and TDPUD's approval
of insurance coverage to be maintained by Town are not intended to and shall not in any
manner limit or qualify the liabilities and obligations assumed by Town under this
Agreement. In addition, in the event any change is made in the insurance carrier,
policies or nature of coverage required under this Agreement, Town shall notify TDPUD
prior to making such changes.
H. Indemnification
Town shall protect, indemnify, hold harmless and defend TDPUD, its directors, officials,
officers, employees and agents, from and against any and all suits, actions, judgments,
legal or administrative proceedings, arbitrations, claims, demands, causes of action,
damages, liabilities, interest, attorney's fees, fines, penalties, losses, costs and expenses
of whatsoever kind or nature, including but not limited to those arising out of injury to or
death of Town's employees, whether directly or indirectly caused or contributed to in
whole or in part or claimed to be caused or contributed to in whole or in part by reason of
any negligent act, omission or fault or willful misconduct whether active or passive of
Town, its employees, agents, independent contractors or invitees arising out of, in
connection with or incidental to the performance of their duties, activities or operations
under this Agreement or the use of the Easement (hereinafter referred to as "Claim" or
"Claims"). Town's aforesaid indemnity, defense and hold harmless obligations, or
portions or applications thereof, shall apply even in the event of the fault or negligence of
the party indemnified to the fullest extent permitted by law but in no event shall they
apply to liability caused by the sole negligence or willful misconduct of the party
indemnified or held harmless.
Submission of insurance certificates or submission of other proof of compliance with the
insurance requirements in this Agreement does not relieve Town from liability under this
paragraph. The obligations of this paragraph shall apply whether or not such insurance
policies shall have been determined to be applicable to the Claim.
In any and all claims against TDPUD, or its directors, officers, officials, employees,
volunteers or agents, by any employee of Town, any independent contractor, anyone
directly or indirectly employed by any of them or anyone for whose acts any of them may
be liable, the indemnification obligation under this paragraph shall not be limited in any
way by any limitation on the amount or type of damages, compensation or benefits
payable by or for Town or any of its independent contractors under Worker's
Compensation acts, disability benefit acts or other employee benefit acts.
I. Maintenance
Upon completion of the trail construction, Town, at its sole expense, shall use, maintain,
operate, repair and replace the trail and easement in accordance with acceptable
maintenance standards and as described in Exhibit B. The Town's failure to comply with
the maintenance standards identified in this agreement shall constitute default of the
Agreement.
Town shall protect, indemnify, hold harmless and defend TDPUD, its directors, officials,
officers, employees and agents, from and against any and all suits, actions, judgments,
legal or administrative proceedings, arbitrations, claims, demands, causes of action,
damages, liabilities, interest, attorney's fees, fines, penalties, losses, costs and expenses
of whatsoever kind or nature, including but not limited to those arising out of injury to or
death of Town's employees, concerning the following (a) whether directly or indirectly
caused or contributed to in whole or in part or claimed to be caused or contributed to in
whole or in part by reason of any negligent act, omission or fault or willful misconduct
whether active or passive of Town, its officers, employees, volunteers, agents or
independent contractors arising out of, in connection with or incidental to the
performance of their duties, activities or operations under this Agreement, or (b) arising
out of or in connection with the use of the Recreation Trail Easement by the Town, its
officers, employees, agents, volunteers or independent contractors, or by invitees
(hereinafter referred to as "Claim" or "Claims"). Town's aforesaid indemnity, defense
and hold harmless obligations, or portions or applications thereof, shall apply even in the
event of the fault or negligence, whether active or passive, of the party indemnified to the
fullest extent permitted by law but in no event shall they apply to liability caused by the
sole negligence, active negligence or willful misconduct of the party indemnified or held
harmless.
Section 6. RIGHT OF ENTRY
This right of entry is expressly conditioned upon the following:
A. Upon the completion of Project construction, Town shall restore the real property outside
the easement to substantially the same condition that existed prior to construction
activities as described in section 5E.
B. The right of entry area includes the permanent trail easement area, temporary
construction access, and temporary construction staging.
C. The portion of the right of entry that is outside the permanent trail easement area shall
expire once the trail construction is complete and a Notice of Completion has been filed.
Section 7. EASEMENT
A. Upon Project completion to the satisfaction of TDPUD (per section 5E), TDPUD hereby
grants to Town a Recreational Trail Easement for the recreational trail over the TDPUD
property to be used only for walking, jogging, biking, strollers, wheelchairs, rollerblading,
skate-boarders and other non-motorized uses by the public. The Recreational Trail
Easement shall be 20 feet wide along the alignment depicted in Exhibit A and includes
slope easements beyond the 20 foot width for purposes of maintaining the slopes
adjacent to the trail.
B. The Recreational Trail Easement is referred to herein as "the Easement".
C. The term of this Agreement and the Easement created thereby, shall run with the land
unless and until abandoned or removed by the mutual consent of the parties.
Section 8. GENERAL PROVISIONS
A. Entire Agreement
This Agreement constitutes the entire agreement between the parties. The parties intend
this Agreement to be a final expression of their understanding for the transaction it
covers. The parties intend that this Agreement supersede any prior agreements the
parties may have reached concerning the Property, and may not be contradicted by
evidence of any prior agreement or contemporaneous oral agreement. The parties
further intend that this Agreement be complete and exclusive, and that no extrinsic
evidence may be introduced in any judicial or arbitration proceeding involving this
Agreement. Any attached addenda, either signed or initialed by the parties, shall be
deemed a part of this Agreement. There are no other understandings, either oral or
written that alter or enlarge this Agreement, and there are no warranties or
representations, either express or implied, except as set forth in this Agreement.
B. Amendments
This Agreement may not be amended or modified in any respect except by a further
agreement in writing executed by TDPUD and Town.
C. Counterparts
This Agreement and any supplement, addendum, or modification, including any
photocopy or facsimile, may be executed in two or more counterparts, all of which
constitute the same writing.
D. Severability
If any term or provision of this Agreement is, to any extent, held invalid or unenforceable,
the remainder of this Agreement shall not be affected.
E. Waivers
No waiver or breach of any covenant or provision in this Agreement shall be deemed a
waiver of any other covenant or provision, and no waiver shall be valid unless in writing
and executed by the waiving party.
F. Further Assurances .
Whenever requested by the other party, each party shall execute, acknowledge, and
deliver any further conveyances, agreements, confirmations, satisfactions, releases,
powers of attorney, instruments of further assurance, approvals, consents, and any
further instruments and documents necessary, expedient, or proper to complete all
conveyances, transfers, sales, and agreements under this Agreement. Each party shall
also do any other acts and execute, acknowledge, and deliver all requested documents
needed to carry out the intent and purpose of this Agreement.
G. Third-Party Rights
Nothing in this Agreement, express or implied, is intended to confer on any person, other
than the parties and their respective successors and assigns, any rights or remedies
under this Agreement.
H. Construction, Recordation, and Binding Effect
Headings in this Agreement are solely for the convenience of the parties and are not a
part of and shall not be used to interpret this Agreement. The singular form shall include
plural, and vice versa. This Agreement shall not be construed as if it had been prepared
by one of the parties, but rather as if both parties have prepared it. This Agreement shall
be recorded in the Official Records of Nevada County, California and shall run with the
land and bind TDPUD's successors in interest.
I. Governing Law
This Agreement shall be governed by and construed in accordance with California law.
J. Dispute Resolution
In the event of dispute between the parties over the interpretation or implementation of
this Agreement, the dispute shall be resolved using the provisions of the California
Arbitration Act. Each party shall pay one half of the arbitration fee and expenses. Each
party shall bear their own attorneys fees and costs arising from any such proceeding.
Section 9. NOTICES
All notices, statements, reports, approvals, or requests or other communications that are
required either expressly or by implication to be given by either party to the other under this
Agreement shall be in writing and signed for each party by such officers as each may, from time
to time, authorize in writing to so act. All such notices shall be deemed to have been received
on the date of delivery if delivered personally or three days after mailing if enclosed in a properly
addressed and stamped envelope and deposited in a United States post office for delivery.
Unless and until formally notified otherwise, all notices shall be addressed to the parties at their
addresses shown below:
Truckee Donner Public Utility District
PO Box 309
Truckee, CA 96160
Attn: General Manager
Town of Truckee
10183 Truckee Airport Road
Truckee, CA 96161
Attention: Town Manager
In Witness Whereof, TDPUD and Town, pursuant to action and approval hereof by the
respective governing boards, have caused this Agreement to be executed on the day and year
first above written as follows:
Truckee Donner Public Utility District Town of Truckee
By: By:
Michael Holley, General Manager Town Manager, Tony Lashbrook