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HomeMy WebLinkAbout2000-04-05 Agenda Packet - Board (17) TDPUD Staff Report March 31, 2000 To: Board of Directors From: Peter L. Holzmeister Subject: Truckee Falls Golf Course water development agreement Agenda # 7 Attached is a draft development agreement for provision of water service to the Truckee Falls Golf Course. This draft agreement contains certain provisions that are beyond the scope contemplated by the board when authority to enter into development agreements was delegated to me. Therefore, this matter is being submitted to the board for review and action. What makes this agreement unique is the option to accept land in lieu of cash for fees. I will be prepared to discuss this matter fully at the board meeting on Wednesday evening. WATER DEVELOPMENT AGREEMENT BETWEEN THE TRUCKEE DONNER PUBLIC UTILITY DISTRICT AND STEELE FAMILY PARTNERS, L.P. This Water Development Agreement ("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 STEELE FAMILY PARTNERS, L.P. 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 18-010-17 & 51 and 19-400-04 on which Developer intends to construct an 18 hole golf course with clubhouse, maintenance building, cart storage building and a chemical/materials storage building, hereafter referred to as the "Project." B. Developer requires water delivery systems to provide water to the Project for domestic, irrigation and fire protection use, including a well, pump, pipes, valves, service laterals, and related equipment, in accordance with plans and specifications approved by the District. The water delivery systems will include the District's existing domestic and fire protection water distribution system on Northwoods Blvd, as modified, improved or expanded to serve the Project, hereafter referred to as the "Northwoods Blvd. System" and a system to deliver irrigation and fire protection water from the District's Donner Creek well to the Project, hereafter referred to as the "Donner Creek Irrigation System." Such systems shall collectively hereafter be referred to as the "Water Delivery Systems." Initially, District intends to provide all water for the Project through the Northwoods Blvd. System. After construction of the Donner Creek Irrigation System, the District intends to provide domestic, fire protection and back-up/emergency irrigation water to the Project through the Northwoods Blvd. System and irrigation and fire protection water through the Donner Creek Irrigation System. C. The Water Delivery Systems are a necessary part of the Project, and Developer has requested that the District accept the Water Delivery Systems by including them within the District's existing integrated systems. Developer has further requested and the District has agreed that it will construct or have constructed the Water Delivery Systems, and upon completion, the Page District thereafter will own, operate, maintain, repair, and replace the Water Delivery Systems as necessary. D. The District is willing to accept the Water Delivery Systems providing they are property constructed in accordance with the approved plans, specifications and terms of this Agreement. E. Complete plans and specifications for the construction of the Water Delivery Systems have been or will be 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 or will be on file in the District's Water Department, F. District has or will be selecting contractors for construction of the Water Delivery Systems. The names of the contracting firms, contact persons, mailing addresses, telephone numbers and a schedule of construction dates have been or will be included on data sheets entitled Contractor Firm Data Sheets, and are or will be on file in the District's Water Department. G. The following items are on file in the District office and incorporated herein by reference: Development agreement application Project parcel map Estimated costs and calculation of fees—water The parties agree as follows: 1. Payment of Costs and Fees. A. Northwoods Blvd. System 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 for the Northwoods Blvd. System, hereafter collectively referred to as the "Northwoods Blvd. System Construction Costs," which is set forth in Exhibit"A," attached hereto and incorporated herein by this reference. Upon start of construction, Developer shall deposit with the District the sum of One Thousand Dollars ($1,000.00) as set forth on Exhibit "A" and that deposit shall be applied to the actual construction costs incurred by the District for the Northwoods Blvd. System. 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 Northwoods Blvd. 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. B. Donner Creek Irrigation System Page 2 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 for the Donner Creek Irrigation System hereafter collectively referred to as the"Donner Creek Irrigation System Construction Costs," which is set forth in Exhibit 'B," attached hereto and incorporated herein by this reference. Upon start of construction, Developer shall deposit with the District the total amount of fees and estimated costs in the sum of Two Hundred Fifty Thousand Dollars ($250,000.00) as set forth on Exhibit`B" and that deposit shall be applied to the actual construction costs incurred by the District for the Donner Creek Irrigation System. 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 Donner Creek Irrigation 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. C. Fee in Lieu of Facilities Fee Upon execution of this Agreement, Developer shall pay to the District the sum of Four Hundred Thousand Dollars ($400,000.00) as an amount negotiated between the parties and to be paid by the Developer as a fee in lieu of a facilities fee. D. Option to Accept Real Property The Developer grants to the District the exclusive option to accept fee title ownership of the real property owned by the Developer described as Nevada County APNs 19-420-37, 19-420-38 and 19-400-13 (collectively"Property") in lieu of the Developer's obligation to pay the District the sum Two Hundred Fifty Thousand Dollars ($250,000.00) as described in paragraph I.B. immediately herein above and the sum of Four Hundred Thousand Dollars ($400,000.00) as set forth in paragraph I.C. immediately herein above. A Memorandum of Option, in the form attached hereto as Exhibit"C," shall be recorded by the District upon execution of this Agreement. The District has the right,but not the obligation, to exercise the option within sixty (60) days from the date of execution of this Agreement by notifying the Developer in writing of the District's exercise of the option. During the sixty (60) day period immediately following execution of this Agreement, the Developer shall reasonably cooperate with the District while the District performs due diligence and investigates whether it will exercise the option. Said due diligence and investigation may include, but is not limited to, the District's review of the condition of title to the Property, review of whether the Property can be developed as desired by the District, including whether the District can obtain all necessary permits and zoning from the Town of Truckee, Lahontan Regional Quality Control Board, NPDES , whether the Property has legal access from the Page 3 east, archeological and environmental reviews and any requirements to rehabilitate, close, abandon or reclaim the quarry. In the event that the District exercises the option, it shall, at the time of delivering written notice to exercise, refund the entire sum of Six Hundred Fifty Thousand Dollars ($650,000.00) to the Developer. In the event that the District chooses not to exercise the option, it shall provide the Developer with a quitclaim deed to the Property. 2. Water Rates. A. Northwoods Blvd. System The water rate for all water provided to the Project through the Northwoods Blvd. System, regardless of whether the water is for domestic, irrigation or fire protection use, shall be the same rate charged by the District to other customers located in the same zone as the Project, as may be adjusted from time to time by the District. At the time of execution of this Agreement, the rate charged by the District to other customers located in the same zone as the Project is referred to by the District as the "Zone 5 rate" and is $1.26 per 1000 gallons. B. Donner Creek Irrigation System The water rate for all water provided to the Project through the Donner Creek Irrigation System, regardless of whether the water is for irrigation or fire protection use, shall be, upon execution of this Agreement, $0.53 per 1000 gallons. This rate may be adjusted from time to time by the District as set forth herein. This rate of$0.53 per 1000 gallons is comprised of the following two components: (1) the base rate, which is $0.22 per 1000 gallons; and (2)the pumping zone rate, which is $0.31 per 1000 gallons. The base rate and the pumping zone rate may be adjusted at the same time and in the same manner as the District adjusts the base rate and pumping zone rate for the District's other water rates. 3. Provision of Easements - Permission to Enter Land. Developer will execute an appropriate temporary blanket easement granting the right to do all things necessary for the construction of the Water Delivery Systems 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 Delivery Systems. 4 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, damages to or destruction of property of the Developer or the District or any other person, arising out of Page n 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. 5 Improvements by and Responsibilities of Developer. The Developer shall perform and be responsible for the following: A. Payment to the District of all costs and fees for the Northwoods Blvd. System, as set forth on Exhibit"A,' including payment of the deposit in the sum of One Thousand Dollars ($1,000.00). In the event the actual costs are greater than the estimate set forth in Exhibit "A," the Developer will pay the additional cost for the completion of this work within thirty (30) days of receipt of an invoice from the District; B. Payment to the District of all costs associated with the design, construction, inspection and activation costs and fees for the Donner Creek Irrigation System, as set forth on Exhibit`B," including payment of the deposit in the sum of Two Hundred Fifty Thousand Dollars ($250,000.00). In the event the actual costs are greater than the estimate set forth in Exhibit`B,"the Developer will pay the additional cost for the completion of this work within thirty (30) days of receipt of an invoice from the District; C. Payment to the District of the fee in lieu of a facilities fee in the sum of Four Hundred Thousand Dollars ($400,000.00). D. Developer acknowledges that the District will provide temporary-and conditional irrigation water to the Project through the Northwoods Blvd.System and Developer agrees to pay the water rate for such water as set forth herein above; E. Developer agrees that within thirty (30) days following notification from the District that the Donner Creek Irrigation System is complete it will receive all irrigation water for the Project from the Donner Creek Irrigation System, except in an emergency situation when the District agrees to provide irrigation water to the Project through the Northwoods Blvd. System ; F. Developer agrees that it will location its water facilities on the Project to receive water from the Water Delivery Systems in coordination with and subject to the approval of the District. G. Developer shall reasonably cooperate with the District as the District conducts its due diligence and investigation of the Property. 6 Improvements by and Responsibilities of District. The District shall perform and be responsible for the following: A. District will direct all work required to complete the Water Delivery Systems at Developer's expense; B. District will notify the Developer when the Donner Creek Irrigation System is complete and ready to provide irrigation water to the Project. Page 5 7 Construction Inspection. The District shall inspect the construction from time to time, in order to determine that the Water Delivery Systems are installed in accordance with the approved improvement plans, construction specifications and the terms of this Agreement. 8 Timely Construction Required. Construction of the Northwoods Blvd. System was completed on or about August 23, 1999, and the District has been supplying water to the Project since on or about that date. 9 No Earlv 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 Delivery Systems on the Project, nor shall Developer use or permit anyone else to use any water service supplied by the District, until the District has granted conditional acceptance in writing. Developer may, however, with the District's permission and prior to conditional acceptance, use water for construction purposes. The District shall be entitled to terminate, without notice, any water usage by Developer or any other person, other than that required for construction purposes, occurring prior to conditional acceptance by the District of the entire Water Delivery Systems. 10 Completion of the Systems. Construction shall be deemed complete when the District determines that the Water Delivery Systems have been entirely finished, properly tested, and ready to service the Project in accordance with the District's Rules and Regulations. 11 Conditional Acceptance. When the District has determined that the Water Delivery Systems have been completed, the District may conditionally accept the Water Delivery Systems and may provide water service, on a conditional basis, to the Project. Conditional service shall be provided to enable Developer to use the Project while Developer is in the process of providing to the District those items specified in the paragraph entitled "Requirements for Unconditional Acceptance." Any conditional acceptance shall be in writing. If at any time the District, in its sole discretion, determines that Developer is not making adequate progress toward providing the District with the required items, then the District may, after providing thirty (30) days prior written notice, discontinue conditional water service to the Project. Any water service provided by the District prior to unconditional acceptance of the Water Delivery Systems shall be deemed conditional service. 12 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 Delivery Systems. a. Developer shall provide the District with the appropriate permanent easements. b. Developer shall pay any outstanding costs and fees. 13 Responsibilities After Unconditional Acceptance. Upon unconditional acceptance of the Water Delivery Systems by the District, the District shall thereafter own, operate, maintain, repair and replace the Water Delivery Systems, unless such repairs or Page 6 replacements are covered by any applicable 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 the District's Rules and Regulations. 14. Notices. Notices or requests from either party to the other shall be in writing and delivered or mailed, postage prepaid, to the following addresses: Chris Steele, Truckee Falls G.P./Steele Enterprises 2868 Prospect Drive, Suite 300 Rancho Cordova, California 95670 TRUCKEE DONNER PUBLIC UTILITY DISTRICT Post Office Box 309 Truckee, California 96160 15 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. 16. 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. 17. 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. 18. 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. 19. 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. Page 7 20. 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. 21. 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. 22. 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. 23. 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. 24. 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." Steele Family Partners, L.P By: Christopher R. Steele, Trustee of the Steele 1994 Revocable Trust, General Partner Dated: Truckee Donner Public Utility District By: Peter L. Holzmeister, General Manager Dated: Page 8 Estimated Costs And Calculation Of Fees The ESTIMATED COSTS are as follows: Construction Costs: Administrative and design $ 675.00 Engineering & modeling 975.00 Construction and inspection 400.00 Total Estimated Costs $ 2,050.00 The FEES are as follows: Connection fee (2"turbo meter) $ 1,075.00 Facilities fee (2" PD meter) 5,656.00 Total Fees $ 6,731.00 GRAND TOTAL FEES AND ESTIMATED COSTS $ 8,781.00 Less Deposit Paid in Advance { 500.00) BALANCE DUE 8 Page 9 Improvements By And Responsibilities Of Developer 1. Schedule a preconstruction meeting with District Planner, Water Foreman and the pipeline contractor. 2. Provide all permits required, including the Town of Truckee encroachment permit. 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 construction details and technical specifications of the "DONNER PASS ROAD/COLD STREAM ROAD PIPELINE REPLACEMENT PROJECT 1998" 6. Perform pressure/leakage test on line extension with District Planner in attendance. 7. Disinfect line extension per requirements of District Planner and technical specifications. 8. Provide compaction certification by acceptable licensed professional. 9. Schedule meter installation with Water Foreman. A minimum of four working days notification is required for District crew scheduling (Paul Rose 582-3926). 10. Comply with all cross connection control requirements as determined by Pete Marcovich, Water Operations Foreman 530 582-3920. Page 10 Improvements by and Responsibilities of District 1) Operate water system as required including customer notification (outages), system shut-down and system flushing. 2) Inspect installation and construction of Project as required per this agreement. 3) Observe pressure/leakage test. 4) Take bacteriological samples. 5) Test locator wire installation. 6) Install meter manifold. 7) Specify, approve and inspect installation of all required back flow equipment. Contact Pete Marcovich 582-3920. Page 11 MEMORANDUM OF OPTION Recording requested by, and when recorded, mail to: Truckee Donner Public Utility District Post Office Box 309 Truckee, California 96160 By this Memorandum of Option (Memorandum), STEELE FAMILY PARTNERS, (Optionor) grants to Truckee Donner Public Utility (Optionee) an option to purchase certain real property described as Nevada County APNs 19-420-37, 19-420-38 and 19-400-13, and more particularly in attached Exhibit A, incorporated in this Memorandum (Real Property), together with all rights of Optionor to adjoining streets, rights of way, easements, and all other appurtenant rights and all personal property belonging to Optionor on the Real Property(collectively, Property). The option is more particularly described in the Development Agreement (Development Agreement) dated as of [date], executed between Optionor and Optionee. Section 1. Term. The term of the Option Agreement begins on [date], and ends on [date] (Term), unless terminated sooner in accordance with the Development Agreement. Section 2. Termination. The right to exercise the option shall automatically terminate and shall have no further force upon the first of the following events to occur: (a) The purchase of the Property by Optionee; (b) The assignment or attempt to assign by Optionee of Optionee's rights under the Option Agreement in contravention of the Option Agreement; or (c) The end of the Term, as it may be extended. Section 3. Price and Terms. The parties have executed and recorded this instrument to give notice of the Development Agreement and the respective rights and obligations of Optionee and Optionor. The price and other terms are in the unrecorded Devlopment Agreement, which is incorporated by reference in its entirety in this Memorandum. In the event of any inconsistency between this Memorandum and the Development Agreement, the Development Agreement shall control. Section 4. Assignment. Optionee's rights and obligations under the Development Agreement shall not be assigned without Optionor's prior written consent. Any assignment without that consent shall be void. Section 5. Successors and Assigns. This Memorandum and the Development Agreement shall bind and inure to the benefit of the parties and their respective heirs, successors, and assigns, subject, however, to the provisions of the Development Agreement on assignment. Section 6. Governing Law. This Memorandum and the Development Agreement are governed by California law. Optionor has signed this Memorandum as of [date]. Steele Family Partners, L.P By: Christopher R. Steele, Trustee of the Steele 1994 Revocable Trust, General Partner [Acknowledgment]