PCE Lahonton Reimbursement AgreementREIMBURSEMENT AGREEMENT
J l
This Reimbursement Agreement ("Agreement") is entered into as of th G day of March
2019 ("Effective Date"), by and between the South Tahoe Public Utility District ("District"), and Seven
Springs Limited Partnership (°SSLP"), and Fox Capital Management Corporation ("Fox") (SSLP and
Fox, collectively, 'Working Parties"), at South Lake Tahoe, California, with respect to the following facts
and intentions:
A. The District owns and operates a wastewater collection and treatment system
Wastewater System") located in South Lake Tahoe and a portion of EI Dorado County, California,
B. Pursuant to the Cleanup and Abatement Order No. R6T-2017-0022 ("CAO") issued by
the Lahontan Regional Water Quality Control Board ("Water Board") in May 2017, as amended;
Working Parties are required to characterize the lateral and vertical extents of the tetrachloroethylene
and other volatlle organic compounds (collectively "VOCs") in groundwater originating from the former
Lake Tahoe Laundry Works site pursuant to a work plan submitted to and approved by the Water
Board ("Work Plan");
C. As part of the Work Plan, the Working Parties have proposed to perform a CCTV
inspection of a portion of the Wastewater System as described in the scope of work ("Scope of
Work"), which is attached as Exhibit A and incorporated by this reference;
D. In response to the Working Parties' request to perform a CCTV inspection, and
since the District does not allow third parties to access its Wastewater System, the District has
proposed to perform the Investlgation with its own personnel and equipment;
E. Working Parties agree to reimburse the District for the costs and expenses incurred
by the District in connection with the Scope of Work in accordance with this Agreement; and,
F. The District agrees to perform the Scope of Work pursuant to the terms and
conditions of this Agreement.
NOW, THEREFORE, the District and the Working Parties (collectively "the parties" and
individually each a "party") agree as follows:
1. Term. For purposes of this Agreement, the term of this Agreement shall commence on
the Effective Date and terminate upon the District's performance of the Scope of Work and Working
Parties' performance of their obligations pursuant to this Agreement.
2. Scope of Work. The District shall perform the Scope of Work as described on Exhibit A
in accordance with the degree of care and skill ordinarily exercised in similar circumstances by
reputable firms or agencies performing comparable work in the same geographic area. The Scope of
Work shall be conducted during normal business hours, unless the District determines otherwise, in the
District's sole discretion. The District shall provide to the Working Parties with a notice of its intent to
perform the Scope of Work at least five (5) days prior to the intended commencement of the work. A
representative of the Working Parties ("Consultant") shall have the right, but not the obligation, to be
present during the District's performance of the Scope of Work. The District shall provide the Working
Parties with a copy of the results of the CCTV survey performed by the District by transferring such
survey files electronically, as soon as possible following completion of the CCTV survey.
3. Reimbursement. The Working Parties shall reimburse the District for the costs and
expenses that the District incurs with respect to performing the Scope of Work and preparing this
Agreement. The cost for preparing this Agreement shall not exceed One Thousand Dollars ($1,000,00)
and cost for performing the Scope of work shall not exceed Two Thousand Eight Hundred Dollars
2,800.00). After the Scope of Work is completed, the District shall send the Working Parties an invoice
for the costs that it has incurred, which shall be paid by the Working Parties within thirty (30) days from
the date of the invoice.
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4. Indemnity. The Working Parties, jointly and severally, shall indemnify, defend and hold
harmless, the District, its elected officials, officers, employees, agents and contractors, from and against
any and all claims, damages, losses, liabilities and expenses, including reasonable attorneys' fees,
paralegal and legal fees and costs, which arise out of, relate to or result from the Consultant's acts or
omissions, negligence or willful misconduct, except to the extent caused by District's sole negligence
or willful misconduct.
5. Insurance. Except as required by law or this Agreement, the District shall have no
liability, responsibility or duty of care to the Working Parties or the Consultant during the District's
performance ofthe Scope of Work. The Working Parties acknowledge that the Consultant may attend
the District's performance of the Scope of Work at its own risk, Prior to attending the District's
performance of the Scope of Work, the Consultant shall maintain and provide to the District proof of the
following insurance coverages:
5.1. Workers Compensation Insurance, Insurance to protect them from all claims
under California Workers Compensation and Employers Liability Acts. Such coverage shall be
maintained, in the type and amount, in strict compliance with all applicable state and federal statutes
and regulations.
5.2. Commercial General Liability Insurance,;, Commercial general liability insurance
for bodily injury (including death), personal injury, property damage, owned and non -owned equipment,
blanket contractual liability, completed operations, explosion, collapse, underground excavation and
removal of lateral support covering performance, which coverage shall be at least as broad as
Insurance Services Office (ISO) occurrence form CG 0001, and with a limit in an amount of not less
than Two Million Dollars ($2,000,000). If insurance with a general aggregate limit or products completed
operations aggregate limit is used, either the general aggregate limit shall apply separately with the iSO
CG 2503, or ISO CG 2504, or insurer's equivalent endorsement or the general aggregate limit and
products completed operations aggregate limit shall be twice the required occurrence limit.
5.3. Automobile Liabi ' Lance. Insurance to protect against claims arising from
death, bodily or personal injury, or damage to properties resulting from actions, failure to act, operations
of equipment of the insured, or by its employees, agents, and consultants or by anyone directly or
indirectly employed by the insured. The amount of insurance shall not be less than Two Million Dollars
2,000,000) combined single limit per acts of coverage applied to bodily and personal injury and
property damage. Coverage shall include all owned, non -owned and hired vehicles,
5.4. General Provisions. The above insurance coverages shall be subject to the
District's reasonable approval. The District shall be provided with copies of the certificate(s) of Insurance
evidencing the above insurance coverages. The District shall be named as the additional insured on the
commercial general liability and automobile liability insurance policies. Each policy of insurance shall
require thirty (30) days advance written notice to the District of any change or cancellation of insured.
The above insurance coverage shall be primary with respect to the interest of the additional insured,
include a cross liability and severability of interest endorsement, a waiver of any and all transfer rights of
recovery (subrogation) against the additional insured. In addition, the above insurance requirements
shall not limit the indemnification obligations of the Working Parties.
6. General Provisions,
6.1. Aaalicable law ventre The laws of the State of California shall govern the
interpretation and enforcement of this Agreement. The Superior Court of the County of EI Dorado County,
California, shall be the site and have jurisdiction for the resolution of all such actions.
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6.5. Successors. This Agreernem shall be binding upon and shall inure to
the benefit of the successors of each of the parties hereto.
6.6. Severability. In the event any section or portion of this Agreement shall be held,
found, or determined to be unenforceable or invalid for any reason whatsoever, the remaining provisions
shall remain in effect, and the parties hereto shall take further actions as may be reasonably necessary and
available to them to effectuate the intent of the parties as to all provisions set forth in -this Agreement.
6.7. Assignment. This Agreement shall not be assignable without the prior written
consent of the District, who shall have the sole discretion to consent or not to consent to any proposedassignment. Any attempted assignment without the approval of the District shall be void.
6.8. Gonstructian. The provislons of this Agreement should be liberally construed to
effectuate its purposes. The language of all parts of this Agreement shall be construed simply accordingtoitsplainmeaningandshallnotbeconstruedfororagainsteitherparty, as each party has participated
in the drafting of this document and had the opportunity to have their counsel review it. Whenever the
context and construction so requires, all words used in the singular shall be deemed to be used in the
plural, all masculine shall include the feminine and neuter, and vice versa.
6.9. Several Qbliciations. Except where specifically stated in this Agreement to be
otherwise, the duties, obligations, and liabilities of the parties are intended to be several and not joint or
collective. Nothing contained in this Agreement shall be construed to create an association, trust,
partnership, or joint venture or impose a trust or partnership duty, obligation, or liability on or with regard
to either party. Each party shall be individually and severally liable for its own obligations under thisAgreement,
6.10. Pt(omevs' Fees, If any legal proceeding (lawsuit, arbitration, etc.), includinganactionfordeclaratoryrelief, is brought to enforce or interpret the provisions of this Agreement, the
prevailing party shall be entitled to recover reasonable attorneys' fees and costs, which may bedeterminedbythecourtinthesameactionorinaseparateactionbroughtforthatpurpose.
6.11. Authority. The individuals executing this Agreement represent and warrant
that they have the authority to enter into. this Agreement and to perform all acts required by thisAgreement, and that the consent, approval or execution of or by any third -party is not required to
legally bind either pally to the terms and conditions of this Agreement.
6.12. Survival. The provisions of this section and sections 3, 4, 5 and 6 shall
survive the termination of this Agreement.
6.13. Entire Agreement, This Agreement contains the entire understanding and
agreement of the parties, and supersedes all prior agreements and understandings, oral and written,
between the parties. There have been no binding promises, representations, agreements, warranties. or
undertakings by any of the partles, either oral or wrftten, of any character or nature, except as stated in
this Agreement. This Agreement may be altered, amended or modified only by an instrument in writing,
executed by the parties to this Agreement and by no other means. Each party waives its future right to
claim, contest or assert that this Agreement was modified, canceled, superseded or changed by anyoralagreement, course of conduct, waiver or estoppel.
IN WITNESS WHEREOF, the District and the Working Parties have entered into thisAgreementasofthedatefirstwrittenabove.
South Tahoe Pu§LLPC Utility 17i tract:,[ Fox Capital Management Corporation
By,
Randy V g Igesang, President
Name/Title)
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6.2. Notices, Demands and Communications Between JbQ Parties.lNritten notices,
demands, and communications between the District and Working Parties shall be given either by, (i)
personal service; (ii) delivery by reputable document delivery service such as Federal Express that
provides a receipt showing date and time of delivery; or, (iii) by mailing in the United States mail,
certified mail, postage prepaid, return receipt requested, addressed to:
To District: John Thiel, General Manager
South Tahoe Public Utility Districts
1275 Meadow Crest Drive
South Lake Tahoe, CA 96150
With Copy to: Gary M. Kvistad
Brownstein Hyatt Farber Schreck, LLP
1021 Anacepa Street, Second Floor
Santa Barbara, CA 93101
To Working Parties: Seven Springs Limited Partnership
c/o Mr. Christopher Blair, VP
The Commerce Trust Company
P.O. Box 419249
Kansas City, MO 64141-6248
Fox Capital Management Corporation
c/o Nick Billings, Esq.
4582 South Ulster Street
Denver, CO 80237
With Copy to,
Scott H. Reisch
Hogan Lovells US LLP
1601 Wewatta Street
Suite 900
Denver, Colorado 80220
sco tt. rei sc hA hoaanloyells, corn
William Tarantino
Justin Fisch
Morrison & Foerster LLP
425 Market St, 32"x' Floor
San Francisco, CA, 94105
wtarantlno c0mofa.com
jfisch@mofo.com
Notices personally delivered, sent by United States mail or delivered by document delivery
service shall be deemed effective upon receipt. Notices sent solely by mail in the manner provided above
shall be deemed effective on the second business day following deposit in the United States mail. Such
written notices, demands, and communications shall he sent in the same manner to such other addresses
as either party may from time to time designate by mail.
6.3. Interpretation, The terms of this Agreement shall be construed in accordance
with the meaning of the language used. The part and paragraph headings used in this Agreement are
for purposes of convenience only, and shall not be construed to limit or extend the meaning of this
Agreement.
6.4. Counterpart_s_. This Agreement may be executed in counterparts, each of
which, after all the parties hereto have signed this Agreement, shall be deemed to be an original, and
such counterparts shall constitute one and the same instrument.
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ATTEST:
By:
Melonie Guttry, Clerk of th oard
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Seven Springs Limited Partnership
By:
amelTltley
Exhibit A
Scope of Work
Sewer Line Survey
TI<578 to TK536
CCTV Approach.
The following approach will be utilized by South Tahoe Public Utility District (District) staff to
perform a closed-circuit television video (CCN) survey of the 10 -inch sewer main (Sewer Main)
located in Tucker Avenue, Glorene Avenue and Lake Tahoe Boulevard in South Lake Tahoe, CA.
The CCN survey shall be used to documentthe Sewer Main condition and to identify potential
defects (i.e. open/offset joints, blockages, broken pipe, root penetrations, etc.) and any other
potential release locations alongthe above section ofSewer Main CCN survey. Information
from the CCN survey will be used by others to target locations for the possible collection of soil
vapor, soil, and groundwater samples for presence of chlorinated hydrocarbon compounds.
The CCN survey is proposed to extend from manhole TK -578 to TK -576 along Glorene Avenue;
and from manhole TK -576 to TK -536 alongTucker Avenue (Line 416 -attached). All work will be
performed by qualified personnel and equipment from the District Underground Repair—
Sewer Department.
CCTV Survey.
The CCN Survey will be completed in a sequential manner, manhole to manhole as follows;
Hydro TK578-TK577 then CCTV 70ft
Hydro TK577-TK576 then CCN 270ft
Hydro TKS76-TK575 then CCN 250ft
Hydro TK575-TK536 Then CCN 200ft
The CCTV survey will be performed in a continuous manner until completed or until an
obstruction is encountered that cannot be removed with the equipment on -hand; or if
the process of removal may threaten the structural integrity of the Sewer Main.
Bellies may occur along the line of Sewer Main identified for CCTV Survey. In this case, the
camera may follow the nozzle of the Hydra Truck and apply suction to evacuate the belly;
or the upstream manhole would be plugged to allow for evacuation of the belly and
subsequent CCN Survey of the Sewer Main.
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Personnel.
Personnel would consist of a two-man Underground Repair Sewer crew working a regular 8 -
hour shift. Personnel conducting the CCTV Survey are National Association of Sewer Service
Companies' (NASSCO) certified. Coding of defects will be performed in the field by certified
personnel during the survey. The work will be scheduled during a period when conditions are
favorable for CCTV Survey. Electronic files from the CCN Survey will be made available
following completion of the survey for download to a flash drive.
Equipment,
o District Hydro Truck #53
a District CCN Truck #06
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REIMBURSEMENT AGREEMENT
Signature Block Attachment for SSLP
Seven Springs Limited Partnership, a Missouri Limited Partnership
By: Real Estate Management Associates, LLC, a Missouri Limited Liability Company,
General Partner
By: The Commerce Trust Company, a Division of Commerce Bank, N.A.,
Trustee of the Jack R. Lyddon Trust Two, Its Authorized Member
By:
Christa her . Blair
Vice Pre ift t
March 19, 2019