Access Agreemnt from District-Board-Agenda-Packet-January-17-2019-1SOUTH TAHOE PUBLIC UTILITY DISTRICT
REGULAR BOARD MEETING AGENDA
Thursday, January 17, 2019 - 2:00 p.m.
District Board Room
1275 Meadow Crest Drive, South Lake Tahoe, California
John Thiel, General Manager Shannon Cotulla, Assistant General Manager
Randy Vogelgesang, President BOARD MEMBERS Kelly Sheehan, Vice President Chris Cefalu, Director James R. Jones, Director Nick Exline, Director
1.CALL TO ORDER REGULAR MEETING – PLEDGE OF ALLEGIANCE (At this time, please silence phones and
other electronic devices so as not to disrupt the business of the meeting.)
2.COMMENTS FROM THE AUDIENCE (This is an opportunity for members of the public to address the Board on
any short non-agenda items that are within the subject matter jurisdiction of the District. No discussion or action canbe taken on matters not listed on the agenda, per the Brown Act. Each member of the public who wishes tocomment shall be allotted five minutes, and no more than three individuals shall address the same subject.)
3.CORRECTIONS TO THE AGENDA OR CONSENT CALENDAR (For purposes of the Brown Act, all Action andConsent items listed give a brief description of each item of business to be transacted or discussed.Recommendations of the staff, as shown, do not prevent the Board from taking other action.)
4.ADOPTION OF CONSENT CALENDAR (Any item can be removed to be discussed and considered separately
upon request. Comments and questions from members of the public, staff or Board can be taken when the
comment does not necessitate separate action.)
5.CONSENT ITEMS BROUGHT FORWARD FOR SEPARATE DISCUSSION / ACTION
6.ITEMS FOR BOARD ACTION
a.South Y PCE Investigation (Ivo Bergsohn, Hydrogeologist)Enter into an Access Agreement with Seven Springs Limited Partnership and Fox Capital
Management Corporation for the sampling of monitoring wells located at the ClementWell Site.
b.Approve Payment of Claims (Debbie Henderson, Accounting Manager)Approve Payment of Claims in the amount of $1,488,035.94
7.ANNOUNCEMENT OF 2019 BOARD APPOINTMENTS (Standing Committees, Ad-Hoc and Liaisons)
8.STANDING AND AD-HOC COMMITTEE REPORTS (Discussions may take place; however, no action will be
taken.)
9.BOARD MEMBER REPORTS (Discussions may take place; however, no action will be taken.)
10.EL DORADO COUNTY WATER AGENCY PURVEYOR REPORT
11.GENERAL MANAGER REPORT (Discussion may take place; however, no action will be taken.)
a.Fallen Leaf Lake Update
REGULAR BOARD MEETING AGENDA – January 17, 2019 PAGE – 2
12. STAFF/ATTORNEY REPORTS (Discussions may take place; however, no action will be taken.) a. Echo Summit Road Construction (Shannon Cotulla, Assistant General Manager)
b. Liberty Utilities Street Lighting Update (Tim Bledsoe, Customer Service Manager
c. Sustainable Groundwater Management Act (SGMA) (Attorney Kvistad)
13. NOTICE OF PAST AND FUTURE MEETINGS/EVENTS Past Meetings/Events
01/03/19 – 2:00 p.m. Regular Board Meeting at the District
01/09/19 – 10:00 a.m. El Dorado County Water Agency Meeting in Placerville 01/10/19 – 9:00 a.m. Ad-Hoc City Council Committee Meeting at the City
01/14/19 – 3:30 p.m. Operations Committee Meeting at the District
01/17/19 – 11:30 a.m. Board Workshop with Rate Consultant
Future Meetings/Events
01/21/19 – Martin Luther King, Jr. Holiday District Offices Closed 01/23/19 – 6:00 p.m. Public Meeting at the District
02/05/19 – 9:00 a.m. Water Purveyor Presentation at the City
02/07/19 – 2:00 p.m. Regular Board Meeting at the District 14. CLOSED SESSION (The Board will adjourn to Closed Session to discuss items identified below. Closed Session is not open to the public; however, an opportunity will be provided at this time if members of the public would like to comment on any item listed – three minute limit.) a. Pursuant to Section 54956.9(a) of the California Government Code, Closed Session may be
held for conference with legal counsel regarding existing litigation: Los Angeles County
Superior Court, Case No. BC459943, State of Nevada, et al. v. J-M Manufacturing, et al.
b. Pursuant to Section 54956.9(a) of the California Government Code, Closed Session may be
held for conference with legal counsel regarding existing litigation: False Claims Act Case: United States, the States of California, Delaware, Florida, Nevada, and Tennessee
and the Commonwealths of Massachusetts and Virginia ex rel. John Hendrix v. J-M Manufacturing Company, Inc. and Formosa Plastics Corporation, U.S.A., Civil Action No. ED
CV06-0055-GW, United States District Court for the Central District of California. c. Pursuant to Government Code Section 54956.9(b)/Conference with Legal Counsel
Potential Litigation (two cases).
d. Pursuant to Section 54956.9(a) of the California Government code, Closed Session may be
held for conference with legal counsel regarding existing litigation: El Dorado County
Superior Court Case SC20180234, Irwin Berman vs. South Tahoe Public Utility District. ADJOURNMENT (The next Regular Board Meeting is Thursday, February 7, 2019, at 2:00 p.m.)
The South Tahoe Public Utility District Board of Directors regularly meets the first and third Thursday of each month. A complete Agenda
packet is available for review at the meeting and at the District office during the hours of 8:00 a.m. and 5:00 p.m., Monday through Friday. A recording of the meeting is retained for 30 days after Minutes of the meeting have been approved. Items on the Agenda are numbered for identification purposes only and will not necessarily be considered in the order in which they appear. Designated times are for particular items only. Public Hearings will not be called to order prior to the time specified, but may occur slightly later than the specified time.
Public participation is encouraged. Public comments on items appearing on the Agenda will be taken at the same time the Agenda items
are heard; comments should be brief and directed to the specifics of the item being considered. Please provide the Clerk of the Board with a copy of all written materials presented at the meeting. Comments on items not on the Agenda can be heard during “Comments from the Audience;” however, action cannot be taken on items not on the Agenda.
Backup materials relating to an open session item on this Agenda, which are not included with the Board packet, will be made available
for public inspection at the same time they are distributed or made available to the Board, and can be viewed at the District office, at the Board meeting and upon request to the Clerk of the Board. The meeting location is accessible to people with disabilities. Every reasonable effort will be made to accommodate participation of the
disabled in all of the District’s public meetings. If particular accommodations are needed, please contact the Clerk of the Board at (530)
544-6474, extension 6203. All inquiries must be made at least 48 hours in advance of the meeting.
REGULAR BOARD MEETING AGENDA – January 17, 2019 PAGE – 3
SOUTH TAHOE PUBLIC UTILITY DISTRICT
CONSENT CALENDAR
January 17, 2019 ITEMS a. WATER METERS AND PARTS
(James Cullen, Inspections Supervisor) 1) Authorize exception to bidding procedures as outlined in the Purchasing Policy for a sole
source purchase of standardized supplies; and 2) Authorize purchase of meters from Western
Nevada Supply in the amount of $69,858.64 including tax and freight.
b. TEMPORARY HELP FOR INSPECTIONS/METER DEPARTMENT
(James Cullen, Inspections Supervisor)
Approve a temporary Meter Technician Assistant in the estimated amount of $17,500.
c. CALPERS REQUIRED PAY LISTING BY POSITION
(Debbie Henderson, Accounting Manager) Adopt Resolution No. 3101-19 which incorporates the Pay Listing by Position for the pay listing
effective January 1, 2019.
BOARD AGENDA ITEM 6a
TO: Board of Directors
FROM: Ivo Bergsohn, Hydrogeologist
MEETING DATE: January 17, 2019
ITEM – PROJECT NAME: South Y PCE Investigation
REQUESTED BOARD ACTION: Enter into an Access Agreement with Seven Springs
Limited Partnership and Fox Capital Management Corporation for the sampling of
monitoring wells located at the Clement Well Site.
DISCUSSION: On January 9, 2019, the District received a request for access to sample
two existing shallow groundwater monitoring wells (CL-2 and CL-3) located on District
property (APN 023-802-15) at 912 Clement Street, South Lake Tahoe, California. Seven
Springs Limited Partnership (Seven Springs) and Fox Capital Management Corporation
(Fox) are requesting access to conduct groundwater sampling as part of the lateral
and vertical extent investigation ordered by the Lahontan Regional Water Quality
Control Board under Cleanup and Abatement Order R6T-2017-0022. This investigation is
required to determine the lateral and vertical extent of chlorinated hydrocarbons in
groundwater originating from the former Lake Tahoe Laundry Works site, 1024 Lake
Tahoe Boulevard, South Lake Tahoe, California.
The Access Agreement would allow Seven Springs and Fox access to CL-2 and CL-3 for
groundwater sampling. Groundwater sampling is scheduled for February 5, 2019, weather permitting.
SCHEDULE:
COSTS: N/A
ACCOUNT NO: N/A
BUDGETED AMOUNT AVAILABLE:
ATTACHMENTS: South Tahoe Public Utility District Access Agreement to be provided
prior to and at the Board Meeting ___________________________________________________________________________________ CONCURRENCE WITH REQUESTED ACTION: CATEGORY: Sewer/Water
GENERAL MANAGER: YES NO
CHIEF FINANCIAL OFFICER: YES NO
General Manager
John Thiel
Directors
Chris Cefalu
James R. Jones
Randy Vogelgesang
Kelly Sheehan
Nick Exline
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ACCESS AGREEMENT
This Access and Due Diligence Agreement (“Agreement”) is entered into as of the ______ day
of _____________, 2019 (“Effective Date”), by and between the South Tahoe Public Utility District (“District”), and Seven Springs Limited Partnership, and Fox Capital Management Corporation
(collectively “ RPs”), at South Lake Tahoe, California, with respect to the following facts and intentions:
A. The District is the owner of certain real property located at 912 Clement Street, South
Lake Tahoe, California (“Property"). A map of the Property is attached as Exhibit A, which is incorporated by this reference;
B. RPs are responsible for the characterization of the lateral and vertical extents of the tetrachloroethylene (“PCE”) in groundwater associated with the former Lake Tahoe Laundry Works site,
as required by Cleanup and Abatement Order No. R6T‐2017‐0022 (“CAO”) issued by the California Regional Water Quality Control Board, Lahontan Region (“Water Board”) in May 2017, as amended;
C. RPs desire the District to allow its consultant EKI Environment and Water, Inc. (“Consultant”) to access the Property for sampling groundwater as part of the Phase III groundwater
investigation to assist in defining the western extent of the PCE in groundwater; and,
D. The District agrees to allow the Consultant to enter the Property for the purpose of
sampling for PCE in the groundwater pursuant to the terms and conditions of this Agreement.
NOW, THEREFORE, The parties agree as follows:
1. Term. For purposes of this Agreement, the term of this Agreement shall commence on the Effective Date and terminate on __________, 2019 (“Termination Date”), unless extended by mutual
written agreement of the parties. This Agreement shall automatically terminate without further notice on the Termination Date. Notwithstanding the foregoing to the contrary, the District may terminate this
Agreement at any time for any reason (or for no reason whatsoever) in the District’s sole discretion by delivering written notice to the RPs.
2. Limited Access. The District grants Consultant access to the Property to obtain groundwater samples from the District’s Clement monitoring Wells CL-2 and CL-3 as depicted on Exhibit
A. The sampling shall be conducted during normal business hours, unless the District otherwise approves in writing, which approval may be given or withheld in the District’s sole discretion. Consultant shall
provide to the District a notice of its intent to enter the Property at least three (3) days prior to the intended date of entry, which notice shall include a general description of the activities to be conducted. A
representative of the District shall have the right, but not the obligation, to be present during the Consultant’s work. The RPs shall provide the District with the results of the tests performed by the
Consultant.
3. Reimbursement. The RPs shall reimburse the District for the costs and expenses that it
incurs with respect to this Agreement and the Consultant’s access to the Property pursuant to this Agreement. After the Consultant’s access to the Property is completed, the District shall send the RPs an
invoice for the costs that it has incurred, which shall be paid by the RPs within thirty (30) days from the date of the invoice.
4. Indemnity. The RPs, 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 attorneys’ fees, paralegal and legal fees and costs, which arise out of, relate to or result from the Consultant’s act or omissions, negligence or willful
misconduct related to the Consultant’s access to the Property and sampling for PCE and any related use of the Property, except as caused by District’s sole negligence or willful misconduct.
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5. Insurance. The District shall have no liability, responsibility or duty of care to the RPs or its Consultant on the Property. The RPs acknowledge that the Consultant may enter the Property at its
own risk. Prior to accessing the Property pursuant to this Agreement, 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 Liability Insurance. 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 RPs.
6. Compliance with Law. The RPs and the Consultant shall take all necessary actions and implement all protections necessary to ensure that all actions taken in connection with the sampling
inspection and all equipment, materials and substances generated, used or brought onto the Property pose no material threat to the safety of persons or the environment and cause no damage to the Property
or other property of the District or other persons. The Consultant shall conduct itself on the Property in compliance with all applicable laws and regulations. Without limiting the previous sentence, the RPs and
the Consultant shall address any hazardous materials and substances at the Property in such a manner that fully complies with all applicable environmental laws and regulations.
7. No Additional Rights Granted. The RPs acknowledge and agree that the District’s execution of this Agreement does not provide the RPs with any additional rights or interest in the Property
whatsoever.
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8. Damage to the Property. The RPs shall not allow, create, cause or permit any lien or encumbrance to attach to the Property during the Term. Should physical damages to the Property occur
as a result of the Consultant’s activities, the RPs shall be responsible, at their sole cost and expense, to restore the Property to substantially the same condition in which it existed prior to such damage. The
parties shall, as reasonably practical, jointly inspect the damaged Property and/or improvements and the RPs shall repair/replace the damaged Property and/or improvements to the reasonable satisfaction of the
District.
9. General Provisions.
9.1. Applicable law; venue The laws of the State of California shall govern the interpretation and enforcement of this Agreement. The Superior Court of the County of El Dorado County,
California, shall be the site and have jurisdiction for the resolution of all such actions.
9.2. Notices, Demands and Communications Between the Parties. Written notices,
demands, and communications between the District and RPs 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 District
1275 Meadow Crest Drive South Lake Tahoe, CA 96150
With Copy to: Gary M. Kvistad
Brownstein Hyatt Farber Schreck, LLP 1021 Anacapa Street, Second Floor
Santa Barbara, CA 93101
To RPs: Seven Springs Limited Partnership _________________________________
_________________________________ _________________________________
Fox Capital Management Corporation
_________________________________ _________________________________
_________________________________
With Copy to: _________________________________ _________________________________
_________________________________ _________________________________
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 be sent in the same manner to such other addresses as either party may from time to time designate by mail.
9.3. 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.
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9.4. Counterparts. 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.
9.5. Successors. This Agreement shall be binding upon and shall inure to the benefit
of the successors of each of the parties hereto.
9.6. 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.
9.7. 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 proposed assignment. Any attempted assignment without the approval of the District shall be void.
9.8. Construction. The provisions of this Agreement should be liberally construed to effectuate its purposes. The language of all parts of this Agreement shall be construed simply according
to its plain meaning and shall not be construed for or against either party, 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.
9.9. Several Obligations. 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 this
Agreement.
9.10. Attorneys’ Fees. If any legal proceeding (lawsuit, arbitration, etc.), including an
action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement, the prevailing party shall be entitled to recover actual attorneys’ fees and costs, which may be determined by
the court in the same action or in a separate action brought for that purpose. The attorneys’ fees award shall be made as to fully reimburse for all attorneys’ fees, paralegal fees, costs and expenses actually
incurred in good faith, regardless of the size of the judgment, it being the intention of the parties to fully compensate for all attorneys’ fees, paralegal fees, costs and expenses paid or incurred in good faith by the
prevailing party.
9.11. 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 this Agreement, and that the consent, approval or execution of or by any third-party is not required to legally bind either
party to the terms and conditions of this Agreement.
9.12. Survival. The provisions of this section and sections 3, 4, 5 and 8 shall survive
the termination of this Agreement.
9.13. 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 parties, either oral or written, 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 any oral
agreement, course of conduct, waiver or estoppel.
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IN WITNESS WHEREOF, the District and the RPs have entered into this Agreement as of the date first written above.
South Tahoe Public Utility District:
By: Randy Vogelegsang, President
ATTEST:
By:
Melonie Guttry, Clerk of the Board
Fox Capital Management Corporation:
By:
(Name/Title)
Seven Springs Limited Partnership
By:
(Name/Title)
18574909
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1/2019
Document Path: X:\Public\IBergsohn\IBPdrive\SouthY\2019 Request for Access\Request for Access\Exhibit A_Jan 2019.mxdLegend
912 Clement Street,South Lake Tahoe, CA(APN 023-802-15)
EXHIBIT A