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Council Chamber 580 Pacific Street Monterey, California

7:00 PM, Thursday, November 14, 2013

Agenda Monterey Peninsula Regional Water Authority (MPRWA) Regular Meeting

ROLL CALL

PLEDGE OF ALLEGIANCE

REPORTS FROM BOARD DIRECTORS AND STAFF

PUBLIC COMMENTS

PUBLIC COMMENTS allows you, the public, to speak for a maximum of three minutes on any subject which is within the jurisdiction of the MPRWA and which is not on the agenda. Any person or group desiring to bring an item to the attention of the Authority may do so by addressing the Authority during Public Comments or by addressing a letter of explanation to: MPRWA, Attn:

Monterey City Clerk, 580 Pacific St, Monterey, CA 93940. The appropriate staff person will contact the sender concerning the details.

APPROVAL OF MINUTES

  • 1. October 10, 2013 - Milton

AGENDA ITEMS

  • 2. Receive Update and Discuss Presentation Regarding the Monterey Peninsula Water Supply Project - (Cal Am Representative)

  • 3. It is recommended that the MPRWA Receive, update, discuss, and provide direction on a work plan for Water Authority support of the Monterey Regional Water Pollution Control Agency (MPWPCA) Ground Water Replenishment Project (GWR). - Cullem

  • 4. Approve extension of deadline for Fiscal Year 2012-13 Financial Report and Full Opinion Audit to December 31, 2013, and authorize a time extension of the contract with McGilloway, Ray, Brown and Kaufman to March 31, 2014. - Cullem

  • 5. Discuss and Approve a Contract Change Order with Separation Processes, Inc. to Increase the Contract Amount to Not-to-Exceed $36,000, and Extend the Completion Date to March 31, 2014. - Cullem

  • 6. Adoption of Resolution 2013-01, Approving Donald G. Freeman as Legal Counsel through December 31, 2014 and Authorizing the Authority President to Execute a contract with Perry Freeman. - Cullem

ADJOURNMENT

Thursday, November 14, 2013

Thursday, November 14, 2013 The Monterey Peninsula Regional Water Authority is committed to include the disabled

The Monterey Peninsula Regional Water Authority is committed to include the disabled in all of its services, programs and activities. For disabled access, dial 711 to use the California Relay Service (CRS) to speak to staff at the Monterey City Clerk’s Office, the Principal Office of the Authority. CRS offers free text-to-speech, speech-to-speech, and Spanish-language services 24 hours a day, 7 days a week. If you require a hearing amplification device to attend a meeting, dial 711 to use CRS to talk to staff at the Monterey City Clerk’s Office at (831) 646-3935 to coordinate use of a device or for information on an agenda.

Agenda related writings or documents provided to the MPRWA are available for public inspection during the meeting or may be requested from the Monterey City Clerk’s Office at 580 Pacific St, Room 6, Monterey, CA 93940. This agenda is posted in compliance with California Government Code Section 54954.2(a) or Section 54956.

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Monterey Peninsula Regional Water Authority Agenda Report

Date: November 14, 2013

Item No:

2.

FROM:

Clerk Milton

SUBJECT:

Receive Update and Discuss Presentation Regarding the Monterey Peninsula Water Supply Project

DISCUSSION:

There is no staff report for this item. A presentation and discussion will take place at the meeting.

08/12

Monterey Peninsula Regional Water Authority Agenda Report

Date: November 14, 2013

Item No:

3.

FROM:

Executive Director Cullem

SUBJECT:

Water Authority Support for Ground Water Replenishment (GWR)

RECOMMENDATION:

It is recommended that the MPRWA Receive, update, discuss, and provide direction on a work plan for Water Authority support of the Monterey Regional Water Pollution Control Agency (MPWPCA) Ground Water Replenishment Project (GWR).

DISCUSSION:

Ground Water Replenishment (GWR) is a significant potential water source consistent with the Water Authority’s policy of pursuing a “Portfolio Approach” to satisfy the water needs of the Monterey Peninsula. GWR is now included in the settlement agreements on the Cal-Am Monterey Peninsula Water Project (MPWSP) conducted by the CPUC this past summer.

As directed by the Water Authority Board, the TAC discussed issues related to GWR at its meetings of July 15, 2013 and November 4, 2013. The purpose of the TAC meetings was to develop recommendations with respect to cost, scheduling, and reliability/availability of source and product water from the GWR project. Additional TAC meetings on these subjects will be on- going.

At its meeting on October 10, 2013, the Water Authority Board directed staff to develop a concrete work plan for Water Authority support of the GWR. As starting point for that effort, Keith Isreal sent a letter on November 7, 2013 delineating those issues that the MPWPCA could use Water Authority assistance and support. That letter is attached.

ATTACHMENTS:

Keith Isreal letter dated November 7, 2013.

06/12

mRIJJPC
mRIJJPC
Monterey Regional Water Pollution Control Agency Dedicated to meeting The wastawa tar and reclamation needs of
Monterey Regional Water
Pollution
Control Agency
Dedicated to meeting The wastawa tar and reclamation needs
of our member agencies. whit a protecting the environment.
Administration Office: 5 Harris Court, Bldg. D, Monterey, CA 93940-5756 (831) 372-3367 or 422-1001, FAX: (831)
Administration Office:
5 Harris Court, Bldg. D, Monterey, CA 93940-5756
(831) 372-3367 or 422-1001,
FAX:
(831) 372-6178
Website: www.rnrwpca.orq
November 7, 2013
Monterey Peninsula Regional Water Authority (MPRWA) 580 Pacific St. Monterey, CA 93940 Dear MPRWA, Per your
Monterey Peninsula Regional Water Authority (MPRWA)
580 Pacific St.
Monterey, CA 93940
Dear MPRWA,
Per your request, and as discussed
at
the
November 4, 2013 MPRWA TAC
meeting, below are the areas where the Water Authority assistance would be
helpful in moving the Groundwater Replenishment Project forward:
Source Water Agreements
Public Outreach Program
Participation in key discussions with regulatory agencies
• Support of project funding via the 2014 water bond
• Assistance in the planning of the externalities study
Thank you for your consideration.
questions.
Please call me
if you
have any additional
Sincerely,
Keith Israel
General Manager

Monterey Peninsula Regional Water Authority Agenda Report

Date: November 14, 2013

4.

Item No:

FROM:

Executive Director Cullem

SUBJECT:

Approve extension of deadline for Fiscal Year 2012-13 Financial Report and Full Opinion Audit to December 31, 2013, and authorize a time extension of the contract with McGilloway, Ray, Brown and Kaufman to March 31, 2014.

RECOMMENDATION:

It is recommended that the MPRWA approve an extension of deadline for Fiscal Year 2012-13 Financial Report and Full Opinion Audit to December 31, 2013, and authorize a time extension of the contract with McGilloway, Ray, Brown and Kaufman to March 31, 2014.

DISCUSSION:

At its meeting on June 13, 2013, the Water Authority Board approved a staff recommendation to allow completion of the Financial Annual Report and a Full Opinion Audit for FY 2012-13, as required by Water Authority Bylaws sections 6.3 and 6.4.1, to be completed concurrently with that of the Member City conducting the Authority audit. However, staff subsequently determined it would create less of a potential conflict of interest to select a firm not currently auditing member cities. This decision resulted in a delay in selecting the firm.

Following an informal solicitation for proposals, the Executive Director selected McGilloway, Ray, Brown and Kaufman for the audit. The Water Authority was advised of the selection at its meeting of October 10 th . The contract was executed on October 31, 2013.

Although the contract completion date for the audit and annual report is December 6, 2013, the amount of work needed to complete them will necessitate an extension of the December 1 deadline for completion of the annual report as required by Bylaws section 6.4.1.

A time extension for report completion to Dec 31, 2013 will allow additional time should an unanticipated problem develop during this initial audit. In addition, an extension of the contract completion date to March 31, 2014 will give us room for any unanticipated audit follow-up after the reports have been completed.

ATTACHMENTS:

McGilloway, Ray, Brown and Kaufman contract dated October 31, 2013

06/12

MONTEREY PENINSULA REGIONAL WATER AUTHORITY

October 15, 2013

7/1

rlikg'^

Ptak *me

NeY

Ms. Patricia M. Kaufman CPA McGilloway, Ray, Brown, Kaufman 2511 Garden Road, Suite A180 Monterey, CA 93940-3437

Subject: Selection of Audit Services

Dear Ms. Kaufman:

Directors:

Chuck Della Sala, President. Jason Burnett, Vice President Ralph Rubio, Secretary Jerry Edelen, Treasurer Bill Kampe, Director David Pendergrass, Director

Executive Director:

James M. Cullem, P.E.

Congratulations! The Water Authority has accepted your proposal to provide Audit Services for The Monterey

Peninsula Regional Water Authority.

The Authority received three proposals, yours included. However, we believe your firm is best positioned support to complete its first audit in a timely manner and at a reasonable cost.

to

Although the current deadline for a CPA prepared certified annual

report and a 1st Full Opinion Audit for FY 2013

Accordingly, I have adjusted

is December l g, I am hopeful of getting that deadline extended until January

the contract completion date to Dec 6 th so we have time to review the documents at the staff level and to

prepare a staff report for the Water Authority Board meeting later in December.

A draft copy of the contract is enclosed herewith. Please review and return with your engagement

letter. Please

identify any issues between the two that we need to resolve before executing like to sign off by Oct 18.

the contract. If possible, I would

Should you have any questions, please do not hesitate to contact me at my cell phone 831-241-8503.

cullem@monterey.org

or contact me on

Sincerely,

;

j,It4esM. Cullem P.E. /Executive Director MPRWA

End: Contract

580 PACIFIC ST, ROOM 6 MONTEREY CALIFORNIA 93940

www.mprwa.org.

CONTRACT FOR PROFESSIONAL SERVICES Water Authority Audit Agreement

THIS AGREEMENT

is executed this 1‘ day of

C ---618612--

, 2013, by and between

the Monterey Peninsula Regional Water Authority, a municipal corporation, hereinafter called "Authority", and McGilloway, Ray, Brown, Kaufman, hereinafter called "Consultant".

IT IS HEREBY MUTUALLY AGREED AS FOLLOWS:

1.

Scope.

Consultant hereby agrees to provide to the Authority, as the

scope of

services under this Agreement, the following services: Audit Services, as further described on the following attachment: the Consultant's Proposal dated October 7, 2013 (attached hereto as Exhibit "A").

  • 2. Timely Work.

Consultant shall perform all tasks in a timely fashion, as set forth

more specifically in paragraph 3 below. Failure to so perform is hereby deemed a material breach of this Agreement, and Authority may terminate this Agreement with no further liability hereunder, or may agree in writing with Consultant to an extension of time.

  • 3. Term. The work under this Agreement shall commence October 15, 2013 and

shall be completed by December 6, 2013 unless Authority grants forth in paragraph 2 above.

a written extension of time as

  • 4. Compensation.

Authority agrees to pay and Consultant agrees to accept as full

and fair consideration for the performance of this Agreement, an hourly fee as set forth in

Consultant's Proposal (Exhibit A), in a total amount not to exceed Five Thousand Nine Hundred Dollars ($5900.00). Compensation under this Agreement shall become due and payable 30 days after Authority's approval of Consultant's submission of a written invoice to the Authority Executive Director. Written invoices shall clearly show the account numbers for each project

and shall include a copy of timesheets or invoices from sub-consultants.

The payment of any

compensation to Consultant hereunder shall be contingent upon performance of the terms and

conditions of this Agreement to the satisfaction of the Authority. If Authority determines that the

work set forth in the written invoice has not been performed

in accordance with the terms of this

Agreement, Authority shall not be responsible for payment until such time as the work has been satisfactorily performed.

  • 5. Additional Services.

In the event that Authority should request additional

services not covered by the terms of this Agreement, said services will be provided by Consultant and paid for by Authority only after a fee for said services has been agreed upon

between Consultant and Authority Executive Director and the Authority Director provides written authorization for the additional work.

  • 6. Schedule for Performing Services.

For the project subject to this Agreement,

Consultant shall perform the services in accordance with the following phases and/or milestone dates: Completion of 2013 Audit by close of business December 6, 2013.

T00008-CA (v. 1.0- 06/04/2013)

7.

Staffing Plan. Consultant shall provide Authority with the names of the key

professional personnel assigned to perform the services under this Agreement as well as a

general description of the services they will be assigned to perform.

  • 8. Subconsultant Plan. N/A

  • 9. Meet and Confer. Consultant agrees to meet and confer with Authority or its

agents or employees with regard to services as set forth herein as may be required by Authority to insure timely and adequate performance of this Agreement.

  • 10. Indemnification. Consultant hereby agrees to the following indemnification

clause:

To the fullest extent permitted by law (including, without limitation, California Civil Code Sections 2782 and 2782.6), Consultant shall defend (with legal counsel reasonably acceptable to the Authority), indemnify and hold harmless the Authority and its officers, designated agents, departments, officials, representatives and employees (collectively "Indemnitees") from and against claims, loss, cost, damage, injury expense and liability (including incidental and consequential damages, court costs, reasonable attorneys' fees, litigation expenses and fees of expert consultants or expert witnesses incurred in connection therewith and costs of investigation) to the extent they arise out of, pertain to, or relate to, the negligence, recklessness, or willful misconduct of Consultant, any Subconsultant, anyone directly or indirectly employed by them, or anyone that they control (collectively "Liabilities"). Such obligations to defend, hold harmless and indemnify any Indemnitee shall not apply to the extent that such Liabilities are caused in part by the negligence, or willful misconduct of such Indemnitee.

Notwithstanding the provisions of the above paragraph, Consultant agrees to indemnify and hold harmless the Authority from and against any and all claims, demands, defense costs, liability, expense, or damages arising out of or in connection with damage to or loss of any property belonging to Consultant or Consultant's employees, contractors, representatives, patrons, guests or invitees.

Consultant further agrees to indemnify Authority for damage to or loss of Authority property to the proportionate extent they arise out of Consultant's negligent performance of the work associated with this agreement or to the proportionate extent they arise out of any negligent act or omission of Consultant or any of Consultant's employees, agents, contractors, representatives, patrons, guests or invitees; excepting such damage or loss arising out of the negligence of the Authority

  • 11. Insurance. Consultant shall submit and maintain in full force all insurance as

described herein. Without altering or limiting Consultant's duty to indemnify, Consultant shall maintain in effect throughout the term of this Agreement a policy or policies of insurance with the following minimum limits of liability:

Commercial general liability insurance including but not limited to premises, personal injuries, bodily injuries, products, and completed operations, with a combined single limit of not less than $1,000,000 per occurrence and $2,000,000 in the aggregate.

Professional Liability Insurance. Consultant shall maintain in effect throughout the term of this Agreement professional liability insurance with limits of not less than $1,000,000

2

per claim and $2,000,000 in the aggregate. Consultant will either maintain or cause to be

maintained professional liability coverage in full force or obtain extended reporting (tail)

coverage (with the same liability limits) for at least three years following City's

acceptance of the work.

Commercial automobile liability insurance covering all automobiles, including owned,

leased, non-owned, and hired automobiles, used in providing services under this

Agreement, with a combined single limit of not less than $1,000,000

per occurrence.

Workers' Compensation Insurance. If Consultant employs others in the performance of

this Agreement, Consultant shall maintain workers' compensation

insurance in

accordance with California Labor Code section 3700 and with a minimum of $100,000

per occurrence for employer's liability.

Other Insurance Requirements

A.

 

All insurance required under this Agreement must be written by an insurance

 

company either:

 

admitted to do business in California with a current A.M. Best rating of no

 

less than A:VI;

 

or

 

an insurance company with a current A.M. Best rating of no less than A:

 

VII.

Exception may be made for the State Compensation Insurance Fund when not specifically rated.

B.

 

Each insurance policy required by this agreement shall be endorsed to state

 

that City of Monterey shall be given notice in writing at least thirty days in

advance of any cancellation thereof, except 10-day notice for nonpayment of

the premium.

 

C.

 

The general liability and auto policies shall:

 
 

Provide an endorsement naming the Authority, its officers, officials, and

 

employees as additional insureds under an ISO CG 20 10 07 04 or ISO 20 37

07 04 or their equivalent.

 
 

Provide that such insurance is primary and non-contributing insurance or self-insurance maintained by the Authority.

insurance to any

Contain a "Separation of Insureds" provision substantially equivalent

 

to that used in the ISO form CG 00 01 10 01 or their

equivalent.

 
 

Provide for a waiver of any subrogation rights against the Authority via an

 

ISO CG 24 01

10 93 or its equivalent.

D.

Prior to the start of work under this Agreement, Consultant

shall file

certificates of insurance and endorsements evidencing the coverage required

3

by this agreement with the Authority. Consultant shall file a new or amended certificate of insurance promptly after any change is made in any insurance policy which would alter the information on the certificate then on file.

  • E. Neither the insurance requirements hereunder, nor acceptance or approval of Consultant's insurance, nor whether any claims are covered under any insurance, shall in any way modify or change Consultant's obligations under the indemnification clause in this Agreement, which shall continue in full force and effect. Notwithstanding the insurance requirements contained herein, Consultant is financially liable for its indemnity obligations under this Agreement.

  • F. Any deductibles or self-insured retentions must be declared to and approved by the Authority. At the option of the Authority, either: the insured shall reduce or eliminate such deductibles or self-insured retentions as respects the Authority, its officers, officials, employees and volunteers; or Consultant shall provide a financial guarantee satisfactory to the Authority guaranteeing payment of losses and related investigations, claim administration, and defense expenses.

  • 12. Ownership of Work and Copyrights. Upon completion of the work under this

Agreement, ownership, title and copyrights to all materials and deliverables produced as part of this Agreement will automatically be vested in the Authority and no further agreement will be necessary to transfer ownership to Authority.

  • 13. Licensing — Standard of Care. Consultant represents as follows: that it is

experienced in the professional services and a specialist in the work performed under this Agreement; is duly organized, existing and in good standing under applicable state law; and is properly licensed and/or certified to perform the work specified under this Agreement, including but not limited to possession of a current City of Monterey business license, and will only employ persons and subconsultants with all required licenses and certifications.

  • 14. Substitution of Consultant Personnel. The key personnel of Consultant or any

subconsultants listed in Consultant's proposal and assigned to perform the work under this

Agreement may not be substituted with or replaced by other personnel or subconsultants without the advance written consent of Authority.

  • 15. Termination. Authority may terminate this Agreement upon ten days' written

notice. The amount of damages, if any, as a result of such termination may be decided by

negotiations between the parties or before a court of competent jurisdiction.

  • 16. Agency. In performing the services specified under this Agreement, Consultant

is hereby deemed to be an independent Consultant and not an agent or employee of Authority.

  • 17. Entire Agreement. This Agreement constitutes the entire Agreement between the

parties hereto and supersedes any and all prior agreements, whether oral or written, relating to the subject matter thereof. Any modification of this Agreement will be effective only if it is in writing signed by both parties hereto.

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18.

Validity. If any provision in this Agreement is held by a court of competent

jurisdiction to be invalid, void or unenforceable, the remaining provisions will continue in full force without being impaired or invalidated in any way.

  • 19. Assignment of Interest. The duties under this Agreement shall not be assignable,

delegable, or transferable without the prior written consent of Authority. Any such purported

assignment, delegation, or transfer shall constitute a material breach of this Agreement upon

which Authority may terminate this Agreement and be entitled to damages.

  • 20. Conflict of Interest. Consultant hereby certifies that it does not now have, nor

shall it acquire any financial or business interest that would conflict with the performance of services under this Agreement.

  • 21. Counterparts. This Agreement may be executed in multiple originals, each of

which is deemed to be an original, and may be signed in counterparts.

  • 22. Laws. Consultant agrees that in the performance of this Agreement it will

reasonably comply with all applicable State, Federal and local laws and regulations. This

Agreement shall be governed by and construed in accordance California and the City of Monterey.

with the laws of the State of

IN WITNESS WHEREOF, this Agreement is entered into by the parties hereto on the

day and year first above written in Monterey, California.

AUTHORITY

./

Cullem, Executive Director

CONSULTANT

Patricia Kaufman,

McGilloway, Ray, Brown, Kaufman

5

Monterey Peninsula Regional Water Authority Agenda Report

Date: November 14, 2013

5.

Item No:

FROM:

Executive Director Cullem

SUBJECT:

Contract Change Order for Engineering Support Services with Separation Processes, Inc (SPI)

RECOMMENDATION:

Staff recommends that the Water Authority approve a contract change order with SPI to include all three (3) phases of Consultant Support Services for the MPWSP design-build (DB) selection process.

DISCUSSION:

In mid-October, Cal-Am offered the Governance Committee an opportunity to provide consultant services for participation in the selection process for Cal-Am’s design-build (DB) contractor. Interviews were scheduled for 5-6 November. Time was of the essence, and the Water Authority was in a position to meet and award the contract for consultant services, on behalf of the Governance Committee, more quickly than the other two public agencies on the Committee. Accordingly, at a special meeting on October 31, the Water Authority approved a contract with Separation Processes, Inc. for those services.

At this time, contract costs are estimated at $30,000 for labor, $4000 for direct overhead including travel, and $2000 for a project contingency for a total of $36,000. Contract costs are to be shared equally ($12,000 each) amongst the public members of the Governance Committee, i.e. the Monterey Peninsula Water Management District (MPWMD), Monterey County, and the Water Authority.

Since the Authority did not have confirmation from MPWMD or the County that they would contribute their fair share at the time of contract approval, the contract was awarded for Phase 1 of the work at a not-to-exceed price of $12,000, the Water Authority’s share, with a completion date of December 31.

SPI is nearing completion of Phase 1 and needs a change order, as permitted by contract Section 5, Additional Services, to proceed to Phases 2 and 3 which are fast approaching (18-20 November).

At this time, the Executive Director is comfortable with assurances from MPWMD and the County staff that they will reimburse their fair share to the Water Authority as soon as the issue can be agendized for their Board approval. Accordingly, the Director recommends the Water Authority approve a change order for SPI to proceed with Phases 2 and 3, increases the not-to- exceed price to $36,000, and extends the contract duration to 31 March 2014.

08/12

ATTACHMENT:

SPI contract dated 4 November 2013

CONTRACT FOR PROFESSIONAL SERVICES

Agreement for Consultant Support Services

THIS AGREEMENT is executed this 5th day of November, 2013, by and between the Monterey Peninsula Regional Water Authority, a municipal corporation, hereinafter called "Authority", and Separation Processes, Inc, hereinafter called "Consultant".

IT IS HEREBY MUTUALLY AGREED AS FOLLOWS:

  • 1. Scope. Consultant hereby agrees to provide to the Authority, as the scope of

services under this Agreement, the following services: Consultant Support Services, Phase

1,

as further described on the following attachment: Scope of Services (attached hereto as Exhibit

  • 2. Timely Work. Consultant shall perform all tasks in a timely fashion, as set forth

more specifically in paragraph 3 below. Failure to so perform is hereby deemed a material breach of this Agreement, and Authority may terminate this Agreement with no further liability hereunder, or may agree in writing with Consultant to an extension of time.

  • 3. Term. The work under this Agreement shall commence November 5, 2013 and

shall be completed by December 31, 2013 unless Authority grants a written extension of time as forth in paragraph 2 above.

  • 4. Compensation. Authority agrees to pay and Consultant agrees to accept as full

and fair consideration for the performance of this Agreement, an hourly fee as set forth in

Consultant's Proposal (Exhibit B), in a total amount not to exceed Ten Thousand Dollars ($10,000.00) plus travel expenses up to $2000. Compensation under this Agreement shall become due and payable 30 days after Authority's approval of Consultant's submission of a written invoice to the Authority Executive Director. Written invoices shall clearly show the account numbers for each project and shall include a copy of timesheets or invoices from sub- consultants. The payment of any compensation to Consultant hereunder shall be contingent upon performance of the terms and conditions of this Agreement to the satisfaction of the Authority. If Authority determines that the work set forth in the written invoice has not been performed in accordance with the terms of this Agreement, Authority shall not be responsible for payment until such time as the work has been satisfactorily performed.

  • 5. Additional Services. In the event that Authority should request services identified

as Phase 2 and/or Phase 3 in Exhibits A and B, or for additional services not covered by the terms of this Agreement, said services will be provided by Consultant and paid for by Authority only after a fee for said services has been agreed upon between Consultant and Authority Executive Director and the Authority Director provides written authorization for the additional work.

  • 6. Meet and Confer. Consultant agrees to meet and confer with Authority or its

agents or employees with regard to services as set forth herein as may be required by Authority to insure timely and adequate performance of this Agreement.

T00008-CA (v 1.0 - 06/04/2013)

7.

Indemnification. Consultant hereby agrees to the following indemnification

clause:

To the fullest extent permitted by law (including, without limitation, California Civil Code Sections 2782 and 2782.6), Consultant shall defend (with legal counsel reasonably acceptable to the Authority), indemnify and hold harmless the Authority and its officers, designated agents, departments, officials, representatives and employees (collectively "Indemnitees") from and against claims, loss, cost, damage, injury expense and liability (including incidental and consequential damages, court costs, reasonable attorneys' fees,

litigation expenses and fees of expert consultants or expert witnesses incurred in connection therewith and costs of investigation) to the extent they arise out of, pertain to, or relate to, the negligence, recklessness, or willful misconduct of Consultant, any Subconsultant, anyone

directly or indirectly employed by them, or anyone that they control (collectively

"Liabilities").

Such obligations to defend, hold harmless and indemnify any Indemnitee shall not apply to the

extent that such Liabilities are caused in part by the negligence, or willful misconduct of such lndemnitee.

Notwithstanding the provisions of the above paragraph, Consultant agrees to indemnify and hold harmless the Authority from and against any and all claims, demands, defense costs,

liability, expense, or damages arising out of or in connection with damage to or loss of any

property belonging to Consultant or Consultant's employees, contractors, patrons, guests or invitees.

representatives,

Consultant further agrees to indemnify Authority for damage to or loss of Authority property to the proportionate extent they arise out of Consultant's negligent performance of the work associated with this agreement or to the proportionate extent they arise out of any negligent act or omission of Consultant or any of Consultant's employees, agents, contractors, representatives, patrons, guests or invitees; excepting such damage or loss arising out of the negligence of the Authority

  • 8. Insurance. Consultant shall submit and maintain in full force all insurance as

described herein. Without altering or limiting Consultant's duty to indemnify, Consultant shall maintain in effect throughout the term of this Agreement a policy or policies of insurance with the following minimum limits of liability:

Commercial qeneral liability insurance including but not limited to premises, personal injuries, bodily injuries, products, and completed operations, with a combined single limit of not less than $1,000,000 per occurrence and $2,000,000 in the aggregate.

Professional Liability Insurance: Consultant shall maintain in effect throughout the term of this Agreement professional liability insurance with limits of not less than $1,000,000

per claim and $2,000,000 in the aggregate. Consultant will either maintain or cause to be maintained professional liability coverage in full force or obtain extended reporting (tail)

coverage (with the same liability limits) for at least three years following acceptance of the work.

Authority's

Commercial automobile liability insurance covering all automobiles, including owned, leased, non-owned, and hired automobiles, used in providing services under this Agreement, with a combined single limit of not less than $1,000,000 per occurrence.

2

Workers' Compensation Insurance: If Consultant employs others in the performance of

this Agreement, Consultant shall maintain workers' compensation

insurance in

accordance with California Labor Code section 3700 and with a minimum of $100,000

per occurrence for employer's liability.

Other Insurance Requirements

  • A. All insurance required under this Agreement must be written by an insurance

 

company either:

admitted to do business in California with a current A.M. Best rating of no

less than A:VI;

or

an insurance company with a current A.M. Best rating of no less than A:

VII.

Exception may be made for the State Compensation Insurance Fund when not specifically rated.

  • B. Each insurance policy required by this agreement shall be endorsed to state that Monterey Peninsula Regional Water Authority shall be given notice in writing at least thirty days in advance of any cancellation thereof, except 10- day notice for nonpayment of the premium.

  • C. The general liability and auto policies shall:

Provide an endorsement naming the Authority, its officers, officials, and employees as additional insureds under an ISO CG 20 10 07 04 or ISO 20 37 07 04 or their equivalent.

Provide that such insurance is primary and non-contributing insurance to any insurance or self-insurance maintained by the Authority.

Contain a "Separation of Insureds" provision substantially equivalent to that used in the ISO form CG 00 01 10 01 or their equivalent.

Provide for a waiver of any subrogation rights against the Authority via an

ISO CG 24 01

10 93 or its equivalent.

  • D. Prior to the start of work under this Agreement, Consultant shall file certificates of insurance and endorsements evidencing the coverage required

by this agreement with the Authority. Consultant shall file a new or amended certificate of insurance promptly after any change is made in any insurance

policy which would alter the information on the certificate

then on file.

  • E. Neither the insurance requirements hereunder, nor acceptance or approval of Consultant's insurance, nor whether any claims are covered under any insurance, shall in any way modify or change Consultant's

obligations under

the indemnification clause in this Agreement, which shall continue in full force

and effect. Notwithstanding the insurance requirements contained herein,

3

Consultant is financially liable for its indemnity obligations under this Agreement.

  • F. Any deductibles or self-insured retentions must be declared to and approved by the Authority. At the option of the Authority, either: the insured shall reduce or eliminate such deductibles or self-insured retentions as respects the Authority, its officers, officials, employees and volunteers; or Consultant shall provide a financial guarantee satisfactory to the Authority guaranteeing payment of losses and related investigations, claim administration, and defense expenses.

  • 9. Ownership of Work.

Upon completion of the work under this Agreement,

ownership, and title to all materials and deliverables produced as part of this Agreement will automatically be vested in the Authority and no further agreement will be necessary to transfer ownership to Authority.

  • 10. Licensing.

Consultant represents as follows: that it is experienced in the

professional services and a specialist in the work performed under this Agreement; is duly

organized, existing and in good standing under applicable state law; and is properly licensed

and/or certified to perform the work specified under this Agreement, including but not limited to possession of a current City of Monterey business license, and will only employ persons and

subconsultants with all required licenses and certifications.

  • 11. Substitution of Consultant Personnel.

The key personnel of Consultant or any

sub-consultants listed in Consultant's proposal and assigned to perform the work under this

Agreement may not be substituted with or replaced by other personnel or sub-consultants without the advance written consent of Authority.

  • 12. Termination.

Authority may terminate this Agreement upon ten days' written

notice. The amount of damages, if any, as a result of such termination may be decided by negotiations between the parties or before a court of competent jurisdiction.

  • 13. Agency.

In performing the services specified under this Agreement, Consultant

is hereby deemed to be an independent Consultant and not an agent or employee of Authority.

  • 14. Entire Agreement.

This Agreement constitutes the entire Agreement between the

parties hereto and supersedes any and all prior agreements, whether oral or written, relating to the subject matter thereof. Any modification of this Agreement will be effective only if it is in writing signed by both parties hereto.

  • 15. Validity.

If any provision in this Agreement is held by a court of competent

jurisdiction to be invalid, void or unenforceable, the remaining provisions will continue in full

force without being impaired or invalidated in any way.

  • 16. Assignment of Interest.

The duties under this Agreement shall not be assignable,

delegable, or transferable without the prior written consent of Authority. Any such purported

assignment, delegation, or transfer shall constitute a material breach of this Agreement upon which Authority may terminate this Agreement and be entitled to damages.

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17.

Conflict of Interest. Consultant hereby certifies that it does not now have, nor

shall it acquire, any financial or business interest that would conflict with the performance of services under this Agreement.

  • 18. Counterparts. This Agreement may be executed in multiple originals, each of

which is deemed to be an original, and may be signed in counterparts.

  • 19. Laws. Consultant agrees that in the performance of this Agreement it will

reasonably comply with all applicable State, Federal and local laws and regulations.

This

Agreement shall be governed by and construed in accordance with the laws of the State of California and the City of Monterey.

  • 20. Venue. Should either party to this agreement bring legal action against the other

(formal judicial proceeding, mediation, or arbitration) the venue for the matter shall be Monterey County, California.

IN WITNESS WHEREOF, this Agreement is entered into by the parties hereto on the day and year first above written in Monterey, California.

AUTHORITY

xeoutive Director

CONSULTANT

&A .

Condtfltarit Name

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EXHIBIT A - SCOPE OF SERVICES

The Scope of Services for this Agreement between The Monterey Peninsula Water Management District and Separation Processes, Inc. for Consultant Support Services shall include the following:

PHASE 1:

Consultant shall enter into a Non-Disclosure Agreement with Cal-Am that shall provide that Consultant shall not disclose any confidential information (as defined in the Non-

Disclosure Agreement) concerning Cal-Am' s process for the selection of a design-build contractor ("DB Contractor") by Cal-Am and development of a draft design-build contract ("DB Contract") for the construction of Cal-Am' s desalination plant as part of the Monterey Peninsula Water Supply Project ("MPWSP"), except with respect to consultation with Jason Burnett and David Stoldt provided that they have also entered into the Non-Disclosure Agreement with Cal-Am, until such time as a draft Design-Build

Contract is presented to the Governance Committee overseeing the Monterey Peninsula Water Supply Project for review and recommendation.

Consultant shall review background documents pertaining to the DB Contractor selection process provided by Cal-am.

Consultant shall attend interviews with finalist for award of the DB Contract scheduled for November 5 and 6, 2013 as well as a post-interview debriefing with Cal-Am scheduled for November 7, 2013, and shall provide insights and recommendation stemming from the interviews to Cal-Am.

Consultant shall communicate with Cal-Am as necessary throughout the interview process. All written correspondence shall be made by electronic mail to Richard Svindland of Cal-Am, with copy to Anthony Cerasuolo and Lori Girard.

Consultant shall regularly update and solicit feedback from Jason Burnett and David

Stoldt throughout the interview process, and as instructed by either of them, communicate questions and recommendations to Cal-Am.

PHASE 2:

Consultant shall attend negotiations in November and December pertaining to the development of a recommended DB Contract held between Cal-Am and the selected preferred DB Contractor, and shall provide insights and recommendation stemming from the negotiations to Cal-Am.

Consultant shall communicate with Cal-Am as necessary throughout the negotiation process. All written correspondence shall be made by electronic mail to Richard Svindland of Cal-Am, with copy to Anthony Cerasuolo and Lori Girard.

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Consultant shall regularly update and solicit feedback from Jason Burnett and David Stoldt throughout the negotiation process, and as instructed by either of them, communicate questions and recommendations to Cal-Am.

PHASE 3:

Once a draft DB Contract is presented to the Governance Committee overseeing

the

Monterey Peninsula Water Supply Project for review and recommendation, Consultant shall timely prepare and present to the Governance Committee a short written summary

of Consultant's pertinent findings, observations, issues, and recommendations concerning the selected DB Contractor and draft DB Contract.

Consultant shall attend at least one meeting of the Governance Committee to present Consultant's summary of pertinent findings, observations, issues, and recommendations concerning the selected DB Contractor and draft DB Contract and to answer questions and discuss the matter with the Governance Committee.

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Monterey Peninsula Regional Water Authority Agenda Report

Date: November 14, 2013

6.

Item No:

FROM:

Executive Director Cullem

SUBJECT:

Adoption of Resolution 2013-01, Approving Donald G. Freeman as Legal Counsel through December 31, 2014 and Authorizing the Authority President to Execute a contract with Perry Freeman Accordingly

RECOMMENDATION:

It is recommended that the Monterey Peninsula Regional Water Authority (MPRWA) adopt Resolution 2013-01 approving Donald G. Freeman as legal counsel through December 31, 2014 and authorizing the Authority President to execute a contract with Perry Freeman accordingly.

DISCUSSION:

Following a formal Request for Qualifications (RFQ) for legal services for the Water Authority conducted during August and September 2012, an Ad-Hoc committee of the MPRWA recommended selection of Perry and Freeman (Donald G. Freeman). On September 27, 2012, the Water Authority adopted a resolution selecting Mr. Freeman to be legal counsel. On December 10, 2012, Mr. Freeman provided the Water Authority with waivers of conflict of interest from all other participating jurisdictions to which he has professional, contractual obligations.

Since the California Public Utilities Commission (CPUC) process for considering the Cal-Am proposal for the Monterey Peninsula Water Supply Project (MPWSP) is at a critical stage and involves a substantial amount of attorney involvement, the Executive Director recommends the Authority maintains continuity with Donald G. Freeman, at least through 31 December 2014.

The adopted budget for FY 2013-14 includes $60,000 for Legal Counsel which should be adequate for services through June 30, 2014, by which time a new budget for FY 2014-15 will have been adopted.

Resolution 2013-01 approves an extension of Don G. Freeman as Authority legal counsel through December 31, 2014 and authorizing the Authority President to execute a contract with Perry Freeman accordingly.

ATTACHMENTS:

Resolution 2013-01

Sample contract for legal services

06/12

MPRWA RESOLUTION NO. 2013- __

A RESOLUTION OF THE MONTEREY PENINSULA REGIONAL WATER AUTHORITY ACKNOWLEDGING DONALD G. FREEMAN AS LEGAL COUNSEL FOR THE MONTEREY PENINSULA REGIONAL WATER AUTHORITY AND AUTHORIZING THE PRESIDENT TO EXTEND A CONSENT AND WAIVER OF CONFLICT OF INTEREST

WHEREAS, Donald G. Freeman has been requested to continue to represent the Monterey Peninsula Regional Water Authority (MPRWA);

WHEREAS, Donald G. Freeman is currently the City Attorney for the City of Seaside and the City of Carmel-by-the-Sea;

WHEREAS, Donald G. Freeman and MPRWA recognize the potential conflict of interest which may arise as a result of Donald G. Freeman’s legal representation of MPRWA, City of Seaside, and the City of Carmel-by-the-Sea;

WHEREAS, MPRWA wishes to acknowledge Donald G. Freeman as legal counsel for MPRWA;

WHEREAS, the President of MPRWA and members of the MPRWA Board of Directors have reviewed a letter from Donald G. Freeman dated November 20, 2012, indicating that Mr. Freeman does not believe that his legal services for the Monterey Peninsula Regional Water Authority will have any impact on his full and effective representation of each party, and does not believe he has knowledge of any confidential information from any party which would be material or relevant to his representation of MPRWA, the City of Seaside, and the City of Carmel-by-the-Sea;

WHEREAS, Donald G. Freeman recognizes that by concurrently representing the MPRWA, the City of Seaside, and the City of Carmel-by-the-Sea an issue of divided loyalty, such as in litigation, could possibly arise at some future date, and that at that time it could be necessary for him to make full disclosure to all parties, could be subject to disqualification from representing any party, and at such time it would be necessary for each party to seek independent legal counsel;

WHEREAS, the City of Carmel-by-the-Sea and the City of Seaside have passed their respective Resolutions and their respective Mayors have executed the Consent and Waiver of Conflict of Interest;

WHEREAS, the President and Board of Directors have reviewed this request with independent legal counsel;

WHEREAS, according to Rule 3-310 of the California Rules of Professional Conduct applicable to California lawyers which requires informed written consent of all represented parties because of concurrent representation, MPRWA recognizes that Donald G. Freeman is the City Attorney for the City of Seaside, and for the City of Carmel-by-the-Sea;

WHEREAS, the Board of Directors has been fully satisfied with the performance of

Donald G. Freeman during

the

period of

his tenure as Authority legal Counsel between

September 27, 2012 and the present;

WHEREAS, due to the critical nature of on-going legal activities associated with the CPUC consideration of the California American Water application for the Monterey Peninsula Water Project, the Board of Directors finds that the public interest is better served by renewing Donald G. Freeman’s contract at this time than to re-advertise a request for proposal for legal services and;

WHEREAS Board of Directors wishes to authorize the President to extend a Consent and Waiver of Conflict of Interest, and hereby acknowledges Donald G. Freeman as legal counsel for the Monterey Peninsula Regional Water Authority until December 31, 2014.

NOW, THEREFORE, BE IT RESOLVED, that the President of MPRWA is hereby authorized to extend on behalf of MPRWA a Consent and Waiver of Conflict of Interest thereby acknowledging Donald G. Freeman as legal counsel for the Monterey Peninsula Regional Water Authority and authorizes the President to execute a contract with Donald G. Freeman for legal counsel services.

PASSED AND ADOPTED BY THE MONTEREY PENINSULA REGIONAL WATER

AUTHORITY this ____

day

of

201, by the following vote:

AYES:

0

DIRECTORS:

NOES:

0

DIRECTORS:

ABSENT:

0

DIRECTORS:

ABSTAIN:

0

DIRECTORS:

 

APPROVED:

ATTEST:

Chuck Della Sala, President

Clerk to the Authority

DRAFT-Nov 14, 2013

EMPLOYMENT AGREEMENT FOR LEGAL SERVICES

THIS AGREEMENT, made and entered into this

day of

, 2013, by and

_____________ between the MONTEREY PENINSULA REGIONAL WATER AUTHORITY, hereinafter “MPRWA”, and the LAW OFFICES of PERRY and FREEMAN hereinafter referred to as "Attorney", both of which understand as follows:

___

  • A. Term: The term of this Agreement shall be for one (1) year commencing December

31, 2013, and shall terminate on December 31, 2014, unless terminated pursuant to paragraph H. of

this Agreement.

  • B. Compensation. Attorney will provide legal services to MPRWA at XXXXXXX

  • C. Billing and Reimbursement of Costs. An accounting of services and hours will be

provided to MPRWA on a monthly basis. Attorney shall be reimbursed for actual out-of-pocket expenses and costs advanced or paid on behalf of the MPRWA, including court reporter fees and charges, court costs, and costs of outside investigators or experts pertaining to MPRWA litigation. Travel to conduct MPRWA related business expenses shall be billed as actual out-of-pocket costs unless otherwise negotiated. There will be no charge for actual travel time.

  • D. Ordinary Services. Legal advice and legal opinions to MPRWA as outlined in the

Amendment to Agreement for Legal Services dated XXXXX (Exhibit A to this Agreement) and

Attorney Standard Terms and Conditions (Exhibit B to this Agreement).

  • E. Extraordinary Legal Services. Preparation of complex legal documents, representing

MPRWA in court appearances, litigation, or in proceedings before other public or administrative bodies, or legal services provided to any independent or separate agency or entity of government not operated as an integral part of MPRWA.

  • F. Miscellaneous. MPRWA recognizes that Attorney is a private law practice currently

located in Carmel-By-The-Sea, California, and will retain that office as its principal place of

business. In addition, MPRWA recognizes Attorney also represents and advises other public entities upon request. Attorney will submit conflict waivers to MPRWA whenever such potential arise during the term of this contract.

  • G. Association of Special Legal Counsel. MPRWA and Attorney recognize, that from

time to time, it may become necessary to associate with special legal counsel for matters involving

litigation, labor negotiations, worker's compensation personnel or bond issue proceedings and other matters where either MPRWA Board of Directors or Attorney feel effective representation requires special legal counsel.

  • H. Termination. Either party may terminate this Agreement without cause by providing

written notice to the other party in the manner set forth in item I. of this Agreement at least 30 days prior to the effective date of termination.

  • I. Notices. All notices herein provided to be given, or which may be given by either party to the other, shall be considered fully received when made in writing and deposited in the United States mail, certified and postage prepaid, and addressed to the respective parties as follows:

MPRWA:

President, Board of Directors Monterey Peninsula Regional Water Authority 580 Pacific Street Monterey, CA 93940

ATTORNEY:

Donald G. Freeman Perry and Freeman PO Box XXX Carmel By-The-Sea, CA XXXX

  • J. Immunity. As an authorized representative of MPRWA, Attorney shall be recognized

as having rights to any immunity MPRWA is entitled to. In no event shall any duties contained in

this Agreement, or otherwise herein, negate any legal protections or immunities available to the parties under local, state or federal law.

IN WITNESS WHEREOF, MPRWA has caused this agreement to be signed and executed on its behalf by its President, and duly attested by its Clerk; and the Attorney has signed and executed this agreement in duplicate originals the day and year first hereinabove written.

MPRWA

____________________________ Chuck Della Sala, President

ATTORNEY:

_____________________ Donald G.Freeman

ATTEST:

_________________________ Clerk of the Board

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