mprwa regular meeting agenda packet 11-14-13.pdf

8/14/2019 MPRWA Regular Meeting Agenda Packet 11-14-13.pdf

1/30

AgendaMonterey Peninsula Regional Water Authority (MPRWA)

Regular Meeting

7:00 PM, Thursday, November 14, 2013

Council Chamber580 Pacific StreetMonterey, California

ROLL CALL

PLEDGE OF ALLEGIANCE

REPORTS FROM BOARD DIRECTORS AND STAFF

PUBLIC COMMENTSPUBLIC 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 personor group desiring to bring an item to the attention of the Authority may do so by addressing theAuthority 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 contactthe sender concerning the details.

APPROVAL OF MINUTES

1. October 10, 2013 - Milton

AGENDA ITEMS

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

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

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

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

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

ADJOURNMENT


2/30

Thursday, November 14, 2013

2

The Monterey Peninsula Regional Water Authority is committed to include the disabled in all ofits services, programs and activities. For disabled access, dial 711 to use the California RelayService (CRS) to speak to staff at the Monterey City Clerks Office, the Principal Office of theAuthority. CRS offers free text-to-speech, speech-to-speech, and Spanish-language services24 hours a day, 7 days a week. If you require a hearing amplification device to attend ameeting, dial 711 to use CRS to talk to staff at the Monterey City Clerks 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 publicinspection during the meeting or may be requested from the Monterey City Clerks Office at 580Pacific St, Room 6, Monterey, CA 93940. This agenda is posted in compliance with CaliforniaGovernment Code Section 54954.2(a) or Section 54956.


3/30

Monterey Peninsula Regional Water AuthorityAgenda Report

Date: November 14, 2013

Item No: 2.

08/12

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 themeeting.


4/30


5/30


Item No: 3.

06/12

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 workplan 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 theWater Authoritys policy of pursuing a Portfolio Approach to satisfy the water needs of theMonterey Peninsula. GWR is now included in the settlement agreements on the Cal-AmMonterey 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 itsmeetings of July 15, 2013 and November 4, 2013. The purpose of the TAC meetings was todevelop recommendations with respect to cost, scheduling, and reliability/availability of sourceand 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 aconcrete 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 coulduse Water Authority assistance and support. That letter is attached.

ATTACHMENTS:

Keith Isreal letter dated November 7, 2013.


6/30

Monterey Regional t erPollution ontrol gencyRJJP Dedicated to meeting The wastawa tar and reclamation needsof our member agencies. whita protecting the environment.

Administration Office:5 Harris Court Bldg. D, Monterey, CA 93940-5756831 372-3367 or 422-1001 FAX: 831 372-6178Website: www.rnrwpca.orq

November 7, 2013

Monterey Peninsula Regional Water Authority MPRWA580 Pacific St.Monterey CA 93940Dear MPRWA,Per your request and as discussed at the November 4, 2013 MPRWA TACmeeting below are the areas where the Water Authority assistance would behelpful 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. Please call me you have any additionalquestions.Sincerely

Keith IsraelGeneral Manager

oint Powers Authority Member booties:floroiida oun Sanitation 1 istricr Castrovilic ommuni Services Distnct County of Monterey Dcl Rey Oaks, Fort Ord Marina Coast Water District MontereyMoss Landing County Sanitation District Pacific Grove Salinas Sand City, and Seaside.


7/30



Item No: 4.

06/12


SUBJECT: Approve extension of deadline for Fiscal Year 2012-13 Financial Report and FullOpinion Audit to December 31, 2013, and authorize a time extension of thecontract 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 2012-13Financial Report and Full Opinion Audit to December 31, 2013, and authorize a time extensionof 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 toallow completion of the Financial Annual Report and a Full Opinion Audit for FY 2012-13, asrequired by Water Authority Bylaws sections 6.3 and 6.4.1, to be completed concurrently withthat of the Member City conducting the Authority audit. However, staff subsequently determinedit would create less of a potential conflict of interest to select a firm not currently auditingmember 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 itsmeeting of October 10th. The contract was executed on October 31, 2013.

Although the contract completion date for the audit and annual report is December 6, 2013, theamount of work needed to complete them will necessitate an extension of the December 1deadline 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 anunanticipated problem develop during this initial audit. In addition, an extension of the contractcompletion date to March 31, 2014 will give us room for any unanticipated audit follow-up afterthe reports have been completed.

ATTACHMENTS:

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


8/30

M ONTEREY PENIN SUL REGIO NL W TER UTHORIT Yrlikg ^7 Ptak me

Ne Y

October 15, 2013Ms Patricia M KaufmanCPA M cG illoway , Ray , Brown, Kaufman2511G ard en Road,SuiteA18 0Monterey CA93940-3437

Subject: SelectionofAudit Services

D irectorsChu ck Della Sala, P residentJason Burnett, VicePresidenRalph Rubio, SecretaryJerryEdelen,TreasureBill Kampe,DirectoDavid Pendergrass, DirectorE x e c u ti v e D ire ctorJamesM. Cullem, P.E

D ea r Ms. Kaufman:Congratulations The W ater Auth ority has ac ce pted your propos al to provideAud it Services forT heMontereyPen insulaReg ional W ater Authority.The Authorityreceive d th ree proposals , y ours include d.H owever, we believeyourfirm isbest posi tioned tosu ppo rt to complete itsfirst au dit ina timely manner an dat a rea so nab le cos t.Although thecurrent dea dlinefor a CPAprepared certified annual report and a Fu ll Opinion AuditforFY 20 13isDecemberl g , Iam hopeful of get ting th at dea dlineexten ded until January s t Accordingly I have adjustedthe co ntract co mpletion date to Dec 6 th so we hav e timeto review thedocu men ts at th e staff levelandtoprepare a staff rep ort fo r th e W ater A uth orityBoa rd m eet ing la ter in D ecem ber .A draft copy ofthe co ntract is en closedherewith. Pleasereviewand return w ith yo ur eng agem entletter . Pleaseidentifyany issues betw een thetwo that we needto reso lvebefore executingthe contract. If possible, I wouldliketo signo ffby Oct 18.Shouldyou have anyques tions, p leas e donot hesitate to con tactme at c u lle m @ m o nte re y o rg orcontactme onmy cel l phone 831-2 41-85 03.

Sinc erely,;t4esM. CullemP.E.

/ExecutiveDirectorMPRWA

End: Contract

580 PACIFIC ST ROOM6 MONTEREYCALIFORNIA93940 w w w m p r w a o rg


9/30

CONTR CT FO R PROFESSION LSERVICESWater utho rity ud it gree ment

THISAGREEMENT isexecutedthis1 day of C 8 , 2 013 , b yand betweentheMonterey Peninsula Regional Water Authority, a municipal corporation, hereinafter calledAuthority ,and McGilloway,Ray,Brown, Kaufman, hereinafter called Consultant .IT IS HEREBY MUTUALLYA GREEDAS FOLLOWS:1 Scop e Consultant hereby agrees toprovideto the Authority, as the scope ofservicesunder this Agreement, the following services:AuditServices,as further described onthefollowing attachment: the Consultant's Proposal dated October 7, 2013 (attached hereto asExhibit A ).2 Timely Work Consultant shall perform all tasks in a timely fashion, as setforthmore specifically inparagraph3 below.Failureto soperform is hereby deemeda materialbreach of this Agreement, and Authoritymay terminate this Agreement with no further liabilityhereunder, or may agree in writing with Consultant to an extension of time.3 Term. The work under this Agreement shall commence October15, 2013 andshall be completedby December 6, 2013unless Authoritygrants a writtenextension of timeasforthin paragraph 2above.4 Compensation Authority agrees to pay and Consultant agrees toaccept as fulland fairconsideration for the performanceof this Agreement, anhourly feeas set forthinConsultant's Proposal (Exhibit A), in a total amount not to exceed Five Thousand Nine HundredDollars ($5900.00). Compensationunder thisAgreement shall become due and payable30days after Authority's approval of Consultant's submissionof a writteninvoice to the AuthorityExecutiveDirector. Writteninvoices shall clearly show the accountnumbers for each projectand shall includeacopyof timesheets or invoicesfrom sub-consultants.The payment of any

compensation to Consultant hereunder shall becontingent uponperformance of the terms andconditions of this Agreement tothe satisfaction of theAuthority. If Authority determinesthat thework set forth in the written invoice hasnot been performed inaccordance withthe terms of thisAgreement, Authority shall not beresponsible for payment until such timeas the work hasbeensatisfactorily performed.5 Additional S ervices In the event that Authorityshould request additionalservices not coveredby the terms of this Agreement, said services willbe providedbyConsultant andpaidfor by Authority only after afee for saidservices has been agreed uponbetween Consultant andAuthority Executive Director andthe Authority Director provides writtenauthorizationfor the additional work.

6 Sche dulefo r Perform ing Serv ices For the project subject tothis AgreementConsultant shallperform the services in accordance with the following phasesand/or milestonedates: Completion of 2013 Audit by close ofbusiness December 6,2013.

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


10/30

7. Staffing P lan. Consultant shall provide Authority with the nam es of the keyprofessional personnel assigned to perform the s ervices under this Agreemen t as well as ageneral description of the services they w ill be assigne d to perform.8. Subcon sultant Plan. N/A9. Meet and Confer. Consultant agrees to meet an d confer with Authority or i tsagents or emp loyees with regard to services as set forth herein as may be required by A uthorityto insure timely and adequate performance of this Agreement.10. Indem nification. Consultant hereby agrees to the following indem nificationclause:To the fullest extent perm itted by law (including, without limitation, California Civil CodeSections 2782 and 2782.6), Consu ltant shall defend (with legal counse l reasonablyacceptab le to the Authority), indem nify and hold harm less the Authority and its officers,designated agen ts, departments, officials, representatives and employees (collectivelyIndemnitees ) from and a gainst claims, loss, cost, dam age, injury expense and l iabi li ty

(including incidental and conse quential damag es, court costs, reasonable attorneys' fees,litigation expenses an d fees of expert consultants or expert witnesses incurred in connectiontherewith and c osts of investigation) to the extent they a rise out of, pertain to, or relate to, thenegligence, recklessness , or willful miscon duct of Consultant, any Subcon sultant, anyon edirectly or indirectly employed by them , or anyon e that they control (collectively Liabilities ).Such ob ligations to defend, hold harm less and indem nify any Indemnitee shall not apply to theextent that such Liab ilities are caused in part by the ne gligence, or willful misconduc t of suchIndemnitee.Notwithstanding the provisions of the above parag raph, Consu ltant agrees to indemnifyand hold harmless the A uthority from and ag ainst any and al l claims, dem ands, defense costs,liability, expense, or dam ages arising out of or in connection with dam age to or loss of anyproperty belonging to Consultant or Consultant's employees , contractors, representatives,patrons, gue sts or invitees.Cons ultant further agrees to indemn ify Authority for dama ge to or loss of Authorityproperty to the proportionate extent they arise out of Con sultant's negligent performance ofthe work asso ciated with this agreem ent or to the proportionate extent they arise out of anynegligent act or omission of Consultant or any of Consu ltant's emp loyees, agents, contractors,representatives, patrons, guests or invitees; excepting such dam age or loss arising out of thenegligence of the Authority

11. Insurance. Consultant shall subm it and m aintain in ful l force al l insurance asdescribed h erein. Without altering or limiting Consu ltant's duty to indemnify, Con sultant shallma intain in effect throughout the term of this Agree men t a policy or policies of insurance w iththe following m inimum limits of liability:Com me rcial general liability insurance including but not limited to premises, perso nalinjuries, bodily injuries, products, and com pleted operations, with a com bined single limitof not less than $1,000,000 per occurrenc e an d $2,000,000 in the aggreg ate.

Professional Liability Insurance . Consultant shall maintain in effect throughou t the termof this Agree men t professional liability insurance with limits of not less than $1,000,000

2


11/30

perclaim and $2,000,0 00 in the aggre gate. C onsultantwill either m ain tain orcause to bem aintained professional liability coveragein full force or obtainextended reporting (tail)coverage(withthe same liability limits) for at least threeyears following City'sacceptance of thew ork.C om mer cial auto m o bile liability insurance covering all autom obiles, including owned,le ased, non-ow ned,andhiredauto m obiles, used in providing servicesunder thisA gre em ent, w itha com bin ed sin gle limit of notle ss th an $1,0 00,0 00 per occurre nce.W ork ers 'C om pensationInsura nce. IfC onsultant em plo ys oth ers in th eperf orm ance ofthis A greement, C onsultant shall m aintain w o rkers' comp ensation insurance inaccord ance w ith C alifornia Labo r C ode section 3700 andw ith amin im um of $100,000pero ccurre ncef ore mployer'sl iability.O th er Insura nceRequirem ents

A. ll insura ncerequired under this A gre em ent m ust be w ri tte nbyan in sura ncecom pany either: adm ittedtodobusiness in C alifornia w ith a curre nt A .M .Best ra tingof n olessthan A:VI; or anins urance com pany w ith a curren t A.M .B estratingof no lessthanA :VII.Exception may bemad efor the State Compensation Insurance Fund whennots peci fically rated.

B E ach in surance policy requiredb y this agreem ent shall beendors ed tostateth at City of M onterey shall be givennoticei n writing at least thirty days inadvan ce ofany cancella tionthereof, except 10-daynoticefor nonpaym ent ofthe premium .

C Thegeneral liability and auto policiesshall: Pr ovide anendor sement naming the Authority, its officers, officials ,andem ploy ees asadditional insureds under an IS O C G 20 1007 04or ISO 20370704 ortheir equivalent. P rovide thatsuch insurance is prim ary and non-con tributing insurance to anyin surance or self-insurance m aintained bythe Authority. C ontain a Separation of Insureds provisio n substan tially equivalentto that used inthe ISO form C G 00 01 10 01 or their equivalent. P rovide for awaiver of any subrogation rightsagainst theAuthority via anIS O C G 24 0110 93or itsequiv alent.

D rior to the start of work under thisAgr eement, Consultan t shall filecertific ates of insura nceand endorsem ents evid encing th e coverage re quired

3


12/30

by this agreem ent with the Authority. Consultant shall fi le a new or ame ndedcertificate of insurance prom ptly after any chan ge is made in any insurancepolicy wh ich wou ld alter the inform ation on the certificate then on file.E. Neither the insurance requirements hereunder, nor acce ptance or approval ofConsultant's insurance, nor whether any claims are covered un der any

insurance, shall in any way mo dify or change Cons ultant's obligations underthe indemn ification clause in this Agreem ent, which shall continue in full forceand effect. Notwithstanding the insurance requirements con tained herein,Cons ultant is financially liable for its indem nity obligations und er thisAgreement.F. Any deductibles or self- insured retentions must be declared to and approvedby the Authority. At the option of the Authority either: the insured shallreduce o r e l iminate suc h ded uctib les or s el f -insured retentions as respec tsthe A uthority, i ts officers, officials, employee s and volunteers; or Co nsultantshall provide a financial guarantee satisfactory to the Authority guaranteeingpayment of losses and related investigations claim administration and

defense expenses.12. Ownersh ip o f W ork and C opyr ights . Upon com pletion o f the work under th isAgreem ent, ownership, t i tle and copyrights to al l materials and de liverables produce d as part ofthis Agreeme nt wi l l automatical ly be v ested in the Au thority and n o further agreement w i ll benecessary to transfer own ership to Authority.13. Licensing Standard of Care Consultant represents as follows: that it isexperience d in the professional services and a sp ecial ist in the work perform ed unde r th isAgree me nt; is duly organized, existing and in good standing un der applicable state law; and isproperly l icensed an d/or certif ied to perform the work s pecified un der this Agreem ent, includingbut not l im i ted to po ssession of a current Ci ty of M onterey business l icense, and wi l l on lyem ploy persons and su bcons ultants with all required licenses a nd certifications.14. Substitution of C onsultant Personnel. The key personnel of Consu ltant or anysubco nsultants listed in Consu ltant's proposal and assigne d to perform the work unde r thisAgreement m ay not b e substituted w ith or replaced by other personnel or subconsultantswithout the advance w ritten consen t of Authority.15. Termination. Authority may terminate this Ag reement upon ten days' writtennotice. The am ount of dama ges, i f any, as a result of such termination ma y be decided b ynegotiations betwe en the parties or before a court of com petent jurisdiction.16. Agency. In performing the services specified under this Agreement, Co nsultantis hereby deem ed to be an independent Consultant and not an agent or em ployee of Authority.17. Entire Agreem ent. This Agreem ent constitutes the entire Agreem ent between theparties hereto and supersedes any and al l prior agreem ents, whether oral or w ritten, relating tothe subject m atter thereof. Any m odification of this Ag reeme nt will be effective only if it is inwriting signed by bo th parties hereto.


13/30

UTHORITY /

C ulle m , E xecutive Director

18 Validity. If any provisio n in this A greem ent isheld by a court of com petentju risdictio n to be in valid, void or unenforceable, th e re m ainingp rovisionsw ill continue in fullfo rce withou t being impaired or invalidated in any way.19 A ssignm ent of In te rest. The duties underthisAgreem entshallnot beassignable,delegable, ortransferable without the prior written consen t of A uthority. Any such purportedassignm ent,delegation, or transfershallconstitute a m aterial bre achof th is A greem entuponwhichA uth ority m ayterminate this Agreem ent andb e entitledto dam ages.20 C onflict of Interest. Consultanthereby certifies that it does not now have, norshall it acquire anyfinancial orbusiness interest thatwould conflict w ith theperfor mance ofservices underthis Agreem ent.21 C ounte rp art s. T his A gre em ent m aybe executed in m ultip le origin als , eachofw hich is deem ed tobe anorigin al, and m ay besignedi n counterp arts.22 Laws. C onsultant agreesthat in theperfor mance of this Ag reem ent it willre asonably com ply w ithallapplicable State , Federa l and local law s andregulations. T his A greem ent shall begovern ed byandcons trued in accord ance w ith thelawsof th e State ofCalifornia and the Cityof Monterey.IN W IT N ESSW HE R EO F, this A greem ent is e nteredintoby the parties hereto on th edaya ndyear first above w rittenin Monterey, Californ ia .

CONSULTANT

P atriciaKaufman,M cGillo w ay, R ay,Bro w n,K aufm an

5


14/30


15/30



Item No: 5.

08/12


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-Ams 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 Authoritys 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.


16/30

ATTACHMENT:

SPI contract dated 4 November 2013


17/30

CONTRACT FORPROFESSIONALSERVICESAgreement for ConsultantSupport Services

THIS GREEMENT isexecuted this5th day of November, 2013,by and between the MontereyPeninsula Regional Water Authority, a municipal corporation, hereinafter called Authority, andSeparation Processes, Inc,hereinafter called Consultant .IT IS HEREBY MUTUALLYAGREEDASFOLLOWS:1 Scope. Consultant hereby agreestoprovide to theAuthority, asthe scope ofservices under this Agreement, the following services: Consultant Support Services, Phase 1as further described on thefollowing attachment: Scope of Services (attached hereto as Exhibit

2 TimelyWork. Consultant shall perform all tasksina timely fashion, as set forthmore specifically in paragraph 3below.Failure to so perform is hereby deemed a materialbreach of this Agreement,and Authoritymay terminatethis Agreementwith no further liabilityhereunder, or may agree in writing with Consultant to an extension of time.3 Term. The work underthis Agreement shall commence November 5, 2013 andshall be completed by December 31, 2013unless Authority grants awritten extension of time asforthin paragraph 2 above.4 Compensation. Authorityagrees to pay and Consultantagrees to accept as fulland fair consideration forthe performanceof this Agreement, an hourly fee as setforth inConsultant's Proposal (Exhibit B), in a total amount not to exceed Ten Thousand Dollars( 10,000.00) plustravel expenses upto 2000. Compensation under thisAgreement shallbecome due and payable 30 days after Authority's approval of Consultant's submission of awritten invoice to the Authority Executive Director. Written invoicesshall clearly show theaccount numbersfor each projectand shall include a copy of timesheets or invoices fromsub-consultants. The payment of anycompensationto Consultant hereunder shall be contingentupon performance of the terms and conditions of this Agreement to thesatisfactionoftheAuthority. If Authority determines that thework set forth inthe writteninvoice has not beenperformed in accordance with theterms of this Agreement, Authority shall not be responsibleforpayment until suchtime as the workhas been satisfactorily performed.5 Additional Services. In the event thatAuthorityshould request services identifiedas Phase2 and/or Phase 3 in Exhibits A and B, or for additional services not covered by theterms of thisAgreement, said services willbe providedby Consultant and paid forbyAuthorityonly after a fee for said services has beenagreed upon between Consultant and Authority

ExecutiveDirector and the Authority Director provides written authorization for the additionalwork.6 Meet and Confer. Consultant agrees to meetand conferwith Authorityoritsagents or employees withregard to services as set forth herein as may be required by Authorityto insuretimely andadequate performance of this Agreement.

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


18/30

7 In demnification .Consultant hereby agrees tothe followingindemnificationclau se:To thefullestextentpermitted by law (including,without limitation, CaliforniaCivil CodeSectio ns 2782 and2 782.6), C onsultant shall defe nd (w ithlegal cou nselr eason ablyacceptable to the Authority), indemnify and hold harmless the Authority and its officers ,

designatedagents , departm ents, o fficia ls , representatives ande m plo yees (c ollectiv elyIndem nitees ) from and against c la ims,loss, cost, dam age, injury expenseand liab ility(includingincidental and consequential dam ages,court costs, reasonable attorn eys'fees,li tigation expenses andfees of expert consultants or expert witnesses incurredin connectiontherew ith andcostsof investigation) to theextent theyarise out of, pertain to , or re la te to , th enegligence,recklessness,or willful misconductof Consultant, any Subconsultant, anyonedirectly or indirectly em ployedb y them, oranyone that theyc ontro l (collectively Liabil ities ).Such obligation sto defe nd, hold harm less and indem nifya ny Indemnitee shallnot apply to theextent that such Liabilitiesare caused inpart bythe negligence, or w illful m iscondu ct of suchlndemnitee.Notw ithsta nding the provision s of theaboveparagraph, Consultantagreesto indemnifyand hold harm lessthe A uth orityf rom andagainst anyand a ll cla ims, demands, defe nse costs,liabili ty, expense, ord amages aris ing outof orinc onnection with dam age to or losso f anyproperty belonging toConsultant orConsultant's employees, contractors, representatives,patrons, guests orinvitees.C onsultant further agrees to indemnify Authority fordamage to orloss ofAuthoritypropertyto the proportionate extent they ar ise out of Consultant'snegligent performance ofthe w ork associatedwiththis agre ement or to th e proportionate extent theyarise out of anynegligent act or om issionof Consultantor anyof Consultant's employees, agents,contractors,represe ntatives, patrons, guests or invitees; excepting such dam age orloss arising out of thenegligence of the A uthority

8 In surance. Consultant shall subm it andmainta in in fu ll forceall insurance asdescribedherein.W ithout altering or l imiting C onsultant's duty to indemnify, Consultantshallmaintain in e ffect throughout the term ofthis Agreement a policy or policies of insurance w ithth e follo wing m in im um limitsof liability:C o m m ercial qeneral l iability insurance including but not limited to prem ises, personalin juries,bodilyinjuries , products, and completed operations, witha combined single limitof not lessthan $1,000,000 per occurre nce and$2,000,000 inthe aggregate.

ProfessionalLiability Insurance: C onsultant shall mainta in in effect thro ughout thetermofthis Agre em ent professiona l liability insurance w ithlimits of not less than $1,00 0,000per cla im a nd$ 2,000,0 00 in the aggre gate . C onsultant w il leither mainta in orc ause to bemaintained profess ional liability coveragein fullforce or obtainextended reporting (tail)coverage (w ith the sam e liability limits) fo r at least threeyearsfollowing Authority'saccep ta nce ofthe work.C ommerc ial automobileliabilityinsurance covering all autom obiles, including ow ned,le ased, non-owned, andhired automobiles, used in p rovidingservic es under thisA greem ent, w ith ac om bin ed sing le lim it o f not le ss than $1 ,0 00,000 per occurrence.

2


19/30

Workers 'Compe ns ation Ins urance: I f C on sul tant e mploys othersin theperform an ceofth is Ag reemen t, Con su ltant shall m aintain worke rs compensation in s uranc e inaccordan cewith Californ ia Lab or Code se ction 37 00 an dwith a minim um of$100 ,000pe r oc currence fo r em ployer s liability.Other Insurance Requirem ents

A. ll insurance required under this Agreementmustbe writtenby aninsuranceco mpan ye ither: admittedto dobusiness inCaliforniawithacurrent AM Best rating of noless than A:VI; or an insurance company with a currentA M Bestratingof nolessthan A:VII.Exception may bemadefor the State Compensation InsuranceFund whennot spe cifically rate d.

B. Eachin s uranc e policy req uiredb y th is ag ree ment sh all be endorsed to s tatethat Monterey Pen insula R e gional W ater Aut ho ritys hallbe g i ve n notice inwriting at lea st thirty days inadvanc e of a ny canc ellation thereo f, except10-daynot icefo r non paymento f thepr em ium.C. The ge neral liab ili ty and au to po licies shall:

Pro vide anend orsement n aming the Authorit y, its officers, off icials, an dem ployees asaddi tional insuredsunde r a n ISOCG 20 10 07 04orISO 20 37 0704 or th e ir equivalent. Provide that s uc hin suran ce is primary andno n-co ntributingin s urance to a nyinsurance or self-insurance maintained byth e A uthor ity. Con tain a Sep aration of Insureds prov ision substan tially equ ivalentto th at used in the ISO form C G00 01 10 0 1 or th eireq uivalent. Provide for a waiver of any s ub rog ation rights aga inst theAu thorityv ia anISOC G 24 01 1093 or its eq uivalent.

D. Prior to the start of work under this Ag reement, Consu ltant shall filecertificateso f insu ra nce an d end orsemen ts evidencing theco ve rage requiredby thisagreemen tw ith theAuthor ity. Cons ultant sh all filea new or a mend ed ce rt ificate o f insuranc e promptly afte r an yc han geis made in an y insu ranc epolicy which wo uld a l terth e in fo rmatio n on thece rtificate theno n fi le.E. Neither the insuranc e req uire ments hereun de r, noracce ptanc eor app rov al ofConsultant s insuranc e, n orw h ether an y claim sare covered underany ins urance, s ha ll inany way mod ify orchan ge Consul tan t's obl iga tions un derthe inde mnifica tionclau se in thisAgreem en t, which shall co ntinue in fullforceand ef fec t. N otwithstand ingthe insurance requ ire mentscon tained here in,

3


20/30

Consultant is financia lly liable for its inde mnity obligations underthisAgreement.F ny deductiblesor self-insured retentions mustbe declared toand approvedby theAuthority. Atthe option ofthe Authority either: theinsured shallreduce or eliminatesuch deductibles orself-insured retentions as respects

the Authority, itsofficers, officials, employeesandvolunteers; or Consultantshall providea financial guarantee satisfactory to theAuthority guaranteeingpayment oflossesand relatedinvestigations claimadministration andde fense exp enses. 9. Ownership of Work. Upon completion ofthe work under this Agreementownership andtitle toall materials and deliverables producedas part of thisAgreement willautomatically be vested in the Authority and no further agreement will be necessaryto transferownershipto A uthority.10 . Licensing.Consultant represents as follows:that itisexperienced intheprofessional services and a specialist inthe work performedunder this Agreement; isdulyorganized,existing and in goodstandingunderapp licablestate law; and isproperly licensedand/or certified toperformthework specified under this Agreement, including but notlimitedtopossession ofa currentCity ofMontereybusinesslicense, and will only employ personsandsubcons ultants with all required licenses and certifications .11 . Substitution of Consultant Personnel. The key personnel of Consultant or anysu b-consultants lis ted inC onsultant s proposaland assignedto pe rform the work u nderth isAgreementmay not besubstituted withor replaced by otherpersonnel or sub-consultantswithout the adv ancew rittenc onsent of Au thority.12. Termination.Authoritymay terminatethis Agreement uponten days writtennotice. Theamount of damages, if any,as a result ofsuch termination may bedecided bynegotia tionsb e tweenthe p ar ties or before a court of co mpetent jurisdiction.13 . Agency.In performing theservicesspecified under this Agreement,Consultantis hereby deemed to be anin dependent Consultant and not ana gento r employee of Authority.14 . Entire Agreement. This Agreement constitutes the entire Agreement between theparties hereto and supersedes any and all priora g reements, whether oral or written, relatingtothe subject matter thereof. Any modification of this Agreement will be effectiveonly if it is inwriting sign ed by both parties hereto.15. Validity. If any provision in this Agreement is heldby a courtof competentjurisdiction tobeinvalid, void or unenforceable, the remainingprovisionswill continue in fullfo rce with ou t beingimpa ired orin validated ina ny way.16. Assignment ofInterest. The duties under this Agreement shall not be assignable,delegable, or transferable withouttheprior written consent of Authority. Anysuch purportedas signment, delegation, ortrans fer shall constitute a material breach of this Agreement uponwhich Authority may terminate this Agreement and be entit led tod amages.


21/30

17 C onflictof Intere st. Consultantherebycertif ies that it doesnot now have,norshall it acquire,any financial or business interest that wou ld conflict withthe performance ofservicesunder this Agreement.18 C ounte rparts. ThisAgreem ent m ayb e executed in m ult iple ori g inals , eacho fw hich isdeemed to bean orig in al, andm aybe signed in counterparts.19 Law s. Consultanta greesthat inthe perf ormance of th is A greementi twillreason ably com ply w ith all applicab le S tate , Federal and loca l la w s andr egula tion s. ThisA gre em ent shall be govern ed by andc onstr ued in accord ancewith the lawso fthe Sta te o fC alifornia and th e Cityof M onterey.20 Venue.S hould either party tothis agreementbring legal action againstthe other(formal jud icial proceedin g, m ediation,or arb itration)the venue forthe matter shall beMontereyC ounty, California.IN WITNESS W HEREOF, th is Agreement is entered intoby thepartiesheretoon theday andyear fir st abovewritte n in M onterey,California.

UTHORITY ONSULTANT

xeoutive Director ondtflta rit Nam e

5


22/30

EXHIBIT A -SCOPE OF SERVICESThe Scope of Services for this Agreement betweenThe Monterey Peninsula W ater M anagementDistric tand Separation Processes, Inc. for Consu ltant Support Services shallinclude thefollowin g:

PHASE1: Consultan t shall enter into a N on-Disclo sure Agreem ent with Cal-A m that shallprovidethat Consultant shall not discloseanyconfidential information (as definedin the Non-Disclosure Agreemen t) concerningCal-Am s process for theselection of a design-build

contractor ( DB Contractor ) byCal-Am anddevelopment of a draft design-buildco ntract ( DB Contract ) for the construction of Cal-Am ' s desalination plant as part ofthe Monterey Peninsula WaterSupply Project ( MPWSP ), except with respect toconsultation with Jason Burnett and David Stoldt provided that theyhave also enteredinto the Non-D isclosure A greement with C al-Am, until such time asadraft Design-B uildContractis presented to the Governance Comm itteeoverseeing the M onterey PeninsulaW ater Supply Project for review and rec ommendation.

Consultant shall review background documents perta ining to the DBContractorselectionprocess providedby C al-am. Consultant shallattend interviews with finalist for awardof the DB Contract schedule dfor November 5 and6 2013 as well as a post-interview debriefing withCal-Amscheduledfor November 7, 2013, and shall provide insights and recommendationstem ming from the interviews to Cal-Am . Consultant shall communicate with Cal-Am as necessary throughout the interview

process. All written correspondence shall be madebyelectronicmail to RichardSvindland ofCal-Am, withcopy to AnthonyCerasuoloand Lori Girard. Consultant shall regularly update and solicit fee dback from Jason Burnett and DavidStoldt throughout the interv iew process,a nd as instructe dby either of them, comm unicatequestions and recom m endations to Cal-Am.

PHA SE 2: Consultantshall attend negotiations in November and December pertainingto the

development of a recommended DB Contract heldbetweenCal-Am and the selectedpreferred DBContractor, and shall provide insights andrecommendation stemmingfromthe negotiations to C al-Am. Consultant shall communicate with Cal-Am as necessary throughout the negotiationprocess. Allwritten correspondence shall be madeby electronic mail to RichardSvindland of Cal-A m , with copytoAnthony Cerasuolo and Lori Girard.


23/30

Consultant shall regularly update and solicit feedback fromJasonBurnett andDavidStoldt throughout thenegotiation process andas instructed by eitherof themco mmunicate questions and recommen dat ions to Cal Am.PHASE 3:

Once adraft DB Contract is presented to theGovernanceCommittee overseeingtheMontereyPeninsula Water Supply Project for reviewandrecommendation, Consultantshall timelyprepare and presentto the GovernanceCommittee ashort writtensummaryof Consultant s pertinent findings, observations, issues, andrecommendations concerningtheselected DBContrac tor anddraft DB Con tract. Consultant shall attend at least one meeting ofthe Governance Committeeto presentConsultant s summary of pertinent findings,observations,issues,andrecommendationsconcerningtheselected DB Contractor and draft DBContract andto answerquestionsand discuss the matter withthe Gove rnance Committee.


24/30


25/30



Item No: 6.

06/12


SUBJECT: Adoption of Resolution 2013-01, Approving Donald G. Freeman as LegalCounsel through December 31, 2014 and Authorizing the Authority President toExecute 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 Freemanaccordingly.

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 withPerry Freeman accordingly.

ATTACHMENTS:

Resolution 2013-01

Sample contract for legal services


26/30

MPRWA RESOLUTION NO. 2013-__

A RESOLUTION OF THE MONTEREY PENINSULA REGIONAL WATER AUTHORITYACKNOWLEDGING DONALD G. FREEMAN AS LEGAL COUNSEL FOR THE MONTEREYPENINSULA 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 theMonterey Peninsula Regional Water Authority (MPRWA);

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

WHEREAS, Donald G. Freeman and MPRWA recognize the potential conflict of interestwhich may arise as a result of Donald G. Freemans legal representation of MPRWA, City ofSeaside, and the City of Carmel-by-the-Sea;

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

WHEREAS, the President of MPRWA and members of the MPRWA Board of Directorshave 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 WaterAuthority will have any impact on his full and effective representation of each party, and doesnot believe he has knowledge of any confidential information from any party which would bematerial or relevant to his representation of MPRWA, the City of Seaside, and the City ofCarmel-by-the-Sea;

WHEREAS, Donald G. Freeman recognizes that by concurrently representing theMPRWA, 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 benecessary for him to make full disclosure to all parties, could be subject to disqualification fromrepresenting any party, and at such time it would be necessary for each party to seekindependent legal counsel;

WHEREAS, the City of Carmel-by-the-Sea and the City of Seaside have passed theirrespective Resolutions and their respective Mayors have executed the Consent and Waiver ofConflict 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 Conductapplicable to California lawyers which requires informed written consent of all representedparties because of concurrent representation, MPRWA recognizes that Donald G. Freeman isthe 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 ofDonald G. Freeman during the period of his tenure as Authority legal Counsel between


27/30

September 27, 2012 and the present;

WHEREAS, due to the critical nature of on-going legal activities associated with theCPUC consideration of the California American Water application for the Monterey PeninsulaWater Project, the Board of Directors finds that the public interest is better served by renewingDonald G. Freemans 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 Consentand Waiver of Conflict of Interest, and hereby acknowledges Donald G. Freeman as legalcounsel for the Monterey Peninsula Regional Water Authority until December 31, 2014.

NOW, THEREFORE, BE IT RESOLVED, that the President of MPRWA is herebyauthorized to extend on behalf of MPRWA a Consent and Waiver of Conflict of Interest therebyacknowledging Donald G. Freeman as legal counsel for the Monterey Peninsula Regional WaterAuthority and authorizes the President to execute a contract with Donald G. Freeman for legalcounsel services.

PASSED AND ADOPTED BY THE MONTEREY PENINSULA REGIONAL WATERAUTHORITY 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


28/30

DRAFT-Nov 14, 2013

EMPLOYMENT AGREEMENT FOR LEGAL SERVICES

THIS AGREEMENT, made and entered into this ___ day of _____________, 2013, by andbetween 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 beprovided 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, representingMPRWA 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


29/30

2

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: ATTORNEY:

President, Board of Directors Donald G. Freeman

Monterey Peninsula Regional Perry and Freeman

Water Authority PO Box XXX

580 Pacific Street Carmel By-The-Sea, CA XXXX

Monterey, CA 93940

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 theparties 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:

ATTEST:

_____________________ _________________________

Donald G.Freeman Clerk of the Board


30/30

mprwa regular meeting agenda packet 11-14-13.pdf

Documents