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CONSULTANT
xeoutive Director
Condtfltarit Name
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MPRWA Meeting, 11/14/2013 , tem No. 5., tem Page 7, Packet Page 19
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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MPRWA Meeting, 11/14/2013 , tem No. 5., tem Page 8, Packet Page 20
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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MPRWA Meeting, 11/14/2013 , tem No. 5., tem Page 9, Packet Page 21
Monterey Peninsula Regional Water Authority
Agenda Report
Date: November 14, 2013
Item No: 6.
06/12
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
MPRWA Meeting, 11/14/2013 , tem No. 6., tem Page 1, Packet Page 23
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. Freemans 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
MPRWA Meeting, 11/14/2013 , tem No. 6., tem Page 2, Packet Page 24
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. 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 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
MPRWA Meeting, 11/14/2013 , tem No. 6., tem Page 3, Packet Page 25
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
MPRWA Meeting, 11/14/2013 , tem No. 6., tem Page 4, Packet Page 26
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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 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:
ATTEST:
_____________________ _________________________
Donald G.Freeman Clerk of the Board
MPRWA Meeting, 11/14/2013 , tem No. 6., tem Page 5, Packet Page 27