No preview available
HomeMy WebLinkAbout02-21-19 PRL&L Committee PacketOTAY WATER DISTRICT PUBLIC RELATIONS, LEGAL & LEGISLATIVE COMMITTEE MEETING and SPECIAL MEETING OF THE BOARD OF DIRECTORS 2554 SWEETWATER SPRINGS BOULEVARD SPRING VALLEY, CALIFORNIA Board Room THURSDAY February 21, 2019 1:30 P.M. This is a District Committee meeting. This meeting is being posted as a special meeting in order to comply with the Brown Act (Government Code Section §54954.2) in the event that a quorum of the Board is present. Items will be deliberated, however, no formal board actions will be taken at this meeting. The committee makes recommendations to the full board for its consideration and formal action. AGENDA 1. ROLL CALL 2. PUBLIC PARTICIPATION – OPPORTUNITY FOR MEMBERS OF THE PUBLIC TO SPEAK TO THE BOARD ON ANY SUBJECT MATTER WITHIN THE BOARD'S JURISDICTION BUT NOT AN ITEM ON TODAY'S AGENDA DISCUSSION ITEMS 3. APPROVE AN AGREEMENT WITH BROWNSTEIN HYATT FARBER SCHRECK COMMENCING MARCH 6, 2019 THROUGH DECEMBER 31, 2021 FOR AN AMOUNT NOT-TO-EXCEED $200,000 (OTERO) [5 minutes] 4. ADJOURNMENT BOARD MEMBERS ATTENDING: Mark Robak, Chair Hector Gastelum 2 All items appearing on this agenda, whether or not expressly listed for action, may be de- liberated and may be subject to action by the Board. The Agenda, and any attachments containing written information, are available at the Dis- trict’s website at www.otaywater.gov. Written changes to any items to be considered at the open meeting, or to any attachments, will be posted on the District’s website. Copies of the Agenda and all attachments are also available through the District Secretary by con- tacting her at (619) 670-2280. If you have any disability that would require accommodation in order to enable you to par- ticipate in this meeting, please call the District Secretary at 670-2280 at least 24 hours pri- or to the meeting. Certification of Posting I certify that on February 15, 2019 I posted a copy of the foregoing agenda near the regular meeting place of the Board of Directors of Otay Water District, said time being at least 24 hours in advance of the meeting of the Board of Directors (Government Code Section §54954.2). Executed at Spring Valley, California on February 15, 2019. /s/ Susan Cruz, District Secretary STAFF REPORT TYPE MEETING: Regular Board Meeting MEETING DATE: March 6, 2019 SUBMITTED BY: Tenille M. Otero PROJECT: Various DIV. NO. All APPROVED BY: Mark Watton, General Manager SUBJECT: Authorize Agreement with Brownstein Hyatt Farber Schreck LLP (BHFS) for Legislative Advocacy Services GENERAL MANAGER’S RECOMMENDATION: That the Otay Water District (District) Board of Directors authorize the General Manager to enter into an agreement with Brownstein Hyatt Farber Schreck, LLP (BHFS) for legislative advocacy in an amount not- to-exceed $200,000 terminating December 31, 2021. COMMITTEE ACTION: See Attachment A. PURPOSE: To obtain Board authorization for the General Manager to enter into an agreement with BHFS for an amount not-to-exceed $200,000 commencing March 6, 2019 through December 31, 2021 for professional and consulting services for District-related state and federal legislative advocacy. ANALYSIS: Procedures governing the selection of general consultants in the performance of District work are outlined in the District's Purchasing Manual. The original agreement with BHFS has ended and the District, for the purposes of continuity of representation in Sacramento and Washington D.C. desires to enter into this agreement through December 31, 2021. Therefore, staff is presenting the new agreement to the Board for authorization. The new agreement will allow the District to solicit professional services with BHFS acting as the government relations advocate and counsel. Based on past work, the District believes BHFS is uniquely qualified to best meet the District's needs for comprehensive state and federal legislative issues advocacy. This action would also authorize the General Manager to amend the Agreement with BHFS to extend the term and/or increase the contract amount as necessary and within the General Manager’s Authority to provide for the continuation of services, terminate elements of the Agreement, or to include such other services as deemed necessary and appropriate by the General Manager. FISCAL IMPACT: Joe Beachem, Chief Financial Officer Legislative advocacy is included in the General Manager's Outside Services budget. The total Fiscal Year 2019 budget for Legislative Advocacy is $65,000. Actual FY2019 expenditures to date have been $18,868.09. Recognizing the increased need for legislative advocacy based on a District cosponsored bill with the San Diego County Water Authority for the remainder of the 2019 legislative session (end of FY19 and first half of FY20), staff will submit a budget request for FY2020. Staff will also submit a budget request for FY2021 based on the need of legislative advocacy services for that year. Based on a financial review of the General Manager's budget, the Communication Officer has determined that the budget is sufficient to support the general legislative advocacy services through the end of FY2019. STRATEGIC GOAL: Execute and deliver services that meet or exceed customer expectations, and increase customer engagement in order to improve District Services. Enhance and build awareness and engagement among the District’s customers and stakeholders and within the San Diego Region about the District’s strategies, policies, projects, programs, and legislative/regulatory issues. LEGAL IMPACT: None. Attachments: A) Committee Action B) Sample Contract ATTACHMENT A SUBJECT/PROJECT: Authorize Agreement with Brownstein Hyatt Farber Schreck LLP (BHFS) for Legislative Advocacy Services. COMMITTEE ACTION: The Public Relations, Legal and Legislative Committee is scheduled to review these items at the monthly Board meeting to be held on Feb. 21, 2019. The attachment will be updated with notes from the committee’s discussion. Page 1 of 11 AGREEMENT BY AND BETWEEN THE OTAY WATER DISTRICT AND BROWNSTEIN HYATT FARBER SCHRECK, LLP THIS AGREEMENT is entered into this ___ day of _________, 20____, by and between the OTAY WATER DISTRICT, a municipal water district, formed and existing pursuant to California Municipal Water District Act of 1911, as amended (the “DISTRICT”), and BROWNSTEIN HYATT FARBER SCHRECK, LLP. (the “CONSULTANT”) (collectively the “PARTIES”). R E C I T A L S WHEREAS, the DISTRICT desires to contract with a consultant to perform legislative consulting and lobbying services, and WHEREAS, the DISTRICT has determined, and CONSULTANT has represented, that the CONSULTANT is a policy consulting firm and is qualified by experience and ability to perform the services desired by the DISTRICT, and the CONSULTANT is willing to perform such services. NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS FOLLOWS: 1. ENGAGEMENT OF CONSULTANT. The DISTRICT hereby agrees to engage the CONSULTANT and the CONSULTANT hereby agrees to perform the services hereinafter set forth in accordance with all terms and conditions contained herein. The CONSULTANT represents that all services required hereunder will be performed directly by the CONSULTANT or under direct supervision of the CONSULTANT. 2. SCOPE OF SERVICES. The CONSULTANT will perform services as set forth in the attached Exhibit “A,“ as well as future policy related engagements with respect to which the DISTRICT asks the CONSULTANT to represent the DISTRICT, unless the PARTIES execute a separate agreement for one or more separate engagements. To the extent the provisions of Exhibit “A” are ambiguous in relation to the provisions of this Agreement, inconsistent with the provisions of this Agreement, or expand upon the provisions of this Agreement, the provisions of this Agreement shall take precedence and the provisions of Exhibit “A” shall not apply. The CONSULTANT shall be responsible for all research and reviews related to the work described in Exhibit “A” and shall not rely on personnel of the DISTRICT for such services, except as authorized in advance in writing by the DISTRICT The DISTRICT may unilaterally, from time to time, reduce the Scope of Services to be performed by the CONSULTANT under this Agreement. Upon doing so, the DISTRICT and the CONSULTANT agree to meet in good faith and confer for the purpose of negotiating a corresponding reduction in the compensation associated with said change in services. 3. PROJECT COORDINATION AND SUPERVISION. Mr. Mark Watton, General Manager, is designated as the Project Coordinator for the DISTRICT and will monitor the progress and execution of this Agreement. The CONSULTANT shall assign a single Project Director to provide supervision and have overall responsibility for the progress and execution of this Agreement for the CONSULTANT. Ms. Rosanna Carvacho, Shareholder, (“Rosanna”) is Page 2 of 11 designated as the Project Director for the CONSULTANT. Rosanna can be reached directly at 916.594.9714 and via email at rcarvacho@bhfs.com. Other members of the team will include: Teresa Cooke and Gianna Setoudeh with support from any other lobbyists, as assigned. 4. COMPENSATION AND PAYMENT. The compensation for the CONSULTANT for the performance of all services rendered pursuant to this Agreement shall be based on the rates contained in Exhibit “B” and shall not exceed Two Hundred Thousand Dollars and Zero Cents ($200,000.00). CONSULTANT shall invoice the DISTRICT on a monthly schedule for work completed at the time the invoice is prepared. The DISTRICT shall have forty-five (45) days from the date of receipt and acceptance of invoices to make payment. To the extent the provisions of Exhibit “B” are ambiguous in relation to the provisions of this Agreement, inconsistent with the provisions of this Agreement, or expand upon the provisions of this Agreement, the provisions of this Agreement shall take precedence and the provisions of Exhibit “B” shall not apply. 5. LENGTH OF AGREEMENT. The term of this Agreement is from March 6, 2019 through December 31, 2021. 6. DISPOSITION AND OWNERSHIP OF DISTRICT FILE. The PARTIES agree and understand that the “District File” consists of any correspondence, legal memoranda, pleadings, agreements, or other documents that the CONSULTANT retains in its electronic document management system, which is duplicated in hard copy. The CONSULTANT shall maintain the District file as well as all books, documents, papers, employee time sheets, accounting records, and other evidence pertaining to costs incurred and shall make such materials available at its office at all reasonable times during the term of this Agreement and for eight (8) years from the date of final payment under this Agreement, for inspection by the DISTRICT and for furnishing of copies to the DISTRICT, if requested. At any time prior to destruction of the District File, the DISTRICT may request that CONSULTANT deliver certain portions or all of the physical and electronic District File to the DISTRICT. 7. INDEPENDENT CONSULTANT. Both parties hereto in the performance of this Agreement will be acting in an independent capacity and not as employees, partners or joint ventures with one another. Neither the CONSULTANT nor the CONSULTANT’S employees are employee of the DISTRICT and are not entitled to any of the rights, benefits, or privileges of the DISTRICT’s employees, including but not limited to retirement, medical, unemployment, or workers’ compensation insurance. Neither the DISTRICT nor its officers, agents or employees shall have any control over the conduct of the CONSULTANT or any of the CONSULTANT’s employees except as herein set forth, and the CONSULTANT expressly agrees not to represent that the CONSULTANT or the CONSULTANT’s servants, or employees are in any manner servants or employees of the DISTRICT, it being understood that the CONSULTANT, its agents, servants, and employees are as to the DISTRICT wholly independent consultants and that the CONSULTANT’s obligations to the DISTRICT are solely such as are prescribed by this Agreement. 8. ASSIGNMENT AND SUBCONTRACTING. This Agreement contemplates the personal services of the CONSULTANT and the CONSULTANT’s employees, and it is recognized by the parties that a substantial inducement to the DISTRICT for entering into this Agreement was, and is, the professional reputation and competence of the CONSULTANT and its employees. Neither this Page 3 of 11 Agreement nor any interest herein may be assigned by the CONSULTANT without the prior written consent of the DISTRICT. Nothing herein contained is intended to prevent the CONSULTANT from employing or hiring as many employees, or subconsultants, as the CONSULTANT may deem necessary for the proper and efficient performance of this Agreement. All agreements by CONSULTANT with its subconsultant(s) shall require the subconsultant to adhere to the applicable terms of this Agreement and shall require advance written approval by DISTRICT. 9. COMPLIANCE WITH APPLICABLE LAW. The CONSULTANT, in the performance of the services to be provided herein, shall comply with all applicable State and Federal statutes and regulations, and all applicable local ordinances, rules and regulations, whether now in force or subsequently enacted. 10. LICENSES, PERMITS, ETC. The CONSULTANT represents and covenants that it has all licenses, permits, qualifications, and approvals of whatever nature that are legally required to perform the services under this Agreement. The CONSULTANT represents and covenants that the CONSULTANT shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement, any license, permit, or approval which is legally required for the CONSULTANT to perform the services under this Agreement. 11. LOBBYING REGISTRATION REQUIREMENTS The PARTIES agree that the activities the CONSULTANT will undertake pursuant to this Agreement will require the CONSULTANT to register as a lobbying firm on the DISTRICT’s behalf. The CONSULTANT has filed the Lobbying Firm Authorization (FPPC Form 602) disclosing that the DISTRICT wishes the CONSULTANT to influence the California Legislature and Administration on behalf of the DISTRICT. State law requires that the CONSULTANT file the Authorization as a public document with the Secretary of State. The CONSULTANT will file quarterly reports thereafter which disclose the DISTRICT’s and the CONSULTANT’s lobbying activities, the payments the DISTRICT made for and in connection with these efforts, and any other payments the DISTRICT makes to influence legislative or administrative action, as legally required. 12. NON-DISCRIMINATION PROVISIONS. The CONSULTANT shall not discriminate against any employee or applicant for employment because of age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, medical condition, or any other classification prohibited by state or federal law. The CONSULTANT will take positive action to insure that applicants are employed without regard to their age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, medical condition, or any other classification protected by state or federal law. 13. CONFIDENTIAL INFORMATION. The DISTRICT may from time to time communicate to the CONSULTANT certain confidential information to enable the CONSULTANT to effectively perform the services to be provided herein. The CONSULTANT shall treat all such information as confidential and shall not disclose any part thereof without the prior written consent of the DISTRICT. The CONSULTANT shall limit the use and circulation of such information, even within its own organization, to the extent necessary to perform the services to be provided herein. The foregoing obligation of this Section 14, however, shall not apply to any part of the information that (i) has been disclosed in publicly available sources of information; (ii) is, through no fault of the CONSULTANT, hereafter disclosed in publicly available sources of information; (iii) is already in the possession of the CONSULTANT without any obligation of confidentiality; or (iv) has been or is hereafter rightfully disclosed to the CONSULTANT by a third party, but only to the extent that the use or disclosure thereof has been or is rightfully authorized by that third party. Page 4 of 11 The DISTRICT understands CONSULTANT is frequently asked to provide information to third-party auditing firms regarding legal matters of its clients. It is agreed that CONSULTANT will respond to those inquiries with the same level of care that is used to handle its clients’ other legal and policy work. The CONSULTANT agrees if a third-party auditing firm requests information regarding any work being done by the CONSULTANT on behalf of the DISTRICT, the CONSULTANT will immediately seek approval from the DISTRICT through the Project Coordinator to release the information requested. The DISTRICT agrees to pay any charges associated with the CONSULTANT seeking approval and responding to the third-party auditing firm at the hourly rates applicable to this Agreement. The DISTRICT agrees when an auditing firm requests information on the DISTRICT’s behalf, that request will be deemed to be the DISTRICT’s consent for the CONSULTANT to disclose the requested information to that auditing firm and to bill for those services. The CONSULTANT shall not disclose any reports, recommendations, conclusions, or other results of the services or the existence of the subject matter of this Agreement without the prior written consent of the DISTRICT. In its performance hereunder, the CONSULTANT shall comply with all legal obligations it may now or hereafter have respecting the information or other property of any other person, firm or corporation. CONSULTANT shall be liable to DISTRICT for any damages caused by breach of this condition, pursuant to the provisions of Section 15. 14. INSURANCE. The CONSULTANT, at its sole cost and expense, shall purchase and maintain, and shall require its subconsultants, when applicable, to purchase and maintain throughout the term of this Agreement, the following insurance policies: A. Professional Liability Insurance (errors and omissions) with minimum limits of $2,000,000 per occurrence. B. The aforesaid policy shall constitute primary and non-contributory insurance as to the DISTRICT, its officers, employees, and volunteers, so that any other policies held by the DISTRICT shall not contribute to any loss under said insurance. Said policy shall provide for thirty (30) days prior written notice to the DISTRICT of cancellation or material change. C. If required insurance coverage is provided on a “claims made” rather than “occurrence” form, the CONSULTANT shall maintain such insurance coverage for four years after expiration of the term (and any extensions) of this Agreement. In addition, the "retro" date must be on or before the date of this Agreement. D. Any aggregate insurance limits must apply solely to this Agreement. E. Insurance shall be written with only California admitted companies or by one or more internationally-recognized carriers syndicated through Lloyd’s of London which hold a current policy holder’s alphabetic and financial size category rating of not less than A VIII according to the current Best’s Key Rating Guide, or a company equal financial stability that is approved by the DISTRICT’s Risk Manager. In the event coverage is provided by non- admitted “surplus lines” carriers, they must be included on the most recent Page 5 of 11 California List of Eligible Surplus Lines Insurers (LESLI list) and otherwise meet rating requirements. F. This Agreement shall not take effect until certificate(s) or other sufficient proof that these insurance provisions have been complied with, are filed with and approved by the DISTRICT’s Risk Manager. If the CONSULTANT does not keep the insurance policy in full force and effect at all times during the terms of this Agreement, the DISTRICT may obtain such coverage at CONSULTANT’s expense and deduct the cost of such insurance from payments due to CONSULTANT under this Agreement, or may elect to treat the failure to maintain the requisite insurance as a breach of this Agreement and terminate the Agreement as provided herein. G. Maintenance of specified insurance coverage is a material element of this Agreement, and CONSULTANT’s failure to maintain or renew coverage or to provide evidence of renewal during the term of this Agreement may be treated as a material breach of contract by DISTRICT. 15. MEDIATION/ARBITRATION. Any controversy or claim arising out of or relating to fees and costs incurred under this Agreement shall be resolved pursuant to the California Business and Professions Code section 6200 et seq. All other disputes arising out of or relating to the Agreement and these Terms shall be resolved in a binding arbitration administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. The arbitration will take place in, and be administered in accordance with the laws of, the state of California. The costs of arbitration shall be borne equally by the parties. The PARTIES agree to bear their own attorney fees and costs incurred to resolve any dispute. 16. TERMINATION. A. This Agreement may be terminated with or without cause by the DISTRICT. Termination shall be effective upon written notice from the DISTRICT to CONSULTANT. B. The CONSULTANT may terminate this Agreement in the same manner describe above. C. In the event of termination, if CONSULTANT is attorney of record in any way or proceeding, the DISTRICT agrees to execute and return to CONSULTANT appropriate documents for effecting CONSULTANT’s substitution or withdrawal. Upon receipt of the executed appropriate documents, CONSULTANT agrees to file the appropriate documents promptly in the appropriate court or location in order to effectuate CONSULTANT’s substitution or withdrawal as attorney of record. D. In the event of termination, all finished or unfinished memoranda reports, plans, specifications and other documents prepared by the CONSULTANT, whether paper or electronic, shall immediately become a part of the District File, property of and be delivered to the DISTRICT, and the CONSULTANT shall be entitled to receive just and equitable compensation for any work satisfactorily completed on such documents and other materials up to the effective date of the Notice of Termination, not to exceed the amounts payable hereunder, and less any damages caused the DISTRICT by the CONSULTANT’s breach, if any. Page 6 of 11 Thereafter, ownership of said written material shall vest in the DISTRICT all rights set forth in Section 7. 17. NOTICES. All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered; or sent by certified mail, postage prepaid, return receipt requested; and shall be deemed received upon the earlier of (i) if personally delivered, the date of delivery to the address of the person to receive such notice, (ii) if mailed by certified mail, return receipt requested, five (5) days (ten (10) days if the address is outside the State of California) after the date of deposit in a post office, mailbox, mail chute, or other like facility regularly maintained by the United States Postal Service. Any notice, request, demand, direction or other communication delivered or sent as specified above shall be directed to the following persons: To DISTRICT: Mr. Mark Watton General Manager OTAY WATER DISTRICT 2554 Sweetwater Springs Boulevard Spring Valley, CA 91978-2004 Phone (619) 670-2222 To CONSULTANT: Ms. Rosanna Carvacho Shareholder Brownstein Hyatt Farber Schreck 1415 L Street, Suite 800 Sacramento, CA 95814 Phone: (916) 594-9714 Notice of change of address shall be given by written notice in the manner specified in this Section. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given shall be deemed to constitute receipt of the notice, demand, request or communication sent. Any notice, request, demand, direction or other communication sent by cable, telex, telecopy, facsimile or fax must be confirmed within forty-eight (48) hours by letter mailed or delivered as specified in this Section. The DISTRICT understands that during the course of the Agreement CONSULTANT may exchange emails and electronic versions of documents with the DISTRICT using commercially available software. Any communications or electronic versions of documents sent via email shall be also sent in accordance with the above requirements unless CONSULTANT seeks and is granted a waiver of the above requirements via electronic communication. The PARTIES understand electronic communications are occasionally victimized by the creation and dissemination of viruses and other destructive electronic programs and hackers who compromise the privacy of electronic communications. The PARTIES understand virus scanning software may also occasionally reject communication that is sent from DISTRICT to CONSULTANT, or from CONSULTANT to DISTRICT. Although infrequent, these occurrences are to be expected as part of the ordinary course of business. Accordingly, the PARTIES cannot guarantee that electronic communications and documents will always be virus-free or immune from invasions of expected privacy. Page 7 of 11 If either of the PARTIES for the above or other reasons, would prefer or require that electronic communications not be used or that the PARTIES follow specula instructions or encrypt emails or other communications, the requesting party shall promptly advise in writing those working the matters of such preferences or requirements. 18. CONFLICT OF INTEREST AND POLITICAL REFORM ACT OBLIGATIONS. The CONSULTANT shall at all times comply with the terms of the Political Reform Act and the DISTRICT’s Conflict of Interest Code. CONSULTANT has received and reviewed a copy of the District’s Conflict of Interest Code. CONSULTANT covenants that neither it, nor any officer or principal of its firm, has or shall acquire any financial interest, directly or indirectly, which would conflict in any manner with the interests of the DISTRICT or which would in any way hinder CONSULTANT’s performance of services under this Agreement. In the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of the DISTRICT. The CONSULTANT also agrees not to specify any service, product, treatment, process or material in which the CONSULTANT has a material financial interest, either direct or indirect, without first notifying the DISTRICT of that fact. The CONSULTANT shall immediately disqualify itself and shall not use its official position to influence in any way any matter coming before the DISTRICT in which the CONSULTANT has a financial interest as defined in Government Code section 87103. The CONSULTANT represents that it has no knowledge of any financial interests that would require it to disqualify itself from any matter on which it might perform services for the DISTRICT. CONSULTANT acknowledges that prior to entering into this Agreement and during the term, CONSULTANT shall have a duty to disclose to the DISTRICT any and all circumstances that may pose an actual or potential conflict of interest under state law or the DISTRICT’s Conflict of Interest Code. If a potential conflict of interest issue arises, CONSULTANT shall fully cooperate in any inquiry and provide the DISTRICT with all documents or other information reasonably necessary to enable the DISTRICT to determine whether or not a conflict of interest existed or exists. The DISTRICT understands that CONSULTANT provides a wide array of public policy services to many clients around the world. The DISTRICT understand the CONSULTANT’s services include legislative and administrative representations on matters that may affect the DISTRICT’s interests, directly or indirectly. Therefore, the DISTRICT waives objection to any conflict of interest that might be deemed to be created by the CONSULTANT’s representation of other clients in legislative or administrative policy matters that are unrelated to the specific representation CONSULTANT has been asked to undertake on the DISTRICT’s behalf. The DISTRICT’s waiver permits CONSULTANT to represent another client in advocating a change in law or policy areas even if the policy advocated would or might have a direct or indirect adverse impact upon the DISTRICT’s interests. The CONSULTANT shall not conduct or solicit any non-District business while on DISTRICT time or using DISTRICT property. 19. MISCELLANEOUS PROVISIONS. A. Computation of Time Periods. If any date or time period provided for in this Agreement is or ends on a Saturday, Sunday or federal, state or legal holiday, then such date shall automatically be extended until 5:00 p.m. Pacific Time of the next day which is not a Saturday, Sunday or federal, state or legal holiday. Page 8 of 11 B. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute but one and the same instrument. C. Captions. Any captions to, or headings of, the sections or subsections of this Agreement are solely for the convenience of the parties hereto, are not a part of this Agreement, and shall not be used for the interpretation or determination of the validity of this Agreement or any provision hereof. D. No Obligations to Third Parties. Except as otherwise expressly provided herein, the execution and delivery of this Agreement shall not be deemed to confer any rights upon, or obligate any of the parties hereto, to any person or entity other than the parties hereto. E. Exhibits and Schedules. The exhibits and schedules attached hereto are hereby incorporated herein by this reference for all purposes. F. Amendment to this Agreement. The terms of this Agreement may not be modified or amended except by an instrument in writing executed by each of the parties hereto. G. Waiver. The waiver or failure to enforce any provision of this Agreement shall not operate as a waiver of any future breach of any such provision or any other provision hereof. H. Applicable Law/Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California. Any action or proceeding brought by any party against any other party arising out of or related to this Agreement shall be brought exclusively in San Diego County. I. Entire Agreement. This Agreement supersedes any prior agreements, negotiations and communications, oral or written, and contains the entire agreement between the parties as to the subject matter hereof. No subsequent agreement, representation, or promise made by either party hereto, or by or to an employee, officer, agent or representative of any party hereto shall be of any effect unless it is in writing and executed by the party to be bound thereby. J. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto. K. Construction. The parties acknowledge and agree that (i) each party is of equal bargaining strength, (ii) each party has actively participated in the drafting, preparation and negotiation of this Agreement, (iii) each such party has consulted with or has had the opportunity to consult with its own, independent counsel and such other professional advisors as such party has deemed appropriate, relative to any and all matters contemplated under this Agreement, (iv) each party and such party’s counsel and advisors have reviewed this Agreement, (v) each party has agreed to enter into this Agreement following such review and the rendering of such advice, and (vi) any rule or construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement, or any portions hereof, or any amendments hereto. L. Cumulative Remedies. Except as set forth to the contrary herein, any right or remedy of the DISTRICT or the CONSULTANT shall be cumulative and without prejudice to any other right or remedy, whether contained herein or not. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first above written. Page 9 of 11 OTAY WATER DISTRICT BROWNSTEIN HYATT FARBER SCHRECK, LLP By: ________________________ By: ____________________________ Mark Watton, Chris Frahm General Manager Shareholder By: ________________________ Daniel Shinoff General Counsel Page 10 of 11 EXHIBIT “A” SCOPE OF WORK Otay Water District (the “District”) has asked and Brownstein Hyatt Farber Schreck, LLP (the “CONSULTANT”) has agreed to provide the following services: 1. Track all pending and introduced legislation including bill amendments and report to the Project Coordinator on legislation of interest to the District; 2. Monitor and attend Senate and Assembly Water Committee agendas and hearings as requested by the Project Coordinator; 3. Monitor ACWA and other water agencies and other special district lobbying group activities and report to the Project Coordinator on matters of interest to the District; 4. Schedule meetings and communications with legislators and the administration as requested by the District; 5. Prepare and distribute support and opposition letters to proposed legislation; 6. Draft and distribute advocacy positions as requested; 7. Ongoing consulting regarding pending and introduced legislation and bill amendments, hearings and agendas, and other matters of interest to the District in Sacramento; and 8. Report quarterly, or as requested, on the progress of legislative activities. Page 11 of 11 EXHIBIT “B” PRICE SCHEDULE (If Hourly Rates, Include) CERTIFICATIONS; NOTES: a) It is agreed that this hourly rate applies to all services provided to the District. b) The DISTRICT is not obligated to pay any other rates other than those identified herein including overtime rates paid by the CONSULTANT unless prior written authorization by the DISTRICT has been provided. c) CONSULTANT shall be compensated for actual services performed in accordance with this Agreement. d) All policy services shall be billed at the CONSULTANT’s standard hourly rates in an amount not to exceed $200,000.00 for the term of the Agreement. e) The DISTRICT agrees to be charged in ten minute increments for work completed by the CONSULTANT. The CONSULTANT’s standard hourly rates are as follows: a. Shareholder: $545-875/hour b. Associate/Policy Advisor: $400/hour c. Paralegal/Legislative Assistant: $165 /hour f) CONSULTANT certifies via the initials of authorized CONSULTANT representative that prior to providing services, CONSULTANT has conducted background investigations on staff assigned to the work, including checks of criminal records, DMV records, controlled substance records, and a post-offer fitness for duty review. Vendor Initials: ______ g) CONSULTANT certifies that staff assigned to the work understands and agrees that he or she shall remain an employee, contractor or subcontractor of Vendor and that the District does not assume any obligation typical of an employer in connection with any services under this Agreement. Vendor Initials: ______ h) CONSULTANT certifies that staff assigned to the work understands and agrees that CONSULTANT remains solely responsible for all obligations typical of an employer including but not limited to the payment of any applicable employee wages, payroll taxes, benefits, amounts due for federal and state income taxes and Social Security taxes. Vendor Initials: _____ i) DISTRICT agrees to reimburse CONSULTANT for all reasonable costs that CONSULTANT actually incurs in the performance of this Agreement. CONSULTANT shall request written pre- approval of any single expense in excess of $250 or any monthly sum of expenses in excess of $500. CONSULTANT shall submit to DISTRICT detailed receipts and a detailed invoice for all reasonable costs incurred. Any entertainment or meal expenses must be pre-approved by the DISTRICT. The DISTRICT shall not reimburse for any cost of alcohol incurred during entertainment or meals. Failure to obtain pre-approval may result in denial of reimbursement. j) The DISTRICT agrees to inform CONSULTANT of any dispute the DISTRICT may have with respect to a billing statement within ten (10) days of the statement date. If the DISTRICT disputes a portion of a billing statement, the DISTRICT agrees to pay the undisputed portion within forty-five (45) days of your receipt of the statement.