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Agenda Packet - EVWD Board of Directors - 11/22/2011
East Valley Water District 3694 HIGIILAND AVE., SUITE #30, HIGI- ILAND, CA BOARD MEETING November 22, 201 1 3:00 P.M. ►�: "In order to comply with legal requirements for posting of agenda, only those items filed with the District Secretary by 12:00 p.m. on Tuesday prior to the following Tuesday meeting not requiring departmental investigation, will be considered by the Board of Directors ". --------------------------------------------------------------------- CALL TO ORDER PLEDGE Oh ALLEGIANCE ---------------------------------------------------------------- - - - - -- PUBLIC COMMENTS - At this time, members of the public may address the Board of Directors on matters within its jurisdiction. To provide comments on specific agenda items, please complete a speaker's request form and provide the completed form to the Board Secretary prior to the board meeting. 1. Approval of Agenda 2. CONSENT CALENDAR -All matters listed under the Consent Calendar are considered by the Board of Directors to be routine and will be enacted in one motion. There will be no discussion of these items prior to the time the board considers the motion unless members of the board, the administrative staff, or the public request specific items to be discussed and /or removed from the Consent Calendar. a. Accounts Payable Disbursements: Accounts Payable Checks #230487 through #230664 which were distributed during the period of November 2, 2011 through November 14, 2011 in the amount of $878,914.80. Payroll and benefit contributions for the period ended November 14, 2011 and included checks and direct deposits, in the amount of $227,950.28. Total Disbursements for the period $1,106,865.08 NEW BUSINESS 3. Authorization to send a letter to District employees regarding the 2011 Employee Awards Banquet 4. Approval of Consulting Agreement between East Valley Water District and Robert E. Martin for professional consulting and technical representation services REPORTS 5. General Manager /Staff Reports • MOU Labor Negotiations Update 6. Legal Counsel Report 7. Committee Reports • Legislative (Standing) • Community Affairs (Standing) • Labor Negotiating Committee (Ad -Hoc) • Succession Planning Committee (Ad -Hoc) 8. Oral comments from Board of Directors ADJOURN ---------------------------------------------------------------------------- Pursuant to Government Code Section 54954.2(a), any request for a disability - related modi£ cation or accommodation, including auxiliary aids or services, that is sought in order to participate in the abovc- agendized public meeting should be directed to the District's Administrative Manager at (909) 885 -4900 at least 72 hours prior to said meeting. -------------------------------------------------------------------- - - - - -- East Valley Water District Staff Report Meeting Date: November 22, 201 1 TO: Board of Directors SUBJECT: Disbursements SUMMARY: Issue — Prudent fiscal policy and fiscal transparency Recommendation — Approve the attached list of accounts payable checks and payroll issued Fiscal Impact — $1,106,865.08 (budgeted expenditures) Previous Related Action — None BACKGROUND A listing of accounts payable checks, and the total for payroll and benefits costs incurred are submitted to the board of directors for review and check register, and the total for payroll cited below 201 1 through November 14, 201 1. DISCUSSION approval with each board packet. The attached were disbursed during the period November 2, Accounts payable checks for the period included check numbers 230487 through 230664 for a total of $878,914.80. The source of funds for this amount is as follows: Unrestricted Funds $878,9].4.80 Bond Financing $ State Financing $ Payroll and benefit contributions paid for this period totaled $227,950.28. Total disbursed during the period November 2 to November 14, O1 1 is $ l ,106,865.08. Res ctfully Submitt , Brian W. Tomp Gins Chief Financial Officer App ved by, r Robert A_ DeLoa h Interim General Manager SR# 0042 ° Y S U Il Q ° ° m ° U ° m O p O O O oD .N- N f- LO co N O O O CO c0 N N (O cD �_ O) O c0 U� u') M cam') co 0 0 N N O) O'1 OO 00 t� N M CV — M N N lCl In O l0 M Z!! 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O O O p O p O p O ti O c0 O O Cn N r n YO `10 YO YO ]CO YO YO YO c » c» v > v > v > v > c» v > E N to M Ct7 CO N (O M CN CO N CO CO O O N CO m O CO �n O CO O CO o O CO r O CO c� O M N o N o N o N o N o N o N o N o i East Valley Water District Staff Report Meeting Date: November 22, 201 1 'I'O: Board of Directors SUBJECT: Letter and Invitation from the Board of Directors to all District Employees SUMMARY: Issue — The Board of Directors is being asked to authorize sending a letter to all District employees inviting them to our 2012 Employee Awards Banquet. The Board is also being asked to sign the letter. Recommendation — It is recommended that the Board authorize a letter and invitation be sent to each District employee inviting them to the 2011 Employee Awards Banquet. Fiscal Impact — Cost associated with this letter include printing and mailing which is estimated to be less than $50.00 Previous Related Action — None BACKGROUND "1'he Employee Awards Banquet is an annual event that recognizes the accomplishments and achievements of District employees throughout the year. The 2010 -2011 year has had many challenges and changes which either directly or indirectly impact staff and moral. Staff recognizes the value that this year's awards banquet can have on turning the confer and looking forward to a new year with optimism. DISCUSSION A personal invitation by the Board of Directors to each employee can be a useful tool in communicating the value the Board places on working with the employees and developing a "Best of Class" team. The District has faced many challenges this past year but has a very bright future with a new General Manager coming on board and the development of a new strategic plan. Both the Board of Directors from a policy perspective and the employees from the policy implementation perspective SR# 0043 will share in the future success of the District. A copy of a proposed letter is attached for the Board's review. With the Board's approval staff will develop a version for signature by the entire Board. Re ectfully Subn fitted, , ©C/�i r Robert A. DeLoac i Interim General Manager Attachments: Letter Invitation SRtt 0043 East Valley Water District 3654 East Highland Avenue, Suite 18, Highland, GA 92346 P.O. Box 3427, San Bernardino, CA 92413 November 10, 2011 To our valued employees: Serving Our Community for Over 50 Years East Valley Water District has experienced many challenges over the past year that has lead to a number of very important but necessary changes. Even while working through these difficult leadership issues we know that our valued employees were often directly impacted by our actions and the actions of others. Despite this, our employees continued to provide excellent services to our customers and we thank you for your commitment. We expect 2012 to be a turning point for the District and the beginning of a new and better era. We will have a new General Manger in place and initiate a new Strategic Planning process that will include new District headquarters and new maintenance facilities. As we focus on becoming a "Best of Class" utility, we believe our employees deserve to be treated with dignity and respect, which is why we are proposing to radically change the method in which we evaluate compensation for all employees. Our expectations are very high and we know working together we have the potential to achieve great things. This year's Employee Awards IIanquet is a very important event towards creating a new future for the District. It is the one time during the entire year where we can all come together to recognize the efforts and achievements of all our employees. A committee of employees has been working very hard at making this event a great success. Each member of the Board of Directors wants to take this opportunity to personally invite each of you and your guest to join us for this year's Banquet. We hope you will be able to attend this important event. Sincerely, The Board of Directors; Skip Wilson, President Matt Levesque, Vice President Kip Sturgeon, Board Member Larry Malmberg, Board Member James Morales, Board Member BOARD OF DIRECTORS George E. "Skip" Wilson President Matt Le Vesque Vice President Kip E Sturgeon Director James Morales, Jr Director Larry Malmberg Director Robert A. DeLoach General Manager (Interim) Brian W. Tompkins Chief Financial Officer Ronald E. Buchwald District Engineer Administration (909) 885 -4900, Fax (909) 889 -5732 •Engineering (909) 888 -8986, Fax (909) 383 -1481 Customer Service (909) 889 -9501, Fax (909) 888 -6741 •Finance (909) 381 -6463, Fax (909) 888 -6741 East Valley Water District Staff Report Meeting Date: November 22, 201 1 TO: Board of Directors SUBJECT: Approval of Consultant Agreement with Robert E. Martin SUMMARY: Issue — The Board of Directors desires to retain the services of Robert >✓. Martin to perform professional consulting services to the District Recommendation — It is recommended that the Board of Directors approve a six (6) month consulting agreement with Robert E. Martin. Fiscal Impact — The financial terms of the agreement call for Mr. Martin to be paid $5,500 per month for six (6) months for a total of $33,000_ Previous Related Action — None BACKGROUND Mr. Martin possesses certain professional and historical knowledge and experience that would prove beneficial and the District desires to retain his services for a defined period of time. As a consultant for the District, Mr. Martin will provide professional representation services and technical services for the District at the Direction of the General Manager. DISCUSSION Mr_ Martin has intimate knowledge of many of the organisations and issues that affect the operations and management of the District, particularly as it relates to water rights, Santa Ana River diversions and federal projects. This experience should prove to be valuable to the new General Manager until such time as he or his staff gain the necessary experience working with the various entities. Staff is recommending that the District enter into a six (6) month consulting agreement with Mr. Martin for which he will be responsible at the General Manager's direction for representing the District and providing input and advice to the General Manager and the Board of Directors. The types of meetings that Mr. Martin will represent the district include but are not limited to matters relative to the Santa Ana Sucker fish issue and the Santa Ana River, the Western Judgment, the City of San SR# 0044 Bernardino wastewater treatment Joint Powers Authority and federal issues related to the 7 Oaks Dam project. At the Direction of the General Manager, Mr. Martin may be asked to represent or provide consulting services on other projects he deems necessary. Mr. Martin will provide a monthly update to the Board of Directors during a regular Board Meeting. Respectfully Submit ed, i�b ;� � Robert A. DeLoacl Interim General Managcr Attachments: Professional Services Agreement SR# 0044 EAST VALLEY WATER DISTRICT AGREEMENT FOR SERVICES THIS AGREEMENT is made this 1 day of December, 2011, by and between the EAST VALLEY WATER DISTRICT, a County Water District organized and operating pursuant to California Water Code Section 30000 et seq. (hereinafter referred to as the "DISTRICT "), and Robert E. Martin, an individual (hereinafter referred to as "CONTRACTOR "). RECITALS WHEREAS, the DISTRICT desires to contract with CONTRACTOR to provide professional consulting and technical representation services (hereinafter referred to as "Project "); and WHEREAS, CONTRACTOR is willing to contract with the DISTRICT to provide such Project services; and WHEREAS, CONTRACTOR holds itself as duly licensed, qualified, and capable of performing said Project services; and WHEREAS, this Agreement establishes the terms and conditions for the DISTRICT to retain CONTRACTOR to provide the services described herein for the Project. COVENANTS NOW, THEREFORE, in consideration of the faithful performance of the terms and conditions set forth herein, the parties hereto agree as follows: ARTICLE I ENGAGEMENT OF CONTRACTOR AND AUTHORIZATION TO PROCEED 1.1 ENGAGEMENT: The DISTRICT hereby engages CONTRACTOR, and CONTRACTOR hereby accepts the engagement, to perform certain services described in Section 2.1 of this Agreement for the term set forth in Section 6.7 of this Agreement_ 1.2 AUTHORIZATION TO PROCEED: Authorization for CONTRACTOR to proceed with all or a portion of the work described in Section 2.1 of this Agreement will be granted in writing by the DISTRICT as soon as both parties sign the Agreement and all applicable insurance and other security documents required pursuant to Section 6.3 of this Agreement are received and approved by the DISTRICT_ CONTRACTOR shall not proceed with said work until so authorized by the DISTRICT, and shall commence work immediately upon receipt of the Notice to Proceed. 1.3 NO EMPLOYEE RELATIONSHIP: CONTRACTOR shall perform the services provided for herein as an independent contractor, and not as an employee of the DISTRICT. The DISTRICT shall have ultimate control over the work performed for the Project. CONTRACTOR is not to be considered an agent or employee of the DISTRICT for any purpose, and shall not be entitled to participate in any pension plans, insurance coverage, bonus, stock, or similar benefits that the DISTRICT provides for its employees. CONTRACTOR shall indemnify the DISTRICT for any tax, retirement contribution, social security, overtime payment, or workers' compensation payment which the DISTRICT may be required to make on behalf of CONTRACTOR or any employee of CONTRACTOR for work performed under this Agreement. ARTICLE 11 SERVICES OF CONTRACTOR 2.1 SCOPE OF SERVICES: The scope of services to be pertormed by the CONTRACTOR under this Agreement are described in the Scope of Work attached hereto as Exhibit "A" and incorporated herein by this reference ( "Scope of Work "), and shall, where not specifically addressed, include all related services ordinarily provided z by the CONTRACTOR under same or similar circumstances and /or otherwise necessary to satisfy the requirements of Section 3.3 of this Agreement. In case of conflict between the terms of this Agreement and the provisions of the Scope of Work, this Agreement shall govern. 2.2 PREVAILING WAGES: In accordance with the provisions of the California Labor Code, CONTRACTOR shall secure the payment of compensation to employees. To the extent required by the California Labor Code, CONTRACTOR shall pay not less than the prevailing rate of per diem wages as determined by the Director, Department of Industrial Relations, State of California. Copies of such prevailing rate of per diem wages are on file at the DISTRICT's office, which copies will be made available to any interested party upon request. CONTRACTOR shall post a copy of such determination at each job site. If applicable, CONTRACTOR shall forfeit to the DISTRICT the amount of the penalty set forth in Labor Code Section 1777.7(b), or any subsequent amendments thereto, for each calendar day, or portion thereof, for each worker paid less than the specified prevailing rates for such work or craft in which such worker is employed, whether paid by CONTRACTOR or by any subcontractor. 2.3 HOURS AND WORKING CONDITIONS: The DISTRICT is a public entity in the State of California and is subject to the provisions of the Government Code and the Labor Code of the State. It is stipulated and agreed that all provisions of law applicable to public contracts are a part of this Agreement to the same extent as though set forth herein and will be complied with by CONTRACTOR. CONTRACTOR shall comply with all applicable provisions of the California Labor Code relating to working hours and the employment of apprentices on public works projects. CONTRACTOR shall, as a penalty to the DISTRICT, forfeit $25.00 for each worker employed in the execution of this Agreement by CONTRACTOR or by any subcontractor, for each calendar day during which such worker is required or permitted to work more than 8 hours in any one calendar day and 40 hours in any one calendar week, unless such worker received compensation for all hours worked in excess of 8 hours at not less than 1'/2 times the basic rate of pay. 3 ARTICLE III RESPONSIBILITIES OF THE DISTRICT AND OF CONTRACTOR 3.1 DUTIES OF THE DISTRICT: The DISTRICT, without cost to CONTRACTOR, will provide all pertinent information necessary for CONTRACTOR's performance of its obligations under this Agreement that is reasonably available to the DISTRICT unless otherwise specified in the Scope of Work, in which case the CONTRACTOR is to acquire such information. The DISTRICT does not guarantee or ensure the accuracy of any reports, information, and /or data so provided. To the extent that any reports, information, and /or other data so provided was supplied to the DISTRICT by persons who are not employees of the DISTRICT, any liability resulting from inaccuracies and /or omissions contained in said information shall be limited to liability on behalf of the party who prepared the information for the DISTRICT. 3.2 REPRESENTATIVE OF DISTRICT: The DISTRICT will designate the General Manager as the person to act as the DISTRICT'S representative with respect to the work to be performed under this Agreement. Such person will have complete authority to transmit instructions, receive information, and interpret and define the DISTRICT's policies and decisions pertinent to the work. In the event the DISTRICT wishes to make a change in the DISTRICT'S representative, the DISTRICT shall notify the CONTRACTOR of the change in writing. 3.3 DUTIES OF CONTRACTOR: CONTRACTOR shall perform the Project work in such a manner as to fully comply with all applicable professional standards of care, including professional quality, technical accuracy, timely completion, and other services furnished and /or work undertaken by CONTRACTOR pursuant to this Agreement. The CONTRACTOR shall cause all work and deliverables to conform to all applicable federal, state, and local laws and regulations. 3.4 APPROVAL OF WORK: The DISTRICT's approval of work or materials furnished hereunder shall not in any way relieve CONTRACTOR of responsibility for the technical adequacy of its work. Neither the DISTRICT's review, approval or acceptance of, nor payment for any of the services shall be construed to operate as a waiver of any rights under this Agreement or of any cause of action arising out of the performance of this Agreement. Where approval by the DISTRICT is indicated in this Agreement, it is 4 understood to be conceptual approval only and does not relieve the CONTRACTOR of responsibility for complying with all laws, codes, industry standards, and liability for damages caused by negligent acts, errors, omissions, noncompliance with industry standards, or the willful misconduct of the CONTRACTOR or its subcontractors. CONTRACTOR's obligation to defend, indemnify, and hold harmless the DISTRICT, and its directors, officers, employees and agents as set forth in Section 6.9 of this Agreement also applies to the actions or omissions of the CONTRACTOR or its subcontractors as set forth above in this paragraph. ARTICLE IV PAYMENTS TO CONTRACTOR 4.1 PAYMENT: The DISTRICT will pay CONTRACTOR for work performed under this Agreement, which work can be verified by the DISTRICT, on the basis of the - #�et+Mlgr� rates set forth in the Scope of Work. The amount set forth herein is the maximum compensation to which CONTRACTOR may be entitled for the performance of services to complete the work for the Project, unless the Scope of Work or time to complete the work is changed by the DISTRICT in writing in advance of the work to be performed thereunder. Adjustments in the total payment amount shall only be allowed pursuant to Section 6.4 of this Agreement. In no event shall CONTRACTOR be entitled to compensation greater than the amount set forth herein where changes in the Scope of Work or the time for pertormance are necessitated by the negligence of CONTRACTOR or any sub - contractor performing work on the Project. 4.2 PAYMENT TO CONTRACTOR: Payment will be made by the DISTRICT within thirty (30) calendar days after receipt of an invoice from CONTRACTOR, provided that all invoices are complete and product and services are determined to be of sufficient quality by the DISTRICT. CONTRACTOR shall invoice DISTRICT monthly for services performed under this Agreement_ In the event that a payment dispute arises between the parties, CONTRACTOR shall provide to the DISTRICT full and complete access to CONTRACTOR's labor cost records and other direct cost data, and copies thereof if requested by the DISTRICT. E 4.3 COST FOR REWORK: CONTRACTOR shall, at no cost to the DISTRICT, prepare any necessary rework occasioned by CONTRACTOR's negligent act or omission or otherwise due substantially to CONTRACTOR's fault. ARTICLE V COMPLETION SCHEDULE 5.1 TASK SCHEDULE: The work is anticipated to be completed in accordance with the schedule contained in the Scope of Work_ 5.2 TIME OF ESSENCE: CONTRACTOR shall perform all services required by this Agreement in a prompt, timely, and professional manner in accordance with the above schedule. Time is of the essence in this Agreement. ARTICLE VI GENERAL PROVISIONS 6.1 COMPLIANCE WITH FEDERAL, STATE, AND LOCAL LAWS: CONTRACTOR shall at all times observe all applicable provisions of Federal, State, and Local laws and regulations including, but not limited to, those related to Equal Opportunity Employment. 6.2 SUBCONTRACTORS AND OUTSIDE CONSULTANTS: No subcontract shall be awarded by CONTRACTOR if not identified as asub- contractor in its Proposal unless prior written approval is obtained from the DISTRICT. CONTRACTOR shall be responsible for payment to subcontractors used by them to perform the services under this Agreement. If CONTRACTOR subcontracts any of the work to be performed, CONTRACTOR shall be as fully responsible to the DISTRICT for the performance of the work, including errors and omissions of CONTRACTOR's subcontractors and of the persons employed by the subcontractor, as CONTRACTOR is for the acts and omissions of persons directly employed by the CONTRACTOR. Nothing contained in this Agreement shall create any contractual relationship between any subcontractor of CONTRACTOR and the DISTRICT. CONTRACTOR shall bind every subcontractor and every subcontractor of a subcontractor to the terms of this Agreement that are �, applicable to CONTRACTOR's work unless specifically noted to the contrary in the subcontract in question and approved in writing by the DISTRICT. 6.3 INSURANCE: CONTRACTOR shall secure and maintain in full force and effect, until the satisfactory completion and acceptance of the Project by DISTRICT, such insurance as will protect it and the DISTRICT in such a manner and in such amounts as set forth below. The premiums for said insurance coverage shall be paid by the CONTRACTOR. The failure to comply with these insurance requirements may constitute a material breach of this Agreement, at the sole discretion of the DISTRICT_ (a) Certificates of Insurance: Prior to commencing services under this Agreement, and in any event no later than ten (10) calendar days after execution of this Agreement, CONTRACTOR shall furnish DISTRICT with Certificates of Insurance and endorsements verifying the insurance coverage required by this Agreement is in full force and effect_ The DISTRICT reserves the right to require complete and accurate copies of all insurance policies required under this Agreement_ (b) Required Provisions: The insurance policies required by this Agreement shall include the following provisions or have them incorporated by endorsement(s): (1) Primary Coverage: The insurance policies provided by CONTRACTOR shall be primary insurance and any self- insured retention and /or insurance carried by or available to the DISTRICT or its employees shall be excess and non - contributory coverage so that any self- insured retention and /or insurance carried by or available to the DISTRICT shall not contribute to any loss or expense under CONTRACTOR's insurance_ (2) Additional Insured: The policies of insurance provided by CONTRACTOR, except Workers' Compensation and Professional Liability, shall include as additional insureds: the DISTRICT, its directors, officers, employees, and agents when acting in their capacity as such in conjunction with the performance of this Agreement. Such policies shall contain a "severability of interests" provision, also known as "Cross liability" or "separation of insured ". r� (3) Cancellation: Each certificate of insurance and insurance policy shall provide that the policy may not be non - renewed, canceled (for reasons other than non - payment of premium) or materially changed without first giving thirty (30) days advance written notice to the DISTRICT, or ten (10) days advance written notice in the event of cancellation due to non - payment of premium. (4) Waiver of Subrogation: The insurance policies provided by CONTRACTOR shall contain a waiver of subrogation against DISTRICT, its directors, officers, employees and agents for any claims arising out of the services performed under this Agreement by CONTRACTOR. (5) Claim Reporting: CONTRACTOR shall not fail to comply with the claim reporting provisions or cause any breach of a policy condition or warranty of the insurance policies required by this Agreement that would affect the coverage afforded under the policies to the DISTRICT_ (6) Deductible /Retention: If the insurance policies provided by CONTRACTOR contain deductibles or self- insured retentions, any such deductible or self- insured retention shall not be applicable with respect to the coverage provided to DISTRICT under such policies. CONTRACTOR shall be solely responsible for any such deductible or self- insured retention and the DISTRICT, in its sole discretion, may require CONTRACTOR to secure the payment of any such deductible or self- insured retention by a surety bond or an irrevocable and unconditional letter of credit. (7) CONTRACTOR's Sub - contractors: CONTRACTOR shall include all sub - contractors as additional insureds under the insurance policies required by this Agreement to the same extent as the DISTRICT or shall furnish separate certificates of insurance and policy endorsements for each sub - contractor verifying that the insurance for each sub - contractor complies with the same insurance requirements applicable to CONTRACTOR under this Agreement. (c) Insurance Company Requirements: CONTRACTOR shall provide insurance coverage through insurers that have at least an "A" Financial Strength Rating and a "VII" Financial Size Category in accordance with the current ratings by the A. M. Best Company, Inc. as published in Best's Key Rating Guide or on said company's web site. In addition, any and all insurers must be admitted and authorized to conduct business in the State of California and be a participant in the California Insurance Guaranty Association, as evidenced by a listing in the appropriate publication of the California Department of Insurance. (d) Policy Requirements: The insurance required under this Agreement shall meet or exceed the minimum requirements as set forth below: (1) Workers' Compensation: CONTRACTOR shall maintain Workers' Compensation insurance as required by law in the State of California to cover CONTRACTOR's obligations as imposed by federal and state law having jurisdiction over CONTRACTOR's employees and Employers' Liability insurance, including disease coverage, of not less than $1 ,000,000. Even if CONTRACTOR contends that it has no employees, CONTRACTOR shall obtain a policy to cover its potential exposure on a payroll basis of "if any" for the workers' classification applicable to CONTRACTOR's services under this Agreement. (2) General Liability: CONTRACTOR shall maintain Comprehensive General Liability insurance with a combined single limit of not less than $1 ,000,000 per occurrence or claim and $1 ,000,000 aggregate. The policy shall include, but not be limited to, coverage for bodily injury, property damage, personal injury, products, completed operations and blanket contractual to cover, but not be limited to, the liability assumed under the indemnification provisions of this Agreement. In the event the Comprehensive General Liability insurance policy is written on a "claims made" basis, 9 coverage shall extend for two years after the satisfactory completion and acceptance of the Project by DISTRICT. (3) Automobile Liability: CONTRACTOR shall maintain Commercial Automobile Liability insurance with a combined single limit for bodily injury and property damage of not less than $1,000,000 each occurrence for any owned, hired, or non -owned vehicles_ (4) Professional Liability: CONTRACTOR shall maintain Professional Liability insurance covering errors and omissions arising out of the services performed by the CONTRACTOR or any person employed by him, with a limit of not less than $1 ,000,000 per occurrence or claim and $1,000,000 aggregate_ In the event the insurance policy is written on a "Claims made" basis, coverage shall extend for two years after the satisfactory completion and acceptance of the Project by DISTRICT. (5) Property Coverage — Valuable Papers: Property coverage on an all -risk, replacement cost form with Valuable Papers insurance sufficient to assure the restoration of any documents, memoranda, reports, plans or other similar data, whether in hard copy or electronic form, relating to the services provided by CONTRACTOR under this Agreement_ 6.4 CHANGES IN SCOPE OR TIME: If the DISTRICT requests a change in the Scope of Work or time of completion by either adding to or deleting from the original scope or time of completion, an equitable adjustment shall be made and this Agreement shall be modified in writing accordingly_ CONTRACTOR must assert any claim for adjustment under this clause in writing within thirty (30) calendar days from the date of receipt from CONTRACTOR of the notification of change unless the DISTRICT grants a further period of time before the date of final payment under this Agreement. 6.5 NOTICES: All notices to either party by the other shall be made in writing and delivered or mailed to such party at their respective addresses as follows, or to other such address as either party may designate, and said notices shall be deemed to have been made when delivered or, if mailed, five (5) days after mailing. io To DISTRICT: East Valley Water District 3654 Highland Avenue, Suite 18 P.O. Box 3427 San Bernardino, CA 92413 Attn: General Manager To CONTRACTOR: Robert E. Martin 35575 Carter Yucaipa, CA 92399 6.6 CONTRACTOR'S ASSIGNED PERSONNEL: CONTRACTOR designates Robert E. Martin to have immediate responsibility for the performance of the work and for all matters relating to performance under this Agreement_ Substitution of any assigned personnel shall require the prior written approval of the DISTRICT. If the DISTRICT determines that a proposed substitution is not acceptable, then, at the request of the DISTRICT, CONTRACTOR shall substitute with a person acceptable to the DISTRICT_ 6.7 TERMINATION: (a) The DISTRICT may terminate this Agreement or abandon any portion of the Project by giving ten (10) days written notice thereof to CONTRACTOR. CONTRACTOR may terminate its obligation to provide further services under this Agreement upon thirty (30) calendar days written notice only in the event of substantial failure by the DISTRICT to perform in accordance with the terms of this Agreement through no fault of the CONTRACTOR. (b) In the event of termination of this Agreement or abandonment of any portion of the Project, the DISTRICT shall be immediately given title to al( original drawings and other documents developed for the Project, and the sole right and remedy of CONTRACTOR shall be to receive payment for all amounts due and not previously paid to CONTRACTOR for services completed or in progress in accordance with the Agreement prior to such date of termination. If termination occurs prior to completion of any task i1 for which payment has not been made, the fee for services performed during such task shall be based on an amount mutually agreed to by the DISTRICT and CONTRACTOR. Such payments available to the CONTRACTOR under this paragraph shall not include costs related to lost profit associated with the expected completion of the work or other such payments relating to the benefit of this Agreement. 6.8 ATTORNEYS' FEES: In the event that either the DISTRICT or CONTRACTOR brings an action or proceeding for damages for an alleged breach of any provision of this Agreement, to interpret this Agreement or determine the rights of and duties of either party in relation thereto, the prevailing party shall be entitled to recover as part of such action or proceeding all litigation, arbitration, mediation and collection expenses, including witness fees, court costs, and reasonable attorneys' fees. Such fees shall be determined by the Court in such litigation or in a separate action brought for that purpose. Mediation will be attempted if both parties mutually agree before, during, or after any such action or proceeding has begun. 6.9 INDEMNITY: (a) CONTRACTOR shall defend, indemnify and hold DISTRICT, including its directors, officers, employees and agents, harmless from and against any and all claims, demands, causes of action, suits, debts, obligations, liabilities, losses, damages, costs, expenses, attorney's fees, awards, fines, settlements, judgments or losses of whatever nature, character, and description, with respect to or arising out of the work to be performed under this Agreement, including without limitation, any and all such claims, demands, causes of action, suits, debts, obligations, liabilities, losses, damages, costs, expenses, attorney's fees, awards, fines, settlements, judgments or losses of whatever nature, character, and description, arising by reason of death or bodily injury to one or more persons, including the employees of CONTRACTOR; injury to property of any kind, including loss of use; or economic damages of any kind, caused by, or arising out of, any alleged or actual act or omission, regardless of whether such act or omission is active or passive, by CONTRACTOR, any of CONTRACTOR's sub - contractors or DISTRICT, including their iz respective directors, officers, employees, agents and assigns, excepting only such matters arising from the sole negligence or willful misconduct of the DISTRICT. (b) CONTRACTOR shall defend, indemnify and hold DISTRICT, including its directors, officers, employees and agents, harmless from and against any and all claims, demands, causes of action, suits, debts, obligations, liabilities, losses, damages, costs, expenses, attorney's fees, awards, fines, settlements, judgments or losses of whatever nature, character, and description, with respect to or arising out of any infringement or alleged infringement of any patent, copyright or trademark and arising out of the use of any equipment or materials furnished under this Agreement by the CONTRACTOR or CONTRACTOR'S sub - contractors, including their respective directors, officers, employees, agents and assigns, or out of the processes or actions employed by, or on behalf of, the CONTRACTOR or CONTRACTOR's sub - contractors, including their respective directors, officers, employees, agents and assigns, in connection with the performance of services under this Agreement. CONTRACTOR shall have the right, in order to avoid such claims or actions, to substitute at its expense non- infringing equipment, materials or processes, or to modify at its expense such infringing equipment, materials, and processes so they become non - infringing, provided that such substituted and modified equipment, materials, and processes shall meet all the requirements and be subject to all the provisions of this Agreement. (c) CONTRACTOR shall defend, indemnify and hold DISTRICT, including its directors, officers, employees and agents, harmless from and against any and all claims, demands, causes of action, suits, debts, obligations, liabilities, losses, damages, costs, expenses, attorney's fees, awards, fines, settlements, judgments or losses of whatever nature, character, and description, with respect to or arising out of any breach by CONTRACTOR or CONTRACTOR's sub - contractors, including their respective directors, 13 officers, employees, agents and assigns, of the aforesaid obligations and covenants, and any other provision or covenant of this Agreement. (c) It is the intent of the parties to this Agreement that the defense, indemnity and hold harmless obligation of CONTRACTOR under this Agreement shall be as broad and inclusive as may be allowed under Ca /ifo�nia Civi/ Code §§ 2778 through 2784.5, or other similar state or federal law. 6.10 SAFETY: CONTRACTOR shall perform the work in full compliance with applicable State and Federal safety requirements including, but not limited to, Occupational Safety and Health Administration requirements. (a) CONTRACTOR shall take all precautions necessary for the safety of, and prevention of damage to, property on or adjacent to the Project site, and for the safety of, and prevention of injury to, persons, including DISTRICT's employees, CONTRACTOR's employees, and third persons. All work shall be performed entirely at CONTRACTOR's risk. CONTRACTOR shall comply with the insurance requirements set forth in Section 6.3 of this Agreement. (b) CONTRACTOR shall also furnish the DISTRICT with a copy of any injury prevention program established for the CONTRACTOR's employees pursuant to Labor Code Section 6401.7, including any necessary documentation regarding implementation of the program. CONTRACTOR hereby certifies that its employees have been trained in the program, and procedures are in place to train employees whenever new substances, processes, procedures, or equipment are introduced. CONTRACTOR shall demonstrate compliance with Labor Code Section 6401.7 by maintaining a copy of its Injury and Illness Prevention Plan at the Project site and making it available to the DISTRICT_ 6.11 EXAMINATION OF RECORDS: All original drawings, specifications, reports, calculations, and other documents or electronic data developed by CONTRACTOR for the Project shall be furnished to and become the property of the DISTRICT. CONTRACTOR agrees that the DISTRICT will have access to and the right to examine any directly pertinent books, documents, papers, and records of any and all of the transactions relating to this Agreement. 14 6.12 PROPRIETARY INFORMATION: "Proprietary Information" is alt information and any idea pertaining in any manner to the business of DISTRICT (or any person or entity that directly or indirectly controls, is controlled by, or is under common control with, DISTRICT), its employees, agents, contractors, or consultants, which was produced by any employee of DISTRICT in the course of his or her employment or otherwise produced or acquired by or on behalf of DISTRICT. Proprietary Information shall include without limitation, trade secrets, protocol ideas, inventions, processes, formulas, data, know -how, software and other computer programs, copyrightable material, plans, strategies, customer lists and information, financial reports, and the contents of documents protected from disclosure under the California Public Records Act, Government Code Section 6250 et seq., or other provisions of applicable law_ All Proprietary Information not generally known outside of DISTRICT's organization, and all Proprietary Information so known only through improper means, shall be deemed "Confidential Information." During the term of this Agreement, CONTRACTOR shall use Proprietary Information and shall disclose Confidential Information only for the benefit of DISTRICT and as is necessary to perform the Scope of Work. Following any termination or expiration of this Agreement, CONTRACTOR shall not use any Proprietary Information and shall not disclose any Confidential Information except with the express written consent of DISTRICT. By way of illustration and not in limitation of the forgoing, following termination, CONTRACTOR shall not use any Confidential Information to solicit DISTRICT's customers or to compete against DISTRICT. CONTRACTOR's obligations under this Section shall survive the termination or expiration of this Agreement. 6_'13 INTEGRATION AND AMENDMENT: This Agreement contains the entire understanding between the DISTRICT and CONTRACTOR as to those matters contained herein. No other representations, covenants, undertakings or other prior or contemporaneous agreements, oral or written, respecting those matters, which are not specifically incorporated herein, may be deemed in any way to exist or to bind any of the parties hereto. Each party acknowledges that it has not executed this Agreement in reliance on any promise, representation or warranty not set forth herein_ This Agreement may not be amended except by a writing signed by all parties hereto. 6.14 ASSIGNMENT: Neither party shall sign or transfer its interest in this Agreement without written consent of the other party. All terms, conditions, and provisions of this Agreement shall inure to and shall bind each of the parties hereto, and each of their respective heirs, executors, administrators, successors, and assigns. 6.15 GOVERNING LAW: This Agreement shall be construed as if it was jointly prepared by both parties hereto, and any uncertainty or ambiguity contained herein shall not be interpreted against the party drafting same. This Agreement shall be enforced and governed by the laws of the State of California. If any action is brought to interpret or enforce any term of this Agreement, the action shall be brought in a state court situated in the County of San Bernardino, State of California, or in a federal court with in rem jurisdiction over the Project. 6.16 HEADINGS: Article and Section headings in this Agreement are for convenience only and are not intended to be used in interpreting or construing the terms, covenants, and conditions of this Agreement. 6.17 PARTIAL INVALIDITY: If any term, covenant, condition, or provision of this Agreement is found by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions hereof shall remain in full force and effect, and shall in no way be affected, impaired, or invalidated thereby. 6.18 EFFECT OF DISTRICT'S WAIVER: Any failure by the DISTRICT to enforce any provision of this Agreement, or any waiver thereof by the DISTRICT, shall not constitute a waiver of its right to enforce subsequent violations of the same or any other terms or conditions herein. 6.19 AUTHORITY: The individuals executing this Agreement represent and warrant that they have the legal capacity and authority to sign this Agreement on behalf of and to so bind their respective legal entities. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above. CONTRACTOR DISTRICT Robert A. Martin 16 Robert A. DeLoach Interim General Manager East Valley Water District EXHIBIT A SCOPE OF WORK 1) On call to the Board and senior staff for questions or assistance. 2) Attend and represent the District at the Western Judgment Collaborative meetings. 3) Attend and represent the District at all Santa Ana Sucker Task Force meetings and events. 4) Provide assistance for all State and Federal legislative programs. 5) Provide assistance as needed for all matters related to the City Creek MWC and the North Fork MWC. 6) Represent the District at all City of San Bernardino Water Department JPA meetings (wastewater treatment issues). 7) Represent the District at other Intra- governmental meetings as directed by the Board. 8) Represent the District at various industry association meetings as directed by the Board. 9) Attend and represent the District at all BTAC meetings. 10)Attend and represent the District at all 7 Oaks Dam Water Quality and Conservation meetings. 1 1)Attend all Board meetings and /or Committee meetings as directed by the Board. Payments to Contractor The District will pay CONTRACTOR for work performed under this agreement at a rate of $5,500 per month. Task Schedule This agreement for services terminates on May 31 , 2012. 17