EXHIBIT
16-A
AGREEMENT TO FORM THE
This
AGREEMENT TO FORM THE
I.
Formation
of Governance Committee
Pursuant to the terms of this Agreement, the
Parties hereby form the Monterey Peninsula Water Supply Project Governance
Committee (“Governance Committee”)
comprised of representatives of the MPRWA, the MPWMD, the County, and Cal-Am to
ensure efficient and effective public input into the development and operation
of the Monterey Peninsula Water Supply Project (“Project”). Cal-Am’s
entry into this Agreement is expressly conditioned upon its legal obligations
to abide by the orders and decisions of the California Public Utilities
Commission (“CPUC”). Therefore,
should the CPUC order Cal-Am not to participate in this Agreement, Cal-Am shall
be relieved of all obligations set forth in this Agreement and this Agreement
may be terminated by Cal-Am upon such CPUC order. Further, if the CPUC issues
any order or decision that conflicts with any particular provision of this
Agreement, Cal-Am shall be relieved of any and all obligations to abide by the
conflicting provision of this Agreement.
II.
Definitions
A. Application A.12-04-019. Application of California-American Water Company (U210W) for Approval of the Monterey Peninsula Water Supply Project and Authorization to Recover All Present and Future Costs in Rates, filed with the CPUC on or about April 23, 2012.
B.
ASR Infrastructure. The facilities used
to inject into and extract potable water from the
C. Brine Discharge Infrastructure. Facilities located outside the desalination plant site that are used to dispose of brine into the ocean. These facilities will include the brine disposal pipeline, the brine receiving station, any modification to the MRWPCA existing outfall, or a new outfall, or potentially the use of other existing outfalls with or without modifications.
D.
E.
CEQA. The
F. Contracts. One or more of the contracts between Cal-Am and a selected contractor, valued in excess of $1 million, relating to the design and/or construction of the following facilities: (1) the Desalination Infrastructure, (2) the Source Water Infrastructure, (3) the Brine Discharge Infrastructure contracted for by Cal-Am, (4) the Product Water Pipeline, (5) the Raw Water Pipeline; (6) the ASR Infrastructure, and (7) the Terminal Reservoir Infrastructure. Contracts for one or more of the facilities identified above in this definition may be combined into a single contract. In addition, the design and construction of a single facility identified above in this definition may be combined into a single contract.
G. CPCN. The Certificate of Public Convenience and Necessity, if ordered by the CPUC, within Application A.12-04-019.
H. Desalination Infrastructure. Facilities located within the desalination plant site that are used to create potable water from either an ocean source water, brackish source water or a combination thereof, and appurtenant facilities needed to dispose of brine to the Brine Discharge Infrastructure, dispose of wastewater (i.e. process water and sanitary discharge), and any needed facilities that may be required to prevent export of native Salinas River Groundwater Basin water.
I. Desalination Project. The combination of the Desalination Infrastructure, the Brine Discharge Infrastructure, the Source Water Infrastructure, the Product Water Pipeline, the Raw Water Pipeline, and the Terminal Reservoir Infrastructure.
J.
GWR Project. Groundwater replenishment
project to be implemented by MRWPCA and/or MPWMD which involves advanced
treatment of wastewater and the injection of product replenishment water into
the
K. MRWPCA. The Monterey Regional Water Pollution Control Agency.
L. Product Water Pipeline. Facilities used to convey potable water from the Desalination Infrastructure to the Terminal Reservoir Infrastructure and to Cal-Am’s existing distribution system at the Eardley Pump Station.
M. Project. The Monterey Peninsula Water Supply Project as proposed in Application A.12-04-019, and as it may be modified by the CPCN issued in response to that Application.
N. Public Entity Members of the Governance Committee. The MPRWA, the MPWMD, and the County. Cal-Am is not a Public Entity Member of the Governance Committee.
O. Raw Water Pipeline. Facilities used to convey feedwater (i.e., raw water) from the Source Water Infrastructure to the Desalination Infrastructure.
P. Source Water Infrastructure. Wells and appurtenant facilities (or alternative contingent intake facilities) that are used to extract and convey feedwater (i.e., raw water) to the Raw Water Pipeline. These facilities will include the slant intake wells and related appurtenances (if permitted) as well as alternate contingent intakes such as a Ranney Well or open ocean intake as submitted by Cal-Am in its contingency plans.
Q.
Terminal Reservoir Infrastructure.
Facilities used to pump and store potable water in storage tanks east of the
City of
R. Value Engineer. The professional engineer(s) to be retained by, or to consult with, Cal-Am to perform a value engineering analysis for the Desalination Project to potentially lower the costs of, or maximize the value of, the Desalination Project to Cal-Am’s ratepayers, including matters concerning the cost effectiveness, performance, reliability, quality, safety, durability, effectiveness, or other desirable characteristics of the Desalination Project.
The Parties acknowledge that the Project is
still under development and several aspects of the Project may be modified as
planning continues and as may be ordered by the CPUC. If necessary to address
future modifications to the Project, the Parties agree to cooperate in good
faith to reach agreement to amend the definitions set forth herein as necessary
to fulfill the purpose of this Agreement.
III.
Membership
and Voting
Each of the Public Entity Members of the Governance Committee shall be
represented on the Governance Committee by one elected official of such entity
and one alternate who shall also be an elected official. No individual person
may be appointed as the primary or alternate representative of more than one
Party. If MPRWA ceases to exists, then the cities that are members of the MPRWA
at the time of the MPRWA’s termination shall collectively choose a “city
representative” that will take the place of the MPRWA representative on the
Governance Committee. Cal Am shall be represented by the President of Cal-Am or
the President’s alternate, whom the President may designate to act on his or
her behalf at anytime. The Governance Committee shall appoint a “Chair” and
“Vice-Chair” from the primary (non-alternate) elected officials appointed to
the Governance Committee. Each of the Public Entity Members of the Governance
Committee shall have a single equal vote in decision-making. Cal-Am shall not
have a vote for purposes of the issuance of decisions or recommendations by the
Governance Committee. However, Cal-Am shall, unless it abstains from doing so,
state its preference with respect to any decision or recommendation made by the
Governance Committee (the “Cal-Am
Preference”) at the time that any decision or recommendation is made by the
Governance Committee and the Cal-Am Preference shall be recorded within the
meeting minutes together with a summary of any explanation provided by Cal-Am
for the Cal-Am Preference.
IV.
Powers
A. Purpose. The purpose and function of the Governance Committee shall be to: (i) consult with, advise and, in some circumstances, provide direction to, Cal-Am concerning the design, permitting, construction, operations, maintenance, repairs, and replacements of the components of the Desalination Project; and (ii) serve as the entity which Cal-Am regularly updates as to Desalination Project status and issues. The members of the Governance Committee shall diligently consider all matters and cause the Governance Committee to timely and promptly issue decisions or recommendations brought before it as provided pursuant to the terms of this Agreement.
B.
Waiver of Action. Upon motion and
affirmative vote of the Governance Committee (pursuant to Section VII of this
Agreement), the Governance Committee may choose to waive its right to issue a
decision or recommendation with respect to any matter for which the Governance
Committee is afforded such right herein. The purpose of the Governance
Committee’s right to waive its right to make any specified decision or
recommendation herein is to empower the Governance Committee to avoid issuing
any decision or recommendation, which, in its determination, would violate any
law, unreasonably delay efforts to develop water supplies for the
V. Governance Committee Action; Procedures
A. Matters Subject to Governance Committee Action. Matters for consideration, consultation, decision, or recommendation by the Governance Committee shall be divided among three categories, with varying processes for consultation, recommendations, and/or decision-making, as follows:
Category A: The Governance Committee makes the decision or recommendation respecting the matter after receipt of a written recommendation from Cal-Am, and upon issuance of its decision or recommendation, the Governance Committee provides a written explanation of the reasons for its decision to Cal-Am within seven (7) calendar days following its decision or recommendation. Thereafter, Cal-Am will comply with the decision or recommendation issued by the Governance Committee so long as the decision or recommendation is consistent with the terms of this Agreement. However, notwithstanding any provision of this Agreement, for any matter covered by Category A that relates to an action which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, as defined by section 21065 of the California Public Resources Code, no decision or recommendation shall be made by the Governance Committee as to the subject matter unless and until such time as the action has been subject to review by an appropriate agency in accordance with CEQA. The foregoing provision shall not be construed as an agreement or determination by or among any of the Parties that CEQA applies to any action of the Governance Committee. This Agreement is itself not a “project” as defined by section 15378 of the CEQA Guidelines (California Code of Regulations, Title 14, Chapter 3) because it is an organizational activity that will not result in direct or indirect physical changes in the environment and this Agreement makes no commitment to any project.
Category B: The
Governance Committee makes a recommendation respecting the matter after receipt
of a written recommendation from Cal-Am. However, Cal-Am may determine, at its sole discretion, whether or not to
follow the Governance Committee’s recommendation, provided that if Cal-Am chooses not to follow
the recommendation, Cal-Am shall provide a written explanation of Cal-Am’s
reasons for its decision not to follow the recommendation within ten (10)
calendar days following the issuance of the Governance Committee’s
recommendation. Further, should Cal-Am choose not to follow the recommendation
of the Governance Committee, then any Party may raise the issue for review by
the CPUC during Cal-Am’s next general rate case.
Category C: Cal-Am
makes the decision respecting the matter after receiving a recommendation from
the Governance Committee. Cal-Am need not issue a written explanation for its
decision, although should Cal-Am choose not to follow the recommendation of the
Governance Committee, then any Party may raise the issue for review by the CPUC
during Cal-Am’s next general rate case.
B.
Procedure for
C. Cal-Am Status Presentations and Governance Committee Recommendations Thereon. At each meeting of the Governance Committee, Cal-Am shall provide a report as to the status of the Project, which shall be presented by one or more individuals knowledgeable about the material aspects of the Project. Upon reasonable advance written notice, the Governance Committee may request that Cal-Am include within its status presentation to the Governance Committee the status of any matter that is set forth in any of the three categories for decision, recommendation, or consultation established below, together with an explanation of any pending or soon-to-be-pending decisions or options concerning the subject matter. The Governance Committee may issue, in writing, any recommendation concerning a subject matter included within Cal-Am’s presentation. Cal-Am may determine, at its sole discretion, whether or not to follow the recommendation, provided that if Cal-Am chooses not to follow the recommendation and the subject matter is a matter covered by either Category A or Category B, Cal-Am shall, within ten (10) calendar days following issuance of the Governance Committee’s recommendation, provide a written explanation of the reason(s) for Cal-Am’s decision not to follow the recommendation. If the subject matter is a matter covered by Category C or is not set forth within any of the three categories set forth below, Cal-Am need not issue a written explanation of Cal-Am’s reasons for its decision not to follow the recommendation.
D. Categories for Matters Subject to Governance Committee Action. Matters for consideration, consultation, decision, or recommendation by the Governance Committee shall be divided among the following three categories as follows:
Category
A
1. This matter concerns the “GWR Recommendation,” which specifically is whether Cal-Am shall: (i) pursue a water purchase agreement, acceptable to Cal-Am, for the purchase of water from the GWR Project, and consequently Cal-Am shall develop smaller Desalination Infrastructure with a capacity of approximately 6.4 MGD (or as specified in the CPCN); or (ii) forgo the pursuit of a water purchase agreement for the GWR Project, and consequently Cal-Am shall develop larger Desalination Infrastructure with a capacity of approximately 9.6 MGD (or as specified in the CPCN). If the GWR Recommendation becomes ripe for recommendation, as specified in the paragraph below, before a CPCN is issued upon Application A.12-04-019, the Governance Committee shall not issue any binding recommendation concerning the GWR Recommendation. If the GWR Recommendation becomes ripe for recommendation, as specified in the paragraph below, after a CPCN is issued upon Application A.12-04-019, the Governance Committee shall decide whether to recommend that Cal-Am pursue the GWR Project or not (as set forth above), which recommendation shall then be subject to CPUC approval or rejection pursuant to the procedure specified herein. The Governance Committee shall make this recommendation based upon criteria to be mutually-agreed to by the Parties, negotiating in good-faith, after the execution of this Agreement.
The GWR Recommendation shall become ripe for a recommendation to be made by the Governance Committee (i) no earlier than the date Cal-Am accepts the 30% Design from the contractor retained for the design of the Desalination Infrastructure, (ii) no later than that date upon which Cal-Am is prepared to issue a notice to proceed to a contractor to commence construction of the Desalination Infrastructure, (iii) after the CEQA lead agency has certified the environmental impact report for the GWR Project and approved the GWR Project, and (iv) while there is sufficient time for the GWR Recommendation to be made and for the CPUC to review and approve that recommendation, without otherwise delaying the Project. The GWR Recommendation shall be made by the Governance Committee, in writing with an explanation of the reasons for its decision, within sixty (60) days following receipt of the Cal-Am Notification concerning this matter. The recommendation issued by the Governance Committee shall be submitted by Cal-Am to the CPUC for approval or rejection pursuant to a Tier 2 Advice Letter (or at the direction of the CPUC, an alternate form of submission) within ten (10) calendar days following issuance of the GWR Recommendation by the Governance Committee for the CPUC’s review and approval. To avoid undue delay of the Project, and notwithstanding the ripeness of the GWR Recommendation as described above, if on the date that is ninety (90) days prior to the date upon which Cal-Am anticipates being prepared to issue a notice to proceed to a contractor to commence construction of the Desalination Infrastructure, no public agency has issued a resolution or order that declares that it is prepared to issue a notice to proceed to a contractor to commence construction of the GWR Project, then Cal-Am may make the decision with respect to the GWR Recommendation, in its sole discretion, without soliciting or obtaining the GWR Recommendation from the Governance Committee.
2. The Governance Committee shall select a Value Engineer(s) to facilitate and report on the proposed value engineering for the Desalination Project, with consideration given to any recommended engineer submitted by any member of the Governance Committee. Cal-Am shall conduct the procurement for the Value Engineer and, consistent with the processes set forth in Categories B(1), B(2) and C(2) relating to Contracts, seek recommendations from the Governance Committee for the contract between Cal-Am and the Value Engineer. After reviewing the results of the procurement process, the Governance Committee shall decide which engineer is to be retained by Cal-Am as the Value Engineer for the Desalination Project. This matter shall be ripe for decision before Cal-Am accepts the 30% Design from the contractor retained for the design of the Desalination Infrastructure, or at any other time that Cal-Am intends to retain a Value Engineer for any other infrastructure constructed as a component of the Desalination Project.
3. Subsequent to the issuance of the CPCN and subsequent to the selection of any design-build contractor(s) for the Desalination Infrastructure, the Governance Committee may issue decisions concerning architectural renderings for the Desalination Project. The Governance Committee shall be presented with architectural renderings for decisions regarding the same when such architectural renderings are complete and upon any subsequent modifications thereto. The Governance Committee may also, in its discretion, appoint a representative to consult with Cal-Am regarding other external features or aesthetics of the Desalination Project. Upon a determination of the Governance Committee or its representative, the Governance Committee’s representative and Cal-Am shall present to the Governance Committee options pertaining to the Desalination Project’s external feature or aesthetics, upon which the Governance Committee may decide which option to pursue. Notwithstanding any provision of this paragraph, the Governance Committee may not issue a binding decision concerning the Desalination Infrastructure’s architectural renderings, or the Desalination Project’s external features or aesthetics, if the decision would in the opinion of the design-build contractor, increase the capital or operational cost of the Desalination Infrastructure.
4. Subsequent to the issuance of the CPCN, the Governance Committee may issue decisions concerning procurement of alternative (non-Pacific Gas & Electric) energy supplies for the Desalination Infrastructure, including but not limited to waste-to-energy, so long as such decisions result in lowering the Desalination Infrastructure’s estimated unit price for power. This matter shall be ripe for decision at any time a formal written proposal concerning alternative power is presented by one or more of the Parties for consideration.
Category
B
1. Prior to the issuance of a request for qualifications, request for proposals, or request for bids, as applicable, relating to the procurement of a Contract, the Governance Committee may recommend qualifications and selection criteria for such Contract.
2. Prior to the execution of any Contract not executed on or before the date that is thirty (30) calendar days after the effective date of this Agreement, and upon presentation and recommendation by Cal-Am to the Governance Committee after Cal-Am has reviewed and evaluated proposals or bids, as applicable, and negotiated with the contractor a Contract that, in the opinion of Cal-Am, is ready for execution by and between Cal-Am and the contractor, the Governance Committee may recommend which contractor should be retained under the Contract, and issue any recommendations concerning the terms of the final Contract. When presenting a Contract to the Governance Committee for its consideration and recommendation, Cal-Am shall provide to the Governance Committee a copy of all responsive proposals or bids received for the pertinent work, except for any proprietary information provided by contractors submitting responsive proposals or bids, together with a written description of the process Cal-Am undertook to select a recommended Contractor, a summary of the considerations that Cal-Am deems pertinent to support its recommendation, and any other information that Cal-Am believes will assist the Governance Committee in its review of the recommended Contract and contractor.
3. The Governance Committee may review and issue recommendations concerning major changes to the Desalination Project at key stages of the design process, including:
·
Basis of
Design
·
30%
Design
·
60%
Design
·
90%
Design, and
·
Final
Design
As used in this paragraph, major changes to the Project shall include
changes causing an increase or decrease in costs of the Desalination Project
that exceed $1 million.
4. The Governance Committee may issue recommendations concerning the establishment of a community outreach program.
5. The Governance Committee may recommend the Desalination Project’s aesthetic attributes and design consistent with community values if not covered by Category A(3) above;
6. The Governance Committee may coordinate with Cal-Am and recommend solutions to issues concerning the use of the Brine Discharge Infrastructure;
7. The Governance Committee may review and recommend whether to adopt any value engineering recommendations issued by the Value Engineer;
8. The Governance Committee may review and recommend whether to approve any change order pertaining to any component or components of the Desalination Project, if the change order exceeds $1 million.
Category C
1. Cal-Am shall monitor the design, engineering, and permitting of all elements of the Desalination Project, and report on such monitoring to the Governance Committee as described in Section VI. The Governance Committee shall discuss Cal-Am’s report and may issue recommendations to Cal-Am pertaining to the Desalination Project;
2.
Prior to
3. The Governance Committee may review and issue recommendations concerning the preparation and quarterly update of an overall construction budget for the Desalination Project;
4. The Governance Committee may review and issue recommendations concerning a plan for acceptance testing, including follow-up reporting, for the Desalination Project;
5. The Governance Committee may annually review and issue recommendations concerning the Desalination Project operations and maintenance budget and rate impacts;
6. The Governance Committee may review and issue recommendations to Cal-Am with respect to local and regional permit requirements; and
7. The Governance Committee may review and issue recommendations concerning the preparation of quarterly progress reports during major design milestones (i.e., 30% design, 60% design, 90% design, and final design) and information on any material challenges to the Project design.
E.
Additional Matters. If agreed unanimously
by all members of the Governance Committee, including Cal-Am, additional
matters not provided for herein may be added to Category A for decision or
recommendation by the Governance Committee or to Category B for recommendation
from the Governance Committee. Additional matters may also be added to Category
C for recommendation from the Governance Committee upon affirmative vote of the
Governance Committee unless Cal-Am determines that the addition of the matter
to Category C would unreasonably delay the Project or otherwise compromise the
public interest. If Cal-Am determines that a matter affirmed by the Governance
Committee for addition to Category C should not be so added, Cal-Am shall issue
a written explanation to the Governance Committee within ten (10) calendar days
following the Governance Committee’s vote to add the matter to Category C that
explains the reasons supporting Cal-Am’s determination.
VI.
Meetings
and Action of the Governance Committee; Agendas and Minutes
A. Meetings. Governance Committee meetings shall be conducted in compliance with the Ralph M. Brown Act (Government Code sections 54950, et seq.). The first meeting of the Governance Committee shall be scheduled by the primary representative of the MPWMD, and that representative shall preside over the first meeting at which a Chair and Vice-Chair shall be selected. Thereafter, the Chair, or in his or her absence, the Vice-Chair, shall schedule and preside over all meetings of the Governance Committee. During the pre-construction and construction phases of the Desalination Project, regular meetings of the Governance Committee shall be scheduled by the Chair, or in his or her absence, the Vice-Chair, and held on a monthly basis. During the operational phase of the Desalination Project, regular meetings of the Governance Committee shall be scheduled by the Chair, or in his or her absence, the Vice-Chair, and held on a quarterly basis for the first two years of the Desalination Project’s operation and semi-annually thereafter. Special meetings of the Governance Committee, including for purposes of responding to a Cal-Am Notification, may be called by the Chair, or in his or her absence, the Vice-Chair, or by any member of the Governance Committee upon request of the Chair, or in his or her absence, the Vice-Chair.
B.
Action by the Governance Committee.
All decisions
and recommendations of the Governance Committee issued to Cal-Am shall be
in writing, signed by the Chair or Vice-Chair. All other actions of the
Governance Committee shall be by motion recorded in written minutes.
C. Agendas, Correspondence, and Minutes. Agendas, correspondence, and minutes of the meetings of the Governance Committee shall be taken, maintained, and distributed by a designated staff member of the MPWMD.
VII.
Quorum
and Affirmative Action of the Governance Committee
To constitute a quorum at all meetings of the
Governance Committee for the transaction of business, the primary or alternate
elected official representative of at least three of the Parties must be
present, in person. Action by the Governance Committee shall require the
affirmative vote of at least two of the three Public Entity Members of the
Governance Committee.
VIII.
Submission
of Project Information to the Governance Committee; Project Inspections
Concurrent with Cal-Am’s submission of any documents concerning the Project to the CPUC, Cal-Am shall provide a copy of the documents (in paper or electronic form) to the Chair of the Governance Committee. The Chair may notice a meeting on his or her own initiative, or upon the request of any member of the Governance Committee, to review any financial matter addressed by the documents. Cal-Am, upon request of the Chair of the Governance Committee, shall be afforded an opportunity to provide a presentation or any oral explanation relating to the noticed financial matter. Further, upon reasonable advanced, written notice and subject to safety and security concerns and precautions as determined in good faith by Cal-Am, any member(s) of the Governance Committee may inspect any physical facility or structure constructed or being constructed as an element of the Desalination Project, and Cal-Am shall provide an employee, consultant, or other representative, who is knowledgeable of the aspects and elements of the physical facility or structure, to accompany the member(s) of the Governance Committee during the inspection.
IX.
Term
and Termination of Agreement
This Agreement shall continue in effect until
the earlier of (1) the date that is forty (40) years after the effective date
of this Agreement (March 8, 2053), or (2) the date that Cal-Am ceases to
operate the Desalination Project, the earlier such date to be known as the
“Expiration Date.” Further, this Agreement may be terminated, prior to the
Expiration Date, as follows: (1) by Cal-Am, following the issuance of an order
from the CPUC ordering Cal-Am not to participate in this Agreement, as provided
for in Section I above; (2) by Cal-Am, if the CPUC denies or rescinds
Application A.12-04-019 or denies Cal-Am’s development of, or subsequently
rescinds Cal-Am’s authority to develop, the Desalination Project; or (3) by the
written agreement of no less than three of the four members of the Governance
Committee. If, on September 8, 2052, the Desalination Project is still being
operated by Cal-Am, the Parties shall, within thirty days thereafter, meet and
commence negotiations in good faith to seek a renewal of this Agreement, upon
mutually acceptable terms, to provide continued public oversight and input
concerning the operation, maintenance, repair, modification, and/or replacement
of the Desalination Project after the Expiration Date. If this Agreement is
terminated by Cal-Am as a result of a CPUC order denying or rescinding
Application A.12-04-019 or Cal-Am’s authority to develop the Desalination
Project, but Cal-Am intends to seek CPUC approval to develop a substitute
project to provide water supplies for its Monterey District, then the Parties
shall meet and negotiate in good faith to seek agreement, upon mutually
acceptable terms, for a substitute agreement to provide public oversight and
input concerning the design, permitting, construction, operation, maintenance,
repair, modification, and/or replacement of such substitute project.
X.
Miscellaneous
A.
Further
Assurances. The Parties shall execute
such further documents and do any and all such further things as may be necessary to implement and carry
out the intent of this Agreement.
B. Construction. The provisions of this Agreement shall be liberally construed to effectuate its purposes. The language of this Agreement shall be construed simply according to its plain meaning and shall not be construed for or against any Party, as each Party has participated in the drafting of this Agreement and had the opportunity to have their counsel review it.
C.
Choice
of Law. This
Agreement shall be governed and construed under the laws of the State of
D. Severability. If any term or provision of this Agreement is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, such illegal, unenforceable, or invalid provision or part thereof, shall be stricken from this Agreement, and such provision shall not affect the legality, enforceability, or validity of the remainder of this Agreement. If any provision or part of this Agreement is stricken in accordance with the provisions of this section, then the stricken provision shall be replaced, to the extent possible and as agreed to by the Parties, with a legal, enforceable and valid provision that is as similar in content to the stricken provision as is legally possible.
E. Dispute Resolution. If a dispute arises between two or more of the Parties relating to this Agreement, or the rights and obligations arising therefrom, and if the Parties in dispute are unable to resolve the controversy through informal means, the Parties in dispute may, upon mutual agreement, submit the dispute to mediation, upon terms mutually agreed to by the Parties in dispute. Any Party not in dispute as to the disputed matter shall be afforded an opportunity to participate in the mediation. In addition, if the Parties in dispute are unable to resolve the controversy through mediation, the Parties in dispute may, upon mutual agreement, submit the dispute to binding arbitration, upon terms mutually agreed to by the Parties in dispute. Any Party not in dispute as to the disputed matter may, upon the mutual agreement of the Parties in dispute, be invited to participate in any binding arbitration.
F. Members to Bear their Own Costs. Each Party shall bear its own costs relating to the rights and obligations of each Party arising from this Agreement and its participation in the Governance Committee and, therefore, no Party shall be entitled to any reimbursement from another Party as a result of any provision of this Agreement.
G. Notices and Communication. Any notice or communication hereunder shall be deemed sufficient if given by one Party to another Party or Parties, as appropriate, in writing and either (1) delivered in person, (2) transmitted by electronic mail and acknowledgment of receipt is made by the receiving Party(ies), (3) deposited in the United States mail in a sealed envelope, certified and with postage and postal charges prepaid, or (4) delivered by a nationally-recognized overnight delivery courier service, and addressed as follows:
If to Cal-Am: with a copy to: |
California-American
Water Company Attn: Robert
MacLean President Email: robert.maclean@amwater.com California-American
Water Company Attn: Anthony
Cerasuolo Vice President -
Legal Email: acerasuolo@amwater.com |
|
If to the MPRWA: with copies to: |
Attn: Lesley Milton Clerk City of Attn: Donald
Freeman General Counsel West Side of cityatty@ix.netcom.com Attn: Russell
McGlothlin Special Counsel rmcglothlin@bhfs.com |
|
If to the MPWMD: with a copy to: |
Monterey
Peninsula Water Management District Attn:
David J. Stoldt General
Manager Email:
dstoldt@mpwmd.net Monterey
Peninsula Water Management District Attn: David C.
Laredo |
|
If to the County: with a copy to: |
C/O Clerk of the Board of Supervisors 1st Floor 112-clerkoftheboardeveryone@co.monterey.ca.us Attn: Charles J. McKee 3rd Floor mckeecj@co.monterey.ca.us |
or to such other address or to such other person as each
Party shall have last designated for receipt
of notices pursuant to this Agreement. Where this Agreement provides for
written notices or communication from Cal-Am to the Governance Committee, such
written notice, explanation, or communication shall be directed to the Chair of
the Governance Committee at the address set forth above for notices to the
public entity from which the Chair is appointed, and when provided shall be
deemed provided to all Public Entity Members of the Governance Committee. The
effective date of any written notice, explanation, or communication shall
be the earlier of the date of actual receipt, acknowledgment of receipt, or
three days following deposit in the
H. Successors and Assigns. This Agreement shall be binding on and shall inure to the benefit of the Parties and their respective legal representatives, successors, and assigns.
I. No Third Party Rights. Nothing in this Agreement, whether express or implied, is intended to confer any rights or remedies under or by reason of this Agreement on any persons other than the Parties to this Agreement and their respective successors and assigns, nor shall any provision in this Agreement give any third persons any right of subrogation or action over or against any Party to this Agreement.
J. Signatures - Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. The Parties authorize each other to detach and combine original signature pages and consolidate them into a single identical original. Any of such completely executed counterparts shall be sufficient proof of this Agreement.
K. Effective Date. This Agreement shall take effect on date first stated above.
IN WITNESS WHEREOF, the Parties have executed this Agreement as
of the date first stated above.
[signature page follows]
|
California-American Water Company |
By:_______________________________ President |
|
|
By:_______________________________ President Agreed
as to form: By:_______________________________ General Counsel
|
|
Monterey Peninsula Water Management District |
By:_______________________________ Chair Agreed
as to form: By:_______________________________ General Counsel
|
|
|
By:_______________________________ Chair of the Board of Supervisors Agreed
as to form: By:_______________________________ |
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