Approve Fee Schedule and Terms for Work on Odello Water Project.08!06!13

8/22/2019 Approve Fee Schedule and Terms for Work on Odello Water Project.08!06!13

1/7137

IBrownstein HyattFarber SchreckJuly 31 , 2013

VIA EMAILJason StilwellCity AdministratorCity of CarmelP.O. Box 805Carmel, CA [email protected]: Agreement for Legal ServicesDear Mr. Stilwell :

Russell M. McGlothlinAttorney at Law805.882.1418 tel805.965.4333 faxRMcgloth [email protected]

Thank you for retaining Brownstein Hyatt Farber Schreck, LLP , to represent the City of Carmel ("Carmel")with respect to Carmel's efforts to acquire Table 13 water rights (as described in SWRCB D. 1632 andrelated subsequent SWRCB orders) from the Odello Ranch. Carmel is considering contracting for Table 13water rights, including those held by the Odello Ranch, and to obtain orders from the State WaterResources Control Board ("SWRCB") and the California Public Utilities Commission ("CPUC") to authorizea portion of the water rights to be used by California American Water Company ("Cal-Am") to se rvi ce newand expanded water use within Carmel. This will require agreement by the SWRCB and CPUC to allow anexception from the currently-applicable water service moratorium in effect pursuant to orders by theSWRCB and CPUC that are binding on Cal-Am.This letter and the enclosed Terms and Conditions constitute the Lega l Services Agreement betweenBrownstein and Carmel. This Agreement will also apply to other services that we may provide you fromtime to time, at your request, unless we execute a separate agreement. When we refer to "you" in thisAgreement, we are referring to you in your representative capacity for the client, Carme l.We cannot predict with certainty the amount of fees and costs that may be incurred. Our hourly rates arebased upon the experience, reputation and ability of the professional performing the required service, andwe will assign to your matter the personnel who, in our judgment, are best suited to represent you. Mycurrent hourly rate is $455, however, I will discount my rate to $425. Unless you request otherwise, we willbill you for services rendered and disbursements and charges on a monthly basis. Subject to the Termsand Conditions, you agree to pay those statements upon receipt, and no later than the last day of themonth in which you receive the statement.If you agree with the provisions of this letter and with the Standard Terms and Conditions, please sign theenclosed copy where indicated, and return it to us. If you do not understand any portion of this letter, or theattached Terms and Conditions, or if you have any questions, please call us at your earliest convenience.If you require advice about your decision to engage us, you should confer with independent counsel beforesigning this agreement. We cannot give you advice about that decision.

bhfs.com

21 Eas t Carr illo StreetSanta Ba rba ra , CA 93101-2706main 805.963.7000

Brownstein Hyat t Farber Schreck, LLP


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City of CarmelJuly31 , 2013Page 2

We look forward to a long and productive relationship with you, and thank you for the opportunity torepresent you.Sincerely,e f r ~Russell M. McGlothlinRMM:AMM

cc: Robert J. SapersteinEnclosures: Standard Terms and ConditionsDisclosure of Relationship, and Waiver of Potential Conflict of Interest

ACCEPTED AND AGREED TO:CITY OF CARMEL

By:

Its:

ACCEPTED AND AGREED TO :BROWNSTEIN HYATI FARBER SCHRECK, LLP

By: Robert J. SapersteinManaging Shareholder, California

013849\9000\10537404.17/31/13

Dated: July__ 2013

Dated:______


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BROWNSTEIN HYATT FARBER SCHRECK, LLPSTANDARD TERMS AND CONDITIONSScope of Representation: The scope of our representation isset forth in the attached Letter. Our representation of you onany particular matter will end when we have completed ouressential work on that matter.Duties of the Parties: We agree to provide all legal servicesreasonably required to represent you , consistent with ourethical obligations. It is our intent to provide you with thorough,prompt and cost-efficient legal services, keep you informed ofsignificant developments in the matter, and respond to yourinquiries. You agree to fully cooperate with us , be open andtruthful and provide us with all in fo rmation pertaining to thematter, keep us informed of developments, to pay our bills in atimely manner, and keep us advised of your address,telephone number and whereabouts. You also agree toappear at any proceeding we deem necessary and tocooperate fully with us on all matters related to theinvestigation, preparation and presentation of your matter.Fees: We review all billing statements before they are issuedto ensure that the amount charged is appropriate. Thestatement for fees is simply the product of the hours workedmultiplied by the hourly rates for the attorneys and legalassistants who did the work. The current range of hourly ratesfor our professional services is :Partners :Of Counsels:Associates:Land Use Planners:Para legals:Legal Assistants:

From $350 to $1025 per hourFrom $300 to $1025 per hourFrom $210 to $400 per hourFrom $150 to $250 per hourFrom $150 to $230 per hourFrom $100 to $150 per hourWe ad just our rate structure at the beginning of each calendaryear. You agree to pay all fees billed at the then-current rate.Outside Contract Attorneys and Legal Assistants: You agreethat we may utilize specialized contract attorneys and legalassistants as necessary. You agree to pay the reasonablehourly rate for these legal services.In-House Costs and External Expenses: In add ition to chargingfees for legal work, we will charge for certain out-of-pocketcosts incurred by our firm in representing clients. Charges forlong distance telephone calls, facsimile charges, in-officecopying, ordinary postage and deliveries made by in -housestaff are covered by an administrative fee . This administrativefee is in lieu of itemizing those costs. Other fees, such ascomputer-assisted legal research and third party vendor feesincluding document copying, transcript production, overnightdelivery service charges, travel, meals and hotelaccommodations will be itemized and billed separately at cost.Other in-house costs and expenses include, but are not limitedto, secre tarial overtime, extraordinary administrative, technicalor accounting support; computer legal research; messengerand other delivery fees; mileage, and the cost of licensing andother installation of special computer programming to manageyour case. These are directly bi lled to you at our cost.External expenses are also charged at cost. These include,but are not limited to, the following : Notary fees; consultantcosts, investigative costs, professional mediator, arbitratorand/or special master fees; travel costs, including parking,

transportation, meals and hotels. External expenses will eitherbe passed through to you for direct payment to the vendor orincluded on your statement. We may select experts,consultants and investigators who in our judgment arenecessary to aid in the preparation of your matter and willinform you of the persons selected and their charges. Youauthorize us to incur all reasonable costs and to hire suchexperts, consultants and investigators . We wi ll not incur anymajor external expenses on your behalf without your priorapproval.Billing Period and Payments: We will bill you for servicesrendered and disbursements and charges on a monthly, orsuch other periodic, basis as we may determine. If you requireadd itional statements, you agree to request them at intervals ofno less than 30 days and we agree to respond within 10 days.You agree to inform us of any dispute you may have withrespect to a statement within 10 days of the statement date. Ifyou do not object, the statement will be deemed correct. If youdo ob ject, we will consider our right to the fees and costs setforth on that statement as "disputed ." Absent a dispute, youagree to pay all statements upon receipt, and no later than thelast day of the month in wh ich you receive the statement.Even if you dispute a portion of a statement, you agree to paythe undisputed portion not later than the last day of the monthin which you receive the statement. Payments will be appliedto the longest outstanding charges in the following order: first,costs, then delinquency charges, and then fees.Retainers: If required, you agree to pay an advance feeretainer upon execution of this agreement and agree that wemay, at our discretion, withdraw the undisputed amount of anystatement, whether fees or costs, from any retainer you haveon deposit. You agree to replenish the retainer monthly tomaintain a credit toward fees. That means that, even thoughyou have a retainer on account, you still must pay yourstatements as they become due. If we expect significantadd itional expenses, you agree to provide a further retainerwith in 15 days of our request.Your retainer will be held on your behalf in our trust accountwithout interest to you , because California law requ ires allinterest earned on such funds to be forwarded to the CaliforniaState Bar for its Legal Service Trust Fund Program. If youprefer, you may request that we hold your funds in a noninterest bearing account, or in an interest bearing account foryour benefit. If you make such a request , you agree to payadministrative costs of a one-time $75 set-up charge and a $25per month service charge. At the conclusion of ourrepresentation , we will return any unearned retainer to you .As an additional retainer and as security for the payment of ourfees, costs and expenses, you agree that we have a firstpriority lien on all cla ims and causes of action that are thesubject of our representation under this Ag reement and on allproceeds or property obtained or recovered, whether byagreement, settlement, mediation , arbitration award, courtjudgment, cost or fee award or otherwise resulting from ourrepresentation.No Guarantee: Our comments about the potential outcome ofyour matter or any phase thereof are expressions of opiniononly. We cannot guarantee the outcome or make anypromises in that regard.


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Discharge: Our goal is to maintain at all times a constructiveand positive relationship with you, to the conclusion of thismatter and in future matters. However, you have the right todischarge us as your lawyers at any time. and we have theright to withdraw from your representation at any time,consistent with our ethical obligations. If you discharge us orwe elect to withdraw, you agree to immediately secure newcounse l. If we are your attorneys of record in any proceeding ,you agree to cooperate fully in substituting such new counselas your attorneys of record. At the time of discharge orwithdrawal, you agree to immediately pay us for all servicesrendered to you and for all costs and expense paid or incurredby us on your behalf.Files: At the conclusion of our services, your fi les will betransferred to you upon request. You agree to pay the cost ofaccessing, copying and delivering the file to you. If you do notrequest the return of your files within five (5) years from eitherthe completion of our essential work on the matter or thetermination of our relationship by discharge or withdrawal, wehave the right, but not the obligation, to destroy any filescreated and maintained by us with respect to the matter.Disputes: Any controversy or claim arising out of or relating tofees and/or costs incurred under this Agreement shall beresolved pursuant to Business and Professions Code section6200 et seq. All other disputes arising out of or relating to th isAgreement or the professional services rendered under thisAgreement, shall be determined in accordance with the laws ofthe State of California. The arbitration shall be administered byJAMS pursuant to its Comprehensive Arbitration Rules andPro cedu res . Judgment on the Award may be entered in anycourt having jurisdiction. Each side shall bear its own costsand attorney fees in said arbitration.Miscellaneous: Unless you instruct us to the contrary inwriting, we will utilize facsimile, e-mail, cellular phone, PDAand similar communication methods, and we disclaim anyliability for unauthorized third-party interception ofcommunications. You agree that we may use yo ur name andinformation generally available to the public in our marketingefforts.Interpretation and Effective Date: This agreement is our entireand only agreement and is governed by California law. If anyprovision is found unenforceable, the remainder of theagreement will rema in in effect. This agreement will not takeeffect until you sign and return the enclosed copy of the letterwith these terms and conditions attached and until theagreement has been countersigned by the firm's ManagingPartner. Th is agreement will then be retroactive to the dateservices we re first provided. If this agreement does not takeeffect, you will still be requ ired to pay us the reasonable valueof any services we have performed for you.

099999\I073\4598701.3 2


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July 30, 2013

VIA EMAILDaphne HodgsonDeputy City Manager of Administrative ServicesCity of Seaside440 Harcourt AvenueSeaside, CA [email protected] CullemExecutive DirectorMonterey Pen insula Regional Water Authority580 Pacific Street, MontereyMonterey, CA [email protected] StilwellCity AdministratorCity of CarmelP.O. Box 805Carmel, CA 93921cityatty@ix. netcom. com

RE : Disclosure of Relationship, and Waiver of Potential Conflict of InterestDear Ms. Hodgson, Mr. Cullem, and Mr. Stilwell:

Russell M. McGlothlinAttorney at Law805.882.1418 tel805.965.4333 [email protected]

This letter confirms our recent discussions regarding Brownstein Hyatt Farber Schreck, LLP("Browns te in") proposed representation of the City of Carmel ("Carmel") with respect to Carmel's effortsto acquire Table 13 water rights (as described in SWRCB D. 1632 and related subsequent SWRCBorders) from the Odello Ranch . Carmel is considering contracting for Table 13 wa ter rights, includingthose held by the Odello Ranch, and to obtain orders from the State Water Resources Control Board("SWRCB") and the California Public Utilities Commission ("CPUC") to authorize a portion of the waterrights to be used by California American Water Company ("Cal-Am") to service new and expandedwater use within Carmel ("Proposed Representation"). This will require agreement by the SWRCB andCPUC to allow an exception from the currently-applicable water service moratorium in effect pursuantto orders by the SWRCB and CPUC that are binding on Cal-Am.We presently represent the Monterey Peninsula Regional Water Authority ("Authority") with respect toissues relating to Cal-Am's proposed Monterey Peninsu la Water Supply Project ("MPWSP") for whichCal-Am is presently seeking approvals from the CPUC and other agencies. We also generally representthe MPWSP concerning water supply by Cal-Am to the Monterey Peninsula, which may involve futureproceedings before the SWRCB, CPUC, other regulatory agencies, or the California Courts. Brownsteinalso represents the City of Seaside ("Seaside") with respect to matters concerning the SeasideGroundwater Basin ("Seaside Basin") and Seaside's use of groundwater from the Seaside Basin.Because of these ongoing representations , we must obtain conflict of interest waivers before

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July 30, 2013Page 2

Brownstein can proceed with the Proposed Representation of Carmel. Brownstein has also previouslyrepresented Cal-Am with respect to issues pertaining to the Carmel River, but no longer does so.The applicable California Rules of Professional Conduct (attached) require us to explain the extent ofour client relationships, fully disclose any existing or potential conflicts of interest, and obtain yourwritten consent to our proposed representation of Carmel with respect to the Proposed Representation.It is important that you understand the nature of these potential conflicts before signing the attachedConsent and Waiver of Conflict of Interest. Pursuant to the Rules of Professional Conduct (attached),Brownstein discloses and requests that you waive any actual or potential conflict of interest that mayarise from our representation of Carmel regarding the Proposed Representation.Although we do not perceive a present conflict nor a likelihood of a future conflict arising from theProposed Representation, Seaside's and the Authority's interests respecting the matters for which werespectively represent them, and Carmel's interest in the Proposed Representation may potentiallyconflict. Cal-Am uses water from the Carmel River and the Seaside Basin to supply the MontereyPeninsula. The pending application before the CPUC for approval of the MPWSP is intended, in part, toprovide a replacement water supply to allow Cal-Am to reduce its unauthorized use of Carmel Riverwater, consistent with the SWRCB's directive in SWRCB WR Order 2009-60.It is possible Carmel's efforts to procure and permit use of the Odel lo Ranch Table 13 water rights couldinterfere with Cal-Am's efforts to obtain CPUC approval and other necessary permits for the MPWSP,or efforts to obtain SWRCB's modifications to SWRCB WR 2009-0060 relating to Cal-Am's use of wa terfrom the Carmel River. This could raise a conflict of interest with respect to Brownstein's representationof the Authority regarding the MPWSP or other water issues be fore the CPUC or SWRCB . Fo rexample, it is possible that should Carmel seek permission from the CPUC and SWRCB to re lieve thepresently-imposed moratorium on new and expanded water service occasioned by the acquisition ofthe Odello Ranch Table 13 water rights, such effort could conflict with the interest of the Authority asthey relate to the CPUC or the SWRCB. While we don 't presently perceive such a conflict of interest aslikely to occur, such a conflict is a possibility.It is also possible that Carmel's efforts to procure and permit the use of the Odello Ranch Table 13water rights could conflict with the interests of Seaside as to the matters on which Brownsteinrepresents Seaside. Although we do not presently perceive a likely conflict of interest and cannotpredict with specificity the manner in which a conflict could arise, the interrelated nature of the CarmelRiver and the Seaside Basin, which are used by Cal-Am in an integrated manner to se rve waterdemands on the Monterey Peninsula , could cause a conflict of interest to arise.Should an actual conflict occur between the Authority or Seaside and Carmel regarding the ProposedRepresentation, we will attempt to resolve the conflict in a manner tha t protects our ability to continueour concurrent representation of all our clients. However, that may not be possible or practical given theethical rules presented below. Thus, we request that Seaside, the Autho rity and Ca rmel waive anypotential conflict of interest with respect to our representation of Carmel regarding the ProposedRepresentation. Should a conflict or dispute arise that we cannot resolve in formally regard ing theProposed Representation, we will terminate our representation of Carmel regarding the ProposedRepresentation and Carmel will need to obtain separate independent counsel regarding the conflict ordispute. We will not represent any client with respect to the dispute.In conclusion, we request that you sign, date and return to us a copy of th is letter acknowledging thatyou have been advised of the Ru le and of the potential conflicts associated with your respectiveinterests, and that you nevertheless agree to the concurrent representation and the wa iver of conflictsregarding other Brownstein clients.

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July 30 , 2013Page 3

We encourage you to seek the advice of independent counsel in reviewing this consent. Should youhave any questions concerning this letter or the consent, please discuss them with your own,independent counsel before signing and returning the enclosed copy of th is letter.Best Regards,~ ~ussell M. McGlothlinBrownstein Hyatt Farber Schreck, LLPEnclosures: California Rules of Professional Conduct

013849\9000\10485387.2

Approve Fee Schedule and Terms for Work on Odello Water Project.08!06!13

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