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HomeMy WebLinkAboutContracts & Agreements_216-2019 JOINT DEFENSE/COMMON INTEREST AND CONFIDENTIALITY AGREEMENT This Joint Defense/Common Interest and Confidentiality Agreement ("Agreement") is entered into this 5th day of November, 2019, by and between Daniel J Buoye ("Buoye") and the City of Redlands ("City") in order to aid the respective parties in their defense of Iegal matters discussed below City and Buoye are sometimes individually referred to herein as a "Party" and, together, as the "Parties " RECITALS A On October 3, 2019, Citizens for Consistent Land Use Planning, a California unincorporated association, filed Case Number CIVDS 1929689 in the San Bernardino County Superior Court, a Verified Petition Peremptory for Writ of Mandate, alleging violations of City's General Plan and the California Environmental Quality Act (the "Action") City is named as Respondent in the Action Buoye is named as a Real Party in Interest in the Action. The Action challenges the City Council of the City of Redlands' approval of Tentative Tract Map No 20065 for a residential development in the City of Redlands (the "Project") and a mitigated negative declaration ("MND") for the Project (collectively, the "Challenged Approvals") B Because of their positions as respondent and real party in interest in the Action, the Parties have joint and common interests with respect to the defense of the Challenged Approvals, as well as the various issues and disputes that have been alleged or may arise in the Action concerning the Parties' obligations, liabilities, and/or duties relating to these issues and disputes All such issues and disputes against the Parties, including those concerning the Challenged Approval, whether individually or collectively, are referred to collectively as the"Disputes " C The Parties acknowledge and agree that their respective positions regarding the Disputes are such that their interests are generally the same Nevertheless, the Parties understand that conflicts between their respective positions and interests may currently exist or could develop in the future Nevertheless, the Parties wish to share, and have their legal counsel share, information on the Disputes as to which the Parties' interests are the same and do not conflict, all on a confidential basis, without waiving the confidentiality of shared information as to those persons or entities not Parties to this Agreement, and without sacrificing the Parties' abilities to continue to be represented by their respective counsel in any of the Disputes, or other existing or future disputes with each other, relating to the Action or the Challenged Approvals The Parties believe and agree that it is in their respective and collective best interests to share information in this way and to cooperate in the defense of the Disputes in the Action because such sharing of information is reasonable and necessary to accomplish the purpose for which their attorneys have been consulted and employed, that is, the investigation, analysis, and defense of the Disputes in the Action TERMS AND CONDITIONS In consideration of the mutual promises and covenants hereinafter set forth,the Parties agree as follows L 1ca\djmlAgreements\Daniel Buoye TTM 20065 Joint Defense Agreement doe I of 8 1 Confidential Sharing of Information I l The Parties may share with each other and each other's respective counsel information in their possession relating to the subject matter of the Disputes, some of which may be confidential and subject to either the attorney-client privilege, the attorney work-product doctrine, and/or any other privilege, immunity, or protection under California law The Parties agree that all shared information received from the other Parties or the other Parties' counsel shall be held in strict confidence by the receiving Party and by any counsel or consultants of such Party to which such confidential information is revealed by the receiving Party and, subject to the reservations set forth in Section 1 9 of this Agreement, such information shall only be used in connection with asserting any common claims or defenses in connection with the Disputes and conducting such other activities as are necessary and proper to carry out the purposes of the Parties' defense of the Action 12 The sharing of such confidential information by the Parties that is subject to the attorney-client privilege, the attorney work-product doctrine, and/or any other privilege or immunity is not intended by the Parties to be, nor shall it be, construed as a waiver of any attorney-client privilege, attorney work-product doctrine, and/or any other privilege, immunity, or protection 13 The information and other materials that have been or will be exchanged pursuant to the understandings memorialized in this Agreement may include factual or legal information, theories, mental impressions, memoranda, percipient or expert witness statements, interviews or investigations, interview reports, draft briefs, correspondence, other legal position papers, and other documents, information, and materials, including, but not limited to, the confidences of the Parties relevant to the Parties' common interests, in oral, written or any other form (collectively, "Privileged Materials"), and they are exchanged on the understanding and agreement that. A Privileged Materials shared among the Parties or their counsel may contain confidential and privileged communications subject to the attorney-client privilege, B Privileged Materials shared among the Parties or their counsel may contain privileged or protected work product, including attorney work- product, C Privileged Materials shared among the Parties or their counsel may contain materials protected by other privileges, immunities, and rules of confidentiality, and D In accordance with applicable legal standards, exchanges have been and will be made only of information concerning issues as to which the Parties believe in their sole discretion that they share common interests with L lcalcdjmlAgreements\Daniel Buoye TTM 20065 Joint Defense Agreement.doc 2 of 8 respect to the Disputes All Privileged Materials provided by any Party in connection with joint efforts relating to the Disputes, and all material derived from any Privileged Materials so exchanged, shall be deemed subject to the terms of this Agreement All Privileged Materials that are privileged or protected as to any Party or its counsel shall remain privileged or protected when communicated to another Party or its counsel in accordance with the joint and common defense concept articulated in Continental Oil Co v United States, 330 F 2d 347 (9th Cir I964), Waller v Financial Corp of America, 828 F 2d 579, 583 n 7 (9th Cir 1987), and their progeny, California Oak Foundation v County of Tehema, 174 Cal App 4th 1217 (2009), and in accordance with the provisions of California Evidence Code section 9I2(d), the attorney work-product doctrine and the joint defense, common interest, and non-waiver principles articulated in Raytheon Co v Superior Court, 208 Cal.App 3d 683, 687- 89 (1989), and to the fullest extent provided by law The voluntary disclosure by any Party to this Agreement of Privileged Materials to any other Party shall not be deemed to create any waiver or implied waiver of any applicable privilege or doctrine protecting the Privileged Materials from disclosure to persons not parties to this Agreement The Parties acknowledge that they have been acting in a manner consistent with the terms of this Agreement since the Action first arose and agree that this Agreement is meant to apply to all such action and exchanges of Privileged Materials, whether occurring before or after the execution of this Agreement 1.4. If any Party is dismissed from the Action by reason of settlement or otherwise, or if any Party shall cease to be a part of this Agreement, such Party's obligation to protect the confidentiality of all Privileged Materials provided to it by the other Parties shall continue 1 5 After any Party to this Agreement has voluntarily disclosed Privileged Materials to any other Party, the Party disclosing the information shall not be entitled to return of that information until the final determination of the Action as to the party to whom the information was disclosed. Upon final dismissal or settlement of the Disputes, including the Action, any written Privileged Materials received pursuant to this Agreement by any settling or dismissed Party shall be returned, upon request, within a reasonable period of time to the Party that produced the Privileged Materials 1 6 Any written Privileged Materials that are shared or exchanged may be marked "Confidential, Privileged Materials " Failure to mark Privileged Materials shall not be deemed a waiver of any applicable privilege 1.7. This Agreement shall not be construed to require any of the Parties to disclose to any third party any documents or information Subject to the provisions of Section 1 10 to this Agreement, any Privileged Materials that are shared or exchanged among any or all of the Parties will not be disclosed to any third party without the written consent of the Party whose information is to be disclosed, L 1ca\djmlAgreements\Daniei Buoye TTM 20065 Joint Defense Agreement.doc 3 of 8 except that disclosure of Privileged Materials to a Qualified Person, as defined below, shall not need prior written consent and shall not breach the confidentiality afford to Privileged Materials under this Agreement "Qualified Person" is defined as A Attorneys of record for or general counsel engaged by any Party, B Any officer or employee of a Party, who would normally be deemed a client for purposes of the attorney-client privilege and/or those employees consulted on a need-to-know basis, C Legal assistants, secretaries, other support personnel, and word processing personnel working under the direct supervision of any attorney who is a Qualified Person, D Outside legal support consultants retained to assist in the Disputes by any attorney who is a Qualified Person, E Consultants and experts retained for purposes of the Disputes by any attorney who is a Qualified Person, provided that any such consultant or expert shall sign a statement certifying that such consultant or expert has read this Agreement and agrees to be bound by all of its terms and conditions, and provided further that such statement be retained by said attorney, and provided further that any consultant or expert shall not disclose Privileged Materials without the written consent of the Party whose information is to be disclosed, and F Any person otherwise agreed upon in writing by all of the Parties, and disclosure to whom is for the purposes of facilitating the defense of the Disputes, including the Action as set forth above, provided that any such person shall sign a statement certifying that he/she has read this Agreement and agrees to be bound by all of its terms and conditions, and provided further that such statement be retained by the attorney of record for the Party proposing to disclose documents, or information contained therein,to such person 1 8 Any Privileged Materials shall be used solely in connection with the Disputes, including the Action, and shall not be used for any other purpose Each Qualified Person receiving written Privileged Materials shall maintain those documents, and any information contained therein, in trust, and shall use reasonable care to safeguard the confidential nature of the Privileged Materials, and the information contained therein, and to prevent them from being copied or otherwise used by anyone who is not a Qualified Person 1 9 Notwithstanding any other provision in this Agreement, in the event of any adversarial action, proceeding, or litigation between or among the Parties, nothing in this Agreement shall be construed to prevent the Parties to this Agreement from using in such action, proceeding, or litigation any information that is obtained L lcaldjmlAgreements\Daniel Buoye TIM 20065 Joint Defense Agreement.doc 4 of 8 though discovery or from independent third-party sources, even though such information obtained through discovery or from independent third-party sources may be the same, related to, or similar to the Privileged Materials obtained pursuant to this Agreement 110 Notwithstanding anything in this Agreement to the contrary, the Parties acknowledge and agree that the Privileged Materials shared as part of this Agreement are not precluded from use by the Parties hereto in any disputes or claims that exist or may exist by and between any of the Parties to this Agreement, as such are not part of the Disputes in the Action in the common interest of all the Parties hereto as contemplated undei this Agreement 1.11 If Privileged Materials become the subject of a potential administrative or judicial order purporting to require disclosure of such information by a Party to this Agreement, that Party must provide notification no later than twenty-four (24) hours after receiving notice of said proceedings to the Party that generated the information of the proceedings seeking to compel disclosure in order The purpose of the notice required under this section 1 11 is to give the generating Party reasonable opportunity to protect the confidentiality of the information prior to its disclosure Although recognizing that a Party must comply with a valid administrative or judicial order, any disclosure pursuant to such administrative or judicial order shall be only to the extent minimally necessary to comply with the order and shall not be made in any event until notice of the potential disclosure is given, as provided herein 1 12 Should anyone claim that any otherwise applicable privilege has been waived as a result of any exchange or disclosure made pursuant to this Agreement, the Parties agree to join in defending against such claim 1 13 Nothing in this Agreement is inconsistent with the Parties' respective interests in receiving independent,vigorous, and separate representation 2. Payment of Defense Costs/Indemnity/Security. 2 1 Pursuant to Condition No 9 of Tentative Tract Map No 20065 approved by City for the Project, Buoye is required to defend, by paying for the defense costs of City (for counsel retained by City), indemnify and hold harmless City, and its elected officials, officers, employees, and agents, from and against any and all claims, actions, and proceedings (collectively "Claims") to attack, set aside, void or annul the approval of Tentative Tract Map No 20065 and any other entitlements issued for the Project, or any Claims brought against City due to acts or omissions in any way connected to Tentative Tract Map No 20065 This indemnification includes, but is not limited to, damages, fees, costs, liabilities, and expenses incurred in such actions or proceedings, including damages for the injury to property or persons, including death of a person, and any award of costs or attorneys' fees In the event any such action is commenced to attack, set aside, void or annul all, or any, provisions of Tentative Tract map No 20065 or other entitlements issued for the Project, or is commenced for any other reason against L 1caldjmlAgreements\Daniel Buoye TTM 20065 Joint Defense Agreement doc 5 of 8 City for acts or omissions relating to the Project, within fourteen (14) City business days following notice of such action from City, Buoye shall file with City a performance bond or irrevocable letter of credit, or other form of security satisfactory to City (the "Security") in a form satisfactory to City, and in the amount of$100,000, to ensure Buoye's performance of its defense and indemnity obligations However, provision of the Security does not limit the total indemnity obligation of Buoye established by Condition No 9 The failure to provide the Security shall be deemed an express acknowledgement and agreement by Buoye that City shall have the authority and right, without objection by Buoye, to revoke all entitlements granted for the Project, and City shall have no liability for the exercise of City's right to revoke the challenged entitlements 2.2 In the event City retains special counsel in connection with it defense of the Action, Buoye shall reimburse City for all costs incurred by City for such special counsel services. City's special counsel will submit to Buoye copies of the summary invoices prepared by special counsel and sent to both City and Buoye, and Buoye shall make the required reimbursement payment to City's special counsel within thirty (30) days of the date of City's special counsel's transmittal of each such invoice In the event Buoye fails to make any reimbursement payment, City shall have the right to draw upon the Security described in Section 2 I above 3 Notices 3 1 All notices or other communications between the Parties required or permitted hereunder shall be given in writing by personal delivery or sent by certified mail, return receipt requested and postage prepaid, sent by reputable overnight courier (such as Federal Express, UPS or DHL), or transmitted by electronic facsimile transmission (with electronic confirmation of receipt) to the following addresses Notices sent by mail shall be addressed as follows City Buoye Jeanne Donaldson Daniel J Buoye City Clerk 5225 Canyon Crest Drive, Suite 71 City of Redlands Box 134 (mailing) 35 Cajon Street, Suite 4 Riverside, CA 92507 P 0 Box 3005 (mailing) Redlands, CA 92373 With a Copy to With a Copy to Daniel J McHugh, Esq Kevin Gillespie,Esq City Attorney 411 Brookside Avenue City of Redlands Redlands, CA 92373 35 Cajon Street, Suite 200 P 0 Box 3005 (mailing) Redlands, CA 92373 L 1ca\djm\Agreements\Daniel Buoye TTM 20065 Joint Defense Agreement.doc 6 of 8 A notice shall be effective on the date of personal delivery if personally delivered before 5.00 p m or otherwise on the day following delivery, or when received, if transmitted by electronic facsimile transmission (with electronic confirmation of receipt), or two (2) business days following the date the notice is postmarked, if mailed, or on the day following delivery to the applicable overnight courier, if sent by overnight courier Changes may be made in the names and addresses of the person to whom notices and payments are to be given by giving notice pursuant to this section 3 1 4 Withdrawal and Modification 4 I Any Party may withdraw from this Agreement after written notification to the other Party This Agreement shall continue to protect all Privileged Materials covered by this Agreement and disclosed to the withdrawing Party prior to its notification of withdrawal This Agreement cannot be modified or revised in any respect except with the express written consent of the Parties 4 2 In the event that either Party determines that its interests may be best served by pursuing a course of action adverse to the interests of the other, or becomes aware of any other circumstances inconsistent with the maintenance of a joint defense or common interest privilege, such Party shall immediately notify in writing the other Party and return to it all Privileged Materials previously received and withdraw from the Agreement Such withdrawal should not affect the privileged nature of any Privileged Materials received prior to the date of withdrawal, and the withdrawing Party and its counsel shall continue to be bound by the obligations and confidentiality set forth in this Agreement 4. Choice of Law 4 1 This Agreement shall be governed by and construed in accordance with the laws of the State of California 5 Remedy 5 1 The Parties expressly acknowledge and agree that no adequate remedy is available at Iaw foi breach of this Agreement and that, in addition to any other remedies available,performance of this Agreement may be specifically ordered or breach hereof may be enjoined or both 5 2 In the event any action is commenced to enforce or interpret any of the terms or conditions of this Agreement the prevailing Party shall, in addition to any costs and other relief, be entitled to the recovery of its reasonable attorneys' fees, including fees for the use of in-house counsel by a Party 6 Entire Agreement 6 1 This Agreement constitutes the entire agreement between the Parties with respect to common defense of the Action and confidentiality This Agreement supersedes L lcaldjmlAgreements\Daniel Buoye TTM 20065 Joint Defense Agreement.doc 7 of 8 all prior or contemporaneous agreements, representations, and understandings with respect to the common defense of the Action and confidentiality Nothing in this Agreement constitutes, or shall be construed to be, a waiver or circumscription of any Party's rights to pursue remedies available at law in disputes (including disputes related to the Action) with the other Party, including filing suit. 7 Authority 7 l Each Party hereby represents and warrants that its execution of this Agreement has been duly authorized and approved by all necessary authority of the approving entity This Agreement may be executed in duplicate original or counterpart For purposes of this Agreement, a facsimile signature will be deemed an original signature 8. Additional Parties 8 1 Additional parties who share common interests with respect to the Disputes, including the Action, may Join in this Agreement by executing a copy of this Agreement with notice to and agreement by all Parties to this Agreement. IN WITNESS WHEREOF the Parties have executed this Agreement on the dates indicated by their respective signatures CITY OF REDLANDS DANIEL J. BUOYE By - u W Foster,Mayor Daniel J B a ATTEST. Q-13 J Donaldson, City Clerk 43sers/kevingiIiespie/Dropbox/MDrivc/J3uoye,'Buoye Dan/HighiandiDown[oad/Rediands/Daniel Buoyc TTM 20065 Iou1t8 of 8 Defense Agreementb.dac