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HomeMy WebLinkAboutContracts & Agreements_99a-2010_CCv0001.pdf JOINT PROSECUTION AND COST-SHARING AGREEMENT RE PROPOSED RULE OF THE UNITED STATES FISH & WILDLIFE SERVICE TO DESIGNATE CRITICAL HABITAT FOR THE SANTA ANA SUCKER This Joint Prosecution and Cost-Sharing Agreement("Agreement") is entered into by and among the undersigned (the"Parties"), as listed on Exhibit A,hereto. RECITALS A. The Parties are cooperating on efforts to analyze, review and comment on the United States Fish & Wildlife Service's Proposed Rule to Designate Critical Habitat for the Santa Ana Sucker("Proposed Rule"). The Proposed Rule may have negative consequences for the Parties, depending on the specifics of the finally adopted rule and the course of administrative proceedings on establishing the rule. The Parties have agreed to cooperate reasonably in efforts to analyze and comment upon the Proposed Rule. These cooperative efforts include the utilization of various experts and consultants to assist with the review of and preparation of comments on the Proposed Rule, and the provision of consulting expert opinions relative to the necessity, wisdom, and efficacy of potential challenges to it. These cooperative efforts are more particularly described in the scopes of work attached hereto as Exhibits B, C, and D, and incorporated herein by this reference. B. Through this Agreement,the Parties desire to govern their payment of costs and fees arising from their cooperative efforts related to the retention and use of consulting experts on the Proposed Rule, and to confirm their common interests in maintaining ajoint prosecution with respect to the Proposed Rule,to allow them to continue to share information related to the Proposed Rule, while continuing to preserve,to the fullest extent possible, the protections of the attorney-client privilege, work product privilege, common-interest doctrine, deliberative process CONFIDENTL4L JOINT PROSECUTION MATERIAL 4 privilege, executive privilege, privileges regarding mediation or settlement communications,or any other privilege or protection existing under state or federal law. AGREEMENT NOW, THEREFORE,in consideration of the above recitals, and the mutual covenants and conditions contained herein,the Parties agree as follows: 1. The Parties shall each initially contribute the sum of$32,000, (except Big Bear Municipal Water District which shall contribute$20,000) which represents each Party's per capita contribution to pay for the fees and costs collectively incurred in their said cooperative efforts on the Proposed Rule. San Bernardino Valley Municipal Water District shall have the responsibility for collecting each Party's contribution of funds,processing invoices submitted by the experts and consultants pursuant to their scopes of work attached hereto, coordinating communisations among the Parties to the retained consulting experts,and for maintaining an accurate accounting of this administration of funds. In the event that additional tasks and associated costs are identified in order to meet the joint goals,the Parties will work cooperatively to fund such costs. However,nothing in this Agreement shall be construed to require a Party to pay more than its above- referenced initial per capita contribution towards the total cost for the current scopes of work, which is estimated to be$407,000. 2. For purposes of this Agreement, "Joint Prosecution Materials" includes,but is not limited to, all communications (including communications related to the Proposed Rule made prior to the execution of this Agreement), factual materials,mental impressions, legal analyses, theories or strategies, memoranda, reports, notes, emails or any other communications or 2 CONFIDENTIAL JOINT PROSECUTION MATERIAL documents that are protected from disclosure by the attorney-client privilege, work product privilege, deliberative process privilege, executive privilege, common-interest doctrine,joint prosecution/defense doctrine, privileges regarding mediation or settlement communications, or any other privilege or protection existing under state or federal law, and that are exchanged among the Parties and/or their respective counsel in connection with the Proposed Rule. Joint Prosecution.Materials do not include final versions of any correspondence, studies, or reports prepared by or on behalf of one or more Parties intended for review by the United States Fish& Wildlife Service or a non-Party. 3. The Parties will maintain as confidential all Joint Prosecution Materials (as defined above). Disclosure of Joint Prosecution Materials shall be limited to the Parties and their employees and contractors as well as any counsel,consultants, and lobbyists retained by the parties,or on behalf of the parties, for the purpose of maintaining a joint prosecution with respect to the Proposed Rule, subject to the further provisions of this Agreement. 4. Any Joint Prosecution Materials shared or transmitted by or between Parties should be clearly designated "CONFIDENTIAL: JOINT PROSECUTION MATERIALS." However,the failure to include such designation shall not preclude such materials from being afforded the protections of this Agreement and shall not be construed to constitute a waiver of any privilege or other protection. 5. Each Party shall take all appropriate measures to ensure that any person who is granted access to Joint Prosecution Materials is familiar with the terms of this Agreement and complies with those terms. 6. Each Party is represented by its own respective legal counsel in connection with the Proposed Rule, and the cooperative efforts referenced herein. Said legal counsel will not 3 CONFIDENTIAL JOINT PROSECUTION MATERML have an attorney-client relationship with any other Party to this Agreement as a result of the legal counsel's participation in discussions and actions related to the Parties' cooperative efforts on the Proposed Rule. Similarly, said legal counsel will not have a duty of loyalty or confidentiality to any Party to this Agreement other than the legal counsel's specific client(s),and consequently, no Party may seek to disqualify the legal counsel for another Party as a result of the legal counsel's participation in discussions and actions related to the Parties' cooperative efforts on the Proposed Rule. 7. Except where required by the order of a court of competent jurisdiction,or by the prior written consent of the remaining Parties, a Party will not reveal to non-Parties any Joint Prosecution Materials it has received from another Party. 8. Each Party shall notify the Party that generated any Joint Prosecution Materials of any request to disclose the Joint Prosecution Materials to any non-Party, or of any proceeding before any court, administrative agency,or tribunal to compel the disclosure of such Joint Prosecution Materials,as soon as practicable after receipt of such request or the initiation of such proceeding. If a Party becomes subject to any judicial or administrative order purporting to compel release of Joint Prosecution Materials, that Party shall: (a)promptly notify the Party that generated the materials and all remaining Parties, and (b) make all reasonable efforts to give that Party an opportunity to protect the Joint Prosecution Materials. 9. No party is required to treat as confidential within the meaning of this Agreement any material where such material is, or hereafter becomes (without violation of this Agreement), public record, public knowledge, or is obtained from sources other than exchanges under this Agreement. 4 CONFIDENTIAL JOINT.PROSECUTION MA TERIA L 10. The sharing of Joint Prosecution Materials among the Parties is not intended to and will not constitute a waiver of any privilege or other protection of confidentiality, including but not limited to the attorney-client privilege, work product privilege, common-interest doctrine, deliberative process privilege, executive privilege,privileges relating to mediation or settlement communications, or any other privilege or protection existing under state or federal law. 11. Execution of this Agreement constitutes the mutual agreement of the Parties that any sharing of Joint Prosecution Materials among themselves is reasonably necessary for the accomplishment of the Parties' common purposes as described above. Any sharing of Joint Prosecution Materials among the Parties is in reliance on this Agreement and the protections that arise from the Parties' common interests in reviewing and commenting on the Proposed rule. 12. Nothing in this Agreement shall obligate any Party to exchange documents or information with any other Party, whether or not such documents or information would be covered by this Agreement as Joint Prosecution Materials. 13. By this Agreement the Parties each acknowledge and agree that cooperation in the matters referenced above may involve the communication and sharing of confidential information and further agree that the interests of the Parties are not adverse as to matters within the scope of this Agreement. Each of the Parties has had a full opportunity to consult with separate counsel, is fully informed, and has concluded that the risk of any potential conflict of interest is outweighed by the benefits and efficiencies afforded by the opportunities for cooperation and sharing of Joint Prosecution Materials as provided for herein. The Parties consent to the sharing of Joint Prosecution Materials among their counsel, waive any potential conflict of interest created thereby, and mutually agree that this sharing of Joint Prosecution 5 CONFIDF.NTIA.L JOINT PROSECUTIONVATERIAL Materials and cooperation shall not constitute grounds for seeking disqualification of counsel in. any matter or action. 14. If there is a breach of this Agreement by a Party,the Parties agree that the non- breaching Party will have no adequate remedy at law in money or damages and shall be entitled to seek and obtain, in addition to all other remedies that may be available, a temporary restraining order, injunctive relief, or other equitable relief against the breach or its continuance. 15. Nothing in this Agreement shall be construed to waive any rights, claims,or privileges that any Party shall have against another Party or any other person or entity. 16. This Agreement shall be binding upon the successors and assigns of the Parties. 17. This Agreement is made under, and shall be construed in accordance with,the laws of the State of California. 18. The individuals signing this Agreement in a representative capacity warrant that they have the authority to do so on behalf of the entity or entities they represent, and further agree that as representatives of the entity or entities that they respectively represent,they themselves are bound by all terms of this Agreement. 19. Any Party may withdraw from this Agreement by providing written notice to the other Parties. If a Party withdraws from this Agreement, the provisions of this Agreement shall continue to apply to the Joint Prosecution Materials that were shared during the time period when that Party was a party to this Agreement. 20. All notices and other communications required to be given to a Party under the terms of this Agreement (a) shall be in writing, (b) shall be personally delivered, or transmitted by facsimile or email, and (c) shall be directed to such Party at the address, facsimile number or 6 CONFIDENTUL JOINT PROSECUTION 141A TERIAL email address specified below, or at such other address, facsimile number or email address as such Party may hereafter designate by notice in accordance with this paragraph. 21. This Agreement may be executed in counterparts, each of which so executed shall be deemed an original irrespective of the date of the execution, and said counterparts shall together constitute one and the same Agreement. Further, facsimile or PDF copies of signatures shall be as effective as original signatures for evidencinp,execution of this Agreement. BV: Print Name: bl- EnriqUezri-inP7 Date: August 24, 2010 Title: City Manager Representing: City of Redlands ATTEST: Sam Irwin, C-fty Clerk 7 CONFIDENTIAL JOINT PROSECUTION MATERIAL Exhibit A List of Parties As of June 9, 2010 1 San Bernardino Valley Municipal Water District 2. Western Municipal Water District of Riverside County 3. City of Riverside Public Utilities 4. City of San Bernardino Municipal Water Department 5. San Bernardino Valley Water Conservation District 6. Southern Calitornia Edison 7. East Valley Water District 8. City of Highland 9. -City of Redlands 10. Yucaipa Valley Water District 11, San Bernardino County Flood Control District 12. Bear Valley Mutual Water Company/Crafton Water Company 11 Big Bear Municipal Water District($20..000 share) Other Possible Partner Agencies 1. West Valley Water District 2. Raymond Basin Management Board/San Gabriel Valley Water Association 3. City Of Colton 4. City of Rialto 5. Riverside County Flood Control District 6. Orange County Flood Conrol District Exhibit B SCOPE OF WORK AND BUDGET 22 April 2010 ACTIVITIES ASSOCIATED WITH RESPONDING TO THE PROPOSED RESESIGNATION OF CRITICAL HABITAT FOR'THE SANTA ANA SUCKER Task 1. General Consulting Assistance PBS&J (Leidy and colleagues) will assist the Santa Ana Sucker (SAS) Task Force, as requested, with assignments not included in other tasks. Budgeting for this task assumes that this task covers two time periods: 1 April through 30 Jun 2010 and 1 July through 31 December 2010. The period from 1. April through 30 July 2010,. a period of 13 weeks, assumes an average labor commitment of 4 hours per week ($11,700 Labor). Other direct costs are estimated at $1,000 for this same period (air fare, rental car, etc.). Total budget through 30 June 2010: $12,700. Post 30 June through 31 December 2010 labor budget (26 weeks) with the same assumptions: $23,400. Other direct costs: $2,000. Total budget from July through December: $25,400. Grand total -budget (Labor and other direct costs) for this task from 1 April through 31 December 2010: $38,100. Task 2. Attendance as SAS Conservation Team and Other Relevant Meetings This task has been consolidated into this scope of work and budget from PBS&J Project No. 1.00012843 which was initiated on 1 March 2010. Leidy will attend up to 10 meetings of the SAWPA Santa Ana Sucker Conservation Team (including the Restoration Working Group) and the Southern California Native Aquatic Fauna Working Group between 1 March 2020 and 31 December 2010 for the purpose of providing input to the interested parties on the introduction of the SAS in the Santa Ana River watershed, and to gather information on the proposed activities of these groups. Each attendance is expected to be a one-day event. Leidy will summarize in writing the content of each meeting related to SAS issues along with any recommendations for actions on the part of the SAS Task Force. Each meeting is expected to require up to 8 hours in travel and meeting time, plus travel expenses (airfare, rental car and gas, one meal, and personal vehicle mileage. Labor budget (meetings plus write-ups) at 4 hours per meeting plus 0.5 hours administrative time per meeting: $20,900 (Before 30 June, 2010: $5,225; Post 30 June 2010: $15,675). Other direct costs: $4,300(Before 30 .Lune: $1,075; Post 30 June 2010: $3,225). Total 2 labor and other direct before 30 June: $6,300. Total labor and other direct costs post 30 June 2010: $18,900. Total labor and other direct costs from 1. March through 31. December 2010: $25,200. Task 3. SAS Enhancement Plan and Project Implementation There are two phases to this task. Phase 1 Leidy, working; closely with Sam Fuller, is charged with developing a plan to enhance the survival of the SAS population within its existing range in the Santa Ana River basin. The focus geographically will be from the Rialto Drain downstream to the Imperial Highway. This is the reach of the Santa Ana River that currently supports or recently supported the SAS and the reach that will have the greatest probability of implementing a successful project. The plan may include upland sites within this general river reach. The plan \rill contain appropriate adaptive management elements focused in the short-term on stabilizing the SAS population in the Santa Ana River. The goal is to have one on-the-ground project in place by the end of September 2010. Specific constraints and milestones of the plan are: • The project must be completed by 30 September 2010; • The project design must avoid any permitting requirements(other than permission from the USFWS to capture, move, rear, and reintroduce SAS) to meet the schedule(i.e., no 404, 401, 1602, or other permits); • The project should focus on improving spawning and/or juvenile rearing habitat for the SAS, if feasible; • Leidy et al. will meet with the USFWS (Ren Lohoefener, Pacific Southwest Regional Director) to present the plan and request approval to move SAS to the project site, if necessary; • Leidy et al. will request concurrence from the California Department of Fish and. Game (Curt Taucher, Regional Manager), and will also request that CDFG release up to $200,000 in funding already provided by San Bernardino Valley Municipal Water District and Western Municipal Water District to CDFG under the terms of the water rights settlement with CDFG; and • Post-project monitoring and O&M will be required. To assist with Phase 1, Leidy \rill engage the expert services of Dr. Camm Swift(ENTRIX, Inc.), Dr, Jonathan Baskin (San 'Marino Environmental Associates), and Kerwin Russell (Riverside- 2 ...................... Corona Resource Conservation District), as necessary, to design the project. Phase I has substantial unknowns at this time relative to the difficulty of implementing a project. If the process goes smoothly (for example, the project can make use of existing facilities at the RCRCD), then the cost will be less than the cost estimated herein. 1,eidy has budgeted a moderate level-of-effort, but by no means a highly complicated or expensive scenario. Planning for Task 3, Phase 1, is to be completed prior to 30 June 2010. The budget is based on all activities undertaken prior to l July 2010 and does not include Phase 1 construction-related planning or construction implementation. The budget breakdown is presented in the attached table. The total budget prior to 1 July 2010: $39,1.20. The total budget for the period from July through December 2010: $65,480. "Total Task 3, Phase l budget for 2010: $104,600. Phase 2 Phase 2 is a longer term continuation of Phase I that will occur over a two to three-year schedule at a funding level of approximately $100,000 to $150,000 per year. Phase 2 will develop additional projects that enhance and stabilize the SAS population within its existing range in the Santa Ana River basin. Project undertaken during this phase may require permitting and may focus on any activity that enhances SAS survival or improves habitat. Phase 2 is not budgeted at this time and will not be budgeted until Phase I is completed and we know better the level-of- effort required to continue with additional projects. Task 4. Alternative Streams Investi#ation This task will focus on evaluating the feasibility of establishing SAS populations elsewhere in the Santa Ana River basin outside of the current range of the species. New refugia for the SAS will be evaluated taking into consideration the following: • Location relative to the parent population and existing infrastructure; • Selection criteria for evaluating the suitability of specific locations to support viable populations of the SAS,over time, including a risk analysis of potential threats; and • financial and institutional requirements to create, maintain, and monitor SAS populations at selected locations. Leidy et al. will evaluate a select number of tributaries to the Santa Ana River that may contain the PCEs necessary to support an introduced SAS population in the future. This investigation will be at the reconnaissance level and the product will be a report presenting the results. Task 4 will be initiated prior to 30 June 2010, and will be completed prior to the end of calendar year 2010. Leidy will use experienced, mid-level fish biologists from PBS&J to assist with this task to contain costs. Approximately 25 streams will be evaluated. The evaluation will also include 3 I site visits to confirm environmental conditions. A records search of resource agency files may also be required. The labor costs incurred prior to I July 2010 will be for information gathering and site visits. This cost is estimated at$11,200. Other direct costs prior to I July: $3,500. Total budget prior to I July: $14,700. Completion of the report following 30 June 2010 is estimated-at $11,200. Other direct costs after 30 June: $500. Total budget after 30 June: $11,700. Total budget for task: $26,400. Task S. Additional Responses to the Economic Study Leidy will provide additional comments, if necessary, on the draft economic study issued by the USFWS. This effort is estimated at 24 hours labor ($5,400) plus other direct costs ($400), for a total budget of$5,800. Budget Summary for the Proposed Scope of Work Task I March-30 June ($) I July-31 December($) Total 1 1 12,700 25,400 38,100 2 6,300 18,900 25,200 3 39,120 65,480 104,600 4 14,700 11,700 26,400 5 5,800 0 5,800 Total 78,620 ^s 1.21,490 200,100 4 Exhibit C Legal Budget/Scope Santa Ana Sucker Critical Habitat Designation Best, Best& Krieger LLP on behalf of the Western Municipal Water District and City of Riverside and Downey Brand, LLP on behalf of the San Bernardino Valley Municipal Water District will undertake the tasks described in this Exhibit and will do so in cooperation with other Task Force members and their attorneys Task I —General Coordination This task involves general coordination efforts with the Santa Ana sucker task force and attendance at the monthly task force meetings. For purposes of the budget/scope, we have assumed that the task force will meet monthly from April through September and then,meet in either October or November. Task 2 Preparation of Comments on Economic Analysis Task 2.1 involves legal coordination with John Husing as he prepares his comments based on the project descriptions submitted by participating agencies. We anticipate that most of those comments will focus on the economic impacts of critical habitat designation,but we anticipate some need to work with Husing to establish the-legal framework for his analysis. Task 2.2 involves the attendance at the Fish & Wildlife Service hearing on the economic analysis. Task 3. Preparation of Enhancement Project Task 3.1 involves legal coordination with Roy Leidy as he works with Carnm Swift and John Baskin to develop the proposed Santa Ana sucker enhancement project. Task 3.2 involves preparing for and meeting with officials at the Fish & Wildlife Service to obtain their consent to the implementation of the project(s)developed by Leidy, Swift and Baskin. Task 3.3 involves the negotiation of a safe harbor agreement, a 100)population designation, or other legal/regulatory means to ensure that the Santa Ana task force parties' projects are fully protected from limits caused by the enhancement efforts. Task 4. Review and Client Advice on Final Rule This task involves review of the final critical habitat designation rule once it is issued by the Fisli & Wildlife Service and advising the Santa Ana sucker task force about potential avenues in light of that designation. j Santa Ana Sucker Critical Habitat Designation Legal Budget Task April I to June 30,2010 July I to December 31,201-0 Contingency (10%) Total Hours Fees/Costs Hours Fees/Costs Task I General Coordination 50 $1.5,000 70 $21,000 $3,600 $39,600 Task 2 Preparation of Comments on Economic Impacts of Designation Task 2.1 Coordination with John 30 $9,000 70 $21,000 $2,103 $32,103 Husing Task 2.2 Attendance at FWS Hearing 0 $0 20 $6,000 $600 $6,600 Task 3 -- Preparation of Enhancement Project Task 3.1 Coordination With Roy 50 $15,000 25 $7,500 $755 $23,255 Leidy Task 3.2 Meetings with FWS 25 $7,500 20 $6,000 $603 $14,103 Task 3.3 Negotiation of Safe Harbor 30 $9,000 100 $30,000 $3,003 $42,003 Agreement Task 4 Review and advice on Final 0 $0 40 $1.2,000 $1,200 $13,200 Rule Total 185 $55,500 345 $103,500 $11,864 $170,864 1 syr a k s Exhibit D RKI Stacey Aldstadt, Esq General Manager City of San Bernardino Municipal Water Department 444-D, Rialto San Bernardino, CA 92410 June 4, 2010 Dear Stacey,- The tacey;The purpose of this letter is to summarize and confirm the term and conditions of the agreement by Richard Katz Consulting Inc, ("Consultant") and X the City of San Bernardino Municipal Water Department ("SBMWD") ("Client'). SCOPE OF SERVICES The Client retains Consultant to provide strategic advice as it relates to the Federal Governments effort on the Santa Ana Sucker Critical Habitat Designation. Consultant shall offer a critical political overlay to the efforts of the government relations teams representing the member agencies of the Santa Ana Sucker Task Force in Washington, DC. Efforts shall include but not be limited to review of current strategy, assistance in developing new and innovative strategy going forward, and coordination of efforts with federal, state and local entities. Richard Kati Ph: 818-995-8575• Cell: 818-807-5490- Richard katzmitchell.com • 4009 Woodman Canyon Ave • Sherman Oaks, CA 91423 ry PROFESSIONAL FEES In compensation for the services performed by Consultant on behalf of Client, as outlined above, Client agrees to pay Consultant a monthly retainer of $5,000 per month for 90-days and $3,500 per month on-going until the issue is resolved, beginning June 1, 2010. REIMBURSEMENT OF EXPENSES INCURRED Client will reimburse Consultant on a monthly basis for any out-of-pocket expenses reasonably incurred by Consultant on its behalf including, but not limited to, document reproduction charges, facsimile charges, long distant telephone calls, travel expenses and messenger fees. Consultant will send a statement of expenses incurred each month. No expenditure in excess of five Hundred Dollars ($500.00) per month will be made without prior written consent from Client. TERMINATION Either party upon thirty (30) days written notice to the other party may terminate this agreement. In the event of such termination, Consultant shall bill Client for all professional services, independent contractor expenses and other costs incurred up to the date of termination. NO REPRESENTATION THAT PERMITS OR SERVICES WILL BE APPROVED OR SUCCESSFUL It is impossible to predict the approval or non-approval of any action, which requires discretionary government action. Consequently, while consultant will conscientiously perform all of its responsibilities outlined above, we cannot and do not make any representation to Client that any of the services discussed herein will be granted, acknowledged or approved by any governmental or public jurisdiction. Client acknowledges that none of its obligations under this letter agreement is dependent or conditioned upon approval of any service. Consultant, its employees and associates, shall not be individually or collectively liable to client, or any party claiming through Client, for any damages resulting from the denial of any discretionary permits or from errors or omissions in connection with any services provided hereunder for any reason other than willful misconduct. Consultant shall not be liable to Client, or any party claiming through Client, for any damages resulting from the denial of the application of any governmental approval or service. ATTORNEY'S FEES In the event that any litigation is commenced concerning any provision of this letter agreement, the prevailing party will be entitled to recover, in addition to any other relief granted by the court, a reasonable sum for its attorney's fees incurred in the litigation. CONCLUSION We believe that the above terms and conditions accurately summarize our agreement for the performance of services related to the project. If you concur, please indicate your approval and acceptance by dating, signing and returning this letter agreement. We have enclosed a signed copy of this letter for your records. We are very pleased that we are able to be of service to you and look forward to working with you. All the Best, Richard Katz AGREED AND ACCEPTED; City of San Bernardino Municipal Water Department By: Stacey Aldstadt, Esq. Date