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HomeMy WebLinkAboutContracts & Agreements_153-2003_CCv0001.pdf MASTER JOITN7 DEFENSE AGREEMENT A. City of Redlands ("Redlands") and Bear Valley Mutual Water Company ("Bear Valley") each own rights to the waters of the Santa Ana River, including without limitation pre-1914 appropriative rights to the surface waters of the Santa Ana River and .n ghts to the waters of groundwater basins historically recharged, by natural and induced Z, I Z-1 percolation, with the waters of the Santa Ana River. B. Several applications (the "Applications") to appropriate water from the Santa Ana River have been filed with the California State Water Resources Control Board ("SWRCB") by(1) San Bernardino Valley Municipal Water District and Western Municipal Water District of Riverside County, (2) San Bernardino Valley Water Conservation District, (3) Orange County Water District, (4) Chino Basin Watermaster, and (5) City of Riverside (collectively, the "Applicants"). C. The Applications seek to appropriate Santa Ana River water that was previously lost as flood flows or that can allegedly be stored or regulated by the Seven Oaks Dam flood control project for municipal use by direct diversion and diversion to storage. D. Redlands and Bear Valley have filed protests to some of the Applications on the basis that the prospective appropriations will interfere with their respective prior and paramount rights to the waters of the Santa Ana River and to water of groundwater basins recharged with waters of the Santa Ana River, and expect to participate in various administrative proceedings before the SWRCB in connection with the processing of the Applications and, if necessary, in any judicial proceeding challenging the environmental compliance under CEQA and/or NEPA by the Applicants and the SWRCB. E. Redlands and Bear Valley desire to unite to protect their common interests in and to the waters of the San Ana River, to participate in any administrative or judicial proceedings for the Applications and, where appropriate, to retain joint legal counsel on the terms and conditions set forth below. 1 NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS: 1. GENERAL NATURE/ PRIVILEGED NATURE OF LEGAL MATERIALS. A. This Master Joint Defense Agreement (the "Agreement") is entered into and is effective as of the date it is fully executed by the parties hereto ("Effective Date"), by and between the following parties and their counsel of record: (1) City of Redlands, whose counsel is Warren P. Felger Esq. Felger & Associates 726 West Barstow, Suite 106 Fresno, CA 93704-1955 (2) Bear Valley Mutual Water Company, whose counsel is David G. Moore Reid & Hellyer P.O. Box 1300 Riverside, CA 92502. (All such parties shall be referred to collectively herein as the "Parties" and individually as a "Party.") By joining in and executing this Agreement, each Party and its counsel agree that it shall be bound by its provisions. B. With respect to the processing of the Applications by the SWRCB and any administrative proceedings or hearings held on the Applications (the "Proceedings") and in the event litigation is commenced by either or both of the Parties challenging Applicants' or the SWRCB's compliance with CEQA and/or NEPA in connection with the Applications (an "Action"), the Parties have agreed to share confidential attornev- client communications, attorney work product and other privileged materials and communications (collectively, the "Confidential Materials"), subject to the terms and conditions set forth in this Agreement. C. Prior to any conversations or communications among the Parties and/or their counsel of record regarding the legal representation in the Proceedings and/or the prosecution of the Action, the Parties and their counsel agreed that the Parties actions in the Proceedings and the Action would be governed by a joint defense agreement, the terms of which would be memorialized in writing. 2 D. The Parties have agreed that their discussions and the discussions of their Attorneys (including those members of the Attorneys' staff and consultants assisting in the defense of the Action hereinafter collectively referred to as "Attorneys") regarding the formation and terms of this Agreement and the legal representation in the Proceedings and/or the prosecution of the Action are protected by the attorney-client privilege and attorney work product doctrine because the information communicated was transmitted in confidence between the Parties and their respective Attorneys, the information was transmitted to further the common interests of the Parties in the Proceedings and the Action, and the transmission was reasonably necessary for the accomplishment of the purpose for which the Parties' Attorneys had been consulted, namely, forming legal opinions and giving advice in the course of the Proceedings and the Action. This Agreement memorializes the discussions regarding the joint legal representation in the Proceedings and/or the prosecution of the Action by the Parties and their Attorneys and serves as the final, complete, and exclusive agreement of the Parties. E. The Parties have also concluded that, from time to time, the Parties' common interests may be best served by retention of joint consultants and by sharing documents, factual material, factual analysis, factual summaries, mental impressions, memoranda, interview reports, witness statements, debriefing memoranda, deposition summaries, legal research, attorney-client communications, and other information, both oral and written, including certain confidences, hereinafter referred to as "Legal Materials." These Legal Materials are privileged from disclosure to third parties because of the attorney-client privilege, the attorney work product doctrine, and other applicable privileges. F. To this end, it is understood and agreed by the Parties that this Agreement, and the discussions that resulted in this written agreement, including the written agreement itself, any Legal Materials, any information previously obtained by any Party and shared with the Parties and any information obtained in the future by or from any of the Parties and shared with the Parties (other than formal discovery propounded and responded to in the Action or pleadings), and any information obtained from any expert or consultant retained collectively by the Parties (collectively"Confidential Materials"), will remain confidential and shall be protected from disclosure-to any third- party except as provided herein or as required by law. It is the purpose of this Agreement, and the mutual understanding of the Parties, to ensure that the exchanges and disclosures of Confidential Materials contemplated herein do not constitute a waiver of any privilege otherwise available. G. It is further agreed that, unless otherwise required by law, no Party will disclose Confidential Materials received from any other Party (other than formal discovery propounded or responded to in the Action or pleadings), or the contents thereof, to anyone other than a Party, the Party's attorney, other Attorneys or employees of the 3 Attorneys' law firms, and consultants hired by a Party to assist in the Proceedings and/or the prosecution of the Action, without first obtaining the written consent of all Parties. Disclosure of Confidential Materials to a Party, the Party's attorney, other Attorneys or employees of the Attorneys' law firms, or consultants hired by a Party to assist in preparing a defense to the Action, will be conditioned upon their agreeing to maintain the confidentiality of the information and executing a declaration memorializing such agreement. The original signed declarations for each Party, attorney and consultant shall be retained by the attorney for each Party and by the attorney that retained the consultant. A copy of the signed declarations shall be provided to the other Parties to this Agreement. H. If a Party is compelled by law to disclose information that is otherwise protected from disclosure under the terms of this Agreement, the Party shall first give reasonable, written advance notice and the opportunity to prevent against such disclosure to any Party adversely affected by the disclosure. I. Each Party will take all steps necessary to permit and protect the assertion of all applicable rights and privileges with respect to the Confidential Materials. Each Party agrees that it has no right to waive a Joint defense privilege or any privilege held by any other Party. H. ADMINISTRATIVE PROVISIONS. A. In the event a dispute arises between or among any of the Parties to this Agreement, no Party shall use this Agreement in any way against any Party in any proceeding. For example, this Agreement shall not be used by any Party against any other Party or Parties to establish a claim for, or defense to, liability or damages in any proceeding. In addition, no Party will claim that any counsel is disqualified from any proceeding because of the Agreement. However, the existence and terms of the Agreement may be used in a proceeding exclusively limited to the enforcement of the Agreement. B. The Agreement shall be governed by and construed in accordance with the laws of the State of California. C. The Agreement constitutes the entire agreement among the Parties with respect to the subjects of the Agreement and supersedes all prior or contemporaneous agreements, representations and understandings with respect to the Agreement. 0, eement. D. No amendment, modification or waiver of the Agreement shall be binding unless executed in writing by all the Parties. E. The Agreement shall be binding upon the successors and assigns of the Parties. 4 F. All notices under the Agreement shall be sent by messenger, overnight courier or telecopier addressed to the attorney for that Party. G. The Agreement may be executed in any number of counterparts, all of which together shall constitute one and the same instrument. Any Party may execute the Agreement by signing any such counterpart and delivering it to Warren P. Felger, who shall be the custodian of the master copy of the Agreement. H. If any provision of the Agreement is determined to be invalid or unenforceable, the remaining provisions shall continue to be fully operative, to the extent possible. I. Each Party hereby represents and warrants that its execution of the Agreement has been duly authorized and approved by all necessary authority. J. It is the intent of the Parties that, if possible, additional persons or entities may enter the Agreement. Any party wishing to join the Agreement must be approved by unanimous vote of the Parties. K. Any Party is free to withdraw from this Agreement after giving 10-days advance written notification to all Parties and after returning any Confidential Materials in the possession of the withdrawing Party to any Party to this Agreement, in which case this Agreement shall no longer be operative as to the withdrawing Party, except that: 1. The Agreement shall continue to protect all communications and information covered by the Agreement and disclosed to the withdrawing Party prior to the Party's notification of withdrawal; and 2. Any Party withdrawing from the Agreement thereby foregoes the right to sue, and directly consult with, those expert consultants and trial experts retained by the Parties as common consultants/experts and also waives the right to contend that the remaining Parties may not use those common consultants/experts. L. Any Party to this Agreement who enters into a settlement agreement with any one or more of the Applicants may withdraw from this Agreement and, in such event, must comply with the provisions of paragraph 11, K (such Party shall be referred to herein as a-' Settling Party"). A Settling Party shall not disclose any Confidential Materials to any of the Applicants or the SWRCB at any time. M. Any inadvertent disclosure of any Confidential Materials by any Party shall not constitute a waiver of the terms of this Agreement. Any Party inadvertently disclosing any Confidential Materials shall promptly, upon discovering same, advise all 5 Parties to this Agreement and shall request in writing the return of the Confidential Materials inadvertently disclosed. N. By signing this Agreement each Party certifies that it understands the contents of the Agreement, has discussed its provisions with counsel, and agrees to abide by the understandings reflected herein. CITY OF REDLANDS Attest: B . _ By L rie Poy' Karl N. (Kasey) Daws, ity Cler Mayor Date: August 5, 2003 FELGER& ASSOCIATES By Lzx m .. ., Warren P. Felger, Esq. BEAR VALLEY MUTUAL WATER COMPANY By Michael L. H st,6 , General Manager REID & HELLYER By David G. Moore, Esq. 6