HomeMy WebLinkAboutContracts & Agreements_91-2006_CCv0001.pdf JOINT DEFENSEXOMMON INTEREST AND CONFIDENTIALITY AGREEMENT
This Joint Defense/Common Interest and Confidentiality Agreement("Agreement") is entered
into by and between Chad Covington, Covington Construction and Development, the City of
Redlands and the City Council of the City of Redlands in order to aid the respective parties in
their defense of legal matters discussed below. The parties to this Agreement, as listed above,
are referred to collectively as the "Parties."
RECITALS
1. On May 20, 2005, Redlands Residents for Rural Living filed Case Number SCVSS
126460, a Petition for Writ of Mandate under the California Environmental Quality Act
and the California Government Code in the San Bernardino County Superior Court (the
"Action"). The City of Redlands and the City Council of the City of Redlands are named
as Respondents in the Action. Chad Covington and Covington Construction and
Development are named as a Real Parties in Interest in the Action. The Action
challenges the City Council of the City of Redlands' approval of a 84-unit residential
development in the City of Redlands (the "Project") and certification of an environmental
impact report ("EIR-) for the Project (collectively, the "Challenged Approvals").
Pursuant to the conditions of the tentative map approval for the Project, Covington
Construction and Development must defend, indemnify and hold the City of Redlands
harmless with respect to legal challenges to the Project, such as the Action.
2. Because of their positions as respondents and real parties 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 Approvals, whether individually or collectively, are referred
to collectively as the "Disputes."
3. 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.
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TERMS AND CONDITIONS
In consideration of the mutual promises and covenants hereinafter set forth, the Parties agree as
follows:
1. Confidential Sharing of Information
LL 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 to 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.
1.2. 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.
1.3. 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, NNTitten 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.-
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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
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. U'nited States, 330 F.2d 347 (9th Cir. 1964), and
Waller v. Financial Corp ofAmerica, 828 F.2d 579, 583 n.7 (9th Cir.
1987), and its progeny, and in accordance with the provisions of
California Evidence Code section 912(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. Once 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.
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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,
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.
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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
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.
1.10 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 under this Agreement.
1.11 If Privileged Materials become the subject of 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.
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2. Withdrawal and Modification
2.1. Any Party may withdraw from this Agreement after written notification to the
other Parties. 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 all Parties.
2.2 In the event that any Party determines that its interests may be best served by
pursuing a course of action adverse to the interests of the other(s), 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(or Parties) and return to them 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.
3. Choice of Law
3.1. This Agreement shall be governed by and construed in accordance with the laws
of the State of California.
4. Remedy
4.1. The Parties expressly acknowledge and agree that no adequate remedy is
available at law for 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. Effect of Agreement
5.1. This Agreement shall not supersede or otherwise modify any pre-existing
obligations on the part of Chad Covington or Covington'Construction and
Development to defend, indemnify and hold the City of Redlands harmless with
respect to legal challenges to the Project, such as the Action. 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 (excepting
disputes related to the Action) with the other Party, including filing suit.
6. Authority
6.1. 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
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purposes of this Agreement, a facsimile signature will be deemed an original
signature.
7. Additional Parties
7.1. 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.
DATED: April;V, 2006 FRANK J. MISTRETTA FAMILY TRUST,
ESTABLISHED FEBRUARY 1, 1983
FRANK J. MISTRETTA, TRUSTEE
DATED: April-,;�, 2006 FRANK J. MISTRETTA FAMILY TRUST,
ESTABLISHED FEBRUARY 1, 1983
By:
MARGARET MISTRETTA, TRUSTEE
DATED: April 2006 CHAD COVINGTON, AN INDIVIDUAL
COVINGTON CONSTRUCTION AND
DEVELOPMENT
By:
CHAD COVINGTON
DATED: May 2 , 2006 CITY OF REDLANDS AND THE CITY
ATTEST- COUNCIL OF THE CITY OF REDLANDS
Lorri Poyzer, y lerk By:
)rri
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Sent By`,: AIPI; 9497177733; May-1-06 2;40PM; Page 212
purposes of this Agreement,a facsimile signature will be deemed ars original
signature.
7. Additional Parties
7.1 Additional parties who share common interests with respect 10 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
indicatc-d by their respective signatures.
DATED: April , 2006 FRANK.J. MISTRETTA FAMILY TRUST,
ESTABLISHED FEBRUARY I, 1983
By:
FRANK J. MISTRETTA,TA, TRUSTEE
DATED: April 2006 FRANK J. MISTRETTA FAMILY TRUST,
ESTABLISHED FEBRUARY'' 1, 1983
By:
MARGARET MISTRETTA, TRUSTEE
DATED: April : , 2006 CHAD COVINGTON AN NDIVID.aAL
COVINGTON CQNSt� UCTION AND
DEVELOPMENT
By:
CHAD COVINGTON
DATED: May z , 2006 CITY OF REDLANDS AND THE CITY
COUNCIL OF THE CITY t ►F REDLANDS
ATTEST: /f}
tr��` f F f� ✓
to
r
r
tyzer, Ierk
74M2
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purposes of this Agreement, a facsimile signature will be deemed an original
signature.
7. Additional Parties
7.1. 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.
DATED: April V, 2006 FRANK J. MISTRETTA FAMILY TRUST,
ESTABLISHED FEBRUARY 1, 1983
x r;
By -=
FRANK J. MISTRETTA, TRUSTEE
DATED: April-- 6 , 2006 FRANK J. MISTRETTA FAMILY TRUST,
ESTABLISHED FEBRUARY 1, 1983
B
y ,
MARGARET MISTRETTA, TRUSTEE
DATED: April , 2006 CHAD COVINGTON, AN INDIVIDUAL
COVINGTON CONSTRUCTION AND
DEVELOPMENT
By:
CHAD COVINGTON
DATED: May , 2006 CITY OF REDLANDS AND THE CITY
COUNCIL OF THE CITY OF REDLANDS
By:
74;;22
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purposes of this Agreement, a facsimile signature grill be deemed an original
signature.
7. Additional Parties
7.1. 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.
DATED: April _, 2006 FRANK J. MISTRETTA FAMILY TRUST,
ESTABLISHED FEBRUARY 1, 1983
By:
FRANK J. MISTRETTA, TRUSTEE
DATED: April _, 2006 FRANK J. MISTRETTA FAMILY TRUST,,
ESTABLISHED FEBRUARY 1, 1983
By:
MARGARET MISTRETTA, TRUSTEE
DATED: April 1-8, 2006 CHAD COVINGTON, AN INDIVIDUAL
COVINGTON CONSTRUCTION AND
DEVELOPMENT
By:
CHAD COVINGTON
DATED: May_, 2006 CITY OF REDLANDS AND THE CITY
COUNCIL OF THE CITY OF REDLANDS
By:
7435223
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