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HomeMy WebLinkAboutContracts & Agreements_22-2009_CCv0001.pdf JOINT DEFENSE AND CONFIDENTIALITY AGREEMENT This Joint Defense and Confidentiality Agreement ("Agreement") is made effective as of February 17, 2009 by and between City of Redlands ("City"), a California municipal corporation, and On Texas Street, LLC ("Developer"), a California limited liability company. The City and Developer are sometimes individually referred to herein as a"Party and, together, as the "Parties." RECITALS: A. The Parties are each interested in The Redlands Association v. Cit of Redlands, et al., San Bernardino County Superior Court Case No. CIVDS 901208 (the "Case") which alleges violations of the California Environmental Quality Act, the City's General Plan and City voter-approved initiative ordinances, and seeks to set aside the approval of and certification of an Environmental Impact Report for, General Plan Amendment N. 2009-1-A, and Amendment No. 36 to Specific Plan No. 40, Concept Plan No. 7, Tentative Tract Map No. 18444, Tentative Parcel Map No. 18550 and Conditional Use Permit No. 907 (collectively, the "Project"). B. It is in the Parties' best interests to share information and resources relating to defense of the Case and to agree upon the use of confidential and otherwise privileged communications and work product shared as part of those endeavors. C. The Parties acknowledge and agree that their respective positions regarding the Case 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 respective legal counsel share, information on the Cases 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 the Case, or other existing or future disputes with each other, relating to the Case. 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 Case 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 Case. AGREEMENT: 1. The Parties, incorporating the above recitals as part of their Agreement, in consideration of the mutual promises and obligations as contained herein, do hereby memorialize their Agreement as follows: a. As part of an effort to establish a joint defense strategy for the Case, the Parties and their respective counsel desire to share certain documents, facts, WESTr 21656242.2 1 opinions and other information in confidence and generally to pool their respective work product for their common purpose and benefit. b. This common purpose and benefit includes, but is not limited to, minimizing the costs of representation and enhancing the effectiveness of representation of the Parties in pending or future legal or administrative proceedings relating to or arising from the Case. It is acknowledged that the Parties may have specific separate and distinct interests in the Case and related issues, but that they also have common interests and objectives. C. The Parties have agreed to provide reasonable cooperation in the execution of their respective duties. d. The Parties wish to share the documents, facts, opinions, 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 ("Joint Defense Communications") concerning the Case. In the absence of such sharing, these Joint Defense Communications would be privileged from disclosure to third-parties by the attorney- client privilege, the work product doctrine and/or other applicable privileges. Each Party agrees that all Joint Defense Communications shall remain privileged or protected when communicated to the other Party or its counsel in accordance with the common purpose concepts contained in California Evidence Code section 912(d) and articulated in Raytheon Co. v. Superior Court (1989) 208 Cal.App.3d 683, Waller v. Financial Corp. of America, 828 F.2d 579, 583 n.7 (9th Cir. 1987) and Continental Oil Co. v. United States (91h Cir. 1964) 330 F.2d 347, and their progeny. e. The Joint Defense Communications that have been or will be exchanged pursuant to the understandings memorialized in this Agreement are exchanged Zn on the understanding and agreement that: (1) Joint Defense Communications shared among the Parties or their respective counsel may contain confidential and privileged communications subject to the attorney-client privilege. (2) Joint Defense Communications shared among the Parties or their respective counsel may contain privileged or protected work product, including attorney work-product. (3) Joint Defense Communications shared among the Parties or their respective counsel may contain materials protected by other privileges, immunities, and Z7 rules of confidentiality. (4) In accordance with applicable legal standards, exchanges have WES-r21656242.2 2 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 Case. All Joint Defense Communications provided by any Party in connection with Joint efforts relating to the Case and all material derived from any Joint Defense Communications so exchanged, shall be deemed subject to the terms of this Agreement. The voluntary disclosure by the other Party to this Agreement of Joint Defense Communications to each Party shall not be deemed to create any waiver or implied waiver of any applicable privilege or doctrine protecting the Joint Defense Communications 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 Case first arose and agree that this Agreement is meant to apply to all such action and exchanges of Joint Defense Communications, whether occurring before or after the execution of this Agreement. (5) Each of the Parties and their respective counsel agree that any Joint Defense Communications they receive from the other Party or its representatives shall be treated and maintained as privileged and confidential communications and not used for any other purpose. (6) Any exchange of Joint Defense Communications shall not compromise, waive or otherwise diminish in any way the confidentiality of the Joint Defense Communications, and the Joint Defense Communications shall continue to be protected by the attorney-client privilege, the work product doctrine, the joint defense privilege and/or any other applicable privilege. (7) Counsel receiving Joint Defense Communications and materials may disclose those communications to their respective clients, but may not disclose such Joint Defense Communications to any other person without the consent of the Party providing the privileged and confidential information. Any unauthorized disclosure of any Joint Defense Communication to any third-party shall not constitute a waiver of any applicable privilege. (8) To the extent that either Party has already exchanged Joint Defense Communications with the other Party, such exchanges are now subject to the terms of the Agreement. (9) In the event that one of the Parties concludes the Case by reason of settlement or otherwise, or if one of the Parties shall voluntarily cease to be a part of this common litigation endeavor, the Parties shall be obligated to continue to protect the confidentiality of all Joint Defense Communications, as though all Parties were still active in the common litigation endeavor. (10) This Agreement shall apply to any and all consultants retained by each of the Parties and to each of the Parties' legal counsel. (11) This Agreement shall not preclude use of Joint Defense WESP,21656242,2 A Communications obtained by any former Party while a participant in the joint litigation endeavor in any such subsequent action or proceeding. (12) Any written Joint Defense Communications that are shared or exchanged may be marked "Confidential, Privileged Materials." Failure to mark Joint Defense Communications shall not be deemed a waiver of any applicable privilege. (13) 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 Joint Defense Communications obtained pursuant to this Agreement. (14) Notwithstanding anything in this Agreement to the contrary, the Parties acknowledge and agree that the Joint Defense Communications shared as part of this Agreement are not precluded from use by the Parties 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 Case in the common interest of all the Parties as contemplated under this Agreement. 2. The Parties expressly acknowledge and agree that no adequate remedy is available at law for a breach of this Agreement and that, in addition to any other remedies available, performance of this Agreement may be specifically ordered or a breach hereof may be enjoined, or both. 3. Nothing in this Agreement is an admission of liability or fault regarding any alleged facts or legal contentions that are or might be alleged with respect to the Case. Except as specifically provided herein, nothing in this Agreement shall waive, release, or otherwise affect any right, claim, interest, cause of action, or defense that any Party may have with respect to any person or entity. 4. This Agreement does not form a joint venture or partnership by or among the Parties. 5. Nothing in this Agreement is inconsistent with the Parties' respective interests in receiving independent, vigorous, and separate representation. 6. This Agreement shall be interpreted and enforced pursuant to the laws of the State of California. 7. If any provision of this Agreement is found invalid or unenforceable, the balance of the Agreement shall remain in full force and effect. WEST,,21656242,2 4 8. Each Party represents and warrants to each other Party that its signatory to this Agreement has the authority to bind the Party, and this Agreement does in fact bind the Party. 9. The Agreement may be signed in counterparts, each of which shall be binding on all Parties who are signatory to any counterpart. 10. This Agreement sets forth the entire agreement of the Parties and no other terms are binding on the Parties with respect to the subject matter hereof. Any changes to this Agreement must be made in writing and signed by the Parties. 11. Additional parties who share common interests with respect to the Case may join in this Agreement by executing a copy of this Agreement with notice to and agreement by all Parties to this Agreement. "Developer" Dated: t ON TEXAS STREET, LLC A /n, Bye , N me: 4 t I e: f,City" Dated: CITY OF REDLANDS By: Harrison, Mayor ATTEST: City Perk (J WEST,21656242.2 5