HomeMy WebLinkAboutContracts & Agreements_221-2021JOINT DEFENSE/COMMON INTEREST AND CONFIDENTIALITY AGREEMENT
This Joint Defense/Common Interest and Confidentiality Agreement ("Agreement") is
entered into this 7th day of December, 2021 ("Effective Date"), by and between the City of
Redlands ("City") and MLC Holdings, Inc ("MLC") in order to aid the respective parties in their
defense of legal matters discussed below City and MLC are sometimes individually referred to
herein as a "Party" and, together, as the "Parties."
RECITALS
A. On November 5, 2021, the Coalition to Save Redlands Orange Groves, a California
unincorporated association, filed in the San Bernardino County Superior Court a Verified
Petition for Writ of Mandate alleging City violated provisions of the City's General Plan
and the California Environmental Quality Act (the "Action") City is named as
respondent in the Action. MLC is named as a real party in interest in the Action. The
Action challenges the Redlands City Council's approval of a Mitigated Negative
Declaration ("MND"), Amendment No 46 to Specific Plan No 40, Specific Plan No 64,
Tentative Tract Map No 20336, and Commission Review and Approval No 992 (the
"Project") for a residential development in the City of Redlands (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 Approvals, 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 And, nevertheless, the Parties wish to share, and have their
respective 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 who are 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
1 1 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 Each Party agrees that all shared information
received from the other Party or the other Party's 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.
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, 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 respective counsel
may contain confidential and privileged communications subject to the
attorney -client privilege,
B Privileged Materials shared among the Parties or their respective counsel
may contain privileged or protected work product, including attorney
work -product;
C Privileged Materials shared among the Parties or their respective counsel
may contain materials protected by other privileges, immunities, and rules
of confidentiality; and
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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 United States, 330 F.2d 347 (9th Cir 1964), 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 Tehama, 174
Cal.App 4th 1217 (2009), 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 either Party is dismissed from the Action by reason of settlement or otherwise,
or if either 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 Party shall continue
1.5 After either Party to this Agreement has voluntarily disclosed Privileged Materials
to the 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 either of the Parties to disclose
to any third party any documents or information. Subject to the provisions of
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Section 1 10 to this Agreement, any Privileged Materials that are shared or
exchanged between 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 afforded to
Privileged Materials under this Agreement. "Qualified Person" is defined as
A. Attorneys of record for or internal counsel engaged by a 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, and
F Any person otherwise agreed upon in writing by 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 the Parties, nothing in this
Agreement shall be construed to prevent the Parties 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.
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1 10 If Privileged Materials become the subject of a potential administrative or judicial
order purporting to require disclosure of such information by a Party, that Party
must, to the extent legally allowed, provide notification no later than three
business days (or within 24 hours if such proceeding will take place prior to five
business days) after receiving notice of said proceedings to the other Party that
generated the information of the proceedings seeking to compel disclosure The
purpose of the notice required under this section 1 10 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, as determined by the reasonable opinion of such Party's counsel, and shall
not be made in any event until notice of the potential disclosure is given, to the
extent legally allowed, as provided herein.
1 11
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 12 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 20336 approved by City
for the Project, MLC 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 20336 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 20336 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.
An action has been commenced challenging City's approval of Tentative Tract
Map No 20336 and its associated entitlements issued for the Project, and City has
provided notice of the same to MLC MLC 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 three hundred
thousand dollars ($300,000) within ten (10) business days from the Effective Date
of this Agreement, to ensure MLC's performance of its defense and indemnity
obligations. However, provision of the Security does not limit the total indemnity
obligation of MLC established by Condition No 9 The failure to provide the
Security shall be deemed an express acknowledgement and agreement by MLC
that City shall have the authority and right, without objection by MLC, to revoke
all entitlements granted for the Project. City shall have no liability for the exercise
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of City's right to revoke the challenged entitlements pursuant to this Section.
Except as provided in Section 5, City's revocation of the Project's entitlements
pursuant to this Section shall be City's sole legal remedy, except for seeking from
MLC indemnity and reimbursement of costs incurred prior to revocation of the
Project's entitlements, including any subsequent Court -ordered award of attorneys'
fees and costs in the Action.
If MLC determines to abandon the Project and requests City to rescind all
approvals related to the Project, City shall rescind the approvals within a
reasonable time, not to exceed sixty (60) days, and MLC's obligation to defend
and indemnify the City pursuant to this Section and Condition No 9 of Tentative
Tract Map No 20336 will terminate upon the approvals being rescinded,
termination of MLC's obligation to defend and indemnify shall not preclude City
from seeking from MLC indemnification and reimbursement of costs City
incurred prior to rescission of the Project's approvals, including any subsequent
Court -ordered award of attorneys' fees and costs in the Action.
2.2 In the event City retains special counsel in connection with its defense of the
Action, MLC shall reimburse City for all costs incurred by City for such special
counsel services. City's special counsel will submit to MLC copies of the
summary invoices prepared by special counsel and send to both City and MLC,
and MLC 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 MLC fails to make any reimbursement
payment, City shall have the right to draw upon the Security described in Section
2.1 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 mail to the
following addresses Notices sent by mail shall be addressed as follows
C MLC HOLDINGS, INC.
Jeanne Donaldson
City Clerk
City of Redlands
35 Cajon Street, Suite 4
P 0 Box 3005 (mailing)
Redlands, CA 92373
jdonaldson@cityofredlands.org
With a Copy to.
Daniel J McHugh, Esq
City Attorney
City of Redlands
Mel Faraoni
Associate General Counsel
MLC Holdings, LLC
8800 E. Raintree Drive, Suite 300
Scottsdale, AZ 85260
Mel.Faraoni@meritagehomes com
With a Copy to.
Andrew Lee
Allen Matkins Leck Gamble
Mallory & Natsis LLP
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35 Cajon Street, Suite 200
P 0 Box 3005 (mailing)
Redlands, CA 92373
dmchugh@cityofredlands.org
1900 Main Street, 5th Floor
Irvine, CA 92614
alee@allenmatkins.com
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 e-mail 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 1 Either 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 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.
5.2 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
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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
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 Parry'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 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
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
Paul T Barich, Mayor
Date 1 27 21
ATTEST
e Donaldson, City Clerk
MLC HOLDINGS, INC
By
Aaron Talarico, Vice President
Date 12/2/21
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