HomeMy WebLinkAboutContracts & Agreements_23-2022JOINT DEFENSE/COMMON INTEREST AND CONFIDENTIALITY AGREEMENT
This Joint Defense/Common Interest and Confidentiality Agreement ("Agreement") is
entered into this 15th day of February, 2022 ("Effective Date"), by and between the City of
Redlands ("City"), Redlands Palm Investment, LLC ("RPI"), and Diversified Pacific Development
Group, LLC ("Diversified"), in order to aid the respective parties in their defense of legal matters
discussed below City, RPI, and Diversified are sometimes individually referred to herein as a
"Party" and, collectively, as the "Parties."
RECITALS
A On January 7, 2022, "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. RPI
and Diversified are named as a real parties in interest in the Action. The Action challenges
the Redlands City Council's approval of a Mitigated Negative Declaration, Parcel Map No
20185, and Tentative Tract Map No 20305 (the "Project") for a residential development
in the City of Redlands (collectively, the "Challenged Approvals")
B. Because of their positions as respondent 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."
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
any other Party or any 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.
12. 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.
13. 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 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.
15. After any Party to this Agreement has voluntarily disclosed Privileged Materials to
the other Parties, 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.
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1.7 This Agreement shall not be construed to require 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
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.
19 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
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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 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 5 of Tentative Tract Map No 20305 approved by City
for the Project, RPI 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
and appointed 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 20305 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 20305 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. The Action has been commenced challenging City's approval of
Tentative Tract Map No 20305 and its associated entitlements issued for the
Project, and City has provided notice of the same to RPI. RPI shall file with City
an irrevocable letter of credit to City (the "Security") in a form satisfactory to City,
and in the amount of three hundred thousand dollars ($300,000) to ensure RPI's
performance of its defense and indemnity obligations. However, provision of the
Security does not limit the total indemnity obligation of RPI established by
Condition No 5 The failure to provide the Security shall be deemed an express
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acknowledgement and agreement by RPI that City shall have the authority and
right, without objection by RPI, to revoke all entitlements granted for the Project.
City shall have no liability for the exercise of City's right to revoke the challenged
entitlements pursuant to this Section. Except as provided in this Section 2.1, City's
revocation of the Project's entitlements pursuant to this Section shall be City's sole
legal remedy, except for seeking from RPI 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.
22 In the event City retains special counsel in connection with its defense of the Action,
RPI shall reimburse City for all costs incurred by City for such special counsel
services City's special counsel will submit to RPI copies of the summary invoices
prepared by special counsel and send to both City and RPI, and RPI 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 RPI 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
j
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.
City Attorney
City of Redlands
35 Cajon Street, Suite 200
P 0 Box 3005 (mailing)
Redlands, CA 92373
dmchugh@cityofredlands org
RPI and Diversified
Mathew A. Jordan
Redlands Palm Investment, LLC
10621 Civic Center Dr
Rancho Cucamonga, CA 91730
mjordan@diversifiedpacific.com
Matthew A. Jordan
Diversified Pacific Development
Group, LLC
10621 Civic Center Drive
Rancho Cucamonga, CA 91730
PPitassi@diversifiedpacific com
With a Copy to.
Mark Ostoich
Gresham Savage Nolan & Tilden, PC
550 East Hospitality Lane, Suite 300
San Bernardino, CA 92408
Mark.Ostoich@greshamsavage com
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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. 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 the Parties.
4.2 In the event that a Party determines that its interests may be best served by pursuing
a course of action adverse to the interests of the other Parties, 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
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.
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
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
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all prior or contemporaneous agreements, representations, and understandings with
respect to the common defense of the Action and confidentiality Nothing in this
Agreement constitutes, of shall be construed to be, a waives of circumscription of
any Party's rights to pursue remedies available at law in disputes (including
disputes related to the Action) with the other Party, including filing suit
7. Authoi ity
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 m 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 as of the Effective
Date as indicated by then respective signatures
CITY OF REDLANDS
Paul T Barich, Mayor
ATTEST
By — 1'
Donaldson, City Cleik
REDLANDS PALM INVESTMENT, LLC
By Diversified Pac ' c 1
LLC, a C.hforma mited
Its. ger
ror
evelopment Group,
liability company
Matth ' A Jo dan,
Co-► amain Member
DIV
GRO
com
>'
Matthew
Membe
L
D PACIFIC DEVELOPMENT
C, a Califo - limited liability
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, Co -Managing
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