HomeMy WebLinkAboutContracts & Agreements_42-2001Revised: 6/29/01
AGREEMENT REGARDING COOPERATIVE DEFENSE
This Agreement Regarding Cooperative Defense ("Agreement") is entered into by and
between San Bernardino Municipal Water District, Bear Valley Mutual Water Company, City of
Redlands, City of San Bernardino Municipal Water Department, San Bernardino Valley Water
Conservation District, Crafton Water Company, West San Bernardino County Water District,
East /alley_later District,_hrtb_Fork Water Qompany and Big Bear Municipal Water District
(collectively, "the parties"), as of the date each such party executes this Agreement.
RECITALS
Whereas, the parties to this Agreement participate in the Federal Energy Regulatory
Commission ("FERC") process for relicensing certain Southern California Edison, ("SCE")
hydroelectric facilities located on the Santa Ana River, Mill Creek and Lytle Creek (FERC
Docket Numbers 1932, 1933 and 1934) (the "Relicensing Process"); and
Whereas, a dispute currently exists between the parties to the FERC Relicensing
Process regarding the conditions to be imposed on those certain hydroelectric power licenses
that are the subject of the relicensing process (the "Dispute"); and
Whereas, the parties anticipate that litigation may ensue after conclusion of the
relicensing process and issuance of the licenses by FERC to SCE; and
Whereas, the parties hereto represent water districts, water companies and government
entities as described in the signature pages to this Agreement; and
Whereas, the parties have a common interest in the above -referenced Dispute,
including but not necessarily limited to an interest in the cooperative defense of any Action that
may ensue; and
Whereas, the parties, working together as a Task Force, are and have been engaged in
a deliberative process and negotiations to reach a settlement of the Dispute with FERC; and
Whereas, the parties believe that it is in their mutual interest to share and jointly discuss
certain information, analyses, and strategies, which are confidential and protected from
disclosure by the attorney -client privilege and/or the attorney work -product privilege, in order to
successfully prevail in the Dispute; and
Whereas, the parties desire to share and discuss such information, analyses, and
strategies without waiving any privileges with respect thereto, without subjecting any of such
information, analyses and/or strategies to disclosure through discovery or other compulsion,
and without otherwise allowing such information, analyses and/or strategies to be disclosed to
third parties;
NOW, THEREFORE, the parties agree as follows:
#369471,4 1.
Revised: 6/29/01
TERMS
1. Recitals True and Correct. The above -stated recitals are true and correct and constitute
an integral part of this Agreement.
2. Cooperation and Coordination. In accordance with and reliance upon the provisions of
this Agreement, the parties' respective counsel and expert consultants will share and discuss
certain information, analyses, and strategies pertaining to the Dispute.
3. Joint Privileges and Protection from Disclosure. The parties acknowledge and
expressly intend that a joint attorney -client privilege and work -product privilege is created by
this Agreement in order to protect from disclosure any information, analyses, and strategies
shared or discussedbetween. or among them, and in order to preserve,and not to waive, the
privileged nature of such information, analyses, and strategies as against any third party
seeking to obtain it. The parties intend to share privileged information, analyses, and
strategies, including information, analyses, and strategies developed by one or the other party
prior to this Agreement.
4. Avoidance of Disclosure.
a. The parties agree not to voluntarily disclose to third parties any information,
analyses, or strategies shared or discussed between or among them and to take
all reasonable steps to avoid any compulsory disclosure of any of it. If one party
is threatened with compulsory disclosure (for example, through receipt of a
discovery request or subpoena seeking such information), that party shall
immediately notify the other parties hereto in writing.
b ° Public Records Act Requests. The parties agree that; should a request pursuant
to the California Public Records Act for disclosure of information related to the
Dispute be made to any one of the parties, the party from whom disclosure is
sought shall immediately notify all other parties to this Agreement of the request
and shall not disclose any such documents for which confidential treatment is
required under this Agreement unless the party determine that no exemptions
from disclosure are available. In such event, the party from which disclosure is
sought shall not disclose any documents unless and until such party has
confirmed that the person so designated by each party has a minimum of 10
more days in which to seek a protective order to prevent disclosure. The names
and addresses of the person to whom notice shall be given for each party shall
be sent as indicated on signature page of this Agreement. Notices may be given
by U.S. Mail or by telefax.
5. Limitations of Agreement. Nothing in this Agreement shall be construed to preclude or
limit in any way any party from separately pursuing a resolution of the Dispute. Nothing in this
Agreement shall be construed to preclude or limit in any way the disclosure or use by any party
of its own information,. analyses, or strategies.
6. Binding on Successors. This Agreement shall be binding upon the successors, heirs,
assigns, lien claimants, personal representatives of the parties.
#369471.4 2.
Revised: 3/16/01
6. Binding on Successors. This Agreement shall be binding upon the successors, heirs,
assigns, lien claimants, personal representatives of the parties.
7. Headings. The headings in this Agreement are for the convenience of the parties only.
The headings do not affect, and shall not be used to interpret, the meaning of this Agreement.
8. Authority. The undersigned represent that they are authorized to execute this
Agreement and to bind the respective parties to this Agreement.
9. Withdrawal. Any party may withdraw from this Agreement at any time by providing
written notice to all other parties hereto, which shall be effective on receipt. Upon withdrawal
of a party, that party shall remain bound by the provisions of this Agreement as to any
information, analyses, or strategies obtained by that party from any other party hereto prior to
the effective date of the withdrawing party's withdrawal.
10. Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original and all of which shall constitute the same instrument.
All parties may rely on executed facsimile copies of this Agreement. This Agreement shall be
effective as between parties which execute this agreement even if one or more parties listed in
the introduction do not execute the Agreement.
11. Termination. This agreement shall terminate on February 28, 2004 unless the parties
agree in writing to another termination date. The date chosen is the parties' current estimate
of the time by which the FERC Relicensing Process, and any administrative or judicial appeals
related thereto, will have concluded.
12. No New Attorney -Client Relationship. This Agreement is entered into solely to provide
for confidentiality of information which may be shared among the parties to the Agreement as
set forth in this Agreement. Nothing in this Agreement shall be construed as establishing any
new attorney -client relationship between counsel for any of the parties and another party.
Counsel are acting solely on behalf of the party listed in their signature block of this Agreement
(hereinafter the "Current Client"). No counsel executing this Agreement shall subsequently
object on the grounds of conflict of interest to the representation of a Current Client by another
counsel executing this Agreement solely on the grounds of participation by such other counsel
in the collaboration and sharing of information provided for by this Agreement.
Agreed to by the following counsel on behalf of the entities listed:
ATTORNEYS FOR San Bernardino Municipal Water District
Dated:
, 2001 FIRM NAME: DOWNEY, BRAND, SEYMOUR &
ROHWER LLP
address: 555 Capitol Mall, 10th Floor
Sacramento, CA 95814-4686
Telephone: (916) 441-0131
Telefax: (916) 441-4021
By ,
aylor 0. Miller, Esq.
#369471.2 3.
Revised: 3/16/01
7. Headings. The headings in this Agreement are for the convenience of the parties only.
The headings do not affect, and shall not be used to interpret, the meaning of this Agreement.
8. Authority. The undersigned represent that they are authorized to execute this
Agreement and to bind the respective parties to this Agreement.
9. Withdrawal. Any party may withdraw from this Agreement at any time by providing
written notice to all other parties hereto, which shall be effective on receipt. Upon withdrawal of
a party, that party shall remain bound by the provisions of this Agreement as to any information,
analyses, or strategies obtained by that party,from any other party hereto prior to the effective
date of the withdrawing party's withdrawal.
10. Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original and all of which shall constitute the same instrument.
All parties may rely on executed facsimile copies of this Agreement. This Agreement shall be
effective as between parties which execute this agreement even if one or more parties listed in
the introduction do not execute the Agreement.
11. Termination. This agreement shall terminate on February 28, 2004 unless the parties
agree in writing to another termination date. The date chosen is the. parties' current estimate of
the time by which the FERC Relicensing Process, and any administrative or judicial appeals
related thereto, will have concluded.
12. No New Attorney -Client Relationship. This Agreement is entered into solely to provide
for confidentiality of information which may be shared among the parties to the Agreement as
set forth in this Agreement. Nothing in this Agreement shall be construed as establishing any
new attorney -client relationship between counsel for any of the parties and another party.
Counsel are acting solely on behalf of the party listed in their signature block of this Agreement
(hereinafter the "Current Client"). No counsel executing this Agreement shall subsequently
object on the grounds of conflict of interest to the representation of a Current Client by another
counsel executing this Agreement solely on the grounds of participation by such other counsel
in the collaboration and sharing of information provided for by this Agreement.
Agreed to by the following on behalf of the entitie
Dated: March 20, 2001
Attest:
ted:
REDLANDS
INI
Ge• • Pro Tem
3
#375152.1
Revised: 3/16/01
ATTORNEYS/yyFOR Bear Valley Mutual Water Company
Dated: /'</1MoA4 0, 2001 FIRM NAME: Reid & Hellyer
address: 3880 Lemon Street
P.O. Box
Riverside, CA 92502-1300
Telephone: (909) 682-1771
Telefax: (909) 686-2415
By
signature
David G. Moore, Esq.
print name
ATTORNEYS FOR Fontana Union Water Company
Dated:
Esq.
, 2001 FIRM NAME: Tom McPeters
address: McPeters, McAlearney, Shimoff &
Hatt
4 West Redlands, Blvd., Second Floor
Telephone: (909) 792-8919
Telefax: (909) 792-6234
By
signature
Tom McPeters,
print name
ATTORNEYS FOR Yucaipa Valley Water District
Dated:
, 2001 FIRM NAME: Aklufi &
Wysocki
address: 3403 10th Street, Suite 610
Telephone: (909) 682-2619
Telefax: (909) 682-5480
#369471.2 5.
fun-28-01 03:37pm
From -San Bernardino VMWD
909-387-9247
T-217 P.007/008 F-361
Revised: 5/16/01
ATTORNEYS FOR
Dated:
City of San Bernardino, by and through its Board of Water
Commissioners
2001 FIRM NAME: Henry Empeno, Deputy City Attorney
address: City of San Bernardino
City Attorney's Office
300 North D Street, 4th Floor
San Bernardino, CA 92402-0710
(909) 384-5355
(909) 384-5238
Telephone:
Telefax:
By •
signs ure
Henry Empeno, Esq.
print name
ATTORNEYS FOR San Bernardino Valley Water Conservation District
Dated:
, 2001 FIRM NAME: Rutan & Tucker
address: 611 Anton Blvd., Suite 1400
Costa Mesa, CA 92626
Telephone: (714) 662-4602
Telefax: (714) 546-9035
By
signature
David B. Cosgrove, Esq.
print name
ATTORNEYS FOR Grafton Water Company
Dated: , 2001 FIRM NAME: Reid & Heflyer
address: 3880 Lemon Street, 5th Floor.
P.O. Box1300
Riverside, CA 92501
Telephone: (909) 682-1771
Telefax: (909) 686-2415
By
• #369471,2
signature
David G. Moore, Esq.
print name
5.
Revised: 6/29/01
Telefax: (909) 384-
5238
By
Esq.
signature
Henry Empeno,
print name
ATTORNEYS FOR San Bernardino Valley Water Conservation District
Dated:
, 2001 FIRM NAME: Rutan & Tucker
address: 611 Anton Blvd., Suite 1400
Costa Mesa, CA 92626
Telephone: (714) 662-4602
Telefax: (714) 546-9035
ATTORNEYS FOR
Dated: 7"�`1 f 3 , 2001
Esq.
By
signature
David B. Cosgrove, Esq.
print name
Crafton Water Company
FIRM NAME: Reid & Hellyer
address: 3880 Lemon Street, 5th Floor
P.O. Box 1300
Riverside, CA 92501
Telephone: (909) 682-
1771
Telefax:
By
signature
David G. Moore,
print name
ATTORNEYS FOR West San Bernardino County Water District
Dated:
, 2001 FIRM NAME: Redwine &
Sherrill
#369471.4 5.
APR-06-01 02:06PM FROM -Redwine & Sherrill 90068496839 T-770 P.002/002 F-096
Revised: 3/16/01
ATTORNEYS FOR Crafton Water Company
Dated: , 2001 FIRM NAME: Reid & Hellyer
address: 3880. Lemon Street, 5th Floor
F.O. Box 1300
Riverside, CA 92501
Telephone: (909) 682-1771
Telefax: (909) 686-2415
By
signature
David G. Moore, Fsq,
print name
ATTORNEYS FOR West San Bernardino County Water District
Dated: ry►.- - - , 2001 FIRM NAME: Redwine & Sherrill
address: 1950 Market Street
Riverside, CA 92501
Telephone: (909) 684-2520
Telefax: � (909) 684-9583
By
signature
Gerald D. Shoaf, Esq.
pant name
ATTORNEYS FOR Big Bear Municipal Water District
Dated:
, 2001 FIRM NAME: Lemieux & O'Neill
address: 2393 Townsgate Road, Suite 201
Westlake Village, CA 91361
Telephone: (805) 495-4770
Telefax: (805) 495-2787
By
signature
Wayne Lemieux, Esq.
print name
4369471.2 6.
ATTORNEYS FOR West San Bernardino County Water District
Dated:
, 2001 FIRM NAME: Redwine & Sherrill
address: 1950 Market Street
Riverside, CA 92501
Telephone: (909) 684-2520
Telefax: (909) 684-9583
By
Revised: 6/25/01
signature
Gerald D. Shoaf, Esq.
print name
ATTORNEYS FOR East Valley Water District
Dated: (o[114
ATTORNEYS FOR
Dated: 6 4
, 2001 FIRM NAME: Brunick, Alvarez & Battersby
address: P.O. Box 6425
San Bernardino, CA 92412
Telephone: (909) 889-8301
Telefax: . (909) 388-188
By
signature
Steven Kennedy, Esq.
print name
North Fork Water Company
, 2001 FIRM NAME: Brunick, Alvarez & Battersby
address: P.O. Box 6425
Telephone:
Telefax:
By
San Bernardino, CA 92412
(909) 889-8301
(909) 388-18
signature
Steven Kennedy, Esq.
print name
#369471.2 6.
•
Revised: 3/16/01
ATTORNEYS FOR City of Redlands
Dated:
, 2001 FIRM NAME:
address:
Telephone'
Telefax:
ATTORNEYS .FOR
Dated:
Floor
Esq.
ATTORNEYS FOR
Dated:
City of Redlands
Office of the City Attorney
35 Cajon Street
P.O. Box 3005
Redlands, CA 92373-1505
(909) 798-7595
(909) 798-7503
By
signature
Daniel C. McHugh, Esq.
print name
City of San Bernardino
, 2001 FIRM NAME:
Empeno
address:
Telephone:
Telefax:
By
Henry
City of San Bernardino
City Attorney's Office
300 North D Street, 4th
San Bernardino, CA 92402-0710
(909) 384-
5355
(909) 384-
5238
signature
Henry Empeno,
print name
San Bernardino Valley Water Conservation District
, 2001 FIRM NAME:
address:
Telephone:
Telefax:
Rutan & Tucker
611 Anton Blvd., Suite 1400
Costa Mesa, CA 92626
(714) 662-4602
(714) 546-9035
#369471.2
7.
By CO
signature
David B. Cosgrove, Esq.
Revised: 3/16/01
print name
ATTORNEYS FOR Crafton Water Company
Dated:
Esq.
, 2001 FIRM NAME: Reid & Hellyer
address: 3880 Lemon Street, 5th Floor
P.O. Box 1300
Riverside, CA 92501
Telephone: (909) 682-
1771
Telefax: (909) 686-2415
By
signature
David G. Moore,
print name
ATTORNEYS FOR West San Bernardino County Water District
Dated:
92501
Esq.
, 2001 FIRM NAME: Redwine &
Sherrill
address: 1950 Market
Street
Riverside, CA
Telephone: (909) 684-
2520
Telefax: (909) 684-
9583
By
signature
Gerald D. Shoaf,
print name
ATTORNEYS FOR East Valley Water District
Dated:
, 2001 FIRM NAME:
Battersby
Brunick, Alvarez &
#369471.2 8.
Revised: 3/16/01
address:
91361
Telephone:
Telefax:
By
Esq.
2393 Townsgate Road, Suite
201
Westlake Village, CA
(805) 495-
4770
(805) 495-
2787
signature
aAla e - 7f Lie, (144;/2
print name
#369471.2 9.
Joint Defense Agreement - FERC Proceedings - Citing a possible conflict of
interest on this matter, Mayor Gilbreath left the City Council Chambers,
and Mayor Pro Tem George conducted the meeting. City Attorney
McHugh reported that a number of affected water agencies in the region
have been meeting regularly over the past three years to develop a strategy
with regard to Southern California Edison's request that its hydro -electric
projects be re -licensed by the Federal Energy Regulatory Commission.
Edison's re -licensing applications significantly and adversely affect the
City's water rights and the region's water agencies are strongly defending
the position that none of their water rights should be lost on the Santa Ana
River, Mill Creek, or Lytle Creek as a result of these proceedings. At this
time, the water companies think it would be appropriate to develop a joint
legal strategy with a joint defense agreement. A draft agreement has been
prepared by special counsel to the San Bernardino Valley Municipal Water
District and has been reviewed by our City Attorney. Councilmember
George moved to approve the joint defense agreement and authorize the
Mayor and City Clerk to execute the agreement on behalf of the City.
Motion seconded by Councilmember Freedman and carried by AYE votes
of all present, with Councilmember Gilbreath abstaining.
CLOSED SESSION
The City Council meeting recessed at 4:19 P.M. a closed session to discuss the
following:
1. Conference with legal counsel: Existing litigation - Government Code
Section 54956.9(a):
a. County of San Bernardino v. City of Redlands and Spring Pacific - Case
No. SCVSS 74079
b. Sunset Drive Corporation v. City of Redlands - SCVSS 29599
c. FERC administrative proceedings for relicensing of Edison Hydro-
electric Facilities
The meeting reconvened at 7:00 P.M. at which time all members of said City
Council were absent therefrom and the undersigned City Clerk of said City
Council thereupon declared said meeting adjourned to the next regular meeting,
April 3, 2001.
PUBLIC HEARINGS
Resolution No. 5840 - Street Vacation No. 119 - Public hearing was advertised
for this time and place for the vacation of a portion of Iowa Street (Caseworx,
applicant). At the request of the applicant this public hearing was continued to
April 3, 2001.
Resolution No. 5804 - Street Vacation No. 118 - Public hearing was continued
to this time and place for the vacation of a portion of Bryn Mawr Avenue in
March 20, 2001
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