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HomeMy WebLinkAboutContracts & Agreements_43-2001Revised: 5/16/01 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, Fontana Union 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 Valley Water District 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: #369471.2 1 Revised: 5/16/01 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 discussed between or among them, and inorder 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 arrd 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. #369471.2 2. 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 of er counsel in the collaboration and sharing of information provided for by this Agreement. Agreed to by the following on behalf of the entities ed: Dated: March 20, 2001 Attest: Lor ie Poyze i y Clerk #375152.1 CI O; REDLANDS 3 Gary George, Mayor Pro Tem 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#rstlowing-caunseloirl halfof-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 l , aylor O. Miller, Esq. #369471.2 3. Revised: 5/16/01 ATTORNEYS FOR Bear Valley Mutual Water Company Dated: , 2001 FIRM NAME: Reid & Hellyer address: 3880 Lemon Street P.O. Box 1300 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: , 2001 FIRM NAME: Tom McPeters address: McPeters, McAlearney, Shimoff & Hatt 4 West Redlands Blvd., Second Floor Redlands, CA 92373 Telephone: (909) 792-8919 Telefax: (909) 792-6234 By signature Tom McPeters, Esq. ATTORNEYS FOR City of Redlands Dated: print name 2001 FIRM NAME: City of Redlands address: Office of the City Attorney 35 Cajon Street P.O. Box 3005 Redlands, CA 92373-1505 Telephone: (909) 798-7595 Telefax: (909) 798-7503 By signature Daniel C. McHugh, Esq. print name #369471.2 4. Revised: 3/16/01 ATTORNEYS/FOR Bear Valley Mutual Water Company Dated: / Z$ 1 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: Telefax: (909) 682-2619 (909) 682-5480 #369471.2 5 APR-05-01 O2:O6PM FROM -Redwine & Sherrill 00968495889 T-770 P.002/OO2 F-096 Revised: 3/16/01 ATTORNEY$ FOR Grafton Water Company Dated: , 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, Esq, print name ATTORNEYS FOR West San Bernardino County Water District Dated: S+ , 2001 FIRM NAME: Redwine & Sherrill address: 195Q Market Street Riverside, CA 92501 Telephone: (909) 684-2520 Telefax: (909) 684-9583 By signature Gerald D. Shoaf, Esq. print 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 4389471.2 6. Revised: 3/16/01 ATTORNEYS FOR City of Redlands Dated: ATTORNEYS FOR Dated: Floor Esq. ATTORNEYS FOR Dated: , 2001 FIRM NAME: address: Telephone: Telefax: By 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 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. Revised: 3/16/01 ATTORNEYS FOR Dated: Esq. ATTORNEYS FOR Dated: 92501 By David B. Cosgrove, Esq. print name Crafton Water Company , 2001 FIRM NAME: Reid & Hellyer address: 3880 Lemon Street, 5th Floor P.O. Box 1300 Riverside, CA 92501 (909) 682- 1771 (909) 686-2415 Telephone: Telefax: By signature David G. Moore, print name West San Bernardino County Water District , 2001 FIRM NAME: Redwine & Sherrill address: 1950 Market Street Riverside, CA Telephone: Telefax: (909) 684- 2520 (909) 684- 9583 Esq. ATTORNEYS FOR Dated: , 2001 By signature Gerald D. Shoaf, print name East Valley Water District FIRM NAME: Battersby Brunick, Alvarez & #369471.2 8. Revised: 3/16/01 address: 2393 Townsgate Road, Suite 91361 Telephone: Telefax: By Esq. 201 Westlake Village, CA (805) 495- 4770 (805).495- 2787 signature /44i vva e-terrrie ttx i, v g7 d I ?c i print name #369471.2 9.