HomeMy WebLinkAbout2013 CON Parties (Various Cities) - Joint Defense & Common Interest AgreementJOINT DEFENSE & COMMON INTEREST AGREEMENT
This Joint Defense & Common Agreement is entered into by and amongst the
governmental entities who have executed this Agreement and are set forth in Appendix
A and is effective as of the Effective Date defined below.
RECITALS
WHEREAS, the jurisdictions of each of the Parties have been identified as
entities part of the Metro Wastewater Joint Powers Agreement dated October 25, 2000
and the Regional Wastewater Disposal Agreement dated 1998; and
WHEREAS, the Parties have a number of concerns regarding various
procedural, jurisdictional and factual issues relating to or arising from the matter related
to the overpayment by Padre Dam Municipal Water District done in reliance on bills
generated and established by the City of San Diego; and
WHEREAS, the Parties are now being approached with absorbing the
redistribution of the costs of the overpayment, which overpayment was a direct result of
the City of San Diego's erroneous billing and charging (this matter collectively referred
to herein as the 'Overpayment Issue"), and in which the Parties assert they have no
culpability.
WHEREAS, the Parties have a common interest in asserting their concerns with
respect to the Overpayment Issues; and
WHEREAS, to reduce costs and to more effectively represent their clients, the
Parties desire to cooperate with one another in addressing the Padre Dam
Overpayment Issue; and
THEREFORE, the Parties agree that it is appropriate to coordinate certain efforts
and to share certain information as set forth in this Agreement. In consideration of the
mutual covenants and obligations contained in this Agreement, the Parties agree as
follows:
TERMS AND CONDITIONS
1. DEFINITIONS. As used in this Agreement, the terms defined in this Section 1 shall
have the meanings set forth below.
1.1. "Agreement" means this Joint Defense & Common Interest Agreement.
1.2. "Day(s)" means calendar day(s).
1.3. "Effective Date" is May 11, 2012, the date when legal counsel for the
Parties first met regarding the Overpayment Issue
Page 1 of 1
1.4. Unless otherwise excluded herein, "Joint Defense Information" means any
information, including any confidential or privileged information, shared to
facilitate the purposes of this Agreement, including, without limitation, any
information generated by joint defense experts which is, disclosed or
shared among the Parties from and after the Effective Date. The Parties
agree that the communications shall be protected by the attorney -client
privilege, the attorney work -product privilege and the joint defense
doctrine to the fullest extent provided by law. Joint Defense Information
does not include any publicly available information or information that a
Party obtains from a public or non -confidential source, even if that
information is also provided in confidence by one Party to another.
1.5. "Parties" means the entities listed on Appendix A to this Agreement and
for which a signature appears at the end of this Agreement and their
current governing boards or councils, employees and counsel. "Party"
means one of the Parties.
1.6. "Party Related Persons" means former employees of Parties and the
respective Parties' non -employed consultants or experts.
2. CONFIDENTIALITY AND USE OF JOINT DEFENSE INFORMATION.
2.1. Each Party may, in its discretion, disclose Joint Defense Information to
other Parties to this Agreement. Joint Defense Information may be
disclosed between Parties orally or in writing.
2.2. The Parties intend that no claim of work product, attorney -client privilege,
or other privilege shall be waived by reason of disclosure of Joint Defense
Information to other Parties, Party Related Persons or to any third persons
employed, engaged, or consulted with by a Party, but only related to the
Overpayment Issue.
2.3. The Parties further intend that all Joint Defense Information exchanged in
connection with this Agreement shall be protected from discovery by the
joint defense doctrine recognized in Oxy Resources California LLC v.
Superior Court, 115 Cal.App.4th 874 (2004) and Waller v. Financial Corp.
of America, 828 F.2d 579, 583 n. 7 (9th Cir. 1987) ("The joint defense
privilege, which is an extension of the attorney client privilege, has been
long recognized by this circuit.") See also Raytheon v. Superior Court,
208 Cal.App.3d 683, 687-88 (1989) ("[A] disclosure in confidence of a
privileged communication is not a waiver of the privilege 'when such
disclosure is reasonably necessary for the accomplishment of the purpose
for which the lawyer . . . was consulted... ." quoting Evidence Code
section 912(d)); Insurance Co. of North America v. Superior Court, 108
Cal.App.3d 758, 771 (1980); California Evidence Code Sections 912(d),
952.
Page 2 of 2
2.4. Joint Defense Information shall be held in strict confidence by the Parties
and will be disclosed only to Parties or Party Related Persons. Prior to
disclosure of Joint Defense Information to any Party Related Person, the
Party Related Person shall agree to be bound by the confidentiality terms
in this Agreement.
2.5. No Party shall use Joint Defense Information that it has received from
another Party for any purpose other than the joint defense and common
interest purposes outlined in this Agreement.
2.6. Each Party shall take all reasonable and appropriate measures necessary
to protect Joint Defense Information from disclosure to third parties not
subject to this Agreement, including in the event such Joint Defense
Information is subpoenaed or sought in a California Public Records Act
request.
2.7. The obligations of the Parties under this Section 2 shall survive the
termination of this Agreement and shall remain in full force and effect
without regard to whether the Overpayment Issue is finalized in any form,
and without regard to whether any individual Party withdraws from this
Agreement.
3. SEPARATE REPRESENTATION AND WAIVER OF CONFLICT OF INTEREST,
3.1. Neither this Agreement nor the actions of any Party or counsel to a Party
shall create any attorney -client relationship between any counsel and any
Party that have not otherwise entered into an attorney -client relationship.
3.2. The Parties acknowledge the respective rights of each Party to undertake
separate investigative efforts, legal research and other actions concerning
the Overpayment Issue, and this Agreement is not intended to affect such
rights.
3.3. Each of the Parties waives any conflict of interest which might arise by
virtue of its and the other Parties' participation in this Agreement.
3.4. Each of the Parties waives any right to seek the disqualification of any
counsel for any of the Parties based upon a communication of Joint
Defense Information pursuant to this Agreement.
4. TERM OF AGREEMENT; WITHDRAWAL BY PARTY.
4.1. The term of this Agreement shall extend until the later of: (a) the date
upon which final resolution of the Overpayment Issue occurs by mutual
agreement between the Parties and the City of San Diego and/or Padre
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Dam Municipal Water District; (b) the conclusion of any proceedings
challenging any bill issued or charged to the Parties, or actions taken
against the Parties, related to the Overpayment Issue; or, (c) termination
by written agreement of all Parties.
4.2. Any Party may withdraw from this Agreement by providing written notice of
such withdrawal to all other Parties as provided in Appendix A of this
Agreement. Withdrawal of the Party shall be deemed complete on the
seventh (7th) Day following issuance of notice of the Party's withdrawal.
Upon completion of withdrawal, the Party shall be relieved of the rights
and obligations of this Agreement, except for the rights and obligations
contained in Section 2 of this Agreement, which shall continue to apply to
the Party and to any of its Party Related Persons.
5. MISCELLANEOUS PROVISIONS.
5.1. Entire Agreement. This Agreement constitutes the entire Agreement and
understanding among the Parties with respect to its subject matter.
5.2. No Third -Party Beneficiaries. No provisions of this Agreement shall inure
to the benefit of any person not a Party to this Agreement.
5.3. Amendment. This Agreement may be amended from time to time during
the course of the proceedings on the Overpayment Issue. Any
amendment to this Agreement shall be valid and enforceable only if it is
made in writing, signed by the Parties, and states its intent to modify this
Agreement.
5.4. Counterparts. This Agreement may be executed in any number of
counterparts.
5.5. Enforcement. The Parties agree that a breach of the provisions of this
Agreement will cause irreparable harm, for which there is no adequate
remedy at law, and that a court may therefore order specific performance
as a remedy for such a breach. Such relief may be sought by any Party
against another Party in a court of competent jurisdiction within San Diego
County in the State of California. No bond shall be required to be posted
by any Party that avails itself of this provision and exercises its right to
enforce this Agreement. Notwithstanding the foregoing, specific
performance shall not be the exclusive remedy available to a Party in the
event of a breach by another Party; a court may award any relief that is
legally appropriate.
5.6. No Compensation. Unless expressly agreed to in writing by the Parties,
no Party shall be entitled to any compensation or reimbursement from any
other Party for the participation of the other Party's employees, officers,
Page 4 of 4
agents, servants, experts or attorneys in connection with the Overpayment
Issue. Each Party shall bear its own attorneys' fees and costs incurred in
connection with the Overpayment Issue, even if the attorneys' fees or
costs incurred by a Party provide benefit to other Parties.
5.7. Governing Law. This Agreement shall be construed and interpreted in
accordance with the laws of the State of California without regard to its
choice of law principles.
5.8. Binding Effect. Each of the terms of this Agreement is binding upon each
Party or Party Related Person, and their respective successors,
transferees, assigns, heirs, successors, representatives, principals,
governing board or council members, officers, and employees.
5.9. Independent Legal Advice and Investigation. The Parties acknowledge
that they have made such investigation of the facts pertaining to this
Agreement and all matters contained herein as they deem necessary,
desirable or appropriate. In entering into this Agreement, the undersigned
acknowledge that they have received independent legal advice from their
own counsel and have relied on their own investigation and upon the
advice of their own attorney with respect to the advisability of making this
Agreement. The Parties acknowledge that they have read this
Agreement, that they have had it fully explained by their counsel, and are
fully aware of the contents of this Agreement and its legal effect. This
Agreement is entered into voluntarily and without any coercion by or
undue influence on the part of any person, firm or corporation.
5.10. Joint Drafting Effort. The Parties acknowledge and agree that the drafting
of this Agreement has been a joint effort by the Parties and that this
Agreement shall not be deemed prepared or drafted by any one of the
Parties. The terms of this Agreement shall be interpreted fairly and in
accordance with their intent and not for or against any one of the Parties.
The Parties further acknowledge and agree that each of the Parties
possesses equal bargaining power with respect to this Agreement.
5.11. Validity of Agreement. In the event that any provision or portions of this
Agreement are determined to be unenforceable or invalid for any reason,
the validity of the remaining provisions or portions of this Agreement shall
not be affected and shall remain enforceable to the full extent permitted by
law.
5.12. Headings for Convenience Only. The headings and titles used herein are
for convenience only, are not terms in and of themselves, and have no
effect on the meaning or interpretation of any terms of this Agreement. As
used herein, "Section" shall mean the totality of all text immediately
following the numbered (e.g., "1," "2," "3," etc.) heading and immediately
Page 5 of 5
preceding the next Section in order, without regard to subordinate, ordinal,
numbering (e.g., "1.1," "1.2," "1.3," etc.) within the particular Section, which
subordinate, ordinal, numbered paragraphs shall each be defined as a
"Subsection."
5.13. Authority. Each signatory hereto warrants and represents that he, she or
it has taken all steps necessary to obtain, and has in fact obtained, full
authority to bind the Party for which the signatory signs below to all the
terms of this Agreement. Each of the undersigned has reviewed the
above, and agrees on behalf of the Party listed to each and every term of
this Agreement.
5.14. Fees and Costs. The prevailing Party in any action to enforce the
Agreement or to recover damages or equitable relief as a result of a
breach of the Agreement shall be awarded its reasonable attorneys' fees
and costs.
5.15. No Effect on Regulatory Authority. Except as specifically provided in this
Agreement, this Agreement shall not affect the regulatory authority or
police powers of any Party to this Agreement to the extent such entities
may be entitled to exercise such authority and powers under local, state,
or federal law.
IN WITNESS WHEREOF, each Party below has executed this Agreement
as of the date specified.
CITY OF CORONADO
Johanna Canlas, City Attorney
By:
J
na N. Canlas, City Attorney
CITY OF CHULA VISTA
Glen Googins, City Attorney
By:C...
Glen oogins, city Attorney
COUNTY OF SAN DIEGO
Thomas Montgomery, County Counsel
By:
, Sr. Deputy County Counsel
Page 6 of 8
preceding the next Section in order, without regard to subordinate, ordinal,
numbering (e.g., "1.1," "1.2," "1.3," etc.) within the particular Section, which
subordinate, ordinal, numbered paragraphs shall each be defined as a
"Subsection."
5.13. Authority. Each signatory hereto warrants and represents that he, she or
it has taken all steps necessary to obtain, and has in fact obtained, full
authority to bind the Party for which the signatory signs below to all the
terms of this Agreement. Each of the undersigned has reviewed the
above, and agrees on behalf of the Party listed to each and every term of
this Agreement.
5.14. Fees and Costs. The prevailing Party in any action to enforce the
Agreement or to recover damages or equitable relief as a result of a
breach of the Agreement shall be awarded its reasonable attorneys' fees
and costs.
5.15. No Effect on Regulatory Authority. Except as specifically provided in this
Agreement, this Agreement shall not affect the regulatory authority or
police powers of any Party to this Agreement to the extent such entities
may be entitled to exercise such authority and powers under local, state,
or federal law.
IN WITNESS WHEREOF, each Party below has executed this Agreement
as of the date specified.
CITY OF CORONADO
Johanna Canlas, City Attorney
By:
Johanna N. Canlas, City Attorney
CITY OF CHULA VISTA
Glen Googins, City Attorney
By:
Glen Googins, City Attorney
SAN DIEGO COUNTY SANITATION
DISTRICT
By:
ro.v,,., C • `-��� .w.
-764.441 i.. O(M , Sr. DQp.ly (Mk4
Page 6 of 8
agents, servants, experts or attorneys in connection with the Overpayment
Issue. Each Party shall bear its own attorneys' fees and costs incurred in
connection with the Overpayment Issue, even if the attorneys' fees or
costs incurred by a Party provide benefit to other Parties.
5.7. Governing Law. This Agreement shall be construed and interpreted in
accordance with the laws of the State of California without regard to its
choice of law principles.
5.8. Binding Effect. Each of the terms of this Agreement is binding upon each
Party or Party Related Person, and their respective successors,
transferees, assigns, heirs, successors, representatives, principals,
governing board or council members, officers, and employees.
5.9. Independent Legal Advice and Investigation. The Parties acknowledge
that they have made such investigation of the facts pertaining to this
Agreement and all matters contained herein as they deem necessary,
desirable or appropriate. In entering into this Agreement, the undersigned
acknowledge that they have received independent legal advice from their
own counsel and have relied on their own investigation and upon the
advice of their own attorney with respect to the advisability of making this
Agreement. The Parties acknowledge that they have read this
Agreement, that they have had it fully explained by their counsel, and are
fully aware of the contents of this Agreement and its legal effect. This
Agreement is entered into voluntarily and without any coercion by or
undue influence on the part of any person, firm or corporation.
5.10. Joint Drafting Effort. The Parties acknowledge and agree that the drafting
of this Agreement has been a joint effort by the Parties and that this
Agreement shall not be deemed prepared or drafted by any one of the
Parties. The terms of this Agreement shall be interpreted fairly and in
accordance with their intent and not for or against any one of the Parties.
The Parties further acknowledge and agree that each of the Parties
possesses equal bargaining power with respect to this Agreement.
5.11. Validity of Agreement. In the event that any provision or portions of this
Agreement are determined to be unenforceable or invalid for any reason,
the validity of the remaining provisions or portions of this Agreement shall
not be affected and shall remain enforceable to the full extent permitted by
law.
5.12. Headings for Convenience Only. The headings and titles used herein are
for convenience only, are not terms in and of themselves, and have no
effect on the meaning or interpretation of any terms of this Agreement. As
used herein, "Section" shall mean the totality of all text immediately
following the numbered (e.g., "1," "2," "3," etc.) heading and immediately
Page 5 of 8
CITY OF DEL MAR
Leslie Devaney, City Attorney
CITY OF IMPERIAL BEACH
Jennifer M. Lyons, City Attorney
By:
Jennifer M. Lyons, City Attorney
CITY OF LEMON GROVE
James P. Lough, City Attorney
By:
James P. Lough, City Attorney
CITY OF EL CAJON
Morgan L. Foley, City Attorney
By:
Morgan L. Foley, City Attorney
CITY OF LA MESA
Glenn Sabine, City Attorney
By:
Gregory L. Lusitana
Deputy City Attorney
CITY OF NATIONAL CITY
Claudia G. Silva, City Attorney
By:
Claudia G. Silva, City Attorney
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
Page 7 of 7
CITY OF DEL MAR
Leslie Devaney, City Attorney
By:
Leslie Devaney, City Attorney
CITY OF IMPERIAL BEACH
Je ifer M. Lyons, City Attorney
By,
J-nni er M. L on: Z.
orney
CITY OF LEMON GROVE
James P. Lough, City Attorney
By:
James P. Lough, City Attorney
CITY OF EL CAJON
Morgan L. Foley, City Attorney
CITY OF LA MESA
Glenn Sabine, City Attorney
By:
Gregory L. Lusitana
Deputy City Attorney
CITY OF NATIONAL CITY
Claudia G. Silva, City Attorney
By:
Claudia G. Silva, City Attorney
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
Page 7 of 8
CITY OF DEL MAR
Leslie Devaney, City Attorney
By:
Leslie Devaney, City Attorney
CITY OF IMPERIAL BEACH
Jennifer M. Lyons, City Attorney
By:
Jennifer M. Lyons, City Attorney
CITY OF LEMON GR
James P. Lough, Ci
P. Lough, City Attorney
CITY OF EL CAJON
Morgan L. Foley, City Attorney
By:
Morgan L. Foley, City Attorney
CITY OF LA MESA
Glenn Sabine, City Attorney
By: r
Grego . Lusitana
ps epttty-City Attorney
15-‘1
CITY OF NATIONAL CITY
Clau•'a G..:ii►.a, City Attorney
ilva, City Attorney
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
Page 7 of 8
OTAY WATER DISTRICT
, General Counsel
By:
, General Counsel
CITY OF POWAY
Morgan L. Foley, City Attorney
By:
MorAttorney
[REMAINDER OF PAGE INTENTIONALLY BLANK]
Page 8 of 8
PRIV/Lc.,D & CONFIDENTIAL .JOINT DEFENSE WORK I'RODUCT
APPENDIX A
[To be supplemented with counsel contact information for each new signatory]
Note: All notices or other communications required or permitted under this Agreement
shall be in writing, and shall be personally delivered or sent by registered or certified
mail, postage prepaid, return receipt requested, or sent by telecopy, provided that the
telecopy cover sheet contain a notation of the date and time of transmission, and shall
be deemed received: (i) if personally delivered, upon the date of delivery to the address
of the person to receive such notice, (ii) if mailed in accordance with the provisions of
this paragraph, two (2) business days after the date placed in the United States mail,
(iii) if mailed other than in accordance with the provisions of this Appendix A or mailed
from outside the United States, upon the date of delivery to the address of the person to
receive such notice, or (iv) if given by telecopier during business hours when delivered
can be confirmed, when delivered. Notices shall be given at the addresses noted
below.
Party
Counsel's Contact Information
1. County of San Diego and the
following County Sanitation Districts:
East Otay Mesa, Lakeside/Alpine,
Spring Valley, Wintergardens
Tom Bosworth, Senior Deputy
Office of County Counsel
County of San Diego
1600 Pacific Highway, Room 355
San Diego, CA 92101
T: (619) 531-4869
F: (619) 531-65005
@sdcountv.ca.gov
2. City of Chula Vista
Glen Googins, City Attorney
Office of the City Attorney
City of Chula Vista
276 Fourth Avenue
Chula Vista, CA 91910
T: (619) 691-5037
F: (619) 409-5823
qc oogins@chulavistaca.gov
Page 1 of 3
PRIV/L...D & CONFIDENTIAL JOINT DEFENSE WORK PRODUCT
Party
Counsel's Contact Information
3. City of Coronado
Johanna Canlas, City Attorney
McDougal, Love, Eckis, Boehmer & Foley
8100 La Mesa Blvd., Suite 200
La Mesa, CA 91942
T: (619) 440-4444
F: (619) 440-4907
jcanlas@mcdouoallove.com
4. City of Del Mar
Leslie Devaney, City Attorney
5. City of El Cajon
Morgan Foley, City Attorney
McDougal, Love, Eckis, Boehmer & Foley
8100 La Mesa Blvd., Suite 200
La Mesa, CA 91942
T: (619) 440-4444
F: (619) 440-4907
mfolev@mcdougallove.com
6. City of Imperial Beach
Jennifer Lyon, City Attorney
McDougal, Love, Eckis, Boehmer & Foley
8100 La Mesa Blvd., Suite 200
La Mesa, CA 91942
T: (619) 440-4444
F: (619) 440-4907
jlvon@mcdouoallove.com
7. City of La Mesa
Glenn Sabine, City Attorney
8130 Allison Avenue
La Mesa, CA 91942
T (619) 667-1128
F (619) 462-7528
8. City of Lemon Grove
James Lough, City Attorney
Page 2 of 3
PRIVILEGED & CONFIDENTIAL JOINT DEFENSE WORK PRODUCT
Party
Counsel's Contact Information
9. City of National City
Claudia Silva, City Attorney
City of National City
1243 National City Boulevard
National City, CA 91950
T: (619) 336-4220
F: (619) 336-4327
10. City of Poway
Morgan Foley, City Attorney
McDougal, Love, Eckis, Boehmer & Foley
8100 La Mesa Blvd., Suite 200
La Mesa, CA 91942
T: (619) 440-4444
F: (619) 440-4907
mfolev@ mcdougallove.com
11. Otay Water District
Page 3 of 3
Mayor
Ron Morrison
Council Members
Louis Natividad
Alejandra Sotelo-Solis
Mona Rios
Jerry Cano
NA i Iatt
O1 ►a cITp
nycoappg6T$D
Office of the City Attorney
TO: City Clerk
FROM: Ginny Miller, Legal Assista
SUBJECT: Joint Defense & Common Int rest Agreement
City Attorney
Claudia Gacitua Silva
Deputy City Attorney
Jennifer Knight
DATE: March 25, 2013
Attached please find an original, fully -executed Joint Defense & Common Interest Agreement
for your files.
Thank you.
Attachm
1243 National City Boulevard; National City, California 91950-4301
Tel.: (619) 336.4220 Fax: (619) 336.4327
OFFICE OF THE CITY CLERK
1243 National City Blvd.
National City, California 91950
619-336-4228 phone / 619-336-4229 fax
Michael R. Dalla, CMC - City Clerk
PARTI ES
(Various County of San Diego Cities)
Joint Defense & Common Interest Agreement
Padre Dam Overpayment Issue
Ginny Miller (City Atty.) Forwarded
Copy of Agreement to Parties