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HomeMy WebLinkAbout2015 CON City of Lemon Grove - Affordable Housing Coalition of SD vs Sandoval, et alJOINT DEFENSE, COMMON INTEREST & COST SHARING AGREEMENT The Affordable Housing Coalition of San Diego County v. Sandoval, et al, Case No. 34-2012- 80001158-CU-WM-GDS, Meet and Confer, Bifurcation of Legal and Factual Issues and Motion on Legal Issues This Joint Defense, Common Interest & Cost Sharing Agreement ("Agreement") is entered into by and amongst the governmental entities who have executed this Agreement and is effective as of the Effective Date defined below. RECITALS WHEREAS, the above -referenced case ("Action") is pending before the Sacramento Superior Court; and WHEREAS, at a February 6, 2015 hearing, the Court appointed the Petitioner, Department of Finance, City of San Diego and the City of Lemon Grove to "meet and confer" to determine if this Action can be bifurcated to allow for possible resolution of the legal issues prior to the resolution of the factual issues; and WHEREAS, the Court has set a hearing on May 22, 2105 to review the "meet and confer" efforts of the parties to bifurcate the proceedings; and WHEREAS, the Cities/Successor Agencies met on February 24, 2015 to discuss how to proceed and divided up responsibilities among the Cities/Successor Agencies; and WHEREAS, the Cities/Successor Agencies agreed that the City of San Diego will prepare legal arguments related to individual housing obligations that it must address based upon its unique factual circumstances. As for Cities/Successor Agencies that have possible housing obligations that the City of San Diego will not address, the Cities/Successor Agencies with those unique issues will determine how they will address these issues in any terminating motion brought by the collective Cities/Successor Agencies; and WHEREAS, the City of Lemon Grove has been ordered by the Court to coordinate the "meet and confer" process to determine the format for a possible terminating motion. In addition, the City of Lemon Grove, assuming it can receive proportional financial support from other Cities/Successor Agencies, will prepare the legal arguments related to the termination of housing obligations under the State Redevelopment Dissolution laws and subsequent clean-up legislation; and WHEREAS, the undersigned Cities/Successor Agencies agree to financially assist the City of Lemon Grove in its role in the "meet and confer" process and in preparing the overall terminating motion on the legal issues brought forward by any or all Cities/Successor Agencies; and WHEREAS, the Cities/Successor Agencies have a common interest in a coordinated approach to the "meet and confer" process and the preparation of a terminating motion on legal issues; and 1 WHEREAS, to reduce costs and to more effectively represent their clients, the Cities/Successor Agencies desire to cooperate with one another in addressing the legal issues and "meet and confer" process for a potential bifurcation and terminating motion; and WHEREAS, the signatory parties to this Agreement agree to continue to handle the defense of their issues in this matter including, but not limited to, discovery issues, but agree to jointly share the costs of the City of Lemon Grove for the general benefit of Cities/Successor Agencies related only to the coordination of the "meet and confer" process and the coordination and preparation of a terminating motion; and THEREFORE, the Parties agree that it is appropriate to coordinate certain efforts and to share certain information and costs 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. Joint Defense Information. 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. 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 Affordable Housing matter referenced above. 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. 2 Superior Court, 108 Cal.App.3d 758, 771 (1980); California Evidence Code Sections 912(d), 952. 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 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 Action, 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 Action occurs by mutual agreement between the Parties; (b) the conclusion of the Action; 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 and any outstanding litigation costs referred in Section 5 of this Agreement, which shall continue to apply to the Party. 3 5. LITIGATION COST SHARING AND SUPERVISION 5.1 The Parties to this Agreement shall allocate cost sharing and responsibilities as follows: a. Each Party to this Agreement shall pay its proportionate share of the costs and attorney's fees of the City of Lemon Grove related to the coordination of the February 6, 2015 Court -ordered "meet and confer" process to reach agreement with various parties to the Action to bifurcate the Action. Further, each Party to this Agreement shall pay its proportionate share of the costs of coordination and ultimate preparation of a terminating motion on legal issues related to the dissolution of redevelopment agencies and the elimination of all or part of related housing obligations. b. The proportionate share of costs and attorney's fees ("litigation costs") shall be based on the Lemon Grove retainer agreement for City Attorney Services. The hourly rate is currently $158.00 per hour. The proportionate share of each Party shall be the litigation costs for all services performed to coordinate the "meet and confer" process; coordination of preparation of a terminating motion; and research and preparation of the summary judgment/adjudication or other terminating motion on legal issues for the benefit of all Parties. Each Party shall pay the total costs and attorney's fees divided by the number of Parties to this Agreement. c. If, in the opinion of the City Manager of the City of Lemon Grove, there are not enough Parties to this Agreement to adequately reduce Lemon Grove's burden to a reasonable share of the litigation costs, this Agreement shall not take effect. Notice of the withdrawal of the offer of the City of Lemon Grove to provide the services listed hereunder shall be given on or before March 15, 2015 to any City/Successor Agency that has executed this Agreement. Upon notice, no Party shall have any liability hereunder. d. It is estimated that the litigation costs hereunder shall be within a range of $20,000 to $40,000, depending upon the nature of the efforts required. Associate Parties and the amounts paid by the additional members shall be used to reduce the percentage paid by each party, regardless of class, by the same percentage as their respective contribution each monthly billing period. 5.3 The City of Lemon Grove shall forward legal bills received under this Agreement to all Parties. Payment of proportional litigation costs shall be paid to the Finance Director of the City of Lemon Grove. Regardless of the date each Party enters into this Agreement, each Party shall be responsible for its proportionate share of costs for all efforts undertaken under this Agreement after February 6, 2015. 6. MISCELLANEOUS PROVISIONS. 6.1. Entire Agreement. This Agreement constitutes the entire Agreement and understanding among the Parties with respect to its subject matter. 6.2. No Third -Party Beneficiaries. No provisions of this Agreement shall inure to the benefit of any person not a Party to this Agreement. 6.3. Amendment. This Agreement may be amended from time to time during the course of the proceedings on the Action. 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. 4 6.4. Counterparts. This Agreement may be executed in any number of counterparts. 6.5. No Compensation. Unless expressly agreed to herein, no Party shall be entitled to any compensation or reimbursement from any other Party for the participation of the other Party's employees, officers, agents, servants, experts or attorneys in connection with the Action. Each Party shall bear its own attorneys' fees and costs incurred in connection with the Action, even if the attorneys' fees or costs incurred by a Party provide benefit to other Parties. 6.6. 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. 6.7. 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. 6.8. 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. 6.9. 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. 6.10. 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 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." 6.11. 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. 6.15. 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. 5 IN WITNESS WHEREOF, each Party below has executed this Agreement as of the date specified. City of National City and Successor Agency to the Community Development Commission as the National City Redevelopment Agency: Date: March 30, 2015 Leslie Deese City Manager, City of National City Successor Agency, Executive Director City of Lemon Grove and Successor Agency to the Lemon Grove Community Development Agency By: Graham Mitchell, City Manager 6 Date: March 25, 2015 Mayor Ron Morrison Council Members Jerry Cano Alejandra Sotelo-Solis Mona Rios Albert Mendivil (e e INCORPORATED Office of the City Attorney MEMORANDUM City Attorney Claudia Gacitua Silva Senior Assistant City Attorney Elisa Cusato Deputy City Attorney Jennifer Knight TO: City Clerk DATE: April 27, 2015 FROM: Ginny Miller, Legal Assist‘wyti SUBJECT: Joint Defense, Common In erest & Cost Sharing Agreement Attached for your files, please find an original, fully -executed Joint Defense, Common Interest & Cost Sharing Agreement between the City of National City and the City of Lemon Grove in the matter of The Affordable Housing Coalition of San Diego County v. Sandoval, et al. Thank you. Attachment 1243 National City Boulevard; National City, California 91950-4301 Tel.: (619) 336.4220 Fax: (619) 336.4327 CITY OF NATIONAL CITY 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 CITY OF LEMON GROVE The Affordable Housing Coalition of San Diego County vs. Sandoval, et al. Ginny Miller (City Attorney) Forwarded Copy of Agreement to City of Lemon Grove