HomeMy WebLinkAbout2022 CON San Diego Unified Port District - Balanced PlanCOMMON INTEREST AND MUTUAL DEFENSE AGREEMENT
AMONG
SAN IEGO UNIFIED PORT DISTRICT AND THE CITY OF NATIONAL CITY
This Common Interest and Mutual Defense Agreement ("Agreement") is entered into on
April 5, 2022, by and among the San Diego Unified Port District, a public corporation ("Port")
and the City ofNational City, a California chartered municipal corporation "City", also referred
to herein as "Party" or "Parties", with reference to the following facts.
RECITALS
WHEREAS, this Agreement concerns the proposal sought by Burlington Northern and Santa Fe
Railway ("BSNF") and Los Angeles — San Diego — San Luis Obispo Rail Corridor Agency
("LOSSAN")that would place BSNF's maintenance activities on the National City Marine
Terminal ("NCMT") and areas adjacent to the NCMT ("BNSF Project"); and
WHEREAS, the Parties have jointly been processing land use entitlements for what is commonly
known as the National City Balanced Plan ("Balanced Plan") within the Port's jurisdiction, additional
commercial uses within the City's jurisdiction and an extension and realignment of the Bayshore
bikeway (collectively, "Port/City Project"); and
WHEREAS, the draft Environmental Impact Report ("EIR") is currently being circulated for
public review and the Port/City Project has not been approved by the Port or City, but is
anticipated to go to the respective decision -makers in short-order; and
WHEREAS, BNSF Project conflicts with the operation of the NCMT, the Balanced Plan and
would upset the objectives of the Port/City Project; and
WHEREAS, the Parties acknowledge that BNSF may have eminent domain authority under
California law, there is an on -going threat that BNSF may bring an eminent domain action for the
BNSF Project and that given the potential for such action and in the case that the Port and City
certify the EIR and approve the Port/City Project in their respective jurisdictions, and the associated
common interests ofthe Parties, it is reasonably necessary and helpful for their respective legal counsel
("Legal Counsel") to exchange privileged and confidential communications, in the preparation, review
and defense of any BNSF litigation, including an eminent domain action, as well as related to the BNSF
Project; ect; and
WHEREAS, the purpose of this Agreement is to 1 memorialize the common interest of the Parties
in exchanging privileged and confidential information necessary to the preparation, review, and
defense ofany BNSF litigation that would advance the BNSF Project, including an eminent domain
action; 2 memorialize the common interest of thParties in exchanging privileged and confidential
information necessary to the review of the BNSF Project; and 3 set forth the terms for interactions
among the Parties and their respective Legal Counsel in order to accomplish these objectives in the
Parties' common interest. As a result, any exchange of privileged and confidential information or work
product pursuant to the terms of this Agreement will be communicated pursuant to a common
interestnon-waiver doctrine and the extension of the attorney -client and work product privilege
I
doctrines as provided herein.
AGREEMENT
NOW, THEREFORE, in consideration of the above Recitals, which the Parties agree are
true and correct and are incorporated herein by this reference, and pursuant to the mutual covenants
contained herein, the Parties mutually agree as follows:
1. The Parties and Legal Counsel shall work together in the exchanging privileged and confidential
information necessary to the preparation, review, and defense of any BNSF litigation, including an
eminent domain action and in exchanging privileged and confidential information necessary to the
review of the BNSF Project. Each Party shall pay for its own Legal Counsel's fees and costs. All Parties
acknowledge that this Agreement is for the common benefit of all Parties and each Party shall be
responsible for its own costs and expenses.
2. The Parties desire to produce and share documents and communications, among and between
themselves and Legal Counsel, protected by the lawyer -client privileges as provided in (but not
necessarily limited to) Evidence Code section 954, and attorney work product documents and
communications protected by Code of Civil Procedure sections 01 .010- 01 .o o, which pertain to
the potential litigation brought by BNSF and other documents and communications shared for the
purpose of assisting the Parties in asserting common claims or defenses (collectively, "Privileged
Materials"). This Agreement applies to such communications or documents, if any, that have already
been shared or exchanged among the Parties related to the BNSF Project. The Parties shall endeavor
to label the Privileged Materials as "Privileged Materials" but failure to so label any materials upon
delivery to any other Party shall not exclude those materials from the scope of Privileged Materials
and shall not constitute a waiver of any privilege nor a waiver of any right or obligation provided for
in this Agreement if the Party delivering the documents or communications confirms to the other
Parties to this Agreement in writing that such documents or communications are Privileged Materials.
3. All Privileged Materials that Legal Counsel may receive shall be limited solely to specific issues
regarding (a) the BNSF Project, and (b) legal actions, including eminent domain that would advance
the BNSF Project.
4. The Parties further agree that the mutual sharing of Privileged Materials is not intended to waive the
attorney -client privilege or the protection of attorney work product or any other similar protection
applicable to the Privileged Materials.
5. The Parties acknowledge and agree that all Privileged Materials that Legal Counsel may receive are
transmitted under an expectation of privilege, subject to applicable federal, state, and local laws
(collectively, the "Laws"), including, without limitation, the California Public Records Act (California
Government Code §§ 6250 through 6276.48). If any other person or entity requests or demands, by
subpoena or otherwise, any Privileged Materials from any Party or officer, director, employee, agent,
expert, consultant or representative of any Party to this Agreement, the Party receiving such request
or demand will i notify the other Parties to this Agreement within five days of receipt of such
subpoena or otherwise, and (ii) assert the attorney -client privilege or the attorney work product
protection, as applicable, with respect to the requested Privileged Materials, unless the privilege and
protection is expressly waived by the Party which originally provided the requested Privileged
2
Materials or if the Party receiving such request or demand is required to release the Privileged
Materials in accordance with the Laws. Each Party will take all steps reasonably necessary to permit
assertion of all applicable rights and privileges with respect to such Privileged Materials and shall
cooperate in good faith with the other Party in any judicial proceedings relating to the disclosure of
the Privileged Materials, provided, that, no Party shall be required to incur unreasonable cost and
expense because of such actions. The Parties acknowledge and agree that disclosure of any Privileged
Materials by a Party does not act as a waiver to assert the attorney -client privilege or the attorney work
product protection regarding any other person's or entities' request or demand, by subpoena or
otherwise, for any other or future Privileged Materials.
6. The intent of this Agreement is to preserve any and all existing privileges or protections with respect
to the Privileged Materials while pursuing the Parties' common interests and to keep all Privileged
Materials from nondisclosure to the maximum extent allowed by the Laws.
7. Improper or unauthorized disclosure by one Party of materials or information exchanged hereunder
shall not be deemed a waiver by any other Party of its right to assert a claim ofattorney- client
privilege, other applicable privileges, or work product protection with respect to that material or
information,
8. The Parties acknowledge that Legal Counsel will participate with the Parties in connection with the
BNSF Project and any litigation to advance the BNSF Project. Nothing in this Agreement, and no
sharing of information with respect to the Project, creates an attorney -client relationship between one
Party and another Party's Legal Counsel. No Party shall share confidential information under this
Agreement that purports to create such an attorney -client relationship with another Party's Legal
Counsel.
9. Subject to the, express provision of this Agmement, the Parties retain their individual discretion to
protect and advance their respective interests in matters relating to the BNSF Project and any litigation
that advances the BNSF Project, including discretion to determine whether the distribution or
disclosure of BNSF Project related documents to Legal Counsel is reasonably necessary to obtain
adequate legal advice.
10. As of the first date written above, this Agreement shall apply to all Privileged Materials exchanged
between the Parties with respect to the Project, regardless of the date of such exchange. Either Party
may terminate this agreement upon written notice to the other Party; provided, that, the terminating
Party shall continue to hold any documents and communications considered as Privileged Materials
as if such Party was still a party to this Agreement.
11. The Parties and their Legal Counsel agree that Privileged Materials exchanged pursuant to the terms
of this Agreement shall be treated as Privileged Materials with respect to third parties, even if adversity
of interest may be discerned or arise between or among the Parties.
12. The Parties agree that entering into this Agreement shall not affect or alter any other obligations or
agreements among the Parties hereto that now exist, or which will come into existence in the future.
13. Remedies. In the event of a breach of this Agreement by any Party, each Party acknowledges and
agrees that its exclusive remedies are specific performance, mandamus, or injunction. Each Party
3
acknowledges and agrees that it shall not have the right to seek or obtain monetary damages, an award
of costs of litigation, or attorneys' fees against any other Party based upon such Party's breach of this
Agreement.
14. Entire Agreement. This Agreement embodies the entire Agreement and understanding among the
Parties relating to the subject matter hereof. Neither this Agreement nor any provision hereof may be
amended, modified, waived or discharged except by an instrument in writing executed by the Parties
against which enforcement of such amendment, modification, waiver or discharge is sought.
15. Capacity ofParties. Each signatory and Party hereto hereby warrants and represents to all other
Parties that ithas legal authority and capacity and direction from its principal to enter into this
Agreement.
16. Modification. No modification or waiver of any provision of this Agreement shall be effective unless the
same shall be in writing and signed by the Parties hereto, and then shall be valid only in the specific instance
and for the purpose for which given.
17. Counterparts. This Agreement may be executed in more than one counterpart, each of which shall be
deemed to be art original but all of which, when taken together shall constitute but one instrument.
18. Severability. In the event that any provision of this Agreement shall for any reason, be determined to be
invalid, illegal, or unenforceable in any respect, the Parties hereto shall negotiate in good faith and agree
to such amendments, modifications, or supplements to this Agreement or such other appropriate action
as shall, to the maximum extent practicable in light of such determination, implement and give effect
to the intentions of the Parties as reflected herein.
19. Headings. The captions and headings in this Agreement are for convenience only and shall not define
or limit the provisions hereof.
20. Governing Law; Venue and Jurisdiction. This Agreement and all transactions contemplated by this
Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of
California without regard to any conflicts of laws, statutes, rules, regulations or ordinances. The Parties
agree that any action brought by either party against the other in any court, whether federal or state, shall
be brought within San Diego, California, in the applicable state and federal judicial districts and do hereby
waive all questions of jurisdiction or venue for the purpose or carrying out this provision.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, parties hereto have executed this Memorandum of Understanding as
of the day and the year first above written.
Approved as to form and legality SAN DIEGO UNIFIED PORT DISTRICT
for the San Diego Unified Port District:
By: THOMAS A. l U SSE LL
General Counsel
Approved as to form and legality for
the City of National City:
By: CHARLES E. BE `, JR.
City Attorney
5
By
JOSEPH STUYVESANT
President/Chief Executive Officer
CITY OF NATIONAL CITY
I PAW°
Wr
By
ALEJA D A S
Mayor
ELo-S LIS
IN WITNESS HEREOF, parties hereto have executed this Memorandum of Understanding as
of the day and the year first above written.
Approved as to form and legality
for the San Diego Unified Port District:
By: THOMAS A. RUSSELL
General Counsel
Approved as to form and legality for
the City of National City:
L
By: CHARLES E. B _ ' JR.
City Attorney
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SAN DIEGO UNIFIED PORT DISTRICT
JOSEPH T[JV"
President/Chief Executive Officer
CITY OF NATIONAL
By
ALEJANDRA DRA ; ,O-SOLIS
LI
Mayor
M.
San Diego Unified Port DjsPict
Document No. 740+�.)
Filed APR :z3zo2T'
Office of the District Clerk
'COMMON iT R ST AND MUTUAL DEFENSE A REEM T
AMONG i
$AN LOGO UNIFIED PORT DISTRICT AND'THE CITY OF NATIONAL CITE
This Co-nnron Interest and Mutual Defense Agreement x"greerne.nt" is entered into on
April 5,. 2022, by and among the San Diego Unified Port District, a public corporation("Port")
and the City of National City, a California chartered municipal corporation "city", also referred
to herein as "Party" or' "Parties", with reference to the following facts.
RECITALS
WHEREAS; .fhis Agreement concerns the proposal sought by Burlington Northern, and Santa Fe
Railway 4B F" and Los ,Angeles — San Diego — San 1.dui. Obispo Rail Corridor Agency
("LOSSAN")that- would .place BSF's maintenance activities On the: National City Marine
Terminal 4411 MT" and areas adjacent to the NCMT ("BNSF SF Project"); and
WEIMEAS, the .Parties have joiiitly been ,Processing land use entiti rr ents f r .what is. commonly
known as the National City Balanced Plan ("Balanced Plan' within the Port's jurisdiction, additional
commercial uses within the City's jurisdictLori and an a tension and realignment of the Bayshore
bikeway olle ti ely,'Port ity. Project"); and
WHEREAS, the draft- Environmental Impact Report " I• ' is currently being irc laced for
public review arid the ort ity Project has not .been approved by the Port or City, but is
anticipated Logotp.go.,to the respective decision -makers in short-order; and
WHEREAS, BNSF Project conflicts with the operation of the NCMT, the Balanced Plan and
-would upset the objectives oil the •Pority Project; and
WHEREAS, the Parties acknowledge that BNSF may have eminent domain authority under
california law, there is an on -going threat that BNSF may bring an erniner4 domain action for the
.BNSF Project and that given the potential for such action and in the case that the Port and .City
certify the EIR and approve the Part/City Project in their respective jurisdictions, and the associated
common interest Tofthe Parties, it is reasonably necessary and hel ful for their respective legal counsel
(.."LegalCounsel") .toexchange privileged and confidential corn tinicatidn , in the preparation, review
and defense. of any BNSF litigation, including an eminent domain action, as well as related to the MU'
Project; and
WHEREAS, the purpose of this Agreement is to I memorialize the common interest of the Parties
in exchanging privileged and confidential information necessary to the pmparation, review and
defense of any BNSF litigation .that would advance the BNSF Project, including an„eminent domain
action; memorialize the common interest of the Parties in -exchanging privile edind! confidential
information necessary to the review of the BNSF Project; and set forth the terms for interactions
among the Parties and their respective Legal Counsel in order to accomplish these of jectives in the
Parties' Common interest. As a result, any exchange of privileged and confidential information &work
product pursuant to the terms of this Agreement will be communicated pursuant to a common
interest/non-waiver doctrine and the extension of the att racy client and work product privilege
1
doctrines as provided herein.
ACREMNT
.NOW, THEREFORE, in consideration ofthe above Recitals, which the Parties agree are
true and correct and are incorporated herein by 'this reference, and pursuant to the mutual covenants
contained herein, the Parties mutually agree as follows:
1. The Parties and Legal Counsel shall work together in .the exchanging privileged and confidential
information necessary to the preparation, review, and defense of any BNSF litigation, including an
eminent domain action and in exchanging privileged and confidential information necessary to the
review ofthe BNSF .Project. Each Party shall pay for its own Legal Counsel's fes and costs. All Parties
acknowledge that this Agreement is for the common benefit df all Parties and each Party shall be
responsible for its own dolts and .expenses.
Z. The Parties desire to produce and share documents and communications, among and between
themselves and Legal Counsel, protected by the lawyer -client privileges asprovided in (but not
necessarily 'limited to) Evidence Code section 054, and attorney Work product documents and
communicationsprotected by Code of Civil Procedure sections 2018.010-2018.080, which pertain to
the potential litigation brought by BNSF and other documents and coma unicati ns shared for the
purpose of assisting the Parties in asserting common claims or 4efeases(Collectively, "Privileged
Material". Th is Agreement applies -to such communications or documents, if any, that have already
been shared or exchanged among the Parties related to the BNSF Project The Parties shall endeavor
'to label ,the Privileged Materials. as "Privileged Materials" but failure to so label any materials upon
delivery to any other Party shall not exclude those materials from the scope of Privileged Materials
and shall not constitute a waiver of any privilege nor a waiver of any right or obligation provided for
in this Agreement if the Party delivering the documents or communications confirms to the other
Parties to this Agreement in writing that such document r communications are Privileged Materials.
3. Alf Privileged Materials that Legal Counsel may receive shall, be limited solely to specific issues
regarding (a) the BNSF Project, and (b) leg al actions, including eminent domain that would advance
the BNSF Project.
4. The Parties further agree that the mutual sharing of,Privileged Materials is riot intended to waive the
attorney -client .privilege or the protection, of attorney work product or any other similar protection
applicable to the Privileged Material.
5. The Parties acknowledge and agree that all Privileged Materials that Legal Counsel inay receive are
transmitted 'under an expectation of privilege, subject =to applicable federal, state, and local laws
(collectively, the "Laws"), including, without limitation', the California Public Records Act (California
Government Code §§ 6250 through 6276.48). If any other person or entity requests or d i acids, by
subpoena or otherwise, any Privileged .Materials from any Partyor officer, director, employee, agent,
expert, consultant or representative of any Party to this Agreement, the Party receiving such request
or demand will :(i) notify the other Parties to this Agreement within rive days of receipt of such
subpoena Or Otherwise, and (ii) assert the attorney -client privilege or the attorney work product
r -
protection, as applicable, with respect to the requested Privileged Materials, unless the privilege and
protection is expressly waived by the Party which originally provided the requested Privileged
2
Materials or if the Party receiving such request or demand is required to release the Privileged
Materials in accordance with the Laws. Each Party will take all steps reasonably necessary to permit
assertion of all applicable 'rights and privileges with respect to. such Privileged Materials And shall
cooperate in good faith with the other Party in any judicial proceedings relating to the disclosure of
the Privileged Materials, provided, that, _no Party .;shall a required to incur unreasonable cost and
expense because of such actions. The Parties acknowldge_and agree that disclosure of any Privileged
Materials by a Party does not act as a waiver to assert the attorney -client privilege or the attoey'rork
product protection regarding any other person's or entities' request or demand, by subpoena or
otherwise, for any other or future Privileged Materials.
. The intent of this Agreement is to preserve any and all existing privileges or protections with respect
to the Privileged Materials while pursuing the Parties' common interests and to keep all Privileged.
Materials from nondisclosure to the maximum extent allowed by the Laws.
7. Improper or unauthorized disclosure by one Party of materials orinformation exchanged hereunder
shall not be deemed a waiver by any other Party of its right to assert a claim of attorney- client
privilege, other applicable privileges, or work product protection with respect to that material or
information.
8. The Parties Acknowledge that Legal Counsel will participate with the Parties in connection with the
BNSF Project and any litigation to advance the BNSF Project. Nothing in this Agreement, and no
sharing ofinformatin with respect to'tihe: Project, creates an attorney -client relationship between one
Party and another Party's Legal Counsel. No Party shall share confidential infon ati n under 'this
Agreement that purports to create such an attorney -client relationship with •another Party's Legal
Counsel.
9. Subject to the express provision .of this Agreement, the Parties retain their individual discretion to
protect and advance their respective .interests in matters, relating to, the I F Project and any litigation
that advances the EMU Project, including discretion to determine whether the distribution or
disclosure of BNSF Project related documents to Legal Counsel is reasonably necessary to obtain
adequate legal advice.
10. As of the first date written above, this Agreement shall apply to all Privileged Materials exchanged
between the Parties with respect to the Project, regardless of the date of such exchange. Either Party
may terminate this agreement upon written notice to ;the other Party; provided, that, the terminating
Party 010 continue to hold any documents and communications considered as Privileged Materials
as if such Party was still a party to this Agreement.
11. The Parties and their Legal Counsel agree that Privileged Materials echanged pursuant to the terns
f this Agreement shall be treated as Privileged Materials with respect to third parties, even if adversity
of interest may be discerned or arise between or among the Parties.
12. The Parties agree that entering into this Agreement shall not affect or alter any other obligations or
agreements among the Parties hereto that now exist, or which will come into existence in the future.
13. Remedies. In the event of a breach of this Agreement by any Party, each Party acknowledges and
agrees that its exclusive remedies are specific performance, ma damus, or injunction. Each Party
3
acknowledge§ and agrees that it shall not have. the right to Leek or obtain monetary damages, an award
of costs of litigation, or attorneys' fees against any other Party based upon such Party's breach of this
Agreement.
14. Entire Agreement This Agreement embodies the entire Agreement and understanding among the
Parties relating to the subject matter hereof. Neithethis Agreement nor any provision hereof may .be
amended, modified, waived or discharged except by an instrument in writing executed by the Parties
against which enforcement of such amendment, .modification, waiver dr discharge is sought;
15. Capacity of Parties. Each signatory and Party hereto hereby warrants and represents. to' all other
Parties that it has legal authority and capacity and direction from its principal to enter into .this
Agreement.
1, . Modification. ation. No modification 'or waiver ofny provision of this Agreement shali be effective Unless the
same shall be in writing and signed b the Parties hereto, and then shall be valid only in the specific instance'
and for the purpose for which given.
l 7. Counterparts. This Agreement may be executed in more than one counterpart, each of Which Shall be
deemed 'to be an original but all of which, when taken together shall constitute but one instrument
18. Severability. In the event that any provision ofthis. Agreement shall for arty reason. ibe deternilned to be
invalid, illegal, or unenforceable in anyrespect, the. Parties hereto shall negotiate in good l~ait i and. agree
tomodifications, such amendments, moditin, r supplementssUpplements to this Agreement or such other appropriate action
as shall, to the Maximum extent practicable in light of such determination, implement and give effect
t ,the intentions of the Parties a reflected herein.
19. Headings. The captions and headings in this Agreement are for convenience only and shall not define
or limit the provisions hereof.
20. Governing Law;. Venue and Jurisdiction. This Agreement .and all transactions contemplated by this
i
Agreement shall be governed by, construed, and .enforced in accordance .with the laws of the State of
Californiawithout regard to .any conflicts of laws, statutes, rules, regulations or ordinances. The Parties
agree that any action brought by either party against tie other in any court, whether' federal or state, shall
be brought -within San Diego,.California, in the applicable state and federal judicial districts -and do hereby
waive all questions .of j uridiction or venue for thepurpose pr carrying out this provision.
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