HomeMy WebLinkAbout2015-064 (IMPORTANT :NOTE: Resolution is Null and
void because the agreement was not
executed x1thin the time specified.)
RESOLUTION NO. 2015-64
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2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN MS4 NPDES
3 STORMWATER PERMIT RENEWAL PARTICIPATION AND JOINT DEFENSE
4 AGREEMENT WITH THE SAN BERNARDINO COUNTY FLOOD CONTROL
DISTRICT AND 15 OTHER CITIES IN SAN BERNARDINO COUNTY
5
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
6 CITY OF SAN BERNARDINO AS FOLLOWS:
7 SECTION 1. The City Manager is hereby authorized and directed to execute the MS4
8 NPDES Stormwater Permit Renewal Participation and Joint Defense Agreement with the San
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Bernardino County Flood Control District and 15 other cities in San Bernardino County. Said
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11 Agreement is attached and incorporated herein as Exhibit "A".
12 SECTION 2. The authorization to execute the Agreement is rescinded if the
13 Agreement is not executed within one hundred eighty (180) days following the effective date
14 of this Resolution.
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1
1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN MS4 NPDES
2 STORMWATER PERMIT RENEWAL PARTICIPATION AND JOINT DEFENSE
AGREEMENT WITH THE SAN BERNARDINO COUNTY FLOOD CONTROL
3 DISTRICT AND 15 OTHER CITIES IN SAN BERNARDINO COUNTY
4
5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
6 and Common Council of the City of San Bernardino at a joint regular meeting thereof, held on
7
the 6th day of April, 2015,by the following vote, to wit:
8
9 Council Members: AYES NAYS ABSTAIN ABSENT
10 MARQUEZ X
11 BARRIOS x
12
VALDIVIA X
13
14 SHORETT X
15 NICKEL X
16 JOHNSON X
17 MULVIHILL X
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20 Georg nn Hann ity Clerk
21 W
The foregoing Resolution is hereby approved this l� day of April, 2015.
22
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24 R. Carey D is, Mayor
City of So Bernardino
25
Approved as to form:
26 Gary D. Saenz, City Attorney
27
28 By
2
2015-64
MS4 NPDES STORMWATER PERMIT RENEWAL PARTICIPATION AND
JOINT DEFENSE AGREEMENT
This MS4 NPDES Stormwater Permit Renewal Participation and Joint Defense
Agreement ("Agreement") is made and entered into as of the date it is signed by all
parties to the Agreement ("Effective Date"), by and between the San Bernardino County
Flood Control District (Principal Permittee), the County of San Bernardino, and the City
of Big Bear Lake,the City of Chino, the City of Chino Hills, the City of Colton,the City
of Fontana, the City of Grand Terrace,the City of Highland, the City of Loma Linda,the
City of Montclair, the City Ontario, the City of Rancho Cucamonga,the City of
Redlands, the City of Rialto,the City of San Bernardino, the City of Upland, and the City
of Yucaipa, (collectively, the "Parties" or"MS4 Permittee Group") and Squire Patton
Boggs.
RECITALS
A. The Parties are permittees under that certain MS4 NPDES Permit and Waste
Discharge Requirements for Area-wide Urban Stormwater Runoff, adopted
January 29, 2010,NPDES No. 618036/Order No. R8-2010-0036, applicable to
the San Bernardino County Flood Control District ("SB FCD"), the County of
San Bernardino, and the incorporated cities of San Bernardino County within the
Santa Ana Region("MS4 NPDES Permit");
B. The Parties have been identified as entities to be regulated under a municipal
stormwater permit expected to be adopted in 2015 (the"2015 MS4 Permit") by
the California Regional Water Quality Control Board, Santa Ana Region
("RWQCB") and have a common interest in addressing and negotiating the terms
of the 2015 MS4 Permit;
C. To reduce costs and to more effectively represent their interests,the Parties desire
to cooperate with one another in addressing the 2015 MS4 Permit issues;
D. In anticipation of litigation under or relating to the renewal of the MS4 NPDES
Permit(which expires by its terms on or about January 29, 2015), and recognizing
that there are certain efficiencies in having common counsel representing the
Parties during the MS4 NPDES Permit renewal process and any subsequent
appeals or litigation(collectively,the "Work"), each Party has agreed to
coordinate certain efforts, share information, and fund a portion of the attorneys
fees and other costs associated with the Work as set forth in this Agreement;
E. To assist SB FCD, as the principal-permittee, on legal and other issues related to
renewal of the MS4 NPDES Permit, as well as other matters that may be assigned,
the San Bernardino County Counsel's Office issued a Request For Proposals.
The Flood Control District received and evaluated proposals from five law firms
and interviewed three. On or about March 25, 2014,the Flood Control District
retained the firm of Squire Sanders, now Squire Patton Boggs.
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MS4 Permittees Group Participation Agreement
In consideration of the mutual covenants and obligations contained in this Agreement,
the Parties agree as follows:
AGREEMENT
1.0 SCOPE AND PURPOSE.
The purpose of this Agreement is to set forth the terms and conditions under which the
Parties will work together collectively as the MS4 Permittee Group to, among other
things:
(a) retain Squire Patton Boggs, as common counsel to advise the MS4
Permittee Group on legal and other issues related to the 2015 MS4 Permit;
(b) if appropriate, engage technical consultants and direct their efforts, as
necessary,to address technical issues related to 2015 MS4 Permit;
(c) consider reasonable legal,technical, investigative, and administrative costs
incurred relating to the 2015 MS4 Permit, and any subsequent
administrative appeals and/or litigation;
(d) allocate among themselves all approved fees and costs;
(e) cooperatively provide all necessary technical and legal input, as requested
by the SB FCD, as the Principal Permittee;
(f) communicate and negotiate with the California Regional Water Quality
Control Board—Santa Ana Region ("RWQCB") and the US
Environmental Protection Agency ("USEPA")regarding the renewal of
the MS4 NPDES Permit, as necessary to accomplish the purposes of this
Agreement; and
(g) provide comments on the draft Report of Waste Discharge Requirements
and review and comment on other issues that may be presented from time
to time during the renewal process that may impact one or more of the co-
permittees.
2.0 MS4 PERMITEE GROUP.
2.1 Meetings &Notice. The Parties may schedule meetings from time-to-time, under
this Agreement, as requested by the SB FCD, to address issues pertinent to the
2015 MS4 Permit. Meetings may be held by telephone conference.
2.2 Cooperation. The Parties shall cooperate with each other to accomplish the
purposes of this Agreement and shall attempt to resolve any disputes among them
through good faith negotiation.
2.3 Communication with Squire Patton Boggs. All communications with Squire
Patton Boggs under this Agreement will be coordinated through the SB FCD.
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3.0 SHARED COSTS.
3.1 Defined. Shared Costs are costs of common counsel and, if applicable, any
consultants approved and retained by the MS4 Permittee Group for the work
related to the 2015 MS4 Permit under this Agreement.
3.2 Payment. The Parties agree to pay the Shared Costs of Common Counsel pursuant
to the Section VII (Program Costs) of the Implementation Agreement (County
Contract No. 11-545) entered into by and between the MS4 Permittee Group
under the NPDES Areawide Program budget. Matters that are assigned by SB
FCD to Squire Patton Boggs that relate only to the SB FCD are not Shared Costs
and shall be paid by SB FCD separate and apart from the Agreement or the
Implementation Agreement. SB FCD shall review all invoices, approve payment
of Shared Costs on behalf of the Parties, invoice the Parties, and prepare an
annual fiscal year accounting consistent with Section VII of the Implementation
Agreement.
4.0 SUCCESSORS AND ASSIGNS. This Agreement applies to, is binding upon, and inures
to the benefit of each Party whose legally authorized representative has executed this
Agreement, and the Parties' directors, officers, agents, employees, attorneys, successors
and assigns.
5.0 WITHDRAWAL.
5.1 Withdrawal. Any Party may withdraw from all participation in this Agreement
upon thirty (30) days' advance written notice to the MS4 Permittee Group, except
that the withdrawing Party shall remain responsible for its share of all Shared
Costs, as set forth in the Implementation Agreement. Any Party who withdraws
from this Agreement shall continue to protect the confidentiality of information it
obtained during the time it was a Party, in accordance with Section 6.0 and 7.0.
6.0 CONFIDENTIALITY: LIMITATIONS.
6.1 Confidentiality. A Party may only produce confidential material relating to this
Agreement in compliance with a court order or with the consent of all Parties to
this Agreement. If the production of confidential material relating to this
Agreement is required by a court of competent jurisdiction, the Party so ordered
shall seek leave of court to file the confidential material relating to this
Agreement under seal or subject to an order protecting their confidentiality.
6.2 Permitted Disclosure. Except for Joint Defense Information (as defined below),
nothing contained in this Agreement prohibits a Party from disclosing: (i) its own
information; (ii) its own work product(except for any portion of that work
product that contains confidential material relating to this Agreement); (iii)
material prepared by a Party that refers or relates solely to its own information,
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documents, or work product; (iv) material obtained from a source other than a
Party covered under this Agreement; (v) material that was or becomes publicly
available through no act, omission, or fault of the receiving Party; (vi) material
that is discovered independently by a Party; or(vii) non-privileged material that is
otherwise discoverable. Nothing in this Agreement prevents or restricts a Party
from using, at its sole discretion, its own document or information that it has
provided to any other Party under this Agreement, even if it is confidential
material relating to this Agreement.
6.3 Discovery. This Agreement does not prevent or to limit any Party's counsel from
seeking documents from any other Party to this Agreement through formal
discovery processes. By executing this Agreement, no Party waives any
objections that may be asserted in response to a formal discovery request.
6.4 Admissibility. This Agreement is not admissible in evidence, nor may it be used
as evidence in any action or proceeding for any purpose other than for the purpose
of enforcing the terms of this Agreement or defending against a third-party
motion to compel disclosure or production of documents covered under this
Agreement.
6.5 Return of Confidential Information. Any Party that has produced privileged or
confidential material relating to this Agreement may request, in writing, the return
or destruction of the information provided under this Agreement, subject to any
applicable federal and state laws mandating recordkeeping. The requirements of
this Section are subject to any outstanding discovery obligations.
7.0 JOINT DEFENSE: ATTORNEY-CLIENT RELATIONSHIP. By executing this
Agreement, each Party represents that it has been fully advised concerning the
advantages and disadvantages of participation,joint defense, common interest, and
confidentiality agreements, and that each Party understands this Agreement and
knowingly and intelligently makes the representations and waivers contained herein.
7.1 Joint Defense Counsel. Squire Patton Boggs has been(or will be) engaged as
joint defense/common counsel for the Parties in connection with the work under
this Agreement.
7.2 Joint Defense Information. This Agreement applies to all communications that
are: (i) related to the 2015 MS4 Permit and any appeals or litigation related
thereto; (ii)protected by the attorney-client privilege,the work product doctrine
and/or any other privileges, confidentialities and protections provided by law; and
(iii) shared or exchanged among the Parties or their attorneys, representatives,
consultants and/or experts ("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
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Agreement, including, without limitation, all verbal and written exchanges of
information among the Parties and/or their attorneys, representatives, consultants
and/or experts, and all documents containing Joint Defense Information shared or
exchanged among such parties, including, without limitation, memoranda,
correspondence, electronic mail, and all summaries and compilations, data,
mental impressions, strategies, legal theories, legal research, work performed or
prepared by consultants or experts at the direction of counsel for the Parties,
interviews with prospective witnesses and/or all other information and analysis
and the work product of any Party's attorney in any format from and after the
Effective Date. The Parties agree that all communications between Parties and
their attorneys, representatives, consultants and/or experts, in furtherance of the
purpose of this Agreement shall be protected by the attorney-client privilege, the
attorney work-product privilege and the joint defense privilege 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.
7.3 The Parties understand and agree that the sharing or exchanging of Joint Defense
Information between or among the Parties, and the joint creation, development or
solicitation of Joint Defense Information by two or more Parties (or their
employees or agents) in connection with the 2015 MS4 Permit, shall be
accomplished pursuant to the attorney-client privilege,the work product doctrine,
the "common interest" doctrine, the "joint defense" doctrine and any other
applicable rights,privileges and doctrines, and that any and all such shared or
exchanged Joint Defense Information shall be and remain protected against
disclosure to any third party to the fullest extent allowed by law.
7.4 The Parties agree to take all measures reasonably necessary to protect the
confidentiality and privileged nature of the Joint Defense Information. Unless
otherwise required by law, none of the Joint Defense Information obtained by any
Party shall be disclosed to third parties without the written consent of all of the
Parties.
7.5 Use of Joint defense information. If any third party requests or demands any Joint
Defense Information via a subpoena, discovery request, Public Records Act
Request, or otherwise, the Party receiving such request or demand shall notify all
other Parties within a reasonable time after receiving the request. The Party
receiving such request or demand reserves the right to assert all applicable
privileges, protections, exclusions, defenses, and confidentiality rights. The party
who received the disclosure request will not release or disclose such information
prior to making a good faith determination that the disclosure is required by
applicable law, or pursuant to court order, and will inform all other Parties prior to
making such disclosure.
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7.6 No Waiver/Protection from Discovery. 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 or to any third persons.
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.AppAth 874 (2004) and Waller v. Financial Corp. ofAmerica, 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.
7.7 Use of Joint Defense Information. Except as otherwise provided in this
Agreement, Joint Defense Information shall be held in strict confidence by the
Parties and will be disclosed only to Parties (including their governing boards or
councils, employees and counsel). 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. 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.
7.8 Survival. The obligations of the Parties under this Section shall survive the
termination of this Agreement and shall remain in full force and effect without
regard to whether the 2015 MS4 Permit is finalized in any form, and without
regard to whether any individual Party withdraws from this Agreement.
7.9 Conflict of Interest. As provided in the recitals and Paragraph 3.2 of this
Agreement, SB FCD may, from time-to-time, assign to Squire Patton Boggs work
that relates only to the SB FCD, on issues not directly related to renewal of the
MS4 Permit. This work has the potential of creating a conflict of interest. Each
of the Parties waives any such conflicts or potential conflicts of interest and,
further, waives any conflict of interest which might arise by virtue of its and the
other Parties' participation in this Agreement.
8.0 NEW PARTIES. New Parties may be added to this Agreement with the written consent
of all Parties after written agreement is reached on the new Party's funding contribution
and the adjusted cost share formula for all Parties.
9.0 NO WAIVER RELEASE, OR ADMISSION.
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9.1 No Waiver or Release. Except as expressly provided herein, by entering into this
Agreement and sharing confidential information under this Agreement, the Parties
are not waiving or releasing any rights, claims, defenses, or privileges they may
have against each other or any other person or entity, nor does the Agreement
modify in any way any other written agreements or written contractual
arrangements of the Parties. Any Party asserting a claim against any other Party
is not entitled to use Joint Defense Information (or other confidential information)
received under this Agreement in support of the claim, except to the extent that
the Joint Defense Information (or other confidential information) has been or is
obtained through discovery.
9.2 No Modification of Legal Obligations or Authority. Except as specifically
provided in this Agreement, no rights or obligations created by this Agreement
are intended to amend, modify, supplement, or replace any legal or contractual
obligation or authority created by any other agreement entered into at any time
between any Party to this Agreement or any affiliated entity of any other Party.
This Agreement is not intended to have any effect on any indemnification,
contribution, or warranty obligations between or among the Parties or affiliated
entities and may not be used by any Party to advance any argument that any Party
(including affiliated entities of any Party) either does, or does not, have any
obligation to indemnify, provide contribution, or provide a warranty to any other
Party (including affiliates or subsidiaries of any Party).
9.3 No Admission. Nothing in this Agreement constitutes, or may be construed as,
an admission that any Party is liable to any other Party or to any person not a
party to this Agreement.
10.0 NOTICE. All notices required or permitted to be given must be in writing and sent via
mail or e-mail to the undersigned counsel for the Parties.
11.0 APPLICABLE LAW. This Agreement is governed by and construed in accordance with
the laws of the State of California, without giving effect to the choice-of-law rules of the
State of California. The Parties agree that any dispute arising under or relating to this
Agreement must be adjudicated in the appropriate court in the State of California, and the
Parties consent to jurisdiction in those courts. This Agreement does not, however, affect
the applicable law governing the Work or disputes under this Agreement.
12.0 CONSTRUCTION OF AGREEMENT. This Agreement is jointly drafted and may not
be construed in any way, against any Party on the ground that the Party or its counsel
drafted this Agreement.
13.0 ENTIRE AGREEMENT. This Agreement is an integrated document representing the
entire understanding of the Parties with respect to participation in the MS4 Permittees
Group as it relates to the Work. This Agreement supersedes and supplants all prior or
contemporaneous agreements, proposals, or understandings, whether written or oral,
between the Parties on the same subject matter.
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14.0 MODIFICATION OF AGREEMENT. Modification of the Agreement does not affect
the rights and duties of Parties that have withdrawn from the Agreement prior to its
modification. All modifications to this Agreement must expressly state that it is the
intention of the Parties to amend or modify this Agreement and must be:
(a) in writing;
(b) signed by a duly authorized representative of each Party; and
(c) approved of by all then-current Parties to this Agreement.
15.0 SEVERABILITY. Any provision of this Agreement held to be invalid, illegal, or
unenforceable is ineffective to the extent of the invalidity, illegality, or unenforceability
without affecting the validity, legality, or enforceability of the remaining provisions.
16.0 EXECUTION AND COUNTERPARTS. The execution of this Agreement by the
undersigned representatives and counsel for the Parties has been duly authorized and is
the valid, binding, and enforceable act of each of the Parties upon whose behalf the
representatives and counsel have executed the Agreement. Each Party to this Agreement
agrees that this Agreement and all obligations arising under it are binding on any counsel
employed in the future by that Party, as if the counsel had signed the Agreement. This
Agreement may be executed in one or more counterparts, each of which, when so
executed, is deemed to be an original and all of which taken together constitute one
Agreement.
17.0 TERMINATION. The term of this Agreement shall extend until the later of: (a)the date
the 2015 MS4 Permit becomes final pursuant to applicable law; (b) the conclusion of
proceedings challenging any final Order regarding the 2015 MS4 Permit issued by the
Regional Board, or (c)termination by written agreement of all Parties, but in no event
later than December 31, 2019.
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18.0 RECITALS. The recitals of this Agreement are incorporated herein by this reference.
Squire Patton Boggs (US) LLP City of Chino
By: By:
Name: Name:
Title: Title:
Date: Date:
San Bernardino County Flood Control City of Chino Hills
District (Principal Permittee)
By: By:
Name: Name:
Title: Title:
Date: Date:
County of San Bernardino City of Colton
By: By:
Name: Name:
Title: Title:
Date: Date:
City of Big Bear Lake City of Fontana
By: By:
Name: Name:
Title: Title:
Date: Date:
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City of Grand Terrace City of Ontario
By: By:
Name: Name:
Title: Title:
Date: Date:
City of Highland City of Rancho Cucamonga
By: By:
Name: Name:
Title: Title:
Date: Date:
City of Loma Linda City of Redlands
By: By:
Name: Name:
Title: Title:
Date: Date:
City of Montclair City of Rialto
By: By:
Name: Name:
Title: Title:
Date: Date:
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City of San Bernardino
By:
Name: Allen J. Parker
Title: City Manager
Date:
City of Upland
By:
Name:
Title:
Date:
City of Yucaipa
By:
Name:
Title:
Date:
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