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HomeMy WebLinkAbout09A-City Attorney CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: James F. Penman, City Attorney Subject: A Resolution authorizing the execution of a Joint Litigation and Confidentiality Agreement between Richards, Watson & Greshon and the City of San Bernardino in the case of City of San Bernardino, et at. v. County of San Bernardino (Perchlorate Litigation) Dept: City Attorney's Office Date: July 18, 2006 ORIGINAL Synopsis ofPreyious Council action: N/A Recommended motion: That the Mayor of the City of San Bernardino be authorized and directed to execute on behalf of the City of San Bernardino, the Joint Litigation and Confidentiality Agreement between Richards, Watson & Gershon and the City of San Bernardino in the case of City of San Bernardino, et al. v. County of Sa Bernardino (Perchlorate Litigation). .~ es F. Penman, City Attorney Contact person: Marianne Milligan. Sf. Ass!. City Attorney Phone: Supporting data attached: Staff Report Ward: (909) 384-5355 N/A FUNDING REQUIREMENTS: Amount: None Source: (Ace!. No.) (Ace!. Description) Finance: Council Notes: )(-rso, .?-OO(, - d. (p 'J-" 75-0262 Agenda Item No. q fj 7 /J-Lf! (J to ,------ STAFF REPORT Council Meeting Date: July 24, 2006 TO: Mayor and Common Council FROM: City Attorney's Office DATE: July 18, 2006 RE: A Resolution authorizing the execution of a Joint Litigation and Confidentiality Agreement between Richards, Watson & Gershon and the City of San Bernardino in the case of City of San Bernardino et al. v. County of San Bernardino (Perchlorate Litigation) BACKGROUND: The City of San Bernardino, as well as several other cities (collectively the "Cities") are all signatories to a Waste Disposal Agreement ("WDA") with the County of San Bernardino. The WDA provides for a standard fee to be charged but allows the County to increase fees charged to the individual cities based upon an "uncontrollable circumstance." The Cities received notification by the County in the Spring of 2005 that the County deemed the costs of environmental remediation of a chemical commonly known as perchlorate found in a portion of the County's Mid-Valley Landfill, to be such an uncontrollable circumstance justifying the imposition of an additional surcharge of $0.69 per ton of solid waste that is disposed in the County's landfills. Each of the Cities disputes that this remediation cost constitutes an "uncontrollable circumstance" under the terms of the WDA. On February 21, 2006 in closed session the Mayor and Common Council approved entering into a "Joint Litigation Agreement" (the "Agreement") with the law firm of Richards, Watson & Gershon for them to represent all the Cities' interests, including the City of San Bernardino in litigation against the County. The attached is that Agreement. RECOMMENDATION: That the Mayor of the City of San Bernardino be authorized and directed to execute on behalf of the City of San Bernardino, the Joint Litigation and Confidentiality Agreement between Richards, Watson & Gershon and the City of San Bernardino in the case of City of San Bernardino et al. v. County of San Bernardino (Perchlorate Litigation) F:\MILLIGAN\City Attorney\Staff ReportsVoint Litigation Staff Report 6-24-06.doc 1 RESOLUTION NO. 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A JOINT LITIGATION AND 3 CONFIDENTIALITY AGREEMENT BETWEEN RICHARDS, WATSON & GERSHON AND THE CITY OF SAN BERNARDINO IN THE CASE OF CITY OF SAN BERNARDINO, 4 et al. v. COUNTY OF SAN BERNARDINO (Perchlorate Litigation) 5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY 6 OF SAN BERNARDINO AS FOLLOWS: 7 SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and directed 8 to execute on behalf of said City a Joint Litigation and Confidentiality Agreement between 9 Richards, Watson & Gershon and the City of San Bernardino for joint legal services, a copy of 10 which is attached hereto marked Exhibit "A" and incorporated herein by reference as fully as 11 though set forth at length. 12 SECTION 2. The authorization granted hereunder shall expire and be void and of no 13 further effect if the agreement is not executed by both parties and returned to the Office of the City 14 Clerk within sixty (60) days following the effective date of the resolution. 15 1// 16 1// 17 /1/ 18 1// 19 /1/ 20 1// 21 /1/ 22 /1/ 23 1// 24 1// 25 1// 26 1// 27 /1/ 28 /1/ 1 I RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL 2 SERVICES AGREEMENT BETWEEN MUNDELL, ODLUM & HAWS AND THE CITY OF SAN BERNARDINO IN THE CASE OF PATRICK MAJOR v. SAN BERNARDINO FIRE 3 DEPARTMENT, CITY OF SAN BERNARDINO, et af. 4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and 5 6 Common Council of the City of San Bernardino at a meeting thereof, held on the day of 7 COUNCIL MEMBERS: 8 ESTRADA 9 LONGVILLE 10 MCGINNIS II DERRY 12 KELLEY 13 JOHNSON 14 MCCAMMACK 15 16 17 18 , 2006, by the following vote, to wit: AYES NAYS ABSTAIN ABSENT CITY CLERK 19 20 21 22 The foregoing Resolution is hereby approved this day of ,2006. PATRICK J. MORRIS, Mayor City of San Bernardino Approved as to form and 23 legal content: 24 JAMES F. PENMAN, City Attorney 25 26 27 28 2 JOINT LITIGATION AND CONFIDENTIALITY AGREEMENT This Joint Litigation and Confidentiality Agreement (the "Agreement") is entered into and is made effective as of this 151 day of March 2006, by and among Richards, Watson & Gershon ("RW&G") and the cities of Adelanto, Apple Valley, Barstow, Big Bear Lake, Colton, Fontana, Grand Terrace, Hesperia, Highland, Loma Linda, Rialto, San Bernardino, Twentynine Palms, Victorville, Yucaipa, and Yucca Valley. The city parties will be referred to herein individually as "Member" and collectively as "Members." RECITALS WHEREAS, each Member is a party to a Waste Disposal Agreement ("WDA") with the County of San Bernardino ("County") in substantially the same form as the sample WDA attached hereto as Exhibit "A" providing for a set schedule of fees for the Member's use of the Mid-Valley landfill maintained by the County; and WHEREAS, each Member received a letter issued by the County Department of Public Works in the Spring of 2005, in which the County indicated that it would be increasing the fees charged to each member at the rate of an additional $0.69 per ton to cover the County's purported additional costs in connection with certain environmental remediation of perchlorate in the Mid-Valley landfill area (the "Perchlorate Surcharge"); and WHEREAS, each Member believes that the Perchlorate Surcharge is not justified and is not the type of "uncontrollable circumstance" as defined by the WDA and a common understanding, given the circumstances of that contract and law; and WHEREAS, each Member has a common interest and/or defenses as well as having common interests and/or defenses in other proceedings as may occur in the future to prevent the imposition of the proposed Perchlorate Surcharge, including without limitation, any potential action by the Members to seek a judicial declaration or other judicial relief or remedy as to the validity and amount of the proposed Perchlorate Surcharge, being collectively referred to herein as the "Litigation"; and WHEREAS, the Members have common interests with regard to the Litigation and there are common issues of law and fact relevant to the Members' common interests in such Litigation, including, but not limited to, the Members' common position that the Perchlorate Surcharge is not allowable under the terms of the WDA that each Member has entered into with the County and will constitute an unjustified price increase impacting members of each Member's community; and 10070-0001/870813.2 1 WHEREAS, the Members desire to promote cooperation with respect to their common interests in the Litigation by: (1) facilitating the exchange of information, including confidential information related to legal, factual, and/or technical issues; and (2) jointly retaining and working with attorneys, consultants and/or experts regarding legal and technical issues relevant to the Litigation; and WHEREAS, the Members desire to cooperate on these matters without jeopardizing the confidential and privileged status of any such information they may exchange; and WHEREAS, it is the intention, understanding, and desire of the Members that all past and future communications and shared attorney work-product between and among them and/or any of their counsel, consultants and/or experts pertaining to or produced in connection with or in anticipation of the Litigation are and shall remain confidential, and are and shall continue to be protected from disclosure to any third party by all applicable privileges and immunities; and WHEREAS, the Members conclude that the past and continued sharing of certain documents, information, factual materials, mental impressions, memoranda, communications with clients, and other information, whether oral or written, will facilitate the rendering of professional legal advice to the Members; and WHEREAS, without admitting any fact, responsibility, fault or liability in connection with the Litigation, the Members now desire to memorialize the agreements between themselves. AGREEMENT NOW THEREFORE, in consideration of the foregoing, the Members mutually agree as follows: 1. Confidential Information 1.1 "Confidential Information" shall mean and writings, documents, information, factual materials, mental impressions, memoranda, and other information, whether oral, written or in electronic form, shared among two or more Members that are subject to the attorney-client and/or attorney work product privileges, trial preparation materials, and/or confidential, proprietary or trade secret information. Each Member agrees that all Confidential Information received from any other Member, its counsel, or jointly retained consultants or experts shall be held in strict confidence by the receiving Member who shall not disclose Confidential Information to anyone except its counsel, consultants, employees, or agents. 10070-0001/870813.2 2 1.2 All public documents, information, and factual material shall be excluded from Confidential Information. 1.3 All persons permitted access to Confidential Information shall be advised that the Confidential Information is subject to the terms of this Agreement. 1.4 Confidential Information in written or document form exchanged after execution of this Agreement, which is intended to be kept confidential may, but need not, be marked "Privileged and Confidential." Confidential Information exchanged before the execution of this Agreement shall also be considered privileged and confidential whether or not marked as such. Each Member agrees that if another person or entity requests or demands, by subpoena or otherwise, any Confidential Information, the Member receiving the request shall immediately notify the other Members, and shall inform the person or entity seeking the Confidential Information that such materials are privileged and confidential and may not be disclosed without the consent of the Member furnishing the Confidential Information unless ordered by a court of competent jurisdiction. Before any disclosure is made by a Member, that Member shall take all steps necessary and appropriate to facilitate the assertion of all applicable rights and privileges with respect to such Confidential Information including permitting the other Members a reasonable opportunity to intervene and be heard, and otherwise cooperating with the other Members to enable them to take any of the appropriate steps to protect their rights under this Agreement. I.S Any Member who provides Confidential Information in written or document form, whether before or after execution of this Agreement, may require at any time that any other Member return all existing originals and copies of the Confidential Information to the providing Member, or require that the original and all copies of the Confidential Information be destroyed with appropriate verification of the destruction. This provision shall survive the termination of this Agreement. 1.6 Confidential Information shall not be disseminated to counsel representing non-Member individuals or entities involved in the Litigation, unless each Member provides written consent and such counsel has executed a copy of this Agreement. If any Member retains different counsel, Confidential Information shall not be disclosed to such counsel until that counsel has executed a copy of this Agreement. Any disclosure in accordance with this Paragraph 1.6 shall not diminish in any way the confidentiality of the Confidential Information disclosed and shall not constitute a waiver of any applicable privilege. 10070-0001/870813.2 3 1. 7 The confidentiality obligations of the Members shall remain in full force and effect, without regard to whether (i) this Agreement is terminated pursuant to Section 6 below, (ii) Confidential Information is returned to the providing Member, and/or (iii) any Member withdraws or is removed from this Agreement pursuant to Paragraphs 5.1-5.4 below. 1.8 The exchange of Confidential Information among Members, whether exchanged before or after the execution of this Agreement, is not and was not intended to waive any attorney-client privilege or attorney work-product protection applicable to such information. 1.9 All Confidential Information governed by this Agreement shall be protected to the maximum extent provided by law, including the attorney work product and joint common interesUdefense doctrines, the attorney-client privilege and/or any other applicable privileges as recognized under California or federal law. 1.10 No Confidential Information may be used by one Member against another in the prosecution or defense of any claim. Confidential Information that is not otherwise privileged will not gain the protection of any privilege as between the Members by virtue of being shared among or otherwise disclosed to the Members, or any of them, under this Agreement. 1.11 Any inadvertent or unintentional disclosure of Confidential Information by any Member or its employees, legal counsel, consultants, or experts to any person or entity not a party to this Agreement shall not constitute a waiver of the terms of this Agreement as to the disclosed information or any other information which is subject to this Agreement. 1.12 A Member may disclose Confidential Information to its insurance carrier as it deems necessary for purposes of pursuing claims under its policies of insurance, billing or other reimbursement of costs, but only if: 1) prior to disclosing any Confidential Information to its insurer(s), the Member gives written notice to each of the Members of its intention to disclose Confidential Information, in sufficient detail to describe the Confidential Information it intends to disclose, the purpose of the intended disclosure, and the insurer(s) to whom the Member intends to disclose the Confidential Information; 2) the Member and its insurer(s), prior to disclosure of any Confidential Information, execute a protective order or confidentiality agreement approved by the Members to the effect that the insurer(s) shall not make the Confidential Information available to others, including, without limitation, any personnel of the insurer(s) that may be handling insurance claims from other Members or PRPs, and binding the insurer(s) to the terms and conditions of this Section 1. 10070-0001/870813.2 4 2. Conflict of Interest This Agreement shall not be construed to create an independent attorney-client or other fiduciary relationship between a Member and common counsel acting for all Members. Each Member waives any claim of conflict of interest that might arise by virtue of its participating in this Agreement and sharing of Confidential Information; and each Member agrees that it shall not rely on this Agreement or the sharing of Confidential Information as a basis upon which to seek to disqualify legal counsel for any other Member, any jointly retained counsel, including the firm of Richards, Watson & Gershon, or any jointly retained consultants and/or experts, from representing, or performing consultant services on behalf of, such other Member, or anyone else, in this or any other matter. This waiver and agreement shall survive termination of this Agreement and shall continue to bind each Member after that Member's removal or withdrawal from this Agreement. 3. Oecision-Makina bv the Members Except as to the matters requiring a two-thirds or unanimous vote as set forth herein, all joint defense decisions of the Members shall be made by vote or proxy, by a simple majority of the Members, each Member having one vote. In order to facilitate decision making, it is contemplated that status conferences will be held on an as needed basis. Each Member shall have the right to designate one regular and one alternate to participate in the status conferences that shall have the right to vote on the Member's behalf with respect to any funding, strategy, or other issue requiring a vote. The Members may appoint a "litigation" committee composed of not less than three Members who shall have the ability to approve day-to-day decisions on the course of the litigation and represent the Members at settlement conferences or other court appearances as may be necessary. 4. Fundina bv Members All Members shall fund the expenses of any litigation challenging the proposed imposition of the Perchlorate Surcharge and seeking any reimbursement of that surcharge on a "per city" basis. For example, each monthly invoice for legal services shall be divided by the number of cities then participating in the litigation and each city shall be responsible only for its respective share of that month's invoice. The Members shall appoint a Treasurer whose functions will include receipt, review, and recommendation for approval (or disapproval), in whole or in part, the submitted invoices for that month. 10070-0001/870813.2 5 S. Hourlv Rates RW&G shall be paid at the hourly rates set forth below: Shareholders/Senior Attorneys - $ 225 per hour; Associate Rate-$17D per hour and Law Clerks/Paralegals - $95 per hour. 6. Withdrawal or Removal from the Joint Defense Group 6.1 Any Member may be removed upon a vote of two-thirds of the Members, excluding the Member being considered for removal, if the interests or the actions of the Member being removed are determined to be contrary to the interests of the other Members. Any Member may withdraw from this Agreement upon 3D days written notice to all other members and to common counsel. The withdrawal will be effective as the end of the 3D-day notice period. 6.2 A Member who withdraws or is removed from this Agreement pursuant to Paragraph 4.1 above, shall not be entitled to any reimbursement of contributions made to any common counsel, joint consultant or expert. 6.3 The former Member, upon receipt, shall return to the remaining Members, or certify as to the destruction of, all written and recorded Confidential Information in its possession that was provided to that Member, within fifteen (15) days after the date of withdrawal or removal. The protections afforded Confidential Information pursuant to this Agreement shall survive the withdrawal or removal of any Member. 6.4 In the event any Member withdraws or is removed from the Agreement, the remaining Members may continue to utilize the joint counsel, experts and consultants for the sole purpose of the Litigation. 7. Termination This Agreement shall terminate at any time by a majority vote of the Members then party to this Agreement. 8. Common Counsel. Consultants and Experts The Members have agreed to retain as common legal counsel, the firm of Richards, Watson & Gershon. The Members shall, upon a vote of two-thirds of the then participating Members, also retain joint consultants and experts to advance their common interests. The Members shall authorize one of the Members to act as a treasurer for the purpose of approving and authorizing payments to reimburse the common counsel and other joint consultants and experts. 10070-0001/870813.2 6 9. Effective Date This Agreement shall become effective as of the date first set forth above when this Agreement is fully executed by all of the Members and their respective counsel. 10. Warrantv of Authoritv Each representative or counsel of a Member signing this Agreement represents and warrants that he or she has been duly authorized to enter into this Agreement by the municipal entity on whose behalf the person indicates he or she is signing. 11. Miscellaneous 11.1 Nothing in this Agreement shall be construed to restrict any Member's right to undertake separate investigative efforts, legal research and/or other activities in the defense or prosecution of the Litigation. Any Member undertaking such separate efforts shall be free to disclose or use the results of the separate and independent efforts in any manner that the Member desires, without the consent of any other Member. 11.2 Nothing herein shall be deemed to create, or be construed as, a partnership or joint venture and/or principal and agent relationship between and among the Members to this Agreement, any such alleged agency or fiduciary relationship being specifically disclaimed and denied. 11.3 This Agreement is binding upon each Member and its respective predecessors, successors, transferees, assigns, council members, and City staffs. 11.4 No assignment or delegation of the obligation to make any payment or reimbursement hereunder shall release the assigning or delegating Member without the prior written consent of the other Members. 11.5 The drafting of this Agreement has been a joint effort and no provision hereof shall be deemed prepared or drafted by anyone or more of the Members. 11.6 If any provision of the Agreement is determined to be invalid or unenforceable, the remaining provisions shall continue to be fully operative. 11.7 This Agreement is entered into and shall be construed and interpreted in accordance with the laws of the State of California. 11.8 The Members agree that specific performance and/or injunctive relief is an appropriate remedy to compel compliance with the provisions of this Agreement. 10070-0001/870813.2 7 11.9 Modifications or amendments of this Agreement may be made if such modifications or amendments are in writing and signed by each of the Members and their counsels. 11.10 This Agreement shall be executed in original counterparts with the same force and effect as if executed in one complete original document. 11.11 This Agreement and any payments made hereunder shall not constitute an admission by any of the Members for any purpose. IN WITNESS WHEREOF, the Members hereto enter into this Agreement: CITY OF ADELANTO Dated: ,2006 By: Its: CITY OF APPLE VALLEY Dated: ,2006 By: Its: CITY OF BARSTOW Dated: ,2006 By: Its: CITY OF BIG BEAR LAKE Dated: ,2006 By: Its: CITY OF COLTON Dated: ,2006 By: Its: 10070.0001/870813.2 8 CITY OF FONTANA Dated: ,2006 CITY OF GRAND TERRACE Dated: CITY OF HESPERIA Dated: CITY OF HIGHLAND Dated: CITY OF LOMA LINDA Dated: 10070-0001/870813.2 ,2006 ,2006 ,2006 ,2006 By: Its: By: Its: By: Its: By: Its: By: Its: 9 CITY OF RIAL TO Dated: CITY OF SAN BERNARDINO Dated: ,2006 ,2006 CITY OF TWENTYNINE PALMS Dated: CITY OF VICTORVILLE Dated: CITY OF YUCAIPA Dated: 10070-0001/870813.2 ,2006 ,2006 ,2006 By: Its: By: Its: By: Its: By: Its: By: Its: 10 I CITY OF YUCCA VALLEY Dated: ,2006 10070-0001/870813.2 By: Its: 11 ADD EXHIBIT 'A'-SAMPLE WASTE DISPOSAL AGREEMENT 10070-0001/870813.2 12 ** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT ** RESOLUTION AGENDA ITEM TRACKING FORM Meeting Date (Date Adopted): ~ Item # 3-1\: Vote: Ayes ',/) ~ <t. ~b "t') Nays ~ Change to motion to amend original documents D Resolution # Abstain <iT- d-DrJ.o - %')- Absent ~ Companion Resolutions N ull/V oid After: /0 () days / q - J :2 - 0& Resolution # On Attachments: D Note on Resolution of attachment stored separately: D PUBLISH D POST D RECORD W/COUNTY D By: Date Sent to Mayor: Date of Mayor's Signature: Date of Clerk/CDC Signature: Date Memo/Letter Sent for Signature: I" Reminder Letter Sent: q-I-~ Date Returned: 2nd Reminder Letter Sent: Not Returned: ~ Request for Council Action & Staff Report Attached: Updated Prior Resolutions (Other Than Below): Updated CITY Personnel Folders (6413, 6429, 6433, 10584, 10585, 12634): Updated CDC Personnel Folders (5557): Updated Traffic Folders (3985, 8234, 655, 92-389): Copies Distributed to: Animal Control D EDA D City Administrator D Facilities D City Attorney [if Finance u:t Code Compliance D Fire Department D Development Services D Human Resources D Others: Reso, Log Updated: ~ Seal Impressed: R Reso, # on Staff Report I)Q, YesL No By_ Yes No By_ Yes No By_ Yes No By_ Yes No By_ Information Services D Parks & Recreation D Police Department D Public Services D Water Department D Notes: _::~i!:;d. ~t J~:t :ctlf~ (i~L~,,::r ~~J~r;~ J, Ready to File: ~ Date:~ Revised 12/18/03 i<-JcJ1. rw! bL CITY OF SAN BERNARDINO Interoffice Memorandum CITY CLERK'S OFFICE Records and Information Management (RIM) Program DATE: August 1, 2006 YOUR COPY TO: Edna DiVellis, Operations Supervisor FROM: Sandra Medina, Assistant to the City Clerk RE: Transmitting Documents for Signature - Resolution No, 2006-262 At the Mayor and Common Council meeting of July 24,2006, the City of San Bernardino adopted Resolution No, 2006-262 - Resolution authorizing the execution of a Joint Litigation and Confidentiality Agreement between Richards, Watson & Gershon and the City of San Bernardino in the case of City of San Bernardino, et ai, v, County of San Bernardino (Perchlorate Litigation), Attached are one (1) original Professional Services Agreement and one (1) duplicate agreement to be executed by Richards, Watson & Gershon, Please obtain signatures in the appropriate locations and return the ORIGINAL agreement to the City Clerk's Office as soon as possible, to Dodie Otterbein, Records Management Coordinator. Please forward the other fully executed copy to the other party, Please be advised that the resolution and contract will be null and void if not executed within sixty (60) days, or by Friday, September 22, 2006. If you have any questions, please do not hesitate to contact Dodie Otterbein, Records Management Coordinator, at ex!. 3215, Thank you, ;I.!.~k~ ...-LVt- ~~ Medina o - Assistant to the City Clerk :~~_y ~::' &~' ,"", moo';oood docmnoo". ~ Please sign and return Date: <6 ~1 au> CITY OF SAN BERNARDINO ECONOMIC DEVELOPMENT AGENCY INTER-OFFICE MEMORANDUM SUBJECT: Sandra Medina, Assistant to the City Cl~ ~ty Clerk's Office Wasana A. Chantha, Executive Secretary ~ Executed Agreement - 2006-271 TO: FROM: DATE: October 9, 2006 Enclosed for your records is the fully executed Agreement that was approved by the Mayor and Common Council of the City of San Bernardino on July 24, 2006 pertaining to the following resolution: CDC/2006-271 Resolution of the Mayor and Common Council of the City of San Bernardino approving and authorizing the Mayor to execute the Contract and related documents for the Loan Guarantee Assistance under Section 108 of the Housing and Community Development Act of 1974, as amended, 42 USC Section 5308 (CDBG Section 108 Contract No, B-03- MC-06-0539) - North Arden Guthrie Commercial Development Project (IVDA Redevelopment Project Area) Should you have any questions, I can be reached at (909) 663-1044, Thank you, Enclosure cc: Barbara Lindseth (with Original Executed Agreement) Maggie Pacheco (with Copy of Executed Agreement) File