HomeMy WebLinkAboutStaff Report 7.A 08/01/2005CITY OF PETALUMA, CALIFORNIA
AGENDA BILL
7. A.
August 1, 2005
Agenda Title: Discussion and Approval of a Confidentiality / Joint Meeting Date: August 1, 2005
Defense Agreement Between the Nine Sonoma County Cities
(Participants) in Connection with the Sonoma County Central
Landfill Site and Related Matters Meeting Time: ❑ 3:00 PM
® 7:00 PM
Category (check one): ❑ Consent Calendar ❑ Public Hearing ® New Business
❑ Unfinished Business ❑ Presentation
Department: Director:
City Manager Michael Bierman
Cost of Proposal: $2,778.00
Amount Budgeted: $2,778.00
Attachments to Agenda Packet Item;
1. Confidentiality/ Joint Defense Agreement
2. Resolution
Contact Person: Phone Number:
Michael Bierman 707-778-4345
Account Number:
2010-54110
Name of Fund:
Other Professional Services
Summary Statement: Over the past several months, the nine cities (Participants) have been reviewing the
County landfill closure and post closure costs. A significant, unfunded liability exists that the County and
the participant cities will be expected to fund.
It appears to be at this point advantageous for all the Participants to enter into the attached Confidentiality/
Joint Defense Agreement and share information, including an independent analysis of the County costs
being conducted by CDM Consultants for an amount not to exceed $25,000. The cost will be equally
funded by each of the nine Participants at $2,778.00 each.
This study will provide the first step in any negotiations and/or legal settlement with the County.
Recommended City Council Action/Suggested Motion: Approve the Confidentiality / Joint Defense
Agreement and authorize the City Manager to sign the agreement and to participate in the CDM analysis.
Reviewed by Admin. Svcs. Dir:
D e• '7 (� S
odav's Date:
July 25, 2005
Reviewed by City Attorney:
Date:
Revision # and Date Revised:
It
A ro y.City Manager:
Date:
File Code:
CONFIDENTIALITY/JOINT DEFENSE AGREEMENT
This Confidentiality/Joint Defense Agreement ("Agreement") is entered into upon the
advice of counsel, effective this first day of June, 2005 ("Effective Date") by and among the
signatories hereto (hereinafter collectively referred to as the 'Participants") in connection with the
Sonoma County Central Landfill in Sonoma County, California (the "Site"), and matters relating to
the Site.
RECITALS
WHEREAS, the County of Sonoma ("County") has threatened to sue the City of Petaluma
("Petaluma") who is one of the Participants, in a pre -litigation letter including a "draft" complaint
for recovery of certain costs and possible damages in connection with the generation, transportation,
disposal and storage of municipal solid waste, as well as the alleged release or threatened release of
hazardous substances (all of which are hereinafter referred to as "the County's Claims"); and
WHEREAS, the County, also seeks to recover_ certain "closure" and "post -closure" costs
("Closure Costs") relating to the Site from Petaluma as well as the other Participants; and
WHEREAS, Petaluma has responded to the County's Claims by alleging, in part, others of
the Participants, as well as the County, are or may be responsible for some, or all, of the costs in
connection with the County's Claims and Closure Costs; and
WFIEREAS, the Participants desire to cooperate among themselves to explore common
issues of law and fact in connection with the County's Claims and Closure Costs that may warrant
assertion of common defenses, claims and/or pursuit of settlements. The Participants recognize that
such common interests can most effectively be protected or advanced by executing this Agreement.
Exploration in these areas has and may continue to require open and frank communication and
exchanges of mental impressions, the confidences of each of the Participants, expert opinions,
information, memoranda, technical . and consultant reports and other documents and
communications which are believed to be confidential and/or privileged (all of which will be
referred to as "Protected Defense Materials"); and
WHEREAS, the Participants desire that any Protected Defense Materials that are shared,
exchanged and/or disclosed in this matter remain protected at all times from disclosure to any third
Party; and
WHEREAS, the Participants desire to be able to make use of retained legal counsel,
technical consultants and experts (any and all of which are hereinafter referred to as "Retained
Experts") and treat privileged opinions,, reports and data produced by such Retained Experts
pursuant to this Agreement as Protected Defense Materials; and
WHEREAS, in an effort to advance their positions in pursuit of settlement and/or potential
litigation, the Participants further desire to continue to share, exchange and disclose Protected
Defense Materials without loss of confidentiality or waiver of any applicable privilege; and
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WHEREAS, the Participants believe that exploration of common interests in this matter
will be enhanced if the Participants are not engaged in active pursuit of claims among themselves
arising out of or associated with the Comity' Claims and Closure Costs and therefore desire to
postpone asserting/prosecuting said Claims and Closure Costs against any Participant that has not
withdrawn from this Agreement; and
WHEREAS, the Participants seek to ensure that by entering into this Agreement they have
not in any way reduced, limited, or prejudiced their right to contribution, indemnification or any
other form of remedy or relief against any other person or entity, except as otherwise agreed herein.
Participants may have asserted, and may assert in the future, claims arising out of or connected with
the County's Claims or with Closure Costs against other persons or entities not Participants to this
Agreement, and do not intend through this Agreement to limit, change or affect these claims; and
WHEREAS, the Participants do not intend by this Agreement to establish any new
attomey/cfient relationships and disclaim the creation of any new attorney client relationships
pursuant to this Agreement except as to jointly retained counsel, as hereinafter described; and
WHEREAS, in accordance with the Code of Professional Responsibility, counsel for the
Participants have determined that, in their professional judgment, they can adequately represent
their respective clients concurrently with effectuating the principles of this Agreement. To the
extent participation by their counsel under this Agreement constitutes multiple/overlapping
representation of the Participants, the Participants, after full disclosure and consideration of the
potential adverse affects, consent to such multiple/overlapping representation; and
WHEREAS, it is the professional judgment of counsel for the Participants and the informed
judgment of the Participants, that to the extent that any adverse interests remain or may arise among
the Participants, such conflicts can be addressed through processes defined herein without undue
interference or adverse effect upon the joint efforts to pursue common issues.
NOW, THEREFORE, in consideration of the premises and mutual agreements contained
herein, the Participants agree hereto as follows:
rMEMUM-ENZWO WENN N DI 010l ►
The Participants enter into this Agreement to protect the exchange of Protected Defense .
Materials among and between the Participants to the maximum legal extent, including, but not
limited•to, pursuant to the joint defense doctrine described in the case of OXY Resources California
LLC v. Superior Court (2004) 115 Cal.App.4`h 874, and other applicable law, and to provide for
coordination among and between the Participants consistent with such protection on matters of
mutual interest concerning the assertion or exploration of any claims or defenses or pursuit of
settlement of the County's Claims and/or Closure Costs and related matters, including the following
purposes, among others:
A. Independently assessing the amount and nature of County's Claims and Closure
Costs, including the extent to which the County may have created or contributed to the same;
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B. Assessing operational aspects of the Site with respect to regulatory compliance and
applicable standards of care;
C. Independently assessing accounting and reporting practices for revenues and
expenditures at the site and closure and post -closure fund regulatory compliance;
D. Determining whether, and to what extent, solid waste operators, generators, haulers
and/or other potentially responsible parties should be responsible for the County's Claims and
Closure Costs;
E. Assessing possible County and third -party liability and/or responsibility for the
County's Claims and Closure Costs with respect to potential claims of negligent design and/or
construction of the site, negligence in determining methods for collecting revenues for the County's
Claims and Closure Costs, failure to meet regulatory requirements and/or based on strict liability.
F. Assessing whether and to what extent the Participants may have available to them
insurance coverage or other sources of financial responsibility to pay any portion of the County's
Claims and Closure Costs.
A. Except as may be required by court order or for any claim(s) which any Participant
believes in good faith, cannot be tolled, each Participant agrees not to assert any claim, or to the
extent asserted, each Participant agrees not to prosecute any such asserted claim (whether
denominated as a cross-claim, third -party claim or otherwise) for any and all liability arising out of
or connected to the Site against any of the Participants ("Participant Claim") unless or until the
Participant seeldng to assert a Participant Claim against other Participants, or unless or until the
Participant(s) against whom a Participant Claim has been asserted, withdraws from this Agreement.
Any Participant who withdraws from this Agreement after its effective date shall not be subject to,
nor receive any benefit from, this tolling provision after the date of withdrawal.
B. Each Participant agrees to toll from the date of this Agreement to the date a
Participant withdraws from or breaches this Agreement, the running of time in connection with any
applicable statute of limitations, statute of repose, estoppel or similar law and promises not to assert
or plead any defense based on statute of limitations, laches, waiver, estoppel or any other statutory,
common law or equitable defenses related to the timeliness of the assertions of a Claim by any
other Participant; provided, that this waiver shall not apply to any such defense to the extent that
defense has become, established on or prior to the effective date of this Agreement, it being the
intention of the Participants to prevent the assertion of defenses which may ripen by lapse of time
after the date of this Agreement. Each participant preserves all other equitable and legal claims and
defenses against other Participants.
C. This Agreement shall not limit any Participant's right to pursue any claims against
any person or entity not a party to this Agreement, or any Participant who fails to comply with or
withdraws from this Agreement.
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III�U7VIA t C4ofeiollllrlfNfl-110121B101110
A.. Without admitting liability or waiving defenses, the Participants, in furtherance of
their mutual best interests, hereby agree to engage in a cooperative effort to:
1. Safeguard the Protected Defense Materials in contemplation of potential
litigation or pursuit of settlements arising from County's Claims and Closure Costs
at the Site; and
2. Utilize the coordinated efforts of inside and outside resources, including the
experience and expertise of counsel; and
3. Organize and conduct common responses to the County's Claims and
Closure Costs, where practicable, and otherwise share resources with respect to
common Issues.
B. To effectuate the, purposes of this Agreement, the Participants agree to maximize the
cost-effective and efficient assimilation, preparation, compilation and dissemination of information
which protects or advances the common interests of the Participants. In order to maximize
protection of confidentiality as to Protected Defense Materials, the Participants agree that to the
maximum extent practicable, Protected Defense Materials received pursuant to this Agreement will
be maintained in separate files.
C. From time to time, the Participants may elect to disclose or transmit to each other
Protected Defense Materials as each Participant deems appropriate.in accordance with the purposes
of this Agreement. The exchange of Protected Defense Materials and/or other. materials that are, or
maybe, produced or obtained by or on behalf of less than all Participants is strictly voluntary.
Protected Defense Materials and other materials may be disclosed to or transferred among the
Participants orally or in writing or by any other appropriate means of communication.
D. Protected Defense Materials and any other confidential or privileged information
disclosed by any of the Participants may be disclosed to any other Participant and each Participant
hereby expressly consents to such disclosure in accordance with the purposes of this Agreement.
To the fullest extent permitted by law, such disclosure shall not be deemed a waiver of the attorney-
client, attorney -work product or other privilege or applicable protection as to any person or entity
not a signatory to this Agreement.
E. In order to carry out the purposes of this Agreement, the Participants and/or their
counsel may retain Retained Experts and may also share expenditures for such Retained Experts or
other costs relating to the subject matter of this Agreement. Such joint expenditures are anticipated
but none are specifically authorized or required by this Agreement. Any joint expenditures will be
pursuant to specific letters of commitment executed by the Participants or amendments made in
accordance with this Agreement. Such letters of commitment or amendments will specify the
nature, scope, and allocation of any such joint expenditures and shall be governed, in all respects,
by the ten -ns of this Agreement. All communications shared between any Participant and/or any
Retained Expert retained pursuant to this Agreement, and all documents shared by them
(including but not limited to any information, reports or analyses) in furtherance of the purpose
of this Agreement, shall be protected by attomey-client privilege, the work product doctrine, the
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right to privacy, and any other applicable protections, to the fullest extent permitted by law. All
such communications, documents, reports, analyses, etc., shall be available to all Participants that
share in the expenditures to obtain such material in accordance with this Agreement. Each
Participant reserves the right to retain its own legal counsel, technical consultants, experts and
others at its own expense.
F. A Participant who withdraws from this Agreement shall have no right to disqualify,
object to, or seek to assert "conflict" claims with respect to another Participant's use of a Retained
Expert in any legal proceeding that is related to the subject matter of this Agreement, provided the
Retained Expert was retained and/or provided Protected Defense Material prior to such withdrawal;
nor may such objections be raised with regard to use of Protected Defense Material provided by a
Retained Expert. Upon withdrawal, a Participant may continue to use and have access to
information that was produced prior to such withdrawal by a Retained Expert; however, such
Participant shall not have the right to any such information that is produced following withdrawal.
For purposes of this Agreement, a Participant who withdraws from this Agreement shall not be
considered "a Participant" upon withdrawal.
G. Any Participant shall have the right to separately and independently use the services
of a previously engaged Retained Expert for its own purposes; however, such use may not include
advocacy which is in fact adverse to any Participant relating to the subject matter of this
Agreement, such as with regard to allocation of liability or responsibility amongst Participants,
unless written consent of the majority of the remaining Participants is first obtained.
H. Neither current nor former Participants may use Retained Experts or others retained
pursuant to provision III(E) of this Agreement, or use Protected Defense Materials in a manner
adverse to the interests of a current Participant. For purposes of this provision, "use in a manner
adverse to the interests of a current Participant" includes, but is not limited to, use in adversarial or
other proceedings that could result in allocation of liability or an increased allocation of liability to a
current Participant.
I. The Santa Rosa City Attorney, on behalf of the City of Santa Rosa ("Santa Rosa")
has agreed to retain an engineering consultant, CDM, to review factual data and cost estimates
provided by the County regarding remediation, closure costs and post closure costs for an amount
not to exceed $25,000. Santa Rosa shall provide copies of any communications and/or reports
received from CDM to those parties who have shared in the cost of retaining said expert. All of
said communications and reports shall be subject to the confidentiality provisions set forth
herein. Notwithstanding the provisions of Paragraph IH(G), above, Santa Rosa shall have the
right to continue to use CDM as its consultant concerning the purposes of this Agreement after
the initial scope of work contemplated herein. Other parties may also elect to participate in the
cost and receive the benefit of further work performed by CDM on behalf of Santa Rosa after the
initial scope of work is completed but no such cost shall be incurred on behalf of any other party
without their written consent. Further, no additional scope of work or services shall be requested
of CDM without Santa Rosa providing advance notice of such additional work or services to all
Participants and an opportunity to participate in the same. In the event Participants retain CDM
to perform an additional scope of work beyond that contemplated by this section, then the
provisions of Section III (G) shall apply unless otherwise agreed upon by the Participants.
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A. Each Participant agrees that this Agreement and all Protected Defense Materials
received from any other Participant or its counsel pursuant to this Agreement, to the maximum
extent allowed by law, shall be held in strict confidence by the receiving Participant(s), and that
such Protected Defense Materials shall be used only in accordance with the purposes of this
Agreement. Any Participant receiving Protected Defense Materials pursuant to this Agreement
agrees to distribute the Protected Defense Materials only in ways consistent with the privileges
protecting such Protected Defense Materials. Each Participant shall take all necessary and
appropriate measures to ensure that any person who is granted access to any Protected Defense
Materials or who participates in work on joint projects or who otherwise assists any counsel in
connection with the purposes of this Agreement, is familiar with the terms of this Agreement and
complies with such terms as they relate to the duties of such person.
B. Protected Defense Materials that are exchanged in written or document form and are
intended to be kept confidential may, but need not, be marked "Confidential' or with a similar
legend. If such Protected Defense Materials become the subject of an administrative or judicial
order requiring disclosure by a Participant, the Participant may satisfy its confidentiality obligations
hereunder by asserting the privileged and/or confidential nature of such information and notifying
the Participant that generated the Protected Defense Materials and giving such Participant(s) an
opportunity to protect the confidentiality.
C. The Participants intend to protect from disclosure all Protected Defense Materials
exchanged among any Participants to the greatest extent permitted by law regardless of whether the
exchange occurred before execution of this Agreement and regardless of whether the Protected
Defense Materials are marked "Confidential."
D. The confidentiality provisions of this Agreement shall not apply to information
which is now or hereafter becomes public knowledge without violation of this Agreement or which .
is obtainable pursuant to discovery procedures and not otherwise protected from disclosure.
V. ET.Ff TTVF. DISC'LnEla F, (lF MATFRTALS
A.- Except for materials that are the subject of joint expenditures of the Participants
pursuant to provision III(E) of this Agreement, because transmission of Protected Defense Materials
by any Participant is voluntary in accordance with provision III(C), any Participant is free to
distribute to non -participants or the public otherwise privileged materials of that Participant that if
transmitted pursuant to this Agreement would be ProtectedDefense Materials. However, the
Participants agree to consider possible objections and concerns of other Participants prior to
disclosing such materials to non -participants and/or the public.
B. By signing this Agreement, the Participants delegate to their respective City/Town
Manager authority to waive the confidentiality and applicable privileges against disclosure that may
apply to Protected Defense Materials transmitted by that Participant pursuant to this Agreement, so
long as such waiver is in the best interests of that Participant. Although privileges that apply to
Protected Defense Materials are held by the Participant(s), in recognition of the confidentiality
provisions of this Agreement, and the Participants' mutual interest in the Protected Defense
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materials, in addition to the authorization of the City/Town Manager of the Participant that
transmitted particular Protected Defense Materials pursuant to this Agreement, the agreement of a
majority of the City/Town Managers of the Participants is required prior to releasing Protected
Defense Materials to non participants or the public. Such agreement shall be evidenced by letters
submitted pursuant to this Agreement specifying the Protected Defense Materials or portions
thereof whose disclosure is authorized, and to whom. Upon such approval of a majority of the
City/Town Managers of the Participants concerning specified Protected Defense materials, such
materials may be disclosed in accordance with such approval, notwithstanding anything to the
contrary in this Agreement. Upon disclosure to non -participants and/or the public, such materials
shall cease to be Protected Defense Materials subject to this Agreement.
VI. CONTT.ICT QF 1NTERFST
The participation of counsel of the Participants in furthering the purposes of this Agreement
shall not be deemed to have constituted representation of any of the Participants other than that
legal counsel's own agency/client. Each Participant agrees it will not subsequently claim or assert
that counsel for any given Participant has a conflict of interest in regard to any representation of that
Participant adverse to another Participant's interests based solely on the attorney's participation in
this Agreement. A Participant shall not be construed as a "client" of an attorney for another
Participant for purposes of determining any actual or potential conflicts of interest (including, but
not limited to, any analysis under Rule of Professional Conduct 3-310) merely by virtue of
having produced or provided or received confidential or privileged information pursuant to this
Agreement. The Participants, by authorizing signature of this Agreement on their behalf,
represent that their interests are not adverse with respect to the subject matter of this Agreement,
and give their consent in accordance with California Rule of Professional Conduct 3-310 to the
extent that, contrary to the intention of the Participants, this Agreement creates a joint legal
representation relationship between Participants.
OWINNNN.I 111 C _ .
A. Any Participant may withdraw from this Agreement by giving written notice by
certified mail to every other Participant both of its intent to withdraw and the date by which said
Participant deems its withdrawal effective. If a Participant withdraws from this Agreement for
any reason, including an actual or potential conflict of interest between or among Participants,
the fact of such withdrawal shall have prospective application only and shall not affect the
obligation of the Participants, including the withdrawing Participant, and their counsel, to
maintain in confidence all Protected Defense Materials exchanged between the Participants prior
to receipt of written notice of withdrawal from this Agreement. If a Participant withdraws, this
Agreement will remain effective against all other Participants. Except as expressly provided in
this Agreement concerning ongoing confidentiality obligations of former Participants following
withdrawal and financial obligations that may have accrued pursuant to this Agreement
concerning financial participation in Protected Defense Materials, upon withdrawal, former
Participants shall cease to be Participants subject to this Agreement.
B. Unless a withdrawing Participant determines in good faith that a shorter period of
time is necessary, such Participant shall provide written notice of its intent to withdraw from this
Agreement at least thirty (30) calendar days in advance of the date it deems its withdrawal effective.
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C. In the event a Participant withdraws from or fails to comply with this Agreement,
the withdrawing or breaching Participant shall remain obligated to preserve the confidentiality of all
Protected Defense Materials received or disclosed pursuant to this Agreement.
VIII, TNRTTRANCR
The Participants do not intend to make any agreement, and this Agreement shall not be
construed in a manner, that will prejudice any Participant with respect to its insurers. On the
contrary, the cost efficiencies provided by this Agreement are intended to benefit such insurers.
� ► • 1 C 11 11► • ► I► 1l1' • I► i ►
In connection with performance of any work pursuant to this Agreement, the Participants
agree not to refuse to hire, discharge, promote or demote, or to discriminate in matters of
compensation against any person otherwise qualified, solely because of race, creed, color, religion,
sex, national origin or ancestry.
/ • ► I :1 _ 111 ►
A. Additinnal Partiripantg
Any person or entity may join this Agreement upon majority approval of the Participants by
executing a copy of this Agreement, as in effect at the time of such execution.
B. Tenial nfLiahility
The Participants each deny liability or responsibility for the County's Claims and Closure
Costs or other costs relating to the Site. In no event shall entering into this Agreement or the
Agreement itself be construed or used in any manner either as an admission of any responsibility or
liability by any Participant or as a waiver by any Participant of any defenses or claims except as
specifically provided herein.
C. GovemingT.aw
This Agreement shall be governed by and shall be construed and enforced in accordance
with the laws of the State of California.
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D. Srnnnec.Gnrs
This Agreement shall be binding upon and shall enure to the benefit of the successors and
assigns of the Participants.
E. Agroament as Complete lete Tnte a? tion/Amf-mdmentq
This Agreement is intended as the complete integration of all understanding among the
Parties. No prior or contemporaneous addition, deletion or other amendment shall have any force
or effect unless embodied herein in writing. No subsequent novation, renewal, addition, deletion or
other amendment hereto shall have any force or effect unless embodied in a written amendatory or
other agreement executed by a majority of the Participants.
F. No Third PartyRaneficiariec
It is expressly understood and agreed that enforcement of the terms and conditions of this
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Agreement shall be strictly reserved to the Participants. This Agreement is not intended to and
shall not be construed to create any rights and/or obligations in third parties.
G. Cnnntemnrr.¢
This Agreement may be executed in multiple counterparts, each of which, including copies
thereof, shall be deemed an original and all of which, taken together, shall constitute one and the
same Agreement.
H. Severabili
If any provision of this Agreement is held to be unenforceable, the remaining portion shall
nevertheless remain in full force and effect.
IN WITNESS WHEREOF, the Participants have caused this Agreement to be executed by a duly
authorized representative, as of the Effective Date. Each person signing this Agreement represents and
warrants that he or she has been duly authorized to enter into this Agreement by, and to bind, the
Participant on whose behalf the person is signing.
City of Petaluma
In
Title
City of Rohnert Park
10
Title
City of Santa o
By:
Title
0
Title
Town of Windsor
City of Cloverdale
In
Title
In
Title
0
Title
in
Title
By:
(Title)
7
City of Cotati
City of Sonoma
City of Sebastopol
City of Healdsburg
APPROVER AS TO FORM:
City of Petaluma City of Cotati
By: By:
City Attorney City Attorney
City of Rohnert Park City of Sonoma
By: By:
Interim City Attorney City Attorney
City of Santa Rosa�p City of Sebastopol
By: By:
City Attorney City Attomey
Town of Windsor City of Healdsburg
By: By:
Special Counsel City Attorney
City of Cloverdale
City Attorney
736198M I (.Final as of 6/15/05)
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RESOLUTION APPROVING A CONFIDENTIALITY / JOINT DEFENSE
AGREEMENT BETWEEN THE NINE SONOMA COUNTY CITIES (PARTICIPANTS)
IN CONNECTION WITH THE SONOMA COUNTY CENTRAL LANDFILL SITE AND
RELATED MATTERS
WHEREAS, the County of Sonoma is seeking to recover from the City of Petaluma the
recovery of certain costs and possible damages in connection with the generation, transportation,
disposal and storage of municipal solid waste; and
WHEREAS, the County also seeks to recover certain "closure" and "post -closure" costs
relating to the Central Landfill from Petaluma as well as the other Participants; and
WHEREAS, the Participants desire to cooperate among themselves to explore common
issues of law and fact in connection with the County's Claims and Closure Costs, and recognize
that such common interests can most effectively be protected or advanced by executing this
Agreement.
NOW, THEREFORE, BE IT RESOLVED that the City Council authorizes the City
Manager to enter into said Agreement and to participate in the CDM analysis.
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