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HomeMy WebLinkAboutC-2967+160 -ab JOINT DEFENSE,/COMMON INTEREST AGREEMENT This Joint Defense/Common interest Agreement (the "Agreement ") is entered into by and among the City of Arcadia and City Council of the City of Arcadia (collectively, the "City "), oil the one hand, and Bowden Development, Inc. (`Bowden ") and 29 East Orange Grove Avenue, LLC ( "29 East ", collectively with Bowden, the "Developers "), on the other hand. The City and the Developers are referred to collectively as the "Parties" and individually as the "Party ". WHEREAS, Bowden wishes to rehabilitate and /or redevelop the real property generally known as 1600 Highland Oaks Drive ( "Bowden Property ") which is located within the City of Arcadia, County of Los Angeles, California. WHEREAS, 29 East wishes to rehabilitate and /or redevelop the real property generally known as the 29 East Orange Grove Avenue ( "29 East Property ") which is located within the City of Arcadia, County of Los Angeles, California. WHEREAS, The redevelopment/rehabilitation of the Bowden Property and the 29 East Property is herein referred to as the Project. On November 19, 2014, the Highlands Homeowners' Association's Architectural Review Board ( "ARB ") denied applications related to Project. Those denials were appealed to the Planning Commission, which reversed the decisions of the ARB. These decisions were appealed to the City Council, which upheld the Planning Commission's determinations at the conclusion of a public hearing on February 3, 2015. The City's Project approvals include the requirement that the Applicants defend, indemnify and hold the City harmless in connection with the City's approval of the Project. WHEREAS, Save the Arcadia Highlands has now filed suit against the City and Developers as real parties in interest, alleging„ among other claims, a violation of the Califomia Environmental Quality Act ("Action''). WHEREAS, the Parties have a mutual interest in defending the Action; WHEREAS, the joint defense/common interest privilege_ applies to communications, information exchanges, and discussions taken to further their mutual interests in defending the Action; WHEREAS, counsel for the Parties (i.e., Best, Best & Krieger LLP (counsel for the City) and Parker, Milliken, Clark, O'Hara & Samuelian, a professional corporation (counsel for the Developers)) desire to exchange and discuss documents and information relating to the Action for the purpose of furnishing legal advice to and representing their respective clients; and WHEREAS, counsel for the Parties wish to memorialize their agreements relating to protection of such exchanges and discussions. NOW THEREFORE, the Defendants hereby agree as follows: I. Mutual Interest. The Parties to this Agreement believe that the Action has presented and will present various legal and factual issues common to the Parties and that the Parties share common interests with respect to the Action. The Parties have worked and continue to wish to work with each other and have their attorneys work together in defending demands and claims raised in and addressing common interests with respect to the Action. It is in the Parties' mutual best interests to cooperate with each other to the extent permitted by law and to share certain information protected by the attorney - client privilege, the work- product doctrine, the common interest privilege and/or the joint defense privilege in the Action. To further these common interests, the Parties and their attorneys have and intend to share and exchange certain privileged and work- product information and documents, possibly including, but not limited to, factual analyses, mental impressions, legal memoranda, reports of witness interviews, expert opinions and reports, draft briefs, draft affidavits and /or declarations, pleadings, billing memos, and other information, oral or written (collectively "Joint Litigation Materials "). 2. No Disclosure. The Parties have not and would not disclose to each other such Joint Litigation Materials but for their mutual and common 'interests in the Action and but for the undertakings memorialized in this Agreement. 3. Cooperation in Joint litigation. The Parties shall continue to cooperate as fully as possible and practicable with one another, given the unique interests and concerns of each Party in the Action. 4. Exchange of Joint Litigation Materials. Pursuant to this Agreement, the Parties have and may, at their discretion, exchange some or all of the Joint Litigation Materials currently in their possession or in the possession of their counsel, or which may hereafter come into their or their counsel's possession. Nothing in this Agreement, however, requires any Party to provide materials in their possession to any other Party to this Agreement. This Agreement applies to all Joint Litigation Materials exchanged prior to its execution. 5. All Privileges Maintained. The Joint Litigation Materials that the Parties have or will exchange are privileged from disclosure to adverse or other third parties as a result of the attorney - client privilege, the work- product doctrine, the privileges applicable to parties with common interest, the joint defense privilege, and other applicable privileges or protections. 6. Nondisclosure. The Parties agree that neither they nor their counsel will disclose Joint Litigation Materials received from each other to anyone except the Parties' outside lawyers, in -house lawyers, or employees or agents employed. to assist in connection with the Matters, including consultant experts. 7. Confid'entlality /Scope of Duties. The Parties shall use Joint Litigation Materials solely to further their interests in the Matters and for no other purpose. Anything herein to the contrary notwithstanding, the Parties are permitted to disclose Joint Litigation Materials to their respective. counsel. 9. Maintenance of Confidentiality. The Parties recognize that it is possible that they may take positions that are inconsistent or even adverse to one another in the Matters or in other legal proceedings. If the Parties advance either inconsistent or adverse legal positions, they will nonetheless be bound by the provisions of this Agreement. The Parties cannot use materials Page 2 of 5 obtained pursuant to this Agreement in actions against each other, but must obtain the materials through normal discovery procedures, whether formal or informal, so that appropriate privileges can be asserted. 91 No Waivers. No Party shall have authority to waive any applicable privileges or doctrine on behalf of any other Party; not shall any waiver of an applicable privilege or doctrine by any Party be construed to apply to any other Party. 10. Separate and Independent Representation. Neither the entering into this Agreement nor tiie receipt or use of Joint Litigation Materials shall create any attorney- client relationship between one Party and counsel. for another Party to this Agreement, and nothing in this Agreement shall be construed to affect the separate and independent representation of the Parties by their respective counsel. IL Execution. This Agreement may be executed by a Party or may be executed on behalf of a Party by the Party's respective in -house counsel. 12. Binding Effect. This Agreement is binding upon and inures to the benefit of the Parties and their respective heirs, legatees, representatives, attorneys, successors, transferees, and assigns. 13. Subpoena /Court Order. Joint Litigation Materials are privileged and may not be disclosed without the written consent of the Party furnishing them and, in the case of jointly privileged or jointly furnished materials, the written consent of all Parties having a joint privilege or having jointly furnished them. The person or entity seeking the Joint Litigation Materials will be informed that such materials are privileged and may not be disclosed without a court order. The Party or attorney receiving the request for the Joint Litigation Materials agrees that he or she will resist disclosure of such materials to the extent permitted by law, including seeking relief from an appropriate court, if necessary. Notwithstanding the foregoing, nothing shall prevent any Party from disclosing the existence of or a copy of this Agreement to the person or entity that has requested Joint Litigation Materials, 14. Withdrawal/Termination. Any Party may withdraw from this Agreement on prior written notice to the other Party in which event this Agreement shall terminate, except that the rights and obligations hereunder continue and remain in full force and effect; provided, however, that: (i) such termination shall be prospective only and shall not affect or impair the obligations of confidentiality with respect to common. interest privileged information, or the Joint Litigation Materials previously exchanged pursuant to this Agreement; (ii) this Agreement shall continue to protect all common interest privileged information disclosed by or to the Parties prior to termination; and (iii) the Parties shall continue to be bound by this Agreement with regard to any common interest privileged information provided, disclosed, received, learned, or obtained prior to termination. 15. )'affective Date. This Agreement shall be effective from the date below and to the extent the Parties already have been in communication with each other concerning any aspect of the Matters, their communications, any privileged communications and any attorney work product, were and are subject to this Agreement and to any and all applicable privileges, Page 3 of 5 including but not limited to, the joint defense privilege, the common interest privilege, the attorney /client privilege and the attorney work product doctrine. 16. Governing Law. The validity, performance, and construction of this Agreement shall be governed and interpreted in accordance with the laws of the State of California applicable to contracts made and to be performed herein, without regard to the conflicts law thereof. 17. Execution of Multiple Originals. This Agreement, and any supplemental agreements, between the Parties pursuant to this Agreement may be signed in multiple original copies. A faxed or digitally imaged signature shall suffice as an original. IN WITNESS 'WHEREOF, the Defendants have caused this Agreement to be executed effective as of May �, 2015. CITY OF ARCADIA, a charter city and municipal corporation, and CITY COUNCIL OF THE CITY OF ARCADIA By: Dominic Lazzaretto City Manager ATTEST: Lisa Mussenden Chief Deputy City Clerk/ Records Manager APPROVED AS TO FORM: By: Stephen P. Deitsch City Attorney City of Arcadia BOWDEN DEVELOPMENT, INC., a California corporation By: — F. d ow n, its Chief Financial Officer 29 EAST ORANGE GROVE AVENUE, LLC, a Delaware limited liability company : By MUR -SOL REAL ESTATE, LLC, its Managing Member Jason Grohs, its Managing Member of Mur -Sol Real Estate, LLC [Signatures continued on next page] Page 4 of 5 including but not limited to, the joint defense privilege, the common interest privilege, the attorney /client privilege and the attorney work product doctrine. 16. Governing Law. The validity, performance, and construction of this Agreement shall be governed and interpreted in accordance with the laws of the State of California applicable to contracts made and to be performed herein, without regard to the conflicts law thereof. 17. Execution of Multiple Originals. This Agreement, and any supplemental agreements, between the Parties pursuant to this Agreement may be signed in multiple original copies. A faxed or digitally imaged signature shall suffice as an original. IN WITNESS WHEREOF, the Defendants have caused this Agreement to be executed effective as of May _, 2015. CITY OF ARCADIA, a charter city and municipal corporation, and CITY COUNCIL OF THE CITY OF ARCADIA By: ' omtnic Lazzare City Manager ATTEST: By: 1�011E W or NU Li a ussenden Ch? 6f Deputy City Clerk/ Records Manager APPROVED AS TO FORM: By: ' 46a"— Stephen P. Deitsch City Attorney City of Arcadia BOWDEN DEVELOPMENT, INC., a California corporation By- F. d ow n, its Chief Financial Officer 29 EAST ORANGE GROVE AVENUE, LLC, a Delaware limited liability company 0 By MUR -SOL REAL ESTATE, LLC, its Managing Member Jason Grohs, its Managing Member of Mur -Sol Real Estate, LLC [Signatures continued on next page) Page 4 of 5 including but not limited to, the joint defense privilege. the common interestprivilege, the attorney /client privilege and the attorney work product doctrine. 16. Governing Law, The validity, performance, and construction of this Agreement shall be governed and interpreted in accordance with the laws of the State of California applicable to contracts made and to be performed herein, without regard to the conflicts law thereof. 17. Execution of Multiple Originals. This Agreement, and any supplemental agreements, between the Parties pursuant to this Agreement may be signed in multiple original copies. A Faxed or digitally imaged signature shall suffice as an original. IN WITNESS WHEREOF, the Defendants have caused this Agreement to be executed effective as of May_, 2015. CITY OF ARCADIA, a charter city and municipal corporation, and CITY COUNCIL OF THE CITY OF ARCADIA Y� �mjnic � Lazzarett City Manager ATTEST: By: +LisasenAdenA y City Clerk/ Records Manager APPROVED AS TO FORM: By: R Steplhen P. Deitsch City Attorney City of Arcadia BOWDEN DEVELOPMENT, INC., a California corporation By: F. Todd Bowden, its Chief financial Officer 29 EAST ORANGE GROVE AVENUE, LLC, a Delaware limited liability company Btt)� E -SOL RE, ESTATE, L „kC, its)4anaging Member Bhi: f *n Grohs. ” Its Managing Member of Mur -Sol Real Estate, LLC [Signatures continued on next page] Page 4 of 5 APPROVED: BEST BEST & KRIE R P By: is elle Ouellette Attomeys for City of Arcadia and the City Council of the City of Arcadia PARKER, MILLIKEN, CLARK, O'HARA & SAMUELIAN, n Professional Corporation By: Brent G. Cheney Attorneys for Bowden Development, Inc. and 29 East Orange Grove Avenue, LLC Page 5 of 5