HomeMy WebLinkAboutC-3400(B) - Collective Defense Agreement10 -09 -2001 ,02:010M From-101)
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COLLECTIVE DEFENSE AGREEMENT
This Collective Defense Agreement ( "Agreement ") is made and entered into as of
this / 5" day of Mar CA , 2001, by and among the IRVINE RANCH
WATER DISTRICT, a California water district formed and existing pursuant to the
California Water District Law ( "IRWD "), and any of the following listed parties who have
executed both this Agreement and that certain agreement entitled "AGREEMENT FOR
SALE OF SAN JOAQUIN RESERVOIR CAPACITY RIGHTS AND UNDIVIDED REAL
PROPERTY INTERESTS AND TERMINATION OF TRUST AGREEMENT' in
substantially the form attached hereto as Exhibit "A" ( "Sale Agreement "), unless the
execution of the Sale Agreement has been enjoined or stayed by a court of appropriate
jurisdiction and such injunction or stay remains in effect (collectively, "Sellers "):
THE METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA
( "METROPOLITAN" herein), organized and existing pursuant to the
Metropolitan Water District Act ( Stats. 1969. Ch. 209, as amended);
CITY OF HUNTINGTON BEACH ( "HUNTINGTON BEACH" herein), a municipal
corporation of the State of California;
CITY OF NEWPORT BEACH ( "NEWPORT BEACH" herein), a municipal
corporation of the State of California;
MESA CONSOLIDATED WATER DISTRICT ( "MESA" herein), organized, existing
and operating pursuant to the Costa Mesa Merger Law (Water Code
§33200 et seq.) and the County Water District Law (Water Code §30000 et
seq.);
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LAGUNA BEACH COUNTY WATER DISTRICT (" LAGUNA' herein), organized
and existing pursuant to the County Water District Law (Water Code
§30000 et seq.);
SOUTH COAST WATER DISTRICT ( "SOUTH COAST" herein), organized and
existing pursuant to the County Water District Law (Water Code §30000 et
seq.) (successor to South Coast County Water District);
and
THE IRVINE COMPANY ( "TIC" herein), a Delaware corporation (successor in
interest to The Irvine Company, a Michigan corporation, successor in
interest to The Irvine Company, a West Virginia corporation);
RECITALS:
A. IRWD and the Sellers, as owners of interests in the San Joaquin Reservoir
( "Reservoir"), have entered into, or have executed, subject to execution by any of the
parties thereto which have not yet signed, the Sale Agreement, providing for the sale to
IRWD by the Sellers of all of their respective undivided ownership and capacity interests
and all of their rights, title and interest in and to the Reservoir.
B. On December 18, 2000, IRWD approved the execution of the Sale
Agreement, approved a project to convert the Reservoir to a reclaimed water storage
reservoir and adopted certain proceedings relating to such approvals under the California
Environmental Quality Act (CEQA).
C. On or about January 22, 2001, a petition for writ of mandate and complaint
for declaratory and injunctive relief was filed in the Superior Court entitled DEFEND THE
BAY, Petitioner and Plaintiff, v_ IRVINE RANCH. WATER DISTRICT et al., Respondents
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and Defendants, and MESA CONSOLIDATED WATER DISTRICT; METROPOLITAN
WATER DISTRICT, CITY OF HUNTINGTON BEACH; LAGUNA BEACH COUNTY
WATER DISTRICT; THE IRVINE COMPANY; SOUTH COAST WATER DISTRICT; CITY
OF NEWPORT BEACH, et al., Real Parties in Interest, Case Number OCSC 01CCO1034
(the "Action "). The Action seeks review of the above- described approvals on the
grounds of noncompliance with CEQA.
D. The parties signatory to this Agreement acknowledge that they have a
common interest in completing the transaction for the sale of the Reservoir and a
common interest in defending the Action. The Sellers signatory to this Agreement have
a common interest in avoiding or minimizing the expense of defending the Action. The
signatory parties are not aware of a basis for a conflict of interest in participating in a
collective defense of the Action.
E. The parties signatory to the Agreement have considered their potential
individual exposure, defense costs and other matters and have concluded that it is in
their individual best interests to enter into this Agreement for the collective defense of the
Action.
NOW, THEREFORE, the parties hereto, in consideration of the mutual promises
and covenants hereinafter set forth, DO AGREE AS FOLLOWS:
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SECTION-1.
Additional Parties. The parties hereto agree that any entity
listed as a prospective Seller above, who has not signed this Agreement, may become a
party hereto by executing this Agreement and, unless precluded as described in the
preamble to this Agreement, by executing the Sale Agreement.
SECTION 2. Confidentiality. Each of the parties hereto agrees to maintain
in strict confidence any nonpublic information, including, but not limited to, any
information related to this Agreement and protected by the work product or attorney -
client privileges, it receives in any form relating to the subject matter of this Agreement or
the Action. Each of the parties desires to maintain all information distributed to and
among the parties and the parties and counsel as confidential and protected by the
attorney - client and official information privileges.
SECTION 3. Defense. IRWD agrees to defend each party who has
become a "Seller" in the manner described hereinabove, in the Action, including any
appeal thereof or any related actions filed with respect to additional CEQA proceedings
taken by IRWD if the same are ordered in the Action. IRWD shall have the right to
determine the theories on which it will provide the defense of the Action, to pursue or not
pursue any substantive or procedural matter in the Action, including any appeal thereof
or any related actions filed with respect to additional CEQA proceedings taken by IRWD
that may be ordered in the Action, and to approve or not approve any settlement of the
Action. The foregoing notwithstanding, any party shall have the right to withdraw from
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this Agreement, at any time and for any reason, and, in that event, the withdrawing party
shall no longer be included in the collective defense.
SECTION 4. Costs and Expenses. All costs and expenses related to this
defense, including the expense of satisfying or complying wfth any relief ordered against
Sellers in the Action, and any attorneys' fees incurred by IRWD in the legal
representation of Sellers pursuant to this Agreement, shall be paid by IRWD. IRWD shall
also bear all costs and expenses of preparing any additional CEQA documentation that
may be required pursuant to the Action.
SECTION 5. Leaal Counsel. The parties hereto recognize and
acknowledge that the law firm of Bowie, Arneson, Wiles & Giannone has been retained
by IRWD to provide the collective representation under this Agreement. The parties
further acknowledge that under the rules of professional conduct of attorneys, counsel
may not represent two or more parties. whose interests conflict or are adverse or may
become adverse, without the consent of each such party. Each of the parties hereto
hereby expressly represents that it has made such investigation of potential conflicts of
interest and sought such independent legal advice as it deems necessary in order to
make an informed decision concerning any actual or potential adverse effects of joint
representation of it by counsel retained by IRWD. Each of the parties hereto expressly
consents to its representation by legal counsel designated by IRWD. In giving such
consent, each of the parties acknowledges and understands that counsel retained by
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IRWD to provide the collective defense may have represented, or may currently or in the
future represent, IRWD or other parties with interests adverse to such consenting party's
interests in other matters not involved in the Action. Each of the parties hereby further
agrees and consents to the continued representation by said legal counsel designated
by IRWD notwithstanding such parry's withdrawal'pursuant to Section 3 hereof, and
hereby waives any right to disqualify said counsel from continuing to provide the
collective defense for the remaining parties. This consent is conditioned upon IRWD's
reasonable efforts to keep counsel designated by the signatory parties sufficiently
informed to enable such counsel to advise their respective client signatory parties
regarding the existence and scope of any conflicts of interest that may arise among
signatory parties.
SECTION 6. Execution. This Agreement may be executed in counterparts,
each of which shall be deemed an original and all of which shall constitute one and the
same agreement. Each signing party has caused this Agreement to be executed on its
behalf by its duly authorized officers and represents and warrants that the officers so
executing have been duly authorized to enter into this Agreement on behalf of the party
for whom they execute. This Agreement shall be effective as of the date when it has
been signed by IRWD and any one or more of the other parties listed in the preamble
hereof who have also executed the Sale Agreement unless execution of the Sale
Agreement is precluded in the manner described in said preamble.
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IN WITNESS WHEREOF, the parties have executed this Agreement.
IRVINE RANCH WATER DISTRICT
APPROVED AS TO FORM:
(SEAL)
Co nsel for IRWD
APPROVED AS TO FORM:
Counsel for METROPOLITAN
THE METROPOLITAN WATER
DISTRICT OF SOUTHERN
CALIFORNIA
By
General Manager
By
Secretary
(SEAL)
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IN WITNESS WHEREOF, the parties have executed this Agreement.
APPROVED AS TO FORM:
Counsel for IRWO
IRVINE RANCH WATER DISTRICT
By
President
By
Secretary
(SEAL)
THE METROPOLITAN WATER
DISTRICT OF SOUTHERN
CALIFORNIA
all
0
Secretary
APPROVED AS TO FORM:
6L&1"XY . (SEAL)
Counsefor METROPOLITAN
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APPROVED AS TO FORM:
!'
City Attorney
APPROVED AS TO FORM:
City Attorney
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CITY OF HUNTINGTON BEACH
Mayo
City Clerk 5;1
(SEAL)
CITY OF NEWPORT BEACH
By
Mayor
By
City Clerk
(SEAL)
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APPROVED AS TO FORM:
City Attorney
A OVED AS TO FORM:
y Attorney
G
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CITY OF HUNTINGTON BEACH
By
Mayor
By
City Clerk
(SEAL)
CITY OF NEWPORT BEACH
Mayor .
City Clerk
(SEAL)
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MESA CONSOLIDATED WATER
DISTRICT
BY "/rr�V'1144 041'1' �7
Presiddee/
BY
Secretary
APPROVEDASTO FORM: Bowte,pzassmvwtu6i�6tawr&wr:
Counsel for MESA
APPROVED AS TO FORM:
Counsel for LAGUNA
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(SEAL)
LAGUNA BEACH COUNTY WATER
DISTRICT
By
President
By
Secretary
(SEAL)
10 -09 -2001 .02:02pm
From -IRWD
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APPROVED AS TO FORM:
Counsel for MESA
APPROVED AS TO FORM:
Counsel for LACUNA
Paula E. Meyer
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MESA CONSOLIDATED WATER
DISTRICT
By
President
By
Secretary
{SEAL}
LAGUNA BEACH COUNTY WATER
DISTRICT
By
.President Paul P. Freeman
By /�,•
Secretary Renae M. Hinchey
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APPROVED AS TO FORM:
(AunsEA for SbpH COAST
APPROVED AS TO FORM:
Counsel for TIC
gall
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SOUTH CO ST WATER DISTRICT
President
By P1 Ax "4"
iM"
Secretary
(SEAL)
THE IRVINE COMPANY
0
Chick W. Willette
Senior Vice President
Peter Changala
Vice President
(SEAL)
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APPROVED AS TO FORM:
Counsel for SOUTH COAST
APPROVED AS TO FORM:
Counsel for TIC
,1611
10
SOUTH COAST WATER DISTRICT
By
President
By
Secretary
(SEAL)
THE IRVINE COMPANY
By
Chick . Willette
Senior Vice President
By 3Q -- --
Peter Chan—gala
Vice President
(SEAL)
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kA
T-527 P.015 /015 F -125
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