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HomeMy WebLinkAbout001155 Original Contract City of Port Angeles Record #001155 COMMON INTEREST AGREEMENT This Agreement is made by and between the City of Port Angeles("City"), a Washington municipal corporation,the Port of Port Angeles("Port"),a Washington municipal corporation, and Georgia-Pacific LLC. ("GP"),a Delaware corporation, who are collectively referred to as the"Parties,"and individually as,a"Party." RECITALS 1. Western Port AWeles Harbor Site and Nippon Payer. The Parties are members of the Western Port Angeles Harbor Group("WPAHG")along with Nippon Paper,Industries USA, Co., Ltd. ("Nippon") and Merrill &Ring("WPAHG Members"), The WPAHG Members have each been named as Potentially Liable Parties("PLI's")by the Washington Department of Ecology("Ecology")for the Western Port Angeles Harbor Site("Site")and are signatory to an Agreed Order with Ecology requiring the investigation of contamination in Port Angeles Harbor. The Parties are also negotiating with federal Natural Resource Trustees regarding a possible settlement of Natural Resource Damages("NRD"). On April 14,2013 the WPAHG Members entered into a Participation Agreement for Western Port Angeles Harbor( "PLP Agreement") that provides for provisional cost sharing to fund the Agreed Order work along,with certain agreed NRD-related work and contemplates a future processes for final allocation of costs associated with the ultimate Site cleanup action and NRD settlement. In August,2016 Nippon announced it was putting its mill and certain real property up for sale. To the Parties knowledge, the mill and its related tangible and intangible property are Nippon's only asset, raising concerns about Nippon's future financial,participation in Site remedial action and NRD settlement costs. The Parties anticipate that they may become involved in legal actions related to securing Nippon's contribution to the costs associated with further investigating and remediating the Site and settling NRD("Nippon Financial Assurances"'). 2. Common Igerest. The Parties agree that they share a common interest in cooperating,with each other to the extent permitted by law and in sharing certain information protected by the attorney-client privilege and by the attorney work-product doctrine and/or common interest privilege regarding any and all claims related to Nippon Financial Assurances., To further these common interests,the Parties intend to share and exchange certain privileged and attorney work-product information and documents, including but not limited to,factual analyses,mental impressions, legal memoranda,reports of witness interviews,,draft briefs, pleadings and other information,oral or written(collectively,"Common Interest Materials") related to Nippon Financial Assurances. Common Interest Materials also includes strategy and tactics discussed or exchanged during communications and/or conferences among the Parties related to Nippon Financial Assurances. 3. Nq Disclosure. But for their mutual and common interests in pursuing and/or defending against the claims that may be asserted with regard to Nippon Financial Assurances, and but for the undertakings in this Agreement,the Parties would not disclose to each other, or any other third-party,such Common Interest Materials. I 4. Maintenance of Applicable PrivilgM. The Parties do not intend to waive any applicable privilege or protection by the disclosure of Common Interest Materials to one another. Further,to the extent permitted by law,the Parties intend to protect all Common Interest Materials from disclosure to any person not party to this,Agreement. AGREEMENT In consideration of the mutual promises and agreements outlined in this Common Interest Agreement,the Parties agree as follows: 5. Ex_c_hMgg of Common Interest M"Jals. Pursuant to this Agreement, each Party may, at its discretion,exchange with any other Party,or offer for exchange, some or all of the Common Interest Materials currently in its possession,in the possession of its counsel or which may hereafter come into its possession. 6. All PrivilegLs,Maintained.The Common Interest Materials that the Parties intend to exchange are privileged from disclosure to adverse or other third parties as a result of the attorney-client privilege,the attorney work-product doctrine,the privileges applicable to parties with common interest,the joint-defense:privilege and other applicable privileges or protections. By this Agreement,the Parties state that in pursuit of their common interests and in joint defense against,any claims that they may assert or that may be asserted against them with regard to Nippon Financial Assurances,they do not intend to waive any applicable privileges and they intend to preserve:to the maximum extent permitted by applicable law the attomey-client privilege,protection under the attorney work-product doctrine,the joint-defense privilege and all other privileges and protections that they may have. T Confid SXitialily. Except as may be required by statute or by court order or permitted by agreement of all Parties that have not withdrawn under Paragraph I I below, none of the Parties will disclose any Common Interest Materials to any person or entity other than a Party that has not withdrawn from this Agreement or the:counsel for such a Party, The Parties agree to use Common Interest Materials,solely to ftniher their assertion and/or defense of the claims that may be:brought with regard to Nippon Financial Assurances and for no other purpose. In the event a Party receives a request,including a subpoena,for production of Common Interest Materials,that Party will promptly notify all other Parties,and that Party, with the cooperation of the other Parties, will either(a)take appropriate steps to oppose production of the requested Common Interest Materials,or(b)if that Party determines that production is required by statute,notify the other Parties that it intends to disclose the requested Common Interest Materials no less than fourteen days prior to disclosure unless one or more of the Parties obtains a court order prohibiting such disclosure. This Agreement shall not prohibit disclosure by a Party of the materials which that Party alone has prepared or obtained,which contain no privileged or protected information obtained directly or indirectly from another Party, and which are Common Interest Materials,only because that Party has delivered them to other Parties. In addition,this,Agreement shall not prevent a Party from using for any claims,that may be asserted by or against that Party with regard to Nippon Financial Assurances including any appeals taken from any decisions,or judgments involving such claims)non-privileged facts,documents,and theories that are learned or derived 2 from Common Interest Materials. However,in the event any request for production, including a subpoena, is served upon any Party or Party's counsel that has withdrawn from this Agreement pursuant to Paragraph 11,the withdrawn Party and its counsel shall oppose the production of any Common Interest Materials,notwithstanding that Party's withdrawal from this Agreement. This Agreement shall also apply to Common Interest Materials exchanged among the Parties prior to the effective date of this Agreement to the extent those materials relate to Nippon Financial Assurances. The Parties cannot use materials 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. 8. AdditionaLParties. By unanimous consent,the Parties may agree to allow other, persons who share their common interest in any claims with regard to Nippon Financial Assurances,and who agree to be bound by the terms of this Agreement, to join the Agreement. 9. No Waivers. This Agreement shall not create any agency or similar relationship among the Parties.No Party shall have authority to waive any applicable privilege or doctrine on behalf of any other Party; nor shall any waiver of an applicable privilege or doctrine by the conduct of any Party be construed to apply to any other Party. 10. SeRMate and Inde endent Representation.Nothing in this Agreement shall be construed to affect the separate and independent representation of the Parties by their respective counsel. Each Party agrees to waive any claim it might have for disqualification of counsel for the other Parties in relation to any claims that may be asserted by or against them with regard to Nippon Financial Assurances or any other subsequent proceedings that might be based upon access to Common Interest Materials.The obligations,under this paragraph will survive the termination of this Agreement and will continue to bind each Party after that Party's withdrawal or removal from the Agreement. 11. Withorawal. Any Party to this Agreement may withdraw from this Agreement upon prior 30-day written notice to all other Parties. Any withdrawing Party and that Party's counsel shall continue to be bound by this Agreement with regard to any Common Interest Materials received,learned,or obtained at any time prior to the effective date of the withdrawal, and this Agreement shall continue to protect all Common Interest Materials disclosed to both the withdrawing Party and that Party's counsel. 12. Return of Conmign Interest Materials. Upon request at any time, specifically identified documents and materials exchanged as Common Interest Materials,including copies that can reasonably be retrieved,will be returned to the Party who originally furnished the specific documents and materials,within thirty(30) days of such request. If counsel for either Party ceases representation of their respective client(s)in connection with this Agreement or otherwise withdraws from this Agreement,counsel for that Party shall return all Common Interest Materials,(including copies that can reasonably be retrieved).This provision shall not apply to information from documents or materials that have been incorporated into other public records and cannot legally or reasonably be removed. 13. Eguitable Remedies. The Parties agree that the rights,privileges,and interests intended to be protected by this Agreement are unique and any violation of this Agreement may 3 result in irreparable harm and injury to the other Parties.The Parties specifically agree that the terms of this Agreement may be enforced through appropriate injunctive relief,specific performance or other,equitable relief,but no monetary damages shall be recoverable against any Party. 14. Duration of Agreement. This Agreement, including its provisions on the use and confidentiality of Common Interest Materials, shall remain in full force and effect notwithstanding any settlement or resolution of claims,related to Nippon Financial Assurances. The provisions of this agreement governing the use and confidentiality of Common Interest Materials shall continue to apply to any employee of any Party or its counsel who ceases to be employed by that Party, and to any expert,consultant,terminated counsel,agent or contractor who worked on behalf or under the direction of any Party or its counsel. 15. Headings Not Controll%rau.. The paragraph headings included herein are for reference only and are not a part of this Agreement. The headings shall not control or alter the meaning of this,Agreement as set forth in the text. 16. Counterparts,Fax Signatures. This Agreement may be executed in any number of identical counterparts,notwithstanding that all Parties have not signed the same counterpart, with the same effect as if all Parties had signed the same document.All counterparts shall'be construed as and shall constitute one and the same agreement. Fax signatures on this Agreement will be fully binding and effective for all purposes. In the event that fax signatures are used,the Parties agree that they will promptly forward signed copies of the original Agreement through their respective,attorneys.However,the signed fax documents will remain binding even if the originals are not sent or received. 17. Authorization and Execution. By executing this Agreement,the undersigned certify that they have authority to bind their respective entities to the terms of this Agreement and are signing on behalf of their respective entities as shown below. 18. Final and Complete E session. This Agreement is the final and complete 2U_ expression of the Parties concerning the subjects covered by this Agreement and this Agreement supersedes and replaces all prior agreements,discussions,representations and drafts,all of which are merged into,and superseded by,this Agreement. 19. Severability.of Agreement. If any provision of this Agreement is found invalid or unenforceable,then the:balance of this Agreement shall remain in full force and effect. 20. Governing Law.This Agreement was entered into under the laws of the State of Washington. If it becomes necessary to interpret any of the Agreement's terms,it is the intent of the Parties that the laws of the State of Washington shall apply,without giving effect to the provisions thereof relating to conflicts of laws or choice of laws. 21. Binding Effect. This Agreement is binding upon and inures to the benefit of the Parties and their respective-heirs, legatees,representatives,successors,transferees and assigns. 22. Full Understanding-, Independent Legal Counsel. The Parties each acknowledge, represent and agree that they have read this,Agreement;that they fully understand the terms 4 thereof;that they have been fully advised by their legal counsel and other advisors with respect thereto; and that it is executed by them upon the advice and recommendation of their independent legal counsel. 23, Effective Date. This Agreement incorporates the prior intent and practice of the Parties and is eflective as of November 1, 2016, IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed effective as of the date set forth in Paragraph 23 above. CITY OF PORT ANGELES Icy Its: City Manager GEORGIA-PACIFIC LLC Ely: Its: advnlew!� F ' U PORT OF PORT ANGELES By: Its: Executive Director 5 thereof; that they have been fully advised by their legal counsel and other advisors%Aith respect thereto;and that it is executed by them upon the advice and recommendation of their independent legal counsel. 23. Effective Date. This Agreement incorporates the prior intent and practice of the Parties and is effective as of November 1, 2016 IN WITNESS WHEREOF,the Parties have caused this Agreement to be executed effective as of the date set forth in Paragraph 23 above. CITY OF POWI'ANGELES By: Its: City Manager GEORGIA-PACIFIC LLC By: Its: POT OF PORT ANGELES By: Cr7 Its: Vxkrive ir, for 5